Assessment: Tort Exam Barnaby Willows Owns

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SAMPLE EXCERPT:

[. . .] The correct test today, is to concentrate on the connection between the nature of the employment and the particular wrong. The courts would then decide generally, whether it is just and reasonable, to hold the employer vicariously liable.

The Vicarious Liability test would not prevent Ms. Potts from seeking damages from Mr. Loiselle for his actions that caused Ms. Potts to be injured. Rather, it would only prevent Ms. Blair from paying for damages that she would not have any responsibility towards. Ms. Blair will assert that at the time of the accident, Mr. Loiselle was clearly an Independent Contractor and therefore solely liable for the damages caused by his negligence toward Ms. Potts and therefore, Blair Inc. would not be liable to compensate any party for Mr. Loiselle's negligence.

Question 3

Millard Fillmore recently purchased a home in the northern part of Melbourne for his wife and children. Mr. Fillmore works as an orthodontist in downtown Melbourne and is able to provide a comfortable lifestyle for his family. Approximately 6 months after purchasing and moving into the home, Mr. Fillmore decided to build and in ground swimming pool for his family to enjoy during the hot Australian summers. Mr. Fillmore hired the top contractor in the area to dig the foundation, pour the concrete and engage in the construction of his swimming pool.

The pool was approximately 10 feet deep at the deepest part with a built-in diving platform adjacent to the deepest portion of the pool. At the shallow end the pool was approximately 5 feet. Despite the requests from the contractor, Mr. Fillmore opted not to surround the pool with a safety fence but rather opted for a whole pool screen enclosure. This enclosure contained a door on each side of the pool that could be opened from the inside only. In the mind of Mr. Fillmore this would prevent his neighbor's son from endangering himself by falling in the pool.

After the pool was completed, Mr. Fillmore invited his neighbor, Mr. Jefferson along with his wife Susie and their 6-year-old son Thomas to a summer swimming party to commemorate the completion of the pool's construction. The adults were eating and drinking and some of these drinks were alcoholic. The party lasted for approximately 4 hours during that time, numerous alcoholic drinks were consumed by all adults in attendance. During the party, Thomas, the six-year-old son had climbed upon the built in diving board adjacent to the deep end of the pool. Without any proper adult supervision, Thomas fell into the deep end. Thomas, has never learned to swim on his own. Approximately 2-3 minutes passed before any of the adults, including Thomas' parents realized what had happened.

Emergency workers were responded to the call from the Fillmore residence. Thomas was rushed to the hospital where it was determined that he suffered significant neurological injuries due to oxygen deprivation. As a result of these injuries, Thomas would have severe motor, cognitive and neurological impairment for the foreseeable future. Thomas' learning skills and reasoning ability would be greatly hampered as he developed into adulthood.

The Jefferson have filed suit against Mr. Fillmore and his family on many grounds including breach of a duty of care related to a negligence claim within their compliant. The Jefferson's are asserting that Mr. Fillmore owed their son a higher duty of care given his young age and the environment where he was located. As a direct and consequential result of this breach of duty towards Thomas, Thomas sustained significant and severe injuries. Therefore, the Jefferson's are seeking over $10 million in compensatory and another $10 million in punitive damages.

Our law firm has been retained by Mr. Fillmore to represent him in this matter. The senior partner has asked you to draft a simple memo for a client meeting later this afternoon regarding the existence of a claim for relief presented by Mr. Jefferson. The senior partner wishes to know if the elements of a Breach of Duty of Care exists. She would like you to reference at least two recent cases in your memo that would demonstrate a lack of support for Mr. Jefferson's argument.

Answer

In determining if Mr. Fillmore owed Mr. Jefferson a reasonable duty of care, the main principle to incorporate into any analysis that carelessness does not always equate to breach of duty or to negligence. The main point of law to be considered is that a Defendant is found to have breached their duty of care when and if the damages are reasonably foreseeable. Careless acts do not always amount to negligence. In negligence, a person is only liable for harm that is the foreseeable consequence of their actions, that is, failure to exercise reasonable care and skill. The Plaintiff must be able to substantiate that the damages caused by the Defendant were not too remote and were resultant from Defendant's breach of their duty.

The definition of a Duty of Care is found in the common law's definition of the "reasonable person standard." This standard holds that all members of society are required to act with care towards one another in a manner consistent with what a "reasonable person" would do. There are various situations wherein a duty of care applies and one of these areas is for owners of a premise; wherein individuals are entering the premises. Under the common law, there is no breach of duty when injuries are caused by a failure to act.

Mr. Jefferson may attempt to argue that there was a vulnerable relationship between the Defendant and the Plaintiff's son. This is an issue for the trial court to determine at a hearing; however Mr. Fillmore can raise the defense of contributory negligence. Mr. Fillmore can assert that Mr. Jefferson's consumption of alcoholic beverages during the party impaired his judgment as to the nature of the risk.

Although this is a valid point, the main issue is the presence of a Duty of Care. According to Common Law, there are three elements that establish a Duty of Care. These elements are: (1) Was the Defendant in a controlling position?; (2) Was the Plaintiff reliant on the Defendant? And (3) was the Defendant in a position to be protective of the Plaintiff? The answer to these questions will undoubtedly determine if a Duty of Care was owed to Mr. Jefferson's son.

With respect to the first element, there are no facts to establish the premise that Mr. Fillmore was in a controlling situation or position. There are no facts to support the theory that Mr. Fillmore was entrusted with the responsibility to monitor Mr. Jefferson's son during the pool party; therefore, Mr. Fillmore was not in a position of control.

Regarding, issue number two, the Plaintiff was not reliant on the Defendant. There are no facts plead by the Plaintiff that demonstrate that Mr. Jefferson relied on the Mr. Fillmore at any time during the pool party. Additionally, there are no facts to substantiate that Mr. Fillmore was in a position to be protective of the Plaintiff. Mr. Fillmore could not have reasonable foreseen that Mr. Jefferson's son would endanger himself by falling into the deep end of the pool. In the alternative, Mr. Fillmore relied on Mr. Jefferson and his wife, Susie, to exhibit the reasonable duty of care towards their own son to monitor and control the situation. Therefore, Mr. Fillmore could indeed argue an alternative theory; that all the elements of a Duty of Care and the resultant Breach of that duty were present; however they were present on behalf of Thomas' parents, not Mr. Fillmore.

Based on this analysis of Australian Case Law and Common Law theories, it is likely that a trial court would rule that Mr. Fillmore did not Breach the Duty of Care, that no Duty of Care existed between Plaintiff and Defendant and Mr. Fillmore is not liable for the damages suffered by Mr. Jefferson's son, Thomas.

Question 4

Abraham Washington is an employee of Acme Processing, Inc. A wholesale electronics distributor within the greater Sydney area. Mr. Washington has worked for nearly 10 years with Acme and according to his records is a quality employee. Mr. Washington's job duties include inspection of the stereo equipment that is placed onto pallets by a giant forklift and are scheduled to be shipped to various vendors throughout Australia.

Mr. Polk has recently been hired as a forklift operator with Acme, Inc. Mr. Polk is 22 and this is his first job in the private sector. His prior employment was at the University library. He has no experience operating heavy machinery; however, Mr. Polk was recently certified by Acme's own training program as possessing the required skills necessary to operate a forklift within the confines of the factory floor. This is Mr. Polk's first attempt at loading equipment onto… [END OF PREVIEW]

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