Defenses to Negligence: Assumption of Risk

Question 1

Express assumption of risk:

Can a hospital Remove their risk for negligence through assumption of risk by the P?

Answer 1

As a matter of public policy, when one is compelled to assume a risk to obtain essential medical care, the assumption is not voluntary. So hospitals and other medical care cannot expressly limit or remove their liability because others do not have an option as to seeking help or not. Reasons: Hospitals have a duty to the public; Their services are not optional; Unfair contract negotiations.

Question 2

Express assumption of risk:

What does a release exculpate the D from?

Answer 2

A release only exculpates D for dangers inherent in the activity. If the injury resulted from unreasonable dangers not inherent in the activity, these are not within the scope of the consent clause.

Question 3

Express assumption of risk:

Factors that need to be considered to determine the validity of the release:

Answer 3

1) Existence of a duty to the public
2) nature of services performed (is the service voluntary or essential?)
3) Fairness in contract negotiations.
4) Clear and Unambiguous language.

Question 4

Express assumption of risk:

What are releases in sports and risky activities held to?

Answer 4

1) Validity: Usually a question of law for a court to decide.
2) Enforceability: A release only exculpates D for dangers inherent in the activity and if the injury resulted from dangers not inherent in the activity, these are not within the scope of the release and the release is unenforceable.

Question 5

Implied assumption of risk:

Assumption of risk in Sports or Risky Activities-

Answer 5

P assumes all known, apparent, and foreseeable risks of a sport or activity but not the willful, wanton, reckless, or intentional acts.