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Torts II
University of Georgia School of Law
Leonard, Elizabeth Weeks

Torts II
Professor Leonard/Spring 2013
1)     Chapter 6. Defenses
A.      The Plaintiff’s Fault
1.       Contributory Negligence: By far the most common defense against the plaintiff’s claim. This defense says that even if the defendant was negligent toward the plaintiff, the plaintiff was careless about his or her own safety and was “contributorily” negligent.
a)      Elements: The common law elements of the defense parallel those of the basic negligence claim – except in the sense that any duty owed is to one’s self rather than to others.
(1) The conduct must be an actual cause of the plaintiff’s harm.
(2) The plaintiff’s negligence must also be a proximate cause of the plaintiff’s harm.
(3) The plaintiff normally has the burden of proving freedom from contributory negligence, although many states have switched that burden to the defendant.
b)     Effect: When a defense of contributory negligence was established, the effect was a total bar to recovery. This feature of the system produced a range of legal doctrines to ease the import of the contributory negligence defense on certain plaintiffs.
(1) Statutes: In some situations where a statutory command is understood to be an effort to protect some group against its own inability to protect itself the statute may be interpreted as barring a defense of contributory negligence.
c)      Limitations on contributory negligence:
(1) Recklessness: misconduct of the defendant was more serious – recklessness or willful misconduct – the appropriate defense would have been “contributory recklessness” or “contributory willful misconduct.”
(2) Last clear chance: If, just before the accident, D had an opportunity to prevent the harm, and P did not have such opportunity, the existence of opportunity wipes out the effect of P’s contributory negligence.
(a)   Inattentive defendant: because of D’s inattentiveness D failed to discover the plight and thus never had a chance to deal with it, most courts would also apply the last clear chance doctrine.vs helpless… helpless D is judged according to a known or should have known standard while inattentive must have actual knowledge
(b)  Antecedent negligence: for last clear chance to apply according to most courts, D must have had an actual opportunity to avoid the harm at the last moment
(c)   Chronological aspect: Generally, the doctrine was regarded as having a chronological aspect.
(d)  Effect: LCC-the fact that the plaintiff was contributorily negligent became totally irrelevant and the plaintiff recovered all appropriate damages with no offset.
(3) Let it go to a jury- less willing to completely bar recovery
(4) Refusal to impute negligence ((c) p 436)- case of kid on escalator- child’s recovery cannot be barred bc of mom’s imputed CN
2.       Comparative Negligence:
a)      Definition: rejects the all-or-nothing approach of contributory negligence. It instead attempts to divide liability between P and D in proportion to their relative degrees of fault. Amount of damages otherwise recoverable shall be diminished in proportion that culpable conduct of claimant bears to culpable conduct that caused damages. In personal injury/death/prop damage, any contributory fault chargeable to claimant diminishes proportionally the amt awarded as comp damages for any injury attributable to claimant’s contrib fault but does not bar recovery.
(1) Commonly adopted: 46 states have adopted some form of comparative negligence.
b)     3 types:
(1) Pure- recover for what wasn’t your fault
Other two are modified- depends on jurisdiction
(2) modified where can recover if not as great as
(3) or modified where can recover if not greater than- so in this you can recover if equal fault bar, but not in the one above
*hypos from class- using statutes with language of greater than or as great as, etc. Nebraska is no greater than, Ohio is as long as it isn’t greater than
* OCGA 51-12-33:g) if P 50% or more responsible, no recovery- in GA, tie goes to D, like in Nebraska
c)      “Pure” versus “50%” systems: Only 13 states have adopted “pure” comparative negligence. The rest completely bar P if his negligence is (depending on the state) “as great” as D’s, or “greater” than D’s.
d)     Multiple parties: Where there are multiple defendants, comparative negligence is harder to apply:
(1) All parties before court: If all defendants are joined in the same lawsuit, the solution is simple: only the negligence due directly to P is deducted from her recovery.
