DOCSLIB.ORG

Distinctions Between Assumption of Risk and Contributory Negligence

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Distinctions Between Assumption of Risk and Contributory Negligence Washington and Lee Law Review Volume 23 | Issue 1 Article 7 Spring 3-1-1966 Distinctions Between Assumption of Risk and Contributory Negligence Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Torts Commons Recommended Citation Distinctions Between Assumption of Risk and Contributory Negligence, 23 Wash. & Lee L. Rev. 91 (1966), https://scholarlycommons.law.wlu.edu/wlulr/vol23/iss1/7 This Comment is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. 1966] CASE COMMENTS CASE COMMENTS DISTINCTIONS BETWEEN ASSUMPTION OF RISK AND CONTRIBUTORY NEGLIGENCE "Attempting to explain with logic the cases on assumption of risk is almost an impossible task"; the cases seem irreconcilable,1 and many courts use the terms assumption of risk and contributory negligence interchangeably.2 The doctrines of assumption of risk and contribu- tory negligence overlap when plaintiff has made an unreasonable choice to assume the risk; consequently many scholars and some courts believe a merger would be appropriate.3 The majority of courts have rejected this merger on the ground that assumption of risk and con- tributory negligence are distinguishable when a person reasonably and voluntarily chooses to encounter a known danger, thus assuming the risk, yet not being contributorily negligent. 4 This distinction that a plaintiff may voluntarily, yet reasonably, choose to encounter a known danger seems highly questionable when the basis for de- termining voluntary choice is examined. The problems involved in distinguishing between assumption of risk and contributory negligence are illustrated in Kelley v. Alexand- er.5 Plaintiff employed defendant to repair conditions on plaintiff's property, and, while performing these repairs, defendant left an un- protected hole in plaintiff's yard. Plaintiff, afraid that the children who frequently played in her yard might be hurt, was attempting to drag a limb over the hole when she slipped and fell into the hole. 'Greenhill, Assumption of Risk, 16 Baylor L. Rev. 111 (1964). 'Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90, 93 (1959); Petrone v. Margolis, 20 N.J. Super. i8o, 89 A.2d 476, 477 (1952); Mudrich v. Standard Oil Co., 153 Ohio St. 31, go N.E.2d 859, 862 (1950); Ferguson v. .ongsma, xo Utah 2d 179, 350 P.2d 404 (1960). 'Frelick v. Homeopathic Hosp. Ass'n, 51 Del. 568, 15o A.2d 17 (1959); Felgner v. Anderson, 375 Mich. 23, 133 N.V.2d 136, 153 (1965); McGrath v. American Cyanamid Co., 41 N.J. 272, 196 A.2d 238, 239-40 (1963). 'E.g., Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 503 (1914); Narramore v. Cleveland, C.C. 6 St. L. Ry., 96 Fed. 298, 304 (6th Cir. 1899); Porter vt. Louisville & Nashville R.R., 201 Ala. 469, 78 So. 375, 377 (1918); Wescott v. Chicago Great JV.R.R., 157 Minn. 325, 196 N.V. 272, 273 (1923); Lively v. Chicago, RI. & P. Ry. 115 Kan. 784, 225 Pac. 1o3, 105 (1924). Rice, The Automobile Guest and the Ra- tionale of Assumption of the Risk, 27 Minn. L. Rev. 323, 335 (1943), Comment, "Volenti Non Fit Injuria" is Actions of Negligence, 8 Harv. L. Rev. 457, 461 (1895). 1392 S.W.2d 790 (Tex. Civ. App. 1965). 92 WASHINGTON AND LEE LAW REVIEW [Vol. XXlII Plaintiff brought suit for her injuries and defendant pleaded contribu- tory negligence and assumption of the risk. The trial court granted defendant a summary judgment without elaborating on which defense the judgment was based. On appeal plaintiff contended that under the rescue doctrine she was justified in encountering the danger and thus did not assume the risk.6 The appellate court upheld the sum- mary judgment on the ground that plaintiff had assumed the risk. The rescue doctrine was held inapplicable here as justification for as- suming the risk because there was no evidence of "imniinent peril."7 The lone dissenter based his opinion on two grounds: first, under previous decisions of the court, the rescue doctrine may have been ap- plicable in Kelley.8 However, the dissenter did not elaborate on this point and may have realized that discussion of the rescue doctrine was irrelevant since the proper effect of the rescue doctrine is to provide a cause-in-fact connection and a duty relationship between a negli- gent defendant and a third party rescuer.9 In Kelley, defendant's lia- "Plaintiff relied on recent dicta that under assumption of the risk the plaintiff cannot recover if he deliberately and voluntarily encounters a known risk, however, "there may be some exceptions, such as where the plaintiff is motivated by humani- tarianism or rescue impulses." Halepeska v. Callihan Interests, Inc., 371 S.V.2d 368, 379 (Tex. 1963). 