Hollenbach 1 Plaintiff had knowledge of the risk of danger 2 He appreciated the

Crews v. Hollenbach ) : 1. Plaintiff had knowledge of the risk of danger 2. He appreciated the risk 3. He voluntarily exposed himself to that risk iii. Possible Rationales 1. No Duty : By assuming the risk you are consenting to relieve the defendant of his obligation of due care and to take your chances of injury from a known risk arising from what the defendant is to do or leave undone ( Turcotte v. Fell ) 2. No Breach : Perhaps we’re not shifting the loss because we don’t think defendant was negligent 3. No Proximate Cause : Under the circumstances, defendant’s breach may not be the proximate cause of plaintiff’s injury 4. Contributory Negligence : maybe plaintiff is negligent for voluntarily facing known risk a. Merged With Contributory Negligence in Some Jurisdictions : Betts v. Crawford : no distinction between contributory negligence and assumption of risk when raised as a defense to an established breach of duty

20 b. Restatement Adopts This : if plaintiff is reasonable in facing a known risk, he is not negligent, but if he unreasonably confronts a known risk, his negligence in doing so reduces his recovery i. Two Exceptions 1. If defendant reasonably believes that plaintiff has assumed the risk the defendant is not negligent and therefore not liable 2. If there was a contractual assumption of the risk iv. Contracting with Defendant : Where plaintiff is retained by the negligent defendant for the specific purpose of dealing with a known danger, courts hold that the plaintiff has contractually assumed the risk v. Sports : if participant makes an informed estimate of the risks involved and willingly undertakes them, then there can be no liability if he is injured as a result of those risks ( Turcotte v. Fell ) vi. Scope of Assumption is Important : example from old exam: even if mugger assumes a risk of arrest by mugging someone, that assumption only extends to reasonable means of apprehension, not deadly force Special Duties of Care 1. Nonfeasance (483-88) a. Common Law Rule : you don’t owe a duty to take affirmative steps for another’s protection ( Yania v. Bigan and Rocha v. Faltys : no duty to save a drowning person, even when victim jumped due to taunting/encouragement) b. Justifications i. There may simply be too many nonfeasors out there, and it’s not possible to hold them all liable (someone drowns on a crowded beach) ii. We don’t want to force someone to take an action, since that action could result in negligence; we would basically be forcing people to open themselves up to liability iii. Personal Autonomy iv. Legal obligations shouldn’t track moral obligations because there is know consensus on what those moral obligations should be c. Criticism i. The whole idea is to behave like a reasonable person under the circumstances; in some circumstances, the reasonable person would certainly act ii. The discretion involved in deciding whether something is nonfeasance or misfeasance brings us within the realm of equity and away from law ( Newton v. Ellis : failing to put lights around hole is just a part of the overall action of hole-digging, so it’s misfeasance, not nonfeasance) d. Exceptions