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Torts II
West Virginia University School of Law
Cady, Thomas C.

Torts II


Spring 2012


Tort – A Tort is a civil wrong, other than a breach of contract, for which the law provides a remedy.

Contributory Negligence – Plaintiff’s negligence however slight is a complete bar to recovery

Comparative Negligence – MAJORITY – reduces plaintiff’s damages by percent of his fault. If P’s negligence is less than all of D’s negligence combined the P recovers all of his percent of negligence

Cause in Fact – But for cause (sin qua non)– P’s injuries would not have occurred ‘but for’ D’s negligence

Substantial Factor – If actor’s conduct is a substantial factor in the harm, the fact that the actor neither foresaw nor should have foreseen extent of harm or manner in which it occurred does NOT prevent him from being liable.

Proximate Cause – A cause that is legally sufficient to result in liability; a cause that directly produces an event and without which the event would not have occurred

Strict Liability – Liability that does not depend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe

Class 1:

Chapter 11 – Defenses to the Negligence Claim

Topic A. Affirmative Defenses

Affirmative Defense – Rule 8 of Civil Procedure – Defense that must be asserted by defendant as an affirmative defense to plaintiff’s complaint –

a. Plaintiff must answer the answer and deny the assertion of the affirmative defense – if it is not denied then it is admitted and plaintiff’s claim is barred by the affirmative defense

b. If affirmative defense is not asserted it may be waived

§ 198 The Nature of Affirmative Defenses

3 Main Affirmative Defenses:

1. Contributory and Comparative Negligence

2. Assumption of Risk

3. Statutes of Limitation

Additional Affirmative Defenses:

1. Immunities

2. Imputed Comparative Fault

a. Fault of the actor (defendant 1) is imputed to defendant 2

b. Fault of joint enterpriser is imputed to other joint enterpriser

c. Fault of derivative claim is imputed to parasitic plaintiff

3. Preemption

a. Federal law preempts state law and does not allow a person injured by a defective product to base a case on that theory

b. Ex. – injured by drug – federal government has implied a state based cause of action –

Topic B. Contributory Negligence and Comparative Fault

§ 199 Traditional Rules of Contributory Negligence

Butterfield v. Forrester (1809) – First contributory negligence

Contributory Negligence is a complete bar to any recovery by any party or A parties’ negligence no matter how slight is always a complete bar to any damage recovery – Alabama, District of Columbia, Maryland, North Carolina, and Virginia


a. A parties’ negligence should affect a parties’ liability and a parties’ ability to recover damages

i. If a person is an author of his own wrong, he should be punished for it

ii. There is no just reason for a person who has been contributory negligent in his own injury to be completely barred from recovery

iii. Defendant should still have to pay if he is more negligent than plaintiff

b. Under deters defendant’s because they always know their adjuster will say No

c. Over deters plaintiffs because they are punished entirely for minor fault

Richard Epstein (Only scholar that likes contributory negligence) – “efficient because it is an all or nothing rule and it is easy to administer because there is no argument”

a. Basically efficiency trumps justice in his view

Contributory Negligence is a horrible rule


1. Generally a plaintiff is judged by the same standards as a defendant

2. Same cause in fact, proximate cause, and therefore the defendant has to prove the same kinds of things about the plaintiff that the plaintiff must prove about the defendant

§ 200 Traditional Exceptions to the Contributory Negligence Rule


1. It is a defense to negligence and is not an exception to

a. Intentional, wanton or reckless misconduct

i. It is a defense to gross negligence

b. Last Clear Chance

i. Plaintiff is in a helpless condition (her ankle is stuck in railroad switch) and locomotive is bearing down on her, she is contributorily negligent in getting her ankle caught in switch and the engineer is not looking out for her – railroad has last clear chance of preventing harm – thus there is a defense to the defense which is “last clear chance”

c. Statutory Defenses

d. Product Liability

Class 2

Unholy Trinity of Defenses

1. Contributory negligence invented in Butterfield

2. Assumption of risk invented in 1837

a. Where a person knowing and appreciating the risk, voluntarily encounters is, has assumed all responsibility for his own harm and has assumed the risk

3. Fellow Servant risk – employee’s negligence is imputed to the employer, fellow servant is not – Priestly v. Fowler

Comparative Negligence Saying

1. Under comparative negligence a party’s negligence does not necessarily bar all recovery, rather

2. A party’s comparative negligence reduces the party’s damages by the percentage of that party’s negligence, IF

3. The party’s comparative negligence was. . .

§ 201 Comparative Fault

Development of Comparative Fault

1. Under a pure comparative fault regime, the rule merely reduces the amount of the award to a plaintiff who is chargeable with contributory fault

Proportionate Reduction of Damages Awarded

1. Compare fault, not causation

Pure and Modified Systems of Comparative Fault

1. The pure or complete system

a. Applies comparative fault to all plaintiffs in all negligence cases

b. No plaintiff is completely barred from recovery because of her contributory negligence

2. The two incomplete systems

a. Continues to use the traditional complete bar rule when the plaintiff’s fault reaches a specified breakpoint

b. The two versions are “greater-than” and “equal to”

3. Evaluating the systems

a. A party’s

fault can cause a separate and identifiable element of harm

c. Applying avoidable consequences rule to discrete items of harm

i. Some courts reject the first two approaches

ii. They apply comparative fault apportionment unless the plaintiff’s pre-injury fault caused some particular item of damages to which causal apportionment principles could be applied

iii. These courts invoke the avoidable consequences or mitigation of damages rule to bar recovery for the added injuries

d. Restatement of Apportionment

i. Supports a combination rule

ii. First, the defendant is fully liable without reduction for all injuries that he alone caused

iii. Second, injury resulting both from the defendant’s negligence and the plaintiff’s failure to mitigate is seen to be itself an indivisible injury which must be apportioned on the rules of comparative fault rather than the rules of avoidable consequences


11-7 – Make copies

1. Maryland and Virginia – $0 for all

2. WV 29-12A-7 < 25%

3. WV 55-7-24 30% or less

4. WV 55-7B-9 Medical Malpractice Severally

5. WV State liability insurance policy severally – cover only proportionate comparative negligent share of a state agent – assume all the people are state agents

6. Ohio and Pennsylvania – pure comparative contribution – each joint tort-feasor is liable but can get contribution for payments more than his percentage

7. Kentucky – Pure comparative apportionment – each defendant is liable only for his pure comparative negligence to the action – D block = $16,000

§ 205 Comparative Negligence or Avoidable Consequences in Seatbelt and Other Safety Precaution Cases

§ 206 Intentional or Reckless Torts after Comparative Negligence

§ 207 Last Clear Chance after Comparative Negligence

Class 4

§ 208 Effect of Plaintiff’s Illegal Acts

1. People should not profit from their own wrongs

a. The wife who kills the husband cannot profit – may not inherit, may not be beneficiary, etc.

2. One may not profit from his own “big wrong” is what it should be

a. OK to negligently kill spouse and still profit, even grossly negligent

b. Blurry about willful and wanton

2. Barker v. Kallash

a. One should not be permitted to profit from his own wrong to bar an injured person’s claim against another wrongdoer

b. Instead of reducing the plaintiff’s recovery under comparative negligence rules, the court denied recovery altogether