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What Happens If Contributory Negligence Applies

Info: 1112 words (4 pages) Law Essay
Published: 12th Aug 2019

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Tags: US Law

Kendra Knight took part in a friendly game of touch football. She had played before and was familiar with football. Michael Jewett was on her team. In the course of play, Michael bumped into Kendra and knocked her to the ground. He stepped on her hand, causing injury to a little finger that later required its amputation. She sued Michael for damages. He defended on the ground that she had assumed the risk. Kendra claimed that assumption of risk could not be raised as a defense because the stat legislature had adopted the standard of comparative negligence. What happens if contributory negligence applies? What happens if the defense of comparative negligence applies?

In the case, Kendra Knight found to be familiar with football and the injure occurred was not intended but due to negligence of both parties. Michael assumed the risk, which means that Kendra Knight, who voluntarily enters a situation that has an obvious danger, cannot complain if she is injured. However in order to apply this doctrine, the plaintiff must have actual, subjective knowledge of the risk involved in the activity. Kendra Knight claimed that assumption of risk could not be raised as the stat legislature had adopted the standard of comparative negligence. In traditional tort law, a defendant could avoid liability by proving contributory negligence on the part of the plaintiff. Contributory negligence implies that a negligence of the plaintiff that contributes to injury and at common law bars from recovery from the defendant although the defendant may have been more negligent than the plaintiff. Under contributory negligence, if a party suffers injury due to his/her own partial negligence that party is recovers nothing. Kendra knight played before and was familiar with football but she was not fully aware about risks associated and she was partial responsibly about her injury. This imply that Kendra knight would receive nothing because she partially responsibly about her injury. Under the doctrine of comparative negligence, a plaintiff’s recovery reduces by the percentage in which the plaintiff is at fault for his or her damages. In a comparative negligence state, a plaintiff may generally recover even if she is partially responsible. This imply that Michael have to pay for Kendra due to injure, which require amputation. Today most of countries adopted some form of comparative negligence.

Fedun rented a building to Gomer, who did business under the name of Mike’s Café. Later Gomer was about to sell the business to Brown and requested Fedun to release him from liability under the lease. Fedun agreed to do so. Brown sold the business shortly thereafter. The balance of the rent due by Gomer under original lease agreement was not paid, and Fedun sued Gomer on the rent claim. Could he collect after having released Gomer? (Fedun V Mike’s Café, 204 A2d 776 (Pa Super))

The case presents that Gomer established his business under the name of Mike’s Café, which he pay all the liabilities under that lease at that time. After that, Gomer has decided to sell the business to Brown. Gomer has requested Fedun to release him from liability under the lease, which Fedun agreed and accepted. Feduns has sued Gomer and contends that the release was ineffective because of lack of consideration. Feduns argue that, a valid release requires a consideration or an equivalent such as seal, promissory estoppel, or a statement that the signer intends to be legally bound. The record contains no allegation or proof of consideration for the release. Feduns aruge that the release was not signed under seal and no money was given by the Gomers to the Feduns for the release. There was not a writing stating that the Feduns intended to be bound legally. On the other hand, Gomer argues that the acceptance by the Feduns of Charles Brown as a substitute tenant is sufficient consideration for the release. The record contains no evidence on which a finding of such substitution can be based. The general doctrine is that the business is an entity separate and distinct from its stockholders. This implies that Gomers are not prejudiced because he did not visit the leased premises, heard nothing about the premises that was sold to another party. Gomers act in selling his stock to Brown could have been taken at any time without either the inducement or the consent of the Feduns. The business laws found no provision against the sale in the lease agreement which Gomer did.

Nelson wanted to sell his home. Baker sent him a written offer to purchase the home. Nelson made some changes to baker’s offer and wrote him that he, Nelson, was accepting the offer as amended. Baker notified Nelson that he was dropping out of the transaction. Nelson sued Baker for breach of contract. Decide, what social forces and ethical value are involved? (Nelson V Baker, 776 SW2d 52 (Mo Appl))

Nelson and Baker have required an offer and acceptance in order to form a contract. An offer made by Baker is an indication of his willingness to enter into a contract with the Nelson. However, the case here is that Nelson made some changes to baker offer, and he assumes that his amended to the offer is granted and accepted. The basic contract law necessitates the effective communication. An effective communication occurs when for example Nelson receives and then reads or hears the offer. If there are any changes in the offer, both parties have to inform each other and agree on changes amended. Nelson can not claim offer acceptance, because the business law stated supported that Nelson does not have the authority to modify the terms of a proposal. If the offeree changes the terms of the offer, the variation creates counteroffers, which actually constitutes a rejection of the original offer. The business law stated that in this case, the original offer of Baker may then reject or accept the counteroffers. Baker must know of the new amended offers in order to validly accept it. It is submitted that the Nelson should not be able to claim that there is a contract if he did not have knowledge of the offer at the time when he did the act said to constitute an acceptance of the offer. There are many forms of ethical behavior such as, integrity and truthfulness, promise-keeping, loyalty and avoiding conflicts of interest, fairness, doing no harm, maintaining confidentiality. The ethical value implies here is integrity and truthfulness. Nelson has to inform Baker about the changes made in the offers before he claims that the offer has accepted.

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