XVIII. Contributory and Comparative Fault | Shailin Thomas | October 22, 2013

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XVIII. Contributory and Comparative Fault

Original Creator: Jonathan Zittrain Current Version: Shailin Thomas Show/Hide

Contributory negligence folds in all the elements of a negligence case against the plaintiff, with the plaintiff as his or her own victim. Traditionally, any amount of negligence by the plaintiff extinguished the case against the defendant. The harshness of that rule led to some countervailing exceptions to flip the “all” of the defense back to “nothing” — exceptions like the last clear chance doctrine, by which the plaintiff’s negligence wouldn’t count against the case if the plaintiff’s poor behavior had made him helpless, and then the defendant, seeing that, acted negligently anyway.

Starting in the 60’s and 70’s, American tort law started to split the difference between all or nothing. The concept of comparative negligence was introduced, and juries might be asked to compare the defendant’s negligence against the plaintiff’s, deducting the plaintiff’s share from any recovery. How to make such comparisons is far from clear, especially in cases with multiple defendants, each playing very different roles.

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  1. 1 Show/Hide More Davies v. Mann -- "The Last Clear Chance and the Donkey"
    Original Creator: Jonathan Zittrain Current Version: Shailin Thomas
    Even if another actor was initially negligent, should a defendant who has the ‘last clear chance' to avoid an accident be made to pay if he or she fails to do so?
    Notes:
    The plaintiff illegally left his donkey fettered on a public highway. Defendant—who was driving his wagon at a “smartish” pace—ran over and killed the donkey. The accident may have been avoided if the defendant had been driving more slowly.
  2. 2 Show/Hide More Derheim v. N. Fiorito, Inc. -- "The Non-Seat-Belt Wearing Plaintiff"
    Original Creator: Jonathan Zittrain Current Version: Shailin Thomas
    Can a plaintiff's failure to buckle up undermine his claim for negligence, under the doctrines of contributory or comparative negligence?
    Notes:
    The plaintiff was involved in a car accident with the defendant, that may have been caused by the defendant's alleged failure to signal a turning maneuver. Plaintiff was not wearing his seat belt at the time of the accident. According to expert medical testimony, some of the plaintiff's injuries would have been prevented if he had worn his seat belt.
  3. 3 Show/Hide More Fritts v. McKinne -- "The Doctor who Cried Drunk Driver"
    Original Creator: Jonathan Zittrain Current Version: Shailin Thomas
    When physicians provide negligent medical treatment, should they be allowed to avoid liability by asserting that the plaintiff's injuries were originally caused by the plaintiff's own negligence?
    Notes:
    The plaintiff got into a car accident while out drinking with a friend. Due to the serious injuries he suffered as a result of the accident, the plaintiff had to undergo reconstructive surgery. The defendant surgeon accidentally cut plaintiff's innominate artery while performing a tracheostomy. Plaintiff suffered major blood loss, failed to gain consciousness, and died three days later. At trial, the defendant successfully argued a defense of comparative negligence, on the theory that the surgery was necessitated by the defendant's drunken negligence, which led to the car accident.
  4. 4 Show/Hide More Barker v. Kallash -- "The Pipe Bomb Case"
    Original Creator: Jonathan Zittrain Current Version: Shailin Thomas
    If the plaintiff’s injury arises out of unlawful conduct, should the courts bar the plaintiff from recovery?
    Notes:
    Plaintiff was injured while making pipe bombs with the defendants. The trial court granted a motion for summary judgment, holding that plaintiff’s participation in bomb-making was wrongful conduct that cannot support a claim for negligence. The appellate court affirmed.
  5. 5 Show/Hide More Veazey v. Elmwood Plantation Associates, Inc. -- "The Totally-At-Fault Apartment Complex Manager"
    Original Creator: Jonathan Zittrain Current Version: Shailin Thomas
    To what extent, if any, should a third party’s intervening, intentional tort mitigate the defendant’s liability for negligence?
    Notes:
    Plaintiff is raped while living in an apartment complex managed by the defendant. At trial, the plaintiff alleged that the defendant—despite being aware of other rapes and attempted rapes on the premises in the previous year—failed to provide adequate security, maintain the premises as to discourage potential intruders, and provide adequate lighting. After the granting a motion for <span class="caps">JNOV</span>, the court reallocated 100% of the fault to the defendant. The defendant appealed on several issues, one being the trial court’s refusal to instruct the jury on allocation of fault to the nonparty rapist.
  6. 6 Show/Hide More Washington Metro. Area Transit Authority v. Johnson -- "The Suicide in the Subway Station"
    Original Creator: Jonathan Zittrain Current Version: Shailin Thomas
    Should the last clear chance doctrine extend liability to situations where the injured party voluntarily committed suicide?
    Notes:
    The decedent jumped from a subway station platform into the path of an oncoming <span class="caps">WMATA</span> train. She jumped of her own volition and with the intent to commit suicide. At trial, the jury found that the <span class="caps">WMATA</span>&#8212;as the train operator&#8212;had the last clear to save decedent's life, and was therefore liable for her death.
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February 17, 2014

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