Chapter Six: Defenses A' The Plaintiffs Fault

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Chapter Six Defenses A. The Plaintiffs Fault

• Duty
• Breach
• Causation
• Cause in fact
• Proximate cause
• Damage or injury
• Defenses
• Immunity
• Contributory negligence/comparative fault
• Assumption of the risk

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Chapter Six Defenses A. The Plaintiffs
Fault 1. Contributory Negligence

• Duty to use due care to protect oneself from
  physical injury
• Breach
• reasonable person standard
• perhaps more willing to take mental capacity into
  account
• Learned Hand formula, role of custom, violation
  of statute,etc. all can be used to establish the
  std of care
• Causation
• actual cause
• proximate cause

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Chapter Six Defenses A. The Plaintiffs
Fault 2. Comparative Fault
The questions to ask 1) How is comparative
fault calculated? 2) What happens if there is
more than one possible defendant in the case? A)
Is there joint and several liability? B) Do
defendants have rights of contribution or
indemnity? C) What happens if a defendant is
insolvent? D) Are there set offs if defendants
have counterclaims against plaintiffs? E) How
are settlements taken into account?
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Chapter Six Defenses A. The Plaintiffs
Fault 2. Comparative Fault
Li v. Yellow Cab, 532 P.2d 1226 (Cal.
1975) Plaintiff was making a left hand turn into
a gas station, just ahead of an intersection
controlled by a traffic light. The light turned
yellow, and defendant speeded up to get through
the intersection. Plaintiff turned too closely
in front of defendant, who was going too fast to
stop.
What percentage of fault would you assign to each
party?
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Chapter Six Defenses A. The Plaintiffs
Fault 2. Comparative Fault

• nature of the conduct of each party at fault and
• the extent of the causal relation between the
  conduct and the damages claimed.

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Chapter Six Defense The Plaintiffs
Fault 2. Comparative FaultProblem page 441
What are the rights of your client, C, in the
following situation There has been an accident
in which A has suffered damages of 40,000 and
has brought suit against B,C, and D. A trial has
established the relative shares of fault are A
-- 40 B -- 30 C -- 10 D -- 20 Assume all
parties are solvent.
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Chapter Six Defenses A. The Plaintiffs
Fault 2. Comparative Fault
What are the rights of your client, C, in the
following situation There has been an accident
in which A has suffered damages of 40,000 and
has brought suit against B,C, and D. A trial has
established the relative shares of fault are A
-- 40 -- 16,000 B -- 30 -- 12,000 C -- 10 --
4,000 D -- 20 -- 8,000 Assume all parties
are solvent. UCFA A has a judgment against C
for 24,000 ( 1, 2(c)). If C pays more than
4,000, he has a right of contribution against B
and D (UCFA 4 (a)) CA Same, except no joint
and several liability for non economic losses
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Chapter Six Defenses A. The Plaintiffs
Fault 2. Comparative Fault
What are the rights of your client, C, in the
following situation There has been an accident
in which A has suffered damages of 40,000 and
has brought suit against B,C, and D. A trial has
established the relative shares of fault are A
-- 40 B -- 30 C -- 10 D -- 20 At trial, it
appears that D is insolvent.
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Chapter Six Defenses A. The Plaintiffs
Fault 2. Comparative Fault
What are the rights of your client, C, in the
following situation There has been an accident
in which A has suffered damages of 40,000 and
has brought suit against B,C, and D. A trial has
established the relative shares of fault are A
-- 40 (16,000) B -- 30 (12,000) C -- 10
( 4,000) D -- 20 ( 8,000) At trial, it
appears that D is insolvent. UCFA 2(d) As
share of Ds liability -- 4/8, or 4,000 Bs
share of Ds liability -- 3/8, or 3,000 Cs
share of Ds liability -- 1/8, or 1,000 C and B
are jointly and severally liable to A for
20,000. C has a right of contribution against B
if C pays more than 5,000. All parties retain
their rights against D, should he become
solvent. CA B and C are liable for Ds share
of the economic damages, dividing it 31.
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Chapter Six Defenses A. The Plaintiffs
Fault 2. Comparative Fault
What are the rights of your client, C, in the
following situation There has been an accident
in which A has suffered damages of 40,000 and
has brought suit against B,C, and D. A trial has
established the relative shares of fault are A
-- 40 B -- 30 C -- 10 D -- 20 Assume all
parties are solvent. C has also been hurt and
has sustained damages of 25,000.
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Chapter Six Defenses A. The Plaintiffs
Fault 2. Comparative Fault
Assume all parties are solvent. C has also been
hurt and has sustained damages of 25,000. A, B
and D are jointly and severally liable to C for
22,500 (25,000 - 10) As share 10,000 Bs
share 7,500 Ds share 5,000 UCFA 4(a) C
is still jointly and severally liable to A for
24,000. California Same result for economic
losses. A is only severally liable for Cs non
pecuniary losses.
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Chapter Six Defenses A. The Plaintiffs
Fault 2. Comparative Fault
p. 447, note 8 P sues D1 and D2, claiming
damages in the amount of 50,000. D1 and P
settle for 10,000 before trial. At trial, the
jury determines that Ps damages were 30,000.
The jury finds D1 50 at fault and D2 50 at
fault. What is D2 liable for?
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Chapter Six Defenses A. The Plaintiffs
Fault 2. Comparative Fault
p. 447, note 8 P sues D1 and D2, claiming
damages in the amount of 50,000. D1 and P
settle for 10,000 before trial. At trial, the
jury determines that Ps damages were 30,000.
The jury finds D1 50 at fault and D2 50 at
fault. What is D2 liable for? A) UCFA
15,000 (UCFA 6) B) California If the
judgment is for economic loss, 20,000, without
any right of contribution against D1, if the
settlement was in good faith. If the judgment is
for non pecuniary loss, D2 is only severally
liable for 15,000 (regardless of the settlement).
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