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Unformatted text preview: AEM 3200 Week 4 Negligence (XO * ) Lecture Date : Monday, September 22, 2008 Reading for Wednesday - Text, 360-381 I. Unintentional Torts There are two types of unintentional torts that we will discuss: Negligence and Strict Liability I I. Elements of Negligence (XO * ) A. Negligence requires four elements: 1. Existence of a duty of care 2. Breach of that duty 3. That is the actual and proximate cause 4. Of the plaintiffs injury B. These elements of the cause of action might be helpful to memorize for the exams. I I I. Is there a duty of care? A legal obligation must flow from the defendant to the plaintiff. The defendant must have had a duty to act a certain way, or there must have been an expectation regarding the defendants actions. A. Feichtner v. Cleveland , case at 9-1, text at 240 someone picks up a rock that is present at a construction site and throws it at Feichtner. He doesnt sue the person who threw the rock but rather the city of Cleveland and its contractors for having the rock available for the public to pick up and throw. Since the city was responsible for the work site they are the ones being sued. Do they owe the Plaintiff a duty to prevent the 3 rd party from causing the injury? Court says no no duty on the part of the Defendants to protect Plaintiff from criminal act of a 3 rd party since it was unforeseeable. B. K.M. v. Publix A co-employee was babysitting for another co-employees kid. During this time the child was sexually abused by the babysitter. K.M.s mother brought suit against the employer, because the employer knew of that the co-employee babysitter was on parole from a previous sexual assault on a minor. The court dismissed the case saying that the employer did not owe a duty of care to warn his employee. Third parties cannot be held responsible for the actions of others unless there is a special relationship in existence and this employer did not owe a duty of care to events taking place outside the scope of employment. 1. What constitutes special relationships a. Business owner/Invitee b. Innkeeper/Guest also known as the innkeeper law c. Landlord/Tenant AEM 3200 Week 4 Negligence ( * ) d. Common Carrier/Passenger e. Employer/Employee f. Parole Officer/Parolee C. Listed below are the elements to consider when exploring if a duty of care exists 1. Foreseeability of harm to plaint iff 2. Relat ionship between conduct and injury 3. Degree of certainty that plaint iff was harmed 4. Mortal ( ) blame attached to the defendants conduct 5. Policy of preventing future harm 6. Burden on defendant 7. Consequences to community and court system 8. Availability/cost of insurance for r isk involved IV. Is there a Breach of Duty?...
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- Fall '07