Another defense one can make to being accused of a tort is that the plaintiff assumed the risk. Meaning, they waived their right to sue because they determined that the risk would be worth the benefits. See the cases below.
Express
Seigneur v. National Fitness Institute, Inc.
752 A.2d 631 (Md. App. 2000).
Seigneur is the plaintiff. She lost in the trial court and appealed.
Question
Is the exculpatory clause (waiver to sue) a valid clause in National Fitness Institute, Inc.’s contract?
Rule
As long as the lanuage is clear that the plaintiff wishes to release the defendant from liability for personal injury, the clause is fine. There are a couple of exceptions to this rule: There is liability when the defendant
- intentionally causes harm
- Has a disparate bargaining power
- When the transaction relates to a public interest.
Holding
None of the exceptions are met, affirmed.
Facts
The plaintiff was recommended to go to this fitness gym for weight loss and general health reasons. When she signed her membership, she informed the staff that she had a history of poor physical health. She signed the waiver, which contained an exculpatory clause, meaning that she released the defendant from liability for any injuries that may arise. During the initial evaluation, she felt her shoulder tear which required surgery to repair.
Analysis
The language in the clause was sufficiently clear, there was no fraud indicated, etc. So, the clause was valid. As for the exceptions, the first exception was not contested. The second and third exceptions: “disproportionate bargaining power” and “public policy” were contested. However, there was no disproportionate bargaining power because there was several other places where the plaintiff could have gone. There is no public policy benefit because a fitness gym is not a vital public service such as a hospital, school, or transportation. Additionally, the gym was private so the courts are averse to putting limitations on the organization.
Additional Notes
Generally, these kinds of contracts are enforceable as long as the language is clear and if there are no public policy exceptions. What policy considerations are considered?
- Whether the defendant has intentionally caused harm.
- No evidence or claim in this case
- If the defendant has a disproportionate bargaining power.
- This is a take it or leave it agreement. However, the court argues that she could have gone somewhere else. If she couldn’t go anywhere home due to the same agreement, then you could purchase your own equipment.
- When the transaction relates to a public interest.
- Public policy issues come into play when there are common carriers (transportation), hospitals, day cares, etc. Here, this business is not essential to a public interest and therefore the contract is fine.
Implied
There are two elements for someone to be assume the risk:
- Subjective awareness (actually knew the danger)
- A voluntary decision to accept the risk.
This defense is disfavored by the courts.
Rush v. Commercial Realty CO.
145 A. 476 (N.J. Misc. 1929).
Rush is the plaintiff who won in the trial court.
Question
Did she assume the risk?
Rule
If she had no choice but to assume the risk, the defendant can still be liable.
Holding
Affirmed
Facts
The plaintiff needed to use the shared bathroom in her apartment. She fell down the trapdoor in the bathroom, which was poorly maintained.
Analysis
Because she had no choice but to use that bathroom in the normal cares of life, she could not have assumed the risk because she would have been forced to assume the risk. Therefore, the defendant is wholly liable.
Takeaway
The plaintiff is assumed to not have taken on the risk unless they enter the situation voluntarily, knowing of the risk, and did not protest the risk.
Additional Notes
Was not voluntary, so she did not assume the risk.
Blackburn v. Dorta
348 So. 2d 287 (Fla. 1977).
Question
Should we keep implied assumption of risk?
Holding
No, assumption of risk should be merged with contributory negligence.
Analysis
With the transition from contributory to comparative negligence, the courts needed to decide what to do with the assumption of risk, specifically implied assumption of risk. The reason for this is because assumption of risk would often completely bar recovery for the plaintiff. For those who want to help plaintiffs out in truly dire situations, it makes sense to exclude this defense. For instance, consider a person who comes home from work and sees a building on fire. He runs inside to help people who are trapped and as a result is injured himself. Under the doctrine of assumption of risk, he would have no recovery because he voluntarily accepted that risk. The courts are averse to these consequences and wish to remove them.
Additional Notes
Courts have changed this philosophy to include an assumption of the risk that is unreasonable. For it to be a defense, the assumption of risk needs to be reasonable. If it is unreasonable, then you are unable to use the defense. This often merges with comparative negligence. Ultimately, this results to this being a fairly useless defense.
Disclaimer
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.
