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Affirmative Defenses Outline

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Affirmative Defenses

1. Defenses Based On Plaintiff's Conduct a) Contributory Negligence Originally even slight negligence would completely bar recovery from a defendant. Court hated and played around with, most completely abandoned for some form of comparative negligence.

Only 4 states still use contributory negligence which bars recovery unless defendant acted in gross negligence or "last clear chance" (could have avoided or stopped)

b) Comparative Negligence 1) Pure Form Plaintiff's damages are reduced in proportion to the percentage of negligence attributed to him.

If his negligence is 10% and the total damages are $100,000, he will get
$90,000 or 10% less than total amount.

2) Modified Form a) does not exceed, can be < or = to defendants negligence. Once goes above 50% or 51% then can't recover. MAJORITY

b) is less than defendants negligence, is < defendants negligence 49% is okay.

Legislatures more likely adopt modified form Judicial and Scholars more likely favor pure form

13 states follow pure form 33 states, strong majority have one of the modified forms

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