Kelsey CoxTortsPg 301-320; 325-347; 355-368: Problems on Pg 373

Chapter 4Plaintiffs Conduct

Contributory Negligence established when the P has not taken reasonable care and in consequence has
suffered injury (where the plaintiffs conduct affects her right to recover damages for her harms)
o At Common Law: Ps negligence barred for any recovery despite the negligence of the defendant
(Exceptions: Last chance rule and assumption of risk asks whether the P has deliberately and
voluntarily encountered a known risk created by the D negligence and has )
Comparative Negligence the P negligence should not typically bar her cause of action but only reduce the
amount of damages recoverable
D would claim that Ps negligence conduct brought him harm or the P assumed the risk of the harm
which barred Ps recovery

Why have contributory neg rule?

1. You shouldn't pay ppl who act unreasonably
2. Here we are no longer treating innocent victim and tortfeasor; both D and P are at fault, so we don't prefer
one over the other (fairness)
3. Efficient, if w/o, we can't regulate p's conduct (ppl throw himself in a negligently behaved D in order to
recover) non fit injuria, pari delcto (equal wrong)cannot hold it against ; exturpa causa non acta ortoria
(cant recover from a bad injury).
a. You wouldnt be liable because some else would be responsible.If can take precautions so
that the injuries never occurs than we want them to take those precautions.
4. This rule contributes to Strict liability theory (D always liable is he is neg unless P is negligent)

1. What has the P done wrong.

(look at case; Martin v. Herzog; Exckert v. Long Island; vaugh v

menlove; 19 year old on motorycyle; Roberts v. Ring)

Section B: Contributory Negligence

1. Basic Doctrine

Butterfield v. Forrestor (1809)

Kings Bench
Plaintiff: Butterfieldfast horse ride

Defendant: Forrestorland owner put pole out

Procedural Posture: 1) Kings Bench where the case is now; Jury find for D; P wants a new trial based on a rule
that if a man lay logs of woods across a highway though a person may with care ride safely by, if horse stumbles on it
he can bring action.

1. What has the P done wrong. If soB cannot recover.

Facts:

D, Forrestor was making some repairs on his house and put a pole across the road in front of his house.
At 8 pm, (just when they were beginning to light candles), P road his horse really fast down the roaddidnt
see the pole ran into it and was injured
o It was light enough outside to see the pole from 100 yards (had a witness prove that)
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o

P was riding so fast that he wasnt able to see or avoid it no evidence of intoxication

Bayley instructed jury that if a person riding with reasonable and orinidary care could have seen and
avoided the obstruction and if they were sastified that the P was riding along the street extremely fast and
without ordinary care that the should find for the D.which they did

Rationale:
P was not using ordinary care as he was riding his horse to fastif he did use ordinary care he would have
been able to see the pole
One person in fault will no dispense with anothers using ordinary care for himself.
In order for D to be liable, P would have had to have used ordinary care which he did not.

Beems v. Chicago, Rock Island & Peoria R.R. (1882)

Iowa Superior Court
Plaintiff: BeemsRailroad worker

Defendant: Chicago, Rock Island, & Peoria R.R.Railroad company

Procedural Posture: 1) Trial Ct where the case is now

Facts:

P was a breakman (worker responsible for trains breaks) for the D railroad Compnay
P was trying to uncouple (disconnect) two railroads cars while the train was moving. Before he did so, he
signaled to the Rail Road employees to check the speed of the cars and slow down.
o The disregarded and failed to obey his directionand as a result the P foot became caught between the
rails and he was killed by the train.

Ps Argument Railroad employees were negligent in failing to slow the train down when he told them to.
Ds Argument Claimed that the P was contributorily negligent in climbing between the cars while the train was
proceeding at an unusual rate a speed and that he could not recover

Wanted the instructions if the P foot was caught between the rails, the D was not liable even if they were
negligent.

Court Instruction If Ps foot was caught between the rails, and he was thus held and run over without any
negligence on the part of the employees of the D, then the P cannot recover anything.
Rationale:

P was not acting negligently because it would have been reasonable to assume that the employees would have
complied with his signal to slow the train down.
P was not contributorily negligent
D was negligent as the trains were moving with unusual speed, without obeying signals to move slowlythus
negligently running him over.

Primary Neg D was going to face

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Secondary Neg P didnt check that it fall.
Reciprocal duties in their relationship with one another.not a regular person on the street.
Blind guy falls into the holeboth have a duty to one another.
Relationship between them affects their standard of care. Way in which we establish what contributory negligence
means
What would an ordinarily reasonable person do under the circumstances. Did you take the appropriate precautions to
protect yourself

Garry Schwartz: Tort Law and the Economy in 19th Century America: A
reinterpretation

19th Century NH and CA accepted the traditional rule of contributory negligence as a complete defense
CA court placed the burden of proof on the defendant.
NH Ct contributory negligence could only be taken away in extraordinary circumstances.
Both Courts Emphasized
o The lenient and forgiving quality of the cn standard
o P was not required to exercise great care or to behave in a very timid or cautious way..contrib neg
was not proven by an indiscretion or mere error of judgment
If P was startled and alarmed that was taken into account in evaluating the reasonableness of
his conduct; Momentary discretions (most common occurrence on city streets) fall short of
contributory neg.If P forgot what he knew about a particular danger the court would say that
people are liable to lapses in memory.
Negligence of Tort Def held to the utmost care <double standard between the two types of negligences>

Notes
1. The Scope and Function of Contributory Negligence:
a. Stranger Cases (including highway accidents and Butterfield case): the ability of each party to act
prudently does not depend on the cooperation with the other.; likely that the standard of care imposed
upon the P and D will be the same ie minors were charged with contributory negligence measured
objective standards in highway cases
b. Consensual Cases (including employer/employee relations): coordination is needed between the
parties (parties might have different access to knowledge and a different ability to take care) Beems is
a consensual case coordination between the parties is needed
c. Eliminate the defensive contributory negligence altogether i.e. hand formula: the defendant
can always escape liability by showing that he took cost justified precautions against accidents;
provides the rational defendant with all the protection needed against unwarranted suits
i. Basic negligence calculation
d. Strict liability with Contributory : Stranger Cases i.e. suppose two car crash head on when
neither driver is negligentUnder SL with Contrib neg each party would compensate the driver for
his lossis a matter of luck for $$,
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i. Causation is important for SLD has to show that P blocked Ds right of way somehownot
that P violation of rule of the road was brought by negligence or wrongful intent.

Gyerman v. United States Lines Co. (1972)

California Supreme Court
Plaintiff: Gyermanlongshoreman (employed in a port to unload and load ships)
Shipping Company

Defendant: US Lines CO

Procedural Posture: 1) Trial Ct trial judge found D negligent in its failure to stack the fishmeal in a safe way +
conduct was a violation of its statutory duty to provide every employee with a safe place of employment: D neg was
the proximate cause of Ps injury BUT Ps negligence in failing to stop work in the face of a known danger barred his
cause of action
Facts:

P was injured while unloading fishmeal sacks that were in the warehouse of the D.
o Fishmeal is a difficult cargobecause the sacks rick and spill.
Before he began work, P noted that the sacks were dangerously stacked
o Should only have 18-22 sacks per one pallet; only 3-4 layers high..and the sacks to should be tied
together to prevent them from falling. (aligned like bricks with no one directly touching another
o NOTED that there were 30 packs per pallet, they were not tied together or in a brick like fashion
He complained to Noel, D chief marine clerk that it was dangerous to proceed but was told nothing could be
done about it.
o P did not speak with his own supervisor (even though his union contract said that he should not be req
to work when I good faith believed that to do so would immediately danger health and safety.
o On 4th day 12 sacks fell off and he sustained back and leg injuries.

