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25 Cards in this Set
- Front
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Contributory negligence under traditional tort law |
(Pure) A plaintiff whose ownnegligence is a cause (no matterhow tiny) of his or her own injuryis completely barred from recovery. (Contributory negligence has beenwidely rejected and replaced witheither pure or modified systems ofcomparative negligence.) |
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49 percent rule |
Plaintiff is only allowed to recover if hisnegligence is LESS THAN the defendant (comparative negligence) |
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50 percent rule |
Plaintiff is only allowed to recover if hisnegligence is LESS THAN OR EQUAL tothe defendant (comparative negligence) |
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How does the Learned Hand test factor into contributory negligence? |
he relative degrees of negligence ofvarious parties can be determinedusing B |
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What if, in a contributory negligence case, there are multiple defendants, all contributorily at fault in varying percentages? |
The outcome may beaffected by choosing to compare theplaintiff’s percentage either to the total of alldefendants percentages or to the percentageassigned to each defendant. |
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What is the unit rule? |
For some jurisdictions, under a contributory negligence case, some courts compare the plaintiff with thetotal of all defendants’ shares |
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What if, in a contributory negligence case, one defendant's conduct was worse than negligent? |
If a defendant was reckless, for instance, and another was negligent, if the reckless plaintiff was extremely egregious, the negligent plaintiff my be excused. |
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What is the doctrine of last clear chance? |
Excuses a plaintiff’s negligencewhen the plaintiff is in inescapable peril, of which the defendant is aware and unreasonably fails to avoid harming the plaintiff. |
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What are the circumstances qualifying the plaintiff for the doctrine of last clear chance? |
1. Plaintiff by his own negligence puts himself in peril that he cannot escape 2. Defendant is aware of this peril, or should have known by exercise of reasonable care that the plaintiff was in this peril 3. Defendant could have avoided this peril if he had time or means, or saw the perilous position 4. Defendant fails or refuses to reasonably avoid the impending harm to the plaintiff 5. Plaintiff is injured as a result of #4 |
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In a comparative negligence jurisdiction, if you are negligent and the defendant is reckless, what happens? |
You may get 100% of possible damages or you may have them reduced to reflect your own negligence |
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What happens if the defendant has the last clear chance to avoid an injury but failed? What types of jurisdictions does this apply to? |
Contributory: The plaintiff may recover full damages! Comparative: reduces recovery under the pure version, and under the modified versions only if the plaintiff's negligence is relatively small (both doctrines) |
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What is an exculpatory agreement and how do courts view one? |
This is express assumption of risk Exculpatory agreements are signed contracts amounting to releases of all future claims. Courts sometimes uphold them as validcontracts, but in certain situationscourts will refuse to treat them asvalid. Most courts take a very pro-plaintiff approach and apply serious criteria to an exculpatory agreement to deem it valid or not. |
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What are some criteria courts look at when analyzing an exculpatory agreement? |
Plaintiff must have knowledge of thefacts constituting a dangerous condition, including the extent of its dangerous nature, and must voluntarily expose himself to the danger |
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When will an exculpatory agreement definitely not be upheld? |
1. Endeavor usually thought suitable for public regulation. 2. Service of great importance or practical necessity. 3. Activity generally offered to public or to defined limited classes. 4. Party invoking exculpation controls the bargaining. 5. Contract is standardized with no opportunity for purchase of protection against negligence for a reasonable fee. 6. One who seeks services covered by the release will be under the control of the furnisher of services. |
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What is primary assumption of risk? |
Situations where courts conclude of statutes state that the defendant has no duty to the plaintiff, or that the defendant did not breach a duty to the plaintiff. Primary assumption of risk negates a claim of negligence bc no duty or breach |
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What is secondary assumption of risk? |
The court must use a subjective test to determine whether the plaintiff actually knew and appreciated the risk created by the defendant's wrongful conduct, and then the plaintiff voluntarily assumed the risk Secondary assumption of risk a defense to a complete claim of negligence |
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What is implied assumption of risk? |
Implied assumption of risk requires that a risk is known, thedanger is appreciated, and the taking of the risk wasvoluntary - intentional and voluntary exposure to a knowndanger created by the fault of the defendant. |
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What if a person was unreasonable in taking a risk oravoiding a risk after voluntarily confronting it? |
that may be both contributory negligence and secondary implied assumption of risk. |
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What is "mitigating damages" ? |
A plaintiff who is hurt can seek medical attention to mitigate the extent of the harm after an accident, or wear a seatbelt before the harm occurs. Courts may reduce a plaintiff's damages if he or she fails to mitigate the fullest extent of damages either by going to the doctor afterward or taking lawful precautions beforehand. The seatbelt thing is a minority rule though |
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What is sovereign / state immunity? |
Governments generally have immunity to suit, unlessthey consent to the lawsuit. Most states and thefederal government accomplish this through statute. Basically, on a philosophical level, you can't sue "a body of people," and if you could, the state would be paralyzed from doing anything |
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How is sovereign / state immunity mitigated? |
Some states also use the distinctionbetween operational and planningdecisions to identify discretionaryfunctions. Onecommon approach to applying theimmunity asks whether the injury wascaused by a governmental (anit-terrorism) or aproprietary (fixing stairs) activity. The Federal Tort Claims Act discretionary function exemption applies when the acts alleged to be negligent were left up to the discretion or judgment that is grounded in considerations of public policy |
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What is interspousal immunity? |
Prevents suits between husband and wife. This was meant to preserve familial harmony and avoid using the legal system to distribute wealth between family members, and to protect insurance companies from false claims. Oh, also women were treated like second class citizens, so. The reasons that justified interspousalimmunity are not persuasive “in thetwenty-first century.” |
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What is parental immunity? |
Parental immunity in some states is limited to conduct that constitutes parental authority, the performance of parental supervision, and the provision of parental care and custody. Some states hold parents to a "reasonable parent standard," others say there is no immunity for a breach of duty owed outside of parental relationship, others say parental supervision is an immunity. |
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What is a statute of limitation? |
STARTS WHEN PLAINTIFF DISCOVERS THE HARM A statute of limitations relates to the time a plaintiff should reasonably have known that he or she had a legal claim and bars a claim unless it is filed within a certain period after that time. Statutes of limitations begins to run when theplaintiff reasonably has notice thatsomeone may have caused an injury to theplaintiff. Fraudulent concealment tolls a statute oflimitations. |
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What is a statute of repose? |
STARTS WHEN DEFENDANT DOES THE HARM A statute of repose relates to the time when a defendant committed the act or omission that is the basis for a plaintiff's claim and bars a claim unless it is filed within a certain period after that time even if the statute of limitations would not bar the claim These rules are meant to ensure that cases are tried on fresh memories and evidence that is relatively easy to obtain The limitations period of a statute of reposemay expire prior to the time an injuryoccurs. |
