Jury - Majority Rule: Jury should be told how comparative fault system works - P or D can ask judge to instruct jury on the finding’s impact on recovery Restatement (Third) and Comparative Fault 1. Nature of the risk-creating conduct, including awareness or indifference with respect to risk 2. The strength of the causal connection 2. Mitigation of Damages/Avoidable Consequences - Rule: P must minimize damages by reasonable efforts and expenses - P must use all reasonable efforts in obtaining medical care (therapy, surgery) - Common Law: not allowed to recover for that portion of the injuries that are avoidable - Restatement: comparative fault - Bexiga Principle: Even if the Plaintiff is negligent, it does not bar recovery because the safety device is supposed to protect the plaintiff from his own negligence. - Some apply Bexiga Principle (no reduction on recovery) - Some Comparative Fault (classic case) 3. Comparative Fault’s Effect on Prior Doctrinal Rules 1. Where P is not negligent 2. P is negligent, but P’s negligence is not the actual cause of the injury 3. P is negligent, but P’s negligence is not the proximate cause of the injury 4. P is negligent, but P’s negligence is a superseding, intervening cause 5. Mitigation of damages 6. Duty to protect P - (employer supposed to protect P from his own negligence Bexiga operating a punch-press) and (school district/principal Christensen obligated to protect plaintiff from sexual abuse) - There may be instances in which, even though P is alleged to be contributorily negligent, the court may find for some sort of policy reason such as the relationship between the Plaintiff and the Defendant where D’s obligation is to protect P or the P is particularly vulnerable, the contributory negligence will not reduce recovery 1. Protect P from themselves 2. Protect P for something someone else do to them
Jury - Majority Rule: Jury should be told how comparative fault system works - P or D can ask judge to instruct jury on the finding’s impact on recovery Restatement (Third) and Comparative Fault 1. Nature of the risk-creating conduct, including awareness or indifference with respect to risk 2. The strength of the causal connection 2. Mitigation of Damages/Avoidable Consequences - Rule: P must minimize damages by reasonable efforts and expenses - P must use all reasonable efforts in obtaining medical care (therapy, surgery) - Common Law: not allowed to recover for that portion of the injuries that are avoidable - Restatement: comparative fault - Bexiga Principle: Even if the Plaintiff is negligent, it does not bar recovery because the safety device is supposed to protect the plaintiff from his own negligence. - Some apply Bexiga Principle (no reduction on recovery) - Some Comparative Fault (classic case) 3. Comparative Fault’s Effect on Prior Doctrinal Rules 1. Where P is not negligent 2. P is negligent, but P’s negligence is not the actual cause of the injury 3. P is negligent, but P’s negligence is not the proximate cause of the injury 4. P is negligent, but P’s negligence is a superseding, intervening cause 5. Mitigation of damages 6. Duty to protect P - Bexiga (employer supposed to protect P from his own negligence operating a punch-press) and Christensen (school district/principal obligated to protect plaintiff from sexual abuse) - There may be instances in which, even though P is alleged to be contributorily negligent, the court may find for some sort of policy reason such as the relationship between the Plaintiff and the Defendant where D’s obligation is to protect P or the P is particularly vulnerable, the contributory negligence will not reduce recovery 1. Protect P from themselves 2. Protect P for something someone else do to them
Torts-Selmi.docx