November 21, 2008
A. Contributory Negligence
Affirmative defence, must be raised and proven by D
If P was negligence, then they may not recover anything, totally bars recovery by P if P’s neg
was a substantial factor in the accident.
If the P’s neg contributed to the accident, there is a total bar, no matter how much the P’s neg
contributed, it is a total bar.
Failure to wear seatbelts and motorcycle helmets is not CN because it didn’t cause the accident,
it aggravates the damages.
P has a right to recover something, but not the damages that occurred because you didn’t have
your seatbelt on, anticipatory precautions to be taken before accident occurs, available
Not defences to intentional torts. If D’s actions are intentional acts, no CN
The last clear chance (must be raised and proven by P): Farmer puts his donkey on the road
(neg), D comes along, and runs into the donkey, D had the last clear chance to avoid the
P neg puts himself in a position of peril
After that, P no longer has the opportunity to avoid harm.
D comes along, and neg causes an accident and D had an opportunity to avoid the harm, then D
had the last clear chance
When we have LCC in a CN jurisdiction, P starts the cause of action, D says CN, and P says
D has to prove CN, when he does, P has to show LCC and when P proves this, then P can
Butterfield v. Forrester
King’s Bench, 1809
Law: If a man lays logs of wood across a highway, though a person may with care ride safely by, yet if
by means thereof my horse stumble and fling me action ensues.
Facts: The pl was injured after striking an obstruction in the roadway. The df while making repairs to
his house, put a pole across the road. The pl, who had just left a public house as it neared dark, while
riding his horse violently through the streets of Derby, struck the pole and was seriously injured. A
witness state if the pl had not been riding so he would have observed the pole. There was no evidence
the pl was intoxicated at the time.
Reasoning: One person at fault will not dispense with the requirement that another person use ordinary
car for himself. Riding a horse as fast as it could go through the streets, near dark is not the exercise of
ordinary care. A person cannot ride upon a hazard and expect the other to be solely at fault when he
shares in the fault.
Issue: Whether the pl has a duty of care to avoid the negligent acts of the df?
Procedure: Jury trial for the df, Rule is refused.