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14 Cards in this Set
- Front
- Back
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Contributory Negligence - Summary
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-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 |
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Contributory Negligence - Last Clear Chance
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-if D had last clear chance/opportunity to avoid accident after P's negligence and P had no such opportunity --> D is liable.
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Comparative Negligence - PURE
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-damages reduced by %-age of P's negligence
-EX: P is 90% negligence, D still liable for 10% of damages |
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Comparative Negligence - MODIFIED
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-50% Rule - P's Negligence < or = D's negligence
-49% Rule - P's Negligence < D's Negligence |
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Comparative Negligence - Multiple Ds
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-P's negligence < combined D's negligence
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Comparative Negligence - Non-Parties
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-non-parties can be held accountable for percentage of total negligence
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Assumption of Risk - Express
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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 |
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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 |
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Assumption of Risk - Effect
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- not favored defense
- incorporated into cont/comp negligence - valid defense for strictL |
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Statute of Limitations
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-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 |
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Statute of Limitations - Second Injury
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-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) |
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Immunity
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-immunity avoids tort liability in ALL circumstances (privilige only in some)
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Immunity: Interspousal
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-outdated
-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 |
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Immunity: Parent-Child
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-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 |
