does the statute create a federal right in favor of the P 2 Is there any

Does the statute create a federal right in favor of

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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?
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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
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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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  • Tort Law, Co., duty to rescue

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