Diamond_Torts_Answer_F10 - ID FINAL_Torts_LS 4_Diamond_20...

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Unformatted text preview: ID: FINAL_Torts_LS 4_Diamond_20 loFL Diamond __—______________.______—————————-——-— ID: \Exam Number) Name: 1 Exam Name: FlNAL_Torts_LS4_Diamond_201OFL Instructor: Diamond Grade: _____________________________._________ Page of1 Exam taken with 8011' est v10.0 ID: FINAL_Torts_LS4_Diamond_2 OlOFL Diamond 1) Terry woud like to believe that he has a claim for intentional in erence with economic expectation against Maggie. TO show such. there would have to be a valid economic expectancy, knowledge of that expectancy by the defendant. maggie, intent to interfere with a valid economic expectancy. actual inteference with that expectancy and damages resulting from the interference. In this case, Terry had a valid expectancy because of his pre-existing business in the area, it is not clear if Maggie knew of this expectancy, but her introduction into the market likely caused an inteference with Terry's pre—existing business. although it is not clear that that was her intent. Damages surely resulted if her prices were lower than Terry's and consequentlty took some of Terry's business. Regardless of her intent or the actual interference however. there are privileges for interfering with exconomic expectancies, one of which is fair and ethical competition. Maggie likely falls into this catvorfof privilege for interfering with an economic expectancy. Terry may also be liable however. for assault to Maggie. For maggie to claim assualt against terry, he must have intentionally caused her tgy/in apprehension of immediate harmful or offensive contact. Conduct is intentional when it is done with either desire of the consequences or substantial certainty that they will occur. Contact that is offensive is offensive to a reasonable person's sense of dignity and it need not be made directly by the actor and can be a result of an in trumentality in the defendants control. like throwing mud. In this instance, Terry th eatened to throw mud on her. the threat of course being indicitive of his intent, u he said THE NEXT time he saw her IF she didn't close her business, which makes the threat not immediate and conditional. which Page 1 of 5 {Question 1 continued) ID: . FINAL_Tort: s_LS4_Diamond_2 010FL Diamond is also not seen as the courts as immediate enough. So maggie will Wikely recover for assualt Maggie may have a case for intentional infliction of emotional distress. To have such a claim she must show that Terry's extreme and outrageous conduct caused her severe emotional distress. Conduct is extreme and outrageous if it offends a reasonable person's sense of dignity. The distress need not dev op physical syptoms, but it needs to be severe. HEre. threats of throwing mud are c rtainly in bad taste, but it is unlikely such would be condisdered extreme and outrageous. Furthermore, it is not'clear that Maggie actually suffered sever emotional distresss. She will not likely recover against Terry for IIED. Maggie still may have a claim against Terry for malicious prosecution. TO have such a claim Maggie must show that terry instituted a lawsuit or criminal proceeding, that the proceeding had no true legal merit and was decided in favor of the defendant and damages resulted. In this instance. it is unfortunate for maggie, because although Terry filed a basesless claim against her, since he dropped the lawsuit before it was decided in Maggie's favor, she has not outlet for recoWbecause she does not qualify for Malicious process. Maggie may also have a claim against Terry for intentional interference with contractual relations or economic expectancy. The Elements are the same for interference with contract, there are just fewer privliges for interference and there is an actual contract as opposed to just an economic expectw/ln this instance there were valid contracts and economic expectancies with the supermarkets. Terry likely knew of these contracts and expectancies, because he sought out grocery stores selling maggies product in order to persuade them to do othenivise. His interference was intentional because he Page 2 of 5 (Question 1continued) ID: FINAL_Torts_LS4_Diamond_2 010FL Diamond did it to further his own business at the expense of Maggie and in this case he succeeded in interfering with some of the relationships. Terry did not seem to interfere with any of the contractual relationships which is good, because there is only a privilige for those if you give honest advice when asked, you are acting in response to someones welfare you afsponsible for, you have a bonafide legal interest in the contract, or the contract ' illegal or against public policy. None of those privileges exist for Terry, but fortunately he did not pursuade any contractual relations of Maggie to change turkey providers. He did interfere ith economic expectancies, but he could claim he had the privilege of fair and t cal competition since he too is in