Defenses: Plaintiff’s Conduct
Contributory Negligence
Chapter VII
Contributory Negligence Options
1.
2.
3.
Defenses
Complete Defense.
Not a Defense.
General rule = either rule #1
or rule #2 - With Exceptions
(e.g., Last Clear Chance).
Partial Defense - Apportion Damages.
4.
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Some Possible Justifications for the
Contributory Negligence Doctrine
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Judicial Devices
to Ameliorate Harshness of C.N.
1.
Penal: Punish plaintiffs for misconduct.
1.
2.
“Clean hands” – Courts ought not aid those who
contributed to their own harm
2.
Burden of Proof on CN = on Defendant.
3.
Leaving Question for the Jury. See, Okla. Const.
Art. 23, §6. (The Defense is Jury Question).
4.
Proximate Cause – courts have confined the scope of PC by applying
it only to the risks that plaintiff has exposed himself by his
negligence. Example: P = negligence as to slipping on ice; not
negligent as to a wall collapsing)
3.
Encouraging Optimal Care by Both Parties? - Usually a
primary negl. rule = adequate to optimize care by both
parties but a cont. negl rule may be necessary to avoid
dilution of P’s incentive to take care + avoid an > in the
costs of administering the system.
4. Proximate Causation? – P’s negligence may be considered
as a superseding intervening cause
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“Erosion” - To avoid unjust results courts = reluctant to apply the
Contributory Negligence Rule
* HOWEVER - courts have resisted suggestions to recognizes a formal Dual
Standard for primary & cont. negl. See, Rest. 3rd Torts: Apportionment of
Liability §3, comment a (2000)
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Contributory Negligence – Not a Defense
“Ameliorative Doctrines”
z
z
Last Clear Chance.
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Rest. 3rd Torts: Apportionment
*
Contributory Negligence = not a Defense if
Defendant’s Conduct is:
z Intentional, Willful or Reckless.
z Violates Certain Types of Statutes: e.g.,
z Interpreted as Protecting Plaintiff who is
Unable to Protect Self OR
z Expressly Abolishes Common Law as a
Defense.
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Sec. 3. Ameliorative Doctrines for
Defining Plaintiffs Negligence
* Plaintiff’ negligence is defined by the
applicable standard for a defendant’s negligence
* Special ameliorative doctrines for defining
plaintiff’s negligence are abolished
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Contributory Negligence
Rest. 3rd Torts: Apportionment
Butterfield vs. Forrester (KB 1809)(CB 586)
Plaintiff
(Rode into pole
on Horse)
* Sec. 7 - Effect of Plaintiff’s Negligence When
Plaintiff Suffers an Indivisible Injury
*
Plaintiff’s negligence that is a legal cause of
an indivisible injury to plaintiff
* Reduces the plaintiff’s recovery in proportion
to the share of responsibility the fact finder
assigns to plaintiff
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Contributory Negligence
Butterfield vs. Forrester
Plaintiff
(Rode into pole
on Horse)
vs.
Defendant
(Pole in
Highway)
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z
Should the Doctrine Apply?
Type?
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Fact: Pl’s donkey was grazing on the side of a
road with its feet tied. Defendant drove his
horses & wagon at a “smartish pace” into the
donkey, killing it.
Held: Even if Pl’s donkey were not lawfully in the
road, it would make no difference because
defendant is still liable for the consequences of
his negligence if the accident might have been
avoided by his exercise of due care.
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• COMPARATIVE FAULT (e.g. TN)
“Pure”
vs.
Modified
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Held: (Ellenborough, C.J.) “Two things
must concur to support this action, an
obstruction in the road by the fault of
defendant, and no want of ordinary care
to avoid it on the part of the plaintiff.”
Comparative Negligence – Other Terms
Used by Courts & Legislatures
Comparative Negligence
z
Defendant
(Pole in
Highway)
“Last Clear Chance”
Davies vs. Mann (Exchequer 1842)
Suppose: Defendant Sued Plaintiff
for Damage to the Pole?
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vs.
• COMPARATIVE RESPONSIBILITY (Rest. 3rd )
• COMPARATIVE CAUSATION
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2
Li vs. Yellow Cab
532 P.2d 1226 (Cal. 1975)
Comparative Negligence Types
Plaintiff
Pure
(50/50) “not greater than. . .”
(Ok.)
Modified
(49/51) “not as great as . . . “
Other
(e.g.)
- Equal Division (old Admirality Rule).
- “Slight vs. Gross”.
vs.
Defendant
(left into
(speeding through
intersection)
yellow light)
Held: PURE COMPARATIVE NEGLIGENCE ADOPTED
The “fundamental purpose” of comparative negligence
is to assign responsibility & liability for damage in
direct proportion to the amount of negligence . . . “
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Multiple Tortfeasors?
