Unit 3 Negligence Flashcards
(118 cards)
1
Q
Definition of Negligence
A
Negligence is the failure of an actor to exercise reasonable care when his conduct creates a risk of harm to others.
2
Q
Elements of Negligence
A
To prove a prima facie case of negligence P must prove that:
1. D owed P a duty to conform to a specific standard of conduct;
2. D breached that duty;
3. P suffered harm to her person or property; and that
4. D’s breach was the actual cause; and the
5. Proximate cause of the harm.
3
Q
Negligence
Duty of Care
To whom is the duty owed?
A
D owes a duty to any foreseeable plaintiff.
4
Q
Negligence
Duty
To whom is the duty owed? Cardozo
A
Under the Cardozo view, a duty arises if a reasonable person in D’s position could foresee that someone in P’s position might be hurt by D’s failure to excercise due care.
D owed P a duty because a reasonable person [in D’s position] could foresee that someone in [P’s position] might be hurt by his failure to exercise due care.
5
Q
Negligence
Duty
To whom is the duty owed? Cardozo, rescuer.
A
If is reasonably foreseeable that someone will be hurt trying to render assistance to D or to another harmed by his negligent conduct.
P was a foreseeable plaintiff because he tried to resuce x after D negligently caused y harm.
6
Q
Negligence
Duty
To whom? Cardozo- viable fetus
A
A viable fetus is always a foreseeable plaintiff if the mother is a forseeable plaintiff.
X’s fetus was a foreseeable plaintiff because the fetus was viable.
7
Q
Negligence
Duty
Foreseeable plaintiff - Andrews view
A
Under the Andrew’s (minority) view, everyone on earth is a foreseeable plaintiff. Therefore, D owed P a duty to act with reasonable care.
8
Q
Negligence
Duty
Circumstances requiring rescue
A
1) D’s own conduct put P in peril
2) Special relationship between D & P
3) P reasonably relied on D’s promise to rescue
9
Q
Negligence
Duty
Arising from contract
A
A contract can create circumstances and relationships giving rise to a duty of care in tort. Also, in performing a contract, D owes a duty of care to avoid unreasonable risk of harm to others.
10
Q
Negligence
Duty
Public-duty doctrine
A
Public-duty doctrine holds that police owe the public at large a duty to protect; not any one individual or group of people.
Individual duty arises if the police:
1) Voluntarily and affirmatively undertake to protect;
2) a particular person or class of persons and, so doing
3) create reasonable reliance on the protection.
11
Q
Negligence
Duty
Dram Shop Laws
A
In most jurisdictions, a commercial seller of alcohol has a duty to refuse to serve alcohol to minors or to visibly intoxicaed patrons.
The duty extends to those whom the drinker’s behavior could foreseeably harm.
Difficult to prove causation when the patron was already drunk; unless can prove the provision of alcohol by the seller resulted in an increase of the intoxication that contributed meaningfully to the injury.
This duty is rarely applied to social guests
12
Q
Negligence
Duty
Standard of Care - general
A
D owed P a duty to act as a reasonable, prudent person in the same or similar circumstances.
13
Q
Negligence
Duty
Standard of Care - Professional
A
Since D is a x, he is required to act as a reasonably prudent person who has the knowledge and skill of [a member of the profession or occupation] in good standing under the same or similar circumstances.
14
Q
Negligence
Duty
Standard of care - disability
A
Since D is [x], he is expected to act as a reasonably prudent [x] person under the same or similar circumstances.
15
Q
Negligence
Duty
Standard of Care - mental impairment/insanity
A
Even though D is x, he is expected to act as a reasonably prudent person who is not [x] under the same or similar circumstances.
16
Q
Negligence
Duty
Standard of Care - child - not adult activities
A
SInce D is [x age] he is a child who is required to conform to the standard of care of a child of like age, intelligence, and
experience. In this case, the standard of care was [nsert, age, intelligence and experience facts].
17
Q
Negligence
Duty
Standard of Care - child- adult activities
A
Even though D was a child, he was required to conform to the standard of care of a reasonably prudent adult of average intelligence in same of similar circumstantes because [x activity] is an activity normally engaged in by adults.
