Chapter Six: Defenses A' The Plaintiffs Fault 3' Assumption of the Risk

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Chapter Six Defenses A. The Plaintiffs
Fault 3. Assumption of the Risk

• Duty
• Breach
• Causation
• Cause in fact
• Proximate cause
• Damage or injury
• Defenses
• Immunity
• Contributory negligence/comparative fault
• Assumption of the risk
• Express
• Implied

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Chapter Six Defenses A. The Plaintiffs
Fault 3. Express Assumption of the Risk
1. Was the agreement effective? Was it brought
to the plaintiffs attention? Does the agreement
cover the injury that occurred? Does the
agreement cover the person who was injured? 2.
Is the agreement enforceable, as a matter of
law? Dalury v. S.K.I. Tunkle v.
Regents Virginia rule
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Chapter Six Defenses A. The Plaintiffs
Fault 3. Assumption of the Risk

• Duty
• Breach
• Causation
• Cause in fact
• Proximate cause
• Damage or injury
• Defenses
• Immunity
• Contributory negligence/comparative fault
• Assumption of the risk
• Express
• Implied

Negates!
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Chapter Six Defenses A. The Plaintiffs
Fault 3. Assumption of the Risk

• Duty
• Breach
• Causation
• Cause in fact
• Proximate cause
• Damage or injury
• Defenses
• Immunity
• Contributory negligence/comparative fault
• Assumption of the risk
• Express
• Implied

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Chapter Six Defenses A. The Plaintiffs
Fault 3. Implied Assumption of the Risk
The traditional test for assumption of the risk
(Davenport, p. 477) 1. The plaintiff must have
knowledge of the facts constituting a dangerous
condition 2. The plaintiff must know that the
condition is dangerous 3. The plaintiff must
appreciate the nature and extent of the
danger 4. The plaintiff must voluntarily expose
herself to the danger. Before the advent of
comparative fault, if these elements were
established, the plaintiff recovered nothing.
What happens after the advent of comparative
fault?
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• Assumption of the risk The basic problem
• Defendant creates risk of harm to plaintiff, or
  allows one to exist
• Risk is perfectly obvious,
• Plaintiff encounters the risk and is injured.
• What justified an absolute bar on recovery?
• If the risk is obvious, defendant has no duty to
  protect you from it.
• If the risk is obvious and reasonable, the
  reasonable person would not bother to eliminate
  it, and there is no breach.
• If the risk is obvious, it is your own fault if
  you are harmed.
• If the risk was obvious, you cant complain if
  you chose to encounter it, because you agreed to
  assume the risk.

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Chapter Six Defenses A. The Plaintiffs
Fault 3. Implied Assumption of the Risk

• Murphy v. Steeplechase Amusement Park Company
• How should we think about the problem?
• Because the risk was obvious, defendant had no
  duty to protect the plaintiff from it.
• Because the risk was obvious and reasonable, the
  reasonable person would not bother to eliminate
  it, and there is simply no breach.
• Because the risk was obvious, it was the
  plaintiffs own fault that he was harmed.
• Because the risk was obvious, and the plaintiff
  chose to encounter it, he implicitly agreed not
  to sue.
• .