1.“Sometime in 1989, Rosario Textile Mills Corporation (RTMC) applied from Home Bankers Savings & Trust Co. for an Omnibus Credit Line for P10 million. The bank approved RTMC’s credit line but for only P8 million. The bank notified RTMC of the grant of the said loan thru a letter dated March 2, 1989 which contains terms and conditions conformed by RTMC thru Edilberto V. Yujuico. On March 3, 1989, Yujuico signed a Surety Agreement in favor of the bank, in which he bound himself jointly and severally with RTMC for the payment of all RTMC’s indebtedness to the bank from 1989 to 1990. RTMC availed of the credit line by making numerous drawdowns, each drawdown being covered by a separate promissory note and trust receipt. RTMC, represented by Yujuico, executed in favor of the bank a total of eleven (11) promissory notes.
Despite the lapse of the respective due dates under the promissory notes and notwithstanding the bank’s demand letters, RTMC failed to pay its loans. Hence, on January 22, 1993, the bank filed a complaint for sum of money against RTMC and Yujuico before the Regional Trial Court, Br. 16, Manila.
In their answer, RTMC and Yujuico contend that they should be absolved from liability. They claimed that although the grant of the credit line and the execution of the suretyship agreement are admitted, the bank gave assurance that the suretyship agreement was merely a formality under which Yujuico will not be personally liable. They argue that the importation of raw materials under the credit line was with a grant of option to them to turn-over to the bank the imported raw materials should these fail to meet their manufacturing requirements. RTMC offered to make such turn-over since the imported materials did not conform to the required specifications. However, the bank refused to accept the same, until the materials were destroyed by a fire which gutted down RTMC’s premises.
Questions: (1) Contending that under the trust receipt contracts between the parties, they merely held the goods described therein in trust for respondent Home Bankers Savings and Trust Company (the bank) which owns the same. Since the ownership of the goods remains with the bank, then it should bear the loss. With the destruction of the goods by fire, petitioners-RTMC should have been relieved of any obligation to pay. Is this contention correct? (2) In essence what is a Trust Receipt agreement? (3) What is the main contract entered by RTMC and the bank? (4) Is Yuhuico liable to pay the amounts demanded by the bank? Explain.
ANSWER: ROSARIO TEXTILE MILLS CORPORATION and EDILBERTO YUJUICO, petitioners, vs. HOME BANKERS SAVINGS AND TRUST COMPANY, respondent. THIRD DIVISION [G.R. No. 137232. June 29, 2005]
2. Explain the latin maxim: Genus nunguan perit. What is the relevance of this latin maxim to the “obligation to deliver a generic thing”?
ANSWER: Under Article 1263 of the Civil Code, “[i]n an obligation to deliver a generic thing, the loss or destruction of anything of the same kind does not extinguish the obligation.” If the obligation is generic in the sense that the object thereof is designated merely by its class or genus without any particular designation or physical segregation from all others of the same class, the loss or destruction of anything of the same kind even without the debtor’s fault and before he has incurred in delay will not have the effect of extinguishing the obligation. This rule is based on the principle that the genus of a thing can never perish. Genus nunquan perit. An obligation to pay money is generic; therefore, it is not excused by fortuitous loss of any specific property of the debtor. (Gaisano Cagayan v. Insurance Company of North America,June 8, 2006)
3. “The plaintiff rented on March 22, 1985 the Safety Deposit Box No. 54 of the defendant bank at its Binondo Branch located at the Fookien Times Building, Soler St., Binondo, Manila wherein he placed his collection of stamps. The said safety deposit box leased by the plaintiff was at the bottom or at the lowest level of the safety deposit boxes of the defendant bank at its aforesaid Binondo Branch.
During the floods that took place in 1985 and 1986, floodwater entered into the defendant bank’s premises, seeped into the safety deposit box leased by the plaintiff and caused, according to the plaintiff, damage to his stamps collection. The defendant bank rejected the plaintiff’s claim for compensation for his damaged stamps collection, so, the plaintiff instituted an action for damages against the defendant bank.
