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Does Your Client Owe a Duty to Protect the Public from the Misconduct of Third Parties?

By Tami Azorsky and Camilla Lee

The April 19, 1995 Oklahoma City bombing stunned the nation, not only because of the horrific nature of the act itself, but because no one thought that products as common as agricultural fertilizer and motor-racing fuel could be used to incinerate a federal building. Six years later, the 9/11 terrorist attacks again sent the nation into shock at the idea that a group of people would commit a suicide attack by taking control of four planes and crashing them into multiple buildings. These violent attacks are proof that common products are being used, and oftentimes manipulated, in an improper manner for improper uses. Consequently, the victims of such attacks are suing manufacturers and handlers of these common products for alleged negligence, even though a third party committed the act in question. If your client is a manufacturer or handler of a product, how can you help protect it from liability?

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.

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