Negligence

Negligence is the failure to exercise reasonable care to avoid injury (Abraham, 46). In most
cases, one is under a duty not to cause injury to others, so demonstrating an injury caused by
negligence is usually the same as showing the presence of a duty and showing that the duty was
breached (Abraham, 223). In some cases (e.g. breaking a statute, Martin v. Herzog) negligence
may be shown without resorting to duty/breach language. In other cases (e.g. to warn and rescue,
Harper v. Herman), it is more natural to analyze negligence in terms of duty and breach. This
section deals with negligence in general.

• due care: In general, people have a duty to exercise due care when they act to create a
risk (Brown v. Kendall). It may be convenient to analyze a duty of due care as arising if
the burden to prevent an injury is less than the probability the injury will occur multiplied
by the extent (liability) of the injury should it occur (B<PL) (United States v. Carroll
Towing Co). Some jurisdictions (e.g. New York) have held that "reasonable care under
all of the circumstances of the particular case" is flexible enough to appply to diverse
circumstances, even to replace special rules for common carriers (Bethel v. New York
City Transit Authority).
• foreseeable: It usually must be foreseeable that the accident would occur by the
defendant's actions for a breach of duty to occur. (Adams v. Bullock)
• negligence a jury issue: In most cases the question of what constitutes due care should
be left to the jury, as are all questions of fact (Andrews v. United Airlines, Inc.).
Sometimes the standard of care is so familiar to the court the judge can decide the issue
(Baltimore & Ohio Railroad Co. v. Goodman). This should be limited to an exception,
however, as the specific facts of individual cases sometimes call for different outcomes,
and the jury can decide this best (Pokora v. Wabash Railway Co.).
• custom: Breaking a custom (such as a common industry practice) may be used to prove
negligence, but it is not dispositive (Trimarco v. Klein) except in malpractice cases.
Conversely, conforming to a custom does not prove the absence of negligence (Leonard
v. Watsonville Community Hospital).
• statute: Disobeying a statute is usually dispositive of negligence ("is negligence itself,"
Martin v. Herzog), even if disobedience of the statute is common (Robinson v. District of
Columbia), but only if the purpose of the statute is to prevent the type of injury in
question (Platt v. City of Cahoes). It is not negligent to disobey a statute if the
disobedience is to further the purpose of the statute (e.g. safety, Tedla v. Ellman).
• res ipsa loquitur: "The thing speaks for itself." Some injuries are prima facie evidence of
negligence, even with no direct proof of an action by the defendant (Byrne v. Boadle).
There are three common elements of res ipsa loquitur (Ybarra v. Spangard, quoting
Prosser, Torts):
1. The accident usually doesn't occur unless there is negligence.
2. The accident was caused by an "agent or instrumentality" in the exclusive
control of the defendant.
3. The accident was not due to any "voluntary action or contribution" from the
plaintiff.
 Note that res ipsa loquitur does not actually prove the defendant was negligent—it
simply defeats the defendant's motion for a directed verdict for lack of evidence,
allowing the case to go to the jury while shifting the burden of proof to the defendant.
The jury could then still decide the defendant was not negligent, although if the defendant
produces no new evidence the jury is likely to find for the plaintiff. (Abraham, 93). Res
ipsa loquitur does not preclude expert testimony to bring evidence concerning the
presence of negligence (Connors v. University Associates in Obstetrics & Gynecology,
Inc.).

This doctrine is most useful when there are several plaintiffs and it is likely that at least
one of them is negligent, but it is unknown which one (Ybarra v. Spangard). By in
essence imposing strict liability on the defendants, it "smokes out" evidence by shifting
the burden of proof and forcing the defendants to produce evidence, to "rat out" the
negligent party. Ironically, these sort of cases are those in which the accident does not
"speak for itself" as to the guilty party (Abraham, 95).

