midterm_review_answers_06-1

midterm_review_answers_06-1 - AEM 320 NBA 560 Business Law...

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AEM 320; NBA 560 Business Law I Fall, 2006 Answers to Midterm Review Questions Torts 1. The issue is whether the race sponsor is liable for negligence. The student should get NO CREDIT for discussing the liability of the other defendants UNLESS that analysis is relevant to the sponsor’s liability. Is there a duty of care owed by the sponsor to the participants ? I tried to make it clear in the wording of the facts that the person who put up the money DID NOT run the race so whether the sponsor owes a duty should be discussed. If they assume away this issue because they confuse the sponsor with the organizer, they don’t get an A. If they do a great job with the rest of it, they can still salvage an A- but probably a B+ is more likely. In analyzing duty and breach of the duty, they will probably refer to 8 factors discussed in class [and in TakeNote] – is there foreseeability, relationship between defendant’s conduct and injury, policy of preventing future harm, burden on defendant, consequences to the rest of us of not burdening defendant, moral blame, etc. I don’t really care where they come out on this as long as they see that whether a duty exists is not necessarily always related only to whether someone makes money on a venture. And they don’t have to mention every one of the factors to have a complete discussion. Is the race sponsor’s breach of duty and conduct the actual and proximate cause of the injury ? Given the facts, causation is fairly clear – poor weather/track conditions plus failure to set up the safety features correctly plus excessive speed led to the accident. Is Paul’s excessive speed a supervening cause that “cuts off” the sponsor’s liability ? I don’t have a set answer for this, either, but I hope to see a discussion. I made clear in class that there are three elements to consider in deciding whether an intervening event is a supervening [or superseding] cause: 1. Is the act independent of the defendant’s act? 2. Is the act adequate by itself to cause the injury? 3. Is the act NOT reasonably foreseeable? I personally don’t think that having a race participant go too fast for conditions somehow interrupts the chain of causation – I would argue that it is neither independent nor unforeseeable. As far as defenses – the defendant could argue that Paul has assumed the risk of injury by knowingly participating in a dangerous activity like dirt bike racing. You can also argue that Paul was comparatively negligent by driving too fast. Again, there isn’t enough information given to expect a certain answer. It is important the student see that assumption of the risk can
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only be applied when you can argue the plaintiff knew of and understood the danger but acted anyway.
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