Torts Flashcards
Overarching Theories of Tort Recovery
Intentional tort; negligence; strict liability
Types of Intentional Torts
battery, assault, IIED, trespass to land/chattel, conversion
Strict Liability Torts: Definition and 3 Types
D is liable for injuring P whether or not D exercised due care. P does not have to show proof of fault.
Types: Possession of animals w/ dangerous propensities; abnormally dangerous activities; supplying product in a defective condition unreasonably dangerous
Negligence Elements
Duty, breach, injury/harm/damages, causation (actual/proximate)
Intentional Torts –> Privileges/Defenses: Types
POPCANS - Privilege defense of Others defense of Property Consent Authority Necessity Self-Defense
Defenses: Negligence
Contributory negligence; comparative negligence; assumption of risk
Defenses: Strict Liability Torts
Comparative negligence; assumption of risk
5 Elements of Intentional Torts
Voluntary act; intent; causation; harm; lack of privilege/defense
Intentional Tort Element: Establishing Intent (2 ways)
Two ways to establish; either:
(1) D desires that his act will cause harmful result described by tort (purpose intent); or
(2) D knows that it is substantially certain that such result will occur (knowledge intent)
Intentional Torts Intent Element: Transferred Intent + Applicable Crimes
If D acts with necessary intent to inflict certain intent torts, but causes injury to a diff victim then intended, D’s intent is transferred to actual victim.
–> Applies to battery, assault, false imprisonment, TTL, and TTC
Intentional Tort –> Battery: Definition and 3 Elements; Defense
An intentional act that causes a harmful or offensive contact with the P or w/ something closely connected thereto (such as hat).
- -> AKA need to prove 3 elements:
(1) Intent
(2) Harmful or offensive contact; and
(3) To the person or something physically closely connected thereto - -> P does not have to prove injury; will get compensatory damages just by showing elements.
- -> Defense to battery: consent
Intentional Tort –> Battery: Intent Requirements
D must either act with purpose intent (desire to cause an immediate harmful/offensive contact) or knowledge intent (know that such contact is substantially certain to occur)
Intentional Tort –> Battery Req: Imm harm/off contact (2 scenarios)
Two scenarios fulfill req:
(1) Contact would inflict pain/impairment of any body function, or
(2) If a reasonable person would regard it as offensive.
–> P need not be aware of the contact.
Intentional Tort –> Assault: Definition and 3 Elements
An intentional act that causes the P to experience a reasonable apprehension of an immediate harmful or offensive contact; words alone rarely create assault.
AKA Need to Prove 3 Elements:
(1) Intent
- -> Desire to cause immediate harmful/offensive contact or know such a result substantially certain to result.
(2) Reasonable apprehension (objective standard)
- -> Reasonable person in same position as P would have experience same apprehension
- -> Does not matter if D lacked actual ability as long as P apprehension is reasonable
(3) Imminent battery
Intentional Tort –> False Imprisonment: Definition and 4 Elements
An intentional act that causes a P to be confined/restrained to a bounded area against the P’s will, and the P knows of the confinement or is injured thereby.
AKA 4 Elements:
(1) Intent
- -> purpose intent or knowledge intent
(2) Confinement in Bounded Area
- -> Can consist of physical barriers, threats of force, failing to release P after duty to release arises, invalid assertion of legal authority.
- -> No duration requirement.
- -> P cannot have actual knowledge of reasonable means of escape.
(3) Against P’s Will (consent is defense)
(4) Either P is aware of confinement or injured thereby
- -> If P aware, P entitled to any damages jury finds appropriate; if P unaware, P can only claim damages if injured by confinement.
Intentional Tort –> IIED: Definition and 3 Elements
An intentional/reckless act amounting to extreme and outrageous conduct that causes the P severe mental distress.
3 Elements:
(1) Intentional or Recklessness
(2) Extreme and Outrageous Conduct
(3) Severe Emotional Distress
Intentional Tort –> IIED Element 1: Intentional / Recklessness Definitions
Intentional: purpose intent or knowledge intent (D acts w/ desire to cause severe emotional distress or knows that such severe emotional distress is virtually certain to occur).
Recklessness: D acts in conscious disregard of high degree of probability that emotional distress will follow
Intentional Tort –> IIED Element 2: Extreme and Outrageous Conduct + Offensive Language
Satisfied if the D’s conduct is beyond the bounds of decency (civilized society will not tolerate).
