1.does the statute create a federal right in favor of the P? 2.Is there any legislative intent, implicit or explicit, to create such a remedy or to deny one? 3.Is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the P?
4.Is the cause of action one traditionally relegated to state law, in an area basically the concern of the states, so that it would be inappropriate to infer a cause of action based solely on federallaw? 1) Enter Plaintiff fault as at least one of the two necessary but-for causes 2) Burden: D assert prove that P’s careless was part of the cause of the accident Assumption of Risk 1) P did something that makes them less deserving of recovering/ relieved me of D’s duty, not that they were careless 2) Affirmative reasons why the D should not be liable Statute of limitations 1) Less focusing on P’s conduct 2) Burden: on D, focus on time has passed… Most affirmative defenses include P fault : 2. Pro Rata (divided damages) : divide by amount of parties involved, despite of actual amount of contribution of actual parties 3. Pur e Comparative Fault : proportionate fault o Should discount P’s contribution to the injury o 4. 0% (ie: intentional tort) – no relation to negligence law COMPARATIVE FAULT IS NOT A DEFENSE TO INTENTIONAL TORTS!! 45
Last Clear Chance exception: Where the would otherwise be held to have been contributory negligent, the will still be liable if she had the last chance to avoid the harm, yet failed to A SSUMPTION OF R ISK (express/implied) Individual must know and appreciate the risk (subjective) She must freely and voluntarily assume Contributory Negligence Complete bar to any recovery by [ mostly abolished ] *NOT a valid defense to intentional torts/recklessness* Contributory Negligence : conduct on the part of the plaintiff which falls below the standard of conduct to which he should conform for his own protection, and which is a legally contributing cause . . . in bringing about the plaintiff's harm. (Restatement § 463.]
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- Fall '08
- Tort Law, Co., duty to rescue