18
Q
Negligence
Duty
Standard of care - child - age
A
It is unlikely a court would recognize a child under the age of 5 as having the capacity to be negligent.
19
Q
Negligence
Duty
Standard of Care - special relationships
A
Because of the [special relationship] between D and P, D owed P a duty to act with utmost care to prevent harm to P within the scope of risks that arise within the relationship.
20
Q
Negligence
Duty
Standard of Care - emergency
A
Because [x situation] was an emergency not created by D’s own actions, D was required to adhere to conduct himself as a reasonably prudent person under the same emergency situation.
21
Q
Negligence
Duty
Standard of Care - types of special relationships
A
- Common carrier/passengers
- innkeeper/guests
- business open to public/those lawfully on the premises
- employer/employees who are (a) in imminent danger or (b) injured and thereby helpless
- school/students
- landlord/tenants
- custodian/those in custody if a) custodian required by law to take custody or voluntarily takes custody; and b) the custodian has a superior ability to protect the other.
22
Q
Negligance
Duty
Standard of Care - duty to resuce
A
Because D did not cause P’s peril, D did not have a duty to resuce P.
23
Q
Negligence
Duty
Standard of Care - rescue - D put P in peril
A
D had a duty to render assistance or warning to P because his condcuct endangered or harmed P. This duty exists even if D’s conduct that caused the harm was not negligent.
24
Q
Negligence
Duty
Standard of conduct - co-venturers
A
Since D and P were engaged in the common pursuit of x, D owed P a duty to provide aid.
25
Negligence
Duty
| Standard of Care - voluntary rescue
Even though there is generally no duty to act to aid another, D owed P a duty to act like a reasonable prudent person and continue the assistance.
D voluntarily began to render assistance when he did [x], which P reasoanbly relied upon because of [y].
26
Negligence
Duty
| Standard of care - duty to control others
D had a duty to control the actions of [x] because [y] meant he had the actual ability and authority to controls x's actions.
27
Negligence
Duty
| Standard of care - duty of landowners to those off the premises
## Footnote
Natural conditions
A landowner owes no duty to protect one outside the land from natural conditions
28
Negligence
Duty
| Standard of care - landowners to those off the premises
## Footnote
Artificial conditions
A landowner generally has no duty to protect those off the land from artificial conditions unless the condition causes damage s to abutting adjacent land.
29
Negligence
Duty
| Standard of Care - landowners to those off the land
## Footnote
Duty to passerby
A landowner has a duty to take due precautions to protect persons passing by from dangerous conditions.
30
Negligence
Duty
| Standard of care - landowners
## Footnote
Conduct of person on property
A landowner has a duty to exercise reasonable care with respect to his own conduct and to control the conduct of others on his property to avoid unreasonable risk of harm to others outside the property.
31
Negligence
Duty
| Standard of care -landowners to those on premises
## Footnote
Undiscovered trespassers
Possesor's duty is to avoid intentionally or recklessly injuring the trespasser.
32
Negligence
Duty
| Standard of care- landowners to those on premises
## Footnote
Discovered trespassers
A landowner owes a duty to exercise ordinary care to warn discovered trespassers of, or to make safe, artificial conditions known to the landowner that involve a risk of death or serious bodily harm that the known trespasser is unlikely to discover.
D owed P a duty to warn P, or make safe, [x condition. P was a known trespasser bc [y], and P would not have discovered [x] because of [z].
33
Negligence
Duty
| Standard of Care - landowners to those on premises
## Footnote
Known trespasser - when known?
P is a known trespasser if P was actually discovered by D or if D had information sufficient for a reasonable person to conclude someone was on the property.
P was a known trespasser because of [x].
34
Negligence
Duty
| Standard of Care - landowners to those on premises
## Footnote
Attractive Nuisance Doctrine
A landowner has a duty to exercise reasonable care to avoid a reasonably foreseeable risk of harm to children caused by artifical conditions on his property.
