Memo for Motion Against Summary Judgment Essay

Words: 1989
Pages: 8

I. Introduction and Standard for Opposition to Summary Judgment

Crowell Academy, Inc. and Arturo Gomez, (hereinafter, collectively "Crowell") were grossly negligent and used willful misconduct in their responsibilities involving the fencing club. The bargaining power of Crowell was so grossly unequal so as to put Lajuana Barnett at the mercy of Crowell's negligence. Lastly, the exculpatory clause contained in the release form (see release form) is void as against public policy. Consequently, under Maryland law, it is up to the trier of fact to determine if the exculpatory clause is unenforceable. As such, there is a dispute as to the genuine issue of material fact related to Crowell's Answer, Crowell can be liable to Lajauna Barnett
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Due to the fact that the defendant was rushing and anxious to finish checking the member's safety equipment, he failed in his duty to instruct the plaintiff in the proper manner in which to wear the plastron and to inspect her to verify that she had put the plastron on the proper arm. It is due to the defendant's extreme form of negligence that she placed the plastron on the incorrect arm, thus leaving it unprotected. Whereas in the case of Boucher v. Riner, where it was found that the defendant was attentive to the plaintiff, and that there was no showing of indifference on the part of the defendant, in the present case, the defendant was in no way attentive to the plaintiff. Boucher, 68 Md.App. at 548.

C. Crowell is not entitled to summary judgment as a matter of law because the plaintiff was at an obvious disadvantage in bargaining power so that signing the release form put her at the mercy of the defendant's negligence. Generally, there is ordinarily no public policy which prevents parties from contracting as they see fit. Winterstein, 16 Md.App. at 135. The exception to this general rule is that the relationship of the parties must be such that their bargaining by free and open. Id. at 135. When one party is at such an obvious disadvantage in bargaining power that the effect of the contract is to put her at the mercy of the other's negligence, the agreement is void as against public policy. Id.