Chapter XII – Negligence Defenses
Law Plaintiff’s Conduct Contributory Negligence (CN)
Contributory negligence - Bar ∏’s claim (Butterfield) 1. One person being in fault will not dispense with another’s using ordinary care. 2. Burden of proof is on ∆ 3. ∏’s negligence has to be substantial factor (cause in fact) 4. 5. 6. scope of proximate cause is confined by courts Is not defense for Intentional tort, wanton and willful conduct by ∆. Violation of Statute o CN can still be used, unless o Statute deemed to abrogate the defense, or o ∏ is unable to protect himself This was an all-or-nothing approach
Notes / Examples
Non Ex: ∏ failed to follow emergency room Dr instructions to return if conditions worsened… No CN, ∆’s experts did not establish that conduct affected injuries. Ex: can’t say, CN because he didn’t duck
Ex: Motorist transported individual on outside of vehicle.
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Last Clear Chance (this is a ∏ argument) If ∆ had the opportunity to avoid the accident after ∏ no longer has the opportunity, the ∆ is the one who should bear the loss. Jurisdictions that use CN apply Last clear chance when: 1. ∏ is helpless 2. ∏ is unable to avoid the danger 3. PPP is merely inattentive. Comparative negligence 1. Pure: ∏’s damages are reduced in proportion to the % negligence attributes to him 2. Modified: ∏s recover as in pure jurisdictions, but only if the ∏’s negligence, compared to ∆(s) combined negligence a. Does not exceed (50% jurisdictions – not as great as), or
∆ will argue “∏ contributoraly negligent”; ∏ comes back with “∆ had last clear chance”
Ex: If ∏ is 90% negligent, then he can recover 10% of damages.
Recovery is reduced by the % of fault attributable to ∏ as long as it is “not as
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b. Is less than (49% jurisdictions) c. (SD only): ∏’s negligence slight compared to ∆. Burden of proof: a. ∆ to show ∏ was negligent b. ∆ to show ∏ negligent conduct was proximate cause. Can not be used as defense for willful/wanton conduct.
great as” the ∆’s. If ∏’s > ∆’s fault, then recovery is completely barred.
Assumption of Risk Express
Parties expressly agreed that ∆ had no obligation of care… that’s what they contracted for. i. Risk that injured ∏ fell within the terms of the agreement - Within scope of release ii. Does K itself violate public policy? a. Invalid: Exculpatory agreements for providing medical care b. Valid: Express assumption of risk c. Parents can waive their rights but not the children’s d. Express agreement need not be in writing
Not a favored defense
Ex: (Winterstein) ∏ signed an agreement with exculpatory clause relieving ∆ of any liability if ∏ gets injured… Agreement honorable! Ex: ∏ signed release concerning inherit risks involved in horseback riding. Her own horse behaved well but the guide’s horse kicked her. Not within scope. Ex: Delta + McDonnell Dougals had K with clause about Delta assuming all risks – plane crashed because of negligently installed part, Not liable
When one party is at such an obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other's negligence, the agreement is void as against public policy. Proviso is not valid for o willful and wanton action on part of ∆ o Intentional torts o ∏ does not know and can’t know of the provision Agreements within/out the category affected by public interest and for which exculpatory provisions will be held invalid – Party gains decisive bargaining advantage: 1. business of a type generally thought suitable for public regulation Non Ex: releases from hospitals – against public policy – not valid assumption of risk.
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business performing service to public and for which the public necessarily needs parties willing to perform service to any member of the public
With violation of statutes that are enacted for the protection of the public, ∏ can not assume risk.
Implied
Elements – Volenti non fit injuria i. Actual knowledge (subjective test) of the particular risk ii. Appreciation of magnitude risk iii. Voluntary encountering of the risk a. No other safer alternative available iv. Certain risks may not be assumed a. Common Carriers + public utilities can not limit liability based on disclaimer on ticket, posted sign, etc b. Statutes enabled to protect a class – member of class can not be said to assume any risk c. Situations involving fraud or emergency – unless ∏ acts unreasonably. d. No other choice! # of states apply it to where ∏ consciously and voluntarily places himself in a position where he is subject to a known risk. Distinguish from Contributory negligence: Assumption of risk: ∏ meets a subjectively known risk CN: ∏ exposes himself to a danger he is subjectively unaware but which would have been apparent had he used due care. Burden of proof: ∆ has to show that ∏ knew of risk Best way is by securing admission directly from ∏ or someone who heard it. Circumstantial evidence may be sufficient The scope of the risk assumed must be addressed. To the willing, there is not injury
If you can’t have express assumption of risk as public policy, then you can’t have implied. Ex: ∏ deliberately walked down defective steps. Express o Arises form Contractual Agreements (release forms) o Hospital releases are against public policy Implied o Pure / Strict o Reasonable conduct of ∏ o But would bar recovery o No reason to give it creadence o Qualified o Un-reasonable conduct of ∏ (jump in fire to save hat) o Merged with regular Contrib Negligence Ex: ∏ bought hockey tickets for a seat near the plexiglass, assumed risk of being hit by puck – within scope of game Ex: ∏ bought football ticket to see at end zone. Unruly fans might trample him while attempting to relieve him of a ball he caught – risk not inherent in or ordinary part of football.
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