Contributory, AOR, Exculpatory Contracts and Comparative Flashcards
Butterfield (1809): 1st Contrib. Case: Beginning Standard for Contributory Negligence
Court held, Horse rider contributory negligent b/c he rode too fast to avoid poll in road put there by farmer.
Davies (1842): Contrib Evolving to protect P from losing all recovery = Last Clear Chance Doctrine
Court, “Helps the P (Donkey Owner) in saying that the D had an opportunity to avoid the harm but missed their last chance too avoid it.
Last Clear Chance Doctrine: Helpless Plaintiff
(a) Timing thing
1. Where the P does something that puts the P in a position of peril.
2. If the D has a chance to avoid the helpless P, we want our laws to encourage him to avoid the P or take care and avoid the P
Last Clear Chance Doctrine: Inattentive Plaintiff
Person sees that the P is not paying attention and puts himself in peril we want to encourage the D to use care and avoid him
Meistrich (‘59): Primary or Secondary = Where’s the BOP in AOR cases?
Court says AOR issue at hand is Secondary Sense (BOP on D) = Phase of Contrib. Neg, total issue being;
Whether reasonably prudent man in exercise of due care (a) would have incurred the known risk and (b) if he would, whether such a person in the light of this would have conducted himself in the manner which the P did.
Primary Sense (BOP on P)
Proactive claim by D that he was not negligent (either owed no duty or did not breach any duty). i.e.-Hackbart
Secondary Sense (BOP on D)
Affirmative defense to an established breach of duty of D, but did P also contribute negligence by moving forward anyways.
ROT (3rd #2): Exculpatory Contract
Whether an exculpatory contract is unenforceable depends on;
(a) Nature and relationship of the parties, including
(b) Whether one party is in a position of dependency;
(c) Nature of the conduct or service provided by the party seeking exculpation, including
1. Whether conduct or service is in the “public interest”;
2. Extent of the exculpation;
3. Economic setting of transaction;
4. Whether it is a standardized contract of adhesion; and
5. Whether the party seeking it was willing to provide greater protection against tortious conduct for reasonable, additional fee
Stelluti (‘10): Gym Liability Waiver and the 4 factor test in determining validity of exculpatory contract
Exculpatory enforced if;
1. Does not adversely affect public interest
2. Exculpatory Party is not under legal duty to perform
3. Does not involve a public utility or common carrier
4. Does not grow out of unequal bargaining or unconscionable
THRESHOLD MATTER: Exculp. Agreement decision of party giving up rights was made voluntarily, intelligently and with full knowledge of legal consequences.
Comparative Negligence
P’s negligence will be used to decrease the amount they can recover.
ROT (3rd #24): Intentional Wrongdoing of Third Party- Joining the big pocket when they might have a duty of care
Third Party (Dept. Store) who is liable to protect P (Customer) from the specific risk of intentional tort (Mugging in Parking Lot) is jointly and severally liable for the share of compar. Resp. to the intentional tortfeasor (Mugger) and share of compar. Resp. assigned to P
Type of P Fault
When applying P’s fault in determining recovery;
- Some say it reduces recoverable damages
- Some say it bars recoverable damages
- Some apply the comparative division of blame form.
- Some just ignore it and it doesn’t effect recoverable damages
Basis of Allocation of Damages btwn P and D
- Pure, 2. Modified I, 3. Modified II and 4. Threshold
Pure Comparative Fault
P’s recovery is reduced, but never eliminated solely because of P’s negligence
Modified Comparative I: 50% and up = No Recovery
If P’s negligence equals or exceeds D’s negligence = Cannot Recover At All
Modified Comparative II: Only If P Fault > D Fault = No Recovery
Only If P’s negligence exceeds D’s = Cannot Recover At All
Threshold Comparative
If P’s negligence has not reached the cut-off point, the plaintiff can collect.
Note: Compare the P’s fault to all the other people involved in it and if P’s is less = Can Recover
Several Liability (Proportional Liability)
- Favorable to the Institutional Defendant.
2. Only responsible for your own apportioned share and not others
Joint Liability (Combining Defendants)
Institutional D’s get roped into lawsuits for the deeper pocket and has to pay full damages.
Contribution
Going after other D in the original suit to recover the portion you overpaid.
Indemnity
Employee is full at fault, but employer has to pay, he can go after employee to get that money back.
Last Clear Chance (Now used as a potential means to determine % of fault)
Supports argument of why more proportion should be moved to the D’s side
AOR under Comparative Fault Jurisdictions
- Primary = No breach of duty, no need to apportion % of fault to me.
- Secondary = P still went ahead voluntarily so let’s increase % of fault.
Pro Rata Under Comparative Fault Juris.
If one of the tortfeasors settles out, they take out that % and continue to get rest.
Immunity of one of the D’s
His % of fault flows to the other defendant(s) (similar to crime diplomatic immunity).
