Chapter 9

Fault of The Plaintiff

§1. Contributory Negligence: The Common Law Rule
Butterfield v. Forrester
Facts:
 While repairing his house, Forrester (defendant) placed a pole across a public road. This created a partial
obstruction of the road but left some parts of the road unobstructed.
 Butterfield (plaintiff) left a public house and began riding his horse extremely hard down the road. The
obstruction caused by Forrester was visible from one hundred yards away to a person exercising ordinary care.
Butterfield was riding so hard - not exercising ordinary care and did not see the obstruction. He crashed into it,
was thrown from his horse, and experienced severe injuries. Butterfield brought suit for damages against
Forrester.
 At trial, the jury found Butterfield was not riding with ordinary care and issued a verdict for Forrester.
 Butterfield appealed.
Issue:
 Whether a defendant, whose negligent conduct led to injury or damage upon the plaintiff, should be held liable
for the injury when the plaintiff could have avoided the damage by riding with reasonable ordinary standard of
care.
Rule/Analysis:
 Rule
o When a plaintiff fails to use ordinary care in avoiding an obstruction caused by a defendant, the plaintiff may
not recover damages from the defendant.
 The plaintiff’s failure to exercise reasonable and ordinary care in this case is a complete bar to recovery
from the defendant, initializing the concept of contributory negligence.
 Analysis
o The actions of the defendant do not excuse the plaintiff from his obligation to exercise ordinary care and skill
in performing his own conduct. Several witnesses testified that Butterfield was riding his horse extremely hard
and with a lack of ordinary care. These witnesses also testified that if Butterfield had not been riding so hard,
he would have seen and easily been able to avoid the obstruction caused by Forrester. Butterfield may not
recover from Forrester because he failed to exercise ordinary care in avoiding Forrester’s obstruction.
o Butterfield may not recover from Forrester because he failed to exercise ordinary care in avoiding Forrester’s
obstruction. When a plaintiff fails to use ordinary care in avoiding an obstruction caused by a defendant, the
plaintiff may not recover damages from the defendant.
Holding/Reasoning:
 Holding: Bayley
o The decision of the lower court is affirmed.
 Reasoning:
o Butterfield’s failure to comply with his duty of ordinary care prevents him from recovering for damages from
Forrester.
o If Plaintiff had used ordinary care, then he would have seen the obstruction. The accident was entirely
Plaintiff’s fault.
 Concurrence: Chief Justice Lord Ellenborough
o Plaintiff cannot recover for hitting an obstruction caused by the fault of Defendant if Plaintiff did not use
common and ordinary care to avoid the obstruction.
o One person’s fault will not dispense with Plaintiff’s duty to use ordinary care.
o For Plaintiff to recover two things must occur:
(1) an obstruction in the road by the fault of Defendant; and
(2) no want of ordinary care to avoid it on the part of Plaintiff.
Pohl v. County of Furnas
Facts:
 Justin Pohl was driving at night with light snow falling when he mistakenly turned onto Drive 719– Drive 719 is a
gravel road that has a general statutory limit of 50mph and has a ninety- degree curve one mile after its
intersection. Pohl accelerated to 63mph, neared the warning sign, braked too late to prevent the car from missing
the curve and hit an embankment. He remained in the car all night since he was unable to walk and managed to
drag himself to get help the next morning. He had a fracture and cord compression in his thoracic spine as well as
frostbite in his feet
 At trial, a traffic engineer testified that the sign did not comply with the standards set by the US Department of
Transportation’s Manual on Uniform Traffic Control Devices––He explained that the sign lacked retro reflectivity
and the distance between the sign and the curve was not enough to provide drivers with adequate notice of the
curve ahead ––He explained thar had Pohl been driving at the speed limit, he would have entered the curve and
still left the roadway.
 A Nebraska State Trooper who specializes in accident reconstruction testified that if Pohl had been traveling at
the speed limit and had braked when his car aligned with the sign, he would have had a less severe accident
 The district court found that the county was negligent because of the “combination of the sign’s lack of retro
reflectivity and its placement.... it further found that this negligence and Pohl’s negligence in driving over the
speed limit were the proximate causes of his accident and injuries. In assessing the responsibility for the accident
and Pohl’s injuries the court allocated 60% of the negligence to the county and 40% to Pohl
o The county appeals.... Pohl cross appeals
o Because the record supports the district court findings that the sign was neither retroflected nor adequately
placed to warn nighttime drivers, the court did not err in finding the county negligent.
 The county argues that Pohl cannot show proximate cause because his speeding was an efficient intervening
cause. On cross appeal, Pohl contends that the district court erred in finding that his injuries would have been less
severe had he not been speeding
o It was reasonable to find that the accident would have been less severe –sThe district court did not err
 Pohl contends that even if the district court’s determinations regarding negligence and proximate cause were
correct, it should have been apportioned less negligence to Pohl.
Issue:
 Whether the County is negligent in their placement and maintenance of the warning sign and thus, Pohl’s injuries
Rule/Analysis:
 Rule
o An efficient intervening cause is new and independent conduct of a third person, which itself is a proximate
cause of the injury in question and breaks the casual connection between original conduct and the injury.
Nebraska law makes clear that an intervening cause cut off a tortfeasor’s liability only when it is not
foreseeable. Contributory negligence occurs where the plaintiff breaches a duty of care, and his breach concurs
and cooperates with the defendant's negligence to form a proximate cause of the injury
o Under Nebraska law, a plaintiff is barred from recovery if his negligence is equal or greater than that of the
defendant. Contributory negligence is an affirmative defense that must be proved by the party asserting it.
o The apportionment of negligence is solely a matter for the fact finder and this action will not be disturbed on
appeal if it is supported by credible evidence and bears a reasonable relationship to the respective elements of
negligence proved at trial.
 Analysis
o Testimony at trial indicated that Pohl’s travel 13 mph in excess of the speed limit was readily foreseeable
o Since the existence of such contributory negligence is a question of fact, there is a clear error in the district
court’s undervaluing of Pohl’s contributory negligence.
Holding/Reasoning:
 Holding:
o Affirmed the judgement of the district court
 o The evidence supported the district court’s finding that negligence of both parties contributed to Pohl’s
injuries. Attributing 40% of the negligence to Pohl was reasonable considering the evidence that the accident
would still have happened at a lower speed but with less severe injuries.

