Chapter 8- Affirmative Defenses PDF

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Chapter 8 Notes on Affirmative Defenses in Tort Claims...

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Tort Law I

Chapter 8: Affirmative Defenses Defenses Based on Plaintiff’s Conduct • Did Π’s negligent conduct contribute to the injury and, if so, should Π be barred from recovery or have her recovery reduced? o 3 ways ∆ can defeat/lessen damages: ▪ (1) ∆ may claim that Π failed to act reasonably ▪ (2) ∆ may claim that Π assumed the risk of injury ▪ (3) ∆ may claim Π didn’t act in a way that would have lessened his own injury (1) Contributory Negligence • Is “conduct on the part of the plaintiff which falls below the standard of conduct to which he should conform, & which is a legally contributing cause…in bringing about the plaintiff’s harm. “ • Considers economic efficiency  it may have been cheaper for Π than ∆ to avoid the injury o Used as a complete bar to recovery (old rule) ▪ Has generally been abandoned and replaced with comparative fault • Butterfield v. Forrester - ∆ had pole on road in front of his house (negligent), Π was riding his horse as fast as he could and didn’t see it (also negligent). Π injured and sues o Rule: Π barred from recovery b/c his own negligence contributed to his injury (failed to use common & ordinary care to avoid the obstruction) (2) Comparative Fault • New doctrine that is used in most states (McIntyre) • Compares Π and ∆ by assessing their fault • 3 ways to assign comparative fault: o (1) Pure – (NY rule) ▪ Assess Π’s fault and reduce the damages accordingly (Π 90% at fault, will recover 10% of damage award). Each defendant pays percentage of fault plaintiff suffers  doing away w/ joint tortfeasor liability. o Modified Comparative Fault (most states adopt) ▪ Plaintiffs are allowed a partial recovery until the plaintiff is either more negligent or equal.

▪ (2) Does not exceed (50% rule) • i.e. Π is barred if fault is 51%+, if Π 50% fault  recovers 50% ▪ (3) “less than” – if Π’s fault is 49% or below, he can recover • Multiple-parties: Π will recover if his fault is less than the ∆s % of combined fault • Effects on Joint and Several Liability o McIntyre – said comparative fault means you get rid of joint and several liability  each ∆ will only pay his % of fault o Consider: Π gets into an accident with Big Sugar Daddy and Joe Schmoe who has $20k insurance policy. Damages are awarded to Π for $1M. Joe Schmoe is 70% at fault, BSD is 30% at fault  if there is J/S liability, BSD is going to foot the bill after Joe Schmoe pays his $20k ▪ Justification for J/S is 30% at fault is still 100% of cause ▪ Issue is if you don’t hold them J/S then the Π may get stuck with a bum who can’t pay and Π is stuck assuming the cost of harm

• Restatement – Factors for assigning shares of responsibility o Factors for assigning percentages of responsibility to each person whose legal responsibility has been established: o (1) the nature of the person’s risk-creating conduct, including any awareness, indifference, or intent with respect to the risks and harm created o (2) the strength of the causal connection between the person’s risk-creating conduct and the harm ▪ To reduce his recovery, Π’s fault must be the cause-in-fact and the proximate cause of her own harm.  once there is a prima facie case of negligence for both parties, then we can figure out who the worse guy is HYPO: Derdarian variant where construction worker was negligent in fencing off worksite and epileptic driver comes in and plaintiff is scalded by hot liquid because he forgot to wear his goggles, which was custom. - Both construction company and plaintiff are proximate cause and but for cause, so there is no question on how strong each but for cause is because you are either but for or you are not. - However, the plaintiff’s negligence in failing to wear his goggles puts his risk of getting scalded by hot liquid is much higher up on the risk list than is construction company’s negligence in negligently fencing off the worksite.

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Therefore, if risk is higher on the risk list, jury will apportion a greater percentage of fault and reduce recovery.

c) CONSEQUENCES OF COMPARATIVE NEGLIGENCE - FIRST, the new rule makes the doctrines of remote contributory negligence and last clear chance obsolete. o Last Clear chance may be a factor in how much fault you want to assess to the plaintiff or defendant but there are many situations where the defendant had the last clear chance but the π was more at fault. - SECOND, in cases of multiple tortfeasors, plaintiff entitled to recover if fault is less than fault of all tortfeasors. - THIRD, this renders the doctrine of joint and several liabilities obsolete. o Do away with comparative fault, why make someone who is 30% at fault pay 100% of the damages? o But you can have comparative fault and still say that with multiple defendants, they have to pay the full share and have them divide up the damages. - FOURTH, defendants called upon to answer allegations in negligence may be permitted to allege a nonparty caused or contributed to the injury or damage for which recovery is sought. - FIFTH, comparative negligence as defense to intentional or reckless conduct: the fact that the defendant’s conduct was intentional does not mean that defendant’s intentional conduct should not be taken into account. o Once you use unreasonable force, do you get a deduction for the fact that you could have used reasonable force? No, once you are liable, you will be liable for all the damages. HYPO: Hotel is negligent in security of its doors. A rapist enters and knocks on door. The defendant opens the door. - Claim against negligent security of the hotel doors but the defendant has also done something very negligent. - The contention is that the hotel is negligent and the defendant is contributory negligent, and on the other hand, the defendant hotel should not have allowed the rapist to enter in the first place. - The question is, would you allow comparative fault to operate? If my job is to protect you, and you do something negligent, then maybe I should be liable for all the harm?...