Defenses to negligence?

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RR320
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Defenses to negligence?

Postby RR320 » Sun Dec 18, 2011 5:03 pm

Is the only thing available to the defendant comparative fault? I have in my notes that contributory negligence and assumption of risk was absorbed by comparative fault, is this correct?

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bk1
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Re: Defenses to negligence?

Postby bk1 » Sun Dec 18, 2011 5:07 pm

Depends on how your prof teaches it.

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cinephile
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Re: Defenses to negligence?

Postby cinephile » Sun Dec 18, 2011 5:10 pm

I thought some jurisdictions still use contributory negligence?

We also learned assumption of the risk is a separate defense (although it gets murky when there's both assumption of the risk and comparative fault)

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Extension_Cord
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Re: Defenses to negligence?

Postby Extension_Cord » Sun Dec 18, 2011 6:03 pm

implied and express assumption of the risk
contributory negligence
comparitive negligence

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MrPapagiorgio
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Re: Defenses to negligence?

Postby MrPapagiorgio » Sun Dec 18, 2011 6:16 pm

bk1 wrote:Depends on how your prof teaches it.

This. My prof has differentiated between comparative fault, contributory negligence and assumption of risk as three separate defenses. On his past exams he has clearly stated what the jurisdiction uses for comparative fault and contributory negligence (usually uses a pure comparative fault jurisdiction). So yea, it all depends on what your prof says.

zomginternets
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Re: Defenses to negligence?

Postby zomginternets » Sun Dec 18, 2011 9:16 pm

contributory negligence is almost totally out of style in all jdx's. It's modern equivalent is comparative fault. A particular jdx has either one or the other, not both.

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arvcondor
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Re: Defenses to negligence?

Postby arvcondor » Mon Dec 19, 2011 1:22 am

RR320 wrote:Is the only thing available to the defendant comparative fault? I have in my notes that contributory negligence and assumption of risk was absorbed by comparative fault, is this correct?

There's also express assumption of risk, but yeah, for the most part, this is true. If there's an implied secondary assumption of risk, that indicates negligence on the part of the plaintiff and then calculations are made as to what degree the plaintiff was actually negligent.

HTH

jjlaw
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Re: Defenses to negligence?

Postby jjlaw » Mon Dec 19, 2011 11:06 am

arvcondor wrote:
RR320 wrote:If there's an implied secondary assumption of risk, that indicates negligence on the part of the plaintiff and then calculations are made as to what degree the plaintiff was actually negligent.


Is secondary assumption of risk when the plaintiff is aware of defendant's negligence but assumes the risk anyway?




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