Latimer v. Fisher Case Study: Analyzing Liability & Negligence

This case study examines the potential legal claims of Mark Latimer and his wife Beth against Becca Fisher, the owner of a bookstore, following Mark's slip and fall injury on the sidewalk in front of the store. The analysis focuses on premises liability, specifically whether Fisher breached her duty of care to Latimer by failing to adequately address the icy conditions on the sidewalk. The discussion covers the elements of negligence, including the duty of care, breach of duty, causation, and damages, referencing relevant case law such as Donoghue v. Stevenson and Caparo Industries Plc v. Dickman. The case study also explores the potential for a claim of bystander emotional distress for both Mark and Beth, stemming from the physical injury and associated financial losses, as well as Beth's distress from witnessing Mark's fall and injuries. The analysis considers the requirements for establishing a duty of care and proving negligence, concluding with an assessment of the likelihood of success for both claims.

Memorandum
TO: Mark Latimer
FROM: Mr. Coleman
RE : Mark Latimer’s chances of winning the case
DATE: May 31 2018
Issues
Whether Mark Latimer could win a case for Mr. Coleman international bystander
emotional distress and of slip, fall and injury while side walking in front of MS Fishers
bookstore?
Brief Answer
Yes, Mark Latimer and his wife Beth can sue MS Fisher and can claim damages for her
duty of care which was breached and also for personal injuries so caused to them. Beth can get
claims for the emotional distress so faced by her while watching her dear one falling and getting
injured in front of her and Latimer can easily get compensation for the injuries caused to him due
to the fall and along with it the monetary loss caused due to them as the consequences of injuries
caused because of fall i.e. tickets and other cost associated with their already made vacation plan
for going to climb Mount Everest which are not refundable.
Statements Of Facts

Mr. Latimer and his wife Beth contacted our office regarding the possibility of suing
Becca Fisher, the owner of the bookstore in New York City for the injury so caused to Latimer
while side walking in front of Beccas ’bookstore which had become slippery due to regular
shovel of snow and as he fell his left Achilles tendon tore and he could not wake up, and then his
right cheek also got a cut due to the ice fall on him from the icicles above the place he was sitting
after he got up from the place he fell off. Both of them were in a shock and Mark was screaming
out of pain and looking at her husband’s blood. Beth almost fainted. This fall did not just gave
physical pain or injuries to Latimer and Beth but also ruined their trip planning to climb Mount
Everest as doctor had conveyed them that Mark will not be able to take up such a hard climb due
to his surgery and he would require a minimum of one year time for complete recovery. They
will also not get any refund for their plane tickets and other costs associated with their vacation
plans, in short they had to bear a loss of $30,000 which also caused bystander emotional distress
to the couple, for Beth it was seeing her dear one falling, getting injured and screaming in pain
right in front of her eyes and for Latimer it was the fall and injury and along with it the monetary
loss as the consequences of the injury.
Discussion
Duty of care by MS Fisher
MS Fisher would not have been sued for violating duty of care if she had used that street
side as her business premises in summer time so although she tried very hard to clean up the ice
from the sidewalk of the shop even by calling up MSR team to remove of the ice and also had
treated it with salt and even after her hard trial she did not get success in it during winters at the
time of snow shovel. Duty of care indicates the circumstantial relationships recognizes by the

