Defenses to NegligenceContributory & comparative negligence and assumption of risk: The evaluation of “plaintiff’s” conduct

Note at the outset that Mark, Li, and Knight are all cases decided by the California Supreme Court. Is the focus of the author’s approach on the evolution of the law in a particular jurisdiction, or on the California rules as the so-called “majority rule” in negligence cases?

Note the concept of so-called “affirmative defenses” – as based upon distinct rules or concepts of law, and distinct facts. Affirmative defenses allow a “defendant” in a private civil action (tort-accident case) to avoid liability, even where the plaintiff has established a prima facie case.

Note that these defenses place the plaintiff’s own conduct in issue, as a matter of law and fact.

Mark v. Pacific Gas & Electric Company:The facts

The accident description:

Plaintiff was a tenant in a building adjacent to a City streetlight maintained by Defendant Pacific Gas & Electric Company. He was electrocuted while attempting to unscrew or remove the light bulb from the streetlamp, which was located outside his apartment bedroom window;

PG&L was aware of a complaint from one or more of the landlord’s tenants (including plaintiff) about glare from the light;

PG&L took steps to reduce the glare, but was aware that these steps had been ineffective in reducing glare – and that plaintiff and his roommates were still unsatisfied with the condition of the light;

PG&L was also aware that, as a result of an auto accident, the light pole had been bent, and that, in its bent condition, the pole was 55 inches from plaintiff’s window and 10 inches from an adjacent fire escape;

PG&L was aware that someone had been tampering with the light fixture, i.e., that the light bulb had been unscrewed on one or more occasions;

PG&L (through its agent) was aware that the fixture resembled an ordinary light bulb, and that there was no open or obvious indication of high voltage.

The court’s definition of contributory negligence

Note the Court’s definition of “contributory negligence” as : “ …conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff’s harm” (at Footnote 8 of the Court’s opinion, citing the Restatement);

Note the two “categories” of contributory negligence (Two ways of evaluating the plaintiff’s own conduct, as a cause in fact of his injury):

Voluntary exposure to the danger arising from defendant’s negligence; or Other conduct falling below the standard of due care, i.e., for an adult, the conduct of

a reasonable man under like circumstances. Contributory negligence seeks a determination of how plaintiff’s contributory negligence affects

his right to civil reparation for the defendant’s negligence (whether it bars or simply diminishes his recovery of civil reparation from the defendant).

Consistent with the general rule, where the evidence on the issue of contributory negligence is conflicting, and would support a finding either way, the question whether plaintiff’s conduct fell below the conduct expected of a reasonable person under similar circumstances must be decided by the trier of the facts. The court sites exceptional examples of appropriate judicial findings that plaintiff’s conduct is negligent:

Andrews v. Valley Ice Co. (A construction worker who knowingly touched a high voltage power line must have known the danger of highly charged wires;

Mosley v. Arden Farms, Inc. (Decedent was warned not to touch power lines and is charged with “common knowledge” regarding the qualities of such forces…even if he is in fact ignorant of the danger.

The doctrine as applied in Mark

The issue of contributory negligence: As to so-called “category one” contributory negligence, there was no evidence that plaintiff knew or suspected that the light carried a high voltage current, or that he otherwise appreciated the risk of injury or death (The facts indicate that he had seen his roommates remove the bulb from the light on several occasions, without incident, and there was nothing in the appearance of the light pole or bulb to indicate any danger of electrocution); the issue on appeal is therefore whether the trial court was correct in holding, as a matter of law, that plaintiff should have appreciated the risk of injury or death when he attempted to unscrew the bulb.

Held: The trial record failed to support its conclusion that it is common knowledge that ordinary street lights contain high voltage current, or that a lay person knowingly risks substantial injury by attempting to unscrew the light bulb in an ordinary street light having the appearance and characteristics of the one which caused plaintiff’s death. At trial, PG&L will have the opportunity to prove that plaintiff “knew or should have known” of the danger of electrocution, but the question of his negligence may not be disposed of by dismissal or summary judgment.

Violation of statute: The Court recognized plaintiff’s admission that he violated a City ordinance making it unlawful to “… extinguish any public light” and the codification of the general rule that violation of a public statute is negligence per se, where the plaintiff is within the protected class contemplated by the statute, and the risk which caused plaintiff’s injury or death is the kind of risk the statute was enacted to prevent. However, the statutory language relied upon by PG&L, when read in para materiae with the remaining language of Section 585, suggests that the statute was not intended to deal with the risk of death by electrocution…This finding eliminates the need to evaluate plaintiff’s conduct in the context of the statute.

The birth of comparative negligence and the modification of the analytical approach to negligence and causation

In Li v. Yellow Cab, the California Supreme Court (following Florida in Hoffman v. Jones, 280 So.2d 431 (1973), rejects contributory negligence as a bar to recovery of civil reparation from a negligent defendant, and recognizes the doctrine of “comparative negligence” as a “partial defense” to liability in negligence cases, following the statutory abrogation of contributory negligence in 25 states by 1973 (now 46 states).

The judicial and academic criticism of the contributory negligence doctrine: It is an “all or nothing” approach; It fails to distribute legal responsibility for injury in proportion to fault;

Reasons for and against the adoption of “comparative negligence” as the analytical approach to the evaluation of plaintiff’s conduct in determining defendant’s liability in negligence cases:

The problems inherent in administering such a concept in cases involving multiple parties;

The difficulty inherent in fact-finding: The risk that juries would administer the rule by resorting to “quotient verdicts”;

The significance of related common law concepts, including the so-called “last clear chance” doctrine and the doctrine of assumption of risk.

