Torts Class Notes
Last
time, we talked about assumption of risk, one of the view defenses that may
be raised to negligence. In some jurisdictions,
assumption of risk has been abandoned, but it can be used as a method of
apportionment of damages. Another way of
explain assumption of risk is by saying there was no duty between this defendant
and this plaintiff. We can either say
that the plaintiff has assumed the risk of the defendant’s negligence, or else
the defendant had no duty to that plaintiff.
Pure comparative negligence jurisdictions
will allow a plaintiff to recover no matter how negligent that plaintiff is. Modified comparative negligence jurisdictions
allow the plaintiff to recover only if they are less negligent than the defendant,
or, in some jurisdictions, equally negligent to the defendant. This is kind of a variation of the “clean
hands” doctrine. In jurisdictions that
adopt the 49% rule, plaintiffs are at a significant disadvantage.
Courts don’t like express assumption
of risk clauses. In Pacific West,
courts were reluctant to impose a parent’s waiver on a child.
There is an exception to
express assumption of risk. If there is
no alternative to the plaintiff, or if it’s an essential service, then we’ll
grant an exception. There is a way out
of express clauses, but it’s a high obstacle to overcome.
Implied assumption of risk is
an affirmative defense that the defendant has the burden to prove. It’s a subjective test.
Did the plaintiff know of the
risk? Did they appreciate its
magnitude? Did they encounter it
voluntarily?
Secondary assumption of risk
is when the defendant breaches a duty to the plaintiff, then the plaintiff
proceeds anyway after perceiving the risk.
The key for understanding assumption
of risk is understanding the specificity of the risk you’re assuming.
It lays out the primary
versus secondary thing, but then they scrap it.
They decided not to worry about it.
They decided that assumption of risk is part of the comparative
negligence inquiry.
They set up something—which I
think Cole is implying is a straw man—in the “strict assumption of risk
doctrine”. It’s not unreasonable to save
a child from a blazing inferno. Part of assumption
of risk is a cost-benefit analysis.
Joint tortfeasors
Some of this will be review,
and some will be new.
What does a joint tortfeasor
look like?
Bierczynski v.
There was a drag race. Race and Bierczynski were drag racing. Race failed to get out of the way of the plaintiffs’
car. Bierczynski never hit the plaintiffs. Bierczynski tried to argue that he shouldn’t
have to pay because he didn’t hit the plaintiff. Did Bierczynski really cause the injury? The court finds that the drag racers were
acting in concert.
Compare this to Summers v. Tice. Two guys shot at the same time, and we never
find out who was the actual cause of the harm. Here, two guys planned to participate in drag
racing. Even though there was no statute
forbidding drag racing in
What does this mean in terms
of who pays? They will be jointly and
severally liable. If one defendant is
insolvent, you can get the whole amount of the judgment from the other defendant.
How will damages get
apportioned? We might say 50-50 or we
might make Race pay a little bit more.
The jury will be told that once you have concerted action, the parties
are both liable.
Say X attacks and beats the plaintiff. The defendant doesn’t take part in the attack,
but encourages X and keeps others from interfering. Is the defendant liable? Sure.
But what if the defendant just stands by and approves but doesn’t do
anything?
What is required in order to
say that there is concerted action? You
need evidence that the parties are acting in concert. If X and the defendant are strangers but the defendant
was encouraging X, it could go either way.
Coney v. J.L.G.
Industries, Inc.
Why do we have joint and
several liability? We want to plaintiff to be fully compensated. Also, we think that injuries are indivisible
and we don’t know how to apportion liability among the defendants.
We also worry about the
financially insolvent defendant. We also
think the defendant is more at fault than the plaintiff.
Why not have joint liability? Why should we
make one defendant be the insurer of another defendant? Why should one defendant pay just because he’s
unlucky that he’s the only solvent defendant?
We also may be over-deterring behavior: we will make defendants take
excessive care. A solvent defendant,
having very little responsibility for the harm (like 1% liability) may have to
pay the entire judgment.
Who’s the plaintiff? It’s the Langlands. Who are they suing? They’re suing Feltman, the cab owner. Feltman files a third party complaint against
Knell, the guy who was driving the car that the plaintiffs were in. The Langlands are not suing Knell, maybe
because they’re friends.
The jury finds that both
Knell and the cab driver were negligent.
It turns out that Knell is half responsible, and Feltman is half
responsible.
Knell claims that Feltman can’t
get money from him because the Langlands never sued Knell. Why isn’t that necessarily fair? If I’m a potential defendant, why would I
worry about this? We’re worried about
conspiracy. We don’t want the plaintiff’s
decision about who to sue to determine who pays when both parties are negligent.
Yellow Cab Co. of D.C., Inc. v. Dreslin
Dreslin and his passengers,
including his wife, are in a car. There
is also a cab. They get in an accident. Dreslin is found not to have to contribute to
Mrs. Dreslin’s judgment because she’s his wife.
Dreslin isn’t liable to his wife because he has spousal immunity. What is the issue? Immunities have been abrogated by most jurisdictions. The case turns on the fact that the Dreslins
can’t sue each other. You can’t recover
from your spouse. There used to be other
kinds of immunities too.