TORTS - FALL 2018

Lecture 29
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DEFENSES

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NEGLIGENCE

1. Duty +

2. Breach +

3. Causation +

4. Damage

= Prima Facie Case

Defenses?

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 DEFENSES TO NEGLIGENCE
ACTION

 Contributory Negligence
 Comparative Negligence
 Assumption of Risk
 Immunity
 Statutes of limitation and Repose.

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 CONTRIBUTORY V. COMPARATIVE
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NEGLIGENCE

Contributory Negligence Comparative Negligence

 Total Bar to recovery  Partial Bar to recovery

 5 jurisdictions (including N.C)  46 Jurisdictions
 Elements
 Elements
 Duty – Standard of Care
 Duty – Standard of care
 Breached standard of care
 Breached standard of care
 Factual & Proximate cause of the
 Factual & Proximate cause of the
accident resulting in injury
accident resulting in injury
COMPARATIVE NEGLIGENCE –
THE APPROACHES

 3 different approaches to Comparative Negligence:

1. Pure Comparative Fault

 the Pl recovers a percentage regardless of the extent of their own
negligence

2. Modified 49% Comparative Fault

 that is if pl’s fault is 49% or less can recover (cannot be equal to or
greater than the def’s share)

3. Modified 50% Comparative Fault

 That is pl’s fault is 50% or less can recover (can be equal to but
cannot be greater than the def’s share)
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MULTIPLE DEFENDANTS

 Unit Rule
 Pl’s negligence compared to the totality of all def’s negligence
 Majority approach
 Wisconsin Rule
 Pl’s negligence compared individually to each def’s negligence
 Minority approach

 In case X, the comparative responsibility assessed against each party was:

Plaintiff 46% negligent, Defendant Hospital 36% negligent and Defendant
Doctor 18% negligent.

If damages totaled $100,000 what is the total amount plaintiff could collect
from the defendants?
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AMELIORATING DOCTRINES

 Reckless or willful and wanton conduct

 Last Clear Chance Doctrine

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 RECKLESS OR WILLFUL &
WANTON CONDUCT

 If the Def’s acts are reckless or willful and wanton,

Pl is not liable for contributory negligence
 Exception: If pl is also willful and wanton and their
act is as bad as or worse than def’s, ameliorating
doctrine does not apply

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LAST CLEAR CHANCE DOCTRINE

 if the Def had the last chance to avoid the accident the Pl
is not liable for contributory negligence
 Elements:
1. Pl by own negligence places herself in a position of peril from which
she could not escape;
2. Def saw or by the exercise of reasonable care should have seen and
understood, the perilous position of the pl;
3. Def had the time and the means to avoid the accident if def had
seen or discovered pl’s perilous position;
4. Def failed or refused to use every reasonable means at her
command to avoid impending injury to pl; and
5. Pl was injured as a result of def’s failure or refusal to avoid
impending injury.
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COMPARATIVE NEGLIGENCE'S EFFECT

 Ameliorating Doctrines, do they still apply in comparative

negligence jurisdictions?
 Not in most comparative fault jurisdictions
 Some jurisdictions use in assessing the degree of comparative fault of
the parties – one of many factors that goes to determining the relative
culpability of the parties

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