Comparative Negligence
PLAINTIFF’S TOTAL DAMAGE = $1000
PL
vs.
Modified
Modified
(50/50%)
(49/51%)
Def
Pure
49%
51%
$510
50%
50%
$500
$500
0
51%
49%
$490
0
0
80%
20%
$200
0
0
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$510
PLAINTIFF
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Multiple Tortfeasors?
(10%)
vs. DEF. #1 (40%) ($900)
(20%)
DEFENDANT # 2
(50%)
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PLAINTIFF (10%) ($100) vs.
16
DEF. #1 (40%) ($400)
DEF. #2 (50%) ($500)
Under a J & S liability rule: Pl = entitled to a judgment against
each def. for $900 (Pl is responsible for $100) (10%)
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DEFENDANT #1
PLAINTIFF’S TOTAL DAMAGE = $1000 – Several Liability Rule
DEF. # 2 (50%) ($900)
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vs.
Multiple Tortfeasors?
PLAINTIFF’S TOTAL DAMAGE = $1000 – J &S Rule
PLAINTIFF
(30%)
$510
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Under a “several liability” rule: Pl = entitled to a judgment
against each def. for an amount proportionate to its negligence
(Pl is responsible for $100 (10%)(its proportionate share of
negligence).
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3
Damages Apportionment Among
Tortfeasors
Multiple Tortfeasors?
I.
PLAINTIFF
(30%)
vs.
Indemnity
vs.
DEFENDANT #1
(20%)
DEFENDANT # 2
(50%)
II.
Contribution: Types:
A.
Equal Shares (“Pro Rata”) - Apportion
Without Determining Percentage of Fault.
B.
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Comparative Contribution - Apportion
According to Relative Percentage of Fault.
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Judicial Adoption: Modified Comp. Fault
McIntyre vs. Balentine (TN 1992)
Judicial Adoption: Modified Comp. Fault
McIntyre vs. Balentine (TN 1992)
Facts: Two car accident. Pl entered highway from a
Issue: Ought comparative negligence be adopted?
parking lot. Shortly thereafter Pl’s vehicle was
Held: Modified Comparative Fault (49%) = Adopted
struck by D’s tractor trailer. Both had been
(applies to all cases tried, retried or on appeal +
drinking alcohol (P = 1.7%; 1% = legal). D was
jury = told consequences of findings on %)
also speeding.
Rationale: Contributory Negligence =
* Jury verdict = P & D were equally negligent,
under TN’s unique “remote negl.” rule. Therefore
judgment = for defendant.
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OUTMODED + UNJUST
* Legisl. inaction ought not prevent judicial justice
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Judicial Adoption: Modified Comp. Fault
McIntyre vs. Balentine (TN 1992)
Judicial Adoption: Modified Comp. Fault
McIntyre vs. Balentine (TN 1992)
Rationale (cont.)
Rationale (cont.) - Other Issues? Guidance - the ct.
* Type? - Modified versions are better than the
“Pure” version because Pl’s with a high % of negl.
(e.g. 95%) ought not recover anything, despite
arguments that a “modified rule” simply alters the
give “guidance” to lower courts on several issues:
• The ameliorative doctrines of “last clear chance”
and TN’s “remote negligence = abolished.
• Multiple Tortfeasors Comparison? – adopts the
point of arbitrariness.
[“unit rule”] pl. recovers if = less negligent than
* The 49% version of modified CF is preferable to
the negligence of all defendants combined.
the 50% version.
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4
Judicial Adoption: Modified Comp. Fault
McIntyre vs. Balentine (TN 1992)
Judicial Adoption: Modified Comp. Fault
McIntyre vs. Balentine (TN 1992)
Rationale (cont.) -
Rationale (cont.) -
* the rule of joint and several liability rule is
* Fairness and efficiency require that D’s, as a
abolished because adopting comparative negligence
matter of affirmative def., may argue that the
links liability to fault whereas J&S may fortuitously
negligence of non-parties caused or contributed to
impose liability all out of proportion to fault
plaintiff’s damages. The negligence of such non-
* the contribution statute will no longer determine
parties shall be considered in assigning
the apportionment of liability among co-defendants
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Comparative Negligence - Issues
(Multiple Tortfeasors)
Unit Rule?
2.
Abolish Joint & Several Liability?
3.
Several Liability Apply Where Plaintiff is not Negligent (0%)?
4.
Negligence of Absent Tortfeasors Count in Determining
5.
Retain Certain Common Law Doctrines After
Percentages of Negligence?
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See:
• McNichols, The Complexities of
Oklahoma’s Proportionate Several Liability
Doctrine of Comparative Negligence – Is
Products Liability Next?, 35 Okla. L. Rev.
