What defense might be raised in this case?
In the case of Dr. Nalwa, the defendant can raise the defense of primary assumption of risk. The defense in commonly brought up in sporting activities where a participant voluntarily and willingly chooses to take part in the game despite being cognizant of the fact that he or she may be injured or incur some form of loss(Owen, 2014). Dr. Nalwa willingly and voluntarily chose to engage in the sport of bumper car riding. No one compelled her to participate in the same. By dint of the voluntariness, it is presumed that she was aware of risks inherent in the recreational activity.
The defense of primary assumption of risk was reintroduced in the case of Knight v. Jewett in 1992 by US Supreme Court which held itself to the effect that a player who incurs an injury while participating in a sport that is considered inherently dangerous cannot recover from the injury as a matter of public policy. To rely on the defense, two factors must be canvassed and proved. The first one is the kind of sport in question and the second factor is the relationship subsisting between the claimant and the defendant.
Should that defense be successful? Explain
The defense cannot succeed, and this is because a bumper ride car though categorized as a form of sporting is not an active sport. Therefore, it means that there is no inherent risk in the sport and the risk is also not foreseeable to the claimant. Secondly, the Knight precedent is only applicable to parties who are taking part in an inherently dangerous game at the time of the injury. The plaintiff and the defendant were parties to an innately dangerous game. Dr. Nalwawas merely a client who sustained an injury while taking part in the recreational activity with her son and not with the defendant.
Besides, it is documented that in 2004 and 2005, participants had sustained injuries while in the cause of having fun at the amusement park. The preceding fact has two implications. Firstly, it was seldom for one to incur and injury and as such Dr. Nalwa may not have foreseen the harm. Secondly, the fact that injuries had been sustained in the past is evidence enough that there was a probability of harm being inflicted on a rider though minute and as such, a precaution had to be taken. The aforementioned leads us to the conclusion that the defense of primary assumption of risk-tailored in the Knight case is not applicable in the previous scenario.
The case Dr. Nalwa falls under the tort of defective product liability. Under the tort, she can be able to raise the following issues concerning the injury she incurred while at the amusement park. For one, she can allege that the product was manufactured in a defective manner. Under this limb, she will need to demonstrate to the court that there was an inherent error when the product was being manufactured (Sherrow, 2010). For her to succeed in this claim, she will have to prove to the court that the product did not meet the design specifications or it was different from the other similar products, in this case, the other bumper cars.
Secondly, she can also allege that the design of the product which was relied on by the manufacturers was itself faulty (Owen, 2014). The claim of a faulty design will affect not only the bumper car that Mrs. Nalwa was being driven in but all the bumper cars prepared by the manufacturer. To prove the allegation of a faulty design, she will need to demonstrate to the court that the design relied on by the manufacturer did not meet the industry threshold that should be adhered to when concocting such designs for manufacturers.
Thirdly, she can also claim that management of the amusement park failed to discharge their statutory duty of either providing a catalog of instructions on how the product should be used safely without inflicting any form of harm or that the manufacturer failed to issue an adequate warning for users of the product (McAdams, 2011). The claim is typically raised whenever a product is typically precarious in a fashion that may not be ordinary or obvious to the user of the product. The warning essentially acts as a precaution requiring the user to act diligently while using the product or to exercise some special care while at it.
The elements that need to be established so as to proof negligence under product liability include: it has to be established that the manufacturer either knew or should have known about the risk that was inherent in the utility of the product (McAdams, 2011). From the fact pattern provided, it is clear that in 2004 and 2005, injuries had been reported by riders. Undeniably, the injuries earlier sustained by riders are an indication that it was foreseeable to the management that a rider might sustain an injury and as such, the first element has been fulfilled.
Secondly, a claimant must prove that either there was no warning at all giving caution of the inherent risk or the warning provided was inadequate (Owen, 2014). It is undeniable that, despite the fact that there was a foreseeable probability of harm, the management did not take any steps to ensure that a precaution, instructions or warning had been provided. The fact above fulfills the second element which leads us to the third element that needs to be proved.
The third element is proximately attendant to the second element. The claimant has to prove whether there was need of providing an adequate warning or instructions and if the tortfeasor failed to do so. It has been established that the riding of the bumper-ride had some probability of injury and as such a caution should have been given. From the facts of the case, it is undisputable that no precaution or instructions were given to Dr. Nalwa.
Finally, the claimant has to prove that the failure to caution or to warn adequately was the reason behind the injury or loss sustained by the claimant (Allee et al., 2016). The claimant got injured while in the bumper ride car. She was endearing to regain her balance, but she instead incurred a fracture. There is no mention of negligence on her side from the facts provided. Under the doctrine of Res IpsaLoquita, the burden should then shift to the defendant who bears the onus of explaining who the injury was sustained (Owen 2014).
References
Allee, J.S., Theodore, V. H.M. &Patryk, R.W. (2016). Product Liability. Law Journal Press:
New York.
McAdams, T.(2011). Law, Business and Society.Cengage Publishing Inc.
Owen, D. (2014). Product Liability in a Nutshell.West Academic Publishing:Cedar Street.
Sherrow, V. (2010).Product Liability.Chelsea House Publishers: New York
