Contributory Negligence RST §463 negligence contributes proximately to his injuries Complete bar to – Π’s recovery Last Clear Chance duty to mitigate (Butterfield v. Forrester riding fast, hits pole – – across the road) must show cause in fact and proximate cause i.e. speeding in car does not Δ – contribute to someone running a red light and broadsiding you Assumption of Risk Primary Express via K or waiver – Both parties must be on equal footing, no willful or wanton misconduct Implied Can be presumed under the circumstances – owes no duty to the circumstances Δ Π The flopper non-latent hazard – Lamson Employee complains then continues to work – RAE the less safe axe rack is faster for a skilled worker – Secondary Akin to contributory negligence sees negligence and chooses to continue Π Δ’s Comparative Negligence Pure 13 states apportion according to relative – – Li v. Yellow Cab also established joint liability to multiple (one settles, – Δ everyone else is on the hook for the whole remainder) Modified “Threshold” 21 states must be 50% at fault – Π ≤ 9 states must be < 50% at fault – Π NOTE large discontinuity at the point where many cases end up – HIGH ERROR COST WITH NORMALLY DISTRIBUTED DATA Admiralty – pro rata NOT IN USE BUT RAE LIKES IT Equal apportionment to everyone irrespective of blame LOW ERROR COST WITH NORMALLY DISTRIBUTED DATA & JOINT TORTFEASORS Joint and Several Merryweather v. collects one compensation for injury Π sues that amount is deducted from what can come from Π Δ1, Δ2 release of one releases all, BUT covenant to not sue (settlement) reduces Π Δ1 damages by settled amount, not proportion of loss caused by settling Δ Several has separate action against each each is only responsible for his share of the Π Δ, Δ loss CA statute several liability for non-economic (pain and suffering) damages – Indemnity vs Contribution RST §886 if settles with can go after for contribution IF has no – Π Δ1, Δ1 Δ2 Π claim (or released claim) against Δ2 even division of loss apportionment Pro rata –
Contributory Negligence RST §463 – Π’s negligence contributes proximately to his injuries Complete bar to recovery Last Clear Chance – duty to mitigate (Butterfield v. Forrester – riding fast, hits pole across the road) Δ must show cause in fact and proximate cause – i.e. speeding in car does not contribute to someone running a red light and broadsiding you Assumption of Risk Primary Express – via K or waiver Both parties must be on equal footing, no willful or wanton misconduct Implied – Can be presumed under the circumstances Δ owes no duty to Π the circumstances The flopper – non-latent hazard Lamson – Employee complains then continues to work RAE – the less safe axe rack is faster for a skilled worker Secondary Akin to contributory negligence Π sees Δ’s negligence and chooses to continue Comparative Negligence Pure – 13 states – apportion according to relative Li v. Yellow Cab – also established joint liability to multiple Δ (one settles, everyone else is on the hook for the whole remainder) Modified “Threshold” 21 states – Π must be ≤ 50% at fault 9 states – Π must be < 50% at fault NOTE – large discontinuity at the point where many cases end up HIGH ERROR COST WITH NORMALLY DISTRIBUTED DATA Admiralty – pro rata NOT IN USE BUT RAE LIKES IT Equal apportionment to everyone irrespective of blame LOW ERROR COST WITH NORMALLY DISTRIBUTED DATA & JOINT TORTFEASORS Joint and Several Merryweather v. Π collects one compensation for injury Π sues Δ1, that amount is deducted from what can come from Δ2 Π release of one releases all, BUT covenant to not sue Δ1 (settlement) reduces damages by settled amount, not proportion of loss caused by settling Δ Several Π has separate action against each Δ, each Δ is only responsible for his share of the loss CA statute – several liability for non-economic (pain and suffering) damages Indemnity vs Contribution RST §886 – if Π settles with Δ1, Δ1 can go after Δ2 for contribution IF Π has no claim (or released claim) against Δ2 Pro rata – even division of loss apportionment
Torts_Epstein_Fall_2011.docx