Torts Fall Outline

Tuesday, September 21, 2010

7:55 PM

I. Introduction: Two views: correct wrong injustices/ prevent future wrongdoings

through discouraging behavior

intentional Reckless Negligent Without Fault

II. Intentional Torts (deliberate choice to invade someone's rights)

A. Intent: intent to produce consequence.

Purposeful Intent: Act with purpose or desire to cause consequence of act

Knowledge Intent: know or believe consequence is substantially certain (90%) to result

Subjective Test: what the particular defendant believed/desired

(Intent doesn't mean intent to do harm; just consequences)

Circumstantial Evidence: (Objective Evidence to prove defendants state of mind)

Motive is irrelevant.

Diminished Capacity: held to same standard; as long as they are capable of formulating in their mind the
intent set forth.

Majority position is "mere intent to contact rule" not dual intent

B. Intentional Interference with the Person

1. Battery (Essence is Contact)

Harmful or offensive contact either direct or indirect by the plaintiffs person caused by the defendant

Elements
1. Act: defendant must do some intentional act
2. Intent: Only intent to cause contact
3. Harmful/offensive contact:
Harmful: physical bodily contact must occur (even beneficial harmful contact i.g. surgery)
Offensive Contact: objective test; one that offends a reasonable sense of personal dignity (person
of ordinary sensitivity)
4. Contact with plaintiffs person: must cause actual physical contact to body or something a "part"
of a person's body. (object held in hand, horse plaintiff riding on, clothing) E.g. grab someone's
clothing or tray out of someone's hand.
5. Caused by defendant: needs to be caused by defendant. Direct/Indirect
(i.g. poison in someone's food, pit fall, setting up trip wire, telling dog to attack)

• Plaintiff does not need to be aware of contact at the time.

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• Plaintiff does not need to be aware of contact at the time.

2. Assault (right to be free from fear or apprehension from unwanted contact)

Intentional act by defendant that arouses a reasonable apprehension of an imminent battery in the
plaintiff

Elements
1. Intent: to cause harmful or offensive contact; or imminent apprehension of contact
2. Act: any sort of act likely to give rise to apprehension of battery. (i.g. shaking fist, aiming weapon)
Offer to use force
Apparent Ability: actual ability not needed.
3. Apprehension of imminent battery: must be aware of threat at the time. Apprehension is
perception or anticipation of contact. Not fear! Split between subjective or objective reasonable
apprehension.
• Threat of future harm is not enough
• Imminent means no significant delay. Immediate threat in terms of time
4. Causation

• Most of times words are not enough. Words can also explain away intent (if you weren't an old
man I would hit you) Words need to be used together with other acts to constitute an assault.

• Conditional Threat: If you are privileged to make threat/defend it is assault. Defending house for
example.

3. False Imprisonment:

Defendant with intent to confine plaintiff/other within fixed boundaries and person is conscious or harmed by
confinement.

Elements

1. Act: words alone can satisfy act requirement (submission of person or show of authority)
2. Intent: confine plaintiff/other person (transferred intent) Good faith does not defeat. Exclusively
Intentional. For negligent actual damages need to occur.
3. Confinement: restricted to given area without reasonable knowledge of escape
• No duty by person to risk harm or search for means of escape.
• Means of confinement: actual or apparent
• Compelled to go with defendant. Total restraint; not merely obstruction.
• Time of confinement can be only momentary (question of damages)
• Physical barrier (removing ladder/wheel chair)
• Physical force can also be used or person's immediate family.
• Issue is submission, not whether someone can win fight.
• Submission to threats or duress: imminent threat person/property
• Economic/moral/social not enough: (firing not enough for employees or social pressure)
• Duty to release is breached (prison warden who refuses to release prisoner when sentence is up)
• Assertion of legal authority (false arrest) Issue is submission!

4. Causation: Confinement must be caused by defendants intentional act or force defendant set in motion.

Must be aware of confinement or physical harm needs to occur.

