PROBLEM ON COMPARATIVE NEGLIGENCE AND APPORTIONMENT
TORTS II
SPRING 2008
PROFESSOR GHOSH
SMU DEDMAN SCHOOL OF LAW
Plaintiff signed up for a scuba diving trip. She was an experienced diver and had learned about the trip through the Internet. When she signed up online for the trip, the registration form included a term that stated: "Customer will not hold the Company liable for any ordinary injury that occurs in the course of the underwater vacation." Plaintiff had read the term and checked it off all with the other portions of the contract.
While underwater, Plaintiff experienced some harm to her ears that resulted from her failure to regulate her breathing while descending. While underwater, Plaintiff also ventured away from the group and into a school of manatees. One of the manatees bumped into Plaintiff, causing her breathing tube to become lose. As she was losing pressure, she was rescued by the leader for the group, an agent of the company, that lead her safely to the surface.
As a result of this accident, Plaintiff suffered injury to her eardrums and experienced problems with her breathing. She brought a suit against the Company for negligence in supervising the group underwater and failure to warn her about the manatees. The jurisdiction in which Plaintiff brought the suit: (1) recognizes comparative negligence; (2) had subsumed most of the common law defenses and claims under comparative negligence, except as indicated below; (3) imposes joint and several liability only if the defendant is found more than 50 % at fault; (4) does not allow a plaintiff to recover if the plaintiff is found to be 50 % at fault or more.
Plaintiff's damages were found to be as follows: $ 15,000 for the harm to the eardrums; $ 30,000 for the attack by the manatees and resulting injury.
Answer each of the following questions, using this information for each question.
(A) The leader of the group, like other agents of the Company, is an independent contractor. As a condition of agency, the leader signed a contract agreeing to indemnify the Company for any claims brought against the Company resulting from accidents that occurred during a trip. Explain what an indemnity is and the possible effects on the litigation between Plaintiff and Company. [Note: Look at this after Spring Break]
(B) Suppose the leader is joined as a defendant in the litigation between Plaintiff and Company. The jury determines that Plaintiff was 40% at fault and the the Company and leader were each 30 % at fault. Explain whether Plaintiff can recover and use joint and several liability under these facts.
(C) Consider the cases on assumption of risk and comparative negligence, discussed in class. What would be the result of the law suit of Plaintiff v. Company and Leader under the various rules regarding assumption of risk?
Suggested Answers
(A) An indemnity is an agreement between two individuals A and B under which A becomes liable to B under certain conditions if B is found liable to a third party. In this case, since the leader agreed to indemnify the Company for claims brought against the Company resulting from accidents that occurred during a trip, the Company can seek indemnity fro the leader if the Company is found liable to Plaintiff. Most likely, the Company will seek to join the leader into the law suit as a co-defendant.
(B) In this jurisdiction, a plaintiff is denied recovery if he is found to be 50% or more at fault. Here, Plaintiff's fault falls below 50 % and so she can recover. She will be able to recover 60 % of her judgment from the defendants. In this jurisdiction, joint and several liability applies only for a defendant who is more than 50 % at fault. Here neither defendant meets that threshold. As a result, joint and several liability will not available to the plaintiff. The Company and the leader will be independently liable for their respective shares of the judgment, in other words, 30 % of the $ 45,000 each.
(C) In some jurisdictions, express assumption of risk and primary assumption of risk survive as defenses while secondary assumption of risk is subsumed under comparative negligence. In other jurisdictions, express assumption of risk survives as a defense and both primary and secondary assumption risk are subsumed under comparative negligence.
In the first type of jurisdiciton, the defendants can argue that the damage to the eardrums is an "ordinary injury" whose risk Plaintiff assumed by signing the contract. It seems that the injury arose from Plaintiff's failure to regulate the pressure on her eardrums while descending, a standard problem in diving. Assuming that the risk to the eardrum was caused by Plaintiff's failure to regulate, the implication of this argument would be that Plaintiff would be denied all recovery on the $ 15,000 as damages to her eardrum. Furthermore, the defendants may argue that Plaintiff should be denied all recovery because her wandering off and being hit by the manatees constitute primary assumption of risk. Primary assumption of risk applies to situations where the defendant is deemed not to owe a duty to the plaintiff because the nature of the activity is well known and the risks obvious. If primary assumption of risk applies, Plaintiff will not be able to recover anything since assumption of risk is a complete defense. On the other hand, if her wandering off and being hit are treated as secondary assumption of risk, then Plaintiff's recover of the $ 30,000 would be reduced by the percentage of Plaintiff's fault (which the jury found here to be 40 %).
Applying the first type of jurisdiction to these facts, the analysis of express assumption of risk would be the same as above. Furthermore, the second type of jurisdiciton subsumes all implied assumption of risk, whether primary or secondary, under comparative negligence. Therefore, in Nevada, Plaintiff's injuries from wandering off and being hit will be reduced by her percentage of fault, here 40%.