Ps Argument burden was on D to prove that if P had reported the condition to his own supervisor instead of the D
supervisor, the condition would have been corrected or made safer
Ds Argument that they didnt have to prove that the condition was correctable and that there was evidence
supporting TC finding.
Primary Neg (Neg of D) D didnt stack fishmeal properly; we know that this is negligencestatute here sets the
reasonable standard.
Secondary Neg (P neg) not tell his direct supervisor( he could of told supervisor, took more careextra super
careful, maybe he shouldnt have stopped working; part of union contract- which is setting the standard of
reasonable carecontract outline his duty of care. Negotiated in advance how to deal with situations like
this.violating the standard of care which he owes himself.

Rationale:
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A P is req to exercise only that amount of care which would be exercised by a person of ordinary prudence
under the same circumstances.
o Standard of Care required of Laborers is explicated by evidence of duty imposed by contract and
by customevidence of custom is admissible for its bearing on contributory negligence. You have to
tell your supervisor. CT DOES NOT TREAT CONTRACT AS STATUTE.
o Two. Parties negotiating over a standard of carecontracts.
o Places the Burden too much on the workers...they might be stupid and easily misled. it might not of
been the smartness thing to do
Why 1) variations of factor
The burden of proving all aspects of the defense of contributory negligence, including causation rests on the
defendant (unless inferred by Ps evidence)
P failed to use ordinary care for his own protection
o Ct looked at if the Ps failure to report the unsafe conditions was a legally contributing cause bringing
about the Ps Harm
o Ps neg (not to report) was not the cause of his harm, therefore D has not established defense of
contributory negligence.
Here it might not have beenMartin v. Herzog (didnt have lights on in the car).
P did not create or maintain dangerous conditions; only neg was failing to report to his supervisor
o TC found that D negligently maintained and operated its warehouse under those conditions
o D alone created the risk of harm which materialized in the toppling of the sacks.
o Even if he hadnt have been negligentthe outcome would have come out the same way.
Ds theory of causation is that if P had reported to his supervisor that firm would have made
the condition safer.no evidence establishing theory
Had witness Hargettmanager of relationssay that he would have to get another lot to
work on or have supervision called and then they would of sent men there to take care of the
situation ---doesnt show that stacks would have been made safer
No evidence of specific measures that would be taken.
Ps failure to report did not bring about the fall of the sacks.
D hadnt been able to show that he wouldnt have been injured.someone would have to do
it.
Ds burden to show because he raised it as an AFFIRMATIVE DEFENSESO IT IS HIS
BURDEN. (he has to prove each element of contributory negligence).
Causal connection between contrib neg and the Ps harm.
Remanded for retrial the issue of Ps contributory negligenceincluding the issue whether such
negligence if any was the proximate cause of the accident; negligence was already determined.
Negligence (big N) Duty Breach Casuation neg
CN as the Defense duty, contributory negligence, cause
Notes:
1. Contributory Negligence and Breach of Statutory Duty:
a. Koening v. Patrick Construction Corp: ct did not allow the defense of contributory negligence or
assumption of risk when the P was a member of the class of persons which the statute (Scaffold Law )
was trying to protectlegislature was guarding against inadequate equipmentand to allow nullify
purpose if employer could avoid duty

Kelsey CoxTortsPg 301-320; 325-347; 355-368: Problems on Pg 373

b. Blake v. Neighborhood Housing Services of New York City: not legislative intent to suggest that D
should be treated as an insurer after having furnished a safe workplace.only to compel owners to
comply with law not penalize them when the have done so
c. Robinson v. East Medical Center: P could not recover after falling off a ladder while reaching to
clamp a steal beamthe equipment was not defective and D provided a safe workplace.
d. ONeill v. Winshire-Copland Associates: Ds apartment buildings were supposed to have 48 inc rails
req by the building code by the D only had 32; P was drunkfell over the rail and became
quadriplegicEven though D was negligent in VA law treats contributory negligence as a bar so P
could not recover
Statute sets the standard of care to protect people of the deck. This statute doesnt have the effect of
canceling out the P contributory negligence. The goal of the statutesthey are so concerned about
people (Koenig) that they might do reasonable thingswe think that the D should still be liable for
it.We are so worried about them be unreasonable. Worried about P like this doing stupid stuff.no
evidence that ONeil mandated the statute was to make sure that really drunk people dont fall of them
and do not recover.
IS THERE A LEG INTENT TO PRESERVE LEG RECOVERY IN INTENT of
2. Contributory Negligence in Medical Malpractice Actions
a. Dunphy v. Kaiser: P suffered an amputation of his right foot due to the failure of D to diagnose a bone
disease; p refused to wear a cast to treat an unrelated ulcerwhich tc judge found to be a substantial
factor contributing to the amputationbut sometimes physicians superior knowledge and expertise
and the limited knowledge of the patient concerning the dangers may negate the critical elements of
contrib neg..but not in this case?
Insanity Defense usually not a defensein Padula vs State.
3. Contributory Negligence in Custodial Care
a. Padula v. State: 2 P were inmates at a Narcotic Rehab center and they were able through thte
negligence of the centers guards to gain access to the centers printing roomwhere they found ditto
fluid (which was high in methyl alcohol) and drank it after mixing it with an orange preparation called
TangOne P died and the other became blind; Negligence is whether jury believes that person could
have control their actions
i. Being insanity institution doesnt bar from CN unless the plaintiff is viewed to have been
unable to control his actions; In custodial relationships (ditto tang), - irresistible impulses do
not sever causal connection when the act is specifically what the subject was in treatment for
(alcoholismPadula v. State).
Took place in a State Rehab centerbecause they have an addiction there is an irrestible. Rehab should be a safe
investment. If Contrib Neg were a defense .D would say that P would be liable for drinking it it doesnt seem
fair.State rehab center had a grosser negligence and seems much work. Ie if P contrib neg would frustrate existence
of D duty.MAKES DEF DUTY TO TAKE CARE STICK.
4. Contributory Neg and Private Necessity
a. Raimondo v. Harding: Person faced with an emergency who acts without opportunity for deliberation
to avoid an accident may not be charged with contrib neg if he acts as reasonably prudent person
would in that situationeven if it appears to him afterwards that he did not take the safest course
b. 3RST S 9 law of negligence takes into account an unexpected emergency requiring rapid response
c. 2RST S 465 1) Ps neg is legally contributing cause of harm if it is a substantial factor in bringing
about this harm and there is no rule restricting his responsibility for it 2) rules determining casual
relationship between P and his neg is same for Ds negligent conduct and resulting harm for others.
d. Smithwick v. Hall & Upson Co. P working on a narrow platform in front of Ds ice houseD told P
to stay away from the east side of it because he did not want him to slip on icep disregard
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instruction and east portion buckled.p was not contributorily neg because harm was not within the
risk he was warned of.
e. Mahoney v. Batman: P was driving his Rolls Royce at 60 mph on a two lance concrete turnpike
when d was approaching from other direction and turn to talk to some one in back seat and veers over
the middle of highway and hits P left hub cap and spare tire causing 200 worth of damages but P spins
out and hits a tree and stone wall causing $5,650 worth of damages; speed of Rolls Royce was
unreasonable but did not contribute to the collision that was entirely Ds negligence. Awarded full
damages
5. Burden of Proof of Negligence
a. Universal Modern RuleD bears the burden of proof on the issues of contrib neg and its causal
relationship to the P harm
b. Minority View once req the P to establish her freedom from contrib neg as part of her cause of
actionrule prob arose from intervening neg of another actorsevered the causal connection between
D neg and Ps harmbore proof of showing not contrib neg
c. Death Cases presumption that decedents act on instinct of self-preservation and in ordinary care.
(Thompson v. Mehlhaff)
Failing to wear a seat belt is contributory negligence. there is a statute legislatures though it was a costly thing
to do to mitigates risk. Not having a seat belt of caused the accident. Had the P behaved otherwise there would not
have been a different result. Ie like gymerandid not cause the P harmbut it made it a difference in the amount of
harm that the P suffered.
It would be unfair to you to make pay allIF D didnt originally do what they did to cause the accident the whole
thing would have been avoided.
Separte the accident and the injury.causation from the accident Ds Drunk driving
Injury has to do with both the drunk driving and failure to wear a seat belt. Vosburgyou take your victim as you find
him.
No Not like Vosburg v. P shingaurd, not kicking someone is less than it just dont kick people. We are talking
about accidental injuries.who is the cheapest cost avoider. P can avoid
Primary Neg (Neg of D) + Secondary Neg (Neg of P)
Negligence (big N) Duty Breach Casuation neg
CN as the Defense duty, contributory negligence, cause
Most courts separate themfailing to wear a seat belt is not going to defeat a claimbut to come in for purposes of
deciding damages. ( if can always recover...than there would be no motivation to wear a seatbelt)

