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defenses to negligence - Coggle Diagram
defenses to negligence
comparative neglgience = a rule for considering the relative impact of nelgigence on part of p and d, comparing the fault of each party; reduces p's recovery based on their share of the blame
if d can show taht the neglgience of p played a role in p's injury, the court will compare teh neglgience of p to that of d, and reduce d's financial responsbility proportioanlly - not, necessarily entirely
three appproahces = pure comparative nelgigence, modified 49 percent rule, modified 50 percent rule
pure comparative negligence = p's negligence is not a bar to recovery; p's recovery is limited to an amount excluding p's share fo damages based on the jury's allocation of fault; e.g., a P who is 60 percent at fault recovers 40 percent of their damgaes
modified 49 percent reul = total bar on recovery for P whose sahre fo responsiblity exceeds a certain threshold; if P's neglgience falls below taht threshold, P recovers their damges less their sahre of the fault; P cannot recover unless she bore less responsiblity than D; jury allocated 49 percent to P and 51 percent to D, P recoverse 51 percent; if 51 percent to P, no recvoery
modified 50 percent rule = p recvoers so lon gas she had no more fault than that of d; jury allcoated 50 percent to p and 50 percent to d, p still recovers 50 percent
contributory negligence, not tstable = the traditional rule taht barred P who was also negligent from recovering
no matter how minor P's contribution may have been, p was barred from recovery; two 'escape valves'
last clear chance = p was neglgent, but d was said to have had the last clear chance to avoid the accidnet; e.g., p is negligent and gets stuck on a train tarack; d must still pull the brakes on the train or be liable so long as it was clar he could avoid injuring p
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assumption of risk AOR
primary, limited duty, PAOR, see above
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failure to mitigate FTM = a victim's failure to take appropriate measures to reduce the extent of their damges
a tory vicitm is limited in recoveing only the amount of damge htat a person who took reasonable steps to mitigate their injury would have experience
operationally, FTM may arise in two wasy
causation = the extent of D's damages can be limited to aonly those damgages that could not have been avoided
some statues, or precedents, allow FTM to be the basis for an assignment of fault in the comparative resposniblity sytem; whre jury finds FTM, could use that FTM to assign a share of fault to P
D msut show three things = p msut have failed to do some thing and a reasonble person, under hte circumstances, msut have done the thing p failed to do, and there msut be a causal connection = on a facutal basis - between the failure to do that thing and the exacerbation of P's damages
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anticipatory mitigation = a controversial doctrine that reduces p's recovery not for failures to mitigate after an accidnet, but for failing ot use safety measures that could reduce harm should an acidnet result
seatbelt defense = an application of anticipatory mitigation that utilizes P's failrure to wear a seatbelt as a basis to deny or limit recovery