Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 5. Plaintiffs’ Conduct
Notes
1. The Tunkl factors. Why single out the factors listed in the Tunkl case rather than others?
How sound is the argument that the Dalury court makes about a tipping point in the defendant’s
incentives to maintain a safe ski area?
2. Divergent caselaw. While the broad version of the proposition at the core of Tunkl has
gained wide acceptance, Tunkl itself has proven susceptible to a range of interpretations.
Substantial disagreement persists on when it is properly invoked and how it should be applied.
Take, for instance, the issue front and center in Dalury: the enforceability of ski waivers. While
some courts (as in Hanks v. Powder Ridge Restaurant, 885 A.2d 734 (Conn. 2005)) have adopted
the Dalury analysis wholesale, others (like the court in Platzer v. Mammoth Mountain, 128 Cal.
Rptr. 2d 885 (Cal. App. 2002)) have rejected its central contention that there is a legitimate public
policy rationale for voiding these waivers.
More generally, the question of whether to permit ex ante waivers of tortfeasors’ liability
for negligence is answered in widely divergent ways in different states and by different courts.
For instance, in Schrier v. Beltway Alarm, 553 A.2d 1316 (Md. Ct. Spec. App. 1987), a decision
later cited approvingly by that state’s highest court, a Maryland appellate court held that a waiver
signed by a store owner limiting the liability of an alarm company was not void as against public
policy even where the store owner was shot in a burglary as a result of the alleged failure of the
alarm company to contact the police. In a case nearly at the other extreme, the New Mexico
Supreme Court held in Berlangieri v. Running Elk, 76 P.3d 1098 (N.M. 2003), that a waiver the
defendant sought to apply to bar recovery for injuries the plaintiff had suffered while horseback
riding was unenforceable as against public policy.
The following chart conveys some sense of the state-by-state variability in this area:
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