Lumsden_Torts_Answer2_Fa10

Lumsden_Torts_Answer2_Fa10 - ID FINAL_Torts_LS 1_Lumsden_2...

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Unformatted text preview: ID: FINAL_Torts_LS 1_Lumsden_2 0 loFL Lumsden ID: (txam Number) Name: Exam Name: FINAL_Torts_LS1_Lumsden_201OFL Instructor: Lumsden A Grade: [9‘ O z (I 0 _____________________________——————————-— Page 1 of1 Exam taken with 8011' est v1 0.0 ’ ID: FINAL_Torts_LS l_Lumsden__2010FL Lumsden 1) . . .. Op" W 4&15“\°/))( LL v. SR - Strict Liability/ / Lindsay Linton will likely raise a claim of strict liability against dog owner Samantha Reardon. Strict liability is invoked against animrs for the harm their animal does to 3 P's person or chattel Strict liability is a means of determining liability without regard to the intent or negligence of the D, but is invoked when the defendant fails in his absolute du to make something safe/{he elements of causation and damages still apply in SL - uch that the harm caused by the animal must be both the actual and proximate cause of the defedant‘s injuries, resulting in damage. Cuddles attacking of Beast and her owner LL is the but for cause of LL's injuries (both to herself. and her chattel Beast). The logic of strict liability applies here because in the case of animals, due care is no defense. A dog owner is assumed to undertake the risk of being held liable for the acts of their dog, as the priviledge of owning such a dog brings with it the responsibilities to society and potential victims of the dog's unreasonably dangerous behavioflus LL does not even have to bring in evidence of Ella Mae's previous attack at the hands of Cuddles, because the court holds that "one bite is enough" to invoke SL against the owner of the dog. Just because Ella chose not to invoke her right to collect damages against SR previously bears no consequence on this potential cause of action. However evidence of Cuddles previous violent behavior could be taken into account by the court in determining the damages SR ought to pay to LL. Possible defenses by SR against LL are weak at best. but fall upon perhaps attempting to shift fault to Kevin Feder in being the proximate cause of LL's injuries. He _______________________________—————-—————- Page 1 of 6 (Question 1 continued) ID : FINAL_Tort:s_LS 1_Lumsden_2 0 1 OFL Lumsden opened the door to SR's apartment and the harm of the dog was sufficiently foreseeable, and increased the risk of harm (as within the risk posed by his initial act of negligence). Thus a defense by SR could suggest a joint and several liability between her and KF. SR may attempt to argue that LL was contributorially negligent in allowing her dog to bark at Cuddels at get too close to him, but this is a weak defense and will likely fail in court. Contributory negligence differs from comparative negligence in that contributory negligence is a complete bar to P's recovery, and suggests that P failed to exercise reasonable care in defense of themselves or their property. Comparative fault allows the court to reduce P's award in proportion to the fault the court finds the P is responsible for. Here neither defense will likely work. SR may also try to argue that LL impliedly assumed the risk of Cuddles attacking her and her dog by choosing to live next door to an animal. Implied assumption of the risk is also a weak defense here. as LL will argue that no one should be found to have impliedly consented to being attacked by a domestic animal in the hallway of their building. regardless of his/her knowledge of the dog's dangerous propensities. LL will likely recover damages from SR based on strict liability in tort, and may also recover against SR's friend KFed for his negligence in allowing the dog to roam free, as discussed below. LL v. KFflegligency LL has a strong cause of action against SR's friend KFed for negligence. \ Negligence is the failure to exercise reasonable ca/ref'such failure resulting in the V forseeable risk of injury being brought upon the plaintiff, which causes damage. A traditional cause of action for negligence can be broken up into ‘duty, breach, causation ," /”V Page 2 016 x /i;}\ ' ("6, \the traditional duty rule- which Is there Is no duty to act. Here we are told that KFed (‘5 “(def I -I used th resultin har d eto his tof n l' nce th eforehsdu tri ered to , ’7 'W e g E} u ac egIge er I tyis 99 “13/. (Question 1coniinued) . ID: FINAL_Torts_LSl_Lumsden_20lOFL Lumsden (actual and proximate) and damageylfiuty is a legally recognized relationship between the parties/Mo questions must be asked in determining duty: 1) was there a forseeable P; 2) what Is the standard of care. GK‘ gamut MI" W the applicable duty Is the duty of reasonable care‘(as stated above) - however it is important to point out that the facts here IndIcate an Important exception to halt the harm he has caused or attempt to mitigate it. He did nothing to come to the aid ._..