Torts Class Notes 11/12/03


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.


Blackburn v. Dorta


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. Rogers


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 Delaware, their behavior was unreasonable.


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.


New Mexico[1], for example, and Illinois go in different directions.


Knell v. Feltman


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.


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[1] That’s the first time all semester I’ve had occasion to type “New Mexico”, apparently.