Focus shift: Examining negligence from the defendant's viewpoint.
Importance: Understanding defenses is crucial, regardless of career aspirations.
Initial Defense Strategy: Challenging the Prima Facie Case
Prima Facie Case Elements: Understanding the elements a plaintiff must prove.
Duty.
Breach.
Factual Cause.
Proximate Cause.
Damages.
Defense Tactic: Determining if any element is missing from the plaintiff's allegations.
Action: Moving for a directed verdict in a pretrial motion if elements are lacking.
Negating Prima Facie Elements
Challenging the Standard of Duty.
Arguing the client owed no duty to the plaintiff due to unforeseen circumstances.
Demonstrating Compliance.
Asserting that the client met the standard of care through specific actions.
Defenses Shifting Blame to the Plaintiff
Types of Defenses:
Contributory Negligence.
Assumption of Risk.
Comparative Negligence.
Contributory Negligence
Definition: If the plaintiff's negligence contributed to their injury, they cannot recover damages from the defendant.
Application: Strict, with the plaintiff barred from recovery if they were at all negligent.
Determining Negligence: Applying standard negligence rules to the plaintiff's actions.
Example: Danny is driving negligently, and Priya is also negligent by looking at her radio. If they collide, Priya cannot recover damages from Danny due to her contributory negligence regardless of the level of negligence.
Assumption of Risk
Definition: The plaintiff is denied recovery if they voluntarily assumed the risk of injury.
Conditions:
Plaintiff knew or should have known the risk.
Plaintiff voluntarily continued the activity despite the risk.
Example: Penny attends a baseball game and sits near the third baseline, where she could be hit by a foul ball. She is hit and sustains a concussion. The ballpark argues that Penny assumed the risk by sitting in a location known for foul balls.
Comparative Negligence
Definition: The plaintiff's damages are reduced based on their proportion of fault.
Fairness: Seen as a fairer system compared to contributory negligence.
Types:
Partial Comparative Negligence.
Pure Comparative Negligence.
Partial Comparative Negligence
Rule: A plaintiff cannot recover damages if their negligence is greater than that of the defendant(s).
Variations:
Some states: Plaintiff can recover if their fault is equal to or less than the defendant's.
Other states: Plaintiff cannot recover if their fault is greater than the defendant's.
Example: Danny is found 80% at fault and Priya 20% at fault. Danny pays 80% of Priya's damages. If the fault is 50/50, some states allow Priya to recover 50%, while others bar any recovery.
Danny_{fault} = 80\%
Priya_{fault} = 20\%
Pure Comparative Negligence
Rule: Plaintiff can recover damages, even if they are more at fault than the defendant, but the damages are reduced by their percentage of fault.
Counterclaims: Defendants can also bring counterclaims, with damages reduced by their percentage of fault.
Example: Danny (80% at fault) has a 700 mirror broken. Priya (20% at fault) is liable for 20\% of the mirror cost. Danny can offset this amount from what he owes Priya.
Mirror_{cost} = $700
Priya's\ Liability = 20\% \times $700
Comparison: Comparative negligence (both partial and pure) is generally fairer than contributory negligence.