Defenses to Negligence

1
Defenses to Negligence

• 1. Contributory comparative negligence The
  evaluation of plaintiffs conduct

2
Introductory observations

• Note at the outset that Mark, Li, and Knight are
  all cases decided by the California Supreme
  Court. Is the focus of the authors approach on
  the evolution of the law in a particular
  jurisdiction, or on the California rules as the
  so-called majority rule in negligence cases?
• Note the concept of so-called affirmative
  defenses as based upon distinct rules or
  concepts of law, and distinct facts. Affirmative
  defenses allow a defendant in a private civil
  action (tort-accident case) to avoid liability,
  even where the plaintiff has established a prima
  facie case.

3
Mark v. Pacific Gas Electric Co.

• The accident description
• Plaintiff was a tenant in a building adjacent to
  a City streetlight maintained by Defendant
  Pacific Gas Electric Company. He was
  electrocuted while attempting to unscrew or
  remove the light bulb from the streetlamp, which
  was located outside his apartment bedroom window
• PGL was aware of a complaint from one or more of
  the landlords tenants (including plaintiff)
  about glare from the light
• PGL took steps to reduce the glare, but was
  aware that these steps had been ineffective in
  reducing glare and that plaintiff and his
  roommates were still unsatisfied with the
  condition of the light
• PGL was also aware that, as a result of an auto
  accident, the light pole had been bent, and that,
  in its bent condition, the pole was 55 inches
  from plaintiffs window and 10 inches from an
  adjacent fire escape
• PGL was aware that someone had been tampering
  with the light fixture, i.e., that the light bulb
  had been unscrewed on one or more occasions
• PGL (through its agent) was aware that the
  fixture resembled an ordinary light bulb, and
  that there was no open or obvious indication of
  high voltage.

4
Mark v. Pacific Gas Electric Co.

• The Courts definition of contributory
  negligence conduct on the part of the
  plaintiff which falls below the standard to which
  he should conform for his own protection, and
  which is a legally contributing cause
  co-operating with the negligence of the defendant
  in bringing about the plaintiffs harm, (at
  Footnote 8 of the Courts opinion, citing
  Restatement)
• The Courts explanation of the two categories
  of contributory negligence (p. 404)(Two ways of
  evaluating the plaintiffs own conduct, as a
  cause in fact of his injury)
• Voluntary exposure to the danger arising from
  defendants negligence
• Other conduct falling below the standard of due
  care, i.e., for an adult, the conduct of a
  reasonable man under like circumstances.

5
Mark v. Pacific Gas Electric Co.

• Contributory negligence as the issue in the case
  how plaintiffs contributory negligence affects
  his right to civil reparation for the defendants
  negligence (dismissal as a matter of law)
  Consistent with the general rule regarding the
  standard of care, where the evidence on the
  issue of contributory negligence is conflicting,
  and would support a finding either way, the
  question whether plaintiffs conduct fell below
  the conduct expected of a reasonable person under
  similar circumstances is one of fact and not of
  law, and must be decided by the trier of the
  facts.
• The rule as applied The Court refers to
  illustrative cases in which a plaintiff has been
  held to be contributorily (sic) negligent as a
  matter of law
• Andrews v. Valley Ice Co. (A construction worker
  who knowingly touched a high voltage power line
  or wire must have known the danger of getting
  near highly charged wires
• Mosley v. Arden Farms, Inc. (Decedent was warned
  not to touch power lines and knew the danger of
  live wires plaintiff is charged with common
  knowledge regarding the qualities, capacities,
  and characteristics of forceseven if he is in
  fact ignorant of the danger.

6
Mark v. Pacific Gas Electric Co.

• Issue As to so-called category one
  contributory negligence, there was no evidence
  that plaintiff knew or suspected that the light
  carried a high voltage current, or that he
  otherwise appreciated the risk of injury or death
  (The facts indicate that he had seen his
  roommates remove the bulb from the light on
  several occasions, without incident, and there
  was nothing in the appearance of the light pole
  or bulb to indicate any danger of electrocution)
  the issue on appeal is therefore whether the
  trial court was correct in holding, as a matter
  of law, that plaintiff should have appreciated
  the risk of injury or death when he attempted to
  unscrew the bulb.
• Held The trial record fails to support the
  conclusion that it is common knowledge that
  ordinary street lights contain high voltage
  current, or that a lay person risks substantial
  injury by attempting to unscrew the light bulb in
  an ordinary street light having the appearance
  and characteristics of the one which caused
  plaintiffs death. At trial, PGL will have the
  opportunity to prove that plaintiff knew or
  should have known of the danger of electrocution.