P must show:
1) there was a dangerous condition on D's land of which D is aware or should be aware;
2) D knew or should have known that children frequent the vicinity of this dangerous condition;
3) the condition was likely to cause injury because a child is not capable of appreciating the risk; and
4) the expense of remedying the situation is slight compared with the magniture of the risk.
35
Negligence
Duty
| Standard of Care - landowners to those on premises
## Footnote
Licensee - definition
A liscensee is one who enters the land with the occupier's permission for her own purpose or business rather than for the landowner's benefit.
## Footnote
e.g.; social guests
36
Negligence
Duty
| Standard of Care - landowners to those on premises
## Footnote
Liscensees - duty owed - conditions on the premises
If the possessor actually knows of a hazardous natural or artifical condition on the property, and the posessor knows or has reason to know that the liscensee is unaware of the condition and the risk it poses. Possessor must take reasonable steps to either (1) warn of or (2) remedy the condition.
D owed P a duty to warn or of make safe [x] because [y and z].
37
Negligence
Duty
| Standard of Care - landowners to those on premises
## Footnote
Liscensees - duty owed - activities
The possessor must carry on all activities on the premises with reasonable care under the circumstances to avoid creating an unreasonable risk of harm to the liscensee if a) possessor should expect that the liscensee will not discover or realize the danger and b) the licensee does not know or have reason to know of the posessor's activities or the associated risk.
D owed P a duty to.....
38
Negligence
Duty
| Standard of Care - landowners to those on premises
## Footnote
Invitee - definition
1) Public invitee - on on premises open to the public for reasons directly or indirectly related to the purpose for which the premises are held open to the public.
2) Business invitee - one who is on the premises with possessor's express or implied permission and in connection with business dealings for the posessor's benefit.
39
Negligence
Duty
| Standard of Care - landowners to those on premises
## Footnote
Liscensees - privileged entrants
An entrant serving some purpose of the possessor is generally treated as an invitee (garbage collectors, mail carriers) or one wo comes under normal circumstances during working hours (census takers, health inspectors, etc.)
40
Negligence
Duty
| Standard of care - landowners to those on premises
## Footnote
Firefighter's Rule
Under the "firefighter's rule, police officers and firefighters are generally treaed like liscensees, not invitees. Therefore, D had no duty to inspect or repair dangerous cnditions that are an inherent risk of their activity.
41
Negligence
Duty
| Standard of care - landowners to those on premises
## Footnote
Invitees - scope of invitation
P lost her status as an invitee when she exceeded the scope of the invitation by dong [y] (e.g.; going to a portion of the premises where the invitation cannot reasonably be said to extend such as an "employees" only area).
42
Negligence
Duty
| Standard of Care - landowners to those on premises
## Footnote
Invitees - duty owed
1) Activities: A possessor must conduct all activities on the premises with reasonable care under the circumstances to avoid creating an unreasonable risk of harm to the extent invitee will not realize the danger or will fail against it.
2) Conditions on the premises:
Possessor has a duty to reasonably inspect the property to detect unreasonably harzardous natural or artificial conditions
Possessor has a duty to remedy or to warn about any dangerous condition which he knows of or should know of, if the possessor knows or shoud know that the invitee has no reason to know of the condition or the risk it poses.
43
Negligence
Duty
| Standard of care - landowners to those on premises
## Footnote
Invitees - entrances and steps
An invitees invitation normally extends to the entrance or steps of a building.
44
Negligence
Duty
| Standard of Care - lessor to lessee
## Footnote
general rule
Liability in regard to conditions on the property is determined by who has occupation and control. Thus, when the owner leases the entire premises to another, the lessee becomes burdened with the duty to maintain the premises.
45
Negligence
Duty
| Standard of care - lessor to lessee
## Footnote
exception - duty of lessor to lessee
Lessor is obligated to give warning to the lessee of any existing defects which the lessor is aware of or has reason to know, and which he knows the lessee is not likely to discover on reasonable inspection.
46
Negligence
Duty
| Standard of care - lessor to lessee
## Footnote
Lessor's covenant to repair
If lessor has covented to make repairs and reserves the right to enter the leased property for the purpose of inspecting for defects and repairing them, he is subject to liability for unreasonably dangeorus conditions.
