Defenses to Negligence Flashcards
What is the general rule statement for defenses to negligence?
The plaintiff has a duty, an obligation, to protect him/herself. For a defense to negligence, the defendant must prove that the plaintiff, in caring for him/herself, breached that duty by failing to act as a reasonable, prudent person, and that the plaintiff was both the factual and proximate cause of the plaintiff’s own harm, such that it will bar the plaintiff’s claim or will reduce the amount of damages the defendant will have to pay the plaintiff.
How does contributory negligence affect a claim?
At common law, contributory neglgience is a complete defense to neglgience and will result in dismissal of the plaintiff’s claim.
When does imputed contributory negligence apply?
Contributory negligence of one party may be imputed to another in the following situations: (1) an employee’s conduct is imputed to an employer and (2) a direct victim’s conduct is imputed to a plaintiff with a derivative claim (i.e. wrongful death, loss of consortium).
What is the definition of impute?
To impute is to lay the responsibility of one’s actions onto another.
When is contributory negligence not imputed? (3)
- parent/child
- spouse/spouse
- driver/passenger
What is the last clear chance doctrine?
The last clear chance doctrine is a 100% exception to contributory negligence where the defendant had the last clear chance to avoid harm to a careless plaintiff. The doctrine has been widely abrogated since the adoption of comparative fault and is only applicable in jurisdictions using contributory negligence.
How does pure comparative negligence affect a claim?
The plaintiff’s recovery is reduced by the plaintiff’s percentage of fault, regardless of the percentage of fault attributable to the plaintiff.
How does modified comparative negligence affect a claim?
The plaintiff’s recovery is reduced based on the percentage of the plaintiff’s fault. Most jurisdictions follow the rule that if the plaintiff’s fault is greater than 50%, the plaintiff’s claim is barred. Some jurisdictions will bar recovery if the plaintiff’s fault is greater than 51%.
What is the majority rule for comparative fault?
Modified comparative negligence
What is the general rule for assumption of the risk?
Assumption of the risk may bar a plaintiff’s claim of negligence or reduce available damages.. There are three basic elements to assumption of the risk. The plaintiff must (1) know of the risk and (2) voluntarily (3) assume that risk. The modern trend is to view assumption of the risk in 3 categories: express, primary implied, and secondary implied.
What is express assumption of the risk?
Express assumption of the risk is an affirmative defense and will generally act as a bar to the plaintiff’s claim if the following are satisfied: (1) an agreement that is written, oral, or based on conduct; (2) the agreement refers to negligence or uses equivalent language; (3) the claim is for negligence; and (4) the waiver/agreement is not against public policy.
What can’t be disclaimed in a waiver/agreement?
Anything more than negligence (i.e. gross negligence, recklessness, intentional) cannot be disclaimed.
Can parents sign waivers/agreements for their children?
Parents cannot disclaim the lawsuits of their children, even for negligence claims.
When does a waiver/agreement/release go against public policy?
When it is for a required service, such as doctors, rather than a recreational activity for which the plaintiff would have options.
What is primary implied assumption of the risk?
Primary implied assumption of the risk is a no duty rule and will generally bar a plaintiff’s claim. It holds that the defendant is under no obligation to protect the plaintiff from risks which are inherent to a particular activity.