'The court may have overstepped its powers in deciding that, as a matter of law, there was no imminent peril. "The word 'imminent' carries the idea of close- ness in point of time, but does not necessarily imply the absence of any interval whatever. There is some latitude in its application according to the situation pre- sented." Smith v. City Ice & Delivery Co., 117 Kan. 485, 232 Pac. 6o3, 605 (1925). "In determining whether the peril, or appearance of peril, is imminent ... the circum- stances presented to the rescuer must be such that a reasonable prudent man, under the same or similar circumstances would determine that such peril existed. (The issue of whether the rescuer's determination conformed with the reasonably prudent man standard is a question for the jury, under proper instruction.)" French v. Chase, 48 Wash. 2d 825, 297 P.2d 235, 239 (1956). The fact that no one was in actual danger and that plaintiff's act might ultimately have proved unnecessary does not affect the situation. The facts must be viewed as they might reasonably have appeared to the plaintiff, and there is a "peculiar value" in submitting the issue to the jury. Cote v. Palmer, 127 Conn. 321, 6 A.2d 595, 599 (194o). 8The dissenter noted that Swift & Co. v. Baldwin, 299 SAV.2d 157 (Tex. Civ. App. 1957), cited by the Kelley majority, applied the rescue doctrine to a fact sit- uation similar to the one facing plaintiff in Kelley. In Swift & Co. plaintiff was in- jured while attempting to repair a loose sign in an area where school children frequently passed. The jury found there was imminent peril, although there were no children in the area at the time of plaintiff's act. '"Theeffect of the rescue doctrine when properly applied ... is to extend for the benefit of the rescuer the liability which the defendant in a given case may have toward the person whom it has placed in danger." Brady v. Chicago 6 Nw.R.R., 265 Wis. 618, 62 N.W.2d 415, 419 (1954). Cardozo stated in the land- mark case, Wagner v. InternationalRy., 232 N.Y. 176, 133 N.E. 437 (1921), "danger invites rescue" and the defendant cannot claim the rescuer was unforeseeable. 1966] CASE COMMENTS 93 bility to plaintiff is based on the employment contract relation be- tween them, and the rescue doctrine is raised by plaintiff to refute assumption of risk, not to provide the necessary cause-in-fact con- nection and duty relationship between defendant and plaintiff. The second ground of dissent was that, regardless of the applica- bility of the rescue doctrine in Kelley, plaintiff had not assumed the risk because "one who has a legal right, or is under a social or legal duty, to act as he has under conditions created by defendant's wrong does not act voluntarily."'1 The defendant's duty violation imposed a legal duty on the plaintiff;" thus the plaintiff's choice to encounter the danger was not the voluntary choice required for assumption of 2 risk.1 What constitutes a voluntary choice has caused most of the con- fusion between assumption of risk and contributory negligence. 3 To understand that confusion it is necessary to understand in what sense assumption of risk is being used.14 Assumption of risk has been ana- lyzed into at least three distinct fact situations. 15 (i) The plaintiff "Kelley v. Alexander, supra note 5, at 794. ""A possessor of land is subject to liability for bodily harm to children tres- passing thereon caused by an artificial condition upon the land if (a) the place where the condition exists is one upon which the possessor knows or has reason to kuow that [such] children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or seriously bodily harm to such children, and (c) the children because of their youth do not discover the condi- tion or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it...." Restatement (Second), Torts § 339 (1965)- "Assumption of risk is applied when the plaintiff has made a voluntary choice to encounter a known and appreciated danger. White v. McVicker, 216 Iowa 9o, 246 N.W. 385 (1933); Robert E. McKee, Gen. Contractor,Inc. v. Patterson, 153 Tex. 517, 271 S.W.Ad 391 (1954). Halepeska v. Callihan Interest, Inc., supra note 6. After knowledge and appreciation have been established, "there yet remains the issue as to whether the invitee voluntarily exposed himself to the danger known and ap- preciated by him." Sinclair Ref.
