JOINT TORTFEASORS
I. Contribution: If one Δ has paid more than his pro rata share, he may seek partial reimbursement (i.e. contribution) from other Δ’s.
II. Settlement: General rule: Once you settle, you’re out of the case. Otherwise, there is no incentive to settle if subject to contribution/indemnity
III. Indemnity: 100% shifting of liability. When you have one Δ who has paid some or all of the π’s damages, that person can be indemnified by the other tortfeasor for everything that he paid. Usually in vicarious liability (i.e. one Δ tortfeasor brings injury and another Δ liable via vicarious liability).
IV. Aggregation: If the jurisdction aggregates, they you compare the plaintiff’s fault with the sum of the defendant’s fault. Keep in mind that there are two types of modified fault systems; not greater than and not greater than or equal to
V. Collateral source rule: Payments made to or benefits conferred on the injured party-plaintiff from other (collateral) sources do not count against the tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is liable.
Applies To: Insurance policies; employment benefits; gratuities; social legislation benefits. This rule does not apply to payments made by the tortfeasor or those acting on his behalf (Defendant’s insurance company)
DEFENSES TO NEGLIGENCE
Contributory Negligence (Mostly outdated)
Conduct of P that is a contributing cause of his own harm and that falls below the standard of care to which he is required to conform for his own protection
i. Complete bar to recovery if P’s conduct is cause-in-fact and prox. cause of injury
Exception:
i. If P is part of the class to be protected by statute
Was it contributory negligence or assumption of risk?
If CN, will not reduce damages and raises question of whether training he receives was adequate.
If not trained properly, no knowledge = No assumption of risk
If knowledge, did he voluntary encounter the risk = assumption of risk
II. Imputed Contributory Negligence:
Where contributory negligence of one partner or joint venturer will be imputed to the other when the other is a plaintiff suing a third party.
III. Comparative Negligence
Pure Form (allowed to recover even if contributed to it)
i. P’s recovery reduced by exact % of P’s fault
Modified Form
i. P recovers so long as negligence not greater than D’s
ii. Do they Aggregate???
Uniform Comparative Fault Act
i. Trier-of-fact determines percentage of fault of each party
Assumption of Risk
Elements:
If P expressly or impliedly consents to confront harm to a particular risk, recovery is barred if:
i. P recognized and understood the danger;
ii. AND P voluntarily chose to encounter the danger.
1. Express: by contract or other; P explicitly agrees to accept risk
2. Implied: Jury implies by P’s actions
Treatment of Assumption of Risk under Comparative Negligence:
i. Approach 1 (Minority):
1. Assumption of Risk remains complete or partial bar to recovery
ii. Approach 2 (Majority):
All implied assumption of risk is comparative.
Public Policy Exceptions:
i. Must show services vital to public
ii. Practical necessity for some members to use facility
iii. Lack of meaningful alternative
Signeur v. NFI
Plaintiff signed release in Adhesion contract relieving club of all liability. Sued club for vicarious liability of employee who conducted evaluation.
Questions: Did she know of the risk and exercise a voluntary will to do so?
Rush v. Commercial Realty Co.
Plaintiff walks in to use the bathroom and falls through the floor
A contract of adhesion is enforceable unless it is void if there is evidence of mistake, fraud, duress or deceit or false into the public
ge)
Harm attaches as long as harm is typical to the abnormally dangerous activity
– similar to FORESEEABILITY in negligence
4. Policy of S/L:
a. Activity Effects – incentive placed on D to use utmost care in activity or get out
1. incentive to shift to another practice or place where no unreciprocal risk
b. Systematic Proof – relieves P from having to prove mental state
c. Market Deterrence – some activities are so dangerous and if no demand for them they shouldn’t be in marketplace
IV. Four Step Approach to SL Problems
A. Determine if within class of SL animals or SL activities (abnormally dangerous).
B. Determine whether the harm suffered was within the inherent risk – e.g. blasting/minks.
C. Causation – Analyze foreseeable harm; intervening events.
D. Defenses
1. Contrib Negl – not a defense
2. Comp Fault – depends on jurisdiction. Some will use to decrease recovery.
3. A/R – is a defense. Knowing and voluntary.
4. D’s lack of scienter – Unless SL by statute, most jurisd require D’s knowledge of dangerous domestic animal or activity
5. Privilege/Legal Sanction – e.g. govt immunity or private D doing things for public good
**S/L will not lie unless P shows that the risk involved cannot be eliminated through D’s use of reasonable care.
CASE:
Indiana Harbor Belt – not chemical’s inherent property that is dangerous. Reasonable care could have reduced risk. = No Strict Liability
Foster v. Preston – Mink died from vibrations = No S/L
Golden v. Amory
The defendant operated a dike and hydroelectric plant. A hurricane caused the Chicopee River to over flow causing damage to the real estate of the plaintiff.
Ct = There is no liability because the hurricane was an “Act of God” which the defendant could not have anticipated.
