PATHWAYS, INC . V. BRENDA HAMMONS
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2001-SC-0626-DG
PATHWAYS, INC.
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2000-CA-0046-MR
FAYETTE CIRCUIT COURT NO. 1997-CI-4058
BRENDA HAMMONS
APPELLEE
OPINION OF THE COURT BY JUSTICE JOHNSTONE
REVERSING
Appellee, Brenda Hammons, was sexually assaulted while a resident at Moore's
Boarding Home in Lexington, Kentucky. At the time, Hammons was a client of
Appellant, Pathways, Inc., and had been placed at Moore's by Pathways. Hammons
filed suit against Pathways, et al., claiming that Pathways was negligent in placing her
at Moore's . In response, Pathways moved for summary judgment on grounds that it
owed no duty to Hammons. The trial court granted the motion without stating the
reasons for its ruling . The Court of Appeals reversed . We granted discretionary review
and reverse the Court of Appeals.
I.
Facts and Procedural History
Pathways is a private, non-profit corporation that offers psychiatric and social
services for the mentally ill in a ten-county region of Eastern Kentucky. In 1998, it had
approximately 575 employees .
Brenda Hammons suffers from a bipolar disorder and has a lengthy history of
mental illness . She was a client of Pathways from 1982 through 1997 .
In March 1996, Hammons was discharged from Eastern State Hospital in
Lexington, Kentucky, and returned to West Liberty, Kentucky, where she took up
residence with her ex-husband . At the same time, she contacted Pathways to seek out
its services . Hammons was placed on case management services, which meant that
she received assistance from Pathways to help her remain in the community . Her case
was assigned to Kimberly Royse, who was an Adult Mental Health Case Manager
employed by Pathways.
Royse first assisted Hammons in getting an air conditioner for the trailer where
she was living . Next, in July 1996, after Hammons explained that she was having
trouble living with her ex-husband, Royse assisted her in completing an application for
an apartment. Hammons' application was accepted, but she refused to take
possession . Royse's next contact with Hammons occurred on November 4, after
Hammons was discharged from Our Lady of Bellefonte Hospital in Ashland, Kentucky.
This time, Hammons was no longer living with her ex-husband and needed immediate
help in finding a place to live .
Based on Hammons' history, Royse did not believe that she would be able to
place Hammons in any housing in the immediate area . Therefore, she consulted a list
of boarding homes near West Liberty to find a placement for Hammons . The list had
been circulated by the Cabinet for Human Resources in 1992, was woefully out of date,
and had been compiled before the Commonwealth began maintaining a list of
registered boarding homes, i .e., boarding homes that met minimum health and safety
regulations established by the Cabinet for Health Services . Unfortunately, Royse's first
choice, Moore's Boarding Home in Lexington, was operating in violation of a court order
that it cease operations . Moore's was not included on the then-current list of boarding
homes registered with the Commonwealth that had been circulated to Pathways by the
Department of Health . Royse phoned Moore's, which agreed to take Hammons as a
resident .
Before Hammons could be transported to Moore's, she became hostile and
threatened some of Pathways' staff. As a result, she was admitted to the psychiatric
unit of King's Daughters Hospital in Ashland on November 6. Upon Hammons'
admission to King's Daughters, Russ Damron, a psychiatric social worker, began
looking for a place for Hammons to reside after her release . Damron testified that this
was a standard procedure and part of Hammons' treatment . After he had exhausted all
the local options available to him, Damron contacted Pathways for assistance .
Pathways informed Damron that a bed had been found for Hammons at Moore's .
Damron contacted Moore's to confirm this and then arranged for Hammons to be
transported to Moore's .
Hammons testified that two days after she arrived at Moore's, she was physically
struck by Harry Stacy, who was also a boarder at Moore's . About a week later, on
November 12, she arranged for friends to pick her up from Moore's and take her to the
Appalachian Regional Hospital in West Liberty, where she admitted herself as a patient.
She went from this hospital in West Liberty back to Lexington on November 19 when
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she was involuntarily committed for seventy-two hours to the psychiatric unit of the
Eastern State Hospital .
