(1) P knew about risk (cannot be implied) subjectively knew and appreciate Actual knowledge: magnitude/implications (2) P voluntarily assumed risk Negated by (no reasonable altrnative) fraud or necessity (3) P actually encountered the exact risk which assumed liability for Implied assumption states: 1) Complete bar to recovery (contributory negligence regime) 2) Reasonable v. unreasonable (comparative negligence regime) - Reasonable complete bar Unreasonable- comparative negligence 3) Nonexistent in some states (only can do comparative negligence) 4) NY Statute: implied assumption of risk as from distinct “Hybrid” comparative, BUT only reduces by %age (partial defense) Other states: primary and secondary implied assumption of risk Primary-- actually NOT assumption of risk, but rather NO duty (risks inherent in activity, doesn’t matter whether P understood risks) actually Ex: recreational sports P knew risk because it’s the more obvious the risk; open and obvious-- the less likely a breach will be found Murphy v. Steeplechase Amusement Co (NY 1929): p gets on a ride where he runs on a conveyor belt and then falls; he breaks his kneecaps; he had been watching the ride and knew what it was/did, case “Flopper” P had assumed the risk (open/obvious), no breach Secondary - there is an actual implied assumption of risk (but isn’t this just comparative fault?); can be broken into reasonable and unreasonable ex: Smollett case (skating rink, Smollet v. Skayting Dev Corp (3rd Cir 1986): p goes to skating rink, no guardrails, raised rink, p almost runs over a and to avoid him she turns and skates off the rink onto carpet, falls and breaks wrist; signs posted in rink at your own risk” “skate P had a reasonable awareness of and still assumed of risks--> she was barred from recovery Virgin Islands (reasonable assumption of risk = complete bar on recovery) Strict Liability LOOK AT SIX FACTOR TEST AND POLICY CONSIDERATIONS FOR OUTCOME 6 Factor test for Strict Liability - 2d Restatement of §520: a. Existence of (P) high degree of risk Abnormally hazardous activities b. resulting from risk will be (L) Likelihood that harm great to eliminate risk by exercise of c. Inability reasonable care
(1) P knew about risk (cannot be implied) Actual knowledge: subjectively knew and appreciate magnitude/implications (2) P voluntarily assumed risk Negated by fraud or necessity (no reasonable altrnative) (3) P actually encountered the exact risk which assumed liability for Implied assumption states: 1) Complete bar to recovery (contributory negligence regime) 2) Reasonable v. unreasonable (comparative negligence regime) Reasonable - complete bar Unreasonable- comparative negligence 3) Nonexistent in some states (only can do comparative negligence) 4) NY “Hybrid” Statute: implied assumption of risk as distinct from comparative, BUT only reduces by %age (partial defense) Other states: primary and secondary implied assumption of risk Primary-- actually NOT assumption of risk, but rather NO duty (risks inherent in activity, doesn’t matter whether P actually understood risks) Ex: recreational sports P knew risk because it’s open and obvious-- the more obvious the risk; the less likely a breach will be found Murphy v. Steeplechase Amusement Co (NY 1929): p gets on a ride where he runs on a conveyor belt and then falls; he breaks his kneecaps; he had been watching the ride and knew what it was/did, “Flopper” case P had assumed the risk (open/obvious), no breach Secondary - there is an actual implied assumption of risk (but isn’t this just comparative fault?); can be broken into reasonable and unreasonable ex: Smollett case (skating rink, Smollet v. Skayting Dev Corp (3rd Cir 1986): p goes to skating rink, no guardrails, raised rink, p almost runs over a and to avoid him she turns and skates off the rink onto carpet, falls and breaks wrist; signs posted in rink “skate at your own risk” P had a reasonable awareness of and still assumed of risks--> she was barred from recovery Virgin Islands (reasonable assumption of risk = complete bar on recovery) Strict Liability LOOK AT SIX FACTOR TEST AND POLICY CONSIDERATIONS FOR OUTCOME 6 Factor test for Strict Liability - 2d Restatement of §520: a. Existence of high degree of risk (P) Abnormally hazardous activities b. Likelihood that harm resulting from risk will be great (L) c. Inability to eliminate risk by exercise of reasonable care
Torts_-_Wyman_Fall_2010_Outline.docx