Defenses to Negligence and Comparative Fault: every key term you need (+ practice quiz)
25 flashcard terms for Torts Topic 6, written to match the course framework. Study them here, then drill them as interactive flashcards, or test yourself with the 15-question quiz — free, no account needed.
The traditional rule under which any want of ordinary care by the plaintiff that contributed to the injury defeated recovery entirely, however slight that fault might be.
Butterfield v. Forrester
Early English case in which a rider galloping in dusk struck an obstruction left in the road. His own carelessness barred recovery and launched the complete bar rule.
Last clear chance doctrine
An equitable escape from the complete bar allowing a careless plaintiff to recover where the defendant had the final realistic opportunity to avoid the accident.
Pure comparative fault
Apportionment scheme reducing the award by the plaintiff's percentage of responsibility, allowing some recovery even for a plaintiff who is ninety percent at fault.
Modified comparative fault
Apportionment that reduces recovery by the plaintiff's share but bars it once that share crosses a threshold, either equal to or greater than the defendant's.
Fifty percent bar
Threshold version in which a plaintiff recovers only if her fault is less than the aggregate fault of others, so an even split defeats the claim.
Fifty-one percent bar
Threshold version letting a plaintiff recover when her fault is not greater than the defendant's, so an even split still yields a halved award.
Li v. Yellow Cab of California
Judicial adoption of pure comparative apportionment in California, replacing the harsh all-or-nothing bar and folding last clear chance into the new scheme.
Apportionment among tortfeasors
The process by which a factfinder assigns percentage responsibility to each actor and sometimes to absent or settling parties for a single indivisible injury.
Joint and several liability
Rule permitting a plaintiff to collect the entire judgment from any one responsible party, leaving that party to pursue the others for their shares.
Several liability reform
Statutory move in many states limiting each defendant to its own percentage share, shifting the risk of an insolvent co-defendant onto the injured party.
Contribution
A claim by a party who paid more than its equitable share seeking reimbursement from other responsible parties, usually measured by comparative percentages.
Indemnity
Complete shifting of loss from a party held only passively or derivatively responsible to the actor whose conduct truly produced the harm.
Pro tanto settlement credit
Reduces the remaining judgment by the dollar amount of any settlement, so a generous settlement lowers what nonsettling parties must pay.
Proportionate share credit
Reduces the judgment by the settling party's assigned percentage of responsibility rather than by dollars actually paid, preserving finality for settlers.
Mary Carter agreement
A secret arrangement in which a settling defendant stays in the case and its payment shrinks as recovery against codefendants grows, creating distorted incentives.
Express assumption of risk
A written or spoken agreement releasing a party from responsibility for future carelessness, enforceable only if clear, knowing, and not offensive to public policy.
Tunkl factors
California criteria for voiding exculpatory clauses, considering regulated businesses, essential public services, unequal bargaining power, and adhesive standard forms.
Implied primary assumption of risk
No-obligation framing under which an activity's inherent hazards are simply outside the protected interest, as with a foul ball at a ballpark.
Implied secondary assumption of risk
The plaintiff voluntarily meets a known danger created by another's carelessness; in most states this now functions as ordinary comparative apportionment.
Murphy v. Steeplechase Amusement
The Flopper case, where a rider on a moving amusement belt was held to accept the obvious jostling that gave the attraction its name and its appeal.
Firefighter's rule
Limits suits by public safety officers against those whose carelessness created the very emergency the officer was paid and trained to confront.
Co-participant limited duty in sports
Athletes answer to each other only for reckless or intentional conduct, not ordinary carelessness, so vigorous competitive play is not chilled by litigation.
Avoidable consequences rule
Bars recovery for harm the injured party could reasonably have prevented after the wrong, such as refusing simple medical care or ignoring a seat belt.
Discovery rule
Postpones accrual of the limitations period until the claimant knows or reasonably should know of both the injury and its probable wrongful cause.