Defenses to Negligence

If the plaintiff is contributory negligent they cannot recover at all; all or nothing defense

Apportions fault

(a) If plaintiff is responsible because of his own contributory negligence he can still recover depending on how responsible he was
(b) Plaintiff cannot recovery only if he is 100% at fault

If a plaintiff is responsible because of his own contributory negligence he can only recover if his fault is not greater than the defendant's...at 50-50 he can still recover 50%

the nature of the person's risk-creating conduct, including any awareness or indifference with respect to the risks created by the conduct and any intent with respect to the harm created by the conduct; and
(b) the strength of the causal connection between the person's risk-creating conduct and the harm

-the fact-finder assigns comparative percentages of "responsibility" to parties and other relevant persons whose negligence or other legally culpable conduct was legal cause of the plaintiff's injury

-does not assign % of fault, negligence or causation

-conduct is relevant for determining percentage shares of responsibility only when it caused the harm and when the harm is within the scope of the person's liability

the nature of each person's risk-creating conduct

(a) Although the plaintiff was contributorily negligent, we will forgive the negligence because the defendants breach of duty was foreseen to be the harm
(b) Plaintiff's disability or vulnerability might be especially important if
(c) The defendant knows (or should know) of the plaintiff's disability which prevents or inhibits the plaintiff's care for himself; AND
(d) The plaintiff's risky conduct endangers himself but not others (both from defendant's point of view)
(e) The more vulnerable the plaintiff is, The more the risk is not directed towards other, the more the defendant knows or should have known of Plaintiffs risk, the Bexiga doctrine is more likely to be applied
(i) If Bexiga factors are found then it will remove the fault of the plaintiff and there will be nothing to compare in a comparative jurisdiction

(a) "The rescue doctrine is a rule of law holding that one who sees a person in imminent danger caused by the negligence of another cannot be charged with contributory negligence" unless the rescuer acted recklessly.
(b) Even if the rescuer acts in a way that we may think is unreasonable he should not be found contributory negligent ---(if is not putting a risk on others, he is only trying to take someone else of the risk and is putting a risk to himself)

(a) Traditional system: courts allowed the negligent P a full recovery when the P was left in a helpless position by his own negligence and the D, who had the last clear chance to avoid injury, negligently inflicted it anyway.
(b) "the last clear chance doctrine held that if the D discovered or should have discovered the P's peril and could reasonably have avoided it, the P's earlier negligence would neither bar nor reduce the P's recovery.
(c) Discovered peril doctrine: applied these rules only if the D actually discover the plaintiff's peril
(d) In states that have adopted comparative fault systems, the last clear chance and discovered peril doctrines have been discarded

(a) Contributory negligence was historically no defense to an intentional tort
(b) Courts also held that contributory negligence was no defense to willful, wanton or reckless torts

application of comparative fault rules to all claims for personal injury, death, and harms to tangible property. That includes suits against an intentional tortfeasors. At the same time, the Restatement of Apportionment takes "no position" on the question whether a plaintiff's comparative fault reduces recovery against an intentional tortfeasor.

(a) "A valid contractual limitation on liability within its terms, creates an absolute bar to a P's recovery from the other party to the contract. A valid contractual limitation on liability does not provided an occasion for the fact-finder to assign a percentage of responsibility to any party or other person"

(i) If the service is essential there is no assumption of risk by the plaintiff because you are barred from making a choice of your own volition
(a) Factors to Consider
(i) Alternatives
(ii) Service is essential?
(iii) Bargaining power
(ii) A contractual assumption of risk must be within the scope of the risk
(2) Non-Contractual

The plaintiff knows of the risks associated with the activity

Tacit consent found when plaintiff:

(a) knowing of the risk
(b) appreciate its quality
(c) voluntarily chose to confront it

(a) was once a complete defense
(b) where the P knew of the risk appreciated its danger and voluntarily confronted it, the P could take nothing

Assumed risk is treated as comparative fault
(b) If the P is reasonable in facing a risk she is not negligent, but that when she unreasonably confronts a known risk, her negligence in doing so reduces her recovery of damages

(2) Avila v. Citrus Community College District
(b) Primary assumption of the risk arises when, as a matter of law and policy, a defendant owes no duty to protect a plaintiff from particular harms

1) Time of Injury/Time of harm
2) Discovery Rule
3) Continuous treatment

The statute of limitations commences running from the date of injury

(i) Delays the accrual of the claim until
(a) All elements of tort are present
(b) The plaintiff discovers or a reasonable person should discover both injury and the defendant’s role in causing it

(i) The statute of limitations begins to run with the plaintiff’s association of symptoms with a serious or permanent condition possibly induced by the defendant
(ii) Some courts go off of first exposure or the first negligent act, but others go off of last exposure or termination of employment trigger
(iii) Toxic Torts

(a) The dumping of toxic chemicals is a continuing tort
(b) If a tort is permanent, the claim accrues when the plaintiff learned or should have learned of the injury, but if the tort is continuing, the claim continues to accrue as long as the defendant fails to rectify the condition causing the injury

1) Minors
2) People with disabilities

(a) Notice Bar – requires the defendant notice before filing the action
(b) Pre-accrual – final date on which the action may be brought

(1) Statutory requirements usually represent a minimum standard of care (compliance = evidence, not proof), NOT a maximum obligation