During her commitment at Eastern State, Cecil Laster, Jr., a mental health
specialist, attempted to persuade Hammons to go to a personal care home upon
discharge . Laster testified that he believed that a personal care home was better
equipped to meet Hammons' needs. He explained to her that a personal care home
would see that she took her medication regularly and, further, while the monthly
charges of a personal care home would exceed her SSI income, the Commonwealth
would pay the excess amount and provide her with a $40 .00 a month living allowance .
Hammons refused to go to a personal care home and, instead, insisted on returning to
Moore's .
Hammons testified that she returned to Moore's because she "didn't have [any]
money and it was wintertime and she didn't know how to get to the Salvation Army."
But her testimony does not contradict Laster's testimony that he attempted to persuade
her to go to a personal care home rather than to return to Moore's . Nor did she testify
that, prior to returning to Moore's, she sought assistance in finding another place to live.
After her discharge from Eastern State on November 27, Hammons was transported at
her request to Moore's. On November 30, she was sexually assaulted by Stacy, who
later pleaded guilty to the assault. Subsequently, she filed suit against Moore's, its
owners, Royse, and Pathways claiming damages in connection with Stacy's assault on
November 30 .
Pathways moved for summary judgment, which the trial court granted without
comment . The Court of Appeals reversed on grounds that Pathways owed a duty to
Hammons and that whether Stacy's assault was a legal cause of Hammons' injuries
was a question of fact . We granted discretionary review, and reverse the Court of
Appeals for the reasons stated below .
II.
Standard of Review
Because the trial court disposed of Hammons' claims against Pathways on
summary judgment, in order to prevail on appeal, Pathways must show that there is no
genuine issue of material fact and that it was entitled to judgment as a matter of law.
CR 56.03. This is a negligence case, which requires proof that (1) the defendant owed
the plaintiff a duty of care, (2) the defendant breached the standard by which his or her
duty is measured, and (3) consequent injury. Mullins v. Commonwealth Life Insurance
Co. , Ky., 839 S .W.2d 245, 247 (1992), citing Illinois Central R .R. v. Vincent, Ky., 412
S .W .2d 874, 876 (1967) . "Consequent injury" consists of what hornbooks separate into
two distinct elements : actual injury or harm to the plaintiff and legal causation between
the defendant's breach and the plaintiffs injury . See Lewis v. B & R Corporation , Ky.
App., 56 S .W.3d 432, 436 (2001); David J . Leibson, Kentucky Practice, Tort Law § 10.2
(West Group 1995) ; William L. Prosser, Law of Torts (West 1976) . Duty, the first
element, presents a question of law. Mullins, 839 S.W.2d at 248 . Breach and injury,
are questions of fact for the jury to decide . Lewis , 56 S.W .3d at 438 (citing cases). The
last element, legal causation, presents a mixed question of law and fact. Deutsch v.
Shein , Ky., 597 S .W .2d 141, 145 (1980).
Thus, for Pathways to be entitled to judgment as a matter of law, it must show
that (1) it was impossible for Hammons to produce any evidence in her favor on one or
more of the issues of fact, Steelvest Inc . v. Scansteel Service Center Inc ., Ky., 807
S .W .2d 476, 483 (1991); (2) under the undisputed facts of the case, it owed no duty to
Hammons,,see Ashcraft v. Peoples Liberty Bank & Trust Co ., Inc . , Ky. App. 724
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S .W.2d 228, 229 (1986) ("If no duty is owed by the defendant to the plaintiff, there can
be no breach thereof, and therefore no actionable negligence ."); or (3) as a matter of
law, any breach of a duty it owed to Hammons was not a legal cause of her injuries .
See id .
III.
Discussion
Hammons argues that (1) Pathways owed her a duty to place her in a registered
boarding home ; (2) Pathways breached its duty when, through Royse, it placed her at
Moore's, an unregistered boarding home ; (3) she was injured when Stacy sexually
assaulted her; and (4) Pathways' placement of her at Moore's was a legal cause of her
injuries . On appeal, Pathways makes alternative arguments as to why it was entitled to
summary judgment. First, it argues that it owed no duty to Hammons . Next, Pathways
argues that, even if it owed a duty to Hammons and it breached that duty, the breach
was not a legal cause of Hammons' injuries as a matter of law. We discuss these
arguments in turn.