• professionals

o malpractice: Professionals (e.g. physicians, attorneys, and accountants) are held

to a different level of care than ordinary people because of the complex, technical
subject matter juries may not be familiar with. Malpractice cases therefore
usually involve expert testimony to educate the jury to a "different, higher level
of common knowledge" (Connors v. University Associates in Obstetrics &
Gynecology, Inc.). A professonial has a duty to "use the degree of care and skill
that is expected of a reasonably competent practitioner in the same class to
which he or she belongs, acting in the same or similar circumstances" (Sheeley v.
Memorial Hospital). In other words, disobeying custom is dispositive for
negligence for professionals (Abraham, 70), unlike for ordinary people. Because
the world is effectively getting smaller, jurisdictions are increasingly abandoning
the "strict locality" rule that held physicians to standards of the local
community, because that rule sometimes resulted in a "conspiracy of silence" in
which local physicians wouldn't testify against one another (Sheeley v. Memorial
Hospital).
o informed consent:

Even in the absence of malpractice, a physician can still be liable for treatments
causing injury if there was no informed consent from the patient. The doctor has
a duty to inform the patient of all medically reasonable alternatives and their
risks, even for non-invasive procedures (Matthies v. Mastromonaco).
Withholding information interferes with the patient's right of self-determination.
There are two standards for determining informed consent (Abraham, 74-75):

reasonable-patient standard
Physician must disclose information the a reasonable patient in the patient's condition
would wish to know, which includes special concerns such as the importance of pianist's
fingers. Most courts use this standard.
 reasonable-physician standard
Informed consent is only actionable as malpractice—whether the known standards
dictated the physician should have informed the patient.

Duty
In special cases there is a real question of whether there is a duty in the first place not to be
negligent. In these instances, if no duty is shown it is irrelevant whether the defendant was
negligent—there is no tort.

warn or rescue second parties

In general, there is no duty to warn or rescue another person, except in special cases
(Harper v. Herman, Abraham, 224)

• special relationships: (Harper v. Herman) (Restatement (Second) of

Torts § 314A)
o common carriers
o innkeepers
o possessors of land who hold it open to the public
o persons who have custody of another person under circumstances
in which that other person is deprived of normal opportunities of self-
protection
• statutes: Similar to negligence from an injury arising from breaking a
statute, one can be negligent for failing to warn or rescue as provided for by a
statute if the following conditions are met (Uhr v. East Greenbush Central School
District):

1. the plaintiff is part of the class the statute meant to benefit

2. a private right of action would promote the legislative purpose
3. a private right of action would be consistent with the legislative scheme

attempting to aid
One is under a duty not to be negligent while rescuing, should one decide to attempt an
a rescue (Abraham, 225).
making a situation worse
One is always under a duty to avoid affirmative actions that make a situation worse
(Farwell v. Keaton).
orbit of duty
Courts have sometimes established an "orbit of duty" to cover foreseeable parties
while containing liability to manageable levels, determined by public policy (Strauss v.
Belle Realty Co.).
protect or warn third parties

There is normally no duty to control the actions of a second party and no duty to
protect a third party.
 • special relationship: A duty arises from a special relationship either
(Tarasoff v. Regents of the Univ. of California) (Restatement (Second) of Torts §
315):
o between the defendant and the second party (the party needing
controlled), or
o between the defendant and the third party (the party being injurred)

Special relationships include:

o parent-child
o master-servant (e.g. employer-employee)
o land possessor-user
o someone who takes someone else into custody
o chattel possessor-user
o doctor-patient (as in Tarasoff v. Regents of the Univ. of California)
• "Tarasoff considerations": There are several "Tarasoff
considerations" that help determine if a duty should be imposed Tarasoff v.
Regents of the Univ. of California:

1. foreseeability of harm to the plaintiff ("most important")

2. the degree of certainty that the plaintiff suffered injury
3. the closeness of the connection between the defendant's conduct and the
injury suffered
4. the moral blame attached to the defendant's conduct
5. the policy of preventing future harm
6. the extent of the burden to the defendant for imposing a duty
7. the consequences to the community of imposing a duty
8. the availability, cost and prevalence of insurance for the risk involved
• misleading information: Even in the absence of a special relationship,
there is a duty not to provide "an affirmative misrepresentation presenting a
foreseeable and substantial risk of physical harm to a third person" (Randi W.
v. Muroc Joint Unified School District
• entrustment: One has a duty not to supply someone something, having
knowledge that because of youth, inexperience, or otherwise the other is likely
to use it in a manner involving unreasonable risk of harm to self or others
(Vince v. Wilson, Restatement (Second) of Torts § 390). However, social hosts
have no duty to a third-party victim of a minors after the host supplied the
minor alcohol—they are only liable to the minor (Reynolds v. Hicks.
• landowners and occupiers: There are traditionally three broad types of
plaintiffs regarding property liability (Carter v. Kinney):

trespassers
There is no duty of care.
licensees
Those invited with no material benefit to the defendant (including social guests). The
defendant only has a duty to warn or make safe against known dangers.
 invitees
Those invited with material benefit to the defendant or invitation to the general public.
The defendant has duty to protect against known dangers and those which would be
evident upon inspection.

