Defenses

Question 1

Contributory Negligence (CL Rule)

Answer 1

Contributory Negligence - breach of a duty that contributes to the damages caused.

Rule: Plaintiff’s negligence, no matter how small, is a total bar to recovery…in other words, the plaintiff’s contributory negligence shields a negligent defendant from all liability.

Question 2

Contributory Negligence

Modified Comparative Fault

Answer 2

Modern systems reject the idea that a plaintiff’s negligence is a complete bar to recovery.

Rule: Plaintiff is barred from recovering only if the plaintiff’s percentage of responsibility is greater than the jurisdictional limit.

Question 3

2 Types of Comparative Fault Jurisdictions

Answer 3

Two Kinds (Depending on Jurisdiction):

1. 49% - Plaintiff can recover damages only if his negligence is less than that of the defendants.
2. 50% - Plaintiff can recover damages only if his negligence is less than or equal to (not more than) that of the defendants.
   ***** The only time these systems differ is when the jury finds the plaintiff exactly 50% responsible.

Question 4

Rule: When the plaintiff’s negligence does not bar recovery,

the total damages awarded to the plaintiff are ___________________.

Answer 4

Rule: When the plaintiff’s negligence does not bar recovery, the total damages awarded to the plaintiff are reduced by the percentage of the plaintiff’s responsibility.

Question 5

Modified Comparative Fault

Unit Rule

Answer 5

Unit Rule - When determining whether plaintiff’s negligence is complete bar to recovery in modified comparative fault jurisdictions, compare the plaintiff’s negligence to the combined negligence of all defendants. (THIS IS THE MAJORITY)

Rationale for Unit Rule = Wisconsin Rule does not make sense because the more defendants there are, the harder it would be to recover

Question 6

Modified Comparative Fault

Wisconsin Rule

Answer 6

Wisconsin Rule - When comparing negligence, the plaintiff must be less negligent than each defendant individually.

Question 7

Pure Comparative Fault

Rule: Plaintiff is barred from recovering only if ___________.

Answer 7

Rule: Plaintiff is barred from recovering only if the plaintiff’s percentage of responsibility is 100 percent

(in other words, as long as the defendant’s negligence was also a proximate cause of the accident, the plaintiff can recover something.)

Question 8

Pure Comparative Fault

Rule: When the plaintiff’s negligence does not bar recovery,

the total damages awarded to the plaintiff are _______________.

Answer 8

Rule: When the plaintiff’s negligence does not bar recovery, the total damages awarded to the plaintiff are reduced by the percentage of the plaintiff’s responsibility.

Question 9

Comparative Fault/ Contributory Negligence

Aportionment of Fault

Answer 9

Apportionment of fault - no real system for how jury is supposed to allocate fault

• court in Dobson used the Learned Hand formula to determine, not just whether the parties were negligent, but how negligent they were.
• Texas uses 50% rule (complete bar only if plaintiff’s negligence is greater than 50%) with a built in unit rule.

Question 10

Defense: Assumption of Risk

Express Assumption of Risk

Answer 10

• Almost always involve written releases in which a plaintiff agrees not to sue a defendant if certain risks cause harm (exculpatory agreement)
• The releases essentially takes away the defendant’s duty.
• This is an affirmative defense in the truest sense of the word.
• Exculpatory agreement may also be unenforceable as against injuries that it did not cover (EX: the agreement released liability from “inherent risks” but not negligence of instructor.)

Question 11

Defense: Assumption of Risk

Express Assumption of Risk

General Rule

Answer 11

General Rule: **These agreements are generally upheld because people have the right to contract for their personal dealings. **

• **Court will not uphold exculpatory agreement if it is not in clear, specific, and unmistakable language. **

However, court balances freedom to contract vs. public policy. Enforceability of such a release involves two questions:

1. **Does public policy permit releases in connection with the activity?
2. If so, does the particular release merit enforcement?**

Question 12

Defense: Assumption of Risk

Express Assumption of Risk

Common areas where express releases are not upheld:

Answer 12

Common areas where express releases are not upheld: public duty, innkeeper, employer-employee, etc