Duty
Pathways argues that it owed absolutely no duty to Hammons because she was
free to reject or accept Royse's placement of her at Moore's . In light of Pathways'
mission and the nature of the services it renders to some of the most vulnerable
members of society, we find the argument repugnant. It diminishes the fragile social
compact upon which civilization is built to the amorality of caveat emptor . But not only
is Pathways' argument morally indignant, it is wrong as a matter of law. Negligence
focuses on the conduct of the defendant, not on the free will of the plaintiff. See
Leibson, § 10.1 . We reject Pathways' argument and turn to the question of whether
Pathways owed a duty to Hammons, which we determine de novo because duty
presents questions of law and policy.
"The most important factor in determining whether a duty exists is foreseeability ."
Leibson, § 10.3.
As a concept, foreseeability defies easy definition. In an oft-quoted case on the
subject, Judge Cardozo stated that the "risk reasonably to be perceived defines the
duty to be obeyed ." Palsgraff v. Long Island Railway Co . , 162 N .E .2d 99, 100 (N.Y.
1928). But the longevity of this characterization rests largely on its conciseness and its
generality . As a guide, it is little more than a head shake indicating "thataway." The
Restatement (Second) of Torts provides a more detailed and, consequently, a more
prosaic road map to foreseeability . By using the Restatement (Second) to chart the
way, we conclude that Pathways did owe a duty to Hammons .
Foreseeable risks are determined in part on what the defendant knew at the time
of the alleged negligence. "The actor is required to recognize that his conduct involves
a risk of causing an invasion of another's interest if a reasonable man would do so while
exercising such attention, perception of the circumstances, memory, knowledge of other
pertinent matters, intelligence, and judgment as a reasonable man would have ."
Restatement (Second) of Torts § 289(a) (emphasis added); see also Mitchell v. Hadl ,
Ky., 816 S .W .2d 183, 186 (1991) . (Holding that liability for negligence is based on what
the defendant was aware of at the time of the alleged negligent act and not on what the
defendant should have known in hindsight.) The term "knowledge of pertinent matters"
is explained by Restatement (Second) of Torts § 290, which states:
For the purpose of determining whether the actor should
recognize that his conduct involves a risk, he is required to
know (a) the qualities and habits of human beings and
animals and the qualities, characteristics, and capacities of
things and forces in so far as they are matters of common
knowledge at the time and in the community; and (b) the
common law, legislative enactments , and general customs in
so far as they are likely to affect the conduct of the other or
third persons .
(Emphasis added) .
Applying the above principles, Pathways was required to know, at the time it
placed Hammons at Moore's, that boarding homes are regulated by the
Commonwealth . In general, this regulation establishes minimum health and safety
standards for boarding homes and was enacted for the protection of "boarders," i.e. ,
persons who reside in boarding homes. KRS 216B .300 et sea . ; 902 KAR 20 :350.
These protections are assured through mandatory registration -- under penalty of law -by all boarding homes as defined by KRS 216B .300(4) with the Cabinet for Health
Services . KRS 216B .305(1) . This means that the foreseeable risks of placing
Hammons in an unregistered boarding home were defined by the risks to boarders'
health and safety that registration was enacted to avoid. A review of the applicable
statutes and regulations reveals that Stacy's assaults fell within the scope of
foreseeable risk.
In order to be registered, a boarding home must maintain minimum standards of
cleanliness and sanitation . KRS 216B .305 ; 902 KAR 20 :350. Registration subjects a
boarding home to annual, unannounced inspections to determine whether "the
boarding home is in compliance with Administrative regulations relating to the operation
of boarding homes . . . and [a]ll applicable local health, fire, building, and safety codes
and zoning ordinances ." KRS 216B .305(3). Additionally, boarders have the right to "be
free from mental and physical abuse." KRS 216B .303(4). Failure to comply with the
minimum statutory and regulatory standards, which specifically include the protection of
boarders' statutory rights, see 902 KAR 20:350(9), results in the denial of a boarding
home's registration .
Thus, Pathways' "knowledge" of the legislation and regulation of boarding homes
means that it should have realized that placing Hammons at an unregistered boarding
home created the risk that she would be in a physically unsafe and/or unsanitary
environment. This included the specific risk that Hammons would suffer physical and/or
mental abuse . And it takes only a short step to intuit that one boarder or boarders
acting against another is a likely source of this risk . Thus, that Hammons might be
assaulted by another boarder was a foreseeable risk of placing her in an unregistered
boarding home . But standing alone, this did not create a duty for Pathways to place
Hammons in a registered boarding home .