(2) Not all parties before court: If not all defendants are before the court, hard questions arise concerning joint-and-several liability. issue is whether the defendant(s) before the court, who is/are found to be only partly responsible for P’s loss, must pay for the whole loss aside from that caused by P’s own fault.
e)      Extreme misconduct by D: If D’s conduct is not merely negligent, but “willful and wanton” or “reckless” most states nonetheless will reduce P’s damages.
(1) Intentional tort: But if D’s conduct is intentional, most comparative negligence statutes will not apply.
f)       Uniform Comparative Fault Act- The Uniform Act takes the pure approach to comparative negligence, but also expands upon it. It provides for compar­ative fault, not just negligence, and includes strict liability, aggravated negligence, breach of warranty, and the like- no last clear chance has any relevance under this. * under this act can still compare recklessness to negligence; but how to compare percentages?
g)      Notes case- Wright v. City of Knoxville- main pt- appeals cts unlikely to reassess allocation of fault of percentages unless totally indefensible (so this case is exception, not rule)
h)     Comparative contribution-For indemnity, all or nothing (ie respondeat superior)
i)       Recklessness- used to ameliorate ContNeg at common law, but in CompNeg, most courts compare reckless conduct to negligence
·         also, socially offensive conduct (Barker v. Kallash-case of boy suing because pipe bomb he was making exploded in hand)usually not recoverable if P’s  conduct was serious breach of laws and injuries for which he seeks damages are direct result of that violation.
·          Significance of what actor is seeking to accomplish by his conduct- blindfolded game vs being blindfolded as part of sensitivity training.- note 2 p 444: in determining percentage of fault trier of fact should consider inadvertence or deliberate behavior and magnitude of  risk and significance of what actor was seeking to obtain, the superior or inferior capabilities, and particular circumstances.- could go to both sides when comparing fault but probably more used to determine P’s conduct
·         does superceding cause even have a place in comparative regime? If harm within the risk, then intervening negligence can’t be a superseding cause- according to note 16b p451- case of Barry v. Quality Steel
·         Alami v. VW limited Barker in that duty did not arise out of illegal act, arose from general duty to design car with reasonable care.
·          other court with similar facts to Barker did allow recovery on public policy reasons to keep companies from making defective explosives
j) intentional torts can’t use either CNs as excuse bc diff “types” of torts
k) Veazey v. Elmwood Plantation- P sued D landlord for not keeping up property and she was raped. Held D liable for all damages, even those of intentional un-identified tortfeasor rapist. Landlord wanted his proportion of damages reduced by those attributable to unidentified rapist
l)    Impact of severable liability- apportioning fault to negligent and intentional tortfeasors- WTC case- 68% to port authority, rest to terrorists that actually exploded bomb- this bc port authority had proof for yrs that WTC was target of terror attacks
m) Mary Carter agreements- shady ways that D will make agreement to help P get more money from other Ds- ok if agreement is revealed
n)  Changes caused by CompNeg:
1) res ipsa loquitor
2) proximate cause- if harm is within the risk, intervening negligence cannot be superceding
3) Rescue
4) the drinking P- could use CompNeg to deter both parties from conduct (drinking P and vendor)
5) Fritts v. McKinne- Fritts and friend Manus were drinking one night, and proceeded to get behind the wheel.  The reason for hospitalization is irrelevant, even if self-induced. Reasoning: The court holds that no matter the reason for being in the hospital, the plaintiff still deserves non-negligent medical care. They also hold that the defense of the artery rupturing inevitably was proper.
o    However, the negligence in the automobile accident was irrelevant.
·         There are only a few circumstances where patient conduct can constitute comparative negligence…The surgery was five days after the accident; alcohol was not an issue here.
o    The court also held that the jury instructions were invalid–The evidence of history can affect the damages however;
o    That was an adequate defense for damage mitigation.
o    student law review note- this is like an egg shell P- take them as you find them
o    court’s bottom line in these cases seems to be how P got himself into mess of needing treatment is not relevant to physician’s treatment.
o    Maybe like Last Clear Chance- P was negligent in getting to hospital, but D failed to act correctly when he could have.
