Defenses to Negligent Torts - Fault of the Plaintiff

Question 1

Contributory Negligence

Answer 1

If the plaintiff contributed to the negligence in any way, she could not recover damages.

Question 2

Butterfield v. Forrester

Contributory Negligence

Answer 2

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.

Question 3

Adopting Comparative Fault Rules

New York Rule

Answer 3

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

Question 4

Adopting Comparative Fault Rules

Wisconsin Rule

Answer 4

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

Question 5

States That Have Not Adopted Comparative Negligence

Answer 5

Alabama, North Carolina, Maryland, Virginia and the District of Columbia

Question 6

Pure Comparative Fault

Answer 6

Fault is apportioned and the plaintiff receives damages, minus whatever her negligence is worth.

Question 7

Modified Comparative Fault

Answer 7

If the plaintiff’s negligence caused 50% or more of the damages, he cannot recover damages

Question 8

Adopting Comparative Fault Rules
North Dakoda Rule

Answer 8

The plaintiff cannot recover if his fault is as great as the combined fault of the defendants

Question 9

Apportioning Fault

Pohl v. County of Furnas

Answer 9

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.

Question 10

Factors to Consider when Allocating Fault
Purvis v. Grant Parish Sch. Bd.

Answer 10

• 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

Question 11

Judge Posner on Comparative Negligence

Wassell v. Adams

Answer 11

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.

Question 12

Reasonable Care of One Party

Answer 12

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.

Question 13

Equitable and Just Approach

Answer 13

Some states tell juries to reduce the plaintiff’s damages by what is equal and just rather than using comparative fault.

Question 14

Restatement (Third)

Factors for Assigning Percentages of Responsibility to Each Person Whose Legal Responsibility has been Establish

Answer 14

• 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

Question 15

Nature of Risk-Creating Conduct Includes

Answer 15

• 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

Question 16

Strength of Causal Connection Depends On

Answer 16

• 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.

Question 17

Plaintiff’s Negligence

Answer 17

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.

Question 18

Defendant’s Negligence

Answer 18

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.

Question 19

Superseding Cause

Exxon Co. U.S.A., Inc. v. Sofec, Inc.

Answer 19

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.

Question 20

Causal Apportionment vs. Comparatve Negligence

Answer 20

Comparative negligence may be in appropriate when the plaintiff and the defendant cause separate injuries so that the court can use causal apportionment.

Question 21

Mitigation of Damages Rule

Answer 21

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.

Question 22

Bexiga v. Havir Manufacturing Corp.

Defendant’s Duty to Protect Negligent Plaintiffs

Answer 22

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.

Question 23

Fernandes v. DAR Dev. Corp.

Possible Non Negligence at Work

Answer 23

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.

Question 24

Defendants With Custodial Power

McNamara v. Honeyman

Answer 24

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.

Question 25

Plaintiff’s Negligence Causes her Need for Treatment

Mercer v. Vanderbilt Univ.

Answer 25

Most courts say that comparative negligence is not allowed if the plaintiff’s negligence caused her to need medical care and then she was a victim of medical malpractice. Drunk driver needed a paralytic drug to get a CT scan. The ventilator malfunctioned, he stopped breathing and so got permanent brain damage.

Question 26

Protective Statutes

Answer 26

Some statutes say that the defendant own a duty to plaintiff’s who are vulnerable or disabled. For example, school bus drivers must direct children to cross streets instead of letting them cross on their own.

Question 27

Protective Statutes Enhanced

Answer 27

The plaintiff’s vulnerability or disability might be especially important if

• The defendant knows the plaintiff can’t take care of herself and
• The plaintiff’s risky conduct endangers her but not others

Question 28

Policies When Judges Limit Comparative Fault Include

Answer 28

• Plaintiff incapacity
• Times when the defendant is better able to take care of the plaintiff because of his knowledge, experience and control
• The defendant has a duty to care for even a negligent plaintiff because he is a professional rescuer
• Litigating the comparative fault would harm the litigants or created unmanageable litigation
• A determination of comparative fault would encroach on fundamental or constitutional values and
• Times when the plaintiff’s conduct only causes a risk of harm to herself

Question 29

Christensen v. Royal School District No. 160

No Self-Protection Duty

Answer 29

In Washington, comparative fault may not be assessed against a 13-year-old victim of sexual abuse for her participation in the relationship. A 13-year-old girl does not have a duty to protect herself against a sexual assault by an adult. A teacher had a sexual relationship with one of his students.

Question 30

No Self-Protection Duty

Restatement (Third)

Answer 30

In light of policy or principle, plaintiffs, like defendants, sometimes have no duty to protect themselves. In these cases, plaintiffs cannot be charged with comparative negligence for preparing to protect themselves.

Question 31

LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry. Co.

Right to Use Property

Answer 31

A property owner has no duty to use his or her property to avoid harm caused by another’s wrongdoing. The plaintiff had land that abutted a railroad and stacks flax near the railroad. The railroad negligently emitted sparks and the flax caught on fire

Question 32

Rights or Entitlements Not Based on Property

Answer 32

A plaintiff might have entitlements that are not based property. For example, a plaintiff could have a right to use public streets and go shopping even if an area has a high crime rate. If she has that right, she cannot be charged with comparative negligence just because she shopped at night.

Question 33

Traditional Exceptions to the Contributory Negligence Bar

Answer 33

• The Rescue Doctrine
• The Last Clear Chance
• Discovered Peril
• Defendant’s Reckless or Intentional Misconduct
• Plaintiff’s Illegal Activity

Question 34

The Rescue Doctrine

Answer 34

If someone sees a person in imminent danger caused by another and rescues the person, the rescuer can’t be charged with contributory negligence, as long as the rescuer acts recklessly.

Question 35

The Last Clear Chance Doctrine

Answer 35

A negligent plaintiff could have a full recovery if

• He was in a helpless position because of his own negligence,
• the defendant discovered, or should have discovered, the plaintiff’s peril, and
• the defendant had the last clear chance to avoid injury but didn’t

Question 36

Discovered Peril Doctrine

Answer 36

A plaintiff could have full recovery only if

• The plaintiff was in peril due to his negligence and
• The defendant knew of the peril

Question 37

Defendant’s Reckless or Intentional Misconduct

Answer 37

The defendant could not use the contributory negligence defense if

• The defendant committed an intentional tort and/or
• The defendant acted willfully, wantonly or recklessly, meaning he acted with utter indifference to or in conscious disregard for the safety of others.

Question 38

Plaintiff’s Illegal Activity

Traditional Rule

Answer 38

A plaintiff could not recover in contributory negligence cases if he was involved in illegal activities.

Question 39

Plaintiff’s Illegal Activity

Dugger v. Arredondo

Answer 39

The common law unlawful acts doctrine is not available as an affirmative defense in personal injury or wrongful death cases in Texas. Two boys were drinking and doing drugs. One overdosed and the other delayed in calling 911 and didn’t tell the paramedics that the boy ingested heroin. The boy died and his mother sued the friend.

Question 40

Statutes Prohibiting Recovery

Answer 40

Some states have statutes barring plaintiffs’ recovery if the plaintiffs are involved with certain forms of misconduct related to the claim. For example, in New Jersey, uninsured plaintiffs involved in car accidents are not allowed to recover for personal injuries.