Defenses to Negligence Flashcards
Contributory Negligence: Traditional Rule
- Complete bar to recovery if P is found to also be negligent
- Subject to normal elements of prima facia negligence, must prove all (Butterfield v. Forrester)
Contributory Negligence: Traditional Rule: Leroy Fibre
- You can do whatever you want on your land as long as it doesn’t interfere with neigbhor’s land
- Dissent (Holmes)- even the most careful railroads emit sparks can do things more carefully even on own land
a. B<PL- looks at cost of moving flax stacks back vs. cost of fixing train emitter
b. Coase Theorem- Efficiency of torts rules, minimizing sum of accident and prevention costs
Contributory Negligence: Modification of Traditional Rule: Last clear chance
Last person who has the opportunity to avoid the accident
§ 479. LAST CLEAR CHANCE: HELPLESS PLAINTIFF
A plaintiff who has negligently subjected himself to a risk of harm from the defendant’s subsequent negligence may recover for harm caused thereby if, immediately preceding the harm,
(a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and
(b) the defendant is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm, when he
(i) knows of the plaintiff’s situation and realizes or has reason to realize the peril involved in it or
(ii) would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is then his duty to the plaintiff to exercise.
§ 480. LAST CLEAR CHANCE: INATTENTIVE PLAINTIFF
A plaintiff who, by the exercise of reasonable vigilance, could discover the danger created by the defendant’s negligence in time to avoid the harm to him, can recover if, but only if, the defendant
(a) knows of the plaintiff’s situation, and
(b) realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to discover his peril in time to avoid the harm, and
(c) thereafter is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm.
Contributory Negligence: Modification of Traditional Rule: Willful and Wanton Negligence or Recklessness
P’s acts have to match Ds. If D is reckless, P also must be reckless to bar recovery
Contributory Negligence: Modification of Traditional Rule: Special Statutory Duties
Contributory Negligence does not apply with certain laws
Ex: School bus lights, children crossing are expected to be negligence so the law protects them.
Assumption of Risk: General Principle
Complete bar to recovery if:
- Risk is assumed voluntarily
- and with knowledge and appreciation of the risk
- No duty, therefore no negligence
Assumption of Risk: Express vs. Implied
- Expressed
a. Signing a waiver (Hanks v. Powder Ridge)
b. If waiver is against public policy, it can’t be enforced
c. Parties must have intended the waiver to apply to the conduct that caused the harm - Implied
Knowing the nature of the ride and putting yourself in the danger anyone (Murphy v. Steeplechase)
ex: Veteran at darien lake who went on the superman rollercoaster with no legs who fell out and died even after many warnings to not do so
Assumption of Risk: Criticisms
Critics say this is a merger with contributory negligence and there are no duty rules
Assumption of Risk: Exceptions
No defense if the D creates circumstances where P’s choice is between two shitty options, giving no real choice
Comparative Negligence: Choice of formula
- Pure: whatever % negligent the P is that is the amount taken off recovery
ex: if P 95% negligent, only recover 5% - Modified: P must be < or = 50% negligent to recover
Comparative Negligence: Other Questions
- Effect on other doctrines
- Aportionment among multiple tortfeasors
- Basis for apportionment
- Damage Reduction
