Zhao and Henry are friends and co-workers at an office in downtown Sudbury, where they both earn $1,000 per week as business consultants. Zhao and Henry set out for a day of fun at "Fearsome," a white-water rafting attraction. They both signed a waiver stating they "release the operator and its employees from all liability however caused." Halfway through the course, their raft (piloted by one of the attraction staff, Gary) flipped over, an event considered as all part of the "extreme" factor. Both Zhao and Henry were wearing life-jackets. Henry was thrown to one side from the raft and broke his hip in collision with a submerged rock. Zhao was initially unhurt, and both men were carried on the current to the lagoon at the end of the course. A Fearsome boat was waiting for them, and its crew used a hooked pole to snare the loops of their lifejackets. In negligently thrusting forward with the pole, a crewman, Amanda, seriously sliced Zhao's hand. Henry spent twelve weeks in a cast before he could work again and Zhao missed six weeks of work. In addition, as a result of the incident, Henry has been diagnosed with chronic hip pain.

1. Who can Zhao and Henry bring a legal action against, if anyone? Why or why not?

2. What type(s) of tort liability most clearly arise in this scenario? Describe the elements of the tort(s) you've identified. Without considering remedies or defenses at this stage, do you think Zhao and Henry would succeed in establishing each element? Why or why not?

3. Assuming both Zhao and Henry were successful in establishing liability, and without considering any defenses, what remedies could they claim?

Be specific. If any monetary damages are in order, what kinds are they? Can you preliminarily quantify any of them based on these facts?

4. Could the defendants you identified in Question 1 succeed in fully or partially avoiding liability by establishing a valid defense?

5. For the purposes of Question 4 only, assume the following: shortly after the incident, a Fearsome representative visits Zhao and Henry in the hospital He tells them he feels very sorry about their injuries, and would like to amicably resolve any potential claims that could arise from it. He offers Zhao and Henry $10,000 in exchange for a full and final release to all their claims in relation to the incident. After consulting with their lawyer, Zhao and Henry take the money and sign the release agreement. Would your answer to Question 3 change? Why or why not?

6. For the purposes of Question 5 only, assume the following. Unbeknownst to the parties, Amanda, the Fearsome employee in charge of retrieving the rafters with a pole, is Zhao's exgirlfriend. They had a nasty break-up 6 month ago after Amanda found out that Zhao had been cheating on her with a co-worker, and had not talked since. Upon seeing Amanda on the boat, Zhao, consumed with adrenaline yelled at her "Amanda, is that you? I should have figured you would end up in a dead-end job like this. You were always such an idiot!". Amanda, who was the only one who heard Zhao say this, found herself once again enraged at her former partner. Wanting to teach him a lesson, she intentionally thrust forward with the pole, seriously slicing Zhao's hand. How would your answers to Questions 1, 2, and 3 be different?