Week 1 Torts: AOR

Review Torts I

“Plaintiff no-duty” rules: Allocating full responsibility to the defendant in the interests of policy or justice.

• Did the plaintiff know, or should they have known, of the plaintiff’s capacity?

• Did the actor create a risk to themselves or did the actor also create a risk to the defendant?

What are the exceptions to the contributory negligence bar?

Exceptions to the contributory negligence:

• Rescue Doctrine

• Last clear chance or discovered peril

• Defendant’s intentional or reckless conduct

• Plaintiff’s illegal activity

Assumption of Risk

** Defense to Negligence (DUTY)

General Rule: The plaintiff may be denied recovery if he assumed the risk of any damage caused by the defendant’s acts. This assumption may be expressed or implied. To have assumed risk, the plaintiff must have known of the risk and voluntarily assumed it.

Elements:

1. The plaintiff must know and appreciate the risk (its nature & severity).

2. The plaintiff must take on the risk in an entirely voluntary way.

Element: Knowledge of AOR

• There must be proof the plaintiff actually knew about the risk.

• There must be a real understanding and appreciation.

• Subjective standard.

• What did the person actually understand given the circumstances?

Element: Voluntariness of AOR

• Strict standard

• Genuine choice of the plaintiff, and if they were compelled by circumstances or had no other reasonable choice, it’s not voluntary.

Express Assumption of the Risk

• Contractual

• May be a waiver, release, or exculpatory agreement

• Idea the defendant should be “off the hook” based on plaintiff’s agreement and intent not to pursue a claim

Waiver v. Release v. Exculpatory Contract

• A waiver is only valid if it is “fair.”

• A release is only valid based on the contractual validity. Same applies for exculpatory contracts.

• Waiver: before-the-incident. Release: after-the-incident

Express Assumption of the Risk

General Rule: the risk may be assumed by express agreement. Exculpatory clauses in a contract, intended to insulate one of the parties from liability resulting in his own negligence, are scrutinized but usually enforceable.

• Does NOT apply for intentional torts. Only for wanton or reckless conduct.

• Case Example. Stelluti v. Casapenn Enters., LLC. Woman sues gym from spin-class incident. Emphasis placed on equity of parties at time of signing the agreement. The language of the waiver covered her accident. “An exculpatory clause may waive legal rihts so long as the agreement is clear.” Risk may be assumed by express agreement.

• Case Example. Tunkl v. Regents of Univ. of Cal. Man goes to hospital and signs release before receiving care. Because it was a public service and the plaintiff was dependent on the hospital, the release was invalid. “Public policy invalidates a release if the releasor could not have voluntarily assumed the risk.” Public policy factors.

• Case Example. Moore v. Hartley Motors. Man signed up for an ATV class, but court ruled that the “roughness” of the course was outside of the scope of risk covered in the exculpatory agreement. “An exculpatory clause is subject to ordinary contract rules of interpretation and enforcement. The assumption of risk is limited to that of the language of the contract.” Even if express AOR does not violate public policy, contract law applies to determine whether an injury is in the scope of the contractual language.

Factors from Tunk that determine whether an Express Assumption of Risk violates public policy

1. The business is typically subject to public regulation.

2. The service provided is of significant importance to the public, often a necessity.

3. The service is offered to the public without discrimination.

4. Due to the essential nature of the service, the provider has a significant advantage in bargaining power.

5. The contract is a standard adhesion contract presented by the party with superior bargaining power, offering no option to pay for protection against negligence.

6. The transaction places the customer or their property under the provider's control, creating a risk of the provider's carelessness. 

Primary Implied Assumption of the Risk

General Rule: A person is considered to have accepted the inherent risks associated with an activity, even if they are not explicitly stated. This assumes that the participant knows the risks generally involved in that activity. Argument that the defendant owed the plaintiff no duty because the plaintiff’s knowledge of the risk occurs by partaking in that activity.

• Case Example. Rountree v. Boise Baseball, LLC. Plaintiff went to a baseball game and lost eye from being hit with a baseball. “Primary implied AOR arises when the plaintiff impliedly assumes inherent risks in an activity.” Primary implied assumption of risk is generally not available under comparative fault. The court says the stadium owed a duty to the plaintiff.

• Case Example. Coomer v. Kansas City Royals. Man got hit in eye by a hot dog. Importance placed on whether this was an “inherent risk.” If yes, the defendant had no duty and AOR applied; if no, comparative fault applies. “Implied assumption of risk is a partial defense under a comparative fault instruction; however, assumption of risk may result in a determination that a defendant didn’t owe a duty to the plaintiff.”

  • How do you determine an inherent risk? Whether it may be removed without materially altering the activity.

Coomer v. Rountree

Coomer - Primary AOR means the defendant didn’t owe a duty, and secondary AOR means comparative fault.

Rountree - AOR is never an absolute defense and should always apply comparative fault.

Take-Away: There’s a jx. split on how AOR is applied.

Secondary Implied Assumption of Risk

General Rule. A plaintiff's voluntary exposure to a known risk may reduce the liability of a defendant, often applied in comparative fault situations. It acknowledges that a participant's acceptance of risk does not completely absolve the defendant of duty.

• Case Example. Simmons v. Porter. Mechanic burned by gasoline. “The doctrine of AOR - which barred recovery when an employee understood the risk and voluntarily incurred it anyways - is abolished.” Because AOR is similar to contributory negligence, they barred AOR.

(REVIEW) Comparative Fault

Allocates damages among parties based on their respective degrees of fault in contributing to an injury or loss. It reduces the plaintiff's recovery by their percentage of fault in the incident so long as their negligence is less than that of the other parties.

(REVIEW) Contributory Negligence

A defense that bars a plaintiff's recovery if they are found to be at fault for their own injuries, based on their own negligent actions contributing to the harm.

Take-Away from AOR v. Comparative Fault

• Traditionally, AOR was considered a complete bar on recovery. Some jx. still follow this traditional rule, some follow a mixed approach (as seen in Coomer with secondary/primary implied AOR application), and some have completely abandoned it.

• Traditional AOR is the same as an all-or-nothing contributory negligence rule.

Express AOR

• Written waiver; contractual consent.

• Complete bar if valid.

• Today: retained but limited by public policy.

Primary Implied AOR

• No duty for inherent risks

• Complete bar on plaintiff recovery

• Today: Shrinking, folded into whether there was a “duty.”

Secondary Implied AOR

• Plaintiff unreasonably encounters known risk

• Complete bar on plaintiff’s relief

• Today: treated as comparative fault

What are the elements of negligence?

Duty: An obligation to which the law will give recognition and effect to conform to a particular standard of care.

Breach of Duty: When a defendant, judged from the perspective of an RPP, failed to use reasonable care to avoid a reasonably foreseeable risk to the plaintiff.

Actual Cause: The defendant’s action is a cause in fact of the plaintiff’s injury

Proximate Cause: The scope of liability is a foreseeable result of the defendant’s breach.

Actual Harm: legally cognizable harm.

What are the intentional torts?

Battery: A harmful or offensive contact with the plaintiff’s person intentionally caused by the defendant.

Assault: An intentional act by the defendant that causes the plaintiff to reasonably apprehend imminent harmful or offensive contact.

Trespass: An intentional act by the defendant that causes a physical invasion of the plaintiff’s real property.

Conversion: An intentional act by the defendant that causes interference with the plaintiff’s personal property.

Trespass to Chattels: An intentional act by the defendant that interferes with the plaintiff’s right of possession in a chattel, result in damages.

False Imprisonment: An intentional act or omission by the defendant that confines or restrains the plaintiff to a bounded area.