14. Defenses (251-285)

278. Hamlet is playing darts with Polonius. Each tries to distract the other by crossing in front of the thrower. During this horseplay, Hamlet ends up inadvertently stabbing Polonius with a dart. Polonius goes to the emergency room, where he is told to put medication on the wound every four hours. The ER bill is $500. (Assume that this represents the only damages up to this point.) Polonius neglects to use the antibiotic, and as a but-for result, suffers additional infection, the fair damage award for which is $2,000. Polonius sues Hamlet in negligence for $2,500. The jury concludes that in the initial incident, Hamlet was 60% at fault and Polonius 40%. The jurisdiction applies comparative negligence. How much can Polonius recover?

$300. This question requires you to distinguish between the doctrines of comparative negligence and avoidable consequences. Comparative negligence applies only to the original incident; it dictates that Polonius can recover 60% of the $500 in damage caused by that original incident (he forfeits the 40% representing his own share of negligence). Then, the doctrine of avoidable consequences says that since Polonius would not have suffered the $2,000 additional damage had he not negligently failed to use the antibiotic, he cannot recover any of this $2,000, even though the negligence of Hamlet (by helping to cause the initial accident) was also a but-for cause of the add-on damages. So remember: comparative negligence applies only to the initial accident, and avoidable consequences applies only to those post-accident injuries that would have been completely avoided had the plaintiff not behaved negligently following the accident. D §203, p. 510-11.

261. There are two major types of comparative negligence formulae from which most states choose. What are they?

1. "Pure" comparative negligence: Plaintiff can recover damages from defendant no matter to how large an extent his own negligence contributed to his injuries. (Only a minority of comparative negligence states follow this approach.) 2. "Modified" comparative negligence: Plaintiff may recover damages only if his own fault caused less than a set fraction of his own injuries. Most states following comparative negligence have a 50% rule, in one of two forms: (I) plaintiff's negligence must be less than 50% of the total fault to recover (known as a "50% or equal" system), or (2) plaintiff's negligence can be 110 more than 50% of the overall fault to recover (called a "5 I% or greater" system). If plaintiff's negligence surpasses the limit, he is not entitled to recover; his negligence acts as a complete bar. lype (2) is the majority approach to comparative negligence. E Ch.11-II(D); Rest. 3d §§1-9.

251. What are the two major affirmative defenses to a negligence claim?

1. Contributory negligence (and its modem counterpart, comparative negligence); and 2. Assumption of the risk (either express or implied). E Ch.11. NOTE: Obviously, a valid defense to negligence would also include a showing that defendant exercised due care. Such a showing would negate one of the elements of negligencebreach of duty-so it's technically not an affirmative defense to a claim of negligence, but rather a disproval of one of the elements of the plaintiff's cause of action. D §199, pp. 494-98; §201, pp. 503-6.

257. What is the difference between contributory negligence and assumption of the risk?

At common law, both had the effect of relieving defendant of liability for her acts. But the requirements for applying the two doctrines differed: CONTRIBUTORY NEGLlGENCE merely requires that plaintiff take inadequate precautions for her own safety, regardless of plaintiff's actual knowledge or appreciation of the danger. ASSUMPTION OF THE RISK requires plaintiff to have knowingly and voluntarily subjected herself to danger. The same behavior can constitute both contributory negligence and assumption of the risk; that happens where P unreasonably, knowingly, and voluntarily subjects himself to risk. Assumption of the risk can be viewed as the broader of the two defenses, in the sense that even a reasonable assumption of the risk would, at common law, still be a complete bar to recovery. E Ch.Il-ill(D)(5); D §211, pp. 535-36.

285. When Dr. Smylen Fillerup performs a Cesarian section on Hillary S. Conception, he negligently leaves a pair of scissors in her abdomen. Eighteen months later, Mrs. Conception discovers Fillerup's boo-boo when she cannot get through a metal detector at the airport. Until then she had no indication of it. Under the prevailing approach, when did the statute of limitations on a malpractice claim by Mrs. Conception against Fillerup begin to run?

At the time of the airport screening. Normally, statutes of limitation begin to run when the tortious act causes damage-this is when the cause of action is said to "accrue." However, in cases in which the plaintiff is not aware of the injury at the time it occurs, the trend is to delay the commencement of the statute of limitations until the plaintiff discovered ( or reasonably should have discovered) the damage. Courts are especially lenient in medical malpractice cases, where the typical plaintiff would be unlikely to be able to immediately realize she had a cause of action. E Ch.11-IV(A).