Some jurisdictions (including California have discarded the three divisions of

landowners in favor of a general duty of due care (Rowland v. Christian), using
several factors to determine liability, including (Abraham, 229) (compare
"Tarasoff considerations"):

o foreseeability of harm (compare Heins v. Webster County)

o closeness of connection between the defendant's conduct and the
plaintiff's harm
o moral blame attached to the plaintiff's conduct
 store owners and customers Several methods have been used to
determine if storeowners have a duty to protect customers from crimes by third
parties (Posecai v. Wal-Mart Stores, Inc.):

specific harm rule

(outdated and too restrictive) A landowner has no duty to patrons to protect against a
violent act unless the act is known and imminent.
prior similar incidents test
Foreseeability is established by evidence of similar crimes on or near the premises.
totality of circumstances test
(most common) Takes other factors into account, such as the nature, condition, and
location of the land; tends to place a greater duty on the landowner, and has been
criticized as being too broad.
balancing test
(California and Tennessee) Addresses interests of both business proprietors and
customers by balancing foreseeability of harm against the burden of imposing a duty
to protectd against the criminal actions of a third party.
parents and children
Although the common law did not allow children to sue their parents, recent decisions
have done away with parental immunity in favor of a "reasonable parent" standard
of care (Broadbent v. Broadbent). Note that the common presence of insurance was a
factor in such a decision.
emotional harm

1. Originally there was no duty to protect against "pure" emotional harm if

there were no physical injuries (with exceptions for mishandling corpses and
inaccurately informing of a death) (Abraham, 231).
2. impact rule: Then courts allowed pure emotional harm if it stemmed
from a physical impact (e.g. R.J. v. Humana of Florida, Inc.).
3. zone of danger rule: Courts later became even more lenient, permitting
suits if the plaintiff was in a "zone" in which injury could occur and the plaintiff
feared for his/her safety (Falzone v. Busch) The danger feared must be
 immediate, traumatic harm, even with an impact—not a fear of some future
result (e.g. cancer from asbestos, Metro-North Commuter Railroad Company v.
Buckley).
4. bystanders (the "Dillon Rule"): After Dillon v. Legg, some jurisdictions
have held that one has a duty to prevent mental and emotional harm to third
parties if there are proximity, visibility, and relationship (Abraham, 233); in
other words (Portee v. Jaffee):
1. there was death or serious injury caused by defendant's
negligence
2. there was a marital or intimate familial relationship between the
plaintiff and the victim
3. the plaintiff observed the injury at the scene of the accident
4. there was resulting severe emotional distress

In one famous example, a mother-child relationship was not enough to create a

duty towards the mother regarding emotional harm when her child was
kidnapped, because there was no injury to the child (Johnson v. Jamaica
Hospital).

5. Some courts have even granted liability for emotional harm that is
foreseeable in that it could reasonably be expected to befall the ordinarily
sensitive person, such as the family of the recently deceased (Gammon v.
Osteopathic Hospital of Maine, Inc.).

economic harm
The courts have traditionally denied liability for "pure" economic harm, in which the
economic harm as not connected with any physical harm to the plaintiff. This is because
pure economic loss would have an unpredictable scope of liability (Abraham, 235).
Courts have recently created exceptions based upon special relationships and use of a
public resource. (These exceptions are really just instances of broader characterizations:
foreseeability; direct and proximate case; and fair limitation of liability.) One has a duty
to "take reasonable measures to avoid the risk of causing economic damages ... to
particular plaintiffs or plaintiffs comprising an identifiable class with respect to whom
defendant knows or has reason to know are likely to suffer such damages from its
conduct" (People Express Airlines, Inc. v. Consolidated Rail Corp.).
professionals and non-clients for pecuniary loss
There are three tests for determining if an accountant, for example, has a duty to an
unknown non-client to prevent pecuniary loss (Nycal Corporation v. KPMG Peat
Marwick LLP.):

1. foreseeability: Accountant has a duty to every reasonably foreseeable

users of information. (Massachussets rejects this as too expansive.)
2. near-privity: (New York) Accountant only liable to those with whom the
accountant is in privity or sufficiently approaching privity.
3. Restatement (Second) of Torts § 552: (favored by Massachusetts)
Professionals usually do not have a duty to non-clients unless the plaintiff is a
 member of a smaller class to which the defendant had a duty and to which
defendant seeks to supply the information, and defendant knows the class
intends to use the information (Restatement (Second) of Torts § 552). The
defendant may be liable if he/she is aware of the consequences of the negligent
act to the class of injured parties (Biakanja v. Irving, Duncan v. Afton, Inc.).

