res ipsa loquitur

(rayz ip-sah loh-quit-her) n. Latin for "the thing speaks for itself," a
doctrine of law that one is presumed to be negligent if he/she/it had
exclusive control of whatever caused the injury even though there is
no specific evidence of an act of negligence, and without negligence
the accident would not have happened. Examples: a) a load of bricks
on the roof of a building being constructed by Highrise Construction
Co. falls and injures Paul Pedestrian below, and Highrise is liable for
Pedestrian's injury even though no one saw the load fall. b) While
under anesthetic, Isabel Patient's nerve in her arm is damaged
although it was not part of the surgical procedure, and she is
unaware of which of a dozen medical people in the room caused the
damage. Under res ipsa loquitur all those connected with the
operation are liable for negligence. Lawyers often shorten the
doctrine to "res ips," and find it a handy shorthand for a complex
doctrine.
Presumption of Innocence
A principle that requires the government to prove the guilt of a crimi
nal defendant and relieves the defendant of any burden to prove his
orher innocence.
The presumption of innocence, an ancient tenet of Criminal
Law, is actually a misnomer. According to the U.S. Supreme Court, th
epresumption of the innocence of a criminal defendant is best descri
bed as an assumption of innocence that is indulged in the absence of
contrary evidence (Taylor v. Kentucky, 436 U.S. 478, 98 S. Ct. 1930, 5
6 L. Ed. 2d 468 [1978]). It is not considered evidence of thedefendan
t's innocence, and it does not require that a mandatory inference fav
orable to the defendant be drawn from any facts in evidence.
In practice the presumption of innocence is animated by the require
ment that the government prove the charges against the defendant
Beyond a Reasonable
Doubt. This DUE PROCESS requirement, a fundamental tenet of crimina
l law, is contained in statutes and judicialopinions. The requirement
that a person suspected of a crime be presumed innocent also is ma
ndated in statutes and court opinions. Thetwo principles go together
, but they can be separated.
The Supreme Court has ruled that, under some circumstances, a cou
rt should issue jury instructions on the presumption of innocence ina
ddition to instructions on the requirement of proof beyond a reason
able doubt (Taylor v. Kentucky). A presumption of innocence instruct
ionmay be required if the jury is in danger of convicting the defenda
nt on the basis of extraneous considerations rather than the facts of
thecase.
The presumption of innocence principle supports the practice of rele
asing criminal defendants from jail prior to trial. However, the gover
nmentmay detain some criminal defendants without bail through th
e end of trial. The Eighth
Amendment to the U.S. Constitution states thatexcessive bail shall n
ot be required, but it is widely accepted that governments have the r
ight to detain through trial a defendant of a seriouscrime who is a fli
ght risk or poses a danger to the public. In such cases the presumpti
on of innocence is largely theoretical.
Aside from the related requirement of proof beyond a reasonable d
oubt, the presumption of innocence is largely symbolic. The reality is
thatno defendant would face trial unless somebody
the crime victim, the prosecutor, a police officer

believed that the defendant was guilty ofa crime. After the governm
ent has presented enough evidence to constitute Probable
Cause to believe that the defendant has committed acrime, the accu
sed need not be treated as if he or she was innocent of a crime, and
the defendant may be jailed with the approval of thecourt.
Nevertheless, the presumption of innocence is essential to the crimi
nal process. The mere mention of the phrase presumed innocent kee
psjudges and juries focused on the ultimate issue at hand in a crimin
al case: whether the prosecution has proven beyond a reasonable d
oubtthat the defendant committed the alleged acts. The people of t
he United States have rejected the alternative to a presumption of i
nnocencea presumption of guilt
as being inquisitorial and contrary to the principles of a free society.
proximate cause
n. a happening which results in an event, particularly injury due to
negligence or an intentional wrongful act. In order to prevail (win) in
a lawsuit for damages due to negligence or some other wrong, it is
essential to claim (plead) proximate cause in the complaint and to
prove in trial that the negligent act of the defendant was the
proximate cause (and not some other reason) of the damages to the
plaintiff (person filing the lawsuit). Sometimes there is an
intervening cause which comes between the original negligence of
the defendant and the injured plaintiff, which will either reduce the
amount of responsibility or, if this intervening cause is the
substantial reason for the injury, then the defendant will not be
liable at all. In criminal law, the defendant's act must have been the
proximate cause of the death of a victim to prove murder or
manslaughter.
Waiver to sue
Signing a consent form in and of itself does not waive your rights. It
is possible that the consent form does not contain all of the relevant
information that it should or it may have been signed without
adequate explanation. Even if you signed a consent form, you did
not consent to substandard medical care. A doctor`s failure to meet
the acceptable standard of care is not the same as consenting to the
normal risks of a procedure.

