Neg - Defenses Flashcards

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1
Q

neg defenses: list

A

1) contributory neg + comparative fault
2) assumption of risk
3) avoidable consequences

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2
Q

defeneses: BOP

A

on D!

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3
Q

contrib neg/comparative fault: BOP

A

on D, to show that P’s conduct:
fell below relevant SOC
was COF + PC of P’s injury

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4
Q

comparative fault vs contributory neg: which applies?

A

depends on j.

ASSUME comparative fault! (and joint+several liability)

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5
Q

contributory negligence: def

A

any fault of P is a bar to recovery (all or nothing)

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6
Q

comparative fault: def

A

P can still recover based on % of fault (see modified)

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7
Q

comparative fault: kinds

A

1) pure

2) modified

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8
Q

pure comparative fault: rule

A

P can recover reduced amount based on P’s % of fault

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9
Q

modified comparative fault: rule

A

P can recover a %, BUT if P is as much or more at fault than D, then P is barred from recovering at all!

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10
Q

CF / joint + several liability: how interact

A

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

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11
Q

assumption of risk: kinds

A

1) express

2) implied

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12
Q

express assumption of risk: rule

A

express assumption of risk arises when P, through written or oral words, relieves D of the responsibility to be non-negligent towards P

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13
Q

express assumption of risk: typical scenario

A

recreataional sports w waivers

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14
Q

express AOR: requirements

A

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

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15
Q

express AOR: void against public policy when

A

dealing w a necessity, like medical care

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16
Q

implied assumption of risk: rule

A

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

17
Q

implied assumption of risk: result

A

barred for recovery or recovery reduced

18
Q

c/c CF vs AOR

A

CF: objective
AOR: subjective

19
Q

professional rescuers/firefighter rule

A

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

20
Q

primary assumption of risk

A

certain contexts, usu sports – D has no obligation to act non-negligently towards P

21
Q

avoidable consequences: rule

A

P has obligation to take reasonable steps not to increase the injury (after P has been injured)