78. What is the woman's best argument in opposition to the instructor's motion?

A plaintiff is said to have assumed the risk of certain harm if she has voluntarily consented to take her chances that the harm will occur.

If a plaintiff explicitly agrees, before any harm occurs, that she will not hold the defendant liable for certain harm, the plaintiff is said to have expressly assumed the risk of that harm. An express assumption of risk, also called a «contractual limitation of liability,» is generally enforceable, which will completely bar the plaintiff from recovery. However, there are three exceptions: (i) when the party protected by the clause either intentionally causes the harm or causes it by reckless or grossly negligent conduct; (ii) when the bargaining power of the protected party is grossly greater than the other party, usually when the good or service being offered is «essential,» such as services of public carriers or public utilities; and (iii) when there is an overriding public interest that demands the court refuse to enforce the exculpatory clause, which often overlaps with the exception regarding unequal bargaining power.

Where a good or service is offered by a relatively unregulated private company and there are a number of competitors offering the plaintiff substantially the same good or service, the court will typically find that an exculpatory clause in the contract should be enforced to bar claims for negligence. To enforce fine print waivers of liability, the defendant must show that the plaintiff was actually aware of the limitation, or at least that a reasonable person in the plaintiff's position would have been aware.

B is correct. Generally, liability waivers are enforced when a plaintiff voluntarily engages in an activity that poses inherent risks known to her, which cannot be entirely eliminated from the activity. However, there are exceptions to the enforceability of liability waivers, including that public policy favors not enforcing it. Thus, the most effective argument for the woman would be to claim that it would be against public policy to enforce this type of agreement. A court might find that it is against public policy to permit individuals or businesses to insulate themselves from all liability because it would deter the exercise of caution without any fear of negligence liability. This is especially true here, where the risk that materialized is not inherent in bowling and could arise whenever someone is careless while holding a heavy object. For that reason, the most effective argument is for the court to find that the waiver did not present the woman with a fair choice and could hold the waiver ineffective.

A is incorrect. This is not the woman's best argument for multiple reasons. Bowling is not an inherently dangerous activity because virtually no one is seriously injured during the normal course of the activity. Moreover, even if bowling were somehow found to be inherently dangerous, that characterization would support an argument for permitting recreational participants who appreciate the risks of the activity to assume the risks by signing a waiver rather than constituting a reason for ignoring the waiver.

C is incorrect. This is also not the best argument because it is unlikely that a court would make a blanket finding that asking the woman to sign the waiver was unreasonable. Portions of a waiver may or may not be enforced by a court, depending on the terms as applied to the circumstances. Here, the waiver said the woman «assumed all risk of injuries that she might suffer in connection with the class, including injuries due to negligence or any other fault.» The court may have found that the waiver did not bar liability where the injury resulted from the instructor's negligence but did bar liability where the negligence of, for example, another participant caused the injury.

D is incorrect. Pre-injury waivers are often enforced despite the fact that the precise injury that materializes is virtually never foreseen with a high level of specificity at the time of the signing of the waiver. The problem here is that the risk that materialized was not inherent to the enjoyment of bowling.