A risk foreseen has to be unreasonable before the defendant may be held liable
for creating the risk. As explained by Restatement (Second) of Torts § 291 :
Where an act is one which a reasonable man would
recognize as involving a risk of harm to another, the risk is
unreasonable and the act is negligent if the risk is of such
magnitude as to outweigh what the law regards as the utility
of the act or of the particular manner in which it is done .
Pathways' mission is to assist the mentally ill . This includes assistance with such
things as budgeting, doing laundry, shopping, transportation, and applying for
employment. In other words, Pathways helps the mentally ill to maximize their
independence, their self worth and their value to society. There is great "utility" to this
conduct as the term is used in § 291 . See Restatement (Second) of Torts § 292(a).
Additionally, locating housing for its clients furthers these goals and is also of great
utility and social worth . But the manner in which Pathways performed its task of finding
housing for Hammons was unreasonable .
While the utility of Pathways' efforts to find a place for Hammons to live was
great, so was the risk and magnitude of harm in placing her at an unregistered boarding
home . Pathways could have eliminated or greatly reduced this risk by keeping a
current list of registered boarding homes and only placing their clients at boarding
homes from this list . And significantly, the burden of doing so was slight .
The undisputed evidence shows that, starting in November 1995, the
Department of Public Health sent Pathways regular, quarterly updates of boarding
homes registered with the Commonwealth . Thus, in order to minimize the risk that
Hammons would be placed in an unregistered boarding home, Pathways had to do little
more than disseminate the current list to its case managers along with instructions to
use only boarding homes on the list . In light of the risk and magnitude of harm in
placing Hammons at an unregistered boarding home, it was unreasonable for Pathways
to fail to take the simple and readily available steps that would have eliminated or
greatly reduced that risk . See Restatement (Second) of Torts § 292(c); see also United
States v. Carroll Towing Co . , 159 F.2d 169, 173 (2d . Cir. 1947)
Therefore, we hold that Pathways owed a duty to Hammons to use the current
list of registered boarding homes circulated to it by the Department of Health when
Royse searched for a boarding home that would accept Hammons. Further, for the
purposes of the following discussion on causation, we assume that Pathways breached
this duty when Royse used a list of boarding homes that was years out of date to place
Hammons at Moore's, which had never been registered with the Commonwealth and
was operating in violation of a court order to cease operations .
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Causation
In Deutsch v. Shein , Ky., 597 S.W.2d 141, 143-44 (1980), we adopted the
substantial factor test for causation set forth in § 431 of the Restatement (Second) of
Torts, which is entitled "What Constitutes Legal Cause ." This section states in pertinent
part that the "actor's negligent conduct is a legal cause of harm to another if his conduct
is a substantial factor in bringing about the harm ." Comment (a) to § 431 explains what
is meant by "substantial factor" :
In order to be a legal cause of another's harm, it is not
enough that the harm would not have occurred had the actor
not been negligent . . . . [T]his is necessary, but it is not of
itself sufficient. The negligence must also be a substantial
factor in bringing about the plaintiffs harm. The word
"substantial" is used to denote the fact that the defendant's
conduct has such an effect in producing the harm as to lead
reasonable men to regard it as a cause, using that word in
the popular sense, in which there always lurks the idea of
responsibility, rather than in the so-called "philosophic
sense," which includes every one of the great number of
events without which any happening would not have
occurred . Each of these events is a cause in the so-called
"philosophic sense," yet the effect of many of them is so
insignificant that no ordinary mind would think of them as
causes .
Section 434 of the Restatement (Second) of Torts addresses the issues of when
legal causation is a question of law for the court and when it is a question of fact for the
jury. The court has the duty to determine "whether the evidence as to the facts makes
an issue upon which the jury may reasonably differ as to whether the conduct of the
defendant has been a substantial factor in causing the harm to the plaintiff."
§ 431(1)(a) . This standard is consistent with Kentucky law. See , 9._q . , McCoy v. Carter,
Ky., 323 S .W .2d 210, 215 (1959) . (Legal causation presents a question of law when
"there is no dispute about the essential facts and [only] one conclusion may reasonably
be drawn from the evidence .") See also 57A Am . Jur. 2d, Negligence § 446 (1989) .
