1 Being a rescuer want to encourage rescues 3 Last Clear Chance Rule a 1 Lets

1 being a rescuer want to encourage rescues 3 last

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(1) Being a rescuer (want to encourage rescues) 3. Last Clear Chance Rule a. (1) Lets the plaintiff recover despite being negligent himself, if the defendant was the person with the “last clear chance” to prevent the accident from occurring f. Comparative Negligence i. The concept most jurisdictions have switched to from contributory negligence ii. Recovery depends on seriousness of plaintiff’s negligence to defendant’s negligence iii. Where the plaintiff and the defendant are both at fault for creating the plaintiff’s injury: 1. It is not an all or nothing proposition a. (1) Plaintiff’s negligence does not bar recovery b. (2) Last clear chance and assumption of risk does not apply 2. Each party bears the cost of his portion of negligence iv. Can apply where: 1. P and D are both found to be negligent 2. P and multiple Ds are all found negligent 3. Multiple Ds are found negligent and P is not negligent v. Types:
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1. Pure comparative negligence => everyone recovers for other person’s contribution a. (1) If P = 51% @ fault and D = 49% @ fault, P recovers 49% of damages 2. Modified/partial comparative negligence a. (1) If P = 51% @ fault and D = 49% @ fault, P does not recover because they are more at fault than all D’s combined b. (2) Plaintiff at fault may recover under pure system so long as their negligence is not greater than defendant’s (a) Can only recover as long as P is less than 50% liable c. (3) Plaintiff may recover under the pure system only so long as their negligence “is no greater” than defendants (a) Not more than 50% vi. Uniform Comparative Fault Act 1. Any contributory fault to P diminishes amount awarded as damages proportionally but does not bar recovery 2. Determine % at fault, when some parties insolvent can reallocate including to claimant 3. Right of contribution exists between 2 or more jointly & severally liable 4. Party paying more than equitable share of obligation may recover judgment for contribution 5. Preserves joint & several liability vii. Iowa Code Chapter 668 1. If N Plaintiff > ∑N Defendants , P may not recover 2. If N Plaintiff ≤ ∑N Defendants , P may recover for portion that D is at fault 3. If ND ≥ 50% then that defendant may be held joint & severally liable. g. Fritts v. McKinne i. Doctor performs a procedure. Because of a crash, the plaintiff’s artery or something was in the wrong location. Incision hit vein and caused patient to die 3 days later. Doctor claims that plaintiff’s negligence that cause him to need treatment so P was also negligent. ii. A physician may not avoid liability for negligent medical treatment simply because the patient’s own negligence caused the injury necessitating the medical treatment. iii. Plaintiff’s antecedent negligence may not be considered in determining rendition of medical care or other services 1. i.e., Physician may not avoid liability for negligent medical treatment because P’s own negligence caused the harm that necessitated the medical treatments ii. Negligent P v. Negligent D 1. Look at % at fault iii. Negligent P v. Negligent D Physician 1. No % at fault because P should be given non-negligent medical care 2. Avoidable Consequences c.
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