- -> Offensive/insulting language generally not outrageous, except (3 scenarios):
(1) D is common carrier/innkeeper;
(2) D knows of P’s particular sensitivity; or
(3) D is an authority figure using racial/ethnic slurs against a subordinate
Intentional Tort –> IIED Requirement: Severe Emotional Distress
More than the level of mental distress a reasonable person could be expected to endure.
- -> must be substantial/long-lasting, not trivial/transitory
- -> most states don’t require actual physical injury
Intentional Tort –> IIED: Third Party/Bystander Liability (2 scenarios)
Where D’s conduct is directed at 3rd party, D liable if:
(1) P is immediate family member/close relative of 3rd party and is present at the time and the D is aware of the P’s presence; or
(2) to any other P (regardless of relationship) present at the time if such distress results in bodily harm and D is aware of P’s presence
Intentional Tort –> Trespass to Land: Definition and 3Elements
An intentional act that causes a physical invasion of P’s land.
3 Elements:
(1) Intent
(2) Entry
(3) P’s Land
Intentional Tort –> Trespass to Land Element: Entry - Physical Invasion (3 scenarios)
If the D (3 Scenarios):
(1) enters/causes object or third person to enter onto P’s land
(2) enters onto P’s land lawfully but remains when under legal duty to leave, or
(3) fails to remove object from P’s land when under legal duty to do so.
Intentional Tort –> Trespass to Land: Damages Remedies
(1) Nominal damages (trespass but no injury)
(2) D liable for full extent of harm caused by trespass
(3) Punitive damages (willful/malicious conduct)
Intentional Tort –> Trespass to Land: Restitutionary Remedy - Ejectment (def + 3 elements)
Action brought by P to have D removed from property, and mesne damages (compensate for loss of use of land; measured by rental value of property or benefit gained by wrongful possessor - whichever greater).
Requirements (3 Elements):
(1) proof of legal title;
(2) proof of P’s right to possession; and
(3) wrongful possession by D.
Intentional Tort –> Trespass to Chattels: Definition and 4 Elements
An intentional act by the D that interferes with P’s chattel (tangible personal property or intangible property with a physical representation), causing harm/actual damages (include value of loss of use/rental value or cost to remedy intermeddling).
4 Elements:
(1) Intent
(2) Interference
(3) P’s Chattel
(4) Actual Damages (unlike TTL)
Intentional Tort –> Trespass to Chattels Element: Intent
D intentionally performs physical act that interferes with O’s chattel. Liable even though D did not intend to trespass.
*Note: Mistake is not a defense
Intentional Tort –> Trespass to Chattels Element: Interference (def + 2 types)
Generally, uses or borrows without authorization.
2 Types of Interference:
Dispossession –> a direct interference with P’s possession, such as where a D temporarily takes the P’s chattel or wrongfully refuses to return it.
Intermeddling –> an interference with a chattel that does not directly affect P’s possession
Intentional Tort –> Conversion: Definition and 3 Elements
An intentional act by a D that causes the destruction of or a serious and substantial interference with the P’s chattel (mistake not defense).
–> D exercises dominion and control over chattel
3 Elements:
(1) Intent (D liable even if acting in good faith - mistake not defense)
(2) Dominion and Control
(3) Destruction/Serious and Substantial Interference
Intentional Tort –> Conversion: Examples
Wrongful acquisition (theft, embezzlement, receiving stolen property); wrongful transfer; wrongful detention; loss, destruction, or severe damage; material alteration; significant misuse
Intentional Tort –> Conversion: Damages (Type 1/6 Factors; Type 2)
-Forced Sale (Common) - price: FMV at time converted
Justice of requiring D to pay full value factors:
(1) extent/duration of D’s exercise of dominion
(2) D’s intent to assert right inconsistent with other’s right of control
(3) D’s good faith
(4) extent/duration of resulting interference with P’s right of control
(5) harm done to chattel
(6) inconvenience/expense caused to P
-Replevin: action brought by P to get personal property back
Intentional Torts –> Privileges/Defenses: Privilege (what is it + 3 circs + BoP)
D not liable for conduct that would ordinarily subject him to liability.
May exist where:
(1) person affected by D’s conduct consents to the act
(2) some important personal/public interest will be protected by D’s conduct which justifies harm caused/threatened by D’s conduct, or
(3) D must act freely in order to perform an essential function
D has burden of proving existence of privilege and that privilege was exercised reasonably under circumstances.
