Day 34 - Lecture notes Day 34 PDF

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III. DEFENSES TO NEGLIGENT TORTS Throwback to intentional torts: built up the PF case and then talked about defenses available to D. Contributory negligence, assumption of risk and then comparative negligence (overlay of prior 2 defenses). A. Contributory Negligence Butterfield: P was galloping through town; D placed across road. P saw pole but because of speed, couldn’t stop and was thrown . Trial court instructed any negligence of P resulted in verdict for D. This was erroneous; Court of Appeals affirmed for D. Negligence in contributing his own injuries  bar to suit and lost. Complete bar to liability and complete defense. “but you were negligent as well” in being negligent, you contributed to your own injuries and can’t sue for that. 1. The general rules governing the defense? Case that suits will be barred against culpable Ds if Ps have in any way contributed to their own injury. a. The rationale for the common law rule concerning the effect of contributory negligence: How persuasive is it to defend a complete bar to recovery on proximate causation grounds? Retributive grounds? Corrective justice grounds? Unjust enrichment grounds? Non-reciprocal risking grounds? Utilitarian grounds? - Utilitarianism: Richard Posner’s argument: appropriate incentives. Doctrine that says you can’t sue in cases if you’re harmed. Incentives P to take care as they can’t sue. No D can predict/rely on contributory negligence of who he harms. Pain of liability will still intact. Prospect of losing defense  aren’t there circumstances that D will predict that P will be negligence. This doctrine then gives Ds motivation to be negligence. Ex: D driving on highway, uses phone and doesn’t care if they hit someone  can’t be held liable because of contributory negligence by P walking on a highway - Fletcher: baseline that everyone acts reasonable, when one party acts negligently, they spike risk for everyone else. Everyone else has to pay for that party’s negligence. If P is C.N., two negligent parties now, now it likes they’re reciprocally risky. How can P complain of being nonreciprocally risked if P has also risked others. - proximate cause rationale: only cause was P. In Butterfield, this was negligent by P. Sole and proximate cause of P’s harm. Foreseeable and harm within the risk  both things. Not FVIA; no chain breaking based on P’s negligence. Another round of proximate causation straight here  no cigar. Bailey’s claim doesn’t work. 2. The elements of the defense? 1. RULE has given way to vast majority jurisdictions. Continue this even though it doesn’t make sense. Specify when someone C.N. when damages are apportioned. Law of the land, how P was C.N. such that they have to share damage award. What does D have to establish that P was C.N.? Does D have to establish duty of care owed to herself? Palsgraf P to herself? Within class of persons foreseeable to herself? - You have to be a Palsgraf victim (foreseeable, in the zone of danger)  now to establish C.N. that person was Palsgraf victim to herself (foreseeable harm to herself, harm was within risk). If you can’t make out a duty to yourself, you’re not C.N. (Ex: P put rat poison accidently in cabinet at friend’s apartment, friend makes P muffins, accidently put poison in muffins and kills P  P

can sue and isn’t C.N. as she wasn’t foreseeable P and the harm that happened wasn’t within the harms created within risks). Transfer negligence doesn’t happen! We won’t transfer negligence; if P is negligent towards X but is harmed in negligence, no negligence as no foreseeability. Black letter law: P has to be Palsgraf P to be C.N. 2. NEXT one: established that P breached duty of care owed to herself. - RPT and Hand Formula. If RPT is applied to P’s breach of duty. Did she fail to act RPT. If yes, breached duty of due care to herself. Hand Formula: was discounted risk of harm > risk of precautions. If yes, breached duty of due care. LeRoy Fibre Co.: P farmer stacked rows of flax about 75-80 feet from railroad. Railroad had easement but easement stopped shy of where farmer stacked easement. Railroad was operating without spark arrester; spark thrown by railroad, negligently, caused fire and burned down P’s flax. Railroad was operating negligently; jury found that P was CN being so close to railroad’s track. Added effectively, another 100 feet that railroad easement - legal issue: whether trial court should have found no CN, should have directed verdict towards P. Use one’s land in a manner that doesn’t anticipate harms by adjacent landowners. Use land in legitimate and lawful way if you can anticipate potential harms. Failure to curtail one’s land in anticipation of other’s harm is not CN. Others don’t get to cause you harm that you might be able to avert others harm by curtailing liberty is not relevant. You don’t have to drive defensively through life, you might want to. Might want to move flax away or file insurance  it might be prudent, but tort law won’t declare you CN if you don’t avert other’s harms. Get to go through life without being declared CN by your liberty, life or property, you can do what you want to do. You don’t have to curtail liberty or use of property in anticipation of others in anticipation of harm. - Holmes concurrence: if you can anticipate reasonable harms, you don’t have to guard against negligence. You do have to guard against reasonable railroading; imagine that spark arrester will cost $150 and the case is flax costs $100. Is it reasonable for railroad to operate without spark arrester, it is reasonable? At that point, by Hand Formula, reasonable for train to operate without spark arrester. Farmer should have moved flax back when railroad, by Hand Formula says they shouldn’t. Property rights violations, if by doing an activity, averting that harm would be more costly by costs of that activity. - Position that jury took: curtail one’s use/life/liberty in anticipation of another’s negligence. Now, railroad was operating negligently. Should’ve been operating in that way, nevertheless, P should have move flax back in anticipation of negligent D wouldn’t have taken precaution. Therefore, when precaution wasn’t taken; P was himself CN. Third possible position. You have to take precautions; you have to take others’ negligent caused harms. RPT – majority opinion  potential of others causing her harm shouldn’t interfere. c. caused – in fact and proximate cause - didn’t in-fact cause damages d. damages

