Terms And Concepts From Chapter 8 Of Tort Law 4Th Ed.

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Contributory Negligence

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Defense that the plaintiff contributed to her own injuries and should therefore be barred from recovery

-Shifts the burden of loss from the defendant to the plaintiff even though the defendant was negligent, and in most cases, was more negligent than the plaintiff.

Rationales:

1. The negligent plaintiff should be punished for failing to protect his own safety.

2. The plaintiff's negligence becomes the proximate cause of her injuries, thus removing the defendant as the proximate cause. If several events contribute to the plaintiff's injuries, they each will be considered a distinct proximate cause,

3. Judges' historical distrust of juries and their fear that, if left to their own free rein, they would hamper the growth of industry by awarding huge awards to injured plaintiffs.

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Exceptions to Contrib.-Negligence Rule

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1. The requirement that contrib. negligence be proved and specifically pleaded by the defendant.

2. Juries' opportunity to apply a comparative-negligence standard in those cases in which contrib. would lead to unfair results

3. The requirement that the plaintiff's negligence meet the standards of the but-for or substantial-factor tests of actual causation

4. Proximate cause is construed more narrowly in the case of contrib. than it is in the case of the defendant's negligence. If the harm that is likely to occur as a result of the plaintiff's negligence occurs in some unforeseen manner, the plaintiff's conduct is usually held not to be the proximate cause of the harm.

5. Last-Clear Chance Doctrine

Purpose: To alleviate the harsh and unjust results often rendered by contrib.

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Last-Clear Chance Doctrine

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Doctrine that allows the plaintiff to recover in a contrib.-negligence system despite the plaintiff's negligence.

-Most significant way that contrib-negligence defense has been limited

-If the defendant has an opportunity that is unavailable to the plaintiff to prevent the harm that occurs and doesn't take advantage of it, the defendant will remain liable despite the plaintiff's contrib.-negligence b/c failure to prevent harm negates the plaintiff's negligence

-First utilized in Davies v. Mann

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Last-Clear Chance Doctrine Variations

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If the plaintiff is helpless and defendant discovers danger but negligently fails to avoid it, the plaintiff can recover in all courts.

-If the plaintiff is helpless and the defendant fails to discover danger b/c he is inattentive, the plaintiff can recover in most courts.

-If the plaintiff is inattentive but not helpless and the defendant discovers danger but negligently fails to avoid it, the plaintiff can recover in most courts.

-If the plaintiff is inattentive but not helpless and the defendant fails to discover danger b/c he is inattentive, the plaintiff cannot recover.

If the defendant is unable to avoid harming plaintiff even though he is aware of danger b/c of his earlier negligence, the plaintiff cannot recover in most courts.

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Contrib. Negligence is NOT a Defense When:

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1. The tort is intentional

2. The defendant's conduct is "willful and wanton" or reckless and the plaintiff's conduct is not willful and wanton or reckless

Rationale is that defendants who intentionally or recklessly harm others should not be able to escape liability simply b/c those whom they harmed are negligent.

3. If a defendant is negligent per se and the statute upon which the defendant's negligence is based was enacted for the sole purpose of protecting a class of persons of which the plaintiff was a member and if the statute's intent as to place sole responsibility upon the defendant

5. Some kinds of contrib. negligence are not considered defenses in strict liability actions.

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Comparative Negligence

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Defense that the plaintiff's recovery should be reduced in direct proportion to the plaintiff's percentage of contribution to her own injuries.

Created as an alternative to the all-or-nothing approach of the contrib. negligence system b/c contrib. negligence is inequitable in its operation in that it fails to distribute responsibility in proportion to fault.

-Today all but 4 states have adpted a comparative-negligence system by statute or state court decision

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Pure comparative-negligence standard

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The plaintiff can recover no matter how extensive his negligence

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"Not less than" 50 percent approach

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The plaintiff's claim is barred as soon as her negligence is not less than the defendant's negligence.

In a 50:50 apportionment, the plaintiff would be barred.

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"Not greater than" 50 percent approach

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The plaintiff is barred when her negligence is greater than the defendant's.

In a 50:50 apportionment, the plaintiff would not be barred.

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50 percent approach

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The plaintiff would be barred if he is more than 50 percent responsible for his own injuries.

Important b/c of juries' tendency to assign a 50:50 apportionment of blame.

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Administrative Problems with Comparative Negligence

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1. How should the percentage of fault be assigned to the plaintiff and defendant, i.e. what should fault be based on?

2. Should fault be assigned to persons who are not parties to an action? In pure-comparative negligence, fault is assigned to everyone.

3. Should a plaintiff be allowed to recover if her negligence is less than that of all the defendants combined but more than that of a particular defendant or any one defendant? Most state statutes don't answer this question.

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Other Issues Affecting Comparative Negligence

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Last-Clear-Chance Doctrine: Most states have not recognized this doctrine after adopting comparative-negligence and a few have abolished the doctrine altogether but some have retained the doctrine, either reasoning that it is not incompatible w/ comparative negligence or not questioning its compatibility. Unform Comparative Fault Act expressly rejects the doctrine's use.

Comparative negligence can be used to reduce the plaintiff's recovery when the defendant's conduct is willful and wanton or reckless but not when the defendant has committed an intentional tort.