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 Shop Keepers Defense: person who reasonably believes person has stolen is privileged to detain person in
reasonable manner and for a reasonable time to investigate ownership of property.

4. Intentional Infliction of Emotional Distress

Defendant by extreme or outrageous conduct, intentional or recklessly causes severe emotional distress;
defendant is liable for emotional and physical harm caused.

Elements
1. Act Extreme and outrageous conduct: recognize it when you see it. (intolerable in a civilized
society. Words are not enough (First amendment restricts)
Factor: Vulnerability: Young child v young adult
Plaintiff with special sensitivity; conduct can be extreme if defendant is aware
Relationship between defendant/plaintiff (employer/employee, landlord/tenant, etc) Abuse of
power.
2. Intent: to cause severe emotional distress; recovery may be allowed if act is recklessness (high
probability of emotional distress resulting)
3. Causation: no physical manifestation in most states.
Thin skull plaintiff rule: liable for all physical consequences that result from conduct. Rule not
apply from emotional reaction.
4. Severe emotional distress: need SEVERE. Objective standard; would a reasonable person of
ordinary sensitivity experience severe distress.
Severity: linked to liability and damages
Third Person Claims: 1. 3rd party is present and witnesses conduct. 2. immediate member of
family. 3. Defendant aware of 3rd party. 4. some sort of bodily harm results. (Not case of
transferred intent as not one of 5 historical intentional torts)

Special Rule for Innkeepers/Carriers: rules are relaxed for persons of service

C. Interference with Property

1. Trespass to Land
Defendant intentionally without privilege enters land himself or causes thing/other person to enter; or
remains on land after privileged has expired, or fails to remove items from land.

Elements:
1. Act: movement that results into an intrusion onto another person's land.
Ex: If able pushes baker onto land; baker did not act.
2. Intentional: Be at that place on the land; cause thing or land; merely to enter or remain (good
faith not defense) (Transferred intent applies)
3. Unprivileged Entry: 1. any physical entry onto land. 2. causes someone else to come onto land
(carrying, inducing, false representation) 3. something to enter. (rock) 4. Remaining on land after
privileged has expired. (go beyond scope of purpose. 5. Failing to remove something you have a
duty to remove
4. Entry of land of plaintiff's possession; actual possession (occupying land with intent to control)
Possession not ownership (ex: wrongful occupier can maintain trespass action against wrongful
intruder) Extent of possession is not limited to the surface. Boundaries extend above and below.
(over hanging structure, hand over fence, firing shot over property) Limits: various theories;
General Theory: you own airspace which is in your effective possession.
5. Causation: must be caused by intentional act or some sort of force. Actual damages are not

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 5. Causation: must be caused by intentional act or some sort of force. Actual damages are not
necessary.

Liability: Unforeseeable harm. Strictly intentional tort; in negligence physical harm needs to occur.
If intrusion is not intentional, reckless or negligent; walking down street and slip on ice and fall onto
property there is no tort.

2. Trespass to Chattels and Conversion

Degree
Both protect personal property from wrongful interference.

Trespass to Chattels: relatively minor

Intentional inference with a chattel by physical contact, using or intermeddling; or by dispossession

Elements:
1. Act: act or dispossession
2. Intent: act on or deal with the chattel. No wrongful motive is necessary. Good faith is again not a
defense. Transferred intent applies.
3. Invasion of Plaintiff's interest in chattel
Dispossession: assertion over chattel without consent of owner. (borrowing access, taking into
custody of law)
Degree: Moving 10 feet down the street or taking car away for long period of time.
Physical Contact: using or intermeddling. Directly or indirectly impairs condition, quality or chattel.
Doing some relatively minor damage to chattel.
4. Plaintiff possessor of chattel: actual possession or have right to immediate possession. Possession
is sufficient title against wrong doer.
5. Damages may be necessary: Dispossession: at least nominal. Physical: actual damages necessary=
amount chattel is diminished.
Liable