The defendant bank denied liability for the damaged stamps collection of the plaintiff on the basis of the ‘Rules and Regulations Governing the Lease of Safe Deposit Boxes’ (Exhs. “A-1”, “1-A”), particularly paragraphs 9 and 13, which reads (sic):
‘9. The liability of the Bank, by reason of the lease, is limited to the exercise of the diligence to prevent the opening of the safe by any person other than the Renter, his authorized agent or legal representative;
x x x
13. The Bank is not a depository of the contents of the safe and it has neither the possession nor the control of the same. The Bank has no interest whatsoever in said contents, except as herein provided, and it assumes absolutely no liability in connection therewith.’
The defendant bank also contended that its contract with the plaintiff over safety deposit box No. 54 was one of lease and not of deposit and, therefore, governed by the lease agreement (Exhs. “A”, “L”) which should be the applicable law; that the destruction of the plaintiff’s stamps collection was due to a calamity beyond its control; and that there was no obligation on its part to notify the plaintiff about the floodwaters that inundated its premises at Binondo branch which allegedly seeped into the safety deposit box leased to the plaintiff.
The bank contends further that it is not a depository of the contents of the Safe and it has neither the possession nor the control of the same. The Bank has no interest whatsoever in said contents, except as herein provided, and it assumes absolutely no liability in connection therewith,”are valid since said stipulations are not contrary to law, morals, good customs, public order or public policy; and
d) there is no concrete evidence to show that SBTC failed to exercise the required diligence in maintaining the safety deposit box; what was proven was that the floods of 1985 and 1986, which were beyond the control of SBTC, caused the damage to the stamp collection; said floods were fortuitous events which SBTC should not be held liable for since it was not shown to have participated in the aggravation of the damage to the stamp collection; on the contrary, it offered its services to secure the assistance of an expert in order to save most of the stamps, but the appellee refused; appellee must then bear the loss under the principle of “res perit domino.”
Questions: (1) Is the bank liable to plaintiff for damages? (2) What kind of contract is the “rental of a safety deposit box”? (3) Are provisions “9” and “13” valid under the provisions of the Civil Code? (4) what do you understand by res perit domino? (5) Is the argument of the bank that it cannot be held liable since the flood somehow is a fortuitous event? Explain.
Answer: LUZAN SIA, petitioner, vs. COURT OF APPEALS and SECURITY BANK AND TRUST COMPANY, respondents. THIRD DIVISION[G.R. No. 102970. May 13, 1993]
4. Petitioner Norkis Distributors, Inc. (Norkis for brevity), is the distributor of Yamaha motorcycles in Negros Occidental with office in Bacolod City with Avelino Labajo as its Branch Manager. On September 20, 1979, private respondent Alberto Nepales bought from the Norkis-Bacolod branch a brand new Yamaha Wonderbike motorcycle Model YL2DX with Engine No. L2-329401K. Frame No. NL2-0329401, Color Maroon, then displayed in Norkis showroom. The price of P7,500.00 was payable by means of a Letter of Guaranty from the Development Bank of the Philippines (DBP), Kabankalan Branch, which Norkis’ Branch Manager Labajo agreed to accept. Hence, credit was extended to Nepales for the price of the motorcycle payable by DBP upon release of his motorcycle loan. As security for the loan, Nepales would execute a chattel mortgage on the motorcycle in favor of DBP Branch Manager Labajo issued Norkis Sales Invoice No. 0120 (Exh. 1) showing that the contract of sale of the motorcycle had been perfected. Nepales signed the sales invoice to signify his conformity with the terms of the sale. In the meantime, however, the motorcycle remained in Norkis' possession.
On November 6, 1979, the motorcycle was registered in the Land Transportation Commission in the name of Alberto Nepales. A registration certificate (Exh. 2) in his name was issued by the Land Transportation Commission on November 6, 1979 (Exh. 2-b). The registration fees were paid by him, evidenced by an official receipt, Exhibit 3.
On January 22, 1980, the motorcycle was delivered to a certain Julian Nepales who was allegedly the agent of Alberto Nepales but the latter denies it . The record shows that Alberto and Julian Nepales presented the unit to DBP's Appraiser-Investigator Ernesto Arriesta at the DBP offices in Kabankalan, Negros Occidental Branch . The motorcycle met an accident on February 3, 1980 at Binalbagan, Negros Occidental. An investigation, conducted by the DBP revealed that the unit was being driven by a certain Zacarias Payba at the time of the accident . The unit was a total wreck was returned and stored inside Norkis' warehouse.