280. Balaam rides his donkey into town and negligently hitches it loosely to a post while he does a spot of shopping. The donkey wanders into the road and is nibbling on some tumbleweed when Judas rides into town in his car and hits the donkey. Oudas saw the donkey and could have swerved, but stupidly figured that if he just kept going the donkey would move out of the way at the last minute.) Balaam sues Judas in negligence for damage to his donkey; Judas defends on the grounds of contributory negligence, which is in force in the jurisdiction. Assuming that the jurisdiction recognizes all major doctrines connected with contributory negligence, who wins, and why?

Balaam, because of the doctrine of Last Clear Chance. Where P has been contributorily negligent-as here, by carelessly hitching the donkey-and D could have avoided damage because he had the last clear chance to do so, P will recover regardless of his contributory negligence. (The facts here fall into the "helpless plaintiff/defendant discovers danger" category, in which nearly all contributory negligence jurisdictions apply Last Clear Chance.) RELATED NOTE: Modem jurisdictions employing comparative negligence principles have mostly discarded the Last Clear Chance doctrine and simply permit the jury to apportion the relative degrees of negligence of P and D. In these jurisdictions, because the consequences of P's being negligent are not fatal to her negligence claim, there is no need for the Last Clear Chance doctrine. See Rest. 3d (Apport.) §3, Comment b (rejecting Last Clear Chance for all purposes). E Ch.11-1(1); D §207, pp. 522-23.

260. What is comparative negligence or comparative fault?

Comparative negligence or fault is a doctrine that rejects the "all or nothing" approach of contributory negligence and divides liability between P and D in proportion to their fault. In spite of her own negligence, P is allowed to recover a portion of her damages, reflecting the percentage of her injuries that D caused. (The exact form of comparative negligence varies from state to state. See the next card.) D §203, pp. 510-11; Rest. 3d §§1-9.

259. What's the difference between the doctrine of contributory negligence and the doctrine of avoidable consequences?

Contributory negligence is negligence by the plaintiff that takes place before any damage has occurred. Without the contributory negligence, plaintiff would not have suffered harm at all (and she is therefore completely barred from recovery). Avoidable consequences, also referred to as afailure to mitigate, comes into play after a legal wrong has occurred, but while some damages may still be averted; it bars recovery only for the damages that could have been avoided. D §204, pp. 511-14.

256. What is contributory negligence?

Contributory negligence is: I. Plaintiff's conduct 2. That does not meet tlte standard of care 3. For his own protection 4. And is a cause of his harm (under eitherthe butjor I one cause I or s11bsta11tialfactor I multiple cause I test). NOTE: These requirements mirror the elements of a negligence claim itself. NOTE: When contributory negligence applies, it is a complele bar to 011;• recovery by plaintiff. NOTE: At least 46 states have abolished contributory negligence and use a system of comparative uegligence or comparative fault instead. In these jurisdictions, the negligence of the plaintiff will typically merely decrease the plaintiff's recovery• ~)' a percentage equal to the plaintiffs relative fault. (In some of these jurisdictions, however, if the plaintiffs fault equals or exceeds that of the defendant, this 11ill eliminate 011;• recovery.) D §199, p. 494; E Ch.11-I(A).

283. Paul Revere and William Dawes are each on a casual midnight horseback ride. They run into each other; each is thrown from his respective horse and each is injured. Each sues the other for negligence. Revere suffers $20,000 in damages and is found to be 25% at fault for the accident. Dawes, who was riding faster, is found to be 75% at fault and suffers $30,000 in damages. The state has a comparative negligence statute that provides that in order for the plaintiff to recover anything at all, his negligence must not be greater than the defendant's. Who owes what to whom?