Causation/Liability
A defendant is not liable in tort solely for being negligent. The negligent action must cause
injury to another. Awarding damages only to the party that causes an injury creates a way for
individuals to predict when courts will award damages, creating a deterrant for injury-causing
behavior (Abraham, 105). The importance of causation to torts, then, is not just about whether
the defendant actually caused the plaintiff's injury, but also for determining the defendant's
liability. Although liability usually derives from causation, in some cases (Hymowitz v. Eli Lilly
& Co.) the defendant is held liable whether or not the plaintiff's actions actually caused injury to
the plaintiff in question.

Every event has an infinite number of causes—you wouldn't have hit me if you hadn't been born,
you wouldn't have been born if one of your parents hadn't boarded the wrong the train, etc. At
some point, the causes aren't "close enough" to the injury in question to have an influence on
liability—the causes are not proximate (Palsgraf v. Long Island Railroad Co.). For liability in
torts, the defendant's negligence must therefore must be both a cause-in-fact and a proximate
cause.

• cause-in-fact: Whether the defendant's neligence actually caused the injury. This usually
involves considering what would or would not have happened had the defendant's action
not occurred. For this reason, determining causation is usually a jury question (Stubbs v.
City of Rochester), (Wilson v. Circus Circus Hotels, Inc., (Abraham, 100).

Technical matters (such as medicine) often requires the use of expert testimony to help
the jury decide causation. In determining which expert testimony to allow, the judge
might examine such factors such as whether a theory has been tested using the scientific
method, whether there has been peer review and publication, whether there is a rate of
error, and whether the theory is generally accepted (Zuchowicz v. United States). In
making that determination, the judge walks a fine line between evaluating the reliability
of expert testimony while still allowing the jury to evaluate the persuasiveness of that
testimony (Abraham, 102-103).

o "but-for" (sine qua non): A defendant's action is a cause-in-fact of an injury if,

"but-for" the defendant's action, the injury would not have occurred.
o "substantial factor": The defendant's action made a major contribution to the
injury, such as in the popular example of two fires reaching a house at the same
time.
o acting in concert: Two defendants acting together by agreement in some
parallel effort can both be liable (contrast Hymowitz v. Eli Lilly & Co.).
 o alternative liability: In some cases, for an injury caused by one of two
defendants, both defendants are considered liable if it is equally probably that
each caused the injury but it is uknown which (Summers v. Tice. This really only
works for two defendants, each with a 50-50 probability of causing the injury,
because if there are more defendants the probability of each being a "but-for"
cause drops considerably (Abraham, 110). (Contrast Hymowitz v. Eli Lilly & Co..)
o market share liability: In cases where manufacturers created identical versions
of a product, records are scarce, and there is no way to ascertain which
manufacturer caused which damages, all manufacturers may be apportioned
liability based upon national market share (Hymowitz v. Eli Lilly & Co.).
• proximate cause: Whether a cause-in-fact is close enough to the injury to be considered
a proximate cause depends on several factors, the most important of which is
foreseeability (Abraham, 119). Foreseeability is not dispositive of proximate cause,
however (Wagner v. International Railway Co.). In the chain of causes-in-fact, just where
the line should be drawn (Petition of Kinsman Transit Co., Kinsman II) to determine
proximate causes should usually be a jury issue, considering factors such as the following
(dissent in Palsgraf v. Long Island Railroad Co.):
o Was there was a natural and continuous sequence between cause and effect?
o Was the cause a substantial factor in producing the other?
o Was there a direct connection between them, without too many intervening
causes?
o Is the effect of cause on result not too attenuated?
o Would most people consider the cause likely to produce the result?
o By the exercise of prudent foresight, could the result have been foreseen?
o Is the result not too remote in time from the cause?
o Is the result not too remote in space from the cause?

