Outline - Torts - VI - Affirmative Defenses

Torts (2005 Fall)

VI. AFFIRMATIVE DEFENSES

1. Contributory Negligence - consists of acting unreasonably in regard to one's own safety
   1. Elements
      1. Plaintiff negligent toward own safety
      2. Plaintiff's negligence is a substantial factor in her own harm
   2. Contributory negligence is an absolute defense.
   3. Exceptions and limitations
      1. Statutory violation [at least where purpose to protect plaintiff from own inability to appreciate consequences]
      2. Custodial care
      3. [Emergency]
      4. Last Clear Chance – If the defendant realized the contributory negligence and did nothing, the plaintiff could still recover.
   4. Contributory negligence is now a minority rule.
2. Comparative Fault – Instead of being totally barred from recovery, the plaintiff’s recovery is diminished in proportion to his relative fault.
   1. In General
      1. Defendant must still prove the above elements
      2. What has changed: No longer is contributory negligence an absolute defense; instead, it’s a proportionate defense.
      3. A jurisdiction will have either contributory negligence (total bar) or comparative fault (proportionate bar) but not both.
   2. How does Comparative Negligence work?
      1. Defendant must establish plaintiff’s contributory negligence.
      2. Then, the jury is asked to determine: What percentage of plaintiff’s damages is attributable to plaintiff’s own negligence?

      Formula: Take 100% of plaintiff’s losses, and reduce plaintiff’s damages by the % of plaintiff’s losses attributable to plaintiff’s own negligence.

   3. Two types of comparative fault schemes:
      1. “Pure” [Li v. Yellow Cab]
      2. “Impure” [American Motorcycle Association]
         1. “No greater than” 50%
         2. “Less than” 50%
   4. Multiple Defendants – compare plaintiff’s negligence against the group of others, or against each individual defendant? (Majority combines)
   5. Set-offs

      Party X – 40% at fault, $10,000 damages
      Party Y – 60% at fault, $100,000 damages

      Courts are divided; if insurance is available, usually no set-offs allowed.

      Contribution Rule – permits Defendant #2 to sue in that case or a separate case against Defendant #1.

      Policy argument – Should recover from Defendant #1 if more Defendant #1’s fault; otherwise why are you penalizing Defendant #2 (by causing Defendant #2 to go out of business unfairly)?

   6. Effect upon Joint and Several Liability

      Plaintiff - 30%
      Defendant #1 - 60%
      Defendant #2 - 10%
      

      Assume a “pure” jurisdiction, and Defendant #1 is insolvent. Which party (Plaintiff or Defendant #2) should bear the risk of insolvency?

3. Assumption of Risk
   1. Express/Formal (often written)
      1. Procedural - adhesion contract
         1. “Realistic opportunity to bargain?”
         2. Information provided?
         3. Opportunity to ask questions?
         4. Knowing consent?
      2. Substantive
         1. Fairness of the “agreement”
         2. Should contract trump tort duty? Should actors be able to “opt out” of tort system by disclaiming liability?
      3. Dalury – Ski area’s own negligence is neither inherent nor obvious and necessary risk in the sport of skiing.
      4. Hamelin – Equivalent bargaining powers between enterprises legitimize express assumption of risk.
      5. Leon – Release inserted between two irrelevant clauses not sufficiently noticeable.
      6. Krazek – Exculpatory clauses must be clear and definite, and the court will not formulate a requirement for specific “magic words”.
   2. Implied
      1. Elements
         1. Knowledge – Plaintiff subjectively knows, appreciates, and understands risk.
         2. Consent – Plaintiff voluntarily undertakes risk
      2. At common law, this was a complete defense, but that has changed with comparative fault.
      3. Primary implied assumption of risk
         1. Modifies the duty defendant owes plaintiff [Murphy – amusement ride]
         2. Typical of sporting events [Knight v. Jewett]
         3. Firefighter’s rule [Roberts v. Vaughn]
            1. No recovery for professionals
            2. Recovery available for volunteers
      4. Secondary implied assumption of risk
         1. Remains a proportionate affirmative defense in most jurisdictions
         2. Davenport – Comparative fault for continuing to use negligently unlit stairway when options were available