7
Mark v. Pacific Gas Electric Co.

• Violation of statute The Court recognized
  plaintiffs admission that he violated a City
  ordinance making it unlawful to extinguish any
  public light and the codification of the general
  rule (revisited here) that violation of a public
  statute is negligence, where the plaintiff is
  within the protected class contemplated by the
  statute, and the risk which caused plaintiffs
  injury or death is the kind of risk the statute
  was enacted to prevent. However, the statutory
  language relied upon by PGL, when read in para
  materiae with the remaining language of Section
  585, suggests that the statute was not intended
  to deal with the risk of death by electrocution
• This finding eliminates the need to evaluate
  plaintiffs conduct in the context of the
  statute

8
Commentary

• How do contributory negligence concepts operate
• When the injured person is a child?
• When the injured person is mentally impaired?
• When the injured person is physically disabled?
• When defendant acts with intent, or reckless
  disregard for plaintiffs safety?
• When plaintiff has failed to take advance
  precautions to minimize the extent of injuries
  from an accident? (e.g., What is the so-called
  seat belt defense?)

9
Li v. Yellow Cab Co.

• Li is the second case to judicially discontinue
  the recognition of contributory negligence as a
  bar to recovery of civil reparation from
  defendant, and to recognize comparative
  negligence as a partial defense to liability
  in negligence cases, following the statutory
  abrogation of contributory negligence in 25
  states by 1973 (now 46 states).
• See Hoffman v. Jones, 280 So.2d 431 (1973).

10
Li v. Yellow Cab Co.

• The judicial and academic criticism of the
  contributory negligence doctrine
• It is an all or nothing approach
• It fails to distribute legal responsibility in
  accord with the fault premise which is the basis
  for American tort lawby failing to distribute
  responsibility in proportion to fault

11
Li v. Yellow Cab Co.

• Reasons for and against the adoption of
  comparative negligence as the analytical
  approach to the evaluation of plaintiffs conduct
  in determining defendants liability in
  negligence cases
• The problems inherent in administering such a
  concept in cases involving multiple parties
• The difficulty inherent in fact-finding The
  risk that juries would administer the rule by
  resorting to quotient verdicts
• The significance of related common law concepts,
  including the so-called last clear chance
  doctrine and the doctrine of assumption of risk.

12
Li v. Yellow Cab Co.

• The Li Courts resolution of the arguments
  against the adoption of comparative negligence as
  an analytical approach to negligence liability
• Jury guidelines and special verdict forms can
  assist juries in focusing on the determination of
  the extent to which defendants, and plaintiffs
  conduct have contributed to the accident, and the
  allocation of responsibility for plaintiffs
  injuries as expressed in damages
• When the concept of comparative negligence and
  its relation to a fault premise is understood,
  the need for the last clear chance doctrine
  disappears
• Similarly, where plaintiff has unreasonably
  undertaken a specific, known risk created by
  defendants negligence, his conduct known
  previously as assumption of risk is, in reality
  a form of negligence (conduct by the plaintiff
  falling below the negligence standard of care).
  In such cases, the prior doctrine of assumption
  of risk may be merged into the general scheme of
  assessment of liability in comparison to fault.

13
Li v. Yellow Cab Co.

• The analytical paradigm (The forms of
  comparative negligence)
• The so-called pure form (diminished recovery)
• Modified comparative negligence (majority rule)
• May result in plaintiffs loss of entitlement to
  any recovery
• Is arguably inconsistent with the fault
  principle, but may be consistent with the idea of
  comparative causation and burden of proof.

14
Commentary

• Note the separation of powers argument
  addressed by the Court on the issue of the
  appropriateness of judicial conversion of the
  rule of contributory negligence.
• Note the subsequent reconsideration of the
  doctrine of assumption of risk and the
  clarification of the analytical paradigm
  announced in Li.

