**§217C applied in Exxon Valdez because captain was in managerial capacity (C). Provocation §921: Compensatory damages are not diminished by the fact that the injured person provoked the tortfeasors but the provocation is considered a determining factor on the amount of punitive. DEFENSES Two types of defenses: Claims the P was negligent (Contributory and comparative negligence) Claims the P assumed the risk of the harm that occurred Claims that P expressly assumed the risk of the harm that occurred Claims that the D had no duty to protect the P from the harm suffered because the risk of it was inherent in an activity the P chose to undertake The P chose to encounter a risk negligently created by the D Defenses come after the prima facie case CONTRIBUTORY AND COMPARATIVE NEGLIGENCE CONTRIBUTORY NELGIGENCE D’s own negligence contributed to their injuries generally cannot recover anything from D’s whose negligence also contributed ABANDONED Harris v. Meadows: Õ failed to act reasonably under the circumstances to avoid the collision. The traditional rule that barred Ps from recovery if their own negligence contributed at all to the accident. Last Clear Chance: Davies v. Mann: Õ could recover despite committing contributory negligence if D had a sufficiently good opportunity to avoid the accident at a point when Õ did not. §479:Last Clear Chance: Helpless P: Õ who has negligently subjected himself to a risk of harm from D’s subsequent negligence may recover if: Õ is unable to avoid harm D is negligent in failing to use with reasonable care the existing opp. to avoid harm. i)know of Õ’s situation and realizes or has reason to realize the peril involved. (Õ is not a proximate cause, D is a superseding cause which relieve Õ of responsibility. ) Or ii) Would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance whoch it is then his duty to the P to exercise. COMPARATIVE NEGLIGENCE
reduces damages paid to a negligent defendant but do not prevent recovery altogether. Pure Comparative: Õ damages are reduced in proportion to the % negligence attributed to him. Ex) A P responsible for 90% of the negligence that caused his injuries may recover 10% of his damages. Modified: Õ can recover as long as Õ ’s negligence does not 1) exceed 50% or 2) is less than 49%. **Majority ruleà 50% comparative negligence** McIntyre v. Balentine (1997): D’s tractor collided with the P’s pickup truck. Demonstrates the 51% rule for modified comparative negligent. Significant for cases where juries find ∆ and P equally negligent. Here, the ∆ must be at least 51% at fault . If Õ was part of illegal activity à Courts won’t allow recovery when: ( Brown v. Manning à girls that take car) Õ’s conduct constituted a serious violation of the law Injuries for which Õ seeks recovery are the direct result of that violation.
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