Torts Personal Injury free essay sample

Plaintiff, in writing, for recovery of damages in a potential case against â€Å"Gravel Is Us† Co. located in the State of Ohio. By these means, the following is the evaluation: According to our information, an employee of a dynamite blast company by the name of â€Å"Gravel is Us†, contracted by the State of Ohio, was negligent in failing to prevent you from entering its construction danger zone and causing severe injuries to you. The gravel company claims, that the street warning sign that they had previously; put up was sufficient enough to prevent harm, but are not denying their employees negligent actions. Plaintiff must show proof of four elements, in order to win a claim against the Defendant. The elements are as follows: 1. Basic Duty 2. Breach of duty 3. Cause 4. Harm Defendant, had the basic duty to prevent outside vehicles from entering the danger zone during, their dangerous explosive activities. Defendant breached their duty when one of their employees fell asleep during their shift, leaving opportunity to allow entrance to a dangerous zone; hence allowing our Plaintiff’s vehicle to enter said danger zone. Had the Defendant’s employee performed their job under the basic reasonable standard of care, our Plaintiff would have then been prevented from entering said zone, which was neglectfully unsupervised at entrance by Defendants employee. If said mentioned employee had prevented the entrance of an explosive and dangerous construction zone, our plaintiff would have also been prevented of his injuries. Our Plaintiff has since suffered major injuries arising from Defendant’s formatted employee’s negligence in which a plausible and foreseeable event of explosions from Defendant’s construction site injured our Plaintiff. Under the doctrine of respondent superior â€Å"an employer is liable for the negligent acts or omissions of his employee which are committed within the scope of his employment. Liability based on respondent superior requires some evidence that a master-servant relationship existed between the parties. The test to determine if respondent superior applies is whether the person sought to be charged as a master had the right or power to control and direct the physical conduct of the other in the performance of the act. If there is no right to control, there is no liability. Wilson v. United States, 989 F. d 953, 958 (8th Cir. 1993) â€Å"An employer may be liable for the intentional torts of its employees as the law now imposes liability whether the employee’s purpose, however misguided, is wholly or in part to further the master’s business. † State v Hoshijo ex rel. White, 102 Hawaii 307, 318, FN 27 (Hawaii, 2003). In Rich v. Ohio Underground, 1991 Ohio App. LEXIS 6155, an Ohio Appellate Court overseeing Walczesky v. Horvitz Co. stated Strict liability is imposed on: †¢ When he or she engages in an extraordinarily hazardous activity that causes injury to †¢ Notwithstanding the lack of negligence on the part of A. The act itself is so exceptionally hazardous that the doing of it imposes an absolute duty to protect the public from any harm, regardless of any Carelessness or negligence on the part of the actor. For example, the intentional use of explosives to excavate gives rise to an absolute liability for any injury occasioned as a result. (1971) 26 Ohio St. 2d 146. In the Case of Bricker v. Snook, an Appellate court (1989) Ohio App. LEXIS 1076 stated: â€Å"It is the universally accepted rule that an employer is liable for personal injuries or the death of another person, or injury to nother persons property caused by his employees negligence, misconduct, misfeasance, or wrongful, improper, or unlawful acts, when done within the scope of his authority, whether the authority is express or implied, or inferred from the general course of business. Defendant can make one presumable argument, and that is that it is immune to liability as a State contractor, and said argument with thus should i f all else fail. As a reason for denying the extension of immunity to the contractor, the Ohio Supreme Court cited the court in Whitney v. Myers Contracting Corp. , (1971) 146 W. Va. 146, said: It can hardly be argued that the contract, contemplated, or that the parties thereto could have foreseen, the destruction or damage, or that such destruction or injuries were a necessary or an unavoidable incident of the performance of the contract. The Ohio Supreme Court further elaborated on Whitney: â€Å"We agree with that reasoning and the above-cited authorities. We conclude, therefore, that the description of this a road contractor who engages in blasting operations incident to road construction under a contract with the state, which activity results in vibration r concussion damage to a landowners property, is not entitled to the protection of governmental immunity. Walczesky v. Horvitz Co. , (1971) 26 Ohio St. 2d 146. Therefore under the doctrine of Respondent Superior, the Defendant â€Å"Gravel is Us† would be found and held accountable for its employee’s negligent action in falling asleep while on duty. Their employee failed to perform thei r duty, hence allowing injury to happen to our Plaintiff. The doctrine of strict liability would also be applied based on the law of the State of Ohio, regardless of the basic standard care the Defendant claims to have provided with their warning sign. A claim of negligent action showing that all required elements of duty, breach, cause and harm can and will be shown, and the doctrine of strict liability will then apply for Defendants dangerous use of explosives. Presumably any argument Defendant can possibly make would be denied. I believe that Plaintiff may have a strong case against â€Å"Gravel Is Us Co. †, but also, you may have a case against the State of Ohio for his injuries. The State of Ohio may be responsible for hiring Gravel Is Us Co.