Victim Fault and Proportionate Liability

Question 1

What is it?

Answer 1

• The “clash” between P v. D brings the best of the D’s strategy.
• Applying the “wrongful conduct rule”, D can establish that P was violating a statute. Therefore, is banned from recovery. It is a defense mechanism to escape liability, and should be considered from the bench (judges).
• Unlike Negligence per se, which is a plaintiff mechanism to establish breach from the part of the defendant.

Question 2

Mischalski v. Ford

Answer 2

• “A plaintiff’s criminal conduct precludes an action for injuries caused by a tortfeasor ONLY if the plaintiff’s criminal conduct was a contributing proximate cause of his/her injuries”
• In this case, P was an illegal alien working after hours when he sustained injuries. His “criminal conduct” (being illegal) did not contribute to the injuries sustained. Also, his immigration status was not inherently dangerous.
• Him being an illegal immigrant did not bar recovery because his legal status in the U.S. was not a contributing proximate cause of the harm (injuries caused by defective product).
• Any criminal conduct that could be attributed to P was not a contributing proximate cause of the injuries. Thus, D cannot assert P’s illegal work as an affirmative defense.

Question 3

Guadamud v. Dentsply International

Answer 3

• A person cannot recover in tort for injuries sustained while voluntarily engaging in an illegal act, if the conduct constitutes a serious violation of the law and the injuries are a direct result of the violation.
• In this case, P’s conduct constitutes a serious violation of NY Law and the injuries sustained by him are a direct result of the violation (practicing dentistry without a license)
• Prohibitory Laws: (Ex. Statute) Bars unlicensed practice of dentistry.
• P voluntarily engages in unlicensed practice:
  1. P violated NY Law (statute) putting herself and the public in danger (inherently dangerous activities)
  2. P sustained injuries during her unlicensed practice of dentistry as a direct result of her violation of the statute.
• P barred from recovery.
  ** when analyzing the bottom 2, you should analyze all three in the event that the state the exam tort is taking place is in any of them.**