Intentional Torts –> Privileges/Defenses: Consent
Consent must be effective and D must not exceed the scope of consent.
- -> may be express (P affirmatively communicates permission for D to act, D must act within scope) or implied (reasonable person would interpret P’s conduct as evidencing permission to act).
- -> may be found as matter of law where P cannot consent (emergency, reasonable person)
Intentional Torts –> Privileges/Defenses: Ineffective Consent (6 ways - MF DIVA)
If consent given by P, consent may be ineffective:
- -> mistake: of fact/law as to nature of conseq of D’s act and D is aware of mistake
- -> fraud: induced by D’s intentional deceit as to essential nature/conseq of act
- ->duress: induced by threat of imminent harm to P or false assertion of lawful authority over P
- -> incapacity: young children/people with impaired mental capacities (mental disease, defect, intoxication) incapable of consent
- -> violation of criminal statute: D’s tortious conduct constitutes a crime
- -> act outside of scope
Intentional Torts –> Privileges/Defenses: Self-Defense
D honestly and reasonably believes that D used reasonable force to prevent P from engaging in an imminent and unprivileged attack.
- -> can only use degree of force necessary to avoid harm threatened by P.
- -> Once threat is over, defense will not work; must be imminent existing threat.
- -> no duty to retreat in most jdxs; never have to retreat from own home
Intentional Torts –> Privileges/Defenses: Defense of Others (def + reasonable mistake doctrine)
D entitled to defend another from an attack by the P to same extent that 3rd person would be entitled to defend himself from P.
- -> Reasonable mistake doctrine: even if 3rd person would not be permitted self defense, D relieved of liability if reasonable person would have believed defense of 3rd person was justified and that D’s action was necessary to prevent harm to 3rd person.
- However, D liable for unreasonable mistake
Intentional Torts –> Privileges/Defenses: Defense of Property
D entitled to use reasonable force to prevent P from committing tort against D’s property.
- -> never deadly force
- -> D must first demand that P return property/leave property
- -> no mistake allowed, even if reasonable
Intentional Torts –> Privileges/Defenses: Necessity
D permitted to injure a P’s property if reasonably necessary to avoid substantially greater harm to public at large (essentially, a disaster), himself, or property.
- -> reasonable person under same circumstances (objective standard)
- -> mistaken belief in necessity ok if reasonable
- -> D may still be liable for actual damage to P’s property but not technical torts like trespass
Intentional Torts –> Privileges/Defenses: Authority (3 types)
3 Types:
(1) Arrest
- PO can arrest if reasonably believes D committed felony.
- PO can arrest for misdem if Ds action constituted breach of the peace.
- Private person acts at his/her own peril - if wrong, liable for tort.
(2) Shopkeeper’s Privilege
- Not liable for FI if had a RS that P stole.
- Can only detain for a reasonable period and in a reasonable manner on the premises/immediate vicinity.
(3) Discipline
- Parent/teacher may use reasonable force to discipline a child.
Intentional Torts Privileges/Defenses: Shopkeeper’s Privilege
Shopkeeper not liable for false imprisonment if he has reasonable suspicion that P has stolen goods, uses reasonable force to detain the person, and detains the P for a reasonable period and in a reasonable manner (either on premises or immediate vicinity).
Negligence –> Duty Element: Definition
A legal obligation req’ing the D to conform to a certain standard of conduct for the protection of others against unreasonable risk.
–> D has legal duty to act as an ordinary, prudent, reasonable person taking precaution against unreasonable risk of injury to others.
Negligence –> Duty Element: Foreseeable Ps
D owes duty only to foreseeable Ps:
D owes duty only to those persons inside the geographic zone of danger at the time of D’s neg.
–> Rescuers (even nonprofessional rescuers) are per se foreseeable Ps: owed an independent duty (per se foreseeable Ps, even if neg)
Negligence –> Duty Element: Continuing risk of harm
When D’s prior conduct (tortious or not) creates continuing risk of harm of a type characteristic to the conduct, the D has a duty to exercise reasonable care to prevent/minimize the harm.
Negligence –> Duty Element: Duty Based on Undertaking
D undertakes to render services to P (rescuer) and knows/should know that services will reduce risk of physical harm to P
–> cannot just stop rescuing
Negligence –> Duty Element: Special Relationships
A person in a special relationship with another has affirmative duty of reasonable care with regard to risks arising within the scope of that relationship (position of power over P).
