Last Friday, the City of Cleveland answered the wrongful death/civil rights lawsuit filed by Tamir Rice’s family, and part of its defense has caused much anger and consternation, especially to non-lawyers. I find just about everything about the Cleveland PD’s actions in this case—and those of their supporters—to be infuriating, but from my perspective as a lawyer, the defense outlined in their answer seemed like pretty standard legal language to me:

The city, in its response, wrote that Tamir’s death on Nov. 22 and all of the injuries his family claims in the suit “were directly and proximately caused by their own acts, not this Defendant.” It also says that the 12-year-old’s shooting death was caused “by the failure … to exercise due care to avoid injury.”

The response does not explain these defenses in more detail, though 20 defenses are listed in all, including another one that says Tamir died because of “the conduct of individuals or entities other than Defendant.”

If you read the city’s answer, linked in the blockquote above (and also here), you’ll see that the quoted portions come from the city’s “affirmative defenses” on page 38, which read as follows:

215. Plaintiffs’ decedent’s injuries, losses, and damages complained of, were directly and proximately caused by the failure of Plaintiffs’ decedent to exercise due care to avoid injury.

216. Plaintiffs’ decedent’s injuries, losses, and damages complained of, were directly and proximately caused by the acts of Plaintiffs’ decedent, not this Defendant.

217. Plaintiffs’ injuries, losses, and damages complained of, were directly and proximately caused by their own acts, not this Defendant.

218. Plaintiffs’ claims are barred by the legal doctrines of comparative and contributory negligence.

219. Plaintiffs’ claims are barred by the legal doctrine of assumption of risk.

220. The intervening acts, including negligence, of persons other than this Defendant directly and proximately caused Plaintiffs’ decedent’s injuries, losses, and damages.

221. Plaintiffs’ decedent’s injuries, losses, and damages complained of were directly and proximately caused by the conduct of individuals or entities other than Defendant.

The “affirmative defenses” section actually includes paragraphs 213 through 232, but I only quoted the ones that directly relate to the concerns expressed in the above news article.

This is not a means for the city to try to weasel out of liability for the shooting so much as it is an effort to minimize the damages they might be ordered to pay. Ohio uses the comparative negligence rule, which holds that a plaintiff’s recovery in a negligence lawsuit is reduced by the percentage of fault that the judge or jury apportions to them. In other words, if a jury awards a plaintiff $1 million, but finds that the plaintiff was 25% at fault, then the award is reduced by that percentage to $750,000. Ohio follows the “51 percent bar” rule, which prohibits a plaintiff from recovering anything if they are found to be 51% or more at fault.

The City of Cleveland is throwing out as many arguments as it can, including the claim that Tamir Rice was at least 51% at fault. They don’t explain specifically what they mean by that in their answer, because they don’t have to. All they have to do at this point is raise the defense, and they can determine later if they want to present that defense at trial. The plaintiff can also challenge whether or not they have enough evidence to raise that defense, either through a summary judgment motion, a pre-trial motion in limine, or at trial. It’s pretty standard legal practice in a negligence lawsuit. It’s the assumptions that appear to underly the claim that are severely screwed up:

What IS irrevocably fucked up and racist as hell however, is the cops’ description of Tamir as “menacing” and not a normal 12 year old boy.

— Imani ABL (@AngryBlackLady) March 2, 2015

The affirmative defense that I find especially troubling is this one:

219. Plaintiffs’ claims are barred by the legal doctrine of assumption of risk.

The assumption of risk doctrine, which many states no longer even use, states that a defendant may not be liable for a plaintiff’s injuries if the plaintiff knowingly took the risk of injury onto themselves. Ohio courts have recently applied this doctrine in cases involving injuries due to activities like skiing (Horvath v. Ish) and hiking at night (Morgan v. Ohio Conference of the United Church of Christ).

I am very curious to hear exactly what risk the city believes Tamir Rice took upon himself, knowingly, that is on par with skiing or hiking in the dark. (Remember—there’s video of what happened.)

Photo credit: By Rob Sinclair (Flickr: Cleveland by night) [CC BY-SA 2.0], via Wikimedia Commons.