As you know, the plaintiff must prove all four elements of negligence (duty, breach, causation, and damages) in order to prevail in her case against our client, SSCG. Last week, we determined that the plaintiff believes the "duty" involved here is as follows: "Defendant had a duty to operate, manage and/or maintain the rock wall."This week, it is your job to identify how we think Plaintiff will argue that our client breached that duty. Using the information in the client file and what you've learned so far in class,a short memo to your supervising attorney. Include the following:

• A concise statement identifying the potential breach of duty.
• Explain and support your answer with an analysis using the facts of the case.
• Any potential arguments our client may be able to use to rebut the assertion that they breached a duty.

September 5, 20XX

TO: Travis Dorn

FROM: Marla Rosenbaum

RE: Thurman v. Southfield Sports Complex and Gym

One of our corporate clients, Southfield Enterprises, which does business as the Southfield Sports Complex and Gym (SSCG) has been sued by a guest of one of its gym members.

The client owns and operates 9 fitness centers across the state and, until now, our representation has been limited to transactional matters such as drafting service and supply contracts, advising on standardizing its personnel manuals and trademarking a logo.

SSCG is insured by Underwriters of Southfield. General liability matters such as personal injury claims have always been handled by another law firm, but Underwriters has recently decided to reassign some of those representations and has negotiated with Murphy, Miller & Dorn to pick up defense work for SSCG in this matter.

I know we haven't handled the defense side of personal injury litigation up to now, but this could be a great foot in the door for us as Underwriters has indicated that it could assign us more defense work if we're able to resolve this matter to its satisfaction.

Please select a member from the Litigation Group to review the file and determine what work needs to be done. I've asked for an extension from plaintiff's counsel in order to respond to the complaint.

The plaintiff in this case is a 25-year old woman named Margery Thurman, who visited the SSCG located on Farm Road in Southfield on May 31, 20XX with a friend. The plaintiff was not a member; she was the guest of the friend who was a member and who had singed a membership agreement waiving liability for injuries associated with use of the facilities. Furthermore, prior to being allowed to enter the gym, the member signed a waiver acknowledging his responsibility for the guest's well-being. Both individuals decided to climb the rock wall that is part of the gym facility.When about 2/3rds of the way up the wall, the plaintiff alleges an outcropping under her left foot broke or crumbled, causing her to lose her hold on the wall. Her injuries include a sprained left ankle and dislocated right shoulder.

While these injuries alone may not seem significant, the plaintiff is also claiming a significant loss of earning capacity, both in her full-time job as a school teacher, and in her additional employment as a tennis pro and tennis instructor. Underwriters of Southfield doesn't want to settle this matter; it believes that to do so would open a floodgate of lawsuits relating to similar liability issues.

Prior counsel moved for a dismissal of the case as the guest and the member signed waivers. Unfortunately, the judge decided that there are questions of fact relating to whether SSCG warranted the quality of the facility and whether the plaintiff knew and understood that she was subject to a waiver.

Since we now have to move forward with our defense, please have the lawyer you assign bring in Noah Brown, the gym manager, to discuss the matter and determine what steps need to be taken to mount a defense. Just because the waivers didn't meet the requisite burden for a Motion to Dismiss doesn't mean we can't use them in defending the gym. I also doubt that the gym itself installed and maintained the rock wall, so we may be able to join additional defendants and cross-claim.

Please remember that, unlike the plaintiff's side of personal injury litigation, we are billing for our time, so please have any Litigation Group members keep track of their hours.