...Kessler, sued the builder, Randy Mortenson and/or CRM Construction, and the property owner/developer, Stephen Sheffield. Issue Under Utah law, can a property owner be held liable for injuries a child sustains while trespassing on a residential construction site? Rule • Restatement (Second) Torts § 339 • Taylor v. United Homes, Inc., 21 Utah 2d 304, 445 P.2d 140 (1968) • Featherstone v. Berg, 28 Utah 2d 94, 498 P.2d 660 (1972) Analysis The Defendants moved for summary judgment on the grounds that the attractive nuisance doctrine is not applicable when a child trespasses and is injured on a residential construction site, because residential construction sites are exempt. The trial court agreed that Eric was trespassing at the time of the accident, and granted the Defendants summary judgment. Ms. Kessler appealed to the Utah Supreme Court....
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...Case 0:05-cv-00668-RHK-JSM Document 61 Filed 02/07/2006 Page 1 of 14 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Stacy Lawton Guin, Plaintiff, v. Brazos Higher Education Service Corporation, Inc., Defendant. Civ. No. 05-668 (RHK/JSM) MEMORANDUM OPINION AND ORDER John H. Goolsby and Thomas J. Lyons Jr., Consumer Justice Center, Little Canada, Minnesota; Thomas J. Lyons, Lyons Law Firm, P.A., Little Canada, Minnesota, for Plaintiff. Courtney M. Rogers Reid and Matthew E. Johnson, Halleland Lewis Nilan & Johnson P.A., Minneapolis, Minnesota, for Defendant. INTRODUCTION Plaintiff Stacy Guin alleges that Defendant Brazos Higher Education Service Corporation, Inc. (“Brazos”) negligently allowed an employee to keep unencrypted nonpublic customer data on a laptop computer that was stolen from the employee’s home during a burglary on September 24, 2004. This matter comes before the Court on Brazos’s Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, the Court will grant the Motion. BACKGROUND Case 0:05-cv-00668-RHK-JSM Document 61 Filed 02/07/2006 Page 2 of 14 Brazos, a non-profit corporation with headquarters located in Waco, Texas, originates and services student loans. (Villarrial Aff. ¶ 2.) Brazos has approximately 365 employees, including John Wright, who has worked as a financial analyst for the company since November 2003. (Villarrial Aff. ¶ 2; Wright Aff. ¶ 1.) Wright works...
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...Appeals Cases from 1913 Project ID: FOCUS - 1 of 1 DOCUMENT REBECCA KOOP, Plaintiff-Appellant, - vs - SPEEDWAY SUPERAMERICA, LLC, et al., Defendants-Appellees. CASE NO. CA2008-09-110 COURT OF APPEALS OF OHIO, TWELFTH APPELLATE DISTRICT, WARREN COUNTY 2009-Ohio-1734; 2009 Ohio App. LEXIS 1469 April 13, 2009, Decided PRIOR HISTORY: [**1] CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS. Case No. 07CV69537. CASE SUMMARY: PROCEDURAL POSTURE: Appellant personal injury victim filed suit against appellee store alleging that it was negligent in its cleaning of a coffee spill, upon which she slipped and fell. The store filed a motion for summary judgment. The Warren County Court of Common Pleas (Ohio) granted summary judgment for the store. The victim appealed. OVERVIEW: The victim argued that the trial court erred by failing to consider the incident report and corresponding witness statements. The appellate court held that the trial court did not err by disregarding the document due to its lack of authenticity. There was no indication that the document, purported to be an employee witness statement, was sworn or certified, nor was there any evidence presented to establish its authenticity by affidavit. Further, the incident report, and the alleged corresponding witness statements, did not meet the admissibility requirements of Civ. R. 56, and therefore, were not entitled to consideration by the trial court for summary judgment...
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...Case Study on Negligence - Stella v Christine Stella can take an action of Negligence against Christine for her careless conduct regarding the slippery floor as well as the heating urn and steamer. She will be the plaintiff, and Christine, the defendant. Stella bears the burden of proof that Christine owed her a duty of care, but omitted to perform it, which caused her personal injuries and economic loss. The elements, including duty of care, breach of duty of care, and damage, must be proven on the balance of probabilities. If proven, Stella will probably be able to claim monetary compensation for her medical costs, loss of earnings, and suffering and pain. At the meanwhile, however, Christine can defend herself by alleging Stella’s Contributory Negligence so that the amount of her compensation might be reduced. DUTY OF CARE The law states that the duty of care is established upon the reasonable foreseeability test, which means a defendant will owe a duty of care to a plaintiff where it is reasonably foreseeable that their act or omission of act might harm the plaintiff. Donoghue v Stevenson [1932] created the modern concept of negligence. Since then, the test of 'reasonable foreseeability' has been discussed in many cases. Take Wyong Shire Council v Shirt [1980] as an example, in that case the court held that it was a foreseeable risk that the ambiguity of the deep water sign might induce people to believe that the water was deep and therefore safe for water skiing;...
