Defenses Against Negligence

Contributory / Comparative Negligence Inquiry

1. ASSUME DUTY TOWARDS ONESELF

2. Breach - did P behave unreasonably towards self?

3. Causation - did P’s breach cause his harm?

4. Scope - is the harm within the scope of liability from P’s breach?

5. DAMAGES - GIVEN

Show mini case of negligence against P.

Rationale for Contributory/Comparative Negligence

When P’s conduct falls below the standard of care he should conform to for his own protection and legally contributes to the harm that D caused him.

Rule from Mark v. PG&E

When P intentionally and unreasonably exposes self to danger they are aware of, may establish contributory negligence as a matter of law.

• If a reasonable guy would not have done it, that is contributory negligence

• BUT here: no evidence he (or a reasonable person) would have cause to know the lamp contained high voltage wires or to know of the danger

Rule from Li v. Yellow Cab Co

CA ditched contributory negligence for comparative negligence.

• If both P and D acted negligently, which contributed to P’s harm, then liability is proportionate to fault %

• AKA Pure Comparative Fault

Modified Comparative Fault

Different than Li.

If P is more than 50% at fault, they get nothing. If less, the damages are reduced by P’s fault.

Factors in comparative negligence

• Nature of the risk-creating conduct?

  • How aware are the parties of the danger?

  • How high is the chance of risk?

  • Who is taking the bigger risk?

  • Magnitude of damage from risk?

  • Utility of risk-taking conduct?

  • Was there an emergency?

• Strength of causal connection between conduct and harm?

• Are there extenuating circumstances?

Express Assumption of Risk

Consent to the risk through waiver or acts. This is a COMPLETE DEFENSE against negligence. P explicitly agreed to accept risks involved in an activity, usually done in writing.

• no higher culpability than negligence can be waived

• construction against the drafter

• exceptions due to public policy: no all-purpose waiver for RRs, monopolies, common carriers

  • Type of business suitable for regulation?

  • Is it an essential service?

  • Is it a general service?

  • Does one side have an advantage re: bargaining strength?

  • Standardized contracts

  • Control - where transaction puts the buyer under control of seller

Implied Assumption of Risk Test

Inferred from P’s behavior where there is no written or oral agreement.

• P knew of the risk

  • subjective - know and appreciate

• P voluntarily exposed self to risk

ALWAYS BACK UP WITH A COMPARATIVE NEGLIGENCE CLAIM.

The firefighter rule

For assumption of risk.

In most jurisdictions, firefighters, cops, etc. assume the risks inherent to their job. So, a firefighter cannot sue a person who started a fire for negligence

Primary Assumption of Risk

A category of implied assumption of risk, where D owes no duty to protect P from certain inherent risks.

• inherently risky activity?

• A sport? Baseball/football/basketball?

• Or, just careless conduct?

Rule from Steeplechase Amusement Park

When P knows of the risk and voluntarily exposes themselves anyways, there is implied assumption of risk.

Before going on Flopper, P watched and then exposed himself anyways after subjectively knowing of and appreciating the risk.

Rule from Rush v. Commercial Realty Co

There is no implied assumption of risk when an action is not voluntary. Like needing to use the bathroom—you are not voluntarily confronting danger when you need to pee.

Rule from Woodall v. Wayne Steffner Production

There is no implied assumption of risk when P surrenders his better judgement upon promise/assurance of safety or protection. He does not assume the risks of defendant’s negligence unless the danger is so obvious and extreme that there can be no reasonable reliance on that assurance.

• P does not assume the risk of the unforeseeable negligence of others.

Rule from Knight v. Jewett

If the harm is a risk inherent to sport P voluntarily participated in, there is no liability for negligence.

• after move to comparative fault, no longer fault Ps for doing something that puts them at risk - but, no duty to eliminate all risks in a sport

• definitely applies: basketball, football, soccer, skiing

  • not sure: golf

misc defenses

• no knowledge of the occasion for compliance

• compliance creates larger risks

• inability to comply after reasonable diligence to do so