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LeRoy Fibre Co. v. Chicago, Milwaukee and St. Paul Ry. (1914)
US Supreme Court
Plaintiff: Leroy Fibre Coflax ignited

Defendant: Chicago, Milwaukee and St Paul Ry.Railroad

Procedural Posture: 1) Trial Ct Jury found that D had negligently operated its train by allowing it to emit large
quantities of spark and that act was the cause of the Ps harm. Found P guilty of contrib negby placing stacks within
100 feet of the railroad tracks 2) Ct CT of appeals certified questions to SC (see below) SC has to decide if there
was any question of contributory negligence to leave to the jury
Facts:

P was a maker of flax and stored straw in stacks on his land (700 tons in 230 stacks)
D railroad ran about 70 feet from first row and about 85 feet from the second row
One day a high wind carried sparks from a passing train to one of the stacks of flax located in the row 85ft
from secondand burned all of the flax

P arguing D was negligent in allowing train to produce big sparks.

D argue P was contrib neg by putting stacks close to tracks.
Rationale: whether the P is negligent for failure to guard against the defendant negligence.
McKenna, J.

P use of land was of itself a proper use and did not interfere with the right of railroad to operate.
Certified questions: Whether one is limited in the use of ones property by its proximity to a railroad OR
whether one is subject in its use to the careless as well as the careful operation of the RR ?
o Answer to second question is no
A person has a duty of not only using his property so as not to injury another but so to use his own
property that it may not be injured by the wrongs of another.
Rights of one man in the use of his property cannot be limited by the wrongs of anotherIn this case, the
plaintiff wasnt doing anything wrong, wasnt violating anybodys interest.it would be too much of an
imposition on his private property rights to expect him to anticipate other peoples negligence. Ie meth lab in
basementyour failure to buy armour would not seem to be negligent.
Contributory negligence is entirely out of place. Ps proper use of his land is not contributory
negligence where RR is clearly shown to be negligent

Operation of RR is a legitimate use of propertyother property in its vicinity may suffer inconveniences and
be subject to risks by it, but a risk from wrongful operation is not one of them
P has does nothing to invade physically the railroads right of way.

Holmes, J (partial concur)

If a man stacked his flax so near to a railroad company that it was likely to be set on fire by a well managed
train.than he cannot throw the loss upon the railroad by having the jury look at whether RR used due
care Would the P property have been injured by a reasonably driven railroad.if yes by a reasonable driven
railroad.then yes you should take careConstantly weighing and trying to trade off benefits between the
parties. Better to put the costs of doing so on the P rather than on the defendant. IF P can protect their
resources more cheaply than D then they should do so.
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Although P has right to the flax where ever he wanted. The liability of the rr for a fire was conditioned
upon the stacks being at a reasonably safe distance form the train
o For jury to look at if the flax was so near the track as to be in danger from a prudently managed
train (if 70 ft was too near or not?)
o Depends upon the difference of degree
o If both parties are reasonable no liability
Nature of Costs, who is the better bearer of the risk.Reciprocal duties ie blind person on the street.
Notes:
1. Reciprocal Causation:
a. Smith v. Kenrcickmine owner under no duty to erect a barrier to keep foreign water discharged by the D
from flooding his mine
b. Kansas Pacific Ry v. Brady D railroad set fire to P hay which was tacked between 1 + 1 miles from
trach but there was dry grass in between.evidence of D negligent in operation of train..P had a right to
stack hay in a dangerous place and was not contrib negligent?
c. Seva Insurance v. Vicksburg fire cases required jury to take into account the reciprocal duty of bot parties
ie confectioner machinery disturbing the drs work; the straying cattle and the crops; the lack of fish because
of pollution to the stream or the product

2. Last Clear Chance

3. Negligence (big N) Duty Breach Casuation neg
4. CN as the Defense duty, contributory negligence, cause
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Fuller v. Illinois Central R.R. (1911)

Mississippi Superior Court
Plaintiff: FullerWagon rider

Defendant: Illinois Central R.RRailroad

Procedural Posture: 1) Trial Ct judgment was given for the Railroad 2) Ct of Appeals where the case is now D
appels.
Facts:

P (70 years old) riding his one horse wagon on a dirt road that crossed part of the D track that ran
perpendicular to it.
P had his head down and did not observe the train coming
The train was 30 min late and traveling at a faster than usual speed of 40 mph.
The train conductor saw the P at 660 ft and could have stopped the train within the 200 ft .but did not slow
the train at allthe only signal he gave was a routine whistle blow before he hit and killed the P.

There should be no liability for D as he meets the Contributory Negligence ...k

Primary Neg Def not stopping train or giving a proper signal farther back to alert P
Secondary Neg P not looking at the tracks.
Rationale:
1) All that is req of RR company against a trespasser is the abstention from wanton or willfully injury (conduct
that is characterized as gross negligence
2) Even if injured party may be contrib neg it is no defense if the injury were willfully or recklessly
done
3) Last Clear Chance Rule if D might by the exercise of reasonable care and prudence have avoided the
consequence of the injured partys negligence (universal favor)he had a duty to do so; Party who has the last
clear opportunity of avoiding the accident, notwithstanding the negligence is considered solely responsible for
it. Had the last, final opportunityhe should of done it and negligence gets re-asserted; re-instates the primary
Before P would Get 0 and now he gets all of it.
o Davies v. Mann P restrains front feet of a donkey, and leaves him on the public highway to graze; D
was driving a wagon and ran over and killed the donkey; D might have by proper care avoided
injuring the animal he is liable for the consequences of his neg although the animal may have
unlawfully been there
While old man was contributorily negligent, RR had last clear chance to avoid accident and negligently did
not; RR is considered solely liable.
o D had enough room to stop in time, he did not sound and alarm to warn P and allow him to move off
of the trackonly warning was given to late NO incentive not to harm the donkeythe burden of
care is so low. We are changing the timing of the negligence.
o Its a new bit of negligence that you saw and you were unreasonable with respect to that risk Risk 1
dont drive to fast Risk 2 dont put donkey on tracks Risk 3 unreasonable not to do so
o Time Series of different Events: Dont want people to plow through donkeysin the absence of it
people just blow it overyou dont have to pay that guy you are all contributorily negligent.
Re-incentives.
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o
o

When D sees donkey and decides to plow throughhe was an ASS. ; pari delictoit is not equal
wrongs one is more than the other.
Regular to gross wrongful behavior.

