Torts Defenses Forum

[AryanBarbarian82]

Promise this is the last question I will create a topic for;

Was wondering if anyone could tell me what the general defenses for torts I need to know are. My issue is that I know most of the concepts in my class, I just don't know where to apply them. Like when in an exam would i need to say comparative fault instead of contributory negligence or joint and several liability?

Thanks!

[kaiser]

What class do you mean? You are doing a summer class? And I'm sure this is something that will be covered in depth

[AryanBarbarian82]

I'm in a summer intentional torts class. It has been covered in depth. I understand that comparative fault and contributory negligence are defenses that can be raised against a plaintiff who is suing for negligence. In addition to comparative fault and contributive negligence, I know there are other defenses. It would be very helpful if I could get a list of these defenses down. For example, on the final, I am planning on using somewhat of a mental checklist to asses someone's liability, it will probably look like this;

1. Duty- was there a duty owed
2. Breach- was that duty breached
3. Actual harm- was the defendants alleged negligence the actual cause of the injury
- Would it have occured "but for" the negligence
- Negligence per se
- Res Ipsa Loquitor
- B<PL
4. Proximate cause
- Forseeability
- Thin Skull rule
- Exceptions to forseeability
- Termination of risk
- Casual Apportionment(!!!!Don't know if plaintiff or Def uses this or how it plays into the claim!!!!)
- Contributory Negligence
-Exceptions to contributory negligence
- Comparative fault
-Assumption of Risk
5. Harm


Is this a decent list that could be used to asses negligence claims? For each of these topics listed, I undrstand the concept very well and all of the exceptions and rules that go along with them, I'm just having a hard time understanding when and where these should be brought up in a case....


Thanks so much,,,

[kaiser]

Whether contributory or comparative negligence applies depends on the jurisdiction. Contributory negligence, however, is really antiquated, and almost everywhere uses comparative responsibility (which apportions fault and reduces P's award accordingly). My guess is that, unless they specifically tell you that this jurisdiction still uses contributory negligence, that you assume comparative responsibility applies. Of course, if nothing is mentioned, it may be wise to note that the outcome may differ based on what jurisdiction we are in (assuming P is at least somewhat at fault).

Assumption of the risk is another important defense. Make sure you understand the distinctions between primary and secondary assumption of the risk.

As for your Q on when joint and several liability, that is applicable when 2 or more D's combined to cause an indivisible harm to P, such that P may seek out full recovery from any one of the D's for the injury. Though that D may then seek out contribution from the other(s). So if 2 cars both negligently crashed into P's car at exactly the same time, and caused an indivisible injury (i.e. we can't tell who specifically caused what), P can recover the full amount from either. That is the case even if the jury says that each is only 50% liable. P can get 100% from either, and that D would then seek contribution of the 50% from the other D.

[AryanBarbarian82]

Thank you very much for the response, very helpful.

So does the defendant try and evoke joint and several liability to try and lessen his liability??? See this is an issue that I am having with many of these concepts. During the trial, is it the defendant that tries to "use" joint and several liability after the claim has been made?

[bgdddymtty]

Joint and several liability simply means that in a case where more than one defendant is at fault for the plaintiff's injury, the plaintiff may collect up to the full amount from any of the defendants.

Example: D1 is 75% at fault; D2 is 25% at fault. Plaintiff's damages are $100,000.

Plaintiff can collect $100,000 from D1, $100,000 from D2, or any split in between. Of course, no matter whom he collects from, the plaintiff can only collect a total of $100,000.

If one of the defendants pays more than his share, he may sue the other defendant to collect the overage. So if D1 pays the full $100,000, he will sue D2 for a $25,000 "contribution."

[kaiser]

Thank you very much for the response, very helpful.

So does the defendant try and evoke joint and several liability to try and lessen his liability??? See this is an issue that I am having with many of these concepts. During the trial, is it the defendant that tries to "use" joint and several liability after the claim has been made?

Joint and several liability is not a claim in itself that P has to make. It is merely a scheme of damage apportionment. P's only goal is to establish the liability of the two D's. If P is unable to clearly show which D did what (as in the combined car crash above with an indivisible injury) joint and several liability will apply as a form of damage apportionment, regardless of the fault assigned by the jury. Again, if the jury says each D was 50% at fault, that does not mean each D is only liable for 50% of the damages suffered by P. Both are 100% liable for the damages (though of course P cannot recover double).