the Turkey selling business. This privliege ill likely succeed, althouth a jury could question his ethics in this instance. it is likel the court will air on the side of capitolism and let his seemingly shady methods of usiness 3 Ida. Terry's employee may have a case for rongful termination. It is not clear if Terry's employee was a contractual one or a t-will employee. Either way, employers usually have leway in firing their employee for just about any reason they want. They are however barred from firing people for reasons against public policy such as discrimination against a member of a protected class, or firing someone who refuses to do something illegal. In this case Terry's employee was fired for doing something illegal and obviously had the damages of l ‘st income from his job. He could probably recover for wrongful termination. Terry's employee could also have a Iaim for "ED. Being fired is not often seen as extreme and outrageous. but bein red for failing to do something illegal may seem more extreme, further the courts are more likely to find IIED in cases where there exists a superiorfinferior relationships such as empolyer/employee. Again it is not clear that Page 3 of 5 {Question 1 continued) ID : FINAL“Torts_LS4_Diamond_2 O 10 FL Diamond Terry's employee suffered severe distress, and even though there was a special relationship, the conduct likely falls short of extreme and outrageous. He will not likely recover for "ED against Terry / Finally. the accounat may be liable to th investor for negligent misrepresentation. For this tort. if an accounant or another re posible for making economic statements, makes a negligent error and certain people reasonably rely on that negligent information and suffer damages. If so they could hold the accountant liable for their economic loss. There are splits amoung jurisdicitons as to who can qualify for brining a tort of negligent misrepresenation. In some jurisdicitions, onl people in a contractually privied relationship or a quasi privied relationship an cover. That means only people who hired the accountant or who the accountant hired to do the accounting for specifically can recover. Otherjursidicitons and the restate nt expand the acceptable plaintiffs to members of a limited foreseeable class who Jefccountant was aware that the audit or accounting would be done for their purpose, like company hiring an accountant to do audits for a specified group of investors. Finally some jurisdicitions have a very relaxed approach and allow anyone who forseeably r ied on the information to recover for the tort. In addtion to being in the class who can sue. the reliance taken on hte accountants advice need also to be reasonable. Even if the erson is in the class who can recover, they must show that a reasonable person w uld have relied on the information as they did. in this case, it is not clear what exactlyt e relationship between the accountant and the investor was. The investor was not in c tractual privity, as Terry hired him, but it is unclear if terry hired the accountant for this investor, or if he was part of a group of investors, or if he was just a foreseeable investor. It seems like a turkey farm probably has a small group of investors and this investor was probably a member of that limited Page 4 of 5 (Question 1 continued) ID: FINAL_Torts_LS 4_Diamond_2 010FL Diamond group. Whether or not it was reasonable for the investor to rely is not known, but there is some shakiness in the facts, as there is generally a big difference between a very successful compnay and one that is in the red. The investor may not have actually looked into the condition of the farm and relied solely on the accountant‘s report. which may or may not have been reas n le in this situation. Do investors have a duty to inspect their investments beyond a single report? It is not clear, certainly a smart investor would. but maybe not a reasonable one. Assuming the investor was in a foreseeable limited class. and this jurisdiciton follows that classication, and assuming the jury finds his reliance reasonable. he can recover from the accountant. —___—____——_—___—__——————————————————— Page 5 of 5 ID : FINAL_Tort s_LS4_Diamond_2 0 10 FL Diamond 2) The claim that Ann has against the teenagers is one of negligence. For negligence you must show that the defendant owed :dX/ty to the plaintiff. the failed to meet the standard of care defined by that duty. r breach, and damages that were the cause and proximate cause of injuries. The duty owed in most cases is to act as a reasonable person would under similar circumstances. A duty is owed to foreseeable plaintiffs to prevent foreseeable harm as is outlined in the majority opion in Pfalscraf written by Justice Cardozo. There is a minority postition for proximate cause and in the Andrews dissent to the Pfalscraf case the court said there could possibly be a duty to all those in the world who are injured by a defendants negligence. Proximate cause is essentially a courts policy