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🎧 EPISODE SUMMARY 🎧
After the plaintiff establishes negligence, tort law must determine how responsibility is allocated.
Traditional contributory negligence completely bars a plaintiff whose own negligence contributed to the injury. Last clear chance historically permitted recovery when the defendant had the final opportunity to avoid the accident despite the plaintiff’s prior negligence.
Comparative negligence reduces recovery according to plaintiff responsibility. Pure comparative negligence permits recovery even when the plaintiff is mostly at fault. Modified systems bar recovery at a specified threshold. Students must distinguish systems barring plaintiffs at 50 percent from systems barring plaintiffs only when fault exceeds 50 percent.
Assumption of risk appears in several forms. Express assumption involves waivers, releases, exculpatory clauses, or contractual allocations. Enforceability depends on clarity, public policy, scope, and the nature of defendant misconduct.
Traditional implied assumption requires knowledge, appreciation, and voluntary encounter with a particular risk. Many comparative-fault systems merge this doctrine into comparative negligence.
Primary assumption of risk concerns whether the defendant owed a duty regarding risks inherent in an activity. It should be distinguished from unreasonable plaintiff risk-taking and contractual waiver.
Mitigation applies after injury. The plaintiff must take reasonable steps to avoid additional loss. Comparative negligence concerns conduct contributing to the initial injury; mitigation concerns later conduct increasing damages.
Multiple defendants may combine to produce indivisible harm. Traditional joint and several liability allows the plaintiff to collect the entire judgment from any jointly responsible defendant. Modern statutes may instead use several liability or hybrid systems.
Contribution allows a tortfeasor who pays more than an appropriate share to obtain reimbursement from other responsible tortfeasors. Indemnity shifts the entire loss from one responsible party to another.
Vicarious liability imposes responsibility for another person’s tort based on a legal relationship. Under respondeat superior, an employer may be liable for an employee’s tort committed within the scope of employment.
A minor personal detour may remain within the scope of employment, while a substantial personal frolic may fall outside it. Liability can resume when the employee returns to the employer’s business.
The key lesson for Friday is that establishing negligence does not determine who ultimately bears the loss. Tort law separately allocates responsibility among plaintiffs, multiple defendants, employers, employees, contractors, and other responsible actors.
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