Contributory Negligence Flashcards
Butterfield v. Forrester
i. Facts:
1) P riding his horse violently through the city streets when came upon a log in the road placed by the D who was repairing his home. The P and horse crashed and were seriously injured, it was light enough for the P to see 100 yards out
ii. Issues:
1) Did manner in which the P rode his horse contribute to his injuries such that he should be barred from recovery?
iii. Holding:
1) Bayley
a) Manner in which the P rode the horse did not conform to ordinary care, the accident was entirely of his own fault
2) Ellenborough
a) One person being at fault will not dispense with another’s using ordinary care for himself
b) The obstruction was the D’s fault,
c) No want of ordinary care on the P’s fault
iv. Notes:
1) Hypo
a) Tommy is having some workers take some trash out of his house and they are putting it on the curb, and it kind of goes into the street. Is it NEG to do so?
i) No not necessarily
b) Does a driver have an obligation?
i) Yes, to drive with reasonable care
2) The facts say the P was grossly NEG, but the court holds him not engaged in ordinary care, and therefore doesn’t recover.
b. Beems v. Chicago
i. Facts:
1) P decedent a brakeman for the D died while attempting to uncouple the tender from two rail cars; train operators were operating the train cars at too fast a speed, something of which decedent warned, but that the operators ignored
ii. Issues:
1) Was Decedent necessarily contributory NEG in attempting to uncouple the tender from the cars when he know the cars were traveling at an unsafe speed?
iii. Holding:
1) No, the P is contributory NEG as a matter of law only if injury occurred without the D’s NEG
2) Since the D was operating the train NEG, no contributory NEG.
iv. Notes
1) P had his foot stuck and couldn’t get it out. It didn’t matter if they were going to fast, because he still would have not been able to get out.
c. Gyerman v. United States Lines Co.
i. Facts
1) P employed by company working with the D, noticed the fishmeal packed by the D was not packed well and against custom. He warned the D the meal was packed in a dangerous manner, but the D did not do anything about it. The P was injured on the fourth day of working will ill packed fishmeal. P did not notify his supervisor thereby not taking advantage of the union contract
ii. Issue:
1) Does the P failure to notify his supervisor of dangers constitute contributory NEG sufficient to bar recovery?
iii. Holding
1) Trial Judge
a) D NEG for failing to stack sacks in the proper way, such failure was the proximate cause of the P’s injury, but P own NEG for failing to alert the correct supervisor, barred recovery
2) Supreme court
a) D definitely NEG in manner in which it stacked the sacks. So the only matter for a new trial is to determine if the P was NEG
i) D must meet burden of proof in establishing P’s NEG
ii) It failed to do so because even if he had reported the issue, the issue probably would not have ben resolved
iv. Notes
1) What is the reasonable behavior of a longshoreman? He could have got in trouble if he went to his supervisor, therefore it was probably not negligent for him not to report the issue.
2) The outcome would have been the same with or without his NEG therefore, Contributory NEG is irrelevant.
3) The appellate division found this round about way to come up with a decision for the P, which made contributory NEG irrelevant.
d. Osborne v. Salvation Army
i. Facts
1) Unemployed and destitute P residing in D’s group home when the D required the P to wash windows without proper equipment
ii. Holding
1) Court considered the P an employee within the scope of statute, then refused the D’s contributory NEG and assumption of risk defenses
iii. Notes
1) Is the statute a safety statute?
a) Yes
2) Does he fall within the protected class?
a) Yes, the court considers him an employee
3) Therefore the court fins Contributory NEG irrelevant.
O’Neill v. windshire-copland associates
i. Holding
1) P was drunk when he fell over a railing shorter than the regulation, Virginia statute barred him any recovery
ii. Notes
1) Safety statute regarding railings,
a) Was the statute intended to protect drunks?
b) Who is more likely to fall over the balcony?
c) If the individual falls under the class of people protected, the individual recovers.
h. Cavens v. Zaberdac
i. Holding
1) Doctor who treats patient, who has taken excessive medication is still liable for malpractice, and contributory NEG is not a defense that can be considered.
ii. Notes
i. Padula v. State
i. Facts
1) P, residents of the Iroquois narcotic rehab center, break into a the center printing room by NEG of the D’s guards and mix ditto fluid with tang to make a cocktail, the individuals consume it, one dies and one goes blind.
ii. Holding
1) Contributory NEG does not bar the P’s CoA, irresistible impulse does not break the causal chain. The Jury is to decide if the injured person was able to control his actions.
iii. Notes
1) If you look at BPL analysis, because it was a narcotics center the D should have had realized the likely hood of it happening would have taken adequate amounts of security which they did not.
2) P’s CONNEG in relation to their actions is irrelevant because they did not have the able minded agency to make that decision for themselves. How would a reasonable narcotic person act?
j. Raimondo v. Harding
i. Facts
1) P struck by D’s NEG speeding vehicle while P attempted to escape from a gang attack
ii. Holding
1) No contributory NEG if the P acts as a reasonable prudent person would under the same emergency situation
iii. Notes
1) No party can rely on an emergency which he created through his own NEG.
k. Smithwick v. Hall
i. Facts
1) P working on the D’s icehouse when the D warned the P not to walk on the east side platform because there was no railing and he could easily slip on the ice. The P ignored the warning and was injured when east portion of the ice house buckled
ii. Holding
1) P’s failure to heed the D’s warnings does not bar recovery due to CONNEG because the injury was not within the risk against which the D warned
iii. Notes
1) Gorris v. Scott (sheep overboard) is the same case, NEG (or in this case CONNEG) does not exist when the statute (or in this case instruction) was created for a different reason than for the injury that occurred.
l. Mahoney v. Beatman
i. Facts
1) D driving Nash in opposite direction of P when the D entered the P’s lane striking his roll’s hubcap worth $200; the P was driving too fast and was unable to control the car after the collision with the D and struck the tree and stone wall $5650
ii. Holding
1) The supreme court of CT
a) D’s NEG was the proximate cause to the P’s entire damages. There is a difference between causation and coincidence.
iii. Notes
1) Two different damages the hub cab and the crash.
