Case:

A Rock Climbing company, Rocky's, takes many customers on rock climbing expeditions on the northern rim of the Grand Canyon. When James and Jenny signed up for an expedition, they were warned that rock-climbing was a dangerous activity. Additionally, James and Jenny signed a contract stating that during the climbing, they could possibly suffer from injury and, in the worst case scenario, death. The contract stated that James and Jenny assumed the risks posed by the expedition. James and Jenny went on the expedition, and on the fourth day of climbing, James' rope get lodged between two sharp rocks, eventually ripped, and James fell 30 feet, breaking both of his legs on landing.

James decided to take Rocky's to court, alleging that the company had been negligent, by having not paid sufficient attention to the quality of the climbing rope they had used. Further, James' attorney argued that it was a foreseeable result of the rock climbing expedition that James might suffer harm. Rocky's, however, defended that he was not liable for the injuries incurred by James as James and Jenny has signed contracts in which they assumed the risks of the expedition. The court found Rocky's not liable on grounds that Rocky's had warned James and Jenny of the potential risks of the activity, and that the customers had agreed to assume the risks in writing.

Question:

Which set of facts below could change the outcome of the case?Explain why the new set of facts would change the outcome.

• The plaintiff did not sign a contract saying they would assume the risk. But the court found the defendant's argument that there was an implied assumption of the risk just as persuasive as an expression of the risk argument.
• Rather than getting injured from a fall, James was injured in Rocky's company van that was driving to the rock climbing site. Rocky's driver had been speeding and had veered off the road a bit, causing the car to stop abruptly.
• Rather than providing a written contract that expressed risks of rock climbing, Rocky's never warned James or Jenny of the risks of rock climbing, despite James and Jenny's saying that they had no experience in rock climbing.
• Right before James' rope got wedged between two rocks, James had been swinging himself on his rope, and going to areas on a cliff that the company had advised customers not to go to. The court found that this behavior satisfied a contributory negligence defense.