Apportioning Responsibility
Restatement (3) of Torts: Factors for assigning shares of responsibility

All-Or-Nothing Judgments After Comparative Fault

 No Plaintiff Negligence:
 Plaintiff Negligence that is not a factual cause of injury:
 Plaintiff injury that is within the scope of the risk created by the plaintiff’s negligence:
 No defendant negligence:
 Sorting claims into all-or-nothing or comparative elements:
 Plaintiff’s fault as a superseding cause of the harm:
 Causal apportionment of separate injuries:
 The mitigation of damages rule: How do you mitigate damages?
o If you don’t mitigate the damages- you may be at part responsible for the damages
o You have a duty to mitigate
o Any time you have an affirmative defense, the defendant has the burden of proof.
o “Unreasonably”- the defendant must persuade the jury that the injury is unreasonable.
 What is unreasonable to the other person- example: what if a person is allergic to antibiotic.
 Question of temporal life vs eternal life
o Last clear chance of avoiding harm- P is liable if he fails to take that opportunity.

Allocating Full Responsibility to The Defendant in The Interest of Policy or Justice

Bexiga v. Havir Manufacturing Corp.

Facts: Supreme Court of New Jersey
 John Bexiga, Sr. (plaintiff), a New Jersey resident, sued Havir Manufacturing Corporation (Havir) (defendant) for
injuries sustained by his minor son, John Bexiga, Jr. (the son). While the son was employed by Regina
Corporation and operating a metal press manufactured by Havir, his hand was crushed. The press was not
equipped with any of various available safeguards, and Bexiga's evidence showed that at least one such safeguard,
a basic push-button device, might have prevented the son's accident while being compatible with Regina's
operational needs. Havir's defense was that, in accordance with industry practice, it relied on Regina to install
compatible safeguards.
 The trial court dismissed the case and Bexiga appealed to the Appellate Division. The appellate court affirmed the
trial court, holding that Bexiga's evidence did not make out a prima facie case in strict liability, breach of
warranty, or negligence.
 Bexiga appealed to the Supreme Court of New Jersey.
Issue:
 If there is an unreasonable risk of harm to the user of a machine with no protective safety device, does the jury
decide issues of strict liability and negligence?
Rule of Law/Analysis:
 Rule:
o Restatement (Third) of Tort: Strict liability applies to anyone “who sells a product in a defective condition
unreasonably dangerous to the user or consumer or his property.”
o If there is an unreasonable risk of harm to the user of a machine with no protective safety device, the jury
decides issues of strict liability and negligence.
 Analysis:
o If there is an unreasonable risk of harm to the user of a machine with no protective safety device, the jury
decides issues of strict liability and negligence. These are questions of fact rather than questions of law. Given
 the public interest in ensuring that safeguards are installed on dangerous machinery, if installation at the
factory was feasible, the manufacturer is not immunized from liability by its expectation that the end user
would install such safeguards.
o It is foreseeable that a worker in that company could become injured by the machines.
o The defendant’s scope of duty is to protect the worker by providing the safety measures.
o Here, Bexiga's evidence showed that his son's accident could have been prevented by a basic push-button
device. The jury should have been allowed to determine:
(1) if it was feasible for Havir to install the device, or whether the device could have made the metal press
unusable for Regina's purposes;
(2) if the metal press's design was so inherently faulty as to make Havir strictly liable for injuries arising from
the machine's operation; and
(3) if under the circumstances Havir's failure to install a safeguard was negligent.
Holding/Reasoning:
 Holding: The trial court erred in foreclosing the jury's consideration of these questions. The appellate court erred
in upholding the trial court's ruling. The judgment is reversed, and the case is remanded for a new trial.
 Reasoning:
o Where there is an unreasonable risk of harm to the user of a machine which has no protective safety device, the
jury may infer that the machine was defective in design unless it finds that the incorporation by the
manufacturer of a safety device would render the machine unusable for its intended purposes.
