Negligence Defenses Flashcards
Contributory Negligence
o When Ps failure to exercise reasonable care is a CIF of Ps injury, there’s a complete bar to recovery
o Minority law
Exception to Contributory Negligence
Last Clear Chance Doctrine
Last Clear Chance Doctrine
When P and D have both acted negligently, P may still be able to recover if D had the last clear chance to avoid the injury
For contributory negligence as a matter of law , The courts will look at (2)
Plaintiff had conscious appreciation of the danger ( subjectively knew) , had substantial awareness
Comparative Fault Types
Pure
Not As Great As
Not Greater Than
Pure Comparative Fault
Ps recovery reduced by percentage of fault attributable to P
Not as great as
P’s negligence not as great as Defendant’s negligence to recover
If Ps fault is equal to or greater than Ds fault, Ps recovery is completely barred
Reduced by P’s fault
Not Greater Than
Ps negl not greater than Ds negl
Ps negl can equal Ds negl
Reduced by plaintiff’s fault
Assumption of the risk
In Pure form, complete bar to recovery
Express
1st/Primary AOR
2nd AOR
Express AOR
By written or oral contract,
Plaintiff voluntary encounters Known, specific risk _ can include unknown risk ( if expressed) and Specifically releases defendants from liability for injuries sustained b/c of defendant’s negligence.
Primary Implied AOR
Plaintiff assumes risk inherent in a particular activity
Plaintiff voluntarily encountered risk
Plaintiff had actual knowledge & appreciation of specific risk of injury
Risk was caused by defendant’s negligence.
2ndary implied AOR
Based on plaintiff’s conduct
Plaintiff voluntarily encountered a known & appreciated specific risk
Created by defendant negligence.
Statute of Limitations
Time period during which COA must be filed or it is barred.
- Accrual Rule
- Discovery Rule
Accrual Rule
Default Rule
SOL begins to accrue when the harm occurs ( date of injury)
Discovery Rule
SOL beings to run when plaintiff knows or should have known date of injury with reasonable diligence.
Tolling & application
SOL does not run for a period of time
Would apply when defendants fraudulently concealing negligence
Minors
Statute of Repose (4)
Generally not subject to tolling
COA does not arise w/in specified time, even if before plaintiff’s injury. Completely bars compliant
o Triggered by occurrence of the act or omission that caused the injury
o Relevant date is date of injury ( treatment)
