I.    Contributory/Comparative Negligence

A.    Contributory negligence:  Failure to exercise reasonable care for own safety

a.  Legal effect of contributory negligence:

1.   Traditional, common law rule = complete bar to Pl’s recovery

2.  Comparative negligence systems

a.    Pure – (NY) if P’s negligence contributed to the injury, figure out % fault of each party

b.    Modified – if P’s negligence contributed more than 50% of the injury, then no recovery.  If less than 50%, then P can recover total damages less P’s % fault. Should jury know how damages will be apportioned? Better for jury to know b/c then some ppl will know & others not.

B.    Butterfield v. Forrester – P negligently riding & hit an obstruction (left by D). Traditional rule was that P’s contributory negligence barred any recovery.

C.    How responsibility is “compared” or “assigned”

a.  Costs to each party of avoiding harm

1.  Wassel v Adams – P attacked/raped while at D’s hotel. D didn’t inform P of recent attacks in area (not a but-for cause b/c prob wouldn’t have changed P’s actions). P contributed b/c of her naivety. Jury decides apportionment (P is 97% at fault), judge won’t change this even though he feels it should have come out a diff way b/c it could have come out either way. D’s costs to avoid ($20k for security guard); and 3% of damages came out to $25k.

b.  Balance multiple factors - R3T §8: Factors for assigning percentages of responsibility to each person whose legal responsibility has been established include:

a.   the nature of the person's risk-creating conduct, including any awareness or indifference with respect to the risks created by the conduct and any intent with respect to the harm created by the conduct; and

b.   the strength of the causal connection between the person's risk-creating conduct and the harm.

D.    Traditional Exceptions to the Traditional Contributory Negligence Bar

a.  Last Clear Chance or Discovered Peril - P is negligent but D has the “last clear chance” to avoid injury yet negligently inflicts injury. ***This doctrine is mostly abandoned in jurisdictions that have adopted comparative fault systems

1.    Discovered Peril – applies above rule only if D actually discovered P’s peril

b.  Defendant’s Reckless or Intentional Misconduct

1.    Traditionally, not allowed to raise the defense of contributory negligence in the context of intentional torts or willful, wanton or reckless torts. ***The vitality of this rule is unclear after the adoption of comparative fault

a.    Barker v. Kallash - 15-year old pipe-bomb maker (engaged in illegal activity) barred from suing firework powder provider and others

b.    Alami v. Volkswagen of America - Drunk driver not barred from suing Volkswagen on design defect claim following car crash. Recovery sought b/c design caused severe injuries after the crash.

E.    Causation and Scope of risk in comparative fault

a.  P’s negligent conduct may completely bar recovery where it is a superseding cause or brings about injury outside the scope of risk created by D

1.  Exxon Company, U.S.A. v. Sofec, Inc.  - Plaintiff as a superseding cause

b.  Where P’s negligent conduct is not a cause in fact or proximate cause of his injury, it does not reduce recovery

c.   Causal apportionment – Both P & D negligent; liable for % of fault

1.    If % cannot be quantified court may allow or deny full recovery, or use comparative fault apportionment

d.  Minimizing damages rule – If P can minimize damages caused by D, but doesn’t P cannot recover full amount.

F.    Allocating all responsibility to D (to protect P from his own fault)

a.  R3T §7: No reduction in P’s recovery when D undertakes to treat or repair a condition caused by P’s negligence or otherwise protect P from his or her negligence

b.  Duty to Protect

1.    Bexiga v. Havir Manufacturing – machine injures P’s hand, who was negligent in using it. Court says D should know this type of accident can happen, and has duty to protect P by installing safety devices.

2.    Factors courts will look at to assign a special duty to protect:

a.    Whether the risks are reciprocal – P only endangering himself

b.    Whether D knows limitations regarding P’s ability to exercise care for himself

c.    Entitlements

1.    Leroy Fibre Co. v. Chicago, M. & St. P. Ry. – P stacks flax on own land close to RR, sparks from RR cause fire. Unreasonable risk taken by P? Court says no contributory negligence b/c P is entitled to use his own land as he wishes.

   II.    Assumption of the Risk

A.    R3T § 2. Contractual/Express Assumed Risk (when permitted by law) absolves D from liability for future harms P might incur.  But, D has burden to prove he warned P of risks.

a.  Boyle v. Revici - woman who seeks out alternative cancer treatment and is expressly told that treatment is not FDA approved/not guaranteed cannot recover when that treatment fails

b.  Exception:  Unenforceable b/c of public policy

1.     Tunkl v. Regents of University of California - admission to hospital conditioned on signing a release immunizing hospital; signed release held void as contrary to public policy (compulsory assumption of the risk).

2.    Moore  v. Hartley Motors – release form signed be4 taking ATV class valid b/c (a) not violation of public policy, (a) service is available elsewhere, (b) fairly entered into (no unfair bargaining, P could choose not to, not essential)

B.    Implied assumption of the risk – doesn’t bar recovery, but diminishes it in proportion to P’s conduct.   BUT Actual knowledge or voluntary decision may be relevant in apportioning liability.  Most courts that have adopted comparative fault systems for secondary implied assumption of the risk which may reduce P’s recovery.

a.  Primary assumption of the risk (limited duty/no negligence) – activities that involve risk of injury, plaintiff impliedly accepts the risks; D not negligent; risk of activity.

1.    Turcotte v. Fell – Jockey injured; caused by D. But the danger is inherent in the sport, and by P’s consent in engaging, bars recovery. No duty to exercise ordinary care, only to avoid reckless or intentional torts.

b.  Secondary Implied (Unreasonable) - Just b/c P chose to confront a risk (like jaywalking); doesn’t mean D is released from duties of ordinary care. P’s negligence judged under contributory negligence.

c.  Secondary Implied (Reasonable): Confronting a Known risk; D is negligent

1.    Crews v. Hollenbach – D negligently strikes gas line. P works for gas company, went to fix it and was injured. P assumed the risk by virtue of his employment (had knowledge of risk; appreciated risk; voluntarily exposed himself to the risk).