——-—- of LL -the facts state that he "watched and did nothing to come to [LL's] aid. After the dog was done with his destruction he merely opened the door for it and closed the dog inside! As such he breached a duty of reasonable care to LL and to her chattel. Beast. %l Q0141 ["7 . War/K . . .. ‘ ThIs duty could also be determIned by the court by usmg the (Holmes) forseeabIIIty test. H1154 It was forseeable that harm would occur to this P by D's negligent act, as such the duty / of reasonable care should be invoked here: R69”! 47‘ Causation in negligence must be broken up into actual and proximate cause. Hf“ Actual cause can be broken up into a "but fof' and substantial factor test. Here we do he‘liafl'flv ._.———-——\ (@fimt have competinflmtors lements that weigh into the eventual harm that occurred to (NJ/LL. We merely have KFed' 5 opening the door of SR's apartment and allowing Cuddles to run unleased down the common hallway. Therefore we can say that "but for" KFed' s U failure to use due care, LL and her chattel would not have been harmed; For proximate cause we use two tests - the foreseeability test and the harm within the risk test. If it is M foreseeable that the harm to the P would have been caused by D's conduct. or for ‘ negligently acting as D did, then we can assume that KFed's opening the door without holding Cuddles by the collar. or putting his foot out to prevent her from running Page 3 of 6 {Question icontinued) ‘ ID: FINAL_Tort s_LS 1_Lumsden_2010FL Lumsden . 74LC/AM? '5. forward. or putting her on a leash before opening the door so he had control of her - I" was additionally the proximate cause of LL's injury. As such, KFed can be said to have created the but for and foreseeable consequence (proximate cause) of LL's injury. LL suffered cognizable damages due to KFed's negligence. Her dog eventually died and she sustained SWO her head, hands and other parts of her body - all of which required medical treatment. which can be quantified in producing evidence of her damages. The same can be quantified by a jury of her peers in determining the appropriate pain and suffering damages she ought to be afforded for losing her beloved companion, Beast. WMLNI evil/KY}— Possible defens sfor KFed: contributory or comparative negligence (based on v‘ the jxn). as well as implied primary or secondard assumption of the risk. [A stretch would be to argue an express assumption of the risk.,iLKFed's creative attorney wanted J 9 \j to submit documentation to the court from the r‘ ntal company of the apartment as having dogs, making it an express agreement bybb’to’liv/e in a building with dogs - but this would only relieve the landlord of liability, not KFed.] Contributory and comparative negligence and their principles have been discu d above. However important to point out here that KFed could argue thfifidly assumed the risk because she ’7 Q {C 3U. decided to take the elevator and wait in the hallway right in the line of Cuddle's attack. out»)? She could have taken the stairs and perhaps avoided a run-in with the dangerous dog. COW" However this argument fails for the reasons listed above in my analysis of SR's SL - no ”if“ member of the public is deemed to have assumed the risk of an unleashed dog wreaking havoc on med; person or property merely by virtue of their walking into their own aparment hallway/l ‘ KFed's best option here is to try to joinly and severally share the burden of Page 4 of 6 (Question 1 continued) ' ID: FINAL_Torts_LS l_Lumsden_2010FL Lumsden damages with SR - SR did not breach a duty to LL but breached an absolute duty to the public at large to make something safe (her dog) and KFed breached a duty to the P by not taking reasonable care to prevent the harm that befell her - by not taking proper precautions to restrain the dog and by not coming to her aid when his negligent act caused a chain of foreseeable events that resulted in injury to person and damage to property. LL v. SR - Negligence A further and final claim that LL may try to tack on to her strong SL claim against SR is a cause of action for negligence in leaving her dog with a friend who had no knowlege m of the dog's tendencies or mannerisms or past experience exacting damage. ;£‘wct Negligence, as discussed above. is the duty of reasonable care to the P in preventing forseeable injury and harm within such risk as would cause damage to the person of Here we can employ a learned hand cost-benefit approach in determining duty f owed. lf would have been a lesser burden on SR to take time to instruct KFed about J L her dangerous dog. to show him how to apply a le 5% out, s compared to the magnitude gfrthe risk oft 9* d probability of h D - then SR is liable and has breach he uty of reasonable care to LL. This is certainly the case here, as it would not have been a difficult thing to instruct her friend or to pick a smarter, more agile (in coming to aid) and responsible friend to watch her dog. Her failure in taking reasonable precautions to reduce this’risk can be deemed to ex rx be the actual cause of the P's injuries. It is a substantial factor in what eventually / occurred to LL. The proximate cause in this analysis will fall to KFed, who increased Page 5 of 6 WM brat» ml ‘1 (Question 1 continued) ID: FINAL_Torts_LS 1_Lumsden_2010FL Lumsden the risk of harm within the foreseeable consequences as provided by SR's initial negligent act. Defendants can apportion causation as long as the resulting harm which befell the P Is reasonably forseeable and a duty can be found on eachDLP/\ \/ Clearly LL suffered cognizable damages. Possible defenses by SR as against LL will mirror her defenses in strict Iiabilty. Each of these causes of action has a strong chance of success, given the facts here. but have been routinely ordered according to their strength and applicability to these facts. ______________________________——————- Page 6 of 6 ' ID: FINAL_Torts_LS1_Lumsden_2010FL Lumsden 2) / SJ v. MM - Design D SL SJ has a strong case against mfr. MM for a design defect in this seatbelt and M“ ‘/ shoulder harness combination as installed in the minivan he purchased. A products liabilty claim for strict liabilty alleged that the P purchased a efewroduct (that the product was defective when it left the hands of the mfr , that the D knew ofihould have known about the defect, and that the defectccausé the P harm. Two tests are used when determining a design defect: the consumer K...— expectations test and the risk-utility test. The consumer expectations test examines the #I ___—_—~ expectations of an ordinary consumer in the community as using the product for its ordinary and intended purpose. Is the product re sonably safe upon review of the “7% evidence in the mind of an armary consumer The risk-utility test is a seven factor test (‘11 I ‘~———-—-‘ that examines the risk of the produ as against i utility to the community and the mfr.'s burden in making the product safe. It is a seven-factor test that looks at: 1) the / usefulness of the product; 2) its safety aspyts 3) availablity of an alternative product or design 3) the mfr.'syiity to eliminate the risk 4) the user/sability to appeciate the harm; 5) the general Bylic's awareness of the risk 6) the feasibilitvf/spreading the . . . . . . . . 9” Nb cost on to the consumer (as In purchasing Insurance or instlgatlng pnce hikes). Here we are told that Geraldo became aware of industry custom to install a v, I seatbelt and shoulder harness combination in the center back seat of minivans. Industry custom can be uWnce in the P's case. but is not a clear presumptive proof of this mfr.'s design defefit/(eginning with the first prong of risk-utility. we know that seatbelts and harnesses are useful, especially in minivans. Small children often (, F Page 1 of 9 (Question 2 continued) ID: FINAL__Torts_LSl_Lumsden_2010FL Lumsden ride in the back of them/{large families, thus their safety aspects as against the community's desire to protect their children is higl‘ry For the third prong (the strongest in proving the mfr.'s liability this case) - we can assume that if rival mfr.'s have M employed this safety device that this third prong of the risk utility test is clearly met - and this mfr. chose to not take reasonable precautions as to the products. The mfr. assumedly could have eliminated the risk by installing the rival competitors more expensive harness and seatbelt combintation - SJ's expert attests to as much (i.e. "she would have remained in her seat if the center back seat had been equipped with a seatbelt and shoulder harness"]. The user in this case, a’father, did appreciate the risks w‘i hum ' ck W l‘WMSS? of this foreseeable harm In no aVIng Is c I ran properly sa e In a cafl- that' Is probably why he went and bought a minivan. The general public Is aware of the risk of childre not being properly restrained by seatbelts in cars, thus all our seat belt safetly laws} he mfr. could have easily spread the cost on to the consumer. even if this resulted in a slightly more expensive minivan/{owever it likely thought that it could gain a price differential on its competitor and sell more minivans at a less expensive price, given the design. As such, the component part of this minivan (a product) will likely be found to be defective. The mfr. knew of its risk. The facts indicate that MM "chose not to install / / shoulder harnesses" because it would substantially increase the price of the vehicle due to the difficulty in installing the harness. Even if children were more suceptible to pf 6c Vt being ejected from their seat due to their small size - the answer for this D is not to /‘ ‘ forego attempts to install adequate safety measures altogether, but to attempt to remedy the design defect with a more expensive component part that could be installed, passing hte price on to the consumer or taking out a larger insurance polic . Page 2 of 9 ( Question 2 continued) ' ID: FINAL_Torts_LS l_Lumsden_2010FL Lumsden Possible defenses here include contributory negligence- the P's Is at fault for not wearing her seatbelt at al‘IZ/hlowever this defense' Is weak because the mfr. themselves admit