Torts Essay Exam Law School Hypo
Dolly and her husband, Don, who relate the following facts have come to
you for representation. Produce a memo describing the various TORTS legal
issues raised by their narratives. The strengths, weaknesses, possible
defenses that can be interposed, and the issue of possible remedies
should be analyzed in a clear well-organized memo.
Dolly had been working for a multinational corporation for three years
in the customer service department. During the last year one of her
supervisors has been calling her `Brittany' and telling her that
she is `hotter than Brittany Spears'. These statements make her
very uncomfortable. She has complained to the department manager. This
has not stopped the comments.
Dolly and Don have been married for six years. She felt she could not discuss the job problem with her husband. Her marriage had been stable until last year when she started to become tense and irritable with her husband. She feels that her problems were aggravated when she learned she was pregnant. Shortly after she learned of her pregnancy, her husband, while playing softball at a company picnic, was injured by a bottle thrown from the stands by a fan angered when he blocked a baseline and collided with an opposing player. He may be permanently vision impaired and can no longer do his job as inspector of micro devices.
Don recently took a job as a window washer with a maintenance company
that washes windows on the outside of high rise office buildings. Last
week, on a very windy day, Don and his partner on the window washing
crew told their supervisor that the wind was too strong to safely use
the rope supported scaffold on the outside of the building. The
supervisor told them that the windows had to be washed that day and if
they refused - they were fired. As Don and his partner were washing the
windows twelve floors above the ground a gust of wind caught the
scaffold swinging it wildly away from the building and into the building
shattering windows.. Don and his partner hung on to the scaffold for
over an hour until they were rescued by the Denver Fire Department.
Dolly delivered a healthy boy three months ago. Right after delivery she
felt completely exhausted and depressed. She could not look at the baby,
cried constantly, and refused to speak to anyone. She discussed her
feelings with her obstetrician and asked if she could stay in the
hospital a few days longer as she could not face the responsibility of
taking care of her baby alone. Her doctor, who knows that he will be
financially penalized by the patient's insurance company if he
extends a hospital stay or refers a patient to a specialist, did
Shortly after Dolly came home from the hospital she made a suicide
attempt, which resulted in severe physical injuries the permanency has
not as yet been determined . She recently told her husband of the
problems at her job. Don and Dolly decide that she should quit her job
although they needed her income especially now that they have the baby
and Don was so traumatized by his experience on the windswept window
washing scaffold that he can not return to that job...
Don relates that last week he had been notified that his married
brother, who has a six year old son, died when as a national fraternity
representative, he visited the Colorado University chapter of Pi Alpha
Gamma fraternity. While there, he attended a party where he drank too
much, tripped over a torn carpet, and fell down a flight of stairs. His
position with the fraternity was basically as a volunteer. However he
was paid his travel expenses and a small stipend. His primary job was as
an accountant with a Wall Street brokerage firm earning approximately
Don's primary concern is that his nephew would be financially
protected by any recovery available from his father's death. As far
as Don knows his brother died with modest assets. His primary concern is
that his brother's widow is totally irresponsible with finances and
may not even consider taking any legal action.
LAW STUDENT TORTS EXAM ANSWER WITH COMMENTS BY TORTS PROFESSOR
No one will ever accuse you of not using your imagination when
looking for possible claims. Good job. Your Memo would be more usable by
your attorney if it were edited down and more organized.
Although you sometimes listed the elements of individual potential claims i.e. Battery by fan where you did and product liability where you didn't. Company picnic does arise out of employment relationship but does that mean he was within scope of employment? True Don was within scope of his window washing job when he was subjected to wind problem, but does that not BAR him from any TORT action against employer? He would be limited to workers comp. which for pure emotional trauma might be minimal if anything.
Outrageous conduct by one of her supervisors (John Doe): The tort
of intentional infliction of emotional distress occurs whenever a
defendant intentionally or recklessly, by their conduct, causes severe
or emotional distress in another person. The question is whether
supervisors, who harass Dolly, are liable for this type of tort? Here,
Dolly feels uncomfortable that John Doe has been harassing her, calling
her names, and telling her that she is hotter than Brittney Spears. It
is obvious from the facts the supervisor recklessly disregarded the
possibility that distress might result because she complained to the
department manager. The question is whether after Dolly complained, did
the department manager make it known to John Doe, and if it was known,
did he recklessly disregard the fact that it makes her feel
uncomfortable? If so, then John Doe intended to bring about the
distress, and he knew with substantial certainty that the distress would
result. However, mere insults are generally not sufficiently
The question is whether John Doe's conduct knew of Dolly's special sensitivity, and whether a woman in Dolly's shoes would have been seriously anguished? From my perspective, the comment that she is "hotter than Brittney" would probably cause severe mental anguish in a reasonable woman. The distress must be severe enough to cause physical manifestation (e.g. loss of sleep); from the facts tense and irritability is not a physical manifestation. The supervisor's comment must have been severe enough because she later decides that she should quit her job. But a court will hold him liable only if there was a physical manifestation and had Dolly sought medical attention for it. Thus, John Doe is probably not liable.
Assault by John Doe: Assault is the intentional causing of an
apprehension of a harmful or offensive contact. From the facts, there
is no assault. Consequently, maybe a claim for sexual harassment but
more research would have to be done to see if that claim flies. Plus,
the statute of limitation on sexual assault case begins to run from the
time of discovery for many of these cases.
Special doctor-patient relationship: The question is whether
Dolly's doctor failed to act when she discussed her feelings of feeling
exhaustion and depression? Usually, there is no duty to assist another,
even where he/she could do so; however, this is the exception to the
general rule of "no duty to render assistance." Most courts recognize a
special doctor-patient relationship, so that the doctor must give
assistance to a patient it knows or should know is in danger (e.g.
committing suicide from depression). The doctor has a duty to help
relieve or referring a specialist to assist her. Doctor is probably
liable for failing to act to prevent patient from injuring herself. He
is also a third party beneficiary between Dolly and her insurance
company, which takes us to the next issue.
Improper interference by Dolly's insurance company: No defense
can save insurance company from this one (at least I don't think there
is). Is insurance company, who will penalize Dolly's doctor if he
extends hospital stay or refers her to a specialist, liable for
intentional interference with a contractual relation (IICR)? IICR
requires: an intentional and improper interference which causes a third
person not to continue the prospective relation or preventing the other
from acquiring the prospective relation, and an underlying contract
exists between plaintiff and third party. After delivery, Dolly
discussed with her obstetrician that she felt completely exhausted and
depressed, and that she couldn't even look at her new born or talk to
anyone. She requests an extension of her stay to recuperate before
facing her new responsibility. But her doctor because of financial
penalties placed by her insurance company did not authorize her request
or refer her to a specialist. This constitutes an interference with her
doctor's contractual relationship to his patients. The facts show that
after she came home, she attempted suicide and incurred severe physical
injury. Had the insurance company not improperly interfered with the
doctor-patient relationship, preventing him from continuing to treat her
after her delivery, maybe she would have recovered from her post
exhaustion and depression or he could have referred to a specialist who
could have helped her recover. This constitutes an interference with a
contractual relation and insurance company should be liable.
Mental suffering by Dolly: The question is whether Dolly, who
attempted suicide from lack of medical assistance to cure her exhaustion
and depression, can claim mental suffering? Dolly can claim mental
suffering as an additional element of recovery because she has direct
physical injuries (e.g. suicide attempt resulted in severe physical
Mental suffering by Don: If Don witnessed his wife's attempted
suicide, and he fears for his wife's safety, then he may be able to
recover, if he was within "zone of impact." Virtually all courts will
allow him to recover for mental suffering for his fear for the safety of
his wife who may have committed suicide. If Don doesn't see his wife
attempt the suicide but hears about it later, no court will let Don
recover for mental distress.
DON (COMPANY PICNIC)
Assault/Battery by Fan: Battery is the unprivileged, intentional
infliction of harmful or offensive contact. From the facts it is
obvious that fan intended and desired to inflict harm (e.g. threw the
bottle and it injured Don). Throwing a bottle at someone in anger
constitutes substantial certainty that the harmful contact will occur.
The question is did fan realize that a harmful contact with Don was
nearly certain; fan is protected if he didn't realize this. The fan was
not privileged to throw the bottle in anger just because Don blocked
the baseline and collided with opposing player.
Assault is iffy here because it is uncertain if Don saw the fan
throw the bottle. Assault is the intentional causing of an apprehension
of a harmful or offensive contact. If Don saw the bottle coming when
he blocked and collided with opposing player, then there is assault.
But fan is probably not liable for assault, because if Don saw it he may
have been able to move out of the way depending on how far he was from
the stands. If the bottle was intended for someone else but hit Don
instead, then this is transferred intent, and is still a battery. So,
Fan is liable for battery but probably not assault. No affirmative
defense is going to save fan from this one. He can't claim he was
privileged or that it was a mistake. (Who knows maybe it was a mistake
but it is not a defense).
Moreover, playing softball may entail some amount of risk, but
the risk from being injured by a fan on the stand is not inherent in the
game, thus assumption of risk is not a defense here because the risk
wasn't an unreasonable one. Fan's conduct was gross and reckless and
Product liability by Bottle Co.: In Venezia v. Miller Brewing
Co., 626 F.2d 188 (1st Cir. 1980), the plaintiff sued the manufacture of
a beer bottle that shattered when he threw it against a telephone pole,
injuring his eye. Like that case, Don may wish to sue the Bottle Co.
of the bottle that injured him when the angry fan threw it from the
stands, injuring his eye. But like that the court will probably hold
manufacture not liable for Don's injuries, because bottles are not
designed to withstand such "use." The defense of misuse will prevent us
from establishing a prima facia case.
Vicarious liability on the company: Because this was a company
picnic, the question is whether Don was within the scope of employment
and with the intent to further his employer's business purpose?
Assuming that Don was at his company picnic (not Dolly's), then his
company or her company would have the right to control the details of
the company picnic. And a company picnic is the sort of event that
employers frequently and foreseeably do within their work year because
it promotes moral. Thus, a court would probably find it within the
scope of employment because it benefits the whole company. Fan and
employer are both jointly and severally liable for injury to Don.
Employer is the proximate cause of the accident. Conduct will be
deemed to be a proximate cause if the harm was a foreseeable result of
the conduct, and if the harm was not brought about by an extraordinary
or unforeseeable sequence of events. In this case, being injured by a
bottle thrown from the stands by a fan in anger is an unforeseeable
event and quite frankly, an extraordinary event. Therefore, company
will not be held liable if looking back from the harm to the conduct, it
appears to the court `highly extraordinary' that the conduct should
have brought about the harm. Rest. 2nd $435. So, here Company's
negligence if that is what we can call it is not the proximate cause of
the injury. Though playing the game would be the proximate cause of
the injury, but it is an unforeseeable cause. One normally doesn't get
injured by a bottle thrown at them from the stand.
