Plaintiff's Conduct Flashcards
*Butterfield
CN. Defendant put pole in road when making repairs to his house and plaintiff riding horse “violently” was thrown because didn’t see it in time, where 1st judge said if he had used OC, wouldn’t have been thrown, so accident “appeared to happen entirely from his own fault” and 2nd judge said “one person being in fault will not dispense with another’s using ordinary care for himself.”
*Beams
CN. Plaintiff went between train cars to uncouple them but cars were still moving; signaled directions to check speed, which weren’t obeyed, and tried again and was hit.
*LeRoy Fibre
Stacks of flax ignited by spark emitted from train. McKenna said plaintiff’s use of the land was proper, though he then noted “property in its vicinity may suffer inconveniences” which means he might consider 5 ft away from railroad to be plaintiff’s fault bc property in vicinity, but nothing else. Holmes, on the other hand, said in a partial concurrence that there should be a different result if “so near” to railroad that it wasn’t a “reasonably safe distance” and important thing is whether it was so near as to be in danger from even a prudently managed engine. For 5 feet, both would say RR not liable, but would disagree on 100 feet (Holmes would say need jury).
Brady
Like LeRoy Fibre, but plaintiff CN bc hay was 1.5-2 miles away but dry grass was whole way in between. In class social optimum exercise: With CN, everyone will choose the objectively reasonable approach that results in the social optimum. When CN was removed, the farmers at first incorrectly chose to be risky, but then when a train using a regular spark protector non-negligently burned their crops and they sued and couldn’t recover, they also still chose the middle ground, so still resulted in social optimum.
*Derheim
Seatbelt defense. Defendant hit plaintiff but plaintiff wasn’t wearing seatbelt. court said problem with seatbelt defense is that the conduct of not buckling occurs before the defendant’s negligence, whereas normally, CN is conduct contributing to the accident itself. States with comp. neg. don’t have problem to same extent. CN would bar plaintiff from any recovery, as would AoR, which would be unfair. Other solution, mitigation of damages has same problem that it is usually for conduct after occurrence. REJECTS seatbelt defense.
*Fuller
LCC. “The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it.” Decedent on one-horse wagon crossing R.R. and didn’t stop, look, or listen but train was going too fast and had plain view of decedent and could have stopped but didn’t and also didn’t give early whistle, where court said that the train had a clear view of the decedent and should have seen and warned or stopped. Said what is required is 1) “abstention from wanton or willful injury, or that conduct which is characterized as gross negligence” 2) If plaintiff guilty of CN, not defense for defendant that is willful/wanton/reckless/gross negligence and 3) CN also doesn’t defeat action if defendant could have, by reasonable care and prudence “avoided the consequence of the injured party’s negligence.” Schwab says timing has a lot to do with the doctrine, and it helps if defendant’s conduct is worse, i.e. gross.
Davies
Dying donkey. Cart going too fast killed a donkey, and the court said regardless of whether the donkey was there lawfully, it was the cart’s fault because the cart could have stopped with proper care.
CN reduces likelihood plaintiff will leave donkey on road, but it may increase the chance the defendant will hit it if it is there. LCC fixes that problem! For LCC plaintiff needs to show the defendant was guilty of more than ordinary negligence.
Thorogood
Imputed CN. Blamed decedent who stepped out of incorrectly parked omnibus and was hit by another. Imputed driver’s negligence to the passenger because of close “identification” between them. Asks whether the negligence of some other person should be charged or “imputed” to the plaintiff, at which point the traditional rules bar any right to recover. Example: owner of wagon barred from recovery because servant carelessly guided the coach. Doctrine viewed with hostility now.
*Lamson
AoR. Plaintiff employee painting hatchets case with rickety new hanging rack. Holmes said the fact the employee complained to his superintendent about the new racks was evidence that he knew the risks. “He complained, and was notified that he could go if he would not face the chance. He stayed and took the risk.”
Farwell/Preston
Fellow servant RULE / Common employment RULE. Farwell: it was another employee’s fault that plaintiff lost hand, but plaintiff had assumed the risk. Court said stranger could have held RR vicariously liable but not the plaintiff since he assumed the risk by working. Similar to Preston where 2 servants jointly loading wagon.
*Murphy
Plaintiff rode amusement park ride “The Flopper.” Court said that nothing in the ride was out of order and it was operating normally; the fall that caused the plaintiff’s injury was precisely “the very hazard that was invited and foreseen.” Volenti non fit injuria. Court does note the EXCEPTION that there might be a different result if dangers were obscured or unobserved or so serious that precautions should have been taken.
Meistrich
Where defendant ice rink could have been determined by jury to be negligent and jury could also have found plaintiff contributed to injury. This case laid out primary and secondary assumption of risk. Primary is where the defendant is not negligent; the plaintiff would have to show intentional behavior to recover. Secondary: AoR is an affirmative defense, and it acts as a part of CN.
Marshall
Coerced risk taking. The plaintiff left the house and was bitten by the defendant’s boar. He had no choice but to be prisoner or leave.
Fireman’s Rule
Public officials who knowingly and voluntarily confront a hazard cannot recover for injuries sustained thereby.
*Dalury
Exculpatory clause for ski resort; skier collided with metal pole. Resort was open to public and there was a general invitation to the public. Since skiers cannot control hazards, they should not bear the risks they have no ability or right to control. Opposite result in Chepkevich where court said release was binding because skiing is voluntary and hazardous activity; no compulsion to participate.