Proximate cause vs. contributory negligence.

In the tort-related case of LAMBERT S. RAMOS vs. C.O.L. REALTY
CORPORATION, G.R. No. 184905, August 28, 2009, the issue for
resolution by the Philippine Supreme Court was whether petitioner
could be held solidarily liable with his driver, Rodel Ilustrisimo, to
pay respondent C.O.L. Realty the amount of P51,994.80 as actual
damages suffered in a vehicular collision. It declared the following
doctrines on proximate cause and contributory negligence, thus:
1. Articles 2179 and 2185 of the Civil Code on quasi-delicts apply in
this case, viz:
Article 2179. When the plaintiffs own negligence was the
immediate and proximate cause of his injury, he cannot recover
damages. But if his negligence was only contributory, the immediate
and proximate cause of the injury being the defendants lack of due
care, the plaintiff may recover damages, but the courts shall
mitigate the damages to be awarded.
Article 2185. Unless there is proof to the contrary, it is presumed

that a person driving a motor vehicle has been negligent if at the

time of the mishap, he was violating any traffic regulation.
2. If the master is injured by the negligence of a third person and by
the concurring contributory negligence of his own servant or agent,
the latters negligence is imputed to his superior and will defeat the
superiors action against the third person, assuming of course that
the contributory negligence was the proximate cause of the injury of
which complaint is made.
3. Applying the foregoing principles of law to the instant case,
Aquilinos act of crossing Katipunan Avenue via Rajah Matanda
constitutes negligence because it was prohibited by law. Moreover,
it was the proximate cause of the accident, and thus precludes any
recovery for any damages suffered by respondent from the accident.
4. Proximate cause is defined as that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have
occurred. And more comprehensively, the proximate legal cause is
that acting first and producing the injury, either immediately or by
setting other events in motion, all constituting a natural and
continuous chain of events, each having a close causal connection
with its immediate predecessor, the final event in the chain
immediately effecting the injury as a natural and probable result of
the cause which first acted, under such circumstances that the
person responsible for the first event should, as an ordinary prudent
and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person might
probably result therefrom.
5. If Aquilino heeded the MMDA prohibition against crossing
Katipunan Avenue from Rajah Matanda, the accident would not
have happened. This specific untoward event is exactly what the
MMDA prohibition was intended for. Thus, a prudent and intelligent
person who resides within the vicinity where the accident occurred,
Aquilino had reasonable ground to expect that the accident would
be a natural and probable result if he crossed Katipunan Avenue
since such crossing is considered dangerous on account of the busy
nature of the thoroughfare and the ongoing construction of the
Katipunan-Boni Avenue underpass. It was manifest error for the
Court of Appeals to have overlooked the principle embodied in
Article 2179 of the Civil Code, that when the plaintiffs own
negligence was the immediate and proximate cause of his injury, he
cannot recover damages.
6. Hence, we find it unnecessary to delve into the issue of Rodels
contributory negligence, since it cannot overcome or defeat
Aquilinos recklessness which is the immediate and proximate cause
of the accident. Rodels contributory negligence has relevance only
in the event that Ramos seeks to recover from respondent whatever
damages or injuries he may have suffered as a result; it will have the
effect of mitigating the award of damages in his favor. In other
words, an assertion of contributory negligence in this case would
benefit only the petitioner; it could not eliminate respondents
liability for Aquilinos negligence which is the proximate result of the
accident.
Captain of the ship doctrine is the legal doctrine which holds that,
during an operation in an operating room, a surgeon of record is
[1]
liable for all actions conducted in the course of the operation. The
doctrine is a form of the "borrowed servant doctrine", in which a
party usually liable for his, her, its, or their actions is absolved of
responsibility when that "borrowed servant" is asked to do
something that is outside of the bounds of policy.