Load more

Recommended publications
  • Contributory Intent As a Defence Limiting Or Excluding Delictual Liability
    CONTRIBUTORY INTENT AS A DEFENCE LIMITING OR EXCLUDING DELICTUAL LIABILITY by RAHEEL AHMED submitted in accordance with the requirements for the degree of MASTER OF LAWS at the UNIVERSITY OF SOUTH AFRICA SUPERVISOR: PROF J NEETHLING NOVEMBER 2011 PREFACE This study would not have been possible without the knowledge, patience and guidance of my supervisor, Prof Johann Neethling. I am truly indebted to him and would like to express my sincerest gratitude. i SUMMARY “Contributory intent” refers to the situation where, besides the defendant being at fault and causing harm to the plaintiff, the plaintiff also intentionally causes harm to him- or herself. “Contributory intent” can have the effect of either excluding the defendant’s liability (on the ground that the plaintiff's voluntary assumption of risk or intent completely cancels the defendant's negligence and therefore liability), or limiting the defendant’s liability (where both parties intentionally cause the plaintiff's loss thereby resulting in the reduction of the defendant’s liability). Under our law the "contributory intent" of the plaintiff, can either serve as a complete defence in terms of common law or it can serve to limit the defendant's liability in terms of the Apportionment of Damages Act 34 of 1956. The “Apportionment of Loss Bill 2003” which has been prepared to replace the current Act provides for the applicability of “contributory intent” as a defence limiting liability, but it is yet to be promulgated. ii KEY TERMS Apportionment of Damages Act 34 of 1956 Apportionment
    [Show full text]
  • LAW of TORTS SUBJECT CODE: BAL 106 Name of Faculty: Dr
    FACULTY OF JURIDICAL SCIENCES COURSE: B.A.LL.B. I st Semester SUBJECT: LAW OF TORTS SUBJECT CODE: BAL 106 Name of Faculty: Dr. Aijaj Ahmed Raj LECTURE 27 TOPIC: JUSTIFICATION OF TORTS- ACT OF STATE, STATUTORY AUTHORITY, ACT OF GOD, NECESSITY, VOLENTI NON-FIT INJURIA, PRIVATE DEFENCE AND ACTS CAUSING SLIGHT HARM Volenti non fit injuria- In case, a plaintiff voluntarily suffers some harm, he has no remedy for that under the law of tort and he is not allowed to complain about the same. The reason behind this defence is that no one can enforce a right that he has voluntarily abandoned or waived. Consent to suffer harm can be express or implied. Some examples of the defence are: • When you yourself call somebody to your house you cannot sue your guests for trespass; • If you have agreed to a surgical operation then you cannot sue the surgeon for it; and • If you agree to the publication of something you were aware of, then you cannot sue him for defamation. • A player in the games is deemed to be ready to suffer any harm in the course of the game. • A spectator in the game of cricket will not be allowed to claim compensation for any damages suffered. For the defence to be available the act should not go beyond the limit of what has been consented. In Hall v. Brooklands Auto Racing Club, the plaintiff was a spectator of a car racing event and the track on which the race was going on belonged to the defendant.
    [Show full text]
  • Negligence and the Rule of Damages in Actions Therefor
    THE AMERICAN LAW REGISTER. MAY 1875. NEGLIGENCE AND THE RULE OF DAMAGES IN ACTIONS THEREFOR. ACTIONABLE negligence is an unintentional violation of the duty which enjoins care and caution in what we do, from which a. legal injury proximately results: Shearman & Redfield on Negligence, § 2, p. 1, note. It is a violation of the duty enjoining care and caution. Unless such duty exists between particular persons, there can be no negli- gence in the legal sense of the term: Tonawanda B. B. Co. v. Munger, 5 Den. 255, 267; Philadelphia & Beading B. B. Co. v. sspearen, 47 Penn. St. 300, 302. Leaving a pit uncovered, may be negligence, if an animal having a right to be on the premises falls into it and be injured, but not if the animal was not there lawfully: Sh. & Redf., § 454. This duty may arise either from contract, or it may be imposed by law without any express contract between the parties: Sh. & Redf., § 4. What then is this duty? It may be described in very general terms only, as it necessarily varies according to circumstances. "Sic utere tuo ut alienum non icedas" is the general principle (Fishv. Dodge, 4 Den. 311, 316; Cleveland & Columbus B. B. Co. v. .Tfeary, 3 Ohio St. 201; Morgan v. Cox, 22 Mo. 373, 375); in explaining which, the law proceeds on the presumption, that men ordinarily do their duty, and hence, it is the duty of every man to conduct himself and manage his property with ordinary care and diligence: Shrews- VOL. XXIII.-34 (265) NEGLIGENCE AND THE RULE OF DAMAGES bury v.
