Defenses in Negligence - Admission/Application Essay Example

Defenses in Negligence Defenses in Negligence Typically, a defendant in a negligence suit tries to negate one of the elements of the plaintiff's cause of action. There are four elements of negligence namely duty of care, breach of duty, causal limit liability based on alleged negligence. Two of these defenses are contributory or comparative negligence and assumption of the risk. (Salmond and Heuston, 1996) Guillermo Estaben, the owner of T?p?j?s Inn may rely on the defense of contributory or comparative negligence. Unlike contributory negligence, comparative negligence need not be a complete bar to the plaintiff's recovery, but acts only as partial bar resulting in a percentage deduction from otherwise recoverable damages. Contributory negligence has thus been defined as conduct on the part of the plaintiff which falls below the standard of conduct to which he should conform for his own protection, and which is a legally contributing cause in bringing about the plaintiff's harm. Contributory negligence is therefore a complete defense to negligence. (Torts Law Capsule Summary, Chapter 15) However, the court may ignore the plaintiff’s negligence if the defendant's negligence occurred after the plaintiff's contributory negligence under the last clear chance doctrine. This was established in the case of Davies v. Mann, 10 M&W 546, 152 Eng. Rep. 588 (1842). In this case scenario in question, after Tanya taking the risk, the Inn drained water without confirming whether there were people using the pool at the time thus causing the injury. Further, they did not notify the plaintiff or her hosts that the pool could be drained remotely or that the drains were dangerous when the pumps were running. This may not however be the case in the event that the court replaces contributory negligence with comparative negligence. (Torts Law Capsule Summary, Chapter 15) Should the court rely on pure comparative negligence Tanya can recover some percentage from the Inn’s owner regardless of the extent of her own negligence as seen in Li v. Yellow Cab Co., 532 P.2d 1226 (Cal. 1975). However, if the court applies modified comparative negligence, Tanya will be allowed a partial recovery until she is either more negligent (greater than 50% at fault) than the defendant or equal to the negligence of the defendant. This is especially so since there was a clear sign displayed indicating that usage of the pool was dangerous and was at one’s own risk. Further, since Tanya is a minor, she should have accessed the pool under the supervision of Tony’s parents. (Torts Law Capsule Summary, Chapter 15) The defendant can also rely on the defense of assumption of risk which states that the plaintiff has knowingly assumed the risk of the harm that was caused.  There are three basic elements to the assumption of risk. The plaintiff must (1) know a particular risk and (2) voluntarily (3) assume it as seen in Murphy v. Steeplechase Amusement Co., Inc., 166 N.E. 173 (N.Y. 1929). In this case there was implied assumption of risk as opposed to express assumption of risk since the plaintiff's voluntary exposure to risk is derived merely from her behavior, and not from explicit assent. Therefore, implied assumption of risk is absorbed into comparative negligence thus allowing the jury to treat assumption of risk as a partial defense as seen in Knight v. Jewett, 834 P.2d 696 (Cal. 1992). It bars recovery for a plaintiff who has assumed the risk involved in an obviously dangerous activity but proceeded to engage in the activity anyway. In order for this doctrine to apply, the plaintiff must have actual, subjective knowledge of the risk involved in the activity. The plaintiff must also voluntarily accept the risk involved in the activity. Therefore, Tanya by entering the swimming pool she assumed the risk of getting injures because it is a known danger that swimming pools pause a danger if enough caution is not taken. Further, the signs around the fence indicated how dangerous the pool was and emphasized that people were swimming at their own risk. Tanya may however challenge this defense on the ground that she did not assume the risk since the Inn sucking pumps are the ones that caused the injury. (Salmond and Heuston, 1996) Causation Chain, Proximity and Foreseeability The tort of negligence only exists if there is satisfaction of the general neighbor’s principle as laid down by Lord Atkin in Donoghue v Stevenson [1932] AC 562. He defined a neighbor as ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’ Causation is established by the claimant through the application of the ‘but for’ test where the test is ‘but for' the defendant's actions, the claimant would not have suffered the loss. This is however problematic in this case scenario where there are more than one possible cause. The claimant must therefore demonstrate that there is more than a 50% likelihood of the cause being the breach of duty of the defendant. (California Civil Jury Instructions (CACI) Where the proximate cause is factual causation as opposed to legal causation there will be no liability imposed on the defendant. This is where the act causes injury but it was not reasonably foreseeable that the plaintiff would be injured where an act sets off a chain of events that ultimately injures the plaintiff but he is very far removed from the original act. This was discussed in Palsgraf v. Long Island Rail Road Co. (California Civil Jury Instructions (CACI) Where there is a new intervening act, novus actus interveniens this may break the chain of causation removing liability from the defendant. The legal test applicable will depend upon whether the new action was by a third party or an act of the claimant and whether it was foreseeable. ‘Unforeseeable’ was defined to mean "statistically extremely improbable" or "unpredictable" in Campodonico v. State Auto Parks, Inc. (1970) 10 Cal.App.3d 803, 807 [89 Cal. Rptr. 270]. In case of action being foreseeable, the defendant remains liable and the chain of causation remains intact. In Brower v. New York Central & H.R.R., 91 N.J.L. 190, 103 A. 166 (N.J. 1918), H.R.R.’s (D) a negligent party is liable for the intervening acts of third parties if those acts should have been reasonably foreseen. If it was not foreseeable, the chain of causation is thus broken and the defendant consequently ceases to be liable for the actions of the third party who acted negligently. (California Civil Jury Instructions (CACI) Section 440 of the Restatement Second of Torts provides for a superseding cause which is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about. This doctrine has been adopted in such cases as Stewart v. Cox (1961) 55 Cal.2d 857, 864 [362 P.2d 345]; Brewer v. Teano (1995) 40 Cal.App.4th 1024 [47 Cal.Rptr.2d 348]. The chain of causation that would otherwise flow from an initial negligent act is broken when an independent act intervenes and supersedes the initial act as held in Hardison v. Bushnell (1993) 18 Cal.App.4th 22, 26 [22 Cal.Rptr.2d 106]. The defendants must therefore prove this affirmative defense as held in Maupin v. Widling (1987) 192 Cal.App.3d 568, 578 [237 Cal.Rptr. 521]. If a third party's negligence is asserted as a superseding cause,"[t]he elements of the defense include either foreseeability of the third party's negligence or of the harm, or the highly extraordinary nature or manner of the third party's acts." This was held in Paverud, supra, 189 Cal.App.3d at p. 863. (California Civil Jury Instructions (CACI) Foreseeability in this case relates to both the defendant’s conduct and the nature of the resulting injury as held in Akins v. County of Sonoma (1967) 67 Cal.2d 185, 199-200 [60 Cal.Rptr. 499, 430 P.2d 57]. Therefore, even if the intervening negligent conduct is not foreseeable, the defendant is not relieved of liability unless the risk of harm suffered also was unforeseeable as held in Pappert v. San Diego Gas and Electric Co. (1982) 137 Cal.App.3d 205, 210-211 [186 Cal.Rptr. 847]. Dan is exempted from liability as the acts of the United States Army intervened and directly caused the injuries. Further no one had foreseen it therefore Doug should sue the Army. Debbie cannot sue Doug since the intervening act was an act of god as no one was behind push exerted on the truck and she was not contemplated to be in the vicinity. This is the case with Mia whose home was crashed partly by a natural cause. The court will therefore quantify damages in accordance to the parties’ contributory negligence. However, the army should be the main defendants as they did not apply the neighbor principle. (Salmond and Heuston, 1996) Works Cited California Civil Jury Instructions (CACI), ‘Causation: Third-Party Conduct as Superseding Cause’. Retrieved March 29, 2012 from http://www.justia.com/trials-litigation/docs/caci/400 Torts Law Capsule Summary, Defenses (Chapter 15). Retrieved March 29, 2012 from http://www.lexisnexis.com/lawschool/study/outlines/html/torts/torts14.htm Salmond and Heuston, Law of Torts, 21st ed, London: Sweet & Maxwell, (1996) Read More