2RST
RestatementandLastClearChance:Putitintoyourownwords.

S479:HelplessPnegligentPcanrecoverfromDssubsequentnegligence,ifimmediatelybeforeaccident,
Pcouldnotavoiditbyreasonablecare,orifDcouldavoidaccidentbutdidnot,eitherduetonegligenceor
inattention
S480:InattentivePP,whocouldhavediscovereddangerthroughexerciseofreasonablecare,canrecover
fromnegligentDifDknewofPssituation,realizedPsinattention,andisnegligentinfailingtouse
reasonablecaretoavoidharm.

Notes
1. Sequential Conduct: the action of one party takes place after the other person has completed or has
irrevocably committed himself to a given course of conduct. Once D becomes ware of the P peril he
becomes obligated to react to that danger by taking steps to avoid it.
a. Davies v. Mann Making contributory negligence an absolute bar will deter P from leaving his
donkey on the highway but doesnt reduce Ds incentive to avoid killing the donkey.
2. Scope of the Last Clear Chance Doctrine: P must show that D was guilty of something more than ordinary
negligence.that the P was in peril or negligence so reckless.
a. Kumkumian v. City of New York: Citys train ran over the P who was lying on the track before the
entrancethe train halted 3 times after its tripping device came in contact without something on the
tracksafter first 2 stops, engineer inspected and didnt find anything.didnt on the third and killed
him.Neg in disregarding the emergency equipment
3. Problem **See Book**
4. Reckless Plaintiff vs Reckless Defendant
a. Washington Metropolitan Area v. Johnson: P flung herself in front of an oncoming train to kill her
selfthe D was intoxication but not liablebecause the P had voluntarily invited the particular harm
to occur
b. 2RST S 503 (3): A P whose conduct is in reckless disregard of her own safety is barred from recovery
against a D whose reckless disregard of the Ps safety is a legal cause of the P harm.

a. Last Clear Chance: a way to lower the harsh effect of CN on the P.

i. Helpless Plaintiff - unable to avoid the harm by reas. vigilance and care
1. D knows Ps situation or has reason to realize the peril, but fail and cause harm
ii. Inattentive P - by the exercise of reasonable vigilance, could escape injury
1. D has to actually know Ps situation, and still cause harm
iii. D is possibly the least cost avoider; Antecedent negligence that stops you from being able to take the last
clear chance doesnt allow you to be charged on a last clear chance doctrine.
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iv. Most states reject the LCC doctrine when replacing CN with comparative negligence

Section C. Imputed Contributory Negligence

Negligence of some other person can be charged or imputed to the P.
o

Imputed CN

Rule: Usually limited to some sort of pecuniary joint venture. Imputed in both a
master/servant relationship and a joint enterprise/venturehas nothing to do with a familial
relationship

Thorogoood v. Bryan driver of a horse draw bus stopped in the middle of the road instead of near
the curbwhen P stepped off was killed by another bus traveling too fast in the opposite direction. Ct
held that negligence of driver should be imputed to the passenger because of the close identification
between them. Common law negligence of CTA driver would be imputed to you and prevent you
from recovering.

Mills v. Armstrong (English case that repudiated Thoro)

Rule: The neg. of the driver will not be imputed to the passenger due to the driver/passenger
relationship alone.
Passenger does not have any real control over the driver that would make it reasonable to hold
him libale for his actions.
When you try to apply it to passengers on steamship or railwaysshows its unreasonableness
CN less likely to be imputed to other possibly P unless there are some sort of imputed CN
Dashiell v. Keauhou-Kona Co. P was injured jointly through the negligence of his wife, who was
driving a golf cart in which he was the passenger and the negligence of the D.joint enterprise
defense was inapplicable as a matter of law..there was at not time a relationship of joint enterprise
or joint venture between him and his wife in the meaning of imputed negligence. (did not have a
contractual obligation which resulted in liability)

Mr. Dashiell was found to be blameless and was able to recover as he was under no duty to
control the actions of his wife.

Both Ways Test: (Note: Some modern dissatisfaction with it.) If A can be held vicariously
liable for the torts of B, then the CN of B should be imputed to A to bar As recovery.

C had the last chance to avoid accident than person could not claim. Can the negligent effort to
take the last clear chance also defeat Ps contributory negligence? YES; ie do something
additionally negligent so that you wouldnt hit donkey.failing to be able to take the last clear
chance (failure to take do to some antecedent negligent) Look at RST.

Vicarious Liability in order to increase the number of those to provide a financially responsible
person to injured 3rd parties.

Hartfield v. Roper (negligence of a parent was imputed to the child)barred the action of a 2 or 3
year old because of his parents negligence in allowing him to wander into a road where he was struck
and injured by a sleigh driven by D..gross neglect for parents to let him wander in the streets
Parents act is deemed the act of the infantparents neglect is the infants neglect.
Infant should look for redress to that guardian
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Repudiated by either common law decision or statute in virtually all jurisdictions.

Negligence (big N) Duty Breach Casuation neg

CN as the Defense duty, contributory negligence, cause
| Ds primary Negligence

| Ps contributory negligence

| LCC Doctrine

P had failed to take appropriate precautions for himself

LCC had the last clear chance of avoiding the injurycan negate.

Section D. Assumption of Risk

Elements
o 1) D is negligent
o 2) P is aware of risk but consents to it
o 3) Ps injury is caused by that risk
o 4) P fully understood risk and chose to accept it.

a. Assumption of Risk: P voluntarily and knowingly assume the risk; certain common knowledge is taken as
known, such as fire burns, wet floor slippery.
b.

For the doctrine to apply, the risk that P assumed must be the same as the risk that ended up causing the
harm.

c. I absolve you of liability for lack of alternatives.

Lamson v. American Axe & Tool Co. (1900)

Massachusetts Superior Judicial Court
Plaintiff: LamsonAxe company employee

Defendant: American Axe and Tool Company

Procedural Posture: 1) Trial Ct directed verdict for the defendant on the basis that P assumed the risks of the
injury 2) Ct of Appeals Lamson appealed where the case is at now
Facts:

Lamson was employed by D company to paint hatchets.

He worked at a bench above which was a rack where he placed the hatchets to dry
o The racks which safely held the hatchets were replaced by D by racks that did not hold the axes up
very wellespecially when they were jarred by nearby machinery.
o The jarring was a common occurrence and P complained to his superintendent because he was worried
about being injured from a falling axe and told him that new racks were in efficient
o He was told to either use the racks or leave.
He continued to work and was injured when the hatchet fell.

