PRINCIPLES OF NEGLIGENCE

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PRINCIPLES OF NEGLIGENCE Powered By Docstoc
					           PRINCIPLES OF NEGLIGENCE

   When does a hotel/restaurant
    operation have to compensate a
    guest or patron for injuries suffered
    on the premises?
       Depends upon
          whether the operation owed the guest
           or patron _____________________
           ____________________
          whether the operation violated its
           legal duty of reasonable care
          hotel/restaurant operations are not
           _____________ of the safety of
           guests or patrons
                KEY DEFINITIONS

   TORT is defined as ________________
    ________________________________
    but does not include breach of contract
    actions
       NEGLIGENCE is a form of tort defined as breach
        of ________ to use __________ resulting in
        the direct or proximate cause of injury to
        another person.
       INTENTIONAL TORT is a form of tort defined as
        ______________________ leading to the
        injury of another person.
   Basically the law requires that businesses
    act or conduct their operations with
    reasonable care under the circumstances
    to prevent injury to others.
THE CRITICAL ELEMENTS OF NEGLIGENCE


   1. EXISTENCE OF A LEGAL DUTY TO ACT WITH
       REASONABLE CARE

   2. BREACH OF A LEGAL DUTY TO ACT WITH
       REASONABLE CARE

   3. BREACH OF A LEGAL DUTY WAS THE
       PROXIMATE CAUSE OF INJURY TO ANOTHER
       PERSON

   4. INJURY TO ANOTHER PERSON PROVABLE IN
       MONETARY DAMAGES

   IF ANY ONE OF THESE ELEMENTS IS MISSING
    OR CANNOT BE PROVED-NO LEGAL ACTION FOR
    NEGLIGENCE WILL EXIST.
THE DUTY OF REASONABLE CARE

   1. EXISTENCE OF A LEGAL DUTY
       TO ACT WITH REASONABLE CARE

         LEGAL DUTY OWED ONLY TO THOSE WHO
          ONE COULD ___________________ BEING
          INJURIED BY HOTEL/RESTAURANT
          OPERATIONS

         THE KEY IS ________________________
          OF RISK
            SOURCES OF REASONABLE
              STANDARDS OF CARE
   REASONABLE STANDARDS OF CARE ARISE
    FROM
       MOST DEVELOPED AS ________________ OVER
        VERY LONG PERIODS OF TIME
           One of the most fundamental standards of care in
            hospitality operations relates to the ____________
            _______________________________


       SOME STANDARDS EVOLVE THROUGH
        ____________________
 SOME STANDARDS OF CARE EVOLVE
INTO THE LAW THROUGH DEVELOPING
      COMMUNITY STANDARDS
   EVOLVING COMMUNITY STANDARDS
    OF CARE
       Weston AED ordinances
       Common practices in business (some times
        to remain competitive)
LOCAL BUSINESS/COMMUNITY PRACTICE
 OF USING OFF-DUTY DETAIL OFFICERS
       FOR PREMISES SECURITY
   2006 murder of DJ at Miramar
    private high school academy dance –
    school failed to consider the local
    business practice of providing off
    duty detail security for social events-
    a local practice (this is a function of
    business awareness)
               SOURCES OF REASONABLE
               STANDARDS OF CARE (Cont)
   NOV 2005 SUN SENTINEL – LOCAL
    SECTION- “Woman gets $1.08 million
    in attack”
       ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF EXISTING
        DANGEROUS CONDITIONS-
       After shopping at Saks 5th Ave plaintiff went to her car in
        the Town Center Mall, Boca Raton where two men struck her
        in the head and took her purse containing $800. Despite the
        Mall being upscale “crime was rampant.” In the 2 years
        before the attack in the same parking lot there were
        31 robberies, 27 batteries/assaults, two rapes, a riot,
        arson, 61 stolen cars and 16 burglaries, six lewd and
        lascivious acts. Mall officials were oblivious to the amount
        of crime in the parking lot. Verdict for plaintiff emphasized
        that the mall management has to know what is happening in
        their parking lot and take reasonable action to deal with risk
        of danger.
        THE PARKING LOT MURDER AT
                HOUSTON’S
   On the evening of Dec. 10, 2006 Dr. Bradley
    Timpf was shot to death in his car as he was
    leaving Houstons on Biscayne Blvd.
   His family announced the intention to sue
    Houstons and would allege that “on the night of
    the shooting, the restaurant had inadequate
    lighting and there was no security present” in
    the parking lot.
   The family will allege that the owners of the
    restaurant should have known better because
    there had been 189 criminal incidents at and
    near the restaurant in the 5 years prior to the
    shooting.
        Florida Man Sues Wal-Mart Over In-
                Store Snake Attack
   FORT LAUDERDALE, Fla. — February 15, 2009
   A 42-year-old man bitten by a snake in a Pembroke Pines Wal-
    Mart garden center is suing the company for negligence.
   Jay Richitelli says he is the third Floridian in three years to
    be attacked in a Wal-Mart by a pygmy rattler. Two others
    were bitten in 2006 at the retailer's stores in Central Florida.
   Wal-Mart wouldn't comment on the litigation filed in Broward
    County Circuit Court, but said customer safety is its top
    priority.
   Richitelli says he still has respiratory problems and scars from
    the 2008 bite. But he's been back to Wal-Mart several times,
    saying their prices are too good to shop elsewhere.

