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

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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. 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
• Primary, implied

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

• Davenport v. Cotton Hope Plantation
• How would you establish
• Duty
• Breach
• Causation
• Defenses
• Contributory negligence/comparative fault
• Assumption of the risk
• Damage or injury

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Chapter Six Defenses A. The Plaintiffs
Fault 3. Implied Assumption of the Risk
Davenport v. Cotton Hope Plantation How should
we think about the problem? 1) The defendant had
no duty to the plaintiff, so it doesnt matter
whether or not he was negligent. 2) The
defendant was never negligent in the first place,
because the risk was obvious (or inherent in the
activity) and reasonable. 3) The plaintiff was
the one who was at fault, because he unreasonably
decided to encounter a risk that was obvious to a
reasonable person known risk. 4) The plaintiff
cant complain, because he consented to take on
the risk. .
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Chapter Six Defenses A. The Plaintiffs
Fault 3. The Firefighter rule

• Roberts v. Vaughan, p. 484
• How would you establish
• Duty
• Breach
• Causation
• Defenses
• comparative fault
• Damage or injury

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Chapter Six Assumption of the Risk
I. If you arent in Rhode Island If the
defendant argues that the risk was obvious to the
plaintiff, or would have been obvious to a
reasonable person 1) Did the defendant owe
the plaintiff a duty? -- was it an inherent
risk primary a/r -- open obvious danger rule
in premises liability, swimming pool cases --
does the firefighters rule apply 2) Was the
defendant negligent at all? 3) Was the plaintiff
also at fault because he unreasonably chose to
encounter the risk? Plaintiffs recovery is
reduced.
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Chapter Six Assumption of the Risk

• II. If you are in Rhode Island? (a jurisdiction
  where a/r is still a complete defense)
• Then, the key is actual awareness consent
• The plaintiff must have knowledge of the facts
  constituting a dangerous condition
• The plaintiff must know that the condition is
  dangerous
• The plaintiff must appreciate the nature and
  extent of the danger
• The plaintiff must voluntarily expose herself to
  the danger, under circumstances that indicate
  that the plaintiff has acquiesced in the risk.

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Chapter Seven Strict Liability A. Doctrinal
Development
The questions 1) What does it mean to say
someone is strictly liable? How does it differ
from fault based liability? 2) How do you
decide, doctrinally, that strict liability will
be imposed? What activities are subject to
strict liability? 3) Why, as a matter of policy,
are we imposing strict liability on some
activities and not others?
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Chapter Seven Strict Liability A. Doctrinal
Development
The problem Plaintiff farms organically.
Defendant, who owns the neighboring farm, does
not. When Defendants crops become infested by a
beetle, he hires Crop Duster to spray a
pesticide. Residue of the pesticide turns up on
Plaintiffs vegetables, which he then cannot sell
as organic. Because produce contracts are
entered before the crops are grown, Plaintiff
cannot find a market for his vegetables and is
forced to sell them at a loss.
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Chapter Seven Strict Liability Problem
Fletcher v. Rylands
The person who for his own purposes brings on
his lands and collects and keeps there anything
likely to do mischief if it escapes, must keep it
at his peril
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Chapter Seven Strict Liability Problem
Fletcher v. Rylands

• The person who for his own purposes brings on
  his lands and collects and keeps there anything
  likely to do mischief if it escapes, must keep it
  at his peril.
• The problem
• Is it likely to create mischief, or is the
  harm due to the organic farmers use?
• -- Is it a common usage
• Did the defendant bring it on to his land.
• -- Is the degree of risk different?

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Chapter Seven Strict Liability A. Doctrinal
Development Rylands v. Fletcher

Subject to negligence-based liability
only Collision cases
Subject to strict liability leaking
reservoirs fumes from alkali works leaking
privies escaping cattle
Why are the activities in the two categories
being treated differently?
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Chapter Seven Strict Liability A. Doctrinal
Development Rylands v. Fletcher
Why are the activities in the two categories
being treated differently? See p. 501

• There is no ground for saying that the plaintiff
  here took upon himself any risk arising from the
  uses to which the defendants should choose to
  apply their land. He neither knew what those
  might be . . . Nor could he in any way control
  the defendants use of the land.