ELEMENTS OF QUASI DELICT/TORTS

1. act or omission
2. damage or injury is caused to another
3. fault or negligence is present
4. there is no pre-existing contractual relations between the parties
5. causal connection between damage done and act/omission
Respondeat Superior
[Latin, Let the master answer.] A commonlaw doctrine that makes an employer liable for the actions of an emp
loyee when the actions takeplace within the scope of employment.
The commonlaw doctrine of respondeat superior was established in seventeenthcentury England to define the legal liability of an employerfor the act
ions of an employee. The doctrine was adopted in the United States
and has been a fixture of agency law. It provides a betterchance for
an injured party to actually recover damages, because under respon
deat superior the employer is liable for the injuries caused byan emp
loyee who is working within the scope of his employment relationshi
p.The legal relationship between an employer and an employeeis cal
led agency. The employer is called the principal when engaging som
eone to act for him. The person who does the work for theemployer
is called the agent. The theory behind respondeat superior is that th
e principal controls the agent's behavior and must thenassume some
responsibility for the agent's actions.
An employee is an agent for her employer to the extent that the em
ployee is authorized to act for the employer and is partially entruste
dwith the employer's business. The employer controls, or has a right
to control, the time, place, and method of doing work. When the fac
tsshow that an employer-employee (principalagent) relationship exists, the employer can be held responsible for t
he injuries caused by theemployee in the course of employment.
In general, employee conduct that bears some relationship to the w
ork will usually be considered within the scope of employment. Theq
uestion whether an employee was acting within the scope of employ
ment at the time of the event depends on the particular facts of thec
ase. A court may consider the employee's job description or assigne
d duties, the time, place, and purpose of the employee's act, theexte
nt to which the employee's actions conformed to what she was hire
d to do, and whether such an occurrence could reasonably havebee
n expected.
When Is an Employee on the Job?
The crucial question in a respondeat superior claim is whether the e
mployee was acting within the scope of employment: Was theemplo
yee involved in some activity related to the job? In 1991 the Suprem
e Court of Virginia decided a case, Sayles v. Piccadilly Cafeterias,Inc.,
242 Va. 328, 410 S.E.2d 632, that illustrates how difficult answering t
his question can sometimes be.
The case began with a Christmas Eve accident in 1987. Charles Sayle
s was a passenger in an automobile hit by another car, driven byStep
hen Belcastro. Both men were leaving the Christmas party held on th
e premises of their company, Piccadilly Cafeterias, Inc, ofRichmond,
Virginia. Belcastro had become intoxicated at the party and, later, ex
plained that he was "fooling around" when he drove his carinto the l
eft-