Workers compensation (WC) for Don: Any recovery by Don against
Company will probably be limited by the terms of Colorado WC statute,
and no proof of negligence is required in order to recover this limited
amount. The statute provides: The Act is an exclusive remedy against an
employer or coworkers for personal injuries where at the time of the
injury, the employee is performing services arising out of and in the
course of the employee's employment. C.R.S. § 8-41-301(1)(b). Here Don
was injured while at the company picnic, this stratifies the course of
employment requirement because it is within the time and space of the
employment. Company picnic arises out of employee's employment.
Therefore, WC applies. See, Archer v. Farmer Bros. Co.
Mental suffering by Don: Don can claim mental suffering as an
additional element of recovery because he may have severe direct
physical injuries (e.g. permanently vision impaired and can no longer do
his job as an inspector of micro devices).
Mental suffering by Don: if Dolly witnessed her husband be hit
by the bottle that was thrown, and she fears for her husband's safety,
then she may be able to recover, if she was within "zone of
impact/danger." Virtually all courts will allow her to recover for
mental suffering for her fear for the safety of her husband who has just
been severely injured. If Dolly doesn't see her husband being struck
with a bottle but hears about it later, no court will let her recover
for mental distress. Thus, in this one I would say it depends on more
Since Don may be permanently vision impaired and can no longer do
his job as an inspector of micro devices, he can claim collateral
damages: Fan doesn't get discount to reflect the fact that Don may have
been reimbursed for her out-of-pocket expenses associated with the
accident from some third party, that is, Don's health insurance provider
who pays medical bills. These damages compensate for disability
payments or sick pay. There may be a possibility that in Colorado these
damages may be abolished or cut back, so assuming arguendo the state
has not abolished the collateral common law rule, Don's recovery will
not be reduced by the health insurance reimbursement or worker's
The facts don't say but Don has to mitigate his damages: all we know is that he may be vision impaired and that he is unable to do his job. One could conclude that he sought prompt medical attention, but if he didn't seek prompt medical attention and his injury worsens, under the duty to mitigate rule, Don can't recover for any damages that would not have been suffered if Don had sought prompt medical aid.
Don can seek punitive damages for this intentional tort. He can also claim compensatory damages for lost earnings, pain and suffering, lost body function (permanent vision impairment), and mental distress.
Damages: Don may recover from 1) economic loss, 2) physical pain, and 3) mental distress.
DON (WINDOW WASHING)
False imprisonment by supervisor of Maintenance Co.: False
imprisonment is occurs when the defendant intentionally confines the
plaintiff. In this case, Don and partner are confined when their
supervisor told them that the windows had to be washed that day and if
they refused, they were fired. The confinement was enforced, i.e. Don
and partner were made to worked last week, on a very windy day when
washing windows on the outside of a high rise building was abnormally
dangerous to do because the wind was too strong to safely use the rope
supported scaffold on the outside of the building. The threat of being
fired constitutes enforcement of confinement. A reasonable person in
Don and partner's shoes would feel that he couldn't leave, or would
suffer `being fired' if he tried to leave. Being fired is an unpleasant
choice for most people to suffer. Don and partner must have been aware
of confinement when hung on the scaffold for over an hour until the
Denver Fire Department rescued them. This is an appreciable amount of
time. At this point, they are confined because their will to leave is
fixed within the boundaries of the scaffold supported by rope, and is
overcome in a way that would overcome the will of an ordinary person in
Don and partner's position. And this is no mere intent from the
supervisor, because he knew with substantial certainty that confinement
would result. Don and partner told him that the wind was too strong to
safely use the rope supported scaffold on the outside of the building.
Furthermore, washing windows on the outside of the twelve floor of a
high rise when a gust of wind catches the scaffold your on swinging it
widely away from the building and into the building shattering windows
is enough to cause a reasonable person to be traumatized by the
experience and not want to return to that job. Supervisor is probably
liable for false imprisonment.
Respondeat Superior by Maintenance Company: Although the facts
state that Don was too traumatized to go back to work, it was within the
scope of employment and it furthered his employer's interest. So,
workmen's compensation would apply here. But I question whether one can
get damages for mental distress alone in a negligence suit. Probably
Negligence by employer user of rope supported scaffold: the question is
whether supervisor behaved negligently. Supervisors owe a duty of
reasonable care to their work crews. And there was a foreseeable danger
if care is not used in window washing on rope supported scaffold that
could not be safely used while outside the twelve floor of a high rise
building on a very windy day. There was danger of physical harm and Don
is lucky that he was traumatized only by the experience. The failure
of care actually and proximately caused the harm. But for the supervisor
making them work, a gust of wind would not caught the scaffold swinging
it widely and shattering windows, and would not have left the work crew
hanging for an hour for the Denver Fire Department to come rescue them.
It was foreseeable, because it was known that the rope supported
scaffold was not strong enough to safely use in strong winds.
Therefore, supervisor's negligence was grossly reckless and willful in
Not only is Don confined, but he was subjected to take an even
greater risk in the process. Window washing as an abnormally dangerous
activity: "On who carries out an abnormally dangerous activity is
strictly liable for any damages that proximately results from the
dangerous nature of the activity." Window washing outside a high rise
building is probably a high risk job, so Don, who recently took job as a
window washer with Maintenance Company, has assumed the risks, and is
probably being compensated for it. However, window washing outside on
the twelve floor of a high rise on a scaffold supported by rope on a
very windy day, entails an even greater risk (it is a higher risk),
which Don and his partner did not assume the risk (see below), because
supervisor made them work or be fired. Here Don and his partner told
their supervisor that the wind was too strong to safely use the rope
supported on the outside of the building. From this we can infer that
the activity on that particular day could not be carried out safely,
even with reasonable care - and that there was a likelihood that the
harm that results will be great. The activity--the windswept scaffold
swinging away from the building shattering windows and leaving the crew
to hang for over an hour until rescued--is inappropriate. And its
"value to the community" is not that great. So, in this case
Maintenance Company may be strictly liable to Don and partner because
supervisor made them work.
Assumption of risk is not a defense here, because Don and partner
did not voluntarily and unreasonably subject themselves to the
danger—supervisor subjected them to this when he said the windows on the
twelve floors had to be washed—they had no reasonable choice but to
assume the risks of going to work or be fired (they were under duress).
In the first half of the century, Don might have been held to assume
the risk, and that this consent was "voluntary." But thank God for
Workers' Compensation statutes because in Colorado, this issue was
eliminated. WC applies here regardless of fault, because the injury
arose from and in the course of employment (he was so traumatized by the
experience on the windswept window washing scaffold that he can't
return to work).
Contributory negligence (comparative negligence) by Don:
Supervisor may want to claim that the employee's submission to the risk
was "unreasonable," but Don's conduct which constitutes assumption of
risk is not contributory negligence because the facts state that the
activity could not be carried out safely, even with reasonable care (the
wind was too strong to safely use the rope supported scaffold). His
decision to take the risk was a reasonable one, in light of the
circumstances, because he had no choice. So recovery will probably not
be reduced. Lastly, Don can probably claim mental suffering as an
element of recovery here too.
Product liability by scaffold Manufacturing Co. /retailer: A
seller of a product is liable without fault for personal injuries caused
by the product if the product is sold in defective condition that is
unreasonably dangerous to the user. The question is whether the rope
supported scaffold was done with reasonable care. In the instant case,
Don can say the scaffold was defective because on a very windy day, the
wind is too strong to safely use the rope supported scaffold on the
outside of the building. Had the rope that supported the scaffold been
more durable for the windy day in which Don and partner work, perhaps
the gust of wind would not have been able to swing the scaffold widely
shattering the windows and traumatizing Don.
Was the product defective and unreasonably dangerous? Under §
402A, the reasonable consumer test used by most courts: "A product is
defectively dangerous to an extent beyond that which would be
contemplated by the ordinary consumer who purchases it, with the
ordinary knowledge common to the community as to its characteristics."
From the facts, Don and partner knew of the true conditions of the rope
supported scaffold, but nonetheless used it, thus the rope support
scaffold is not in a defective condition unreasonably dangerous.
Other courts apply the risk/utility balancing approach. This approach seems to use the Learned Hand formula analysis. The fact finder weighs the risk against the usefulness to society. For example, Don was employed to wash windows on a very windy day. He is injured when a gust of wind catches the scaffold that is supported by rope that cannot hold up in strong winds. The test is whether the seller would be negligent if he sold the scaffold knowing of the risk involved. In making this determination, the fact finder decides the likelihood of the injury, and the cost of preventing it, just as it would in a negligence case. Liability might be found on the fact that the scaffold manufacturer failed to warn Maintenance Company about the danger of working outside a high rise washing windows on a very windy day. See, Philips v. Kimwood Machine Co., 525 P.2d 1033 (Or. 1974).
If scaffold manufacturer failed to warn Maintenance Company that
it shouldn't use this equipment on a very windy day because the wind
would be too strong to safely use it, then scaffold manufacturer failed
to warn that certain uses are not appropriate. From the facts, it
appears that there must have been a label of some sort warning that
certain uses aren't appropriate b/c Don and partner told supervisor
about the possibility of not being able to "safely use the rope" and
thus scaffold manufacturer might not be in violation.
Even if manufacturer failed to warn, he might say, "even if the scaffold was defective for lack of warning about window washing on a very windy day, Don and partner were negligent too, since a reasonable person would realize that it was dangerous to use it on such a day. The scaffold manufacturer might use defense of misuse. Arguing that using the scaffold on a very windy day is so "unusual that the average consumer could not reasonably expect the product to be designed and manufactured to withstand it." Findlay v. Copeland Lumber Co., 509 P.2d 28, 31 (Or. 1971). In Colorado, negligent misuse use is a form of comparative fault, and this may reduce recover. Don will be assessed a percentage of fault for misusing the scaffold on a very windy day, and her recover might be reduced by a percentage.
The defect of such product would be a proximate cause of the
injuries. The Restatement Second of Torts test is "scaffold
manufacturer's conduct will not be the proximate cause of Don's harm if,
looking back from the harm to the conduct, it appears to the court
highly extraordinary that the conduct should have brought about the
harm. It is probably an extraordinary in hindsight that the use of weak
rope to support a scaffold for window washing would be caught by a gust
of wind and makes it swing so widely that it shatters windows and
traumatizes the work crew. This is probably so remote that it isn't
the cause of Don's injuries. The gust of wind is probably an
intervening cause and these types of causes are superseding. This was
an unforeseeable event but a foreseeable one for the plaintiff and
supervisor. Scaffold manufacturer is probably not liable. The
supervisor making his crew work on a very windy day is probably a
superseding cause as well.
Contributory negligence (comparative) is not a defense to strict product liability. But Assumption of risk is a defense.