Dawes owes Revere $15,000. Revere is entitled only to that portion of his damages caused by Dawes. Because Revere was 25% responsible, he is entitled to 75% of his damages: 0.75 x $20,000 = $15,000. Dawes gets no offset by virtue of his own claim-under this modified comparative negligence statute (the fact that P can't recover anything if he's more negligent than D means that it's a modified statute), Dawes as plaintiff is more negligent than Revere as defendant, and so collects nothing on his own claim. Therefore, Dawes must write Revere a check for $15,000. COMPARE: Suppose the state had had a pure comparative negligence statute (i.e., one in which P can recover from D even if his fault is much greater than D's). In that event, Dawes would be entitled to 25% of $30,000 (or $7,500), which would be subtracted from Revere's $15,000, leaving Revere a net recovery of $7,500. D §201, pp. 505-6; Rest. 3d §8.

269. Misty O'Time, Henry the Eighth's girlfriend, is staying at the Hampton Inn. Another guest, Thomas Cranmer, negligently upsets a lantern, setting the hotel afire. Henry rushes to the scene before the fire department gets there and finds the building engulfed in flames. He wraps a wet towel around his head and tries repeatedly to save Misty from the flaming building. He is unsuccessful. Seriously burned and heartbroken, he spends the rest of his life going from woman to woman. Henry sues Cranmer in negligence for his bums. The jurisdiction still applies contributory negligence, which Cranmer asserts. Who wins?

Henry. Henry was a rescuer. Therefore, Cranmer is liable for Henry's injuries as long as Henry was not contributorily negligent (i.e., as long as Henry took reasonable precautions for his safety). The reasonableness of Henry's actions must be judged by the same balancing test as is used in determining negligent conduct, substituting potential harm to oneself for potential harm to others: utility of conduct and burden of precaution versus probability and probable gravity of harm to oneself. In light of Henry's goal (saving a life) and the impossibility of meaningful precautions that wouldn't undermine that goal, Henry's behavior was not unreasonable. Therefore, Henry was not contributorily negligent, and Cranmer will be liable for his injuries. D §199, pp. 495-96.

252. What are the two elements of a valid implied assumption of the risk (AOR) defense?

I. The plaintiff must know and appreciate the risk (this is subjective; but generally, knowledge of obvious risks will be presumed). 2. She mustfree/y and vol11ntarily assume the risk. If these are proven, plaintiff is completelJ• barred from recovery under AOR. N.B.: The "knowledge of the risk" requirement is supposed to be subjective-the plaintiff must have ac/11allJ• known the risk she was incurring; it's not enough that she sbo11/d have known it. N.B.: Al common law, evidence satisfying these two elements would establish AOR, a cumplete bar to recovery, even if P was 11nreasonable in assuming the risk. But the trend in modern comparative fault jurisdictions Is to treat an unreasonable assumption of the risk (at least where the as.sumption is implied by P's actions rather than express) as a type of comparative fault that will partially reduce, not entirely eliminate, the defendant's liability. (Example: Under the modern appro-Jch, a drunk who decides to sleep in the middle of the road will not be deemed to have impliedly assumed the risk of being hit by a car; his behavior will merely reduce his recovery under comparative fault.) D §211, pp. 534-39.

282. Louis XVI goes to the Sun King Tavern one afternoon to tie one on. He stumbles out of the bar hours later, trips, and falls unconscious in the street. Robespierre drives up in his horse and buggy, rushing to an underground dissidents' meeting. Robespierre sees Louis in the road, but in his distracted state, he stupidly whips the horse instead of pulling on the reins to stop. As a result, he runs over Louis, injuring him severely. Louis sues for negligence. All common-law doctrines apply. Who wins?

Louis, because of Last Clear Chance. Here, Louis was helpless due to his own contributory negligence. Robespierre became actually aware of Louis' peril in time to avert the danger (as opposed to failing to notice the danger out of negligence). This combination of a helpless plaintiff and an aware defendant presents the strongest case for applying Last Clear Chance, in those few courts still applying contributory negligence. D §200, pp. 499-500.

272. Al Bundy drives his car to the Mr. Goodwrench Service Station to get the oil changed. He drives the car into the garage, and remains in it while, with the door open, he fumbles around in the back seat to get a newspaper. He senses an upward motion, but he does not realize that the car has been hoisted ten feet into the air to facilitate the oil change. Without looking, he steps out of the car into midair, falls to the ground, and is injured. He sues the station for negligence in hoisting the car with him in it. The jurisdiction applies contributory negligence, which Mr. Goodwrench asserts. Who wins?

