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Law Outlines Torts Outlines

Defenses Outline

Updated Defenses Notes

Torts Outlines

Torts

Approximately 38 pages

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Defenses

Was the plaintiff at all responsible for the damage?

Contributory Negligence

Comparative Negligence

Comp. Risk Creation

Necessity

Assumption of Risk

Adhesion Contracts

  1. Contributory Negligence / Comparative Negligence

    1. Rule

      1. Ancient Rule: if Π was contributorily negligent, Δ is not blamed and damages are reduced proportionally (Lombard Laws (733, 382)).

      2. Old Rule: if Π’s negligence contributed at all to the harm, Π cannot recover any damages.

        1. Δ must still prove Cause-in-Fact.

        2. Exception: admiralty, where comparative negligence popular (U.S. v. Reliable Transfer Co. (U.S. 1975)).

        3. Other exceptions:

          1. last clear chance: if Δ had last chance to avert harm, Π’s negligence not bar;

          2. burden shifted to Δ;

          3. if Δ acted recklessly or intentionally, Π’s negligence not bar;

          4. if Δ violated safety statute, Π’s negligence not bar;

          5. if Π was contributorily negligent in normal use of land, not bar.

      3. Modern Rule: if Π’s negligence contributed to the harm, Π only recovers damages to the degree Δ is responsible (comparative negligence)(Yellow Cab).

        1. “Pure” minority rule: comparative negligence in all contexts.

        2. “Modified” plurality rule: Π barred if contributory negligence is greater than (or equal to) 50%;

          1. South Dakota: Π barred if contributory negligence is “more than slight”;

            1. note: this is comparative negligence, not comparative causation; may drive twice as fast without being twice as negligent.

        3. If Π and Δ both have insurance, there are no setoffs, because this would affect premiums negatively.

        4. If Π violated statute, Π may be comparatively negligent (Hardy v. Monsanto (Mich. 1982)).

      4. Defenses: (RFT § 15):

        1. there is an emergency;

        2. necessity (see supra under Duties);

        3. incapacitation;

          1. e.g. Δ is a child who cannot understand duties.

    2. Analysis

      1. Most juries tend to ignore contributory negligence, which is why trial lawyers paradoxically like it better than comparative negligence.

      2. FFTL notes there are three ways of assessing comparative damages for multiple Δs. Assume the negligence of Δrich contributed 35% to the harm, Δbroke 25%, and Π 40%:

        1. JSL: Δrich is responsible for 25+35 = 60% of the damages;

        2. individual recovery (if one Δ broke, no recovery for share): Δrich is responsible for its 35%;

        3. best solution (if one Δ broke, other Δs take proportion of Δbroke’s share): Δrich is responsible for its 35% + 35/75 (25%) = 46.7%;

          1. note: the denominator is 75 because that’s what remains when Δbroke’s contribution is accounted for.

    3. Cases

      1. Li v. Yellow Cab Co. of Cal. (Cal. 1975, 384): Speeding Δ hit negligent Π; Π may recover to degree Δ was responsible for harm.

  2. Comparative Negligence with Intentional or Strict Liability

    1. Rule

      1. Majority: for intentional torts, any contribution by Π is irrelevant (Morgen v. Johnson (Wash. 1999));

        1. California / minority: intentionality is just a matter of degree; comparative negligence applies (Blazovic v. Andrich (N.J. 1991)).

      2. Majority RST § 524: for all strict liability, Π knowingly and unreasonably subjecting himself to the risk of harm is a defense. For A.D.A.s, contributory negligence is no defense unless harm would not have occurred but for Π’s abnormal sensitivity.

        1. Rylands / minority: presumptive liability for Δ may be entirely rebutted by Π’s negligence.

        2. Third possibility: comparative causation rule (Bohan):

          1. if plaintiff voluntarily and unreasonably exposed himself to danger, then comparatively negligent;

            1. note: does not apply to rescuers, who are immune; see supra at Proximate Cause;

          2. but if plaintiff just reacted badly; still strict liability.

        3. Shugerman: comparative risk creation.

        4. Abraham: equitable apportionment: just ask jury to assess what is fair (Daly).

      1. Defenses: (RFT § 15):

        1. there is an emergency;

        2. necessity (see supra under Duties);

        3. incapacitation;

          1. e.g. Δ is a child who cannot understand duties.

    2. Analysis

      1. Since the Δ was technically not negligent, comparative “risk creation” compares apples and oranges as “fruit.”

      2. Shugerman thinks comparative causation is incoherent because cause should be irrelevant for liability.

    3. Cases

      1. Bohan v. Rizzo (N.H. 1996): Π fell off bike when dog approached barking; no comparative negligence because it was just a bad reaction.

      2. Daly v. General Motors Corp. (Cal. 1978): Π didn’t wear seatbelt or lock door but flew out of defective car. Equitable apportionment (basically comparative negligence).

  3. Assumption of Risk

    1. Rule

      1. Volenti non fit injuria: if risk is obvious and necessary, Π knows of the risk, and Π voluntarily consents, Π assumed the risk and may not recover damages (Steeplechase).

        1. Exceptions:

          1. if the danger that harmed Π is...

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