Defenses: Contrib. Neg, Comp. Neg., Assumption of Risk (A/R),
- P's unrsbl cond. is prox. cause of P's harm
- Harsh Doc (Butterfield v. Forrester)
- All / Nothing
- Either P's claim barred / allow full recov.
- Policy 4 jud. econ. & simplicity
- Erosion & Amelioration b/c Uncomfortable W/Rule
- Burden on D 2 show
- Broad prox & case in fact 4 P so gen'ly not find prox.
- Leave contrib. neg. quest. 4 jury & ct. won't rev. if
jury find no contrib. neg.
- De Facto Comp. Neg. w/Jury Sys
- Prob's b/c jury nullification inconsistent
- Jury gen'ly try 2 follow the law
- No guide of apportioning damages
- Burden on P
- Last Clear Chance Doc (Davies v. Mann)
- Still All / Nothing
- If D had the last opp. 2 avoid the accident then P can recov.
- Burden on D
- Adoption of Comp. Neg. Instead of Contrib. Neg.
- Doc's of Contrib. Neg. 2 Soften Contrib. Neg.
- Maj. jxn says obsolete b/c will B addressed by comp. neg.
- Jud. v. Leg. Adoption of Comp. Neg.
- Most by leg. (34 states) & arg's 4 leg.
- Maj. so they should make the law
- Leg. has tools that ct. doesn't
- Arg's 4 Jud.
- Ct can see better & tired of waiting
- Ct created contrib. neg. in the 1st place
- Apportion Fault
- Jury's Job
- Ans. series of quest's assigning proportion of fault &
whole amt of damage suffered
- Judge's Job
- Do math & give jgmt
- If not all parties present in same trial, may skew the result
2 give higher fault 2 missing party
- Not so ez b/c need 2 apportion & assign porpotion of fault
- Fairer & less harsh than contrib. neg.
- Three Comp. Neg.
- Pure sys.
- P gets whatever % assigned 2 D
- Most big states adopted this
- First Modified Version: 49% Jxn
- P recov's as in pure if P < D
- If jury dec's = fault, then P gets nothing
- Second Modified Version: 50% Jxn
- P recov's as in pure if P's neg. not exceed D
- If jury dec's = fault, P gets half
- Two Modified Versions
- No real rsn 4 picking either of 2 modified versions
- In both, if there's more than 1 D, then P can recov. if less
@ fault than all D's faults added up (P 40%, D1 30%, D2 30%)
- Policy Arg's
- Adv's of Modified Versions
- When clear P more @ fault, no law suit brought but in pure,
P can still recov.
- Equity that shouldn't recov. if P more @ fault
- More comfortable b/c less radical
- Disadv's of Pure
- W/Jt. & sev. liab., P can recov. from D2 48% who may only
B fault @ 2% when D1 not available
- Disadv's of Modified
- Prob. of moderate erosion b/c dif. btwn recov. v. no recov.
so jury less likely 2 find 50-60% fault 4 P b/c P can't recov.
- Unfair b/c if A 2/3 fault & B 1/3 fault, B can recov.
but A can't
- Jury Instruction
- CA specifies that Jury B told of conseq's
- Rel'ing 2 Joint & Sev. Liab.
- Maj. Maintains W/Comp. Neg.
- Still need 2 dec. who bears the burden even if div. fault
- Min. Discard
- Less clear that there's innocent P so weaken morality &
policy of recov'ing from any D's
- Uniform Act Soln
- Split insolvent D's share btwn P & D which seems fair
but still X'ing prob. of when 2 dec. uncollectable
- CA: Modified Jt. & Sev. 4 Econ v. Non-Econ Damages
Assumption of Risk (A/R)
- Express A/R: BAR RECOV
- Specif. agmt in words (K'al & release) & if not against
pub. policy will B enforced
- Some jxn's invalidate releases 4 recreational stuff
- Not affected by intro. of comp. neg.
- Pub. Policy Exceptions
- Barg. not free & open so 1 party disadv. (ee v. er)
- Agmt / release of trxn involving pub. utility / pub. reg.
- Wilful, wanton, gross, etc. then against pub. policy
- Great imp. 2 pub.
- Dif. From Defense of Consent
- A/R is consent 2 risk but defense of consent is consent 2
- Implied b/c not say but assumed risk by axn
- Three Prong Test
- Risk of harm caused by D
- P had actual knowlege of part. risk & appreaciate magnitude
- Subj. stand. not obj. so not matter if rsbl person would've
known even though matters in comp. & contrib. neg.