3.       Avoidable Consequences:
a)      Definition: Even if the accident was entirely the defendant’s fault, the plaintiff’s recovery might be reduced by failure to exercise due care to mitigate the harm done.
b)     P’s failure to get medical attention: Courts have generally refused to award damages for complications that could have been avoided by the exercise of due care after the accident. There are some exceptions:
(1) Recognized risk of treatment: Courts generally hold that a plaintiff is under no duty to undergo surgery to mitigate damages. At the least, P is never required to undergo risky medical treatment-Hall v. Dumitru court refused to distinguish between major and minor surgery- just said that crucial line was if treatment involved a “recognized risk.”
(2) Religious beliefs: Courts split on result in cases where P refuses treatment based on religious beliefs.
c)      Seat belt defense: The seat belt defense is increasingly accepted in comparative negligence jurisdictions.
(1) Contributory negligence jurisdiction: In most such jurisdictions, courts refuse to allow the seat belt defense at all. P’s failure to wear SB doesn’t count against his recovery in most courts.
(2) Comparative negligence jurisdiction: But in states that have comparative negligence, the seat belt defense is more successful.
(a)   Effect of statute: 32 states have mandatory seatbelt use statutes. But the majority of these either prohibit the seat belt defense completely or make the defense almost valueless by allowing only a small reduction of damages. (see Meyer v. City of Des Moines p. 457 where Ps damages could only be limited by 5% for failure to wear a helmet)
(3) Even under regime of contributory negligence, efforts by Ds to bar recovery due to anticipatory avoidable consequences (failure to wear seatbelt, helmet) are refused.
(4)  Comparative negligence- maybe relative- jurisdictions variety of approaches- not relevant in a tort case, or slight reduction (see case above from Des Moines), California/NY will allow failure to wear seatbelt/helmet to reduce damages but D has burden to show what harm resulted as failure to wear helmet/seatbelt. Some you can get reduction in damages but never more than 50%.
(5) Idea of egg shell plaintiff- get them as you find them?
(6) that seatbelt use is widespread, has that changed the reasonable person standard?
4.       Assumption of Risk
5.                       a) Two types- express and implied. This is a side step like ContNeg and CompNeg- D says yes I may be negligent but  so is P- with assumption of risk, D says I may be negligent, but you Plaintiff knowingly assumed this risk
b)      Nature of the doctrine: A plaintiff is said to have assumed the risk of certain harms if she has voluntarily consented to take her chances that the harm will occur
·         Cutting back of doctrine: However, most courts which have adopted comparative negligence now hold that assumption of risk is no longer an absolute defense, but merely a consideration to be taken into account    
c)       Classes of assumption of risk: divided into two basic categories, express and implied assumption.
d)      Express assumption of risk: P explicitly agrees with D in advance of any harm that will not hold the defendant liable for certain harm
                             iv. Hanks v. Powder Ridge Restaurant Corp (SC Conn 2005)- The plaintiff was injured while snowtubing at the defendant's facility-he signed a release and waiver agreement exculpating the defendant for liability from any and all claims, including those involving the defendant's own negligence.  trial court granted SJ for D- said P by signing agreement unambiguously released D from liability for negligent conduct.
Ø  D isn’t contesting negligence- said were relieved of negligence by signing agreement that clearly states that they are waiving liability for negligence.
Ø  Hyson is case used- this case was from same resort but the contract in Hyson did not clearly state that the assumption of risk agreement covered negligence just covered risk inherent in snowtubing
Ø  after Hyson, D took instruction and changed agreement to cover negligence- even put in bold letters!
                                v. parties are free to contract, but there is still notion that need to protect public policy issues:
                              vi. Factors in determining public policy: These include the following:
1. Bargaining power: If the defendant’s position as a unique provider of certain services gives him greater bargaining power than the plaintiff, a

e particular risk in question was known to the defendant.
(b) Subjective standard: risk must be actually known to P, not one which “ought to have” been known
(i)    Circumstantial evidence: actual knowledge may be proved by circumstantial evidence.
(c) Risk of unknown dangers: Generally, P must have understood particular risk in question. But there are a few situations in which, by her conduct, she indicates her consent to unknown risks.