The California Supreme Court’s rationale

for adopting “comparative negligence” The Li Court’s resolution of the arguments against the adoption

of comparative negligence as an analytical approach to negligence liability:

Jury guidelines and special verdict forms can assist juries in focusing on the determination of the extent to which defendant’s, and plaintiff’s conduct have contributed to the accident, and the allocation of responsibility for plaintiff’s injuries – as expressed in damages;

When the concept of comparative negligence – and its relation to a fault premise – is understood, the need for the “last clear chance” doctrine disappears;

Similarly, where plaintiff has unreasonably undertaken a specific, known risk created by defendant’s negligence, his conduct – known previously as assumption of risk – is, in reality a form of negligence (conduct by the plaintiff falling below the standard of reasonable care). In such cases, the prior doctrine of assumption of risk may be merged into the general scheme of assessment of liability in comparison to fault.

Modification of the doctrine of comparative negligence and assumption of risk: The defendant’s obligation to a negligent plaintiff

While Florida and California initially recognize a “pure” comparative negligence principle, allowing a plaintiff to recover from a negligent defendant that amount of his damages attributable to the defendant’s negligence, a majority of states now modify the doctrine in multiple defendant cases, and to reflect the burden of proof on the element of cause-in-fact: States, by common law or statute, may therefore reject recovery

where the plaintiff’s own negligence is the significant cause of his injury (where his negligence is equal to or greater than the defendant’s negligence when identified as a contributing factor to plaintiff’s injury); and

States, by common law or statute may limit plaintiff’s recovery in cases involving multiple defendants, by modifying the principle of joint and several liability.

The evolution of the doctrine of assumption of risk as a distinct defense to negligence liability: Murphy v. Steeplechase Amusement Company The plaintiff, a visitor to SAC’s amusement park, fell and sustained a fractured kneecap when he

stepped onto the moving belt of an attraction known as “The Flopper.” He knew the purpose of the attraction was not to serve as a moving sidewalk, escalator, etc., but was to provide a sporting experience which challenged participants to keep their balance without falling. This knowledge notwithstanding, plaintiff alleged negligence, claiming that the belt was “out of order,” in that it was operated at an unreasonable speed, and was not designed with a railing, guard or other device “to prevent a fall.”

In its most efficient sense, the Murphy Court’s opinion explains that where the particular risk (hazard) that causes plaintiff’s injury is a fall – and that is the very risk that was invited and foreseen by participants, the law recognizes no liability based upon fault.

While Murphy is an amusement park case, its principle is broader than sport: Murphy deals with what may be described as primary risk, the risk of injury inherent in the activity in question – and which cannot be eliminated by reasonable care (cf. the unsteady motion of a passenger train, which cannot be eliminated even by the most careful operation; the increased risk of falling while ice skating at an ice skating rink, as contrasted with walking on a sidewalk or natural pathway). If the risk and injury were attributable to defendant’s failure to maintain the padded area of “The Flopper,” causing plaintiff to fall onto a wood undersurface, the risk in question would not be “the risk that was invited,” and plaintiff would not be subject to the defense – but plaintiff did not allege such a breach of the defendant’s duty to maintain the padded area, and witnesses contradicted any such suggestion at trial.

The doctrine is thus stated that, where plaintiff is subjectively aware of, (has actual knowledge of, in fact) and fully appreciates, the particular risk that caused his injury, and has voluntarily chosen to encounter that risk, he is not entitled to recover for defendant’s alleged negligence (breach of duty.

Preconditions and application of the doctrine following Li v. Yellow Cab

Plaintiff’s decision to encounter the known risk must, in fact, be voluntary: See McDermott v. Platte County (Where plaintiff slips on defendant’s icy

parking lot while attempting to enter an exhibition hall, she may avoid the doctrine where the defendant has locked a more convenient entry door);

and see Jimenez v. Morgan Drive Away, Inc. (Where a mechanical emergency forces plaintiff to park his truck on highway emergency shoulder, he is not subject to assertion of the doctrine of assumption of the risk by a truck driver whose truck collides with his car).

Plaintiff does not assume the risk of defendant’s negligence where he has no reason to anticipate defendant’s negligent act or omission (Cf. inherent risk of activity vs. risk created by defendant’s breach of duty)

Plaintiff may be denied recovery where a specific risk has been the subject of an express contract:

Such contracts will, however, be strictly construed; Public policy (i.e., implication of public interest, unfair advantage or

coercion) may defeat the contractual agreement (e.g., unqualified releases of liability, releases required of a party with unequal bargaining power, etc.).

Knight v. Jewett: Limitation of the doctrine of assumption of risk and the preservation of comparative negligence doctrine

Following Li, the California court recognizes a “partial merger” of comparative negligence and assumption of risk:

Primary assumption of risk remains a complete defense to liability: In those instances where defendant has no duty to protect plaintiff from a particular risk, that conclusion may be expressed as plaintiff’s assumption of the inherent risk of injury (the moving train, the batted ball in the baseball park, etc.);

Secondary assumption of risk – plaintiff’s encountering of a risk created by defendant’s breach of a duty of reasonable care does not relieve the defendant of liability for his negligence, but is evaluated as conduct which should diminish plaintiff’s recovery under principles of comparative fault or comparative causation.

Such rules are consistent with the definition of contributory negligence in California (see Mark), and with Li’s basic holding that “[when] both parties are partially at fault for an injury, a rule which places all of the loss on one of the parties is inherently inequitable.” Li’s comparative fault principles reject the theory that a plaintiff essentially “consents” to defendant’s breach of duty, and instead embrace the concept of “equitable apportionment or allocation of loss” according to fault.