hand lane of the road, lost control, and struck the other car, injuring
Sayles.
Because Belcastro was intoxicated as a result of having drinks provid
ed by their employer at a companysponsored event, Sayles suedPiccadilly under the doctrine of respon
deat superior. The jury returned a verdict in Sayles's favor and awar
ded him damages of $11.5 million.The trial court set aside the judgm
ent, however, ruling that Belcastro had been acting outside the scop
e of his employment when theaccident occurred.
On appeal, Sayles cited a Virginia appellate case, Kim v. Sportswear,
10 Va. App. 460, 393 S.E.2d (1990), from the previous year. Kimwasa
Workers'
Compensation case whose facts were similar: it involved an employe
e fatally injured while attending a Korean New Year's partysponsore
d and hosted by the employer. The appellate court had allowed reco
very of damages against the employer.
The Supreme Court of Virginia declined to follow Kim, however. The
court noted first that Kim was a workers' compensation case, govern
edby a statute that is to be "liberally construed in favor of the claima
nt." The court also made several factual distinctions: employees wer
eexpected to attend the party in the Kim case, whereas the party in
Sayles did not carry such expectations. Further, the injury in Kimtook
place on the employer's premises, in contrast to Sayles, where the c
ollision did not occur until five minutes after the drivers had left the
party. Based on these facts, the Saylescourt held that Belcastro was
not engaged in the business of serving his employer at the time of th
eaccident and therefore the employer could not be held liable.
An employee is not necessarily acting outside the scope of employm
ent merely because she does something that she should not do. Ane
mployer cannot disclaim liability simply by showing that the employ
ee had been directed not to do what she did. A forbidden act is withi
nthe scope of employment for purposes of respondeat superior if it i
s necessary to accomplish an assigned task or if it might reasonably
beexpected that an employee would perform it.
Relatively minor deviations from the acts necessary to do assigned w
ork usually will not be outside the scope of employment. Personal ac
tssuch as visiting the bathroom, smoking, or getting a cup of coffee a
re ordinarily within the scope of employment, even though they do
notdirectly entail work. When an employee substantially departs fro
m the work routine by engaging in a frolic
an activity solely for theemployee's benefit
the employee is not acting within the scope of her employment.
An employer is liable for harm done by the employee within the sco
pe of employment, whether the act was accidental or reckless. Thee
mployer is even responsible for intentional wrongs if they are commi
tted, at least in part, on the employer's behalf. For example, a billcoll
ector who commits Assault and
Battery to extract an overdue payment subjects the employer to leg
al liability.
Where the employer is someone who legally owes a duty of special c
are and protection, such as a common carrier (airplane, bus,passeng
er train), motel owner, or a hospital, the employer is usually liable to
the customer or patient even if the employee acts for purelyperson
al reasons. The theory underlying such liability is that employers sho
uld not hire dangerous people and expose the public to a riskwhile t
he employee is under the employer's supervision.

The employer may also be liable for her own actions, such as in hirin
g a diagnosed psychopath to be an armed guard. An employer,theref
ore, can be liable for her own carelessness and as a principal whose
employee is an agent.
These rules do not allow the employee to evade responsibility for ha
rm she has caused. Injured parties generally sue both the employee
andemployer, but because the employee usually is unable to afford t
o pay the amount of damages awarded in a lawsuit, the employer is
theparty who is more likely to pay.
Assumption of Risk
A defense, facts offered by a party against whom proceedings have b
een instituted to diminish a plaintiff's Cause of
Action or defeat recoveryto an action in Negligence, which entails pr
oving that the plaintiff knew of a dangerous condition and voluntaril
y exposed himself or herself to it.
Under the federal rules of Civil
Procedure, assumption of the risk is an Affirmative
Defense that the defendant in a negligence action must pleadand pr
ove. The doctrine of assumption of risk is also known as volenti non f
it injuria.
Situations that encompass assumption of the risk have been classifie
d in three broad categories. In its principal sense, assumption of the
risksignifies that the plaintiff, in advance, has consented to relieve th
e defendant of an obligation of conduct toward him or her and to ta
ke a chanceof injury from a known risk ensuing from what the defen
dant is to do or leave undone. The consequence is that the defendan
t is unburdened ofall legal duty to the plaintiff and, therefore, canno
t be held liable in negligence.
A second situation occurs when the plaintiff voluntarily enters into s
ome relation with the defendant, knowing that the defendant will n
otsafeguard the plaintiff against the risk. The plaintiff can then be vi
ewed as tacitly or implicitly consenting to the negligence, as in the c
ase ofriding in a car with knowledge that the steering apparatus is d
efective, which relieves the defendant of the duty that would ordina
rily exist.
In the third type of situation, the plaintiff, cognizant of a risk previou
sly created by the negligence of the defendant, proceeds voluntarily
toconfront it, as when he or she has been provided with an article th
at the plaintiff knows to be hazardous and continues to use after the
dangerhas been detected. If this is a voluntary choice, the plaintiff is
deemed to have accepted the situation and assented to free the def
endant of allobligations.
In all three situations, the plaintiff might be acting in a reasonable m
anner and not be negligent in the venture, because the advantages o
f his orher conduct outweigh the peril. The plaintiff's decision might
be correct, and he or she might even act with unusual circumspectio
n because heor she is cognizant of the danger that will be encounter
ed. If that is the case, the defense operates to refute the defendant's
negligence bydenying the duty of care that would invoke this liabilit
y, and the plaintiff does not recover because the defendant's conduc
t was not wrongfultoward the plaintiff.
With respect to the second and third situations, however, the plainti
ff's conduct in confronting a known risk might be in itself unreasona