Question 13

Defense: Assumption of Risk

Express Assumption of Risk

6 Factors to Consider

Answer 13

6 Factors to Consider: Whether exculpatory agreements violate public policy

(1) The agreement concerns an endeavor generally thought suitable for public regulation.
(2) The party seeking exculpation is performing a service of great importance to the public and is often a matter of practical necessity for members of the public.
(3) Such party holds itself out as willing to perform this service for any member of the public, or at least any member within certain established standards.
(4) Disparity of bargaining power
(5) Standardized adhesion contract of exculpation
(6) Members of the public are under the control of the furnisher of the services

Question 14

Defenses: Assumption of Risk

Express Assumption of Risk vs Settlement

Answer 14

Express assumption of risk is a release in advance of the harm

Similar to a settlement, which is a release after the harm.

Question 15

Defense: Assumption of Risk

Implied Assumption of Risk

Primary vs Secondary

Answer 15

Primary Implied Assumption of Risk: talked about last quarter…this is a situation where the court or statute says the defendant has no duty (like in baseball stadiums).

**Secondary Implied Assumption of Risk: **requires a subjective test of whether the plaintiff actually knew and appreciated the risk created by the defendant’s wrongful conduct and voluntarily accepted the risk.

Question 16

Defense: Assumption of Risk

Secondary Implied Assumption of Risk

Elements

Answer 16

In order to have SIAR, the plaintiff must have:

(1) Had actual knowledge/appreciation of the dangerous condition, AND
(2) Voluntarily encountered that condition.

Question 17

Defense: Assumption of Risk

Secondary Implied Assumption of Risk

Recovery

Answer 17

Traditionally, SIAR was a complete bar to recovery –> it is no longer a complete bar in most jurisdictions today (jives better with comparative fault principles).
Another problem with allowing SIAR to be a complete bar is that it completely bars recovery even for reasonable assumption of the risk –> goes against goal of apportioning damages based on fault.
Overlap with Comparative Fault –> Because SIAR is no longer complete bar to recovery, it essentially totally overlaps with comparative fault (unreasonable assumption of the risk is part of the percentage of responsibility)

Question 18

Defenses

Mitigation and Avoidable Consequences

2 Approaches to Failure to Mitigate

Answer 18

Failure to mitigate damages in the context of tort law involves the plaintiff not going to the doctor enough and making the injuries worse, or not getting some surgery done that could have saved some damages.
Two Different Approaches:

(1) **Failure to mitigate = fault **<– **NOTE: **could push plaintiff over the comparative fault limit (when combined with fault bringing about injury) and bar recovery
(2) Failure to mitigate = damage question (meaning that any injury caused by failure to mitigate is stricken from award) –> TX Courts use this approach

Question 19

Defenses

Mitigation and Avoidable Consequences

**Failure to Mitigate: **Not wearing a seatbelt

Answer 19

• **Failure to mitigate usually relates to post-injury conduct **so in most jurisdictions, failure to wear seatbelt is not considered in failure to mitigate.
• However, there are some jurisdictions that allow not wearing a seatbelt to be treated a comparative fault on the part of the plaintiff –> based on reasonable foreseeability of accidents happening
• Doctrine of Avoidable Consequences: Theory that reduces recovery for those injuries that plaintiff could reasonably have avoided.
• TX is in this group

Question 20

Defenses

Mitigation and Avoidable Consequences

Failure to Mitigate: Doctrine of Avoidable Consequences

Answer 20

Doctrine of Avoidable Consequences: Theory that reduces recovery for those injuries that plaintiff could reasonably have avoided.

• TX is in this group

Question 21

Defenses

Immunities: Sovereign Immunity

Answer 21

• True affirmative defense
• General Rule: Sovereign immunity prohibits suits against the government, unless the government has given permission to sue.
• Traditionally based on the idea that “the king can do no wrong”à at one time all state and federal governments were immune from suit.
• In US, this rationale was based on the idea that the public would be suing themselves, essentially, as “owners” of government.

Question 22

Defenses

Immunities: Sovereign Immunity

Federal Tort Claims Act:

Answer 22

**Federal Tort Claims Act: ** allows suit against the federal government for claims based on negligence of any employee of the government while acting within the scope of his employment.

