Contributory Negligence in any amount by a P is a total bar against recovery.

Exceptions:

Last Clear Chance Rule--D had an opportunity to avoid causing injury and did not do it.  J/S where P had knowledge of the risk posed by the D.

D was Reckless

D had a duty to protect P from P's own negligence (parents/children)

1) Does the jurisdiction use comparative fault?

2) Which scheme is used?

--Pure-P who is 10% contributorily negligent gets 90% recovery of damages

--Mixed (two approaches) 1) P can recover as long as P's negligence was not as great as the combined negligence of the other parties (49%).  2) P can recover as long as P's negligence was no greater than 50%

Express Assumption of Risk--written agreements 

Implied Assumption of Risk--voluntarily encountering a risk with knowledge of the nature and extent of the risk.  Most jurisdictions have abolished this doctrine in favor of folding this into comparative fault.

The exculpation of tort liability through a contract is allowed and is a total bar against liability.

There are limitations

--Language in the agreement is strictly construed because the potential D drafted the agreement

--Language must clearly state that the P assumes the risk of the D's negligence

--Generally cannot exclude recklessness or gross negligence

--Children cannot bind themselves.  J/S over whether their parents can bind them and do away with a child's ability to recover damages

--Signs/Language on Tickets are generally not effective unless D can show that the P actually read it

--Prohibited by statute in some jurisdictions

--Whether there is a duty to protect against open and obvious dangers in premises liability

--Does a choice to assume a risk break the chain of causation

--Does a rescuer assume the risk of his rescue (maybe not...danger invites rescue)

--Firefighter Rule-Police and firefighters assume the risk of their occupation and are considered licensees in premises liability

Generally this has been abolished through Torts Claims Acts.

Torts Claims Acts have put limits on governmental liability.

--Employees are immune as individuals (except for intentional torts)

--No Punitive Damages

--Immunity for "discretionary" actions

--Caps on recovery

--Requirement of notice to agency before filing suit

Charities are immune from torts at common law but this has been abolished in most jurisdictions.

Many jurisdictions have put statutory limitations on the liability of charities:

--Only liable for recklessness/willful/wanton conduct

--Immune from liability for negligence

--Limits on punitive damages

--Limits on compensatory damages

--Limits on the personal liability of employees/volunteers

Intrafamily Immunities

Spousal Immunity

Spouses were immune from each other at common law.

Generally this has been abolished.

Intrafamily Immunities

Parental Immunity

Common law provided parental immunity.  This has been abolished in most jurisdictions.

Arguments For Parental Immunity:

--Family harmony will be disrupted

--Fraud and collusion against insurance are possible

--Recovery by a child could deplete family resources

--Parental authority and discretion is necessary

--There is no need to provide extra incentive for parents to keep their kids safe

--Comparative Fault/Contribution could result in less recovery

There are easy arguments against all of these.