legal memo

Topics: Tort, Pleading, Negligence Pages: 2 (314 words) Published: October 15, 2014
Introduction:
We filed a complaint last month in trial court alleging that there was negligence on the part of the store. We were seeking an award for damages. In the answer to the complaint the store alleges that Samantha Smith had a duty to avoid the spill, and was unable to fulfill that duty because she was distracted by her misbehaving child. The store claims that her being distracted makes her equally at fault for the injuries sustained in her trip and fall accident.

Statement of Facts:
While shopping at the local grocery store with her young son, Samantha Smith slipped on clear, gel shampoo that had spilled into the isle. The fall resulted in a broken hip, requiring an overnight stay at the hospital as well as several months of physical therapy. The grocery store indicated that although they complete hourly isle clearance checks they were unaware of the spill. Issues:

1.Was the store negligent for not providing an environment free from hazards? 2.Is Samantha Smith partially responsible for her injuries based on her not keeping proper lookout and not avoiding the spill? 3.Based on the Comparative Fault Act, can Samantha Smith recover for her injuries?

BRIEF ANSWERS:

1.In Indiana the owner of a business or store is required to take reasonable measures to keep their property in a reasonably safe condition for persons who will be using the property. 2.Samantha Smith does have a responsibility to maintain her own personal safety. 3.Based on the Comparative Fault Act, can Samantha Smith recover for her injuries?

Applicable Statue:
1.Ind. Code § 34-51-2-6; “A Claimant is barred from recovery if the Claimant’s contributory fault is greater than the fault of all persons whose fault proximately contribute to the claimant’s damages”. The amount awarded is reduced and possibly eliminated based on the level of claimant’s fault found.
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