SMGT 3861 Lecture Notes - Lecture 2: Contributory Negligence, Comparative Negligence
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Negligence Defense
• Assumption of risk
• Contributory negligence
• Comparative fault
Defense: Assumption of Risk
• To prove this defense, defendant must show the following:
o The risk must be inherent to the sport
• Drowning while swimming
o The participant must voluntarily consent to be exposed to the risks
o The participant must know, understand, and appreciate the inherent
risks of the activity
• Know the nature of the activity and the risks associated with the
activity
• Understand the activity in terms of their own condition and skill
• Appreciate the type of injuries that are associated with the activity
Sources of Assumption of Risk
• Express assumption of risk: oral or written language that outlines the risks of
the activity; found in participation agreements
o Waivers or release of liability
• Implied assumption of risk exists when the participant's conduct or actions
show that he voluntarily assumed the risks by taking part in the activity. With
inherent knowledge of the activity, the act of participation triggers the
assumption of risk
Defense: Contributory Negligence
• A person creates an unreasonable risk to his/herself
o Drunk bartender breaks bottle on the job and cuts finger
• An individual has a duty to act as a reasonable prudent person
• A person may be held entirely or partially responsible for the resulting injury
Defense: Comparative Negligence
• Apportions fault between the parties
• Types (depending on the state):
o Pure
o 50/51 percent rule
• All or nothing