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.
Plaintiff’s Negligence Causes her Need for Treatment
Mercer v. Vanderbilt Univ.
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.
Protective Statutes
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.
Protective Statutes Enhanced
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
Policies When Judges Limit Comparative Fault Include
- 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
Christensen v. Royal School District No. 160
No Self-Protection Duty
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.
No Self-Protection Duty
Restatement (Third)
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.
LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry. Co.
Right to Use Property
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
Rights or Entitlements Not Based on Property
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.
Traditional Exceptions to the Contributory Negligence Bar
- The Rescue Doctrine
- The Last Clear Chance
- Discovered Peril
- Defendant’s Reckless or Intentional Misconduct
- Plaintiff’s Illegal Activity
The Rescue Doctrine
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.
The Last Clear Chance Doctrine
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
Discovered Peril Doctrine
A plaintiff could have full recovery only if
- The plaintiff was in peril due to his negligence and
- The defendant knew of the peril
Defendant’s Reckless or Intentional Misconduct
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.
Plaintiff’s Illegal Activity
Traditional Rule
A plaintiff could not recover in contributory negligence cases if he was involved in illegal activities.
Plaintiff’s Illegal Activity
Dugger v. Arredondo
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.
Statutes Prohibiting Recovery
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.
