Torts Class Notes 11/10/03


Review of last clear chance


In jurisdictions that adopt contributory negligence, it is a complete bar to a plaintiff’s recovery.  This is still law in only four states and the District of Columbia.  Many plaintiffs for whom we may have sympathy would not be allowed to recover.  Some courts tried to patch that up with the last clear chance doctrine.  It’s kind of like a band-aid on contributory negligence, as opposed to comparative negligence, which is major surgery to contributory negligence.


If a helpless plaintiff meets a negligent defendant, and you can show that the defendant had a chance to prevent an accident, then the plaintiff will not be barred from recovery.


If the plaintiff is inattentive, the plaintiff doesn’t recover under last clear chance when the defendant is also inattentive.


If the plaintiff is inattentive and the defendant discovers the plaintiff’s peril, the plaintiff can recover.


It’s kind of like an escape hatch for contributory negligence.


You need to know contributory negligence and last clear chance for the exam.  The reasons are that these rules decide apportionment under comparative negligence and also there are a few jurisdictions that still use contributory negligence.  These rules, while they don’t affect the plaintiff’s total recovery anymore, do play into the apportionment decision.  How negligent the plaintiff is plays into whether the plaintiff can recover or not.


Well, she’s going really fast.  It must not be that important.


Comparative negligence – McIntyre v. Balentine


The defendant is only liable for the portion of the harm the defendant actually causes.  Ohio is a comparative negligence jurisdiction.  This supercedes contributory negligence.


There are three kinds of comparative negligence jurisdictions:


1.     Pure comparative negligence: a plaintiff can always recover; they will just have their recovery reduced based on what percentage of the negligence they are responsible for.

2.     Modified, 50% jurisdiction: The plaintiff can recover if the plaintiff was 50% responsible or less for the accident.  In other words, the plaintiff’s negligence must be equal or less than the defendant’s negligence.

3.     Modified, 49% jurisdiction: The plaintiff can recover if the plaintiff was 49% responsible or less.  In other words, the plaintiff’s negligence must be less than the defendant’s negligence.


It turns out that juries like whole numbers.  Juries are more likely to say 50% than 49%.  There’s some question as to whether the jury should be told that there is such a big difference between 49% and 50%.


Ohio follows the 50% or less rule.  Cole says the 50% rule is a fairer rule because juries frequently find “50-50”, and thus in 49% jurisdictions, plaintiffs are barred.


Many scholars favor “pure” comparative negligence.


Cole wants us to be able to allocate responsibility between plaintiffs and defendants using last clear chance and other doctrines.


Assumption of the Risk


This can get complicated, but we won’t get too far into the really complex cases.  This means that if a person is actually aware of a risk and knowingly decides to encounter it accepts responsibility for taking that risk.  You voluntarily encounter the risk and understand and appreciate the risk and then go forward anyway.


·        Express assumption of risk

·        Implied assumption of risk: primary and secondary

·        Has this doctrine been absorbed into comparative negligence?


If you’ve ever participated in a dangerous physical activity, you probably signed a release, like if you bungee jumped.  The proprietor of the bungee jump wants you to sign a release so he doesn’t get sued.


“This is a more a contract law thing than a tort thing in a sense.”


The rationale behind this is that people should have the freedom to do dangerous and stupid things if they want to.


Winterstein v. Wilcom


Winterstein went drag racing.  He had signed a waiver.  The court enforces the waiver, but talks about situations where the waiver might not be enforced.


They might not enforce a waiver when the parties have unequal bargaining power.  What does that mean?  Is there a difference between a prospective drag racer who is asked to sign a waiver and an employee who is asked to sign a waiver in order to work in a certain place?  But some stuff is over the line: if you have to go to the emergency room, you pretty much have no choice.  Unequal bargaining power, without more, is rarely enough to nullify a waiver.


Another reason they might not enforce a waiver is when “a business is held open to all”.  If a business serves the public at large or it involves the public interest, like a hospital, the waiver may not be enforced.


Any voluntary recreational activity will be situations where you can be held to a contract where you waive your negligence claim.


Courts don’t like exculpation clauses, but they will enforce them.


Implied assumption of risk


The defendant has the burden of proof to show that the plaintiff had actual knowledge of a particular risk.  This is a subjective test: did this particular plaintiff know of this particular risk?  The defendant also must prove that the plaintiff appreciated the magnitude of the risk and that the plaintiff voluntarily encountered the risk.


Even when this has been subsumed into comparative negligence, courts will still use this doctrine.


If someone lends you a car with bad brakes and doesn’t tell you about them, you haven’t assumed the risk because you weren’t aware of the risk.  On the other hand, if someone lends you a car with bad brakes does tell you in advance that the brakes are bad, then you have assumed the risk.


Rush v. Commercial Realty Co.


The landlord controlled the outdoor bathroom.  Did the tenant assume the risk of falling through the floor of the outhouse?  No, because she shouldn’t have been forced to use another toilet.  You should be able to use the toilet provided by your landlord.  The rule of this case is that the plaintiff does not voluntarily assume a risk if the defendant is providing a necessary function and there are no reasonable alternatives.


Primary versus secondary assumption of risk


The only true assumption of risk is secondary assumption of risk.  Primary assumption of risk is not a defense.  Primary assumption of risk is a situation where the plaintiff didn’t properly prove duty, but somehow it got to the defendant anyway.


With secondary assumption of risk, the defendant breaches a duty to the plaintiff, but then the plaintiff, perceiving the risk, proceeds anyway.


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