DEFENSES: CONTRIB. NEG, COMP NEG, A/R, SEATBELT, IMMUNITY

Defenses: Contrib. Neg, Comp. Neg., Assumption of Risk (A/R), Seatbelt, Immunity

Contrib. Neg.

Def.
1. P's unrsbl cond. is prox. cause of P's harm
Harsh Doc (Butterfield v. Forrester)
1. All / Nothing
  1. Either P's claim barred / allow full recov.
  2. Policy 4 jud. econ. & simplicity
2. Erosion & Amelioration b/c Uncomfortable W/Rule
  1. Burden on D 2 show
  2. Broad prox & case in fact 4 P so gen'ly not find prox. cause
  3. Leave contrib. neg. quest. 4 jury & ct. won't rev. if jury find no contrib. neg.
3. De Facto Comp. Neg. w/Jury Sys
  1. Prob's b/c jury nullification inconsistent
  2. Jury gen'ly try 2 follow the law
  3. No guide of apportioning damages
4. Burden on P
Last Clear Chance Doc (Davies v. Mann)
1. Still All / Nothing
  1. If D had the last opp. 2 avoid the accident then P can recov.
2. Burden on D

Comp. Neg.

Adoption of Comp. Neg. Instead of Contrib. Neg.
1. Doc's of Contrib. Neg. 2 Soften Contrib. Neg.
  1. Maj. jxn says obsolete b/c will B addressed by comp. neg.
2. Jud. v. Leg. Adoption of Comp. Neg.
  1. Most by leg. (34 states) & arg's 4 leg.
    1. Maj. so they should make the law
    2. Leg. has tools that ct. doesn't
  2. Arg's 4 Jud.
    1. Ct can see better & tired of waiting
    2. Ct created contrib. neg. in the 1st place
Apportion Fault
1. Jury's Job
  1. Ans. series of quest's assigning proportion of fault & whole amt of damage suffered
2. Judge's Job
  1. Do math & give jgmt
3. Prob's
  1. If not all parties present in same trial, may skew the result 2 give higher fault 2 missing party
  2. Not so ez b/c need 2 apportion & assign porpotion of fault 2 parties
4. Adv's
  1. Fairer & less harsh than contrib. neg.
Three Comp. Neg.
1. Pure sys.
  1. P gets whatever % assigned 2 D
  2. Most big states adopted this
2. First Modified Version: 49% Jxn
  1. P recov's as in pure if P < D
  2. If jury dec's = fault, then P gets nothing
3. Second Modified Version: 50% Jxn
  1. P recov's as in pure if P's neg. not exceed D
  2. If jury dec's = fault, P gets half
4. Two Modified Versions
  1. No real rsn 4 picking either of 2 modified versions
  2. 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
1. Adv's of Modified Versions
  1. When clear P more @ fault, no law suit brought but in pure, P can still recov.
  2. Equity that shouldn't recov. if P more @ fault
  3. More comfortable b/c less radical
2. Disadv's of Pure
  1. W/Jt. & sev. liab., P can recov. from D2 48% who may only B fault @ 2% when D1 not available
3. Disadv's of Modified
  1. 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.
  2. Unfair b/c if A 2/3 fault & B 1/3 fault, B can recov. but A can't
Jury Instruction
1. CA specifies that Jury B told of conseq's
Rel'ing 2 Joint & Sev. Liab.
1. Maj. Maintains W/Comp. Neg.
  1. Still need 2 dec. who bears the burden even if div. fault
2. Min. Discard
  1. Less clear that there's innocent P so weaken morality & policy of recov'ing from any D's
3. Uniform Act Soln
  1. Split insolvent D's share btwn P & D which seems fair but still X'ing prob. of when 2 dec. uncollectable
4. CA: Modified Jt. & Sev. 4 Econ v. Non-Econ Damages

Assumption of Risk (A/R)