   Richitelli's attorney says the Bentonville, Arkansas company
    should have taken steps to prevent the attacks after
    they happened before.
         FORSEEABILITY IN SECURITY
               SITUATIONS
   IN ORDER FOR A CRIME TO HAVE BEEN
    FORSEEABLE:
       It must be ________________________
        ____________________________________on or
        near the location of the crime on the premises
            Substantially similar means the nature and extent
             and relevance of prior criminal activity at or near the
             location of the crime – similar criminal activity does
             not mean the same i.e. crimes of violence versus
             crimes against property
       Such that a reasonable person would take ordinary
        precautions to protect invitees from risk posed by
        the criminal activity
      VIOLENT ATTACK BY 3RD PARTY IS NOT
      ALWAYS ACTIONABLE AS NEGLIGENCE
   A student at a private college in Georgia was
    kidnapped from a college parking lot and raped.
    Prior to this incident there were no reported
    incidents of kidnapping, rape or other violent
    crimes that occurred in that parking lot. The
    only crimes that occurred in that lot were
    property crimes without person-to-person
    contact.
   The victim sued the college for negligent failure
    to keep its premises safe.


Camille Stearns Miller, A Violent Attack by 3rd Party is Not Always Actionable (10/12/2005)
VIOLENT ATTACK BY 3RD PARTY IS NOT
ALWAYS ACTIONABLE AS NEGLIGENCE
    THE APPELLATE COURT HELD-
          A landowner has a duty to invitees to exercise
           ordinary care to keep its premises safe
          The landowner is not an insurer of an invitees
           safety
          The landowner is not liable for the criminal act
           of a 3rd party UNLESS ____________________
           ___________________________________
          WITHOUT FORESEEABILITY THAT THE
           CRIMINAL ACT COULD OCCUR, NO DUTY
           ARISES ON THE PART OF THE LANDOWNER TO
           EXERCISE REASONABLE CARE TO PREVENT
           THAT ACT.

 Camille Stearns Miller, A Violent Attack by 3rd Party is Not Always Actionable (10/12/2005)
VIOLENT ATTACK BY 3RD PARTY IS NOT
ALWAYS ACTIONABLE AS NEGLIGENCE

   IN ORDER FOR THE CRIMINAL ACT OF A 3RD
    PARTY TO BE FORESEEABLE
         It must be be substantially similar to previous crimes
          occurring on or near the premises such that a
          reasonable person would take ordinary precautions to
          protect invitees from the risks posed by the criminal
          activity
         For criminal acts to be substantially similar to
          previous crimes
               at that specific location
               The nature and extent of criminal activity occurring there
               And their similarity to the crime at issue (no requirement
                that it be identical)
                Similarity must be sufficient enough to cause a reasonable
                person to perceive that a dangerous condition existed.

Camille Stearns Miller, A Violent Attack by 3rd Party is Not Always Actionable (10/12/2005)
     BREACH OR VIOLATION OF A
      LEGALLY IMPOSED DUTY

   2. BREACH OF A LEGAL DUTY TO
       ACT WITH REASONABLE CARE

         STANDARD TO DETERMINE WHETHER
          LEGAL DUTY BREACHED –
              WHAT WOULD A REASONABLE
               PERSON
              OF ORDINARY PRUDENCE DO
              UNDER SAME OR SIMILAR
               CIRCUMSTANCES?
     THE ELEMENT OF CAUSATION