law as giving birth to a legal duty which is to be taken care of and the omission of such duties
can held the defendant being liable for its violation of his/her duties and will also have to pay of
damages to the injured party who suffers the damages as a result of their violating duty (Suszek,
2012). This was held in Heaven v. Pender (1883) 11Q.B.D 503.
Negligence is committed when a party fails to fulfil his duty with proper care and such
actions result in loss to any individual for whom such responsibility of legal obligation of care
was given and therefore, to determine the commitments of negligence its essential elements are
to be abolished.
In Donoghue v. Stevenson [1932] UKHL 100, as per stated by Court, the manufacturer of
bottles who owed the duty of care towards all those people who purchased their bottles and used
for consumption. Hence, when a snail was found inside the bottle manufactured by Stevenson, so
he was held negligent on his part as he owed a duty of care towards Donoghue and was made
liable for the compensation for the damages so caused. Similarly MS Fisher also owes a duty of
care for towards her customers and would be held liable for compensation to Mr. Latimer for the
injury so caused to him due to the negligent attitude of MS Fisher.
The duty of care was also breached or violated in the case of Vaughan v. Men love (1837)
3 Bing NC 467, in which an individual had to take action, who was a reasonable person and who
himself got bound to take, when the defendant fails to do so, the violation of duty being breached
was framed against him (E-Law Resources, 2017a). The suffered loss has to be sustainable and
was uncertain one (Gorgory, 2005).Even after having the complete knowledge of the danger of
injury MS Fisher was unable to tackle or resolve the problem of slippery ice from the sidewalk in
front of her shop.

Duty of care has three requirements basically and they are as mentioned, 1. Reasonable
foresight of harm, 2. Relationship of Proximity and 3. Fair, just and reasonable imposing of duty
of care. When Court of England in the case of (Caparo Industries Plc v. Dickman [1990]2 AC)
stated the above 3 conditions for proving negligence of duty of care. Some duties are to be taken
with care have been violated in order to prove the Negligence of Tort and cause some loss or
damage to the other and along with that there must be a casual link between the breach of duty of
care and the loss or damage suffered (Moran, 2018-19). The given case of Latimer and MS
Fisher completely fulfill all the three requirements of breach of duty and care as MS Fisher was
not able to remove the slippery ice and even did not inform about the threat to Latimer and he
felt and got badly injured. This shows the negligence of duty of care of MS fisher.
When an order is to prove the occurrence of violation against one another has to present a
duty of care given by him. One example stated in case of Paris v. Stepney Borough Council
[1951] AC 367 where defendant had breached his duty of care as he had not provided safety
gears to the plaintiff (Martin & Lancer, 2013). So, here it is a need to mention that the injury or
loss actually had taken place and in doing so there is a need to adapt the reasonable persons
perspective as shown in Wyong Shire Council v. Shirt (1980) 146 CLR 40(Jade 2018).
Rowland v. Christian in this case the court stated that if the defendant has a prior
knowledge of the forthcoming danger and he fails to inform it to the plaintiff then he may be
sued and can be asked to pay the damages so claimed for the injuries so caused to him/he. MS
Fisher will also be responsible as she to fail to accomplish her duty of care and inform the Mr.
Latimer for the upcoming danger.
Slip and fall Injury to Mr. Mark

It is very well known to all that a possessor of the land is held liable to the person invited
by him, licensee or trespasser for slip and fall which occurred on his/her premises (Lawson,
2017). For example, a store owner has a duty to exercise reasonable care and to provide and
maintain reasonably safe premises for its customers Maddox v. K-Mart Crop, 565 so. 2d 14, 16.
In Kelly v. Piggly Wiggly Southern, 230 Ga. App. 508,496 S.E.2d 732 (1997) case it was
clearly stated that in order to get recovery in slip and fall claim, a plaintiff must show (1) that the
defendant had actual or factual knowledge about happening of the hazardous condition; and 2) of
which he is lacking the knowledge despite taking the due care and reasonable measures
(C.Laing, 2012). In my case Latimer and Beth were also unaware of the forth coming danger on
them, they were not known to the facts of slippery ice and hence felt and got injured.
A plaintiff for showing opposed motion for judgment is not needed to prove the time
duration that how long that dangerous risk causing substance was on floor unless the defendant
had introduced that procedure for its place and fall was its due result, it was observed in the case
of Straughter v. J.H. HarveyCo.232 Ga .App. 29, 500 S.E.2d 353 (1998).
In the case of Spires v. Hall, 230 Ga. App. 357, 496 S.E.2d 501 (1998) it was stated that
presumption of earlier knowledge of the dangerous condition and still the thing is in the same
place can be a risk full situation (Kim, 2017). Latimer and Beth lacked earlier knowledge of the
risky situation so they are capable of getting compensations by MS Fisher.
Injury caused by falling on the slippery area can also be described as trip and fall injury.
It is the liability of the premises from whom the personal injuries are to be claimed or a suit
based on the slipping of person on others premises which may result in the suffrage of the injury.
It is a kind of civil claim where a person injured by falling may also be entitled to pecuniary
compensation for the injury or the damages from the person who had the possession of the

