Torts Live Session 10

Affirmative Defenses
1. Plaintiff’s own conduct is not beyond reproach.
2. They are: (i) contributory negligence, (ii)
comparative negligence, and (iii) mitigation of
risk.
3. The defendant has the burden of proof of the
defenses.
 Contributory Negligence
§ 463 Restatement
Contributory negligence is conduct on the part of
the plaintiff which falls below the standard to which
he should conform for his own protection, and
which is a legally contributing cause co-operating
with the negligence of the defendant in bringing
about the plaintiff's harm.
 § 465 Causal Relation Between Harm
and Plaintiff's Negligence
(1) The plaintiff's negligence is a legally
contributing cause of his harm if, but only if, it is
a substantial factor in bringing about his harm
and there is no rule restricting his responsibility
for it.
(2) The rules which determine the causal relation
between the plaintiff's negligent conduct and
the harm resulting to him are the same as
those determining the causal relation between
the defendant's negligent conduct and resulting
harm to others.
 Contributory Negligence
Butterfield versus Forrester. When the plaintiff has
brought himself upon the harm, he cannot recover
compensation. This is superseding cause.
When there is contributory negligence, any
negligence by the defendant precludes him from
recovery compensation.
It is a very harsh doctrine.
Creation on exceptions.
The Last Clear Chance Exception
The Restatement (Second) of Torts § 479 explains the
last clear chance doctrine as follows:
A plaintiff who has negligently subjected himself to a risk
of harm from the defendant's subsequent negligence
may recover for harm caused thereby if, immediately
preceding the harm,
(a) the plaintiff is unable to avoid it by the exercise of
reasonable vigilance and care, and
(b) the defendant is negligent in failing to utilize with
reasonable care and competence his then existing
opportunity to avoid the harm, when he:
The Last Clear Chance Exception

(i) knows of the plaintiff's situation and realizes or has

reason to realize the peril involved in it or

(ii) would discover the situation and thus have reason to

realize the peril, if he were to exercise the vigilance
which it is then his duty to the plaintiff to exercise.

Example: car runs out of gas and plaintiff hits it.

 Comparative Negligence
Third Restatement § 7 Effect of Plaintiff's Negligence
When Plaintiff Suffers an Indivisible Injury
Plaintiff's negligence (or the negligence of another
person for whose negligence the plaintiff is responsible)
that is a legal cause of an indivisible injury to the plaintiff
reduces the plaintiff's recovery in proportion to the share
of responsibility the factfinder assigns to the plaintiff (or
other person for whose negligence the plaintiff is
responsible).
Mcintyre v Balentine. Pure: Damages reduced by the
percentage; Modified: If the plaintiff is 50% or more
negligent, he cannot recover the proportion.
 Group Work
Assume that Aspen and Taylor were in an auto
accident. Aspen, the plaintiff, was 52%
responsible. Taylor, the defendant was 48%
responsible. Aspen suffered $100,000 in
damages. Taylor, who filed a counterclaim for
negligence, suffered $20,000 in damages.
 Group Work
• If they live in a pure comparative negligence
state, Aspen must pay Taylor ________ in
damages, and Taylor must pay Aspen ________
in damages.
• If they live in a modified comparative negligence
state, Aspen must pay Taylor ________ in
damages, and Taylor must pay Aspen ________
in damages.
Alami v. Volkswagen of America
 Alami v. Volkswagen of America

• What happened between/among the parties?

Who was negligent?
• What happened in the litigation before it
reached this court?
 Alami v. Volkswagen of America

• New York is a comparative negligence state,

so why didn’t the trial court simply allocate
the damages based on the comparative fault
of the decedent and the defendant? Why did
it dismiss plaintiff’s claim entirely?
Alami v. Volkswagen of America
• The Barker doctrine was applied. It precludes
liability under certain circumstances where the
plaintiff engaged in criminal conduct. In a sense,
it takes us back to a contributory negligence bar.
• The question is how far it should extend. For
example, there are very old cases from a time
when driving on a Sunday was illegal that held
that someone who drove on Sunday could not
recover for any harms incurred in an accident
that occurred while driving. Does that seem
right? Should a plaintiff who violates the law
have no rights against anyone?
 Alami v. Volkswagen of America

