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Negligence Defenses

Negligence Defenses

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Published by Ghost1L

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Published by: Ghost1L on Oct 28, 2009
Copyright:Attribution Non-commercial


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The plaintiff was injured at a crossroad between the street and the defendant’s railroadtrack. Plaintiff was an experienced truck driver who drove truck across RR tracks, he had drivenacross the railroad nine times before, he also lived less than a mile to the train, and he was wellfamiliar with the track hit by train. Train had an advance warning signs painted in yellow but noother warning devices, or traffic control in place. Plaintiff was known to turn his A/C, radio, andCB radio on when driving. On this particular day the plaintiff didn’t hear the train.The plaintiff filed a negligence action, the jury returned verdict for the plaintiff for $4million but sustaining a post trial motion, the trial court set the verdict aside and awarded judgment for the defendant. Plaintiff appealed
Whether the plaintiff was liable for contributory negligence when he drove through thetrack without exercising the precaution he should have which ultimately was the proximate causeof his injury.
For the purpose of determining proximate cause of injury, when a person actednegligently as to cause a reasonable person to differ as a matter of law that their contributorynegligence was the proximate cause of the injury, the actor is barred from recovery
Here, the defendant’s track was not reasonably safe but the plaintiff is anexperienced truck driver, had lived near the track for ten years, driven over the track severaltimes that day and the day before, was aware about the lack of visibility in regards to the angle of the track to the road, also from his truck and therefore needs to utilize his senses to cross thetrack b/c he had failed to listen due to his closed window, radio and A/C blasting he had failed toexercise reasonable care needed to cross the road. Had he look and listen, he would have noticedthe train and would have easily avoided the train.
Therefore, the plaintiff failure to look and listen was contributory negligenceas a matter of law, which barred him from recovery any damages. 
The plaintiff was coming out of a truck stop traveling south when he was struck by thedefendant’s tractor also traveling south. Both men had consumed alcohol prior to the accident.Plaintiff’s blood alcohol level was measured at .17 percent by weight and also evidencedsuggests the defendant had been travelling in excess of the posted speed limit.Plaintiff filed a negligence suit and defendant answered the plaintiff was contributorallynegligence also because he drove his vehicle while intoxicated. The jury found the plaintiff anddefendant both equally at fault in the accident; and rule in favor of the defendant. Plaintiff appealed claiming the court held by refusing to give the comparative negligence instruction.
Whether contributory negligence that bars recovery for plaintiff under Tennessee lawshould be put aside and adopt the comparative negligence system that allows partial recovery for  plaintiff.
For the purpose of determining negligence in regards to fault, the court adopted themodified comparative negligence that allows plaintiffs to recover in pure jurisdiction, but only if the plaintiff’s negligence either (1) does not exceed (50 percent jurisdiction) or (2) is less than(49 percent jurisdiction) the defendant’s negligence. And in such case, plaintiff’s damages are to be reduced in proportion to the total negligence attributable to the plaintiff.
: Here, the plaintiff’s conduct was contributory negligence b/c he drove whileintoxicated and under Tenn. Law is barred from any recovery. Under the new modifiedcomparative rule, the plaintiff will not bar him from recovery as long as the jury does not foundhis negligent to exceed that of the defendant.
Therefore, since the jury found the plaintiff and the defendant both equallynegligent but without the proper instruction to guide them made a gratuitous apportionment of fault, which is not sufficient to form the basis of final determination between both parties.
The plaintiff’s decedent was electrocuted when the metallically reinforced safety ropehe was using came in contact with the defendant’s uninsulated 8,000 volt electric power distribution line.The trial court found in favor of the plaintiff and awarded them $1, 034,054.50 indamages claiming the defendant was negligence for failure to insulate its high voltage power lines or give adequate warnings regarding its dangerous nature. The Court of Appeals alsoaffirmed the defendant’s negligence but reversed in part, reducing the plaintiff’s recovery by70% based on its finding that the decedent was at fault to a certain degree.
Whether the degree or percentage of negligence attributable to the decedent followingthe comparative system is adequately calculated compared to that of the defendant who fails toinsulate its power distribution line or give adequate warning about its dangerous nature.
Using the learned hand formula, If the burden of prevention or avoidance is less than themagnitude of the risk occurrence multiplied by the probability of the loss. A person about tocaused injury inadvertently must expend much more effort to avoid a danger than need one whois at least aware of the danger involved.
Here, the burden of prevention or avoidance is less for the defendant than thedecedent b/c the defendant was clearly in a superior position to take effective precautions. Themagnitude of risk in this case is the loss of life by the defendant. While there is a greater responsibility on the defendant to exercise reasonably precaution, the probability of the risk occurrence is slim b/c its not everyday people climb trees and the fact that the plaintiff a treetrimmer climbed the tree with a metallically safety rope next to a power line is unusual. The plaintiff was partially negligence and should be found faulty as to absorb some portion of thedamages.
Therefore, the defendant negligent is not so great as to absorb all the cost andaccordingly we attribute 60 percent of the negligence to the defendant and 40 percent to thedecedent. The plaintiff recovery will be reduced by 40 percent.
The plaintiff’s decedent died as a result of negligence on part of an emergency room physician and the hospital.

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