    [Show full text]
  • The Place of Assumption of Risk in the Law of Negligence, 22 La
    Louisiana Law Review Volume 22 | Number 1 Symposium: Assumption of Risk Symposium: Insurance Law December 1961 The lP ace of Assumption of Risk in the Law of Negligence John W. Wade Repository Citation John W. Wade, The Place of Assumption of Risk in the Law of Negligence, 22 La. L. Rev. (1961) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol22/iss1/5 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. The Place of Assumption of Risk in the Law of Negligence John W. Wade* The "doctrine" of assumption of risk is a controversial one, and there is considerable disagreement as to the part which it should play in a negligence case.' On the one hand it has a be- guiling simplicity about it, offering the opportunity of easily disposing of certain cases on a single issue without the need of giving consideration to other, more difficult, issues. On the other hand it overlaps and duplicates certain other doctrines, and its simplicity proves to be misleading because of its failure to point out the policy problems which may be more adequately presented by the other doctrines. Courts disagree as to the scope of the doctrine, some of them confining it to the situation where there is a contractual relation between the parties,2 and others expanding it to any situation in which an action might be brought for negligence.3 Text- writers and commentators commonly criticize the wide applica- tion of the doctrine, and not infrequently suggest that the doc- trine is entirely tautological.
    [Show full text]
  • Assignment on Volenti Non Fit Injuria
    Assignment On Volenti Non Fit Injuria Stanford tare his feat forejudging serenely or prompt after Abraham requite and examined fancifully, sombrelypassable andwhen peculiar. trunnioned Onside Nikolai Bentley absorbs invigilates regionally thriftily. and Dudleyeverywhere. usually pip whithersoever or corrade Download Assignment On Volenti Non Fit Injuria pdf. Download Assignment On Volenti Non Fit Injuria negligencedoc. Face due context, to the through purported a number assignment of contract on non injuriaAnalyze can the be complaint applied it alleges is that plaintiffassignment gives non his fitown oninjuria. volenti Adding non fitaffirmative injuria is defenceauthorized as undervalid assignment the context, non thereby fit injuria causing which damage any fraud. to support Roof tiles any andlaw it discussreflect the two normal of action inconveniences against the act of crime.done with Aggressive the danger revenue in private recognition, rights. Serious in volenti injury non or fit carrying injuria will on involenti the plaintiff non fit andinjuria cannot which be was liable negligent. as it is aScenario subterfuge and to a thevalid match assignment and this volenti information. fit injuria Encroached applicable purportedupon the purported assignment assignment on volenti on non volenti fit injuria non whichfit injuria is empty. which hePopular may not.among Travelled the purported through the nonassignment injuria because on non fithe injuria has been that hegenerally should speaking,be proved indore that the institute safety ofof suchdefendants. cases, thatCrowd pleading and volenti the voidclaimant and maythe law also of have volenti a road.when Torrential this situation. rainfall Continue was the to purported defendant assignment alleges assignment on non injuria on fit willinjuria be thisthat.
    [Show full text]
  • Torts William E
    Louisiana Law Review Volume 32 | Number 2 The Work of the Louisiana Appellate Courts for the 1970-1971 Term: A Symposium February 1972 Private Law: Torts William E. Crawford Louisiana State University Law Center Repository Citation William E. Crawford, Private Law: Torts, 32 La. L. Rev. (1972) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol32/iss2/5 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. 1972] WORK OF APPELLATE COURTS-1970-1971 213 TORTS William E. Crawford* Contributory Negligence The Fourth Circuit Court of Appeal in Illinois Central Railroad Co. v. Cullen1 refused to hold that the plaintiff rail-, road's leaving a switch unlocked, in violation of its own regula- tion, could amount to contributory negligence in its action for damages against a boy who had thrown the switch open and caused a derailment resulting in the damages suffered by the railroad. The facts show that the defendant came upon the unlocked switch, and after throwing it open, realized that a train was coming and unsuccessfully attempted to return it to its original position. The switch remained open just enough to cause the derailment. The court found that the railroad's own regulation required its personnel to keep switches locked to prevent unauthorized persons from tampering with the switches. and to keep vibrations from opening them. The regulation was admittedly a safety regulation to prevent damage to the plain-.
