o Answer generally not successful against rescuers but courts decide on a case

O answer generally not successful against rescuers

This preview shows page 11 - 15 out of 22 pages.

o Answer: generally not successful against rescuers, but courts decide on a case by case basis o Firefighters Rules: professional view that individual assumes risk with occupation B. Defenses to Negligence 1. Comparative Fault o In Texas this is called comparative negligence o Defendant says regardless of carelessness, there is an independent reason why plaintiff shouldn’t recover from him o Focus on Plaintiffs negligence (plaintiffs failure to take reasonable precautions for his/her own safety o Plaintiffs carelessness directly impacts amount of recovery o Affects extent to which plaintiff can recover from Defendant 2. Texas Statute “Comparative Negligence” o law on books actually says jury is responsible to assign blame to defendant and plaintiff Compare: o Has to be assigned as a percentage of harm attributable to Plaintiffs negligence o Percentage of harm attributable to defendants negligence
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i. Plaintiff can recover from Defendant percentage of damages caused by defendant, unless Plaintiffs fault exceeds 50% Example: Plaintiff’s Damages = 1,000,000 Plaintiffs fault = 49% Defendants Fault = 51% Plaintiff recovers = 510,000 Example Plaintiff Damages = 1,000,000 Plaintiffs Fault = 51% Defendants Fault = 49% Plaintiffs Recovers: 0 With 50/50 split plaintiff recovers 50% of damages Ii. If multiple Defendants , each Defendant is responsible only for own share of fault, unless defendant is more than 50% at fault. Joint and Several” Liability Example: Plaintiffs Damages = 100,000 Plaintiffs Fault = 10% Defendants 1 Fault = 30%
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Defendant 2 fault = 60% Max Payment Plaintiff could get is 90,000 Assuming D2 is broke, what is D1’s maximum liability? 30,000 Assuming D1 is broke, what is D2’s maximum liability? 90,000 because 60% is greater than 50% Can D2 go after D1 if D1 goes solvent? Yes “ The right of contribution: a defendant who has paid more than his or her fair share, can collect the overpayment from the other defendant Joint and sever Liability: Defendant two can be paying for his or her own share or everything 2. Statute of Limitations o Time period within which plaintiff must file lawsuit o Generally 2 year period of time in negligence case o (clock starts to run when the cause of action accrues) (at the time of the injury, means when the plaintiff knew or should have known of the injury) o Cause of action: basis of lawsuit 3. Workers’ Compensation a. If injured on the Job, employee: gets workers comp. benefits (assuming employee has insurance) ii. BUT cannot sue boss or co-workers for ordinary negligence
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(generally you cannot double dip unless boss committed an intentional type of wrongdoing which caused your injury b. Exception: Intentional tort or gross negligence (failure to use even the smallest amount of care) III. Intentional Torts Plaintiff must prove Defendants State of Mind (deliberate wrongdoing): 1. Defendant wanted to bring about the consequences of his/her act, or 2. Defendant knew will substantial certainty that the consequences would follow from the act (defendant understood consequence) A. Tortious Interference with Business Relationships (“TIBR”) wrongful
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  • Spring '08
  • Baker
  • Tort Law, Product liability, Carelessness

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