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 1. Contributory Negligence

• Ways in which courts moderated the effect of the
  complete bar on recovery
• adjusting the standard of care childhood,
  mental incapacity
• violation of statute / protected class
• burden on D.
• sending cases to the jury
• last clear chance

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Chapter Six Defenses A. The Plaintiffs
Fault 2. Comparative Negligence
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 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 (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
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? 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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Chapter Six Defenses B. Assumption of the
Risk 1. Express Agreements

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

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Chapter Six Defenses B. Assumption of the
Risk 1. Express Agreements
1. Was the agreement effective? Was it brought
to the plaintiffs attention? Does the agreement
cover the injury that occurred? Does the
agreement cover the person who was injured? 2.
Is the agreement enforceable, as a matter of
law? Dalury v. S.K.I. Tunkl v.
Regents Virginia rule
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Chapter Six Defenses A. The Plaintiffs
Fault 3. Assumption of the Risk

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

Negates!
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Chapter Six Defenses B. Assumption of the
Risk 2. Implied Assumption of Risk

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

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Chapter Six Defenses B. Assumption of the
Risk 2. Implied Assumption of Risk
The traditional test for assumption of the risk
(Davenport, p. 477) 1. The plaintiff must have
knowledge of the facts constituting a dangerous
condition 2. The plaintiff must know that the
condition is dangerous 3. The plaintiff must
appreciate the nature and extent of the
danger 4. The plaintiff must voluntarily expose
herself to the danger. Before the advent of
comparative fault, if these elements were
established, the plaintiff recovered nothing.
What happens after the advent of comparative
fault?
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• Assumption of the risk The basic problem
• Defendant creates risk of harm to plaintiff, or
  allows one to exist
• Risk is perfectly obvious,
• Plaintiff encounters the risk and is injured.
• What justified an absolute bar on recovery?
• If the risk is obvious, defendant has no duty to
  protect you from it.
• If the risk is obvious and reasonable, the
  reasonable person would not bother to eliminate
  it, and there is no breach.
• If the risk is obvious, it is your own fault if
  you are harmed.
• If the risk was obvious, you cant complain if
  you chose to encounter it, because you agreed to
  assume the risk.

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Chapter Six Defenses A. The Plaintiffs
Fault 3. Implied Assumption of the Risk
The sports cases Primary assumption of the
risk. Where a participant in an active sport is
injured by one of the inherent risks of the
activity, she cannot recover because There is no
Duty participants in an active sport owe only a
duty to avoid intentionally or recklessly
injuring another. Breach Causation Defenses Damage
or injury
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Chapter Six Defenses A. The Plaintiffs
Fault 3. Implied Assumption of the Risk
Why does the court conclude that careless
behavior by another player is one of the
inherent risks of the game? -- to avoid
chilling participation in active sports -- to
avoid altering the fundamental nature of the
activity Compare the approach in Lestina, p.
573
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• Duty
• Breach
• Causation
• Cause in fact
• Proximate cause
• Damage or injury
• Defenses
• Immunity
• Contributory negligence/comparative fault
• Assumption of the risk
• Express
• Implied
• Primary, implied

Limits!
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Chapter Six Defenses B. Assumption of the
Risk 2. Implied Assumption of Risk
The sports cases Primary assumption of the
Risk 1) Can the batter in the batting circle
recover? See note 6, p. 472. What is the
difference between the approach taken in Knight
v. Jewett and the approach taken in Lestina v.
West Bend Mut. Ins.? 2) Can the 4 year old
spectator recover? See note 7, p. 475. What is
the difference between the majority and the
dissenting opinions in the Davidoff case? How
could a court come to the conclusion that no
screened seats need ever be provided? (see
Neinstein, note 7 p. 476.
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Chapter Six Defenses B. Assumption of the
Risk 2. Implied Assumption of Risk

• Duty
• No duty because primary assumption of the risk
  precludes recovery.
• Breach
• Causation
• Defenses
• Contributory negligence/comparative fault
• Assumption of the risk
• Damage or injury

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Chapter Six Defenses B. Assumption of the
Risk 2. Implied Assumption of Risk
The traditional test for assumption of the risk
(Davenport, p. 477) 1. The plaintiff must have
knowledge of the facts constituting a dangerous
condition 2. The plaintiff must know that the
condition is dangerous 3. The plaintiff must
appreciate the nature and extent of the
danger 4. The plaintiff must voluntarily expose
herself to the danger. Before the advent of
comparative fault, if these elements were
established, the plaintiff recovered nothing.
What happens after the advent of comparative
fault?
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Davenport v. Cotton Hope Plantation How should
we think about the problem? 1) The defendant had
no duty to the plaintiff, so it doesnt matter
whether or not he was negligent. 2) The
defendant was never negligent in the first place,
because the risk was obvious (or inherent in the
activity) and reasonable. 3) The plaintiff was
the one who was at fault, because he unreasonably
decided to encounter a risk that was obvious to a
reasonable person 4) The plaintiff cant
complain, because he consented to take on the
risk. .
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Chapter Six Defenses A. The Plaintiffs
Fault 3. The Firefighter rule

• Roberts v. Vaughan, p. 484
• How would you establish
• Duty
• Breach
• Causation
• Defenses
• comparative fault
• assumption of risk
• Damage or injury

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Chapter Six Assumption of the Risk
I. If you arent in Rhode Island If the
defendant argues that the risk was obvious to the
plaintiff, or would have been obvious to a
reasonable person or is inherent in the
activity 1) Did the defendant owe the
plaintiff a duty? -- was it an inherent risk
primary a/r -- is there no duty to protect
from negligence (sports) -- open obvious
danger rule in premises liability, swimming
pool cases -- does the firefighters rule
apply If there was a duty 2) Was the defendant
negligent at all? If so, 3) Was the plaintiff
also at fault because he unreasonably chose to
encounter the risk? Plaintiffs recovery is
reduced.
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Chapter Six Assumption of the Risk

• II. If you are in Rhode Island? (a jurisdiction
  where a/r is still a complete defense)
• Then, the key is actual awareness consent
• The plaintiff must have knowledge of the facts
  constituting a dangerous condition
• The plaintiff must know that the condition is
  dangerous
• The plaintiff must appreciate the nature and
  extent of the danger
• The plaintiff must voluntarily expose herself to
  the danger, under circumstances that indicate
  that the plaintiff has acquiesced in the risk.

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• Duty
• Breach
• Causation
• Defenses
• Contributory negligence/comparative fault
• Assumption of the risk
• -- express
• -- primary implied a/r
• -- secondary implied a/r Form of comparative
  fault
• Damage or injury

Negate duty, complete defense