If the good is the scaffold manufacturer produces is defective,
he will generally be required to indemnify the retailer or the ultimate
user who incurs liability due to negligent failure to discover the
defect (Maintenance Company). But some courts will deny indemnity if
another's conduct is itself negligent. But will award comparative
Was the harm to Don indivisible? Probably yes. Don could
probably collect the entire amount from which ever single defendant he
wants. Both manufacture/retailer will be jointly and severally liable
if Don recovers in strict product liability. Supervisor and employer
each are jointly and severally liable under respondeat superior. There
is only one problem: you can't get compensated if there are no physical
injuries. There are only emotional injuries here (he was so traumatized
by the experience that he didn't return to work). This isn't enough to
bring a suit.
DON'S BROTHER (WRONGFUL DEATH)
The issue is whether Brother's estate or surviving relatives have
any claim against Phi Alpha Gamma fraternity (PAG) for negligently
causing his death. In order to bring a claim for wrongful death first
one must answer the question of negligence, and then determine whether
decedent would have had a claim had he not died. And third, if the
decedent has a cause of action, then the decedent's estate or survivor's
will have a claim for wrongful death.
Brother's status at the time he attended the fraternity party was
probably that of a licensee (a social guest) because he was visiting
PAG as a national fraternity representative, which means PAG had a duty
to warn of hidden dangers known.
Sure an argument can be made that the purpose of the trip was for business and that he volunteered his services to PAG, making his status that of an invitee, then PAG has a duty to inspect the premises for hidden dangers, and make the premise reasonably safe. All PAG has to behave reasonably. Assuming arguendo, brother is an invitee, and PAG holds their business open to the public, brother who comes perhaps to work as an accountant, and PAG could hope to get an economic benefit from brother either on or a later occasion, then they are liable if they failed to inspect the premises for hidden dangers, and to make the premises reasonably safe. There conduct will be the proximate cause of the injury, since brother is probably the actual cause of the injury.
But assuming arguendo, that brother is a licensee. If brother
wasn't aware of the torn rug, and PAG failed to warn of unknown dangers,
and their failure causes brother to trip over the torn carpet, and fall
down a flight of stairs, then their conduct is the legal (proximate)
cause of his injuries. However, being that brother had drunk too much,
the brother is the factual ("but for") of his own injuries. But for the
drinking, he probably would have seen the torn carpet, and would not
have slipped and fallen down the flight of stairs. His injury is
actually foreseeable, or should have been foreseeable, and was as
closely connected in time and space with his own negligence, coupled
with PAG's breach of duty as is possible.
Here comparative negligence will probably reduce his claim. In Colorado, brother would not be barred for his contributory negligence, because they have rejected the "all or nothing" approach with a comparative negligence statute, instead the statute attempts to divide liability between the plaintiff and defendant, in proportion to their relative degrees of fault. However, brother may not recover at all if his negligence is as great as or greater than the PAG's negligence. Because of this statute, the need for the last clear chance disappears and is kept only "in a windfall to the plaintiff in direct contravention of the principle of liability in proportion to fault." See, Li v. Yellow Cab Co. of California, 532 P.2d 1226 (Cal. 1975).
Negligence by University of Colorado (CU): Is CU negligent for
failing to maintain the premises on campus in good safe conditions?
Colorado probably recognizes a special university-student relationship.
Here CU must give assistance to a student it knows or should know is in
danger, whether the danger is from drug use or from a poorly
lit-parking lot light. In our scenario, the danger was from a torn
carpet. So, CU has a duty to help one who is on the premises,
regardless of the source of danger. But in determining whether a
defendant owes a duty to a particular plaintiff, the law has long
recognized a distinction between action and failure to act. In our
case, CU's failure to act is a nonfeasance, and the University, unlike
Whitlock case, has a duty to assure that the fraternity's living
quarters is in good living standards, the University doesn't have to
regulate every single activity, but it does have to maintain the
premises. University of Denver v. Whitlock, 744 P.2d 54 (Colo. 1987).
Like Whitlock, only two possible sources of a special
relationship could arise: the status of brother and the lease between
the University and the fraternity of which brother was basically a
volunteer. The University is not the insurer of safety to its students.
So the fact that the fraternity had a party on its premises would not
hold the University liable for brothers drinking. But under the lease,
the University would probably have an obligation to maintain the grounds
and make the necessary repairs to the building, and the fraternity
would probably bear the costs of such maintenance and repair. So, it
follows that the University is probably liable for failing to act.
Proximate cause by CU: Conduct will be deemed to be a
proximate cause of the harm if the harm was a foreseeable result of the
conduct, and if the harm was not brought about by an extraordinary or
unforeseeable sequence of events. Here, the accident of tripping over
the torn carpet, and falling down the stairs might have happened anyway
even if brother hadn't drunk too much. But the University has a duty
to protect the fraternity members and their guests because of the risks
involved in a poorly maintained carpet. In this case the seriousness of
the injury caused the death of brother and the University would have
superior knowledge concerning these matters. This matter would probably
be in the lease agreement, that is, to replace the carpet every so many
years. It requires inspection of the premises. This was probably
foreseeable by CU.
Under negligence per se doctrine, violation of a statute by
itself establishes a lack of due care, if: 1. the statute clearly
defines a standard of conduct to which D did not conform; 2. the statute
was intended to prevent the type of harm which in fact occurred; and 3.
P was within the class the statute sought to protect. Was the type of
harm that occurred the type of harm the statute designed to prevent?
Usually there are administrative regulations for maintaining the campus
grounds in safe conditions. These regulations are meant to protect
brother. Death from tripping over a torn carpet and falling down a
flight of stairs is probably the type of harm the statute is designated
to prevent. There is a possibility here but more research will have to
be done on this issue.
Immunity for CU: at common law, the suit would have been blocked
by sovereign immunity, but nearly all states today, inter alia
Colorado, have abolished this immunity.
Indemnity is the 100% shifting of liability, whereas contribution is a sharing. I think here, the fraternity will be only vicariously liable for brother's conduct, and will be indemnified by the University. Just like an employer is liable for the torts of his employees, so is the University liable for the torts of their students living in campus housing. Since the fraternity is probably liable for failing to warn of unknown dangers or for failing to inspect the premises for unknown dangers, this may indemnify the fraternity (who probably doesn't have deep pockets). But like and employer-employee relationship, fraternity and CU each are jointly and severally liable.
CU and fraternity will argue that brother contributed to his negligence. The question is did brother behave with reasonable care in failing to notice the torn carpet at the fraternity party? It seems that brother by drinking too much contributed to his own negligence.
Brother, however, can assert the last clear chance doctrine.
This is an exception to the general rule plaintiff's contributory
negligence bars his recovery. Here, brother can assert that PAG had an
opportunity to prevent the harm and that this opportunity did not exist
for him since he was drinking and enjoying himself at the party. CU's
failure to exercise their opportunity to avoid the harm (i.e., brother
tripping over the torn carpet and falling down a flight of stairs) acts
as a superseding cause, preventing brother's negligence from being the
proximate cause of the accident. They could have done something about
the torn carpet to warn those who are guests at the University and
visiting PAG. In this case, brother was helpless to extricate himself
from the danger because of the drinking, and actually negligently failed
do so because he was inattentive or otherwise careless (i.e. drinking
too much does this to a person). If CU (or PAG) discovers brother's
plight, and then negligently fails to respond to it, most courts
similarly hold that the last clear chance doctrine applies. But if, CU
or PAG is reckless or willful, then punitive damages are or may be
In Colorado, brother would not be barred for his contributory
negligence, because they have rejected the "all or nothing" approach
with a comparative negligence statute, instead the statute attempts
to divide liability between the plaintiff and defendant, in proportion
to their relative degrees of fault. However, brother may not recover at
all if his negligence is as great as or greater than the CU or PAG's
negligence. Because of this statute, the need for the last clear chance
disappears and is kept only "in a windfall to the plaintiff in direct
contravention of the principle of liability in proportion to fault." See
Li v. Yellow Cab Co. of California, 532 P.2d 1226 (Cal. 1975). So the
jury will apportion brother's negligence however much that is against
PAG and CU's negligence. If they find that had brother not drank, he
would not have been injured by the torn carpet, and assesses his claim
at 50% or more; it could be that he would receive nothing. And probably
will bar a wrongful death suit.
If brother's decision is unreasonable, secondary assumption of risk applies though here but it disappears because of comparative causes, and brother's unreasonableness will be taken account in fixing his percentage of fault.
Product liability by carpet installers: assuming for the sake of
argument that the harm was caused by improper installation of the
carpet, and there was a tear. Then more research would have to be done
to see if we can further enjoin them in a liability claim.
Res spa loquitur to shift the burden to defendant: in a wrongful
death action we use res ipsa loquitur to shift the burden of proof? The
doctrine of res ipsa loquitur requires 1) there must be no direct
evidence as to defendant's conduct, 2) the event must be one that
normally doesn't occur without negligence, 3) defendant must be the only
one whose negligence could have caused the event (the event must be
within defendant's exclusive control). Here if the carpet is grossly
defective, we may be able to use the res ipsa loquitur to shift the
burden. I don't think Res ipsa applies here.
Wrongful death statutes do not compensate the decedent himself; it is obviously impossible to compensate brother now that he is dead. The best the law can do is to compensate the survivor's who were close to the decedent for the losses they suffer as a result of the decedent's death. Thus, the Colorado wrongful death statute authorizes damage for the economic losses or emotional losses to the survivors of the decedent, not the loss suffered by the decedent himself. In Colorado, the statute limits the recovery to the losses suffered by close relatives as a result of the decedent's death. Under the statute, the beneficiaries do not bring suit themselves. The executor or administrator of the estate is empowered to bring an action, but the damages are measured by the losses to the statutory beneficiaries and are distributed by the executor or administrator of them. Under the Colorado wrongful death statute damages will include tangible immediate losses (funeral and burial expenses) and intangible immediate losses (the grief and mental anguish of learning of the death), inter alia, that may be recovered by survivors are loss of consortium, and pecuniary losses. Colorado survival statute provides that causes of actions survive rather than abating the death of either the tortfeasor or the injured party. C.R.S. 13-21-202. This means that brother's estate is authorized to bring an action for such damages had brother suffered before he died. The person entitled to sue in a wrongful death case may recover a solatium, that is, monetary compensation for suffering, loss, injured feelings in the amount of fifty thousand dollars (tangible and intangible losses). C.R.S. 13-21-203.5. "Such solatium amount shall be in lieu of noneconomic damages recoverable under § 13-21-203, and shall be awarded upon a finding or admission of the defendant's liability for the wrongful death
Torts Essay Exam 2006 from Pepperdine
Ron recently married Donna. It is Ron's first marriage, Donna's second. Donna has a 12-year- old son, Eddie, from her first marriage who has not really gotten over Donna's divorce from his father. He has remained distant from Ron. Ron wants to develop a relationship with Eddie, and volunteers to help in his classroom at Clinton Elementary School.
Clinton Elementary is a private school. Volunteers work in many of the younger children's classrooms, but it is unusual for someone to work as a volunteer in one of the older children's classrooms. There is nothing much for Ron to do. He cleans the blackboard and empties the trash and stands around a lot. The teacher, Miss Bunn, appreciates his desire to help, but there is just not that much that a volunteer can help with in one of the older children's classrooms. Miss Bunn tells him to go outside and watch the kids during recess. Many, but not most, schools have paid playground monitors, but Clinton Elementary does not.
Eddie and some of his friends decide to play football. Ron wants to show off and impress the boys. Ron was a quarterback in college and he can throw the ball very far. He throws some passes to the boys. He tries to throw the football to one of the boys who goes out for a pass, but the ball sails into an area next to where the boys are playing football. It hits Penny in the face, breaking her nose. Penny is a shy, awkward, immature third grader. Ron apologizes and takes Penny to the school nurse. Ron leaves Penny in the care of Nelda, the school nurse, and returns to the playground.
Penny's nose continues to bleed heavily. Nelda gives her a box of tissues to control the bleeding and has her hold one over her nose. She places Penny in a room on a couch, while she sees other students in an adjoining room. Penny continues to bleed heavily. Nelda checks on her occasionally. In fact, Penny is a hemophiliac, but is embarrassed about it and hesitates to tell Nelda. Nelda does not check Penny's school records, which would have revealed this condition. The bleeding continues at a heavy rate and Penny begins to weaken. Nelda tries to call Penny's parents, but they are not home and not available at work. Nelda finally checks the school records and notes Penny's hemophilia, and calls an ambulance which takes Penny to the hospital. Penny continues to bleed. She winds up in a very weak condition as a result of the loss of blood and the delay in the trip to the hospital. It is several weeks before she is back to normal.
When Ron returns to the playground, he finds that a bunch of the boys, including Eddie, have begun to play tackle football with no pads or helmets. In the Clinton Elementary playground football games, tackling and blocking is not limited to the game. While guys are standing around between plays, it is common for boys to run into the other boys, just to knock them down (though this sort of thing is not allowed under the normal rules of football). Ron enjoys watching all of this. It reminds him of his days playing football. Once, while Eddie is in the huddle with his teammates making plans for the next play, Bubba, a large player from the other team crashes into Eddie from behind. Everyone has a good laugh, but Eddie is slow getting up. He has sharp pains in his stomach and has a ruptured spleen. It requires a painful operation.
Discuss the rights and liabilities of the parties, including any defenses that they might raise. Do not discuss any claims that Eddie might have against Donna.
Torts Essay Exam Question Two
Debbie owned a car she had painted bright neon orange. The car did not have headlights. A statute in her state reads in part:
To promote the safety of all motorists, all motor vehicles operated at night must have properly operating headlights.
One evening after dark Debbie was driving her car near a street that had been blocked-off from traffic because a carnival was being held there. For some reason Debbie's car veered into the blocked-off street. Several pedestrians at the carnival saw Debbie's car coming toward them and were able to jump out of the way, but a woman named Pam did not get out of the way in time and Debbie's car struck and injured her. Debbie was quite traumatized by the accident, and to this day cannot remember anything about it. However, she later hypothesized that another car must have cut her off, forcing her car to drive into the carnival area.
Pam was quite drunk when Debbie's car struck and injured her. She was also two months pregnant (in the first trimester of pregnancy). After the accident Pam's doctors accurately informed her that her fetus was also injured by the accident, and that if Pam decided to go forward with the pregnancy her baby would be mentally retarded. Pam chose not to have an abortion, and her child, named Tom, was born mentally retarded.
One of the pedestrians at the carnival almost hit by Debbie's car on the night of the accident was Maddox. Although Maddox was able to avoid being struck by Debbie's car, he could only do so by jumping through a large window at the front of a shoe store named Loafers. Maddox was not injured in crashing through the glass. However, after the accident he exited Loafers through its front door to avoid having to step through broken glass, which would have been necessary to exit through the broken window. The handle on the inside of Loafers' door had been broken and jagged for over a month, and when Maddox turned the handle it caused a bad cut in his hand. Loafers' manager admitted that he knew of the problem with the handle but had done nothing about it because normally the door was propped open during business hours, and thus the inside door handle was not normally used by customers.
Please address the rights and liabilities of the parties, including any defenses that they might raise. Do not address any claims Maddox might bring against Pam.
Sample Torts Essay Answer Exam Key
Penny v. Ron (negligence in throwing football)
Duty: Under Andrews' rule, Ron has a duty to all the world. Under Cardozo, Ron has a duty to those foreseeably injured by his act. Following either line of thinking, it is foreseeable that anyone in the direction of his throw is a potential plaintiff when Ron is throwing a football a great distance. Penny will likely establish duty. [Note from RFC – Many of you argued that Ron had a duty to act because he was acting for the teachers, etc. This is an affirmative duty to act rule and is only needed in cases were a defendant is allegedly negligent for their failure to act, as in Eddie v. Ron below. Here, Ron is already acting, throwing the football, and must do so with reasonable care. Once he hits Penny, he has a duty to aid her, but he did that properly, taking her to the nurse’s office.]
Breach: A reasonable person who could throw the ball as far as Ron would not throw it in the direction of a group of other students. Ron breached the standard of reasonable care.
CIF: Penny will argue that, more likely than not, without Ron throwing the football, she would not have been injured. Ron may claim that Penny may have been hit by one of the other boys throwing the football, but that argument is weak.
PC: It was foreseeable that by Ron throwing the football, somebody might be hit in face. Under the eggshell skull rule, Ron would also be liable for complications from the hemophilia, as he must "take the person as he found them." In addition, he is responsible for the later negligence of medical personnel like Nelda, because courts have held that it is foreseeable.
Damages: Penny's nose was broken.
[Note from RFC – Many of you raised the possibility that Ron committed a battery. There was no indication that Ron intended to hit Penny, either as a matter of purpose or knowledge to a substantial certainty. No need to even raise this claim, and if you did, you could have dismissed it quickly on the intent issue.]
Penny v. Nelda (negligence in care)
Duty: It is foreseeable that neglect by a nurse will cause injury to her patient.
Breach: In cases of medical malpractice, traditionally doctors and nurses are held to the standard of an ordinary practitioner in the community. The trend is for them to be held to a national standard for ordinary medical personnel. While the ordinary standard might be lower in a school setting, checking the school records is still a very simple task for the nurse. Under the Learned Hand formula, the burden of safety must be less than the potential risk (probability of loss times the potential loss). The burden of checking the records would have required just a few moments of time and there is no indication that needs of other students were pressing, while the probability of loss times the potential loss to Penny is far greater.
CIF: Without the nurse's negligence, Penny likely would not have suffered an exacerbation of the harm.
PC: It is foreseeable that failure to check the records will lead to an exacerbation of the injury.
Damages: Penny continued to bleed and was in a weak condition as a result of the delay in the trip to the hospital.
Defense: Nelda will argue that Penny should have told her of her hemophilia and that her negligence allowed for the injury to worsen. Nelda will try to escape all blame in a contributory negligence jurisdiction and lessen her blame in a comparative negligence state. However, Penny will only be held to the standard of a child of her same age, intelligence, and expertise. Given her age and stated immaturity, she will argue that her negligence should be absolved.
Eddie v. Bubba (battery)
Bubba committed an act with the intent to cause harmful or offensive contact causing harmful contact. Since the hit was from behind, a claim of assault can be defeated—Eddie had no apprehension of contact. Bubba's age is no excuse for an intentional tort. However, he can argue that Eddie apparently consented to the risks of the game. Though tackling after the play is not permitted in the rules of normal football, it was standard in the rules of the playground game. In fact, the other children laughed when Bubba crashed into Eddie, accepting it as part of the game. The privilege of consent makes a very strong case for Bubba.
[Note from RFC – Some of you raised the possibility that Bubba was guilty of negligence. Here the claim was clearly battery because Bubba intended the contact. No need to raise negligence.]
Eddie v. Ron (negligence in supervising)
Duty: Ron is one foreseeably injured, so there is duty under Cardozo and Andrews' rules. This also raises the question of a duty to act. Generally, one does not have an affirmative duty to act. However, if they have a special relationship with the plaintiff or the third party, they may be required to do so. Ron's status as Eddie's step-dad may create a duty to Eddie, though it is not clear that a step-dad will have the same duty to a child as a parent. Teachers have a duty to take affirmative action to assist students, but Ron is not really a teacher. He is merely a volunteer at the school. In my view, having volunteered to monitor the playground, he assumed the school’s duty of care.
Breach: The burden of stopping the children from playing this game may be higher than it seems, as they were accustomed to playing under such rules. However, the probability that children would be physically injured when tackling each other may still be great enough to justify that Ron should have intervened and stopped the game.
CIF: Eddie will argue that without Ron neglecting to properly supervise, he would have not been injured. Ron will argue that even if he had stopped this game, Eddie might have been injured. It is still likely that the boys would have found another way to roughhouse and get injured. The argument can go both ways, but if Ron had indeed stopped the football game, it is likely that Eddie's injury would not have occurred.
PC: It is foreseeable that allowing children to tackle each other will result in an injury, including a ruptured spleen.
Damages: Eddie suffered a ruptured spleen and sharp stomach pains.
Def: Ron will argue that Eddie assumed the risk by playing the game. He played voluntarily and knew of the risk. Eddie will argue that he is too young to have assumed the risk. I go with Eddie.
Eddie & Penny v. Ms. Bunn and the school (negligence in providing improper supervision)
Duty: Again, Cardozo and Andrews apply, and both are satisfied. It is foreseeable that children playing outside may be injured. Further, through the special relationship of teacher and students, Ms. Bunn and the school have a duty to Eddie and Penny.
Breach: The custom of many schools is to have paid playground monitors. Again, the custom is not controlling, but it will be sent to the jury for evidence. The burden of hiring somebody to watch over the children seems very slight when weighed against the risk of physical injury. Ms. Bunn and the school will argue that they in fact sent Ron, an adult volunteer, outside to watch over the students. Eddie and Penny will argue both that (1) a sole monitor was insufficient, and (2) Ron was improperly trained to care for the students. Eddie and Penny have a strong case here.
CIF: The children will argue that, without the negligence in providing proper supervision, their injuries would not have occurred. Ms. Bunn and the school will argue that children are injured all the time, and even the addition of another monitor or having better trained Ron would not be sufficient to have prevented the injuries. CIF may be difficult to establish.
PC: It is foreseeable that improperly supervised children would be injured, including a broken nose and a ruptured spleen. Though the consequences were likely foreseeable, even if the manner that the injuries came about was unforeseeable, they still establish proximate cause as foreseeable injuries.
