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- Chapter 16 Affirmative Defenses
Chapter 16-10 Assumption of The Risk and Contributory Negligence
Jurisdiction | United States |
16-10 Assumption of The Risk and Contributory Negligence
Express assumption of the risk is a complete bar to recovery.79 Contributory negligence, on the other hand, generally only proportionately reduces the plaintiff's recov-ery.80 In cases where the plaintiff's contributory negligence is greater than 50 percent, the plaintiff's recovery is completely barred.81
16-10:1 Elements—Express Assumption of the Risk
(1) The plaintiff consented to the dangerous activity;82 and
(2) The plaintiff's consent was:
(a) Knowing;83 and
(b) Express.84
16-10:2 Elements—Contributory Negligence
(1) The plaintiff's fault;85
(2) Contributed to the plaintiff's injury.86
For a discussion of the Texas Comparative Fault scheme, see Chapter 18.
16-10:3 Other Substantive Issues
Implied assumption of the risk is not a viable defense, and therefore cannot be a strict bar to recovery.87 Any evidence of the plaintiff's implied assumption of risk may be considered when apportioning the plaintiff's fault under Civil Practice and Remedies Code Chapter 33.88
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Notes:
[79] Farley v. MM Cattle Co., 529 S.W.2d 751, 758 (Tex. 1975).
[80] Tex. Civ. Prac. & Rem. Code Ann. § 33.012(a).
[81] Tex. Civ. Prac. & Rem. Code Ann. § 33.001.
[82] Farley v. MM Cattle Co., 529 S.W.2d 751, 758 (Tex. 1975).
[83] Farley v. MM Cattle Co., 529 S.W.2d 751, 758 (Tex. 1975).
[84] Farley v. MM Cattle Co., 529 S.W.2d 751, 758 (Tex. 1975). The plaintiff's express consent must clearly and unequivocally list the risk to be assumed. Newman v. Tropical Visions, Inc., 891 S.W.2d 713, 719 (Tex. App.—San Antonio 1994, writ denied).
[85] Tex. Civ. Prac. & Rem. Code Ann. § 33.003(a). "Fault" includes any negligent act or omission, or any conduct that violates an applicable l egal standard. "Fault" also includes the former concept of implied assumption of the risk. (Farley v. M M Cattle Co., 529 S.W.2d 751, 758 (Tex. 1975)).
[86] Tex. Civ. Prac. & Rem. Code Ann. § 33.003(a).
[87] Farley v. MM Cattle Co., 529 S.W.2d 751, 758 (Tex. 1975).
[88] Farley v. MM Cattle Co., 529 S.W.2d 751, 758 (Tex. 1975); see Tex. Civ. Prac. & Rem. Code Ann. § 33.003 (requiring the parties' "fault" to be apportioned).
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- Chapter 16 Affirmative Defenses
- Chapter 16-1 Pleading Rules and Their Effect
- Chapter 16-2 Payment
- Chapter 16-3 Accord and Satisfaction
- Chapter 16-4 Arbitration and Award
- Chapter 16-5 Release
- Chapter 16-6 Waiver
- Chapter 16-7 Res Judicata and Collateral Estoppel
- Chapter 16-8 Discharge in Bankruptcy
- Chapter 16-9 License
- Chapter 16-10 Assumption of The Risk and Contributory Negligence
- Chapter 16-11 Duress
- Chapter 16-12 Estoppel
- Chapter 16-13 Illegality
- Chapter 16-14 Failure of Consideration
- Chapter 16-15 Fraud
- Chapter 16-16 Statute of Frauds
- Chapter 16-17 Statute of Limitations
- Chapter 16-18 Laches
- Chapter 16-19 Parental Immunity
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