Drama of the Law: Negligence and Assumption of Risk
Negligence and Assumption of Risk
Customer Always Right?
Answer Guide for Discussion Questions
What are Kowalski's rights and duties? What are Maria's?
Kowalski's as a business owner and operator owes a duty of care to their patrons, and that duty
is to provide a safe area. If they fail to do so, they will be liable for negligence. Kowalskis has posted the
"Employee's Only No Admittance" sign, and their liability to customers does not extend to areas
reserved for employee use. Further, Vinny tells Maria that she should not enter the area. Finally, he
not only warns Maria that the area is extremely dangerous, but also order her to leave.
What are the store's responsibilities? What will Maria have to prove to win her case?
Because Maria specifically requested that Vinny not touch her, and he does, he has committed
the tort of Battery. If Maria's ankle is injured, the question of fact is: Did the injury result from the fall
or from Vinny's battery or both? Maria assumed the risk of injury from the conditions in the storeroom,
but not from Vinny's battery.
For her damages for lost wages, Maria cannot claim damages for any current wages, because she is
unemployed; and it may be difficult to establish that she would have been hired as an aerobics
instructor even if the injury had not occurred.
If Maria comes to you, an attorney, and asks you to plead her case, what might be your best argument?
You would argue that the injury resulted more from Vinny's battery than from the initial
accident. You could point out, as mentioned above, that although Maria had assumed the risk of being
injured by dangerous conditions in the stockroom, she had not assumed the risk of being injured by an
employees battery. At a minimum, you could allege that Vinny's battery exacerbated the injury.
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