Damages: Eddie and Penny were hurt.
Def: Again, the same assumptions of risk will be raised. Penny, however, assumed very little risk. She had no choice but to go to recess and did not elect to participate in the football game. The defense will not work against her, and though the case is stronger against Eddie, that defense may well also fail.
Respondeat Superior - In addition, the school is subject to liability for the torts of Nelda and Ms. Bunn on the basis of respondeat superior—they were employees of the school and acted negligently within the scope of their employment.
Torts Essay Exam Question Two
Pam v. Debbie (negligence in driving w/o headlights)
Duty: Andrews suggest a duty to all the world; Cardozo suggests a duty to all those foreseeably injured by the D's actions. In this case, Cardozo's duty would encompass all of those on or near the road, so through either rationale, Pam can establish duty.
Breach: For breach of a statute, Pam must have (1) been in the class of person that the statute was designed to protect from injury and (2) the injury must have been the type that the statute was designed to prevent. By the text of the statute, it was "to promote the safety of all motorists." As a pedestrian, Pam does not technically fall into the class of persons that the statute was designed to protect. However, it is not necessary to use the statute to establish a breach. For Debbie, the burden of adding properly working headlights would have been relatively low, requiring perhaps a few hours and a little bit of expenditure. The foreseeable injury from not replacing the headlights, is great, as driving an unlit car at night can be severely dangerous.
CIF: Pam can probably show that, more likely than not, without Debbie driving without headlights, she would not have been hit. However, Debbie will argue that Pam might have been hit, even if there had been headlights. The car was brightly colored and all of the other people at the fair were able to get out of the way of the car. This will turn on the facts shown at trial.
PC: It is foreseeable that driving without headlights will lead to a pedestrian getting injured.
Damages: Pam was injured.
Def: Debbie may argue that Pam was contributorily negligent in being drunk. Without her having been drunk, Pam may have perhaps been able to avoid the accident. However, given the nature of a carnival, perhaps it was an accepted custom to be drunk and that it is not negligent to do so. This could be admitted as evidence, but not controlling. Also, there is no facts to prove that Pam could have avoided Debbie even if sober.
Tom v. Debbie (injury to fetus)
Duty: Originally, there was no duty to an unborn child. However, now a person owes the duty of reasonable care to a child in utero, and will be responsible for damages once the child has been born alive. There are no claims available of wrongful life or wrongful birth, however, to Tom or the parents, as the doctors duly informed Pam of the risks and she declined to have an abortion. [Note from RFC – many of you tried to raise wrongful life or wrongful birth claims, but as this student notes, there was no negligence on the part of the doctor. Some of you got credit for arguing that Tom might sue his mother in wrongful life for not having an abortion, but (thankfully) courts have not gone that far with the wrongful life claims.]
Breach: Debbie drove without lights and drove erratically, see above and below.
CIF: As informed by the doctors, without the accident, Tom would not have been injured. Pointing to the fact that Pam was drunk in her first trimester, Debbie can suggest that Tom would have been born with disabilities regardless. Perhaps medical experts will be brought in to make the determination.
PC: Tom will argue that it is foreseeable that a person driving negligently will injure a pregnant woman and therefore the fetus. Debbie will argue that mental retardation of a child is an unforeseeable consequence of her act. I go with Tom.
Damages: Tom was born mentally retarded.
Maddox v. Debbie (negligence in driving without headlights)
Duty: Again, as established before, Debbie would have owed a duty to Maddox as a pedestrian.
Breach: Same as in Pam v. Debbie
CIF: Eddie will argue that without the negligence of Debbie, he would have not had to dive through the window of Loafers. Though he sustained no injuries in diving through the glass, without having done so, he would have had no need to egress Loafers (as he was not in the store prior). Without such, he would have never been in the position to grab the handle and cut himself. If she had never set the action in motion, Maddox would not have injured his hand.
PC: Proximate cause gets to be a bit more tenuous. It is foreseeable that someone would be injured by Debbie's negligence. However, the injuries would more likely be those from impact with a car, not a hand laceration. Maddox will argue that a hand laceration was indeed a foreseeable injury~diving through the window to avoid the car could have caused that very same injury. The fact that it came about in an unforeseeable manner is irrelevant, and Maddox can still establish PC through the Railroad Loop rule.
Damages: Maddox's hand was injured.
Defense: Debbie may argue that Maddox was contributorily negligent in his injury by grabbing the door handle. Maddox will argue successfully that he was not negligent in using the handle. There was no notice of danger.
Maddox v. Loafers, Loafers' manager (negligence in failing to repair the door handle)
Duty: In California and a minority of jurisdictions, owners of land owe a duty of reasonable care to all persons on their land, regardless of their purpose. In traditional, majority jurisdictions, the duty is predicated on the classification of the person on the land. Loafers will argue that Maddox was an adult trespasser and it owed no duty. Maddox will argue that an emergency forced him onto the premises and that he was not a trespasser. He was probably not a business guest, to whom a duty of reasonable care was owed, but since he was not a trespasser, maybe the court would classify him as a licensee. He had a right to be there. In some states, a licensee is owed a duty of care. In others, as a licensee, he had a right to be warned of hidden passive dangers that the owner knew about. There was no warning.
Breach: Applying the Hand formula (if there was a duty of reasonable care), the burden of fixing the door handle would be relatively inexpensive, while the probability of injury would be greater. Even though the door was normally propped open during business hours (and therefore the risk of injury was modest), the expenditure to fix the door versus the risk involved with not fixing it would likely establish a breach of the care of a reasonably prudent person on Loafers' part.
CIF: Without the faulty door handle, Maddox would not have cut his hand.
PC: It is foreseeable that someone grabbing the door handle would be injured. This happened in an unforeseeable manner, so we have PC under Railroad Loop—foreseeable injury in an unforeseeable manner.
Damages: Maddox's hand was injured.
Pam, Tom, & Maddox v. Debbie (driving erratically)
Duty: See above for the duties.
Breach: Not only did Debbie breach her duty of maintaining the headlights in her car, she probably drove the car negligently as well. To this day, Debbie claims to not know how the events came about. But the P's can try to use res ipsa loquitur to establish that Debbie negligently drove her car. Nobody knows what happened, but the car was under the exclusive control of Debbie. This type of accident does not ordinarily happen without negligence, and it is probable that Debbie was indeed negligent. However, Debbie's theory that another car cut her off could provide enough doubt to defeat the res ipsa claim in jurisdictions that leave the burden of persuasion on the plaintiff under res ipsa. Debbie is likely to lose in jurisdictions that shift to Debbie the burdens of production or persuasion under res ipsa. Since Debbie does not remember what happened, it is unlikely that she can produce any evidence that she was not negligent.
CIF: See above.
PC: It is foreseeable that driving erratically will lead to the injuries of pedestrians.
Damages: See above.
Defenses: See above.
Loafers v. Maddox (trespass to land)
It is true that Maddox entered onto the property of Loafers and crashed through their window, satisfying the act, causation, and result. However, Maddox may have been deemed lacking the required intent. If Maddox was just reacting instinctively, there was no intent. However, if he analyzed the situation and made the decision to jump through the window, intent can be established.
He will likely use the claim of private necessity. Private necessity would apply, giving Maddox a right to be on the property, however, Maddox would be responsible for any damages that he inflicts, and may be liable for the damage to the window.
Pam, Tom & Maddox v. City & Carnival Planners (failure to maintain proper barrier)
Duty: Even under Cardozo, anybody attending the carnival could be seen as a potential plaintiff.
Breach: The carnival planners must have used the care of a reasonably prudent person in setting up the barriers. The burden must be analyzed and the cost of a stronger barrier weighed against the likelihood of injury. Likely, for an event like a carnival, a barrier surrounding the entire event sufficient to stop a car might have been unfeasible, given the size of the carnival.
CIF: P's must prove that with a better barrier, more likely than not, Debbie's car would not have entered the area. There is insufficient evidence to prove either way.
PC: It is foreseeable that if a barrier is insufficient, it will not serve its purpose of keeping traffic out.
Damages: See above.
Torts Law School Hypo:
Al has custody of his ten year old son Conor who lives with Al in Al's semi-rural house at the edge of where the suburbs end and the farms begin. Conor has two ten year old friends staying for the weekend at Al's.
The three kids ask Al if they can camp out overnight Saturday in the woods of a county park bordering on Al's back yard. Al at first refuses but after much nagging gives in. Al has lots of camping equipment; so the kids divide up the sleeping bags, tent, food, and cooking utensils between them to pack into the woods.
Al does not have any more of the small canisters of gas used to fuel his compact portable cooking stove; so he tells the kids they will have to build a campfire for cooking and gives them a plastic jug of kerosene and some matches to start the campfire.
Al expects that the kids will simply go a very short distance into the woods and camp close to the back yard. However the kids are very excited by their adventure and they hike two miles into the woods until they are very close to the other side of the woods, which borders on Bea's farm.
Conor, who has never camped without an adult before, picks a campsite in an opening covered with dry leaves and brush, which he doesn't clear away. He stacks a large amount of dry branches to build a large fire, soaks them with kerosene and starts a very large blaze, which quickly spreads to the groundcover and thence to the woods. Six of Bea's horses grazing in her field next to the woods are frightened by the resulting forest fire and stampede. One horse breaks its leg and has to be put down, killed. Another horse in its panic breaks through Bea's fencing which has been rotten for some time. A zoning ordinance requires owners to fence in all hoofed animals. The horse runs onto a highway bordering the farm and the county park, just as a car is passing. The driver is forced to swerve to avoid the horse, loses control and hits an embankment, injuring Mary, a passenger.
At the hospital for treatment, Mary shares a room with a comatose patient. While Mary is napping, a young child visiting the other patient, with her family, moves the cord which has Mary's "call button" on it, out of Mary's reach, as a prank. After the family and child leave, Mary awakens from her nap, now having trouble breathing or speaking as a result of her injuries. Unable to reach her call button to notify the nurse's station of her problems, the nurses are not alerted to Mary's condition until they make their usual rounds. By then Mary is dead. Had she been able to call them by pressing her call button, they would have responded in time to save her life.
1. Mary's estate, under a statute which permits such suits, sues Al for negligence in causing Mary's injuries and death.
2. Mary's estate sues Bea for negligence in causing her injuries and death, under the same wrongful death statute.
3. Bea sues Conor in negligence for the loss of her horse.
Analyze the potential negligence tort liability of the three defendants.
Torts Essay Exam Professor's Model Answer
A. Mary's Estate v. Al.
1. Duty. Plaintiff must have sufficient facts to prove that Al owed a duty of reasonable care to Mary. The law differs by jurisdiction on this issue. In jurisdictions following Cardozo's view of duty, one only owes a duty of care to those who could foreseeably be harmed in some way by one's conduct. If Al's conduct created foreseeable risks of harm to others but not to Mary, then Al owed no duty to Mary.
