Negligence - Careless Victims: Comparative Fault Flashcards
What is comparative fault? (Feldman)
Comparative fault applies to the careless conduct of
victims—to their failure to exercise reasonable care for their own protection.
How do contributory negligence and comparative fault differ? (Feldman)
Unlike contributory negligence, which eliminates a plaintiff’s recovery, comparative fault reduces the plaintiff’s recovery in proportion to the plaintiff’s fault. This requires assigning percentages to the fault of the plaintiff and that of the defendant which equal 100% when combined.
What are the two most common types of comparative fault? (Feldman)
Pure and 50%
What is the pure type of comparative fault? (Feldman)
“Pure” apportions liability in direct proportion to
fault in all cases.
What is the 50% type of comparative fault? (Feldman)
“50%” schemes apportion liability based on fault
up to the point at which the plaintiff’s fault is equal to or greater than that of the defendant at which point plaintiff is barred from recovery.
What is the fundamental reason stated in Yi v. Yellowcab as to why courts switched to comparative fault over contributory negligence? (Feldman)
“[T]he ‘all or nothing’ approach of the doctrine of contributory negligence * * * is inequitable in its operation because it fails to distribute responsibility in proportion to fault. * * * [I]n a system in which liability is based on fault, the extent of fault should govern the extent of liability.”
What are some reasons that comparative fault is better than contributory negligence? (Feldman)
(1) comparative comes closer to actual jury practice
(2) comparative rests on a sound conception of cause whereas contributory does not
(3) comparative lends itself to a case-by-case contextual application whereas contributory does not.
What factors does the economic criticism of comparative negligence follow? (Feldman)
Hand Formula
1. Burden of precaution – compare Bs
2. Magnitude of risk – compare PLs – number of persons, gravity of harm
3. Which BPL is more out of whack – determine CCA (structural/situational)
What factors does the moral criticism of comparative negligence follow? (Feldman)
Culpability factors – moral criticism / blameworthiness
1. Knowledge of risk and prevention – e.g., superior, ordinary
2. Capacity – e.g., experts, children, disabled
3. Degree of culpability – gross negligence, recklessness, wantonness
4. Nature of risk imposition – imposing risk on others versus self
5. Awareness – disregard, inadvertence, error
6. Lack of compliance with statute, safety statute, custom
7. Causal responsibility – who is the primary author of the wrong?
Under comparative negligence, what is the seatbelt defense? (Feldman)
In a comparative regime, “[a]fter the jury has … found (1) that the failure to use a seat belt constituted negligence and (2) that plaintiff sustained avoidable, second-collision injuries, the jury must then determine the percentage of plaintiff’s comparative fault for damages arising from those injuries.”
Under comparative negligence, what can the plaintiff recover by using the seatbelt defense? (Feldman)
The plaintiff now recovers second-collision (seat-belt) damages minus “the percentage of plaintiff’s fault for these damages that are attributable to plaintiff’s failure to wear a seat belt” – items (b) and (c) above.
