Contributory negligence. comparative negligence. Last clear chance Assumption of risk

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1 Chapter 17

2 A defense is the response of a party to a claim of another party, setting forth the reason(s) the claim should be denied. Overview of comparative negligence comparative negligence Contributory negligence Last clear chance Assumption of risk

3 Contributory negligence exists when the plaintiff s unreasonable conduct contributed to his or her own injury. What are some limits to this defense?

4 Contributory negligence only prevents liability when the defendant commits ordinary negligence, which is unreasonable conduct that is not reckless or gross. Reckless: when a person acts with knowledge that harm will probably result. Gross negligence: the failure to use even a small amount of care to avoid foreseeable harm.

5 Pro-plaintiff doctrine that counteracts the drastic consequences of contributory negligence.

6 The doctrine can be applied.

7 Plaintiff in helpless peril: a plaintiff is in helpless peril when his contributory negligence has placed him in a predicament that he cannot get himself out of. Even if the plaintiff now used reasonable care, he could not get out of the danger.

8 Plaintiff in inattentive peril: occurs when plaintiff s contributory negligence has placed her in a predicament that she could get herself out of by the use of reasonable care, but the plaintiff negligently unaware of her peril up to the time of the accident.

9 Most states have adopted comparative negligence. The court first determines the total damages suffered by the plaintiff and then it apportions these damages between the negligent plaintiff and defendant. There are two main types. 1) Pure comparative negligence 2) restricted comparative negligence

10 Pure Comparative Negligence: when the plaintiff sues the defendant for negligence and the defendant claims that the plaintiff s negligence contributed to the injury, a court will decide the percentage by which each side was negligent. Plaintiffs recovery is limited to that percentage of the award that award due to the defendant s negligence. Plaintiff always recovers something if the injury was caused by the negligence of both parties, even if the plaintiff s fault was greater than the defendant s.

11 Ex: $100,000 in damages defendant liable for only 5% while plaintiff is liable for 95%. Plaintiff recovers $5,000 from the defendant 5% of $100,000.

12 Restricted Comparative Negligence: some states will compare the negligence of the defendant and plaintiff in causing the plaintiff s injury and allow the plaintiff to recover only if the plaintiff s negligence was slight in comparison with the gross negligence of the defendant. Other states will compare the negligence of the defendant and that of the plaintiff in causing the plaintiff s injury and allow the plaintiff to recover only if the plaintiff s negligence is less than that of the defendant.

13 The knowing and voluntary acceptance of the risk of being injured by someone s negligence. The plaintiff s conduct may amount to both contributory negligence and assumption of the risk. Whats the difference? Contributory negligence is determined by the objective standard.whereas assumption of risk is determined by a subjective standard.

14 2 categories of assumption of risk: The plaintiff s express assumption of risk in which the plaintiff knowingly and voluntarily accepts a risk by express agreement; the express assumption must not violate public policy. The plaintiff s implied assumption of risk in which the plaintiff knowingly and voluntarily accepts a risk by reason of his or her knowledge and conduct; the implied assumption must not violate public policy.

15 Background: Wagenblast is a public school student. To participate in high school sports, all students and their parents must sign a standardized form releasing the school district from liability. They sued the school district, seeking an injunction to prevent the use of the release from as a condition of participating in school sports. In this case, the court found that the release violated public policy

16 The court looked to the late Justice Tobriner s 6 factors and determined that the attempted release exhibited all 6. Finally, the court held that the extent that the release portions of these forms represent a consent to relieve the school districts of their duty of care, they are invalid whether they are termed release or express assumptions of risk.

17 The plaintiff can voluntarily assume the risk in ways other than by express agreement. An implied assumption of risk arise because of the knowledge and conduct of the parties rather than because of an express agreement. In effect, once you understand the risks and voluntarily proceed to confront them, you have decided to take your chances on injury or damage caused by the negligence of the defendant.

18 Primary assumption of risk: the plaintiff knowingly and voluntarily accepts a particular risk that the defendant did not have a duty to protect the plaintiff against. Secondary assumption of risk: the plaintiff knowingly and voluntarily accepts a particular risk that the defendant had a duty to protect the plaintiff against.

19 Background: Knight had to have her finger amputated after Jewett ran into her during a game of touch football. She sued him for negligence, assault, and battery.

20 In the present case, defendant was a participant in the touch football game in which plaintiff was engaged at the time of her injury, and thus the question before us involves the circumstances under which a participant in such a sport may be held liable for an injury sustained by another participant.

21 The majority of the cases have concluded that it is improper to hold a sports participant liable to a co participant for ordinary careless conduct committed during the sport. Therefore, we conclude that a participant in an active sport breaches a legal duty of care to other participants ONLY if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.

22 THE END!!!

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