Plaintiff would argue that the risk taken by AI was sending little children into a dry woods with matches, a jug of kerosene, and orders from the father to start a campfire in the dry wood. The facts indicate that the leaves and brush are dry, implying that conditions in the woods are dry. Al sends the children into a woods bordering on a farm in a semi-rural area. So, plaintiff would argue, not only is a forest fire completely foreseeable, but a forest fire bordering on farm property and in an area where livestock and horses are kept. The danger created by AI is not only fire but a fire that threatens nearly properties and livestock. The courts have regularly held that flight from danger is as foreseeable as danger. Thus, since the live stock are foreseeably to be endangered or frightened by Al's conduct in his semi-rural community, someone encountering these fleeing animals is foreseeable. Since the highway on which they were encountered here is contiguous to the farm and the farm is contiguous to the woods, Al is risking livestock or horses fleeing in confusion and fear onto the highway. One who risks large animals crossing or running onto a highway obviously risks accidents with cars hitting or attempting to avoid the danger. Thus, Mary, as a passenger in a car on the highway is within the foreseeable zone of danger created by Al's outrageously unsafe conduct. Someone who risks a forest fire is risking harm on land near the forest fire, particularly when that land will have large animals that will naturally panic and flee a raging fire.
Al would argue that Al's conduct in his home was not foreseeably risking harm to people in a car on a highway miles away, particularly where the highway was in no way endangered by fire. At worst, Al was risking fire damage to persons or property in or near the fire. No fact places the highway next to the woods. The highway borders the farm and the park but there is no evidence that the woods in the park are near the highway. For all we know, the highway is on the other side of a 200 acre farm and the park extends miles beyond the woods. Thus, there is not sufficient evidence on the facts given to infer that travelers on a distant highway are foreseeably endangered by either the fire or by fenced in horses near the fire. Plaintiff would respond that a horse near the fire ran onto the highway in response to fear from the forest fire, which indicates the highway is probably near the field since it is within the range of the fleeing horse. While the issue is highly arguable, I would conclude that even in a Cardozo jurisdiction a court would find Al owed Mary a duty of reasonable care. Al's expectations that his kids would not go far is completely irrelevant because it is subjective and because no matter whether the kids go close in the woods or far in the woods, the risk Al took was a forest fire bordering on a farm with horses on it. A reasonable person would foresee the danger of large, panicked animals fleeing and Mary was in the zone of that foreseeable danger.
In a jurisdiction following Andrews view of duty, the rule is that once one's conduct creates a foreseeable risk of harm to anyone, a duty is owed to whomever is harmed by such conduct. Here, Al was foreseeably risking harm to the kids and therefore owed a duty to Mary.
2. Breach. To establish the element of breach, plaintiff must show that a defendant failed to use reasonable care under the circumstances.
That AlI acted negligently is beyond argument. He sent three ten year olds into a dry woods with matches and a jug of highly flammable liquid, ordering one of them, whom he knew to be inexperienced, to build a campfire using the kerosene. The probability that these children would start a fire without taking adequate safety precautions and the probability of the resulting fire spreading is high. Even if the probability were not high, the gravity is overwhelming. Al is risking a forest fire with three children in the forest and valuable properties surrounding the forest. Al is risking death to these children. That there is no social utility to ordering inexperienced little children to start fires in dry woods with kerosene is obvious. There is no burden whatsoever in acting more carefully. Either accompany the children or take away there matches and kerosene and order them to camp within sight without any fire, or refuse their camp-out request. Al has no argument for his insanely dangerous conduct.
3. Cause in fact. Plaintiff must show that the negligent conduct of the defendant was a cause in fact, a substantial factor in bringing about the harms plaintiff is seeking compensation for.
Here, but for AI's sending the children into the woods with their instructions and fire making materials, there would have been no forest fire, no panicked horses, and no highway accident. But for Al's conduct, Mary would have continued on down the highway. Instead, because of Al's breach, Mary was injured in the accident and later died from those injuries. Since the "but for" test works and is not even arguable, the breach here is a cause of Mary's injuries and death. The fact that there are many other causes, such as the kid at the hospital is irrelevant to whether Al's breach was a cause.
4. Proximate Cause. A defendant may not be liable for all harm's caused by defendant's breach. The causal connection between the negligent conduct and the resulting harm may be so remote that the court will cut off liability, concluding the harms are not sufficiently proximate to the breach. The court's determination of proximity will take into consideration how directly or indirectly the resulting harms were connected to the negligence of defendant, and whether or not the resulting harms were reasonably foreseeable from defendant's breach of his duty to use reasonable care. Here, the resulting harms were the initial injuries sustained when Mary's driver hit an embankment and the death that later resulted because of those injuries.
A.) Direct or Indirect. Mary's harms were brought about indirectly. Courts treat harms as indirect where there are intervening causes between defendant's negligence and plaintiffs harm. An intervening cause is generally regarded as any independent active force that arises after the breach and joins in bringing about the harm.
Here, there are three intervening forces which join in bringing about Mary's initial injuries. After Al's negligence, his son causes a fire, a horse responds to the fire by breaking through a fence and running onto the highway, and a driver on the highway swerves his car to avoid the horse. The son, horse, and driver would not have acted as they did but for Al. However, the actions they took were independent choices that arose after Al's conduct. Neither the fire nor Bea's conduct regarding her fence would be regarded as intervening causes. Bea's putting horses into an insufficiently fenced field was conduct which probably came before AI's conduct since the facts say the fence had been rotten for some time. The rotten fence is itself not a force at all. The fire is an active force, but unlike the child's choice to build a fire or the horse or the driver choosing a direction, the fire simply follows the laws of physics. It is a force but not a independent one. In any event, Mary's harms are only indirectly brought about by Al's breach. The child at the hospital, in taking away the call button was a fourth intervening cause of Mary's death.
B.) Foreseeability of the harms. Whether Mary's initial injuries and subsequent death are foreseeable is highly arguable. While the duty issue under Cardozo was whether any harm was foreseeable, here the issue is whether what actually happened to Mary was a foreseeable result of the unreasonable risks taken by Al.
1. Initial injuries. Because of AI, Mary suffered injuries when the car hit the embankment. Mary would argue her injuries were part of the risk taken by Al, that a reasonable person could foresee the embankment injuries as being foreseeable from Al's sending the kids into the woods to start a fire. While the issue under duty was any harm, as opposed to this harm, the argument here would be the same. Plaintiff would argue that the obvious risk taken by Al was a forest fire in a woods bordering on a farm, and that since that was the risk, it was foreseeable that farm animals would panic and could escape onto the highway. What happened, a highway accident caused by a fleeing horse is foreseeable when one risks a forest fire near a farm and a highway. Al would make the same arguments as before. He would also point out that even if the panicked livestock were foreseeable, these livestock are fenced in. So the risk is of panic in the field but not panicked animals on the highway. Al would argue that the results here were so indirect, with so many independent forces having to all join in one direction over such a large distance, that the harm to plaintiff is an extraordinary and bizarre result that no ordinary person would contemplate. Fire, yes. Scaring fenced in animals, perhaps. But injury from a fence giving way and a horse breaking through and running onto a highway just as a car is passing is a very indirect, remote harm.
While a jury might reasonably disagree, I would conclude that a highway accident from livestock getting onto a nearby highway is an injury risked when one sets a forest fire ablaze near farms and highways. Thus, while foreseeability is arguable, I would conclude proximate cause of Mary's initial injuries, since the courts generally regard foreseeable results as proximately caused even if they are brought about indirectly. The particular manner in which a foreseeable result occurs is not usually considered important. Where results are foreseeable, they are proximate.
2. Mary's death. Because of her injuries Mary couldn't properly breath or speak and without further medical help, she died. So Mary's death resulted from her injuries. Death from injuries suffered in a car accident are usually foreseeable. As shown above, her death was indirectly caused. The young child at the hospital engaged in conduct which joined in bringing about Mary's death. Ordinarily, indirectly caused foreseeable results are proximate. However, the courts have created an exception to this general rule. When one is negligent, he or she may be risking accidental harm but is usually not risking intentional harm. Where the harm to plaintiff has been brought about by the intentional malicious or criminal act of a third party, the courts will generally relieve the original negligent party of liability. While defendant is negligent, he is not foreseeable creating the risk that someone else will intentionally and maliciously bring about harm. Sending a kid into the woods is not risking someone deliberately keeping an injured party from needed care. So Al will argue that he is not responsible for Mary's death because it was brought about indirectly because of the intentional malicious act of the kid at the hospital. Mary would argue that the act of a young child who doesn't understand the seriousness of his prank is not intentionally or maliciously seeking to cause harm to someone. The child didn't desire to cause Mary's death or know to a substantial certainty her death would result. The prank of a young child inadvertently caused Mary's death. While the issue is arguable I would conclude that the court would find no proximate cause because the child intentionally removed a safety device, not to help Mary but to harm or upset her. It is an objectively malicious intentional act. Such conduct is not among the foreseeable risks involved in Al's negligence. So the court will most likely use its intentional malicious or criminal conduct rule to find no proximate cause, and therefore no liability for the death.
5. Actual Physical Damage. Given.
6. Contributory Negligence. Not applicable here.
B. Mary's Estate v. Bea
1. Duty. Bea's conduct is placing horses in a field with a rotten fence. One of the horses breaks through the rotten fence and causes a car accident when it runs onto a highway bordering Bea's farm. There is a risk, foreseeable to a reasonable person, that horses will get out of the field if the fencing is rotten and plaintiff will argue it is foreseeable that once free, the horses could get onto the nearby highway. Such being foreseeable, it follows that an car accident on the highway is foreseeable. Horses are large and probably not sophisticated about the dangers of a highway. Cars speed along on a highway. Bea could try to argue no harm is foreseeable to Mary in a Cardozo jurisdiction, because horses tend to stay within fencing regardless of its quality or because no reasonable person would foresee a loose horse endangering people in cars on a highway. However, the fact that the horses are fenced in indicates the foreseeability of danger if not fenced in. The highway borders the farm where the horses are. I would conclude Mary is in the foreseeable zone of danger.
In an Andrews jurisdiction, the argument would be largely the same, harm is foreseeable to nearby persons or property if horses are let loose, and therefore a duty is owed to Mary whether or not she herself is foreseeably at risk.
2. Breach. Here, there is an ordinance requiring fencing. Statutes and ordinances will generally be used by courts to set the standard of reasonable care where the plaintiff is a member of the class of people intended to be protected by the statute or ordinance and the harm suffered by plaintiff is the type of harm the statute or ordinance was intended to prevent.
