Negligence Affirmative Defenses

Contributory and Comparative Negligence Overview

• Potential defenses that a D might assert to fend off a claim of negligence by a P

• Old Rule: Contributory Negligence ⇒ P whose own negligence contributes to/causes injury cannot recover anything

• Newer/Majority Rule: Comparative negligence ⇒ proportionally reduce damages

• Policy Considerations: 

  • Administrability supports contributory negligence

  • Incentivizes P not to be negligent, though D could take advantage of P’s negligence and avoid liability unfairly

  • Fairness, however, overwhelmingly supports comparative negligence

Three Kinds of Comparitive Negligence

• Pure Form: Even where P is 99% negligent and D is 1% negligent, P can still recover (i.e., purely proprtional)

• Modified Rule(s): 

  • 50% Rule: Even where P is equally negligent to D, P can still recover

  • 49% Rule: P must be less negligent (i.e., not equal) to recover

Harris v. Meadows

D negligently crashed into P, but P did not mash her brakes in an attempt to stop herself from hitting D → P found contributorily negligent, so court found for D; established that contributory negligence raises the negligence standard for P above that of a reasonable person (i.e., P must exercise more than due care to avoid contributory negligence) + introduced ways to soften the contributory negligence standard (e.g., make P’s negligence standard less than or equal to a reasonable person, or the last clear chance doctrine—he who has the last clear chance to avoid injury)

McIntyre v. Balentine

Pickup truck driver sued a tractor operator after a collision that caused him injuries → D = intoxicated while P = speeding → TC found both equally negligent so found for D b/c contributory negligence → AC reconsidered all-or-nothing nature of contributory negligence and established comparative negligence; used the 49% rule

Manning v. Brown

•  Two high school students without licenses stole friend’s car → Students switched off driving the car → One student crashed, leading the other student, P, to sue the driver and the owner of the car → Court rejected the claim b/c P was engaged in serious unlawful activity; example of courts’ unwillingness to allow actors to profit from their own wrongdoing + established that a violation of the law is not enough to bar recovery, but a serious violation of the law is (consider J-walking)

Fritts v. McKinne

Decedent drunk drove into a tree at 70 mph → In surgery, D negligently sliced artery, causing decedent to bleed to death → Decedent’s spouse sued D → D asserted contributory negligence b/c decedent drunk drove; established that a physician cannot avoid liability for negligent treatment by asserting that the patient’s injuries were originally caused by the patient’s negligence

Ouellette v. Carde

 D got caught under car after jack fell → Gas leaked → D called P, his neighbor → P helped but closed garage → Garage’s electricity lit the gas and caused an explosion that injured P and D → P sued D → D asserted contributory negligence; established that contributory negligence difficult to argue when P was engaged in saving D (contrast with Undertakings)

Alami v. VW of America:

Decedent hit a pole while driving drunk and died → Spouse sued VW due to defect that may have expedited death → VW asserted Manning v. Brown in seeking SJ → court applies comp negligence and says Manning is inapplicable because car defect was underlying cause of injurty rather than the drunk driving

Van Vacter v. Hierholzer:

Decedent ignored doctor’s orders after a heart attack → Years later, came into doctor for chest pain → Doctor cleared decedent → Decedent died a few hours later → Court applied Fritts; compare with Fritts b/c this is a weaker example of Fritts b/c P could control his healing process

Express and Primary Assumption of Risk Overview

• Another defense to a negligence claim → “P knew what they were getting into and chose to do it anyway”

• Two Categories: 

  • Express: Formal agreement w/ D

  • Implied/Primary: No formal agreement but there are risks inherent to a type of activity and P still engages in that activity

Van Tuyn v. Zurich

• P rides a mechanical bull after signing a release assuming “any and all risk” → Court still held bull-operator liable; Established that courts read waivers narrowly + there needs to be express assumption of risk when the bull is being competently operated AND negligently operated [AND grossly negligently operated, per Manning v. Brannon]

Manning v. Brannon

• P injured in skydiving exercise after signing detailed and explicit waiver that specifically released D from liability for competence and negligence → Waiver = enforced; established two prong test: 

  • Consider importance to P’s economic and physical well-being (i.e., the more important, the less likely a waiver will be enforced)

  • Consider the quantity of providers (i.e., the more monopolistic, the less likely a waiver will be enforced)

Comparison cases for express assumption of risk

• Anderson v. Erie: Passenger purchased discounted train ticket w/ clause assuming all risks, including RR’s negligence → Passenger died → Court held that the waiver was enforceable; established an exception to the general common law rule that common carriers cannot contract out of negligence liability, but hundreds of other passengers are able to sue…so no bad incentives AND P also had FREE CHOICE

• Tunkl v. Regents of UC: Hospital patient signed a release waiving liability for negligence as a condition of admission → Court refused to enforce; established Tunkl Test – “exculpatory clauses are invalid when they affect the public interest”

  • Step 1: Does the contract release D from negligent acts? 

  • Step 2: Was the service essential? 

  • Step 3: Was there unequal bargaining power (i.e., free choice)? 

    • If yes to all, likely unenforceable 

• Distinguish the two based on the incentives—in Tunkl, there aren’t a hundred more patients available to sue

Shorter v. Drury

• Decedent miscarried → Doctors recommended D&C, which tends to entail loss of blood → Decedent’s religion meant should couldn’t get a blood transfusion → Signed document saying that she doesn’t want a transfusion and released the hospital from all liability due to this refusal → During D&C, Decedent needed a transfusion but refused → Doctors let her die → Decedent’s husband brings suit; while decedent may have religiously felt like she had no free choice, the doctors did not act negligently

  • Likely turns one Step 3 of Tunkl (bargaining power and freedom of choice)

Rest of Express Assumption of Risk

• 2nd Rst. § 496B – Express Assumption of Risk: “A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy.”

What’s contrary to public policy? Apply Tunkl

Murphy v. Steeplechase

P injured while riding an amusement ride designed to make riders fall, The Flopper; classic example of the primary assumption of risk doctrine ⇒ participants in recreational activities accept dangers that are inherent and apparent, so long as there is no hidden defect or negligence beyond those risks

Woodall v. Wayne:

• Stunt performer (human kite) injured by a driver supplied by the defendant → D liable b/c driver = unqualified and goes too fast, so not a risk inherent to the activity; established that whether D may assert primary assumption of risk defense hinges on the type of risk that P assumed (i.e., P assumed the risk of being a human kite, but not the risk of being driven by an unqualified driver)

Hackbart v. Cincinnati Bengals

• P, a pro football player, was injured when an opposing player from the Bengals struck him behind the head and neck after a play out of anger; established that although sports, especially football, are inherently dangerous, emotional, and physical, deliberate injury that occurs after plays end is outside of the scope of implied assumption of risk 

  • Accidental injuries happen all the time, and hockey even allows intentional fights, so it depends on the intention of the actor and the custom of the sport