Rationale:

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Kelsey CoxTortsPg 301-320; 325-347; 355-368: Problems on Pg 373

P cannot recover for negligently inflicted injuries when he assumed kept on workingCONSENT the risks
of such injury.
He knew better than anyone that this risk was a great possibility.
P was aware of the risk of injury that the rack presented and when given the choice of to leave or stay working
under those conditions he chose to stay. Consensual defenseKind of bothknown or should have known.
1. He assumed the risk of injury and cannot recover.
2. For - maybe the pay is better by taking the risk
3. Against - P didn't really have lot of bargaining power

Good Outcome who is most cheaply able to bear the risk.. ie what would be worse a different job; rational
person to voluntarily contract over risk. not to have zero hatchets.its not 0 arms loft offnot too many or to few.
Value of ARM to Value of JOB== cost benefit analysis.
P has the right set of incentives..D have the right set of incentives todont want to be killing al of their employees.
GYERMAN; CONTRACT HTER TO DISTRIBUTE the risks..
OLD RACKS MORE EXPENSIVE> couts should engage in paternalism.
Not sure that the contract set a good standard of care. *** ISSUES ABOUT DISTRIBUTION OF RISK BETWEEN
THE WORKERS AND THE DEFENDANTS****
WE know that he know about it.
Think about the decision making it going to fall, will it affect my livelihood.what are my other optionshow much
less money would I make. What kind of oversight is app.
Require it how thtel aw is j
Notes
2. The Fellow Servant Rule: employee cannot hold company liable for negligence of co-worker; (stranger can
hold company vicariously liable for wrong of employee); many employer liability acts get rid of this rule,
holding employers liable for negligence, but incorporating some common law assumption of risk principles.
a. Vice Principal Exception: certain duties of the employer discharged by supervisory personnel were
regarded as nondelegable (duty to supply proper equip, furnish a safe work place ) (servants were
deprived of its protectionslavery)
b. Preislty v. Fowler: P lost is right hand when another of the D servants carelessly threw the wrong
switch down the line. Employer had not been negligent in the selection and supervision of the
switchmanP assumed riskimplied contract of the master does not extend to indemnify the servant
against he negligence of anyone but himself.
i. Passenger carriers are held to a stricter responsibility of care
ii. D was employed by the P as an engineerand was paid at a higher rate with a full knowledge
of the risks incident to the employment (loss was a pure accident)
3. Employer Liability Act: Lamson was brought under Massachusetts Employers Liability Actheld
employers to a general rule of negligence liability and abolished the servant rule.but assumption of risk
survived.
a. St Louis Cordage v. Millerct defended the assumption of risk as the manifestation of freedom to
contract.
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b. Smith v. Baker & Sons P while engaged in his employment was injured when a stone that was
being lifted over his head fell and hit himhe did not assume that risk because he did not know that
he was about to be struck.But Bramwell dissented saying that the pay was worth the risk of get and
did not bargain for a compensation if he got hurt. (issue=whether he was allowed to assume risk by
contract) legal willingness to ban or limit assumption of risk defense in industrial accident cases is
eliminated under standard workers comp statutes.
4. Risk Premium
a. Possibility that higher wages compensate for risk employment. Workers in dangerous employments
receive a risk premium to cover their added risk before an loss occur ie hazard pay (more dangerous
workhigher hazard pay

For the doctrine to apply, the risk that P assumed must be the same as the risk that ended up causing the harm.

Murphy v. Steeplechase Amusement Co. (1929)

New York CT of appeals
Plaintiff: MurphyInjured on Flopper

Defendant: Steeplechase Amusement CoAmusement Park

Procedural Posture: 1) Trial Ct verdict for P 2) Ny Ct of Appeals Steeplechase appeals; reverses verdict and
grants a new trial.
Facts:

D had an amusement park at Coney Island and one of its ride was called the Flopper. It consisted of a moving
belt running up an inclined plane, which passengers would sit or stand.4ft high padded walls on both sides
and padded floors (belt is driven by a motor)
o Purpose of ride laugh at people falling over.
P and his wife (gf at time) and some friends decided to ride the Flopper after watching other people.
The belt jerks (start and stop motion) and P falls and fractures his knee cap.
Wife said that she took a chance as to whether or not she might fall

Ps Argument 1) the belt was dangerous to his life and limb 2) it was not properly equipped to prevent injuries to
the person using it 3) it was operated at a fast and dangerous rate and speed 4) there was no proper railing, guard or
other device to prevent fall the belt jerked and that is what through it off.

Testified at trial that he fell on wood not canvas padding (D had photographs and witnesses that rebutted this)

Ds Argument @ Trial said that they were not negligent; and such an accident like this never occurred
before.nurse in ER testified that there had been injuries from the Flopper but never involved broken bones or serious
injuries.
I/H: Did the P assume the risk of injury when he decided to go on the Flopper? Yes
Cant make up new facts on appeal.
Rationale:
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Ct does not find that the belt was out of orderas it was already in motion when P stepped on it.
evidence that the power was transmitted smoothly and could not be transmitted otherwise.
o The risk of falling was a foreseeable risk and was an invited hazard
Volenti non fit injuria no harm is done to the willing.
o When one engages in a sport, he accepts the dangers that inhere in it insofar as they are obvious and
necessary. INHERENT RISKS IN THE SPORT.
o Vistors were tumbling on the machine when he made the decision to participate in it.
o He took a chance that whatever damages might ensue
The whole design of the ride was for people to laugh at people falling
o This was observed by the P before he got on the ride.his injuries are no more than was could happen at
any time during a fall.
o His claim that belt had an abnormal spasm which caused the fall is insufficient.
Nurse at hospital testified that there had been injuries from the Flopper but never involved broken bones or
serious injuries.
o 250,000 visitors go on the Flopper a year
It would be a different case if the sport were obscure or unobserved, or so serious as to justify the belief
that the precautions of some kind must have been taken to avert them.
Reverse and grants a new trial. Not sure if there was any negligenceGet eye witness testimony. Indirect
evidenceRes Ipsa Loquitur ie sliding door case, escalator case, RE-ANALYZE FROM THE
PROSPECTIVE OF RES IPSA LOQUITUR.
Assumed risk of non-negligently caused fall then .then it doesnt make a difference. Does it matter if what
he experienced was similar to what he experienced. .If he we anticipating some sort of negligence or
jerkiness might change the probability of the hopper. .You might take different precautions.
A trap for the unwary-disguised or masked the risk;
Normally we think that people are rational and free to do with what they like.
By Definition unreasonable SUPER FLOPPER DIF..inherently dangerous killing everyone along the way
o Value inherent in the risk itself.
o

Case did not go to jury on Ds liability nor the defect that P suggested.

