Torts--Plaintiff's Conduct--Defenses To Neg

Front 1

Assumption of Risk--definition

Back 1

if plaintiff is aware of risk and knowingly decides to encounter it, he accepts responsibility for the consequences. and def is cannot be held liable for creating the risk--i.e. complete bar to recovery
-burden of proof on def.

Front 2

Assumption of Risk--Types

Back 2

1. Express
2. Implied
3. Secondary--Reasonable and Unreasonable

Front 3

Express Assumption of Risk--definition and exceptions

Back 3

1. Consent o accept rick must be freely given by contract or otherwise
Exceptions--where defedant has greater bargaining power, which he uses to force the plaintiff to waive liability, this will militate enforcement of agreement
OBGYN CAse
Malpractice--plaintiff must understand what they are signing.

Front 4

Implied Assumption of Risk--def

Back 4

A plaintiffs conduct my imply assumption of rick without espressly consenting to it
e.g. flopper, hatchet cases

Front 5

Implied Assumption of Risk--Elements

Back 5

1. defendant must know of the risk
2. plaintiff must actually know of the risk, not "ought to know"
3. plaintiff must voluntarily encounter the act

Front 6

Secondary Assumption of Risk

Back 6

Defendant was negligent, and that negligence created a dangerous situation.

Front 7

Secondary Assump--Unreasonable

Back 7

if plaintiff's choice to encounter riskis unreasonable, ussually apply comparative negligence instead

Front 8

Secondary Assump-Reasonable

Back 8

if plaintiffs choice to encounter the risk is reasonable, still apply comparative neg, but allow full recovery b.c plaintiff is not really negligent.

Front 9

Comparative Negligence--def

Back 9

rejects complete bar approach of contributory negligence. apportions damages based on their relative degrees of fault--liability of plaintiff vs. defendant
adopted in 46 states over contrib negligence
--calculated by the relative degree to which plaintiff's conduct deviated from the standard of care.
-effectively eliminates secondary assumption of risk.
-last clear chance doctrine does not apply

Front 10

Comparative neg--types--332

Back 10

1. Pure
2. Modified

Front 11

Pure Comp. Negligence--defined

Back 11

Plaintiff gets damages minus their proportion/contribution to the damages.--Li. case

Front 12

Modified Comparative Negligence

Back 12

Plaintiff must be less than 50% liable or cannot recover.

Front 13

Negligence Per Se--Elements (4)

Back 13

1. D violated a statute
2. Statute must be written to protect against the same type of accident that's D's conduct caused
3. the victim must fall into the same class of persons which the statute was designed to protect.
4. Statute must allow a private claim of right to action against def.

Front 14

Neg Per Se-- Private Claim of Right--Elements (3)

Back 14

1. plaintiff must be a member of th class of people which the statute was designed to protect.
2. would the recog of prov claim of right promote the purpose of the legislation?
3. would th creation of the legislation be consistent with the legislative scheme?

Front 15

Neg Per Se--Exceptions--5

Back 15

Unles expressly prohibited by the statute, court can find D nt liable if:
1. D was reasonably unaware of occasion for compliance--busted taillight, not "unaware of the law"
2. D made a reasonable effort to comply, but was unable i.e. blizzard
3. D was confronted of emergency not caused by his own actions
4. D's compliance would have caused greater harm
5. Incapacity--minor

Front 16

Neg--Breach of Duty

Back 16

Must act as a reasonable person would under the circumstances.

Front 17

Neg--Freedom from Contrib Neg.

Back 17

--some juris--P must prove that he was free from contrib neg.
--maj. juris. treat contrib neg as an affirmative defense which must be raised by D.

Front 18

Reasonable Man--as per Herbert

Back 18

He is an ideal, a standard, the embodiment of those qualities which we demand of the good citizen
-Often up to the jury to determine how/what is reasonable under the circumstances.

Front 19

Reasonable Man--disabilities

Back 19

what would a reasonable person with that particular disability have done. blind man held to blind man standard

Front 20

RM-mental attributes, more stupid, hot tempered, etc.

Back 20

doesn;t matter held to the standard of the reasonable man.

Front 21

Imbecility/Insanity--RM

Back 21

only a child' mental deficiency may be taken into acount

Front 22

RM-Drunk

Back 22

held to the conduct of reasonable sober person

Front 23

RM-Child (3)/ exception

Back 23

1. must conform to the conuct of a reasonably careful person of same age, intelligence and experience--note: unlike dumb man adult standard--
2. applies to all minors
3.children under 5 usually deemed incapable of negligence
Exception: when child engages in potentially dangerous activity normally reserved for adults i.e. driving a car, boat, snowmobile, even playing golf.
-strange exception, b/c deerhunting does not trigger adult standard b/c often undertaken by minors.

Front 24

RM-Emergency

Back 24

held to standard of how a reasonable person would react under the same emergency circumstances.

Front 25

RM-Knowledge

Back 25

--If D knows of a danger may have a duty to warn third party--i.e. Psychiatrist knowing his patient is going to harm a 3rd party.
[see. pp. 100-101 of emmanuel.]
--experience/stranger/memory/distractions

Front 26

RM-Custom

Back 26

can be brought as evidence of reasonable for trade or community, but not conclusive; courts can still hold that the custom itself is negligent.

Front 27

Negligence Per Se--Policy Arguments For--

Back 27

1. violation of statute means a person has ignored the standard of care established by the legislature, which, arguably, reasonable people do not do.

Front 28

Negligence Per Se--argument against

Back 28

1. The life of the law has not been logic, it has been experience--O.W. Holmes, Jr.
2. statutes do not explicitly say the role that the statute should play in in a tort action or damages.
3. Legislators are practical--i.e. would not plow a child over simply to adhere to a statute stating it is illegal to cross the center line.

Front 29

Negligence Per Se--Evidence v. Presumption approach

Back 29

Presumption--if no excuse offered, def. is negligent
Evidence of Negligence--jury can still find that def. is not negligent even in the absence of excuse/rebutting evidence from the defendant

Front 30

Attractivenes to pltf's lawyers for using argument of neg per se-

Back 30

1. Eases burden of broof
2. brands the defendant as a lawbreaker in the eyes of the jury
3. Reduces the likelihood that that the jury will decide the case on grounds unrelated ot he merits.

Front 31

Res Ipsa Loquitor--elements--4

Back 31

1. no direct evidence of D's conduct
2. harm seldom occurs without negligence of someone
3. The instrument which caused the harm must have been exclusively in the control of the defendant
4. P must show that his own conduct had nothing to do with the harm.

Front 32

Res Ipsa--Defenses

Back 32

1. item causing harm not "solely in control" of def
2. the act can ordinarily happen without negligence
3. he generally exercised due care