Defenses to Tort Claims – Torts


Torts – Defenses

Defenses to Tort Claims
Look at the Duty Owed by the D!!!
Dont look at the Plaintiffs Assumption of Risk
No Duty For Sports Doctrine
Judge made rules for particular types of activities
Thats what court does with the intentional injury recklessness rule acting
Players have a duty not to intentionally injure
First Question
Is there a sport?
Intentional injury reckless rule is based on the nature of the sport like baseball or soccer
And based on the defendants role in or relationship to the sport
Different Categories of Defendents
Knight no duty
Touch football
Players no duty except
Kahn
No recklessness
If we place a duty on coaches it will Chill
Coaches wont challenge or push them
Sports Facilities
Do owe care in some jurisdictions, Baseball bat case
Dont owe duty in other jurisdictions SKI Area
Policies dont seem to apply in facilities owners cases
Manufacturers
Even less likely to have a duty (courts havent addressed)
SKI Area
No duty to eliminate or protect the plaintiff against risk inherit in the sport
FACT Ski tower was visible for 200 yds
NOT A SET RULE JUST A STANDARD FOR PARTICULAR FACTS
When the FACTS CHANGE then IT is different
Facts go to the jury unless they can only come to one conclusion
INHERIT risk (Primary Assumption of Rislk)
AFTER FINDING A DUTY AND BREACH
Then you have to look at comparitive negligence (Secondary Assumption of Risk)
Reward reduced by any negligence on P part
HYPO!
Walks on to the land case
Traditional landowners no care
CA they owe due care
Someone mugs them? owe certatin duty?
Sports rule, no duty? maybe?

Assumption of Risk
Plaintiff had knowledge of the risk, voluntarily accepted, an indication that the plaintiff has accepted the risk
Assumption of risk Can be expressed, or implied based on the conduct. (rescuing baby from a fire, you cant recover if you are hurt)
Assumption of risk can be reasonable or unreasonable. (Rescuing an iPod from fire, can overlap with to contrib negligence)
Contributory Negligence
Unreasonable conduct
You dont have to know of the risk, its enough that you should have known.
Prior chapters show the steps sufficiant to establish fact unless disproved or rebutted (prima facie case) that a P must present to establish libility for negligence
The most common defence to this is “contributory negligence”
well established by 1850 the time of Brown v Kendal (Dog and stick)
The common law elements to prove contributory negligence are the same a sbasic negligence except that the duty is owed to yourself
  • In Brown v Kendall the P had to prove he was NOT contributorily negligent
  • Now almost all courts have switched that burden and the D must prove that P WAS contributorily negligent
  • Contributory negligence must be the proximate cause
    • If P gets on a shaky platform after being told not to and then gets hit in the head by a paint bucket from above
      • D is still liable becasue P contributory negligence didnt cause the paint bucket to fall
      • Traditionally if you were found contributorily negligent you could not recover at all!!
see Flopper Case


Li v Yellow Cab sup 24
Abolished Contrib
And adopted COMPARITORY NEGLIGENCE
California adopts pure Comparitory Negligence
The Plaitiffs award is reduced by the percentage of his negligence
Sometimes contributory negligence
The conduct of the plaintiff that is done with knowledge of the risk also shows an assumption of risk
UNreasonable assumption of risk is abolished. (bottom of page)
Problem!! Reasonable P are barred from recovery but UNreasonable Ps can recover?!?!
Well we will still reduce the recovery by the amount he was unreasonable (this does not make any sense)
NOW COURT IS GOING TO RETHINK THIS WHOLE AREA!!!!
Taking a body of law of what the Plaintiff Knew and appreeciated was out the window…IT DOESNT MATTER WHAT THE P assumed as a risk
WE ask DID the DEFENDANT breach a DUTY off CARE owed to the P????


Replaces the traditional Assumption of risk with a series of NO DUTY RULES sup26

Knight v Jewett 1992
  • Super Bowl touch football
  • Girl alleged that her opponents played aggressively
  • She told him to stop or she would quit
  • Next play she was knocked over and her pinky got stepped on (Had to get amputated)
  • Court says no liability
    • WE ask DID the DEFENDANT breach a DUTY off CARE owed to the P????