• Traffic on the highways . . . Cannot be
  conducted without exposing others to some risk .
  . . That being so, those who go on the highway or
  have their property adjacent to it . . .. Do so
  subject to taking upon themselves the risk from
  that inevitable danger.

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Chapter Seven Strict Liability Problem
Rylands v. Fletcher
If the defendants, not stopping at the natural
use of their close, had desired to use it for any
purpose which I may term a non-natural use, . .
. Then it appears to me that that which the
defendants were doing they were doing at their
own peril
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Chapter Seven Strict Liability A. Doctrinal
Development

524A Plaintiff's Abnormally Sensitive Activity
There is no strict liability for harm
caused by an abnormally dangerous activity if the
harm would not have resulted but for the
abnormally sensitive character of the plaintiff's
activity.
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Chapter Seven Strict Liability A. Sullivan
v. Dunham

The safety of property generally is superior in
right to a particular use of a single piece of
property by its owner.
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Chapter Seven Strict Liability A. Doctrinal
Development Sullivan v. Dunham

Subject to negligence-based liability
only Boiler explosion
Subject to strict liability Blasting
Why are the activities in the two categories
being treated differently?
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Chapter Seven Strict Liability A. Doctrinal
Development Sullivan v. Dunham

Subject to negligence-based liability
only Boiler explosion By becoming a member of
a civilized state, I . . . give up many of my
natural rights. The general rule that I must
use my real estate as not to injure my neighbor,
is modified by the exigencies of the social
state.
Subject to strict liability Blasting The maxim
of sic utere tuo applies to protect person and
property from direct physical violence, which
although accidental, has the same effect as if it
were intentional.
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Chapter Seven Strict Liability A. Doctrinal
Development
Restatement Second of Torts, 520 a) existence
of a high degree of risk b) likelihood of great
harm c) inability to eliminate the risk by the
exercise of reasonable care d) not a matter of
common usage e) inappropriateness of activity to
place carried on f) extent to which activitys
value to the community is outweighed by its
dangerous attributes.
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What are the goals of tort law?
From class 2 Corrective Justice / moral
goals Promote economic efficiency Encouraging
productive activity Increasing safety Deterring
unsafe conduct Compensating victims Fairness Settl
ing normative, contested social
issues Deterrence through imposing
costs Shifting and spreading costs
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Chapter Seven Strict Liability B.
Theoretical Perspectives
Rabin, Enterprise Liability Definition Liabilit
y rules should be determined by two factors 1)
which enterprise has the superior risk-bearing
capacity? and 2) which enterprise is generally
better placed to respond to the safety incentives
created by liability rules?
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Chapter Seven Strict Liability B.
Theoretical Perspectives
King article Goals that have guided (should
guide?) the choice of liability rules
include 1. Loss-spreading 2. Loss avoidance or
risk reduction 3. Loss allocation, or
internalization 4. Administrative efficiency 5.
Fairness 6. Protection of individual autonomy
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Chapter Seven Strict Liability B.
Theoretical Perspectives
Posner article Strict liability 1) provides
incentives missing in a negligence regime to
consider reducing the level of an activity, or
substituting a different activity 2) reduces the
economic rents (profitability) of an
activity 3) operates as (a very expensive) form
of insurance 4) over-deters, if damage awards are
in excess of actual losses 5) will be less
administratively expensive if changes in activity
level do result in fewer claims, but more
expensive otherwise.
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Assignment

Thursday Skim pp. 540-546. Be prepared to
discuss pp. 546-553 n.5, p. 555 n.9- p.
558. p. 558-567 n. 6 p. 567 n. 7- p. 581