–> Examples: employer-employee in scope of employment; common carrier and inkeeper-customer; school-pupil; parent-child; landlord-tenant (common areas within landlord’s control); business-patron; and custodial relationships.
Negligent Infliction of Emotional Distress: Definition, Elements and Exceptions
D engages in neg conduct –> as a result, P suffers emotional distress w/ some sort of physical manifestation.
P must:
(1) have been in zone of danger (risk of being physically injured)
(2) have suffered some accompanying manifestation of emotional distress.
Exceptions:
(1) If the D negligently communicates announcement of death to loved one
(2) if D neg mishandles corpse
Negligent Infliction of Emotional Distress: Bystander Actions (def + 3 reqs)
Physical harm occurs to loved one and P sues for emotional distress as result of injury to loved one.
3 Requirements:
(1) P was located near scene of accident;
(2) P suffered severe emotional distress resulting from sensory and contemporaneous observance of accident; and
(3) had close relationship with victim (immediate family member).
Negligence –> Duty Owed By Land Possessors: Invitees (def + dut)
Invitee: person who enters onto D’s land at D’s express/implied invitation and enters for purpose relating to D’s interests/activities.
- -> Business invitee: enters onto D’s land for purpose related to D’s business
- -> Public invitee: enters onto D’s land for purpose for which it is held open to public
- -> Invitee may turn into licensee or trespasser if enter private area of property where invite does not extend
Land possessor had duty to exercise reasonable care to prevent injuries to invitees caused by activities conducted on land.
–> also has duty to exercise reasonable care to discover dangerous artificial conditions that invitees would not reasonable by aware of, and to warn invitees of existence of such conditions or make conditions safe
Negligence –> Duty Owed By Land Possessors: Licensee
Licensee: person who enters onto D’s property with express/implied permission and does not enter for purpose benefitting D or D’s activities, nor is the land held open to the public (IE social guests).
Land possessor has duty to exercise reasonable care to protect them from injury arising from activities conducted by the land possessor or on the land possessor’s behalf.
- -> usually sufficient for land possessor to warn licensee
- -> land possessor must use reasonable care to discover licensees whom he is not aware.
- -> land possessor must exercise reasonable care to warn of any artificial condition of which he is aware which present unreasonable danger of which licensee is unaware and unlikely to discover (but no duty to inspect land for dangerous artificial conditions).
- -> same standard of care for D to protect licensees from dangerous natural conditions to same extent as artificial conditions (should warn of known concealed dangers of all types)
Negligence –> Duty Owed By Land Possessors: Unknown Trespassers
Land possessor has no duty of care as to trespasser whose presence is unknown; no duty to inspect land to attempt to discover unknown trespassers.
–> However, duty to avoid infliction of willful/wanton harm.
Negligence –> Duty Owed By Land Possessors: Known or Frequent Trespassers
Most jdxs require land possessor to exercise reasonable care to protect known trespasser from injuries deriving from activities on the land; generally, LO must warn of known and concealed dangerous artificial conditions.
If land possessor knows/reasonably should know that trespasser frequently enters a portion of his land, standard may be higher than unknown trespassers (same as known).
D liable for failing to exercise reasonable care in warning known trespasser of artificial condition on premises if:
(1) possessor knows/has reason to know of presence in dangerous proximity to condition; and
(2) condition of such a nature that the D has reason to believe that trespasser will not discover it or realize risk involved.
D has no duty to protect known trespasser from injuries deriving from natural conditions on land.
Negligence –> Duty Owed By Land Possessors: Child Trespassers (attractive nuisance doctrine - 5 reqs)
Where activities/natural conditions are involved, standard of care: same as adult trespassers.
Attractive Nuisance Doctrine
–> Where artificial conditions are involved, standard of care heightened (duty to exercise reasonable care to prevent injury to children).
5 Reqs:
(1) Child too young to appreciate the danger
(2) D knows/has reason to know of the trespass
(3) D knows of the dangerous condition
(4) Condition is artificial and foreseeable that children will want to approach it
(5) The risk of danger of the artificial condition outweighs its utility and burden to fix it
Negligence –> Duty Owed By Land Possessors: Privileged Entrants
POs, firefighters responding to emergency
Licensees or invitees depending on purposes for entrance
Negligence –> Duty Owed By Land Possessors: Ps on Adjacent Land
Land possessor must exercise reasonable care to prevent P not on his land from injury deriving from land possessor’s activities or activities of others conducted on his land.
