Negligence Defenses Flashcards
List all negligence defenses
- CONTRIBUTORY NEGLIGENCE
- COMPARATIVE NEGLIGENCE
- ASSUMPTION OF RISK (EXPRESS/IMPLIED)
- STATUTE OF LIMITATION
- IMMUNITIES
CONTRIBUTORY NEGLIGENCE + case
RULE: Under contributory negligence doctrine, if P’s negligent conduct is also a factual and a proximate cause of P’s own injuries, P is barred from recovering from D, despite the fact D’s negligent conduct contributed to P’s injuries.
struck by a pole case
Last clear chance doctrine + case
RULE: the Last Clear Chance Doctrine provides that, even if a P is contributorily negligent, P can still recover if P shows D had the last meaningful opportunity to prevent the harm.
donkey case
when is the defense of contributory negligence not applicable?
- for intentional torts
- when D acts w/reckless disregard to risk of harm
- last clear change doctrine
- Q: What can P recover if jury finds P 1% at fault D did NOT have “last clear chance” to avoid injury?
- Q: What can P recover if jury finds P is 90% at fault but D DID have “last clear chance” to avoid injury?
- nothing
- 100%
comparative fault
many states have replace contributory negligence with comparative fault, including florida. P’s recovery is reduced in direct proportion to P’s % of fault.
modified comparative fault
“AS GREAT” COMPARATIVE
A. Where P is 50%+ at fault, P recovers NOTHING;
B. Where P’s % fault is 49% or less, P recovers but recovery is reduced by P’s % fault;
“GREATER THAN” COMPARATIVE
A. Where P is 51%+ at fault, P recovers NOTHING;
B. Where P’s % fault is 50% or less, P recovers but recovery is reduced by P’s % fault.
ASSUMPTION OF RISK TYPES
EXPRES AOR
IMPLIED AOR
EXPRES AOR + CASE
RULE: The affirmative defense of Express Assumption of the Risk (AOR) bars P’s recovery if D pleads and proves P voluntarily assumed the risk by written release, such that:
a. the injury to P falls w/in scope of the unambiguous terms of the release; AND
b. the release is not void as against public policy (e.g., D intentionally or recklessly caused harm, unconscionability, or “essential services”).
WOMEN GYM CASE
IMPLIED AOR + CASE
RULE: Even absent Express AOR (assumption of the risk) by written release, the affirmative defense of implied AOR bars P’s recovery if D pleads/prove:
a. P had actual knowledge of the risk/danger that caused P’s injury;
b. P appreciated magnitude of risk/danger AND
c. P voluntarily “encountered” the risk/danger anyways (e.g. safe alternative existed).
TOILET FALL CASE OF WOMAN
STATUTE OF LIMITATION
GENERAL RULE: A D is relieved from liability if they plead and prove the P filed suit after the expiration of the statute of limitations (SOL) applicable to the P’s cause of action.
While the time period imposed by a SOL generally “accrues” (i.e., clock starts ticking) the moment P suffers injury), in certain situations P can show the SOL was “tolled” (i.e., pausing clock until certain condition met).
Statute of limitation exception
discovery doctrine:
EXCEPTION TO RULE: majority adopts the DISCOVERY DOCTRINE, such that the clock starts when injured P knew or reasonably should have known of injury. In a medical malpractice claim, the cause of action accrues, and statute of limitations begins to run when the patient discovers or should have discovered the injury.
list of immunities
- Interspousal immunity
- parent immunity immunity doctrine
- charities
- government
Interspousal immunity
RULE: Interspousal immunity Doctrine
At common law, interspousal immunity barred recovery of spouse 1 for tortious conduct of a spouse 2 on the theory that, inter alia, immunity promotes marital harmony, discourage collusion or fraud, etc.
A majority of jurisdictions have completely abolished such immunity;
Minority have partially abolished (e.g., no immunity for intentional torts committed by one spouse against another, no immunity for any torts committed while married once divorced or the spouse has died).
parent immunity doctrine
Most jurisdictions still hold parents, guardians and stepparents acting in loco parentis (in the place of a parent) IMMUNE from tort claims based on a theory of “negligence supervision” of a child.
However, there is NO immunity from torts claims sounding in intentional torts or negligence-based torts claims based on non-parental theories (eg. Negligent driving causing injury to child passenger).