premises where the injury was caused. For example, a stone may be liable for injury caused by
slipping and falling, that occurs inside the premises, which either may be a rented one or the
owner of the premises may have shared interest in it or has the sole liability, for the injury so
caused outside his store’s exclusive premises. Similarly in the case where the injury was caused
due to a fall on the sidewalk or on the parking lot of a shopping mall then also the owner of the
mall along with its shareholders may also be equally held liable. Likewise in my case also,
Latimer got injured due to the slipping and falling on the slippery sidewalk in front of MS
Fishers’ bookstore and his left Achilles tendon tore off due to which he could not even stand up
back and then finally, when he got up with the help of his wife Beth and sat up waiting for a car
then also a icicle fell down and hit his face cutting his right check badly.
Slip and fall is a type of personal injury which arises when a person slips and fall as a
result of dangerous or hazardous conditions on others property. Dangerous conditions such as
poor lightings, narrow stairs, wet floor, slippery marbles etc. In the case of Batimore Gas and
Elec. Co. v. Flippo, 348 Md 680 (1998). In this case it was said that to win the case of premises
liability, the victim has to prove the hazardous situations so created by the defendant which
caused accident or the injury to the victim.MS Fisher used the sidewalk property as her shops
premises in the summer season so she will be equally held liable for the injury so being caused to
Latimer and his wife Beth.
Robinson v. Kroger Co.268 Ga. 735, 493 S.E. 2d 403 (1997) Here the claimant had
slipped in a shallow area filled with water in the parking lot of the grocery shop and was badly
injured, but he could not claim redress because he had failed the ordinary care of his own safety
(Johanna Gustavsson, 2012). After having the complete knowledge of the risk MS Fisher was

unable to overcome it. (OCGA § 51-3-1) the court stated that it is the duty of the premises owner
to look after its property and make it safe and free of hazards.
The true ground for holding the owner of the property liable for the slip and fall injury so
caused to the plaintiff is its superior knowledge of danger may be caused to the person passing or
going through that property. In short, it is when it is full of danger or risk, instrumentally it is in
concern of the owner and is not there in the knowledge or concern of the person who is getting
injured, so in that case the recovery may be permitted. This principle was stated in the case of
Emory University v. Duncan, 182 Ga. App. 326,328,355 S.E.2d 446 (1987).and prior to this they
were relied on principle obtained in the summary judgment of Cole v. Cracker Barrel, 210 Ga.
App. 488,436 S.E.2d 488 (1983).
Bystander Emotional Distress
A person who is present at the event but does not become its part is bystander. For
recovering negligent infliction of emotional distress by the bystander claiming for emotional
trauma needs to meet the circumstantial factors along with establishing the direct sufficient
involvements and temporal factors. In Smith v. Toney, 862 N.E. 2d 656 (ind.2007) it was stated
that if any undisputed facts required for the recovery of negligent infliction of emotional distress
is not attained then getting the claim in favor is difficult and sometimes impossible. The tort of
intentional emotional distress has four elements; 1. Extreme and outrageous conduct; 2. Intent to
cause, or disregard or substantial probability of causing severe emotional distress; 3. Casual
connection between conduct and injury; and 4. Severe emotional distress. There are many
occasions where the law of negligence do not need any other formulation accept the duty of
reasonable care. Other cases, however presented are circumstantially difficult, if not impossible.

