Contributory Negligence

CONTRIBUTORY NEGLIGENCE  Contributory negligence – a π who does not exercise ordinary care and whose negligence contributes proximately to his injuries, is totally barred from recovery o It’s a complete defense 1. Understanding 2. Voluntariness   When a π fails to use ordinary care in avoiding an obstruction caused by ∆, the π may not recover damages from ∆ (Butterfield v. Forrester) o One must use common and ordinary caution and care for himself, otherwise he will be partly at fault and will not recover The π’s contributory negligence of will not defeat his negligence claim if the ∆, by the exercise of reasonable care, could have avoided the consequence of π’s negligence (Davies v. Mann) o Since π lost the opportunity to prevent the accident by the time it occurred and ∆ could’ve avoided the accident at any time, ∆ was liable o Even though the animal may have been improperly there, ∆ could have avoided injuring the animal through proper care o Rule now known as the last chance doctrine R2 §479: Last Chance: Helpless Plaintiff A π who has negligently subjected himself to a risk of harm from the ∆’s subsequent negligence may recover for harm caused thereby, if immediately preceding the harm (a) π is unable to avoid it by the exercise of reasonable vigilance and care, AND (b) ∆ is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm, when he (i) Knows of π’s situation and realizes or has reason to realize the peril involved in it OR (ii) Would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is then his duty to π to exercise. Chance: Inattentive Plaintiff A π who, by the exercise of reasonable vigilance, could discover the danger created by ∆’s negligence in time to avoid the harm to him, can recover if, but only if, the ∆ (a) Knows of π’s situation and (b) Realizes or has reason to realize that π is inattentive and therefore unlikely to discover his peril in time to avoid the harm, and (c) Thereafter is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm 38  Last clear chance doctrine – if just before the accident, ∆ has an opportunity to prevent the harm and π doesn’t have such an opportunity, the existence of this opportunity wipes out the effect of the π’s contributory negligence Assumption of Risk  The affirmative defense of assumption of risk is directly linked to contributory negligence stated as whether a reasonably prudent man in the exercise of due care would have incurred a known risk, and whether he would have conducted himself in the manner in which π acted after appreciating such risk (Meistrich v. Casino Area Attractions, Inc.) o Primary assumption of risk – ∆ wasn’t negligent (owed no duty or did not breach the duty owed) o Secondary assumption of risk - whether a prudent person in the exercise of due care would have incurred the known risk and is so, would that person have conducted himself in a manner in which PP acted  integrated as part of contributory negligence  In New Jersey, a valid health club contract of adhesion with a waiver and release of liability for injuries will be enforced so long as the club’s actions do not rise to the heightened standard of recklessness or intent to harm (Stelluti v. Casapenn Enterprises, LLC.) o Gym is vicariously liable o Gym can be independently liable for: (1) maintaining machines, (2) hiring incompetent instructors), or (3) property liability (π was a business invitee) o Can’t waive statutory requirements but also can’t waive reckless or intentional harm Comparative Negligence   Pure comparative negligence – If the jury finds the ∆ at fault at any percentage, then ∆ has to pay that money o $10,000 loss, jury finds π 90% ∆ 10%  ∆ has to pay $1,000 Modified comparative negligence – $10,000 loss, jury finds π 90% ∆ 10%, ∆ pays 0 o If over 50% π liability then no award from ∆  mostly π’s fault o Adopted almost in all states o Tricky cases are the ones that are at 50%, results vary by states 39  Government immunity – government can’t be sued unless it gives its permission o No recovery if no permission o All states have statutes which define circumstances o FTCA is the federal tort rule, bars recovery for intentional torts but generally allows negligence π’s fault = x 0% 1-49% 50% 51-100% Comparative Negligence Contributory Negligence 1. Pure 4. Contributory negligence (Butterfield v. Forrester) 2. π’s fault NOT “greater than” ∆’s 3. π’s fault is “less than” ∆’s π recovers 100% π recovers 100% π recovers 100% - x NO RECOVERY π recovers 100% - x NO RECOVERY π recovers 100% - x NO RECOVERY  Last clear chance doctrine an exception to π’s recovery in contributory negligence   R2 – Restatement (Second) R3 – Restatement (Third) Definitions are in orange Elements of the torts (black letter law) are in red Case names are in blue 40