Land possessor must exercise reasonable care to prevent P not on his land from injury deriving from unreasonably dangerous artificial conditions that abut or protrude onto adjacent land
Land possessor must exercise reasonable care to protect passerby on a public street from injury deriving from dangerous artificial conditions on his land.
Negligence –> Duty Owed By Land Possessors: Landlords and Tenants (common areas v tenant areas -3)
Common areas in landlord’s possession remain landlord’s responsibility.
Landlord liability for tenant areas
- -> patent defects: dangerous natural or artificial conditions that are/should be reasonably apparent to tenant upon transfer of possession; NO duty to warn.
- -> latent defects: dangerous natural/artificial conditions of which tenant is unaware and are not reasonably apparent to him, of which landlord is aware; duty to warn, but not to inspect.
- -> negligent repair: no landlord duty where dangerous conditions arise after possession has transferred to tenant, unless landlord undertakes to repair such conditions
Negligence –> Breach/Standard of Care: RPP
D breaches duty to P if he fails to conduct himself as a reasonably prudent person under the same or similar circumstances.
Objective test: D’s conduct measured against expectation of conduct w/in community.
–> person w/ diminished cognitive abilities assessed w/o such disabilities (mental ability, speed of reflexes, or mental health)
However, law does consider:
–> person w/ increased knowledge/expertise compared to reasonable person possessing same amount of increased knowledge/expertise
–> in emergency not of Ds own making, must conduct themselves as reasonable person would behave in emergency
–> physical conditions (blind, deaf, amputee): standard of RPP w/ that condition
3 Factors to Analyze Breach of RPP (Hand Formula)
(1) What is the probability of harm occurring from D’s conduct?
(2) What is the likely magnitude of the harm going to be?
(3) What is the burden on D to avoid the harm?
Negligence –> Breach/Standard of Care: RPP Standard - Children
Reasonable person standard specifically takes account of age when D is a minor.
- -> Majority: minor D’s conduct assessed according to reasonable child of same age, education, intelligence, and experience standard.
- -> Minority: divides minors into three age levels (6 and below - not neg; 7-13 rebuttable presump not neg; 14 up rebuttable presump neg)
Exception: children engaging in adult activities –> adult standard of care
Negligence –> Breach/Standard of Care: Negligence Per Se (majority; ToPToH 3 conditions; exception)
Majority: Negligence per se –> Where D’s conduct also violates a statute that does not provide for civil liability (criminal statute), that statute can est the standard of conduct for breach of duty purposes.
Conditions (must be type of person, type of harm):
(1) injury caused by the D’s conduct is type that statute was intended to prevent
(2) P is a member of the class intended to be protected by statute; and
(3) D’s violation of statute is not excused (emergency not of D’s own making or when it’s more dangerous to comply with the law)
Exception:
Licensing statutes: not having a license does not create liability (IE expired DL not neg per se)
Negligence –> Breach/Standard of Care: Professionals
Professionals (drs, lawyers, accountants, etc.) treated differently in neg from other Ds.
–> Customary practice of professionals in good standing sets standard of care.
Negligence –> Breach Element: Determining Breach
P generally meets burden of proving breach by est that D’s conduct fails to conform to applicable standard of care.
Negligence –> Breach/Standard of Care: Res Ipsa Loquitur
Allows jury to infer D’s breach (only breach) based on the nature of the accident and D’s relationship to it (when P cannot identify precisely what D did wrong, but the sitch smells like neg)
3 reqs for res ipsa loquitur:
(1) the event that caused the P’s injury was one which would not ordinarily occur in the absence of neg
(2) it is more likely than not that it was D’s neg that was responsible for injury causing event because D had control over instrumentality of the harm; and
(3) P was not responsible for event that caused injury
–> Immaterial that P placed himself in situation of peril or that he did not take precautions to avoid injury.
–> Professional malpractice application - common knowledge exception: when equipment is sewn into P you don’t need an expert to est neg conduct
Negligence –> Cause in Fact (AC) Element: But-For Test
A D’s conduct was the cause in fact of an event if that event would not have occurred but for existence of conduct.
-As long as more than 50% at fault, D is liable for full extent of damages.
Negligence –> Cause in Fact (AC) Element: Substantial Factor Test
D’s conduct was AC if conduct was substantial factor in bringing about injury.
- -> For situations where two or more Ds conduct results in injury to P, but each D alone would have been enough to cause the entire harm.