that their product as it' Is currently designed would do little to mitigate the risk of children being propelled forward in their seats due to a rear collision. ’i \ , SJ v. MM - Design Defect - Negligence \ Negligence in products liability is a failure on the part of the manufacturer to take QM) teasonable care to protect forseeable P's from Injury by virtue of the conumer‘s coming ._____ M into contact with the defective product. Similar to a traditional cause of action for negligence. negligence in products liability is a four part analysis: duty, breach, causation (both actual and proximate) as well as damages/It is useful to use\the learned hand formula in determining the duty owed and subsequentme D to use reasonable care. This formula - B < PL - where the burden of taking adequate precautions is measured against the probablity of great harm and the magnitude of such harm — is a cost-benefit approach used to evaluate consumer products and the mfr.'s duty. Here the burden of taking adequate precautions seems slight. Although we are ..« not given exact figures of what it would cost to design an alternative and safer seatbelt \ -—--\ and harness. we are told that the mfr. chose not to because of discomfort it would cause to the user. and because they felt that it could not reasonably reduce the risk to children, who could be ejected anyway from the seat due to their small size. This argument does not fare well in the minds of a jury, members of which likely have children who are infinitely precious to them/4m burden of taking adequate precautions in design thus will likely be found to be far less than the probabilty and magnitude of ‘ Page 3 of 9 (Question 2 continued) ID ' FINAL_Tort:s_LS 1_Lumsden_2 OlOFL Lumsden putting a product into the stream of commerce that was defective and dangerous to use. The duty of reasonable care on mfr.'s part to Sally Jessie was thus breached. n Evidence of this is particularly strong based on the facts and the expert testimony. The x" ‘ D's negligence was the but for cause of SJ's injuries, and the hit-and-run rear ender 01y driver is the proximate cause. Their act was forseeable with a harm within the risk posed by D mfr's initial negligent conduct. Damages here are cognizable - SJ suffered severe injuries and may never walk again. The P here will attempt to argue that the owner's manual passed on to him was defective in warning. The D will argue that it was an effective and reasonable warning that the D failed to head. An adequate warning is one that warns (of the danger), «’— instructs (the P as to the product's use) and gives clear directions (via pictures, bold d print. and NO LABEL CLUTTERI). For a cause of action in strict liability as to a arning defect. the P must prove that the warning was defejge, that {6; D knew V4: have known of the risk of the product and fa’ ed to exercise reasonable care as to its ___.., Cow ' warning, and the lack of warning contribut d to the D's injuries. Here we are told that the owner's manual contained an explicit warning not to place children in the center back seat (where the P in this case was sitting, without a seat belt, in violation of another part of the warning). The mfr. then disclaims ,____,_.__. responsbility for any resulting personal in'uries that might befall a forseeable P that ' WJ— . firstly, a mfr. cannot disclaim responsibility for PI' does not comply with this warnin Page 4 of 9 (Question 2 continued) ID: FINAL_Torts_LSl_Lumsden_2010FL Lumsden in a warranty (express or implied - here it will argue it is express) and secondly, the P will likely successfully argue that this warning is defective. The warning was pl ed inside an owner's manual. likely well ensconsed within pages and pages of text/2‘ here was no warning sticker on the center seat itself which would differentiate its lack of safety to the consumer/No warnings were placed in a . ' WNW} readily visible location anywhere else on the car. The warning was in English with no WW“ pictures or bright col rs, thus Geraldo may not have understood it if he spoke a ‘ different language-(find finally, this P is a child - one who was only 10 years old and likely is not going to read an owner‘s manual. Thus the risk of danger posed by this inadequate warning is great and ought to have been considered by the mfr. when sending this product (with its possibly defective designed component part) into the stream of commerce. . n. Q’i‘sW- ”b e40. Possible defenses include contributory negligence - as stated above, SJ was not .,_/‘ wearing her seatbelt and in the center seat, in complete violation of the warning. *lssues of Negligence” The negligence of failing to take reasonable care in creating a warning for this product can also be analyzed (as above) according to the learned hand formula. The burden of spending a little more money to create an adequateflwahrning sticker. with pictures. and placing it on the center back seat is slight compared to the h...
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