Defenses Contributory Negligence Comparative Negligence Assumption of Risk

Defenses • • • Contributory Negligence Comparative Negligence Assumption of Risk Last Clear Chance Immunity Ultra Vires

Contributory Negligence • contributory negligence A doctrine of common law that if a person was injured in part due to his/her own negligence (his/her negligence "contributed" to the accident), the injured party would not be entitled to collect any damages (money) from another party who supposedly caused the accident. Under this rule, a badly injured person who was only slightly negligent could not win in court against a very negligent defendant. If Joe Tosspot was driving drunk and speeding and Angela Comfort was going 25 m. p. h. but six inches over the center-line, most likely Angela would be precluded from any recovery (receiving any money for injuries or damages) from a car crash. The possible unfair results have led some juries to ignore the rule and, in the past few decades, most states have adopted a comparative negligence test in which the relative percentages of negligence by each person are used to determine damage recovery (how much money would be paid to the injured person). http: //dictionary. law. com/

Comparative Negligence • comparative negligence A rule of law applied in accident cases to determine responsibility and damages based on the negligence of every party directly involved in the accident. For a simple example, Eddie Leadfoot, the driver of one automobile, is speeding and Rudy Airhead, the driver of an oncoming car, has failed to signal and starts to turn left, incorrectly judging Leadfoot's speed. A crash ensues in which Airhead is hurt. Airhead's damage recovery will be reduced by the percentage his failure to judge Leadfoot's speed contributed to or caused the accident. Most cases are not as simple, and the formulas to figure out, attribute and compare negligence often make assessment of damages problematic, difficult, and possibly totally subjective. Not all states use comparative negligence (California is a fairly recent convert), and some states still use contributory negligence which denies recovery to any party whose negligence has added to the cause of the accident in any way. Contributory negligence is often so unfair that juries tend to ignore it. http: //dictionary. law. com/

Assumption of the Risk • assumption of risk Taking a chance in a potentially dangerous situation. This is a typical affirmative defense in a negligence case, in which the defendant claims that the situation (taking a ski-lift, climbing a steep cliff, riding in an old crowded car, working on the girders of a skyscraper) was so inherently or obviously hazardous that the injured plaintiff should have known there was danger and took the chance that he/she could be injured. 2) the act of contracting to take over the risk, such as buying the right to a shipment and accepting the danger that it could be damaged or prove unprofitable. http: //dictionary. law. com/

Last Clear Chance • Contributory negligence ordinarily will relieve defendant of liability • If state follows last clear chance rule, defendant will be held liable regardless of plaintiff’s contributory negligence

Last Clear Chance - 4 Elements From Cournoyer, Marshall Morris. Hotel, Restaurant, and Travel Law (1993) page 170 • The plaintiff is negligent. • As a result of this negligence, plaintiff is in position of peril that cannot be escaped by the exercise of ordinary care. • The defendant knew or should have known of the plaintiff’s peril. • The defendant had a clear chance, by the exercise of ordinary care to avoid the injury to the plaintiff but failed to do so. • Ritter v. Potera (1984) 474 A. 2 d 556

Immunity • We talked about various immunities earlier in the semester. • They apply to volunteers and nonprofits and various governmental units. • It does not necessarily mean that people who are damaged have no way of seeking compensation for their injuries, but they may have to proceed under some law or theory other than negligence.

Ultra Vires • This is used by a corporation or organization to avoid liability for an act of an employee or agent • The organizational defendant asserts that the employee / agent / volunteer was acting outside the scope of their employment / duty / or volunteer activity

Cases • Ritter v. Potera 59 Md. App 65 • Liggett v. Butterfield • Lugo v. Ameritech 2001 Mich. App. Lexis 1663 464 Mich. 512