decision to cut off liablity to foreseeable plaintiffs to lessen the liability of defendants. There is a particular issue of causation in this case because it is unclear who's airplane hit Ann. There are a few ways that Ann can remedy this situation. Ann could invoke the doctrine of Summers v. Tice if she could show that both defendants breached the standard of conduct. the court would shi he burden of proving causation to the defendants. the teenagers. T ' will be di Icult' this case, because on|y1 plane his Ann. so by defualt, only one of the two Ii bre hed the standard of conduct. Furthermore in this case, the defendants are minors. Usually adults are held to the reasonable person objective standard, but oh 'ldren are held to a different standard that compares them to children of like age, intell gence and experince. In this case the teenagers were 15 and would be held to e 15 year old standard. The standard would even allow for modification for the fact that the boy is of low intellegence and thus lowers the expected intellegence of his standard. It will be harder to prove breach of the Page 1 of 8 (Question 2 continued) ID: FINAL_Torts_LS4_Diamond_2 O 1 0 FL Diamond standard of care when the standard is lowered so. There may be an exception here for adult activites. Children who are engaging in adu activities, or ones that are usually only partaken in by adults. may be held tot e gular reasonable person standard. It is unlikely here that flying model airplanes will be seen as an adult activity and both teenagers will be held to their respective reasonable teenager standards. The jury may not have trouble finding breach of these standards. It is likely that children of 15 should know the dangers of model a' lanes flying next to people and the kinds of injuries that are foreseeable. however a een of particularly low intelligence may not appreciate that risk, and therefore may not have breached his standard by allowing his plane to fly where it did. If there is no r eif under SUmmers v. Tice for the causation issue. Ann may try to invoke Res lp Loquitur which is an evidentary doctrine that means "the thing speaks for itself". In the case of Res lpsa Loquitur. the plaintiff must show that more likely than not. negligence caused her injury and'more likely than not the instrumentality was under the control gf/he defendant(s) and the plaintiff themself is not at fault. Here it seems clear that model airplanes don't hit sleeping people with out some form of negligence. The issue becomes whether or not the insturmentalitity was in the exclusive control of the defendants. T ditionally courts would not allow Res lpsa in cases where multiple defendants may be liable. as this creates issues with the "exclusiveness' of the control. In a minority of states however. and generally in the medical context, the courts have used r asoning developed in Ybarra. In that case the plaintiff was unconscious and a group Jdoctors were in control of him on the operating table. When he came too, he had negligjnt injuries, but he doctors were not saying who's negligence it was. The court allowed Res lpsa and expanded the meaning of "exclusive" control. The court realized the ability of the doctrine to "smoke out" Page 2 of B (Question 2 continued) ID: FINAL_Tort s_LS4_Diamond_2 OloFL Diamond information on who caused the breach from e doctors if the were all held potentially liable. In that case the doctors were a orking as a team, each at one time or another having exclusive control. This doctrine will be difficult to invoke here however. because the teens were not working tog her as the doctors were. This case is similar in the fact that the plaintiff was uncon ious and there is no other way of knowing the cause of the injuries. A court who felt that this issue was one worthy of suit would like expand res ipsa if solely for the puroposes of forcing the defendants to excuplate themselves. Ann ma;\rj/cover, but she better hope for a friendly and active court. Once it was decided that one of the defendants was the proximate cause of the injury, that defendant would then be liable for Ann's wrongful death. They may try to argue that the doctor’s negligence was actually the cause of her death and that the doctor‘s malpractice as a superceding intervening force that cut off their liabilty. This will not likely work however. because an intervenian cause is one that interupts the chain of causation and it is only superceding if it is unforeseeable in the context of the causation. Doctor's neglifence and malpractice is foreseeable. doctor‘s make mistakes. It was foreseeable that model airplanes could cause physical injury when flown near people and it is foreseeble that ann would have to go to the hospital. Once in the hospital it is then foreseeable that a doctor will intervene, but his malpractice is not superceding. Therefore which ever defendant is found liable will be liable for Ann's wrongful death. Ann's husband richard "J believe he as a claim of negligently inflicted