ble,because the danger is disproportionate to the advantage the plai

ntiff is pursuing, as when, with other transportation available, the in
dividualchooses to ride with an intoxicated driver. If this occurs, the
plaintiff's conduct is a type of contributory negligence, an act or omi
ssion by theplaintiff that constitutes a deficiency in ordinary care, w
hich concurs with the defendant's negligence to comprise the direct
or proximate causeof injury. In such cases, the defenses of assumpti
on of risk and contributory negligence overlap.
In this area of intersection, the courts have held that the defendant
can employ either defense or both. Since ordinarily either is sufficien
t to barthe action, the defenses have been distinguished on the theo
ry that assumption of risk consists of awareness of the peril and intel
ligentsubmission to it, while contributory negligence entails some de
viation from the standard of conduct of a reasonable person, irrespe
ctive of anyremonstration or unawareness displayed by the plaintiff.
The two concepts can coexist when the plaintiff unreasonably decid
es to incur the riskor can exist independently of each other. The disti
nction, when one exists, is likely to be one between risks that were i
n fact known to theplaintiff and risks that the individual merely migh
t have discovered by the exercise of ordinary care.
Express Agreement
The parties can enter into a written agreement absolving the defend
ant from any obligation of care for the benefit of the plaintiff and lia
bility forthe consequence of conduct that would otherwise constitut
e negligence. In the ordinary case, public policy does not prevent the
parties fromcontracting in regard to whether the plaintiff will be res
ponsible for the maintenance of personal safety. A person who ente
rs into a lease orrents an animal, or enters into a variety of similar re
lations entailing free and open bargaining between the parties, can a
ssent to relieving thedefendant of the obligation to take precautions
and thereby render the defendant free from liability for negligence.
The courts have refused touphold such agreements, however, if one
party possesses a patent disadvantage in bargaining power. For exa
mple, a contract exempting anemployer from all liability for negligen
ce toward employees is void as against public policy. A carrier transp
orting cargo or passengers for hirecannot evade its public responsibil
ity in this manner, even though the agreement limits recovery to an
amount less than the probable damages.The contract has been uphe
ld, however, when it represents a realistic attempt to assess a value
as liquidated or ascertained damages inadvance, and the carrier gra
duates its rates in accordance with such value, so that complete prot
ection would be available to the plaintiff uponpaying a higher rate. T
he same principles apply to innkeepers, public warehousemen, and
other professional baileessuch as garage, parkinglot, and checkroom attendants
on the basis that the indispensable necessity for their services depriv
es the customer of all meaningful equalbargaining power.
An express agreement can relieve the defendant from liability for ne
gligence only if the plaintiff comprehends its terms. If the plaintiff is
notcognizant of the provision in his or her contract, and a reasonabl
e person in the same position would not have known of it, it is not bi
nding uponthe individual, and the agreement fails for lack of mutual
assent. The expressed terms of the agreement must apply to the par
ticularmisconduct of the defendant. Such contracts generally do not
encompass gross, willful, wanton, or reckless negligence or any cond
uct thatconstitutes an intentional TORT.

