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Torts > Contributory and AR > Flashcards

Contributory and AR Flashcards

1
Q

Butterfield holding

A

P own fault for not seeing obstruction, so no recovery (contributory negligence)

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2
Q

Pros of Contributory Negligence 1

A

Incentivize care

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3
Q

Pros of Contributory Negligence 2

A

Less interference in private lives

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4
Q

Pros of Contributory Negligence 3

A

If liability follows fault, P also unclean hands

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5
Q

Pros of Contributory Negligence 4

A

Weakens D causation

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6
Q

Pros of Contributory Negligence 5

A

Hard to measure amount of fault, administrability

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7
Q

Contributory negligence RST, is conduct which… 1

A

Falls below the standard to which he should conform for his own protection

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8
Q

Contributory negligence RST, is conduct which… 2

A

And legally contributing cause co-operating with D negligence

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9
Q

Li holding

A

Recovery in proportion of fault so pure comparative negligence

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10
Q

Li facts

A

P crosses three lanes of traffic D runs yellow light at high speed and hits P

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11
Q

Li reasoning

A

Contributory negligence would be windfall for D

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12
Q

Comparative fault rule type 1

A

Pure/Li

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13
Q

Comparative fault rule type 2

A

If P fault > D no recovery, otherwise recovery in proportion to fault

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14
Q

Comparative fault rule type 3

A

If P fault > or = D no recovery, otherwise recovery in proportion to fault

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15
Q

RST Comparative Negligence … Plaintiff negligence that is …

A

A legal cause of an indivisible injury to P reduces recovery in proportion to share of responsibility

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16
Q

RST An injury is indivisible if ..

A

P and each relevant person caused the entire injury

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17
Q

A and B collide due to A negligence, b rushed to hospital. Because of C negligence B gets infection Indivisible?

A

No, Bruises and scrapes from accident are but not infection

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18
Q

Coleman reasoning

A

Stick with contributory because legislature failure to pass so many times indicates legislative intent

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19
Q

Hypo: T and X both negligent. T sues X. T damages 10k. T 90% fault and X 10
What are damages under each P negligence category

A

Contributory: 0
Pure : 1000
50% rule = 0

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20
Q

Hypo: T and X both negligent. T sues X. T damages 10k. X countersues and X damages 1k. T 90% fault and X 10
What are damages under each P negligence category

A

Contributory= X 1000
Pure= T 1000 X 900
50%= X 900

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21
Q

Assumption of risk if P —-

A

Voluntarily consented (implied or express) to take chances harm would occur

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22
Q

At common law, AR —

A

Bars P recovery (like contributory negligence)

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23
Q

AR is … to prima facie case but.l

A

Related to.. analysis different

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24
Q

Earliest cases of AR were … but now…

A

Workplace, abolished as a defense

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25
Q

AR is not really about.l

A

Reasonable person

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26
Q

AR how different from contributory negligence

A

AR subjective, P actions not necessary negligent, D creates risk P voluntarily accepts…. For contributory P and D both breached duty of care, P didn’t necessarily consent to risk D created

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27
Q

Murphy holding

A

One who takes part in sport accepts dangers inherent in it so far as they are obvious and necessary

28
Q

Murphy reasoning 1

A

Everything P described was foreseen risk

29
Q

Murphy reasoning 2

A

Even if D negligent, P still AR (subjective, point is autonomy not that they should’ve known)

30
Q

Murphy reasoning 3

A

Could’ve foreseen fall (don’t necessarily need to foresee exact way injured)

31
Q

Murphy reasoning 4

A

Volenti non fit injuria- to a willing person, injury is not done

32
Q

Murphy reasoning 5

A

If choose to participate in risky activity, you assumed the risk and no breaches duty by D

33
Q

When would getting on the Flopper be contributory negligence

A

Pregnant, saw someone else get injured in same way, don’t meet height etc (point to specific facts about P, why it was negligent for specifically them)

34
Q

When is it not AR when injured on Floppr

A

So many injuries better to just shut down ride (conflicts with autonomy but some limit on risks we can assume) OR hidden danger

35
Q

RST Knowledge and Appreciation of Risks..

A

Except when expressly agrees, P does not AR unless he knows the risk and appreciates it’s character

36
Q

The RST knowledge of risk is a — standard…

A

Subjective, what particular P sees, understands and appreciates

37
Q

RST The plaintiff’s own testimony as to what he knew understood or appreciated is..

A

Not necessarily conclusive. Are some risks as to which no adult will be believed if he says he did not know or understand them

38
Q

Maddox holding

A

When person is a professional in professional context, can assume they had so,e awareness and knowledge about dangers common within their professional world

39
Q

Maddox decision is in tension with..

A

Subjective inquiry and belief

40
Q

Maddox negligent action

A

Drainage system negligently designed

41
Q

Landings Association holding

A

No recovery, P either knowingly assumed risk of walking in areas with wild alligators (AR) OR failed to exercise ordinary care in doing so (contributory)

42
Q

Landings reasoning

A

Knew there were wild alligators around

43
Q

Landings Chatterjee critique

A

Should’ve gotten some recovery since GA comparative negligence state and secondary AR

44
Q

Primary AR

A

Taking into account P conduct, D did nothing wrong

45
Q

Examples of primary AR

A

Murphy, organized sports

46
Q

If primary AR, in comparative Jdx ..

A

P gets no recovery

47
Q

Secondary AR

A

In face of D negligence, P knowingly encountered the risk so proceeding knowing that is unreasonable and thus negligent

48
Q

In secondary AR Jdx, P

A

Can still get some recovery

49
Q

Hypo P recreational skydiver. Tired and not feeling sharp but goes anyways. Injured during bumpy but ordinary landing

A

Primary AR

50
Q

P recreational skydiver, notices company not packed chute properly but jumps anyways and is injured

A

Secondary AR

51
Q

For contributory negligence, looking for conduct that…

A

Is unreasonable and therefore wrongful

52
Q

RST Where P voluntarily consents to take an unreasonable chance,

A

May obviously be both AR and CN

53
Q

AR but not CN

A

Primary AR, no negligence by either party

54
Q

CN but not AR

A

Negligence by both parties, no AR argument (Li)

55
Q

AR and CN

A

Secondary AR, negligence by both + AR argument

56
Q

Dalury holding

A

K assuming risk void for public policy

57
Q

Dalury reasoning 1

A

When business offers services to the general public, policy in maintaining level of care far exceeding negligence

58
Q

Dalury reasoning 2

A

Don’t want business using K allowing negligence to circumvent liability

59
Q

Dalury factor 1

A

D business type suitable for public regulation

60
Q

Dalury factor 2

A

D service of importance to public, maybe even necessity

61
Q

Dalury factor 3

A

D performs service for anyone who seeks it

62
Q

Dalury factor 4

A

D has decisive advantage in bargaining power

63
Q

Dalury factor 5

A

Transaction puts people or things in control of seller at risk of carelessness by seller or it’s agents

64
Q

Implied AR 1

A

P who fully understands risk of harm caused by D’s conduct who voluntarily chooses to enter or remain in area of risk

65
Q

Implied AR 2

A

Under circumstances that manifest willingness to accept it, cannot recover

66
Q

Express AR 1

A

P who by K or otherwise expressly agrees to accept risk of harm from D negligent or reckless conduct

67
Q

Express AR 2

A

Cannot recover unless agreement invalid as contrary to public policy

Torts (13 decks)

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