Contributory Negligence, Mitigation, and Assumption of Risk

Question 1

When a plaintiff fails to exercise due care, there are three ways court go about apportioning fault, what are they?

Answer 1

1. Pure Contributory Negligence
2. Pure Comparative Negligence
3. Modified Comparative Negligence

Question 2

What is pure contributory negligence?

Answer 2

Essentially, if a plaintiff is found to be even 1% negligent, they are completely barred from recovery

Question 3

What is pure comparative negligence?

Answer 3

The court will apportion damages between a defendant and a plaintiff, and between multiple defendants simply based on contribution. If a plaintiff is 80% negligent, they will only be able to collect 20% of their damages

Question 4

What are the two types of modified comparative negligence?

Answer 4

1. The 50% rule, where plaintiffs can only recover if their negligence does not exceed 50%
2. The 49% rule, where plaintiffs can only recover if their negligence is less than the defendants negligence

Question 5

What is the erosion principle with regards to pure contributory negligence?

Answer 5

Over the years, courts have generally carved out certain exceptions to ameliorate the harsh effects of a pure contributory negligence regime

Judicial devices utilized:

1. Make the defendants have the burden of proving that a plaintiff was negligent
2. Leave the question of contributory negligence to the jury
3. Some courts will only bar recovery if the plaintiff’s negligence was a substantial factor in bringing about the result (P’s negligence must be a factual cause)
4. Some courts will only consider whether plaintiffs negligence proximately caused the injury, looking at the risks that plaintiff exposed themselves to (foreseeability, proximate cause)
5. Some courts will have dual standards of care for plaintiffs versus defendants

Question 6

What is the last clear chance rule?

Answer 6

To ameliorate the harshness of classic 100% contributory negligence, courts created an exception in cases where the defendant had the last clear chance to avoid harm to a careless plaintiff. This has been widely abandoned since the adoption of comparative principles.

Question 7

When is contributory negligence not applicable?

Answer 7

1. Contributory negligence is not a defense to an intentional tort
2. Contributory negligence may be used as a defense in cases where a defendant is negligent per se, except where the statute explicitly abolishes the defense or the statute was intended to protect a plaintiff who cant protect themselves (child labor laws)

Question 8

What is the seat-belt defense controversy?

Answer 8

Some states bar the introduction of evidence of seat-belt non-use with regards to contributory negligence

Question 9

What is the doctrine of avoidable consequences?

Answer 9

Essentially, after an injury, a plaintiff has a duty in tort law to make sure any further preventable damage is mitigated. If the plaintiff can not recover any post-injury damages they could have reasonably prevented.

Question 10

Does a plaintiff have a duty to mitigate possible future damages before an accident occurs?

Answer 10

Possibly, but it depends on the jurisdiction. Statutes will determine this, such as law regarding seatbelts that states: “a plaintiff’s damages may be reduced by a certain percentage if they aren’t wearing a seat belt during a collision”

Question 11

What is a plaintiff’s express assumption of risk?

Answer 11

Plaintiff explicitly agrees not to hold the defendant liable for certain harms

Question 12

When is an express assumption of risk in the form of an exculpatory clause not enforceable on the grounds of public policy?

Answer 12

1. When the party protected by the clause intentionally causes harm or engages in acts of negligence
2. When the bargain power of one party to the contract is so grossly unequal so as to put that party at the mercy of the other’s negligence
3. When the transaction involves the public interests - consider the tunkel factors

Question 13

What are the Tunkel factors?

Answer 13

1. Whether the defendant provides an important or necessary service
2. Whether the defendant’s activity was intentional or wanton
3. Whether the contract is one of adhesion (take it or leave it)
4. Whether the plaintiff has other options

Question 14

What is an implied assumption of risk?

Answer 14

1. Plaintiff has a subjective appreciation of the danger, understands the magnitude of the risk
2. Plaintiff freely and voluntary confronted the danger

However, there is no implied consent where the defendant has left the plaintiff with no reasonable alterative but to assume the risk

The defendant has the burden of showing that a safe alternative existed

Question 15

How does the court deal with implied assumption of risk in Rush v. Commercial Realty

Answer 15

The plaintiff rented a home with an outhouse and no indoor bathroom, went to use it and fell through the floor, court held that he did not impliedly assume the risk, defendants conduct – leaving out an indoor bathroom – left the plaintiff with no other choice but to use the outhouse

Question 16

How does assumption of risk interact with contributory negligence?

Answer 16

Assumption of risk (voluntarily encountering a subjectively known risk) vs. contributory negligence (encountering danger which the plaintiff was subjectively unaware of but “should” have been apparent with due care)

Plaintiff’s assumption of risk might also constitute comparative fault in some jurisdictions and may not vitiate liability for the defendant

While an express assumption of risk is often unenforceable regarding a defendant’s “gross” negligence, plaintiff still might be comparatively at fault