a.Primary Assumption of Risk – Defendant has no duty or breach of duty and therefore is not negligent. Plaintiff assumes risk.
a.Secondary Assumption of Risk – An affirmative risk to an established duty, P. voluntary encounters risk. Affirmative Defense. (Same as contributory negligence) Lamson v. American Axe & Tool Co.-P. assumes risk that hatchets might fall upon him. Also, Murphey v. Steeplechase Amusement, “The Flopper.”
b.That’s really stupid- Not a defense but the judge might decide that the D. became the proximate cause of injury to P. (compare to Last Clear Chance Rule) (not allowed in comparative jurisdiction) Ex. drunk P. runs across six lanes of traffic and is injured, D. should not be negligent.
c.Expressed Assumption of Risk- P. knowingly and informed assumes the risk. Think of contract defenses such as voluntary and adhesion Moulas v. PBS Production – P. injured by puck at hockey game, ticket informed P. of risk
d.Firefighter’s Rule – Professionals should not recover for injuries resulting from negligence because they are compensated with a hazard pay and worker’s compensation benefits.
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