Last class: can escape liability by raising affirmative defense and by the prima facie case  be reminded of the fact for D is to defeat P’s ability to make out prima facie case for negligence in the first place. Should D then look for affirmative defense (secondary claims to turn to only after prima facie case is concluded) a. Must the plaintiff owe herself a duty of due care? What if she is not a Palsgraf plaintiff? The rationale for the general rule? Derheim case: trial court refused to allow D to make claim of contributory negligence on basis of P wasn’t wearing seatbelt. Also refused D’s ability to introduce evidence that P’s harms wouldn’t have occurred if they were wearing seatbelt. Trial court affirmed for P. Court’s reasoning: - Not wearing a seatbelt was an antecedent to the accident. It only effects damages not negligence o Think about what has to established that D’s breach of duty is liable  Causal connection between breach of duty and damages  symmetrical that P’s breach is causally connected to damages  Not an element  bullshit by court - Court argues slippery slope: you would then have to use every safety precaution available o Where does it stop? If it’s costless and easy. Stupid - Doesn’t fall under doctrine of avoidable consequences; important! Denies recovery to Ps for any damages that arise after accidence. Function of their own negligence. You had an obligation to mitigate your damages, if you could avoid consequences that were worse, if you exacerbated the injuries caused by negligent D, those worse off injuries, you won’t recover. Can recover for original injuries but not for injuries that resulted P’s own injuries. Doctrine of avoidable consequences doesn’t apply  antecedent to accident not post-accident (doesn’t apply) They have intuitions that Leroy intuition is that you don’t have to guard against other’s negligence. Another reason is unfair to deny recovery on all or nothing system if P was a little negligent. Couldn’t judicially announce that they were moving towards breaking down contributorily negligent. Refusing to allow seatbelt defense as contributive negligence. Comparative negligence is where this court was moving towards; breaks down damages. Spier court’s rule: Damage award should not include compensation for those harms that wouldn’t have occurred if P had been wearing. Spier is comparing causal comparisons, P’s suit is barred. Imagine D is drunk and hits P, who’s cautious, but wasn’t wearing seatbelt. If she was wearing seatbelt, only would’ve got a $10 injury, she would only get $10. Barring suit to any damages that she negligently caused, under COMPARATIVE negligence, she would recover a lot more. D is 99% at fault and her’s is 2%  she’ll get $8000. Huge difference between Spier rule and comparative negligence. Page 299: example b. How do we determine whether the plaintiff breached her duty of due care? The LeRoy Fiber puzzle.