   3. BREACH OF A LEGAL DUTY
       WAS THE PROXIMATE CAUSE OF
       INJURY TO ANOTHER PERSON

         CLAIMED INJURY RESULTED DIRECTLY
          AND IMMEDIATELY FROM BREACH OF
          DUTY SO THAT A REASONABLE PERSON
          COULD SEE FORESEE THE POTENTIAL
          DANGER FROM DEFENDANT‟S CONDUCT
THE ELEMENT OF PROVABLE DAMAGES


   4. INJURY TO ANOTHER PERSON
       PROVABLE IN MONETARY
       DAMAGES

         MUST BE PROVABLE BODILY INJURY,
          PAIN AND SUFFERING, PROPERTY LOSS,
          EMOTIONAL INJURY AND/OR ECONOMIC
          LOSS
            FORSEEABILITY OF DANGER-
             Determining the Scope of the
            Reasonable Duty of Care Owed
   THE TEST OF FORSEEABILITY-

       OBVIOUS DANGERS AND THE
        REASONABLE DUTY OF CARE:

       HIDDEN OR NONVISIBLE DANGERS AND
        THE REASONABLE DUTY OF CARE AND
        THE DUTY TO DO A________________
        _____________________:
         Didthe operation know?
         Under the circumstances, should the
          operation have known of the danger?
           FORSEEABILITY OF ICY FALL
   Icy Fall

   Norwich, CT: (Feb-20-07) Michael Bowman, a Kentucky horse
    veterinarian, broke his ankle in an icy fall in 2002 Super Eight Motel in
    Waterbury. He claimed that he broke his ankle in three
    places when he fell on ice outside the hotel. on a
    patch of ice about 1 a.m. in a poorly lit area.
    Bowman claimed that Motel owners and the
    general manager had been aware of the icing
    problem for four years, but did nothing to fix it or
    to warn pedestrians of the potential slipping
    hazard.
   doctors had testified Bowman's injuries would
    not heal and would worsen over time. They said
    Bowman's decreased ability will hamper his
    ability to earn a living.
    As part of a settlement reached, a jury ordered the owners and general
    manager to pay for Bowman's injuries amounting to nearly $2 million,
    resolving the personal injury claim. [METRO WEST DAILY NEWS: ICY
    FALL]
                  THE DEPTH AND REACH OF THE
                    FORSEEABILITY DOCTRINE:
                    Terrorism Half a Globe Away
   In Spring of 2006, Hilton Hotels Corp. was sued in the Circuit
    Court of Miami-Dade County by several American families that
    were victims of a terrorist bombing at a Hilton Hotel in Taba
    City, Egypt in 2004.
   The suit alleges that Hilton Hotel Corp. was negligent in
    protecting its guests enabling a suicide bomber to drive an
    explosives-laden car into the hotel lobby and detonate the
    explosives killing 35 guest and wounding another 100.
   The suit claims Hilton breached its duty to protect its guests by
    failing to adopt reasonable and adequate security
       Despite numerous recommendations for improved security from
        security consultants and
       Prior warnings of terrorist threats to all hotels in the region.
   Are such incidents foreseeable under the circumstances? Are
    special security plans needed? Hotels are now targets.

    Aronson, Mort, Hiltion Suit Warning to Hospitality Industry, www.hotelmotel.com , May 15, 2006
         FORSEEABILITY OF DANGER-
          Determining the Scope of the
         Reasonable Duty of Care Owed

   THE “OPEN AND OBVIOUS”
    DOCTRINE-
       Business owner has _____________
       To warn customers/patrons of dangerous
        conditions
       That are ________________
       Because the very nature of the dangerous
        condition serves as a warning to the public
        i.e. the obvious defect or condition which
        would be unreasonable not to see.
DID THE BUSINESS OWNER OWE A DUTY
CRITICAL INQUIRIES (1) FORSEEABILITY OF INJURY,
(2) LEGAL STATUS OF PLAINTIFF & (3) SITE OF INJURY
    WAS THE CAUSE OF THE PATRON‟S
     INJURY ____________________
     TO THE BUSINESS OWNER?

    WHAT WAS THE ____________ OF
     THE INJURED PERSON- Invitee,
     Licensee or Trespasser?

