Contributory and Comparative Fault

Question 1

What do you look to in evaluating the plaintiff’s conduct?

Answer 1

• contributory negligence

- assumption of risk

Question 2

Old Rule on Careless Victims

Answer 2

• contributory negligence as a complete bar to recovery

Question 3

Contributory Negligence - Elements

Answer 3

• deals w/ pl’s conduct
• want of ordinary care by plaintiff
• combined w/ negligence of def
  + being proximate cause of the accident

Question 4

Spier v. Barker - Facts and Holding

Answer 4

• 1974
• pl didn’t wear seatbelt + got into car accident (thrown out of car - ejection caused worst of her injuries)
• court says not really contributory negligence b/c her not wearing a seatbelt didn’t cause the accident, but jury can consider it in evaluating damages (failure to exercise due care to prevent or mitigate injury -> wouldn’t have been seriously injured if wearing seatbelt -> jury’s conclusion of no damages for pl okay)

Question 5

Spier v. Barker - General Rule

Answer 5

• if pl’s negligence exacerbates injuries but doesn’t cause the accident, it doesn’t qualify as contributory negligence but can be factored into damages calculation

Question 6

Last Clear Chance Doctrine

Answer 6

• permits recovery by plaintiff even if contributory negligence (in a classical system where it would normally bar recovery) if def had last clear chance to avoid injury to plaintiff

Question 7

Washington Transit v. Johnson

Answer 7

• 1997
• pedestrian committed suicide by jumping into path of oncoming train -> parents brought action against transit authority, said last clear chance to avoid her death
• negligent conduct of train conductor in failing to timely engage emergency brake to stop train
• court held transit authority could be liable under last clear chance doctrine

Question 8

Washington Transit - Elements of Last Clear Chance Doctrine

Answer 8

Pl must establish:

1) pl was in position of danger caused by negligence of both pl and def
2) pl is oblivious to the danger, or unable to extricate self from the danger
3) defendant is aware or should be aware of pl’s danger + inability to extricate self
4) def can avoid injuring pl after becoming aware of the danger but fails to do so

Question 9

Last Clear Chance and Assumption of Risk

Answer 9

• can’t invoke last clear chance to recover if your only defense is assumption of risk - would need to have a defense of contributory negligence either with the assumption of risk defense or c-neg on its own (assumption of risk on its own means no last chance)

Question 10

Purpose of Last Clear Chance

Answer 10

• formerly means of mitigating harsh results of pure contributory negligence system
• no longer necessary in comparative negligence systems, though may impact outcome as far as damages if def had last clear chance to avoid accident
• also justified by cheapest cost avoider argument - whoever can take the precaution at the lowest cost/burden should be responsible

Question 11

New Rule on Plaintiff’s Conduct

Answer 11

• comparative fault - not a complete bar, but impacts recovery

Question 12

Comparative Fault - General Idea

Answer 12

• defense of contributory negligence remains, but the result is not to bar any recovery BUT to reduce it corresponding to pl’s degree of fault
• adopted by statute or by court decision

Question 13

Blazovic v. Andrich

Answer 13

• dealt w/ case where pl’s injuries due to intentional conduct of some, but also pl and def negligence -> court said you had to factor the intentional actors into the comparison

Question 14

How do you compare fault?

Answer 14

• look to def + find negligence, then look to pl - use all the factors that were relevant in the negligence analysis as tools of comparison (utility + culpability analysis)

Relevant tools:

• reasonable care (size of risk, knowledge of risk, capacity to avoid risk)
• customary and professional standards
• negligence per se and res ipsa loquitor

Question 15

Comparative Negligence and Individual Capacities

Answer 15

• comparative negligence pays attention to individual capacities - unlike determination of what a reasonable person would do
• means subjective fault comes into play - you can use culpability analysis

Question 16

Types of Comparative Fault

Answer 16

• pure comparative fault

- partial comparative fault

Question 17

Pure Comparative Fault

Answer 17

• basic point is that htere is never a bar to recovery - regardless of degree of fault, injured party may recover
• however, percentage of fault will reduce recovery
• even if pl’s negligence is more than the negligence of def, pl is still able to recover

Question 18

Partial Comparative Fault

Answer 18

• if pl’s negligence is above a certain level (usually 50%), then pl is barred from recovery

Question 19

General Rule for Evaluating Fault Percentages

Answer 19

• in determining percentages of fault, should consider both nature of the conduct of each party at fault + the extent of the causal relation between the conduct and the damages claimed

Question 20

Factors Relevant for Comparing Fault According to the Uniform Comparative Fault Act

Answer 20

From Commissioners’ Comment on the section - for conduct of claimant and defendants, review:

• whether the conduct was mere inadvertence or engaged in w/ awareness of the danger involved
• magnitude of risk created by the conduct, including the number of persons endangered and the potential seriousness of the injury
• the significance of what the actor was seeking to attain by the conduct
• the actor’s superior or inferior capacities
• the particular circumstances, such as existence of emergency requiring a hasty decision

Question 21

Li v. Yellow Cab Co.

Answer 21

• 1975
• Li driving -> attempted to cross three lanes of oncoming traffic to enter service station -> hit by speeding Yellow Cab that ran a yellow light
• establishes California rule on comparative fault (+ overrules its doctrine of contributory negligence) - basically no bars to recovery (not even assumption of risk or willful misconduct) -> it all gets taken in for comparison