Legal Writing Assignment 9 Franklin #8192.docx - Legal...

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Legal Writing Assignment 9 Franklin #8192 PAM V DINER 1. The loss of her purse, her cellular phone, and her emotional distress as a result of the robbery? NEGLIGENCE Negligence as a tort is a “breach of a legal duty to take care which results in damage undesired by the defendant to the plaintiff. To establish a prima facie case for negligence a plaintiff must prove that a duty was owed, that a breach of that duty, causation of that breach and proximate cause by the defendant. SPECIAL DUTY- LANDOWNER A land occupier may be required to warn or protect an invitee from foreseeable tortuous or criminal acts of third persons. Here, Diner is a local restaurant open to the public. Thus, Diner is a landowner. BUSINESS INVITEE A business invitee is one who enters land for the purpose of conducting business that is connected with the premises or where it can reasonably be said that the visit may confer some sort of commercial or monetary benefit to the landowner. Here, Pam was trying to park her car in Diner’s parking lot so that she could go into the restaurant to eat. Thus, she is a business invitee, as she was going onto Diner’s property for the purpose in which it was being held open. Therefore, Diner owes a duty to make a reasonable inspection of dangers and to protect against and warn against known dangers. BREACH OF DUTY A defendant breaches such a duty by failing to exercise reasonable care in fulfilling the duty. Here, Diner knew that prior to Pam being robbed that two other incidents of auto theft had occurred. Diner placed two video cameras in the parking lot as a result but did not hire security guards. Under the Learned Hand formula, Diner has breached its duty if the burden of preventing harm to its patrons was outweighed by the possibility of harm occurring. Diner will argue that the harm that it had a duty to protect against was that of auto theft, not robbery. However, Diner was aware that criminal activity was taking place in its parking lot and that some crimes have the potential to escalate into dangerous 1
Legal Writing Assignment 9 Franklin #8192 situations. Since the likelihood of a person being robbed and possibly murdered was high and outweighed the cost of hiring security guards it can be argued that Diner breached its duty. Therefore, Diner breached its duty to protect its customers from known criminal activities and failed to protect Pam by failing to hire security guards. ACTUAL CAUSATION The but-for test is a test commonly used in both tort law and criminal law to determine actual causation. The test asks, "but for the existence of X, would Y have occurred?" If the answer is yes, then factor X is an actual cause of result Y.

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