Conversion
Intentional exercise of dominion or control of plaintiff's chattel to such an extent that defendant is justly
required to pay full value. Major interference of chattel. Forced judicial sale. "You break it you pay for it"

1. Act: Some sort of interference of possession of chattel. Affirmative act that is inconsistent with
ownership.
2. Intent: Exercise dominion and control over chattel that inconsistent with plaintiff's rights. Good
faith is no defense. Defendants belief and motive may be relevant in determining seriousness of
interference.
3. Invasion of plaintiff's interest in chattel: Limits on conversion; Intangible rights of a tangible item.
Scale of Seriousness
Factors: Extent and duration
Intent to assert a right
Defendants good faith
Extent and duration of actual interference with actual plaintiffs right of control
Harm; minor damage or destruction
Expense or inconvenience of plaintiff
4. Ways Conversion can be committed
a. Stealing
b. Moving: amount of inconvenience and expense to plaintiff
c. Unauthorized transfer or delivery of chattel
d. With holding possession; exception: qualified refusal is justified. Defendant refuses to give it back
immediately without conducting investigation that the plaintiff is entitled to the chattel.

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 immediately without conducting investigation that the plaintiff is entitled to the chattel.
e. Damage to chattel; total destruction, materially alter (cut a size off the coat) Mere damage is not
a conversion.
f. Mere use of chattel: serious violation of right to control chattel; exceeding the use of the chattel
(permission to drive 5 miles but 100 mile roadtrip ensues)
5. Plaintiff's Possession: possession is sufficient title. Theoretically thief can bring conversion against
another thief.
6. Causation

Remedy
Replevin
Right to Sue for damages: Full market value of chattel. (willing buyer would sell to willing seller)
If defendant tries to return chattel; plaintiff does not have to accept.

Defenses to Intentional Torts

Two Main Categories: Consent and Privileges

• Consent bars recovery for anyone of these intentional torts.

• Consent is treated as an affirmative defense. (burden on defendant)

• Actual willingness (subjective state of mind)

• Consent is valid whether or not is communicated to the defendant.

1. Actual/Express Consent: Plaintiff's consents willingness

2. Apparent or implied consent: outward manifestation of consent on which defendant reasonably relies
• Knod, Silence or Inaction sometimes enough (if reasonable person would speak up)
• Practical joke/Local Custom/Contact Sports (consenting to conduct with the sport)
• Consent can be complied by law: unconscious and patient in danger of dying.

Exceptions to Consent
• Incapacity: Infant legally not capable of consent
• Insane Person or other legally incompetent
• Duress: Threat of immediate harm submitting/yield to threat (Economic pressure usually not enough to
negate)
(e.g. shoplifting employee sent to manager's office or fired is generally consent)

3. Whether consent to crime is valid. Split

Traditional: Consent is not effective when breach of peace has been committed. (street fighting)
Minority/Restatement: consent is valid. Exception: If you have statute that protects group of people
irrespective of consent (Statutory Rape not consent).

Beyond Scope of Consent: Unforeseen consequences are not valid, but there are limits. Consent is limited to
scope of consent (Brass knuckles in a boxing match is not consent)

Consent is effective even if given in mistake, unless defendant knows of mistake or induces mistake by
misrepresentation. (Ig; if defendant gives poisoned candy to plaintiff). If defendant didn't know candy was
poisoned, then consent valid. Mistake has to extend to essential character of act, not collateral matter. (i.g:
20 bucks to punch in nose, paid in counterfeit bill; still consent, you were aware and consented to being
punched in nose unless defendant intentionally mis represented.