Because the concept of foreseeability is central to determining proximate cause in a legal

context, there are several types of foreseeability that are variations of legal proximate
cause determination. In some variations (such as unforeseeable plaintiffs), foreseeability
is often required; in other cases (such as extent of harm), foreseeability is not as often
required to find proximate cause (Abraham, 125-126):

o unforeseeable plaintiffs: One of the biggest disagreements between Cardozo and

Andrews in Palsgraf was over whether a foreseeable plaintiff was in issue of duty
or an issue of proximate cause. Andrews thought that the case should go to the
jury to determine if the negligence was a proximate cause of an injury to an
unforeseeable plaintiff, while Cardozo thought that as a matter of law a defendant
simply has no duty to an unforeseen plaintiff. Sometimes courts use Cardozo's
analysis, and sometimes they use Andrews' reasoning (Abraham, 127-128). The
jury is allowed to find a duty to rescuer after a negligent action, because "danger
invites rescue" and the rescuer is therefore a foreseeable plaintiff (Wagner v.
International Railway Co.). A third party must not just be foreseeable, however—
the third party's actions must be instinctive and concurrent with the injury
(Wagner v. International Railway Co.).
 o unforeseeable extent of harm: According to the "eggshell plaintiff" (or "thin-
skull") rule, if it is foreseeable that an action will cause or precipitate injury, the
defendant is liable for the full extent of bodily or phychiatric harm to the
defendant, even if the extent is unforseeable (Benn v. Thomas, Steinhauser v.
Hertz Corp.). A case in the UK has held that a defendant might not be liable for
an unknown type of harm (e.g. oil making a mess but not starting a fire, Overseas
Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. (The Wagon
Mound)), but this line of reasoning isn't always followed in US courts (Abraham,
132).
o intervening causes: Courts are increasingly holding that an intervening
negligent act does not remove liability from the original defendant (Pridham v.
Cash & Carry Bldg. Center, Inc., Addis v. Steele, Abraham, 125), (contrast
McLaughlin v. Mine Safety Appliances Co. which contradicts Restatement of
Torts § 449). Such cases may be sent to the jury (Cohen v. St. Regis Paper Co.).

The negligent actor that brings about the intervening cause will also be liable.
(The damage award for an intervening act may be reduced if it can be shown that
a different injury would have occurred anyway (Dillon v. Twin State Gas &
Electric Co.).) The intervening negligent actor may be liable for reducing the
victim's chances of recovery (loss of chance), if the victim was in the window of
recovery and an actual injury occurs (Alberts v. Schultz).

Liability Allocation

several liability:
Each defendant is only liable for the amount of injury caused. When one tort is negligent
and one is intentional, liability is still allocated (Hutcherson v. City of Phoenix) unless the
negligent act was failure to protect against the intentional act (Veazey v. Elmwood
Plantation Associates, Ltd.). Several liability is imposed when:

• The defendants acted independently.

• The amount of damage caused by each defendant can be determined.
• There are successive injuries (although the initial tortfeasor may be jointly
liable for successive acts, Ravo v. Rogatnick).

joint and several liability:

Each defendant is liable for 100% of the injury caused. Joint and several liability is
imposed when:

• The defendants acted in concert.

• It is difficult for damages to be allocated (Ravo v. Rogatnick).

Damages
Purposes
Awarding damages has two purposes (Abraham, 206):

1. Compensating the plaintiff for a loss resulting from defendant's negligence.

2. Deterring others from creating harm by being negligent.

Types

1. Compensatory damages: The most common type of damages. The jury can award just
about any amount they think reasonable, and the judge can only rule an amount excessive
if it "shocks the conscience" and if it must have been a result of passion and prejudice
(Seffert v. Los Angeles Transit Lines, Epping v. Commonwealth Edison Co.). It doesn't
matter if other similar plaintiffs recieved less (Miksis v. Howard) or more (Waldorf v.
Shuta), as long as the award is within acceptable limits.

Damages can be awarded for pain and suffering (although there must be some level of
awareness—e.g. not in a coma, McDougald v. Garber), even in contemplating
empending doom (Sander v. Geib, Elston, Frost, P.A.). Beneficiaries may be awarded
damages for loss of decedant's functionality (e.g. mother's cooking and cleaning)
(DeLong v. County of Erie). Beneficiaries of a dead defendant can be awarded lost
earnings, based upon the life expectancy and educational background of parents, and
this can be quite high for young decedants (Andrews v. Reynolds Memorial Hospital,
Inc.).

Types of compensatory damages (Abraham, 206):

special (out-of-pocket) damages

Tangible damages resulting from the action, such as health-care expenses and lost wages.
general damages
Intangible damages for pain and suffering, disfigurement, loss of life's enjoyments, etc.
Some courts have held that loss of enjoyment of life should not be a separate category
from pain and suffering (McDougald v. Garber).

