Law School Discussion

Nine Years of Discussion
;

Author Topic: Help: What's the diferences and relationships between Mitigation and C'tri Negli  (Read 2636 times)

Rushing

  • Jr. Member
  • **
  • Posts: 6
    • View Profile
    • Email
What's the diferences and relationships between Mitigation and Contributory Negligence?

Where the aggrieved party fails to mitigate loss, can we jump to conclusion that she has negligence?

Are Mitigation Principle and Contributory Negligence one thing in different sides or they are absolutely different?

Who can tell me the differences and relationships between Mitigation and Contributory Negligence?  I have thought it for months but failed to find the answer.

jacy85

  • LSD Obsessed
  • *****
  • Posts: 6859
    • View Profile
This is really an easy concept.

With Contributory neglience, the victim also did something "wrong" and contributed to her own injury.  Drivers A and B are in a car accident. Driver A sued.  Turns out that while Driver B was speeding, Driver A ran a stop sign.  Thus, Driver A's negligence contributed to her injuries.

Mitigation doesn't mean the victim necessarily did something "wrong" to bring about their injury, just that they failed to act to make their injury less serious.  Drivers A and B are in an accident, Driver A sues again for personal injury.  Turns out Driver A didn't do anything negligent, and Driver B was speeding.  BUT Driver A is suing for $1 million dollars for permanent injuries.  Turns out Driver A was injured on site, but refused medical treatment, thinking it was just a minor head bump.  She went to the hospital the next day.  Treatment the day of could have lessened the injuries.  Thus, Driver A failed to mitigate the damages, causing them to be more serious than they had to be.

Contributory negligence essentially deals with the question of who caused the accident that caused the injury?  Did the plainfiff do anything that could have caused her injury?

Mitigation deals with what happens after the accident.  Could the plaintiff have acted to lessen her damages, but failed to do so?

QUAKER OATS

  • Guest
Well put Jacy

Mitigation is a damages issue [how should P be compensated]
Contributory negl is a negligence issue [was P negligent]

Rushing

  • Jr. Member
  • **
  • Posts: 6
    • View Profile
    • Email
Thank you for your good answers!

I have another question.

The examples you mentioned are both related to Torts.

Now my question is about Contracts.

Since contract liability is stick liability, can we conclude that there is no conception of contributory negligence in contract disputes?

jacy85

  • LSD Obsessed
  • *****
  • Posts: 6859
    • View Profile
Negligence is a TORT concept...don't know why you'd think it pertained to contract.  Granted, I'm a first year, so I may be wrong.  But I've never once heard of negligence spoken of in a contractual context.

J D

  • Sr. Citizen
  • ****
  • Posts: 1388
  • Lust isn't one of the 7 Deadly Sins for nothing...
    • View Profile
Negligence is a TORT concept...don't know why you'd think it pertained to contract.  Granted, I'm a first year, so I may be wrong.  But I've never once heard of negligence spoken of in a contractual context.

Ditto.  In fact, whenever someone in my class is tempted to say something along the lines of "well, it's his fault he got himself into this awful deal in the first place," our professor immediately cuts them off and says, "don't start talking about fault; this isn't torts class."
"I never think of the future.  It comes soon enough."--Albert Einstein

jimmyjohn

  • Sr. Citizen
  • ****
  • Posts: 150
    • View Profile
Thank you for your good answers!

I have another question.

The examples you mentioned are both related to Torts.

Now my question is about Contracts.

Since contract liability is stick liability, can we conclude that there is no conception of contributory negligence in contract disputes?

First, are you a 0L?  If so, put down the books and step away from the computer.  You are only confusing yourself needlessly.

It is "strict" liability not "stick" liability.  As others have said, you are confusing two separate areas of law.  We don't usually talk about negligence or strict liability in contract law.  Tort law, on the other hand, is almost exclusively rooted in some form of negligence or otherwise strict liability that makes the actor liable for the results of their conduct.   

The only context in which I have heard negligence mentioned within contract is when it deals with a misrepresentation of fact.  You can make a negligent misrepresentation if you fail to disclose something that would be reasonable to disclose under the circumstances or otherwise are negligent when making statements of fact during the formation of a contract. 

Even still, this is not the type of negligence that is protected under tort law, if for not other reason than the remedy for the negligence will be different under contract law.  Instead of receiving damages in the form of money, the victim of the negligent misrepresentation would be able to avoid the contract, seek restitution, etc.

Rushing

  • Jr. Member
  • **
  • Posts: 6
    • View Profile
    • Email
Negligence is a TORT concept...don't know why you'd think it pertained to contract.  Granted, I'm a first year, so I may be wrong.  But I've never once heard of negligence spoken of in a contractual context.

Ditto.  In fact, whenever someone in my class is tempted to say something along the lines of "well, it's his fault he got himself into this awful deal in the first place," our professor immediately cuts them off and says, "don't start talking about fault; this isn't torts class."


Why cannot it happen that A's breach of Contract can also partly attribute to B's fault?

J D

  • Sr. Citizen
  • ****
  • Posts: 1388
  • Lust isn't one of the 7 Deadly Sins for nothing...
    • View Profile
I really don't know what you're asking; maybe if you gave a more concrete example?

But generally, fault doesn't come into play in contracts, at least not so far as liability for breach is the issue.  As Holmes argued (and his view has since become quite influential, and still is), liability in contract is utterly divorced from any principle of fault.  We don't care if the party was morally blameworthy or innocent in breaching his contract: the simple fact of the matter is, he breached, he failed to perform, he didn't keep his promise, and now he's liable.  It doesn't matter whether he failed to perform his promise due to events beyond his control: when you make a promise, you essentially say that X event shall come to pass, and if it does not, you shall have a claim against me for the value of that event coming to pass.  It doesn't matter if X is a promise to deliver carrots at a certain place and time or a promise that it shall snow in July in Vancouver.  Either way, if the promise is not performed/fulfilled, the promisee has a claim against you, whether keeping the promise was within your power or not.  And don't forget that even with things that we commonly think of a within our power (like delivery of goods), sometimes we still fail to keep these promises through no moral failing of our own (the truck breaks down, the carrots are blighted, etc.).  The law of contracts doesn't care: you're still liable, even if there was nothing you could have done, no precaution you could have taken, which would have made performance possible.
"I never think of the future.  It comes soon enough."--Albert Einstein

brewha

  • Sr. Citizen
  • ****
  • Posts: 145
  • I drank much of this after the Bar Exam....
    • View Profile
    • Email
Thank you for your good answers!

I have another question.

The examples you mentioned are both related to Torts.

Now my question is about Contracts.

Since contract liability is stick liability, can we conclude that there is no conception of contributory negligence in contract disputes?

Although the answer is quite obvious, I will explain...  If there is a contract dispute, the first question you need to ask is whether the aggrieved party's contributory negligence negated the mens rea material to an element of the offense.  If the answer to that question is yes, then you must determine whether the contract touches and concerns the land.  Because we are also dealing with strict liability, chances are the contract does touch and concern the land (Seeing as how only a rational basis test is applied).  It is important to note, however, that the court can only hear this case if the claim for damages is above $75,000.  Having said that, apply the usual Erie analysis to come up with the right answer.  Wherefore, I pray that you are not an actual law student (Please excuse my lame attempt to incorporate Legal Writing).

Although you may be confused with my answer, take heart in the fact that your question made even less sense.  If you are in fact a first year student, might I suggest dropping out?  If you are a 0L might I suggest withdrawing your applications?  Either alternative furthers the greatest good for the greatest number of people.
pudding is delightful