Term
What is contributory negligence?
Torts/Negligence/Defenses |
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Definition
| defense that the plaintiff contributed to his own injuries and should therefore be barred form recovery |
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Term
what is comparative negligence?
Torts/Negligence/Defenses |
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Definition
| defense that the plaintiff's recovery should be reduced in direct proportion to the plaintiff's percentage of contribution to her own injuries |
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Term
Under the assumption of risk doctrine, how much can the plaintiff recover?
Torts/Negligence/Defenses |
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Definition
| The plaintiff is either barred from recovery or her recovery is reduced. |
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Term
Under the contributory negligence doctrine may P recover if his negligence does not meet standards of but-for or substantial factor tests?
Torts/Negligence/Defenses |
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Definition
| No, that is an exception to the contributory negligence doctrine. |
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Term
If the harm is likely to occur as a result of P's negligence, may he recover?
Torts/Negligence/Defenses |
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Definition
| If it occurs in an unforeseen manner. |
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Term
What is the Last Chance Clear Doctrine?
Torts/Negligence/Defenses |
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Definition
| a doctrine that allows the plaintiff to recover in a contributory-negligence system despite the plaintiff's negligence |
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Term
Can P be found contributory negligent if D committed an intentional tort?
Torts/Negligence/Defenses |
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Definition
| No, contributory negligence is not a defense to intentional torts. |
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Term
If D was willful & wanton or reckless, can he use contributory negligence as a defense against P?
Torts/Negligence/Defenses |
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Definition
| No, if D is willful & wanton or reckless he cannot use contributory negligence as a defense against P. |
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Term
| Can D use contributory negligence as a defense against P if D is negligent per se? |
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Definition
| No, D cannot use contributory negligence as a defense against P if D is negligent per se. |
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Term
When is the Last Chance Clear Doctrine inapplicable?
Torts/Negligence/Defenses |
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Definition
| If neither P nor D discovers danger due to inattentiveness or if D's original act of negligence made it impossible for him to avoid an accident |
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Term
What are the types of comparative negligence?
Torts/Negligence/Defenses |
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Definition
| 1. Pure 2. Not as great as (49% approach) 3. Not greater than (50% approach) |
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Term
What are some of the problems with comparative negligence
Torts/Negligence/Defenses |
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Definition
| 1. How is fault assigned especially when there are multiple defendants? 2. Is the last-chance-clear doctrine applicable? 3. Should a negligent P's recovery be reduced if D was negligent per se? |
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Term
If the plaintiff is helpless and
D discovers danger but negligently fails to avoid it
can the plaintiff still recover?
(last-chance-clear doctrine)
Torts/Negligence/Defenses
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Definition
| The plaintiff can recover in all courts |
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Term
If the plaintiff is helpless and
D fails to discover danger because he is inattentive
can the plaintiff still recover?
(last-chance-clear doctrine)
Torts/Negligence/Defenses |
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Definition
| The helpless plaintiff can recover in most courts |
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Term
If the plaintiff is inattentive but not helpless and
D dicovers danger but negligently fails to avoid it
can the plaintiff recover?
(Last-chance-clear doctrine)
Torts/Negligence/Defenses
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Definition
| The inattentive plaintiff can recover in most courts |
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Term
If the plaintiff is inattentive but not helpless and
D fails to discover danger because he is inattentive
can P recover?
(Last Chance Clear Doctrine)
Torts/Negligence/Defenses
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Definition
| The plaintiff cannot recover |
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Term
What is the First Chance Clear Doctrine?
Torts/Negligence/Defenses
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Definition
| If D is unable to avoid harming P, P cannot recover in most courts (even though he is aware of danger) because of D's earlier negligence |
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Term
What is Assumption of Risk?
Torts/Negligence/Defenses |
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Definition
| When the plaintiff volunteers to take the chance that harm will occur. |
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Term
Assumption of risk is characterized as "adventerousness," but contributory negligence is characterized as...
Torts/Negligence/Defenses |
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Definition
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Term
Assumption of risk uses a subjective standard (Did the plaintiff assume the risk?) but contributory negligence uses
Torts/Negligence/Defenses |
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Definition
| ...an objective standard (compared to the reasonable person standard) |
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Term
Assumption of risk is a defense to reckless conduct but contributory negligence is
Torts/Negligence/Defenses
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Definition
| not a defense to reckless conduct. |
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Term
Assumption of risk is a defense in strict liability cases but contributory negligence is
Torts/Negligence/Defenses
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Definition
| not a defense in strict liability cases. |
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Term
In assumption of risk cases the plaintiff must have...
Torts/Negligence/Defenses
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Definition
| ...actual or constructive knowledge of risk. |
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Term
In assumption of risk cases the plaintiff must appreciate the...
Torts/Negligence/Defenses
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Definition
| ...character of the risk. |
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Term
In assumption of risk cases the defendant must voluntarily accept the...
Torts/Negligence/Defenses
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Definition
| ...risk based on time, knowledge, and experience to make an intelligent choice. |
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Term
What are the four types of immunity?
Torts/Negligence/Defenses
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Definition
| governmental, parent-child, inter-spousal, and charitable immunity. |
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Term
What are the four types of governmental immunity?
Torts/Negligence/Defenses
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Definition
*Federal government (limited by Federal Tort Claims Act)
*State governmental immunity
*public official immunity
*local government immunity (for governmental but not proprietary functions) |
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Term
accrual:
Torts/Negligence/Defenses
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Definition
| time at which a statute of limitations begins to run, usually at the time the plaintiff is injured. |
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Term
assumption of risk:
Torts/Negligence/Defenses
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Definition
| defense that plaintiff voluntarily consented to take the chance that harm would occur if he engaged in certain conduct. |
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Term
discretionary function:
Torts/Negligence/Defenses
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Definition
| act of a government employee requiring the use of judgment |
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Term
governmental function
Torts/Negligence/Defenses
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Definition
| tasks typically performed by a governmental entity |
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Term
immunity
Torts/Negligence/Defenses
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Definition
| absolute defense derived from the defendant's status (e.g. a government official) or relationship to the plaintiff (e.g. spouse of the plaintiff) |
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Term
proprietary function
Torts/Negligence/Defenses
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Definition
| function performed by the government that could just as easily be performed by a private entity |
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Term
statute of limitations
Torts/Negligence/Defenses
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Definition
| statute that limits the time period in which a claim can be filed |
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Term
statute of repose
Torts/Negligence/Defenses
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Definition
| statute of limitations in product liability cases that limits the time period during which suit can be filed. |
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