Assumption of Risk

Question 1

What is it?

Answer 1

• An assumption of risk argument stating that the plaintiff assumed the risk in a particular situation is not an argument related to consent.
  -Consent is part of an intentional torts claim’s analysis, whereas assumption of risk is part of a negligence claim’s analysis.

Question 2

Express assumption of Risk / Hojnowski v. Vans

Answer 2

• Generally, a parent may not contractually waive liability for injury on behalf of a minor child.
• Courts will generally not enforce releases of liability against children, because of public policy weighting in favor of protecting them. Exculpatory agreements discourage reasonable care.
• Commercial Recreational Facilities (such as the D in this case) have traditionally owed a duty of care to their guests, because they are capable of incorporating the costs of preventing injury.

Question 3

Implied Primary assumption of Risk / Bennett v. Hidden Valley Golf and Ski

Answer 3

• A plaintiff need not have actual knowledge of the risk she assumes, for a defendant to raise an assumption-of-risk defense.
• Core Issue: Whether the snow bumps and falls are caused by the resort’s own negligence.
• Plaintiff impliedly consented to the activity’s risks (inherent risks of the sport-skiing), therefore plaintiff need not have had actual knowledge of the risks of the activity to have impliedly consented.
• Note: Likely to be applicable in situations involving voluntary engagement of plaintiffs in sports activities.
• Inherent risks are not those created by a defendant’s negligence but rather by the nature of the activity itself.

Question 4

Implied Secondary assumption of Risk / Kane v. Landscape Structures

Answer 4

If defendant shows that,
1) Plaintiff had actual knowledge of the danger
2) Plaintiff understood and appreciated the risk associated with the danger
3) Plaintiff voluntarily exposed himself to the danger
Then,
– Defendant establishes assumption of risk from the plaintiff’s conduct, barring recovery of plaintiff’s damages.
- The specific danger the plaintiff must be aware of is the specific particular risk of harm associated with the activity or condition that proximately caused injury.

Question 5

Percentage-fault assignments to non-party tortfeasors / Brown v. Keill:

Answer 5

When interpreting comparative language statutes and determine the legislative intent, courts are barred from interpreting just one isolated part of the statute.
-As a matter of fairness, the Kansas legislature intended to shift from pure contributory negligence and joint-several liability to a degree-of-fault system.
-The individual liability of each defendant for payment of damages will be based on proportionate fault (comparative negligence).
-The individual liability was imposed to parties to the occurrence which gave rise to the injuries, even though one or more parties cannot be joint as a litigant or be held legally responsible for his proportionate fault.

Question 6

Partial settlements / McDermott, Inc. v. AmClyde:

Answer 6

• When a plaintiff reaches a settlement with one (or more) of multiple defendants, the non-settling defendants are precluded to pay less than their proportionate share.
  -The proportionate share to be payed by non-settling defendants needs to be calculated based on the total dollar-amount for damages, minus the amount recovered with the settlement