Assumption of Risk A. Express a. Freely given, and written or verbally stated prior to engaing in a specified activity b.

(PL) consented to a particular type of possible harm or injury B. Implied a. Primary Assumption (PL) enages in am activity that may result in injury even if the (D) is very careful Skier hit on the mountain by another skier b. Secondary Implied (PL) assumes a risk when they are aware of the (D)s negligence. Dude notices that his friends car has no brakes, but he borrows it an drives anyway B. Reasonable and Unreasonable Assumption a. Primary or secondary risk assumption I. Contributory Fault A. This is conduct on the part of the plaintiff that has contributed to his own harm. The idea is that the (PL) has been the proximate cause of his own injury and therefore is not able to bring an action against the (D) who is also guilty of negligence. B. DUTY a. There is no duty to act in a comparative negligence case. C. Procedurally a. Many courts do not like this as a defense, and they will put it to a jury most often D. Cause in Fact a. The ordinary need to prove cause in fact is applied to contributory negligence. E. Prox Cause a. The basic theories of proximate cause apply to the determination of contributory negligence. F. Comparative Neligence a. Pure The (PL) will recover damages minus the amount he contributed. So if the (PL) was 40% resonsible, then they will recover on 60% b. Modified Equal Fault Bar If the (PL) is equal to, or greater than in terms of negligence than the (D), then (PL) will get nothing Greater Fault Bar

G. Cases a. Wright v. Norfolk Facts Truck driver who lived near, repeatedly previously crossed, windows up, and radio on, pulled out in front of a train and was hit and seriously injured Rule The (PL) is barred from recovery under the contributory negligence doctrine Procedure The TC set aside the jury verdict and award b/c as a matter of law, the (PL) was negligent and therefore not able to recover damages. b. McIntryre & Balentine Facts 2 drunks into an accident and the one sued teh other, and the jury said that they were equally at fault The AC decided to do away with contributory negligence and go with modified comparative negligence Rule So long as the (PL) is less negligent than the D they will recover, minus the amount that they were negligent c. Dobson v. Louisinane Power Facts The (PL) was killed b/c his saftey harness contacted an unopen and exposed powerline. Rule The court reduced the award b/c the (PL) was 40% resonsible for the injury that he sustained. d. Coleman v Hines There was a girl and guy who were drinking together and they were in a car accident and the girl was killed She could not sue the driver b/c she was contributorily negligent b/c she knew he was drunk but she rode with him anyway e.

So long as the (PL) was less negligent, than he can recover