Contributory negligence very rare affirmative defense

(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.

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