Affirmative Defenses
The old, harsh rule where a plaintiff who was even 1% at fault recovered nothing.
What is Contributory Negligence?
The general principle of strict liability, colloquially known as this.
What is "you break it, you buy it"?
An "unreasonable" interference with a plaintiff's use and enjoyment of land.
What is Nuisance?
Unlike negligence cases, these are not awarded for simple negligence and require intentional or reckless conduct.
What are punitive damages?
An intentional nuisance that occurs when a defendant is put on notice of a nuisance and refuses to abate it
What is the Continuing Invasion Doctrine?
The modern approach that reduces a plaintiff's recovery by their percentage of fault.
What is Comparative Negligence?
An owner of these animals is strictly liable if they hurt someone, regardless of the care taken.
What are wild animals?
Under the "Coming to the Nuisance" doctrine, the fact that a plaintiff moved to an area with a pre-existing nuisance is relevant but not this.
What is dispositive (or conclusive)?
According to McDougald v. Garber, a plaintiff who lacks this cannot recover for pain and suffering or loss of enjoyment of life.
What is conscious awareness?
A trespass to chattels that is so severe the plaintiff can choose to demand the item's fair market value instead of its return.
What is Conversion?
A type of assumption of risk where the defendant was not negligent in the first place, as seen in the "The Flopper" ride case, Murphy v. Steeplechase.
What is Implied Primary Assumption of Risk?
An owner of a domesticated pet is only strictly liable if they know or have reason to know the pet has this.
What is a dangerous predisposition?
The "Live and Let Live" doctrine states that we don't get to sue our neighbors for these.
What are micronuisances?
This argumentative tool proposes translating pain and suffering into money by valuing each second, minute, or hour of suffering.
What is the "Per Diem" Rule?
A factor in nuisance cases that considers that what is unreasonable in one neighborhood might be reasonable in another.
What is the Locality Factor?
The most common form of comparative negligence in the US (and Texas), where a plaintiff can recover as long as their fault is not more than 50%
What is Majority Modified Comparative Negligence?
Activities like this are subject to strict liability because they impose a non-reciprocal risk on the community.
What is dynamite blasting?
The approach from ยง826 of the Restatement, which may award damages even if a nuisance's social benefit outweighs its harm, as long as compensation is feasible.
What is the Utilitarian approach?
The most important of the three State Farm guideposts for determining if a punitive damages award is grossly excessive.
What is the Degree of Reprehensibility?
The reason the eggshell skull rule did not apply in Rogers v. Elliot, the case of the man hypersensitive to church bells.
What is "because no tort was committed in the first place"?
A true affirmative defense where a negligent defendant argues the plaintiff voluntarily encountered a known danger they created.
What is Implied Secondary Assumption of Risk?
This wrongful interference with a plaintiff's right to exclusive possession of their property requires damage, deprivation for a significant time, or disruption of functionality.
What is Trespass to Chattels?
This case rejected a pure utilitarian approach and issued a conditional injunction, requiring a cement plant to pay permanent damages to neighbors to continue operating.
What is Boomer v. Atlantic Cement Co.?
These damages compensate for past, present, and future harm, providing closure but risking an inaccurate single valuation.
What are permanent damages?
An injunction granted by a court, but which the plaintiff must pay for by compensating the defendant for the cost of complying.
What is a Purchased Injunction?