Negligence - Defenses Flashcards
Contributory Negligence (def)
Negligence on the part of the P that contributes to the P’s injuries.
*Same standard of care as for ordinary negligence.
Is cont. neg. a defense to a violation of the statute?
Yes! UNLESS statute was designed to protect this class of Ps from their incapacity and lack of judgment.
(ex: child injured after darting into street in school zone and getting hit by speeding car of D)
Is cont. neg. a defense to intentional torts?
NO!
Impact on P’s recovery - Cont. Neg.
@ CL it’s a complete bar to recovery. Most states now entertain comparative negligence systems whereby it will only reduce P’s chance for recovery instead of bar it.
Last Clear Chance as exception to Cont. Neg.
Person with LCC to avoid the accident and fails to do so is liable for negligence.
(i. e., If D had LCC @ time of the accident, then P can still recover even if contributorily negligent.)
* Earlier negligence does not apply to the doctrine.
LCC - Helpless Peril
D will be liable if D knew or should’ve known of P’s predicament.
LCC- Inattentive Peril
D must actually know of P’s predicament to incur liability.
i.e., P could’ve extricated herself if she was attentive
Imputed Contributory Negligence
Contributory negligence of a 3rd party will be imputed to a P (and bar her claim) ONLY when the relationship b/w the 3rd party and the P makes the P VL for the 3rd party’s negligence.
(i.e., employer-employee; joint venturers/partners)
NOT b/w spouses; parent-child; automobile owners-drivers
Assumption of the Risk (def)
P must have know of the risk AND voluntarily proceeded in the face of the risk.
NOT a defense to Intentional Torts but is to wanton and. willful misconduct.
P may be denied recovery if she assumed the risk of any damage caused by D’s act.
Implied AOR
Knowledge (of the risk) may be implied when a RP would appreciate the risk.
No available alternative to proceeding –> NO AOR
Express AOR
Risk may be assumed by an express agreement.
Comparative Negligence
Here, cont. neg is NOT complete bar to recovery.
Weigh P’s negligence and reduces damages accordingly.
LCC NOT used in jurisdiction.
Partial Comparative Negligence
Bars P’s recovery if negligence was more serious than D’s negligence.
Single D: Damages $100k; P 30%; D 70%; P receives $70k from D
Multiple Ds: $100k damages; P 40%; D1 35%; D2 25%; P may receive $60k from D1 or D2
*Ds may still have claim against P if they suffered injuries.
Pure Comparative Negligence
MBE: assume applies unless stated otherwise
Allow recovery no matter how great P’s negligence was.
$100K damages; P 30%; D 70%; P right to recover $70k from D and D right to recover $30k from P. D’s damages will be offset against P’s damages and P will receive net recovery of $40k.