Responsibility Ever Apply to Intentional
Torts?, 37 Okla. L. Rev. 641 (1984)
Should Comparative Negligence Type Apportionment
Rules Ever Apply to Intentional Tort?
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Laubach vs. Morgan (Ok.)
ISSUES:
vs.
DEFENDANT #1
(20%)
DEFENDANT #2
(50%)
Unit Rule vs. Individual Comparison?
HELD: * Unit Rule Applies
* Several Liability for Apportioned Damages
Applies (Several Liability Rule)
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Oklahoma Laubach Rule
Abolish Joint and Several Liability?
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• McNichols, Should Comparative
Assumption of Risk; Willful, Reckless Conduct.
PLAINTIFF (30%)
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193 (1982)
Comparative Negligence? E.g., Last Clear Chance;
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plaintiff must amend & join them as parties.
Comparative Negligence - Oklahoma
1.
6.
percentages. To recover damages against them
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Proportionate Several Liability for
Apportioned Damages
(Several Liability)
vs.
Joint & Several Liability for Entire Damages
(Joint & Several Liability)
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5
Boyles vs. O.N.G. (OK 1980)
Boyles vs. O.N.G. (OK 1980)
Facts:
Plaintiff (a passer-by) was injured
when escaping gas from a pipe in a
building exploded. Pl. sued several
defendants, including the owner of the
building and the plumber, whose
employee negligently caused the
explosion.
Pl was found t be 0% negligent.
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• Issue: Does the Laubach rule, which adopts a several
liability rule in multiple tortfeasor comparative
negligence situations, apply when the plaintiff is not
guilty of contributory negligence?
• Held: No. Joint & several liability applies . Nothing in
Laubach implies that it applies to blameless victims. The
risk of insolvency [and unavailability] is properly on the
wrongdoers where Pl is without fault. Such plaintiff will
still get the benefit of the common law joint and several
liability rule.
[Note: The OK contribution statute will still be needed
where Pl = 0% negligent. Despite its language (“pro
rata”), the OK Supreme Court has interpreted it to apply
comparative
contribution.]
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Ch. VII Joint Tortfeasors
Coney vs. J.L.G. Industries (IL ’83)
Ch. VII Joint Tortfeasors
* Joint & Several Liability - CB notes pp. 364-371
Retain or Eliminate/Limit J&S Liability?
* Coney
•
- Held: retain J&S liability under
comparative negligence
Bartlett - Held: eliminate J&S liability under
comparative negligence.
Apply several liability
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Reasons to Retain Joint & Several Liability?
Coney vs. J.L.G. Industries (IL 1983)
1. Indivisibility = not rendered “divisible” by
feasibility of apportionment.
2. Insolvency Risk= properly on tortfeasors
where plaintiff is not negligent.
3. Plaintiff’s culpability = not equivalent to
defendant’s.
* i.e. Risks to Self vs. Risks to Others.
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Concurrent Joint Tortfeasors/Retain J&S?
•
Issue: Retain joint & several liability after
adoption of comparative negligence?
Held: Yes
Rationale: Comparative negligence requires only that
a Pl. bear the portion of damages attributable to his
negligence. Placing the burden of insolvency, etc. on
Pl. is not the quid pro quo for allowing Pl. some
recovery. The defendant wrongdoers should be left
to work out apportionment among themselves
•
•
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Reasons to Retain Joint & Several Liability?
Bartlett vs. N.M. Welding (N.M. 1982)
Facts: A car in front of P’s car signaled for a right hand
turn, pulled into a service station & then quickly back
out. Pl slammed on brakes to avoid hitting this lead
car. Defendant’s truck was behind Pl and skidded into
Pl. The lead car kept going and was unidentified.
Jury found: the following % of negligence
* Pl
= 0% contributory negl.
* Def.
= 30% negligent
* Unknown driver = 70% negligent
4. Adverse Effect on Policy of Adequate
Compensation of Accident Victims
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•
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Reasons to Retain Joint & Several Liability?
Bartlett vs. N.M. Welding (N.M. 1982)
Reasons to Retain Joint & Several Liability?
Bartlett vs. N.M. Welding (N.M. 1982)
Issue: “In a comparative negligence case, [is] a concurrent
tortfeasor liable for the entire damage caused by concurrent
tortfeasors?
#1. Plaintiff’s Injury = Indivisible - but
* “Indivisibility” = An Outmoded Concept
Based on Common Law Technicalities.
Held: No. Defendant is liable for 30% of P’s damages. (The jury
found that his proportionate share of the negligence & of the
causation was 30%. That ought to be the extent of his liability)
Rationale: Even though the majority of states (& the Rest. II &
Uniform Comparative Fault Act) retain J&S liability under
comparative negligence, the court suggests that this position
rests on two grounds, neither of which is defensible.
