The recklessness caused pam severe emotional distress

This preview shows page 3 - 5 out of 8 pages.

his duty of care to provide proper security or warn of the dangers, it was reckless. The recklessness caused Pam severe emotional distress. Pam can cover for severe emotional distress due to Diner’s breach of duty. Assumption of Risk A plaintiff must know of a particular risk and voluntarily assumes that risk. Diner did not post any warnings for the patrons who used the parking lot for the potential of thefts. Pam did not have any prior knowledge of the two auto thefts. She did not know that she would be at risk of any harm when she parked in the parking lot. Pam had no prior knowledge of the auto burglaries and was not warned about any dangers of parking in the parking lot. Because she did not know and was not warned, she did not voluntarily assume that risk. Assumption of risk will not be a valid defense by Diner. Actual Cause Actual cause is that cause which starts, ignites or makes possible the act which follows and which satisfies the “but for” or “substantial factor” test. “But for” Diner not warning or taking more visible precautions to warn of the dangerous conditions in the parking lot to prevent crime, Pam would not have been robbed, causing her purse and phone to be stolen, and causing Intentional Infliction of Emotional Distress. Therefore, Diner is the actual cause of Pam’s injuries. Proximate Cause Proximate cause is the cause which notwithstanding the involvement of an unforeseeable, independent, intervening act, causes injury to plaintiff, without which the injury would not have occurred. 3
Clouse 6931 Pg 4 The robber’s act was an independent, intervening act which Diner should have known to warn about. The act of the robber is foreseeable and will not severe causation to relieve Diner of liability. Diner may argue that it was only aware of crimes to autos, not people. In the past no people received injuries to their bodies. All the crimes occurred while the patrons were eating inside. However, because Diner knew of previous criminal activity in the parking lot, he should have known the crimes would evolve to potentially include crimes to a person. The robber’s conduct is not a superseding cause of Pam’s injuries. Diner was the proximate cause of Pam’s injuries. General Damages General damages are damages that flow from the tort naturally. Plaintiff must have sustained actual damages to the body or property of the plaintiff to recover for general damages. Pam will be able to recover for the loss of her purse and her cell phone. Conclusion Diner is liable to Pam for the loss of her purse, the cell phone and emotional damages. Pam’s Broken Arm Pam v. Diner Negligence Defined supra. Special Duty – Invitee Defined supra. Pam drove to the Diner at 5:00 p.m. and parked in their parking lot. She was robbed in the parking lot. Pam is an invitee because she is entering the parking lot with the intent to eat at Diner, thus she is entering with the intent to conduct business. Breach Defined supra. Diner had previous knowledge of the pothole in the parking lot. Diner had failed to warn or repair the pothole, despite customer’s complaints for weeks. Although the pothole was visible to pedestrians, it was not visible for drivers.

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture