Torts II

Defenses Based on Plaintiff's Conduct

• Contributory Negligence

  Contributory negligence completely bars recovery when the plaintiff was himself negligent.

  Contributory negligence does not apply when the defendant's conduct was intentional, willful or wanton, but it does apply to violation of statute.

  Contributory negligence is the minority rule, only being applied in four states and D.C.

  Contributory negligence's cause in fact uses the substantial factor test.

  Contributory negligence must also be proximate, although this is rarely an issue.

  Contributory negligence is similar to mitigation of damages but is based on actions causing the harm, not merely increasing the damages afterwards.

  Contributory negligence's essence is negligence; it does not require actual knowledge like implied assumption of risk.

  Contributory negligence was established in Butterfield.

  Last Clear Chance

  Under the last clear chance doctrine, when both sides' negligence contributed to an accident, the party that had the last clear chance to avoid the accident is the one that is liable.

  It was created in Davies v. Mann.

  If used, it changes the rule of contributory negligence by only considering the plaintiff negligent when he was the one with the last clear chance to avoid the accident.

  It is codified in the Restatement Second of Torts §§ 479–480.

• Comparative Negligence

  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:

  1. Pure Comparative Negligence

     Twelve states use pure comparative negligence, which just always reduces the plaintiff's recovery by the percentage that he was negligent.

  2. Not as Great as Modified 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.

  3. Not Greater Than Modified Negligence

     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.

     This is often called the 49% Rule or 51% Rule.

  4. Slight Modified Negligence

     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.

• Assumption of Risk

  A plaintiff can assume the risk for his actions, thereby removing liability from the defendant. They can do this expressly or implicitly.

  Express Assumption of Risk

  In determining whether a plaintiff expressly assumed a risk, there are issues:

  1. Whether the risk that injured the plaintiff fell within the unambiguous terms of the agreement
  2. Whether the contract violates public policy

  Gross negligence will also still make an express assumption of risk unenforceable.

  Implied Assumption of Risk

  Implied assumption of risk requires:

  1. Actual knowledge of the particular risk
  2. Appreciation of its magnitude
  3. Voluntary encountering of the risk

  Some jurisdictions have merged implied assumption of risk into the defense of contributory negligence and the principles of comparative negligence.

  Open and Obvious Danger

  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.

  A majority of states have eliminated open and obvious danger as a bar to recovery and have the jury consider it as a factor in the larger comparative negligence analysis.

• Statute of Limitations

  Statutes of limitations bar claims after a specified period of time after the claim accrues.

  Accrual

  Usually a claim accrues at the time of the injury.

  Discovery Doctrine

  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.

  The majority applies the discovery doctrine in all medical malpractice cases.

  Under the discovery doctrine, the claim accrues when the plaintiff first discovers some form of actionable harm, not when he learns the fullest manifestation of the harm.

  • This is excepted to in asbestos cases, where a plaintiff can sue again when diagnosed with a separate injury.

  If a tort is continuing—such as continuing treatment in medical malpractice or in continuing relationships with domestic violence—the claim accrues when the tort ceases to continue.

  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.

  Borrowing Rule

  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.

  Tolling

  A statute of limitations can be tolled to stop the running of the time one has to file suit for a claim.

  A statute of limitations is usually tolled by statute.

  Common times a statute of limitations is tolled are for minors, other incompetent people, fraud where the defendant's identity is unknown, and suing sovereigns.

  Statute of Repose

  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

  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.
  • Familial Immunity

    Interspousal Immunity

    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.

    Parental Immunity

    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
    • Emancipation
    • 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

    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.
  • Sovereign Immunity

    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.

    • Cities do not have sovereign immunity for their proprietary functions.
    • Some jurisdictions do not give sovereign immunity if the city has liability insurance, instead permitting recovery for the amount of the insurance.
    • Some jurisdictions do not give cities any sovereign immunity.

    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 Act

    Discretionary acts are those where the government is acting to establish policy.

    Many states and the federal government have eliminated immunity for ministerial acts but retained it for discretionary functions.

    Ministerial Act

    Ministerial acts are those where the government is acting to enforce already-established policy.

    Many states and the federal government have eliminated immunity for ministerial acts.

    Federal Tort Claims Act

    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.
    • Feres Doctrine

      The Feres Doctrine prohibits recovery for claims arising out of or in the course of activity incident to any active duty service.

    • 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.