Friday, October 25, 2019
memo for motion against summary judgment :: essays research papers
I.     Introduction and Standard for Opposition to Summary Judgment      Crowell Academy, Inc. and Arturo Gomez, (hereinafter, collectively â€Å"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 for negligence, and Crowell is not entitled to Summary Judgment as a matter of law.      Summary Judgment should be granted only upon a showing that there is no genuine issue as to any material fact. Fireman’s Fund Ins. Co. v. Rairigh, 59 Md. App. 305, 313, cert. denied, 301 Md. 176 (1984). If there is a conflict between the inferences which may be drawn from the evidence before the court, summary judgment is not proper. Boucher v. Riner, 68 Md. App. 539, 543 (1986) (quoting Coffey v. Derby Steel Co., 291 Md. 241, 246-247 (1981)). Unless the facts are so clear as to permit a conclusion as a matter of law, it is for the trier of fact to determine whether a defendant’s negligent conduct amounts to gross negligence. Jacob v. Davis, 128 Md.App. 433, 465 (1999) (quoting Artis v. Cyphers, 100 Md.App. 633, 652 (1994)). Generally, exculpatory agreements otherwise valid are not construed to cover the more extreme forms of negligence-wilful, wanton, reckless, or gross. Winterstein v. Wilcom, 16 Md.App. 130, 136 (1972). II.      Statement of Undisputed Material Facts 1.     Defendant Arturo Gomez is the fencing coach at Crowell and at all times relevant to this matter acted as Crowell’s servant. 2.     Crowell provides weapons and electronic scoring devices for club members; club members provide their own protective equipment, including mask, glove, jacket, and plastron. 3.     In the fencing Club meeting prior to October 16, 2001, Gomez instructed team members in footwork preparatory to allowing them to handle weapons 4.     In the October 16, 2001 club meeting, Gomez instructed club members to don their protective equipment for their initial experience with using their weapons. 5.     Plaintiff’s nerve was severed under her left arm when an epee sliced through plaintiff’s jacket. 6.     Plaintiff had put the plastron on her right arm.
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