47
Negligence
Duty
| Standard of care - lessor to lessee
## Footnote
Voluntary repairs by lessor
If the lessor volunteers to make repairs, he is subject to liability if he does so negligently.
48
Negligence
Duty
| Standard of care - lessor to lessee
## Footnote
Admission to the public
If the lessor leases the premises knowing the lessee intends to admit the public, the lessor is subject to liability for unreasonably dangerous conditions existing at the time he transfers possession where the nature of the defect and length and nature of the lease indicate that the tenant will not repair.
A mere warning concerning the defect is not sufficient.
49
Negligence
Duty
| Standard of care - lessor to lessee
## Footnote
Lease of portions of the premises
If the lessor leases only a portion of the premises to tenants, the lessor continues to be subject to liability for unreasonably dangerous conditions in those portions of the premises used in common by all tenants or by third persons, and owner which the owner has retained occupation and control.
50
Negligence
Duty
| Standard of care - vendor of realty
A vendor has a duty to disclose concealed, unreasonably dangeorus conditions of which the vendor knows or has reason to know, and of which he knows the vendee is not likley to discover on reasonable inspection.
51
Negligence
Duty
| Standard of care - Negligence per se
## Footnote
general
A statute may impose a special duty of care where the type of injury is part of the class which the statute is intended to protect against and the plaintiff is within the class of people intended to be protected by the statute.
Negligence per se proves both duty and breach.
52
Negligence
Duty
| Standard of Care - negligence per se
## Footnote
Excuses for violation
a) Complance would cause more danger;
b) D could not reasonably comply due to incapacity;
c) D neither knew nor reasonably should have known of the circumstances requiring compliance with the law;
d) D faced an emergency not arising from her own misconduct; and
e) D could not comply with the law, despite all reasonable efforts to do so.
53
Negligence
Duty
| Standard of care - negligence per se
## Footnote
effect of establishing violation of statute
1. Majority - negligence per se - a conclusive presumption of duty and breach of duty
2. Minority - either (1) a rebuttable presumption as to duty and breach or (2) the statutory violation is only prima facie evidence of negligence.
54
Negligence
Duty
| Standard of Care - negligence per se
## Footnote
effect of compliance with statute
Compliance with a statute does not necessarily establish due care. It may be found there is negligence in not doing more. Here, D could have done more because x.
55
Negligance
Duty
| Duty regarding NIED
## Footnote
"zone of danger" rule
P must show that her distress has been caused by a threat of physical impact because she was in the zone of danger.
Here, P can show her distressed was caused by a threat of physicial impact because [y].
56
Negligence
Duty
| Duty regarding NIED
## Footnote
Bystander rule
P must show that the person injured was closely related; and 2) P contemporaneously perceived the injury.
57
Negligence
Duty
| Duty related to NIED
## Footnote
Special relationship between P and D
D may be liable for directly causing P severe emotional distress when a duty arises from the special relationship between P and D.
58
Negligence
Breach
| General
A breach of duty arisies if D fails to conform to the appliacable standard of care. To prove breach P must show D could have pursued an alternative, reasonable course of conduct that more likely than not would have prevented or mitigated the harm.
D breached his duty because his conduct fell short of the applicable standard of care as proven by x. If D had done [x alternative] the harm would have likely been prevented or mitigated as proven by y.
59
Negligence
Breach
| Custom or usage
Custom or usage may be introduced to establish standard of care, but are not conclusive for determining whether D's conduct amount to negligence.
60
Negligence
Breach
| Negligence per se
As discussed supra, since negligence per se applies, P has proven D breached his duty.
61
Negligence
Breach
| Res Ipsa Loquitor
Even though P cannot prove what actions of D resulted in a breach, P may be able to rely on the doctrine of Res Ipsa Loquitor, if P can show:
1) The accident causing her injury is the tyhpe that would not normally occur absent negligence
2) that this type of accident or injury normally occurs because of the negligence of someone in D's position. This requirement can often be satisfied by show the instrumentality that caused the injury was in the exclusive control of the defendant.
