Negligence: Plaintiff's Conduct

Question 1

Contributory Negligence

Answer 1

• Occurs when a plaintiff fails to exercise reasonable care for her own safety and thereby contributes to her own injury
• If P’s own carelessness contributed to their own injury in some way, defendant may have reduced liability
• Burden of proof is on D to show contributory negligence; same analysis that P uses to show negligence

Question 2

Last Clear Chance

Answer 2

If the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so, the plaintiff can recover despite their contributory negligence
- only applies in contributory negligence

Question 3

Medical Malpractice

Answer 3

• A plaintiff’s conduct is allowed to factor into a medical malpractice case if P isn’t following doctor’s instructions
• But P’s behavior before seeing the doctor is irrelevant (doctor takes patient as is - doctor cannot claim that a patient’s smoking habit contributed to malpractice with their lung surgery)

Question 4

Emergency Rule

Answer 4

A person faced with an emergency who acts, without opportunity for deliberation, to avoid an accident may not be charged with contributory negligence if he acts as a reasonable prudent person would act under the same emergency circumstances, even though it appears afterwards that he did not take the safest course or exercise the best judgment

No party can rely on an emergency created by his prior negligence or if they created the emergency themselves

Question 5

Contributory Negligence and Custodial Care

Answer 5

Comparative negligence is not considered in situations where a person has been previously demonstrated to be unable to act on their own behalf and a defendant was responsible for her care

Question 6

Helpless Plaintiff

Answer 6

A plaintiff who, due to his own contributory negligence, is in peril and cannot escape, the defendant is liable if she knew or should have known of the plaintiff’s perilous situation and could have avoided harming the plaintiff but for her (the defendant’s) own negligence

Question 7

Inattentive Plaintiff

Answer 7

• A plaintiff who, due to his own contributory negligence, is in peril from which he could escape if he were paying attention
• Defendant is liable only if she has actual knowledge of the plaintiff’s inattention, and therefore was negligent in failing to utilize the opportunity to prevent harm

Question 8

Imputed Contributory Negligence

Answer 8

Occurs when another person’s fault is ‘imputed’ to the plaintiff to prevent or limit his recovery due to the other person’s fault

Question 9

Breach of Statutory Duty (Cont. Negligence)

Answer 9

• When a plaintiff is in breach of statutory duty, contributory negligence can be established as a matter of law
• When D is in breach of statutory duty, contributory negligence or assumption of risk on the part of the plaintiff are not considered, if the plaintiff is a member of the class protected by the statute

Question 10

Causation and Contributory Negligence

Answer 10

• When a plaintiff is negligent, their negligence must contribute to the actual event that caused the harm
• It is not enough that the plaintiff was in any way negligent, their negligence must have actually helped cause the initial accident
• Even if the plaintiff’s negligence exacerbated their injuries, if they did not contribute to the actual cause of the accident, recovery will be allowed

Question 11

Comparative Negligence

Answer 11

• P’s negligence should not bar their cause of action, but should only reduce the amount of damages recoverable
• Rejecting the ‘all or nothing’ approach of contributory negligence
• Apportions damages between a defendant and a plaintiff based on their relative degrees of fault
• Maintains the notion that a plaintiff who is more than 50% or 51% at fault may not recover for any injuries

Question 12

Pure Comparative Negligence (Minority View)

Answer 12

The plaintiff’s full damages are calculated and then reduced by the proportion that the plaintiff’s fault bears to the total harms
(If the plaintiff’s full damages are $100,000, the plaintiff is 80% at fault and the defendant is 20% at fault, then the plaintiff will recover $20,000)

Question 13

Modern (Modified) Comparative Negligence

Answer 13

• If the plaintiff is less at fault than the defendant (the plaintiff’s recovery is reduced by his percentage of fault)
• If the plaintiff is more at fault than the defendant (then the plaintiff’s recovery is barred)
• If the plaintiff and the defendant are found to be equally at fault: (majority - the plaintiff recovers 50% total damages; minority - the plaintiff recovers nothing)

Question 14

Assumption of Risk

Answer 14

• Asks whether the plaintiff has deliberately and voluntarily encountered a known risk
• A complete defense, because it claims to eliminate the defendant’s duty to the plaintiff
• Defense to only negligence

Question 15

Assumption of Risk Elements

Answer 15

1) Did the plaintiff have notice of the danger?
2) Did the plaintiff appreciate the risk?
3) Did the plaintiff voluntarily consent to the danger?

