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14 Cards in this Set

  • Front
  • Back
Contributory Negligence - Summary
-negligence by P completely bars recovery

-extremely harsh - efforts to ameliorate:
1. burden of proof is on D
2. P's negligence only bars recovery if it was a cause-in-fact (sub. factor test)
3. narrowly define scope of risks P exposed himself to
4. leave question to jury

-only 4 states still use contributory
Contributory Negligence - Last Clear Chance
-if D had last clear chance/opportunity to avoid accident after P's negligence and P had no such opportunity --> D is liable.
Comparative Negligence - PURE
-damages reduced by %-age of P's negligence

-EX: P is 90% negligence, D still liable for 10% of damages
Comparative Negligence - MODIFIED
-50% Rule - P's Negligence < or = D's negligence

-49% Rule - P's Negligence < D's Negligence
Comparative Negligence - Multiple Ds
-P's negligence < combined D's negligence
Comparative Negligence - Non-Parties
-non-parties can be held accountable for percentage of total negligence
Assumption of Risk - Express
GR - ok, recognized by courts
-exception - extreme forms of negligence (gross, willful, wanton, reckless) and intentional torts

-MAIN ISSUE - consistent with public policy?

-must be equal bargaining power
-not binding if P did not K/HRTK
Assumption of Risk - Implied
-3 elements
1. P had actual knowledge of particular risk
2. P had appreciation for magnitude of risk
3. P voluntary encountered risk
-NOTE - protests and reluctant acceptance = ass. of risk? - depends, question of fact
Assumption of Risk - Effect
- not favored defense
- incorporated into cont/comp negligence
- valid defense for strictL
Statute of Limitations
-Traditional - statute begins to run immediately upon infliction of injury, failure to discover not relevant

-Discovery Rule - statute begins to run until negligent injury is or should have been discovered, obj test, majority rule for med-mal claims
Statute of Limitations - Second Injury
-statute begins to run when P discovers some form of actionable harm
-NOT when harm has fully manifested itself
-if second disease develops after case tried & lost - no relief (res judicata)
-immunity avoids tort liability in ALL circumstances (privilige only in some)
Immunity: Interspousal
-if there was peace of home - suit would not arise in first place
-criminal and divorce laws don't compensate
-no evidence suggesting allowing interspousal suits will cause large number of trivial suits
-rare case of fraud/collusion shouldn't prevent all claims
Immunity: Parent-Child
-meant to preserve family harmony (public interest), BUT denying lega remedy cannot help damage already done
-prevents fraud/collusion, BUT this is possible in everycase (jury is check)
-intrafamilial litigation may deplete family resources, BUT liability insurance helps ease financial burden