Professor Grant- Torts II Spring Semester 2014
Defenses to negligence action:
· Contributory negligence
· Comparative negligence
· Assumption of risk
· Immunity
· Statutes of limitation and repose
·
Contributory Negligence v.
Comparative Negligence
Total bar to recovery except for ameliorating doctrines
Partial Bar to recovery: most do not accept ameliorating doctrines
5 jurisdictions still have it…NC
45 jurisdictions
Element: Breached standard of care
Element: Breached standard of care
Element: Factual and proximate cause
of the accident resulting in injury
Element: Factual and proximate cause of the accident resulting in injury
3 different approaches to comparative negligence:
· Pure comparative fault: the plaintiff recovers a percentage regardless of the extent of there own negligence
· Modified 49% comparative fault: if the plaintiffs fault if 49% or less can recover, cannot be equal to or greater than the defendants share
· Modified 50% comparative fault: if the plaintiffs fault is 50% or less to recover, can be equal to but cannot be greater than the defendants share
Ameliorating Doctrines:
· Reckless or willful and wanton conduct: if the defendants acts are reckless or willful and wanton, plaintiff is not liable for contributory negligence. Exception: if the plaintiff is also willful and wanton and their act is as bad as or worse than defendants, ameliorating doctrine does not apply.
· Last clear chance doctrine: if the defendant had the last chance to avoid the accident the plaintiff is not liable for contributory negligence. Elements:
o Plaintiff by own negligence places herself in a position of peril from which she could not escape
o Defendant saw or by the exercise of reasonable care should have seen and understood, the perilous position of the plaintiff
o Defendant had the time and the means to avoid the accident if defendant had seen or discovered plaintiff perilous position
o Defendant failed or refused to use every reasonable means to her command to avoid impending injury to plaintiff
o Plaintiff was injured as a result of defendants failure or refusal to avoid impending injury
· Imminent peril rule: a plaintiff who acts negligently in a stressful or dangerous situation created by a defendant is not liable for contributory negligence. (House burning because someone set it on fire and the plaintiff goes in after a pet)
· Comparative negligence’s effect: ameliorating doctrines, do they still apply in comparative negligence jurisdictions?
o Not in most comparative fault jurisdictions
o Some jurisdictions use in assessing the degree of comparative fault of the parties – one of many factors that goes to determining that relative culpability of the parties
Express assumption of risk (absolute defense):
Exculpatory agreements:
· Express agreements to assume the risk, oral or written
· Generally valid as public policy supports freedom to contract
Exculpatory agreement may be void for:
· Conduct that is fraudulent, wanton/willful or gross negligence; or
· Parties have unequal bargaining power; or
· Would affect the public interest
o Those charged with a public duty necessarily includes the obligation to use reasonable care and be against public policy to allow to contract out
o Recognized categories are common carrier, an innkeeper, a professional bailee, a public utility, attorneys, doctors
Implied assumption of risk:
“Unqualified” Secondary implied assumption of risk (traditional defense) North Carolina:
· Complete defense – all or nothing
· Elements:
o Knowledge of the risk
o Appreciation of the risk
o Voluntary assumption of the risk
· Subjectively assessed
· May overlap with contributory negligence
Qualified secondary assumption of risk
· Complete defense – all or nothing
· Elements:
o Knowledge of the risk
o Appreciation of the risk
o Voluntary assumption of the risk
o Whether objectively unreasonable for plaintiff to expose herself to the risk
· Because of the fourth element’s effect secondary qualified assumption of risk is a complete overlap with contributory negligence.
· Impact of comparative fault:
o Express assumption of risk
§ No impact – still a complete defense
o Secondary implied assumption of risk
§ Minority: no impact, s
ncerned with division of liability between joint tortfeasors
Joint and several liability:
· Several concurrent negligent cause produce the loss, each negligent defendant is fully responsible for the plaintiffs damages if the harm is indivisible
· Allocation of liability under joint and several liability
o Pro rata share
o Tradition approach and approach in North Carolina
Several liability:
· Will operate only where the harm is distinct or separate.
· Each tortfeasors is responsible only for their distinct share of the harm
Comparative fault and joint & several liability
· Does j & s liability still apply in a comparative fault jurisdiction?
· No consensus as to operation – see restatement—provides 5 different tracts (not tested)
Indemnity:
· Compels one tortfeasors to completely reimburse another who has paid a judgment to a plaintiff (comparative negligence states)
· Is all or nothing
· Right to indemnity dependent upon:
o Contractual duty to indemnify
o Relationship implies duty to indemnify
§ Employer/employee
§ Owner of motor vehicle/driver
§ Manufacturer/retailer
§ One who wrongfully directs or induces another to commit the negligent act
§ One tortfeasors negligence supersedes the others
Contribution
· Applies only to situations of indivisible harm between tortfeasors
· Seek contribution by:
o Implied potential tortfeasors and court assesses contribution or
o Sue other tortfeasors for contribution in later proceeding
· Contribution not available to intentional wrongdoers but c.f. third restatement- negligent or intentional
· Prior to comparative fault (contributory negligence state)
o Contribution pro-rated
· Comparative fault jurisdictions
o Comparative contribution- based upon relative fault of the tortfeasors
