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7 Cards in this Set

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  • Back
Contributory Negligence
unreasonable risk; when both P and D at fault, P totally barred from recovery; all or nothing rule; replaced in most jurisdictions by comparative negligence
Exceptions to Contributory Negligence
(1) D's conduct was intentional
(2) D was grossly negligent
(3) D had "last clear chance"
(4) P's negligence is "remote"
Comparative Negligence
Rejects all or nothing rule and attempts to divide liability b/w P and D in proportion to their relative degrees of fault; replaces contributory negligence, most cts now use
Pure comparative negligence
P's damages are reduced in proportion to the percentage of negligence attributable to him; both parties can recover
Modified comparative negligence
most cts use; plaintiff recovers only if either
(1) P's negligence does not exceed (50% or less) OR
(2) P's negligence is less than (49% or less)
D's negligence
Assumption of Risk
meeting of a subjectively known reasonable risk that was volunarily met and not against public policy to enforce; Complete defense, most cts no longer use
Exculpatory Agreement
K provision relieving a party from any liability resulting from a negligent or wrongful act; ct will permit as long as it does not permit public policy, equal bargaining power