Torts II Flashcards
Contributory Negligence
Contributory negligence is an affirmative defense to negligence that the plaintiff’s failure to comply with the standard of care was the cause of his own injury. This makes the plaintiff’s conduct a superseding cause. The standard of care required is the same as that for ordinary negligence cases. It cannot be used as a defense to intentional torts.
At common law, plaintiff’s contributory negligence completely barred his right to recover. This was so even though the degree of defendant’s negligence was much greater than that of plaintiff.
Last Clear Chance
Permits the plaintiff to recover despite his own contributory negligence. Under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence. In effect, last clear chance is plaintiff’s rebuttal against the defense of contributory negligence. Many cases distinguish between “helpless” and “inattentive” peril situations in applying last clear chance rules.
- Helpless Plaintiff → Helpless peril exists where plaintiff, through his contributory negligence, puts himself in a position of actual peril from which he cannot extricate himself. In many states, defendant is liable under these circumstances if she had either actual knowledge of plaintiff’s predicament or if she should have known of plaintiff’s predicament.
- Inattentive Plaintiff → Inattentive peril exists where plaintiff, through his own negligence, is in a position of actual peril from which he could extricate himself if he were attentive. Almost all courts require actual knowledge of plaintiff’s predicament on defendant’s part.
Comparative Negligence
The vast majority of states now permit a contributorily negligent plaintiff to recover a percentage of his damages under some type of comparative negligence system. In every case where contributory negligence is shown, the trier of fact weighs plaintiff’s negligence against that of defendant and reduces plaintiff’s damages accordingly. States follow one of three kinds of comparative negligence:
- Pure Comparative Negligence → Plaintiff can recover for the percentage of damages for which he was not at fault. If the trier of fact determines that plaintiff was 90% at fault, he can recover 10% of the damages. This is the minority rule.
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Modified Comparative Negligence → The majority of comparative negligence jurisdictions will bar the plaintiff’s recovery if his negligence passes a threshold level. Depending on the jurisdiction, this will be applied in two different ways:
- 49% Rule → Plaintiff may only recover if his negligence was less than defendant’s negligence.
- 50% Rule → Plaintiff may only recover if his negligence was not greater than defendant’s negligence.
Express Assumption of the Risk
The risk may be assumed by express agreement. There are two basic issues involved when defendant asserts that plaintiff expressly assumed the risk:
- (1) Was the injury within the unambiguous terms of the agreement? There are no “magic words” required. Use of the word “negligence” is not necessary if language is otherwise clear and unequivocal.
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(2) Does the agreement violate public policy? Three exceptions have been identified where the public interest will render an exculpatory clause unenforceable:
- (1) when the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence;
- (2) when the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the other’s negligence; and
- (3) when the transaction is “patently offensive” to the public interest, such as when the defendant provides an essential service.
Implied Assumption of the Risk
Implied assumption of the risk requires three factors to be met:
- (1) plaintiff must have subjective knowledge of the risk;
- (2) plaintiff must have an appreciation of the magnitude of the risk; and
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(3) plaintiff must voluntarily encounter the risk.
- The act will not be voluntary if the defendant left the plaintiff no other choice but to encounter the risk.
Types of implied assumption of the risk:
- (A) Primary (Complete Bar) → Occurs when the defendant is not negligent, either because he owed no duty to the defendant or because he did not breach a duty owed.
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(B) Secondary → Affirmative defense to an established breach of duty owed by the defendant to the plaintiff. This defense can be further divided into strict and qualified assumption of the risk.
- (a) Strict (Comparative) → Involves conduct which is reasonable, but nonetheless bars recovery.
- (b) Qualified (Complete Bar) → Conduct that is unreasonable and bars recovery. Such conduct can just as easily be characterized as contributory negligence.
Discretionary v. Ministerial Acts (Governmental Immunity)
The immunity is not waived for acts characterized as “discretionary,” as distinguished from those acts termed “ministerial.” In general, discretionary activity is that which takes place at the planning or decision making level, while ministerial acts are performed at the operational level of government (e.g., repairing traffic signals, driving a vehicle).
Actions by a government employee may be deemed discretional if: (i) there was an element of discretion or judgement and (ii) the judgement is of the kind the exception was designed to shield. This is true if it accomplishes social, economic, or political goals.
Joint and Several Liability Situations
There are three types of factual situations in which joint and several liability is usually imposed:
- (1) When the tortfeasors acted in concert. A tortfeasor may be liable for encouraging or inciting the assailant. Tortfeasors will be deemed to have acted in concert if they acted within the common scope of design.
- (2) When defendants fail to perform a common duty to the plaintiff. This may include cases where the tortfeasors may be liable based on their relationship to each other (employer/employee, master/servant, etc.).
- (3) Defendants who acted independently to cause an indivisible harm.
Satisfaction and Release (Joint and Several Liability)
If plaintiff recovers full payment from one tortfeasor, either by settlement or payment of a judgment, there is a “satisfaction.” She may not recover further against any other joint tortfeasor. Until there is a satisfaction, however, she may proceed against other jointly liable parties.
A release is a surrender of plaintiff’s cause of action against the party to whom the release is given. In most states, a release of one tortfeasor does not discharge other tortfeasors unless expressly provided in the release agreement. Rather, the claim against the others is reduced to the extent of the amount stipulated in the agreement or the amount of consideration paid, whichever is greater.
Apportionment of Damages for Judgement (Joint and Several Liability Contribution)
(a) Comparative Contribution (Comparative Fault) → Most states have a comparative contribution system, whereby contribution is imposed in proportion to the relative fault of the various tortfeasors.
(b) Equal Shares (Common Law) → A minority of states require all tortfeasors to pay equal shares (“pro rata”) regardless of their respective degrees of fault.