Informed Consent

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 Informed Consent
• Treated as law of negligence not intentional torts
• If there is actual deceit then it negates consent
• Medical Malpractice

Non disclosure
Breach of a duty to inform
• Consent has to be based on the professional disclosure based on the material risk or alternatives
• Duty to inform of risks to allow patient to make intelligent informed decision

Splits on Issues
Standard of Disclosure
Two Standards

Professional Standard
Reasonable Physician standard- whether a reasonable doctor would inform patient of particular risk.
Material Risk standard
reasonable patient standard- what a reasonable patient would want to be informed of. Something relevant to
the decision in the plaintiffs position would attach significance to. If court adopts it is distinct from
malpractice.

Causation Standard
Plaintiff has to show the lack of disclosure caused him to undertake the treatment with the resulting injury
Two Elements
1. Decision Causation- would the plaintiff have chosen to do something different? If Plaintiff would have chosen
the same treatment then there is no negligence.
Two Tests
A. Objective Test-Majority Position- Would reasonable patient in the position have made a different decision?
B. Subjective Test- Would this actual plaintiff have chosen another course of action if information disclosed?
2. Injury must have occurred.

Exceptions
• Medical emergency
• Risk of infection or something obvious
• In material risks or slight risks
• General Rule: If disclosure is harmful to patients best interest then doctor is privileged. Burden of proof on
doctor.

Privileges

Self Defense
privilege to defend self with So much force as reasonable appears to be reasonably necessary to protect yourself
against imminent physical harm against intentional or negligent conduct.
• Force can be deadly conduct if necessary for defense.
• No privilege of offense or retaliation or excessive force. Threats of greater force is justified
• No duty to retreat.
Deadly Force
Reasonably believe you are in serious harm your force has to be proportionally reasonably
To threat.
Majority View- No duty to retreat
Minority View- duty to retreat if safe to do so.

• Reasonable belief that self defense is necessary even if mistaken; Objective standard applied.
What happens if you injure a 3rd person while defending self?
• If intentional then you are liable, unintentional then only liable if negligent.

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 • If intentional then you are liable, unintentional then only liable if negligent.

Self Defense of Others

• Same privilege as if defending yourself.

Mistaken self defense Split

Majority View- privilege exists only to the extent actually had self defense
Reasonable mistakes are still liable
Minority and restatement view- if you make a reasonable mistake you are privileged

Affirmative Duty to protect someone else or property

• Privilege to use reasonable force or confine
• Common carrier has duty to protect passengers and people on train are attacking passengers. Railroad has
privilege to use reasonable force to stop/confine.

Defense of Property (Real and Personal)

• Privilege to use reasonable force. Deadly force or serious harm is not acceptable.
Real Property Defense- right to defend property, exclude trespassers
Mechanical/watchdogs- okay if reasonable. Not likely or intended to cause serious harm of death
Barbed wire fence, broken glass are usually privileged if it is not concealed under circumstances

Privilege of recapture of chattels

when you are dispossessed of chattel by force or duress, privileged to use non deadly force reasonable force
1. Fresh Pursuit- reasonably diligent in discovering loss and retake chattel without interruption.
2. Demand chattel
3. Be entitled to immediate possession

• Reasonable mistake not a defense.

• Privileged to enter someone else's land if acting reasonably

Shop Keepers Privilege- statutory/common law privilege- reasonable suspicion that person has stolen. Reasonable
mistake is a defense. Reasonable confinement (time, manner, investigation)

Privilege of Necessity
Defendant is defending himself or property of threat of imminent serious harm in which plaintiff is not responsible.
Defendant intentional acts to reasonably deems necessary that results in plaintiffs property.

Two Distinct privileges

Public Necessity
• Privilege to enter plaintiffs land or chattels if necessary or reasonably appears necessary to avert public
disaster. Doesn't need to be public official. Private citizen can act.
• Line between public interest and private interest is often unclear.
• Public necessity is a complete privilege. No responsibility for damage.

Private Necessity
• Protect person/land/chattel from harm or injury. Harm is only to defendants interest. Incomplete privilege;
defendant is privileged to complete act but is liable for damages sustained.
• In order to trigger privilege you need reasonable belief act is necessary or appears to be and conduct needs to
be reasonable.

