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Traditional common law of contributory negligence
Negligent plaintiff in being a factual and legal cause of his/her own negligence acts as a complete bar to plaintiff''s recovery
Imputed Contributory Negligence
When plaintiff is held accountable in terms of assessing responsibility for an injury for the negligence of someone else
When Does Imputed Contributory Negligence Apply?

  • Both Ways Rule

  • When the plaintiff''s cause of action is derivate - based on an injury to someone else

Both Ways Rule
When plaintiff would be vicariously liable for the negligence of someone else, if the plaintiff was the defendant, then the imputed contributory negligence rule apples
Examples of Both Ways Rule

  • Employer/employee

  • Joint venture or enterprise

  • Independent contract (non-delegable duty)

When a Plaintiff''s Cause of Action is Derivate - Based on the Injury to Someone Else

  • Bystander

  • Consortium (White v. Lunder) - husband''s claim arises from injury to wife

  • Parent''s claim to medical expenses for injury to child

  • Wrongful death or survival action

Comparative Negligence
Liability is apportioned or shared, according to assessment of responsibility or fault
Pure Comparative Negligence
Plaintiff may recover in the amount of percentage of the responsibility of the defendant for the accident after apportioning the responsibility of the plaintiff and defendant
States With Pure Comparative Negligence

  • Louisiana

  • Mississippi

  • Florida

Modified Comparative Fault

  • 51% Rule (Wisconsin)

  • 50% Rule (Majority)

51% Rule (Wisconsin)
Plaintiff may be allowed to recover if plaintiff''s negligence is not greater than (but can be equal to) the defendant''s negligence
50% Rule (Majority)
Plaintiff may be allowed to recovery if plaintiff''s negligence is less than (but not equal to) defendant''s negligence
Failure to Mitigate (after injury to prevent injury from getting worse)
  • Bars recovery for failure percentage reduction
  • Question - what would a reasonable person have done after the occurrence of the defendant's negligence to reduce the effects of that injury
Dare v. Souble (Failure to Mitigate)

  • Failure to wear a seatbelt or motorcycle helmet is not enough to establish contributory negligence or reduce of plaintiff''s damage

Rationale Behind Dare v. Souble
  • Defendant should not be able to diminish the consequences of his/her negligence because an innocent party failed to predict defendant's wrongful conduct
  • Avoid battle of experts
  • Avoids allowing the defendant to escape full consequences of his/her negligent conduct
Products Liability
Liability for harm caused by defective products
Duty of Products Liability

  • Generally rule applies to user and bystanders (unless they are determined to be unforeseeable as a matter of legal cause) as plaintiffs

  • As defendants, persons in commercial chain of distribution (manufacturers, wholesalers, and retailers)

Three Types of Defects

  • Manufacturing

  • Design

  • Warning


  • Negligence is an alternative

  • Product must be in the condition that it was in when it left the manufacturer''s control - defect must have existed at that time


  • 402 A (strict liability)

  • Restatement third

402 A - Design Defect

  • Consumer expectation

  • Risk/utility in hindsight

Consumer Expectation

  • more dangerous than contemplated by an ordinary consumer who purchases with the common knowledge of the community

  • Bars recovery for open and obvious dangers even if the manufacturer could efficiently eliminate the danger

  • Manufacturers and sellers dislike this rule because it''s strict liability and holds them liable for dangers that they could not have reasonably known about at the time the product was distributed or sold

Risk/Utility in Hindsight

  • Definition - knowing what they know now about the danger, given the state of the art at the time of distribution (industry custom and practical and technological limits), would a reasoanble manufacturer have put the product on the market?

Factors of Risk/Utility (FUNCEL)

  • Feasibility of the alternative design

  • Usefulness

  • Nature of the danger

  • Cost of improved design

  • Effect of design change of product cost and utility

  • Loss spreading through pricing

Restatement 3d

  • Foreseeable dangers

  • Reasonable alternative design

Reasonable Alternative Design Factors

  • Cost and performance issues

  • Risk/utility analysis

  • Foreseeability of the dangers

  • Technologically feasible

Warning Defect

  • Risk/utility in hindsight test (minority)

  • Negligence test (majority)

Negligence Test for Warning Defect

  • Was the danger known or should have been known?

  • Was the warning adequate?

Breach for Products Liability

  • True strict liability - question of whether the defect existed

  • Negligence - traditional breach analysis (look me up)

  • Design using consumer expectation or risk/utility - question needs to be asked and answered whether the defect existed

  • Negligence in accordance to warning and defect - traditional breach analysis

Cause in Fact for Products Liability

  • But for the negligence

  • But for the defect

Legal Cause

  • Generally not an issue unless the planitiffs or the use of the product was unforeseeable

Duty for Medical Malpractice

  • Professional standard of care

Professional Standard of Care for Medical Malpractice

  • Minimally competent doctor

Duty for Medical Malpractice: Expert Testimony

  • Determines what the professional standard of care

  • Must be familiar with the defendant''s specialty or be in a specialty that has substantially identical standards of care as the defendant''s

  • Their opinion is irrelevant

Two Questions to Be Asked of Expert Testimony

  • What was the applicable standard of care?

  • Did the defendant fail to meet the applicable standard of care?

Informed Consent - Battery

  • No consent and the touching was intentional and harmful

Informed Consent - Negligence

  • Consent but there was an inadequate disclosure of risk

Informed Consent - Negligence: Physician and Patient Centered

  • Physician centered - what''s customary of a person that practices in that area

  • Patient centered - what would a reasonable patient would consider material to be disclosed

Things to Be Disclosed (UNWNBA)

  • Uncertainty of results

  • Nature of condition

  • Whether the results are reversible

  • Nature of probability of the risk

  • Benefits expected

  • Alternative procedures

Doctrine of Implied Consent

  • You''re unconscious and need lifesaving treatment but you can''t consent

  • Doctor can use doctrine of implied consent to give the operation/treatment

Breach for Medical Malpractice
  • Expert testimony: Did doctor fail to meet applicable standard of care?
  • Informed consent: Did the doctor fail to obtain informed consent?
Cause in Fact for Medical Malpractice
  • Injury caused by doctor's failure to follow the applicable standard of care?
  • Injury caused by doctor's failure to obtain informed consent
Objective: show that a reasonable patient would not have undergone the treatment/procedure if s/he had been properly informed

Legal Cause for Medical Malpractice
  • Hard to prove foreseeability
  • You can just say legal cause is not a dispute in this case
Three Main Types of Damages
  • Nominal
  • Compensatory
  • Punitive
Nominal Damages
  • A trivial sum awarded to a person who's rights have been violated in a tortious manner
  • Person has not established compensatory damages
When Nominal Damages Are and Are Not Awarded

  • Not awarded for negligence or strict liability

  • Awarded for some intentional torts: battery, assault, false imprisonment, & trespass to land

  • Not awarded for some intentional torts: IIED, trespass to chattel, & conversion

Definition of Compensatory Damages

Are intended to restore the plaintiff to the position s/he would have been in if they had not been injured
Physical Harm
  • Land
  • Chattel
  • Consequential damage
Compensatory Damages: Land
  • Diminution of value or reasonable restoration costs plus rental value for loss of use
Compensatory Damages: Chattel
  • Destroyed/Converted - fair market value of chattel at the time and place of conversion
  • Damaged - diminution of value (repair costs are looked at but not the final measure)
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