Negligent Torts - AFFIRMATIVE DEFENSES Flashcards
What is the NY RULE on IMPLIED assumption of the risk?
Doesn’t exist
What is the NY RULE on PRIMARY assumption of the risk?
Actors have a duty only to refrain from reckless conduct.
- Applies only to sports and athletic competitions
- Applies to participants and spectators
How do you determine recovery under pure comparative negligence?
- D must offer evidence that P did not exercise adequate care for his own safety
- Jury compares negligence of each party and assigns each side a percent of fault
- P’s recovery is reduced by P’s percentage of fault (e.g., P deserves $100k in damages, but jury says P was 20% at fault; P gets $80k)
What are the affirmative defenses to negligent torts?
Depends on the jurisdiction:
Pure comparative
Partial comparative
Contributory negligence
What is PURE comparative negligence?
(NY is PURE)
P recovers regardless of his own negligence
P’s recovery is reduced by his % of negligence
What is partial comparative negligence?
P recovers his percentage, but only if he is less than 50% responsible for the accident
What is a contributory negligence jurisdiction?
P may not recover if he is negligent at all
BUT P may recover from a party that has a higher degree of fault
Which defenses apply to wanton or reckless tortious conduct?
Implied assumption of the risk
Pure comparative negligence
Partial comparative negligence
What is the doctrine of primary assumption of the risk?
NOT REALLY an affirmative defense; it’s more like a reduced standard of care
There, the standard of care is to REFRAIN FROM RECKLESS CONDUCT
What is comparative negligence?
An affirmative defense that D can raise to show that P failed to exercise reasonable care for P’s own safety (e.g., D hit P in an intersection, and D was negligent. But P was jaywalking and being an idiot, so P was negligent too - comparative negligence)
