# Intesar S. -- Torts 009: Both Attempts (Full Responses) **Packet:** torts_009 (Lifeguard / Negligent Entrustment / Wrongful Death) --- ## Attempt 1 -- May 28, 2:47 PM ET **Word Count:** 1,119 | **Time:** 45 min 41 sec | **Band: 2/6** --- Negligence: 1. Mr. Gropher's liability to Leo Lion Club An employer is vicariously liable for an employee's torts so long as the misdoings are within the scope of employment and are not a major detour. A full time employee is held to be under the complete control of the employer. An Employee can be held personally liable for their torts for failing to act when a duty arises. Here, the club employed Mr. Gopher as a full-time, certified lifeguard, Mr.Gopher is under the complete control of the club. The Club's failed to use a simple background check which would have revealed that Mr. Gopher was fired from his previous employment as a lifeguard for failing to act during simulated emergency drill. It could be argued that the negligence of the club for hiring Mr. Gopher without a background check, is the cause in fact reason for why Mr. Gopher failed to intervene when Leo was drowning. Club, the employer is vicariously liable for Mr. Gophers failure to save Leo when he fell and mistakenly believed a child is a trespasser to whom he owed no duty to. Mr. Gopher, during the incident was under the employers control and within the scope of employment by watching the entirety of the pool. In conclusion, Mr. Gopher will likely to be found liable to Leo under vicariously liable by the Country Club and personally liable because Mr. Gopher mistakenly believed he had no duty. It can be argued that Mr. Gopher did not Trespasser No duty is owed to a trespasser who willingly enters the property of another. However, a child, under attractive nuisance doctrine, a duty is owed to the child to secure an attractive dangerous property, such as a pool. A child is unable to appreciate the risks and the child will be held to the standard of a child of similar age and intelligence. Here, while Mr. Gopher was on duty, 8 year old Leo, who's family was not a member of the club, wandered onto the property through an open gate. Leo, being only 8 years old is unable to appreciate the risks of entering a property with a pool. A child of similar age would find a pool to be "attractive". There is no further insight on the intelligence of Leo but it would be held he is of normal standard. Furthermore, Leo could not swim and slipped into the deep end of the pool, this shows that Leo's inability to swim, is common amongst children of similar age. Lastly, Mr. Gopher saw Leo fall in and watched him struggle in the water in his elevated lifeguard chair, Mr. Gopher has no defense of not seeing Leo and had the ability to see the entirety of the pool on his lifeguard chair. In conclusion, Mr. Gopher believing he had no duty to a trespasser, and not intervening was a breach of duty owed to Leo because Leo was a child who entered into the club through an open gate, that should have been secured owing Leo the utmost duty to protect any item that could attract children of similar age. 2. Claims: a. Ms. Fox for Mr. Crow's Injuries A parent is not held liable for the torts of their child. However, a parent can be held for the torts of their underage child if the parent has reason to know of the Childs misconduct and allowed the conduct knowing damage is very likely to occur. Here, Ms. Fox knew in the last year, her son Ferret had not only received a speeding ticket but had also been found at fault in two minor accidents. It can be inferred that the 16 year old, is not a safe driver and would require further guidance. Ms. Fox allowing her son to drive the vehicle, without adult supervision with the past tickets and accidents puts Ms. Fox at fault for she was aware and knew her Son was not a safe driver. When Ferret struck Mr. Crow, Ferret was distracted by his cell phone, which can be argued is not a speeding ticket. However, the minor accidents can infer that Ferret was previously distracted and continues to be distracted and therefore Ferret using his cellphone while driving causing another accident with mr. Crow. Mr. Crow, after suffering succumbed to his injuries, resulting in Ferret killing Mr. Crow. Normally, parents are not liable for the torts of their children, however, Ms. Fox knew of her sons distracted driving habits and therefore, would make Ms. Fox liable for her 16 year old minor's torts. In conclusion, Ms. Fox would likely be found liable for Mr. Crows injuries because Ms. Fox is the parent of Ferret and had the knowledge of Ferret's past misconduct and his likeliness to commit another accident. b. Otter Creek Country Club for Mr. Gopher's inaction Vicarious liability and Agent of the Country Club Vicariously liable rule above Here, the Country Club will likely to be found liable for mr. Gophers inaction, for Mr. Gopher was under the scope of employment within the employment guidelines. Furthermore, Mr. Gopher was performing as a lifeguard would normally perform by sitting on the lifeguard chair, thus, holding himself as the agent for the Country Club. Thus, as an agent of the club Mr. Gopher's torts will become the Country Club's torts and the Country club would be liable for the serious and permanent lung damage to Leo for Mr. Gopher's inaction. 