Implied Acceptance of Risk

In a majority of cases, the consent to assume the risk is implied from
the conduct of the plaintiff under the circumstances. The basis of th
edefense is not contract, but consent, and it is available in many cas
es in which no express agreement exists.
By entering voluntarily into any relationship or transaction in which t
he negligence of the defendant is evident, the plaintiff is deemed to
acceptand consent to it, to assume responsibility for personal safety,
and to unburden the defendant of the obligation. Spectators at cert
ain sportsevents assume all the known risks of injury from flying obj
ects. Plaintiffs who enter business premises as invitees and detect d
angerousconditions can be deemed to assume the risks when they c
ontinue voluntarily to encounter them.
Knowledge of Risk
The plaintiff will not normally be regarded as assuming any risk of eit
her conditions or activities of which he or she has no knowledge. Th
eplaintiff must not merely create the danger but must comprehend
and appreciate the danger itself.
The applicable standard is basically subjective in nature, tailored to t
he particular plaintiff and his or her situation, as opposed to the obje
ctivestandard of the reasonable person of ordinary prudence, which
is employed in contributory negligence. If because of age, lack of inf
ormation, orexperience, the plaintiff does not comprehend the risk e
ntailed in a known situation, the individual will not be regarded as co
nsenting to assumeit. Failure to exercise ordinary care to discover th
e danger is not encompassed within assumption of risk, but in the de
fense of contributorynegligence.
An entirely subjective standard, however, allows the plaintiff consid
erable latitude in testifying that he or she did not know or comprehe
nd therisk. To counteract the adverse effects of the application of thi
s liberal standard, courts have interjected an objective element by h
olding that aplaintiff cannot evade responsibility by alleging that he
or she did not comprehend a risk that must have been obvious.
A denial of cognizance of certain matters that are common knowled
ge in the community is not credible, unless a satisfactory explanatio
nexists. As in the case of negligence itself, there are particular risks t
hat any adult must appreciate, such as falling on ice, lifting heavy obj
ects,and driving a defective vehicle. In addition, a plaintiff situated f
or a considerable length of time in the immediate vicinity of a hazard
ous conditionis deemed to have detected and to comprehend the or
dinary risks entailed in that situation. If the person completely under
stands the risk, thefact that he or she has temporarily forgotten it do
es not provide protection.
Even when there is knowledge and appreciation of a risk, the plaintif
f might not be prohibited from recovery when the circumstances intr
oduce anew factor. The fact that the plaintiff is totally cognizant of o
ne risk, such as the speed of a vehicle, does not signify that he or she
assumesanother of which he or she is unaware, such as the intoxica
tion of the driver. Although knowledge and understanding of the risk
incurred areencompassed within the concept of assumption of the r
isk, it is possible for the plaintiff to assume risks of whose specific exi
stence he or sheis unaware
to consent to venture into unknown conditions. In a majority of insta
nces, the undertaking is express, although it can arise byimplication i

n a few cases. A guest who accepts a gratuitous ride in an automobil

e has been regarded as assuming the risk of defects in thevehicle, un
known to the driver.
Voluntary Assumption
The doctrine of assumption of risk does not bar the plaintiff from rec
overy unless the individual's decision is free and voluntary. There mu
st besome manifestation of consent to relieve the defendant of the
obligation of reasonable conduct. A risk is not viewed as assumed if i
t appearsfrom the plaintiff's words or from the circumstances, that h
e or she does not actually consent. If the plaintiff relinquishes his or
her betterjudgment upon assurances that the situation is safe or tha
t it will be remedied or upon a promise of protection, the plaintiff do
es not assumethe risk, unless the danger is so patent and so extreme
that there can be no reasonable reliance upon the assurance.
Even when the plaintiff does not protest, the risk is not assumed wh
en the conduct of the defendant has provided the individual with no
reasonable alternative, causing him or her to act under duress. Whe
n the defendant creates a peril, such as a burning building, those wh
o dashinto it to save their own property or the lives or property of ot
hers do not assume the risk when the alternative is to permit the thr
eatened injuryto occur. If, however, the danger is disproportionate t
o the value of the interest to be protected, the plaintiff might be cha
rged with contributorynegligence in regard to his or her own unreas
onable conduct. When a reasonably safe alternative exists, the plain
tiff's selection of thehazardous route is free and can constitute both
contributory negligence and assumption of risk.
The defendant has a legal duty, which he or she is not at liberty to re
fuse to perform, to exercise reasonable care for the plaintiff's safety,
sothat the plaintiff has a parallel legal right to demand that care. Th
e plaintiff does not assume the risk while using the defendant's servi
ces orfacilities, notwithstanding knowledge of the peril, when he or s
he acts reasonably, and the defendant has provided no reasonable a
lternativeother than to refrain completely from exercising the right.
A common carrier or other public utility which has negligently furnis
hed a dangerouslydefective set of steps cannot assert assumption of
risk against a patron who uses the steps as the sole convenient mea
ns of access to thecompany's premises. The same principle applies t
o a city maintaining a public roadway or sidewalk or other public are
a that the plaintiff has aright to use and premises onto which the pla
intiff has a contractual right to enter. When a reasonable alternative
is available, the plaintiff'srecalcitrance in unreasonably encountering
danger constitutes contributory negligence, as well as assumption o
f risk.