Mr. Goodwrench. Contributory negligence bars recovery where plaintiff doesn't behave reasonably to protect himself from injury and is injured as a result. Here, if you are inside your car in a service station garage, and you sense an upward movement, reasonable behavior would include "looking before you leap." Because Bundy didn't do so, and his failure to do so was a substantial factor in his injury, Mr. Goodwrench won't be liable. D §199, p. 494.

265. The Dastardly Train Co. operates a station in Appletown. The boards on the platform are rickety and rotted. Signs posted prominently read: "Danger! Faulty Floorboards Throughout the Platform." Little Nell sees the signs and mounts the platform to wait for a train. She is injured when the board on which she's standing collapses. There was no visible evidence that that particular board was faulty. When Nell sues for negligence, Dastardly defends on assumption of the risk grounds. Who wins?

Nell. Assumption of the risk requires that plaintiff knowingly and voluntarily encounter a risk. It is not applicable where defendant cannot waive his legal duty regardless of plaintiff's consent. Providing a commercial service or facility to plaintiff is such an instance. In that situation, plaintiff can knowingly undertake the risk of injury, without assuming the risk, because there is no other way for plaintiff to obtain defendant's services. NOTE: If it was clear that only one portion of the platform had faulty floorboards, and Nell knowingly chose to stand on the faulty part because it was more convenient, then AOR might apply. But as the facts have been set up here, Nell didn't voluntarily choose to stand on what she knew was a particularly dangerous part of the platform, so AOR doesn't apply because Nell had no choice but to encounter the general risk if she wanted the defendant's services. D §212, pp. 540-41.

273. Nero illegally parks his car in front of a fire hydrant while he goes into a nearby music store to buy some violin sheet music. While he is in the store, Roman A'Day takes his eyes off the road to tune in to a gladiatorial tournament on his radio and sideswipes Nero's car. Nero sues Roman for negligence. Roman defends on contributory negligence grounds, citing Nero's parking illegally in front of a fire hydrant. Who wins?

Nero. Contributory negligence requires proximate cause analysis. In order to be a valid defense, the risk the plaintiff's contributory negligence created must proximately cause the injury. The reason it's illegal to park in front of fire hydrants is to make sure the hydrant is accessible to fire trucks, not because the risk of sideswiping collisions is greater near hydrants. Therefore, Nero's negligence per se in violating the statute was not the proximate cause of his injury. Thus, Roman will be liable. D §208, pp. 523-27.

279. Herman Munster is driving his hearse and trying to read the latest issue of Playghoul magazine at the same time. He negligently ignores a stop sign and hits a car driven by Lurch. Lurch is thrown through the windshield and badly mangled. Had Lurch been wearing his seat belt (which was in working order), he would have avoided all but minor injuries. In a state following the most common approach to the relevant issues, can Herman avoid liability for most of Lurch's injuries by asserting the doctrine of avoidable consequences?

No, probably. In most states, the victim's failure to wear a seat belt is not permitted to be used to reduce the victim's recovery, either under a comparative fault analysis or by reducing damages under the doctrine of avoidable consequences. The doctrine of avoidable consequences holds that the defendant is not liable for damages the plaintiff could reasonably have avoided. So by logic, the doctrine should be available to reduce the damages charged to the defendant. But while some courts now permit the nonseat-belt-wearer's recovery to be reduced under one of these two doctrines, the vast majority of jurisdictions do not. D §205, pp. 514-17.

270. Arthur Dimmesdale and Hester Prynne are riding in Dimmesdale's horse-drawn buggy to a bingo game. It's a long trip, and they both fall asleep. The reins drop from Arthur's hands, and they crash into a tree. Both are injured. Had Hester remained awake, she would more likely than not have been able to wake Arthur before the crash occurred. Hester sues on negligence grounds, citing Arthur's falling asleep at the reins. In a contributory negligence jurisdiction, can Arthur successfully claim that Hester was contributorily negligent because she too was asleep?

No, which should come as no surprise to you. Although the rules for both negligence and contributory negligence are similar-both require the party to behave as reasonable people of ordinary prudence would do under like circumstances-particular conduct can be negligent if done by a defendant without being contributorily negligent when done by a plaintiff. That's the case here: a passenger has no duty to keep her eyes on the road to adequately protect herself, and she is entitled to rely on the driver, whereas a driver must remain alert for the safety of his passengers. D §199, pp.495-98.