    WHAT WAS THE LOCATION OF THE
     INCIDENT-Did the business owner
     have __________________?
       STATUS OF THE PLAINTIFF:
    The Business Invitee-Invitee Defined

   BUSINESS INVITEE-person who comes to the
    business for ___________ for which the
    business is operating and open to the public

       Hotel - guest and visitors of guests, employees delivery
        persons delivering items necessary to the business

       Restaurant - diners, employees delivery persons
        delivering items necessary to the business
        STATUS OF THE PLAINTIFF:
        The Business Invitee-Duty Owed

   DUTY OF CARE OWED -
       Reasonable ______________ for
        dangerous conditions and
       Exercise of reasonable care (diligent
        inspection and adequate warning) to
        eliminate known dangerous conditions
        STATUS OF THE PLAINTIFF:
        The Business Invitee-Knowledge of
        Danger

   LIABILITY RESULTS ONLY IF THE
    FOLLOWING OCCUR:
       Business knew or with reasonable care should
        have discovered („should have know” ie
        _________________________) presence of
        dangerous condition presenting unreasonable risk
        of injury to business invitees;
       no reasonable expectation that invitees would
        discover the danger or would be able to protect
        themselves; and
       business fails to use reasonable care to protect
        business invitees from known danger
           STATUS OF THE PLAINTIFF:
              The Business Invitee
   WITH REGARD TO THE BUSINESS
    INVITEE THE CRITICAL ISSUE IS
    WHETHER THE BUSINESS OWNER
    OWED A LEGAL DUTY TO INSPECT IN
    A REASONABLY DILIGENT MANNER-
       This is the specific duty most often at
        issue in slip and fall cases

       ACTIVE VIGILANCE/DUE DILLIGENCE
        REQUIRED BY LAW- ________________
        will not be a defense to liability-
        Hotel/Restaurant have a duty to inspect
        and discover foreseeable risks
               STATUS OF THE PLAINTIFF:
                    The Licensee

   LICENSEE-someone who has permission by the owner of
    the premises or owner‟s agent (employees) to enter or
    remain on the property whose presence is not necessary
    to business operations
       DUTY OF CARE OWED TO LICENSEE-Most States define duty
        owed as
          1.   ______________________________________
           licensee or acting in way to increase peril AND
          2.   Warn of latent (non-obvious) dangers known by the
           property owner
       Minority of States merely require refraining from willful or
        want injury to licensees

       NO AFFIRMATIVE DUTY TO INSPECT PREMISES FOR SAFETY OF
        LICENSEE ( AS REQUIRED FOR BUSINESS INVITEE) THE ONLY
        DUTY IS TO WARN OF KNOWN DANGERS
                   STATUS OF THE PLAINTIFF:
                        The Trespasser
   TRESPASSER-person coming onto or remaining on the
    premises ____________________________________
       DUTY OF CARE OWED TO TRESPASSER
            General rule- property owner owes no duty to trespasser for
             injury due to condition on the premises
                Some states require duty to refrain from willful or wanton
                 injury to trespassers
                Other states only impose duty to refrain from willful or
                 wanton injury to trespassers if the trespassers presence is
                 known or should have been know by the property owner
   DEPENDING UPON THE CIRCUMSTANCES THE STATUS OF
    A PERSON ON THE PREMISES CAN CHANGE FROM
    INVITEE TO LICENSEE OR TO TRESPASSER VERY
    RAPIDLY I.E. INVITEE GOES INTO AN AREA CLEARLY
    MARKED “EMPLOYEES ONLY” BECOMES A TRESPASSER
WHERE DID THE CLAIMED INJURY OCCUR:
 Was it on or off premises/did the business
            owner have control?
     NEXT TO THE STATUS OF THE PLAINTIFF AS
      INVITEE, LICENSEE OR TRESPASSER - THE SITE
      OF THE CLAIMED INJURY ON OR OFF THE
      BUSINESS PREMISES IS THE SECOND MAJOR
      ISSUE IN ALL PREMISE LIABILITY LAWSUITS

     GENERAL RULE- hotel/restaurant owes no legal
      duty of care on property not owned or maintained
      by the business operation

         exceptions-

              All routes of travel used by guests and known to
               property owner if the property traveled is owned
               by hotel/restaurant it has a duty of care
NEGLIGENCE DOCTRINES (RULES OF LAW)
       THAT FAVOR PLAINTIFFS
   RES IPSA LOQUITOR
   CHILDREN AND THE REASONABLE PERSON TEST
   THE “ATTRACTIVE NUISANCE” DOCTRINE
   NEGLIGENCE PER SE DOCTRINE
   THE DOCTRINE OF STRICT OR ABSOLUTE
    LIABILITY
   THE DOCTRINE OF RESPONDEAT SUPERIOR
   THE LEGAL PRINCIPLE OF NONDELEGABLE
    DUTIES
                      RES IPSA LOQUITOR

