Defenses to Negligence Flashcards
Contributory Negligence
(Con Neg)
RULE
Looking at P’s negligence being a cause for their own harm
Con Neg
Last Clear Chance Exception
P uses this overcome the harshness of CN by saying D had the clear chance to avoid this harm and D did not avoid it, and even though P had some negligence–> P can recover and not barred
Con Neg
Remote CN Rule (minority rule)
P’s negligence is only slight or very remote when compared to D–> P can still recover
3 types of Con Neg defenses against P
Advanced Precautions rule
Looks at the conduct before the accident
3 types of Con Neg defenses against P
Con Neg rule
RULE: P’s conduct was a cause in P’s own harm
3 types of Con Neg defenses against P
Avoidable Consequences/Mitigation of Damages rule
P’s failure to mitigate avoidable consequences, thus P’s conduct must have taken reasonable steps after the accident
o Dealing with Survival Action
Survival action covers all injuries from the pt of the injury up to the pt in time of death
Comparative Fault/Negligence (CF) Defense
what is being compared with P’s and D’s negligent conduct???
Factors for Assigning shares of Responsibility: Majority Approach!!!
CF Defense
Factors assigning shared responsibility…
1) the nature of each person’s risk creating conduct
2) AND the strength of the casual connection bw the persons’ risk creating conduct and the harm
CF Defense
Factors assigning shared responsibility
Nature of each person’s risk-creating conduct FACTORS
1) The nature of each person’s risk-creating conduct includes these factors:
- as how unreasonable the conduct was under the circumstances,
- the extent to which the conduct failed to meet the applicable legal standard,
- the circumstances surrounding the conduct,
- each person’s abilities and disabilities,
- and each person’s awareness, intent, or indifference with respect to the risks
CF Defense
Factors assigning shared responsibility
Strength of the casual connection FACTORS
- how attenuated the causal connection is,
- the timing of each person’s conduct in causing the harm and a comparison of the risks created by the conduct
- and the actual harm suffered by the plaintiff.
CF
Pure CF approach rule
RULE: The P’s recovery is reduced by the percentage of fault attributable to the P
o Ex. for example, a plaintiff responsible for 90 percent of the negligence that caused his injuries totalling $100k –> nevertheless may recover 10 percent of his damages from D
CF Defense
Modified CF “Not as great as” approach
RULE: P’s fault is not as great as D’s fault
o That is P must be 49% or less at fault and D is 51% or greater at fault –> then P can recover
P’s fault cannot be equal to or greater than D’s fault
CF Defense
Modified CF “Not greater than “ approach
RULE: That is P’s fault is not greater than D’s fault
That is if P is 50% at fault and D is 50% at fault–> then P can recover,
anything above P’s 50% fault will bar P’s recovery
CF Defense
What if you have 1 P at fault and you multiple D’s also at fault?
What is the majority rule on this?
In either modified CF Jurisdictions –> they aggregate or combine the fault so P can recover
CF Defense
What if you have 1 P at fault and you multiple D’s also at fault?
What is the minority rule on this?
You don’t aggregate and you compare P’s % fault with the other D’s –> so P only recover from D’s whose % is greater than P’s fault
Assumption of Risk (AofR)
What is it?
Aof Risk is a harsh doctrine bc you express or implicitly assume it–> it’s a complete bar to P’s recovery
* So P says we need to get rid of AR bc P doesn’t get nothing
* But courts keep AR bc its functions essential to society
AofR
Express AR general rule
P’s risk may be assumed by an express AR agreement containing exculpatory clauses in an adhesion contract –> thus P’s recovery is barred
AofR
Express AR General Rule Elements
o 1) Express varies but is usually agreed upon orally or in writing
o 2) Express must be clear and conspicuous
o 3) And P must be on notice
that is agreement’s LNG is open and obvious to P
AofR
Express AR Majority Rule on Exculpatory clauses dealing with the word “negligence”…
Exculpatory clauses don’t require the negligence word used
FL uses this approach
AofR
Express AR General Rule
3 Reqs that find Exculpatory clauses unenforceable
(1) when the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence
(2) when the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the other’s negligence
(3) AND when the transaction involves the public interest.
AofR
Express AR General Rule
3 Reqs that find Exculpatory clauses unenforceable
3rd Req Tunkl Factor Test
o It concerns a business of a type generally thought suitable for public regulation.
o The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.
o The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.
o As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.
o In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.
o Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.
AofR
Primary AR = RIAR rule
P acts reasonably in encountering the risk bc the risk has to be inherent in the activity
Therefore, RIAR acts as a complete bar to P’s recovery
AofR
Secondary AR = UIAR rule
P unreasonably encountered the risk thus P was negligent
Therefore P can still recover under UIAR
Statute of Limitations (SofL)
what is it?
o The statute of limitations is a complete bar to actions that do not meet its time limits.
SofL
Tolling rule
is when the SofL is paused
SofL
Accural rule
when the SofL begins to run
SofL
Discovery Rule Exception to Accrual rule
the SofL does not begin to run until the negligent injury is or should have been discovered by the P
SofL
Continuing Torts rule
SofL does not begin to run until after the cessation of the tortious conduct
Inter-spousal Immunity rule
Interspousal immunity has been abandoned–> allows spouse to now sue for tort claims
* Majority rule
Parental Immunity rule
Majority rule–shields parents or person standing in loco parentis from ordinary negligence even for cases of death involving child
need Loco Parentis–> whoever is standing in place of a parent over a particular period of time
Gov’t Immunity
General rule
tort claims act bars claim against gov’t, but the statute will permit gov’t to be sued
Gov’t Immunity
Discretionary Function Exception
o It applies when the Gov’t will not be liable for civil claims base upon the performance of a dictionary function of a fed agency or employee of the gov’t
Gov’t Immunity
Discretionary Function Exception
2 Step Inquiry
1) Is whether this a matter of choice?
* Discretionary conduct is a matter of choice that is it involves judgement on their part–>
o If it is then they are immune
* OR if its a ministerial act–> that is you don’t have direction–>thus you follow and required to follow–>they are not immune
2) AND is this the kind of discretion designed to shield liability?
* To be protected–> gov’t/agency/officers’ conduct must be grounded in social, economic and political goals
