Flashcards in Affirmative Defenses to Negligence Deck (17)
Contributory Negligence: Define
Negligence on the part of the P that contributes to her injuries.
Implied Assumption of the Risk: When can a plaintiff be denied recovery under this defense? Elements?
When she assumed the risk of any damage caused by defendant's act.
She must have known of the risk and voluntarily proceeded in the face of the risk.
If a plaintiff has failed to exercise reasonable care for his own safety or has violated a self-protecting statute (j-walking statute), the defendant can . . .
Offer evidence of that fact to the jury
Once D introduces evidence that laintiff has failed to exercise reasonable care for his own safety or has violated a self-protecting statute (j-walking statute), the jury will be asked to do what?
Assign blame between the parties (comparative negligence)
Under comparative negligence regime, a plaintiff's recovery is reduced based on . . .
His assigned percentage of fault.
Under PURE comparative fault system, the plaintiff recovers . . .
Damages reduced by his portion
Under a modified comparative fault system, plaintiff fault under 50% does what? Over 50% does what?
Under 50% reduces recovery
Over 50% becomes absolute bar to recovery.
The standard of care for comparative negligence is the same as . . .
What defense have courts all but abandoned: Contributory or comparative negligence? Why?
Contributory negligence completely barred a P's right to recovery at CL
Knowledge of a risk may be implied where the risk is one . .
That an average person would clearly appreciate.
Assumption of risk is/isn't a defense to intentional torts.
Assumption of risk is/isn't a defense to wanton and willful misconduct.
On the MBE, assume that a pure/modified comparative negligence statute applies unless the question states otherwise.
States that have a pure comparative negligence regime allow what sort of recovery when plaintiff was negligent?
Proportionate, regardless of fault percentage
States that have a partial comparative negligence regime allow what sort of recovery when plaintiff was negligent?
Proportionate, up until plaintiff is greater that 50% negligent
In most states, a plaintiff's negligence will/won't be taken into account when the defendant's conduct was wanton and willful OR reckless.