264. Wiley Coyote rents a mule from Acme Tours so he can ride through the Grand Canyon. The tour guide warns Wiley that his mule is testy and tends to buck, and that Wiley might fall. Wiley is undeterred and rents the mule anyway. It turns out that, apart from its ornery nature, the mule is also blind and walks off a cliff with Wiley aboard. Wiley is seriously injured. When he sues Acme, will its assumption of the risk defense succeed?

No. Assumption of the risk requires that P knowingly and voluntarily undertake a risk. For the doctrine to apply, the risk that P assumed must be the same as the risk that ended up causing the harm. Although Wiley did assume the risk of being bucked, he did not assume the risks associated with a blind mule because he didn't know the mule was blind. Because it was the mule's blindness (not his ornery nature) that caused the accident, Wiley's claim is not blocked by assumption of risk. NOTE: In certain situations P will be found to have assumed the risk of unknown conditions. For instance, guests in automobiles are often held to assume the risk of unknown defects in their host's car. But courts usually won't find assumption of unknown risks unless P's intent to do so is clear, and it isn't clear here. E Ch.11-ill(D)(2); D §211, pp.

271. Carla Saki takes her friend Farley Davidson for a ride on her motorcycle. Carla wears a helmet and offers one to Farley, who refuses it. Carla drives carelessly and hits a rock at the side of the road. Farley is hurled from the motorcycle into the road. As Farley lies in the road ( with no significant injuries yet), a bicyclist, riding without negligence, can't stop and runs over Farley's torso, injuring his ribs. Farley sues Carla for negligence on account of the rib injury. The jurisdiction applies comparative negligence, which Carla asserts, citing Farley's refusal to wear a helmet. Will Farley's recovery be reduced on comparativenegligence grounds? (Assume that no guest statute exists, so that Farley as passenger is free to sue Carla as driver for simple negligence.)

No. Comparative negligence (like its common-law counterpart contributory negligence), applies when the plaintiff's failure to use reasonable care in protecting herself results in injury to the plaintiff. In this instance, Farley's rib injuries didn't "result" from his failure to wear a helmet. (You're told that there were no injuries from Farley's initial fall-if he had suffered head injuries, then Carla would likely be successful in asserting comparative negligence, or perhaps assumption of risk, as a defense.) REIATED ISSUE: Failure to wear a seat belt, resulting in more serious injury to the plaintiff, would logically be considered either contributory/comparative negligence, or else an avoidable consequence. However, in the majority of states, there are statutes that preclude a defendant from offering evidence of such a seatbelt-wearing failure. D §199, pp. 494-98.

277. Roosevelt is walking down the street, minding his own business. His frenemy Hoover comes along and pushes Roosevelt from behind, intending to startle him but not to cause him to fall. Roosevelt has negligently allowed his shoes to come untied, and when he stumbles after Hoover's push, Roosevelt trips on a lace and falls, hitting his head. Roosevelt sues Hoover for the head injuries. In a state allowing contributory negligence, can Hoover successfully raise this defense?

No. Contributory negligence is typically not a defense to an intentional tort under the common law. D §200, p. 498.

274. F. Scott Fitzgerald, famous author and lush, is drinking away the evening at This Side of Paradise, the local tavern. There, he sees his friend Ima Gonner. In Ima's presence, Scott downs enough cocktails to make him visibly inebriated. When it gets to closing time, Ima mentions that she got to the bar by cab. Scott says, "Would you like me to drive you home?" Ima knows that Scott is drunk, but she decides to take a chance that he'll tum out to be good enough at holding his liquor that his driving won't be impaired. Scott drives the car into a tree, and Ima is injured. Ima sues Scott in negligence. Assume that there is no automobile guest statute in force and that all common-law defenses apply. Will Ima recover?

No. In some common-law states, Ima's decision to ride with Fitzgerald even though she knew he was drunk would be held to be contributory negligence. (That is, she failed to exercise reasonable care for her own safety, and that lack of care contributed proximately to her injuries.) In other jurisdictions, the case would be handled as an assumption of risk problem: Ima knowingly and voluntarily accepted the risk that Fitzgerald's drunkenness would lead to an accident. In either event, it's hard to see how Ima could win. NOTE: In a comparative negligence jurisdiction, the court might hold that Ima's conduct in taking the risk of Fitzgerald's drunkenness was a type of negligence (not assumption of risk). In that event, Ima's recovery would be reduced but not eliminated. D §211, pp. 534-35.

