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CONTRIBUTORY NEGLIGENCE 1 (1931)

handle is hein.ali/relwtrts0217 and id is 1 raw text is: 9ORtRIITORY UZOLI(WJOE T propose to divide Contributory Fault into two typosa One, where the onduot to deliberate under such circumxstanoes that the actor realized or should realize Cat it ri-volves risk to himself, (This is often called voluntary assumption of risk.) oong4, eontributory negligence, properly so-called, which deals with conduct uhioh is unintentional or Pt least where the element involving danger to the actor is not present ko his mind, The first type of contrtbutory facIt closely approximates conduct which Id with the knowledge that it wil) oertainly bring on harm to the actor. 'It is V the olaintiff reckless misconduct. This latter is sufficently analogous to acts ide for the nurpose of causing harm to others to make the uroblem of liability depend r' n h hetor there is auch utility in the conduct as to justify the risk of injury to ,'-pers. This problm is obviously closely akin if not substantially identical with problem of detenining whether there is or is not intention to Inflict harm. The ; in difference betw,,een the two lies in this, In the one, the harm being intended, -,iere is a certainty that the conduct will cause it. In the second case, there is .,Jrely a probability of varying extent that the conduct will cause harm to one's self r others. It seers reasonable to permit an act containing a lees, quantta o rm to be done for the furthorance of a particular Interest of the actor than to permit ai act rpr such purpose which is certain to cause4harm, In a word in determining between the two interests involved, the interest of the actor in aoomplishing a result to which his londuct Is essential and the interest of hiftelf or others in the security of nerson or ',roporty, the fact that the harm is merely probable and not certain is amn important difference. With this varient, the problem seems substantially the same as that pre- sented in determining the existence of a privilege to intentionly inflict harm. The second type of contributory fault deals with those acts which are done unintentionally -4-if done intentionally, are done without kiowledge of their dangerous oharacter. The fault, if any, may lie in lack of attention to one's surroundings and lack of competence to cope with dangers as they arise, even though -this incompetence may pot be so great as to make the incompetent person aware of the danger in whloh he is en-

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