We add the caveat that § 431(1)(a) must be construed in light of our seminal case on
summary judgment, Steelvest, Inc. v. Scansteel Service Center Inc ., Ky., 807 S.W .2d
476(1991) . That is, in a summary judgment situation, the court must view all facts in
the light most favorable to the non-moving party and all doubts must be resolved in that
party's favor. See id . at 480 . With this in mind, we turn to the question of whether
reasonable minds could differ as to whether Pathways' placement of Hammons at
Moore's was a substantial factor in causing the injuries that resulted from Stacy's
assault on her.
In this discussion, it is important to note that Stacy assaulted Hammons twice :
first on November 12, 1996, and next on November 30, 1996. The lawsuit, however,
only concerns the second and more severe sexual assault. Thus, our discussion of
legal causation concerns only whether Pathways' placement of Hammons at Moore's
was a substantial factor in causing Stacy's second assault, and not whether it was a
substantial factor in causing his initial assault. The essential facts concerning the
second assault, as viewed in the light most favorable to Hammons, are as follows :
Hammons was a client of Pathways. She sought its assistance in finding a place
to live . Royse found a place for her to live at Moore's Boarding Home in Lexington,
which was a breach of Pathways' duty to use a current list of registered boarding homes
when looking for one that would accept Hammons .
A few days after arriving at Moore's, Hammons was physically assaulted by
Stacy. This put Hammons on notice that Moore's was not a safe place for her to live .
She acknowledged this and affirmatively testified in her deposition that she knew that
Moore's was dangerous and that she was afraid of Stacy . For reasons neither clear nor
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relevant, Hammons left Moore's and went to a hospital for treatment shortly after being
assaulted by Stacy. Even though she knew that Moore's was dangerous and that Stacy
was violent, she did not seek assistance in finding another place to live . Rather, upon
being discharged from the hospital, she insisted on returning to Moore's . According to
Hammons, she returned to Moore's because she had paid rent there through the month
and because she was without money or means to go elsewhere. Accepting this as true
(and ignoring the uncontroverted testimony that other viable housing options were
available to Hammons when she was discharged from the hospital and that these
options were strongly recommended to her), the risk that Hammons would feel
compelled that she had no alternative but to return to a known dangerous environment,
did not fall within, or even close to, the scope of risks created by Pathways' placement
of Hammons at Moore's . In other words, Pathways' breach of its duty to Hammons was
"remote and only furnishe[d] the occasion of [her] injury" and, consequently, reasonable
minds could not differ as to whether Pathways' placement of Hammons at Moore's was
a substantial factor in causing Hammons' injuries that resulted from Stacy's second
assault. Commonwealth. Dept. of Highways v. Graham , Ky., 410 S.W .2d 619, 620
(1966). Therefore, we hold that Pathway's placement of Hammons at Moore's
was not a legal cause of Stacy's second assault as a matter of law.
IV.
Conclusion
Pathways owed a duty to Hammons. But even assuming that Pathways did
breach its duty, the breach was a not a substantial factor in causing the injuries for
which Hammons is claiming damages in her action against Pathways. Thus, as a
matter of law, Pathways cannot be held liable to Hammons for her injuries . The trial
court properly granted Pathways' summary judgment motion, and the Court of Appeals
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erred in reversing that ruling . Therefore, we reverse the decision of the Court of
Appeals and reinstate the judgment of the trial court .
Lambert, C.J . ; Cooper, Graves, and Wintersheimer, JJ ., concur. Keller, J.,
concurs by separate opinion . Stumbo, J., dissents by separate opinion .
COUNSEL FOR APPELLANT:
Nolan Carter, Jr.
Ronald L. Green
Todd P . Kennedy
Boehl, Stopher & Graves
444 West Second Street
Lexington, KY 40507
COUNSEL FOR APPELLEE:
William J. Gallion
Bruce D. Gehle
William Gallion and Associates, PLLC
Barrister Hall
163 East Main Street, Suite 401
Lexington, KY 40507-1367
RENDERED : AUGUST 21, 2003
TO BE PUBLISHED
,sixpratcr (gaurf of
rttfurkg
2001-SC-0626-DG
PATHWAYS, INC.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2000-CA-0046-MR
FAYETTE CIRCUIT COURT NO. 1997-CI-4058
V.