“A plaintiff cannot rely upon an illegal act or

relationship to define the defendant’s duty.”
 Barker Doctrine Examples
• Where the plaintiff employed the defendant to
provide an illegal abortion. - Duty cannot
arise from illegal relationship
• Where the plaintiff passenger and defendant
driver were joyriding. - Duty cannot arise from
illegal relationship
• Where the plaintiff was a burglar who fell on a
defective staircase owned by the defendant,
the victim of the burglary. – Duty cannot arise
from unlawful act
 Alami v. Volkswagen of America
• In contrast, in Alami, the plaintiff was the
purchaser of a Volkswagen Jetta who drove
drunk, crashed, and suffered severe injuries
because the car was unsafe. - Duty arose
from the lawful purchase of the car.
• The duty was to produce cars that would
reasonably protect drivers in crashes (at least
up to a certain level). The cause of the crash
is not relevant.
Express Assumption of Risk
If plaintiff voluntarily assumed a known risk,
should courts refuse him a right to recover?
Stelluti v. Casapenn Enterprises
Stelluti v. Casapenn Enterprises

What happened between/among the parties?

The court discusses contracts of adhesion.
What is a contract of adhesion?
Stelluti v. Casapenn Enterprises

• Adhesion Contract (n.) -- A standard-form

contract prepared by one party, to be signed
by the party in a weaker position, usually a
consumer, who adheres to the contract with
little choice about the terms. Black's Law
Dictionary (8th ed. 2004).
• Adhesion Contracts are “take it or leave it”
contracts.
Stelluti v. Casapenn
• Adhesion contracts are typically enforceable.
The exception is when they are deemed
“unconscionable.”
• In determining whether a contract is
unconscionable, a court will take a hard look
at how it was formed. The question is
typically whether someone took advantage
of unequal bargaining power to push unfair
terms upon the other party.
 Express Assumption of Risk

Describe the doctrine of express assumption of

risk.
• Based on an agreement made in advance of
two parties entering into a relationship.
• Defendant acts in reliance on plaintiff’s
promise not to hold him/her liable.
(On many levels, express assumption of risk is
comparable to the defense of consent used for
intentional torts.)
Stelluti v. Casapenn

• “Exculpatory contracts” are contracts that

relieve a party to the contract from liability for
damages if damages occur as a result of the
contracted activity.
• Think waiver!
• Some types of liability can be waived, but
others can’t. What test did the Court adopt in
determining whether the exculpatory
provision was enforceable?
Stelluti v. Casapenn
What questions does a court ask in determining if an
exculpatory provision is enforceable?
1. Is the contract “unconscionable”? Courts consider how
the contract was formed. Did the person signing the
contract have a real choice? Were the terms fair?
2. Does the contract involve a public utility or common
carrier?
3. Does the contract “adversely effect the public interest”?
4. Is the exculpated party under a nonwaiveable legal duty
to perform? Duties created by statute fall into this
category.
Stelluti v. Casapenn Enterprises

This case really focused on the issue of whether

the exculpatory agreement would adversely
affect the public interest. The Court found it
would not do so. Why?
Stelluti v. Casapenn Enterprises
• What is the difference between recklessness
and negligence?
• The court concluded that it would enforce a
contract that exculpated negligent behavior,
but not reckless behavior. Does this rule
seem reasonable to you?
• Change the facts. What type of behavior
would show recklessness?
Implied Assumption of Risk
Negligence
Blackburn v. Dorta
Blackburn v. Dorta

• What happened between/among the parties?

The casebook editors don’t tell you, so I
will.
• The suit alleged the minor defendant David
Dorta negligently operated a dune buggy
thereby causing the vehicle to overturn and
injure the minor plaintiff, a passenger therein.
Blackburn v. Dorta

The Blackburn court discussed two different

types of assumption of risk, primary and
secondary.
Blackburn v. Dorta
Primary Implied Assumption of Risk involves
“those instances in which the assumption of
risk doctrine embodies a legal conclusion that
there is ‘no duty’ on the part of the defendant to
protect the plaintiff from a particular risk. In
cases covered by primary assumption of risk,
plaintiff's recovery is ‘completely barred’
because ‘defendant's conduct did not breach a
legal duty of care to the plaintiff....’”
Beninati v. Black Rock City, LLC, 175 Cal. App.
4th 650, 657-58 (2009).
Blackburn v. Dorta
Primary Implied Assumption of Risk – “In Knight, the
plaintiff was injured at a Super Bowl party while playing
touch football with other party guests during the half-time
intermission of the 1987 Super Bowl football game. The
plaintiff sued a co-participant for negligence . . .to recover
damages for her personal injuries. A plurality of the court
ruled that the plaintiff, as a voluntary participant in a touch
football game, was barred by the doctrine of primary
assumption of risk from recovering for injuries she
sustained while engaging in this activity.”
Beninati v. Black Rock City, LLC, 175 Cal. App. 4th 650,
657 (2009).
Blackburn v. Dorta
Primary Implied Assumption of Risk – In other
words, the Plaintiff in Knight was aware of the
risk inherent in playing football and chose to
ignore it. You cannot really say that defendant
breached any duty of care to her. Plaintiff was
participating in an activity that was inherently
dangerous. Again, this is comparable to the
consent defense in a battery case.
Blackburn v. Dorta
Primary Implied Assumption of Risk – Almost
always used in the context of sports and
recreational activities.

