I love ya' Nova and usually I agree with you. Not on this one. Sometimes tragic accidents happen. Sometimes people make mistakes and horrible things result from those mistakes. But we can't litigate and legislate ourselves into an accident-proof world. What we can do, though, is litigate and legislate ourselves into a drab world where we can't have fun anymore, where only busInesesses with a huge amount of capital can risk providing entertainment or services to the public and where we have to be helmeted and padded to suffocation and sign extensive release forms before we can enter any establishment.
If the zoo had little steps leading to the rail, or had a line of icecream cones or toys dangling in a place only reachable by standing on the rail or if they had sings inviting people to stand there, them they would be negligent. As it stands, IMO, it is only the mom who was negligent here.
Since you are a lawyer and I am not, could you at least clarify that I am correct as to the principle of shared liability existing in PA law?
Because of the post to which you replied, it appears you are correcting my understanding of the law. My point in that particular post was merely that liability may be shared under PA law. I'm sure you will agree as to that much.
Now whether liability SHOULD be shared in this case is another matter, one to be litigated in pleadings and, perhaps, at trial. Since I have yet to see a picture of the exhibit, I can't begin to form an opinion.
But my point was that under PA law, liability doesn't automatically fall exclusively on one party or the other.
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That being said, I'm sure you know that with a 4' railing, a good plaintiff's attorney will argue the zoo should have expected that parents would lift small children to see over the barrier and, therefore, the zoo should have installed some sort of screen to keep small children from accidentally falling over the railing. (After all, the zoo was aware of the problem of people dropping their cameras and installed a net to solve the problem. "Why did the zoo care more about cameras than children?", asks the mother's attorney.)
Whether such an argument would prevail depends on a lot of factors, including a jury's sympathy for a grieving mother. But I don't have to tell you that.