Express assumption of risk - Next Generation Bar Exam
- What is the general rule on enforcing releases for recreational activities?
- They are generally enforceable if clear and voluntarily signed. Recreational activities are typically not essential public services.
- What is the effect of a minor's signature on a pre-injury release?
- It is generally voidable by the minor. Jurisdictions differ on whether a parent's signature binds the minor.
- What is the scope of an express release?
- It covers only risks within the contemplation of the parties as expressed in its language. A release of risks inherent in skiing may not cover a negligently maintained lift.
- What must a release include to bar a negligence claim in many jurisdictions?
- Clear and unambiguous language covering the defendant's own negligence. Ambiguities are construed against the drafter.
- What is the general rule on enforcing a release of liability for intentional or reckless conduct?
- It is unenforceable as against public policy. Releases are generally limited to ordinary negligence.
- What is the effect of fraud in obtaining a pre-injury release?
- It renders the release unenforceable. A release obtained by misrepresentation is voidable.
- A gym member signs a clear release of claims for the gym's negligence. A gym employee intentionally pushes the member off a treadmill. What is the effect of the release?
- It does not bar the claim, because releases do not cover intentional misconduct. Public policy bars exculpation for intentional harm.
- A patient signs a hospital admission form releasing the hospital from liability for negligence. What is the effect of the release?
- It is unenforceable as against public policy. Hospitals provide essential services, and patients lack bargaining power.
- What is express assumption of risk?
- A plaintiff's agreement, usually in a written release, to relieve the defendant of liability for negligence. It is a complete defense if the agreement is valid.
- Under Tunkl v. Regents of the University of California, what releases are unenforceable as against public policy?
- Releases from parties providing essential public services, such as hospitals, to members of the public. Factors include unequal bargaining power and the importance of the service.