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trigger to apply comparative fault rather than contributory negligence.Wisconsin: You can only recover from someone if they are more negligent than you. This focuses on the negligence of the particular person someone is trying to recover from.E.g. P 5%, B 10%, C 40%, D 45%. Each suffer $100,000 in damages.33
P recovers: $95,000 ($10,000 from B; $40,000 from C; $45,000 from D) B recovers: $85,000 ($40,000 from C; $45,000 from D)C recovers: $45,000 ($45,000 from D)D recovers: $0North Dakota: Aggregates the negligence of everyone else involved. You can only recover from someone if everyone else’s negligence is more than yours.E.g. P 5%, B 10%, C 40%, D 45%. Each suffers $100,000 in damages.Unlike Wisconsin modified comparative fault, D can recover here because P+B+C=55% at fault which is greater than D’s 45%.Nebraska: P is barred from recovery if his negligence is equal to or greater than that of D’s. Maine: Juries may reduce P’s recovery by any amount it considers “equitable and just.”ASSUMPTION OF THE RISKPrimary Assumption of the Risk: D did not owe P a duty of care or did not breach the dutyowed – i.e. P must guard against his/her own injury, rather than D. based on inherent and known risks of an activity. -Applies when there is no express contract that waived defendant’s liability. -Arises for sports/gaming activities. (ie: watching a sports game, assume the risk of a ballflying into the stands). Would not give rise to liability because of the assumption of risk. -Inherency of risk will depend on the rules of the game, as they are understood in society.-If there is no contract, then look to see if the risk at issue is inherent and known to the activity based on the rules of the game, or expectations associated with the activity. Secondary Assumptionof the Risk:Treated as contributory negligence/merged into the comparative fault system.-Applies when P is told about a specific risk associated with an activity and voluntarily undertakes the activity anyway. (ie: accepting a ride from a driver one knows is intoxicated). -Based on the notion of implied in fact contract… although there is no express contract, there is an implicitly exculpation of the D if the P knows about the risk and voluntarily undertakes the activity anywayExpress Assumption of Risk/Contractual: P signs a release, contractually accepting the duty of care from D, therefore D cannot be “little ‘n’ negligent.” Total bar to P’s recovery.-Often associated with an exculpatory clause, a term of a contract that waives any legal claims against the D. Generally, contracts are enforceable if they are clear, unambiguous, and conspicuous (i.e. P knew what he/she was signing). May not be enforceable if...Activity is an essential service (i.e. P has no choice but to use it, e.g. hospitals). Or D has ahuge bargaining advantage. Can P take his/her business elsewhere? See Stelluti spin class vs. Tunkl“Compulsory assumption of the risk” cannot be valid.