Negligence Defenses

Front 1

Defenses to Negligence

Back 1

Contributory Negligence, Comparative Negligence, Assumption of the Risk

Front 2

Contributory Negligence

Back 2

If the P is found to be negligent at all, bars recovery. All or nothing.

Still the rule in NC

Front 3

Exceptions to Contributory Negligence

Back 3

P can STILL FULLY recover if:

Bexiga Rule, Special Relationship, Rescue (Good Samaritan), Medical Care, Last Clear Chance

Front 4

Bexiga Rule

Back 4

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).

Front 5

Special Relationship

Back 5

- 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.

Front 6

Rescue Doctrine (Good Samaritan)

Back 6

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.

Front 7

Medical Care Exception

Back 7

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

Front 8

Last clear chance doctrine

Back 8

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.

Front 9

Comparative Negligence

Back 9

The conduct of P that falls below the ordinary standard of care is only a partial bar to recovery

(pure, modified)

Front 10

Pure Comparative Negligence

Back 10

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

Front 11

Modfied comparative neglience

Back 11

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.

Front 12

Assumption of the risk

Back 12

P voluntarily consenting to a known risk

Express or implied (primary, secondary)

Front 13

Express assumption of the risk

Back 13

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.

Front 14

Implied assumption of the risk

Back 14

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)