   RES IPSA LOQUITOR-is a legal rule that
        Recognizes the serious difficulties of proof which an injured
         plaintiff faces in a negligence lawsuit

        Applies in cases where circumstances strongly indicate that
         defendant was negligent but no direct proof is available

        RES IPSA LOQUITOR- “_________________________” IS A
         LEGAL DOCTRINE THAT CREATES A REBUTABLE
         PRESUMPTION THAT A DEFEDANT BREACHED A DUTY OF
         CARE (NEGLIGENCE) OWED TO THE PLAINTIFF AND SHIFTS
         THE BURDEN OF PROOF TO DEFENDANT TO SHOW IT WAS
         NOT NEGLIGENT

        IN ORDER TO USE THIS DOCTRINE THE PLAINTIFF MUST
         PROVE THE FOLLOWING:
                 injury occurred under circumstances suggesting it
                  would not have happened but for the defendant‟s
                  negligence;
                 the direct cause of the injury was under the direct and
                  exclusive control of the defendant;
                 plaintiff did not contribute to his/her injury in anyway
    SPECIAL LEGAL DUTIES OWED TO CHILDREN

   CHILDREN AND THE REASONABLE PERSON TEST:
     The law of negligence recognizes that _____________
    _______________________________________
     Hotel/restaurant operations will be held to a greater or
      enhanced duty of reasonable care toward children
            non-comprehending, impulsive behavior of children is
            The law conclusively presumes that children under the age
             of 7 years are not capable of contributory negligence.
            higher duty of reasonable care requires anticipation of the
             impulsive acts of children
                 “When a child of tender years is accepted as a guest, the inexperience and
                  the natural tendencies of such a child become a part of the situation and
                  must be considered by the innkeeper.”
                 “[The innkeeper] is bound to consider whether the premises present any
                  reasonably avoidable dangers to the child guest
       This doctrine is tempered by the contributory or
        comparative negligence of the parent who has general
        control and responsibility for the child‟s safety.
THE “ATTRACTIVE NUISANCE” DOCTRINE

     REASONABLE ACCOMMODATIONS FOR CHILDREN-
      duty to anticipate danger where children are
      involved
         accommodations including furniture must be suitable
          (safe) in anticipation of the impulsive acts of children
          - special high chairs in restaurants
     THE “_____________________” DOCTRINE- is a
      specialized negligence doctrine that recognizes the
      impulsiveness of children
     AN ATTRACTIVE NUISANCE IS DEFINED AS a
      potentially dangerous object or condition which
      can be anticipated to be of special interest to
      children
         BEST EXAMPLE IS A SWIMMING POOL ie liability still
          held to exist even if child climbed a locked fence.
THE “ATTRACTIVE NUISANCE” DOCTRINE

   IF AN ATTRACTIVE NUISANCE EXISTS ON
    THE PREMISES-the owner owes an
    enhanced duty to anticipate and protect a
    child from associated risks.
   ELEMENTS OF THE ATTRACTIVE NUISANCE
    DOCTRINE:
       1.   Conditions exists which attractive to
             children and is likely to cause injury
       2.   Premises owner knew or should have
             know of the attractive and dangerous
             condition
       3.   Due to _______________ he/she cannot
             appreciate the danger
    NEGLIGENCE PER SE DOCTRINE

   NEGLIGENCE PER SE DOCTRINE
       NEGLIGENCE PER SE IS DEFINED AS an act of
        negligence that violates a _______________
        designed to specifically protect the safety of the
        public.
       INNKEEPERS ALWAYS HAVE A DUTY TO COMPLY
        WITH THE REQUIREMENTS OF THE LAW DESIGNED
        TO PROTECT GUESTS.
       THIS DUTY APPLIES EVEN WHEN THE OWNER IS
        UNAWARE OF THE EXISTENCE OF THE SAFETY LAW
        ie ignorance of the law is no defense.
            Requires innkeepers to have current knowledge of
             laws application to hotel or restaurant operations
            Have a legal expert conduct a legal audit
NEGLIGENCE PER SE DOCTRINE

   THIS DOCTRINE ELIMINATES THE GENERAL
    REQUIREMENT OF PROOF THAT THE
    DEFENDANT BREACH A DUTY OF
    REASONABLE CARE BY FAILING TO ACT
    REASONABLY - The elements of a negligence
    case are modified by this doctrine:
       1.   Proof of existence of a law or ordinance
       2.   Proof of defendant‟s violation of the law
             or ordinance
       3.   Proof that this violation was the
             proximate cause of the injury
       4.   Proof of the the extent of the injury
    NEGLIGENCE PER SE DOCTRINE