On March 20, 1980, DBP released the proceeds of private respondent's motorcycle loan to Norkis in the total sum of P7,500. As the price of the motorcycle later increased to P7,828 in March, 1980. Nepales paid the difference of P328 and demanded the delivery of the motorcycle. When Norkis could not deliver, he filed an action for specific performance with damages.Norkis answered that the motorcycle had already been delivered to private respondent before the accident, hence, the risk of loss or damage had to be borne by him as owner of the unit.
Question: Is Norkis liable to deliver another motorcycle unit to Nepales? Will you also make Norkis liable for Damages. Explain.
Answer: NORKIS DISTRIBUTORS, INC., petitioner, vs. THE COURT OF APPEALS & ALBERTO NEPALES, respondents. [G.R. No. 91029. February 7, 1991]
5. (On prescription) The petitioner is charged with quarrying for commercial purposes without a mayor's permit in violation of Ordinance No. 2, Series of 1988, of the Municipality of Rodriguez, in the Province of Rizal.
The offense was allegedly committed on May 11, 1990. The referral-complaint of the police was received by the Office of the Provincial Prosecutor of Rizal on May 30, 1990. The corresponding information was filed with the Municipal Trial Court of Rodriguez on October 2, 1990.
The petitioner moved to quash the information on the ground that the crime had prescribed, but the motion was denied. On appeal to the Regional Trial Court of Rizal, the denial was sustained by the respondent judge.
Question: Is petitioner correct in his contention that the crime has already prescribed? Explain.
Answer: LUZ M. ZALDIVIA, petitioner, vs. HON. ANDRES B. REYES, JR., in his capacity as Acting Presiding Judge of the Regional Trial Court, Fourth Judicial Region, Branch 76, San Mateo, Rizal, and PEOPLE OF THE PHILIPPINES, respondents.EN BANC [G.R. No. 102342. July 3, 1992]
6. Magdaleno Valdez, Sr., father of herein private respondents Sergio Valdez, Angelina Valdez-Novabos, Teresita Argawanon-Mangubat and Daylinda Argawanon-Melendres (hereafter the heirs), purchased from Feliciana Santillan, on December 9, 1935, a parcel of unregistered land covered by Tax Declaration No. 3935 with an area of one hectare, 34 ares and 16 centares, located in Barrio Dayhagon, Medellin, Cebu. He took possession of the property and declared it for tax purposes in his name.
Prior to the sale, however, the entire length of the land from north to south was already traversed in the middle by railroad tracks owned by petitioner Bogo-Medellin Milling Co., Inc. (hereafter Bomedco). The tracks were used for hauling sugar cane from the fields to petitioner’s sugar mill.
When Magdaleno Valdez, Sr. passed away in 1948, herein private respondents inherited the land. However, unknown to them, Bomedco was able to have the disputed middle lot which was occupied by the railroad tracks placed in its name in the Cadastral Survey of Medellin, Cebu in 1965. The entire subject land was divided into three, namely, Cadastral Lot Nos. 953, 954 and 955. Lot Nos. 953 and 955 remained in the name of private respondents. However, Lot No. 954, the narrow lot where the railroad tracks lay, was claimed by Bomedco as its own and was declared for tax purposes in its name.
It was not until 1989 when private respondents discovered the aforementioned claim of Bomedco on inquiry with the Bureau of Lands. Through their lawyer, they immediately demanded the legal basis for Bomedco's claim over Cadastral Lot No. 954 but their letter of inquiry addressed to petitioner went unheeded, as was their subsequent demand for payment of compensation for the use of the land.
On June 8, 1989, respondent heirs filed a “Complaint for Payment of Compensation and/or Recovery of Possession of Real Property and Damages with Application for Restraining Order/Preliminary Injunction” against Bomedco before the Regional Trial Court of Cebu. Respondent heirs alleged that, before she sold the land to Valdez, Sr. in 1935, Santillan granted Bomedco, in 1929, a railroad right of way for a period of 30 years. When Valdez, Sr. acquired the land, he respected the grant. The right of way expired sometime in 1959 but respondent heirs allowed Bomedco to continue using the land because one of them was then an employee of the company.