• Exception: Immunity still applies if government was performing discretionary function.
• Purpose of Exception: Shield government from judicial second-guessing over judgments of policy.
• Note: Policy of inspection make be discretionary, but actual inspection is not…so could sue for negligent inspection of guard (Coulthurst)

Question 23

Defenses

Immunities: Sovereign Immunity

Federal Tort Claims Act: Berkowitz-Gaubert­ Test:

Answer 23

Berkowitz-Gaubert­ Test: The discretionary function exception bars suit only if:

(1) The acts were discretionary, in that they involve an element of judgment or choice and are not compelled by statute or regulation, AND
(2) The judgment or choice in question is grounded in “consideration of public policy”

Question 24

Defenses

Immunities: Sovereign Immunity

State Tort Claims Act

Answer 24

State Tort Claims Act: Most states have similar statutes but approach it differently

• federal statute says that plaintiffs may sue and lays out exceptions when immunity will still apply,
• some state statutes say that immunity is still the rule, and **lays out certain areas where suit will be allowed. **

Question 25

Defenses

Immunities: Sovereign Immunity

Local Governmental Immunity

Answer 25

Rule: Municipalities are immune from tort liability when performing governmental functions, BUT are not immune when performing proprietary functions.

• This distinction is pretty unclear
• government functions –> those powers and duties of government conferred by law for the general benefit and well being of the citizens,
• proprietary functions–> ministerial acts that involve no discretion.

Question 26

Defenses

Immunities: Intrafamilial Immunity

Interspousal Immunity

Answer 26

CL rules traditionally prevented suits by one family member against another

Interspousal Immunity

• Traditionally, husband and wife could not sue one another because they only had one set of legal rights…those of the husband.
• Today, most states do not accept interspousal immunity doctrine
• But some jurisdictions still allow this doctrine because of fear of domestic disharmony and fear of fraud.

Question 27

Defenses

Immunities: Intrafamilial Immunity

Parental Immunity

Answer 27

Traditional General Rule: Kids can’t sue their parents for anything.

• Parents tort their kids all the time (battery, false imprisonment, etc)…it’s a matter of life.
• Rationale: Want to allow parents to use discretion in parenting without having other people passing judgment.

Parent-child is special relationship –> normally special relationships mean greater duty of care (see: last quarter), but in this case a special relationship means lesser duty.
But, we don’t want parents to have unlimited rights to tort the crap out of their kids, so…

Modern General Rule: Immunity is limited to torts relating to (1) the exercise of parental authority, (2) performance of parental supervision, and (3) the provision of parental care/custody.

Question 28

Defenses

Tort law imposes two types of limits on the length of time that may elapse between an injury and the filing of a lawsuit:

1. _____________
2. _____________

Answer 28

Statutes of Limitation and Repose

• Designed to ensure that cases are tried when memories are fresh and evidence is relatively easy to obtain
• Don’t want to try “stale” claims where a plaintiff has “slept on” his/her rights

Question 29

Defenses

Statutes of Limitation

Answer 29

Statute of Limitation: Relates to the time the injury occurs and bars a claim unless it is filed within a certain period after that time.

• Normally, the cause of action accrues on the day the injury occurs
• Exceptions to the SOL are: (1) Disability (2) **Discovery Rule **(3) Fraudulant Concealment

Question 30

Defenses

Statutes of Limitation Exceptions: Disability

Answer 30

• Person is under legal disability if under 18 OR of unsound mind
• Time of legal disability is not included in limitations period
• So for injury that happens before I am 18, the SOL doesn’t begin to run until the day I turn 18

Question 31

Defenses

Statutes of Limitation Exceptions: Discovery Rule

Answer 31

Discovery Rule: Saves some plaintiffs by providing that the SOL does not run against a claim until the plaintiff

1. knew about the injury, OR
2. in the exercise of reasonable diligence should have known of the wrongful act and resulting injury.

Question 32

Defenses

SOL Exceptions: Discovery Rule

In order to get Discovery Rule, the plaintiff must show:

Answer 32

In order to get Discovery Rule, the plaintiff must show:

(1) Inherent Undiscoverability of Injury –> ​Not impossible to discover, but unlikely to be discovered by reasonable person.
(2) Objective Verifiability of Injury

EX: guy with surgical glove sewed up inside of him…not likely to be discovered and easy to be verified.

