Negligence - Victim Choice: Assumption of Risk – Classical Doctrine Flashcards
What is assumption of risk used for? (Feldman)
Classical A/R is a defense to a breach of duty. Like contributory negligence, A/R relieves injurers from liability for negligent conduct towards victims.
How is classical assumption of risk unlike contributory negligence? (Feldman)
Unlike contributory (or comparative) negligence, A/R is concerned with choice not carelessness.
What is the classical view of assumption of risk? (Feldman)
The doctrine bars recovery by the victim on the ground that the victim chose to bear the risk of the defendant’s breach of their duty of care by knowingly and voluntarily encountering that breach.
According to the classical view of assumption of risk, how can an employer eliminate its duty of reasonable care? (Feldman)
By breaching that duty in an “open and obvious” manner. (Lamson)
What is a stranger in reference to classical doctrine? (Feldman)
To determine who is a “stranger,” classical doctrine asks whether the defendant has a preexisting legal relationship
with the plaintiff that allows the defendant to impose evidently unreasonable risks on the plaintiff. Someone who has that preexisting legal relationship is a non-stranger. Examples
include employers/employees and possibly parents/children. “Strangers” do not have that relationship. Examples include friends, non-acquaintances (Clayards), siblings, cousins, etc.
What is the “fellow servant” rule? (Feldman)
Under the fellow servant rule, employees also assume the risks of negligent injury created by their fellow employees as one of the incidents of their employment (Farwell).
How does the “fellow servant” rule play in to accident avoidance? (Feldman)
Employees are generally in a better position than employers to
monitor and control the care exercised by other employees. But Shaw’s opinion in Farwell concedes this isn’t always true, so it is not a satisfactory basis for the rule.
How does the “fellow servant” rule play in to compensation? (Feldman)
Employees are compensated ex ante by their wages for bearing the risks of negligence characteristic of their lines of employment. This is a contract rationale. But with a choice, would someone agree to such risks (including death and
disability) without demanding at least compensation for the economic harm such an injury will cause? This is the kind of compensation that workers’ compensation is supposed to provide.
How does the “fellow servant” rule play in to consent? (Feldman)
Employees consent to bearing the risks of negligence characteristic of their lines of employment. A related justification is “volenti non fit injuria” (Eckert) – “to a willing person, it is not a wrong.”
What risks are assumed by the classical doctrine? (Feldman)
The obvious, necessary, and normal ones. (Murphy,
Hudson, Telega)