3) That there is no other reasonable explanation for the injury.
62
Negligence
Actual Causation
| General definition
D's conduct must be the cause in fact of P's harm.
63
Negligence
Actual Cause
| "But For" Test
D's conduct is the cause in fact when the harm would not have occurred "but for" the act.
D was the cause in fact of P's harm because "but for" [x action(s)] [y] would not have occurred.
64
Negligence
Actual Cause
| "but for" test with concurrent causes
The "but for" test applies where several acts combine to cause the injury, but none of the acts standing alone would have been sufficient. "But for" any of the acts, the injury would not have occurred.
D's was the cause in fact of P's harm because "but for" [D's actions and other actions], the harm would not have occurred.
## Footnote
e.g.; two negligentlyn dirven cars collide and injure a passenger.
65
Negligence
Actual Cause
| Substantial Factor Test
The substantial factor test applies where several causes commingle and bring about D's harm, but anyone alone would have been sufficient if D's conduct was a "substantial factor" in causing the injury.
## Footnote
e.g.; two fires meet and burn a farm. Either one would have destroyed the farm.
66
Negligence
Actual Cause
| Alternative Factors Test
The alternative factors test applies where two or more person were negligent but P is uncertain as to which one caused P's harm. P must prove the harm was caused by at least one of them. The burden of proof then shifts to the D's to show that his negligence is not the actual cause.
67
Negligence
Proximate cause
| general definition
D's conduct must also be the proximate cause of P's harm. D is liable for harmful results
68
Negligence
Proximate Cause
| general
D will be liable only for harm that is a reasonably foreseeable result of D's negligence.
69
Negligence
Proximate Cause
| Eggshell-skull-plaintiff rule
Only the general type of harm must be reasonably foreseeable, not the precise nature or extent of harm.
D takes P as he finds her, with all P's vulnerabilities.
70
Negligence
Proximate Cause
| Intervening forces definition
An act or force other than D's breach of duty, that contributes to the victim's harm along with the breach.
An intervening force that breaks the causal chain is called a superseding force.
71
Negligence
Proximate Cause
| Foreseeable Intervening forces general
An intervening force will not break the casual chain if it is reasonably foreseeable.
X force was reasonably foreseeable because of y, so D is the proximate cause of P's harm.
72
Negligence
Proximate Cause
| unforeseeable intervening forces
Intervening forces that are not reasonably foreseeable break the casual chain, thus absolving D of liability.
X force was not reasonably foreseeable because of y, so D is not the proximate cause of P's harm.
73
Negligence
Proximate Cause
| Unforeseeable intervening forces - exception
If the type of harm was foreseeable but the catalyst for the harm was a natural force that was unforeseeable, courts generally deem D's negligence a proximate cause of P's injuries.
74
Negligence
Proximate Cause
| Negligence of others - general
The negligence of others is generally considered foreseeable.
75
Negligence
Proximate Cause
| Negligence of others
## Footnote
Helpless peril
D is liable for injuries caused by X's negligence, because D's negligence unreasonably and foreseeably put P in a position of helpless peril regarding future negligence of a third-party.
76
Negligence
Proximate Cause
| Negligence of others
## Footnote
Negligence of rescuers
Because D's negligence put P in a position of helpless peril, it was foreseeable that a rescurer's intervening negligence would exacerbate P's injuries.
However, D is not liable for additional harm attributable to **extraordinary or unusual actions** creating risks **different from** those **generally associated with efforts to render assistance.**
77
Negligence
Proximate Cause
| Negligence of others
## Footnote
Medical professionals
It is generally foreseeable that medical professionals will negligently treat injuries caused by the actor's negligence unless the particular negligence is extraordinary and unforeseeable.
78
Negligence
Proximate Cause
| Negligence of others
## Footnote
reaction forces
D is liable for harm resulting from x's natural and foreseeable responses to D's negligence.
79
Negligence
Proximate Cause
| Negligence of others
## Footnote
natural forces
A truly unforeseeable natural force may be a superseding force.
