1. Defenses to Negligence

2. Defenses in Tort Law Has P made out a prima facie case?
If not, the P’s claim fails and will be dismissed.
If P has made out a prima facie case, ask:
Does D have any affirmative defenses?

3. Comparative Negligence

4. Contributory, Comparative Negligence
P’s conduct fell below the standard of care, and P’s breach is both the cause in fact and the proximate cause of the accident resulting in the injury.
Breach: P knew or should have known of the foreseeable risk, and acted unreasonably in light of the risk by failing to exercise due care.
Causation: Is it more likely than not that the incident could have been avoided if P had used due care?

5. Comparative Negligence
Pure Comparative Negligence: P can recover something no matter how negligent he was.
Modified Comparative Negligence: P recovers only if he was as negligent or less negligent than D.
50% rule: “P’s fault does not exceed D’s;” “P’s fault was not greater than D’s.”
49% rule: “P’s fault was not as great as D’s;” “P’s fault was less than D’s.”
Which rule does McIntyre use? N.Y? Colo.? Or.?

6. Comparative Negligence
If P and D are each 50% negligent, and P suffers $100K in damages, how much will P recover?
In New York?
In Oregon?
In Colorado?

7. Exceptional Cases
Very limited policy exceptions to comparative negligence doctrine:
Manning: Negligent P may not collect at all.
Fritts, Ouelette: Negligent P may collect in full.

8. Manning v. Brown
Rule: A P cannot recover for injuries directly resulting from P’s serious violation of the law.
Here, the duty P claims was breached arises out of the illegal act.
Compare Alami v. Volkswagen: Volkswagen has an independent duty to manufacture safe cars; a drunk driver can recover for injuries exacerbated by the car’s defects.

9. Fritts v. McKinne
In Fritts, the court allowed P’s case against the negligent doctor to go to trial, even though P’s negligence caused his injury.
How do we square Fritts with Pridham v. Cash and Carry, which held that D1’s negligence is the proximate cause of medical injuries resulting from rescue by D2?

10. Problem: Van Vacter v. Hierholzer
Facts:
P has a heart attack, is told by his doctors to stop smoking, start exercising, take medication.
P is non-compliant.
5 years later, P arrives at a hospital complaining of chest pain, and is sent home, dies.
P sues the D physician who sent him home.
Jury is instructed on contributory negligence. Finds P 93% responsible for his injury, and awards no damages.
Should the jury’s verdict be upheld on appeal?

11. Problem: Van Vacter v. Hierholzer
“[Plaintiff’s conduct] was not a proximate cause of [his] injury, except to the extent it described [his] failure to obey [Defendants’] treatment instructions[.] Rather, it gave rise to his condition and the occasion for [Defendants’] negligence. It was not a basis for the jury to apportion fault to him for any injury caused by [Defendants’] negligence. … Because [Plaintiff’s] actions … were not a proximate cause of his death, it was not proper for the jury to have considered them in mitigating past economic damages.”