XIII. Torts: Defenses to Negligence
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Standard of care is the same as for ordinary negligence.
Emergency situation will be taken into account -- rescuer may take risks without being contributorily negligent.
It may be contributorily negligent to fail to remove oneself from danger.
May be established by showing violation of statute.
Never a defense to an intentional tort or willful or wanton misconduct.
LAST CLEAR CHANCE DOCTRINE
Permits plaintiff to recover despite his own contributory negligence. The person with the last clear chance to avoid an accident who fails to do so is liable for negligence.
Used by plaintiff as rebuttal to defense of contributory negligence.
Helpless Peril: If plaintiff puts himself in a position of actual peril from which he cannot extricate himself, defendant is liable if she had actual knowledge or should have known of plaintiff's predicament.
Inattentive Peril: If plaintiff was in a position of actual peril but did not extricate himself because he wasn't paying attention, defendant is liable only if she actually knew of the predicament.
IMPUTED CONTRIBUTORY NEGLIGENCE
Contributory negligence will be imputed only where the plaintiff and the negligent person stand in such a relationship to each other that the courts find it proper to charge plaintiff with that person's negligence, ie, where plaintiff would be vicariously liable.
IMPUTED CONTRIBUTORY NEGLIGENCE:
RELATIONSHIPS TO WATCH FOR
For emloyer/employee and partners and joint venturers contributory negligence will be imputed.
For spouses and parent/child, no imputation.
The contributory negligence of driver will not be imputed to car owner unless driver is an employee or such.
ASSUMPTION OF RISK
To have assumed the risk, either expressly or impliedly, plaintiff must have known of the risk and voluntarily assumed it.
Knowledge may be implied where the risk is one that an average person would clearly appreciate.
Plaintiff may not be said to have assumed the risk if there is no available alternative to proceeding in the face of the risk.
Assumption of risk is not a defense to an intentional tort.
RISKS THAT MAY NOT BE ASSUMED
Common carriers and public utilities are not permitted to limit their liability for personal injury by a disclaimer on a ticket, posted sign, etc.
When a statute is enacted to protect a class, members of that class will not be deemed to have assumed any risk.
Risks will not be assumed in situations involving fraud, force, or an emergency.
Recognized in a majority of states.
In cases where contributory negligence is proven, the trier of fact weighs plaintiff's negligence against that of defendant and reduces plaintiff's damages accordingly.
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