Defenses to Negligent Torts - Fault of the Plaintiff Flashcards
Contributory Negligence
If the plaintiff contributed to the negligence in any way, she could not recover damages.
Butterfield v. Forrester
Contributory Negligence
A plaintiff cannot receive damages when he does not use ordinary care to avoid a risk negligently caused by the defendant. Defendant left a pole on part of the road, but a reasonably prudent person could have avoided it. Plaintiff was riding his horse too hard and didn’t see the pole in time to avoid it.
Adopting Comparative Fault Rules
New York Rule
If the plaintiff’s negligence caused part of the tort, he can recover from the defendant, but the damages will be decreased by the worth of Plaintiff’s negligence
Adopting Comparative Fault Rules
Wisconsin Rule
If the plaintiff’s negligence caused less of the tort than Defendant’s negligence, Plaintiff can recover damages, less the worth of Plaintiff’s negligence. If the plaintiff’s negligence is greater than Defendants, Plaintiff cannot recover
States That Have Not Adopted Comparative Negligence
Alabama, North Carolina, Maryland, Virginia and the District of Columbia
Pure Comparative Fault
Fault is apportioned and the plaintiff receives damages, minus whatever her negligence is worth.
Modified Comparative Fault
If the plaintiff’s negligence caused 50% or more of the damages, he cannot recover damages
Adopting Comparative Fault Rules
North Dakoda Rule
The plaintiff cannot recover if his fault is as great as the combined fault of the defendants
Apportioning Fault
Pohl v. County of Furnas
Plaintiff was driving too fast, flipped his car and got seriously injured. Defendant did not maintain a road sign properly so it wasn’t reflective enough or at the right place for Plaintiff to see in time. If the plaintiff contributes to the negligence, h can recover the amount of his injury minus the cost of his negligence.
Factors to Consider when Allocating Fault
Purvis v. Grant Parish Sch. Bd.
- Whether the action was inadvertent, or involved an awareness of danger
- How great a risk was created by the conduct
- The significance of what was sought by the conduct
- The actors’ capacities, and
- Any extenuating factors that might require the actor to proceed with haste
Judge Posner on Comparative Negligence
Wassell v. Adams
One way to make sense of comparative negligence is to assume that the required comparison is between the respective costs to the plaintiff and to the defendant in avoiding the injury.
Reasonable Care of One Party
Sometimes the reasonable care of one party eliminates the need of care by the other care. For example, pedestrians don’t wear body armor because drivers are expected to drive safely.
Equitable and Just Approach
Some states tell juries to reduce the plaintiff’s damages by what is equal and just rather than using comparative fault.
Restatement (Third)
Factors for Assigning Percentages of Responsibility to Each Person Whose Legal Responsibility has been Establish
- The nature of the person’s risk-creating conduct, including any awareness or indifference with respect to the risks created by the conduct and any intent with respect to the harm created by the conduct and
- The strength of the causal connection between the risk-creating and the harm
Nature of Risk-Creating Conduct Includes
- How unreasonable the conduct was under the circumstances
- The extent to which the conduct failed to meet the legal standard
- The circumstances surrounding the conduct
- Each person’s ability and disabilities and
- Each person’s awareness, intent or indifference with respect to the risks
Strength of Causal Connection Depends On
- How attenuated the causal connection is
- The timing of each person’s conduct in causing the harm and
- A comparison of the risks created by the conduct and the actual harm suffered by the plaintiff.
Plaintiff’s Negligence
Comparison of plaintiff and defendant fault is only issue when both parties are negligent. If the plaintiff is not negligent, or if her negligence is not a factual or proximate cause of the harm, no comparison is needed.
It is also possible that the plaintiff’s fault will be disregarded because the injury suffered was not within the risk created by the fault.
Defendant’s Negligence
If the defendant is not negligent, or if the harm is not within the scope of risk his negligence caused, no comparison is needed because the plaintiff can’t meet those elements.
Superseding Cause
Exxon Co. U.S.A., Inc. v. Sofec, Inc.
Sometimes courts bar Plaintiff’s recovery all together because the plaintiff was the superseding cause of the harm. Plaintiff’s boat was moored in Defendant’s dock. The moorings came loose. Plaintiff’s captain steered the boat to safety but forgot to fix its position so the boat got damaged.
Causal Apportionment vs. Comparatve Negligence
Comparative negligence may be in appropriate when the plaintiff and the defendant cause separate injuries so that the court can use causal apportionment.
Mitigation of Damages Rule
Traditionally, the plaintiff had a duty to minimize her damages by reasonable efforts and expenses. The plaintiff could not recover if she didn’t take mitigating measures. Some state statutes and the Restatement (Third) have converted this rule into comparative fault.
Bexiga v. Havir Manufacturing Corp.
Defendant’s Duty to Protect Negligent Plaintiffs
Contributory negligence is not a defense when the defendant breaches his duty and the resulting harm is a harm his duty was meant to protect. Public policy says the defendant has a duty to protect the plaintiff against his own contributory negligence. A boy was working in a factory and his hand was crushed by a machine that was not equipped with safety devices.
Fernandes v. DAR Dev. Corp.
Possible Non Negligence at Work
A plaintiff may not be negligent at all if he gets hurt on a job and there was no alternate method of doing his job.
Defendants With Custodial Power
McNamara v. Honeyman
Some courts say if the defendant is responsible for the welfare of the plaintiff and the plaintiff hurts herself or commits suicide, comparative fault is now allowed. Plaintiff hung herself while in the care of a mental hospital.