Torts Fall Outline

8/8/2019 Torts Fall Outline

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

through discouraging behavior

I.

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

Intent: intent to produce consequence.A.

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

intentional Reckless Negligent Without Fault

Intentional Interference with the PersonB.

Battery (Essence is Contact)1.

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

Act: defendant must do some intentional act1.

Intent: Only intent to cause contact2. Harmful/offensive contact:3.

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)

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.

4.

Caused by defendant: needs to be caused by defendant. Direct/Indirect5.

(i.g. poison in someone's food, pit fall, setting up trip wire, telling dog to attack)

Elements

Torts Fall OutlineTuesday, September 21, 2010

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

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

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

plaintiff

Intent: to cause harmful or offensive contact; or imminent apprehension of contact1.Act: any sort of act likely to give rise to apprehension of battery. (i.g. shaking fist, aiming weapon)2.

Elements

Offer to use force

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.

3.

Threat of future harm is not enough

Imminent means no significant delay. Immediate threat in terms of time

Causation4.

Apparent Ability: actual ability not needed.

Most of times words are not enough. Words can also explain away intent (if you weren't an oldman 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.

False Imprisonment:3.

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

confinement.

Elements

Act: words alone can satisfy act requirement (submission of person or show of authority)1.

Intent: confine plaintiff/other person (transferred intent) Good faith does not defeat. Exclusively

Intentional. For negligent actual damages need to occur.

2.

Confinement: restricted to given area without reasonable knowledge of escape3.

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!

Causation: Confinement must be caused by defendants intentional act or force defendant set in motion4.

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

reasonable manner and for a reasonable time to investigate ownership of property.

Intentional Infliction of Emotional Distress4.

Defendant by extreme or outrageous conduct, intentional or recklessly causes severe emotional distress;

defendant is liable for emotional and physical harm caused.

Act Extreme and outrageous conduct: recognize it when you see it. (intolerable in a civilized

society. Words are not enough (First amendment restricts)

1.

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.

Intent: to cause severe emotional distress; recovery may be allowed if act is recklessness (high

probability of emotional distress resulting)

2.

Causation: no physical manifestation in most states.3.Thin skull plaintiff rule: liable for all physical consequences that result from conduct. Rule not

apply from emotional reaction.

Severe emotional distress: need SEVERE. Objective standard; would a reasonable person of

ordinary sensitivity experience severe distress.

4.

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

Elements

Interference with PropertyC.

Trespass to Land1.

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.

Act: movement that results into an intrusion onto another person's land.1.

Ex: If able pushes baker onto land; baker did not act.

Intentional: Be at that place on the land; cause thing or land; merely to enter or remain (goodfaith not defense) (Transferred intent applies)

2.

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

3.

Entry of land of plaintiff's possession; actual possession (occupying land with intent to control)4.

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.

Elements:

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

necessary.

5.

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.

Trespass to Chattels and Conversion2.

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

Act: act or dispossession1.

Intent: act on or deal with the chattel. No wrongful motive is necessary. Good faith is again not a

defense. Transferred intent applies.

2.

Invasion of Plaintiff's interest in chattel3.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.

Plaintiff possessor of chattel: actual possession or have right to immediate possession. Possession

is sufficient title against wrong doer.

4.

Damages may be necessary: Dispossession: at least nominal. Physical: actual damages necessary=

amount chattel is diminished.

5.

Liable

Elements:

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"

Act: Some sort of interference of possession of chattel. Affirmative act that is inconsistent with

ownership.

1.

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.

2.

Invasion of plaintiff's interest in chattel: Limits on conversion; Intangible rights of a tangible item.3.

Scale of Seriousness

Factors: Extent and durationIntent 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

Ways Conversion can be committed4.

Stealinga.

Moving: amount of inconvenience and expense to plaintiffb.

Unauthorized transfer or delivery of chattelc.

With holding possession; exception: qualified refusal is justified. Defendant refuses to give it backd.

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immediately without conducting investigation that the plaintiff is entitled to the chattel.

Damage to chattel; total destruction, materially alter (cut a size off the coat) Mere damage is not

a conversion.

e.

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)

f.

Plaintiff's Possession: possession is sufficient title. Theoretically thief can bring conversion against

another thief.

5.

Causation6.

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.

Actual/Express Consent: Plaintiff's consents willingness1.

Apparent or implied consent: outward manifestation of consent on which defendant reasonably relies2.

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)

Whether consent to crime is valid. Split3.

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 limit

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 w

poisoned, then consent valid. Mistake has to extend to essential character of act, not collateral matter.

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.

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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 relev

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

Decision Causation- would the plaintiff have chosen to do something different? If Plaintiff would have c

the same treatment then there is no negligence.

1.