Express A/R: BAR RECOV
1. Def.
  1. Specif. agmt in words (K'al & release) & if not against pub. policy will B enforced
  2. Some jxn's invalidate releases 4 recreational stuff
  3. Not affected by intro. of comp. neg.
2. Pub. Policy Exceptions
  1. Barg. not free & open so 1 party disadv. (ee v. er)
  2. Agmt / release of trxn involving pub. utility / pub. reg.
  3. Wilful, wanton, gross, etc. then against pub. policy
  4. Great imp. 2 pub.
3. Dif. From Defense of Consent
  1. A/R is consent 2 risk but defense of consent is consent 2 act
Implied
1. Def.
  1. Implied b/c not say but assumed risk by axn
2. Three Prong Test
  1. Risk of harm caused by D
  2. P had actual knowlege of part. risk & appreaciate magnitude of risk
    1. Subj. stand. not obj. so not matter if rsbl person would've known even though matters in comp. & contrib. neg.
  3. P vol'ly choose 2 enter / remain w/in the area of risk manifesting acceptance of risk
    1. If no choice, then no A/R
3. Contrib. Neg. v. A/R
  1. A/R must know & appreciate the risk but not matter if use due care by P
  2. Contrib. neg. not need 2 know / appreciate the risk but must use due care by P
4. Careless v. Venture
  1. If careless, not A/R b/c ignoring risk so not accept risk
  2. If veture, then A/R b/c assumed risk
5. Rescuer & A/R
  1. Rest says not vol. A/R if D's tortious cond. left P no rsbl alt. course of conduct
    1. To avoid averting harm 2 himself / others
    2. Or exercise / protect rt/privilege which D has no rt 2 deprive
  2. No A/R 4 rescuer & 2 not recov., rescuer must B reckless
6. A/R v. Comp. Neg. Imp.
  1. If A/R, total bar so need 2 disting.
  2. Express unaffected b/c total bar
7. Primary (Blackburn v. Dorta) BAR RECOV
  1. D owes no duty / breached no duty so no neg. 2 P
  2. Focus 2 D on what duty D owed instead of focusing on P
  3. Compl. bar recov. 4 P
8. Secondary (Blackburn v. Dorta)
  1. Pure Rsbl: NO BAR
    1. Although trad'ly barred recov., in Blackburn, allowed recov. 4 rsbl A/R
  2. Qualified Unrsbl: COMP NEG
    1. Unrsbl A/R were trad'ly barred recov.
    2. But can treat like comp. neg. 2 reconcile A/R & comp. neg.
9. CA's Approach 4 Implied A/R (Night v. Jewett & Ford v. Geweett)
  1. Primary: Nat. of Activity & Party's Rel. 2 the Activity (Maj.)
    1. Compl. bar only when D not breached duty by nat. of activity & rel (sports)
    2. Not matter if P knew / not so indep. of P's S/M b/c no duty sit. so agree w/Blackburn Case
    3. 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)
  2. Secondary: Relative Resp. of Parties (Plurality)
    1. Even if rsbl, compare resp. instead of div'ing by pure v. qualified
    2. Owe duty but P knowingly encounters the risk so merged 2 comp. neg.
    3. Merge unrsbl & rsbl into comp. neg. & throw 2 jury 4 equit. apportionment
  3. Secondary: No Secondary Implied A/R (Mosk)
    1. Div'ing line is duty v. no duty but abolish implied 2ndary Implied A/R & just do comp. neg.
  4. Secondary: Knowing & Intelligent (plurality of 3 judges)
    1. Total bar if knowing & intelligent dec. instead of rsbl
    2. If P neg., then just careless & not know risk so comp. neg.

Seatbelt Defense (Spier v. Barker)

Contrib. Neg. & Mitigation 4 Anticipation of Risk
1. Gen. Rule on Anticipation of Risk
  1. Not req'ed 2 anticipate the risk, only P's neg. contrib. 2 the cause of harm
2. Mitigation of Damages
  1. Need 2 do something after the act, not before
  2. Gen'ly no pre-accident oblgn 2 mitigate
Min. Jxn Req Seatbelt
1. Recov'able Damage
  1. Any injury not rel'ing 2 seatbelt then can recov.
2. Unrecov'able Damage
  1. Can't recov. from injuried that could've been avoided by wearing seatbelt
3. Prob's W/Seatbelt Defense
  1. Lot of rsbl people not wear seatbelt but not rsbl behav.
  2. P didn't do anything wrong can't recov. so uncomfortable
4. Mixed w/Comp. Neg.
  1. NY approach throws seatbelt defense in as part of P's neg. not as contrib. neg.
  2. 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
  3. Other approach says can B a factor but can't reduce recov. 2 more than 5%

Immunity

Def
1. Status
  1. D immune even though all elements of torts
  2. Not dep. on circ's like defenses but only on identity
2. Types
  1. Intra-family
  2. Charitable
  3. Govt'al
3. Intra-family
  1. Husb & wife, parent & child, then not liab.
  2. Repealed / partially so in most jxn b/c of abuse of children, spouses, etc.
4. Charitable Immunity
  1. Policy that better 4 indiv. 2 suffer than pub. / state B deprived of charity but mostly repealed now
  2. Some bar against recipients of charity
  3. Others keep it but abolished 4 hospitals only
5. Govt'al Immunity
  1. Most liab.
  2. Historically thought king can do nowrong & feared lots of litigation diverting res's away
  3. Imp. b/c best entity 2 spread loss & deep pocket so lot abrogated but fed. govt most protected & local least protected
  4. Fed & State can't B sued w/o consent
    1. Fed waived by statute like fed. tort claims act
    2. State varies but some disting. btwn proprietary & govt fns so that more immunity 4 govt fns
6. Main Pt: In sit's of family, charity, & govt, check 4 immunity

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