o The Bexiga court addressed and amplified what it considered the primary public policy concerns: “The public
interest in assuring that safety devices are installed demands more from the manufacturer than to permit him to
leave such a critical phase of his manufacturing process to the haphazard conduct of the ultimate purchaser.
The only way to be certain that such devices will be installed on all machines, which clearly the public interest
requires, is to place the duty on the manufacturer where it is feasible for him to do so.”
Class Notes:
 Plaintiff’s having some fault in causing their own injury.
 “Whether he had a meaningful choice in the manner in which he performed his assigned task”
 “Scope of the risk”-important
 Nonreciprocal: the plaintiff is not creating a risk to anyone but himself- the defendant’s negligence may be
creating risks for other people.

Christensen v. Royal School District No.160

Facts: Washington Supreme Court
 A teacher employed by the district (defendant) engaged in a sexual relationship with Christensen (plaintiff), a
thirteen-year-old female student. Christensen brought a negligence claim against the district for negligently hiring
and supervising the teacher. The district claimed that Christensen had voluntarily participated in the sexual
misconduct and that therefore she should be considered contributorily negligent. The trial court requested an
answer to the certified question of whether a minor child can be held contributorily negligent for engaging in
sexual misconduct with a schoolteacher.
Issue:
 Do minor children have a duty to protect themselves from sexual abuse by their schoolteachers?
Rule of Law/Analysis:
 Rule:
o Children do not have a duty to protect themselves from sexual abuse by their teachers. Moreover, the supreme
court concludes that contributory fault may not be assessed against a 13-year-old child based on the failure to
protect herself from being sexually abused when the defendant or defendants stand in a special relationship to
the child and have a duty to protect the child.
o Public policy concerns dictate that minor children do not have a legal duty to protect themselves from sexual
abuse by their school teachers.
 Analysis:
 o A minor student does not have a legal duty to protect him or herself from sexual abuse by a teacher. Whether a
legal duty exists depends on many factors, including justice, policy, and common sense.
o The District points to cases that hold minor children contributorily negligent, however, none of these cases
involve alleged sexual abuse.
o Public policy seeks to protect students from abuse by their teachers. Imposing a duty on children in this
situation would impede the policy goal by weakening deterrence against potential abusers and by providing
teachers with a defense in these lawsuits.
o Washington law recognizes that schools have a duty to protect students from any reasonably anticipated
dangers. This rule echoes the same policy concerns of protecting students from abuse.
o Public policy requires holding that children do not have a legal duty to protect themselves from sexual abuse
by their schoolteachers and that the certified question be answered in the negative.
Holding/Reasoning:
 Holding:
o Thus, children do not have a duty to protect themselves from sexual abuse by their teachers. A defense of
contributory fault should not be available to a perpetrator of sexual abuse or to a third party that is in a position
to control the perpetrator. A school has a special relationship with the students in its custody and a duty to
protect them from reasonably anticipated dangers.
o However, the school is not precluded from claiming that it is not negligent because Plaintiff lied about the
relationship upon questioning, thereby thwarting the school’s efforts to ascertain if Plaintiff was being abused.
 Dissent (Sanders, J.)
o Washington law allows for a minor to be contributorily negligent, and there is no reason to alter this rule for
acts of sexual misconduct. The majority’s rule provides an incentive to minor students to engage in sexual
misconduct by allowing a child to intentionally seduce a teacher, and then sue the school without the risk of a
court finding contributory negligence. Washington law imposing a duty on schools to protect their students
does not absolve the students of responsibility. The majority’s rule is unfair, and the certified question should
be answered positively.

