Defenses to Negligence:
– P may prove every element of Negligence, but no recovery if D asserts a successful affirmative defense (D has burden of proving affirmative defenses)
– Contributory Negligence/Comparative fault:
– Butterfield v Forrester p.272àStrict “all or nothing” rule
o Old Common Law Rule: If plaintiff is at all contributory negligent, he is barred from recovery despite D’s negligence.
– Sollin v Wangler p.274àComparative Fault Standard
o Rule: P can still recover if cont neg, as long as their neg wasn’t 49% or greater at fault
o Analysis: In pure comparative fault states, defendant is responsible for whatever % of damages they caused. However, under these statutes, there is a threshold, P is barred from recovery if they are 50% responsible or more, otherwise they can recover for whatever % the defendant is responsible for
o Conclusion: Jury awards $108k, & on appeal plaintiff requests that jury be instructed that “if jury determines each is 50% liable, plaintiff cannot recover”.
§ Court rules that the failure to give this instruction was not reversible error, but says that in future cases this instruction should be given (the jury should know about it)
– “last clear chance” rule: (if def. was in the last position to prevent the harm, plaintiff can collect)àproximate cause.
– Models of Comparative Negligence:
o 5 states still use old common law ruleà”all or nothing”
o Pure Comparative FaultàP can collect whatever % D responsible for.
o Modified Comparative Fault: If P’s neg above a certain threshold, no recovery…if below, they can recover the % that D was at fault.
– Wassel v Adams p.277
o P raped in D’s motelàD asserts aff def of cont. neg
o Rule: Law & Economics Approach, which party is the least cost risk avoider?
– Rescue Doctrine: 2 ways to apply
o 1) If plaintiff is a rescuer, contributory negligence doesn’t matter
o 2) If plaintiff is a rescuer, rescue doctrine still applies but plaintiff’s contributory negligence will be factored in (comparative fault)
– Ouellette v Carde p.284
o P comes to D’s rescue when he is pinned in garage, P burnt during rescue. P sues D, D asserts that P was cont. neg
o Rule: Rescue Doctrineàdefendant is responsible for all injuries sustained during a rescue that defendant prompted even if the rescuer was cont. neg.
– Govich v North American Systems p.285
o P comes to rescue D when coffee maker starts fire
o Rule: Rescue Doctrine applies but allocation of fault must be left to jury (comparative fault instruction still given)
– Barker v Kallash p.288àP involved in illegal Activity
o P was making a pipe bomb
o Rule: P is completely barred from recovery if he is involved in illegal activity at the time of D’s negligent act (public policy-don’t reward criminals)
– Alami v Volkswagon p.288
o Barker rule is brought up by defendant…”plaintiff was driving drunk (illegal activity), I shouldn’t have to pay for the injuries”
o The fact that the driver was drunk has no effect on the fact that the defendant defectively designed the car
o Rule: The criminal act of the plaintiff is not related to the defendants duty.
o Distinguish between the illegal activity & negligence of the defendant.
– Superseding Factors: courts have held tha
o Rule: Plaintiff has no duty to avoid the defendant’s negligence, even if it is foreseeable.
o Therefore, no comparative fault instruction given.
– ASSUMPTION OF RISK:
– Boyle v Revici p.303
o P assumed risk of alternative cancer treatment
o Rule: express assumption of the risk that cause the harm bars P from recovery
o Plaintiff signed an “assumption of risk form”
o Court upholds the affirmative defense & plaintiff is barred from any recovery
o Reasoning: Plaintiff made the choice to pursue the alternate treatment & had bargaining power because it wasn’t her normal option.
o No written contract here, but a contract can be formed orally
– Tunkl v Regents of University of California p.304
o P signed release form, P injured in hospital as a result of D’s neg
o Rule: in a hospital setting, a P’s express assumption of risk by signing the hospital’s release form doesn’t bar P from recovery if D’s neg caused P’s injury.
§ Public policy argument, P has no bargaining power
– Ciofalo v Vic Tanney Gyms
o P signed a boilerplate form agreeing to assume any risk that occurs in the Gym.
o This express assumption of risk is valid (some may not be where notions of public policy trump the express contract)
i.e.-release of liability must be clear, & plaintiff must