281. Livingstone has been living in darkest Africa for years, waiting for Clark. Livingstone despairs of Clark's ever finding him and drinks heavily. He staggers into the street. Just then, Clark zooms up in his jeep. He sees Livingstone and tries to stop, but the brakes in his jeep are badly worn due to his failure to maintain them. He hits and injures Livingstone. Livingstone sues, Clark claims contributory negligence, and Livingstone rebuts with the doctrine of Last Clear Chance. Is Clark liable for Livingstone's injuries?

No. Last Clear Chance is a doctrine used by plaintiffs to defeat a contributory negligence defense. Last Clear Chance is not applicable to cases of antecedent negligence-that is, cases in which the defendant's negligence prior to the occasion of the accident removes his ability to prevent injury to plaintiff at the last moment. In such instances, defendant doesn't really have a last clear chance. Therefore, Livingstone's contributory negligence applies to bar his claim. KEY: For Last Cle-.ir Chance to apply, defendant must be able to avoid the injury by taking action after the peril to the plaintiff becomes apparent. Thus, suppose defendant sees the plaintiff helpless in the middle of the road, but it's too late for defendant to brake-Last Clear Chance won't apply. D §207, pp. 522-23.

276. A statute in the State of Suspense prohibits the purchase by or sale to minors of firearms. The Shoot 'M Up Gun Store sells a .357 magnum to Pretty Baby Floyd, age 11, after negligently failing to notice that Floyd has forged a driver's license with a crayon. Floyd shoots himself in the foot. When Floyd sues the gun store for negligence, it raises the defense that Floyd was contributorily negligent per se by inducing the violation of the no-sale-to-minors firearms statute. Should the court recognize this defense?

No. Ordinarily, the doctrine of negligence per se applies to plaintiffs facing a contributory or comparative negligence defense, just as it does to defendants. But when a statute is enacted to protect a particular class of plaintiffs from their own negligence, contributory negligence per se will not apply ( otherwise, the statute would be largely meaningless). It's pretty clear that the average "no sales to minors" statute was adopted, at least in part, for the purpose of protecting minor would-be purchasers from accidents with the purchased firearm. So the minor plaintiff's violation of the statute will not constitute negligence per se ( or, indeed, anJ1 negligence, for purposes of contributory negligence). OTHER EXAMPLES: Workplace safety statutes, child labor laws, and the likewhen the minor engages in the forbidden conduct and is injured, the defendant employer can't claim contributory or comparative negligence per se. E Ch.ll-I(H)(4); D §208, pp. 523-27.

253. Must assumption of the risk be express?

No. Plaintiff certainly can explicitly agree to assume the risk. But in most cases, plaintiff's assumption of risk comes about because by his conduct he is found to have impliedly assumed the risk. E Ch.11-111.

258. If a contributory negligence defense succeeds, is the plaintiff entitled to any recovery whatsoever?

No. Under the common-law contributory negligence doctrine, a finding that plaintiff did not exercise reasonable care for his own protection, resulting in his injury, will act as a complete bar to recovering damages, regardless of the extent to which that negligence contributed to his injuries. COMPARE: Comparative negligence alleviates this harsh consequence by determining proportions of fault between defendant and plaintiff and allowing partial recovery on this basis. Due to its fairness, at least 46 states now apply it instead of contributory negligence. E Ch.11-II(C)(Z). E Ch.II; D §199, p. 494.

275. Diamond Jim Potluck visits the N-Palatable Diner. As he walks to the counter, he studies the menu board on the wall, looking for the meatloaf of the day. He carelessly fails to notice that the cellar door, which opens out of the floor, is open. He falls in, injuring himself. Assume that all common-law defenses apply. If the diner was more negligent in leaving the cellar door open than Diamond Jim was in failing to notice it, will the diner be liable for Jim's injuries?

No. We're told that all common-law defenses apply, so contributory negligence applies. Under contributory negligence, any negligence on plaintiff's part completely bars recovery, regardless of how insignificant it is compared to defendant's negligence. By contrast, in a comparative negligence jurisdiction, Diamond Jim would recover at least some of his damages if the diner was more negligent than he was. D §199, p. 494.

