Assumption of the risk
A/R
mixed
causation
causation
100
What result if the P gave an "express consent" to an intentional tort or "express assumption of the risk" in a negligent tort?
What is a bar to recovery?(unless of course fraud, duress, coercion, withdrawn or vitiated)
100
______ will be invalid if 1) it comes from business type generally thought suitable for public regulation 2) the party seeking exculpation is engaged in performing service of great importance to public 3) the party holds himself out as willing to perform this service for any member of the public who seeks it
What is express A/R (written provisions)?
100
_____ is an affirmative defense to a breach of duty of care. Asks: Has P implicitly agreed to accept the risk of harm flowing from the D's ESTABLISHED duty of care? has been *absolved by contributory negligence* and should be abolished because it's effects are better dealt with by application of comparative fault.
What is secondary implied A/R ?
100
defines an actor's negligent conduct to the _____ if 1)conduct was substantial factor in bringing about harm 2)no rule of law relieving the actor from such liability because of the MANNER in which his negligence resulted in harm. Important considerations: number of other contributing factors and their extent in producing harm; and whether actors conduct created a force/ series of forces which are in continuous and active operation up to the time of harm or whether the situation created was harmless unless acted upon by some other forces which actor is not responsible for; and lapse of time
What is the restatements compilation of 'but for' and 'proximate cause' --- legal cause.
100
an independent intervening force is not stimulated by Ds negligence but a _____ intervening force is.
What is dependent?
200
What result if P assumes risks that are inherent in the activity, and what is this called more specifically?
What is bar to recovery? What is Primary implied?
200
_______ is a defense as a matter of procedure and not of substance, is a defense because D bears burden of asserting & proving it? (Courts will determine by asking what are the risks that a reasonable person would have assumed in activity)
What is Primary Implied?
200
If A negligently fails to keep life preserver on her ship and B would have been saved 'but for' the absence of a life preserver, on the other hand B could have been eaten by a shark, how do we come to terms with this alternate universe or counter-factual that seems unjust and problematic for 'but for' requirement?
What is P must show "by the preponderance of the evidence", A's conduct was "more likely than not" the cause of B's drowning to establish actual/ but for causation?
200
P had less than 50% chance of survival but D's conduct reduced that chance by 14% ; this is considered sufficient evidence to determine whether D was a _______ in causing the death.
What is Substantial factor?
200
why are courts less likely to characterize natural forces as superseding than they are of culpable human force(s)?
What is responsibility has shifted to another person?
300
If the defendant did not breach a duty not to engage recklessly in an activity?
What is NO DUTY? What is no tort?
300
some courts say negligence is enough to say not consented to; others say recklessness or intent = no consent to this risk?
What is Primary Implied ?
300
what test has been used where 'but for' analysis seems redundant or too difficult? This can relax or tighten 'but for' requirement. ex. difficulty of scientific proof in medical, environmental, toxic and product liability cases.
What is substantial factor test?
300
intervening actors, acts of god, & general and social economic policy goals.
What are the factors to consider in proximate cause?
300
automobile accidents and medical malpractice have been held not be as ______ , although the odds of occurrence are slight. D placed P in position to be exposed to such risks. But, amputation of the wrong limb would be a ____ because so highly improbable.
What is superseding cause?
400
This doctrine asks if the plaintiff reasonably encountered the known risk? (note this doctrine was absolved into contributory negligence and/or merges with comparative fault in some states, some states say it is now a partial defense)
What is Secondary implied reasonable vs. secondary implied unreasonable?
400
Assumption of the risk is analogous to what intentional tort defense?
What is consent?
400
when 3 gunman are shooting, one is shot, only one bullet lands in a one's eye, it is clear that only one person's negligence was the actual cause, cannot tell whose bullet landed there, but neither was innocent because both breached duty and both negligent, the only element at issue is who actually caused the injury, so court held both joint tortfeasors. What has happened to the proving of CAUSATION?
What is The burden of proof has shifted onto the joint tortfeasors? Now each D must exculpate himself or if not, both liable jointly. Deterrence, more fair to innocent plaintiff, both came with dirty hands, every harm has a right (reminds me of conspiracy of silence /RIL)
400
Result of harm and type of harm must be reasonably foreseeable but the precise manner or extent of harm need not be foreseeable. Also there was no superseding intervening force.
What is the foreseeability test requirements ?
400
foreseeability of type of injury suffered by P not required. Consistently courts held that you take your victim as you find him.
What is egg-shell plaintiff/ thin skull doctrine?
500
1. Whether the defense merges? 2. How should it be classified? 3. what are the possible consequences of the fight on the applicable terms; the fight is chronologically a) whether the waiver is valid? b) risks inherent in activity c)was defendant reckless? d) was P's A/R reasonable in preventing foreseeable harm to herself ?
What is ESSENTIAL QUESTION TO CONSIDER when dealing with assumption of the risk?
500
________ have been held to be licensees when entering property therefore only duty owed by property owner is duty to refrain from willful or affirmative acts which are injurious. What's this rule? Who does it encompass?
What is firefighters? What is the firefighter's rule? What are public safety officers? (like secondary implied rule; We have an established duty but they are paid to assume these risks)
500
when a small # of Ds engaged in substantially simultaneously culpable conduct imposing similar risks the principle of Summers v. Tice is adopted and requires that all such Ds be _______ as Ds. ( also when a statute is violated and that makes it hard to prove causation)
What is joined?
500
an intervening force that joins forces with the D to cause Ps injury that is considered to be a _____ because its occurrence appears extraordinary.
What is superseding intervening force?
500
Was there a natural and continuous sequence between cause and effect? Was one a substantial factor in producing the other? Was there a direct connection between them, w/o too many intervening causes? Is the effect of cause on result not too attenuated? Is the cause likely, in usual judgment of mankind, to produce the result? Or by the exercise of foresight, could result have been foreseen? Is the result too remote (time and space wise) ?
What is analysis of proximate cause?
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