CONTRIBUTORY NEGLIGENCE Contributory negligence is the Plaintiff’s failure to take reasonable care for his or her own safety. The Plaintiff’s lack of ordinary care merges with the Defendant’s negligence to cause the Plaintiff’s injuries. When the Plaintiff is contributorily negligent, there is NO RECOVERY from the Defendant. The premise behind contributory negligence is that the Plaintiff should not be permitted to recover damages from someone else’s negligence she he or she failed to exercise reasonable care of him-or-herself. Although this theory was followed at one time in almost all jurisdictions, there are few states that have held onto it: Alabama Delaware Maryland North Carolina South Carolina Virginia It is important to study contributory negligence, even if you are in a state that does not use it, because all jurisdictions once followed this theory, and thus affected the case law.
LAST CLEAR CHANCE DOCTRINE One exception to the contributory negligence doctrine is “last clear chance.” Under this doctrine, a Plaintiff’s contributory negligence will be excused if the Defendant has the last opportunity of avoiding the accident and fails to do so.
SUDDEN EMERGENCY DOCTRINE The sudden emergency doctrine is an exception to the contributory negligence rule. Under this doctrine, when a Plaintiff is confronted with a sudden emergency, something that requires a quick response, he or she will not be held to the same standard as would a Plaintiff who had more time to consider his or her actions. The basis for this doctrine is that a person is not expected to exercise the same standard of care in an emergency as in a nonemergency situation.
ASSUMPTION OF RISK Also an exception to contributory negligence, in an assumption of risk, the Plaintiff is barred if he or she knowingly placed him-or-herself in a dangerous situation. When a Plaintiff voluntarily takes a risk, the right to sue for damages is waived.
EXCEPTION FOR PLAINTIFF’S AGE AND PHYSICAL FACTORS A Plaintiff’s age and physical characteristics factor into exceptions to the rule of contributory negligence. The general rule is that a child is held to the standard of a similarly situated child and an impaired person is held to the standard of a hypothetical reasonable person with the same impairment. In almost all jurisdictions, a legally insane person cannot be liable under contributory negligence.
THE RESCUER DOCTRINE When a person is attempting to save the life of another, the doctrine of contributory negligence does not apply so long as the rescuer did not place the person in jeopardy in the first place. This applies even when the rescuer takes desperate and extremely dangerous chances in rescuing another.
COMPARATIVE NEGLIGENCE The doctrine of comparative negligence was developed in response to the harsh rulings in contributory negligence cases. Under this doctrine, a Plaintiff’s recovery is reduced by the proportion of his or her negligence. States (except for those that practice contributory negligence) have different versions of comparative negligence. Check your text for a complete listing and to find out what your state’s version is. There are three models of comparative negligence, which will be described further in this topic’s subtopics. They are: 1. Pure comparative negligence 2. Modified comparative negligence 3. Slight-gross comparative negligence Some states use a combination of approaches. Comparative negligence generally applies only to actions involving physical or property damage. A Plaintiff may seek punitive damages, but it is unlikely that a jury would award punitive damages to someone who is partially responsible for his or her own injuries. There are defenses, or exceptions, to comparative negligence discussed further in the subtopics of this mindmap.
Pure Comparative Negligence
Modified Comparative Negligence
Slight-Gross Comparative Negligence
The Rescuer Doctrine Exception
Mentally Incompetent Persons Exception
Doctrine of Avoidable Consequences Although often confused with contributory negligence, this is a separate doctrine that focuses on what happened after the accident, not on the Plaintiff’s actions before the accident. Under this doctrine, the Plaintiff must take reasonable steps to obtain the proper medical treatment for his or her injuries or to protect damaged property, which is similar to mitigation of damages.
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