Defenses, Joint Liability, and Strict Liability

Question 1

What are the two factors for assigning share of the blame?

Answer 1

1- The nature of the person’s risk-creating conduct, and if they were aware of risks.
2- The strength of the causal connection between the person’s risk-creating conduct and the harm

Question 2

What do courts do when the plaintiff is acting negligently, but the defendant is acting intentionally?

Answer 2

Normally the courts will give full liability to the defendant because they acted intentionally.

Question 3

What is pure comparative fault?

Answer 3

When P’s damages are reduced in proportion to the % of fault attributable to P. For example, if P is 10% at fault for an accident and D is 90%, then P will receive their full damages minus 10% (subtracting their % of fault).

Question 4

What is modified comparative fault?

Answer 4

The plaintiff recovers if not more negligent than defendant. If they are equal, it depends on jurisdiction. Under modified comparative fault, if P is 51% at fault or greater, they will be barred from recovery.

Question 5

What are the two types of modified comparative fault?

Answer 5

Some jurisdictions allow recovery if P is 50% at fault or less. The other jurisdictions require P be 49% at fault or less- if they are at 50% or higher, they will be barred from recovery. A few jurisdictions even say the plaintiff’s must be “slight” and the defendant’s must be “gross.”

Question 6

Which is more popular among U.S. jurisdictions: Pure comparative fault, or modified comparative fault?

Answer 6

Modified is the much more popular option. These states mostly believe that it is unfair for P to recover if they have the higher share of fault.

Question 7

What do most jurisdictions do if there are multiple defendants who have various levels of fault that are individually less than P, but collectively higher than P? (So for example, if P is 40% at fault, D1 is 30% at fault and D2 is 30% at fault)

Answer 7

Most states will allow plaintiff to recovery in this scenario and total up the defendant’s negligence. Some jurisdictions would have D1 and D2 split the damages, and some will have the defendants pay their percentage of fault in damages. A minority of jurisdictions will bar because courts will point to the fact that P is technically the most negligent individual actor here.

Question 8

P: 25%; D: 75%. What does plaintiff receive in a pure comparative fault state, a 50-50 modified comparative state, and in a 49-51 modified comparative state?

Answer 8

Pure: 75% of damages
50-50 Modified State: 75% of damages
49-51 Modified State: 75% of damages

Question 9

P: 49%; D:51%. What does plaintiff receive in a pure comparative fault state, a 50-50 modified comparative state, and in a 49-51 modified comparative state?

Answer 9

Pure: 51% of damages
50-50 Modified State: 51% of damages
49-51 Modified State: 51% of damages.

Question 10

P: 50%; D: 50%. What does plaintiff receive in a pure comparative fault state, a 50-50 modified comparative state, and in a 49-51 modified comparative state?

Answer 10

Pure: 50% of damages
50-50 Modified State: 50% of damages
49-51 Modified State: Plaintiff barred from recovery.

Question 11

P: 51%; D: 49%. What does plaintiff receive in a pure comparative fault state, a 50-50 modified comparative state, and in a 49-51 modified comparative state?

Answer 11

Pure: 49% of damages.
50-50 Modified State: Plaintiff barred from recovery (no damages)
49-51 Modified State: Plaintiff barred from recovery.

Question 12

P: 75%; D: 25%. What does plaintiff receive in a pure comparative fault state, a 50-50 modified comparative state, and in a 49-51 modified comparative state?

Answer 12

Pure: 25% of damages.
50-50 Modified State: Plaintiff barred from recovery.
49-51 Modified State: Plaintiff barred from recovery.

Question 13

P sues D for injuries from skiing accident. D files counterclaim for injuries in the same accident. A jury finds P suffered $75,000 in damages and the D suffered $30,000 in damages. The jury also finds that the plaintiff was 2/3 at fault and the defendant was 1/3 at fault. What will P recover in a state that follows pure comparative fault rules? Modified?

Answer 13

Pure: P recovers $25,000 (which is their total damages reduced by P’s 2/3 negligence)
50-50 Modified: P recovers nothing because they are more than 50% at fault.
49-51 Modified: P recovers nothing because they are more than 50% at fault.

Question 14

P sues D for injuries from skiing accident. D files counterclaim for injuries in the same accident. A jury finds P suffered $75,000 in damages and the D suffered $30,000 in damages. The jury also finds that the plaintiff was 2/3 at fault and the defendant was 1/3 at fault. What will D recover in a state that follows pure comparative fault rules? Modified?

Answer 14

Pure: D recovers $20,000 (which is their total damages reduced by D’s 1/3 negligence)
50-50 Modified: D recovers $20,000 because they are less than 50% at fault. Their own negligent conduct will reduce their total damages by 1/3 (since they share 1/3 of the fault).
49-51 Modified: D recovers $20,000 because they are less than 50% at fault. Their own negligent conduct will reduce their total damages by 1/3 (since they share 1/3 of the fault).

Question 15

What is a contributory negligence jurisdiction?

Answer 15

Jurisdictions bar all recovery from plaintiff if they share any part of the blame (so if P is 1% at fault for the accident and D is 99% at fault, P cannot recover for negligence). Only 4 of these jurisdictions left.

Question 16

Define accrual (in regard to Statute of Limitations):

Answer 16

When the “clock” starts for statute of limitations.