III. Negligence
4 Elements

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 4 Elements
1. Duty use reasonable care
2. Breach or failure to conform conduct to applicable standard of care
3. Causation
A. Fact
B. Proximate/Legal
4. Actual Damages

Unreasonable risk or conduct that falls below standard of care established by law for protection of other people.
Not substantial certainty or intentional conduct.

Standard is reasonably prudent person to protect other people and property from harm. Objective test.

Negligence Calculus: analyzing negligence

Probability act or omission will lead to harm
Magnitude of harm
Value of interests/burden in order to reduce risk.

Learned Hand Formula

Unreasonable risk

If burden is less than probability of harm X gravity of harm

N= B < PL

Core Issue: What risk is worth taking?

Appreciable Risk: What a reasonable person would risk

Risk Utility Balance Test

Balance Utility of defendants conduct against probability or gravity of harm

1. Importance or social value of activity or goal (firefighters)

2. Utility of conduct
3. Feasibility of safer alternative
4. Relative cost

A. Standard of Care
Reasonable Person

Knowledge and Perception

Distinction between not knowing and failing to find out
Not knowing may not constitute negligence but failing to find out is more likely

Emergency Doctrine: if a reasonable person under circumstances that requires immediate action. Standard is a
reasonable person in an emergency. Emergency Doctrine inapplicable if 1. defendants negligence created
emergency or 2. failing to anticipate an emergency. (kid running out of a parked car)

Custom

Well defined consistent way of doing a certain activity in a particular trade or industry.
Evidence is very relevant to what reasonable care in circumstances may be
Compliance with custom does not necessarily equate to due care.

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 Compliance with custom does not necessarily equate to due care.
(i.g. custom itself is unreasonable, or application of custom to circumstance may be)

Physical Attributes of Defendant

Defendant is held to standard of reasonable person with defendant's physical characteristics.
(i.g. reasonable blind man, reasonable handicapped person.)

Sudden Incapacity
Whether defendant should have foreseen incapacity.

Mental Incapacity
Held to same standard of reasonable person.
No exceptions

Children
Reasonable child of like age, intelligence, and experience.
Some courts impose Rule of 7 (7 incapable on negligence; 14)

Exception
Children engaging in Adult Activity will be held to an adult standard.
Adult activities vary state by state. (i.g. driving)

Skilled Activity
Reasonable person that is skilled or knowledgeable in that activity.
(i.g. medical malpractice)
Held to knowledge, skill, care by a member of the profession in good standing.

Medical Area
Customary medical practice is conclusive. Breach of custom is breach of duty to conform to medical practice.
Ordinarily Expert testimony needed to show what standard of care is unless common sense. (wrong amputation,
leaving foreign object)

Locality Rule : standard of care is where doctor practices. Most courts have abolished rule.

B. Sources of Standard of Care

1. Judicial Decision where court establishes rule of law
2. Statute directly establishes standard of care and creates cause of action
(i.g. imposes liability on dog owner)
3. Statute or regulation is adopted by the court as a establishing standard of care even though statute itself does not
create civil remedy.
4. Trier of fact, (judge/jury) decides on particular evidence of negligence.

Adoption of Statute
Usually criminal statutes that court adopts as evidence of or establishing standard of care in civil case.
The statute will define what reasonable conduct in particular situation is.

(i.g. if you run stoplight you will be fined. Court can adopt and standard of care is: driver's stop at red lights.)
Courts will look for legislative purpose or one that appropriately can be used in civil case

(statutes that do not create duty: i.g. license statutes, stores cannot operate on certain holidays)

Legislative Purpose
1. protect class of persons and 2. from the harm that resulted. (appropriate to use in civil case)

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 If standard is not adopted then reasonable person standard will be applied.