   OBLIGATIONS BEYOND MERE
    REGULATION-
       COMPLIANCE WITH THE LAW IS NOT PER
        SE EXERCISE OF REASONABLE CARE-if
        satisfying the requirements of existing law
        falls short of a duty of reasonable care ie
        anticipating foreseeable dangers then the
        OPERATION MUST DO MORE THAN THE
         LAW REQUIRES
          THE DOCTRINE OF STRICT OR
              ABSOLUTE LIABILITY
   THE DOCTRINE OF STRICT OR ABSOLUTE LIABILITY- in
    operating an activity recognized as ULTRAHAZARDOUS
    even though a defendant observed every applicable
    regulation and took every possible precaution, they will
    be held liable if their activity was the cause of injury to
    another.
   THIS DOCTRINE ELIMINATES ANY REQUIREMENT FOR A
    PLAINTIFF TO PROVE THAT THE DEFENDANT OWED A
    REASOANBLE DUTY OF CARE AND BREACHED THAT DUTY.
   ___________________________ IS DEFINED AS
       handling explosive material
       keeping wild animals on the premise
   UNDER THE DOCTRINE OF STRICT LIABILITY PROOF OF
    DEFENDANT‟S FREEDOM FROM NEGLIGENCE IS NOT A
    DEFENSE.
                THE DOCTRINE OF STRICT OR
                    ABSOLUTE LIABILITY
   THE DOCTRINE OF STRICT PRODUCTS
    LIABILITY-the doctrine of strict liability has
    been extended to sellers of defective products-
    IMPOSES LIABILITY ON SELLERS OF DEFECTIVE
    PRODUCTS WITHOUT REGARD TO NEGLIGENCE

       A PRODUCT IS DEFINED AS DEFECTIVE IF
            it is designed or manufactured improperly OR
            it contains inadequate warnings of dangers it presents

   THE DOCTRINE OF STRICT PRODUCT LIABILITY
    APPLIES TO THE SALE OF UNSAFE, TAINTED OR
    CONTAMINATED FOOD STUFFS OR OTHER
    PRODUCTS SOLD BY HOTEL OR RESTAURANT
    OPERATIONS
 THE DOCTRINE OF RESPONDEAT
SUPERIOR OR VICARIOUS LIABILITY

   THE DOCTRINE OF RESPONDEAT
    SUPERIOR (Let the master answer)
    OR CONCEPT OF VICARIOUS
    LIABILITY-an employer is liable for
    the acts of its employees done
    within the furtherance of their jobs
    (“WITHIN THE ________ OF THEIR
    EMPLOYMENT”).

   WHAT DOES “WITHIN THE SCOPE
    OF EMPLOYMENT MEAN?
     THE DOCTRINE OF RESPONDEAT
    SUPERIOR OR VICARIOUS LIABILITY
   THE DOCTRINE OF RESPONDEAT SUPERIOR is based
    upon the legal theory that –an employee is the agent
    of the employer whenever the employee is
    performing duties with in the scope of his/her
    employment – THE ACTS OF THE EMPLOYEE ARE BY
    LAW THE ACTS OF THE EMPLOYER.
       RESPONDEAT SUPERIOR ENCOURAGES EMPLOYERS TO
        EXERCISE REASONABLE CAUTION IN SELECTING
        EMPLOYEES
       ENCOURAGES EMPLOYERS TO PROPERLY TRAIN THEIR
        EMPLOYEES
       DID THE INCIDENT OCCUR WITHIN THE SCOPE OF THE
        EMPLOYEES DUTIES? This is always the main issue in
        such cases.

