Reminder: Wednesday’s class starts at 9:10am

Assumption of Risk

Hanks v. Powder Ridge Restaurant Corp.

“Snowtubing Waiver”

Two Common Issues

1. Was the contract clear enough about releasing the defendant from liability?
2. Will the court enforce contract?

• I fully assume all risks associated with [s]nowtubing, even if due to the NEGLIGENCE of [the defendants]
• I … agree I will defend, indemnify and hold harmless [the defendants] … from any and all claims, suits or demands … including claims of NEGLIGENCE on the part of [the defendants]
• I will not sue [the defendants] … for money damages for personal injury … even if due to the NEGLIGENCE of [the defendants]

Will the court enforce contract?

Various legal tests for determining if liability waiver is against public policy:

- Liability waivers are unenforceable

- Totality of the circumstances

- Six factors from Tunkl

Tunkl factors

1. Business of a type generally thought suitable for public regulation.
2. Defendant performs a service of great importance to the public (often a matter of practical necessity for some members of the public)
3. Defendant willing to perform this service for any member of the public
4. Defendant has bargaining advantage
5. Standardized adhesion contract of exculpation
6. Plaintiff placed under the control of the defendant, subject to the risk of carelessness by the seller or his agents.

Tort Law Values

Tort Law Values

Murphy v. Steeplechase

“The Flopper”

volenti non fit injuria

volenti non fit injuria

“to one who is willing, no wrong is done”

Cardozo’s counter-examples

1. “Obscure and unobserved” dangers
2. Too many accidents

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Knight v. Jewett

“Touch Football Injuries”

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Explicit assumption of risk

Implicit assumption of risk

In-Class Exercise

Plaintiffs:

• Emily
• Lynn
• Tito
• Tatiana

Fletcher v. Rylands

Rylands v. Fletcher

Liability applies for:

PWFOPBOHL&C&KTALDMIIE

Liability applies for:

PWFOPBOHL&C&KTALDMIIE

A person who for his own purpose brings onto his land and collects and keeps there anything likely to do mischief if it escapes

Limits on Strict Liability

Fletcher v. Rylands

— PWFOPBOHL&C&KTALDMIIE

Rylands v. Fletcher

— PWFOPBOHL&C&KTA “non-natural” and LDMIIE

First Restatement

— “ultrahazardous activity”

Second Restatement

— “abnormally dangerous activity”

Indiana Harbor Belt v. American Cyanamid

Indiana Harbor Belt v. American Cyanamid

Strict liability applies for behavior that is:

- Very risky and that risk cannot be eliminated at reasonable cost

AND

- Not susceptible to due care analysis

Restatement Definitions

“In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.” Restatement (Second) of Torts § 520 (1977).

“An activity is abnormally dangerous if: (1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and (2) the activity is not one of common usage.” Restatement (Third) Torts: Liability for Physical and Emotional Harm § 20 (2010).

Tort law is the law of

negligence.

Strict liability is the law of tort law when negligence fails.

MacPherson v. Buick Motor Co.

MacPherson v. Buick Motor Co.

Escola v. Coca Cola

Rationale

Power dynamics

Cost spreading / insurance

Deterrence

Extensions of Liability

Plaintiffs: Not just consumers but bystanders.

Defendants: Not just manufacturers but retailers.

Defect Requirement

Barker v. Lull Engineering

Two tests:

1. Consumer expectations
2. Excessive preventable danger

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Soule v. General Motors

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When does the consumer expectations test apply?

Not at

all clear!

It depends upon the “everyday experience of the product’s users”

1) Consumer expectations

2) Excessive preventable danger

“Reasonable Alternative Design”