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14 Cards in this Set
- Front
- Back
Defenses to Negligence |
Contributory Negligence, Comparative Negligence, Assumption of the Risk |
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Contributory Negligence |
If the P is found to be negligent at all, bars recovery. All or nothing. Still the rule in NC |
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Exceptions to Contributory Negligence |
P can STILL FULLY recover if: Bexiga Rule, Special Relationship, Rescue (Good Samaritan), Medical Care, Last Clear Chance |
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Bexiga Rule |
Where the D has a duty to protect (ie. employer/ worker) and the injury is from failure to protect- no contributory negligence bar Test: Contributory negligence will not apply when the injury is: - to P's self and - when D has knowledge of the P's inability to protect himself from harm (as opposed to NO knowledge). |
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Special Relationship |
- Christensenv. Royal School District: D engaged in sexual activity with minor in classroom,claimed that P voluntarily participated in relationship; won’t allow that asdefense because minors don’t have a duty to protect against sexual abuse byteachers.
- Schoolhad “special relationship” between school and students that gave them a duty toprotect them from reasonably anticipated dangers. |
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Rescue Doctrine (Good Samaritan) |
Neither the rescued party nor the original tort feasor can assert contributory negligence in case brought by rescuer, unless rescuer acted very recklessly. WAnt to encourage rescues. |
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Medical Care Exception |
When P causes situation that leads to him needing medical treatment, contributory negligence can't bar recovery. Stark contrast to when you injure someone else, where you are held responsible for resulting negligence |
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Last clear chance doctrine |
If D had last clear chance to avoid injury and could've avoided P, and D is aware that P is helpless, then P's contributory negligence won't bar/ reduce recovery. |
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Comparative Negligence |
The conduct of P that falls below the ordinary standard of care is only a partial bar to recovery (pure, modified) |
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Pure Comparative Negligence |
If P's negligence is found to have contributed to the harm, then P's recovery is reduced by the % of his negligence P could recover if D was only 1% at fault |
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Modfied comparative neglience |
If P deemed to be more at fault, then P doesn't recover Majority: In the greater than version, P is completely barred if her fault exceeds that of D (or multiple D's combined). Minority: In equal to version, P is completely barred if her fault is at least equal, but not exceeding. |
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Assumption of the risk |
P voluntarily consenting to a known risk Express or implied (primary, secondary) |
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Express assumption of the risk |
Express contractual or oral waiver of the right to sue. Ask if a reasonable person would understand that responsibility is shifted. Usually enforceable, unless for essential public service or D acted intentional/ willfully. |
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Implied assumption of the risk |
P voluntarily confronts a known (knowledge/ appreciation) risk Primary: Courts for policy reasons sometimes say that people negligently injured in sports or recreational activities may not recover any damages. Secondary: Person voluntarily and knowingly encountered a risk (consent), then D may use this as affirmative defense and bar recovery (merges in comparative negligence) |