In support of the complaint, they presented an ancient document ― an original copy of the deed of sale written in Spanish and dated December 9, 1935 ― to evidence the sale of the land to Magdaleno Valdez, Sr.; several original real estate tax receipts including Real Property Tax Receipt No. 3935 dated 1922 in the name of Graciano de los Reyes, husband of Feliciana Santillan, and Real Property Tax Receipt No. 09491 dated 1963 in the name of Magdaleno Valdez, Sr. Magdaleno Valdez, Jr. also testified for the plaintiffs during the trial.
On the other hand, Bomedco’s principal defense was that it was the owner and possessor of Cadastral Lot No. 954, having allegedly bought the same from Feliciana Santillan in 1929, prior to the sale of the property by the latter to Magdaleno Valdez, Sr. in 1935. It also contended that plaintiffs’ claim was already barred by prescription and laches because of Bomedco’s open and continuous possession of the property for more than 50 years.
Bomedco submitted in evidence a Deed of Sale dated March 18, 1929; seven real estate tax receipts for the property covering the period from 1930 to 1985; a 1929 Survey Plan of private land for Bogo-Medellin Milling Company; a Survey Notification Card; Lot Data Computation for Lot No. 954; a Cadastral Map for Medellin Cadastre as well as the testimonies of Vicente Basmayor, Geodetic Engineer and property custodian for Bomedco, and Rafaela A. Belleza, Geodetic Engineer and Chief of the Land Management Services of the DENR, Region VIII.
In its decision dated November 27, 1991, the trial court rejected Bomedco's defense of ownership on the basis of a prior sale, citing that its evidence – a xerox copy of the Deed of Sale dated March 18, 1929 – was inadmissible and had no probative value. Not only was it not signed by the parties but defendant Bomedco also failed to present the original copy without valid reason pursuant to Section 4, Rule 130 of the Rules of Court.
Nonetheless, the trial court held that Bomedco had been in possession of Cadastral Lot No. 954 in good faith for more than 10 years, thus, it had already acquired ownership of the property through acquisitive prescription under Article 620 of the Civil Code. It explained:
Under Article 620 of the Civil Code, CONTINUOUS and APPARENT easements can be acquired by prescription after ten (10) years. The “apparent” characteristic of the questioned property being used by defendant as an easement is no longer at issue, because plaintiffs themselves had acknowledged that the existence of the railway tracks of defendant Bomedco was already known by the late Magdaleno Valdez, herein plaintiffs’ predecessor-in-interest, before the late Magdaleno Valdez purchased in 1935 from the late Feliciana Santillan the land described in the Complaint where defendant’s railway tracks is traversing [sic] (TSN of February 5, 1991, pp. 7-8). As to the continuity of defendant’s use of the strip of land as easement is [sic] also manifest from the continuous and uninterrupted occupation of the questioned property from 1929 up to the date of the filing of the instant Complaint. In view of the defendant’s UNINTERRUPTED possession of the strip of land for more than fifty (50) years, the Supreme Court’s ruling in the case of Ronquillo, et al. v. Roco, et al. (103 Phil 84) is not applicable. This is because in said case the easement in question was a strip of dirt road whose possession by the dominant estate occurs only everytime said dirt road was being used by the dominant estate. Such fact would necessarily show that the easement’s possession by the dominant estate was never continuous. In the instant case however, there is clear continuity of defendant’s possession of the strip of land it had been using as railway tracks. Because the railway tracks which defendant had constructed on the questioned strip of land had been CONTINUOUSLY occupying said easement. Thus, defendant Bomedco’s apparent and continuous possession of said strip of land in good faith for more than ten (10) years had made defendant owner of said strip of land traversed by its railway tracks. Because the railway tracks which defendant had constructed on the questioned strip of land had been continuously occupying said easement [sic]. Thus, defendant Bomedco’s apparent and continuous possession of said strip of land in good faith for more than ten (10) years had made defendant owner of said strip of land traversed by its railway tracks.
Question: IS the ruling of the trial court correct? Explain.
Answer: Incorrect.
