Negligence and Duty of Care
Negligence and Duty of Care
Robin McClish
Kaplan University
Negligence and Duty of Care Scenario: As pedestrians exited at the close of an arts and crafts show, Jason Davis, an employee of the show’s producer, stood near the exit. Suddenly and without warning, Davis turned around and collided with Yvonne Esposito, an 80-year-old woman. Esposito was knocked to the ground, fracturing her hip. After hip replacement surgery, she was left with a permanent physical impairment. Esposito filed suit in a federal district court against Davis and others, alleging negligence. The textbook Fundamentals of Business Law defines negligence as simply an unintentional tort (Miller & Jentz, 2010). As the defendant in a lawsuit alleging negligence, Jason Davis is not in the best position, as he doesn’t have to have malice towards or the intent to harm the plaintiff. Causation of fact is present as well, considering Davis knocked down Esposito and if he hadn’t knocked her down there wouldn’t be an injury, making the act the proximate cause of the injury. A case of negligence requires a causation of fact and proximate cause before it can be brought. The U.S. Court of Appeals ruled the following three factors that indicate whether Davis owed Esposito a duty of care: the likelihood that his conduct will injure others, taken with the seriousness of the injury if it happens, and balanced against the cost of the precaution he must take to avoid the risk. If the product of the likelihood of the injury exceeds the burden of the precautions, the risk is unreasonable and the failure to take precautions is negligence.
In the actual case, it is stated that “for five to ten minutes at closing time, Davis and another employee were standing on the apron of the Pontchartrain Center talking to each other, talking to people exiting, and talking to people in the parking lot about getting a car to pick them up. Esposito and her family exited the Center and headed toward the
Robin McClish
Kaplan University
Negligence and Duty of Care Scenario: As pedestrians exited at the close of an arts and crafts show, Jason Davis, an employee of the show’s producer, stood near the exit. Suddenly and without warning, Davis turned around and collided with Yvonne Esposito, an 80-year-old woman. Esposito was knocked to the ground, fracturing her hip. After hip replacement surgery, she was left with a permanent physical impairment. Esposito filed suit in a federal district court against Davis and others, alleging negligence. The textbook Fundamentals of Business Law defines negligence as simply an unintentional tort (Miller & Jentz, 2010). As the defendant in a lawsuit alleging negligence, Jason Davis is not in the best position, as he doesn’t have to have malice towards or the intent to harm the plaintiff. Causation of fact is present as well, considering Davis knocked down Esposito and if he hadn’t knocked her down there wouldn’t be an injury, making the act the proximate cause of the injury. A case of negligence requires a causation of fact and proximate cause before it can be brought. The U.S. Court of Appeals ruled the following three factors that indicate whether Davis owed Esposito a duty of care: the likelihood that his conduct will injure others, taken with the seriousness of the injury if it happens, and balanced against the cost of the precaution he must take to avoid the risk. If the product of the likelihood of the injury exceeds the burden of the precautions, the risk is unreasonable and the failure to take precautions is negligence.
In the actual case, it is stated that “for five to ten minutes at closing time, Davis and another employee were standing on the apron of the Pontchartrain Center talking to each other, talking to people exiting, and talking to people in the parking lot about getting a car to pick them up. Esposito and her family exited the Center and headed toward the
References: Miller, R. & Jentz, G. (2010). Fundamentals of business law. (8th ed.). Cengage. United States Court of Appeals. (1995, March 13). Summary calendar. Retrieved from https://www.ca5.uscourts.gov/opinions/pub/94/94-30176.CV0.wpd.pdf.