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...You are a clerk for the judge assigned to this case. The judge asks you to prepare an essay, explaining to her why, under Illinois law, she should grant or dismiss the motion for summary judgment. Please help the judge. CASE SCENERIO: The plaintiff Alan was trying to catch a plane at Chicago's O'Hare Airport. He knew that he was late for his plane and so, he was running through the airport as fast as possible. Unfortunately, Alan does not see the banana peel that was lying on the floor in the middle of the concourse. He slipped on the banana peel and went sliding across the floor. He banged his head on a metal counter and suffered a severe head injury. Alan now files a lawsuit against the airport, which, we will assume, is in charge of maintaining the concourse, alleging negligence on the part of the Airport. A subsequent investigation revealed that the banana peel was brownish when Alan slipped on it. Alan states that he has no idea where the peel came from and why it ended up where it did. The Airport moves for summary judgment on the grounds that Alan has not alleged any evidence of negligence on the part of the airport. The Airport claims that it has no idea how the peel got there, but it could have been dropped a moment ago by another passenger, and that Alan can't disprove this possibility. The issue that must be decided is whether the airport’s motion for summary judgment should be granted or dismissed. Alan bears the burden of proving...
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...NEGLIGENCE The elements of negligence are set forth in the case of Carr v. Union Pac. R.R. Co., ____S.W.3d____, 2011 WL 4489982 (Tex. App.-Houston [4th District] 2011 no pet.), as follows: Elements: 1. The existence of a legal duty; 2. Breach of a legal duty; 3. Proximate causation, and; 4. Damages. Factual Background: This suit arises out of a train derailment occurring across the road from the Carr’s residence. The derailment caused one railcar to derail and spill the contents, methyl isobutyl ketone, a colorless chemical used primarily as a solvent. The Carr’s noticed the smell of the chemical and immediately complained of headaches, congestion, and runny noses. At the Trial Court level the Carr’s failed to provide expert testimony as a link between the chemical spill and the physical symptoms the Carr’s had experienced . The Suit: The trial court granted a no-evidence summary judgment in favor of the Appellee, Union Pacific Rail Road. The Appellants, (the Carr’s, et.al), failed to meet two of the four elements of negligence. The Appellants appealed, arguing that expert testimony is not required. The District court disagreed, reasoning that summary judgment was “proper because the Plaintiffs have not presented any expert witness testimony on the issues of proximate cause and damages”. The Appellate Decision: The Trial court decision was affirmed. SUDDEN EMERGENCY The elements of the rule of non-liability known as sudden emergency are set forth...
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...Assignment Nadel et al. v. Burger King Corp. & Emil, Inc. case 1. What court decided the case in the assignment? (2 points) COURT OF APPEALS OF OHIO, FIRST APPELLATE DISTRICT, HAMILTON COUNTY 2. According to the case, what must a party establish to prevail on a motion for summary judgment? (3 points) Emil moved for summary judgment, claiming that no genuine issue of material fact existed. BK also moved for summary judgment and pointed to evidence in the depositions that appellants knew the coffee was hot and that coffee was purchased and served as a hot beverage. It also contended under the circumstances that Evelyn's and Paul's actions were intervening, superseding causes precluding any actionable negligence on its part. 3. Briefly state the facts of this case, using the information found in the case in LexisNexis. (5 points) Christopher Nadel received second degree burns from coffee spilling on his right foot purchased at Burger King by his grandmother Evelyn Nadel. The Nadel’s brought suit against Burger King and franchise owner Emil, Inc, for product liability for a defectively designed product and for failure to warn of the dangers of handling a liquid served as hot as their coffee. The court granted both the Burger King owner and Burger King Corporation request for motion of summary of judgments. The Nadel’s appealed. The court affirmed in part and reversed in part. The summary judgment was wrongly granted on the products liability and related...