emotional distress as a bystander against the defendant for when he rushed to see his wife in pain. To recover for NIED as a bystander there are splits among how one may qualify. In some jurisdiction, they hold to the "zone of risk" rule' in which the plaintiff was very Page 3 of 8 (Question 2 continued) ID : FINAL_Tort s_LS 4_Diamond_2 0 lOFL Diamond near the accident where a close relative was injured, in potential risk of recieving harm and also witnessing thent. suffering severe emotional distress as a result. In this case, Richard was not in the "zone of risk" nor did he witness the accident to his wife. so he will probably not recover under the zone of risk doctrine. He may also try to invoke the Dillon. rule which requires only that the plaintiff be near the accident (not necessarily at risk) have direct sensory perpéption of the accident and the accident happend to a close relative. In this case Richard being Ann's husband counts as being a close relative. It is uncleaf where Richard was at the moment of the accident. or if he had any direct sensory perception of the accident. Without those facts it is hard to determine whether or not he has a case. but since both forms of NIED bystander recovery require actual suffering of severe emotional distress, and there are no indications that Richard suffered such so he will unlikely recover under either rule. Also, most jurisdicitons require physical manifestations of the distress for bystander NIED claims, and again the facts are silent on tbeésue. Without them, Richard is not likely to recover either. malpractice. Doctors in negligence claims r d to a professional standard of the Ann has a claim against the doctor for Negligen , more specifically for medical 9.5 "reasonable doctor". That stadard if further divided in some states between a local standard for general practictioners and a national "specialis " standard for speicalists (some states have begun to use the nationg/éndard for all doctors). A doctor is held to the standard of other doctors in good sta ing with their profession. This is only a minimum standard however and adherémz: doctor‘s custom may not insulate defendants. In this case the doctor made a mistake in the surgery, presumably one reasonable doctors would not have “made, and that mistake may have proximately Page 4 of a (Question 2 continued) ID : FINAL_Tort s_LS4_Diamond_2 0 1 0 FL Di amond caused the injuries. There is an issue of causation here however, as it appears that Ann would have died regardless of the doctor's mistake. In that instance there are different possibilities between jurisdictions for recovery. In sonkgidfsdicitons. Ann's survival posibilities would have had to gone from over 50% chance of survival, or more likely than not she would live. to under 50% chance of Kwival or to more likely than not she was going to die. If this were the case, the doctor would be liable for Ann's wrongful death. If the jurisidiciton accepts the relaxed Mation analysis, then if there was any change in her life expectancy due to the docty/a negligence, she could recover her full wronful death damages. Finally. there are lost oppurtunityjurisdicitons, in which the doctor will be liabe for the percent of wrorli/gful death damages that is equal to the precetanage of lost oppurtunity caused by th doctor. It is unclear how much oppurtunity was lost in this instance, ansts/eems that the plaintiff would have died anyway. The doctor's actions did howeveIr/significantly reduce her chance of survival and Ann could recover in jurisditictions with relaxed causation or lost oppurtunity. The doctor also may have been neglifint in failing to get proper informed consent. Doctors are required to reasonably ir‘lfyi the patients of risks invovled in surgries. unless they are in an emergency in which case consent is implied, and in some jurisdicitons in suggest alternate options and their risks as well. There is division in the courts over who decideds what is a ruéiable level of consent. In some jurisdicions consent is compared to what a reastyble doctor would have informed a patient of, or the professional Doctor standard, while other courts base reasonableness on what a reasonable patient would want to knob/about the risks. There is a further split in courts on the issue of causation in informed co ent cases. some courts compare wether or not a reasonable patient would have gone through with the surgery will full informed Page 5 of 8 (Question 2 continued) ID: FINAL_Torts_LS4_Diamond_2 0 lOFL Diamond consent or an objective standard. and some will use the subjective perspective of whether or not that particular patient would have gone through with the surgery. In this case, it appears that although Mmdure was an emergency, the doctor obviously had time to discuss the procedure beforehand, so he will not be able to use implied consent as a defense. The doctor did not provide information on the alternative surgery. This is not re...
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