Memorandum

Memorandum
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MEMORANDUM
TO: Sheraton Best Western Hotels
Wawanesa Insurance Brokers
Barabco construction and development
FROM: Student’s Name
DATE: September 12, 2010
RE: Mrs. Marge Simpson
ISSUE
Is it justifiable for Mrs. Simpson to file a lawsuit when she was injured falling down an open manhole at a construction site due to negligence of the workers of the site, causing long term suffering for her including broken wrist and ankle and losing publishers for a book she was writing?
BRIEF ANSWER
Yes. The regulations to follow in a construction site are very clear and strict in both state and federal law and failing to do so is an act of crime; especially when it directly causes physical harm to an individual. This is considered as negligence which is a failure to exercise reasonable precautions under given circumstances. Although the term does not refer to intentional harm, it is legitimate to demand for compensation by the injured plaintiff if there is any harm to physical or mental well being as well as damaging property or financial status.
FACTS
On September 12, 2010 Mrs. Simpson arrived in Bedrock International Airport from Springfield International Airport where she met Mr. Otto Man, the driver who worked for the Sheraton and was assigned to pickup Mrs. Simpson from the airport and brought her to the hotel. Conversation between Mrs. Simpson and Mr. Otto Man was minimal as the private window of the limousine was closed by Mr. Otto Man. Upon arrival at the Sheraton at 2:25 pm, Mr. Otto Man parked the limousine in front of the main door lobby of the hotel. At that time, a construction was taking place at that location for internet cables which was unnoticeable to Mrs. Simpson as the private window was closed. The workers of the construction site were employed by Barabco Construction and Development and they were at lunch when the limousine reached the site, carrying Mrs. Simpson. The limousine was parked adjacent to an uncovered manhole, used as a gateway for underground wiring. Mrs. Simpson, unaware about the open manhole, stepped out and fell into the manhole. Mr. Otto Man rushed to her aid and called 911 asking for help. In his call, Mr. Otto Man said that he “did not know that the manhole was uncovered”.
Mrs. Simpson was taken to Hyman Krustofski General Hospital where Dr. Helen Lovejoy, an orthopedic surgeon ordered for x-rays which later confirmed a broken wrist as well as a broken ankle. Mrs. Simpson had to wait for six weeks to fix her fractures and on November 04, 2010, she left for home where she had to use physiotherapy for next three months with each session for at least one hour and three times a week.
Mrs. Simpson was writing a children book before the injury which was not possible to continue after the injury due to the broken wrist. With the therapy, she was fully recovered in a few weeks and was safe from any permanent damage. However, as she missed the deadline for completing the book, she not only lost her previous publisher but also lost her chance with any other published in Springfield to publish her book in near future. As she put a lot of time and hard work for the book, she decided for tort claim and compensation against the hotel and construction company for their negligence.
DISCUSSION
It is a legal obligation under a duty of care to adhere reasonable care by an individual while performing any act that may cause predictable harm to others and failing to establish an appropriate course of actions is considered as negligence. In the tort law, it is the first element of negligence and the plaintiff must be able to proof that the duty of care has been breached by the defendant. In Canada, the responsibility of any harm or physical injury due to negligence often rest on the occupier if the event takes place inside the premises of the occupier and that does not mean the occupier has to be the owner of the premises; rather it can be a tenant or any other person who is physically in possession of the premises. In simple word, the occupier is someone who is in charge of the premises during an event within the area and in Canadian law; the people who are repairing or maintaining the premises are bear a duty of care to the users of the property.
While working in a construction site, the workers were supposed to take necessary precautions to avoid any injury. In our case, absence of such actions is duly noticeable. The workers were such careless that they did not even use any safety measure when they went for lunch. Because of this negligence, Mrs. Simpson felt down the manhole created for underground works on internet wiring, causing long term physical injury to her as well as financial loss in the long run. So it is a clear case of violating duty of care and the only thing left for decision is whether the workers have foreseen the consequences.
However, the idea of foresee ability has been criticized by many including Justice David Eagleson of the Supreme Court of California. In the case, Thing v. La Chusa, 48 Cal. 3d 644, 667 (1989) standing against majority opinion, he stated that:
“Experience has shown that . . . there are clear judicial days on which a court can foresee forever and thus determine liability but none on which that foresight alone provides a socially and judicially acceptable limit on recovery of damages”.
In many cases, even reasonably foreseeable events can decline the liability of the occupier which was used in Childs v. Desormeaux S.S.C. 18 (2006) by the trial judge at the Ontario Superior Court of Justice.
However, the requirement of foresee is the most crucial part of such cases where the plaintiff face direct physical, mental or financial loss. In our case, this is even more obvious as it is not allowed by the law for the construction workers to leave a manhole open, risking serious injury to others. Under the common jurisdictions, this is a tort or a civil wrong (Williams, 1982); but in Canada, t...