c. Causation requirements and the line between raising an affirmative defense and contesting the plaintiff’s prima facie case. 3. The (rejection of the) “seatbelt defense:” What makes sense of refusing to characterize the failure to wear a seatbelt (or to use other safety devices in vehicles, such as headrests, helmets, etc.) as contributorily negligent? a. The Spier/Mahoney alternative? How does it differ from a comparative negligence approach? 4. Contributory Negligence Per Se and the Koenig exception Negligence per se is definitive proof of contributory negligence  statutory violation. By virtue of breaking the statute  you’re negligent per se. Before suit, have to establish that - P is in the class protected - Harm is within class that was intended You can use P’s violation of a statute intended to protect P from just the harm they suffered  conclusive evidence of contributory negligence. Per se negligence. Symmetry between negligence per see and contributory negligence per se. Unless statute is violated is designed to protect her and unless she suffered harm that the legislature were trying to prevent. Koenig case on 295: - D is employer and P was harmed by job. D violated statute and was held negligent per se. Could P be negligent per se as well? Didn’t hold P contributory negligence per se for the P as they’re within the person within the class sought to be protected (contradiction). Effectively saying that there could never be contributory negligence per se. P wouldn’t satisfy first requirement. We’ve seen cases of contributory negligence but this case is an exception  we don’t want to be as bold as this court in definition. Wants to recognize sometimes statutes paternalistically designed to protect a small class of Ps. How to characterize this exception? Point is to be contributory negligent, P has to fulfill 2 requirements but if she’s among sole beneficiary of paternalistic statute, can’t be found CN if doing so would victimize rather than uniquely protecting her. Response to CN by P to D: 5. The Last Clear Chance Doctrine: Plaintiff’s Response to Contributory Negligence Davies case: P tethered donkey’s front legs into the roadway (grazing). D was coming down at smart pace, saw donkey, did nothing to slow down or avoid donkey. Hit and killed P’s donkey. If D has last clear chance to avert injury to P, even if P has negligent in putting himself in peril, D has duty to avert injury. Only D could save, had to do it. D has last clear chance to avoid a negligent because they’re helpless. Then D has to defend P’s safety on fear of liability. Why have this doctrine?

- Proximate cause: think about D’s failure was itself only negligence in not appreciating. Not the best explanation - fault-based rationale - cheapest cost avoider: the one who has last chance (D). Cheapest preventer of accident  people ought to be liable; in favor of last chance doctrine. Cheapest accident avoider Elements of last chance doctrine: - D’s negligence succeed P’s negligence in time. Must be an interval in which D has opportunity to avert disaster - D has knowledge or be willfully blind re: P’s peril. Consciously aware that P is facing peril. Restatement varies mens rea of D. §479  Yes. P is helpless and ∆ shouldn’t be texting ∆- Texting P- passed out drunk in the road §480  No. ∆ doesn’t know P is helpless ∆- Texting P- Driving but looking back at sunset §479  Yes. P is helpless and ∆ shouldn’t be texting ∆- Texting P- epileptic seizure Rule: In inattentive circumstances there's equal aversion ability by both P and ∆. In helpless circumstance, only one party can avert the accident

Answer is that both are negligent, inattentive can’t ask more of D than he is asking of himself. Both have last clear chance; all they need to do is become attentive. Can’t ask more than he’s asking of himself. When you know more than they do. a. What is the doctrine? b. Why is should this response defeat the defense of contributory negligence? c. What must be proved in order to satisfy the LCC Doctrine? (1) What is the mens rea required under the common law doctrine? (2) How and why does the Restatement (Second) vary the mens rea required between cases of helpless plaintiffs and cases of inattentive plaintiffs? B. Assumption of Risk Assumption of risk borne out of industrial revolution because litigation exploded 1. What is the traditional common law doctrine? (Lamson) Lamson – hatchet rack, P knew it was dangerous and employer didn’t care. P was later injured. Holmes concluded that “you get what you agreed”. P appreciated the risk better than anyone did; voluntarily assumed risk. Enough to bar suit for negative implementation. P voluntarily assumed risk. Elements of assumption of risk - voluntary assumption - known risk What constitutes a voluntary risk? Marshall case – P didn’t voluntarily assume risks of boar bite. His choices were so constrained that it didn’t count. Can’t be that you’re choosing amongst evils doesn’t count if one of evils comes to fruition.

