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Posts Tagged ‘Duty’

Contributory Negligence and Comparative Responsibility

In History, Law, Legal Education & Pedagogy, Teaching, Torts on July 2, 2014 at 8:45 am

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Contributory negligence is an affirmative defense and often a mirror image of the claim of negligence against the defendant. To establish contributory negligence, a defendant generally has to meet all four elements of negligence (duty, breach, causation, damages) in the same way the plaintiff does. Until recently, contributory negligence functioned as a total bar on recovery.

In practice, however, the rule may have been less harsh because juries could decide the plaintiff wasn’t at fault if the defendant appeared to be more at fault (this is a form of jury nullification), and because courts developed ameliorative doctrines such as the “last clear chance rule,” which maintains that even though the plaintiff was contributorily negligent, the defendant had the last clear chance to avoid the injury and thus the plaintiff still recovers. Few states have retained contributory negligence as an absolute bar. Most have moved to comparative responsibility. Once states have made that move, doctrines such as the “last clear chance” become unnecessary.

Once the old contributory negligence regime has been thrown out, what fills the void? The answer, in short, is comparative responsibility. To move from contributory negligence to comparative responsibility is to reject the rule that a plaintiff is barred from recovery if he, too, was careless. Under a comparative responsibility system, the responsibility is split evenly among the parties who were at fault.



Premises Liability and Qualified Duties of Care

In America, Economics, Humanities, Jurisprudence, Law, Philosophy, Property on January 3, 2014 at 8:45 am

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The field of premises liability has to do with the potential tort liability of a landholder or landowner for injuries or damages sustained on his property.  Such liability is determined not by the legal status of the landholder or landowner, but by the legal status of the injured party.  For example, if the injured party is a trespasser, then the landholder or landowner could not have owed the injured party a duty of reasonable care because the landholder or landowner did not know or have reason to know of the trespasser’s presence on his property.  A “trespasser” is someone who, without the permission or consent of the landholder or landowner, enters or remains on the landholder’s or landowner’s property.  We say that the landholder or landowner does not owe a duty to unforeseeable trespassers, even if the property possesses dangerous conditions, because we believe that people should not be held accountable for the behavior of others that cannot be known or reasonably discovered.  If a reasonable person with ordinary intelligence could not infer the existence of Person X on the property, then that reasonable person cannot be made to suffer simply for acting reasonably; after all, we want to encourage reasonable behavior among acting agents within our society.

As with all areas of the law, there are exceptions to the rule that a landholder or landowner owes no duty to trespassers.  One such exception is called the “attractive nuisance doctrine,” which maintains that a reasonable landholder or landowner ought to be aware that certain conditions on the property might draw trespassers onto the property.  The classic example is a swimming pool that would seem attractive to children and, therefore, would likely lure children onto the property.  Another exception involves the existence of paths or shortcuts on the property that might give rise to the reasonable expectation that trespassers will regularly use the paths or shortcuts and, hence, might also injure themselves because of the conditions of the property on or around the paths and shortcuts.  In such a situation, a court may deem the landholder or landowner to have owed a duty to the reasonably foreseeable trespassers.

A “licensee” is another legal category of persons on the property of a landholder or landowner.  Unlike trespassers, licensees enter or remain on the property of a landholder or landowner with the landholder’s or landowner’s express or implied consent.  What distinguishes a “licensee” from an “invitee” (another legal status that will be discussed below) is the fact that the licensee tends to be on the property for his own benefit rather than for the benefit of the landholder or landowner.  Examples of licensees include social guests who have entered on the property of another with the intent of visiting the landholder or landowner, who, let us say, is a neighbor.  A landholder or landowner generally owes a licensee a duty of reasonable care with regard to activities undertaken on the property, as well as a duty to warn or make safe any dangerous conditions known to the landholder or landowner but not to the licensee.  Because a licensee is on the landholder’s or landowner’s property by consent, but not by express invitation, we do not force landholders or landowners to use reasonable diligence to ascertain the existence of dangerous conditions on the property.  The costs of holding landholders or landowners to such a high standard (time, money, and energy spent searching the property for conditions that may not exist for the benefit of people who may never enter the property, even if they have the permission to do so) outweigh the potential benefits (reducing the probability that a potential visitor would be injured on the property).  Therefore, the duty of a landholder or landowner to a licensee is measured by a standard somewhere between those standards applicable to trespassers and invitees.

An “invitee” is a person having express permission to enter or remain on the property of the landholder or landowner for the benefit of the latter.  An example might be a plumber or handyman who has been asked onto the property to perform some service for the landholder or landowner.  Landholders and landowners owe a duty of reasonable care to invitees.  Because the landholder or landowner is not only aware of the presence of an invitee on the property, but also the very cause of that presence (but for the landholder’s or landowner’s invitation, the invitee would not be on the property), we require the landholder or landowner to inspect the property and to make reasonable efforts to discover dangerous conditions on the property.  We also require the landholder or landowner to make any dangerous conditions safe for the invitee.

These categories seem straightforward in theory but are often complicated in practice.  What they tell us is that, in the workaday world, “duty” is not sacrosanct; it is contextual and subject to many interpretations depending on the facts at hand and the perceived relationship of the parties.

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