Tuesday, January 16, 2007
Update: Commenter "Supremacy Claus" at Overlawyered asks why no Torts prof is discussing assumption of risk, and suggests that the woman's behavior is equivalent to someone (he posits a Torts prof) leaping from a 50th-story window for a PlayStation.
Of course, assumption of risk requires knowledge of the risk; I just (finally!) finished grading a whole pile of exams addressing that very point. Grabbing the closest-at-hand hornbook (Shapo's), "Courts often require defendants to show that plaintiffs had highly specific knowledge of a hazard." In other words, it's not enough to say that "Well, everything in excess is bad for you, and she knew that." (Additionally, to respond to yet another comment from the same poster, this is already a subjective test and would require nothing like legislative action.)
Even if one thinks that the specificity of knowledge required is too great (and there's a good argument for that), I've seen nothing suggesting that the decedent knew that there was any risk -- certainly not one of death -- from drinking lots of water. (No, I don't think a warning label is necessary and I don't think the bottler would be held liable.)
I would be interested in that liability waiver, though, since it might have informed participants of risks. My sense from the coverage I've seen is that it did not.
(Earlier post, with archived page from the station's website, is here.)