Page 29 Flashcards
For assumption of the risk, what does it mean that the plaintiff comprehended the risk?
He understood the magnitude and its implications
Sometimes a risk is so obvious that any competent adult is expected to what?
Be aware of it, like slipping on ice
What does primary assumption of the risk do?
Means the defendant didn’t owe a duty or breach one, and was not negligent
If you go to a baseball game and get hit by a ball, was there a breach so that you can recover for your injuries?
No, because you assumed the risk under a primary assumption of the risk
How can you assume the risk by agreement?
Through exculpatory clauses when the relationship is contractual, you can limit liability in advance
Does an exculpatory clause always amount to assumption of the risk, so that it bars recovery?
Recovery depends on the enforceability of the provisions according to contract and tort law
In order for an exculpatory provision to be an assumption of the risk, what needs to be present?
It must be written in large type or have signs that call attention to it, and must be within the scope of the contract.
If the parties are in unequal bargaining positions, and an exculpatory clause is included, what is usually the finding on that?
The clause is usually held invalid
How are releases treated at common-law and modern law?
- CL: if plaintiff settles with one tortfeasor, that is a release for all others
- modern: plaintiff can settle with one tortfeasor and expressly reserve a right to proceed against others
Are pre-injury releases usually upheld?
Not usually if a child is involved, but usually adults are upheld as long as they’re clear and unambiguous
If a co-participant in a sport acts within the range of ordinary behavior for that sport, is his conduct a breach of duty?
No
What must be found to recover for negligence in athletics?
Reckless disregard for safety
If you play a sport, you assume the risks that what?
Are inherent in the activity
What approach is comparative negligence?
Majority approach that is adopted by virtually all states
What is comparative negligence?
Plaintiff’s conduct that falls below the standard of conduct he should conform to for his own protection is a partial bar to recovery, and reduces his recovery by the percentage he is responsible for his own injury
Who determines the percentage of fault for comparative negligence?
Trier of fact
What are the two different types of comparative negligence?
Pure and modified
What is pure comparative negligence?
Plaintiff can recover some percentage from liable defendants regardless of the extent of his own negligence
If a plaintiff is 60% liable, under pure comparative negligence, how much can he recover?
40%, because even though he was primarily responsible for the accident, he can still recover
What is modified or partial comparative negligence?
Plaintiffs are allowed a partial recovery until he reaches a certain level of culpability for his own accident, then he is completely barred from recovery
What are the two different types of modified comparative negligence?
- greater than 50% approach
- 50% or greater approach
What is the greater than 50% approach to modified comparative negligence?
Plaintiff is barred from recovery when he is more negligent than the defendant, or more than 50% at fault
What is the 50% or greater approach to modified comparative negligence?
P Is barred from recovery when he is equal to or more negligent than defendant (greater than or equal to 50%)
If you are 49.9% at fault, can you recover damages under the 50% or greater approach to modified comparative negligence?
Yes, you can recover 50.1% of damages
What are joint tortfeasors’ liability?
The damages are divided by the proportion of responsibility each person owes
If one joint tortfeasor can’t pay, what happens?
The others will pay that share in proportion to their own
What does joint and several liability mean?
Each tortfeasor is responsible for all of the plaintiff’s damage, and the plaintiff can pursue all, one, or some of the defendants to get payment, but he can only recover once
What happens if there is an unsatisfied judgment against one of the several joint tortfeasors?
That doesn’t bar the plaintiff’s action against the others
If the plaintiff gets satisfaction against one tortfeasor, does that extinguish the cause of action?
Yes, and bars later suits for a greater or additional amount against any of the others
When do you most often see joint and several liability on tests?
When there are multiple tortfeasors, and the answer says “X is not liable because Y is liable”. This is obviously not the answer because both can be liable
In a joint and several liability situation, if the jury apportions more fault to the plaintiff than the defendant, what is barred?
Recovery of punitive damages
If you were injured by a negligent person, and don’t get medical care and your injury is aggravated, what is the negligent person liable for?
The original injuries, but not the aggravation caused by the carelessness in not getting medical care
For assumption of the risk, what does it mean for the plaintiff to know the risk?
He had actual and conscious knowledge of it
