Torts - Negligence (Defenses, Damages and Apportionment)

Contributory Negligence

• Defendant and plaintiff combined carelessness results in plaintiff’s injury

• Any carelessness on part of plaintiff resulted in plaintiff suffering full burden of loss, complete defense

• Abolished in most states

Doctrine of Last Clear Chance

Plaintiff may mitigate the legal consequences of her own contributory negligence if she proves that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so

• Abolished in most states

Pure Comparative Fault

plaintiff’s full damages are calculated by the trier of fact and then reduced by the proportion that the plaintiff’s fault bears to the total harm

• Only minority of jurisdictions

Modified or partial comparative Fault

• If the plaintiff is less at fault than the defendant, then the plaintiff’s recovery is reduced by his percentage of fault, just as in a pure comparative-fault jurisdiction

• If the plaintiff is more at fault than the defendant, then the plaintiff’s recovery is barred, just as in a contributory-negligence jurisdiction;

• Majority of jurisdictions

US v. Reliable Transfer Co. 

Facts: D’s tanker rand aground, P failed to maintain flashing light to warn. 25/75 fault for P/D, but following divided damages, required both sides to pay half

Rule of Law: Case modernized American admiralty law by replacing the divided damages rule with comparative fault, aligning it with fairness, logic, and international maritime practice.

Hunt v. Ohio Dept

Facts: P taught by novice officer to use snowblower, P inserted hand into chute because engine wouldn’t shut off

Rule of Law: The state owes a duty of reasonable care to inmates in its custody. Negligence causing injury can result in recovery even if the plaintiff was partially negligent, subject to comparative negligence reduction.

Assumption of Risk

• Implied assumption of risk: argue that victim is barred from recovering because she knew about the risk created by the breach of duty to her, could have avoided that risk, yet chose to encounter that risk

• Express assumption of risk: plaintiff voluntarily relinquished her right to sue for being injured by such negligence

• In most comparative-fault jurisdictions, a plaintiff’s assumption of a risk will reduce his recovery in proportion to degree of fault, but it will not be a complete bar to recovery.

• Assumption of the risk is a subjective standard

• Complete bar to recovery in contributory-negligence jurisdictions

Smollett v. Skayting

Facts: P notice no guardrails on rink, owner told her it was safer, risk sign posted, lessons offered. P later injured. 

Rule of Law: A plaintiff who knowingly exposes herself to an obvious hazard cannot recover from a defendant for injuries resulting from that hazard. Comparative negligence does not undermine waiver/consent-based assumption of risk.

Dissent: The record contained evidence that could allow a reasonable jury to find that Smollett did not appreciate the combined hazard of the lack of guardrails, elevated surface, and carpet

Jones v. Dressel

Facts: P signed contract before 18 that included covenant not to sue and released negligence liability. Could have removed covenant via pay but chose not to. After 18, skydove but injured.
Rule of Law: A minor may ratify an exculpatory agreement by using its benefits after reaching majority. Exculpatory agreements are enforceable for recreational activities if clearly written, fairly entered, and not against public interest. They do not shield against willful or wanton misconduct.

Dalury v. S-K-I

Facts: P signed release of liability that covered injuries, collided with metal pole, sued but resort argued signed release barred claim

Rule of Law: Public accommodation + broad waiver = unenforceable. Private recreational operators cannot rely on blanket releases to escape liability for negligence. Societal expectations and public safety considerations may override contractual freedom in recreational contexts.

Immunities

Complete defense to liability granted to certain entities as well as to actors in certain relationships.

Three Most important immunities:

1. Intra-family immunity

2. Charitable immunity

3. Sovereign immunity: FTCA waives immunity with exceptions including discretion functions (Does not waive immunity for acts involving judgment or choice that are grounded in social, economic, or political policy), traditional governmental activities, torts like assault and battery

***Mostly eliminated***

Riley v. US

Facts: P broadsided by D’s mailbox, local authorities asked D to move but D refused due to cost, after accident D approved moving, P sued under FTCA
Rule of Law: Federal agencies are immune from FTCA claims for policy-driven decisions, even if those decisions result in harm, as long as the discretionary function exception applies. Compliance with non-mandatory guidelines (like AASHTO standards) does not override discretionary function protection.

Riss v. City of NY

Facts: P terrorized by rejected suitor, sought protection but police ignored her, suitor hired someone to throw lye in face

Rule of Law: Municipalities owe a general duty of police protection to the public, but not to specific individuals, absent special circumstances.
Dissent: Municipalities may owe a specific duty to an individual if they have actual notice of a credible threat and fail to take reasonable steps to prevent harm.

Strauss v. Belle Realty

Facts: Power out in NY, P had no running water so went to basement, fell on defective stairs, sued landlord (D) for maintenance and Con Edison (provider of electricity). Contract only between landlord and Con Edison. 

Rule of Law: Utilities are not automatically liable for injuries to noncustomers caused by failure of service in common areas; courts balance contractual relationships, foreseeability, and public policy to define the scope of duty.

Dissent: “The more people injured, the less the responsibility for the utility”—the dissent said this logic put policy over justice.  Asserted that Con Edison could shift costs through rate adjustments, and that gross negligence should be actionable regardless of contractual status.

Compensatory Damages

general measure of compensatory damages is compensation that would make the victim whole, as if he had never suffered the injury

Smith v. Leech Brain

Facts: P operated crane involving molten metal. D only provided weak shield. P burned, burn turned into cancer and P died.

