Zahra Takhshid, ‘Assumption of Risk in Consumer Contracts and the Distraction of Unconscionability’, 42 Cardozo Law Review (forthcoming, 2021), available at SSRN. It has been a while since many of us have been able to attend the gym. Yet, before Covid-19, those committed to working out in this setting were kindly asked (read: required) to sign a contract that released the business operating the fitness facility from liability for any injury that might occur while using the premises. Accordingly, if an injury happened due to the business’ negligence, its defense against tort-based liability was contractual: it relied on the exculpatory clause that the user signed before the user was hurt. If the user took legal action, courts faced a Hamlet-style dilemma: to enforce or not to enforce the contract that was designed to prevent the operation of tort law. On the one hand, as we all know and as Danielle Hart has empirically shown, courts are heavily inclined to enforce contracts. On the other, at stake are bodily injuries that the business could have probably prevented if only it had exercised more caution … (more)
[Hila Keren, JOTWELL, 19 May]
First posted 2021-05-19 17:45:44
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