92. In an action by the golfer against the company, does the company have any affirmative defenses?

Strict liability requires proof that: (i) the nature of the defendant's activity imposes an absolute duty to make safe; (ii) the dangerous aspect of the activity is the actual and proximate cause of the plaintiff's injury; and (iii) the plaintiff suffered damage to person or property. An activity that is considered «abnormally dangerous» will trigger strict liability. An activity will qualify as abnormally dangerous if it involves a substantial risk of serious harm to a person or property even when reasonable care is exercised.

Ordinary contributory negligence by the plaintiff will usually not be a defense in strict liability cases, and the plaintiff will still recover despite having acted negligently. This is mostly true in situations where the plaintiff's contributory negligence involves being inattentive and not discovering a risk that she reasonably should have. Courts will place the full responsibility of preventing the harm on the party subjecting others to the abnormal risk. However, if the plaintiff knowingly, voluntarily, and unreasonably subjects herself to the danger, this will be a defense even to strict liability. In those situations, the plaintiff's conduct is also considered an assumption of the risk. When a plaintiff assumes a risk reasonably, meaning she agrees to be exposed to the risk of danger, she will also not prevail and it will be a complete defense.

D is correct. Although contributory negligence is typically no defense in strict liability cases, where the plaintiff assumed the risk, she will be barred from recovery. Specifically, when the plaintiff reasonably OR unreasonably subjects herself to a known danger voluntarily, especially when explicitly warned, she will not be able to recover even when strict liability applies. The facts state that the company had posted signs warning people not to enter the property, specifically because of the balloon landings. The golfer ignored the warning signs and jumped over the fence. Because the golfer had knowledge of the risk and voluntarily continued in the face of it, the company may raise the assumption of the risk as a complete defense.

A is incorrect. Even though the balloon was out of control when it struck the golfer, this fact does not negate the company's ability to raise an assumption of the risk defense to bar the golfer from liability. By ignoring the signs and jumping the fence, the golfer subjected herself to the risk of being injured by an abnormally dangerous activity occurring on the property she was entering.

B is incorrect. The facts do state that the jurisdiction considers hot-air ballooning an abnormally dangerous activity. This is a legal term of art or «buzzword» that triggers strict liability. However, this is not dispositive. Even if the golfer sues under strict liability for an abnormally dangerous activity, she may still be barred from recovery because she assumed the risk. The company may assert this defense, even under a strict liability theory.

C is incorrect. This answer reaches the correct answer with the wrong reasoning. Although the company does have an affirmative defense, it is not because of any action or omission taken by the company in landing the balloon. Strict liability imposes an absolute duty to make safe, which means the reasonableness of the defendant's conduct becomes irrelevant. Nevertheless, the company still has the assumption of risk defense because the golfer knowingly faced a danger despite the warnings signs.