Bar Exam — MBE (Multistate Bar Exam)TortsEasy
A spectator attending a professional baseball game was struck by a foul ball hit into the stands. The stadium had prominent signs warning of the risk of foul balls, and the spectator had purchased a ticket that included a waiver of liability for injuries sustained from foul balls. The spectator sued the baseball team for negligence. Which of the following defenses is the baseball team most likely to successfully assert?
- AComparative negligence
- BContributory negligence
- CLast clear chance
- DAssumption of risk
Show answer & explanationAnswer & explanation
Correct answer: D. Assumption of risk
Assumption of risk is a defense where the plaintiff voluntarily and knowingly encountered a known risk. Here, the spectator was warned of the risk and chose to attend the game, thus assuming the inherent risks, including being hit by a foul ball.
Why the other options are wrong
- A. Comparative negligence would reduce recovery based on the plaintiff's fault, but again, assumption of risk is a more specific and likely successful defense given the facts.
- B. Contributory negligence would completely bar recovery if the plaintiff's negligence contributed to the injury, but assumption of risk is more direct here.
- C. Last clear chance is a doctrine used in contributory negligence jurisdictions to allow a plaintiff to recover despite their own negligence if the defendant had the last opportunity to avoid the harm, which is not applicable here.
Assumption of Risk
A defense in tort law where the plaintiff voluntarily and knowingly encounters a known risk created by the defendant's negligence.
- Plaintiff must have knowledge of the risk.
- Plaintiff must voluntarily assume the risk.
- Can be express (waiver) or implied (participating in risky activity).
Memory trick: Risk Assumed, Recovery Reduced or Removed.