Negligence: Defenses Flashcards Preview

Torts (James) > Negligence: Defenses > Flashcards

Flashcards in Negligence: Defenses Deck (12):


A. Incapacity 
B. Δ neither knows/should know of occasion for compliance
C. Δ’s unable after reasonable diligence/care to comply 
D. Emergency not due to Δ’s misconduct 
E. Compliance would involve a greater risk of harm to the actor or to others 


Assumption of Risk

A. Primary
B. Secondary
C. Express


Secondary Assumption of Risk

Limited Duty/Contributory
Restatement 2d: Π must be aware of the facts which create the danger & appreciate the danger itself & the nature, character, & extent which make it unreasonable. Murray v. Ramada Inns, Inc..
1. Δ has burden of pleading & proving Π’s
2. Knowledge of the risk.
3. Appreciation of the risk.
4. Voluntary exposure to the risk.


Primary Assumption of Risk

There is 'no duty' on the part of the defendant to protect the plaintiff from a particular risk. A party enters into a relationship with another, knowing & expecting that the other person will not offer protection against certain risks arising out of the relationship.
–Δ has burden of pleading & proving:
A. no duty to remove all risk, or
B. Δ has not breached any duty to Π
* Proof that Π was unaware of the risk is unavailing. Cheong v. Antablin.


Express Assumption of Risk

One person gives explicit written/oral permission to release another party from an obligation of reasonable care, giving up the right to recover for injuries suffered as a result of the Δ's unreasonable conduct.


Contributory Negligence

Π assumes the risk of Δ's negligence.
–Δ is at fault, but Π has limited recovery on the ground that he knew of the unreasonable risk created by Δ's conduct & voluntarily chose to face that risk, including a miscalculation of the risk. Murray v. Ramada Inns, Inc..
–Restatement 3d: Π’s conduct falls below the standard which he should conform for his own protection, & which is a legally contributing cause in bringing about the Π’s harm.


Comparative Fault

A. Pure – Negligent Π recovers some damages regardless of Π's degree of fault.
B. Modified – Π's recovery is barred if Π's fault exceeds a certain percentage.


Uniform Comparative Fault Act

Jury should consider:
1. whether conduct merely inadvertent or also involved awareness of the danger involved;
2. the probability of the risk;
3. the gravity of the harm;
4. the number of persons placed at risk;
5. the significance of what the actor was seeking to achieve by the conduct;
6. the actor’s superior or inferior capabilities;
7. the existence of an emergency; &
8. the relative closeness of the Δ’s wrongful conduct & the harm to the Π


Restatement 3d for Comparative Fault

Assigning percentages of responsibility to each person legally responsible includes
1. the nature of the person's risk-creating conduct, including any awareness or indifference w/ respect to risks created by the conduct & any intent w/ respect to the harm created by the conduct; AND
2. the strength of causal connection between person's risk-creating conduct & the harm.


Limitations for Express Consent

Language of the waiver must be clear & unambiguous; context of activity may void a waiver as against public policy (e.g. releases for negligence by a school district for athletics, university sponsored club rugby, charitable research hospital). Theis v. J & J Racing.


Restatement on Waivers

1. Freely & and fairly made
2. Equal bargaining power
3. Alternatives, negotiation ability, knowledge, etc.
4. Social interest in waiving liability


Public Policy Test Regarding Waivers

(Tunkl v. Regents of University of Cal. )
1. Concerns business type generally suitable for public regulation.
2. Party seeking exculpation engaged in important public service.
3. Party holds as willing to perform service for anyone.
4. If essential service, the party possesses decisive economic advantage of bargaining strength.
5. Party confronts public w/ standardized contract & no provision to obtain protection against negligence.
6. Person or property of purchaser placed under control of the seller, subject to the risk of carelessness.