2) Would the court in Smithwick decide the same in this case?
a) No if you apply the Gorris v. Scott analysis, to this case, you would say that the harm of driving too fast was within the risk of crashing, and therefore the P would be contributorily NEG and they will not recover.
i) WAS “THE HARM WITHIN THE RISK”
ii) Mahoney is famous for not following the Gorris v. Scott analysis
m. LeRoy Fibre co. v. Chicago, Milwaukee and St. paul RR
i. Facts
1) P is in the flax growing business, he stored two rows of flax on his property 70 feet from the track. High wind carried a spark from the train which lit the flax on fire. The Jury found the D operating NEG but the P was CONNEG for stacking flax within 100 ft.
ii. Issue:
1) Was the P CONNEG in storing its seed on his own property but sufficiently near the D’s track tat a spark emitted from the D’s train could start a fire that consumed the P’s seed?
iii. Holding
1) McKenna
a) Did they or did they not set off a NEG spark?
i) The rights of one man in the use of his property cannot be limited by the wrongs of another
ii) Not concerned about P’s placement of flax in proximity to D’s rail
iii) If the spark was created in a NEG way then the P can recover, if not then they cannot
b) Was the spark set by the train NEG?
2) Holmes
a) P cannot recover if the stacks were so close to track that it is obviously likely to be set fire by a well-managed train
b) Jury was unable to decide between NEG and non-NEG operation of the train
iv. Notes
1) P’s ownership of the land near RR lessens because of the D’s easement interest in P’s land
2) LeRoy doesn’t realize that the RR owns part of the Leroy’s land because of the easement
a) In the easement, the RR has the right to the land as far as the sparks go
3) Holmes jury instruction
a) Do you believe it was likely that these flax stacks were likely to be set on fire by a non-NEG run train? If so you will find for the D
b) How would a train decide if a spark was NEG? IT CANNOT DO SO!
4) McKenna’s opinion is stupid.
r. Fuller v. Illinois
i. Facts
1) P decedent 70 yo riding a one horse wagon across the D’s tracks did not stop look or listen for the D’s train. The D train operated at a faster than usual speed. The Conductor saw the Decedent in plain view about 600 ft. from the crossing. D engineer state could stop within 200 feet. The decedent was instantly killed.
ii. Issues
1) If the D had a last clear chance to avoid injury, is he liable for not having done so even if the P may be CONNEG?
iii. Holding
1) McClain
a) D required to refrain from willful or wonton injury, Gross NEG and by the exercise of reasonable care and prudence avoid the consequences of the injured parties NEG
b) D had the last clear chance to avoid the accident and did not take it, therefore he is liable.
iv. Notes
1) P is a better dead man if he was helpless than inattentive.
2) Why was the train NEG?
a) Failing to apply the breaks?
i) NO
b) Blowing whistle?
i) Yes
c) Apply 2-480, because he is inattentive.
3) What would happen if the mechanics had not fixed the breaks properly but the engineer did hit the breaks in time?
a) The inattentive P would not have met the requirements of 2_480 c. because the Train did try to prevent the issue.
t. SS 2-479 Last clear chance Helpless plaintiff
i. Rule
1) A P who has NEG subjected himself to risk may still recover if before the harm,
a) The P is unable to avoid the harm even with reasonable care; and
b) The D is NEG in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm when he
i) Knows of the P’s situation; or
ii) Would discover the situation if he were to exercise reasonable care.
u. SS 2-480 Last clear chance Inattentive Plaintiff
i. Rule
1) A P who by the exercise of reasonable vigilance could discover the danger created by the D’s NEG in time to avoid the harm to him can recover if but only if the D
a) Knows of the P’s situation; and
b) Realizes or has reason to realize that the P is inattentive and therefore unlikely to discover the peril in time to avoid the harm; and
c) Thereafter is NEG in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm
v. Kumkumian v. City of NY
i. Facts
1) P decedent on the Ds subway tracks when struck by the D’s subway which stopped three times due to brake tripping mechanism. The D’s agents only investigated the stopping after the third trip at which point the found the decedents body actually steaming on the tracks
ii. Issue
1) Is the D liable under the last clear chance doctrine
iii. Holding
1) Proper for the jury to decide the case whether the D’s conduct could be considered gross NEG
2) Possible D would have found D after first or second trip and saved his life?
iv. Notes
1) Arguendo
a) P was killed on the first time he was hit, how do we analyze the issue?
i) We do not have enough info, so we have to look at both
A. inattentive?
First. The D did not know of the P situation, therefore no recovery
B. Helpless?
First. The D did not know of the P situation therefore no recovery
b) P was killed on the 3rd time, he was hit.
i) He was already hit so he was helpless
A. The P is helpless
B. The D is Neg because he did not utilize reasonable care because he should have discovered the situation if had used exercise reasonable care.
