A in future may write negligence into contracts this

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a. In future, may write negligence into contracts. This will likely scare customers away, or customers will just amend the document. Courts are not eager to waive negligence for public policy reasons – we don’t want to encourage negligence or poorly run services. 3. Industry Standard/Custom: i. Can never be sure a lawyer won’t argue that industry standard is below where it should be – changing knowledge, tech, etc. ii. There must be a good faith effort to provide a reasonable amount of care. iii. Waivers in extreme sports are to protect from regular negligence, not from gross negligence/recklessness. 16
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iv. Alternative to a waiver is insurance. b. Implied Assumption of Risk i. Primary – when risk is inherent to activity, and it is obvious to participant that it is inherent. It’s as if you signed a waiver b/c it’s so obvious. ii. Secondary – subjective test of whether P actually knew and appreciated risk created by D’s wrongful conduct and voluntarily accepted the risk. (very similar to last clear chance). What you need for this theory: a. Negligence on part of D b. P has time to witness negligence prior to injury; P is aware of risk (like last clear, he was the last person able to avoid this injury – he could have held on to the handrail, use different stairs.) c. This used to be a COMPLETE defense for the D b/c P was the last person to be able to avoid this injury. Once you get into comparative negligence, you have an entirely new game (there are no absolutes here.) 1. Davenport v. Cotton Hope Plantation – light in stairwell out, P complained; fell b/c no light. i. Davenport assumed the risk of injury, held that if comp neg applied P would be more than 51% negligent. ii. Four requirements establishing defendant’s defense or assumption of risk a. P must have knowledge of the facts constituting a dangerous condition b. P must know that condition is dangerous c. P must appreciate nature and extent of danger d. P must voluntarily expose himself to danger iii. Rule: P not barred from recovery by the doctrine of secondary implied assumption of risk unless the degree of fault arising therefrom is greater than the negligence of the D. a. D would be mostly liable under comparative, but under contributory P would not be able to recover anything b/c he assumed the risk by walking down the stairs. In a few states, they still make secondary implied a COMPLETE defense even when they have comparative negligence. All contributory negligence states use secondary implied. 2. Mitigation and Avoidable Consequences a. Intro: 1. Determines that after liability is found, what the P has done to mitigate the damages. Liability could come from negligence, product (strict) liability or an intentional tort. After you determine this, you then look for what the D owes. (Comes up most frequently in post- injury accidents and the P doesn’t follow the doctors orders.) 2. Mitigation is the reasonable steps the P must take to lessen the damages, i.e. adequate medical care. As a result of not getting adequate medical care, P is not responsible for the harms caused to D by not taking reasonable steps to protect herself. It’s almost
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Christopher Reinemann
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