XVIII. Contributory and Comparative Fault | Scott Soloway | March 09, 2018

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XVIII. Contributory and Comparative Fault

Original Creator: Jonathan Zittrain Current Version: Scott Soloway 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: Scott Soloway
    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?
  2. 2 Show/Hide More Derheim v. N. Fiorito, Inc. -- "The Non-Seat-Belt Wearing Plaintiff"
    Original Creator: Jonathan Zittrain Current Version: Scott Soloway
    Can a plaintiff's failure to buckle up undermine his claim for negligence, under the doctrines of contributory or comparative negligence?
  3. 3 Show/Hide More Fritts v. McKinne -- "The Doctor who Cried Drunk Driver"
    Original Creator: Jonathan Zittrain Current Version: Scott Soloway
    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?
  4. 4 Show/Hide More Barker v. Kallash -- "The Pipe Bomb Case"
    Original Creator: Jonathan Zittrain Current Version: Scott Soloway
    If the plaintiff’s injury arises out of unlawful conduct, should the courts bar the plaintiff from recovery?
  5. 5 Show/Hide More Veazey v. Elmwood Plantation Associates, Inc. -- "The Totally-At-Fault Apartment Complex Manager"
    Original Creator: Jonathan Zittrain Current Version: Scott Soloway
    To what extent, if any, should a third party’s intervening, intentional tort mitigate the defendant’s liability for negligence?
  6. 6 Show/Hide More Washington Metro. Area Transit Authority v. Johnson -- "The Suicide in the Subway Station"
    Original Creator: Jonathan Zittrain Current Version: Scott Soloway
    Should the last clear chance doctrine extend liability to situations where the injured party voluntarily committed suicide?
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March 09, 2018

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Scott Soloway

business lawyer practicing law

Boston

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