Torts Negligence Defenses - MBE

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Author:
stac8199
ID:
159130
Filename:
Torts Negligence Defenses - MBE
Updated:
2012-06-17 18:16:39
Tags:
Negligence defenses
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Description:
Negligence defenses for MBE
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  1. When dealing with contributory negligence and comparative fault, the D has the BoP to show what?
    that P fell below the relevant standard of care and that his failure was the cause-in-fact and proximate cause of P's damage by PoE
  2. What is the P's conduct measured by when dealing with contributory negligence and comparative fault?
    P acted unreasonably as based by RPP
  3. What is the legal effect of the P's contributory negligence in a contributory negligence jurisdiction?
    absolute bar from recovery regardless of the amount of fault belonging to the P
  4. What is the legal effect of the P's contributory negligence in a pure comparative fault jurisdiction?
    P is allowed to recover regardless of how much at fault he is with the recovery reduced by the amount of his own fault
  5. In a pure comparative fault jurisdiction, amy the P still recover even if he is more at fault than the D?
    yes
  6. What is the legal effect of the P's contributory negligence in a modified comparative fault jurisdiction?
    where the P is more at fault or as much at fault as D then barred from recovery
  7. In which jurisdiction will the last clear chance doctrine apply?
    contributory negligence jurisdiction
  8. What is the last clear chance doctrine?
    if the D negligence occurs after the P's then the P is entitled to full recovery
  9. What is the focus on in the last clear chance doctrine?
    the time period after the P has engaged in contrib. negligence
  10. When is the D said to have had the last clear chance to avoid harm?
    when the injury to the P could still have been avoided thru a subsequent exercise of due care by the D
  11. Does J&S liability survive in comparative fault jurisdictions?
    yes - subtract the P fault then hold the other D's liable for the remainder J&S
  12. When does express AoR arise?
    when the P has, by written or oral words, experssly relieved the D of his obligation to act non-negligently toward P
  13. Must AoR waivers be clear, express, and not against public policy?
    yes
  14. In what torts do express AoR waivers apply?
    negligence only
  15. When is an AoR express waiver void against public policy?
    when dealing with necessity
  16. Is it possible for a P to impliedly AoR?
    yes under very limited circumstances
  17. P is barred from recovery or recovery is reduced under the AoR doctrine if the D establishes what?
    • (1) P knew the risk
    • (2) P understood the risk
    • (3) P confronted the risk voluntarily  
  18. Is AoR a subjective or objective focus?
    subjective
  19. Is contributory negligence a subjective or objective focus?
    objective
  20. Is comparative fault a subjective or objective focus?
    objective
  21. What is the rule for professional rescuers also known as the firefighter rule?
    where the P is a professional rescuer and is injured doing his job then unable to recover in negligence against the person that created the need for her to do his job
  22. What is the public policy reason behind the firefighter rule?
    part of her job involves putting herself at risk of other ppl's negligence and we don't want to dissuade ppl from seeking help when needed
  23. What is primary AoR?
    • in certain contexts the D has no duty to act non-negligently toward the P b/c of the nature of the activity they are engaged in
    • i.e. - recreational sports 
  24. Under the theory of avoidable consequences, when the P fails to take reasonable steps either before or after injury to mitigate her damages, is the D liable for those additional damages which could have been avoided?
    no
  25. In what context does avoidable consequences generally arise?
    helmets and seatbelts

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