(b) Voluntary assumption: Lack of voluntariness is found in several common situations:
(a) Deliberate encounter of danger: The mere fact that the plaintiff has deliberately exposed herself to the negligence of others does not mean that she has consented to this danger. Ex: jaywalking
(b) Protest by the plaintiff: P protests being asked to submit to danger, but nonetheless does submit? Frequently will be held to have waived objection, and to have assumed the risk despite protest.
(c) Reliance on safety: But if she is assured that the danger does not really exist, or that it will be remedied, she has not assumed the risk. 
(d) Duress: There is no assumption of risk if the defendant’s conduct has left the plaintiff with no reasonable choice but to encounter a known danger.
(e) Existence of reasonable alternative: if P is left with a reasonable alternative to submitting herself to the danger in question and voluntarily declines to follow alt, may have assumed the risk.
a.       Determining the reasonableness of alternative: or not depends on such factors as the dangerousness of the course finally followed by the plaintiff, the degree of inconvenience in using the alternative, the importance of the interest being pursued by the plaintiff, etc.
(f) Choice not created by defendant: Where it is not the defendant’s fault that the plaintiff has really no choice except to expose herself to risk, this is not enough to vitiate the voluntary nature of the plaintiff’s act, and the defense will apply.
Ex: P is injured in an accident, bleeding badly, and needs immediate medical help. He has no other means of transportation, so he asks D to drive him to the hospital, knowing that D’s car has bad brakes. P assumes the risk of injury due to an accident caused by bad brakes. This is so because P’s dilemma is not the result of D’s wrongdoing.
(g) Employee safety: Where an employee is aware of the danger posed by some job-related hazard, it was formerly held that by working, he assumed the risk, and that his consent was voluntary. Modern view: workers’ comp statutes have eliminated the issue in most jurisdictions
(c) Statutory violation by defendant: Where the defendant’s negligence consists of the violation of a statute (negligence per se), most courts have allowed assumption of risk as a defense in the same situations where contributory negligence would be a defense. That is, it is allowed in all cases except those in which the statute is found to have been intended principally for the benefit of a class unable to protect itself (of which the plaintiff is a member), and the purpose of the statute would be defeated by allowing the defense.
(d) Distinguished from contributory negligence: When the plaintiff assumes the risk, her conduct will in many cases also constitute contributory negligence.
(i)    Reasonable assumption of risk: other situations, however, in which conduct which constitutes assumption of risk is not contributory negligence. This is the case where the plaintiff’s decision to undertake a particular risk is reasonable in light of all the circumstances.
(ii)  Where contributory negligence is also present: In those situations where the plaintiff’s conduct constitutes both an assumption of risk and contributory negligence, it usually makes little difference which defense is asserted by the defendant
(e) Limitation and abolition: Many courts in recent years have either curtailed or even abolished some kinds of assump of risk. Most of this has occurred in the area of implied, rather than express, assumption.
(a) Abolition of implied secondary assumption: Implied assumption of risk is often divided into “primary” and “secondary” assumption. In cases of primary assumption, the defendant is never under any duty to the plaintiff (or didn’t breach the duty owed).
(b) Secondary implied assumption: Secondary implied assumption of risk, on the other hand, occurs when there would ordinarily be a duty which the defendant has breached, but the plaintiff’s assumption of risk has caused the duty to dissipate.
(c) Subsumed within contributory negligence: If P’s act in voluntarily exposing self to risk was unreasonable, courts have often held that this is simply another kind of contributory negligence.
(d) Reasonable assumption: Sometimes, plaintiff’s decision to expose herself to the risk is reasonable. In this situation, most courts have refused to allow the assumption of risk defense, on the grounds that it is simply unfair to the plaintiff.
(e)  Effect of comparative negligence statute: The result of the developments referred to above is that most states with comparative negligence statutes have effectively removed implied secondary assumption of risk as a separate functional doctrine. In these states, the affirmative defense of implied secondary assumption of risk has been merged into the partial defense of contributory negligence. If the plaintiff’s conduct is unreasonable, this will be contributory negligence. If her conduct is reasonable, the conduct is simply not negligent at all, and the recovery is not reduced.
**Only GA, MS, NE, RI, SD have comparative fault jurisdictions and have retained assumption of risk.