Negligence - Carless Victims: Contributory Negligence Flashcards
What is contributory negligence? (Feldman)
Contributory negligence, as its name indicates, asks:
(1) was the plaintiff negligent (determined in the same fashion as primary negligence)? and
(2) did the plaintiff’s negligence contribute to the plaintiff’s injuries?
What does it mean that contributory negligence is a defense? (Feldman)
Contributory negligence is a defense, which means that the defendant must plead and prove it and that it only comes into play if the defendant has breached its duty of care and contributed causally to the injury suffered by the plaintiff.
How much does a plaintiff recover under contributory negligence? (Feldman)
Contributory negligence, unlike comparative negligence, bars the
plaintiff from recovering.
What does contributory negligence punish? (Feldman)
Unlike primary negligence, which involves breach of the
injurer’s duty to take care for the safety of others and their property, contributory negligence is the victim’s failure to use reasonable care for the safety of themselves and their own property.
What is the casual conception reason why contributory negligence bars recovery? (Feldman)
The causal conception holds that since the accident would not have happened but for the contributory negligence of the plaintiff (Rawl), the plaintiff is the “author of his own wrong” (Davies).
What is the economic conception reason why contributory negligence bars recovery? (Feldman)
The economic conception posits victims as “Cheapest Cost-Avoiders” (CCAs). When both the injurer and the victim can prevent an accident by taking reasonable precautions, the way to maximize wealth is to require the party who can prevent the
accident at the lowest cost – and only that party – to prevent the accident (Krall, Greycas).
When does the last clear chance doctrine apply? (Feldman)
(1) the plaintiff was in a position of danger due to negligence of the plaintiff;
(2) the plaintiff was oblivious to the danger or unable to extricate themselves from the position of danger;
(3) the defendant was aware or by the exercise of reasonable care should have been aware of the plaintiff’s danger and ignorance or inability to extricate themself from danger; and
(4) the defendant, with means available to them, could have avoided injuring the plaintiff but failed to do so.
What is the last clear chance doctrine? (Feldman)
Last clear chance doctrine relieves victims who were contributorily negligent of responsibility for their own injuries and placed that responsibility back on the negligent injurers who had harmed them.
What is the seatbelt defense? (Feldman)
The seat belt defense precludes recovery for the additional injuries that would have been avoided had the plaintiff been wearing a seat belt. (Spier)
