Negligence is a complicated legal field. It cannot be understood by a
few questions and answers. You should not be researching negligence.
What good will it do you to reach a conclusion that you were negligent
or that you were not? You have been sued, you need an attorney to
defend the lawsuit. At least, I assume you meant that you have been
sued. If you haven't been sued yet, tell us that, and I'll have
different things to tell you. Assuming you have indeed been sued, you
need an attorney to defend the lawsuit. That attorney will
investigate the facts and will reach a conclusion about negligence.
There is no way that your conclusion or mine could matter in the
slightest. You need to defend the lawsuit or you will lose it.
I studied negligence for mind numbing months, and I've been an
attorney for a long time, but I wouldn't undertake to defend myself
from a negligence complaint. As for advising you, I don't even know
what state or country you are in, so even if I were a negligence
expert, I wouldn't know the applicable law. But for what it's worth,
assuming that the facts you posted are accurate, and are all of the
relevant facts, and assuming you can prove it all to a judge or jury,
my conclusion would be that if you were in my state, you would have no
liability for negligence.
Clauses 11 and 13 mean nothing to you. They don't create liability
for you in any way.
I don't mean to insult your ability to do the research and defend
yourself. Some people do that successfully. It's even possible that
you could learn it in the short time you have available, by spending
the necessary hours in the county law library. But it will be a long,
hard road. As an example of how long that road will be, your
questions concerning duty are irrelevant. On the facts given, duty
will not be at issue. The issues will involve breach and causation.
McGyver
I have been a social guest, sometimes overnite, at the home of my
friend who rented an apartment. There was a fire in his apartment.
The fire department concluded the fire was started by careless
smoking. On the night his apartment burned, I was a guest in my
friends home. I had stopped by to pick him up so that we could
attend
a concert. During the 15 minutes or so that I was in his apartment,
I
smoked a cigarette and so did he, as he is also a smoker. I dropped
my cigarette butt into a half-full beer can as his ashtrays were
full
and over-flowing. I don't know where he put his cigarette butt...I
assume he put it in one of the over-flowing ashtrays. On this
particular night, I did not spend the night in my friends apartment
and neither did he. He spent that night at my house.
The apartment owner's insurance company is now suing both him and I.
He is being sued for breach of contract as his lease agreement
states
he was to return the premises in the same condition it was received.
In addition, both he and I are being sued for NEGLIGENCE. When I
spoke to the attorney for the insurance company, I got the
impression
my friend had told the attorney that I was also a resident of the
apartment. I informed the attorney I did not, nor have I ever,
rented
or lived in the apartment. He ignored me and told me that since I
did
not have renters' insurance, I would have to pay for the damages due
to the fire. I was not aware I needed renters' insurance just to
visit any of my friends in their homes?
Moving along, I don't know how I was negligent. In researching a
negligence cause of action, I find there are four primary elements
which need to be viewed and covered thoroughly:
(1) duty
(2) breach of duty
(3) causation
(4) damages.
I was not aware I had a duty to the plantiff (insurance
company)...Can
someone tell me what my duty was?
I have included two paragraphs of my friends lease agreement below.
Can someone explain what these paragraphs mean in terms of my
responsibility? Did I have a duty to comply with the terms of my
friend's lease???
Also, Re: Paragraph 11; Who is assuming all risk(s)? Is it the
Resident OR his family, guests, invitee or any person? (My name is
not on this lease agreement and I did not sign it.)
11. OWNER NOT LIABLE: Resident, Resident's family, guests, invitee,
or any person entering on or about the premises with Resident's
knowledge and consent thereinafter for the purpose of this section
collectively "Resident" assumes all risk(s) whatsoever of damage
and/or injury, whether to person or property, loss, and/or
destruction
of property associated with the apartment community and in
connection
with the Resident's occupancy of the premises (hereinafter "risk")
such risks including but not limited to causes such as damage or
injury caused by third parties, fire, water, theft, the weather or
elements, interruption of heating/cooling, utilities, and plumbing
systems, use of storerooms or lockers, use of swimming pools and
recreational facilities located in the apartment community or the
lands constituting the same.
13. RESIDENT SHALL REIMBURSE: Resident shall properly reimburse
Owner
without demand for any and all loss, property damage, expense or
cost
of repairs or service in the Apartment or at the Lake & Racquet
Apartment community caused by the Resident's negligence or improper
use, or misuse of the Apartment, or the Apartment community
property.
Resident shall also reimburse Owner for all such similar acts or
omissions caused by any occupant, any member of Resident's family,
any
invitee or guest of Resident or their agents or other persons who
Resident permits to be in or about the premises or at the Apartment
community during the term of the Contract.