APPELLEE
BRENDA HAMMONS
CONCURRING OPINION BY JUSTICE KELLER
I concur in the majority's conclusion that, although a jury could find that
Pathways breached its duty to Hammons, Pathways' placement of Hammons at
Moore's Boarding Home "was not a substantial factor in causing the injuries for which
Hammons is claiming damages in her action against Pathways."' Accordingly, because
Pathways' alleged breach of its duty was not a legal cause of Hammons' injuries, I
concur in the majority's holding that the trial court properly granted summary judgment
for Pathways. I write separately, however, because I disagree with the majority
opinion's characterization of the duty that Pathways owed to Hammons .
The majority holds "that Pathways owed a duty to Hammons to use the current
list of registered boarding homes circulated to it by the Department of Health when
Royse searched for a boarding home that would accept Hammons ."2 In my view, this
articulation of Pathways' duty is erroneous in its level of specification, which addresses
' Pathways, Inc. v. Hammons , Ky.,
2 Id . at
(Slip Op . at 10) .
S.W .3d
(200_) (Slip Op. at 14) .
itself more to a breach analysis than to a definition of the duty owed . In Kentucky, "[t]he
rule is that every person owes a duty to every other person to exercise ordinary care in
his activities to prevent foreseeable injury . ,3 Although the majority correctly observes
that legislative and administrative enactments help define the scope of risks
foreseeable to an actor, and the record in this case establishes that Moore's Boarding
Home was operating in violation of law, Pathways itself violated no law by placing
Hammons in an unlicensed facility. And, "[s]ince this is not a case in which the relevant
standard of care is supplied by [statute or] regulations, the duty owed . . . must be
defined by common law, i.e., that degree of care exercised by reasonable and prudent ,,4
mental health care service providers . In my view, the Court of Appeals appropriately
characterized Pathways' duty when it stated, "Pathways is in the profession of providing
services to mentally ill patients and owes a duty to render those services with
reasonable care ."
3 Grayson Fraternal Order of Eagles v. Claywell , Ky., 736 S .W .2d 328, 332
(1987) .
4 Carman v . Dunaway Timber Co, Inc . , Ky., 949 S .W .2d 569, 571 (1997).
2
RENDERED : AUGUST 21, 2003
TO BE PUBLISHED
,Suprmt (9ourf of '~mfurkg
2001-SC-0626-DG
APPELLANT
PATHWAYS, INC .
V.
ON REVIEW FROM COURT OF APPEALS
2000-CA-0046-MR
FAYETTE CIRCUIT COURT NO. 1997-CI-4058
BRENDA HAMMONS
APPELLEE
DISSENTING OPINION BY JUSTICE STUMBO
Respectfully, I must dissent from the majority's reversal of the Court of Appeals.
I disagree with the Court's reasoning that although Appellant breached its duty to
Appellee, the breach was not a substantial factor in causing the injuries to Appellee .
Appellant's professional relationship with Appellee began in 1982 after she was
diagnosed as having bipolar manic depressive disorder. Appellee relied on Appellant to
make decisions for her. Appellant knew or should have known that the severity of
Appellee's mental disorder made it impossible for her to process choices,
consequences, and develop alternative solutions for her housing and financial needs.
Appellee lacked the mental capacity to comprehend that if she returned to Moore's
Boarding Home she may be harmed a second time . She trusted and relied upon
Appellant to provide solutions including, a safe environment in which to live .
As stated in Miller v . Mills, Ky., 257 S.W.2d 520, 522 (1953) .
We think it is clear that so far as foreseeability enters into the question of
liability for negligence, it is not required that the particular, precise form of
injury be foreseeable - - it is sufficient if the probability of injury of some
kind to persons within the natural range of effect of the alleged negligent
act could be foreseen .
Appellant's failure to convey to Appellee the likelihood of harm and its
failure to take steps that Appellee could not take for herself was negligence.
Appellant's negligence created a situation that placed Appellee at risk for injury .
A reasonable person would have recognized that placing Appellee in an
unregistered, unlicensed boarding home where she had previously been
assaulted placed her in harms way. Given that the offender, Mr. Stacy, was a
resident at Moore's Boarding Home, the likelihood of a second assault was very
high .
Because I believe the negligent acts of Appellant were a substantial factor in the
injuries sustained by Appellee, I would affirm the decision of the Court of Appeals and
remand the case to the trial court for further proceedings .
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