BOGO-MEDELLIN MILLING CO., INC., petitioner, vs. COURT OF APPEALS AND HEIRS OF MAGDALENO VALDEZ SR., respondents. THIRD DIVISION[G.R. No. 124699. July 31, 2003]
7. What is a “vicarious liability”? Explain and cite at least one example.
Answer: CRESENCIO LIBI and AMELIA YAP LIBI, Petitioners, vs. HON. INTERMEDIATE APPELLATE COURT, FELIPE GOTIONG and SHIRLEY GOTIONG, Respondents. EN BANC[G.R. No. 70890. September 18, 1992]; BLTB v. NLRC [G.R. No. 101858. August 21, 1992]; CASTILEX INDUSTRIAL CORPORATION, petitioner, vs. VICENTE VASQUEZ, JR. and LUISA SO VASQUEZ, and CEBU DOCTORS’ HOSPITAL, INC., respondents. [G.R. No. 132266. December 21, 1999]; Amadora v. C.A. [G.R. No. L-47745. April 15, 1988] Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. It can be distinguished from contributory liability, another form of secondary liability, which is rooted in the tort theory of enterprise liability Employers are vicariously liable, under the respondeat superior doctrine, for negligent acts or omissions by their employees in the course of employment (sometimes referred to as 'scope of employment').[1] For an act to be considered within the course of employment it must either be authorised or be so connected with an authorised act that it can be considered a mode, though an improper mode, of performing it.
Courts sometime distinguish between an employee's "detour" or "frolic". For instance, an employer will be held liable if it is shown that the employee had gone on a mere detour in carrying out their duties, whereas an employee acting in his or her own right rather than on the employer's business is undertaking a "frolic" and will not subject the employer to liability.
Neither, generally, will an employer be held liable for assault or battery committed by employees, unless the use of force was part of their employment (e.g. police officers), or they were in a field likely to create friction with persons they encountered (e.g. car re-possessors). However, the employer of an independent contractor is not held vicariously liable for the tortious acts of the contractor, except where the contractor injures someone to whom the employer owes a non-delegable duty of care, such as where the employer is a school authority and the injured party a pupil.
Employers are also liable under the common law principle represented in the Latin phrase, "qui facit per alium facit per se", i.e. the one who acts through another, acts in his or her own interests. This is a parallel concept to vicarious liability and strict liability in which one person is held liable in criminal law or tort for the acts or omissions of another.
The general rule in the criminal law is that there is no vicarious liability. This reflects the general principle that a crime is composed of both an actus reus (the Latin tag for "guilty act") and a mens rea (the Latin tag for "guilty mind") and that a person should only be convicted if he, she or it is directly responsible for causing both elements to occur at the same time (see concurrence). Thus, the practice of holding one person liable for the actions of another is the exception and not the rule in criminal law.
8.What is an “equitable mortgage”? What are the instances in which a contract of sale can be presumed as an “equitable mortgage”?
Answer: An equitable mortgage has been defined “as one which although lacking in some formality, or form or words, or other requisites demanded by a statute, nevertheless reveals the intention of the parties to charge real property as security for a debt, and contains nothing impossible or contrary to law.”
The instances in which a contract of sale is presumed to be an equitable mortgage are enumerated in Article 1602 of the Civil Code as follows:
“Art. 1602. The contract shall be presumed to be an equitable mortgage, in any of the following cases:
(1) When the price of a sale with right to repurchase is unusually inadequate;
(2) When the vendor remains in possession as lessee or otherwise;
(3) When upon or after the expiration of the right to repurchase another instrument extending the period of redemption or granting a new period is executed;
(4) When the purchaser retains for himself a part of the purchase price;
(5) When the vendor binds himself to pay the taxes on the thing sold;
(6) In any other case where it may be fairly inferred that the real intention of the parties is that the transaction shall secure the payment of a debt or the performance of any other obligation.( GO V. BACARON, GR 159048, OCTOBER 11, 2005)
9. On November 15, 1996, Hamilton Salak rented a car from GAB Rent-A-Car, a car rental shop owned by petitioner Benjamin Bautista. The lease was for three (3) consecutive days at a rental fee of P1,000.00 per day. However, Salak failed to return the car after three (3) days prompting petitioner to file a complaint against him for estafa, violation of Batas Pambansa Blg. 22 and carnapping.
On February 2, 1997, Salak and his common-law wife, respondent Shirley G. Unangst, were arrested by officers of the Criminal Investigation Service Group (CISG) of the Philippine National Police while riding the rented car along Quezon City. The next day, petitioner demanded from Salak at the CISG Office the sum of P232,372.00 as payment for car rental fees, fees incurred in locating the car, attorney’s fees, capital gains tax, transfer tax, and other incidental expenses.