Question 16

Assumption of Risk Liability

Answer 16

• Comparative (Majority): a plaintiff’s voluntary and knowing assumption of the risk will reduce his recovery in proportion to degree of fault, but it will not bar recovery
• Contributory and some Comparative (Minority): complete bar to recovery

Question 17

Primary Assumption of Risk

Answer 17

Plaintiff knows and appreciates a particular risk and voluntarily proceeds in the face of that risk, thereby relieving the defendant of any duty to her
(slipping while ice skating, getting bruised in paintball)

Question 18

Secondary Assumption of Risk

Answer 18

• Defendant does have a duty to the plaintiff, but the plaintiff knew and appreciated the risk created by the defendant’s negligence and voluntarily proceeded
• A background risk which has been made more dangerous by D adding a secondary level of risk, which π is also aware of
• ‘I did owe you a duty, but you assumed the risk and did the thing anyway’
  (A raised bumpy patch of ice in the skating rink; paintball guns set to fire faster than normal)

Question 19

Fireman’s Rule - Assumption of Risk

Answer 19

• Firemen and police cannot sue for injuries sustained on the job; their job is to be in danger
• Covers all public officials who enter private premises to protect public order
• Those who enter such dangerous situations willingly and as part of their job can’t claim negligence, and should instead receive additional compensation in their public wages

Question 20

Spectators/Players in Sports - Assumption of Risk

Answer 20

• Spectators: generally assume the risk of danger related to a sporting event they are at (exception - if the plaintiff was induced to let their guard down)
  Players: assume the risk of harm that would be usual in the sport (even those caused by actions against the rules, if common) unless the harm is egregious and unusual to the nature of the game

Question 21

Seatbelt Defense

Answer 21

• If a plaintiff did not wear a seatbelt and they got worse injuries than if they were wearing one, under traditional contributory negligence, any recovery would be barred
• Different states (bar recovery, don’t allow seatbelt defense, reduce damages by a set amount, deduct recovery for damages that would have occurred if wearing a seatbelt)

Question 22

Joint and Several Liability

Answer 22

• Allow a plaintiff to recover from multiple defendants who each contributed to his harms
• Each of multiple defendants who is found liable for a single harm, is subject to liability to the plaintiff for the entire harm
• Plaintiff has choice of collecting the entire judgment from on defendant, entire from another, or portions from various defendants, as long as the plaintiff’s entire recovery does not exceed the amount of the judgment

Question 23

Examples of Joint/Several Liability

Answer 23

• The tortious acts of two or more tortfeasors combine to produce an indivisible harm
• The harm results from the acts of one or more tortfeasors acting concert
• When alternative liability applies (alternative causation)
• Res ipsa is used against multiple defendants, and the plaintiff is unable to identify the tortfeasor whose acts were negligent
• The employer and the employee are both held liable (respondeat superior)

Question 24

Situations leading to Joint/Several Liability

Answer 24

• Two men shoot towards plaintiff; plaintiff isn’t sure which one hit him and blinded him, he sues both and they must find out between each other who is at fault
• Multiple doctors are involved in a plaintiff’s surgery; plaintiff doesn’t know which one malpractice’d but knows it must have been one of them

Question 25

Implicit/Explicit Assumption of Risk

Answer 25

• Implicit: Plaintiff indicates by her conduct that she has notice and appreciates a risk which she undertakes voluntarily
• Explicit: Plaintiff indicates explicitly that she has notice and appreciates a risk which she undertakes voluntarily