Notes
1. Historical Criticism: article argued that the Flopper was more dangerous than suggestedonly 16 inches
wide and moved at 7mph in contrast to standard escalator at 1.5 mph
2. Assumption of the risk and the duty to warn
a. Russou v. the range: P was injured while riding down the giant slide owned and operated by the D.
His amusement park ticket said on the back that person using this ticket assumes all risks of personal
injury. ..D had a warning at top of slide.but P was not expecting his body to fly as he rode it.it
was an abnormal occurrence as was a danger unknown to him and one that he did not assume.
Primary Assumption #1
Secondary Assumption #2
b. Desai v. Silver Dollar City Inc. had warning that said Caution do not exit raft until attendant
instructs youfailure to abide by these rules may result in injury to yourself or othersP disregarded
instructions and tried to help her 65 year old mother out and was injured could not recover
3.Problem**See Book
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4.
Spectatorsportsandtheassumptionofriskmanycasesdenyrecovertoinjuredspectatorsorathletesb/c
theysharecommonknowledgethatinjurycouldoccurandyetparticipateanyway.
a. Maisonave v. the Newark Bears, Gourmet Service P spectator was struck in the face by a foul ball
as he stood before a vending cart operated by D gourmet service (needed carts because construction
area was under construction) .it was positioned close to the field so that customers could continue to
watch the game. D entitled to jury trialwhether D breached dutyD had a duty to exercise
reasonable care to protect them during heightened times of vulnerability.had a duty of care to P
5. Assumption of risk in professional Sports
a. Maddox v. City of NY: P was an outfielder for NY Yankees whose professional career was ended when
he sustained severe damage to his knee when he slipped in the wet and muddy outfield while chasing a
fly ballhe knew about the general condition of the fieldand his continued participation in the
game in light of that awareness constituted assumption of risk. (look at skill and experience when
determining awareness)
6. Primary and Secondary Assumption of Risk
a. Meistrck v. Casino Area Attractions Inc. P fell while skating on the D ice rink. P showed that D
departed from the usual procedure in preparing the ice with the result that it became to hard and too
slippery for patron of average ability using skates; jury could infer that D neg was the PROXIMATE
CAUSE of the accident.but that the P carelessly contributed to his injury when with that knowledge
he remained on the ice and skated cross hand with another. Knowingly and willing assumed the risk
look like CN.the P in caring for his or her safety has taken unreasonable risk to walked back
under the hatchets. ..
7. Primary Assumption #1
8. Secondary Assumption #2
i. Primary Assumption of Risk D was not negligent ---either owed no duty or did not breach a duty that
was owed. (murphy did not breach duty owed)
i. (consent, exposure, injury) Primary Assumption of Risk - shorthand for saying theres no
prima facie case for P; D owed no duty or did not breach the duty owed
Doesnt owe P a duty to avoid harming him negligentlyAthlete cases...HACKBART CONSENT CASES
nature of consent to engage in athletics. Affected duties of care that the players owed to one another. Its not
recoverable if you get injured via negligence Contract like cases ie penut butter walmart; go back through cases
Agreed RECKLESS WANTON; WILFUL; INTENTIONALassume the inherent risks of the game.
And are thus non-recoverable by the P.they didnt owe you a duty to avoid harming you via negligence.
ii. Secondary Assumption of Risk Affirmative defense to establish a breach of dutyImplicilty agree
1. Look at whether a reasonably prudent man would have moved in the face of a known
risk.
2. exposure, consent, continued exposure, injury); an affirmative defense to
an established breach of duty, ultimate question being whether a
reasonable person would have done the same in the face of a known risk.
Secondary assumption of risk can be seen as phase of contributory
negligence. (Ex. Finding out dangers of ride once it began, but choosing
not to get out.)

PrimaryAssumptionDwasnotnegligenteitherowednodutyordidnotbreachadutythatowed

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SecondaryAssumptionDbreachedadutyowedandcreatedarisktothepandPacceptstherisk
(unreasonableacceptance);Dowesadutytokeephisdogin;Reasonableprudentwouldhavedoneinthe
situation.
Didknowoftheriskshouldhehaveknownofthatrisk.Iebaseballplayerorflopper.
Agreedtoassumeitvoluntarilyassumesit(freeandvoluntarilyorhewouldnotbepersonallyassenting
therisk.Ifpeoplearerationalandmakeschoicesthanwethinkthatisanappropriatethingtodounfair
toshiftthatburden.
9. Assumption of Risk and abandonment of Rights (secondary sensewhere D has negligently or unlawfully
created a dangerous condition that the P must endure in the exercise of her ordinary right.
a. Marshall v. Ranne Ds boar bit the P while the p was walking from his house to his car. P had
complained about boars viscous condition to the defendant.
i. He was an expert marksman an passed up the opportunity to shoot and kill the boar.
ii. First found contrib neg for failing to shoot boar and then he assumed risk of harm
iii. ReversedSL caseP had only the choice of two evils; which were wrongfully imposed on him by D.
This is not really a choice (ie pit bull) why is this decision different from . Has a legally right to be
legally right not to be imprisoned in his house.Seems to be something greater here then lamson.
Nature of duress that he has been put under. Risk of injury v. probability. P was unreasonable for not
shooting the boar.
b. Rose Ackerman victims should be paid for the level of preventative activity that would be efficient
plus the consequential damage that would have resulted if these precautions had been taken. Levels of
damages is independent of their behaviorsvictims would have an incentive to act efficiently
c. ADM Partnership v. Martin Marin injured when she fell on the walkway covered in snow on the D
premises while making a delivery. Ct held that P had known, appreciated, and voluntarily confronted
the risk in question...she could produce no evidence that he had ever been threatened with a loss of her
job. Economic Necessity Coercion ie see ice on sidewalk hurts and spill pizza.his assumption of
risk may bar the injury.
10. Firemans Rule: (covers police officers and other public officials): One who has knowingly and voluntarily
confronted a hazard cannot recover for it. police officers and the like cannot recover for injuries brought on by
negligent or even intentional conduct, because their profession makes them assume the risk
a. Krauth v. Geller firemans business to deal with the hazards of a firehe cannot engage of
negligence in the creation of the very occasion for his engagement.
b. Guiffida v. Citibank Corp. (rule eroded by statute) P firefighter received serious burns his oxygen
tank went empty while fighting a blaze in a donut shop because D failed to make proper building
inspections and is liable in damages for harms directly or indirectly caused by a fire on the premises.
Carwash example: have you assumed the risk. Sign: if it is clear enough and there is a sign and you assumed.
Good reasons for treated this assumption of risk as valid to protect and incentive people for doing a service for
the community. If car washes cant contract out the riskthey are going to have to charge more. IE: if you are willing
to pay 10 and take the risk think that is better and that there is a less chance that it would happenif injured that you
are willing to take the chance.
Bad reasons for the assumption of riskbecause car wash can give risk other peopledont have to give people the
highest riseif pass all risk on consumers than d never have risk. D competitors to the car wasshould be
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competition between these. Market should have some influence.dont want all of them to be colluding together.
Choice wash your own car.
Ie you cannot perform you own surgery on yourself. IF the services are so important to peoplebargaining power of
consumers vs the defendants.
Contracts of adhesion kinds of questions you should asking.
P contract away some right for the D to take care how should we judge the validity of the contract?
(ie kids signing waivers to legitimately sign away the risks to parties).
Similar to car valet Whether they knew or should have known that they voluntarily assumed the risk.
1. Athletic events. You assume the standard behaviors. Football players throw elbow in the game (not
reasonable in normal life) is ok, b/c PAR. Only when D behaves recklessly, wantonly can P recover.
2. e.g. Murphy, D didn't breach their duty
ii. 2nd Assumption of Risk - there is prima facie case, but no recovery for P; it's a version of CN,
D neg, P openly confront that risk unreasonably
1. Driving along a dangerous driven truck, you try to outspeed that truck. The truck has a duty to behave
reasonably. If the truck struck you, you assume the 2nd risk.
iii. Firemans rulepolice officers and the like cannot recover for injuries brought on by
negligent or even intentional conduct, because their profession makes them assume the risk.
3. Fellow Servant Rule employee cannot hold company liable for negligence of co-worker;
(stranger can hold company vicariously liable for wrong of employee); many employer liability acts
get rid of this rule, holding employers liable for negligence, but incorporating some common law
assumption of risk principles.
b. Spectators/Professional Athletes many cases deny recover to injured spectators or athletes b/c
they share common knowledge that injury could occur and yet participate anyway.

