TORTS

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TORTS

• Defenses to Negligence

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Defenses to Negligence

• Contributory Negligence
• Contributory negligence is defined as conduct on
  the part of the plaintiff, contributing as legal
  cause to the harm suffered, which falls below the
  standard to which the plaintiff is required to
  conform for his/her own protection.
• Contributory negligence exists when the conduct
  of the plaintiff in any way helps to cause or
  aggravate the plaintiffs injury.

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Defenses to Negligence

• The importance of this theory is that any
  contributory negligence on the part of the
  plaintiff, regardless of how slight, serves as a
  complete bar to recovery on the negligence claim.
• Exception to rule
• Age
• The general rule of thumb has been that children
  over the age of 14 are capable of negligence and
  children under the age of 7 are incapable of
  negligence.
• Those between the age of 7 and 14 are judged
  capable of negligence in certain circumstances

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Defenses to Negligence

• Comparative Negligence
• Comparative negligence is not considered to be a
  true defense against liability for negligence.
• WHY?
• Comparative negligence is a method for assigning
  blame or the relative degree of responsibility
  for the injury between the parties
• Comparative negligence deals with the
  apportionment of the fault and NOT the damage
  done by the fault.

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Defenses to Negligence

• Comparative negligence is based on the fact that
  both plaintiff and defendant are negligent.
• The jury compares the fault of each party and
  generally allocates the fault by percentage.

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First type of Comparative Negligence

• Pure Comparative Negligence
• This form of comparative negligence has been
  adopted by 13 states (see page 46).
• In this form the award to the plaintiff is
  reduced by the percentage of fault assigned to
  the plaintiff.
• Example suppose the award is 50,000 and the
  fault of the plaintiff is apportioned as 20 and
  the defendant 80. In this case, since the
  plaintiff is 20 to blame, the plaintiffs award
  would be reduced by 20 and the plaintiff would
  receive?
• 20 of 50,000 10,000 - 50,000 40,000.00

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Second type of Comparative Negligence

• Modified Comparative Negligence
• Within this area there are three rules.
• 49 Rule the plaintiff may NOT recover if the
  plaintiffs fault is equal to or greater than
  that of the defendant. Thus, the plaintiffs
  fault is between 1 and 49 percent.
• The 49 rule has been adopted in ten states.

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Second type of Comparative Negligence

• 50 Rule the plaintiff may NOT recover if the
  plaintiffs fault is greater than that of the
  defendant. Thus, the plaintiffs fault is between
  1 and 50 percent.
• The 50 rule is used in 19 states.
• Slight/gross system a variation of the 49
  percent rule in which the plaintiff may recover
  only if the negligence is slight in comparison
  with the defendants.
• This rule is older than the other two and is
  not a popular doctrine. It is only used in two
  states, NE, SD.

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More than one party at fault?

• Joint Tortfeasors
• Laws closely related to comparative negligence
  are those regarding liability when more than one
  party is at fault.
• In the past most courts have followed joint and
  several liability which states
• if more than one defendant is found liable,
  the liability of a defendant is not limited by
  the proportionate fault of that defendant.

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More than one party at fault?

• The doctrine mandated that when two defendants
  were found to be at fault, but one was more at
  fault than the other, the lesser could be ordered
  to pay a damage amount not equal to the degree of
  its own fault.

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Changes in Tortfeasors Legislation

• Tort reform in the 1980s changed how the
  tortfeasors guidelines were used.
• In many states legislated changes have been
  enacted so that a tortfeasors liability is
  limited to its proportionate share of the
  damages.
• Also, in the 80s most states passed statutes
  calling for equitable contribution among joint
  tortfeasors.
• Under this law if a tortfeasor has paid more than
  its share of damages, the tortfeasor can gain
  contribution from other tortfeasors by suing them
  in a separate action.

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Assumption of Risk

• The assumption of risk defense states that one
  may not recover from an injury to which one
  consents.
• When one voluntarily exposes oneself to known and
  appreciated risks, that person cannot recover
  from injuries resulting from those risks.
• The applicability of the doctrine depends on the
  nature and scope of the participants awareness
  and consent.

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Assumption of Risk

• This doctrine was one of the most popular and
  effective defenses until the comparative
  negligence doctrine was adopted by most states.
• The effectiveness of the doctrine varies greatly
  from state to state.
• Effectiveness based on the use of comparative or
  contributory negligence doctrines.

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Assumption of Risk

• There are two types of assumption of risk
• Primary assumption of risk
• The legal theory which involves consent of the
  participant and relieves the defendant of a
  duty which one might otherwise owe to the
  plaintiff with respect to participant risk.
• There are two types of primary assumption of
  risk
• Express assumption of risk
• Implied assumption of risk

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Assumption of Risk

• Express Assumption of Risk
• May take the form of a document such as a
  permission form or agreement to participate form
  in which the participant expressly agrees to
  accept the inherent risks of the activity.
• Implied primary assumption of risk
• Presumed when an individual has voluntarily
  participated in an activity that involves
  inherent or well-known risks.

