Duty

The Jacksonville Personal Injury Lawyers at

Shorstein, Lasnetski, & Gihon 

explain 


DUTY

All Jacksonville personal injury cases require that the person injured be able to prove that the person responsible for the injury had some duty of care toward the person injured.  In other words, the plaintiff must prove that the Defendant owed a duty of care.  For example, let's say a pedestrian was walking on a path past a lake and comes upon a person clearly drowning in the lake.  The pedestrian may have an moral obligation to help, but does he have a legal obligation?  If not, the decedent's family would have no cause of action for negligence in failing to rescue the victim or in failing to get help.  

Whether the defendant has a legal duty of care towards the plaintiff is usually a question for the judge to decide, not the jury.  It is determined on a case by case basis.  In some cases, it is easy to prove.  For example, when we drive on public roadways, we all have a duty of care to operate the motor vehicle in a prudent and careful manner.  Therefore, if a person is negligent in operating a motor vehicle and someone is injured as a result of that negligence, the plaintiff will have little problem establishing that the defendant had a duty to the plaintiff to operate the vehicle in a prudent and careful manner. 

So, where does the duty of care come from?  A duty can arise from statute, case law, or from the facts of the case, for example, by contractual language, by voluntary assumption of duty by the defendant, or by a special relationship between the defendant and the plaintiff. Where the duty is created by the facts, it typically must involve the harm being foreseeable.  In other words, the plaintiff must establish that he is in the zone of risk that was foreseeable to the defendant. 

A parent is not liable for the torts of their children simply because they are the parents.  Therefore, a parent may owe no duty to a plaintiff who is injured by the child.  However, there are exceptions.  For example, if a parent allows their child to drive a car or to possess a knife or weapon when the child's age, judgment, or experience causes a danger to others, the parent may become liable.  If the child was acting as an agent for the parent, the parent may become liable.  If the child was directed by the parent to commit the act, the parent may become liable.  If the parent knew or should have known an injury caused by the child was possible, the parent may be liable. For example, if the child has a history of fighting, the parents may become liable for an injury caused by the child committing a battery on another individual.  

An employer may be liable for the negligence of the employee.  This is commonly referred to as respondeat superior.  In order for the employer to be liable, the plaintiff must prove that the person that caused the injury was acting within the scope of employment.  An employer could be held liable for the negligent hiring of an employee. For example, if an apartment complex hires a maintenance worker who has a prior sexual offense conviction and gives him access to tenant apartments, the apartment complex could be liable for a battery or other tort committed by the maintenance worker employee.  For employer liability, the plaintiff will usually have to prove that the employer had the ability to control the employee.  In order to prove that an employer owed a duty of care to a plaintiff who was injured by an employee's actions, the plaintiff must typically establish that the plaintiff was in a place he had a right to be, met the employee as a result of the employment, and the employer would receive some benefit.  

Contact the Jacksonville Personal Injury Lawyers at
Shorstein, Lasnetski, & Gihon
Call - 904-642-3332
Text - 904-525-3332
Email - slglaw@slgattorneys.com
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