Two Tests

Objective Test-Majority Position- Would reasonable patient in the position have made a different deciA.

Subjective Test- Would this actual plaintiff have chosen another course of action if information discloseB.

Injury must have occurred.2.

Two Elements

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

doctor.

Exceptions

Privileges

Self Defense

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.

privilege to defend self with So much force as reasonable appears to be reasonably necessary to protect yours

against imminent physical harm against intentional or negligent conduct.

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?

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

Same privilege as if defending yourself.

Self Defense of Others

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

Privilege to use reasonable force or confine

Common carrier has duty to protect passengers and people on train are attacking passengers. Railroad

privilege to use reasonable force to stop/confine.

Affirmative Duty to protect someone else or property

Privilege to use reasonable force. Deadly force or serious harm is not acceptable.

Defense of Property (Real and Personal)

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

Fresh Pursuit- reasonably diligent in discovering loss and retake chattel without interruption.1.

Demand chattel2.

Be entitled to immediate possession3.

when you are dispossessed of chattel by force or duress, privileged to use non deadly force reasonable force

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. Reaso

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 respons

Defendant intentional acts to reasonably deems necessary that results in plaintiffs property.

Two Distinct privileges

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.

Public Necessity

Protect person/land/chattel from harm or injury. Harm is only to defendants interest. Incomplete privil

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 ne

be reasonable.

NegligenceIII.

Private Necessity

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Duty use reasonable care1.

Breach or failure to conform conduct to applicable standard of care2.

Causation3.

FactA.

Proximate/LegalB.

Actual Damages4.

4 Elements

Unreasonable risk or conduct that falls below standard of care established by law for protection of other peoNot 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

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

Utility of conduct2.

Feasibility of safer alternative3.

Relative cost4.

Standard of CareA.

Reasonable Person

Knowledge and Perception

Distinction between not knowing and failing to find outNot 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

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

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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 amputat

leaving foreign object)

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

Sources of Standard of CareB.Judicial Decision where court establishes rule of law1.

Statute directly establishes standard of care and creates cause of action2.

(i.g. imposes liability on dog owner)

Statute or regulation is adopted by the court as a establishing standard of care even though statute itself doe

create civil remedy.

3.

Trier of fact, (judge/jury) decides on particular evidence of negligence.4.

Adoption of StatuteUsually 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

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

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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 statuthat creates greater risk.

Compliance with Statute

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

Burden of ProofC.Plaintiff has burden of proof proving each element.

Burden of production/Burden of going forward with evidence1.

Capable of supporting inference that defendant was negligent has to be permissible.

Prima Facie CaseCourt will determine whether evidence is legally sufficient.

If evidence is not legally sufficient then case dismissed.

Burden of Persuasion2.

Persuade jury more probable than not defendant negligent.

Standard of proof ispreponderance 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

Event doesn't ordinarily occur without negligence1.

Event caused by agent within exclusive control of defendant2.

Not done by any voluntary act of plaintiff3.

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

the defendant.

Restatement Definition

Type of accident where ordinarily happens as a result of negligence of a class of actors which defendant relev

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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 w

the road. If there is no skid marks on the road you can then infer that driver was negligent)

Event doesn't occur without negligence1.

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

Some situations requires expert testimony

Negligence was caused by defendant2.

Defendant had right or power of control or opportunity to operate exercise of control at time of negligence. N

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

where defendant unconscious

Rule out plaintiff as cause of accident3.

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.

CausationD.

Actual Causation "But for"1.

Was the defendant's negligent conduct one of links in chain of causes and effects that lead up to plaintiffs inju

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 suff

for causation.

Alternative to But For Test

Alternative Test: Substantial Factor Test: Was the negligence of a substantial factor in bringing about plaintiff

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 caus

fact did not occur.

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

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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 allowi

before jury. "gate keeper function"

Loss of Chance: If plaintiff has less than 50/50 for survival then misdiagnosis will be conceptualized in two wa

Pre-Mature death or lost opportunity: General rule allows damages based on percentage of lost chance for su

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

Concurrent Causation

Concurrent tortfeasors and indivisible injury1.

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

Concerted action to commit injurya.

Acting independently cause divisible injuryb.

Vicarious liabilityc.

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

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.

Concurrent Independent tortfeasors and one causes injury but unable to determine.3.

(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; eac

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. Manufactu

represent significant portion of industry. Plaintiff must enjoin enough % share. Manufacturers are held to

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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 o

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

Equal Fault Bar: If plaintiff negligence is equal to or greater than defendant then no recovery.A.

(i.e. 50% = no recovery)

Greater Fault: if plaintiff negligence is greater than defendantB.

(i.g. 50%=recovery)

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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 neglige

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

Express assumption of risk (contractual)1.

Clear intent b. scope of risk covereda.

Torts Fall Outline

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