(1) Murphy, p. 470 (the AFlopper@ case). Basis of opinion:(a) express B not included in comparative fault; still a total bar(b) implied1) primarya) Because this concerns duty, which is an element of cause of action for negligence:i) it is not an affirmative defense, andii) it functions as a total bar.b) Does this approach confuse duty of due care with breach of duty of due care? (see n. 6, p. 474) What difference does it make? Consider2) secondary B affirmative defensea) unreasonableb) reasonable (but see b-(2) above)(a) negligence except for “sphere of parental authority and discretion” concerning food, clothing etc. (bottom of p. 219) )(b) “reasonable parent” standardNOTE: See (2)(a) belowDEFNEG.13TORTS OUTLINE– HUBBARDDEFENSES TO NEGLIGENCEI. Introduction to defenses. Role in trial--distinction between: (1) defending (preventing plaintiff from satisfying plaintiff’s burden of proof); and (2) affirmative defense (defendant must plead and prove).II. Defenses Based Upon Plaintiff’s Actions: Contributory Negligence, Assumption of Risk, and Comparative Negligence.A. Contributory Negligence1. Overview of Contributory Negligencea. Elements of Defense—“Mirror image” of defendant’s negligence(1) Duty: As a general rule, there is a duty to anticipate defendant’s negligence (p. 433). However, seatbelts are “special” (pp. 456–457)(2) Plaintiff negligent (or negligence of someone “imputed” to plaintiff). Same “tests” as with defendant:(a) reasonable person(b) calculus of risk(3) Causation(a) in fact (See “avoidable consequences” at 3 below)(b) proximate cause. Note that plaintiff=s negligence incausing initial injury is irrelevant to claim for malpractice in treating or for other negligence aggravating the initial injury. (pp. 452–455)b. Effect: At common law, total bar to an action for negligence except where:(1) Defendant was wanton, willful or reckless(2) Defendant had last clear chance(3) Duty was to protect V from V’s negligence(4) Rescue Situations1[Note: These topics are addressed in detail at “3” below.][Note: The exceptions can be said to function as a crude form of comparative fault.](5) Avoidable consequences. This doctrine is not an exception but a limit to liability based on causation. It is applicable where it is possible to apportion damages based on cause-in-fact. [This doctrine is addressed in detail at “4” below.] NOTE: Today, the law in most states has a different effect because cases and statutes have modified the effect of CN in most jurisdictions so that some form of comparative negligence is used. Where this is done, contributory negligence usually functions as a partial bar to recovery. (See “B” below) 2. Policy analysis of doctrinea. Review of reasons for imposing liability on the negligent defendant(1) Efficiency -- Deter inefficient conduct by imposing liability where SC less than AC(2) Fairness -- negligent defendant is a “wrongdoer” and he should restore the person injured by the wrong to status quoante (rectificatory justice)b. Reasons for barring recovery where plaintiff also negligent(1) Efficiency(a) deter inefficient conduct by plaintiff by forcing him to bear his loss(b) reduce administrative costs by barring recovery(2) Fairness - plaintiff is also a wrongdoer and defendant shouldnot have to pay for loss caused (at least in part) by plaintiff’s wrongdoingc. Critique of total bar for contributory negligence (This critique is important because it lays a groundwork for analysis of comparative negligence.) (1) Efficiency(a) Deterrence. Traditional doctrine does not seek to 2impose liability on BCA (ABest Cost Avoider@).1) Total bar enables a negligent defendant to escape liability. More specifically, total approach of doctrines like CN and LCC may not result in efficient result because, even though both P and D are negligent, one or the other may be the most efficient cost avoider and we should seek to impose liability on that actor. For example, if accident costs are $1,000 and if P could prevent for $200 and D for $10, D is the most efficient cost avoider, yet only P would be liable (and thus forced to spend $200) under doctrine of CN. Thus, we have suboptimal deterrence in terms of D. Note, however that recklessness may achieve this goal if recklessness is defined as extreme disparity between safety costs and accident costs.2) Deterrence model is based on assumptions about knowledge, choice, and rationality thatare not applicable in real world. People are often inattentive, ignorant, irrational, tired, etc. Thus, our rules should focus on actual ability to reduce/eliminate accidents and allocate liability accordingly.3) Plaintiffs do not fully recover accident cost (given attorneys fees, “hassle factors,” etc.). Therefore, need not bar from recovery in order to provide incentive to be careful(b) Spreading. This concern is generally not involved in traditional fault system. (c) Administrative costs are high because determining negligence on a case by case basis is expensive. But this cost exists despite role of victim’s negligence unless treatment of such negligence impacts on settlements. (2) Fairness(a) With total bar (even with exceptions as a crude comparative fault system) either the defendant (CN, AR) or the plaintiff (LCC, recklessness) gets off 3“scot free.” Thus, for example, defendant is able to escape liability totally even though his wrong caused(at least in part) plaintiff’s injury.(b) Distributional impact of rule is to make injurers richer and victims poorer. Fairness requires at least some justification of this impact. Deterrence only provides a partial justification because where both defendant and plaintiff are negligent or where both use due care, it does not matter which is liable from the perspective of deterrence unless we say something about relative ability to avoid accidents. (See discussion of BCA above.) Similarly, the fairness of distributional impact is troublesome unless we know more about other efficiency concerns:1) administrative costs – i.e., does total bar reduce/increase the number of suits and/or simplify/complicate resolution of claims2) spreading(c) Problems of equal treatment where juries may secretly use comparative scheme in some cases but not others. (See pp. 437–438) 3. Exceptions to doctrine that CN is a total bar to recoverya. Defendant was reckless, wanton, or willfully negligent (p. 435)(1) Definitions