September 10, 2009 @ 04:46 PM -- by unknown
Of all the factors used in determining whether a defendant owes the plaintiff a duty, foreseeability of the risk is the foremost and dominant consideration. "Foreseeability" requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. While the particular accident does not have to be foreseen, the injury must be of such a general character as might have been reasonably anticipated.
Where a person negligently creates a situation, it becomes that person’s duty to do something about it to prevent injury to others if it reasonably appears or should appear to him that others may be injured because of the situation. This situation often occurs in construction accident or refinery accident cases where a company creates a dangerous situation.
An affirmative duty may arise in a situation where a warning should be given to prevent injury, such as for a dangerous product, or where a person should control someone known