Majority Rule: If statute protects group of persons and violation is established that conclusively establishes
negligence. Unexcused violation of statute is negligence per se.
Minority Rule: violation gives presumption of negligence but defendant can rebut presumption.
Minority Rule: Evidence of negligence (MA)

Excused Liability: unknown busted tail light, weather patterns, kid runs out in the street. Complying with statute
that creates greater risk.

Compliance with Statute

Evidence of due care but not conclusive, reasonable person might take precautions above compliance.

C. Burden of Proof
Plaintiff has burden of proof proving each element.

1. Burden of production/Burden of going forward with evidence

Capable of supporting inference that defendant was negligent has to be permissible.
Prima Facie Case
Court will determine whether evidence is legally sufficient.
If evidence is not legally sufficient then case dismissed.

2. Burden of Persuasion
Persuade jury more probable than not defendant negligent.
Standard of proof is preponderance of evidence. Scale needs to tip slightly in favor of plaintiff.

Evidence direct or circumstantial

Direct
Personal knowledge or observation
Credibility and reliability

Circumstantial
Proof that requires inferences from other facts
From A you can infer fact B
Slip and Fall Cases
Some jurisdictions
Mode of Operation
Nature of business gives rise to substantial injury to customer

Res Ipsa Loquitur

Rule of circumstantial evidence where no direct evidence can be provided showing negligence.
Traditional Elements
1. Event doesn't ordinarily occur without negligence
2. Event caused by agent within exclusive control of defendant
3. Not done by any voluntary act of plaintiff

Something happened that wouldn't ordinarily occur if someone wasn't negligence and that person was most likely
the defendant.

Restatement Definition
Type of accident where ordinarily happens as a result of negligence of a class of actors which defendant relevant
member.

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 member.

Rule of circumstantial evidence

Defendant probably negligent in some way although you cannot infer what way.
(i.g. car leaves highway and skid marks on the road) not res ipsa case because you cannot infer how the car went off
the road. If there is no skid marks on the road you can then infer that driver was negligent)

1. Event doesn't occur without negligence

Not necessary that plaintiffs eliminates all other causes with certainty but only show that someone was negligent.
(i.g. machinery suddenly starting, wheels coming off car, object falling out window)

Some situations requires expert testimony

2. Negligence was caused by defendant

Defendant had right or power of control or opportunity to operate exercise of control at time of negligence. Not
necessary to eliminate all other culpable parties. More likely than not, defendant was responsible.

Multiple Defendants
Ordinarily cannot win on res ipsa theory because cannot show which defendant was responsible.
(i.g. chair falling out of hotel window and plaintiff could not win because he did not establish that hotel had
exclusive control of chair at time on negligence)

Controversial Exception (Minority Rule)

Initial Explanation: Impose each defendant in circumstance to explain why they were not negligent in surgery case
where defendant unconscious

3. Rule out plaintiff as cause of accident

Procedural Effect of Res Ipsa

Once Res Ipsa may be introduced then the jury can choose whether or not to find negligence. Permissible not
mandatory.

D. Causation
1. Actual Causation "But for"
Was the defendant's negligent conduct one of links in chain of causes and effects that lead up to plaintiffs injury.

But For Test

Injury would not have occurred but for the defendant's negligence

Rule of Exclusion: If negligence was not cause in fact there is no liability. Causation is a necessary but not sufficient
for causation.

Alternative to But For Test

Alternative Test: Substantial Factor Test: Was the negligence of a substantial factor in bringing about plaintiffs
harm.

Restatement: Negligent conduct must be but for cause of injury. Negligent conduct must cause injury.

Negligent Conduct is main focus point; negligence must cause act. If act would have occurred anyways a cause in
fact did not occur.

Plaintiff has burden of proof concerning causation. Plaintiffs evidence should be enough to allow jury to infer
causation.

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 causation.

Admissibility of Expert Testimony

Historically general acceptance test: The test must be generally accepted by the field
Federal Rule 702: judge has obligation to make certain expert testimony is reliable and relevant before allowing
before jury. "gate keeper function"

Loss of Chance: If plaintiff has less than 50/50 for survival then misdiagnosis will be conceptualized in two ways.
Pre-Mature death or lost opportunity: General rule allows damages based on percentage of lost chance for survival.

