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Marland v. Asplundh Tree Expert

United States District Court, D. Utah

February 16, 2017

SCOTT K. MARLAND and JENNIFER D. MARLAND, as conservators for the minor child, J.S.M., Plaintiffs,
v.
ASPLUNDH TREE EXPERT CO., a Pennsylvania corporation, Defendant.

          MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW

          TED STEWART UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant's Motion for Judgment as a Matter of Law. Defendant made the Motion orally at the conclusion of Plaintiffs' case-in-chief on February 13, 2017. For the reasons discussed below, the Court will deny Defendant's Motion.

         Federal Rule of Civil Procedure 50(a)(1) provides:

If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

         In reviewing a Rule 50 Motion, the Court should review all of the evidence in the record.[1] However, all reasonable inferences are drawn in favor of the nonmoving party and the Court may “not make credibility determinations or weigh the evidence.”[2] Judgment as a matter of law is appropriate “only if the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party's position.”[3] A judgment as a matter of law is appropriate “[i]f there is no legally sufficient evidentiary basis . . . with respect to a claim or defense . . . under the controlling law.”[4]

         In this matter, Plaintiffs bring a negligence claim against Defendant. “The essential elements a party asserting negligence must prove are: (1) a duty of reasonable care owed by the defendant to plaintiff; (2) a breach of that duty; (3) the causation, both actually and proximately, of injury; and (4) the suffering of damages by the plaintiff.”[5]

         1. DUTY

         The Court has determined that the duty of care Defendant owed to Plaintiffs is properly stated in § 324A of the Restatement (Second) of Torts. Section 324A states:

One who undertakes gratuitously for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person ...

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