Salak and respondent expressed willingness to pay but since they were then short on cash, Salak proposed to sell to petitioner a house and lot titled in the name of respondent. Petitioner welcomed the proposal after consulting his wife, Cynthia. Cynthia, on the other hand, further agreed to pay the mortgage loan of respondent over the subject property to a certain Jojo Lee in the amount of P295,000.00 as the property was then set to be publicly auctioned on February 17, 1997.
To formalize their amicable settlement, Cynthia, Salak and respondent executed a written agreement. They stipulated that respondent would sell, subject to repurchase, her residential property in favor of Cynthia for the total amount of P527,372.00 broken down, as follows: (1) P295,000.00 for the amount paid by Cynthia to Lee to release the mortgage on the property; and (2) P232,372.00, which is the amount due to GAB Rent-A-Car. Cynthia also agreed to desist from pursuing the complaint against Salak and respondent.
Respondent and petitioner also executed a separate deed of sale with right to repurchase, specifying, among others, that: (1) respondent, as vendor, shall pay capital gains tax, current real estate taxes and utility bills pertaining to the property; (2) if respondent fails to repurchase the property within 30 days from the date of the deed, she and her assigns shall immediately vacate the premises and deliver its possession to petitioner without need of a judicial order; and (3) respondent’s refusal to do so will entitle petitioner to take immediate possession of the property.
Respondent failed to repurchase the property within the stipulated period. As a result, petitioner filed, on June 5, 1998, a complaint for specific performance or recovery of possession, for sum of money, for consolidation of ownership and damages against respondent and other unnamed persons before the RTC of Olongapo City.
In his complaint, petitioner alleged, among others, that after respondent failed to repurchase the subject realty, he caused the registration of the deed of sale with the Register of Deeds and the transfer of the tax declarations in his name; that respondent failed to pay the capital gains taxes and update the real estate taxes forcing him to pay said amounts in the sum of P71,129.05 and P11,993.72, respectively; and that respondent violated the terms of the deed when she, as well as the other unnamed persons, refused to vacate the subject property despite repeated demands.
Petitioner prayed before the RTC that an order be issued in his favor directing respondents to: (1) surrender the possession of the property; (2) pay P150,000.00 for the reasonable compensation for its use from March 7, 1997 to June 7, 1998, plus P10,000.00 per month afterward; (3) pay the amount advanced by petitioner, to wit: P71,129.05 and P11,993.72 for the payment of capital gains tax and real estate taxes, respectively; and P70,000.00 for attorney’s fees.
Question: You are the RTC JUDGE, will you grant the petitioner’s prayers? Explain.
Answer: Don’t. See Bautista v. Unangst G.R. 173002, July 4, 2008
10. What do you understand by the “doctrine of assumption of risk”? Explain and cite an example.
Answer: Assumption of risk is a defense in the law of torts, which bars a plaintiff from recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity in which he was participating at the time of his injury.
What is usually meant by assumption of risk is more precisely termed primary assumption of risk. It occurs when the plaintiff has either expressly or impliedly relieved the defendant of the duty to mitigate or relieve the risk causing the injury from which the cause of action arises. It operates as a complete bar to liability on the theory that upon assumption of the risk, there is no longer a duty of care running from the defendant to the plaintiff; without a duty owed by the defendant, there can be no negligence on his part.[1] However, primary assumption of risk is not a blanket exemption from liability for the operators of a dangerous activity. The specific risk causing the injury must have been known to, and appreciated by, the plaintiff in order for primary assumption of risk to apply. Also, assumption of risk does not absolve a defendant of liability for reckless conduct.[2]
This defense is commonly used in cases of injuries occurring during risky recreational activities, such as skiing, paragliding, and scuba diving.
Secondary assumption of risk is a rather different doctrine akin in some respects to comparative negligence. The difference was explained by the Supreme Court of California as follows:
| “ | In cases involving ‘primary assumption of risk’—where, by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury—the doctrine continues to operate as a complete bar to the plaintiff's recovery. In cases involving ‘secondary assumption of risk’—where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant's breach of duty—the doctrine is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.[3] |
What is the "assumption of the risk" doctrine?