    • YOU NOW ONLY OWE A DUTY NOT TO INJURE ON PURPOSE
  • Unless  the participant intentionally injures another player or engages in conduct wildy outside  the ordinary range of activity for the sport
    • Defendant wins Plaintiff assumed the risk
  • Defendant argued assumption of risk, but the court did not like this, they want to use new doctirne
  • PRIMEARY ASSUMPTION OF RISK
    • These cases are better analyzed as no duty owed, there fore no breach of duty
    • SECONDARY ASSUMPTION OF RISK
      • the D does owe a duty but the P willingly enters the the situation that poses the risk
  • Paintiff looses because of the no duty rule

    • Careless conduct is treated as an inherit risk of sports.
  • When does the D not owe a duty of care?
    • What plaintiff knows is irrelevant
    • it matters if D had a legal duty
    • Depends heavily on the nature of the sport
    • and the defendants role in the sport
      • Players
      • Stadium owners
      • Coach
      • Manuf and retailers of equipment
      • workers, etc.
    • P and D both Players
  • Because of the ROLE consider the Bat Player and statium owner, it is not inconsistant to find:
    • For D that is baseblall player
    • against the owner of the facility
      • Because each party has a different role, and owes a different duty to the plaintff
  • Different categories of defendatns
    • Owner of facility
    • Manuf retail of equipment
    • Coach
    • Players
  • Players ONLY owe duty to refrain from intentionally injuring other participants OR wreckless conduct totally outside the bounds of the sport. (Primary Assump Risk – really the duty owed by the D)
    • Paralell to landowners based on type of defendant (Licensee, Invitee, or Trespasser)
    • Because they dont want to water down the game preventing people from playing aggressively that wuold alter the nature of the sport
  • CA uses this (Some other states do not like Wisconsin and Nevada)
Knight v Jewett (Recap)
  • involves touch football game in backyard
  • Finger got stepped on and it had to be taken off
  • Opponent said you assumed the risk
  • She says no this exceeded the risk she assumed
  • After Knight case we say there is no fence anymore, this case should be analyzed as to what duty he owed her
  • The court held that the opponent did not owe her a duty of care.
First thing the court did was the intentional injury recklessness rule does this apply to sports? yes
Would imposing a full duty of care “chill” the nature of the sport?
Yes it would in the case of participants, who only have a duty against intentional injury.
Some wonder if the Court was taking over the role of the jury
But it is not, and Kahn concurred, because no reasonable person would see it as a duty in the sport

Recap of Knight
involves touch football game in backyard
She says she did not consent rough football
Finger got stepped on and it had to be taken off
Opponent said you assumed the risk WELL WE DONT CARE IF SHE ASSUMED RISK

!!!

WE ask DID the DEFENDANT breach a DUTY off CARE owed to the P????
She says no this exceeded the risk she assumed
After Knight case we say there is no fence anymore, this case should be analyzed as to what duty he owed her
The court held that the opponent did not owe her a duty of care
Dictum in Knight asks WHAT IT THE INHERIT RISK?



Kahn v East Side Union High (Diver, 11 years after touch football and Prime Assump of Risk)
  • 14 year old novice diver in copetition swim meet
  • took practice dive into shallow racing, pool broke neck
  • P claims injury due to
    • coaches failure to properly instruct
    • lack of supervision
    • coach breached duty of due care by insisting she dive even after she objected and he promised she wouldnt have too
  • Coach says no duty for sports rule, (he doesnt want to be liable unlesss he intentionally injures her.)
    • Court says well there is a much different relationship between a coach and a player
    • Coach is in position of power and authority over the player
  • THE ANSWER DEPENDS ON HOW CONSERVATIVE THE COURT IS
    • Conservative court will protect the coach
    • less conservitve court wont let the coach off the hook
  • The coaches role is to instruct players to engage in risky behavior to challenge them
    • We dont want to chill the conduct of coaches to push thier players to the limits in order to excel
      • Coaches cant be reckless
      • cant intentionally injure
    • Plaintiff doesnt loose but it is sent back to trial to look at the facts whether the coach was reckless
Would the Role of the coach be chilled?
YES the no duty rule applies, the coaches role does not owe a duty, BUT DOES OWE A DUTY NOT TO BE RECKLESS


Murphy v Steeplechase Amusement (Flopper Case)
  • Gets on a moving belt ride
  • He is thrown off violently after he felt a sudden jerk
  • Clams the ride was too dangerous, unreasonable risk of harm
  • Claims ride was out of order shouldnt have jerkd
    • Court says NO it WAS NOT malfunctional
  • One who takes part in such a sport assumes the risks that are inherit
    • He assumed the risk getting on the ride
  • Oviously this ride can be real shaky, an OBVIOUS RISK IS AS GOOD AS A WARNING
    • Ride was called THE FLOPPER, wtf do you think that means?
    • People enjoy risks
  • Plaintiffs theory will not hold up as a matter of law if the ride did not malfunction
    • Sometimes a warning is not enough if the risk is very very high OR there were TONS of accidents before (Russian Roulette would require much more than a warning)
  • Cardozo says in this case a warning outweighs the risks  in a circus ride
    • The palintiff may be able to recover if the risk was very serious
    • or if there were many prior accidents
    • Must balance like Learned Hand
  • Every assumption of risk can be decided on: (implies AR is a needless doctrine):
    • Either there is simply no negligence
    • When there is negligence then the Plaiintiffs conduct becomes unreasonable, (He shouldnt have gotten on such a “dangereous” ride)
  • knowledge of the risk
  • voluntary exposure to the risk
  • circumstances that indicate the acceptance of hte risk
    • Could have written no negligence as a matter of law in opinion
      • No previous accidents
      • no need to forgo the activity
      • You just need to warn because the risk was obvious

