Defenses Flashcards
Things considered to allow an exception to exculpatory provision
1) the party performs a service of great importance
2) party willing to perform service for any member of the public
3) party has advantage of bargaining strength
4) confronts public w/ standard adhesion contract leaving no “bargaining table”
5) signee is placed under the control of the party
Express agreements with exculpatory provisions
A P typically cannot recover when P signs into an agreement to not sue should injury occur and injury does occur
Five factors of the tunkl analysis
1) service of great importance to the public
2) willing to perform the service for any member of the public
3) possesses an advantage of bargaining strength
4) confronts public w/ standardized adhesion contract and leaves no room for patients to obtain protection against negligence
5) the signee is placed under the control of the party
Tunkl approach (balancing approach to an exculpatory provision)
The closer the P comes to an essential service and the farther P is from a recreational activity the more likely P can avoid the exculpatory language of the agreement and get out of a signed contract.
Tunkl v. Regents
Example of determining whether to enforce exculpatory agreement
Tunkl signed agreement w/ exculpatory provision upon entry to a non-profit institute for a serious illness. Personal injuries resulted.
1) hospital provided essential services to public members in need of a particular skill
2) hospital willing to perform on members of public who have a qualifying condition
3) insisting patients accept provision for treatment is a bargaining advantage
4) there was no bargaining table for patients to debate the terms i.e. public confronted w/ standardized contract w/ no provision for signee to obtain protection against negligence
5) patient signing contract put himself in complete control of the hospital
Signing of an exculpatory agreement (generally)
When a person signs an exculpatory agreement for an activity that is not essential but is recreational it is more likely that the person will have to pay attention and abide by the language
HOWEVER
Consent to a risk is not consent to an enhanced risk
Comparative fault
Both D and P are liable and damages are granted accordingly
E.g. A injured persons obliged to act reasonably to keep injuries from getting worse i.e. seek and comply w/ medical treatment. If damages are increased on an unreasonable failure to seek treatment, then the P is not entitled to extra in damages
Primary Implied assumption of risk
There is an implied assumption of risk when the danger is open and obvious.
May a P establish a prima facie case when there is an implied assumption of risk?
Not when it’s a primary assumption of risk because the P can’t establish a breach of duty for liability
Is a defendant liable when there is a primary implied assumption of risk?
No, because the D did not breach of duty when the danger is open and obvious
Secondary assumption of risk
D has breached a duty of care but P has knowingly and unreasonably encountered the risks
There is culpable (unreasonable) conduct by the injured party
Assumption of risks
Affirmative defenses because they don’t always preclude D’s liability
1) primary - precludes
2) secondary - doesn’t preclude
Affirmative defense
No denial that the act was committed
Types of affirmative defense
1) non- defenses
2) self-defense
3) defense of property
4) necessity
5) consent
6) defense of others