If you have knowingly and voluntarily assumed the risk inherent in a particular action that caused an accident, you cannot sue the other person for negligence if you get hurt. For example, if you see a sign that says “do not touch – hot” but you touch the object anyway and burn your hand, you may be found to have “assumed the risk.” This would prevent you from recovering any money. Another common example of assumption of risk is participation in a sport in which certain risks are inherent to the game. For instance, if you are playing football and you get tackled and break an arm, you may not sue the person who tackled you. On the other hand, if you are playing tennis and a fight breaks out and you are hit in the head with a racket, you may be able to sue the person who hit you, since the assumption of risk does not cover any injury that was intentionally inflicted and not an inherent part of the game.
What is premises liability?
The term "premises liability" generally refers to accidents that occur due to the negligent maintenance or unsafe or dangerous conditions upon property owned by someone other than the accident victim. Many states have laws that generally require landowners to maintain their property in a manner that does not cause injury to those that, for various reasons, visit the property. Often, these laws pertain to both business owners and homeowners. In many states, property owners and business establishments have been found to have a duty to provide a safe environment for individuals on their premises. If you are injured because a property owner or a business establishment fails to provide a safe environment, you may have a right to bring a claim for various damages incurred due to your injury. In many states, these damages include pain and suffering, medical expenses and lost wages. Premises Liability cases involve injuries sustained on the property or premises of a negligent third party. These types of cases often involve slip and fall accidents, which usually occur when a defective condition, foreign substance or object causes a fall. Crucial to settlement recovery is being able to show how long the defect or substance was there, how visible it was, and how much notice the owner had of the dangerous condition before the accident happened.
What is strict liability?
Some persons or companies may be held “strictly liable” for certain activities or products that harm others, even if it can’t be shown they acted negligently or with intent. This theory is important because it protects the community from dangerous products or activities and provides relief for injuries. Strict liability is applied to two different situations which the public should be made aware. These are strict products liability and liability for people engaged in “ultra hazardous activities.”
Strict products liability is applied against merchants of a product who sell abnormally dangerous products. A product may be abnormally dangerous because there is a defect it its design such as a faulty brake pedal, or simply because it lacked adequate warnings. A product may also be abnormally dangerous because of a manufacturing defect which resulted in a single defective product entering the stream of commerce. An example of this is a soda bottle entering the stream of commerce that contains a glass shard. In either case, both the manufacturer and merchant are liable for the sustained injuries that were foreseeable at the time the product was designed and manufactured. It is important to note, casual sellers of products such as those who host garage sales will not be strictly liable as merchants.
Strict liability is also used to protect the public from ultra hazardous activities. An ultra hazardous activity is one that involves a risk of serious harm which cannot be eliminated by the exercise of utmost care. Classic examples of ultra hazardous activities include blasting using dynamite or keeping wild animals. The person who engages in an ultra hazardous activity will be liable for all damage and injuries resulting from the activity regardless of whether they took every single possible precaution imaginable.
If you have been injured by a defective product or as the result of an ultra hazardous activity, it is important to contact a personal injury attorney immediately. Injury claims are limited by a state’s statute of limitations and failure to file within this period may result in the forfeiture of your claim.
What is contributory negligence?
The term “contributory negligence” is used to describe the actions of an injured person that may have also caused or contributed to his injury. For example, if you were hit by a bike while crossing the street, but you jumped into the street without looking first then your carelessness will be taken into consideration and any money that you receive may be discounted because of your own carelessness. If you are found to have contributed to your own injury, the rules in some states will prevent you from collecting any money. Many states have done away with the concept of contributory negligence altogether and instead use the concept of “comparative negligence.” Comparative negligence looks to the degree of fault of each party in determining whether an award is justified in the case and what amount the award will be.
What is comparative negligence?
Comparative negligence works on a percentage basis to assign a degree of fault for the injuries suffered. For example, in a broad-side car accident case where the injured person is awarded $100,000, the driver who broadsided the other car migth be found to be eighty-percent responsible for the accident because of, say, turning on a yellow light. The injured plaintiff could also be found to be, say, twenty percent responsible for not exercising caution by failing to look both ways. In such a case, the award would be reduced to $80,000.