3. Mrs. Crows claims on behalf of herself on Mr. Crow's estate: Wrongful death suit entails 1) a wrongful death of a family member and 2) a defendant who negligently caused the death or had reason or control of someone who caused the death. Here, Mrs. Crow would likely be able to present a wrongful death suit on behalf of herself and on behalf of Mr. Crow's estate. Mrs. Crow had suffered through the death of her husband, Mr. Crow who had succumbed to his injuries after being struck by a car due to the negligence of Ms. Fox and her son Ferret. Mrs. Crow could hold Ms. Fox liable for her minor son's tortious behavior by allowing the car to be taken by him because she had known of his past misconduct while driving and still allowed him to use the vehicle thus, negligently causing the death of Mr. Crow. In conclusion, Mrs. Crow can likely bring the claim of wrongful death on behalf of herself and Mr. Crow's estate. Mrs. Crow, has lost her companion and Mr. Crow has lost his life due to the negligence of Ms. Fox and her son Ferret because of his failure to act as a reasonable person of age under similar circumstances. --- ## Attempt 2 -- May 28, 4:16 PM ET **Word Count:** 824 | **Time:** 36 min 56 sec | **Band: 4/6** --- 1. Whether Mr. Gopher is liable to Leo Lion Club for negligence: No Duty to Rescue/Special Relationship Exception: Generally there is no duty to rescue a trespasser if one did not place another in peril. However, there is a special relationship exception between those who are hired in order to perform services to avoid physical harm, they are required to render the services as hired and use reasonable care in conducting the services. Here, Mr. Gopher generally had no duty to rescue a trespasser (Leo Lion Club), however, Leo falls under the special relationship exception to be rescued. Mr. Gopher was hired by his employer to render services as a lifeguard to provide life saving measures. Therefore, a duty to save Leo was created under this exception. Mr. Gopher breached his duty to not only save Leo but also failed to provide life saving measures after he was pulled from the water by a Club member. Leo suffered serious and permanent lung damage due to Mr. Gophers failure to render his life guarding services and failed to avoid physical harm to Leo by providing his services and lastly, failed to use reasonable care. Therefore, Mr. Gopher is liable to Leo Lion Club for Negligence for breaching his duty because he failed to render services as his employer employed him to do and failed to take reasonable measures to avoid further physical harm to Leo. 2. Claims to be brought: Negligent Entrustment (a). Whether Ms. Fox is liable for Mr. Crow's injuries A chattel that is supplied to an actor and the supplier knows or has reason to know of the risk of physical harm actor could cause to third party will subject supplier to liability for physical harms to those. Here, the chattel is the vehicle, the vehicle was supplied by Ms. Fox, who is the supplier. Furthermore, Ms. Fox had knowledge of her 16-year-old son's previous speeding ticket and his at fault (2) minor car accidents and because of this knowledge by Ms. Fox, she knew and had reason to know the risk she was taking by allowing her son to use the car. Lastly, the injuries endured by Mr. Crow will subject Ms. Fox for liability because she knew of the risk of providing the chattel to her minor son and did it anyway. Therefore, Ms. Fox will be liable to Mr. Crow for his injuries due to Ms. Fox suppling the chattel (car), and knew of the risk of physical harm she was creating by allowing her son to use the car, and then harm occurring and resulting in the death of Mr. Crow, subjecting Ms. Fox to liability. Negligent Hiring (b) Whether Otter Creek Country Club is liable for Mr. Gopher's Inaction. An employer is subject to liability for the tortious conduct of a employee if the employer negligently hired, trained, supervised, or retained an incompetent or unfit employee. Here, Mr. Gopher was hired by Otter Creek Country Club, a private members-only facility with a large swimming pool. The Club failed to subject Mr. Gopher to a simple background check that would have revealed that Mr. Gopher was previously fired for failing to act during a simulated emergency drill. Thus, evidencing that an employer, the country club, is liable for Mr. Gophers tortious acts (the inaction to save leo) because the employer negligently hired Mr. Gopher and the club retained an unfit employee (Mr. Gopher for inaction in previous job), therefore, the employer will be subject to liability for Leo's permanent injuries. Therefore, Mr. Otter Creek Country Club will likely be found to have negligently hired Mr. Gopher for the failure to conduct a background check revealing his "unfit" past resulting in his tortious conduct against Leo further causing physical harm to Leo. 3. Whether Mrs. Crow may bering a claim on behalf of herself and on behalf of Mr. Crow's estate. Wrongful Death A wrongful death suit may be brought if (1) it is believed the defendant wrongfully caused the death of a family member and/or (2) death was negligently occurred by recklessness of conduct or inaction, (3) loss of consoritum, medical bills, and funeral expenses Here, Mrs. Crow may bring a wrongful death suit for she had lost her life partner and thus will suffer loss of consortium due to the loss of her husband. Mrs. Crow will further suffer medical bill and funeral expenses. Thus, these claims would be successful for Mr. Crow was negligently killed in a car accident and Mrs. Crow may bring against Ms. Fox and her son for a wrongful death suit to recover her losses and to lessen her suffering for she has lost her companion and will continue to suffer for life. Therefore, Mrs. Crow may bring a wrongful death suit that will be successful against Ms. Fox and her son for the negligent entrustment and the negligence of the act that resulted in the injuries and death of Mr. Crow.