negligence

Vehicles – Foreseeability and Risk Acceptance

Foreseeability and Risk Acceptance

The risk of crashing into a bicycle on a trail is generally regarded as a foreseeable and customary risk. It is part of the package of risks inherent in the recreational activity of bicycling.

The limitation of liability for negligence during recreational activities is based on the notion that some risks are so much a part of an activity that the risks cannot be eliminated. By choosing to participate in such an activity, the participant implicitly accepts these risks. For a fuller treatment, see Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St. 3d 427, 431, 659 N.E. 2d 1232.

The exception is if the plaintiff can show that the other participant’s actions were either reckless or intentional.

The definition usually accepted by the Ohio courts can be found most authoritatively in Sections 500 and 8A of the Restatements of Torts 2d. This rule has its genesis in the doctrine of primary assumption of risk. It’s based on the rationale that a participant to a sporting event or recreational activity accepts the risks associated with the activity.

Understanding the Dynamics of Motorcycles For a Stronger Case

Studies underscore that the number of motorcyclists in the US has grown over the past […]

Negligence Principles

Negligence Per Se

Proof of duty, as required to support a claim of negligence, may be established by:

Common law
Legislative enactment
Particular facts and circumstances of the case (in the absence of legislative enactment or judicial decision)

The Nuance of Negligence Per Se

Not every violation of a provision of law or ordinance constitutes negligence per se. If a legislative enactment commands or prohibits the doing of a specific act, a violation generally will constitute negligence per se. However, where a legislative enactment for the public safety sets forth a rule of conduct in general and abstract terms, liability will be determined by the due care test. The application of this revolves around how a reasonably prudent person would have managed under the same circumstances.

Negligence per se has no application where the duties are so vague that determination of reasonableness is up to jury ascertainment. This nuance sometimes gets lost in the heat of argumentation. Negligence must be found by the jury from the facts, conditions, and circumstances disclosed by the evidence. Negligence per se is a violation of a specific requirement of law or ordinance.

Negligence Per Se and Comparative Negligence

Even if there is a finding of negligence per se, a defendant may still show […]

Litigation Strategies

Establishing the Prima Facie Case

Establishing a prima facie case of negligence is not a sufficient basis for summary judgment.

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