Lumsden_Torts_Answer1_Fa10

Lumsden_Torts_Answer1_Fa10 - ID FINAL_Tort s_LS...

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Unformatted text preview: ID: FINAL_Tort s_LS 1_Lumsden_2010 FL Lumsden ID: -‘ (Exam Number) Name: . Exam Name: FINAL_Torts_LS1_Lumsden_201OFL Instructor: Lumsden Grade: I ___________________________————-————-— Page 1 of 1 Exam taken with SofTasr v10.0 ID: FINAL_Tort s_LS 1_Lums.den_2010FL Lumsden 1) Linton (L) v. Reardon (R) Negligence To make a prima facie case for negligence. L must prove by a preponderance of m no the evidence that R owed her a duty which she breached that caused her damages/ H/ u o n a c - Duty can be owed to the whole world (Andrews minority) or to plaintiffs (P) Inside the zone of danger (Cardozo majority) as determined in the Palsgraf cas et owners generally owe a duty of reasonable care to prevent their pets from injuring other people. Here, R owed a duty to prevent Cuddles (C) from injuring anyone the dog might attack. / R will be held to the standard of a reasonable person under the circumstances. Her W belief that C was a good dog was unreasonable as shown by the previous attacks on .._.g neighbors and other aggressive behavior. Breach should be examined though the lens of the Learned Hand formula which is that Defendants (D) will be liable where B (Burden) is less than P(Probability of harm) times L (ma nitude of harm Here, the __——--~-""'_ burden of keeping her dog in the apartment or caged was very sli compared to the probability because C had attacked befor and the magnitude of harm because C was a large dog 0 could hurt people and other animals. Thus. R breached her duty to L. Next, L must show the breach caused her harm. Causation is divided into actual and proximate cause. Actual cause is eterrnined by P proving that but-for D's conduct, “__________.__ she would not have been harmed. ere, but for R failing to keep her dog restrained. L (0(ng that? would not have been able to attack her and Beast. Thus. R actually caused L's harm. Proximate cause is determined by looking to the type of harm foreseeably resulting / from D's conductJ/l‘eKre, it was very foreseeable that C could harm people if she was Page 1 of 5 (Question 1conlinued) ID: FINAL_Torte_LS 1_Lumsden_2 010FL Lumsden not carefully restrained. Although Feder(F) actually released C hich could make F's behavior a superseding cause of L's injuries, R failed to keep her dog inside her apartment. Having F in her home made it foreseeable that he might open the door and release a dangerous animal. The fact that R believed C was safe was unreasonable given her previous attacks and aggressive behavior. Foreseeability is determined by a what a reasonable person could foresee. not D's subjective opinion about the likelihood.o,‘L/ Thus, R's negligent failure to restrain C was the actual and proximate cause of L's harm. Finally, L will prove damages by providing evidence of the hospitals bills from her ___.__.——-—- injuries and the cost of her dog. Beast. Thus, L will be able to make a case for negligence. R will attempt to argue several defenses. First, she will argue that L was ___—_-_____,_._._—————3 contributorin negligent for letting her dog bark at C which would %r recovery. M However. a jury will likely not decide for cont. negl. if they determine that R's behavior was more blameworthy (i.e. intentional, reckless. or grossly negligenct). t is likely that R let her dog go freely intentionally because of her reliance on good scores at 0 obedience schoflttributory negligence can also be defeated by D's violation of a safety statute. The state of West Dakota. like most states, probably has a statute / requiring dog owners to keep dangerous dogs from being loose. particularly if that dog has attacked people before So, this will probably defeat the cont negl argument. Further. a pet owner (L) does not owe a duty to prevent her dog from barking but she does owe a duty to prevent her dog from attacking people. In some jurisdictions (jdx) R could argue comWnce instead which would decrease L's recovery by the percentage she was at fault in a pure jdx. A majority Of jdx the P is barred from Page 2 of 5 (Question 1 continued) ID: FINAL_Torts_LS 1_Lumsden_2010FL Lumsden ______________._._——————— recovery if she is more than 50% at fault and a minority bar fault unless she is less at fault than D (Le. 51% at fault). R might also argue that L assumed the risk of harm by ____.