Assumption of Risk Flashcards
Lamson v. American Axe and tool
i. Facts
1) P, an employee of the D was charged with painting hatchets and hanging them to dry. The old hanging racks worked just fine, but when the company got new ones, every time machinery would cause them to shake, a hatchet or two would fall off. The employee alerted his superior, but he told him to either live with it or quit. He stayed and got hit in the head by a falling hatchet.
ii. Issue:
1) By continuing to work under hazardous conditions to which he objected, did the P assume the risk of the hazard he identified?
iii. Holding
1) Holmes
a) P barred from recovery because he maintained his employment and its associated risks. The P perfectly understood what was likely to happen. The likelihood of the injury occurring was not dependent on the D doing anything NEG.
iv. Notes
1) What is assumption of risk?
a) Knowledge of the risk
b) Free choice
2) Three Deadly Sisters
a) Fellow servant rule
b) Contributory NEG
c) Assumption of risk
3) Postman delivering mail in stormy conditions, falls and his hurt. Did he assume the risk?
g. Murphy v. Steeplechase amusement co.
i. Facts
1) P a park goer steps onto “the Flopper” the conveyer belt ride, when he did so he was jolted by something, and he fell and broke his knee cap. The ride travels much faster than an escalator 1.5 MPH v. 7 Mph
ii. Issues
1) In choosing to participate on the ride, did the P assume the risks including the injury he suffered?
iii. Holding
1) The P assumed the risk that was invited and foreseen. This is a case of VOLENTI NON FIT INJURIA (one who takes part in such a a sport accepts the dangers that inhere provided they are obvious and necessary). The case would be different if the dangers were obscure or unobserved and if evidence suggest the ride was too dangerous, but in our case a fall on this ride was very foreseeable.
iv. Notes
1) Did he meet the elements of assumption of risk
a) He had know knowledge he could be hurt
b) He had the choice to ride the flopper
2) What about policy reasons? Cardozo says if the P showed that the ride was dangerous to the public, it could have gotten rid of the assumption of risk.
3) What if the risk isn’t obvious? What risk?
a) The risk of falling onto an exposed wooden surface?
b) The risk of the electricity causing a jolt to the ride?
4) Which of these two risks would more favor the P? The P should have argued that the NEG was not due to the fact that the P could have fallen, but rather that it was not adequately padded. It was inherent in the nature of the ride for people to fall. However it was not in the nature of the ride to not be padded.
5) TL thinks this was a good Res Ipsa Case
h. Meistrich v. Casino arena attractions
i. Facts
1) P injured when he slipped and fell on the D’s ice-skating rink, which was maintained at too cold of a temperature
ii. Holding
1) Jury could find NEG on both parties,
2) Primary assumption of risk
a) Alternative expression of D’s lack of NEG;
i) If there is no duty or no breach of duty, the case is over
ii) The D owes no duty to protect the plaintiff
iii) If there is no primary assumption of risk the case is over
3) Secondary assumption of risk
a) D was NEG
i) D affirmative defense to establish breach of duty
A. Sometimes it is reasonable to assume some risk and sometimes it is not
B. Reduces the doctrine to contributory NEG
4) Who assumes the risk iii. Notes 1) Teacher takes 10 kids to the ice rink for a holiday fun day. She discovers the ice was too hard and slippery. Should she stay or leave? Complete a BPL analysis? a) The amount of money spent comes into play, as it was non-refundable. 2) Is the burden of her leaving and not getting her money back less than the likely hood of the occurrence of someone getting hurt times the damages of getting hurt? If the burden is more than the PL then the individual does not have free choice
k. Maisonave v. The Newark Bears
i. Holding
1) P was a spectator hit by a foul ball while purchasing a hot dog pretty close to the field, the D is held liable for NEG, because even though the P was at a baseball game, the cart was in operation by the team and placed close to the field without bearing any reasonable version of safety. ;
ii. Notes
1) Tommy gets hit by baseball at game does he recover?
a) No, he assumed the risk and knew the risks
2) Tommy holds up his baby to take the hit, does he recover?
a) Yes, no knowledge or freedom.
b) But you don’t want to hold the baseball net liable, you should apply the analysis of primary assumption of risk, does the ball park have a responsibility to protect the baby? No duty, therefore the case is over.
l. Maddox v. NYC
i. Facts
1) P was a professional outfield for the NY Yankees, while running in the out field he slipped in the grass because of muddy conditions. He suffered a bad knee injury ending his career
ii. Holding
1) Summary judgement for the D
2) P continued to play in the game in light of the conditions and therefore it constitutive an assumption of risk as a matter of law.
3) The assumption of risk doctrine requires
a) Knowledge of injury-causing defect; and
b) Appreciation of the resultant risk
4) Assessed against the sill and experience of particular P
iii. Notes
m. Marshall v. Ranne
i. Facts
1) D mad boar bit the P while the P was walking from his house to the car. The P complained to the D about the boars mad condition, and even though he was a good marksman, he didn’t shoot the boar.
ii. Holding
1) Trial court
a) P is Contributorily NEG in not shooting the boar when he had the chance
2) Supreme court
a) CONNEG is not a defense in strict liability cases
i) Having mad/dangerous animals is a strict liability issue. (fletcher v. Rylands)
b) The P was not free to make decisions other than between two evils, stay in the house or get bitten.
iii. Notes
1) Feels a social obligation not to injure the boar because it belongs to his neighbor.
p. Dalury v. SKI ltd
i. Facts
1) Owners of ski resort made customers sign a waiver of liability for injury that occurs while on the premises. P is injured when he runs into a metal pole for a queue line.
ii. Holding
1) As a matter of public policy, a commercial business that opens itself to the public may generally not require invitees to sign a waiver releasing the business from liability for negligence.
iii. Notes
1) Exculpatory clauses
a) Is it ethical to include a clause that is otherwise not
q. Tunkl v. U of Cal.
i. Holding
1) Six factors to invalidate a liability agreement
a) Concerns a business generally suitable for public admin
b) Performs a service of great public importance
c) Holds self out as willing to perform service for any member of the public
d) Party invoking exculpation possesses decisively greater bargaining power
e) No room for negotiation
f) Purchaser placed under control of seller subject to the latter’s carelessness
Chepkevich v. Hidden Valley Resort
i. Holding
1) P who was injured on a single speed ski lift while getting on, was not held in assumption of risk, because while she signed a waiver, the injuries sustained getting on or off a lift are not inherent in skiing.
ii. Notes
Bell v. Dean
i. Facts
1) P making slow S turns when they ran into another skier
ii. Holding
1) Nothing in the liability clauses, precluded its application to patrons.
iii. Notes
t. Zivich v. Mentor Soccer Club
i. Holding
1) No liability for volunteer member organizations
2) Application of the Tunkl Test is clear
ii. Notes
1) Exam Question
a) Which of the following exculpatory clauses is likely to be upheld
i) Hospital
ii) School
iii) Little league
u. Obstetrics & Gynecologists v. Pepper
i. Facts
1) P suffered a cerebral incident 9 months before securing oral contraceptive from the D. The D required the P to sign an arbitration agreement document before receiving care. Contraceptives should not have been used, as indicated by the P’s medical history.
Notes
