Here the court warps the doctrine martin and extends

This preview shows page 34 - 36 out of 38 pages.

post-accident to pre-accident duty when a injury is foreseeable. Here the court “warps” the doctrine (Martin) and extends it to pre-accident. This has the effect of imposing a legal requirement on every driver to wear a seat belt because tort rules regulate conduct. Dissent says only the legislature has the power to impose this rule. After Comparative Negligence Contrib. neg. under pure, no longer total bar (b/c it is now compared) under modified, if above limit then total bar, if below then compared Assumption of the risk Express = total bar (under contrib. neg.) (after comp. neg.) b/c consential; contractual and not based on conduct. Implied = total bar (under contrib. neg.); (after comp. neg. = compared) (after comp. neg. has to be divided into categories) (implied from conduct indicating consent) (reasonable conduct = contrib. neg. / consential conduct = A/R) *Primary A/R (no duty category) d. never owed p. a duty b/c p.’s consential conduct
Image of page 34

Subscribe to view the full document.

35 *Secondary A/R 1.RIAR (conduct) – can either be the reasonableness of the decision to encounter or it can be the reasonableness of the conduct itself – if a rpp would have encountered that risk for the purpose stated then it should still be A/R (compared) 2.Unreasonable (conduct) = contrib. (4) Immunity An immunity does not function the same way as a legal defense. An immunity is decided by court – never have to deal with the jury. It’s a free pass. Family o Common law said that family members could not sue each other. Husband/Wife; Parent/Child. Why did we have it at common law? Husband and wife were considered one person and you cannot tort yourself (unity). Parent/Child – every method of discipline would be a tort. o The big issue is the idea of insurance: kids are covered on the parent’s policy so there is the potential for collusive lawsuits o Most states have abolished family immunity through statute BONTE v. BONTE Court finds that the child has a cause of action against the mother for her negligent act while pregnant. SHOEMAKE v. FOGEL, LTD., A.T. P child almost drowns in the pool. Later dies from injuries. D is the apartment complex that has the swimming pool. P on behalf of the dead child – child’s mother. Jury finds 55 % neg. against the defendant and 45 % for plaintiff. This is Tx and there is parental immunity. D cannot counter sue p for money b/c of the family immunity – D had to pay the full amount because of joint and several liability. Charitable Purpose is to protect charities from being sued Most states have abolished charity immunity because of the availablity of insurance Government “The king can do no wrong.” Sovereign immunity. In 1946 FTCA = limited waiver of federal immunity limited to Negligence A. Federal / State – Sovereign Immunity – FTCA is a limited waiver of sovereign immunity. Must show that the sovereign has waived its own defensive immunity.
Image of page 35
Image of page 36

{[ snackBarMessage ]}

Get FREE access by uploading your study materials

Upload your study materials now and get free access to over 25 million documents.

Upload now for FREE access Or pay now for instant access
Christopher Reinemann
"Before using Course Hero my grade was at 78%. By the end of the semester my grade was at 90%. I could not have done it without all the class material I found."
— Christopher R., University of Rhode Island '15, Course Hero Intern

Ask a question for free

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern