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Zittrain Torts Playlist Spring 2013

Diane Darby (Widow and Administratrix of the Estate of Kevin Alan Darby, deceased) Claimant v. The National Trust, Respondent

Headnote

Should defendants be liable for a failure to warn, if the plaintiff's harm was not the type to be warned against? What if the warning would have, nevertheless, diverted the plaintiff away from the harm? Defendant owned a pond which was actively used and known as a place of recreation for the local community. Due to the presence of rat urine in the water, swimmers faced a risk of contracting Weils disease. However, the defendant did not post any signs warning the community of this risk. While the plaintiff's husband played "hide-e-boo" with his children, he accidentally slipped underwater due to the depth and drowned. Plaintiff sued the defendant on the theory that the existence of warning signs for Weils disease would have caused the plaintiff's husband to refrain from entering the water; thereby avoiding the fatal accident.