Torts II Outline

Torts II Outline
Professor Susan Rowe
Spring 2011
 
I.       Defenses base on Plaintiff’s Conduct (Chapter 16)
a.       Sometimes a defense can be a complete bar to recovery while other times it can reduce or mitigate damages. 
b.      Defenses do not apply to intentional torts or reckless behavior – only to negligence claims
c.       Contributory Negligence (only a defense against negligence, not reckless or intentional behavior or torts)
                                                              i.      Complete bar to recovery
                                                            ii.      Very harsh in application
                                                          iii.      Only four states still use this including North Carolina
                                                          iv.      Was thought be to good public policy during industrial expansion of the late 1800s and early 1900s.
                                                            v.      Courts will frequently refuse to rule on contributory negligence and leave it to the jury hoping they may overlook minor contributions from the plaintiff.
d.      Imputed Contributory Negligence
                                                              i.      A plaintiff will not be barred from recovery by the actions of a 3rd party
                                                            ii.      Parent mistake would not be imputed onto the child who could still recover.
1.      Western Union v. Hoffman (p. 748)
a.       A child was injured and the father sent a telegram to the doctor
b.      Mistake made and telegram never sent but the father never followed up.
c.       Child was allowed to recover for damages against the telegraph company but father could not.
d.      Father’s contributory negligence for failing to follow up was not imputed onto the child
                                                          iii.       “Both ways rule” – if the negligence of a third person would have been imputed to a person as a defendant, then the negligence would be imputed to the person as a plaintiff (e.g. boss’s mistake imputed to the employee)
                                                          iv.      Respondeat superior – let the master answer for the subordinate (opposite of both-ways rule)
e.       Last clear chance
                                                              i.      Restriction on contributory negligence
                                                            ii.      If the defendant had the last clear chance to avoid the accident or incident through the exercise of ordinary care, then the contribution of the plaintiff is disregarded.
                                                          iii.      Once the defendant discovers the peril (or should have discovered it) the defendant must have sufficient time and ability to avoid it.
f.       Comparative negligence
                                                              i.      Causes a partial reduction in the damages a plaintiff may collect
                                                            ii.      46 states use a variation of this doctrine
                                                          iii.      Three variations on this doctrine
1.      Pure comparative negligence
a.       Simple reduction of the award based on the percentage of responsibility assigned to each party
b.      Can range from 1 to 99% liability
2.      Modified contributory negligence
a.       Up to a maximum of 50% liability to the plaintiff
b.      After that maximum, no collection of damages
c.       Why reward a plaintiff who is mostly responsible for the incident
3.      Slight-gross approach
a.       Damages are apportioned only if the plaintiff’s contribution is “slight” and the defendants contribution is “gross”
b.      Only one state uses this variation (not discussed in class)
                                                           iv.      Hilen v. Hays (p. 750)
1.      Hilen was severely injured when the drunk driver of her vehicle (Hays) crashed.
2.      Was it contributory negligence if she got in the car knowing the driver was drunk?
3.      The courts of Kentucky changed the pervious contributory negligence standard of their state to one of comparative negligence (modified form) with this ruling.
4.      They thought pure contributory negligence was way too harsh a doctrine and that the legislature was stuck in political bickering so couldn’t change it after multiple attempts.
g.      Assumption of the risk
                                                              i.      This is about the adventurousness of the plaintiff.
                                                            ii.      Contributory negligence and assumption of the risk frequently occur together – once focuses on the defendant and the other on the plaintiff.
                                                          iii.      Three types
1.      Express assumption of the risk
a.       A very explicit and usually written agreement between the parties
b.      Contract must adequately describe the conduct that will occur and the behavior that is forgiven
c.       Cannot be against public policy
d.      Cannot be ambiguous in any way – resolved in favor of the plaintiff
                                                                                                                                      i.      Gross v. Sweet (p. 758)
1.      Gross went to a parachuting school to learn how to do it.
2.      He was seriously injured while jumping
3.      The release he signed was not clear enough and the defense was tossed out.
2.      Primary implied assumption of the risk
a.       Participation in the activity voluntarily by the plaintiff relieves the defendant of the duty to take care
b.      The plaintiff understands the risks and chooses to confront them.
                                                                                                                                      i.      Coleman v. Ramada Hotel (p. 754)
1.      At a company party one of the people elected to join in running an obstacle course
2.      She ran up a slide backwards, fell down the other side and was seriously injured
3.      She didn’t have to do but chose to anyway
4.      The risk she undertook was “intrinsic to the activity.”
5.      No recovery based on primary implied a