15
Defenses to Negligence

• 2. Assumption of risk
• The evaluation of plaintiffs conduct, continued
• The partial merger of assumption of risk and
  comparative negligence concepts

16
Murphy v. Steeplechase Amusement Co. The
original definition

• The plaintiff, a visitor to SACs amusement park,
  fell and sustained a fractured kneecap when he
  stepped onto the moving belt of an attraction
  known as The Flopper. He knew the purpose of
  the attraction was not to serve as a people mover
  (e.g., a moving sidewalk, escalator, etc.), but
  was to provide a sporting experience which
  challenged participants to keep their balance
  without falling. This knowledge notwithstanding,
  plaintiff alleged negligence, claiming that the
  belt was out of order, in that it was operated
  at an unreasonable speed, and was not designed
  with a railing, guard or other device to prevent
  a fall.
• In its most efficient sense, the Murphy Courts
  opinion explains that where the particular risk
  (hazard) that causes plaintiffs injury is a fall
  and that is the very risk that was invited and
  foreseen by participants, the law recognizes no
  liability based upon fault (p. 420)
• Murphy deals with what may be described as
  primary risk, the risk of injury inherent in the
  activity in question and which cannot be
  eliminated (cf. the movement of the passenger
  train, which cannot be eliminated even by the
  most careful operation the increased risk of
  falling while ice skating at an ice skating rink,
  as contrasted with walking on a sidewalk or
  natural pathway). Cf. If the risk, and injury
  were attributable to defendants failure to
  maintain the padded area of The Flopper,
  causing plaintiff to fall onto a wood
  undersurface, the risk in question would not be
  the risk that was invited, and plaintiff would
  not be subject to the defense but plaintiff did
  not allege such a breach of the defendants duty
  to maintain the padded area, and witnesses
  contradicted any such suggestion at trial.

17
Restatement of the rule

• Where plaintiff is subjectively aware of, (has
  actual knowledge of, in fact) and fully
  appreciates, the particular risk that caused his
  injury, and has voluntarily chosen to encounter
  that risk, he is not entitled to recover for
  defendants alleged negligence (breach of duty)
• Illustration Joe and Susan are on an outing at
  a local lakefront park, with Joes 3 year old
  son, Mack. Joe is standing on a small pier which
  extends into the water, and Susan is standing,
  thigh-deep, in the water immediately adjacent to
  one side of the pier, holding Mack. Mack
  expresses his fear of the water, and Joe, wanting
  to encourage him, says Watch Mack, the water is
  fun and dives off the end of the pier. Joe
  strikes his head on the bottom of the lakes
  edge, and sustains permanent spinal injuries.
  Note the argument that Joe is subject to the
  doctrine of assumption of risk, citing Murphy and
  the Restatement but evaluate the argument for
  recovery if all three were standing on the pier,
  and saw only a piece of driftwood extending above
  the surface of the water.

18
Voluntary exposure to risk as a necessary element
of the defense

• The requirement of free and voluntary choice
  whether to encounter or avoid risk (Note 1, pp.
  422-23)
• McDermott v. Platte County (Where P slips on Ds
  icy parking lot while attempting to enter
  exhibition hall, she may avoid doctrine where D
  has locked a more convenient entry door)
• Jimenez v. Morgan Drive Away, Inc. (Where
  mechanical emergency forces P to park his truck
  on highway emergency shoulder, he is not subject
  to assertion of doctrine by a truck driver whose
  truck collides with Ps car, injuring P).

19
Assumption of risk where defendant breaches a
duty to plaintiff

• Woodall v. Wayne Steffner Productions
• Plaintiff does not assume the risk of defendants
  negligence where he has no reason to anticipate
  defendants negligent act or omission (Cf.
  Inherent risk of activity vs. risk created by
  defendants breach of duty)
• Express assumption of risk (contract)
• Strict construction
• Public policy (Implication of public interest,
  unfair advantage or coercion)

20
Knight v. Jewett The partial merger of
assumption of risk and comparative negligence a
clarification of Li v. Yellow Cab

• Following Li
• Primary assumption of risk remains a complete
  defense to liability In those instances where
  defendant has no duty to protect plaintiff from a
  particular risk, that no duty conclusion may be
  expressed as plaintiffs assumption of the risk
  (the moving train, the batted ball in the
  baseball park, etc.)
• Secondary assumption of risk plaintiffs
  encountering of a risk created by defendants
  breach of a duty of reasonable care does not
  relieve the defendant of liability for his
  negligence, but is evaluated as conduct which
  should diminish plaintiffs recovery under
  principles of comparative fault or comparative
  causation.
• Such rules are consistent with the definition of
  contributory negligence in California (see Mark,
  supra, p. 404), and with Lis basic holding that
  when both parties are partially at fault for
  an injury, a rule which places all of the loss on
  one of the parties is inherently inequitable.
  (p. 434). Lis comparative fault principles
  reject the theory that a plaintiff essentially
  consents to defendants breach of duty, and
  instead embrace the concept of equitable
  apportionment or allocation of loss according to
  fault (See the courts reasoning at p. 437).