Page 28 Flashcards
How can an emergency be an exception to contributory negligence?
If you act in response to an emergency or rescue someone in danger, you can’t be charged with contributory negligence unless you act recklessly
Can emergency be an exception to contributory negligence if the emergency was of your own making?
No
What is the rationale for emergency being an exception to contributory negligence with regard to rescue?
Rescue is foreseeable, so a rescuer can recover from the defendant whose negligence prompted the rescue if he had a reasonable belief the plaintiff was in peril
How is the last clear chance doctrine an exception to contributory negligence?
This doctrine saves the contributorily negligent plaintiff by putting the entire burden of loss on the defendant
What type of law follows the last clear chance doctrine?
Common law
If your truck breaks down and you pull to the side of the road, but your bumper negligently protrudes and another person that is negligently driving too fast doesn’t see it and hits you, can you argue last clear chance?
Yes, you can argue that the other person had the last clear chance to apply the brakes
How does last clear chance soften the complete defense of contributory negligence?
It allows the negligent plaintiff a full recovery if he is left in a helpless position by his own negligence and someone else has the last clear chance to avoid injury, but negligently inflicted it anyway after discovering his peril
Can the last clear chance doctrine apply if the defendant didn’t discover the plaintiff’s peril but should have?
Yes
Essentially the last clear chance doctrine means that the court ignores the plaintiff’s contributory negligence if what?
The defendant’s negligence occurred after the plaintiff’s
Who is the person responsible in a last clear chance situation?
The person with the last clear chance to avoid the accident
Is the last clear chance doctrine often followed today?
No, it is in major disfavor
If an exam question asks about the best choice to relieve defendant of liability and offers last clear chance as a pick, should that be the answer?
No, because this doesn’t relieve defendant of liability, it relieves the plaintiff of the effect of contributory negligence, and actually makes the defendant liable if it applies
What are the two positions for last clear chance?
- majority: not applicable if defendant didn’t know plaintiff was in peril
- minority: applies anytime defendant should know of plaintiff’s peril
What are the different types of peril that apply to the minority position for the last clear chance doctrine?
Helpless peril and inattentive peril
What is helpless peril under the last clear chance doctrine?
Plaintiff put himself in a position of danger but was powerless to get himself out of it, so the only way to avert the peril was for defendant to act
If P found himself in a situation of helpless peril, can he recover under the last clear chance doctrine?
Usually he can, if defendant had actual knowledge of plaintiff’s peril or should have had it and was then negligent
If the plaintiff carelessly runs across a busy street and falls and breaks his ankle, and is then run over by a negligently careless driver, can he use the last clear chance doctrine to get recovery?
Yes, because he would be considered someone in helpless peril
What is inattentive peril under the minority view of last clear chance doctrine?
Plaintiff puts himself in a situation of peril, but could’ve gotten himself out of it by using reasonable care, but didn’t because he wasn’t aware of the harm that was about to happen from the defendant
What is an example of inattentive peril for last clear chance doctrine?
Crossing a street without looking
What is required for the plaintiff to get recovery in an inattentive peril situation under the last clear chance doctrine?
Defendant must have had actual knowledge of plaintiff’s presence in time to avoid the accident
What are the three major situations that imputed contributory negligence applies?
- master-servant
- joint enterprise
- injury to someone else
How can imputed contributory negligence apply to a master/servant situation?
A servant’s negligence can be imputed to the master. Ie: chauffeur
How can imputed contributory negligence happen in a situation where you injure someone else?
Things like loss of consortium, bystander emotional distress, etc.
How do most courts deal with contributory negligence nowadays?
Almost all states reject it as being a complete defense
What is “assumption of the risk” as a defense to negligence?
Expressly or impliedly voluntarily consenting to undergo a risk created by defendant’s conduct that completely bars plaintiff from recovery
In order for assumption of the risk to apply, what are the two things that have to happen?
- Plaintiff must fully understand the risk of harm
- Plaintiff must voluntarily choose to remain within the area of risk showing a willingness to accept it
What is the majority trend for assumption of the risk?
To merge it into comparative negligence
What is essential for assumption of the risk?
Consent to the risk of harm (heedlessness or indifference is not enough)
If a person has no reasonable alternative, has he assumed the risk?
No, if the decision came because of necessity, force, or fraud, there’s no assumption of the risk
If you dash into a dangerous situation to save your own property, is that assumption of the risk?
Not unless the risk was out of all proportion to the value of the interest being protected
When is assumption of the risk usually seen?
In recreational sports or when plaintiff agrees to engage in an activity knowing there are risks but he does it anyway
How do you discuss assumption of the risk on an essay?
First show the defendant was negligent, then argue for the defense
Companies that furnish public services are usually not allowed to claim what?
That a member of the public assumed the risk in seeking to use those services
If you board a public bus knowing the driver is drunk, can your recovery be denied because of assumption of the risk?
No, because that would go against public policy
If you encounter an oil spill on the road, and taking a detour will mean you will be late to work, so you drive through and cause injury, what is the essential question that has to be answered here to determine assumption of the risk?
Whether or not there were reasonable alternatives to driving through, so balancing of the harm threatened by the delay and losing your job versus the harm you exposed yourself to
What are the two different types of assumption of the risk?
Express and implied
What is express assumption of the risk?
Explicitly agreeing to relieve defendant of his obligation to be nonnegligent toward plaintiff by stating you know the risk and accept it
When do you often see express assumption of the risk?
Skydiving or white water rafting waivers
Express assumption of the risk waivers are valid so long as what?
The language is clear and properly drafted
If D’s conduct is more culpable than negligence, can an express waiver for assumption of the risk still apply?
No
What is implied assumption of the risk?
A manifestation of plaintiff’s willingness to relieve defendant of liability for his negligence, usually shown by conduct
What is the easiest way to prove implied assumption of the risk?
If the plaintiff continued in the face of a known danger
If your coworker picks you up from work obviously drunk, and you get in the car and there’s an accident, have you consented to the risk?
Yes because you voluntarily got into the car when you knew and comprehended the risk, but if you weren’t able to realize the risk, then you didn’t assume it
What are the three elements of assumption of the risk?
- plaintiff knew of the risk
- comprehended the risk
- voluntarily elected to expose himself to the risk
What are exceptions to contributory negligence?
Impotent PRIKER
- IMPUTED AoR
- discovered PERIL
- RECKLESSNESS
- INTENTIONAL misconduct
- KIDS
- EMERGENCY
- RESCUE
- Last Clear Chance
