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Thus, Diner will be vicariously liable for any negligence of Wayne.NegligenceDuty – Omission to ActUnder general negligence principles, a defendant generally has no affirmative duty to actto prevent harm to plaintiff unless a special relationship exists between plaintiff and defendantor where defendant voluntarily undertakes to aid plaintiff. Where such duty to aid plaintiffexists, defendant must act as a reasonably prudent person to avoid harm to plaintiff.Wayne will assert that there was no special relationship between Pam and either Wayne or Diner.Pam was a stranger to Wayne and Diner. Thus, no special relationship existed between Wayneand Pam. Further, Wayne did not voluntarily undertake to aid Pam, as further evidenced byWayne’s refusal to allow Pam to use the phone. However, where a defendant is responsible for plaintiff’s injury or peril he has a duty to go toplaintiff’s aid and to exercise reasonable care in doing so. As argued above, Pam was robbed inDiner’s parking lot and sustained a broken arm as a result of Diner’s negligence. Therefore, Wayne, as Diner’s employee, has a duty to provide aid to Pam.
Legal Writing Assignment #9Defined supra.Since Wayne owed Pam a duty to render aid to her, Wayne’s refusal to allow Pam to use thephone was a breach of that duty.Moreover, Wayne misstated Diner’s policy to Pam.Instead oflimiting phone use to business-related calls and strictly prohibiting customer calls, Diner’s policyactually allowed an exception for emergencies.Thus, not only did Wayne fail to provide aid toPam, in such failure he misstated and misapplied Diner’s phone policy, resulting in a furtherbreach of duty to Pam.Therefore, Wayne breached his duty of care owed to Pam.Actual CausePam will argue that “but for” Wayne’s failure to allow Pam to use the phone, the robber wouldnot have escaped.However, when Wayne refused to allow Pam to use the phone, a patron at theDiner promptly called 911 on his own cellular phone.The police arrived shortly thereafter.Since a patron called within seconds of Wayne’s refusal to allow Pam to use the phone the robberwould never have been apprehended either way.Further, the patron’s call resulted in Pamreceiving immediate medical treatment.Therefore, Wayne’s failure to allow Pam the use of Diner’s phone did not exacerbate Pam’sinjuries.