Neg - Defenses Flashcards
neg defenses: list
1) contributory neg + comparative fault
2) assumption of risk
3) avoidable consequences
defeneses: BOP
on D!
contrib neg/comparative fault: BOP
on D, to show that P’s conduct:
fell below relevant SOC
was COF + PC of P’s injury
comparative fault vs contributory neg: which applies?
depends on j.
ASSUME comparative fault! (and joint+several liability)
contributory negligence: def
any fault of P is a bar to recovery (all or nothing)
comparative fault: def
P can still recover based on % of fault (see modified)
comparative fault: kinds
1) pure
2) modified
pure comparative fault: rule
P can recover reduced amount based on P’s % of fault
modified comparative fault: rule
P can recover a %, BUT if P is as much or more at fault than D, then P is barred from recovering at all!
CF / joint + several liability: how interact
both apply.
formula:
1) subtract out P’s % of fault
2) then P can sue ANY D for the full remaining amt of damages,
3) Ds have to sue each other for contribution if want to get a % back
assumption of risk: kinds
1) express
2) implied
express assumption of risk: rule
express assumption of risk arises when P, through written or oral words, relieves D of the responsibility to be non-negligent towards P
express assumption of risk: typical scenario
recreataional sports w waivers
express AOR: requirements
1) language must be clear
2) D’s conduct must be no more culpable than negligent
3) waiver can’t be void as against public policy
express AOR: void against public policy when
dealing w a necessity, like medical care
implied assumption of risk: rule
occurs through conduct rather than words. P impliedly assumed risk if:
1) P knew the risk
2) P appreciated the specific danger that injured him (comprehended the risk)
3) P voluntarily chose to expose himself to the risk
implied assumption of risk: result
barred for recovery or recovery reduced
c/c CF vs AOR
CF: objective
AOR: subjective
professional rescuers/firefighter rule
bc of inherent risks of job, professional rescuer MAY NOT RECOVER in negligence against the party whose negligence created the situation that required the PR to do her job
primary assumption of risk
certain contexts, usu sports – D has no obligation to act non-negligently towards P
avoidable consequences: rule
P has obligation to take reasonable steps not to increase the injury (after P has been injured)
