(1) Did the Πin fact take on such a risk? (2) Did she do so knowingly and voluntarily? (3) Are there policy reasons for courts to decline to enforce such assumptions of risk? 1. Express Assumption of Risk • If Π explicitly agrees with ∆ , in advance of any harm, that Π will not hold ∆ liable for certain harm, Π is said to have expressly assumed the risk of the harm • Release is actually written down or spoken, taking the form of a K • Question posed is whether the Π has agreed in advance to take on all responsibility for injuries caused by careless conduct on the part of the ∆ • Common carriers, innkeepers can never give up a right to be sued CASE: Jones v. Dressel (Colo. 1981) Jones signed a K with Free Flight, which included a covenant not to sue and a clause exempting FF from liability HELD: K valid An exculpatory agreement, which attempts to insulate a party from liability from his own negligence, must be closely scrutinized, and will not provide a shield against a claim for willful and wanton negligence 4 factors in determining whether an exculpatory agreement is valid 1. The existence of a duty to the public 2.The nature of the service provided (provide essential public service?) 3. Whether the K was fairly entered into 4. Whether the intention of the parties is expressed in clear and unambiguous language CASE: Dalbury v. S-K-I, Ltd. 29
Π was seriously injured when he collided with a metal pole, but had signed a form and a photo ID releasing the ski area from liability HELD: The exculpatory agreements ∆ s require skiers to sign, releasing ∆ s from all liability resulting from negligence, are void as contrary to public policy Restatement states that an exculpatory agreement should be upheld if it is (1) freely and fairly made, (2) between parties who are in equal bargaining position, and (3) there is no social interest with which it interferes Determination of what constitutes public interest made considering the totality of the circumstances of any given case against the backdrop of current societal expectations A legitimate public interest arises when a substantial # of such sales take place as a result of the seller’s general invitation to the public to utilize the facilities and services in question Policy rationale to place responsibility for maintenance of the land on those who own or control it , with the ultimate goal of keeping accidents to the minimum level possible ∆ s have the expertise and opportunity to foresee and control hazards and to guard against the negligence of their agents and employees 2. Implied Assumption of Risk • Even if Π never makes an actual agreement with ∆ whereby Π assumes the risk, Π may be held to have assumed certain risks by her conduct • For ∆ to establish implied assumption, he must show that Π ’s actions demonstrated that Π (1) knew of the risk in question ; and (2) voluntarily consented to bear that risk herself • Makes a huge difference if the court characterizes the Π ’s conduct as carelessness
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- Fall '08
- Tort Law, duty, reasonable care