Modified plaintiff can recover for X% of the injuries caused by the – defendant, as long as the plaintiff’s fault is as great as” the “not defendant’s. If the plaintiff’s fault is equal to or greater than the defendant’s, the plaintiff is completely barred from recovery. Note: instructing the jury on for comparative negligence may “rule” change outcomes… the jury may be tempted to change the percentage of negligence they assign to the plaintiff to ensure the plaintiff can still collect based upon whether the 50% or 49% rule is followed. This has replaced contributory negligence in most states (where any negligence on the part of the plaintiff would bar relief to them from the acts of the defendant). Doctrine of Last Chance If the defendant had the opportunity to the accident after the opportunity was no longer available to the plaintiff, the defendant should bear the loss. Application will occur when the plaintiff is helpless, unable to avoid the danger or inattentive. Note: this has been largely removed in jurisdictions that apply comparative negligence theory. General outcomes when comparative negligence is applied: In cases of multiple tortfeasors, plaintiff will be entitled to recover so long as their fault is less than the combined fault of all tortfeasors. Because a particular defendant will only be liable for the percentage of plaintiff’s damages caused by their negligence, situations where a defendant has paid more than his of a judgment will no longer arise. “share” Assumption of Risk Express plaintiff may expressly assume risk, in some cases barring the defendant – from liability Example - exculpatory clause (Seigneur v. National Fitness Institute, Inc.) May insulate the defendant from liability if it clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence. Three exceptions where the public interest will render an exculpatory clause unenforceable: When the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton or gross negligence; When the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the other’s negligence; or When the transaction involves the public interest. Court will also consider whether the defendant offered services of great importance to the public which were a practical necessity for
Modified – plaintiff can recover for X% of the injuries caused by the defendant, as long as the plaintiff’s fault is “not as great as” the defendant’s. If the plaintiff’s fault is equal to or greater than the defendant’s, the plaintiff is completely barred from recovery. Note: instructing the jury on “rule” for comparative negligence may change outcomes… the jury may be tempted to change the percentage of negligence they assign to the plaintiff to ensure the plaintiff can still collect based upon whether the 50% or 49% rule is followed. This has replaced contributory negligence in most states (where any negligence on the part of the plaintiff would bar relief to them from the acts of the defendant). Doctrine of Last Chance If the defendant had the opportunity to the accident after the opportunity was no longer available to the plaintiff, the defendant should bear the loss. Application will occur when the plaintiff is helpless, unable to avoid the danger or inattentive. Note: this has been largely removed in jurisdictions that apply comparative negligence theory. General outcomes when comparative negligence is applied: In cases of multiple tortfeasors, plaintiff will be entitled to recover so long as their fault is less than the combined fault of all tortfeasors. Because a particular defendant will only be liable for the percentage of plaintiff’s damages caused by their negligence, situations where a defendant has paid more than his “share” of a judgment will no longer arise. Assumption of Risk Express – plaintiff may expressly assume risk, in some cases barring the defendant from liability Example - exculpatory clause (Seigneur v. National Fitness Institute, Inc.) May insulate the defendant from liability if it clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence. Three exceptions where the public interest will render an exculpatory clause unenforceable: When the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton or gross negligence; When the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the other’s negligence; or When the transaction involves the public interest. Court will also consider whether the defendant offered services of great importance to the public which were a practical necessity for
TORTSOUTLINE2009.docx