—-—-—_""— W living in an apartment with other pet own rs. Assumption of the risk can only be proven ntarily assumed the risk expressly or by ' if D shows that P knowingly and v implication. Express assumption of the risk is usually done through release forms and the facts do not indicate there was one. Implied assumption of the risk is seen through P's behavior in the circumstances. There is no evidence that L wanted to live in an apartment with other dogs and certainly not dogs that would attack her. Thus. all the defenses will probably be defeated and L will recover against R/ Linton v. Feder (E) Negligence See above rule for establishment of a prima facie case for negligence. See above rule for duty of reasonable care under the circumstances. efendants owe a duty to fix dangerous conditions they nonjn‘egligently create Here, F created a dangerous condition by freeing C, a dangerous dog. Thus, he owed a duty to put C back into R's apartment before C could harm anyone. See above Learned Hand breach rul\¢%ere, the burden of acing C back into R's apartment was very loaf compared to the high likelihoo of C attacking other tenants and the extensive damages likely to be suffered by them. Thus. F breached his duty to put C back in R's apartment before she attacked anyone else/ Next, must prove causation. See above rule for actual cause. Here. F was the f M cause in fa @se but for his release of C into the common area. L and Beast would Page 3 of 5 (Question 1 continued) ID: FINAL_Torts_LS1_Lumsden_2010FL Lumsden __—______________________________————-——— not have been harmed. Thus. F's behavior was the actual cause. See above foreseeability rule for proximate cause. Here, just as for R it was foreseeable that releasing C into the hallway could result in severe harm. Whether F knew that C was dangerous or not, he should have taken reasonable care to prevent a possibly dangerous animal from escaping. Thus. F was the proximate cause of L's injuries as well. Just as with R, L will show her damages and F will most likely be liable. Under w...— traditional joint and several liability. both R and F would be responsible to L for the full amount of her damages. This was to ensure P's recovery. Modernly, several liability allows Ps to recover from each D the amount for which that particular D was at fault. Comparitive fault has made the latter more predominant and it is likely that L will be able to recover from both for whatever percentage the jury determines ea h to be liable for. R will probably be held liable for a higher percentage than F will probably argue the same defenses as R (cont negl. comp negl. and assumption of the risk). F's cont n gl claim will probably be defeated by the doctrine of last clear chance. Under that rule. if D had the last chance to stop P's harm he will be /,__.___._ liable even if P was negligent. Here, F could have stopped C from attacking L. L cried for help from F but he chose to be a couch potato which will defeat this defense. See above rules for comp negl. Again. the facts do not indicate an negliegnce on L's part and even if they did, F's negligence would far outweighXit/gL was not comparatively negligenct. Again, F would probably argue assumption of the risk but it would be defeated her for the same reasons it was defeated in the suit against R. Thus, L will probably recover from F as well. Page 4 of 5 (Question 1 continued) ID : . FINAL_Tort S_LS 1_Lumsden_2 0 1 0 FL Lums den ____—________.__—_.____—.~—-—— ____________—__—__—__—.._—_.—-— Page 5 of 5 ID: FINAL_Torts_LS l_Lumsden_2010FL Lumsden __—_________—_____________.—————————————- 2) Sally Jesse (S) v. Miyoda Motors M S will bring a claim for the express warranty. To make a prima facie case for express warrantie . 8 must prove by a perponderance of the evidence 1) D made a ' e about the product 2) that Mad 3) that reliance causgd P harm. Here, M's signs that the van was the "safest van that money could buy" wa 000‘ a specific promise. Further, Geraldo (G) was relying on the promise and it is unlikely S knew about it. Although S was harmed in an accident while riding in the van. she robabl will not be able to recover under this warran . Also, statements like "especially good for families with young children" are generally considered opinions and are not actionable as specific promises for the pu ses of express warranties. Warranty - Implied warranty MM) S will also probably bring a case for IWOM. Virtually aWfiare considered to have an IWOM To make a case for IWOM S must prove that 1)D as a sell of the good 2) D sold the goo—(BLthat the good was unfit for Moses and 4) P was harmed as a result that unfitness. Here, M sold the van through or to C. a . ——vg -/“ . . fig dealer, and it sold the van to G. The van should have been safe for ordinary d mg. IWOMs generally include a "crashability" standard because automobiles are often involved in car crashes. Here, the fact that a crash caused S to fly from her seat and be injured shows that the vehicle was not fit for its ordinary purposes!J LCM 7 Warranty - Implied warranty of Fitness for a Particular Purpose (IWFEEX S will probably also bring a claim for IWFPP. To make a