Negligence: Plaintiff's Conduct Flashcards
Contributory Negligence
Occurs when a plaintiff fails to exercise reasonable care for her own safety and thereby contributes to her own injury
A defendant may have reduced liability
At Common Law: A plaintiff who is negligent in any degree is barred from recovery (only 5 jurisidictions)
Comparative Negligence
Adopts an approach of complete apportionment according to fault
Maintains the notion that a plaintiff who is more than 50% or 51% at fault may not recover for any injuries
Sudden Emergency Rule
A person faced with an emergency who acts, without opportunity for deliberation, to avoid an accident may not be charged with contributory negligence if he acts as a reasonable prudent person would act under the same emergency circumstances, even though it appears afterwards that he did not take the safest course or exercise the best judgment
No party can rely on an emergency created by his prior negligence
Seat Belt Defense
If a plaintiff did not wear a seatbelt and they got worse injuries than if they were wearing one, under traditional contributory negligence, any recovery would be barred.
Pure Comparative Negligence (Minority Approach)
The plaintiff’s full damages are calculated and then reduced by the proportion that the plaintiff’s fault bears to the total harm
Modern (Modified) Comparative Negligence
If the π is less at fault than the ∆:
- Π’s recovery is reduced by his percentage of fault
If the π is more at fault than the ∆:
-Π’s recovery is barred
If the π and the ∆ are equally at fault:
- (Majority) then the π recovers 50% of total damages
- (Minority) the π recovers nothing
Last Clear Chance Doctrine
If the ∆ had the last clear chance to avoid injuring the π but failed to do so, the π can recover despite their contributory negligence. Only applies in contributory negligence.
Last Clear Chance: Helpless Plaintiff
A π who, due to his own contributory negligence, is in peril and cannot escape, the ∆ is liable if she knew or should have known of the π’s perilous situation and could have avoided harming the π but for the ∆’s own negligence.
Last Clear Chance: Inattentive Plaintiff
A π who, due to his own contributory negligence, is in peril from which he could escape if he were paying attention is an inattentive π. The ∆ is liable only if she has actual knowledge of the π’s inattention, and therefore was negligent in failing to utilize the opportunity to prevent harm.
Breach of Statutory Duty
When a π is in breach of statutory duty, contributory negligence can be established.
When a ∆ is in breach of statutory duty, contributory negligence, or assumption of risk on the part of the π are not considered, if the π is a member of the class protected by the statute
Assumption of Risk Elements
(i) Did the plaintiff have Notice of the danger?
(ii) Did the plaintiff Appreciate the risk?
(iii) Did the plaintiff Voluntary Consent to the danger?
Implicit Assumption of Risk
Plaintiff indicates by her conduct that she has notice and appreciates a risk which she undertakes voluntarily
Explicit Assumption of Risk
Plaintiff indicates explicitly that she has notice and appreciates a risk which she undertakes voluntarily
Primary Assumption of Risk
Plaintiff knows and appreciates a particular risk and voluntarily proceeds in the face of that risk, thereby relieving the defendant of any duty to her
Secondary Assumption of Risk
Defendant does have a duty to the plaintiff, but the plaintiff knew and appreciated the risk created by the defendant’s negligence and voluntarily proceeded
A background risk which has been made more dangerous by a ∆ adding a secondary level of risk, which π is also aware of
