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Wayne State University Law School
Gable, Lance

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.
–          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