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Implied Assumption of Risk

• Although the participant may not of signed
  anything, one is held to have consented by virtue
  of his or her voluntary participation, to those
  injury-causing events which are known and
  reasonably foreseeable.
• Implied assumption of risk act as a defense in
  that it relieves the defendant of a duty which
  might otherwise be owed to the plaintiff.
• Implied assumption cannot constitute a defense to
  a strict product liability claim against a
  manufacturer.

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Requirements for Implied Primary Assumption of
Risk

• To use the implied assumption of risk defense,
  three elements must exist.
• That the risk must be inherent to the activity.
• That the participant must voluntarily consent to
  the participation and the subsequent risk
  exposure.
• That the participant must know, understand, and
  appreciate the risks involved in the activity.

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Requirements for Implied Primary Assumption of
Risk

• Assumption of risk is not a valid defense in all
  jurisdictions.
• In jurisdictions were it is valid, the
  participant assumes only those risks that are
  inherent to participation in the activity.
• The participant does not normally assume risks
  incurred as a result of the negligence of the
  service provider unless the participant has
  signed a waiver.

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Secondary Assumption of Risk

• Secondary assumption of risk is a form of
  contributory negligence. Why?
• It involves the voluntary choice or conduct of
  the participant to encounter a known or obvious
  risk created by the negligent conduct of the
  service provider.

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Secondary Assumption of Risk

• Secondary assumption may occur in two types of
  situations.
• The participant voluntarily participates when
  there is a substantial risk that the defendant
  will act in a negligent manner.
• Example riding on a jet ski with someone who has
  a reputation for wild or careless acts.

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Secondary Assumption of Risk

• The second is when the service provider has
  already been negligent and the participant takes
  part anyway.
• Example playing baseball on a field that has
  obvious rocks and holes scattered about.
• In each case the conduct of the participant
  falls below the standard to which one is required
  to conform for ones own safety.
• Some jurisdictions break secondary assumption of
  risk into reasonable and unreasonable assumption
  of risk.

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Exculpatory Agreements or Waivers

• An exculpatory agreement or waiver of liability
  in the sport setting is a contract in which the
  participant or user of a service agrees to
  relinquish the right to pursue legal action
  against the service provider in the event of
  negligence of the provider results in injury to
  the participant.

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Exculpatory Agreements or Waivers

• A waiver is used to protect the service provider
  from injuries from one of three causes
• Inherent risks.
• Negligence by the service provider or its
  employees.
• More extreme acts by the service provider.
• The wavier is meant to protect the service
  provider from liability for the ordinary
  negligence of the service provider or its
  employees.

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Exculpatory Agreements or Waivers

• The validity of a waiver is determined by the law
  in the state.
• See table on page 63
• Requirements for a valid waiver
• Public policy a contract or waiver is not valid
  if it is against public policy that is, not in
  the best interest of the public or opposed to the
  duty one has to ones fellowman.

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Exculpatory Agreements or Waivers

• Public policy
• A waiver is generally against public policy if
  it
• It pertains to a service important to the public
• If the parties are not of equal bargaining power
• If there is an employer-employee relationship
• It attempts to preclude liability for extreme
  forms of conduct or gross negligence, reckless
  misconduct, willful or wanton conduct, or
  intentional acts.

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Exculpatory Agreements or Waivers

• Clarity of Language
• In order for a waiver to be enforceable, the
  intent of the document must be clear.
• In some states the word negligence is required
  in the document.
• The title waiver or release of liability
  should be on the agreement.

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Exculpatory Agreements or Waivers

• Consideration
• A valid waiver requires that something of value
  be exchanged between parties.
• The opportunity to participate constitutes
  consideration.

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Exculpatory Agreements or Waivers

• Parties to Contract
• Three points relate to the parties involved in an
  exculpatory agreement
• The capacity to contract (age)
• Parties barred from redress
• Parties protected by the contract

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Exculpatory Agreements or Waivers

• Capacity to contract
• The general rule is that a minor may disaffirm a
  contract made by the minor or by the parent on
  the minors behalf.
• However, courts in three states (GA, CA, IN) have
  indicated that under certain circumstances
  exculpatory agreements signed by the parent or by
  the parent and the minor may not be disaffirm.

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Exculpatory Agreements or Waivers

• Spouse or heirs of injured individual
• While the law varies by state, the majority of
  states provide that the loss of consortium or
  wrongful death claim of the spouse or heirs is
  dependent upon whether the signer has or would
  have had a valid claim.
• Language is usually placed in the waiver to
  address the rights of heirs or spouse.

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Exculpatory Agreements or Waivers

• Waivers on tickets
• Waivers, or more accurately disclaimers of
  liability are often found on the back of tickets,
  however, there have been no cases in which the
  waiver provided the service provider with
  protection.
• Patron is unaware of the language
• Nothing is signed
• There is no harm in using such disclaimers, but
  the service provider should operate on the
  assumption that the statement will not
  effectively protect the business.