    [Show full text]
  • Assumed Risk Joe Greenhill
    SMU Law Review Volume 20 | Issue 1 Article 2 1966 Assumed Risk Joe Greenhill Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Joe Greenhill, Assumed Risk, 20 Sw L.J. 1 (1966) https://scholar.smu.edu/smulr/vol20/iss1/2 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. ASSUMED RISK* by Joe Greenhill** I. WHAT IS IT? T HE doctrine of assumed risk, as it has come to be understood in most jurisdictions, embodies two separate concepts.' First, assumed risk is thought of as negativing the duty owed by the defend- ant to the plaintiff, particularly the duty of an owner-occupier to persons coming upon his premises. In Texas this concept is referred to as no duty. At early common law, a landowner owed very little duty to persons coming on his land. He was required to warn of hidden dangers so that the invitee could stay off the premises or take precautions to protect himself. As will be hereinafter discussed, when the landowner had taken this step, he had discharged his duty, and the invitee proceeded at his own risk. Being under no fur- ther duty to the plaintiff, the landowner was not liable to the plain- tiff for injuries which occurred. Used in this sense, assumption of risk is but the negative of duty. When the landowner owed the invitee no duty, or had discharged whatever duty he had, the plain- tiff could not recover even though he was found to have acted reasonably in encountering the risk.' Sometimes the no duty concept is referred to as a defense.
    [Show full text]
  • Chapter 668 Liability in Tort — Comparative Fault
    1 LIABILITY IN TORT — COMPARATIVE FAULT, §668.3 CHAPTER 668 LIABILITY IN TORT — COMPARATIVE FAULT Referred to in §321J.4B, 625.21 668.1 Fault defined. 668.11 Disclosure of expert witnesses 668.2 Party defined. in liability cases involving 668.3 Comparative fault — effect — licensed professionals. payment method. 668.12 Liability for products — defenses. 668.4 Joint and several liability. 668.13 Interest on judgments. Evidence of previous payment or 668.5 Right of contribution. 668.14 future right of payment. 668.6 Enforcement of contribution. 668.14A Recoverable damages for medical 668.7 Effect of release. expenses. 668.8 Tolling of statute. 668.15 Damages resulting from sexual 668.9 Insurance practice. abuse — evidence. 668.10 Governmental exemptions. 668.16 Applicability of this chapter. 668.1 Fault defined. 1. As used in this chapter, “fault” means one or more acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability. The term also includes breach of warranty, unreasonable assumption of risk not constituting an enforceable express consent, misuse of a product for which the defendant otherwise would be liable, and unreasonable failure to avoid an injury or to mitigate damages. 2. The legal requirements of cause in fact and proximate cause apply both to fault as the basis for liability and to contributory fault. 84 Acts, ch 1293, §1 See also §619.17 668.2 Party defined. As used in this chapter, unless otherwise required, “party” means any of the following: 1.
    [Show full text]
  • 5. DEFENCES VOLENTI NON FIT INJURIA the Voluntary Assumption
    5. DEFENCES VOLENTI NON FIT INJURIA The voluntary assumption of risk is a complete defence to the tort of negligence. It applies where C knew of the risk and freely accepted it; although the courts tend to prefer the flexibility of CN. Basic requirements: 1. C knew of the risk: this must be actual knowledge, imposing a subjective test on C o Dann v Hamilton [1939]: C chose to travel in D’s car, knowing D was drunk. D crashed, injuring C. Volenti requires “complete knowledge of the danger” and proof of consent to it. Although knowledge of the danger can be evidence of consent to it. D must have been ‘obviously and extremely drunk’ for volenti to apply. (Although note, now, the RTA 1988). o Morris v Murray [1991]: C and D were drinking together then went in a flight in a small aeroplane, flown by D. D crashed and injured C. Fox LJ: D could rely on volenti. Knowledge can be inferred from the facts. Danger here was so great, C must have known D was incapable of discharging his duty of care, so in embarking on the flight, C “implicitly waived his rights in the event of injury.” For voleniti “the wild irresponsibility of the venture is such that the law should not intervene to award damages and should leave the loss to lie where it falls.” 2. C voluntarily agreed to incur the risk: o Narrow approach in: Nettleship v Weston [1971]: C supervised D in learning to drive. D crashed and C was injured. D could not rely on volenti.
