Affirmative Defenses Flashcards
Comparative Fault Majority Rule
For comparative fault, the bar comes at over 50% negligence on behalf of the π. So 50% negligence on the π still allows a recovery.
Comparative Negligence Remedy
jury decides a percentage of negligence for each ∆ and that is all each specific ∆ must pay unless another ∆ cannot pay.
Assumption of the Risk: when can it be used?
For negligence and strict liability, AoR can be used as an affirmative defense.
Express assumption of the risk
Exculpatory agreements that are entered into knowingly and voluntarily are enforceable and a COMPLETE BAR to recovery.
Situations in which express AoR is not allowed
Exceptions to allowing (1) contracts w/ unfair bargaining power; (2) essential public services; (3) not allowed for INTENTIONAL TORTS OR GROSS NEGLIGENCE; (4) caregivers (hospitals, childcare centers, etc.); (5) spouses signing for each other or parents signing for kids; products liability; employers. REMEMBER: Waivers are Ks. So whatever arguments against this K that are available in K law can be used.
Implied Assumption of the Risk Consequence
When the risk arises from the circumstances, this completely bars recovery by a P who KNOWINGLY and VOLUNTARILY encounters the risk. Recovery is PRECLUDED for injuries caused by the INHERENT RISK of the circumstances!!!!
Implied AoR Rule Exception
If any negligence from D altered or increased the inherent risk and that negligence caused P’s injuries, P can still reover.
What kind of question is whether a risk is inherent in an activity?
Whether a risk is inherent in an activity is a question of LAW, bc it involves a question of duty.
Implied AoR elements
P (1) KNEW ab the unsafe condition; (2) APPRECIATED the danger in the condition, and (3) deliberately and voluntarily entered that unsafe condition. A reasonable person standard can be applied in determining whether a P knew and appreciated a risky situation for purposes of identifying implied AoR.
Children contributory negligence majority rule
Children under a certain age cannot be negligent, so they also cannot be contributorily negligent. For older children, same standard for judging whether child has breached the SoC applies to both primary and contributory negligence. Standard of what child would have done w/ similar age, intelligence, and experience. (courts are more generous to the child when they are at risk of losing recovery for their injury than when they were the cause of a person’s harm)
Common defenses to contributory negligence
(1) P argues that P’s negligence, if any, was not an actual cause of any harm; (2) P can say D’s negligence was at a higher level than ordinary negligence.
Forms of comparative fault jdx
(1) pure: P’s recovery is reduced by P’s share of fault (can be 99% at fault and recover 1% of her losses); (2) Modified majority rule: P recovers if 50% or less at fault; other modified rule: P only recovers if less than 50% at fault. REMEMBER: D must prove that P’s negligence was the LEGAL CAUSE of P’s damages.
Both ways rule
The negligence of P’s employee can be imputed to establish fault on the part of P. Can be its own source of negligence or can be combined w/ P’s own negligence.
Factors for assigning shares of responsibility
(1) the NATURE of the person’s risk-creating conduct, including any awareness or INDIFFERENCE w/ respect to the risks created and any INTENT w/ respect to the harm created by the conduct; and (2) the STRENGTH OF THE CAUSAL RELATIONSHIP between the person’s risk creating conduct and the harm.
Comparative fault exception
When D’s tort is intentional or more than ordinary negligence, comparative negligence is not used to reduce P’s recovery.