Key: since there is no breach of duty in these

situations, you really do not need to recognize
assumption of risk as an affirmative defense.
Plaintiff cannot establish a prima facie case.
However, some states continue to recognize this
defense.
Blackburn v. Dorta
Secondary Assumption of Risk involves “those
instances in which the defendant does owe a
duty of care to the plaintiff but the plaintiff
knowingly encounters a risk of injury caused by
the defendant's breach of that duty.”

Beninati v. Black Rock City, LLC, 175 Cal. App.

4th 650, 657-58 (2009).
Blackburn v. Dorta
Secondary Implied Assumption of Risk – “’In cases
involving ‘secondary assumption of risk’—where the
defendant does owe a duty of care to the plaintiff, but the
plaintiff proceeds to encounter a known risk imposed by
the defendant's breach of duty—the doctrine is merged
into the comparative fault scheme, and the trier of fact, in
apportioning the loss resulting from the injury, may
consider the relative responsibility of the parties.”

Beninati v. Black Rock City, LLC, 175 Cal. App. 4th 650,
658 (2009)
Blackburn v. Dorta
• Secondary Implied Assumption of Risk – Example:
Someone runs into a fire negligently started by
Defendant.
• The question then becomes whether this creates a
situation where comparative negligence comes into
play.
• If the decision to run into the fire was reasonable, the
rescue doctrine kicks in and full liability is
appropriate. If the decision was unreasonable,
comparative negligence comes into play. Either way,
there is no need for an affirmative defense of
assumption of risk.
Turcotte v. Fell
 Turcotte v. Fell
• What happened between/among the
parties? What is the basis for the claims of
negligence against each of the defendants?
How did they allegedly breach their duties?
• What happened in the litigation before it
reached this court?
 Turcotte v. Fell

The Court concluded that summary judgement

was appropriate. What element did the court find
was lacking?
 Turcotte v. Fell

What did you learn about “duty” in this case?

What rule did the Court articulate?
 Turcotte v. Fell

“[W]hile the determination of the existence of a

duty and the concomitant scope of that duty
involve a consideration not only of the
wrongfulness of the defendant’s action or
inaction, they also necessitate an examination
of plaintiff’s reasonable expectations of the care
owed him by others.”

What did the Court have to say about the

consent granted in this type of sporting event?
 Turcotte v. Fell
“The risk assumed has been defined a number of ways but
in its most basic sense it ‘means that the plaintiff, in
advance, has given his . . . consent to relieve the defendant
of an obligation of conduct toward him, and to take his
chances of injury from a known risk arising from what the
defendant is to do or leave undone. The situation is then the
same as where the plaintiff consents to the infliction of what
would otherwise be an intentional tort, except that the
consent is to run the risk of unintended injury. . . . The result
is that the defendant is relieved of legal duty to the plaintiff;
and being under no duty, he cannot be charged with
negligence.’”
Mitigation of Damages
Even after a plaintiff is injured, she may fail to
take reasonable steps to avoid aggravation of
her injury and mitigate her damages.
Novko v. New York
Novko v. New York

• What happened between/among the parties?

How was defendant negligent?
• Are the parties fighting about the existence
of negligence or something else?
• What happened in the litigation before it
reached this court?
Novko v. New York

• What framework for analysis/rules did the court

adopt?
• What rulings did the court make?
• Why did it rule as it did?
Novko v. New York
“We are guided by the principle that ‘mitigation of damages is
usually thought of in the context of steps that a reasonable
plaintiff could have taken subsequent to the incident giving
rise to injuries, in order to reduce the amount of damages’
(Giannetti v. Darling, . . . 666 N.Y.S.2d 372). As a general rule,
‘a party who claims to have suffered damage by the tort of
another is bound ‘to use reasonable and proper efforts to
make the damage as small as practicable’ . . . and if an
injured party allows the damages to be unnecessarily
enhanced, the incurred loss justly falls upon him’”