The first inclination may be to argue the principle of an intervening cause, since the third party was responsible for committing the act. This tactic, however obvious, may not be the best one to follow because it necessarily involves a question of fact, which is ultimately a question for the jury. This means that your client will have to go through the discovery process and potentially prepare for a trial before seeking summary judgment from the court. There is also the risk that the court would find a disputed issue of fact to avoid granting summary judgment and throwing victims out of court. A better approach may be to focus on the issue of duty – did your client owe a duty to protect the plaintiff where a third party committed the act? Because the issue of duty is a question of law, resolving it in the early stages of litigation can save your client a great deal of time and money that is typically associated with the discovery and trial of a lawsuit.

When Does a Duty Exist?

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