 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Madsen v. Scott5/13/1998
e are no facts presented to allow a reasonable jury to find proximate cause. n.6 (citing ); see also, Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 101 (N.Y. Ct. App. 1928).
Black's Law Dictionary defines foreseeability as:
he ability to see or know in advance; e.g. the reasonable anticipation that harm or injury is a likely result from certain acts or omissions. In tort law, the "foreseeability" element of proximate cause is established by proof that actor, as person of ordinary intelligence and prudence, should reasonably have anticipated danger to others created by his negligent act. That which is objectively reasonable to expect, not merely what might conceivably occur.
Black's Law Dictionary 449 (6th ed. 1990). In , the New Mexico Supreme Court defined foreseeability. Foreseeability is an "act or failure to act [that] will result in an unreasonable risk of injury ." Id. Foreseeability, however, is limited to "`that which is objectively reasonable to expect, not merely what might conceivably occur.'" ) (quoting Mata v. Clark Equip. Co., 347 N.E.2d 763, 766 (1978)).
{43} Homeowner should not be held liable for an injury caused to a third person, Jason, by his house-sitter's brother, Richard, and by his house-sitter's brother's gun and ammunition. Homeowner did not authorize or encourage Richard to bring his gun into the house; bringing the gun into the house was of no benefit to Homeowner. Homeowner had no knowledge of the propensity Richard and Jason had for playing quick draw.
{44} A reasonably prudent person could not have foreseen that Melvin's failure to care for Homeowner's guns would have caused Jason such an injury . A reasonable person would not anticipate that someone would bring guns into his home. Even more so, a reasonable person would not anticipate that Richard's loaded gun would be used to play a fatal game of quick draw involving Homeowner's unloaded weapon. The guns, the ammunition, and the game of quick draw were intervening causes that Homeowner could not foresee. To expect Homeowner to have anticipated this would be to require every homeowner to anticipate total disaster each and every time they left their home in the care of a house-sitter.
B. Agency Principles and Respondeat Superior
{45} Even if this accident had been foreseeable, no agency relationship was present in this case. Plaintiffs argue that a principal-agent relationship existed between Melvin, Richard, and Homeowner and that Melvin and Richard were subject to Homeowner's control at the time of the accident. In the alternative, Plaintiffs argue that there are genuine material facts in dispute that would preclude summary judgment. I first address the agency relationship in general. An agency relationship is a mutual agreement between two parties by which one party, the agent, undertakes to act on behalf of another person or entity, the principal, subject to the principal's control. Daniel S. Kleinberger, Agency and Partnership 1.1, 3.2 (1995). A subset of an agency relationship is respondeat superior to the employer-employee relationship. Restatement (Second) of Agency 2 cmt. a (1993). An employer-employee relationship exists where an individual, the employer, employs the services of another, the employee, to perform services for him or her. The employee may or may not be paid a salary or wages. See Lai v. St. Peter, 869 P.2d 1352, 1357 (Haw. Ct. App. 1994) (defining employee as "one who works for a salary or wages under directions.") (citation omitted); but see (stating that an employer-employee relationship may be gratuitous). The employer retains control or the right to control the physical conduct of the other in performance of the serv
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 New Mexico Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|