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26 Cards in this Set

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DEFENSES TO NEGLIGENCE OVERVIEW:
4 Kinds
1. Contributory Negligence: (Old Rule - only 4 juris. still use this)

2. Comparative Fault

3. Express Assumption of the Risk

4. Implied Assumption of the Risk
Contributory Negligence
P's carelessness contributed to his injury

Extent doesn't matter...barred from recovery (mad harsh)
Contributory Negligence Exceptions
1. CN isn't a defense to intentional torts or reckless conduct

2. Doctrine of last clear chance: If D has the last opportunity to prevent accident resulting from both D and P's neg., D can't invoke defense of CN. 3 situations where it applies:
1. P is helpless; D encounters the danger
2. P helpless; D distracted
3. Inattentive P, D aware
Two Types of Comparative Responsibility
Modified

Pure
Modified Comparative Responsibility (majority)
A P suing a D will be barred if her apportioned fault is >50% (or in some places >= 50%)
VARIATIONS ON Modified CR
1. In some states, if P's fault is above the threshold, then P recieves nothing (same as contributory negligence)
If fault is below threshold, P gets 100%.

2. In some states, the threshold is less than or equal to 50%.
Pure Comparative Responsibility (minority)
a P can't recover if she is 99% of her injuries and D is 1% responsible.
Fault Apportionment: Pure CR
P: 49%
D: 51%
51,000
Fault Apportionment: Pure CR
P: 50%
D: 50%
50,000
Fault Apportionment: Pure CR
P: 51%
D: 49%
49,000
Fault Apportionment: Modified CR (bar at > 50%)
P: 49%
D: 51%
51,000
Fault Apportionment: Modified CR (bar at > 50%)
P: 50%
D: 50%
0
Fault Apportionment: Modified CR (bar at > 50%)
P: 51%
D: 49%
0
Fault Apportionment: Modified CR (bar at >= 50%)
P: 49%
D: 51%
51,000
Fault Apportionment: Modified CR (bar at >= 50%)
P: 50%
D: 50%
50,000
Fault Apportionment: Modified CR (bar at >= 50%)
P: 51%
D: 49%
0
HYPO: P going 37mph in 25mph zone. D going 35mph in 35 zone.
22 units of total fault. 12 to P and 10 to D. P had 12/22 of fault ($54,500), and D had 10/22 ($45,500).
Spier v. Barker
P not careless, but P wasn't wearing seat belt, and exacerbated injuries. (Old case - contributory neg. case)

Court treated it as a failure to mitigate damages, but most juris. don't follow this case.

TAKE AWAY: P's carelessness need only contribute to injuries, not the crash, for CR to be applied.
US v. Reliable Transfer
Admiralty rule: Damages split 50/50 regardless of fault

ONLY TO BE USED WHEN BOTH PARTIES AT FAULT, and it is impossible to apportion fault.
Hunt v. Ohio
hand in snowblower. Court says she is 40% stupid (at fault).

Take away:
If there are more than 2 Ds, most states will combine the % responsibility of the Ds so that the P can recover, even though it goes against the theory behind modified CR.
Express Assumption of Risk
Complete Defense in ALL states

Doesn't necessarily invovle carelessness on the part of the P.
Who's burden is it to prove that P assumed risk?
D
Jones v. Dressel

PUBLIC INTEREST FACTORS to consider in express assumption of risk cases
1. disparity of bargaining power - particularly strong when D is providing a necessary service.

2. P's awareness of exculpatory clause

3. Did P have option to pay more to obtain some coverage?
Danbury v. SKI Ltd.

HOW TO APPROACH EXPRESS ASSUMPTION OF RISK CASES
1. Was the agreement properly entered?

2. Was the situation that occurred covered by an exculpatory clause? (construed against the drafter if there is doubt)

3. Is the clause void as against public policy? (Is the service important? Was there unbalanced bargaining power?)

NOTE: MOst states don't follow this. Exculpatory clauses usually work.
IMPLIED ASSUMPTION OF THE RISK
person must have KNOWINGLY and VOLUNTARILY accepted the dangers of the activity.
Monk v. Virgin Islands: TWO TYPES OF IMPLIED ASSUMPTION
1. P behaves unreasonably in light of a known risk and is thereby presumed to have impliedly assumed the risk of injury
(In CN state, a complete bar to P's recovery)
(In CR state, this would result in higher fault apportionment to P)

2. P behaves reasonably, but her conduct suggests that she's consented to a risk of injury
(In CN state, a complete bar)
(In a CR state, no effect of P's recovery because P acted reasonably)