2. Legal Causation/Proximate Causation (Scope of Liability)

Concurrent Causation
1. Concurrent tortfeasors and indivisible injury
More than one and negligence of multiple tortfeasors produce single injury

Traditional Rule: Joint and Several Liability: Plaintiff can hold either one liable or both liable.
Does not matter if not acting in concert or neither one by itself would have caused injury.

Joint Tortfeasors
a. Concerted action to commit injury
b. Acting independently cause divisible injury
c. Vicarious liability

2. Concurrent tortfeasors and each one causes separate divisible injury.

Two or more tortfeasors who injure plaintiff and cause separate injury.
Only liable for part each caused only if possible to determine.

Exceptions: If tortfeasors act in concert/joint enterprise they are joint/several liability

Negligence created risk of further injury and foreseeable exposes plaintiff to further injury.

Burden of Proof: Defendants must show which part of injury each other caused.

3. Concurrent Independent tortfeasors and one causes injury but unable to determine.
(i.g. Two defendants independently negligently firing towards plaintiff and struck with one bullet)

Burden of Proof: shifted to each defendant he was not cause.

Traditionally: plaintiff would lose because he could not prove causation.

Product Liability: Plaintiff injured by product but cannot be proven which company manufactured.

Some courts allow following theories (Minority Views)

Enterprise liability: theory used where product is manufactured by one of small group of manufacturers; each had
joint risk, joint capacity to reduce risk, each failed to take risk to reduce risks. Most if not all are joined as
defendants.

Market Share Liability: plaintiff injured by a manufacturer but plaintiff cannot identify which one. Manufacturers
represent significant portion of industry. Plaintiff must enjoin enough % share. Manufacturers are held to
proportionate share of injury according to % share market.

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 proportionate share of injury according to % share market.

Defendant Rights
Contribution

Sharing loss between tortfeasors. Defendant that paid more than proportional share may be reimbursed by other
tortfeasors.
Most states recognize right by statute.

Pro-rata basis
D1, D2; 100 dollar judgment. Each plaintiff owes 50

Right of defendant and not dependent on who the plaintiff chooses to sue.

Effect of Settlement
If tortfeasor settles liability in good faith with plaintiff, tortfeasor is immune from contribution. Theory is to
encourage settlement.

Indemnity

Shifting entire loss from one tortfeasor to another.

Arises from contract (hold harmless agreement)

Implied Indemnity
Significant difference in % fault.

Defenses
Traditional Rule
Contributory Negligence (Jury Question)
If plaintiff is negligent = bars recovery

Mitigation of Rule

Last Clear Chance: defendant had last clear chance to avoid negligence.

Modification of Traditional Rule

Comparative Negligence (Modern Rule)

Conduct of plaintiff will reduce damages. Legal effect of plaintiffs conduct is different.

Types of Comparative Negligence

Pure: Plaintiff recovery reduced according to fault.

(i.g. plaintiff 99% negligent and can still recover 1% damages)

Modified System
A. Equal Fault Bar: If plaintiff negligence is equal to or greater than defendant then no recovery.
(i.e. 50% = no recovery)
B. Greater Fault: if plaintiff negligence is greater than defendant
(i.g. 50%=recovery)

MA Rule: violation of criminal statute is not negligent per se.

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 MA Rule: violation of criminal statute is not negligent per se.

Multiple Defendants: view statute in states. Majority of states compare negligence with all combined negligence of
all defendants

Comparative Negligence Issues: Varies state by state. Best to view statute

Most courts have abolished last clear chance in comparative negligence jurisdictions.
Contribution and joint/several liability also in question.

Complete Defenses
Assumption of Risk
Consent of Risk in Negligence
1. Express assumption of risk (contractual)
a. Clear intent b. scope of risk covered

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