Chapter Eight

Question 1

What is the difference between contributory negligence, comparative negligence, and assumption of risk?

Answer 1

The defense of contributory negligence shifts the loss from the defendant to the plaintiff by completely barring the negligence plaintiff from recovery. The plaintiff is barred even though the defendant was negligent and, in most cases, was more negligent than the plaintiff. Comparative negligence was created as an alternative to the all-or-nothing approach of the contributory negligence system and provides that the plaintiff’s recovery should be reduced in direct proportion to the plaintiff’s percentage of contribution to his or her own injuries. A plaintiff who volunteers to take the chance that harm will occur is said to have assumed the risk.

Question 2

What is the rationale for contributory negligence?

Answer 2

The rationale for this judge-created rule stems from the notion that negligent plaintiffs should be punished for failing to protect their own safety. Additionally, some courts have argued that the plaintiff’s negligence becomes the proximate cause of his or her injuries, thus removing the defendant as the proximate cause.

Question 3

What have some courts done to mitigate the harshness of the contributory negligence doctrine?

Answer 3

In most jurisdictions the question of contributory negligence is left to the jury, who have an opportunity to apply a comparative negligence standard in those cases in which application of a contributory negligence standard would lead to unfair results.

Question 4

What is the last-clear-chance doctrine?

Answer 4

Under this doctrine, if the defendant has an opportunity that is unavailable to the plaintiff to prevent the harm that occurs and does not take advantage of it, the defendant will remain liable despite the plaintiff’s contributory negligence. In essence the defendant’s failure to take advantage of an opportunity to prevent the harm negates, or wipes out, the plaintiff’s contributory negligence.

Question 5

What variations to this doctrine exist?

Answer 5

i. Plaintiff is helpless and defendant discovers danger but negligently fails to avoid it.
ii. Plaintiff is helpless and defendant fails to discover danger because he or she is inattentive.
iii. Plaintiff is inattentive but not helpless and defendant discovers danger but negligently fails to avoid it.
iv. Plaintiff is inattentive but not helpless and defendant fails to discover danger because he or she is inattentive.
v. Defendant is unable to avoid harming the plaintiff (even though the defendant is aware of the danger) because of the defendant’s earlier negligence (first-clearchance doctrine).
vi. What is the first-clear-chance doctrine? Defendant is unable to avoid harming the plaintiff (even though the defendant is aware of the danger) because of the defendant’s earlier negligence. b. When is the last-clear-chance doctrine not applicable? The doctrine is not applicable when the plaintiff is helpless and the defendant negligently fails to discover the plaintiff’s situation because the defendant is inattentive. It is also not applicable if both the defendant and the plaintiff are inattentive so that neither discovers the danger.

Question 6

When is contributory negligence not a defense?

Answer 6

Contributory negligence cannot be used as a defense to an intentional tort or if the defendant’s conduct was “willful and wanton” or “reckless,” unless the plaintiff’s conduct was also willful and wanton or reckless.

Question 7

What is the justification for the development of the comparative-negligence standard?

Answer 7

Comparative negligence was created as an alternative to the all-or-nothing approach of the contributory negligence system and provides that the plaintiff’s recovery should be reduced in direct proportion to the plaintiff’s percentage of contribution to his or her own injuries.

Question 8

What is the difference between pure comparative negligence and the 50 percent approach?

Answer 8

Under a pure comparative negligence system a plaintiff can still recover 20 percent of his or her damages if the plaintiff is found to be 80 percent negligent by the jury. Under the 50 percent approach, the plaintiff would be precluded from recovering any damages because the plaintiff was more than 50 percent responsible for his or her own injuries.

Question 9

What is the difference between the “not greater than” and “not as great as” approach?

Answer 9

Under the “not as great as” approach the plaintiff’s claim is barred as soon as the plaintiff’s negligence is as great as the defendant’s negligence; under the “not greater than” approach the plaintiff is barred only when the plaintiff’s negligence is greater than the defendant’s.

Question 10

Why is this difference significant? (in the not greater than and not as great as approach)

Answer 10

The reason this subtle distinction can give rise to tremendous differences in outcome results from the tendency of juries to assign a fifty-fifty apportionment in terms of blame. In a fifty-fifty apportionment the plaintiff would be barred under the “not as great as” approach (because the plaintiff’s negligence would be as great as the defendant’s) but would not be barred under the “not greater than” approach (because the plaintiff’s negligence would not be greater than the defendant’s).

Question 11

How have states that have adopted comparative negligence treated the last-clear-chance doctrine?

Answer 11

Some states have retained the last-clear-chance doctrine as a distinct doctrine, either reasoning that the last-clear-chance doctrine is not incompatible with comparative negligence, or not questioning the compatibility.

Question 12

Are contributory negligence and comparative negligence a defense to intentional torts?

Answer 12

Comparative negligence generally is not used in reference to intentional torts to reduce the plaintiff’s damages; thus, a defendant who commits an intentional tort may not use the argument that the plaintiff contributed to his or her own injuries.

Question 13

Are contributory negligence and comparative negligence a defense to reckless or willful and wanton conduct?