A foreseeable nature force is not an intervening force that breaks the causal chain.
If the force of nature merely increases or accelerates the harm that would have resulted from D's negligence, the force is treated as a foreseeable intervening force.
80
Negligence
Proximate Cause
| examles of superseding forces
## Footnote
crimes and intentional torts of 3rd parties
Crimes or intentional torts of 3rd parties are almost always deemed superseding forces unless either
1) D is under a duty to protect the victim from 3rd parties by virtue of a special relationship or some other circumstance, or
2) the 3rd party's criminal or intentional misconduct is among the scope of foreseeable risks to which the actor's negligence subjected the victim.
81
Negligence
Proximate cause
| special superseding forces examples
## Footnote
abatement
An intervening force is a superseding cause if it arises after the reasoanbly foreseeable risk of harm from D's negligence has abated.
82
Negligence
Harm
| Definition
Harm means loss, detriment or injury to D's person or property.
83
Negligence
Harm
| Types of harm
## Footnote
physical harm
Impairment to the physical condition of a person's body or to real or tangible personal property.
Includes exacerbation of a prior injury or condition.
84
Negligence
Harm
| Types of harm
## Footnote
physical harm - when recoverable and amount
P may always recover to the full extent of physical harm suffered due to D's negligence
85
Negligence
Harm
| types of harm
## Footnote
emotional harm
Emotional harm involves any impediment, injury or distrubance to someone's tranquility of emotion or peace of mind.
86
Negligence
Harm
| types of harm
## Footnote
emotional harm when recoverable
Emotional harm traceable to physical harm is always recoverable.
If emotional harm is the only harm arising from D's negligence, P generally cannot recover from it unless NEID is satisifed.
87
Negligence
Harm
| types of harm
## Footnote
economic harm - definition
Economic harm is purely monetary in nature, such as lost wages or profits not traceable to physical harm.
88
Negligence
Harm
| types of harm
## Footnote
economic harm - when recoverable
Purely economic harm is generally not recoverable in negligence.
Exceptions:
1) Negligence by a retained professional
2) other specific causes of action
89
Negligence
Harm
| Collateral-Source Rule
P's recovery is not diminished by any compensation P receives from sources other than D, such as insurance payments.
90
Negligence
Harm
| NEID
## Footnote
when recoverable
NIED is available only if P seeks recovery for emotional harm standing alone
91
Negligence
Harm
| NIED
## Footnote
zone-of-danger rule
Permits recovery for NIED under two circumstances:
1) Physical impact or
2) Near miss
92
Negligence
Harm
| NIED
## Footnote
zone of danger - no physical impact
To recover for NIED P must show:
1) reasonably foreeseeable risk of imminent physical injury
2) P actually and reasonably feared for her own safety as an actual and proximate result of D's negligence at or near the time of the negligence
3) physical symptoms or objective manifestations of genuine and severe emotional distress.
93
Negligence
Harm
| Bystander action for NIED
P, can recover for NIED as bystander if:
1) P is a close relative of the primary victim or suffered serious bodily injury or death
2) P contemperanously perceived the accident that caused the injury as it occured;
3) P suffered several emotional distress as a result
94
Negligence
Defenses
| Contributory Negligence
## Footnote
Defined
Contributory negligence means that P's own negligence combined with D's negligence and helped cause the harm.
95
Negligence
Defenses
| elements
To establish a defense of contributory negligence, D must prove that:
1) P was negligent by failing to use reasonable care to prevent her own injury; and
2) P's negligence, in conjunction with D's, was actually and proximately caused P's injury.
96
Negligence
Defenses
| Contributory negligence
## Footnote
Effect of proving
If D established a defense of contributory negligence, P will recover nothing
97
Negligence
Defenses
| Contributory Negligence exceptions
## Footnote
D's recklessness
Contributory negligence is not a defense for harm caused by D's reckless, or wanton conduct.
Recklessness is the conscious disregard of a serious unreasonable risk of harm.