Affirmative Defenses

Contributory NegligenceP barred from recovery

Assumption of RiskP barred from recovery
WHY? Creates incentives for P to take carecant recover; Cts are unwillingly to help you when they have
dirty hands. Easier on the courtsits a simple yes or noDid you have anything to do = yes cant recover no;
you cant recover.if comparative you have to look at fractions and percentages.
BADunfair if P only had a little negligence and D was mostly negligent
Now more interested in harms are fairly distribution and FAIRNESS.
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Section E. Comparative Negligence

1. At Common Law

Lomabard Laws, King Luitprand ( A.D. 733)

Man has a well in his yard which has a prop and a lift for raising water
Another man came alongstood under the lift while another man was drawing water from well, the lift was
released and the weight came down on the man who stood under it and he was killed
o The man who was killed should have noticed where he was standings and that there was a weight
above his head.
o 2/3 of amount shall be assessed to dead man.and 1/3 shall be paid by the man that drew that water
o No blame placed on man who owns property (set bad policy as he wouldnt want people to use his
property if he could be responsible for their negligence)

Charles Beach, Contributory Negligence (1892)

Common law refused to apportion damages which arise from negligence

Inability to get exact justice when an injury results from the negligence of 2 or more people
o A perfect code would render each man responsible for the unmixed consequences of his own actions
o Common law sees the impossibility of assigning all effects to their respective causes and refuses to
interfere in those cases

William Prosser, Comparative Negligence (1953)

Proximate Cause Plaintiffs negligence is an intervening insulating cause between the D negligence and the
injury
o Ie: if two cars collide and injure a bystander the negligence of one driver is not held to be a
superseding cause which relives the other of liability

Li v. Yellow Cab Company of California (1975)

California Supreme Ct
Plaintiff: Lidriving car hit by D

Defendant: Yellow Cab coCab company hit P

Procedural Posture: 1) Trial Ct held that P was barred from recovery because she was contributorily negligent. 2)
SC Ct where the case is now; Li appeals; reverse decision
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Facts:

P had attempted to cross three lanes of traffic to enter into a service stationD was traveling at an excessive
speedwhen he ran a yellow and hit the P car.
o P made a left hand turn into an intersection when a cab of the D was approaching in the opposite
direction
o Cab entered the intersection at an unsafe speed after the stop light had turned yellowD hit Ps car and
the P was injured.
Accident resulted from the negligence of both parties.

Issue: Whether CA should adopt a comparative negligence system in place of contributory negligence? Yes
Rationale: At common law P would not have been able to recover. CompN looks at the amount of comparative
negligence and reduces proportionately. Fault. If liability is based on fault, the recovery should be based on fault as
well. We have throwing fault out the window with this arbitrarily CN system should change this.
1. Comparative Neg preferable to all or nothing system of CN from the point of view of logic, practical
experience, and fundamental justice.
a. All or nothing system of CN is unfair because it fails to distribute responsibility in proportion to
fault.
b. Extent of fault should govern the extent of liability.
c. Practical experienceevery trial lawyer is aware that juries often allow recovery in cases of CN
and awards damages even when it is because of P fault.this can detract from the public confidence
in the ability of law and legal institutions to assign liability on a just and consistent basis. Jury will
find the P the not contributory negligence and gives them non---jury is implicitly engaging in
comparative negligence implicitlySay no not contributory negligence and gives the P a lesser
damages.
d. 25 states have gotten rid of CN; FL did same thing that they are doing in Hoffman v. Jones.
2. Judicial Action is not precluded by the presence of section 1714 of the Civil Code Jury would find a lot of
people guilty of finding 49 poundsdid not want capital punishment for people of 50 pounds. We dont
want juries to engage in nullification of apply law what they should do. Because it offends their fundamental
sense of fairness and justice.
a. Urged that any change in the law of CN must be made by the legislature and not by the court
b. Doctrine of CN is of judicial origin but was codified by section 1714 of the Civil code
c. Ct concluded that it was not the intent of Leg when enacting the Civil Code to keep the matters
expressed from further judicial development.rather it was to formulate intention of the Leg to
announce and formulate existing common law principles. (allowed judicial evolution) Statute
defines the contributory negligence principlescodified the common law principles. SC cant
change it because they argue that not Judicial power to create the law.
d. Ct says were just outline the CL negligence of the time they werent actually codifying the law
rather just restating it. ALLOW IT TO change according to the necessities of the time.
e. # of states changed it through legislative enactment.
3. The difficulties that could arise from system should not dissuade the court from adopting it. (advanced
by D and amici curiae brief) Its hard to assign percentageshave to ask juries to do math. Worried about
quotient verdicts $100,000 damages /2 people. divide and were out of here. IE they are just going to
assign and divide by 3. Guidelines might help this problem by ---proportionate share of fault of each party.
QUESTION: Whose fault was more and by how much?? Special verdict: ask them a questionhow much a
share of the fault was the D faultvia specific question you can instruct the jury more effectively.
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a. Multiple Parties problems arising when all responsible parties are not brought before the court
it may be difficult for the jury to evaluate relative negligence in such circumstances. If only chose to
sue one rather than one of the other Dhow do you figure out the fault.How to decide what share
of the fault is the other two parties. Is that res judicata; Can you re think how negligent that they
were?
b. Administration of the actual process of fact findingthe assigning of a particular % factor to the
amount of negligence attributable to a particular party.could become a matter of perplexity in the
face of hard facts.
c. LCC and Assumption of Risk some states with it retain the LCC doctrine but the better position
seems to be that when true compar neg is adopted the need for it disappearsresults only in a
windfall to the P in direct contravention of the principle of liability in proportion to the fault.
LCC P neg, D neg, D did not take last clear chance rule, P could recover all of it. This is just
going to get folded in about comparative fault. Think of D neg compared to P negand if D failed
to take LCC just going to get added on the D share of liability.
i. Assumption of Risk ct recognizes that this defense overlaps that of contrib negligene to
some extent and is made up of at least 2 defense.
1. P unreasonably undertakes to encounter a specific known risk imposed by Ds
negligence.P conduct is a form of contrib neg
2. Situation where P is held to agree to relive the D of an obligation of reasonable
conduct toward him.
ii. Ct believes that adoption of assumption of risk in the general scheme of liability in
proportion to fault in those particular cases in which the form of assumption of risk
involved in no more than a variant of contributory negligence.
d. Treatment of willful misconduct CNis no defense to an action based upon a claim of willful
misconductand that rule is present in CA
i. Comparative negligence concepts should have no application when one of the parties have
been guilty of willful and reckless misconduct.
ii. Argued that there will be a loss of a deterrent effect?
e. Multiple parties and wilfull misconduct not addressed here.so dont have to discuss now
i. Trial court was granted a broad discretion in adopting such procedures that may accomplish
the objectives an purposes discussed.
4. It should applied in its pure form assessment of liability in proportion to fault proceeds inspire of the
fact that the P is equally or more at fault than the D
a. Pure Comparative Negligence apportions liability in direct proportion to fault in all cases.
(favored by most scholars and commentators)
b. Modified Comparative Negligence applies apportionment based on fault up to the point at which
the P negligence is equal to or greater than that of the defendant.when that point is reached the P
is barred from recovery. (moral argument= it is not morally right to permit one more at fault in an
accident to recover from someone less at fault)
i. Criticism Prosser person charged with 49 percent of the negligence can recover 51
percent of damageswhile someone charged with 50 % negligence recovers nothing at all.
ii. WI had system led to numerous appeals and reversals.
Think about all the thing the P has done wrong and all the things that the D had done wrongthen figure out
who has the bigger share of the pie.
CN breach of a duty that somebody owed to themselves (P).
1. Tradition Contributory Negligence 1/0 (all of nothing):
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2. Pure Liability = Fault % .L=Fault %
a. Amount of Fault that P is and Reduce from Recovery.
3. Impure if the P is more at fault than the Dthen no recovery. If P is less negligent than the D P recovers
according to principles of comparative fault.
a. Once you are over 50% more neg than defthan P recover nothing. If hes 51% negligent or more, P
does not recover anything. Less than 49 determine on comparative negligence system. <0-49>
b. 50-50 Depends on the Jurisdiction.
i. A) 49 % Rule P recovers comparatively if liability is not greater than or equal to D---tie
goes to D (if 50-50 than zero recovery) If P number is 49% or law than we go 50 +50 no
recovery.
ii. B) 50% Rule Tie goes to the plaintiff. < 50% Tie goes to P; if both 50 + 50 negligence=
goes to p (IL FOLLOWS)
Assumption of Risk

Sometimes it bars recovery and sometimes it limited.

