Torts
Class Notes
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
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.
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%.
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
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.