266. The Hit & Run Railroad Co. has tracks running adjacent to Old MacDonald's Fann. The railroad negligently fails to erect fences on either side of the tracks, as it is required to do by industry custom. Old Mac customarily lets his cows graze on his own property, adjacent to the tracks. Mac is well aware of the risk that his cows may wander onto the tracks and be hit. But if he is to raise the cattle in an economically-viable manner, his only choice is to let them graze near the tracks (there's no other land that he owns). One of the grazing cows wanders onto the tracks and is struck by an oncoming train. Old Mac sues Hit & Run. Hit & Run asserts assumption of the risk as a defense. Who wins?

Old Mac. Assumption of the risk requires that plaintiff knowingly and voluntarily undertake a risk. In this instance, Old Mac did know the danger and subjected his cows to it. However, the element missing is voluntariness. The facts make it clear that economics forced Mac to use his land adjacent to the tracks for grazing, as he had a legal right to do. So his decision to risk the cows' safety will not be deemed to be a voluntary one. D §211, p. 535.

255. What's the difference between assumption of the risk and consent?

The certainty of injury. Where injury is virtually certain, plaintiff's acquiescence is consent; where it's less certain, it's assumption of the risk. D §212, pp. 540-41.

262. What is the doctrine of Last Clear Chance?

The doctrine is used by plaintiffs to rebut a claim of contributory negligence; it states that where the plaintiff would otherwise be held to have been contributorily negligent, the defendant will still be liable if after all negligence by the plaintiff had occurred, the defendant had a last chance to avoid the harm, yet failed to do so. (Thus, it negates the effect of plaintiff's prior contributory negligence and allows recovery.) NOTE: Courts have relied on Last Clear Chance primarily to avoid the harsh results of contributory negligence. E Ch.11-I(I); D §207, pp. 522-23.

263. Humpty Dumpty rents a hot tub on wheels from Tweedle Dee Jacuzzis, consisting of a fiberglass hot tub and surrounding platform on a trailer. Humpty has a little party and gets in and out of the tub several times. Subsequently, as he's on the platform, he slips and falls, injuring himself in the process. He sues Tweedle Dee in negligence. When Tweedle defends on assumption of the risk grounds, Humpty claims he didn't know the platform would become slippery when water was splashed on it. Will assumption of risk bar Humpty from recovering?

Yes, probably. It's true that assumption of the risk requires that the plaintiff knowingly and voluntarily encounter a risk. And Humpty is claiming that he didn't know of the slipperiness risk. But although knowledge of the risk is a subjective concept, the jury is always free to infer that the plaintiff knew of the risk, on the theory that any reasonable person in P's position would have known of that type of risk. The risk that wet surfaces are slippery is just such a commonly-known fact. So the jury will likely conclude that Humpty knew of (or willfully ignored) the risk. In that event, assumption of risk will apply and will defeat Humpty's claim. NOTE: The above analysis would probably apply only if the jurisdiction was one of the few that still maintains contributory negligence. In a modem comparative negligence jurisdiction, the doctrine of implied assumption of risk would be "merged into" comparative negligence. Then, Humpty's unreasonable ignorance of the risk of slipping on a wet surface would simply be a type of comparative fault that would reduce (but not eliminate) his recovery. D §211, pp. 535-37.

268. Frodo is interested in learning how to fight with a sword, and so he enrolls as a student at the Rivendell Fighting Academy, one of several nearby fighting academies. He signs a form in which he acknowledges that there are certain dangers involved in learning to fight with real swords, including the risk of being accidentally cut, and in this same form he agrees not to hold the academy liable for any negligence in providing instruction. Frodo is then accidentally but negligently cut by his instructor Aragom's blade during a practice duel. Will the form Frodo signed preclude the academy's liability for negligence for the cut?

