Negligence - Victim Choice: Assumption of Risk - Modern Conceptions Flashcards
Why did Siragusa reject classical A/R doctrine? (Feldman)
A. It makes a fiction of the employer’s duty to provide a reasonably safe workplace. Under classical A/R an employer’s duty is simply to make unreasonable risks open and obvious.
B. Classical doctrine’s claim of employee consent is a fiction because many employees don’t have a choice.
C. It inefficiently subsidizes industry by permitting industry to externalize its accident costs. Whether this is correct depends on whether wages reflect a proper “risk premium.”
What is primary assumption of risk? (Feldman)
Recognizing that no duty was owed in the first place.
What is another way of saying primary assumption of risk? (Feldman)
Implied primary.
Who does primary assumption of risk relieve? (Feldman)
Primary A/R relieves persons in charge of a risky recreational activity (e.g., ski resorts) and co-participants in various recreational activities (e.g., fellow softball players) of duty of reasonable care (Scott; Li).
When does primary assumption of risk apply? (Feldman)
Applies to “inherent” risks of activity and not risks wrongly increased by the injurer’s negligence (Scott, Coomer).
What are inherent risks? (Feldman)
“Inherent” risks are those that are “so intertwined with the underlying activity” that someone engaged in the activity “cannot control or limit the risk without abandoning the activity” (Coomer) or where eliminating the risk “would chill vigorous participation … and alter the fundamental nature of the activity (Sanchez)
What is the “firefighter’s rule”? (Feldman)
The “firefighter’s rule” is the modern residue of classical A/R. Firefighters cannot recover for breach of duties to exercise reasonable care to prevent fires. With appropriate adjustments, police officers are also covered by the firefighter’s rule.
Can a firefighter recover damages from the act that caused them to be there in the first place? (Feldman)
No.