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...it, and c. fails to exercise reasonable care to protect them against the danger. Section 343A of the Restatement provides: a possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. Sections 343 and 343A of the Restatement (Second) of Torts preclude liability for a possessor of land where an invitee is injured as a result of a condition whose danger is known or obvious to the invitee, unless the possessor anticipated the injury despite the invitee’s knowledge or the obviousness of the condition. Restatement (Second) of Torts §343A(1). As the cases below illustrate, where a danger is “open or obvious,” the possessor of land does not owe the invitee a duty to take precautions against or warn of open or obvious dangers. Under Pennsylvania law the assumption of the risk doctrine applies to absolve the landowner from liability for injuries sustained if the plaintiff: (1) knows of the risk or hazard, and (2) voluntarily proceeds in that activity. There is substantial uncertainty as to the status of the assumption of the risk doctrine in Pennsylvania. Which party bears the burden to establish these elements is currently the subject of debate in Pennsylvania courts....
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...damages that she suffered because of the tort. Depending on the facts of the case, these damages may be for direct and immediate harms, such as physical injuries, medical expenses, and lost pay and benefits, or for harms as intangible as loss of privacy, injury to reputation, and emotional distress. In cases where the defendant’s behavior is particularly bad, injured victims may also be able to recover punitive damages. Punitive damages are not intended to compensate tort victims for their losses. Instead, they are designed to punish flagrant wrongdoers and to deter them and others from engaging in similar conduct in the future. Theoretically, therefore, punitive damages are reserved for the worst kinds of wrongdoing. Punitive damages have always been controversial, but they have grown more so in recent years due to the size of some punitive damage awards and the perception that juries are awarding them in situations where they are not justified. 2. Negligence Defenses The common law traditionally recognized two defenses to negligence: contributory negligence and assumption of risk. In many states, however, one or both of these traditional defenses has been superseded by new defenses called comparative negligence and comparative fault. Contributory negligence is the plaintiff’s failure to exercise reasonable care for her own safety. Where it still applies, contributory negligence is a complete defense for the defendant if it is a substantial factor in producing...
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...Case Name: County of Los Angeles v. Mendez 581U.S.___ (2017) Operational Fact: In October 2010, deputies from the Los Angeles County Sheriff’s Department were searching for a potentially armed and dangerous “parolee-at-large” that was seen at a certain residence. While other officers searched, without a warrant in the main house Deputies Conley and Pederson searched the back of the property where unknowingly, Mendez and Garcia were sleeping in a shack on the property. Deputies Conley and Pederson searched the shack without announcing their presence, startled the couple one of whom, Mendez, picks up a BB gun used mainly for killing pests and rodents. The officers see the gun and yell “Gun!” and start firing a total of “15 shots” at the suspected threat. Mendez and Garcia were injured in the incident and were hospitalized. The armed and dangerous “parolee-at-large” that was reported to be at this certain residence was not found on the property....
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...How to Brief a Case Using the “IRAC” Method When briefing a case, your goal is to reduce the information from the case into a format that will provide you with a helpful reference in class and for review. Most importantly, by “briefing” a case, you will grasp the problem the court faced (the issue); the relevant law the court used to solve it (the rule); how the court applied the rule to the facts (the application or “analysis”); and the outcome (the conclusion). You will then be ready to not only discuss the case, but to compare and contrast it to other cases involving a similar issue. Before attempting to “brief” a case, read the case at least once. Follow the “IRAC” method in briefing cases: Facts* Write a brief summary of the facts as the court found them to be. Eliminate facts that are not relevant to the court’s analysis. For example, a business’s street address is probably not relevant to the court’s decision of the issue of whether the business that sold a defective product is liable for the resulting injuries to the plaintiff. However, suppose a customer who was assaulted as she left its store is suing the business. The customer claims that her injuries were the reasonably foreseeable result of the business’s failure to provide security patrols. If the business is located in an upscale neighborhood, then perhaps it could argue that its failure to provide security patrols is reasonable. If the business is located in a crime-ridden area, then perhaps...
