Legal Duty owed and a breach of duty(very strict instructor will request a refund if not done correc

Use negligence as the relevant standard that applies and any other torts you think are applicable to the facts.
The client’s name is Linda. Linda is a foodie that blogs about the fine dining establishments in town. She and her husband decided to try out a new Italian restaurant. She orders chicken Marsala, a Caesar salad and a bottle of the house chianti.Halfway through her meal she started to chock on a small chicken bone that became lodged in her throat. The chicken was supposed to be boneless but one of the new sous chefs made an error in deboning the chicken and left a small bone fragment in the flesh.
Luckily for Linda her server, Anne, a sixteen-year-old high school student, spent her summers as a lifeguard where she was trained in CPR and other lifesaving techniques. While she’s not required to help, she decides to try the Heimlich maneuver to dislodge the bone. Anne was successful. Linda thanks Anne and leaves a very generous tip.
A couple hours later, Linda started to feel light headed. She decided to get dressed for bed and end the night early. While undressing, she noticed very deep and severe bruising around her upper abdominal area. She goes to tell her husband to show him but passes out before she can say anything. Her husband immediately calls 911 and an ambulance soon arrives on the scene. She is immediately brought to the ER where it’s determined that Anne’s Heimlich maneuver had caused the laceration of Linda’s liver.
Linda is immediately prepped for surgery. During the surgery to stop the bleeding, the surgeon nicks an artery, which is a known risk. The surgeon cauterizes the artery after some effort and proceeds with the operation without further incident.
After spending a few days recovering at the hospital, Linda returns home. She feels some minor irritation around the incision site but just dutifully takes her pain meds and cleans the incision site as per her physician’s instructions. A couple days later, the minor irritation becomes painful and the surgical area swollen. She heads back to the ER. It is eventually discovered that the surgeon had forgotten to take a piece of surgical gauze out of the surgical site before closing. Linda had to undergo another surgery to remove the gauze. Chapter 4 (is
conduct that creates an unreasonable risk of harm to another. In any
negligence claim, the concept of duty raises the question of whether the
defendant is under any obligation to act for the benefit of the
plaintiff. A duty is a legal obligation to act reasonably and arises out
of our relationship to others.
In general terms, the defendant’s duty is to act reasonably. In other
words, the defendant must exercise the degree of care that any
reasonable person would exercise under similar circumstances. You will
notice when you read cases that most courts spend relatively little time
addressing the question of duty but instead jump directly into an
analysis of breach of duty Nevertheless, duty is a threshold question in
every negligence case because a defendant is not liable, no matter how
reckless his conduct, unless he owes a duty to the plaintiff. Therefore,
we will explore the concept of duty in some depth in this chapter.
The question of duty is essentially a question of whether a defendant
is under an obligation to protect the plaintiff. Some courts use the
relational approach to answer this question. Under this approach the
nature of the relationship between the parties determines whether the
defendant has a duty to protect the plaintiff. Negligence is
conduct that creates an unreasonable risk of harm to another. In any
negligence claim, the concept of duty raises the question of whether the
defendant is under any obligation to act for the benefit of the
plaintiff. A duty is a legal obligation to act reasonably and arises out
of our relationship to others.
In general terms, the defendant’s duty is to act reasonably. In other
words, the defendant must exercise the degree of care that any
reasonable person would exercise under similar circumstances. You will
notice when you read cases that most courts spend relatively little time
addressing the question of duty but instead jump directly into an
analysis of breach of duty Nevertheless, duty is a threshold question in
every negligence case because a defendant is not liable, no matter how
reckless his conduct, unless he owes a duty to the plaintiff. Therefore,
we will explore the concept of duty in some depth in this chapter.
The question of duty is essentially a question of whether a defendant
is under an obligation to protect the plaintiff. Some courts use the
relational approach to answer this question. Under this approach the
nature of the relationship between the parties determines whether the
defendant has a duty to protect the plaintiff.Special
Relationships
More imposing than the duty to rescue others is the duty to protect
plaintiffs from the negligent, intentional, or criminal acts of third
parties—and the law is loathe to impose this duty. Generally speaking,
such a duty arises only in the context of special relationships, such as
between parent and child, jailor and prisoner, carrier and passenger,
or employer and employee (see Exhibit 4-4). Common carriers such as
airline, railroad, and bus companies have a duty to protect their
passengers. A bus company may be liable, for example, if a brawl breaks
out on a bus, resulting in injury to several passengers, and the bus
driver does nothing to intervene. An employer also has a duty to protect
employees from those dangers from which they are not able to protect
themselves. Such duty is limited to situations within the scope and
course of the employees’ responsibilities.
In some situations a special relationship may exist even between a
university and a student. A court is likely to impose a duty of care on a
university, for example, when the harm involved is that of a physical
nature, such as a criminal attack. A court is most unlikely, however, to
hold a university responsible for the private affairs of its students,
particularly when the harm that occurs is of a moral nature.occurs
when the defendant fails to conform to the required standard of care.
Determining whether a breach of duty has occurred requires (1) a
determination of the relevant standard of care and (2) an evaluation of
the defendant’s conduct in light of that standard. In other words, if
the plaintiff is able to prove that she was owed a duty of care by the
defendant, that duty gives rise to a general standard of conduct—to use
reasonable care. Using reasonable care requires the defendant to
recognize the risks created by his actions (or omissions) and to act
reasonably in light of those risks. The general standard must then be
applied to the specific circumstances of the case to determine the
specific standard of care governing the defendant s conduct. The jury is
asked to establish this specific standard of care, usually guided by
only very general jury instructions defining negligence.