This difficulty is considered as liability for mental and emotional distress recognized by the
courts. The imposition of such liability is even more confusing when the claim for such is
brought by the bystander who is not even injured physically. For example “a family member may
recover for emotional distress if he/she is present in the scene and witnessing the accident of
his/her dear one right in front of his own (M.Swearerd, 2015). Beth saw her dear one injured ,
shouting in pain and full of blood stains, this was a difficult situation for her to come across she
got mentally distressed and emotionally weak. This was absolutely genuine that one can’t see its
dear one in risk.
In Dillon v. Legg the landmark case of California, in Dillon, a mother and sister
witnessed an automobile which stroked and killed their family member so for that Supreme
Court of California awarded the mother damages for the negligent infliction of emotional distress
caused by the driver who stroked and killed her daughter. In this case the court determined three
factor test for determining that whether the defendant actually owes a duty of care for the
emotionally distressed plaintiff or not. Out of which first one will be “whether the plaintiff
located near the accident”; second one is “whether the shock resulted a direct impact on the
plaintiff from the sensory and contemporaneous observation of the accident as contrasted with
learning of accident from others”; and third one is “whether the plaintiff and the victim were
closely related as absence of any relationship and distant relationship are opposed”. Beth was
just standing by the side of Latimer and saw all the happenings with her own eyes, she was
completely shattered and hence deserves compensations.
Prosser and Keeton, in the Torts §12 at 60-61 (5th ed.),stated in Howell v. New York Post
Co. ,Inc,81N.Y.2d 115, 122 (1993), stated the important elements such as misrepresentation
made by the defendant, no sufficient reasons to believe, inducing intention, refraining actions

and the damage to the plaintiff from all the above factors can be proved against the defendant
and compensations can be claimed against them. Latimer and Beth can also in this situation are
absolutely liable to claim for compensation under the above sections.
In Bowen v. Lumbermens Mut. Cas. Co. 183 Wis 2d 627, 517 N.W.2d 432 (1994), the
Supreme Court of Wisconsin noted that court is order to allow claims for negligent infliction of
emotional distress in absence of any physical injury but still the court did not disallow such
claims altogether . Instead the court concluded the traditional elements of tort to be combined
with the public policy considered for limiting the liability (NBNauman, 1997-98). There was a
physical injury caused to Latimer and all that accidental things happened in front of Beth’s eyes.
In the case of DeYoung v. PROVIDENCE. CTR. Aug.1998, 136 Wn.2d136 It was
decided that it is not necessary for the bystanders to be present in the event at the time of the
injury to file a claim for negligence infliction of emotional distress so faced. A family member
may face emotional distress even though they arrive in or during the middle of the scene or after
the occurrence of the accident and before the change occurred in the substantial condition of the
victim or the location. But the distress to the emotions of the plaintiff must be a reasonable one
which must present all the symptoms of the stress which are medically diagnosed and proven
through the qualified evidences (harlotte Bloch, 2018). This was an absolute reason for Beth, to
claim for damages, against MS Fisher for the emotional distress so faced by her while watching
her husband falling and getting badly injured.
Conclusion
The court will probably find MS Fisher liable for the injuries that Mr. Mark and his wife
Beth suffered while slip and fall on the side walk in front of the MS Fisher bookstore.

By looking at the above cases, it can very well be stated that MS Fisher has breached her
duty of care against Mr. Mark and Beth as their protection was her duty and she was unable to
accomplish with it. Although she knew that the snow had become slippery and it could be
dangerous for the passerby but still she was unable to resolve it so she can be easily taken to the
court for getting justice against and could claimed to pay damages for the injury so caused to
Mark and can also be held liable for the emotional distress faced by his wife Beth due to seeing
her husband slip and falling in front of her eyes and shouting in pain, injured and covered with
blood. Thus Mr. Mark and his wife Beth can claim and also win the case against MS Fisher.

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