98
Negligence
Defenses
| Contributory negligence exceptions
## Footnote
Last clear chance doctrine
Contributory negligence is not a defense if D had the last clear change to avoid causing harm by exercising reasonable care.
(Only applies if D's negligence occurred after P's negligence).
99
Negligence
Defenses
| Contributory negligence
## Footnote
exceptions - last clear chance application
The last clear chance doctrine generally does not apply to pure comparative-fault or modified comparative fault jurisdictions.
100
Negligence
Defenses
| Contributory negligence exceptions
## Footnote
Injured rescurers
Contributory negligence is generally not a defense if P negligently injures while try8ing to rescue D from a danger created by D's own negligence, unless P recklessly put herself in the situation.
101
Negligence
Defenses
| Comparative fault
## Footnote
Pure comparative fault
Under pure compartive fault, the jury allocates a percentage of fault for the injury among all parties, including P. P's recovery is reduced according to P's percentage of fault.
102
Negligence
Defenses
| Modified comparative fault
P's own negligence will bar recovery if P's percentage of fault exeeds either 50 or 51 percent.
103
Negligence
Defenses
| Special situations involving P's fault
## Footnote
duty to protect from victim's own negligence
Contributory negligence or comparative fault will not provide a defense if D is under a duty to protect P from P's own negligence.
104
Negligence
Defenses
| special rules regarding P's fault
## Footnote
P's prior negligence in medical-malpractice cases
If P requires medical care for negligently self-inflicgted injuries, contributory negligence and comparative fault (and probably assumption of the risk) will not eliminate or reduce recovery as to liability for further injuries caused by ensuing medical malpractice.
A medical professional has a duty to render competent care to any patient, regardless of why P needed treatment.
105
Negligence
Defenses
| Assumption of the Risk
## Footnote
general - scope
Assumption of the risk is a complete defense to negligence liability.
106
Negligence
Defenses
| Assumption of the risk
## Footnote
generally
Assumption of the risk arises if P:
1) actually knows of the existence and nature of the risk, yet
2) voluntarily chooses to proceed in the face of that risk.
107
107
Negligence
Defenses
| Assumption of the risk
## Footnote
express
Express assumption of the risk arises if P expressly agrees, orally or in writing, to proceed in the face of the risk.
May be done contractually.
108
Negligence
Defenses
| Implied assumption of the risk
## Footnote
Primary
Primary assumption of the risk arises if P knowingly and voluntarily participates in activities that carry inherent risks.
Usually involves situations in which P:
1) understakes a dangerous line of work or
2) particpates in risky sport or recreational activity.
109
Negligence
Defenses
| Assumption of the risk
## Footnote
Implied - primary - when applies
In most comparative-fault jurisdictions, primary assumption of the risk is no longer recognized as a defense.
however, courts may find D owed noduty to P if P knowingly and voluntarily participated in an inherently risky activity.
110
Negligence
Defenses
| Assumption of the risk
## Footnote
Implied - primary - duty not to increase risk
D still has a duty to avoid negligently increasing the inherest danger of the activity.
111
Negligence
Defenses
| Assumuption of the Risk
## Footnote
Implied - secondary assumption of the risk
Secondary assumption ofth risk usually arises if:
1) D's negligence has created a risk
2) P appreciates the existence and nature of the risk but consciously chooses to proceed in the face of it.
112
Negligence
Defenses
| Assumption of the risk
## Footnote
Implied - secondary
In most compartive-fault jurisdictions, secondary assumption of the risk is no longer recognized as a defense.
Instead P's choice to proceed in the face of a known risk and reasonableness are factors to consider in apportioning fault.
If P's choice was unforeseeable, it may be a superseding force that defeats proximate cause.
113
Negligence
Defenses
| Victim's criminal conduct
P generally may not recover for injuries resulting from P's knowing, intentional commission of a crime if
1) P seeks to impose a duty of care arising out of the crime itself or
2) P and D both participated in the crime.
114
Negligence
Defenses
| Contributory negligence & comparative fault - illegal conduct of P
Principles of contributory negligence or comparative fault may bar or diminish recovery if P was injured while commiting a crime.
115
116
117
