creep primary and secondary in midas civil

Note that courts will not generally evaluate whether or not the plaintiff’s decision was “reasonable.”Īnalysis will normally include an examination of any contractual waivers or other limitations of liability. Next, the plaintiff’s conduct must be evaluated, to determine whether the plaintiff made a choice to engage in conduct which involved encountering and accepting a risk. HOW WILL COURTS EVALUATE SECONDARY ASSUMPTION OF THE RISK?įirst, there must be a determination that the risk is actually secondary assumption of the risk–meaning that the defendant did owe, and breach, a duty of care to the plaintiff. In these evaluations, the plaintiff’s “percentage fault” is determined by evaluating the plaintiff’s awareness, and knowing assumption, of the risk. However, where secondary assumption of the risk situations are present, the jury (or judge, in a bench trial) is allowed to adjust the amount of damages received to offset the percentage of “fault” attributable to the plaintiff. Secondary assumption of the risk situations do not, of themselves, bar the plaintiff from recovering damages for an injury. In California, secondary assumption of the risk is assessed with, and merged into, the idea of comparative negligence or comparative fault.

“Secondary assumption of the risk” is a legal doctrine which applies when a defendant’s actions violate a duty of care to the injured plaintiff, but the plaintiff knowingly proceeds with an activity despite an awareness of the inherent (or increased) risk.

WHAT IS SECONDARY ASSUMPTION OF THE RISK?

Creep primary and secondary in midas civil