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

Outline - Torts - II - Privileges and Defenses

Torts (2005 Fall)

II. PRIVILEGES AND DEFENSES

1. General Characteristics
   1. Defendant has the burden of proof.
   2. Defenses are usually (but not always) complete.
      1. Complete - self-defense; defense of property; contributory negligence
      2. Incomplete - privilege of necessity; comparative fault
      3. Ordinarily only triggered after establishing prima facie case.

   Complete Defenses

2. Consent
   1. Condition to consent can overcome defense. [Ashcraft]
   2. Collateral mater, a condition for consent that has no bearing on the procedure in question, cannot overcome defense.
   3. Boxing [Hudson v. Craft]
      1. Majority – consent is invalid because breach of peace injures the state as a third party
      2. Minority – consent is valid unless the purpose of the statute is to protect people from their own bad judgment; arguments:
         1. Economic – If boxers can’t sue for damages, there would be less incentive for boxers to indulge.
         2. Moral – Let people do what they do, since nobody else is being hurt.
         3. Administrability – If boxers can sue every time despite giving consent, there would be a flood of lawsuits.
         4. Volenti non fit injuria – “To the willing, injury is not done”; personal choice
   4. Other exceptions
      1. “Consent to sexual intercourse cannot be equated to consent with a vile and loathsome disease.” [Hogan v. Tavzel]
      2. Infidelity does not affect the essential character of the contact itself, so consent is valid. [Neal v. Neal]
      3. Patients’ consent to treatment by dentist with AIDS, which he failed to disclose, bars recovery in absence of proof of exposure. [Brzoska v. Olson]
3. Self Defense and Defense of Others
   1. Elements
      1. Acted honestly in using force
      2. Fears were reasonable under the circumstances
      3. Force was reasonable under the circumstances
   2. Reasonable mistake is excused.
4. Defense of Property
   1. Realty
   2. Personalty
   3. Force allowed
      1. Assault – because there is no contact
      2. Imprisonment – only for chattels (see “shopkeeper’s privilege”)
      3. Only that amount of force reasonably necessary
   4. No privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels, unless there is also such a threat to the defendant’s personal safety as to justify a self-defense. [Katko v. Briney]
   5. Use of a pit bull in protecting realty allowed because the purpose includes deterrence, not just injury.
5. Official Privilege
   1. An officer of the law, acting as an agent of the state, may inflict violence in order to effectuate an arrest.
   2. Tennessee v. Garner – An officer may not use deadly force to apprehend a fleeing suspect unless there is:
      1. Probable cause of felony; and
      2. Threat to the safety of officer or danger to community if left at large.
   3. Reasonably mistaken belief that suspect is reaching for a handgun excuses deadly force. [Anderson v. Russell]

   Incomplete Defenses

6. Necessity
   1. Elements
      1. Defendant must face a necessity [Ploof v. Putnam]
      2. The value of the thing preserved must be significantly greater than the harm caused
   2. Even though the trespass is privileged, defendant must pay for the harm caused. [Vincent]

   3. General Average Contribution (GAC)

      The master of a ship can make it his privilege to jettison cargo in order to preserve the ship and the people and other property on his ship.

      Container	Owned by	Value of Contents
      A	Competitor of ship owner	$100,000
      B	One-time customer of ship owner	$80,000
      C	Long-term customer	$25,000
      D	Ship owner	$20,000

      Others share in the loss, so the ship owner won’t have to bear the loss alone, and the socially desirable outcome is obtained.

Outline - Criminal Law - VIII - Defenses

Criminal Law (2005 Fall)

VIII. DEFENSES

Both the actual and proximate causes must be met. The first is about possibility; the second is about judgment.

1. Justification - lesser harms, necessity
   1. Self Defense
      1. Threat of death or serious bodily injury
      2. Immediate
      3. Honest belief that imminent force is necessary
      4. Objectively reasonable

      Goetz – Defendant shot 4 black youths on subway thinking they were going to rob him. Self defense requires objective reasonableness, and proportionality (use only force reasonably believed necessary).

   2. Battered Woman’s Syndrome (see also excuse)
      1. Admissibility of expert testimony on BWS
         1. Educate jury about what a reasonable person would do under the circumstances
         2. Goes to credibility of defendant
         3. Standard still objective reasonable person
      2. Some courts go further, permit BWS to be used as a subjective standard, evaluate reasonableness from the perspective of battered woman, not reasonable person.

      Kelly – Woman killed abusive husband thinking he was going to hurt her.

2. Excuse - concession to human frailty
   1. Duress
      1. Common Law
         1. Threat of death or serious bodily injury
         2. “Present, imminent, and pending”
         3. Reasonable
      2. MPC § 2.09 – “Reasonable firmness” standard, permits both justification (lesser evils) and duress (threat of harm from another) [Toscano – Doctor in insurance fraud entitled to jury trial over whether his actions met “reasonable firmness” standard.]
      3. Source – Duress must spring from coercion by another person; natural events do not count.
      4. Imminence
         1. Fleming – POW who aided enemy broadcasts not under duress when only threats were used.
         2. Contento-Pacho – Defendant who swallowed balloons of cocaine under reasonable belief coercer would carry out threats did not have reasonable opportunity to escape.
         3. Ruzic – Canadian court invalidated imminence requirement as too restrictive.
   2. BWS – Courts split over whether it should be excuse as well as justification. Requirement of fear of imminent great bodily harm exists in both.
3. Intoxication
   1. General Rule – Intoxication is a defense to purpose and knowledge (specific intent), but not to recklessness or negligence (general intent). [Kingston]
   2. Hood – Assault is an “attempt”, but is not a specific intent offense for intoxication cases.
   3. Egelhoff – Excluding intoxication defense for “deliberate homicide” upheld if statute redefined by precluding voluntary intoxication, but may be unconstitutional for precluding defendant from mounting defense.