Common Law Contributory Negligence
• Traditional approach – if P’s negligence causes (in fact and proximately) injury, then recovery is barred regardless of D’s negligence
o Defendants are also jointly and severally liable
o E.g. $1mil in damages, A .9 at fault, B .1 at fault; if A insolvent, B pays full $1mil
• Rationale: don’t want to undermine P’s incentive to take due care by compensating when P is negligent
• Viewed as very harsh to P moved to system of comparative negligence in 45 states
Two Types of Comparative Negligence
Pure Comparative Negligence (UCFA)
Modified Comparative Negligence (Iowa)
Iowa Comp. Neg. Statute
- Contributory fault does not bar recovery, unless P 50% at fault
- If P less than 50% at fault, normal comparative fault applies (amount of damages reduced by the percentage of which P is at fault)
- Joint and several liability does not apply to defendants who bear less than 50% of the total fault assigned to all parties
- Defendant more than 50% at fault only j/s liable for economic damages, not non-economic damages (e.g. pain, suffering, emotional distress, etc.)
Uniform Comparative Fault Act
- Contributory fault does not bar recovery, only proportionally diminishes the amount of damages by percent P is at fault
- Jury decides total amount of damages P could recover (irrespective of P’s fault) and percentage P and all Ds are at fault
- Judgment against each liable party entered on the basis of j/s liability at the percentage for which they were determined liable (excluding any reductions under Section 6)
- If damages are uncollectable for any reason from a party, that amount will be redistributed among other parties (including P if P at fault too) according to the percentage they are at fault
- Counterclaims are also reallocated proportionally
- Section 6: If P signed release, covenant not to sue, etc., with a D, then that D is discharged of all liability for contribution. The proportional amount for which D was liable is subtracted from the total amount owed to P (other Ds not j/s liable for it)
Fritts v. McKinne
• F: P injured in car accident when driving drunk without seatbelt; in hospital for several days; 5th day in hospital has surgery; sustains injuries due to D’s medical malpractice; D wants P’s drunk driving to be contributing factor (comparative negligence calc)
• H: can’t introduce the drunk driving evidence; however the plaintiff injures themselves, negligently or not, they are owed duty of due care once they arrive at hospital
o Can only take previous history into account for purposes of, e.g., future damages calculations (e.g. alcoholic has shorter life expectancy)
o Can use comparative negligence in the med malpractice case when patient actively withholds information from doctor (e.g. allergy, drug use, etc.)
• Not wearing seatbelt can go to damages calculation in car accident (avoidable consequences), but not to duty, negligence, or causation
Types of Defenses for Negligence
- Contributory Negligence
- Comparative Fault
- Assumption of Risk
Types of Defenses for Duty
-Open and obvious dangers (Rowland)
-Public Policy Arguments
1. Successful
o Strauss
o Moch
o Reynolds
o Riss
o Lauer
o Johnson v. Jamaica
2. Unsuccessful
o Randi
o Tarasoff
-No exception to no affirmative duty standard
Express Assumption of Risk
Hanks v. Powder Ridge Restaurant Corp. – Contractual Exculpatory Agreement
• F: P signs waiver before snowtubing that exculpates D from all damages including those caused by negligence; P gets injured and brings suit
• H: exculpatory agreement will not be enforced as a matter of public policy
• In states where it is enforced – K must have explicit language RE: negligence
o Hyson – didn’t have negligence in the agreement, so not enforced
• Looks to Tunkl factors to determine if exculpatory agreement is unenforceable as matter of public policy.
• Court looks to these factor as guiding principles, not be all end all
• Wide variety of how other states deal with this – some never enforce exculpatory agreements
• CT court takes “totality of circumstances” test which broadens Tunkl as necessary
o Argues that D was open to public (#3), was giving adhesion contract (#5), and that P was under control of D (#6)
• Dissent takes issue – says that snowtubing generally not regulated and certainly not service of great importance; in re bargaining strength, P did not have to go snowtubing
o Should only really consider “indispensable” activities (e.g. public transit, banking, hospitals, etc.)
o Says that Factors 1,2,4,6 in favor of D
Tunkl Factors
Hanks: Express Assumption of Risk Case
Factors
1. Business type generally regulated 2. Party seeking exculpation is engaged in service of great importance to public 3. Party willing to perform service for any member of the public who seeks it 4. Economic setting of the transaction, party invoking exculpation has decisive advantage in bargaining strength against any member of public 5. Party employs a standard adhesion contract of exculpation; person cannot pay add’l fee to obtain protection against negligence 6. Person is under control of the seller, subject to the risk of carelessness by seller/his agents
Primary Implied Assumption of Risk
P impliedly assumes risks that are inherent in the particular activity –> Murphy v. Steeplechase
Murphy v. Steeplechase Amusement Park
• F: P injured on “The Flopper” at Coney Island – essentially inclined treadmill – says that it stopped and started violently
• H: P cannot recover b/c he assumed the risk; had watched before getting on the machine; no other similar injuries of that magnitude in the past open and obvious danger of getting on the ride
o Nothing about ride was out of order, all risks were observable
o Liability would exist here if some danger were obscure/unobserved
• Primary assumption really looks to duty – no negligence in the first place here (can’t say that D did anything wrong)
Secondary Implied Assumption of Risk
P knowingly encounters a risk created by D’s negligence, not an inherently risky activity –> Davenport v. Cotton Hope Plantation Property Regime
Davenport v. Cotton Hope Plantation Property Regime
• F: P lives on 3d floor, lights in one (of 3) staircases are out, alerts D, doesn’t fix it, P keeps using stairs, trips and falls when dark
• H: Court says that secondary implied assumption of risk can factor into comparative fault scheme – jury can decide if P is more at fault than D for the harm P suffered
• Express assumption of risk and primary implied assumption of risk continue as defenses outside the comparative fault scheme
• RI is an exception – keeps assumption of risk in the face of comparative fault; says they are two different things
o Assumption of risk knowingly do something; comparative fault negligently do something
• Rule: P is not barred from recovery by assumption of risk defense unless the degree of fault arising from the assumption is great than D’s negligence
Davenport Factors for Secondary Implied Assumption of Risk Defense
- P must have knowledge of facts constituting dangerous condition
- P must know condition is dangerous
- P must appreciate nature and extent of danger
- P must voluntarily expose himself to danger
