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Torts II
Elon University School of Law
Grant, Helen

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)


· 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


· 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