case for IWFFP, S Page 1 of 7 (Question 2 continued) ID : FINAL_Tort S_LS 1_Lumsden_2 0 10 FL Lumsden must prove that 1) D was a seller of the good. 2) D sold the good, 3) D knew or should have known th t P was using the product for a particular pysér that P relied on D's ____,_.._._. judgment i selecting an appropriate product and 4) P was harmed M products unfitness for that purpose. The first. second, and fourth elements have already been established in my IWOM arguments. Here, the dealer made CCU children It was therefore reasonable that they should have known customers represjyns about the safety of the van specifically relating to how safe it was for purchasing that vehicle would be using it for that particular purpose. Thus. even though the facts do not say if G specifically asked anyone at the dealership for expert advice regarding its safe use for children, M should have known that many people would rely on their brochures and that their children would be harmed. Warranty Defenses / M will not be able to make a defense that they disclaimed ' bility for personal injury and death because the Henningsfin case precluded that defenseAere, S is suing for personal injury and so M will not be able to make the defense. M may also argue that S was contributorin negligent by failing to wear her seatbelt/Célt negl bars J. a plaintiff‘s recovery. However, the jury probably will not decide she was because of the expert witness testimony that she would have been harmed by the seatbelt's design anyway. n some jurisdictions (jdx) R could argue comparative negligence instead which would decrease S's recovery by the percentage she was at fault in a pure jdx. A majority of jdx the P is barred from recovery if she is more than 50% at fault and a minority bar fault unless she is less at fault than D Ge. 51% at fault) S will probably argue warning defect SL. To make a case for SL she must prove Page 2 of 7 (Question 2 continued) ID: FINAL_Torts_LS1__Lumsden_2010FL Lumsden that 1) the warning was W) D knew pr should have known the arning was defective and 3) P was harmed as a resu of the defect. Courts determine if warnings are defective by weighing several factors including the scope of the danger, /6bviousness of the danger, as well as placement and clarity of the warning. Here. the scope of the danger was significant because car accidents happen often and children / b are particularly prone to injury in car accidents. Theldanger posed by the seatbel was (punk war . ot adequ e because S was a child and could not have known it would not be effective. There facts do not say there was any warning directly on the seat, seatbelts. or car. The only warning was in the owners manual which 8 was not likely to read since she was 6 years old. There were no pictures indicating the dangers of a child sitting in that seat. Thus, the warning was deg-(Live. M should have known that children would sit in the back seat especially with their ad campaign indicating how safe the van was for familie . inally, S was severely injured because she was sitting in the seat. 1...... Warning Defect - Negl To make a prima facie case for negligence. S must prove by a preponderance of _.._...———-' the evidence that M owed her a duty which she breached that caused her damages. ./ Manufacturers/(r) owe a duty of care to warn consumers of the dangers posed by ._______________.___._.. their products. he fact that M knew the seats were less effective at protecting children shows they breached this duty. Looking to the Learned Hand formula (Defendants (D) will be liable where B (Burden) is less than P(Probability of harm) times L (magnitude of harm», M's burden was decreased comfort and profitsfée magnitude of harm was fiefind even though the company decided the benefit to child was small, it was Woél‘. enough to make P measurable. Thus, the burden was outweighed by P x L and M breached their duty. Page 3 of 7 (Question 2 continued) ID: FINAL_Torts_LS 1_Lumsden_2 010 FL Lumsden Next cause. Causation is divided into actual and proximate cause. Actual cause is determined by P proving that but—for D's conduct, she would not have been harmed. Here, but for D's failure to warn G and S rode in the center rear seat. Though M warn in the manual, it is unlikely 8 would have read it and G had just purchased the car . cw! ' so probably did not have time to read it yet. Thus, actum- 's hand/loo W’m Proximate cause is determined by looking to the type of harm foreseeably resulting Mia from D's conduct. Here, a failure to warn against children sitting in the dangerous seat could very gsWhildmn sitting there in the event of an accident. Thus. M caused S's harm. Finally, S's damages are her future inability to walk and the injuries sustained in f“ . «7v iw-vw — the accident. Thus, 8 will be ab to make a