Rule of Law: Foreseeability relates to the type of harm, not the extent. If a burn is foreseeable, the defendant is responsible for all consequences flowing from that burn—even unforeseeably severe ones like cancer and death. (Eggshell Doctrine)

Kenton v. Hyatt

Facts: Hyatt skywalks collapsed, agreed with P to forego liability, only issue at trial is damages. P presented testimony from professors regarding heavy demands of law school and practice, camerawork depicting chaos and severity.

Rule of Law: Even when liability is stipulated, plaintiffs may introduce vivid, even disturbing evidence of the accident scene if it helps prove damages—especially psychological harm. Expert testimony on specialized fields (like the demands of legal education) is admissible when tied to plaintiff’s functional limitations. High verdicts for catastrophic, permanent injuries will be upheld, and courts should not lightly impose remittitur.

Punitive Damages

• Award of punitive damages stands apart from damages that compensate a tort victim for lost wages, medical expenses, pain and suffering, and lost quality of life

• not available to all tort plaintiffs, only those who can demonstrate that they have been victims of certain “aggravated” forms of mistreatment involving “malice, insult, oppression or wanton or willful violence”

• Controversial because flouts boundaries between tort and crime

Conscious (Deliberate) Indifference

Requires actual awareness of the danger. Awareness alone is not enough; the actor must consciously choose to disregard a high level of risk.

Recklessness

Easily avoidable serious risk, and Actor knew of the risk or facts making it obvious.

Will or wanton conduct

Actor is lying about awareness; Actor willfully blinds themselves; Actor sincerely but disturbingly “gives no thought” to obvious danger

National By-Products v. Searcy House

Facts: P drove overweight truck and had history of citations that company paid, was speeding and tailgating when hit car and house rig. Experts said brakes were malfunctioning, maintenance overdue. 

Rule of Law: Punitive damages are available only when a defendant acts with wantonness or conscious indifference—meaning awareness of an impending danger and continuation of the conduct anyway. Gross negligence, even serious gross negligence, is insufficient.
Dissent:  Overweight truck, knowingly operated that way by a driver repeatedly cited, with company encouragement (they routinely paid fines). Reasonable jurors could find conscious indifference, making punitive damages appropriate

Mathias v. Accor Economy Lodging

Facts: P bit by bedbugs at Motel 6, D knew for years about infestation, marked rooms with DO NOT RENT but rented out anyways, refused treatment despite multiple infestations, and call bed bugs “ticks” to guests.
Rule of Law: A defendant’s reckless and knowing disregard of a serious risk to customers constitutes willful and wanton misconduct, warranting punitive damages. Punitive awards must be proportionate to the wrongdoing, necessary to deter similar conduct, and may exceed compensatory damages substantially when compensatory damages are small and the probability of detection low.

Vicarious Liablity

one person or entity is held responsible for the tortious acts of another who is acting on her or its behalf

Respondeat Superior

holds employers liable for the negligent acts of their employees, provided the acts are committed within the scope of employment

Indemnification

shifting of the entire loss from person to another

Taber v. Maine

Facts: D was Navy man that went on liberty, drank till drunk on base, later drove off base, came back and injured P who also was on liberty.

Rule of Law: Under modern enterprise-risk respondeat superior, the question is not whether the employee was serving the employer at the moment of the tort, but whether the harm stems from a risk generated by the employer’s operations or workplace culture. Vicariously liable when an employee’s tortious conduct arises from risks that are typical of, broadly incidental to, or foreseeable consequences of the employer’s enterprise, even if the conduct occurs off duty, off premises, or does not specifically further employer business

Joint and Several Liability

• each of two or more defendants who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm

• nondivisibility of the injury may be due to an inability to divide the injury itself or because the injured plaintiff cannot divide the injury among the wrongdoers.

• plaintiff has the choice of collecting the entire judgment from one defendant, the entire judgment from another defendant, or portions of the judgment from various defendants, as long as the plaintiff’s entire recovery does not exceed the amount of the judgment

Joint Liability

• Both parties will be liable for full repayment of the loan, although if either party satisfies the repayment, the other party’s liability will be fully discharged.

Several Liability

• parties liability will be divided between them such that Party 1 will be liable for a certain portion of the loan and Party 2 will be liable for the remainder

Ravo v. Rogatnick

Facts: P suffered brain damage because D1 and D2 but no expert could separate portion of damage caused, jury apportioned fault 80/20, D2 request limit liability to 20%

Rule of Law: If multiple negligent actors contribute to an indivisible injury, and no reasonable method exists to divide the harm among them, joint and several liability applies—even when: The tortfeasors did not act together, Their negligence occurred at different times, and The jury apportioned fault, because fault allocation governs contribution, not the plaintiff’s recovery.

Bencivenga v. JJAMM

Facts: P punched in face by “phantom”, strobe lights turned on by bouncers and bouncers did not help P and knew phantom had juice. P sued and D directed to include phantom.

Rule of Law: Defendants cannot reduce their liability by blaming unidentified or fictitious tortfeasors. Comparative fault applies only to actual parties, and businesses that fail to identify wrongdoers on their premises cannot benefit from their own failure. Defendant (Club 35) is in the best position to identify other responsible tortfeasors. (policy consideration).