• Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

Card Range To Study

through

image

Play button

image

Play button

image

Progress

1/5

Click to flip

Use LEFT and RIGHT arrow keys to navigate between flashcards;

Use UP and DOWN arrow keys to flip the card;

H to show hint;

A reads text to speech;

5 Cards in this Set

  • Front
  • Back

Damages

1. Talk about damages if you know you need damages, physical injury to person or property.



2. If fact pattern is of emotional or economic losses, then no damages will be awarded



3. If there is a negligence claim you need damage as one of the factors (all you need to know)



4. If comparative Negligence, know apportionment of damages according to comparative negligence.

Express Assumption of Risk

General - If π explicitly agrees with ∆ in advance of ay harm that π will not hold ∆ liable for certain harm, then π has expressly assumed the risk of that harm. If this is the case, it is a complete defense.



Exceptions -


1. When the party protected by the clause either (1) intentionally causes the harm, or (2) brings about the harm by acting in a reckless or grossly negligent way.



2. When the bargaining power of the party protected by the clause is grossly greater than that of the other party, typically a status the court finds to exist only when the good or service being offered is "essential".



3. Where the court concludes that there is some overriding public interest which demands that the court refuse to enforce the exculpatory clause


^Public interests are affected when:


1. The party is a business of a type generally thought suitable for public regulation


2. The party seeking exculpation is engaged in performing a service of great importance to the public.


3. The party holds himself out as willing to perform this service for any member of the public who seeks it.


4. The party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services


5. The person or property of the purchases is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.


Contributory Negligence

Very small minority of jrx.



∆ must show π breached, was CIF (but for cause) and PC of the injury



General - A showing of contributory negligence used to be a complete defense. Now most jrx are under the comparative fault regime.



Limit to Contributory Neg. Defense - If just before the accident, ∆ had an opportunity to prevent the harm, and π did not have such an opportunity, the existence of this opportunity wipes out the effect of π's contributory negligence.



Comparative Fault/Negligence

Definition - Rejects the all-or-nothing approach of contributory negligence. Instead it attempts to divide liability between π and ∆ in proportion to their relative degrees of fault.



Note 1 - Majority of Jrx adopt this approach



Pure System of Comparative Fault - 13 states have adopted; π may recover for ANY percentage of damages that he did not contribute negligence to. (e.g. if π negligent 73%, π may still recover 27% in damages).



"As Great As" System - π is barred from recovery as soon as his negligence is as great as (50% or more) ∆'s.



"Greater Than" System - π is barred from recovery if his negligence is greater than (51% or more) ∆'s.



Note 1 - Parties argue comparative fault according to relative culpability ("your breach was worse than my breach") and causative potency ("Your breach was more of a proximate cause, then my breach").

Implied Assumption of Risk

Definition - Even if π never makes an actual agreement with ∆, whereby π assumes the risk, π may be held to have assumed certain risks by her conduct.



Two Requirements to establish; ∆ must show that π's actions demonstrated that she:


1. Knew of the risk in question; and


2. Voluntarily consented to bear that risk herself.



Knowledge of Risk - The particular type of risk (as opposed to some vaguely-similar risk) must be actually known to π, not merely one which π ought to have known.



Voluntary Assumption - The requirement that π consented voluntarily is also strictly construed.



Note 1 - In MOST Jrx - Recovery is reduced rather than completely barred by Implied assumption of Risk