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    Torts Outline

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    trvstrvs
    The document discusses the history and evolution of contributory negligence and comparative fault in tort law. It describes how contributory negligence originally barred plaintiffs from any recovery if they were even partially at fault. Over time, exceptions developed and states moved to comparative fault systems that apportion damages based on percentage of fault. The document also covers joint and several liability, assumption of risk, and key concepts in negligence law such as duty of care and causation.

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    Torts Outline

    Uploaded by

    trvstrvs
    64 views2 pages
    The document discusses the history and evolution of contributory negligence and comparative fault in tort law. It describes how contributory negligence originally barred plaintiffs from any recovery if they were even partially at fault. Over time, exceptions developed and states moved to comparative fault systems that apportion damages based on percentage of fault. The document also covers joint and several liability, assumption of risk, and key concepts in negligence law such as duty of care and causation.

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    Outline for 1L torts class

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    The document discusses the history and evolution of contributory negligence and comparative fault in tort law. It describes how contributory negligence originally barred plaintiffs from any recovery if they were even partially at fault. Over time, exceptions developed and states moved to comparative fault systems that apportion damages based on percentage of fault. The document also covers joint and several liability, assumption of risk, and key concepts in negligence law such as duty of care and causation.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    64 views2 pages

    Torts Outline

    Uploaded by

    trvstrvs
    The document discusses the history and evolution of contributory negligence and comparative fault in tort law. It describes how contributory negligence originally barred plaintiffs from any recovery if they were even partially at fault. Over time, exceptions developed and states moved to comparative fault systems that apportion damages based on percentage of fault. The document also covers joint and several liability, assumption of risk, and key concepts in negligence law such as duty of care and causation.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    of 2

    Contributory Negligence

    In early 1800s rule, contrib. neg. rule developed whereby a P who (1) failed to exercise reasonable care for his own
    safety (2) with said failure having a sufficient causal connection with his harm (3) could not recover a dime from Ds
    he sued for negligence.
    Even if Ps fault was much less than Ds.
    Reasons: court then were hostile to Ps who came into court w/ unclean hands.
    Contrib. Neg. provided useful way for courts to take cases from juries, which they sometimes wanted to do.
    Contrib. Neg. fit in well w/ the all-or-nothing mentality of the era rough justice.
    However, some results were bad, so a few things changed
    Courts still allowed some cases involving strong contrib. neg. arguments to go to jury, where the verdict was
    a sum minus amount for Ps own fault.
    Courts developed doctrine of last clear chance.
    If P was in a position of helpless peril due to its own negligence and D had the last clear chance to
    avoid accident, but failed to take advantage of that chance, P would be permitted to recover
    notwithstanding Ps own negligence.
    Whereas P originally bore burden of establishing P was faultless, over time burden switched to D to prove by
    preponderance of evid. that P was negligent and that said neg. sufficiently contributed to the accident.

    Comparative Fault (46 states)
    Pure Comparative Fault (abt. 13 states) P awarded amount minus amount for Ps neg. as decided by TOF. If 99%
    neg. P, gets 1% damages.
    Modified Comparative Fault (major. Of states) two approaches
    P can recover full award as long as Ps neg. is less than 50%.
    P can recover full award as long as Ps neg. is not more than Ds.

    Joint & Several Liability
    Each D responsible for a Ps (indivisible) harm are responsible for the entire damages award associated with the
    harm, so that P can obtain a full recovery from any liable D.
    Ps total recovery cannot exceed 100% of damages.
    At same time, if one D pays P entire amount of indivisible damages, it can normally seek contribution from the
    other Ds.
    Contribution used to not exist, but has been added for fairness reasons in most states.
    Policy: - Its less unfair for a negligent D to pay too much than for an innocent, injured P to recover too little.

    Several Liability
    Means that a D need only to pay a share of total damage award, though given certain facts, that award may go up
    to 100%.

    Express Assumption of the Risk
    Applies in situations where P has expressly relieved D, in advance, from duty of care to protect P. Typically incorporated
    within written agreement, but oral release also may be valid in limited circumstances.
    Main issues of releases:
    1. Scope and clarity of the release
    2. Whether P consented to the release.
    3. Whether court will find the release unenforceable on public-policy grounds.
    4. Gross negligence can never be released in advance.
    Primary Implied Assumption of the Risk
    Secondary Implied Assumption of the Risk

    Negligence
    Duty
    Utmost Care only for common carriers
    Common Carriers: an entity which holds itself to the public generally and indifferently to transport
    goods or persons from place to place for profit. (i.e. railroads, buses, stage coaches, cable cars, taxicabs, elevators,
    airplanes, ski lifts, guided tours by mule train, etc.)
    Reasonable
    BvPL (Hand Formula) Burden of precautions v. Probability of damage x Loss (injury)
    Carroll Towing
    Reasonable Person Standard assumed to have
    Substantial Risk
    No Care
    Breach
    BvPL (Hand Formula) -
    Causation
    But-for
    Proximate
    Damages

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