ii.Claim 2: estate, brings survival action. She can recover for her son’s pain and suffering before the death. Life time earnings are not recoverable.Negligence DefensesA.Contributory Negligence (All or nothing rule) and Comparative Fault
1.Contributory Negligence – P is careless and his carelessness contributed to P’s injury, P’s claim is barred and D is not liable. P’s actions would be seen as a superseding causes that get D off the hook (minority rule)a)Last Clear Chance: D had the last opportunity to prevent the injury resulting from P & D’s carelessness, D cannot raise contributory negligence defense and will be held liable for all P’s harm.b)D needs to show that P’s negligence is the but-for cause of her injury to raise the defense.2.Comparative Fault – subtracts P’s fault from damages D must pay (majority rule) SeeHunt, inmate 40% at fault for the accident that injured her hand, damage award reduced from 18K to 10.8K. See Reliable Transfer Co. P’s tanker stranded because coastal guard failed to maintain the light. Court divide the damages according to the proportionate fault and says divide equally wouldn’t facilitate settlement.a)Pure Comparative Fault – P can recover as long as P’s fault is less than 100%b)Modified Comparative Fault – P can recover only if P’s fault is equal to or less than 50%c)Similar to CN, D needs to show that p’s negligence is the but-for cause of her injury to raise the defense.d)Baldwin: P chose to stop medication, went crazy, shot by the police and paralyzed. The choice of stopping medication is contributory negligence. Both proximate and but-for cause for his injury.e)Hypothetical: drunk drive got in an accident, went to the hospital and doctor committed malpractice which caused permanent brain dmg. Doctor only responsible for the injury he caused – the brain damage. P’s intoxication and drunk driving must be both the but-for and the proximate cause to find him contributory negligent. In assessing doctor’s fault, we do not care about how accident happens. P448 n.6B.Assumption of Risk (intentional torts also applicable): Victim is barred from recovery if she knowingly and voluntarily took on a risk that she might be injured by careless conduct on the part of D. However, D may still be liable if he engaged in reckless conduct.1.Express – a contractual assumption of risk by P – who agrees in advance to take on all responsibility for injuries caused by the careless conduct of D, complete defense for D. However, courts may not enforce on grounds of public policy.a)Validity of Contract: Does the business perform the service to the public. Is there a duty to the public? (common carriers) Is the nature of the service performed of great social importance of practical necessity? (recreational activities) Was the contract fairly entered into?