Defenses Based on Plaintiff's Conduct
Contributory negligence completely bars recovery when the plaintiff was himself negligent.
Contributory negligence must also be proximate, although this is rarely an issue.
It was created in Davies v. Mann.
It is codified in the Restatement Second of Torts §§ 479–480.
Comparative negligence reduces a plaintiff's recovery when he was also negligent.
The majority of states have some type of comparative negligence.
There are four types of comparative negligence:
Twelve states have a modified form of comparative negligence that reduces the plaintiff's recovery by his percentage of fault as long his fault is "not as great as" the defendant's. If the plaintiff's negligence is equal to or greater than the defendant's then recovery is completely barred for him.
This is often called the 50% Rule.
Twenty-one states have a modified form of comparative negligence that reduces the plaintiff's recovery by his percentage of fault as long his fault is "not greater than" the defendant's. If the plaintiff's negligence is greater than the defendant's then recovery is completely barred for him.
South Dakota has a modified form of comparative negligence that reduces a plaintiff's damages by the percentage that he was negligent as long as the plaintiff's fault was "slight" compared to the defendant's. If the plaintiff's damages is not comparatively "slight," then he is completely barred from recovery.
When there are multiple defendant, add their negligences together before comparing with the plaintiff.
A plaintiff can assume the risk for his actions, thereby removing liability from the defendant. They can do this expressly or implicitly.
In determining whether a plaintiff expressly assumed a risk, there are issues:
- Whether the risk that injured the plaintiff fell within the unambiguous terms of the agreement
- Whether the contract violates public policy
Implied assumption of risk requires:
- Actual knowledge of the particular risk
- Appreciation of its magnitude
- Voluntary encountering of the risk
In some states, when a danger is open and obvious, a person assumes the risk of harm when he deliberately chooses to encounter the risk.
Statutes of limitations bar claims after a specified period of time after the claim accrues.
Usually a claim accrues at the time of the injury.
Under the discovery doctrine,
the cause of action accrues and the statute of limitations commences to run when the patient discovers, or in the exercise of reasonable care and diligence for his own health and welfare, should have discovered the resulting injury.
- This is excepted to in asbestos cases, where a plaintiff can sue again when diagnosed with a separate injury.
If the injury happened in one state but suit is brought in another, choice of law rules provide that the statute of limitations in the state where the suit is filed is used.
Most states have "borrowing" rules, which say that if a claim arises outside of the forum state, the shorter of the states' statutes of limitations will be used.
A statute of repose is a statute that limits the time during which a claim can arise, such preventing claims from arising against aircraft manufacturers more than 18 years after the plane was sold.
A statute of repose is similar to a statute of limitations, except a statute of repose is substantive and concerns when a claim can arise, while a statute of limitations is procedural and concerns when a suit can be filed.
Immunity is an exemption from legal action.
There are many forms of immunity.
- Judicial Proceedings
- Employer Immunity
- Due to worker's compensation paying for any work-related injury, even if not the employer's fault.
Under the common law, spouses could not sue each other for tort claims.
The majority of states have completely eliminated interspousal immunity for torts.
Other states have limited it in some way.
- Most do not provide immunity for intentional torts.
- Some states allow claims for torts that occurred before the marriage.
- After a divorce, some states allow suits to be brought for claims that arose during the marriage.
- Some states only allow claims for automobile accidents.
- This is the most common type of interspousal suit.
- This can help for insurance reasons.
Even in states where suits are allowed, they are not allowed for any harm. It must be an excessive or gross abuse of normal privilege.
The majority holds that a parent is not liable for ordinary negligence in the performance of parental responsibilities.
The Restatement is similar, espousing a parental privilege.
The minority allow children to sue their parents for negligent supervision under a "reasonable parent" standard.
The overwhelming majority says that children cannot sue for negligent discipline.
Children can nearly universally sue for intentional or willful or wanton infliction of injury.
A slight majority gives absolute parental immunity, but usually parents are granted broad discretion for parental authority or supervision.
Common exceptions made to parental immunity are:
- Intentional or willful or wanton conduct
- Death of parent or child
- Automobile accidents
A step-parent can qualify for parental immunity if he was acting in loco parentis.
Parental immunity is reciprocal and also prevents parents from suing their children.
If parent and child are joint tortfeasors, they might not be allowed to sue each other for contribution. However, in comparative negligence states, the jury can compare liability in assessing damages.
Siblings have no immunity.
Charitable immunity is a doctrine that exempts charitable organizations from tort liability.
In modern times, charitable immunity has been largely rejected.
In a substantial majority of states, nongovernmental charitable institutions are liable for their own negligence and for the negligence of its agents and employees acting within the scope of their employment.
- Virginia is not part of this majority. In Virginia, a charity is immune as long as it exercised due care in hiring and retaining agents.
State agencies and instrumentalities have sovereign immunity.
However, all states also have a tort claims act, which limits their sovereign immunity.
States that waive sovereign immunity still retain it for judicial and legislative functions.
Even though cities are not sovereign, states usually provide them with sovereign immunity for their governmental functions.
Governments do not have tort liability for their police failing to protect members of the public unless they have formed a special relationship with a particular person.
A special relationship is formed when the government voluntarily assumes a duty, a person relies on the government's assurances, and the government is negligent in providing that service.
Discretionary acts are those where the government is acting to establish policy.
The Federal Tort Claims Act allows the federal government to be sued for tortious conduct.
Before suing under the Federal Tort Claims Act, all administrative remedies must be exhausted first.
The federal government can only be sued in a district court.
Strict liability does not apply to the federal government.
Exceptions to the Federal Tort Claims Act:
- Discretionary functions
- Intentional torts
- Except for law enforcement
- Only applies to the government itself—the individual agents can still be sued for their intentional torts.
- Public officers
- They are only shielded if their conduct comes within common law official immunity or an exclusive remedy provision.
- Judges and legislators
- They have absolute immunity for all acts within the scope of their office, even if done in bad faith.