- P vol'ly choose 2 enter / remain w/in the area of risk manifesting
acceptance of risk
- If no choice, then no A/R
- Contrib. Neg. v. A/R
- A/R must know & appreciate the risk but not matter if
use due care by P
- Contrib. neg. not need 2 know / appreciate the risk but must
use due care by P
- Careless v. Venture
- If careless, not A/R b/c ignoring risk so not accept risk
- If veture, then A/R b/c assumed risk
- Rescuer & A/R
- Rest says not vol. A/R if D's tortious cond. left P no rsbl
alt. course of conduct
- To avoid averting harm 2 himself / others
- Or exercise / protect rt/privilege which D has no rt 2 deprive
- No A/R 4 rescuer & 2 not recov., rescuer must B reckless
- A/R v. Comp. Neg. Imp.
- If A/R, total bar so need 2 disting.
- Express unaffected b/c total bar
- Primary (Blackburn v. Dorta) BAR RECOV
- D owes no duty / breached no duty so no neg. 2 P
- Focus 2 D on what duty D owed instead of focusing on P
- Compl. bar recov. 4 P
- Secondary (Blackburn v. Dorta)
- Pure Rsbl: NO BAR
- Although trad'ly barred recov., in Blackburn, allowed recov.
4 rsbl A/R
- Qualified Unrsbl: COMP NEG
- Unrsbl A/R were trad'ly barred recov.
- But can treat like comp. neg. 2 reconcile A/R & comp.
- CA's Approach 4 Implied A/R (Night v. Jewett
& Ford v. Geweett)
- Primary: Nat. of Activity & Party's Rel. 2 the Activity
- Compl. bar only when D not breached duty by nat. of activity
& rel (sports)
- Not matter if P knew / not so indep. of P's S/M b/c no duty
sit. so agree w/Blackburn Case
- In active sports, breach duty of care 2 other participants
only if intentionally injures / reckless behav. outside the range
of ord. activity of sports (excl's neg)
- Secondary: Relative Resp. of Parties (Plurality)
- Even if rsbl, compare resp. instead of div'ing by pure v.
- Owe duty but P knowingly encounters the risk so merged 2 comp.
- Merge unrsbl & rsbl into comp. neg. & throw 2 jury
4 equit. apportionment
- Secondary: No Secondary Implied A/R (Mosk)
- Div'ing line is duty v. no duty but abolish implied 2ndary
Implied A/R & just do comp. neg.
- Secondary: Knowing & Intelligent (plurality
of 3 judges)
- Total bar if knowing & intelligent dec. instead of rsbl
- If P neg., then just careless & not know risk so comp.
Seatbelt Defense (Spier v. Barker)
- Contrib. Neg. & Mitigation 4 Anticipation of Risk
- Gen. Rule on Anticipation of Risk
- Not req'ed 2 anticipate the risk, only P's neg. contrib. 2
the cause of harm
- Mitigation of Damages
- Need 2 do something after the act, not before
- Gen'ly no pre-accident oblgn 2 mitigate
- Min. Jxn Req Seatbelt
- Recov'able Damage
- Any injury not rel'ing 2 seatbelt then can recov.
- Unrecov'able Damage
- Can't recov. from injuried that could've been avoided by wearing
- Prob's W/Seatbelt Defense
- Lot of rsbl people not wear seatbelt but not rsbl behav.
- P didn't do anything wrong can't recov. so uncomfortable
- Mixed w/Comp. Neg.
- NY approach throws seatbelt defense in as part of P's neg.
not as contrib. neg.
- CA approach sets out violation in statute but b/c crim. statute,
not neg. per se but neg. proven as a fact by jury 2 det. if rsbl
- Other approach says can B a factor but can't reduce recov.
2 more than 5%
- D immune even though all elements of torts
- Not dep. on circ's like defenses but only on identity
- Husb & wife, parent & child, then not liab.
- Repealed / partially so in most jxn b/c of abuse of children,
- Charitable Immunity
- Policy that better 4 indiv. 2 suffer than pub. / state B deprived
of charity but mostly repealed now
- Some bar against recipients of charity
- Others keep it but abolished 4 hospitals only
- Govt'al Immunity
- Most liab.
- Historically thought king can do nowrong & feared lots
of litigation diverting res's away
- Imp. b/c best entity 2 spread loss & deep pocket so lot
abrogated but fed. govt most protected & local least protected
- Fed & State can't B sued w/o consent
- Fed waived by statute like fed. tort claims act
- State varies but some disting. btwn proprietary & govt
fns so that more immunity 4 govt fns
- Main Pt: In sit's of family, charity, & govt, check
This material is copyrighted by the author. Use of this material
for profit is strictly prohibited without the written permission
from the author.
Go Back to
Law School Notes