Defenses

Question 1

Assumption of Risk

Answer 1

When the P knows about the risk, and he accepts the risk, he relieves ∆ of any obligation of duty of care.

Rule: Where a plaintiff is sufficiently aware of a danger to complain to his manager, and then continues to work, he can be said to have assumed the risk of injury.

Question 2

Murphy v. Steeplechase Amusement Co.

Answer 2

Cardozo holds that the foreseeability seems quite clear that the risk is within the harm.

Question 3

Secondary Assumption of Risk

Answer 3

Rule: Even though the defendant has breached a duty of care, the plaintiff assumes the risk when he recognizes and perceives the danger yet proceeds in the name of the risk.

Meistrich v. Casino Area- Plaintiff assumed the risk of injury when he did not leave the ice arena after realizing the danger. The importance is the point in time that the plaintiff realized the risk yet continued on ice.

Question 4

Contractual Obligation

Answer 4

Rule: Where two parties dispute the existence of an arbitration agreement, and one party did not explain the contract to the wronged party, the agreement is not binding.

Plaintiff suffered cerebral injury after taking oral contraceptive where she was force d to sign arbitration agreement in exchange for treatment.

We don’t want to allow for people to contract out tort liability where there is a great public interest—maybe med. services shouldn’t be waived. Torts is going to be very wary of contracts that do not completely revealed to a person.

Vulnerable population

1. Pregnant
2. Rural areas
3. Women’s health