Legal & other issues from SG Mishap

[Night Diver]

2d Restatement of Torts 324A creates duty where one has "assumed" it. It seems that the factual determination of whether the duty was assumed would be a fact issue for jury or at worst a mixed issue of law and fact.

I am trying to find a case on assumed duty in Florida to see whether I'm right.

That provision is the Restatement's incorporation of the so-called "Good Samaritan" doctrine, where a person who presumes to act in the aid of another assumes the duty to act reasonably, and not negligently make the other person worse off by virtue of having "assisted" than they would have been otherwise.

But I am unclear if you are suggesting this applies to the boat operator or the entity that sank the ship?

 

[Gombessa]

no. i keep telling you. the Plaintiff brings supporting law, and I argue that the supporting law is not sufficient to create a new duty. i can bring law that i want the judge to follow (and should, as a prudent attorney) but merely distinguishing the Plaintiff's cases should be enough.

But the Pl is not just trying to turn the law. They're also arguing that the duty already exists, under existing negligence caselaw (e.g., there may be no direct authority on entities like UKRAK creating artificial reefs, but this activity falls under the swing set case). That's not creating a new duty, and though the D will certainly argue that it is a new duty, and if it's not, then there is contrary law that they think should control, the court could find the other way. The Pl is not concretely destined to lose.

 

[H2Andy]

Check out Shealor v. Ruud, 221 So.2d 765 (Fla. 4th DCA 1969)

exactly my point. the court held that the duty existed, and if the city were negligent (to be found by a jury) then it could be liable


but if there is no "duty" to be assumed, then there's no question for the jury

Underwood v. City of North Miami, 559 So. 2d 97 (Fla. 3rd DCA 1990)

i can't find this case, sorry

i doubt it will depart from 200 years of established common law

 

[Boatlawyer]

Andy, I may have stated this previously, but if in fact you are correct, new, expanding duties would never be established, because there was no case law establishing it. We know that's not the case.

 

[H2Andy]

But the Pl is not just trying to turn the law. They're also arguing that the duty already exists, under existing negligence caselaw

yeah ... so let them bring the case law to prove it



and then i shoot it down because it's nothing like the issue here

we're going in circles

 

[Boatlawyer]

exactly my point. the court held that the duty existed, and if the city were negligent (to be found by a jury) then it could be liable


but if there is no "duty" to be assumed, then there's no question for the jury




i can't find this case, sorry

i doubt it will depart from 200 years of established common law

try again, grasshopper. It's one where summary judgment was denied on the issue.

 

[H2Andy]

Andy, I may have stated this previously, but if in fact you are correct, new, expanding duties would never be established, because there was no case law establishing it. We know that's not the case.

ah, but i am not arguing that



there may be a time and place to extend the law, but these facts do not warrant that

not to brag, but i've represented WalMart, KMart, Johnson Controls, Visteon, and the City of Jacksonville, and i have yet to lose a jury trial

could i be wrong? of course

could i be wrong on something as basic as this? no way

 

[H2Andy]

try again, grasshopper. It's one where summary judgment was denied on the issue.

well give me a link to it or something, i can't quite comment if i dont' see it

and i doubt your reading is correct, as i said earlier

 

[mdb]

yeah ... so let them bring the case law to prove it
and then i shoot it down because it's nothing like the issue here we're going in circles

Of course.

 

[Boatlawyer]

ah, but i am not arguing that



there may be a time and place to extend the law, but these facts do not warrant that

not to brag, but i've represented WalMart, KeyMart, Johnson Controls, Visteon, and the City of Jacksonville, and i have yet to lose a jury trial

could i be wrong? of course

could i be wrong on something as basic as this? no way

May be that you're smart enough to settle bad cases before trial too.