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was panicked following a robbery and was trying to quickly reach a phone to call the police.Based on the imminence of the situation, Pam will argue that her conduct did not fall below thestandard of care she owed to herself. However, Diner’s argument will likely prevail.Therefore, Pam was contributorily negligent.Last Clear ChanceTo avoid the harsh effect of plaintiff’s contributory negligence, some jurisdictions will hold thata plaintiff is not barred from recovery where a defendant had the last clear chance to avoid theaccident just before it occurred, but failed to do so.Diner had the last clear chance of preventing Pam’s trip and fall in the parking lot in that it couldhave posted a warning or cordoned off the pothole to prevent Pam from tripping on the pothole.Diner’s act of doing nothing about the pothole resulted in Pam’s tripping accident.Thus, Diner had the last clear chance to prevent the injury to Pam.Comparative NegligenceThe doctrine of comparative negligence apportions the relative negligence or fault, i.e.,blameworthiness, of the plaintiff and defendant, and reduces plaintiff’s recovery of damagesaccordingly. As discussed, Pam ran across the Diner’s parking lot and tripped on the pothole as a result of herown negligence. Diner will argue that since Pam’s conduct fell below the reasonable personstandard of care, the court should apportion fault between Pam and Diner, and render judgmentaccordingly.Therefore, comparative negligence is a valid defense. Assumption of RiskDefined supra.Diner will argue since Pam was running in the parking lot and not looking where she was goingshe had knowledge that she could trip or fall. Diner will further argue that by running to get helpwhile not seeing a pothole that was readily visible, Pam had comprehension and an appreciationof the danger and voluntarily elected to encounter that danger. However, Pam was not aware of the pothole in Diner’s parking lot. She never saw it because ofher panicked state following the robbery. Without knowledge of the dangerous condition, Pamhad no appreciation of the danger. Hence, she could not assume the risk of such danger.
Legal Writing Assignment #9Therefore, assumption of the risk is a not valid defense3. Exacerbation of her injuries due to Wayne’s refusal to allow her to use Diner’s phone tocall “911”? Discuss. Vicarious LiabilityAn employer is liable for the acts or omission of its employees performed while in the courseand scope of employment.The facts indicate that Wayne is a waiter at Diner. Thus, an employer/employee relationshipexists between them.Wayne refused to allow Pam to use the Diner’s phone to call “911” for help. He told her that itwas Diner’s policy to limit the phone use to employees making business-related calls and strictlyprohibited calls by customers. Since Wayne claimed to be following Diner’s policy regardingphone use and his job duties include assisting customers, he was acting in the course and scopeof his employment when he refused to allow Pam to use the phone to call “911”.