Unit 4 Assignment: Research Affirmative Defenses 1

name
Kaplan University
Unit 4 Assignment: Research Affirmative Defenses
PA110 Civil Litigation
February 23, 2015
Unit 4 Assignment: Research Affirmative Defenses 2

Of the defenses available, I believe the most effective in the Justin King case would be

assumption of risk. The defendant could claim that Mr. King would not have suffered such

serious injuries if he had chosen to wear a helmet or other protective gear. Had Mr. King worn a

helmet it is possible that he would not have needed to have his jaw wired shut, had been

disfigured, or undergone facial reconstruction. The defendant may choose to use this defense to

state that Mr. King was aware of the dangers of riding his motorcycle without the proper

protection and assumed the risk regardless. It was this reason that I decided to search cases

where the defense used was also assumption of risk.

My research strategy was to search Westlaw using the key terms assumption of risk,

negligence, and motor vehicle accident. I searched in all Federal and all State. Using the

easy search method I was able to find 469 cases with those key terms. I then attempted to

narrow my results down by using the filter options. Of the 469, 454 were civil cases, with 390 of

those being reported cases. Because I felt that this was still too many cases to search through, I

then added the key term helmet to my search options. With this new term I was able to narrow

my results down to thirty. Using the same filters I then ended up with twenty-seven reported,

civil cases. I also decided that I did not want to use a case that was older than a decade so I

further narrowed my results by filtering them to exclude any cases before 2003. I then had three

cases available. Of the remaining cases available, I chose McKinley v. Casson, which uses

assumption of risk as a defense.

Unit 4 Assignment: Research Affirmative Defenses 3

Bluebook Citation:
McKinley v. Casson, 80 A. 3d 618 (2013)

In October 2009, Robert McKinley and Michele Casson were involved in a motor vehicle

accident. The accident happened near the base of the Summit Bridge in northern Delaware.

Both McKinley and Casson were driving on Route 896 at the time of the accident. Due to her

anxiety about driving across the bridge, Casson attempted to pull over to the right-hand shoulder

by attempting to pull between two construction barrels that had been placed on the road to all

traffic from two northbound lanes to merge. Although Casson claimed to have slowed down

gradually, McKinley claims that she came to an abrupt stop, which caused him to collide with the

back of her SUV. McKinley, who was not wearing a helmet at the time of the accident, suffered

serious injuries.
McKinley filed a negligence suit in September 2010, seeking damages against Casson for

the injuries he sustained. At the time of the accident, McKinley was not wearing a helmet, and

although he moved to exclude references to this fact, the court denied that motion, finding that

non-use of the helmet was relevant to secondary assumption of risk. Casson also claimed that

McKinley assumed risk because he failed to maintain a safe following distance and could have

avoided colliding with her vehicle if he hadnt been following so closely.

Ultimately, the Superior Court found that the trial court erred in allowing evidence that

McKinley was not wearing a helmet at the time of the accident. The court also found that

Casson failed to exercise reasonable care and that she was more than 50% responsible for the

accident.