Bea may argue the statute here is not a safety statute at all. It is a zoning ordinance. Building codes are for safety; zoning rules are merely to regulate permitted uses. In this area, it is permitted to have horses as long as they are fenced in. Adherence to zoning keeps harmony among neighbors and prevents inappropriate uses of land. Plaintiff would reply that an ordinance can serve more than one purpose. If only use regulation were intended, it would allow the use of horses. But the ordinance requires fencing. Fencing is only needed to prevent property or personal damage from livestock on the loose. So, plaintiff would argue, Mary is a member of the class intended to be protected because she is within the range of animals should they get loose. Fencing is intended to prevent harm within the range of animals on the loose. Since the highway is close by, those on the highway are as much in need of protection as anyone else close to the fenced in animals. I would conclude that there is a safety purpose to the ordinance and that Mary, being a user of nearby property is among those intended to be protected. Bea would argue that the probable purpose of a zoning requirement is only to prevent property damage to nearby property owners, but it is difficult to see why, if it is a safety statute, the purpose would not be to protect against all harms which a loose hoofed animal might cause.
Dogs or cats don't ordinarily create the kind of dangers to cars on highways that larger hoofed animals do. They are smaller and therefore much less dangerous and even if not subject to leash laws are usually more sophisticated about staying away from highway traffic than big "dumb" animals such as cows or horses. So I would conclude that car accident harms are among the harms a "fencing" requirement is intended to prevent. So I conclude that the court will adopt the ordinance as a standard of reasonable care. Next, if the court does adopt the ordinance, plaintiff needs to prove that defendant violated the ordinance. An unexcused violation will be held, or at least rebuttably presumed, to be breach of duty. Bea will argue that she has met the requirement that she have fencing, that she is not in violation of the ordinance since it does not set standards of strength or maintenance or repair. Plaintiff would respond that a fencing requirement obviously means reasonably effective fencing, not rotten fencing or fences made of sewing thread or plastic ribbons. I would agree with plaintiff since the ordinance would otherwise be meaningless. A rotten fence of long duration would therefore be a violation and no excuse is given. Therefore, plaintiff can prove breach.
If the court were to conclude the zoning ordinance is not a safety ordinance, then plaintiff would be relegated to arguing without the ordinance that fencing in horses with rotten fencing is not using reasonable care. Plaintiff would argue that there is some probability of harm occurring if horses are kept without fencing adequate to keep them on their owner's property. Animals on the loose will probably cause property damage and could cause accidents if let loose to wander in an area with highways. Since the fence was rotten, there is some probability of harm by having large animals in that field. In this particular farm, a highway borders it and therefore the risk is more grave than a more isolated farm. Horses on the highway are a risk and that risk is grave since collisions between such animals and cars can be very grave. While there is some burden to maintaining the adequacy of a fence, it certainly does not outweigh the risk. There is little social utility in allowing livestock and horses to be kept in a semi-rural area with highway traffic without adequately confining such animals.
Bea would argue that the probability of any serious harm is so low as not to justify the expense of inspecting and repairing every rotten board in farm fencing. The fencing in question had been rotten "for sometime" yet was adequate to confine the horses. It was only the extraordinary forest fire that caused one of many horses to get loose. Thus, the probability of the horses challenging the fencing was extraordinarily low, the same probability of the forest catching fire there, something which had probably never happened before. Such a slight risk does not justify the expense of constantly inspecting and repairing all fences on all farms simply to prevent minimal escape under extraordinary circumstances. While defendant's arguments have some merit, I would conclude that maintaining adequate fencing is not so burdensome for those who choose to maintain livestock and that Bea's failure to discover the problem with her fence and either restore the fence or stop putting horses in that field is a failure of reasonable care.
3. Cause in fact. If plaintiff simply argues that but for the rotten fencing, the horse would not have escaped, defendant will respond that because of the fire and the stampeding power of a frightened horse, the horse would have broken through or gotten over even adequate fencing so the harm here 'was equally likely to have occurred even if the fence had been reasonably strong. The horses were panicked and stampeding. Reasonable fences are to keep horses confined under ordinary circumstances, not to protect against a once in a lifetime forest fire. In such cases, one would want horses to be able to escape. Like the case where it is uncertain whether someone would drown even if the lifeguard were on duty, there is some uncertainty here whether the panicked horse could have escaped through or over a reasonably maintained fence. So, unlike the previous case, against Al, plaintiff here would be better off arguing that the rotten fencing was more likely than not a substantial factor in Mary's harm because rotten fencing greatly increases the chances of this type of harm occurring and confining horses with rotten fencing is of a character that naturally leads to their escape. Defendant could also argue against this, asserting that the chances of horses escaping and causing harm are not greatly increased since this kind of fencing has kept these horses confined for sometime. However, I would conclude that the plaintiff will probably succeed on causation by emphasizing the restatement factors just argued.
4. Proximate Cause. Here, Bea is confining horses, with rotten fencing on a farm bordering a highway. So foreseeability is easier to show than in Al's case. The harms here are indirect for the same reasons as in Al's case. After the fencing has become rotten, Al sends the kids, who build the fire, which the horse responds to, which the driver tries to avoid. Al's conduct, the child's conduct, the force of the fire, the horses conduct, and the drivers conduct are all independent of Bea' s conduct, arising after Bea's negligence and joining with her conduct to bring about Mary's injuries and, with the addition of the child moving the call button, they join in bringing about death. It is foreseeable that poorly confining many horses with rotten fencing where there is a nearby highway can lead to accidents between loose horses and cars on the highway. The very risk that made Bea negligent is what actually occurred. So Al would have little chance of persuading anyone that accidents between horses and cars are extraordinary where a highway borders a farm with ill-confined horses.
So I would conclude proximate cause of Mary's initial injuries. As to Mary's death, Bea's arguments would be the same as Al's and I would reach the same conclusion.
5. Actual physical damage, given.
C. Bea v. Conor
1. Duty. Since property "very close" to a dry woods can foreseeably be harmed if one is not careful in building a large campfire in the dry woods, and since the very close, fenced in property is Bea's, there is little argument but that Bea is foreseeably at risk if
Conor is not careful when he starts his ''very close" fire. I would thus conclude that Bea is within the foreseeable zone of danger of Conor's conduct and owed a duty under the law of a Cardozo jurisdiction. For the same reasons, he would owe a duty of reasonable care in an Andrews jurisdiction which requires foreseeable risk of harm to someone, and Bea in this case is that someone. Also, the other kids and the county owner of the woods would serve to meet the Andrews requirement that at least somebody must foreseeably be at risk. So Conor owes a duty of reasonable care to Bea in All jurisdictions.
2. Breach. Conor is a ten year old and therefore presents an issue as to what standard of care will be applied to him by the courts. Generally, since children are not capable of acting as if they were prudent adults, the adult standard of reasonable care will not be applied. So courts look to whether a defendant child used the care that children similar to defendant, children of like age, intelligence and experience would have used under the circumstances. However, courts refuse to apply this child standard in certain situations, but jurisdictions differ. Some jurisdictions will apply the ordinary, adult standard to a child where the child chooses to engage in an activity which is the kind activity normally only adults engage in. Other jurisdictions simply ask whether the activity in which the child engaged was an "inherently dangerous" activity. If so, these courts will use the adult standard to measure the child's conduct. Here, in the first set of jurisdictions, Conor would argue that camping and campfires are activities that are not limited to adults. Camping is something children do and such camping includes building fires. Cub scouts camp, boy scouts camp, etc.
Plaintiff would argue that the activity in question is building a campfire and that children, even "scouts", are not normally allowed to build fires without supervision of an adult. The resolution of this argument would depend on evidence as to the particular practices of that community, but generally playing with fire is prohibited to children, so I would conclude campfire building in the woods is normally kept under adult supervision, and a court would apply the adult standard. In the "inherent danger" jurisdictions, plaintiff would probably have an easier time. Building open fires in woods is an incredibly dangerous practice, as shown by the devastating annual forest fires set by human error. So the courts there would probably use an adult standard. Under an adult standard, Conor did not use reasonable care. Starting a large, kerosene fueled fire in a dry woods without clearing away dry leaves and brush from the area of your large, intense fire carries with it the probability of the fire spreading. The gravity is enormous and there is little burden to clearing the area around a fire of any flammable materials. Starting a large fire with kerosene soaked wood under such circumstances is obviously negligent.
If the court were to accept Conor's "boy scouts do it" argument and apply a child standard, then Conor could argue that he used the care that a similarly inexperienced ten year old would have used. As evidence he can offer the other ten year old's with him who did not warn him or themselves clear away the brush. Further in his favor is the fact that an adult, his father, told him to use kerosene to build a fire in the woods and gave no instructions or warnings to the three children. How careful will a ten year old be in light of such parental instructions? I would conclude that Bea will fail to prove breach unless Bea persuades the court to use the adult standard, which I think she will succeed in doing in all jurisdictions.
3. Cause in fact. A carefully built campfire will probably be confined and safe. So, but for Conor's building a large, kerosene soaked fire without clearing away dry leaves and brush, in a dry woods, the forest fire would not have occurred, Bea's horse would not have stampeded in fright and more likely than not would not have broken its leg and been killed. I would conclude Conor's breach was a substantial factor in plaintiff’s being harmed by the loss of her chattel, the horse.
4. Proximate Cause. Here the harm is indirectly caused by Conor's breach. The horse is an independent force. Unlike a fire which can only go in the direction determined by the law of physics, horses act independently. They can run in one direction or the other. The direction chosen by this particular horse joined in bringing about it's broken leg which led to someone killing it. The horse and the killer arise after the fire and act in a manner that joins in bringing about the harm to plaintiff Bea. The horse's running and the killer's killing brought about Bea's harm. Conor could argue that while fire damage was foreseeable, people shooting or otherwise intentionally acting to kill an animal is not the foreseeable result of his failure to clear away brush. Bea would argue, however, that flight from danger and injury during flight are regularly regarded as a reasonably foreseeable result of conduct creating such danger. Here, starting a forest fire next to a farm with horses in a contiguous field can foreseeably cause panic and injury to the nearby horses. I would conclude that Conor has little argument, that his breach indirectly but foreseeably brought about harm to the horse and that a horse being "put down" is always foreseeable if it is seriously injured. While the intervening killer was intentional, he or she was hardly malicious or criminal and such intentional conduct was part of the risk created by Conor. So I conclude proximate cause.
5. Actual physical damage given.
6. Contributory Negligence.
1. Duty. Plaintiff Bea always has a duty to use reasonable care for her own safety.
2. Breach. Bea failed to use reasonable care. This has already been shown above.
3. Cause in fact. Bea's breach was keeping the horses confined with inadequate fencing. Here, the harm to the horse in question took place within the confines of the fence and the quality of the fence had nothing to do with the harm caused. So while Bea was negligent, her breach was not a cause in fact of her harm, and therefore those is no defense of contributory negligence.
