Implied Assumption of Risk As the Legal Equivalent to Contributory Negligence

Implied assumption of risk as the legal equivalent to

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Implied Assumption of Risk - As the Legal Equivalent to Contributory Negligence Most jurisdictions do not consider implied assumption of risk as an all-or-nothing approach (that assumption of risk is a complete bar to recovery in a negligence claim). Instead, conduct by a plaintiff that used to be considered assumption of risk is often now seen as having the effect of negligence, to be compared to the defendant’s negligence to determine whether the plaintiff’s recovery should be reduced or barred. - Assumption of Risk in Sports or Risky Activity Cases RULE(S): - A person who participates in sports (or risky recreational activities), assumes the risks that are reasonably (normally) inherent in the sport (or recreational activity). - Personal injury cases arising out of an athletic event must be predicated on reckless disregard for safety, not on negligence alone. - The duty to refrain from willful and wanton conduct does not include refraining from the type of conduct that is an inherent part of the sport and that participants in such a sport only breach their duty of care to a co-participants if there was an intentional injury or conduct that was totally outside the range of ordinary activity involved in the sport. C. STATUTE OF LIMITATIONS Definition: SOLs are legislative acts which provide time limitations for bringing a legal claim. Goals for SOLs - (a) Motivate the plaintiffs to bring lawsuits while claims are fresh and the evidence readily available. - (b) Protect the defendants from the frustrations of dealing with stale claims. (c) Promote economic efficiency by allowing the defendants to be able to remove potential liabilities from their books after a predetermined period of time. RULE: SOLs begin to run when the injury occurs. Tolling the limitations period. (To suspend or temporarily stop the running of the SOL usually because of legal incapacity to sue. As such, SOL begins to run at some point other than when the injury occurs.) - RULE regarding tolling the SOL in cases of latent injuries: SOL begins to run when a reasonable person associates her symptoms with a serious or permanent condition and perceives the role the defendant has played in causing the condition. - When SOL begins to run for medical malpractice in Illinois: "2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action." 735 Ill. Comp. Stat. 5/13-212 (2004). - When SOL begins to run in negligence cases: When the injury occurs, or when a reasonable person discovers her injury and perceives the role D’s negligence played in causing it.
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SOL in Emotional Harms: Repressed Memory and Insanity Disability - Minority view: Discovery rule may toll the SOL because the plaintiff’s interest in compensation for injuries caused by the defendant’s acts, especially where the abuse and its causal connection to the
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