Defences to Negligence Flashcards
What is the most common defence to negligence?
That the plaintiff put themselves at risk/contributory negligence.
What is the general rule with contributory negligence?
It is an all or nothing argument. If the plaintiff had even a minor failure to exercise reasonable care themselves, this will usually bar any recovery
What is the alternative to contributory negligence?
Comparative fault - this will reduce the amount of damages available to the plaintiff, but not completely bar recovery
What is an intervening event?
A potential break in the chain of causation. If the event is removed enough form the defendant’s actions, it can undermine the proximate cause element
What are the 5 things court considers when investigation an allocation of fault?
- Whether the conduct was inadvertent or involved an awareness of the danger
- How great a risk was created by the conduct
- The signifigence of what was sougt by the conduct
- The capacity of the actors
- Any extenuating factos that might require the actor to proceed with haste
- In Tessel v Porter a different approach of apportionment is determining the “cost” to the planitff if they had avoided the negligent behavior
- Generally though apportiotment percentages are a matter for the fact finder which is based upon creditable evidence in relationship to te elemtns of negligence proven at trial
Under what circumstances would plaintiff negligence not be considered?
If the defendant (ex. an employer) is in a position of power over the planitff, or if the plaintiff is a minor or mentally incompetent
Describe the rescue doctrine
that one who sees a person in imminent danger caused by the negligence of another cannot be charged with contributory negligence when the actor attemtps a rescue – unless the rescuer acts recklessly
Joe sees Allen sinking in quicksand. Taking his trusty grappling hook, he manages to hook onto Allen’s leg, and ties the other end of the rope to his pickup truck. The truck pulls Allen out of the quicksand, but not before flipping Allen upside down, and dragging his face through several feet of dirt and mud, which cause him considerable injury. Can Joe rely on the rescuer doctrine?
Probably not because the method of rescue was reckless
Can the plaintiff be successful if the plaintiff was engaged in illegal activity at the time of the injury?
it depends. It used to be that any crime by the parties at the time of injury would bar any recovery but recently most jurisdictions have rolled that back to serius crimes, such as murder only
What are the 3 approaches to comparative fault?
Approaches to comperitive fault
1. Pure approach – any contributory negelence results in no recovery
2. Modifed greater than 51% - if plantiff injury is greater than 50% then they are barred
3. Modifed as great as 50%
Does negligence per se only apply to statutes?
No. It can apply to any kind of law/regulation that defines the applicable duty of care
When should the court not use comparative fault?
If there is a divisible harm or an intervening cause
What are the 2 types of assumption of risk? Give examples
- Express as suction of risk - waivers
- implied assumption of risk, obvious but unsaid notice
Do waivers have legal weight?
Generally not, if the injured party was in a weaker position than the drafter of the wavier
what are the 3 principles of waivers?
- There will be express assumction clauses that will always be void as a matter of ublic policy
- There will be other clauses that can be voidable based upon the condition of the person entering into the contract
- The language of the express assumpction of risk will always be strictly construed against the drafter
What is the difference between implied assumption of risk and contributory negligence?
implied assumption of risk means that the plaintiff is aware of the danger and proceeds anyway whereas contributory negligence means that the plaintiff was unaware of the danger, but ought to have been aware of it
If John joins a hockey team and gets body checked so hard his teeth fall out, can he sue the player that body checked him?
Probably not because body checking is in the rules of the sport. So long as the injury is inflicted in a way that is within the rules of the sport, the courts generally infer that the plaintiff implicitly assumed the risk by deciding to play the game.
When does the clock on a statute of limitations start? When does it end?
it starts (generally) from the moment the plaintiff discovered, or ought to have discovered their claim. it ends upon the day that the claim is filed
What if a tort arises out of a series of actions? When does the SOL start ticking?
From when the identifiable harm is inflicted
What are the main reasons for tolling an SOL?
Age and mental abilities
Suppose Danny is negligently injured by Paul. The next day, Danny is hit by a car and falls into a coma. Is the SOL tolled?
No. Tolling only happens if a mental incapacity was present at the time of the injury, not afterwards
What is a statute of repose?
It basically replaces the regular SOL for specific protected activities. Ex. for constructing a building, there is a 10 year warranty. After that, no suits can be filed about the construction of the building
What are the two types of special duty rules?
- Carriers and guest statutes elecating and lowering duties
- Guest stutes protect visotrs to the jurisdiction by lowering the standard of care
- Ex. in Alabama its wilful or wanton misconduct – moves to a subjective state of mind
- Some places have a higher standard than reasonable person. Ex. strict liability. This usually affects insurance. Also employers can be held to a higher standard than reasonable person to ensure emplpyer safty
- On exam, don’t write “defendant had a duty to ensure”. Instad its’ ‘reaosanble care”
- “high degree of care” was an old common law rule imposing higher dutues upon common carriers and housing operators because they have more control over dangers and people were putting them into the hands of them. Most jurisdiciotns don’t follow this anymore
- - Landowners and property possessors
- These revolve around the power to exclude – these people have the duty
- Duties are tied to if the person ha permission to be on the property
- If someone has no permission, then there is a lower duty of care
o Tresspassers are without permission – duty to avoid wilful/wanton harm
Ex. defendant owned a horsefarm. Some ids snuck onto the horsefarm and was kicked by a horse. Coult held to treat the children as trespassers
o Liscensees have permission to be on remeises. In some jurisdicitons, there is a limited duty to warn of dangers
o Invitees – make the possessor owe the most duties. Generally applies to publically acsessible spaces. Against unreasonable risk of danger (possessor knows or should know of danger), duty to inspect, duty to eliminate or warn
