Defenses to Negligence Torts Flashcards
1
Q
Defenses to Negligence Torts
A
- Contributory/comparative fault
2. Assumption of risk
2
Q
Pure contributory fault
A
If P is negligent at all, bars P’s recovery
= $0 if P is even 1% at fault
3
Q
Last Clear Chance doctrine
A
P’s contributory negligence is not a bar if P can show that negligent D had last clear chance to avoid the accident
4
Q
Comparative/Contributory Fault - TN
A
- Modified comparative negligence system
- 50% rule
5
Q
Comparative/Contributory Fault - Majority
A
Either
- Pure comparative fault
- 50% rule (modified comparative fault)
- 51% rule (modified comparative fault)
6
Q
Comparative/Contributory fault - Minority
A
Pure contributory fault
7
Q
States with Pure Contributory Fault
A
- Alabama
- DC
- Maryland
- North Carolina
- Virginia
8
Q
Pure Comparative Fault
A
- Assign % of fault to P and D
- P can recover if less than 100% at fault
- P’s recovery is reduced by % of fault
9
Q
50% Rule
A
- Modified comparative negligence
- If P is 50% or more at fault, cannot recover
- If P is 49% or less at fault, can recover
- Amount recovered is reduced by P’s % of fault
10
Q
51% Rule
A
- Modified comparative negligence
- If P is 51% or more at fault, cannot recover
- If P is 50% or less at fault, can recover
- Amount recovered is reduced by P’s % of fault
11
Q
Assumption of Risk Types
A
- Express assumption of risk
2. Implied assumption of risk
12
Q
Example of Express Assumption of Risk
A
Exculpatory contracts/waiver
13
Q
Express Assumption of Risk
A
- By contract, P agrees to
- Voluntarily encounter
- Known risk
- While appreciating magnitude of risk
- Created by D’s negligence
14
Q
Implied Assumption of Risk
A
- By conduct/participation, P agrees to
- Voluntarily encounter
- Known risk
- While appreciating magnitude of risk
- Created by D’s negligence
15
Q
Assumption of Risk
A
- P agrees to
- Voluntarily encounter
- Known risk
- While appreciating magnitude of risk
- Created by D’s negligence
