Case Law Bonus Post: Jackson v. Bryan

Outline:

• There are two affirmative defenses useable against action brought for harms caused by the defendant’s recklessness
• A plaintiff’s own recklessness
• A plaintiff’s voluntary assumption of the risks arising from the defendant’s recklessness
• A defendant can pursue either or both of these affirmative defenses.
• A plaintiff’s own contributory negligence is not a defense against an action brought for harms caused by the defendant’s recklessness.

Notes: This caselaw brings a couple of new vocabulary terms. Let’s go over them:

• Affirmative Defense: An affirmative defense is a legal argument in which the defense admits (“affirms”) some of what the plaintiff claims, but asserts that there were other factors which excuse them from liability regardless. The classic example of an affirmative defense is self-defense claims in murder trials: the defense admits that the defendant killed someone, but argues that the defensive nature of the killing means the defendant shouldn’t be punished. In an affirmative defense, the defendant takes on the burden of proof. That’s a huge point to remember. The defense’s main advantage in most trials is that their victory is the default setting: the plaintiff has to do all the work of proving things. When the defense uses an affirmative defense, they abandon that advantage.
• Contributory negligence: Often in complicated real-world situations, the victim of some injury contributed to their own injury. Sometimes they did so through carelessness or stupidity (“negligence”). This is often a defense that’s available to people getting sued: they can argue that the plaintiff was more responsible for the harm than the defendant was, so the defendant shouldn’t be held liable. Notice that we are not allowed to make this argument this year.

We do have two affirmative defenses available to us, described here and in the statutory selections we’re given. First, we have “a plaintiff’s own recklessness,” also discussed in 1302(2). This means that the defense can admit its own recklessness, but argue that the plaintiff was also reckless, using the same definition of recklessness given by earlier case law and the statutes. 1302(2) puts it very precisely: “A plaintiff whose own reckless conduct was a legal cause of plaintiff’s harm is barred from any recovery against a defendant whose recklessness was also a legal cause of the plaintiff’s harm.” Notice that this is a very binary rule: a plaintiff’s recklessness either was or was not a legal cause of their harm, and if it was, they cannot recover at all. This is in stark contrast to contributory negligence arguments, where it’s usually a sliding scale: fault is thought of in percentages, and if the plaintiff is 51% responsible, the defendant isn’t liable- whereas if the plaintiff is 49% responsible, the defendant is. Here there’s no thinking about percentages or relative fault- the plaintiff’s recklessness just either was or wasn’t a cause. That’s a point that might have to be carefully clarified for the judges at times.
The second affirmative defense available to the defense this year is the “assumption of risk” defense. The basic argument here is that while the defense was indeed exposing the plaintiff to risks, the plaintiff knew that and accepted the consequences, and that therefore the defendant shouldn’t be held liable for injuries resulting from those risks. Remember how binary the other affirmative defense was? It’s less clear how the “assumption of risk” affirmative defense works. Look at the text of the statute, 1302(3): “A plaintiff who assumed the risk arising from the defendant's recklessness is barred from recovery for such harm.” There’s ambiguity inherent in that statement because it’s not clear that the defendant’s recklessness is, so to speak, one indivisible thing. Is it possible to assume some of the risk arising from the defendant’s recklessness? If it isn’t, then the defense would need to prove that the plaintiff assumed all of the risk arising from the defendant’s recklessness in order to succeed- a fairly difficult standard to meet. If not, then the defense can use this affirmative defense in conjunction with a standard defense, arguing that some of its choices were indeed reckless, but that the plaintiff assumed the risk of those choices, and that the rest of its choices were not reckless. The latter approach seems the most intuitive to me: asserting that the plaintiff would have to have assumed all the manifold risks of the many choices made in a given case before this defense could have any effect would make it fairly useless. Since it’s Mock Trial and all we have is the material provided in the case packet, we’re free to argue whichever interpretation is more advantageous for our side. However, there are risks in making an argument judges will know is wrong in the real world. In my understanding of the law, the second interpretation is the correct one in the real world: the plaintiff needs to have accepted the particular risk that led to injury. Accepting one risk or accepting risk in general isn’t equivalent to accepting all of them.