Defense to Negligence Flashcards
Contributory Negligence 3 Step Analysis
- Is P at fault
- How much is P at fault
- What is the effect of P being at fault
Is P at fault need to prove
- Breach
- C/F
- Proximate cause (foreseeability)
How much is P at fault
- 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
What is the effect of P being at fault
- 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
Comparative Fault Options
- 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
Expressed Assumption of the Risk
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
Elements of Implied Assumption of the Risk
- P knows and appreciates the risk
- P voluntarily encounters risk
Assumption of the Risk and the Traditional Comparative Fault Rule
If P impliedly assumes the risk under the traditional rule, they are barred from recovery
Assumption of the Risk and Minority of Comparative Fault States
Complete bar for implied assumption of the risk
Assumption of the Risk and Majority of Comparative Fault States
- 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)
Failure to Mitigate
Post-injury conduct
- did they act reasonably to reduce damages
- failure to listen to drs. advice and refusing dr. advised treatment
Direct Reduction Approach to Failure to Mitigate
- 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
Apportion Fault Approach to Failure to Mitigate
- 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
Statute of Limitations two rules
- Discovery Rule
- When injury happened
Discovery Rule
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
Apportionment Rules First look at
who is at fault first to see if there is a bar
Divisible Injuries
we know who caused what
- Each D pays for what they caused
Indivisible Injuries
don’t know who caused what
- Need both causes to cause that much injury
Minority Test for Indivisible Injuries
Joint/Several Liability
Joint/Several Liability
P can collect all of her damages from any of the defendants
- More than one satisfaction for her judgment
- Contribution Claim available for D
Contribution Claim
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
Majority Test for Indivisible Injuries
Several Liability
Several Liability
D only has to pay their assigned portion.
- If D1 is assigned 40% fault, pay 40% of damages
Potential Issues with Several Liability
- P’s bear the risk of an insolvent D
- 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
- Could liability be allocated to nonparty
- Nonparty = someone who is not in the lawsuit but could be at fault if in the suit
- How to apportion fault for enabling another intentional tort to happen
Vicarious Liability Rule Learned
Respondeat Superior
Respondeat Superior
employer is liable for employee’s torts
Employer is liable in respondeat superior if
- employee
- within the scope of employment
Coming and Going rule (scope of employment rule)
Commuting is not within the scope of employment
Special Errand (scope of employment rule)
Travel that is part of the employee’s usual duties or the employer specially requested it
Frolic
Complete departure from special errand (outside scope of employment)
Detour
Minor deviation from special errand (within scope of employment)
Frolic v. Detour
- 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
Employee v. Independent Contractor
- 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
Employer is responsible for (under respondeat superior)
Employee’s allocated share
- indemnification claim against employee to get money back
