Misc To Know Flashcards
AFFIRMATIVE DEFENSES TO NEGLIGENCE
CONDUCT OF PLAINTIFF THAT MAY CONSTITUTE A DEFENSE EVEN WHEN DEFENDANT MAY BE LIABLE OF NEGLIGENCE
Contributory Negligence by Plaintiff
conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection and is a legally contributing cause to his injury
o Plaintiff’s negligence must be both cause in fact and proximate cause
Plaintiff’s negligence must still be a harm within the risk
o Not a defense to intentional torts and generally not to recklessness
Exception to Last Clear Chance Doctrine
the party who has the last clear chance of avoiding that accident, notwithstanding the negligence of the other, is considered solely responsible
this doctrine will bar a defendant from raising the defense of contributory negligence
when the plaintiff, through his own negligence, has gotten into a helpless position and the defendant, after becoming aware of the plaintiff’s helpless position, fails to exercise reasonable care to avoid injuring the plaintiff, the plaintiff can recover all damages
this is abolished in comparative negligence jurisdictions because there is no need when damages can be apportioned
Comparative Negligence
used by most states rather than contributory negligence
o What is it? Apportions plaintiff’s damages relative to his negligent contribution to the accident
Plaintiff and defendant’s negligence is compared
Plaintiff reward is reduced depending on their % of negligence
Assesses liability in proportion to fault. Plaintiff’s recovery is the amount that the defendant is responsible for his injury
Modified Form Negligence
apportions liability based on fault up to the point where the plaintiff’s negligence is equal to or greater than the defendant’s negligence
Greater Fault Bar System- plaintiff may only recover if their negligence is less than or equal to the defendant’s (plaintiff’s negligence has to be < 50%)
• Plaintiff is not barred if 50%, barred at 51%
Equal Fault Bar System- plaintiff may only recover if their negligence is less than the defendant’s (plaintiff’s negligence < 50%)
• Plaintiff is barred if her % negligence equals or exceeds defendants (50% bar)
Examples of the Systems in Practice:
• A, who is 10% negligent, suffers $10,000; B, who is 90% negligent, suffers no damage
o Pure: A recovers $9,000 (90% of her damages)
o EFB and GFB: A recovers $9,000
• A, who is 30% negligent, suffers $2,000; B, who is 70% negligent, suffers $8,000
o Pure: A recovers $1,400 (70% of damages), B recovers $2,400 (30% of damages)
o EFB and GFB: A recovers $1,400; B recovers nothing
• A and B are equally negligent; A suffers $10,000 damages, while B suffers no damage
o Pure: A recovers $5,000
o GFB: A recovers $5,000
o EFG: A recovers $0
Modified system problem- a 1% difference can have an enormous effect
• Example: If P is 50% responsible, P can recover under GFB, but not under EFB
Traditional Assumption of Risk Elements
(a) Plaintiff must know of specific risk
(b) Plaintiff must understand/appreciate the specific risk that causes the harm.
(c) Plaintiff must voluntarily encounter risk (Marshall v. Ranne where P was hurt by D’s boar but risk was not voluntary b/c P either had to face the danger or surrender his rights to leave his home)
(d) (Under all the circumstances, plaintiff consents to affirmative risk) – Only some courts hold this
Implied Assumption of Risk
is a defense that bars recovery when the plaintiff knows of the risk, understands and appreciates the nature of the risk, and voluntarily encounters the risk
Primary Assumption of Risk
• Actually, not an affirmative defense, but a failure of plaintiff to make out his prima facie case of negligence because the defendant either (a) had no duty or (b) did not breach the duty he had
• A plaintiff who cannot prove that the defendant owed her a duty of care or breached that duty cannot recover
• Plaintiff engages in an activity with a knowledge that it entails certain risks by its inherent nature and that it cannot be conducted without risk of some injury
o EG: Horseback riding, ice skating rink, amusement park ride, rock climbing
• By choosing to engage in inherently risky activity, they assume the risk of injury, D not liable or negligent
• It is accurate to say P assumed the risk whether or not he was at fault.
• If P can prove D owed and breached a duty of care, then P is said to “negate” primary assumption of risk, and P potentially can recover.
Secondary Assumption of Risk
• The true affirmative defense where defendant has been negligent by breaching the standard of due care by creating an unreasonable risk, and plaintiff has either made an unreasonable or reasonable choice to encounter the risk, anyway
o Ex: D gives P his car, she notices car swerves to left while braking, drives anyway, crashes (D negligent for lending messed up car, P negligent for driving in face of obvious malfunction)
o D waxes part of floor while open for biz, P sees wet floor, but anxious to get food, rushes across the floor and falls
• A plaintiff who has proved that the defendant breached a duty owed, but knowingly and voluntarily encountered the risk created cannot recover
• It is incorrect to say P assumed the risk whether or not he was at fault.
• If P does prove that the duty was owe and breached, this defense is still available.
• D’s argument: P’s free choice to encounter the negligently created risk should bar her
o Policy: Individualistic common law held P, by knowingly encountering a danger created by D’s neg., “assumed the risk” of resulting injury and thus barred
Implied Assumption of Risk Elements
o Elements for the Traditional Approach: (subjectively assessed, relative to the specific plaintiff)
The plaintiff must know of the risk
The plaintiff must appreciate and understand the risk
The plaintiff must have knowledge of the specific risk involved
The plaintiff’s engagement in the activity must be voluntary
Strict Liability Factors to be Balance
Existence of a high degree of risk of harm to the person, land, or chattels of others
Likelihood that the harm that results will be great
Inability to eliminate the risk by the exercise of reasonable care
Extent to which the activity is not a matter or common usage
• Common usage of activities has been broadened, resulting in less strict liability
Inappropriateness of the activity to the place where it is carried on
Extent to which its value to the community is outweighed by its dangerous attributes
Defenses to Strict Liability
o Assumption of Risk: The plaintiff’s assumption of the risk of harm from an abnormally dangerous activity bars his recovery for the harm.
o Proximate Cause: This strict liability is limited to the kind of harm which makes the activity abnormally dangerous.
o Contributory Negligence: Generally, not a defense to strict liability.
However, there is a defense to strict liability if the plaintiff knowingly and unreasonably subjected himself to the risk of harm from the activity.
o Comparative Responsibility: If the plaintiff has been contributorily negligent in failing to take reasonable precautions, the plaintiff’s recovery in a strict liability claim for physical or emotional harm is reduced in accordance with the share of comparative responsibility assigned to the plaintiff.
Frolic vs Detour Test
o There is vicarious liability for brief detours taken from work
Example: Deliveryman commits a tort while traveling a few blocks from his route
o There is no vicarious liability for “frolicking”
Example: Deliveryman commits a tort while traveling several miles from his route
Vicarious Liability Foreseeability Approach
Vicarious liability should be imposed on the master when the risks imposed by the servants were foreseeable.