Abolition of the Defense

Numerous states have abrogated the defense of assumption of risk i
n automobile cases through the enactment of nofault insurance legislationor comparative negligence acts. The theori
es underlying its Abolition are that it serves no purpose that is not co
mpletely disposed of by theother doctrines, it increases the likelihoo
d of confusion, and it bars recovery in meritorious cases.
Assumption of risk is not a defense under state Workers'
Compensation laws or in federal EMPLOYER'S LIABILITY ACT actions. The
workers'compensation laws abolished the defense in recognition of
the severe economic pressure a threatened loss of employment exer
ted uponworkers. A worker was deemed to have assumed the risk e
ven when acting under a direct order that conveyed an explicit or im
plicit threat ofdischarge for insubordination.
The federal Employers' Liability Act (45 U.S.C.A. 51 et seq. [1908])
was intended to furnish an equitable method of compensation for ra
ilroadworkers injured within the scope of their employment. The act
provides that an employee is not deemed to have assumed the risks
ofemployment when injury or death ensued totally or partially from
the negligence of the carrier's officers, agents, or employees, or fro
m thecarrier's violation of any statute enacted for the safety of empl
oyees, where the infraction contributed to the employee's injury or
death. Thisdoctrine was abolished because of the extreme hardship i
t imposed on workers in this dangerous line of employment.
Last Clear Chance
In the law of TORTS, the doctrine that excuses or negates the effect of
the plaintiff's contributory Negligence and permits him or her toreco
ver, in particular instances, damages regardless of his or her own lac
k of ordinary care.
The rule of last clear chance operates when the plaintiff negligently
enters into an area of danger from which the person cannot extricat
ehimself or herself. The defendant has the final opportunity to preve
nt the harm that the plaintiff otherwise will suffer. The doctrine wasf
ormulated to relieve the severity of the application of the contributo
ry negligence rule against the plaintiff, which completely bars anyrec
overy if the person was at all negligent.
There are as many variations and adaptations of this doctrine as ther
e are jurisdictions that apply it. Four different categories have emerg
ed,which are classified as helpless plaintiffs, inattentive plaintiffs, ob
servant defendants, and inattentive defendants.

Violation of Statute
Helpless Plaintiffs
The plaintiff still assumes the risk where the defendant's negligence
consists of the violation of a statute. A guest who accepts a nighttim
e ridein a vehicle with inoperative lights has been regarded as conse
nting to relieve the defendant of the duty of complying with the stan
dardestablished by the statute for protection and cannot recover for
injuries. Particular statutes, however, such as child labor acts and sa
fetystatutes for the benefit of employees, safeguard the plaintiff aga
inst personal inability to protect himself or herself due to improvide
nt judgmentor incapability to resist certain pressures. Since the basic
objective of such statutes would be frustrated if the plaintiff were al
lowed to assumethe risk, it is generally held that the plaintiff cannot
do so, either expressly or impliedly.

Where the plaintiff's previous negligence has placed him or her in a

position from which the person is powerless to extricate himself orh
erself by the exercise of any ordinary care, and the defendant detect
s the danger while time remains to avoid it but fails to act, the court
shave held that the plaintiff can recover.
There must be proof that the defendant discovered the situation, ha
d the time to take action that would have saved the plaintiff, but fail
ed todo what a reasonable person would have done. In the absence
of any one of these elements, the courts deny recovery.