Collateral source rule: A defendant owes damages even if the plaintiff receives
reimbursement from a separate source, such as insurance (Arambula v. Wells, Acuar v.
Letourneau).

2. Punitive damages: Punitive damages go beyond compensatory damages are are only
awarded in extreme cases (see McDougald v. Garber).

Defenses
The defenses listed here are affirmative in that the defendant has the burden of proof (Abraham,
137).

Shared Negligence
Contributory negligence is exactly the same as comparative negligence except for the way
damages are calculated. Each indicates that the plaintiff was partly negligent, which means that
the defendant must prove negligence on the part of the plaintiff. This may be done by showing
the plaintiff disobeyed a statute, for instance (Barker v. Kallash). A physician may not use
contributory negligence to avoid liability for later negligence by claiming that the patient's
injuries were originally caused by the plaintiff's negligence (Fritts v. McKinne).

contributory negligence
Completely bars recovery by the plaintiff. Has been abandoned by almost all states
(Abraham, 137).
comparative negligence
Reduces the amount by which the plaintiff can recover in much the same way as with
several liability for defendants. Res ipsa loquitur can sometimes still be used if the
plaintiff is negligent, allowing comparative negligence to distribute the damages
(Montgomery Elevator Co. v. Gordon). There are three types in use—a "pure" form, and
two "modified" forms (Abraham, 144):
pure comparative negligence
The defendant is liable for exactly the defendant's portion of negligence.
"more negligent" modified comparative negligence
If the plaintiff is more negligent than the defendant, recovery is barred—otherwise, the
defendant is liable for the exact portion of liability.
"as negligent" modified comparative negligence
If the plaintiff is as negligent or more negligent than the defendant, recovery is barred—
otherwise, the defendant is liable for the exact portion of liability.

Assumption of Risk

There are four different contexts in which the term "assumption of risk" is used in torts, and they
differ dramatically (Abraham, 153):

express assumption of risk

By some sort of contractual arrangement (such as a disclaimer on a ticket) the plaintiff
explicitly waives the right to sue. Such an agreement could be declared invalid if it meets
some or all of the Tunkl factors (Dalury v. S-K-I, Ltd.):

• The business is of a type for public regulation.

• The service is of great necessity to the public.
• There is an open invitation to the public.
• There is a decisive economic advantage over the customer.
• Part of the superior bargaining power includes a general exculpatory
clause.
• As a result of the transaction, customer is placed at the control of the
seller, subject to the seller's carelessness.

primary implied assumption of risk

 There is no express agreement to waive rights to bring an action, but the plaintiff knows
that particular activity carries with it an inherent risk of injury and therefore "assumes
the risk", such as the risk if being hit by a ball at a baseball game (Abraham, 154,
Murphy v. Steeplechase Amusement Co.). Liability may still be imposed for parts of the
activity that are not inherent to an activity, such as skiing while intoxicated (Freeman v.
Hale). Primary implied assumption of risk is really another way of saying that the
defendant didn't have a duty to protect the plaintiff in the first place (Davenport v. Cotton
Hope Plantation Horizontal Property Regime).
unreasonable secondary implied assumption of risk
The plaintiff knows of the defendant's negligence and continues to act in those
conditions. This is really just a subset of comparative negligence (Abraham, 155). Some
jurisdictions have ruled that this is a complete defense, while others have held that it
should be absorbed into comparative negligence and only lower the liability (Diamond,
270-271). To establish secondary implied assumption of risk, South Carolina uses the
following factors (Davenport v. Cotton Hope Plantation Horizontal Property Regime):

1. The plaintiff must have knowledge of the facts.

2. The plaintiff must know the situation is dangerous.
3. The plaintiff must appreciate the nature and extent of the danger.
4. The plaintiff must voluntarily expose self to danger.

reasonable secondary implied assumption of risk

The plaintiff knows of the defendant's negligence and reasonably continues to act such
as when using a car with a broken steering wheel to take a child to the hospital. The
modern trend is not to reduce the award at all for plaintiffs who acted reasonably
(Diamond, 271).

firefighter's rule: Firefighters and policemen are precluded from recovering from an injury
that occurs while rescuing someone from an accident caused by a taxpayer's own negligence.
This does not apply to volunteer firefighters, however (Roberts v. Vaughn).