Yes, probably. The doctrine of ei.11ress assumption of the risk is triggered by Frodo's knowing and voluntary decision to encounter the risks of swordplay and his e,11ress statement relieving the Academy from liability for such risks. There is nothing to suggest that Frodo dido"t understand the danger he would encounter, and the language in the release appears to be quite clear and specific. NOTE: Courts will not honor an express assumption of the risk if it violates public poliC)', such as a public school"s requiring its students to release the school from all liability as a condition of participating in a school activity. Furthermore, where there is a large discrepancy in bargaining power and the effect is to give the plaintiff linle power to avoid dealing with the defendant on the defendanl"s terms (e.g., Dis a power company that has a local monopoly), courts will apply particularly high levels of scrutiny in interpreting and applying the language of the release. But here there is no indication of any such great inequality in bargaining power-the facts tells us that there are several other similar schools, so Frodo wasn ·1 compelled to use the Academy to get training of this son. And there is no indication that the terms of the release were unclear. So the release ,vill be enforced, at least in the case of unintended garden-variety negligence. D §213, pp. 541-43.

254. In an emergency situation, can one take steps to save his person or property without being vulnerable to an assumption of risk defense?

Yes, unless the risk involved is out of proportion to the rights P is protecting. H the risk is out of proportion to the rights being protected, it will constitute assumption of the risk. Thus, a decision to enter a burning house to retrieve a hat would be unreasonable (and give rise to implied AOR), but entering to save the life of a child would be reasonable (and not give rise to implied AOR). E Ch.11-111

284. D'Artagnan is practicing his fencing maneuvers with his umbrella as he walks down a city sidewalk. He swooshes the umbrella back and forth. Robin Hood, walking in a hurry, cannot get by D'Artagnan on the narrow sidewalk. D'Artagnan refuses to stop swinging the umbrella when Robin wants to pass. Robin, fearing that he'll be hit, grabs D'Artagnan's wrist, takes away the umbrella, and throws it down. D'Artagnan sues for battery. Robin defends, claiming that he had a right to defend himself against D'Artagnan's conduct. The parties stipulate that D'Artagnan never intended (and was not reasonably believed by Robin to be intending) to make a harmful or offensive act, so that D'Artagnan's conduct was at most negligent. Will Robin's self-defense claim prevail?

Yes. A person can be entitled to use self-defense in response to another's negligence (not just in response to another's intentional tort). The person asserting the defense must merely show that he had a reasonable belief that a harmful or offensive contact or confinement (whether intended or not) was imminent and that he took reasonable steps to prevent it. So even though D'Artagnan did not intend the contact, Robin Hood's belief that there was a substantial risk of such a contact, and his conduct in avoiding it by grabbing D'Artagnan's wrist and then the umbrella, seem to meet this standard. D §70, pp. 159-61; E Ch.4-III(C)(l).

267. Abraham Lincoln can't stand theater, and when Mrs. Lincoln suggests they go to see the play Our American Cousin, Abe bows out and goes to a baseball game with his buddies instead. The game takes place at Redlegs Stadium, owned by the DC Redlegs, the home team. Lincoln buys a seat on the third-base line, which has no protected screening in front of it. (There are other seats available with screening, but Lincoln thinks the view is worse from these.) When John "Fingers" Booth, the Redlegs' power-hitting baseball star, steps up to the plate, he cracks a line drive down the third-base line, which hits Abe in the head, fracturing his skull. Lincoln sues the Redlegs for negligently failing to provide foulball protection for his seat. Can the Redlegs avoid liability to Abe on the grounds of assumption of the risk?

Yes; attendance at sporting events is a classic instance of assumption of the risk. Assumption of the risk requires that the plaintiff knowingly and voluntarily undenake the risk of injury. The case here is one of implied assumption of the risk: by sitting in an unprotected seat, Abe is implicitly telling the players and the stadium operators to play without regard to his safety. His assumption of the risk was voluntary because he could have chosen a protected seat with a less-good view. Therefore, Lincoln's seat selection constituted an assumption of the risk of injury associated with normal play. RELATED NOTE: An alternative, perhaps better, analysis is that the Redlegs were simply never negllgenl in /he.firs/ p/ace--there's no negligence in playing baseball according toils mies and its inherent nature, which includes foul balls. Courts can reach this result by using the doctrine of so-called primary assumption of the risk, which declares that inherent risks in an activity do not give rise to any duty to eliminate or minimize that risk. This doctrine is, in actuality, just another way of saying that the defendant was not engaging in any unreasonable conduct. Under this analysis, the lack of any negligence by the Redlegs prevents the issue of whether Lincoln assumed the risk from even arising. D §215, pp. 547-50.