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Unformatted text preview: r 12. According to the
amended complaint, based on that information, Moses new or should have known that
Woodlard was not fit to provide child care, but failed to warn the mother of that danger.
Unaware of Woodlard’s criminal background, the mother entrusted K.M. to him over a 93 three month period. During that time, Woodlard sexually abused K.M. on at least two
The trial court granted Publix’s motion to dismiss with prejudice, holding that (1) Publix
owed K.M. no duty, common law or otherwise, and (2) “[t]he employees involved in this
case . . . have rights to engage in relationships and to be left alone that are guaranteed by
the Florida Constitution and the United States Constitution.” Whether the allegations of a
complaint are sufficient to state a cause of action is a question of law. See Siegle v.
Progressive Consumers Ins. Co., 819 So. 2d 732, 734 (Fla. 2002). It follows that this
court applies a de novo standard of review to an order dismissing a complaint for - 2 failure to state a cause of action; we must accept the allegations of the complaint as true,
not defer to the trial court’s conclusions regarding the legal sufficiency of the allegations.
Id. at 734-35. K.M. contends that this case falls under section 302B of the Restatement
(Second) of Torts (1964), which provides, in pertinent part, that an “omission may be
negligent if the actor realizes or should realize that it involves an unreasonable risk of
harm to another through the conduct of . . . a third person which is intended
to cause harm, even though such conduct is criminal.”
However, the section 302B negligence standard applies only if the actor is under a duty
to avoid the unreasonable risk. “The duties of one who omits to act are . . . in general
confined to situations where there is a special relation between the actor and the other
which gives rise to the duty.” RESTATEMENT (SECOND) OF TORTS §§ 302 cmt. a,
302B cmt. a. The general rule is that a party has...
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This note was uploaded on 09/30/2012 for the course ENC 102 taught by Professor Deria during the Spring '08 term at FIU.
- Spring '08