Depends on whether it is primary assumption
Primary no duty is owed would barr any recovery (because there was never any duty owed and no duy
breached)
o Ie sports cases; owners and occupiers cases
o They assumed the risk of being harmed by negligent conduct.
Secondary duty owed and is breached. Reduces the amount that the P could collect in damages.
o After recog risk they still chose to do the activity; Ie lamsonowed duty for safe hatchet racks.
o Extent of unreasonable behavior in unknown risks.
o How much was D neg and how much was P contributing negligent in assuming it. Recovery reduced
by that share.

Strict Liability
Not even thinking about negligenceie wild boar you are strictly liable for the harms it has caused.
Look at the causation the cause of harm..
Who has a bigger share of the cause of the injuryis the owner of the wild boar or decision to go pet the wild
boar.

Intentional /Willful
Intentional Harm by the defendant
Courts treats these different
Ps contrib negl of willful might reduce by few %.
Majority different in kind in minority.
Go through all of the contributory cases we have read an attempt to analyzeFuller, Gyerman, Beems, Butterfield ,
Ring.
Depends on what jurisdiction.49 % argue that Gyerman was more than f49 P say that it was less than that.
Think about it as a lawyerto move these numbers back and forth.
5. New rule should be given a limited retrospective application
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a. Some unfairness in denying the benefits of comparative neg rule to other P who sought to raise the
issue on appeal while granting it to the P. but justified its result for creating a good incentive in
future cases for parties to raise issues involving renovation of unsound or outmode legal doctrines.
Notes
1. Historical Origins: GA, MI, WI adopted comparative negligence early.some states still dont have any
form AL, DC, MD, NC, VA
2. Comparative Negligence in Admiralty had rule of divide damagesequal division of property damage no
matter what degree of fault. Changed after US v. Transfer Co where P tanker crashed into rocks after
captain attempted a dangerous maneuver that failed in part because the Cost Guard had failed to maintain its
break water lights. switched to compar neg.rule of divided damages only applicable when parties are equally
at fault
3. Impure Comp Neg by Judicial Legislation
a. Bradley v. Appalachian Power Co. adopted comparative but chose not to follow the pure form
party should recover as long as his fault is not 100%. As long as his neg or fault does not equal or
exceed the combined negligence or fault of the other parties involved in the accident.
4. Economic Analysis: Amount of precautions vs. worth of loss.
5. Doctrinal Complications
a. Last Clear Chance: abolished as unnecessary by most courts b/c its purpose was to improve harsh
contributory negligence scheme.

i. Spahn v. Town South Carolina found LCC as unneccesary.

b. Assumption of Risk:

i. Knightv.JewettPplayedtouchfootball,warnedDagainstroughplay,thencontinued
playing;brokeherlittlefingerasaresultcourtsaysPassumedrisk;Treatedthecaseasone
ofprimaryassumptionDowedPonlyadutytoavoidrecklessmisbehavior.DissentD
mustprovethatpvoluntarilyacceptedriskwithknowandappreciationofthatrisk.
c.
StrictLiabilityandSuddenEmergencies
i.Bohanv.RitzoattackofdogcausesPtofalloffbike;statuteholdsDstrictlyliablefor
animalattacks,analysisofPscontributorynegligenceisunnecessary,Precoversfully.
d.
IntentionalTorts:

i. Morganv.Johns.Pappearedwithknife,draggedhertohercarandbeatherwiththe
interiorrearviewmirror.Dclaimedhewasintoxicatedandcourtsaidthatitwasnota
defense.
6. . Willful Misconduct most courts will allow full recovery by P, despite contributory negligence.
7. d Children a parents negligence cannot be used to reduce childs recovery.

i.Intentionalconductisdifferentindegreefromnegligenceorwantonandwillfulconduct.

a. Comparative Negligence (5, CN; 13, pure ComN; 12, 49%; 21, 50%)
i. Pure: Damages apportioned strictly based on jurys assessment of P and Ds fault percentages
(CA, NY, FL)
ii. Modified:
1. 49% rule, tie goes to D
2. 50% rule, tie goes to P (Illinois adopt this rule)
iii. Li v. Yellow Cab Co. of California: Both parties negligent, Cal. SC decides that:
1. Doctrine of comparative negligence preferable to all-or-nothing contributory negligence
from point of logic, practical experience, and justice; and
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2. Further, juries already do this, so we should make it official.
iv. Effects on other doctrines:
1.
2.
3.
4.
5.

LCC, some courts treat that as comparative neg

a. Not good, bc D had the LCC to avoid the accident completely, should be 100% liable
b. Should go away, b/c the reason for LCC was to ameliorate harshness of CN.
PAR stay as complete defense for both CN and Comp
SAR, under ComN, treat as partial neg, will decrease P's recovery
For strict liability (liability w/o fault)
a. If the P also neg, compare the cause of harm
Intentional tort
a. Different kind, not different degree, can't compare, so ComP not a defense
b. Other court thinks that still different degree, just assign intentional tort a high percentage
negligence.

Fault failure to live up to some standard of care.

2. a. Traditional (impure) comparative negligence P can only recover if he is < 50% at fault.
3. b. Pure comparative negligence P can recover even if he is 99% at fault.

1. Pure comparative negligence P recovers for percentage of damages

that does not result from own actions
2. Modified comparative negligence P recover for percentage of injuries
until they are as responsible or more responsible than Ds
b. Pure Comparative Negligence apportions liability in direct proportion to fault in all cases. (favored
by most scholars and commentators)
c. Modified Comparative Negligence applies apportionment based on fault up to the point at which the
P negligence is equal to or greater than that of the defendant.when that point is reached the P is barred
from recovery. (moral argument= it is not morally right to permit one more at fault in an accident to
recover from someone less at fault)
i. Criticism Prosser person charged with 49 percent of the negligence can recover 51 percent of
damageswhile someone charged with 50 % negligence recovers nothing at all.

2. Problems
I.

A who is 10 % negligent suffers $10,000 damages; B who is 90 % negligent suffers no damages

a. Purerecovers for % of damages that does not result from own actions; A: 90 % of $10,000B =
nothing because has no damages.
b. Modified A could recover because its under 90%; B could not recover

II.

A, who is 60 % negligent suffers $10,000 in damages; B who is 40 % negligent suffers no damages

a. Pure 40 percent of $10,0004K; B cant recover cant suffer any damages
b. Modified A cant recover. B wouldnt recover did not have damages.

III.

A, who is 30% negligent suffers $2,000 damages; B who is 70 % negligent suffers $8,000 damages
a. Pure 70% of $2,000 damages 1,400 ; B 30 % of 8k
b. Modified A 40% of 2k; B would not get anything.

IV.

A who is approx. 50 % neg suffers $2,000 damages; B who approx. 50 % negligent suffers 8,000 damages.
a. Pure A an B cancel out= barred.
b. Modified
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V.

A and B are equally negligent. A suffers $10,000 damages while B suffers no damages
a. Pure A and B cancel out= barred.
b. Modified

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