       IS AN EMPLOYER LIABLE FOR ACTS OF ITS
        INDEPENDENT CONTRACTORS – depends on the degree
        of control the employer has over the independent – this
        is also a difficult question to resolve in these cases
        DRIVING WHILE CALLING: the Need for a
            Company Cell Phone Policy
                Settlements and Verdicts Posted Mar 31, 2008
   Fulton, GA: (Mar-21-08) Debra Ford brought a personal injury
    claim against International Paper Co. and its employee Vanessa C.
    McGrogan, alleging that she rear ended her car while driving, and
    using a cell phone (Vicarious Liability).
   McGrogan was using her company-supplied cell phone as she
    drove west on Interstate 16 near Dublin when she crashed into
    Ford's car, overturning it so that the driver's side hit and then slid
    along the roadway. trapping Ford's arm between the door and the
    asphalt leading to Ford having her arm amputated almost up to
    the shoulder.
    There was a cell phone statute in Georgia that says the driver is
    not to do things that are distracting. Ford's attorneys said that
    McGrogan's cell phone use was not reasonable as her cruise
    control was set at 77 miles per hour, in a 70 mph speed zone.
   The personal injury suit stated that there was intentional
    negligence on the part of the employee and International Paper,
    and sought punitive damages.
   In its defense, International Paper said that the employee was not
    actually on the phone at the moment the collision occurred. . . .
    However, a witness testified that he had seen her with the phone
    to her ear at the time of the collision.
     VICARIOUS LIABILITY FOR THE
     CONDUCT OF CLUB BOUNCERS
   APRIL 7, 2008 – THREE BOUNCERS FROM THE
    MANSION CLUB ON SOUTH BEACH WERE ARRESTED
    FOR FOR THE AGGRAVATED BATTERY OF THREE
    CLUB PATRONS
   THE THREE VICTIMS WERE TOLD TO MOVE FROM
    THEIR TABLE TO MAKE IT AVAILABLE TO OTHER
    CLUB PATRONS. THE VICTIMS WERE PRESENTED
    WITH A $700 BAR TAB WHICH THEY DISPUTED. AT
    THAT TIME THEY WERE PHYSICALLY REMOVED AND
    BEATEN IN THE PROCESS. THE WHOLE EVENT WAS
    CAPTURED ON SURVEILLANCE CAMERAS
   THIS IS A CONTEMPORARY EXAMPLE OF THE
    REASON WHY A GOOD RISK MGT PROGRAM WOULD
    DISCOURAGE THE USE OF PRIVATE BOUNCERS IN
    FAVOR OF HIRING POLICE OFFICERS FROM THE
    CITY WHERE THE CLUB IS LOCATED FOR OFF DUTY
    DETAIL SECURITY AT SUCH CLUBS
              THE LEGAL PRINCIPLE OF
              NONDELEGABLE DUTIES
   THE LEGAL PRINCIPLE OF _______________DUTIES-
       THE DUTY IMPOSED UPON A HOTEL/RESTAURANT
        OPERATION TO KEEP THE PREMISES REASONABLY SAFE
        FOR GUESTS IS NONDELEGABLE-BY LAW THIS DUTY
        CANNOT BE TRANSFERRED TO INDEPENDENT
        CONTRACTORS OR OTHER PERSONS
       This rule is intended to motivate the hotel or restaurant to
        monitor carefully the work performed by hired
        independent contractors.

   DUTY TO AID A PERSON IN DISTRESS-
       there is no general legal duty to rescue a person in peril
       IF A PERSON DOES COME TO THE AID OF ANOTHER IN
        PERIL - they must use reasonable care in making an
        attempt to help

   DUTY TO INVITEES IN DANGER-
       a business open to the public owes a duty to its patrons to
        aid them if in danger while on the premises.
SOUTH FLORIDA
$1million award upheld in sex assault on ship

 MIAMI. A federal appeals court has upheld a $1 million jury award for
 a woman who accused her waiter on a Celebrity Cruise ship of sexual
 battery. The woman, who was not named in the lawsuit, claimed that
 the waiter sexually assaulted her in a park near the docked Zenith
 t..", while she was a passenger traveling from New York to Bermuda.

 The suit alleged that the ship's medical staff treated her and flew her
 home from Bermuda on July 21,1999. She sued for negligence, sexual
 assault and sexual battery. A jury in November 2002 awarded the
 woman $1 million for her claim of sexually battery.

 In its 59-page opinion, the 11th U.S. Circuit Court of Appeals in Atlanta
 wrote Wednesday that "we conclude that the defendants owe a
 non-delegable duty to protect their passengers from crew
 member assaults and thereby safely transport their cruise
 passengers. "The jury award is expected to be split among four
 defendants, including Zenith Shipping Corp.and Celebrity Cruises,
 which is owned by Royal Caribbean Cruises : Ltd.
             STATUTORY PROTECTION FOR
                 GOOD SAMARITANS
   STATUTORY PROTECTION FOR GOOD SAMARITANS-
    extends protection from liability for persons who react in
    an emergency situation by trying to help a another
    person in peril.
       A rescuer will not be liable for injuries caused in the attempt
        to render assistance if the means used were reasonable
        under the emergency circumstances that existed at the time.
       THE RESCUE DOCTRINE -places liability on the person who
        negligently put himself/herself in peril inviting a rescue- if
        the rescuer is injured in the attempt to rescue - the person
        negligently put in peril will be liable to the rescuer for
        injuries.
   CHOKING SITUATIONS-generally no duty to aid a choking
    guest or restaurant patron. If the employees do try to
    aid a choking victim they must do so with reasonable
    care.
NEGLIGENCE DOCTRINES FAVORING
         DEFENDANTS