Class Notes
 Notes on pages 346-348
o Rights & entitlements: courts will hold the P not liable as a matter of policy instead of saying as a matter of
law.
o Children are vulnerable–> foreseeable for sexual activity to occur.
Traditional Exceptions to the Contributory Negligence
 Cases that allocate full responsibility to the D even after a shift to comparative fault may draw on traditional
exceptions to the contributory negligence bar.
A. The Rescue Doctrine: we only hold the rescuer negligent if his conduct was reckless.
o
o Even if the rescuer is negligent, they may be found not negligent.
B. Last Clear Chance or Discovered Peril
o
C. Defendant’s Reckless or Intentional Misconduct
o

Plaintiff’s Illegal Activity

Dugger v. Arredondo
Facts: Supreme Court of Texas
 Geoffrey Dugger (defendant) and Joel Martinez drank, smoked marijuana, and snorted black-tar heroin. Martinez
passed out and started choking. Dugger did not call 911 immediately, and when he did, he did not inform the
paramedics that Martinez had snorted heroin. Martinez died less than two hours later. Martinez’s mother, Mary
Ann Arredondo (plaintiff) brought a wrongful death suit against Dugger, alleging negligence. Dugger asserted as
an affirmative defense the unlawful acts doctrine, citing Martinez’s use of illegal drugs.
  The trial court granted Dugger’s motion for summary judgment based on this doctrine.
 The court of appeals reversed and remanded the case for trial. Dugger appealed.
Issue:
 Does a plaintiff’s unlawful conduct that contributes to the plaintiff’s injury completely bar the plaintiff’s
recovery?
Rule of Law/Analysis:
 Rule:
o Unlawful act doctrine: which completely bars a plaintiff from recovery if at the time of the injury, the plaintiff
was engaged in an unlawful act that was “inextricably intertwined with the claim and the alleged damages
would not have occurred but for the illegal act.”
 Analysis:
o A plaintiff’s unlawful conduct that contributes to the plaintiff’s injury proportionately reduces, but does not
completely bar, the plaintiff’s recovery. The court eliminates the unlawful acts doctrine as an affirmative
defense.
o At common law, the unlawful acts doctrine barred a plaintiff from recovering damages if it was shown that at
the time of the plaintiff’s injury, the plaintiff was engaged in an illegal act that contributed to the injury.
o The state legislature’s adoption of a comparative fault scheme evinces an intent to apportion a plaintiff’s illegal
conduct, as opposed to barring the plaintiff’s recovery outright.
o In this case, the trial court erred in granting Dugger summary judgment based on the unlawful acts doctrine.
o The legislature’s adoption of comparative fault effectively eliminated the unlawful acts doctrine. Accordingly,
Dugger cannot use the doctrine as an affirmative defense.
Holding/Reasoning:
 Holding:
o The Court affirmed the judgment of the court of appeals, which reversed the summary judgment and remanded
the case to the trial court.
o The Court held that the common law unlawful acts doctrine is not available as an affirmative defense in
personal injury and wrongful death cases. Unless the requirements of the affirmative defense are satisfied, a
plaintiff's share of responsibility for his or her injuries should be compared against the defendant's.
 Dissent (Hecht, J.)
o The unlawful acts doctrine should be upheld, even after the legislature’s adoption of comparative fault. The
doctrine of comparative fault awards a plaintiff recovery based on an apportionment of fault. To the contrary,
under the unlawful acts doctrine, there is no such apportionment, because the plaintiff’s unlawful conduct bars
recovery altogether. Eliminating the unlawful acts doctrine will reward criminals for their illegal conduct.

Class Notes
