Contributory negligence Very rare affirmative defense plead it or lose it \u0394 has

Contributory negligence very rare affirmative defense

This preview shows page 1 - 3 out of 3 pages.

(1) contributory negligence, (2) comparative fault, (3) assumption of risk (Express or Implied), or (4) illegal conduct. Contributory negligence: Very rare, - affirmative defense, plead it or lose it Δ has no liability if π’s own negligence was an actual & proximate cause of injury unless (1) Δ was recklessness (2) underlying tort intentional; (3) last clear chance applies, or (4) rescue doctrine applies . Last clear chance doctrine (obsolescent – comparative fault replaces): Δ has “last clear chance” to avoid causing harm by reasonable care. Helpless peril: π negligence put π in position of peril & π had no reasonable means of escape, they should have known; & Δ knew or should have known of peril. Not-so-helpless peril: π negligence put π in position of peril; π has reasonable means of escape π should have known about; & (2) Δ actually knew of peril. Rescue doctrine: π negligently injures self-trying to rescue Δ from predicament resulting from Δ’s negligence, π avoids contributory negligence unless π recklessly (or wantonly) injured self.
Image of page 1
Torts Attack Outline – Andrew Gelbman Prof. E. Tenenbaum (Fall 2016) Comparative fault : π negligence may reduce, not necessarily bar, recovery. Pure comparative fault: π recovery reduced commensurate w/ π fault, regardless of % fault allocated to π. Modified comparative fault: Same as pure comparative fault, except π barred from recovery if % of fault allocated to π exceeds or (in some jurisdictions) equals combined fault of all Δs. Assumption of risk: negligent or reckless π not liable if π aware of an unreasonable risk posed by negligent/reckless conduct but voluntarily proceeds despite risk, whether negligently or reasonably. Express assumption of risk : π assumes risk by contract agreement. Note: Some risks not assumable on public policy grounds ( e.g. , medical malpractice, esp. in emergencies). Implied assumption of risk: π knowingly & voluntarily undertakes inherently risky acts (primary assumption of risk) ( e.g. , playing sports, dangerous job) or aware of nature & risk of dangerous situation created by Δ negligence, but proceeds in face of risk. Illegal conduct: π gen. may not recover if harm direct result of π participation in criminal activity. Damages: must prove actual damages, then π may recover damages from liable Δ for “PEER” (1) Physical (2) Economic (3) Emotional (4) Reputational injuries Loss-of-Chance: used in Med. Malpractice, 3 theories – (1) but-for negligence, π not have died (2) liable for 100% of loss if breach a substantial factor in harm. (3) breach a substantial factor in heightened risk to π, even if π cannot prove by ultimate injury caused by Δ. (e.g. Δ negligent, π’s chances lowered from 30% to 20%, & π dies; even if π’s estate cannot prove that doctor’s negligence caused death of π, loss of chance of survival compensable) Apportionment of responsibility among multiple parties: Pro Rata Share: (common law. If there are 2 Δ both liable for 50%, 3 Δ then 33%, etc.). 3P Complaint: If π does not sue joint tortfeasors, then Δ can implead 3P. Multiple parties may be at fault for π harm, including π, liability apportioned among those at fault. Acting independently : If responsible parties are not acting in concert, then (1) each Δ responsible for portion of divisible injury they caused (causal apportionment); or (2) if injury indivisible, then
Image of page 2
Image of page 3

You've reached the end of your free preview.

Want to read all 3 pages?

  • Spring '17
  • Prof. Kelder

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture