D depending on jurisdiction courts compare i fault

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can’t recover. d) Depending on jurisdiction, courts compare i) Fault (negligence) ii) Responsibility iii) Culpable conduct iv) Causation 8 8
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e) Adoption of comparative negligence requires re-evaluation of i) joint and several liability - combined or individual comparison? ii) last clear chance iii) res ipsa loquitur – some jurisdictions have eliminated “P not contributorily negligent” element. iv) assumption of risk D. Assumption of the Risk (A/R) 1. Subjective standard 2. Think consent (reasonable or not), not conduct. 3. At common law, both express and implied are total bars. 4. Express – by contract (total bar) 5. Implied – from conduct (subjective) a) Knowledge of the risk b) Appreciation of danger c) Voluntary decision to encounter the risk d) Jury decision e) At common law – total bar 6. Secondary Implied Assumption of Risk a) Similar to true assumption of risk with three elements b) RIAR – total bar to comparative risk i) Know what you are doing ii) Can consent to actions you take c) Unreasonable IAR – contributory negligence 7. Primary Assumption of Risk IV. Statutes of Limitation & Repose A. Statute of Limitations 1. Purpose a) Fairness – loss of evidence b) Allows D to move on, close books 2. Accrual of Cause of Action – when all necessary elements are complete 3. Measured from date of accrual 4. Brief period (1 – 3 years) 5. Can be “paused” on grounds of fraud 6. Discovery Rule – COA doesn’t accrue until P discovers injury using and objective standard. 9 9
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B. Statute of Repose 1. Measured from date of some specified event (completion of building). 2. Much longer period (10 – 20 years). V. Immunities A. Family Immunity 1. Better than a defense 2. Includes members of same household a) Husband – wife b) Parent – child 3. Purpose a) Family harmony b) Parental discipline c) Insurance/collusion 4. No longer in effect in most jurisdictions B. Charitable Immunity 1. Purpose a) To encourage “giving” b) Protect charities 2. No longer available (insurance coverage) C. Governmental Immunity 1. Federal/State 2. Local a) Governmental or discretionary – immune b) Proprietary not immune i) Typically done by a private corporation – not unique to government ii) Non-discretionary (administrative, directed) 10 10
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VI. Strict Liability A. Animals 1. Wild – strictly liable for injuries characteristic of its class.
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