Defenses to Negligent Torts - Assumption of Risk

Question 1

Stelluti v. Casapenn Enterprises, LLC

Exculpatory Clauses

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Answer 1

Parties with equal bargaining power can form a contract which excludes one party from liability of harm to the other as long as the harm is not caused by the party’s intentional conduct, recklessness or gross negligence. Plaintiff got hurt on some gym equipment and couldn’t recover because she signed an agreement saying she would discharge all her claims against the gym. The court said this was ok because the parties had equal bargaining power. But did they? The dissent said the release unfairly absolves the company of liability even though the company was in the best position to know the risks and prevent them.

Question 2

Tunkl v. Regents of University of California

Exculpatory Clauses Against Public Policy

Answer 2

A business that provides an essential service for the public good cannot make enforceable contracts absolving the business of liability. There is no equal bargaining power. Plaintiff was admitted to the hospital on the condition that he sign a release absolving hospital employees from liability for wrongful or negligent acts. He was injured during treatment. The court said the release was invalid based on public policy.

Question 3

The Restatement View of Waivers and Releases

Answer 3

A valid contractual limit of liability of one party bars the other party from recovery. In this case, a factfinder cannot assign a percentage of responsibility to any party.

Question 4

Adult Recreational Activities

Pearce v. Utah Athletic Foundation

Answer 4

Pre-injury releases of ordinary negligence claims for adult recreational activities are usually upheld as long as they are conspicuous, clear and unambiguous.

Question 5

Express Assumption of Risk Consent

Answer 5

The theory of assumption of the risk is that the plaintiff has voluntarily consented to a known risk.

Question 6

Risks Not Inherent

Moore v. Hartley Motors

Answer 6

A waiver and release for liability resulting from inherent risks will not protect a defendant against liability for unrelated dangers that the defendant could have removed or mitigated. Plaintiff took an ATV safety course and was thrown from her ATV when it hit a rock concealed by tall grass. The court said the defendant had a duty to provide a safe course and could have removed the rock.

Question 7

Express Assumption of Risk Statutes

Answer 7

Some statutes limit the ability of parties to limit liability by contract.

Question 8

Tunkl Factors for Public Policy for Holding Exculpatory Clauses Invalid

Answer 8

• The business is one suited for public regulation
• The party seeking the waiver provides a service that is a practical necessity for the public
• The party hold itself as willing to provide its service to any member of the public
• The party seeking the release has superior bargaining power
• The party demands each customer signs the release and does not offer the option of paying additional, reasonable fees for protection against negligence
• The person or his property is controlled by the seller and therefore subject to the risk of the seller being careless

Question 9

Assumption of Risk Reckless or Intentional

Answer 9

Most courts say waivers or releases of liability are void based on public policy if the harm was cause by reckless or intentional behavior

Question 10

Parents’ Waiver of Children’s Claims

Answer 10

Most courts hold that a parent’s pre-injury of a child’s claim is invalid. Those that don’t determine the validity of waivers on a case-by-case basis.

Question 11

Implied Assumption of Risk

Simmons v. Porter

Answer 11

The adoption of comparative fault should abolish the assumption of risk doctrine. Plaintiff got sprayed with gas, bumped into a lamp and was severely burned. He sued his employer for not providing him with a safe working environment.

Question 12

Traditional Implied Assumption of Risk

Answer 12

A plaintiff’s claim was completely barred when a plaintiff knew and understood the risk being incurred, and made a free and voluntary choice to incur it. Only a few states still use this rule

Question 13

Effect of Abolishing Implied Assumption of Risk

Answer 13

Cases that were resolved by implied assumption of risk now can be resolved by

• Applying comparative fault rules
• Holding that the defendant had no duty of care or
• Holding that the defendant did not breach his duty of care

Question 14

Gregory v. Cott

Assumption of Risk

Answer 14

In California, an employee hired to work in a dangerous situation cannot sue her employer for injuries caused by the risk of working in those conditions. Plaintiff was hired to take care of a woman with Alzheimer’s and do housework. While plaintiff was doing dishes, the woman bumped into her and caused her to cut herself. Plaintiff had experience and knew people with Alzheimer’s can be dangerous, and she impliedly took that risk on when she took the job.

Question 15

Primary Implied Assumption of Risk

Answer 15

It completely bar to recovery and applies when, as a matter of law, the defendant has no duty to guard against a particular risk

Question 16

Secondary Implied Assumption of Risk

Answer 16

It applies when the defendant owes a duty, but the plaintiff knowingly encountered a risk of injury caused by the defendants breach. Liability is decided by comparative fault.

Question 17

Decisions about Primary and Secondary Assumption of Risk

Answer 17

Most courts that use primary and secondary assumption of risk say that the court, not the jury, should decide what risks are inherent to a particular activity.

Question 18

Roundtree v. Boise Baseball, LLC

Comparative Negligence

Answer 18

A court should not use the baseball rule if there is not enough data to determine the appropriate scope and extent of the rule. A court should not maintain assumption of risk rules when it has adopted comparative negligence. Plaintiff got hit by a foul ball and lost an eye while sitting in an area not covered by protective netting.

Question 19

The Baseball Rule

Answer 19

Stadium owners must provide screened seats for as many spectators that they reasonably expect to call for them on any ordinary occasion. Or stadium owners must provide a choice of screened or unscreened seats. Depends on the jurisdiction.

Question 20

Coomer v. Kansas City Royals Baseball Corps

Non-Inherent Risks

Answer 20

Being hit by a hotdog isn’t an inherent risk of attending a Royals baseball game because removing the hotdog launch would not fundamentally alter the game. Plaintiff was hit in the eye during the hotdog launch. Royals owed a duty to its spectators to conduct the hotdog launch with reasonable care and can be held liable for harm caused by the hotdog launch.

Question 21

Risk to Spectators

Answer 21

Primary assumption of risk or other limited duty rules, like the baseball rule, are often applied to bar claims by spectators injured by risks inherent to the game. However, a spectator may recover if the defendant increases the inherent risks of watching the game.

Question 22

Implied Assumption of Risks for Players

Answer 22

Players impliedly assume the inherent risks of the game and cannot sue if they are harmed by them. In other words, the defendant either does not owe a duty to protect against inherent risks or does not breach his duty by failing to protect a player from them.

Question 23

Sunday v. Stratton Corp

Non-Inherent Risks

Answer 23

A plaintiff does not assume the risk when it is not inherent to the sport. Plaintiff was skiing on a smooth, well-groomed slope when he ran into a bush concealed by snow. The accident caused him to become a quadriplegic. The defendant had a duty to keep the slope free from unseen hazards.

Question 24

Avila v. Citrus Community College District

Injury to Co-Players

Answer 24

Primary assumption of risks applies when a player is injured by a co-player and the action is one that is normally part of playing the game. Plaintiff was hit in the head by a beanball and the court said he assumed that risk.