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Prelim 2 Exam_StudyGuide

Prelim 2 Exam_StudyGuide - 1 Daran A Duty Since Daran was...

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1. Daran: A. Duty Since Daran was staying at the property, in a setting where Dan conducts business, he is therefore an invitee and Dan has the highest duty of care to prevent foreseeable harm to the plaintiff. Regardless of the fact that Daran might not be providing compensation for the stay, Dan has a heightened duty of reasonable care on property to warn the guests’ of all known dangers to protect the invitee’s which in this case is the risk of the jet skiers. Breach Dan posted notice of the Jet Ski race, but he did not explicitly inform the guests’ of the Jet Ski race in progress. A sign posted in the water that is far from shore is not fulfilling the highest duty of care to prevent foreseeable harm to the guests’ since the swimmers heads’ will most likely be below the water surface, so they are not certain to ever see the sign. The sign is also likely unable to be read clearly from shore, so Dan really did not fulfill his duty of care to inform all guests’ the danger of the race. Perhaps if he was simply a licensee this sign would be reasonable, but given that Daran is an invitee, Dan has an increased responsibility to inform the guest of the potential danger. Causation In order to be successful in this case, Daran would have to prove Actual and Proximate causation. Actual: In order to prove actual causation, Daran must prove that “but for” the defendant’s (Dan) breach, the plaintiff would not be harmed. In this case it appears that Daran would not have ever been hit by the golf ball if he had been fully warned of the ensuing Jet Ski race. If he was not hit by the jet skiers, Daran would not have been in range of the golfers and would not have been struck. There is an inherent risk involved with swimming, but this risk does not include being hit by jet skiers. Proximate: Daran must also prove proximate causation which asks if it was foreseeable that this breach would cause damage at the time of the breach. Dan clearly acknowledged the prospect of the jet skiers coming into contact with his swimming guests’ at the time of the breach when the facts state that ‘He hoped that the skiers would not come into the area.’ This one is tricky since the cause is technically superseding since it was not foreseeable that a third party would enter the scenario. Since this is a superseding cause rather than an intervening cause and the golfers breach was the primary cause of injury, Dan could escape liability here. If the injury was merely a result of the golfers, then this requirement would not be met since it is unforeseeable that Daran would be hit by this golf ball and Dan would not be liable. But since the golf ball would not have struck Daran if he had not been struck by the Jet Ski, the fact that Dan did not exercise reasonable care to prevent the Jet Ski accident, he could be liable. Therefore, both of these forms of causation are fulfilled since the damage was foreseeable and the plaintiff would not have been harmed if he had been warned of the dangers of the jet skiers in a more appropriate fashion than simply posting a sign.
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