Case Law Bonus Post: Smith v. Kierce

Notes: Most of us have had the experience of signing various forms promising that we won’t sue before are allowed to do something. Those documents are a form of contract, and not all contracts can be enforced by the law. In an extreme example, you couldn’t sell yourself into slavery: that contract would be “unenforceable” because slavery is illegal. This case law says that you can’t sign away your right to sue for recklessness, either, and contracts that try to do that are unenforceable. This explains the arguments the plaintiff is making in this case: they can’t argue that the defense was negligent, because they signed away their right to do that and the court is enforcing that part of the contract. But the plaintiff can argue recklessness, even though they also signed away that right, because the court is refusing to enforce that part of the contract. This isn’t something you’ll have to explain to the jury, it’s simply interesting background knowledge.