Activity Time:

2 hours; Additional Time for Study, Research, and Reflection: 1 hour

Directions:

You are employed as a paralegal at Smith, Johnson and Anderson in the corporate legal department. You are part of the legal team defending against a serious crossing accident in which the plaintiff entered the railroad tracks because the required whistles were not given to signify that a train was approaching. The plaintiff, Bill Larson, testified that he was wide awake and that even though the accident occurred at 10 p.m. by Joe’s Bar and Grill that he had not been at the bar drinking.

Bill received a minor injury to his neck and his left leg was broken. In his lawsuit, he is seeking damages for the five months he could not work, medical expenses, past pain and suffering and future pain and suffering as his left leg has never been the same since the accident.

As you are working on the case, you sent for and received his medical records which included the emergency room records. In the records you read that he had odor of alcohol on his breath. He stated to the nurse that he did hear the whistles of the train, but thought he could beat the train.

Also, included in the records was a report that was written at his last visit to the doctor. The doctor said that the strength of his leg was normal. Bill told the doctor that the pain was gone and his leg “feels better than before the accident.” The doctor concluded that the leg was completely healed and there was not any permanent damage to the leg.

Discuss if there are any potential problems Bill might have with proving any of the four elements of negligence in the case against the railroad.

Reference

Jeffries, R. (2014). Torts and personal injury law for the paralegal. Upper Saddle River, NJ: Pearson.

Difference Between Comparative Negligence and Contributory Negligence

Comparative Negligence

When looking at defense tactics, comparative negligence is often used. With comparative negligence, we are looking at the percentages of fault in a case. An example of the “pure” form of comparative negligence is in a car accident when the plaintiff was 20% at fault, the plaintiff would recover 80% of the damages awarded. Even if the plaintiff was 80% at fault, the plaintiff would still receive 20% of the damages awarded.

If there are multiple defendants, each defendant would pay their percentage of fault in damages. You will need to look at your state’s rules regarding comparative negligence as some states may not allow recovery from a certain defendant if the plaintiff’s percentage is not greater than the defendant’s fault. An example would be where: 1. Plaintiff is 20 percent at fault. 2. Defendant 1 is 20 percent at fault. 3. Defendant 2 is 50 percent at fault. 3. Defendant 3 is 10 percent at fault. Plaintiff could not recover damages from Defendant 3. However, if the liability is joint and several, the plaintiff could get recovery against either or both of the defendants for the full amount of damages.

Note: Some states have a “50 percent” rule where if the plaintiff is more than 50 percent at fault they cannot receive any of the damages awarded.

Contributory Negligence

Another defense tactic is the use of contributory negligence. When a plaintiff brings a case forward, they are using the reasonable person standard. In a reasonable person standard, the court is looking at the question of whether the behavior was at least as a reasonable person would use.

Under the contributory negligence, if the plaintiff is even a bit negligent, the plaintiff is barred from recovery.

An example would be a car accident in which the plaintiff was on his cell phone and listening to the radio; the defendant was drunk and ran a red light. In this case, under contributory negligence, the plaintiff would be barred from recovery.