Tenant in Kline case  attacked by stranger in apartment building. Voluntarily assumed the risk. When constitutes a risk? Rollar coaster case: P’s ticket was assumption of risk that he might get hurt. No written contract that P couldn’t find as matter of law assumed risk. Absent a written contract, we’re not going to direct a verdict for P. contract is clear evidence of assumption of risk. Contract (not true anymore) is strongest evidence. Does P have to be warned; a warning is just evidence. D only NEEDS to prove conscious awareness (not unsubstantial) that there’s a risk. What’s the rationale for assumption of risk? Murphy case (Flopper case) – Cardozo. P fractured his knee. Are two elements satisfied in this case? Yes. Voluntarily assumed the risk yes and it was known risk yes. Risk of falling was why P went on the ride. Why bar P’s suit because they assumed the risk? Best justifications for this defense: P’s do a bunch of risk. When someone assumes a risk, another way to put it, make it the case that the other person is nonnegligent for providing the risk (assume the risk of someone else’s driving – D isn’t guilty, purges D of any risk). Also risk premiums, if someone is paid to assume a risk. If you then allow them to recover under tort liability; double payment. Tempting argument; lots of jobs with hazard pay. More powerful argument: liberty enhancing “I want the opportunity you’re giving me and I’ll assume the risk of the harm you’re offering.” Liberty intuition – ability to sue later is barred but you get to do the risky activity. 2. What are the elements of the common law doctrine? What must the defendant prove? a. What constitutes a voluntary assumption of a risk? b. What constitutes or amounts to knowledge of a risk? (1) Must there be a contract or written/posted warning of the risk? 3. What rationales support the common law doctrine? 4. Is the assumption of risk defense really a separate/different defense? Or does it ultimately collapse into one of several other responses that a defendant can make to a plaintiff’s suit for negligence? (Meistrich) 322 note 2: doesn’t ultimately function as separate defense. Assumption of risk collapses on 2 claims, no space left for assumption of risk left (because doctrine is lost). Primary and secondary risk. Collapses on primary risk – D wasn’t negligent at all. Secondary risk is contributorily negligent by P. a. What is the difference between “primary” and “secondary” assumption of risk (under the Meistrich analysis)? b. What is the argument for the claim that assumption of risk collapses into one of these notions, and thus cannot function as a separate, independent defense?

c. Can a plaintiff ever non-negligently assume a negligently imposed risk? And if so, should he bear the loss if the negligently-imposed risk is realized? 5. What have been the practical consequences of refusing to treat assumption of risk as a distinct and absolute defense to negligence liability? Now completed look at major defenses that have been historically available to Ds (for negligently caused injuries): contributory negligence and assumption of risk. Before today, liability made all or nothing. Either P recovered everything (because D wasn’t able to raise defense) or nothing (if D had last clear doctrine). All or nothing system. Contemporary approach is comparative negligence – vast majority of the US. C. Comparative Negligence 4 states hold onto old system, vast majority do comparative. D’s fees should be proportionally reduced if P is contributory negligent. A negligent P’s suit for negligent will result in deduction of overall damages Li v. Yellow Cab: D speeding and ran yellow light. P crossed 3 lanes of traffic and collided. Both were negligent. Trial court held that it was barred because P was contributorily negligent. On appeal, Supreme Court of CA judicially ended contributorily negligence. Bear the loss in proportion – new system. Why? - Dollars follow fault. Fault based system (Holmes). People ought to bear losses, then this honors faulted based rationale. Negligence is fault based system. - unjust enrichment: inevitable when one or the other has to foot the bill. If D has to foot the entire, P got to be negligent by freedom of crossing three lanes. - Juries were already effectively engaged with comparative negligence. Better to make it explicit and the principal. Jury who finds the P to be 7% (they’ll find 0%) to allow recovery and slightly downward to reflect contributory negligence. What are we comparing under comparative negligence? - Fault (switch from comparative negligence to comparative fault). This means that overall fault, D will pay more. Majority of damages even if she’d in fact wearing seatbelt (in Durnham case – fault or causation). Comparison of fault (not causal contribution). 1. How does comparative negligence work as a defense? Can degrees of fault actually be measured? Or are they inevitably inarbtrary? Practical/administrative, should just juries be find negligence on 10 pt scale, 5, pt scale, etc.? - typical behavior is 100pt scale. Negligence on percentage blocks (D was 30% at fault) or should juries be given complete discretion? We just leave it to juries (100 point scale); they can come back with whatever they want. No fixed answers. Now consider, larger question: whether agreement can be reached via different members of jury? - Imagine P is driving with elbow out the window. D loads truck with big boxes and he used inadequate ropes, didn’t double check. D2 is truck driver, sees the loaded truck, passes his mind to check the ropes, but in a hurry with loaded truck. - D2 drives the truck, boxes fall loose and box flies through the air and damages P’s elbow. Now P sues both Ds and they allege contributory negligence.

- People can agree (by in class example) if we get the chance option. Juries get fixed result most of the time. Hasn’t resulted in significant disagreements. I...