P's job is done simply by establishing the liability of the D's, and joint and several liability will flow from the circumstances if necessary.

[5ky]

This thread is just people studying for the bar flocking to answer, so kaiser, can you go ahead and explain the difference b/w primary and secondary assumption of the risk. I've been having trouble w/that for barbri

[UnderrateOverachieve]

I'm in a summer intentional torts class. It has been covered in depth. I understand that comparative fault and contributory negligence are defenses that can be raised against a plaintiff who is suing for negligence. In addition to comparative fault and contributive negligence, I know there are other defenses. It would be very helpful if I could get a list of these defenses down. For example, on the final, I am planning on using somewhat of a mental checklist to asses someone's liability, it will probably look like this;

1. Duty- was there a duty owed
2. Breach- was that duty breached
3. Actual harm- was the defendants alleged negligence the actual cause of the injury
- Would it have occured "but for" the negligence
- Negligence per se
- Res Ipsa Loquitor
- B<PL
4. Proximate cause
- Forseeability
- Thin Skull rule
- Exceptions to forseeability
- Termination of risk
- Casual Apportionment(!!!!Don't know if plaintiff or Def uses this or how it plays into the claim!!!!)
- Contributory Negligence
-Exceptions to contributory negligence
- Comparative fault
-Assumption of Risk
5. Harm


Is this a decent list that could be used to asses negligence claims? For each of these topics listed, I undrstand the concept very well and all of the exceptions and rules that go along with them, I'm just having a hard time understanding when and where these should be brought up in a case....


Thanks so much,,,

Negligence is not an intentional tort...

[kaiser]

I'm in a summer intentional torts class. It has been covered in depth. I understand that comparative fault and contributory negligence are defenses that can be raised against a plaintiff who is suing for negligence. In addition to comparative fault and contributive negligence, I know there are other defenses. It would be very helpful if I could get a list of these defenses down. For example, on the final, I am planning on using somewhat of a mental checklist to asses someone's liability, it will probably look like this;

1. Duty- was there a duty owed
2. Breach- was that duty breached
3. Actual harm- was the defendants alleged negligence the actual cause of the injury
- Would it have occured "but for" the negligence
- Negligence per se
- Res Ipsa Loquitor
- B<PL
4. Proximate cause
- Forseeability
- Thin Skull rule
- Exceptions to forseeability
- Termination of risk
- Casual Apportionment(!!!!Don't know if plaintiff or Def uses this or how it plays into the claim!!!!)
- Contributory Negligence
-Exceptions to contributory negligence
- Comparative fault
-Assumption of Risk
5. Harm


Is this a decent list that could be used to asses negligence claims? For each of these topics listed, I undrstand the concept very well and all of the exceptions and rules that go along with them, I'm just having a hard time understanding when and where these should be brought up in a case....


Thanks so much,,,

Negligence is not an intentional tort...

Lol, I missed that

[kaiser]

This thread is just people studying for the bar flocking to answer, so kaiser, can you go ahead and explain the difference b/w primary and secondary assumption of the risk. I've been having trouble w/that for barbri

Sure, I'll give it my best shot:

Primary assumption of the risk is when P engages in an activity with inherent risks, such that D owes no duty to protect P from the inherent risks of the activity. For example, if P plays in a rec hockey league, he primarily assumes the inherent risks involved in the game, and the league owes no duty to protect P from those inherent risks. Thus, a successful defense of assumption of the risk would preclude P's recovery, since no duty would be owed as to the risk at issue. Primary assumption of the risk most often arises with recreational and sporting activities (I believe a notable case also involved a carnival attraction that involved inherent risks).

Secondary assumption of the risk differs in that D was NOT relieved of his duty at the onset, as with primary assumption of the risk. Rather, D breaches the duty owed to P. But P, upon seeing and realizing this breach, still chooses to undertake and face the risk of which he is aware. This functions to lower (or possibly eliminate) P's recovery. Thus, secondary assumption of the risk largely merges with the concept of comparative responsibility. Unlike primary assumption of the risk, secondary can arise in essentially any context (so you wouldn't look for recreational/sporting indicators to spot it).

[I.P. Daly]

For example, on the final, I am planning on using somewhat of a mental checklist to asses someone's liability

Good plan. I like it.

[AryanBarbarian82]

Awesome, that really clears it up for me, really appreciate it!!!