Thursday, December 3, 2015

Blackburn v. Dorta case brief

Blackburn v. Dorta case brief
1977 Florida Supreme
Facts: Trying to see if assumption of risk being a complete bar to recovery is still valid when taking into account Hoffman case that instated the rule of comparative negligence. Is assumption of risk equal to contributory negligence or can it be equal to comparative negligence; that is the main question. 
Decision: Assumption of risk is interchangeable with contributory negligence and is a complete bar to recovery. 
Reasoning: Talking about the implied assumption of risk, primary and secondary categories. Primary is a means of stating that defendant is not negligence because of no duty or no duty breached. Secondary means assumption of risk is an affirmative defense to an established breach of duty. 
They are not talking about the assumption of risk that comes into play with normal everyday activities like a train operated with due care. They think that assumption of risk in cases of extraordinary situations where operator made a mistake is when it applies. 
They talk about the implied-qualified assumption of risk in which guy runs into burning building caused by defendants negligence is unreasonable. That is a bar to recovery since it is contributory negligence. A reasonably prudent man would not have done that. Since its so obviously contributory negligence, no reason to keep the word. 
Also have no reason to keep other assumption of risk because it is extremely redundant. Think comparative negligence is so much better because it reaches most equitable result. Merging implied assumption of risk into contributory negligence and principles of comparative negligence are applying where such defenses are asserted. 
Teeters v. Currey 1974 Tennesse Supreme
Notes: Statute of limitations case; does the statute begin to toll from date of injury or discovery of the injury? She had a surgery because of complications; which led to her going to a hospital later on for a checkup to discover she’s pregnant. That baby came out premature with complications and she needed more surgery, at the second surgery she found out that earlier surgery was done negligently. She files suit 5 years after original problem but 11 months after finding out injury so now court decides. 

Changed it to when the injury is discovered because of fairness principles. The other rule was too harsh. 

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