#8861 - Affirmative Defenses - Tort Law

Affirmative Defenses

1. Defenses Based On Plaintiff’s Conduct

1. Contributory Negligence

Originally even slight negligence would completely bar recovery from a defendant.

Court hated and played around with, most completely abandoned for some form of comparative negligence.

Only 4 states still use contributory negligence which bars recovery unless defendant acted in gross negligence or “last clear chance” (could have avoided or stopped)

2. Comparative Negligence

1. Pure Form

Plaintiff’s damages are reduced in proportion to the percentage of negligence attributed to him.

If his negligence is 10% and the total damages are $100,000, he will get $90,000 or 10% less than total amount.

2. Modified Form

1. does not exceed, can be < or = to defendants negligence. Once goes above 50% or 51% then can’t recover. MAJORITY

b) is less than defendants negligence, is < defendants negligence 49% is okay.

Legislatures more likely adopt modified form

Judicial and Scholars more likely favor pure form

13 states follow pure form

33 states, strong majority have one of the modified forms

Factors for Assigning Shares of Responsibility:

-The nature of person’s risk-creating conduct, including awareness or indifference to risks created by conduct and any intent w/respect to harm created by conduct, and

-The strength of the causal connection between the person’s risk-creating conduct and the harm.

3) The Nuances of Comparative Negligence

a) Last Clear Chance

no longer independent doctrine, only a factor for jury to look at in deciding the % of fault to be assessed against defendant. It negates contributory negligence to allow plaintiff to recover. Pretty much obsolete.

Types: Unconcious (discovered or undiscovered)

Conscious

b) Comparative Negligence Meets Joint & Several Liability

c) Comparative Negligence as a Defense to Intentional or Reckless Conduct

Most courts allow jury to consider factor of recklessness in deciding % of fault compared with the defendant.

With intentional tortious conduct, most courts don’t allow reducing the plaintiffs recovery based on her comparative fault.

d) Rape Cases and Comparative Fault

Can sometimes see reduced recovery.

e) Allocating Fault Among Multiple Parties

In most all states the plaintiff fault is to be compared with the total fault of all the defendants, and not each individually.

This is only an issue under modified form of comparative negligence.

f) Rescue and Comparative Fault

Most courts hold that rescuers negligence in effecting rescue should not reduce their recovery by the % of their negligence unless, her negligent conduct is gross or is willful and wanton.

g) Crime and Comparative Fault

Varies from state to state but sometimes can see reduced...