Defense to Negligence

Question 1

Contributory Negligence 3 Step Analysis

Answer 1

• Is P at fault
• How much is P at fault
• What is the effect of P being at fault

Question 2

Is P at fault need to prove

Answer 2

• Breach
• C/F
• Proximate cause (foreseeability)

Question 3

How much is P at fault

Answer 3

• Compare P and D’s levels of unreasonableness, who breached more, which was more unreasonable
  - Not who cause more of the harm
• Doesn’t matter if traditional rule applies because if at fault at all no recovery

Question 4

What is the effect of P being at fault

Answer 4

• Traditional Rule: If P is at all at fault (acted even a tiny bit unreasonable), P is barred from recovering damages
• Comparative Fault: Depends on the three options

Question 5

Comparative Fault Options

Answer 5

• Pure: recovery reduced by P’s % of fault
• 49 Modified: recovery reduced by P’s percentage of fault or bar; have to be 49% or less to recover
• 50 Modified: recovery reduced by P’s percentage of fault or bar; have to be 50% or less to recover

Question 6

Expressed Assumption of the Risk

Answer 6

If P expressly assumes the risk, they are barred from recovering damages, including under comparative fault
- Cannot assume the risk of medmal in expressed contracts

Question 7

Elements of Implied Assumption of the Risk

Answer 7

• P knows and appreciates the risk
• P voluntarily encounters risk

Question 8

Assumption of the Risk and the Traditional Comparative Fault Rule

Answer 8

If P impliedly assumes the risk under the traditional rule, they are barred from recovery

Question 9

Assumption of the Risk and Minority of Comparative Fault States

Answer 9

Complete bar for implied assumption of the risk

Question 10

Assumption of the Risk and Majority of Comparative Fault States

Answer 10

• Don’t use implied assumption of risk
• Instead of asking if P implied assumed the risk, ask if P was at fault (would RP do the same)

Question 11

Failure to Mitigate

Answer 11

Post-injury conduct
- did they act reasonably to reduce damages
- failure to listen to drs. advice and refusing dr. advised treatment

Question 12

Direct Reduction Approach to Failure to Mitigate

Answer 12

• default unless statute says otherwise
• Jury must subtract out the amount of damages due to P’s unreasonable failure to mitigate. Subtract out/directly reduce the damages

Question 13

Apportion Fault Approach to Failure to Mitigate

Answer 13

• Assign fault based on unreasonable conduct within failing to mitigate damages
• Can be barred in modified comparative fault places
• Statute will specify fault includes failure to mitigate

Question 14

Statute of Limitations two rules

Answer 14

• Discovery Rule
• When injury happened

Question 15

Discovery Rule

Answer 15

when a RP would have realized someone else might be responsible for their injury; RP discovery of facts like injury, possible causal relationship to D’s conduct

Question 16

Apportionment Rules First look at

Answer 16

who is at fault first to see if there is a bar

Question 17

Divisible Injuries

Answer 17

we know who caused what
- Each D pays for what they caused

Question 18

Indivisible Injuries

Answer 18

don’t know who caused what
- Need both causes to cause that much injury

Question 19

Minority Test for Indivisible Injuries

Answer 19

Joint/Several Liability

Question 20

Joint/Several Liability

Answer 20

P can collect all of her damages from any of the defendants
- More than one satisfaction for her judgment
- Contribution Claim available for D

Question 21

Contribution Claim

Answer 21

even if D1 pays all D1 has a contribution claim against the other liable Ds (contribution = reimbursement)
- Amount of contribution is based on % assigned based on fault

Question 22

Majority Test for Indivisible Injuries

Answer 22

Several Liability

Question 23

Several Liability

Answer 23

D only has to pay their assigned portion.
- If D1 is assigned 40% fault, pay 40% of damages

Question 24

Potential Issues with Several Liability

Answer 24

1. P’s bear the risk of an insolvent D
2. Do immune parties get apportioned fault because P won’t get that money or it is spread to other Ds when it shouldn’t be
3. Could liability be allocated to nonparty
   
   • Nonparty = someone who is not in the lawsuit but could be at fault if in the suit
4. How to apportion fault for enabling another intentional tort to happen

Question 25

Vicarious Liability Rule Learned

Answer 25

Respondeat Superior

Question 26

Respondeat Superior

Answer 26

employer is liable for employee’s torts

Question 27

Employer is liable in respondeat superior if

Answer 27

• employee
• within the scope of employment

Question 28

Coming and Going rule (scope of employment rule)

Answer 28

Commuting is not within the scope of employment

Question 29

Special Errand (scope of employment rule)

Answer 29

Travel that is part of the employee’s usual duties or the employer specially requested it

Question 30

Frolic

Answer 30

Complete departure from special errand (outside scope of employment)

Question 31

Detour

Answer 31

Minor deviation from special errand (within scope of employment)

Question 32

Frolic v. Detour

Answer 32

• Employee’s intent
• Nature/time/place of Employee’s conduct
• Work employee hired to do
• Employer’s reasonable expectations
• Employee’s freedom in job duties
• Amount of time in activity

Question 33

Employee v. Independent Contractor

Answer 33

• Extend of control/supervision
• Distinct nature of worker’s business (do they have their own business)
• Specialization of the worker’s skill
• Materials and place of work
• Length of employment
• Method of payment
• Relationship of work done to employer’s regular business
• Parties’ belief, community’s belief

Question 34

Employer is responsible for (under respondeat superior)

Answer 34

Employee’s allocated share
- indemnification claim against employee to get money back