#11380 - Meaning Of Negligence Plaintiff’s Conduct And Its Effects - Long Torts Outline

Meaning of Negligence: Plaintiff’s Conduct and its Effects

1. Contributory Negligence- Virginia Is a Contrib. Neg State

   1. Fork: Are we in a contributory or comparative negligence regime?

   2. Contributory Negligence: If P is found at all negligent, P loses

      1. 2 important factors to determine contributory negligence:

         1. What’s the context?

         2. Who is the person?

   3. Gyerman v. United States Lines Co. (p.307):

      1. Plaintiff was injured while unloading fishmean stacks that had been brought into the warehouse by the defendant. Before he began working, he noticed the stacks were not properly arranged and he notified the united states lines chief marine clerk, even though his union conract provided that he should stop working when in good faith he believed the work to be unsafe, and that he should convene a joint labor management committee to address the issue.

         1. Defendant argues that plaintiff was contributory negligent for continuing to work even though he was aware of the dangers.

         2. Court asks the question of “if he would have taken the steps as outlined in the labor contract, could he have prevented the accident from happening” to determine the question of contributory negligence.

            1. Court ruled that defendant did not meet its burden of proving that plaintiff’s contributory negligence was a proximate cause of his injuries.

         3. Gyerman is an example of contributory negligence that has two features:

            1. P is in a circumstance where she is not in a good position to take care for herself (she is an employee and her only alternative is to stop working)

               1. Key feature of the case: P was party to a union contract, she had power to apply and did not.

            2. Who is the plaintiff? She is an expert, she must have known.

   4. LeRoy Fibre v. Chicago, Milwaukee & St. Paul Ry (p.316)

      1. Plaintiff stored stacks of straw on its own land about 70 feet from railroad tracks. One day, a high wind carried sparks from a passing train and lit the flax on fire. Trial court found plaintiff contributory negligent for placing the flax within 100 feet of the railroad’s right of way

         1. Holmes: A well managed train creates an obligation on the land owner to move her flax

            1. Plaintiff must move flax past the point where it would be burned by a well-managed train

               1. That is, plaintiff is required to use his land according to how someone uses theirs

               2. There is a way in which defendant can harm plaintiff without paying, so now plaintiff has to engage in a “defensive use of his land”

               3. Holmes wins in how we treat this currently

         2. Mckenna: “That one’s use of his property may be subject to the servitude of the wrongful use by another of his property seems an anomaly”

   5. Smithwick v. Hall (causation and contributory negligence)

      1. Plaintiff was working on a narrow platform erected in front of the defendant’s icehouse. Defendant foreman warned plaintiff to stay away from the east side of the platform because it had no railing and he feared he might slip on the ice.

         1. Plaintiff disregarded that instruct, but was hurt when the east portion of the icehouse buckled.

            1. Defendant’s contributory negligence in maintaining the icehouse was conceded, but the plaintiff’s contributory negligence was not treated as causally relevant because the resulting harm was not “within the risk”, that is, the class of events that made it dangerous for the plaintiff to venture to the east side. Other Contributory Negligence Cases?

2. Assumption of Risk

3. Assumption of risk: is just another way of saying D was not negligent or that D was already negligent but P was negligent in knowing the risk and continuing anyways.

   1. With a small amount of obvious risk to the plaintiff, it might be that defendant is not negligent at all

      1. Murphy v. Steeplechase Amusement Co. (p.338)

         1. Plaintiff sued after he sustained injuries on “the Flopper”, alleging:

            1. There was a jerk

            2. The ride was too fast (unsafe)

            3. There was no railing

            4. There was unpadded wood on the sides of the ride

         2. Court states that the risk was invited and forseen, and cites “volenti non fit injura”= to a willing person, injury is not done.

            1. i.e. one who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ballgame the chance of contact with the ball.

   2. Even if defendant is negligent, plaintiff may be in the best position to avoid the harm

      1. Meistrich v. Casino Area Attractions (p.343)

         1. Plainitff fell while skating on the defendant’s ice rink. Plaintiff’s evidence showed that defendant departed from the usual procedure in preparing the ice, with the result that it became too hard and hence too slippery for the patron of average ability using skates sharpened for the usual purpose.

            1. Court held that a jury could find the plaintiff carelessly contributed to his injury when, with that knowledge, he remained on the ice and skated cross hand with another.

               1. Case turns on should the plaintiff have known about the risks with the ice (can he tell)? Ex. Little johnny would win the case because there is no way he could have been able to tell the ice was faulty or should have known it was. Michelle Kwan would lose because she should have known

               2. “A sprinkling of liability”- over the range of cases, this standard works. In some cases, D will be negligent, in others he will not

            2. Primary Assumption of Risk: defined in the opinion: Alternative expression for the proposition that defendant was not negligent, i.e. either owed no duty or did not breach the duty owed.

            3. Secondary Assumption of Risk: defined in the opinion: Affirmative defense to an established breach of duty. Plaintiff assumed the risk is an affirmative defense to an established breach of duty.

               1. Assumption of Risk should only be used for secondary assumption of risk

   3. In instances of extreme risk, it might be required to have explicit or written waiver

   4. If the risk is large enough, no waiver is going to do

   5. Other Assumption of Risk Cases?

   6. “Letting Down Your Guard”

      1. Maisonave v. Newark Bears: Plaintiff was struck in the face by a foul ball as he stood before a vending cart operated by the defendant gourmet dining service, which had a concession contract from the team.

         1. Defendant positioned the...