Defenses Against Negligence

Question 1

Primary assumption of risk

Answer 1

legal theory by which a plaintiff may not recover damages for an injury received when the plaintiff voluntarily exposes himself or herself to a known appreciated danger-in writing

Question 2

Secondary Assumption of Risk

Answer 2

involves the voluntary choice or conduct of the participant to encounter a known or obvious risk created by the negligent conduct of the service provider- if you contribute to injury then other party is absolved

Question 3

Examples of Secondary Assumption of Risk

Answer 3

Participant voluntarily participates when there is a substantial risk that the defendant will act in a negligent manner
Ex. Going on a plane with someone who has a reputation for careless acts

Service provider has already been negligent and the participant takes part anyway
Ex. Playing softball in the outfield that has obvious rocks and holes scattered about

Participant fails to follow rules or heed warnings
Ex. Refuses to wear safety equipment or violates safety rules

Question 4

Ultra vires act

Answer 4

acts that are beyond the scope of responsibility and authority of the employee are considered, generally relieves corporate entity of liability- actions are grossly negligent or willful

Question 5

Waivers

Answer 5

contract in which the participant or user of a service agrees to relieve the provider of the duty of ordinary care- must have valid consideration (giving up something of value-participation)

Question 6

Informed Consent

Answer 6

formal contract used to protect the provider from liability for the informed risks of a treatment or program to which the signer is subjected- full disclosure of risk or benefits of treatment

Question 7

Agreement to Participate

Answer 7

document that helps to protect by informing participants in recreation, sport, or education activities of 1. nature of activity, 2. risks associated, 3. behaviors expected of the participant- not a contractual agreement

Question 8

Indemnification Agreements

Answer 8

agreement by which one party agrees to indemnify or reimburse another upon the occurrence of anticipated loss- independent contractor

Question 9

Comparative fault

Answer 9

method for apportioning damages awarded based on the fault or blame or the relative degree of responsibility for the injury- not completely responsible

Question 10

Pure comparative fault

Answer 10

award to the plaintiff is reduced by the percentage of fault assigned to the plaintiff
Ex. Aware is $100,00 fault is apportioned by 75% (plaintiff) and 25% (defendant)- plaintiff would receive $25,000

Question 11

Modified comparative fault

Answer 11

plaintiff is not entitled to recovery if the plaintiff is substantially at fault

Question 12

Immunity

Answer 12

state of being exempt from or protected against civil liability under certain circumstances Ex. Non-profit or volunteer based

Question 13

Statute of limitations

Answer 13

restricted on the length of time an injured party has in which to file suit. Differs from state to state and also based upon the nature of the claim- usually 1-4 years