     RAISING PLAINTIFF‟S OWN
      NEGLIGENCE AS A PARTIAL OR
      COMPLETE DEFENSE:
         CONTRIBUTORY NEGLIGENCE
             Any __________________ by plaintiff that
              contributed in any way to the injury that is
              the subject of negligence action against the
              defendant will be a complete defense and
              prevent any recovery of damages
             All but ___ states have abandoned this
              doctrine in favor of some form of comparative
              negligence because the defense of
              contributory negligence was considered to be
              to harsh in its effect
                Defenses to Negligence
   A business may defend against a negligence claim by
    attacking any of the four negligence elements. Possible
    defenses include
      (1) challenging the status of the plaintiff (e.g., invitee v.
       licensee) and the corresponding duty of care,
      (2) asserting that it acted in accordance to the requisite
       standard of care,
      (3) attacking the causal link between act or omission and
       harm or injury, or
      (4) questioning whether the plaintiff suffered any actual
       loss.

   Comparative or contributory negligence-In addition,
    some jurisdictions allow an otherwise negligent party to
    escape some or all of its liability if it can prove that the
    injured party was also negligent. Florida is a comparative
    negligence state.
        THE MODERN DOCTRINE OF
        COMPARATIVE NEGLIGENCE

   COMPARATIVE NEGLIGENCE-plaintiff‟s
    own negligence contributing to his/her
    injury will not be a complete defense to a
    suit for negligence.
     “Pure system” rule of comparative negligence-
      plaintiff will receive an award of damages that
      reflects the total amount of provable damages
      less than percentage equal to plaintiff‟s own
      negligence that contributed to the injury.
     “Less-Than” rule – if plaintiff‟s percentage of
      negligence contributing to his/her injury is
      more than 49% then no damages will be
      awarded ie that degree of negligence by
      plaintiff will be a complete defense to the entire
      suit.
DOCTRINE FAVORING THE DEFENSE
   ASSUMPTION OF THE RISK
       A law doctrine that corresponded with
        contributory negligence


   THE RULE – IF A PLAINTIFF
    __________________________ ENGAGES
    IN CONDUCT THAT PRESENTS A RISK OF
    INJURY
       As a matter of law a plaintiff would be denied
        recovery for injury sustained from assuming that
        risk
     ELEMENTS TO PROVE
     ASSUMPTION OF THE RISK
   THE PLAINTIFF KNEW OR SHOULD HAVE KNOWN
    OF THE RISK
   THE PLAINTIFF UNDERSTOOD THE CONSEQUENCES
    OF THE RISK
   THE PLAINTIFF COULD CHOOSE THE AVOID OR
    ASSUME THE RISK
   THE PLAINTIFF VOLUNTARILY ASSUMED THE RISK

 THESE ELEMENTS __________________
__________________________ TO AFFIRMATIVELY
  NOTIFY A PLAINTIFF OF A RISK (an existing
  obvious or inherent dangerous condition)
MODERN DOCTRINE OF COMPARATIVE
NEGLIGENCE HAS MODIFIED THE
DEFENSE OF ASSUMPTION OF THE RISK
      LIKE THE OLD DEFENSE OF
       CONTRIBUTORY NEGLIGENCE, THE
       ABSOLUTE NATURE OF THE DEFENSE
       OF ASSUMPTION OF THE RISK HAS
       BEEN SOFTENED.
          However, even under the doctrine of
           comparative negligence – evidence that a
           plaintiff assumed the risk that caused the
           injury is a very powerful factor in the
           defendant‟s favor especially if coupled
           with other evidence that the defendant
           acted reasonably under the
           circumstances.
    IGNORANCE OF RISK NEGATES
        ASSUMPTION OF RISK

   IF THE PLAINTIFF IS
    ____________________ OF
    THE RISK THE DEFENSE WILL
    NOT APPLY.

				
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