NOTE: First determine the conflicting parties. Then discuss
each tort element in its own paragraph. That is how the professor will
grade so make it easy for him. Then do your counter arguments.
ARKANSAS TORTS BAR EXAMINATION
TORTS Essay Exam
Jimmy Seward and Harvey Hare are both 19 years of age. About midnight, not too long ago, they dropped into the Rabbit Hole Tavern (an establishment duly licensed by the Arkansas Alcoholic Beverage Control Board to dispense alcoholic beverages) in Waterdown, Arkansas, hoping to whet their whistles.
The tavern's bartender served Jimmy five double-scotches and Harvey five "Rabbit¬Punches" (a potent rum concoction). The two boys stumbled out of the Rabbit Hole at 2:00 a.m. obviously drunk.
Jimmy got behind the wheel of his car, and Harvey rode shotgun. They gained access onto the cross-town freeway up the exit ramp and started down the divided highway in the wrong direction.
Vance Armstrong has been training for the Tour de Lower Arkansas bicycle race during early morning hours and was coming down the exit ramp on his bicycle as Jimmy was going up. Vance was smushed like a bug; his back broken; his limbs paralyzed; his career ended. While at the hospital, Vance was also diagnosed with end-stage testicular cancer which no one knew he had.
Hitch-hikers, pedestrians, and bicyclists were prohibited by federal, state, and local law from use of the freeway or its ramp.
Jimmy and Harvey were unscathed. There was a slight smudge on Jimmy's rubber bumper which wiped off easily.
TORTS ESSAY QUESTIONS
1. Fifty Percent of Your Grade. Describe and discuss any causes of action which
Vance may have against any persons or entities. In your discussion, specify the essential elements of any claims, identify the elements and nature of damages which might be recoverable, and discuss what defenses might reasonably be asserted responsive to any claim as a bar to or in diminution of anv claimed damages.
2. Twenty-five Percent of Your Grade. Change the facts somewhat. Assume Jimmy and Harvey got drunk at a dinner party hosted by Bubba Batalia, a friend. Describe how this change in the facts affects Vance's claims.
3. Twenty-five Percent of Your Grade. Change the facts again. No drinking
involved. No expressway. Vance was riding in a dedicated bike lane. The steering in Jimmy's new car (built and sold by Vroom Motors) malfunctioned due to a break in a steering cable (caused by a weak spot in the steel strands), causing Jimmy's car to veer out of its lane and crush Vance. Vance was perfectly healthy prior to the collision.
I. Causes of action which Vance may have against persons or entities:
A. Potential liability of Jimmy Seward:
Vance will most likely have a valid cause of action against Jimmy Seward for negligence. The elements of negligence are as follows: A duty to act, an applicable standard of care, breach of that standard of care, causation (both actual, but/for causation and proximate (legal) causation), and damages to the plaintiff. Individuals owe a duty to all those who may foreseeably be harmed by their actions. Since Jimmy is an adult, as he is over 18, the standard of care of acting as a reasonableadult under the circumstances will be imposed upon him rather than the standard of care of a child of like age, knowledge, education, maturity, and experience (even though Jimmy is a minor for purposes of alcohol possession and consumption). It is obvious from the facts that Jimmy breached the applicable standard of care of acting with reasonable care by driving after becoming intoxicated, because this is not an action that a reasonable adult would take; and, thus, Jimmy will be liable to all those who could foreseeably be harmed by his breach of the standard of care. Vance will be able to use breach of the statutes prohibiting drunk driving as evidence of negligence in this case (in Arkansas, breach of an applicable statute can be used as evidence to help prove negligence but does not conclusively establish negligence). Jimmy's act of driving while intoxicated was an actual cause of the injuries to Vance because such injuries would not have occurred if Jimmy had not been driving the wrong way on the exit ramp, which probably would not have occurred if Jimmy had not been driving while intoxicated. In addition, Jimmy's act of driving while intoxicated was the proximate cause of Vance's injuries because there were no significant intervening acts to interrupt the causal chain of connection between Jimmy's negligent act and the harm to Vance. The damages element of negligence is met because there was personal injury to Vance.
Because all the elements of negligence are met, Vance should probably be able to recover from Jimmy for negligence. Arkansas is a modified comparative fault jurisdiction, meaning that contributory negligence by Vance due to violation of the statute prohibiting the use of bicyclists of the freeway ramp will not automatically render him unable to recover from the defendants in a tort action. However, Vance must be less than 50 percent at fault for him to obtain any recovery against the defendants in this case. When multiple defendants are involved, the percentage of fault of each of the defendants in the case are added together. And if the sum of the fault percentage of all the defendants in a case is over 50 percent, the plaintiff may recover. However, in a modified comparative fault jurisdiction such as Arkansas, the plaintiff may recover only according to the percentage of fault of the defendants. Thus, Vance may recover as long as any contributory fault of Vance in this matter does not exceed 50 percent as compared to the fault of all the defendants combined in the matter. It is not necessary that Jimmy alone be over 50 percent at fault for Vance to be able to recover from Jimmy.
Vance may be able to recover damages for loss of enjoyment of life, pain and suffering, medical expense (and future medical expenses attributable to the accident, but not those for the cancer), mental anguish (because there is also physical harm, which Arkansas requires in order to recover for mental distress in a negligence action), and lost wages. Future lost wages and future medical expenses payments would need to be reduced to present value. However, there may not be much recovery for future lost wages and future medical expenses attributable to this accident because it appears that Vance may die soon from testicular cancer from these facts. (I am making the assumption that the fact that Vance has end-stage testicular cancer means his life will probably end soon).
B. Potential liability of the Rabbit Hole Tavern.
Vance may also have a cause of action against the Rabbit Hole Tavern for negligence. There is a recent legislative enactment in Arkansas that allows dramshops, such as taverns, to potentially be liable to third parties if they serve alcohol to those under 21 or serve alcohol to those who are apparently already intoxicated. Violation of Arkansas statutes is evidence of negligence rather than conclusive proof of negligence. Therefore, if Vance can prove the elements of negligence (see Part A above) against the Rabbit Hole Tavern, Vance may recover against the Rabbit Hole Tavern for negligence. This statute can probably be used to help establish both a duty to third parties, such as Vance (because duties can be established by statute) and the applicable standard of care. In addition, breach of this statute can be used as evidence of breach of the standard of care. Rabbit Hole Tavern will probably be found to have been an actual cause of the harm to Vance because they did serve the alcohol to underaged Jimmy, without which he would not have been leaving the tavern intoxicated and then driving drunk home. Proximate causation may be a little harder to prove, but distance in time and space is part of the consideration for proximate cause, and in this fact pattern it appears that Jimmy had just left the tavern moments before the accident occurred. This will factor in to support a finding of proximate cause. The tavern may assert that Jimmy's driving away from the tavern was an intervening act, but this defense would likely fail because that type of act (driving intoxicated away from the tavern), was foreseeable. In addition, Vance suffered harm due to personal injury from the accident. Thus, it is likely that Vance will be able to establish the tort of negligence for a cause of action against the tavern.
Arkansas is a modified comparative fault jurisdiction, meaning that contributory negligence by Vance due to violation of the statute prohibiting the use by bicyclists of the freeway ramp will not automatically render him unable to recover from the defendants in a tort action, although the defendants can and should assert Vance's violation of the statute to prove that Vance was partially at fault in this matter. Plaintiffs must be less than 50 percent at fault for him to obtain any recovery against the defendants in this case. When multiple defendants are involved, the percentage of the fault of each of the defendants in the case are added together, and if the sum of the fault percentages of all of the defendants in a case is over 50 percent, the plaintiff may recover. However, in a modified comparative fault jurisdiction, such as Arkansas, the plaintiff may recover only according to the percentage of fault of the defendants. Thus, as long as any contributory fault of Vance in this matter does not exceed 50 percent as compared to the fault of all defendants combined in this matter, Vance may recover a total percentage of the damages for the percentage for which he is not at fault. It is not necessary that the tavern alone be over 50 percent at fault for Vance to be able to recover against the tavern.
Vance may be able to recover damages for loss of the enjoyment of life, pain and suffering, medical expenses (and future medical expenses attributable to the accident, but not those for cancer), mental anguish (because there is also physical harm, which Arkansas requires in order to recover from mental distress in a negligence action), and lost wages. Future lost wages and future medical expenses payments would need to be reduced to present value. However, there may not be much recovery for future lost wages and future medical expenses attributable to this accident because it appears that Vance may die soon from testicular cancer from these facts. (I am making the assumption that the fact that Vance has end-stage testicular cancer means his life will probably end soon). Vance's testicular cancer will thus make the damages that Vance can recover somewhat more limited than if Vance was completely healthy when he was struck by the car.
C. Potential Liability of Harvey Hare.
As to an action against Harvey Hare, the issue is whether Harvey Hare and Jimmy Seward were involved in a concerted effort or common scheme. If they were not, Vance will not have a cause of action against Harvey Hare because Harvey committed no act that was a proximate or actual cause of Vance's injuries. In addition, there is nothing in the fact pattern to indicate that there is any relationship between Harvey and Jimmy, such as a principal/agent relationship or employer/servant relationship that would allow recovery under a vicarious liability theory.
As to all the above potential defendants, it should be noted that Arkansas has abolished joint and several liability, except in the case of a concerted effort or when an agent or employee is acting on behalf of an employer or principal. Thus, Vance will probably need to recover from each defendant individually rather than being able to recover his total amount of recoverable damages from one defendant who could then seek contribution from any other defendants.
2. Bubba Batalia will not be liable under the statute listed above in Question 1 that allows third parties to recover from dramshop owners who serve alcohol to those under 21. The statute contains an exception to liability for social hosts, but Jimmy may still be held liable for his own negligence (see the discussion under the Question 1 heading). And there is still the possibility of recovering for any negligence by Harvey Hare if it is found that Harvey Hare and Jimmy Seward were engaging in a concerted effort by drinking underage at the tavern together and both going home drunk in a vehicle driven by Jimmy while Jimmy was intoxicated.
3. Vance will be able to recover against Vroom Motors under the theory of strict liability for sale of a defective product. Arkansas recognizes the tort of strict liability for sale of a defective product when that defect renders the product unreasonably dangerous. Here it appears that there was a defect in the vehicle and that such defect did render the vehicle unreasonably dangerous considering it caused the vehicle to veer out of its lane. Here it appears that Vance is not at fault at all, so Vance will probably be able to recover a full 100 percent amount of his damages against Vroom Motors. In addition, Vance will be able to recover more in damages because he was perfectly healthy at the time of the collision. Thus, he will have more damages to recover due to expectation of a longer life in the form of lost wages, future pain and suffering, future medical expenses and loss of enjoyment of life.
There does not appear to be any negligent action by Jimmy or Harvey in this case that will allow Vance to recover from either in an action for negligence.
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