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...Jessica Case Briefing #2 LaPlace v. Briere New Jersey Supreme Court, Appellate Division 404 NJ. Super. 585, 962 A. 2d 1139 (2009) Facts: A horse owner brought an action against the person who exercised his horse while the horse was being boarded at the defendant's stable. While the stable employee was "lunging" the horse, the horse reared up, collapsed on his side with blood pouring from his nostrils, and then died. Issue: Was the defendant or the trainer liable for the conversion and negligence of the owner’s horse? Ruling: No, the court issued favor of the defendant, ruling that no intentional harm was done to the horse to cause death. Reasons: The lower court entered summary judgment in favor of the stable owner and person who exercised the horse. On appeal, the Superior Court, Appellate Division, held that the person who exercised horse could not be liable under the tort of conversion as she did not exercise such control and dominion over the horse when lunging it that she seriously interfered with plaintiff's ownership rights in the horse. Moreover, the exerciser's conduct was done in good faith and there was no causal connection between her conduct and the destruction of the horse. On the issue of bailment, the court found that while the horse was left in a bailment arrangement with stable when the plaintiff delivered his horse, the stable, as a bailee, could not be liable under a theory of conversion. The court stated that the sole fact defendant was...
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...for patients who fail to be compliant with their discharge instructions. III. Facts 1. In order to prove negligence or medical malpractice, the plaintiff must prove the: A. The requisite standard of care. B. A deviation from the standard of care C. A causal connection between the deviation and the claimed injury. 2. The hospitals rules, regulations, and policies do not establish a standard of care. However, a hospital’s failure to follow its own rules, regulations, and policies is evidence of negligence. 3. Discharge instructions can be construed to be part of a hospital’s rules, regulations and policies. 4. Unclear, or ambiguous discharge instructions can place the hospital at risk for increased liability for negligence if a casual connection can be made to a patient’s injury. Therefore, to protect itself, hospitals should be proactive in establishing clear discharge protocols and individualized discharge instructions. IV. Review of the Law In the case of Earline Therry, et al v. State of Louisiana, through the Department of Health and Hospitals and University Medical Center of Lafayette, Louisiana, a summary judgment was granted for the defendants based upon the plaintiff’s inability to establish a causal connection between a breach of the standard of care and any resultant injuries. In this case, Mrs. Therry accused the Defendants of negligence for allowing her to develop digitalis toxicity due to a one-day delay in returning to the hospital. Mrs. Therry’s...
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...Kaplan University Statute to the Samantha Smith Slip and Fall Case Donna Barnes PA201-06 Statute: Ind. Code Ann. § 34-51-2-7 (West 2013). The statute states that action based on fault against a defendant or defendants maybe treated as a single party. It also states that the jury is to determine the percentage of fault the claimant, of the defendant of any non-party. If the percentage of fault to the claimant is greater than fifty percent of the total fault involved in the incident that caused the injury the jury shall return a verdict for the defendant. If the percentage of fault of the claimant is not greater than fifty percent of the total, the jury shall determine the total amount of damages the claimant would be entitled to recover if contributory fault were disregarded. The jury then multiples the percentage of fault of the defendant by the amount damages determined and then enters a verdict for the claimant in the amount of the product of that multiplication. Statement of Fact: Samantha filed a complaint in trial court alleging negligence on the part of the store and is seeking damages for injuries that she suffered from the fall. The store is saying that Samantha is just as much at fault as they are. The store claims that Samantha wasn’t paying attention to where she was walking and should have been able to avoid the fall. The store also claims that Samantha was distracted by her young son. Question presented: Is Samantha just as much at fault as...
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...Overview of Negligence COLLAPSE Overview of Negligence We started our journey into negligence with Winterbottom v Wright (1842) 10 M &W 109. In that case the plaintiff Winterbottom was working for the Postmaster General as a driver of mail coach supplied by the Postmaster and the defendant Wright was contracted by the Postmaster to maintain the coach in a safe state. One day the plaintiff was in the coach when it collapsed and suffered injuries as result. He tried to sue the defendant in negligence but was unsuccessful. The court held that the defendant already owed a duty of care in contract, it could not also have a duty of care in tort. This case took place during the infancy of the industrialisation in the 19th century when it was in public interest to encourage innovation and technology. Similar social engineering also saw the courts in that era shield employers from actions of injured workers which would explain why the plaintiff did not sue the Postmaster. But the main reason why negligence had such a limited application was because the courts were wary of the potential of allowing unlimited actions. Heaven v Pender (1883) 11 QBD 503 took place some 40 years after Winterbottom. This is an important case because this is where Brett MR tried to establish the general principles of duty of care and expand the concept to be applied in all situations. However the court instead found for the injured plaintiff based on a duty of care owed by an occupier of land...
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