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
