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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


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I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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Wednesday, May 5, 2010

13 – Negligence – (Defenses)

13 – Negligence – Defenses

PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.

In the last Torts session, we looked at the topic of damages. Now we look at defenses in negligence.

The point about defenses is that damages can be reduced or barred by a defense. There are three main defenses: Contributory negligence, comparative fault (or negligence) and assumption of risk. When taking a law essay, talk about all three.

Contributory Negligence: Contributory Negligence is the negligence of the plaintiff that contributes to the accident. Its effect is that a plaintiff who is shown to be contributory negligent is totally barred from recovery. The Last Clear Chance Doctrine is part of Contributory Negligence and instructs a jury to ignore P's contributory negligence if the D's negligence occurred after the P's contributory negligence. This doctrine is not used much today.

Comparative Fault: Comparative negligence is the negligence of the plaintiff that contributes to the accident. Its effect is that the plaintiff's recovery is reduced by the percentage of her negligence.

     1. Pure Comparative Fault (sometimes called “Complete”): The last I looked, twelve states have adopted this position. In comparative fault, Plaintiff can recover some percentage of an award from Defendant regardless of the extent of Plaintiff’s own negligence. For example, if Plaintiff is awarded $100,000 in damages, but the jury also finds that plaintiff is forty percent at fault – forty percent negligent, Plaintiff’s recovery will be reduced by forty percent - $40,000 – so he will only be able to receive $60,000.
     2. Modified (sometimes called “Incomplete”): This is the view followed in a majority of jurisdictions. This view allows Plaintiff to get a partial recovery, like Pure Comparative Fault, until Plaintiff reaches a certain level of culpability. Once Plaintiff reaches this level, Plaintiff is completely barred from recovery.

          a. Greater than 50%. Again the last time I looked, over twenty states used this approach. In this approach, if Plaintiff’s fault exceeds that of Defendant’s fault, Plaintiff is barred from recovery. She gets no recovery. As an example, if Plaintiff is awarded $100,000 in damages, but the jury also finds that plaintiff is fifty-one percent at fault, Plaintiff’s recovery will be zero. She is completely barred from recovery.
          b. 50% or greater. About twelve states use this approach. In this approach, if Plaintiff’s fault is at least equal to the fault allocated to Defendant, Plaintiff will be barred from any recovery. As an example, if Plaintiff is awarded $100,000 in damages, but the jury also finds that plaintiff is fifty percent at fault, Plaintiff’s recovery will be zero. She is completely barred from recovery.
          c. Slight. As far as I know, South Dakota is the only state following this approach, so it is hardly worth mentioning. In this approach, Plaintiff only recovers if his negligence is slight. Otherwise he is barred from recovery.

On an exam, I think you should talk about the greater than and the fifty percent or greater approach, but you need not talk about the slight approach.

With all forms of comparative negligence, most courts have held that Plaintiff damages will not be reduced or barred if Defendant is an intentional tortfeasor or if Defendant is reckless or wanton – extreme risk coupled with conscious indifference. Further, where Plaintiff’s fault stems from her illegal or criminal conduct, she will not recover in most jurisdictions. The same is true if Plaintiff’s conduct was the preemptive cause of Plaintiff’s harm. In other words, Plaintiff should not recover if, absent her conduct, she would not have been harmed.

Assumption of Risk (“Assumed Risk”): Though assumed risk is often discarded as a separate defense, it is important for law students not to discard it on exams. In jurisdictions that allow assumed risk, it is a complete bar to Plaintiff’s recovery. This defense requires Plaintiff to knowingly and voluntarily assume the risk of a known harm. Assumption of risk is where a plaintiff voluntarily undertook the risk that harmed her. Here are the elements:

     P must:
          1) know of a particular risk and
          2) voluntarily assume the risk

(e.g.: Rock climbing, bungee jumping, whitewater rafting, etc. If you do these things, you will be found to have assumed certain risks.)

In general, there are two types of assumed risk: Express and Implied.

     1. An express assumption requires an oral or written consent. Express assumption of the risk has a subjective test, but it is often not enforced, especially if there is unequal bargaining power on the part of the Defendant (e.g. where the express assumption is pre-printed on a ticket for an event). If it is enforced, it is often a complete bar to recovery.
     2. Implied assumption of risk: IF a reasonable person would have recognized the warning signs, he has knowingly and voluntarily accepted the risk by virtue of being a reasonable person (note the objective standard for implied assumption of the risk).
          a. The Minority position holds implied assumption of risk is a complete bar.
          b. Some Jurisdictions hold that Reasonable implied assumption of risk is a complete bar.
          c. Some Jurisdictions hold that Unreasonable implied assumption of risk is a partial defense.
          d. The Majority/Modern Trend is that implied assumption of risk is absorbed into comparative negligence. So if a reasonable assumption of risk is made by Plaintiff, then there is probably no deduction of damages because Plaintiff was reasonable. If an unreasonable assumption of risk is made by Plaintiff, then there is probably no deduction of damages since it reflects the fault on the part of Plaintiff. Here, the appropriate deduction of recovery would come under comparative fault.

One more point here: The Firefighter's Rule: This rule precludes firefighters from suing for injuries sustained fighting negligent fires. The rule suggests that certain professionals (like firefighters and law enforcement agents) should not recover for injuries resulting from negligence that they are compensated to address.

Professor Doug Holden
© 2010. Douglas S. Holden. All Rights Reserved.

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