Refer to the case Kalendareva v Discovery Cruise (798 So2d 804)
Mrs. K (plaintiff) was injured when a rope was thrown too high and injured her on a ship owned by company D (defendant). The rope was meant to land on the second deck but it hit plaintiff on the third deck. The rope was thrown by a port employee not the ship's employee. Plaintiff sued the defendant for liability. Trial court granted verdict for defendant, on grounds that this was not a foreseeable event. Plaintiff appealed
The appeals court reversed the decision for a new trial by jury.
The appeals court argued that ship owners have a higher duty of care owed to passengers, which "includes the carrier's duty to warn passengers of dangers which are not apparent and obvious" such as the rope.
Under this reason, it should not matter that the rope was thrown by a port city employee and the passenger can recover damages due to the owner's failure to warn.
Refer to the case Knight v Jewett (834 P.2d 696)
Mrs. K (plaintiff) and Mr. J (defendant) were playing a game of touch football with several people. They were on the same team. During the game Mr. J bumped into Mrs. K and stepped on her hand. The trial court granted summary judgment in favor of Mr. J , appeals court affirmed on grounds of assumption of risk, plaintiff voluntarily played a game which she know to have potential harm. Plaintiff appealed
The Supreme Court of California affirmed.
On discussion, the court recognized that under comparative liability, plaintiff will be able to receive damages from defendant, granted if defendant had a duty of care to plaintiff. However, under contributory negligence plaintiff's own inability to provide duty of care to herself voids any damages owed by defendant. The court took the trial court's opinion, in order for defendant to have liability of a potentially dangerous game, the defendant must have acted in a way that is intentional or reckless or out of scope of the game that it increases harm to others. In this case, it was neither.
defendant 1 parked his truck at a dark street. Several iron pipes were protruding from the back of the truck. he violated city ordinance which required parked cars to be lighted, and a red light to display at the end of the pipes protruding from the truck. defendant 2, a taxicab driver, was driving passengers at excessive speed and crashed into the pipes killing the passenger. The passenger's family sued both for liability, trial court held for passengers.
In cases in which both the plaintiff and defendant are negligent then it is referred to as comparative negligence. It is a defense which permits negligent parties to recover the damages but in proportions based on the degree of fault.
Here in this case scenario both the defendant 1 and defendant 2 are negligent, defendant 1 violated the city ordinance which requires parked cars to be lighted and defendant 2 is negligent as he drove the car with excessive speed.
Hence, both defendant 1 and defendant 2 are liable for the harm caused. Therefore, the defense was valid.