Evidence regarding her husbands drug and alcohol

evidence regarding her husband’s drug and alcohol habit, and also the jury instruction of
comparative negligence
•
Issue: Whether the plaintiff was comparatively negligent with the malpractice because of his drunk driving
NO
• Reasoning
o Negligent behavior doesn’t mean that you should have negligent medical treatment afterwards
o Negligent medical treatment was unrelated
o Plaintiff’s history of drug abuse is only relevant for the determination of damages for the wife for
loss of future earnings
CLASS NOTES
• if the a plaintiffs superseding act is foreseeable, then both the defendants would be held jointly and
severally liable, HOWEVER if the driver were one of the defendants, then the driver would have some
liability. Since it’s the plaintiff, as in Fritts, there is no liability for the driver
• the cause of the injuries in Fritts are jointly necessary and sufficient causes of the accident, but the actual
cause is not as important here, and the duty needs to be stoked and pushed toward strict liability
Assumption of Risk
Dalury v. S K I Ltd.
Sup Ct of Vermont
• Facts
o Plaintiff was hurt skiing and sued for negligence because he skied into pole, however he signed an
exculpatory waiver which absolved the defendant from liability
o Plaintiff argued that it was unenforceable
•
Issue: Was this exculpatory waiver unenforceable? YES
• Reasoning
o Restatement § 496B Exculpatory agreements can be unenforceable if:
 Freely and fairly made
 between parties that are in an equal bargaining position
 no social interest (public policy) with which it interferes
o Here public policy makes this contract unenforceable
o It’s best to use a modified Trunkl test, by looking at the whether is it as business invitee situation
with the defendant as the best cost avoider, there is a general duty that cannot be contracted
away
o You may not contract away your business’ negligence, negligence is not an “inherent risk” that is a
natural and probable consequence
o It is one thing to say, as in the statute, that people should play sports at their own risk because
that is only an inherent natural or probable risk
o This should be decided on a case by case basis
CLASS NOTES

• Should cases like this turn solely on what ‘magic word’ were used, because the waiver is not clear? The
court doesn’t do that in Dalury because the language is clear, but still the waiver is unenforceable
because it is against public policy
• Here the plaintiff is a business invitee, so there is a standard reasonable care under the circumstances
duty (Brown v. Kendall)
• The court recognizes the ‘openness to the public aspect” of the Tunkl, the court LEAPS from Tunkl (a
hospital) to any public facility
• The court does this because the business is the BEST COST AVOIDER
• In some jurisdictions, courts do not enforce waivers, but to some degree most do
Murphy v. Steeplechase Amusement Co.