-Most states w/ comparative-negligence have allowed the negligent plaintiff's recovery in cases in which the defendant violated a safety statute and was thus, negligent per se even when the statute is designed to protect members of the plaintiff's class and to place all responsibility on the defendant. Some states have denied apportionment of responsibility for negligence arguing that it would defeat the purpose of the statute.

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Assumption of Risk

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Defense that the plaintiff voluntarily consented to take the chance that harm would occur if he engaged in certain conduct.

Under common law, assumption of risk barred the plaintiff from recovery. Most courts now take it into account when deciding how to apportion damages.

-Can be express or implied

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Assumption of Risk and Contrib. Negligence

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-Some states have abolished assumption of risk b/c they consider it to be a form of contrib. negligence b/c a plaintiff who has assumed the risk has often also been contributorily negligent.

-If the plaintiff's decision to entertain a risk is reasonable in light of the circumstances, he will not be considered negligent, especially if few options are available to him. In this case, assumption of the risk can be raised but contrib. negligence cannot.

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Differences between Contrib. Negligence and Assumption of Risk

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Contrib. Negligence:

1. Plaintiff compared to reasonable person (objective standard)

2. Not a defense to reckless conduct.

3. Not generally a defense in strict liability cases.

Assumption of Risk

1. Subjective standard (did plaintiff understand the risk?)

2. Is a defense to reckless conduct

3. Is a defense in strict liability cases

-If the plaintiff's conduct constitutes both assumption of risk and contrib. negligence, the defendant can choose to raise either defense or in some jurisdictions, both.

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Comparative Negligence and Assumption of Risk

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Comparative-negligence states have removed the assumption of risk as a separate defense and merged it into the defense of comparative negligence.

-A plaintiff who unreasonably places himself in danger is considered negligent and his recovery is reduced although not barred completely.

-If a plaintiff exposes himself to the danger reasonably, he is not considered negligent at all.

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Express Assumption of Risk

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-An express agreement may not be enforced by the courts if the defendant has unusual bargaining power, is the sole or unique provider of a service, or if she uses her power to compel the plaintiff to waive liability.

-Agreements involving public uilities, common carriers, or other regulated industries are unlikely to be enforced b/c such entitles are obligated to provide reasonable service and will not be allowed to escape their responsibility through the use of waivers.

-A plaintiff must actually be aware of any risk he is said to have assumed.

-Waivers of liability are valid only in reference to the defendant's negligence and not for intentional tortious acts or for gross or willful and wanton negligence.

-Waivers in the field of med. care will not be upheld no matter how informed they are.

-A release must be expressed in clear, unequivocal language. The term "negligence" need not be used, but words conveying a similar meaning must appear.

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Implied Assumption of Risk

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The plaintiff's conduct shows that she was aware of the risk in question and voluntarily agreed to bear that risk herself.

-Plaintiff must actually be aware of particular risk in question.

-The plaintiff must voluntarily consent to the risk. Consent is not voluntary if plaintiff had no reasonable choice but to confront a danger.

-In sports and recreation, the inherent risks are known by the parties who are free to engage in the activity or not. Those who sponsor or organize such activities are obligated to use reasonable care to make conditions as safe as they appear. In some jurisdictions, as long as the risks are fully understood or perfectly clear, the plaintiff will be deemed to have assumed the risk. Professional athletes are deemed to be more cognizant of the risks and more willing to accept them than amateurs b/c of the money involved.

-Whether the risk the plaintiff was exposed to was created by the defendant is irrelevant

-If a plaintiff protests against being asked to assume a risk but ultimately agrees to take the risk, in most cases the courts will hold that she waived her objection and assumed the risk.

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Immunities

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Absolute defense derived from the defendant's status or relationship to the plaintiff that absolves defendant of all liability

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Federal Government Immunity

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-Based on the common law precept that "the king can do no wrong"

-Adopted early on by American courts in deciding that the U.S. gov. could not be sued w/o its consent

The Federal Tort Claims Act (FTCA) limits fed. gov. immunity by providing that money damages can be recovered against the U.S. for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the U.S. gov. while acting within the scope of his employment under circumstances in which the U.S., if a private person, would be liable to the claimant.

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Exceptions to FTCA

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1. Intentional Torts

2. Discretionary functions
-No liability exists when a discretionary function is involved, even when that discretion is abused. Discretionary judgments require the use of policy judgment and decision. Discretionary functions occur at the planning stages.

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State Government Immunity

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State gov. used to enjoy sovereign immunity but many have abolished it some extent by statute or judicial decision.

Reasons:

1. The availability of public liability insurance

2. Taking responsibility for the torts of public employees is viewed as being part of the cost of administering a government.

-Judges and legislators are almost never liable for their acts.

-The making of "basic policy decisions" rarely results in liability.

-States now usually have some statutory form of immunity, through some form of state torts act.

Ex: Some limit plaintiff's recovery by placing a ceiling on damages.

Some require any person claiming to have been injured as a result of tortious conduct by a public entity or employee to file a written notice of the claim within a designated time period or have the claim forever barred.

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Local Government Immunity

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-Local gov. entites traditionally enjoyed at least partial immunity.

-Now governmental functions are subject to immunity but proprietary functions are not.

-Many courts have abolished local gov. immunity or have allowed suits when liability insurance is available.

-Administrative policy decisions and legislative and judicial actions still enjoy immunity

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Proprietary Function

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Function that could be performed as well by a private corporation as by the gov.

-Usually performed in activities that produce revenue for the gov.