negligence claim for failure to warn too. + m9 Steuw. LUJQ. S will probably argue/dfinrdefect SL. To mfg a case for SL she must prove DQWCK Design Defect - S that 1) the product was defe we 2) the mfr made the product and 3) P was harmed as if... a rev/of the defect. To show that products are unreasonably unsafe courts use one / of two tests. One is the consumer expectations test. This is that the product was _____________..... dangerous beyond the expectations of an ordinary consumer with knowledge common to the communiwder this test. M would probably be liable because the average consumer would expect all the seats in a van advertised as safe for families to be 3 ew whereever the child we sitti except the front seat which people generally know is not safe). The other test is the risk utility test which weighs several ff. factors such as utility ff the product. existence of substituteyéducts, safety fleets, mfr' ability to eliminate risk, consumer's ab" to decrease the risk. public know dge Page 4 of 7 (Question 2 continued) ID: FINAL_Torts_LS1__Lurnsden_20 10FL Lumeden of the risk, and mfr's ability to spr d“ the loss. Some jdx also require P to provide evrdence of a reasonable alternative design/Here, the risk would outweigh became there was a RAD and many other car mfrs made their seatbelts according to it. Mfr could have reduced the risk greatly by adding shoulder harnesses. S could not have decreased her risk because the expert testimony shows that she would have been ‘/ injured severely whether she had used the seatbelt or nqt/M/ made the product and S N999)” was harmed by it. Thus, S would probably win SL against M. w Design Defect - Negl / I See above rule for negligence. Here. M had a duty to make a car reasonably safe for consumers to ride in. sing the Learned Hand forumla, M breached that duty by making a vehicle without the shoulder harness. The fact that industry custo was to install shoulder harnesses in the center seats, while not conclusive, is evidence that the design was defective. Even if M decided the harness would not help that much, the expert testimony shows this analysis was erroneous. Next. S will have to prove causation. See above rules for actual and proximate ‘0‘ Wm? 01m; MW”. ‘P’Q Wot?» vyg‘the cause in fact because but-for the lack of a should ride in the back center seat because M advertised the vehicle for family use and many families are large enough to require use of all the seats. The damages have already been shown above. Thus, M would be liable for negligence too. Defenses M will not be able to use S's failure to discover the defect as a defensgfl made / no alteration to the vehicle or seat belt and so M would not be able to bring that Page 5 of 7 t” (Question 2 continued) ID: FINAL_Torts_LS 1_Lumsden_2 010 FL Lumsden argument as a defense either. S's fault in failing to wear a seatbelt might make a good argument for q contributory or compartive negligence/{e analysis for both under warranty is just as My valid for the negligence and SL claims. Failure to wear a seatbelt is a violation of a . fet/ W safety statute which establishes negligence per se (i.e. negligence as a matter of law). W However. the design and warning defects were the but-for and proximate cause and would override her liability. The expert witness testimony establishes that even if 8 had been wearing the seatbelt, it would have been unable to prevent her injuries. Thus, in a comparitive negligence jdx, S might be found to have a lower liability than M, but would still recover. Sally Jesse v. Cars-R-Us (C) / Since C was in the chain of distribution, 8 will be able to recover in SL against W them and M because the rules are the same for sellers and manufacturer\s/ Negligence See above rule for negligence. Here, C had a duty to inspect vehicles to ensure their safety for normal usage by families before selling them. See above for breach and learned hand forumla. Here, the burden of inspecting cars and telling consumers not to seat children in the back center seat was very low compared to the high risk of danger to them and likelihood they would suffer it in the event of a crash. See above rules for causation. But for C's negligence S would not have been hurt and it was foreseeable she would be. See above damages. Thus. C would be liable for negligence in failure to warn and failure to design an adequate product. Defenses C could make all the same defenses as M __-__________________________———————-— Page 6 of 7 (Question 2 continued) ID: ' FINAL_T0rts_LSl_Lumsden_2010FL Lumsden __—__—___———————-——— __________________~___________.__.._————— Page 7 of 7 ID: FINAL_Torts_LS1_Lumsden_2010FL Lumsden ____________—_____.—.——- END OF EXAM _____________________.____.—_———-—— Page 1 of 0 ...
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