Negligence

Joint Tortfeasor Liability Contributory Negligence

The most common defenses to negligence are contributory/comparative negligence and assumption of risk. These defenses developed at common law, and they clearly benefit a defendant accused of negligence. Courts put the burden of pleading and proof of the affirmative defense such as contributory negligence on the defendant.

What is Contributory Negligence?

Contributory negligence is conduct by the plaintiff that contributes, as a legal cause, to the harm he or she suffered. The conduct falls below the standard to which a person is required to conform to for his or her own protection. Even though a defendant has been negligent and would otherwise be liable, the plaintiff may be denied recovery because of his or her own conduct. Related to the doctrine of contributory negligence is the rule of “avoidable consequences,” which denies recovery for any damages that could have been avoided by the reasonable conduct of the plaintiff. The rule of avoidable consequences is triggered after a legal wrong has occurred, but while some damages may still be averted; recovery is barred for those damages that could have been averted.

Contributory negligence by the plaintiff at common law was typically a complete bar to the plaintiff’s action for any negligence of the defendant.

Contributory Negligence. vs. Comparative Negligence

While contributory negligence may act as a complete bar to a plaintiff’s recovery, comparative negligence seeks to apportion fault and damages in proportion to the respective fault of each party. Comparative negligence largely does away with the “black or white”, “all or nothing” approach to damages that was traditionally used in negligence cases. The plaintiff pays only for the losses which his negligence has actually caused, and the defendant is compensated for all the damage to himself that can fairly be attributed to the fault of the defendant.

 
Negligence Defenses

Joint Tortfeasor Liability
Joint and several liability. Single Injury Rule: When 2 parties are each liable to another for the same injuries they are deemed to be jointly liable. What is the effect of jointly and severable liability? It means that both parties are legally liable to the plaintiff for the full amount.

Contributory NegligenceLast Clear Chance Doctrine
The doctrine of last clear chance was discussed in 1842 in the English case of Davies v. Mann, in which the plaintiff left his ass (Donkey) on a highway, and the defendant crashed into the plaintiff’s ass (Donkey). The court held that the plaintiff might recover, notwithstanding any negligence of his own, if the defendant could have avoided hitting the animal. See 152. Eng.Rep. 588 (1842). This rule may have been created to alleviate the harshness of the contributory negligence defense.

Duty To Mitigate Damages

The Plaintiff has an affirmative duty to mitigate their damages. This means that plaintiff has to exercise reasonable care to mitigate plaintiff's damages.

Negligence In General

Negligence law is a major compenent of tort law and a cornerstone of personal injury law. The requisite elements of Negligence are 1. Duty 2. Breach 3. Proximate Cause 4. damages.

 

 

 

 
 
Assumption of Risk
Assumption of Risk

Assumption of Risk
Assumption of Risk is a Defense to Negligence. Assumption of risk may mean that the plaintiff has given his express consent, in advance, to relieve the defendant of an obligation of conduct toward the plaintiff, and to take the chance of injury from a known risk arising from what the defendant is to do (or not do). This is essentially the same as when a plaintiff consents to the infliction of what would otherwise be an intentional tort, except that the consent is to take the risk of an unintended injury. It is to take a chance, rather than to accept a greater certainty of intended harm. The result is that the defendant is relieved of a legal duty to the plaintiff, and therefore the defendant cannot be charged with negligence. Assumption of risk may also mean that the plaintiff voluntarily entered into a relationship with the defendant with knowledge the defendant will not protect him against future risks which may arise from the relationship. Finally, assumption of risk may mean that the plaintiff is aware of a risk that has already been created by the negligence of the defendant, yet the plaintiff chooses to voluntarily proceed to encounter that risk. The plaintiff’s voluntary choice may mean that the plaintiff accepted the situation and has consented to relieve the defendant of his duty.
 
 
Torts

Wrongful Death.
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