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Bartlett vs. N.M. Welding (N.M. 1982)
Notes After the Case (CB 368-371)
* (1) Contributory negligence = now Comparative;
* (2) No Contribution rule = now Contribution
* Nt. 2 - “Comparative Negligence?” - Meaning?
(1) Compare & Apportion where Pl = negl.
(2) Compare & apportion negligence of
tortfeasors even when Pl = 0% negligent
(N.M. – Bartlett case)
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z
#2. Pls. Should Not Bear Risk of D’s Insolvency.
* But, the Insolvency Risk Is on
Plaintiff in a Single Tortfeasor Case;
Why Shift the Risk when there are
Multiple Defendants?
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Bartlett vs. N.M. Welding (N.M. 1982)
Notes After the Case (CB 368-371)
* Nt 1. Indivisibility” - doctrine was based on
two common law doctrines which have changed
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z
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• Nt. 3 J & S Liability vs. Several Liability
* Where some tortfeasors are insolvent or unavailable,
WHICH IS THE MOST FAIR METHOD?
• Nt. 5 Whose Negligence Counts? - Non-parties?
• Nt. 7 Whose Negligence Counts? - Immune Persons?
• Nt. 8 Whose Negligence Counts? - Intentional Torts?
• Nt. 9 J & S Liability – Abolish of Modify?
* By statute (“Tort Reform”)
* By judicial decision
[Rest. 3rd of Torts: Apportionment – takes no position]
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Bode vs. Clark Equipment
719 P.2d 824 (Okla. 1986)
Plaintiff (EE)
(9%)
vs.
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Defendant (U.S.)
(1%)
Types:
1. Express
2. IMPLIED
A. Prior Relationship
B. No Prior Relationship (Risk Already Created )
Plaintiff Recovers Against U.S. 1%
Share of Immune TF (90% Employer)
= Counted in Determining % of
Negligence.
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Assumption of Risk
ATF - (Plaintiff’s Employer)
=
(90%)
(Immune Because Workers Compensation
= the Exclusive Remedy).
Held:
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* Encountered by Plaintiff
Knows + Voluntary + Consent
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7
Express Assumption of Risk
Seigneur vs. NFI (Ct. Sp. App. Md. 2000)
•
Pl. was injured in during her initial evaluation on weight
machines after she joined defendant’s fitness club.
• Issue: Was the exculpatory clause in her contract, which
expressly released and discharged defendant from claims
and “acts of active or passive negligence” enforceable?
• Held: Yes. MD recognizes exculpatory clauses if they are
unambiguous and not against public policy. This contract
was unambiguous and membership in a fitness club is
not a transaction affected with the “public interest.”
(where the totality of circumstances and current social
expectations suggest that enforcing such a clause would
be “patently offensive to the common sense of the entire
community.”)
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Overlap of Assumption of Risk &
Contingent Negligence
Implied Assumption of Risk
Rest. II §496(c)
1.
2.
3.
Knows - actual knowledge of particular risk
& appreciates magnitude.
+
Voluntary - chooses to encounter the risk
+
Implicit Consent - circumstances manifest
willingness to accept the particular risk.
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Blackburn vs. Dorta (Fla. 1977)
Types of Implied “Assumption of Risk”
Contributory
Negligence
knows or should
have known
+
unreasonable
Assumption of Risk
Knows
+
consent
+
unreasonable
1. PRIMARY – [not an affirmative defense] = there was
no negligence either because defendant “owed no
duty” or “did not breach the duty owed.”
2. SECONDARY – [= an affirmative defense based on
plaintiff’s conduct]
A. UNREASONABLE (Qualified): P’s conduct =
unreasonable assumption of risk
B. REASONABLE (Pure or Strict): P’s conduct =
reasonable assumption of risk
knows
+
consent
+
voluntary
Both
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Overlap of Assumption of Risk &
Contingent Negligence
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Blackburn vs. Dorta (Fla. 1977)
The Blackburn court’s example:
Contributory
Negligence
knows or should
have known
+
unreasonable
Assumption of Risk
Knows
+
consent
+
unreasonable
* Plaintiff runs into burning building
knows
+
consent
+
voluntary
* to rescue his hat = unreasonable AR
* to rescue his child = reasonable AR
Both
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8
Blackburn vs. Dorta (Fla. 1977)
Held:
“Secondary implied” unreasonable
assumption of risk is an affirmative defense
which, after comparative negligence, is merged
into contributory negligence.
Therefore, under Florida’s pure comparative
negligence doctrine: (1) reasonable
assumption of risk is not a defense; (2)
unreasonable assumption of risk is subject to
comparison and apportionment.
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9