- -> Joint and several liability –> P can collect from any Ds, and Ds can sue each other for contribution
Negligence –> Cause in Fact (AC) Element: Alternative Liability Theory (+ 3 reqs)
Where a Ps injury arises from neg conduct of two or more independently acting Ds, only one of whom can actually be responsible.
–> each Ds conduct is considered cause in fact of injury unless D can prove he did not cause P’s injury (burden of proof shifts from P to D)
3 Requirements:
(1) All Ds are tortious/neg
(2) All Ds are being sued together (can’t use if one D is left out); and
(3) Small number of Ds
- —-> Burden shifts to Ds to show they were not the cause; if Ds cannot do so, they will be J/S liable
Negligence –> Proximate (Legal) Cause Element: Intervening Force
Actively operates in producing harm to another after the actor has already committed his negligent act/omission.
–> D liable for foreseeable intervening force: rescuers neg; physician/nurse treatment; disease/subsequent injuries
Negligence –> Proximate (Legal) Cause Element: Unforeseeable Manner of Harm - Superseding Cause
An unforeseeable, intervening cause that breaks the chain of causation between the initial wrongful act and the ultimate injury, and thus relieves original TF of any further liability.
–> Ex: naturally occurring phenomena; criminal acts of 3rd persons; intentional torts of 3rd persons; extraordinary forms of neg conduct
The more culpable the intervening force, the more likely it supersedes; typically, criminal conduct will be a superseding cause, if that conduct is not foreseeable.
Subsequent neg conduct is generally not so unforeseeable that it cuts off liability.
Tip: look for passage of time (at some point, liability is cut off)
Negligence –> Damages Element: Actual Damages
A P must affirmatively prove actual damages (property damages and personal injury damages are recoverable); nominal damages not available; punitive damages not allowed generally.
Negligence Element Damages: Collateral Source Rule
Collateral benefits (payments made/benefits given to injured P from other sources) are not subtracted from P’s recovery.
- -> Ex: insurance policies; employment benefits; gratuities; social legislative benefits.
- -> Payments made by TF or party acting for him (D insurance co) to injured party are credited against D’s tort liability.
Negligence Element Damages: Punitive Damages
Amount over and above compensation needed to make P whole, intended to punish D for egregious conduct and act as deterrent; available in tort cases where there has been willful, wanton, or malicious conduct.
–> test for whether punitive damages grossly excessive: (1) degree of reprehensibility; (2) ratio cannot be 10x higher; (3) diff between award and civil/criminal sanctions could be imposed for comparable misconduct.
Negligence –> Defenses: Contributory Negligence (don’t assume jdx on test)
P must exercise due care to protect himself from injury by D; P’s own neg (contributory neg) may bar P’s recovery (test: whether P acted as reasonable person under similar circumstances).
- -> Contrib neg traditionally barred all recovery by P (CL)
- ———> Last clear chance doctrine (generally wrong answer): if D’s neg occurs after Ps neg, so that D had last opp to avoid harm, P is entitled to full recovery.
- -> Contrib neg not complete bar if P in intentional tort, recklessness, or strict liability.
Negligence –> Defenses: Comparative Fault
Assume pure comparative fault w/ J/S liability unless told otherwise…
- -> P can recover no matter how much P is at fault; recover is amount of damages minus the percentage that P is at fault.
- -> J/S applies if mult neg Ds, and P is also at fault. SUbtract Ps percentage of fault and P can sue one or more Ds to get full remaining amount. If P sues only one D, D can seek contribution from other Ds.
Also, modified comparative fault…
–> P is barred from recovery if P is as much at fault or more at fault than D
Negligence –> Defenses: Assumption of Risk
A P assumes the risk of injury from D’s neg if P expressly/impliedly consents to undergo risk created by D’s conduct.
- -> Express (3 reqs): (1) P must be aware of and understand the terms; (2) injury that occurs must be within risks of which P agreed to relieve the D; and (3) the agreement must not be contrary to pub pol
- -> Implied (3 reqs): (1) P had knowledge of and appreciated nature of danger involved (subjective); (2) P appreciated specific danger that injured him; and (3) P voluntarily chose to subject himself to that danger.
Firefighter Rule (Prof Rescuers): When P is a prof rescuer AND is injured due to inherent risk of job, P cannot recover in neg against person who created need for rescue. (diff from Good Samaritans, we want those to be able to sue to encourage ppl to rescue)
Primary Assumption of the Risk
–> In certain contexts, there is no duty to be non-neg. Often arises in context of sporting events.