Question 17

Define tolling (in regard to Statute of Limitations):

Answer 17

When the “clock” stops for any reason for statute of limitations. (Could be because a person is incompetent, could be because one party is a minor, etc.)

Question 18

What do courts look at to determine if express assumption of risk releases are enforceable?

Answer 18

They are enforceable when:
1- Release is clear, unambiguous, and explicit in regard to the intent of parties
2- Negligence resulting in injury is reasonably related to purpose of release
3- Release is not in violation of public policy.

Question 19

Are owners of livestock strictly liable for harm their straying animals cause other than damage to the lands or others?

Answer 19

Courts in the past have instead held owners liable for negligence for allowing their animal to stray. However, the Third Restatement indicates that if an anima owner knows of her animal’s tendency to stray, the owner will be held strictly liable for the harm caused.

Question 20

What are owners of livestock typically held strictly liable for?

Answer 20

The damage caused to land, crops, and other property interests by the escaping animals.

Question 21

What is the strict liability exception to zookeepers?

Answer 21

Zookeepers are liable for damages caused by their animals only if they are negligent.

Question 22

When is an owner strictly liable for the damages caused by their domesticated animal (i.e. cats and dogs)?

Answer 22

An owner is strictly liable for their cats and dogs when they know prior to the accident that their animal was abnormally dangerous in some way, and the injury results from that danger.

Question 23

What have a minority of state legislatures done to protect dog bite victims?

Answer 23

They have eliminated the common law requirement for there to be knowledge of their animal being prone to violence beforehand. There is almost absolute liability for any injury caused by the dog in these jurisdictions.

Question 24

What is the main theory behind strict liability?

Answer 24

A defendant should be held liable for harm simply because of the nature of the activity.

Question 25

Are keepers of wild animals strictly liable for damages caused by the wild animals?

Answer 25

Yes, with the only exception being for zookeepers.

Question 26

What if the owner of a dog or cat who is abnormally dangerous causes harm to another person, but the owner of the animal was being perfectly cautious and not at all negligent- Are they still liable?

Answer 26

Yes, if they have prior knowledge or should have had prior knowledge that their animal was abnormally dangerous. It does not matter how cautious the owner was and if they were not negligent- they will be held strictly liable.

Question 27

What factors determine if an activity is abnormally dangerous? (THIRD RESTATEMENT)

Answer 27

1: If the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors.
2: The activity is not one of common usage.

Question 28

What incentives are courts asked to balance when determining whether they should apply either negligence or strict liability?

Answer 28

Balance if they want to incentivize the defendant to take more reasonable care (and thus apply negligence law) or if they want to incentivize the defendant to find different, less dangerous ways of performing the activity (and thus apply strict liability law)

Question 29

What factors determine if an activity is abnormally dangerous? (SECOND RESTATEMENT)

Answer 29

1- Existence of a high degree of risk of harm to a person/land/chattel
2- Likelihood that the harm that results will be great
3- Inability to eliminate the risk by the exercise of reasonable care
4- Extent to which activity is not a matter of common usage
5- Inappropriateness of the activity to the place where it is carried on
6- Value of the community outweighs the dangerousness

Question 30

What are nominal damages?

Answer 30

A largely symbolic gesture by the court to acknowledge liability on the part of the defendant despite the lack of harm. Usually $1 and only result in trespass to land cases.

Question 31

What is the goal of compensatory damages?

Answer 31

To make the plaintiff whole in the best way you can by giving the plaintiff an amount of money.

Question 32

What are the two categories of compensatory damages?

Answer 32

Economic damages and non-economic damages.

Question 33

What damages are typically considered part of economic damages?

Answer 33

• Medical expenses
• Lost wages
• Loss of future earning capacity
• Other out-of-pocket expenses

Question 34

What damages are typically considered part of non-economic damages?

Answer 34

• Physical pain and suffering
• Mental anguish
• Loss of function or appearance (disfigurement)
• Loss of enjoyment of life

Question 35

What is the majority opinion on recovering for gratuitous medical services?

Answer 35

The majority of courts hold the plaintiff’s damages will not be reduced if they are given free medical coverage. A minority of courts will not allow recovery if the plaintiff received free care.

Question 36

What is the common law rule on strict liability for trespassing animals?

Answer 36

Keepers of animals that are likely to roam and do damage are strictly liable for their animals’ trespass.

Question 37

What is “actual malice” and what is it relevant to?

Answer 37

Actual malice is action characterized by evil motive, intent to injure, ill will, or fraud. It is relevant to punitive damages.

Question 38

How are “actual” and “implied” malice different?

Answer 38

They are virtually the same except implied malice allows for gross negligence, or wanton disregard for human life.

Question 39

What is the standard for evidence when considering punitive damages?

Answer 39

Some courts require a higher standard of evidence, “clear and convincing evidence.”

Question 40

When are express assumptions of risk enforceable?

Answer 40

1- When the release is clear, unambiguous, and explicit
2- The negligence resulting in the injury is reasonably related to the purpose of the release
3- Release is not in violation of public policy

Question 41

What are the requirements for implied assumption of the risk?

Answer 41

1- Knowledge of the particular risk

2- Voluntary consent to face it.