If the defendant who has a duty to discover the plaintiff's peril does
not do so in time to avoid injury to the plaintiff, some courts havepe
rmitted recovery under the rationale that the defendant's subseque
nt negligence is the proximate cause, or direct cause, of the injury,ra
ther than the contributory negligence of the plaintiff. The defendant
must have been able to have discovered the peril through appropria
tevigilance so as to avoid its harmful consequences to the plaintiff.
Inattentive Plaintiffs
In another group of cases, the plaintiff is not helpless but is in a posit
ion to escape injury. The person's negligence consists of failure to pa
yattention to his or her surroundings and detect his or her own peril.
If the defendant discovers the plaintiff's danger and inattentiveness,
andis then negligent, a majority of courts allows the plaintiff to reco
ver. Some courts hold that the defendant must actually recognize th
eplaintiff's danger and inattention. Most courts apply a more objecti
ve standard; they require only that the defendant discover the situat
ionand that the plaintiff's peril and inattentiveness be evident to a re
asonable person. The discovery can be proved by Circumstantial
Evidence.There is an additional essential qualification that the defen
dant can frequently, reasonably assume until the last moment that t
he plaintiff willprotect himself or herself, and the defendant has no r
eason to act until he or she has some notice to the contrary.

Application of Doctrine
There are four possible cases in which the rule of last clear chance ca
n be applied.
The typical last clear chance situation involves the helpless plaintiff a
gainst the observant defendant, and all courts that accept the doctri
newill apply it. The few courts that do not recognize the rule attain t
he same result under the doctrine of willful and wanton misconduct.
In the helpless plaintiffinattentive defendant and the inattentive plaintiffobservant defendant cases, most jurisdictions that acknowledgethe r
ule apply it.
Where the case entails the inattentive plaintiff against the inattentiv
e defendant, the justifications for the rule are eliminated, and nearly
alljurisdictions refuse to apply it.
The defendant's negligence must occur subsequent to that point in t
ime when the person discovered or should have discovered the plain
tiff'speril.
Sudden-Peril Doctrine Law & Legal Definition

If the defendant does not discover the plaintiff's situation

but could do so with appropriate vigilance
neither party can be viewed aspossessing the last clear chance. The
plaintiff is still in a position to escape, and his or her inattentiveness
persists until the juncture of theaccident, without the interval of sup
erior opportunity of the defendant. The plaintiff cannot reasonably d
emand of the defendant greater carefor his or her own protection th
an that which he or she as plaintiff would exercise for himself or her
self. Nearly all of the courts have ruledthat, in this situation, there ca
n be no recovery.
Observant Defendant
The observant defendant is one who actually sees the plaintiff in tim
e to act so as to avoid the harm and assumes that a duty exists to act
under the circumstances. The person perceives the plaintiff's helples
s or inattentive condition, but thereafter is negligent in failing to act
soas to prevent the plaintiff's harm. In most instances, the defendan
t's conduct is itself the cause of the plaintiff's danger, but this is not
arequirement so long as a duty to act exists.
The plaintiff must prove that the defendant actually saw him or her
and that a reasonable person would have known that he or she wasi
nattentive or helpless. This is determined by an objective test entaili
ng circumstantial evidence of the defendant's state of mind. Thedefe
ndant cannot assert unawareness of the plaintiff's powerlessness or
inattentiveness when that fact would have been evident to anyobser
ver.
Inattentive Defendant
The inattentive defendant is one who fails to fulfill the duty to maint
ain a surveillance in order to see the plaintiff in time to avoid the har
m,perceive the person's helpless or inattentive condition, and there
by exercise reasonable care to act in time to avoid the harm. Due to
thedefendant's negligence, however, he or she fails to see the plainti
ff in time, and injury occurs.

Sudden peril doctrine is a principle of torts law that a person

confronted with a sudden emergency is not obligated to exercise the
same degree of judgment and care as someone who is acting under
normal conditions. It exempts a person from the ordinary standard
of reasonable care if that person acted instinctively to meet a
sudden and urgent need for aid. The doctrine applies when the
sudden emergency is created in any way other than the actor's own
conduct, as where the emergency is created by the unexpected
operation of a natural force or by the innocent or wrongful act of a
third person.