Question 33

Defenses

SOL Exceptions: Fraudulent Concealment Exception

Answer 33

Fraudulent Concealment Exception: where party withholds information from plaintiff, keeping him from discovering injury, the concealing party is estopped from asserting the SOL as defense.

• Based on equitable estoppel doctrine
• Silence can sometimes constitute fraudulent concealment where a physician breaches his fiduciary duty to disclose material information concerning a patient’s treatment.

Question 34

Defenses

SOL Exceptions: Fraudulent Concealment Exception

To get fraudulent concealment, plaintiff must show:

Answer 34

To get fraudulent concealment, plaintiff must show:

1. Knowledge of wrongful act + concealment, AND
2. Patient’s inability to know of injury through reasonable diligence.

Question 35

Defenses

Statute of Repose

Answer 35

Statute of Repose: Relates to the time when the defendant committed the act or omission that is the basis for the claim and bars such a claim unless it is filed within a certain period after that time, even if the claim was filed within time for SOL.

• Can be very harsh if the injury does not occur immediately…cause of action could have expired before the injury even occurs.
• Sedar: Statute of repose is 10 years after building in constructed…want to encourage creativity and experimentation on the part of architects/designers.

Question 36

Defenses:

TX SOL Periods

Answer 36

Texas Statue of Limitations Periods

1 year – > Libel/slander
2 years –> conversion/personal injury
4 years –> debt/fraud/breach of fiduciary duty
5 years –> sexual assault
15 years –> Statute of Repose for products liability

Question 37

Federal government Immunity

Under the Federal Tort Claims Act (“FTCA”), the U.S. government waives immunity in tort actions, with the following exceptions:

Answer 37

i) Certain enumerated torts (assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel and slander, misrepresentation and deceit, and interference with contract rights);
ii) Discretionary functions (i.e., planning or decision making, as opposed to operational acts);
iii) Assertion of the government’s immunity by a government contractor in a products liability case if the contractor conformed to government specifications and warned the government of any known dangers in the product; and
iv) Certain traditional governmental activities (i.e., postal, tax collection or property seizure, admiralty, quarantine, money supply, and military activity).

When the U.S. government waives its sovereign immunity under the FTCA, it is liable in the same manner and to the same extent that a private person under the same circumstances would be liable, but it is not liable for punitive damages.

Question 38

Governmental Immunity

Governmental vs. proprietary functions

Answer 38

Traditionally, immunity attached to the performance of traditional government functions (such as police and court systems)

but did not attach when a municipality was performing a “proprietary” function that often is performed by a private company (such as utilities and parking lots).

Question 39

Sovereign Immunity

Public Duty Rule

Answer 39

There is no liability to any one citizen for the municipality’s failure to fulfill a duty that is owed to the public at large, unless that citizen has a special relationship with the municipality that creates a special duty. A special relationship can be shown by:

i) Promises or actions on the part of the municipality demonstrating an affirmative duty to act on behalf of the injured party;
ii) Knowledge by the municipality’s agents that failure to act could lead to harm;
iii) Direct contact between the municipality’s agents and the injured party; and
iv) The injured party’s justifiable reliance on the municipality’s affirmative duty.

Question 40

Government officials

Discretionary functions

Answer 40

When a government official is personally sued, immunity applies if she is performingdiscretionary functions entrusted to her by law so long as the acts are done without malice or improper purpose.

Question 41

Government Officials

Ministerial functions

Answer 41

There is no tort immunity for carrying out ministerial acts, such as driving while on government business.

Question 42

Government Officials

Highly ranked officials

Answer 42

Many highly ranked government officials, such as legislators performing their legislative functions, judges performing their judicial functions, prosecutors, and some upper-echelon officials of the executive branches, are usually absolutely immune from personal liability.

Question 43

Parental Immunity Exceptions

Answer 43

Courts generally allow parents to be held liable in areas other than core parenting activities.For example, most states allow children to sue parents:

i) For injuries arising from automobile accidents;
ii) In extreme cases, such as those involving sexual abuse and intentional tortious conduct; and
iii) When the parent is acting in a dual capacity, such as when the parent is a physician treating the child for an injury (medical malpractice claim allowed).