1. Negligence
Defenses

2. Types of Defenses Contributory Negligence Comparative Negligence
Last Clear Chance
Comparative Negligence
Assumption of Risk/Waiver of Liability
Immunity
Statutes of limitation
Statutes of repose

3. Contributory Negligence
If plaintiff is at all negligent in their own injury, complete bar to recovery
Exceptions
Defendant must specifically plead and prove
Leave issue of Con’ Neg’ to jury
Require plaintiff’s neg’ to satisfy “but for.”

4. Last Clear Chance Doctrine
Created to reduce the harshness of strictly applying “Contributory Negligence.”
Did Defendant have an opportunity to avoid or prevent the harm that Plaintiff did not?
Failure of Defendant to take the opportunity to avoid the harm, even though Plaintiff was partly negligent in creating the hazard, prevents the contributory negligence doctrine from barring Plaintiff’s recovery.
E.g.: Plaintiff parks his car negligently, partly blocking street. Defendant sees car blocking street and could circumvent the obstruction but does not, and strikes the car. Plaintiff sues. Defendant claims “Contributory Negligence” by defendant. Plaintiff raises defense of “Last Clear Chance” to avoid accident by Defendant. Result, Plaintiff’s lawsuit proceeds and Defendant can be find liable.

5. Comparative Negligence
Alternative to Contributory Negligence
Four main types
Pure (AZ’s approach)
50%
Not as great as (aka, less-than)
Not greater than (aka, less-than or equal-to)
Plaintiff’s recovery reduced in proportion to their degree of fault

6. Comparative Negligence: Pure
Plaintiff’s damages reduced by their percentage of fault
$1 in damage, plaintiff 25% at fault, defendant pays $.75

7. Comparative Negligence: 50%
Plaintiff barred from recovery if they are more than 50% at fault.
$1 in damage, plaintiff 25% at fault, defendant pays $.75
$1 in damage, plaintiff 50% at fault, defendant pays $.50
$1 in damage, plaintiff % at fault, defendant pays $0

8. Comparative Negligence: Not as great as
Plaintiff barred if his negligence is as great as the defendant’s negligence.
$1 in damage, plaintiff 25% at fault, defendant pays $.75 (P < D)
$1 in damage, plaintiff 49.99% at fault, defendant pays $.49 (P < D)
$1 in damage, plaintiff 50% at fault, defendant pays $0 (P => D)

9. Comparative Negligence: Not greater than
Plaintiff barred if his negligence is greater than defendant’s negligence. Very similar to the 50% rule, but remember, the percentages may not always be based on 50% because you can have multiple parties.
$1 in damage, plaintiff 25% at fault, defendant pays $.75 (P <= D)
$1 in damage, plaintiff 49.99% at fault, defendant pays $.49 (P <= D)
$1 in damage, plaintiff 50% at fault, defendant pays $.50 (P <= D)
$1 in damage, plaintiff 50.1% at fault, defendant pays $0 (P > D)

10. Assumption of Risk
Under common law, if you voluntarily assumed the risk, implicitly or explicitly, then you could not recover from harm resulting from the risk you assumed.
Under modern torts, this varies significantly from state to state.

11. Assumption of Risk
In pure comparative negligence states, like AZ, the risk assumed may be characterized as some degree of the plaintiff’s own negligence.
Did you voluntarily walk down defective steps when you had a viable alternative?

12. Waivers of Liability
Common attempt by businesses and individuals to exempt themselves from their own negligence, in advance.
Some states allow it, others do not, still others say it is simply a matter for the jury to consider as to whether the harm that occurred is the harm the waiver was meant to cover.
Arizona Constitution art. XVIII, § 5 precludes summary judgment on the issue and it must be decided by the jury.
See Phelps v. Firebird Raceway, Inc. 210 Ariz. 403 (2005). (A rather interesting case).

13. Governmental Immunities
Federal Government
Immune except where it falls under the FTCA. Lots of exceptions. No prejudgment interest and no punitive damages.
Sue the government, not the employee
Employees acting in scope of their duties completely immune.
State Government
Arizona has waived, but has strict requirements on notice of claims – 180 days from accrual of cause of action.
See Ariz. Rev. Stat. Ann. § (A)(1).
See also Ryan v. State, 134 Ariz. 308 (1982)
Legislative and Judicial functions still immune.
Applies to all political subdivisions of the state

14. Other Immunities Interspousal Parent Child Charitable
Abolished in Arizona
Fernandez v. Romo, 132 Ariz. 447 (1982) rejected all traditional rationales
Parent Child
Mostly abolished in Arizona
Streenz v. Streenz, 106 Ariz. 86 (1970) rejected for all cases except:
Where negligent act involves exercises of parental authority
Ordinary acts of parental discretion relating to food, clothing, housing, etc.
Charitable
Ray v. Tucson Med. Ctr.

15. Statutes of Limitation
Claims must be brought within a defined time from when the tort occurred (“accrued) or when plaintiff discovered or should have discovered the harm (discovery doctrine)
AZ Negligence (2 yrs with discovery rule)
AZ Intentional Torts: 1 yr
State/Municipality: 180 days for notice of claim

16. Statutes of Repose Different from a statute of limitations
Time to file suit begins to run when the product is sold
After the statutory period has expired it is not possible to file a lawsuit even if an injury occurs after that time.
For example, if there is a twenty year statute of repose on the manufacture of aircraft, a claim cannot be filed against the manufacturer more than twenty years after the date of manufacture, even if a design or manufacturing defect is responsible for a later accident.
Different states have different statutes of repose for different situations. For example, AZ has an 8 year statute of repose for claims against many real estate development claims.