I got a defense to your claim of negligence
Plaintiff conduct can affect they right to recover damages
D aint entirely liable to P
Under common law two defenses used by D

Contributory, “contrib” if you’re cool
It’s a complete bar if you follow that school
Got a duty of reasonable care for your own safety
So when you walk across the busy road don’t be hasty

But if the speeding car
Had the last clear chance
There is no bar
And you can do the full recovery dance

Assumption of risk, deliberately voluntarily encounter a risk
Created by D’s negligence
P can’t recover damages as a consequence
Of assuming a risk understood to exist

Modernly we use comparative fault
Apportion liability based on percentage of fault
Reduce recovery proportionately
To the degree fault in causing all the damage is P’s

Unless it is modified
Then we got one more rule to apply
If defendant is less than 50% of the fault
Not go’n’ be able to recover at all

Defendant’s council charges a reasonable hourly rate
To raise a defense to the plaintiff’s claims of negligence

Assumption of risk, still gotta talk about this
Voluntarily assume the risk you fully understood to exist
Explicitly we call that express
As in: “Your honor the defendant’s counsel rests”

Implied assumption that’s the fireman’s rule
So if you try to recover damages it’s not cool
Primary assumption of risk
The defendant wasn’t negligent

Secondary like when there is slippery ice
You encounter it too bad that the result was not nice
Yeah it’s too bad, ‘cause that’s a complete bar, Yikes!

Joint liability.
Each party responsible for all the damages to P
P got the option.
Of getting all of his damages from one D

Several liability.
Each party responsible
for the harm that he caused to D
Unless it is indivisible damage
Then P can recover from whomever he can manage

And if they both shot at the same time
When your huntin’ party got out of line
One of ‘em gotta prove that they didn’t do it
To get away from the damages that you is pursuing

Market share, plaintiff not aware
Of exactly who to blame for breaching reasonable care
D gotta prove he did not supply
Gonna pay fair market share otherwise

And if you cause a loss of chance of survival
Ya liable for the grim reaper’s arrival
Granted it’s a little more complicated than that
You actually got to do a little bit of math

Contribution, if two Ds
Are liable jointly and severally
One pay more than his pro rata share?
Well he can recover from the other if he care

Indemnity recover entirely from the other D
Unless the court order that it be paid by thee
Traditionally tortfeasers one legal entity
Modernly some use the rule made up in Cali

Partial equitable indemnity or comparative indemnity
You can call it whatever you want to call it
Tobriner made it up out of the law that is common.

Defendant’s counsel charges a reasonable hourly rate
Make sure defendants don’t gotta pay for another party’s negligence


Plaintiff's Conduct

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