Answer 13

The defendant whose conduct is willful and wanton or reckless may still rely on the defense of comparative negligence to reduce the plaintiff’s recovery. Most states adopting the comparative negligence approach have allowed for the reduction of the negligent plaintiff’s recovery in cases in which the defendant violated a safety statute and was therefore negligent per se. Unlike contributory negligence, the same stance is taken even when the statute is designed to protect members of the plaintiff’s class and to place all responsibility on the defendant. Some states, however, have denied apportionment, arguing that it would defeat the purpose of the statute in question.

Question 14

Are contributory negligence and comparative negligence a defense to negligence per se?

Answer 14

Most states adopting the comparative-negligence approach have allowed for the reduction of the negligent plaintiff’s recovery in cases in which the defendant violated a safety statute and was therefore negligent per se. Unlike contributory negligence, the same stance is taken even when the statute is designed to protect members of the plaintiff’s class and to place all responsibility on the defendant. Some states, however, have denied apportionment, arguing that it would defeat the purpose of the statute in question.

Question 15

How does assumption of risk compare to contributory negligence?

Answer 15

Contributory negligence is characterized as “recklessness” and the plaintiff is compared to a reasonable person (objective standard). Contributory negligence is not a defense to reckless conduct and not generally a defense in strict liability cases. Assumption of risk is characterized as “adventurousness” and applies a subjective standard. (Did plaintiff understand the risk?) Assumption of risk is a defense to reckless conduct in strict liability cases.

Question 16

How have courts that have adopted comparative negligence treated assumption of risk?

Answer 16

Those states that have adopted comparative negligence statutes have, for all intents and purposes, removed assumption of risk as a separate defense and have merged it, in part at least, into the defense of comparative negligence. Therefore, a plaintiff who unreasonably places him- or herself in danger is considered negligent and the recovery is reduced although not barred completely. If the plaintiff’s conduct in exposing him- or herself to the danger is reasonable, the plaintiff is not considered negligent at all.

Question 17

What is required for a release to be enforceable?

Answer 17

The release must be expressed in “unmistakable language,” and it must be plainly and precisely apparent that the limitation of liability extends to negligence or other fault of the party attempting to shed his or her ordinary responsibility.

Question 18

What must be shown before a plaintiff will be considered to have impliedly assumed the risk?

Answer 18

The plaintiff must actually be aware of the particular risk in question.

Question 19

How do the courts treat professional athletes differently from amateur athletes when it comes to impliedly assuming the risk?

Answer 19

In sports and recreation the inherent risks involved are known by the parties, who are free to either engage in the activity or not. In some jurisdictions, as long as the risks are fully understood or perfectly obvious, the plaintiff will be deemed to have assumed the risk. Professional athletes are assumed to be more cognizant of the risks and more willing to accept them (because of the monies involved) than amateurs.

Question 20

In what respect is immunity a complete defense?

Answer 20

Immunity is a complete defense to tort liability in that it completely absolves the defendant of all liability. It is granted to those entities that bear a particular relationship to the plaintiff, such as a spouse, or who occupy a special status, such as that of a governmental or charitable entity.

Question 21

What is the rationale underlying sovereign immunity?

Answer 21

The rationale for sovereign immunity is that a public official must be given free rein to carry out the difficult tasks of his or her office unfettered by the fear of being sued. Furthermore, by granting immunity, the government ensures that competent people are not deterred from seeking public office out of the fear of being sued.

Question 22

Why was the Federal Tort Claims Act (FTCA) passed?

Answer 22

The fear of being inundated by thousands of private bills upon the return of servicemen after World War II prompted Congress in 1946 to pass the Federal Tort Claims Act (FTCA).

Question 23

What does the FTCA provide?

Answer 23

In general the FTCA provides that money damages can be recovered against the United States “for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant” (28 U.S.C. § 1346[B]).

Question 24

What exceptions limit the scope of this act?

Answer 24

Several exceptions limit the scope of the FTCA. The United States is not liable, for example, for intentional torts such as assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution, except when they are committed by federal law enforcement officials. Questions regarding interpretation often arise in determining what types of claims should and should not be permitted under the FTCA.

Question 25

or what reasons have many states abolished state sovereign immunity?

Answer 25

Many states that have abolished governmental immunity have done so because of the availability of public liability insurance. Some have viewed taking responsibility for the torts of public employees as being part of the cost of administering a government.

Question 26

What immunities do states typically preserve?

Answer 26

Judges and legislators are almost never liable for their acts. Similarly, the making of “basic policy decisions” rarely results in liability

Question 27

What kind of statutory immunity is often created by states, and what are the basic provisions of these statutes?

Answer 27

States usually replace complete sovereign immunity with a statutory form of immunity, through some form of state tort claims act. Statutory limits are often placed on damages, thereby limiting plaintiffs’ recovery. Many statutes require any person claiming to have been injured as a result of tortious conduct by a public entity or employee to file a written notice of the claim within a designated time period after the date of discovering the injury. Failure to comply with such notice requirements may forever bar any claim.

Question 28

What kinds of functions of local government are usually protected by immunity?

Answer 28

Local governmental entities, such as police and fire departments, school systems, and public hospitals have traditionally enjoyed at least partial immunity.

Question 29

Give an example of a function that is usually protected by immunity and of one that generally is not.

Answer 29

Governmental functions are subject to immunity whereas proprietary functions are not.

Question 30

Which officials are granted immunity, and under what conditions is this immunity granted?

Answer 30

If the employee is a judge, legislator, or makes “basic policy decisions” the employee is almost never liable for his or her acts.