Tuesday, October 25, 2011

Schroyer v. McNeal case brief

Schroyer v. McNeal

Slip and fall accident where Pl broke ankle after walking over icy parking lot when the hotel did did not warn her of the condition and follow hotel policy of assigning rooms near registration area, even though Pl. asked for a room near a door for her own special purposes, and not being advised that she should use the entrance on the west side, which she used. Although the area in front of the hotel had been shoveled, the area near where her room was was not shoveled and still was icy.

The defense of secondary implied assumption of risk requires that the Def. prove that the Pl. had subjecting actual knowledge of the risk, had a subjective actual appreciation of its nature and extent, and voluntarily accepted it.
-The overlap between assumption of the risk and contributory negligence is a complete one where “the Pl.’s conduct in voluntarily encountering a known risk is unreasonable.
When that occurs, the bar to recovery is two-pronged:
1) because the Pl. assumed the risk of injury and
2) Because Pl. was contributorily negligent.
Contributory negligence = negligence which contributes to causing a particular accident which occurs. (Proximate cause of the accident)
The assumption of risk of accident = voluntary incurring that of an accident which may not occur, and which the person assuming the risk may be careful to avoid after starting. (previous abandonment of the right to complain if an accident occurs.)

Pl. fully aware of the dangerous condition of the premises. She did not think it was “that slippery.” | Took an informed chance.
She chose to park there, walk across it, indicating her willingness to accept the risk and relieving the Def. of responsibility for her safety.

She was negligent.

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