    [Show full text]
  • Assumption of Risk, Waiver, and Release of Liability
    Rev. 4/30/2020 ASSUMPTION OF RISK, WAIVER, AND RELEASE OF LIABILITY READ THIS ASSUMPTION OF RISK, WAIVER AND RELEASE OF LIABILITY BEFORE YOU SIGN IT. IT AFFECTS YOUR LEGAL RIGHTS. I, ____________________________ [print student’s name], agree to act in a responsible and safe manner during my participation in the ____________________________ “the Program.” I acknowledge and agree that I must comply with the rules and requirements of the Program, any other applicable University policy, and all applicable local, state, and federal law. I agree to follow the instructions issued by Program directors and staff. I will also abide by signage posted on the University’s campus. I understand that I may be dismissed from the Program for misconduct. I understand that my participation in the Program is voluntary, and I may be exposed to risks and hazards that could result in serious illness, bodily injury, disability, or death. These risks and hazards may include, but are not limited to: (i) vehicular, pedestrian, or other accidents, such as drowning, (ii) storms, floods, fires, earthquakes, and other natural disasters, (iii) infectious diseases or viruses, including but not limited to COVID-19, (iv) limited or inadequate medical care, (v) inadequate design, safety, and maintenance of buildings and public places, (vi) terrorist activities, and (vii) allergic reactions to food, insects, or other allergens. I also understand that during the Program I may use or access educational computer applications, web-based services, or online content that could expose me to certain cyber risks, including but not limited to, cyber predators, data mining, phishing, viruses, malware, data breaches, cyberbullying, exploitation, victimization, cyber stalking, online grooming, reputational loss, brand hijacking, and image replication.
    [Show full text]
  • Chapter 7 Tort Law and Product Liability Chapter Outline 1
    Chapter 7 Tort Law and Product Liability Chapter Outline 1. Introduction 2. The Basis of Tort Law 3. Intentional Torts 4. Negligence 5. Cyber Torts: Defamation Online 6. Strict Liability 7. Product Liability 8. Defenses to Product Liability 9. Tort Law and the Paralegal Chapter Objectives After completing this chapter, you will know: • What a tort is, the purpose of tort law, and the three basic categories of torts. • The four elements of negligence. • What is meant by strict liability and under what circumstances strict liability is applied. • The meaning of strict product liability and the underlying policy for imposing strict product liability. • What defenses can be raised in product liability actions. Chapter 7 Tort Law and Product Liability Chapter Outline I. INTRODUCTION A. Torts are wrongful actions. B. The word tort is French for “wrong.” II. THE BASIS OF TORT LAW A. Two notions serve as the basis of all torts. i. Wrongs ii. Compensation B. In a tort action, one person or group brings a personal-injury suit against another person or group to obtain compensation or other relief for the harm suffered. C. Tort suits involve “private” wrongs, distinguishable from criminal actions that involve “public” wrongs. D. The purpose of tort law is to provide remedies for the invasion of various interests. E. There are three broad classifications of torts. i. Intentional Torts ii. Negligence iii. Strict Liability F. The classification of a particular tort depends largely on how the tort occurs (intentionally or unintentionally) and the surrounding circumstances. Intentional Intentions An intentional tort requires only that the tortfeasor, the actor/wrongdoer, intended, or knew with substantial certainty, that certain consequences would result from the action.
    [Show full text]
  • Assumption of Risk After Comparative Negligence: Integrating Contract Theory Into Tort Doctrine John L
    University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 1991 Assumption of Risk After Comparative Negligence: Integrating Contract Theory into Tort Doctrine John L. Diamond UC Hastings College of the Law, [email protected] Follow this and additional works at: http://repository.uchastings.edu/faculty_scholarship Part of the Torts Commons Recommended Citation John L. Diamond, Assumption of Risk After Comparative Negligence: Integrating Contract Theory into Tort Doctrine, 52 Ohio St. L.J. 717 (1991). Available at: http://repository.uchastings.edu/faculty_scholarship/103 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Faculty Publications UC Hastings College of the Law Library Diamond John Author: John L. Diamond Source: Ohio State Law Journal Citation: 52 Ohio St. L.J. 717 (1991). Title: Assumption of Risk After Comparative Negligence: Integrating Contract Theory into Tort Doctrine Originally published in OHIO STATE LAW JOURNAL. This article is reprinted with permission from OHIO STATE LAW JOURNAL and Ohio State University Michael E. Moritz College of Law. Assumption of Risk After Comparative Negligence: Integrating Contract Theory into Tort Doctrine JOHN L. DIAMOND* I. INTRODUCTION The confusion generated by the doctrine of assumption of risk' is illustrated by the contradicting responses to the following hypothetical: - 0 1991 John L. Diamond. Professor of Law, University of California, Hastings College of the Law. B.A., Yale College; J.D., Columbia Law School; Dip.
    [Show full text]