Assuption of risk can be reasonable OR unreasonable

P can accept unreasonable risk


Ratcliff v San Diego Baseball Club
Spectator v. Baseball player (accidentally throws bat) and Stadium Owner
Baseball player not liable for careless accidental participation
Stadium Owner Liable to provide enough screened seats to the amount of people who want them
Concluded no duty dosnt cover sports facility owners, changed by Connelly
Inherent Risk Rule
Connlley v. Mammouth Mountain Ski Area (Owner of A Sports Facility)
  • P skiing a mountain, passed  the ski tower several times taht day on an advanced run
  • tower was clearly visible for 200 yds
  • Last run fell and slid on his stomach and hit the tower
  • What is absent from the courts analysis?
    • Where is the policy discussion? there is no discussion of the chilling effect this court could have on the sport
  • There is no duty to protect against inherit risk BUT…
    • There is a duty to prevent INCREASING inherit risk
  • Sometimes careless conduct is an inherit risk
  • HOW DO YOU FIND INHERIT RISK?
    • Well we only have two examples, moguls and xxx
    • Those dangers that include but  not limited to
      • variations in the terrain or ski surface
      • other skiers
      • plainly visible obstacles or equipment
    • Cases like this one have been sharply criticized for usurping the juries role.
  • NEGLIGENCE TYPE BALANCING Cadozo says the inherent risk is a balancing test
    • How risky was it? If the risk had been greater, but it wasn’t
    • How many previous accidents? It there had been many accidents, but their weren’t
    • How serious was the actual injury? If the injury was more serious, but it wasn’t
  • Takes over jurys rule
  • Covers them by no duty rule IF
    • The risk was inherit in the activity
      • Moguls
      • Ski Tower
      • Other examples given in Connelly
  • If you find a duty, then you need to look at the conduct and see what percentage of that conduct caused the accident (TOTALLY SEPARATE RULE)
    • We have some examples of ski
      • Does it look like the Ski tower was inherit, how about the Moguls???
We will have the skiers doing something careless
You have participants. what duty do they owe, could the jury only find one thing
Does the intentional injury rule protect the complex owner (baseball court owed liability) there is probably a duty of care
BUT even if there was a duty of care THE INHERIT RISK CAN CANCEL THE DUTY
So what is an inherit risk? One that is Obvious! etc
… That just shows the inherit risk rule goes to take the inherit risk question away from the jury…



ASSUMPTION OF RISK HAS BEEN ABOLISHED IN CALIFORNIA (it is now No Duty)
Assumption of risk operrates in a traditional juris diction
when the party knows of the risk
appreciates the danger
and encountered it voluntarily
AN THEREFORE there CANNOT POSSIBLY BE NEGLIGENCE

Li v Yellow Cab
There by abolished absolute contributory negligence
And used COMPARATIVE NEGLIGENCE
(A)Assumption of risk/ (B) contrib negligence

Dont look at the Plaintiff ANYMORE
Plaintiff oriented assumption of risk is no longer used
It is the DUTY OF CARE owed by the Defendant


The OLD DOCTRINE HAS BEEN REPLACED
We NOW LOOK at the Duty owed by the defendant
If there is NO DUTY then there IS NO CASE



Defenses
Contributory Negligence: under the old rule, if the plaintiff was found to be negligent in anyway contributing to the injury, they were bared from recovery.

Defendants argue that the P’s negligence is proximate and cause in fact negligence.

  • You do not have to be aware of the risk
Comparative Negligence: a negligent plaintiff’s recovery depends on how serious plaintiff’s negligence is compared to the defendant’s.

  1. Pure: (California): reduces the recovery to the amount by which the plaintiff contributed to the harm. Can be as little as 1%.
  2. Modified: Can recover by the amount reduced by as long as contributory negligence is:
    1. no greater than the defendants fault (50% or less)
    2. so long as not as great as (less then 50%)
Assumption of the risk: consenting to the known risk thereby barring recovery. Needs to be a voluntary exposure to the risk.

  • Exclupatory/ Hold-Harmless agreement
  • Unenforceable:
    1. Poor public policy
      1. Violates Public Policy If:
        1. Is a business that needs regulation
        2. Service is a public good
        3. Holds out service for anyone
        4. Unequal bargaining power
        5. Standard form with no options for extra insurance per se
        6. Purchaser is subject tot he negligence of the contractor
    2. No equal bargaining power
    3. Not freely and fairly made
Interactive Sports

The duty owed is breached if the participant intentionally injuries another player or engages in conduct that is so reckless as to be totally outside the range of ordinary activity involved in the sport.

People don’t have a duty to prevent the injuries that are inherent in the sport.

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