Contribution After Settlement
A is injured by the compared negligence of B and C. A accepts $100,000 from B and gives him a covenant not to sue. A proceeds to trial against C and obtains a judgement for $500,000.
- (a) In a jurisdiction that gives C a percentage setoff against the judgement, C would only pay his share and no contribution would be necessary.
- (b) In a jurisdiction that provides for a pro tanto (dollar for dollar) setoff against the judgement, C pays $400,000.
Indemnity (Joint and Several Liability)
Indemnity involves shifting the entire loss between or among tortfeasors, in contrast to apportioning it as in contribution. Indemnity is available in the following circumstances: by contract, vicarious liability, strict products liability, and when there is a difference in the degree of fault.
Affirmative Duty to Act (§ 37)
An actor whose conduct has not created a risk of physical or emotional harm to another has no duty of care to the other unless a court determines that there is an affirmative duty that is applicable. Exceptions are contained in §§ 38-44.
Duty Based on Defendant’s Conduct (§ 39)
When an actor’s prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm.
Duty Based on Special Relationship (§ 40)
An actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship. Special relationships within this scope may include an innkeeper with its guests, a carrier with its passengers, a school with its students, a landlord with its tenant, or an employer with its employee. An employer may not have a duty, however, when the employee is injured outside the workplace.
Duty Based on Special Relationship with Person Posing Risks (§ 41)
An actor in a special relationship with another owes a duty of reasonable care to third parties with regard to risks posed by the other that arise within the scope of the relationship. Such relationships might include: a parent with their children, an employer with its employees, or a mental health professional with its patients.
Duty Based on Undertaking (§§ 42-43)
An actor who undertakes to render services to another and who knows or should know that the services will reduce the risk of physical harm to the other has a duty of reasonable care to the other in conducting the undertaking if:
- (a) the failure to exercise such care increases the risk of harm beyond that which existed without the undertaking, or
- (b) the person to whom the services are rendered or another relies on the actor’s exercising reasonable care in the undertaking.
Duty Based on Taking Charge of the Other (§ 44)
An actor who, despite no duty to do so, takes charge of another who reasonably appears to be imperiled and helpless has a duty to exercise reasonable care while the other is in the actor’s charge.
An actor who discontinues aid or protection is subject to a duty of reasonable care to refrain from putting the other in a worse position than existed before and, if the other reasonably appears to be in imminent peril of serious physical harm at the time of termination, to exercise reasonable care with regard to the peril before terminating the rescue.
Negligent Infliction of Emotional Distress
An actor whose negligent conduct causes serious emotional harm to another is subject to liability to the other if the conduct:
- (a) places the other in danger of immediate bodily harm and the emotional harm results from the danger; or
- (b) occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional harm.
Negligent Infliction of Emotional Distress from Harm to a Third Person
An actor who negligently causes sudden serious bodily injury to a third person is subject to liability for serious emotional harm caused thereby to a person who:
- (1) perceives the event contemporaneously; and
- (2) is a close family member of the person suffering the bodily injury.
Landowner Duty to Trespassers
A trespasser is one who comes onto the land without permission or privilege. A landowner owes no duty to an undiscovered trespasser. He has no duty to inspect in order to ascertain whether persons are coming onto his property. There are three exceptions where a landowner might owe a duty to a trespasser:
- (1) Once a landowner discovers the presence of a trespasser, he is under a duty to exercise reasonable care to avert injury to the trespasser. The majority of courts hold that there is only a duty to avoid injuring the trespasser by active operations.
- (2) If there are frequent trespassers on a very limited area of land, the landowner is required to anticipate the trespassers and exercise reasonable care for their protection.
- (3) Where a landowner’s continued toleration of trespasses amounts to permission to use the land, the trespasser becomes a licensee.
Landowner Duty to Licensees
A licensee is one who enters on the land with the landowner’s permission, express or implied, for her own purpose or business rather than for the landowner’s benefit.
The owner or occupier owes a licensee a duty to warn of or make safe a dangerous condition known to the owner or occupier that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover. A duty to warn usually does not exist where the dangerous condition is so obvious that the invitee should reasonably have been aware of it.
Landowner Duty to Invitees
An invitee is a person who enters onto the premises in response to an express or implied invitation of the landowner. A person loses her status as an invitee if she exceeds the scope of the invitation—if she goes into a portion of the premises where her invitation cannot reasonably be said to extend.
The landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee.
Landowner Duty to Rescuers
Under the “firefighter’s rule,” police officers and firefighters are generally treated like licensees rather than invitees, based on public policy or assumption of risk grounds. They cannot recover for a landowner’s failure to inspect or repair dangerous conditions that are an inherent risk of their law enforcement or firefighting activity.
Landowner Duty to Children
Most courts impose upon a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property. Under the general rule, the plaintiff must show the following:
- (1) there is a dangerous condition present on the land of which the owner is or should be aware;
- (2) the owner knows or should know that young persons frequent the vicinity of this dangerous condition;
- (3) the condition is likely to cause injury, i.e., is dangerous, because of the child’s inability to appreciate the risk; and
- (4) the expense of remedying the situation is slight compared with the magnitude of the risk.
General Duty of Land Possessors (Restatement Approach)
A land possessor owes a duty of reasonable care to entrants on the land with regard to:
- (1) conduct by the possessor that creates risks to entrants;
- (2) artificial conditions on the land that pose risks to entrants; and
- (3) natural conditions that pose risks to entrants.
Duty of Land Possessors to Flagrant Trespassers
Landowners owe a duty to flagrant trespassers not to act in an intentional, willful, or wanton manner to cause physical harm. A landowner also has a duty to exercise reasonable care if the trespasser reasonably appears to be imperiled and (a) helpless or (b) unable to protect himself.
