Lumsden_Torts_Answer3_Fa10

Lumsden_Torts_Answer3_Fa10 - ID FINAL_Torts_LS3_Lumsden_201...

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Unformatted text preview: ID : FINAL_Torts_LS3_Lumsden_201 OFL Lumsden ID: (Exam Number) Name: Exam Name: FlNAL_Torts_LS3_Lumsden_201OFL Instructor: Lumsd n Grade: P3: E I qg’ —______________________________——————-—- Page 1 of 1 Exam taken with Sofiest v10.0 ID: FINAL_Tort: s_LSB_Lumaden_2 OloFL Lumsden ________________________————————— 1) Lindsay (L) v. Reardon (R)-Negligence V» ,,/"“ ‘ , -., In order to recover for negligence L must prove by a preponderance of evidence that R .-;"—~ had a duty to L and L's property (beast) R breached that duty by failing to exercise the recs care that angdinkarsi prudent person would in a similar situation, this breach was both the actual and proximate cause of L's damages. \// lV\ 'Zc/lr-é ‘0 Mug“- Duty under Cardozo's maj opinion is owed to forseeable plaintiff's. lN this case sharing a building with other tenants in the event you owe a dog that gets loose makesgabll . Mtg/9 . . . . . . plaIntiff'sH orseea le. ln addItIon under Andrew mInorIty VleW a duty Is owed to all those harmed by the event in question. In these facts R has a duty to exercise reasonable care in preventing her dog from harming other tenants. R has a duty to control and protect because previously she had knowledge of cuddles snarling and growling at beast. The was evidence that cuddles attacked and elderly resident and her dog on a previous occasion and should have known cuddles' aggressive nature. R would contend that she did not have actual knowledge of this but the evidence significantly sways in the other direction. R breached this duty by failing to prevent cuddles from being at large without proper restraints‘ANhen cuddles attack L and beast cuddles was loose in the building. R would argue thakFeW owed that dog at large. yet she is responsible since she owes and should have known the dog was aggressive. IN the previous encounter with beast when Page 1 of 6 {Question 1 continued) ID: FINAL_Torts_LS3_Lumsden_20lOFL Lumaden R claimed cuddles "wouldnt hurt a fly" she also properly restrained him. in that instance she did not breach her duty. yet allowing cuddles to be free was a breach. Using the community ctatrons test given the sentiment of the other members of the other Z . Haul? residents that try to convince R to get rid of the dog. the prevailing community norms regarding the dog was to remove it. Any time an aggressive dog is kept in close quarters to other dogs. children, elderly people. and people in general reasonable care .) taking should prevent all unsupervised contact of said dog with anything. (Iii/142‘ 5“? I mfg” .... Actual cause is d :rmined with the but for test. In this case but for cuddles not being ____...-......__.-___- properly restrained nd allowed at large he attacked both L and beast. r will argue she A . was not the but for cause since Feder allo edQllideog free and not herself, the facts do not present any information on whether R warned. or gave any instruction to Feder on _‘_,__....—I-'-—-.. [(GGC how to handle the dog .Arz additional test is the substantial factor test, in some jxns it is . ._.........._\._/ run—~- used when there can be 2 or more causes to the harm, in other jxns it is the sole test for actual caused/é applicable here since Feder actually let cuddles out but R's knowledge of cuddles' aggression makes her having the dog on the premises a material E'JI.a factor In the resulting haqu'fi/re is aslo a need for proximate causation which is in place to limit liability. Given the previous knowledge of cuddles' aggressive behavior ______...-—---——....... __.J—-v-"' and the need for R to take the dog to classes to modify his behavior it is foreseeable ___.._— ----- 4—... . that the dog being free to roam would harm someone or something it came in contact with while not under restraint. Also mauling of a 4 pound dog and its owner when cuddles is 60 pounds is harm within the risk of cuddles running loose in the building. Therefore it satisfies both tests used in proximate cause. M Page 2 cffi (Question 1 continued) ID. ' FINAL_Tort s_LS3_Lumsden_2010FL Lumsden ,. / THe damages suffered to L were the severe in] fies she sustained to her head, hands and other body parts that all required medical treatment and her property (beast) that lost a large amoount of blood during the attack and died after wards. Defenses the 3 main defenses for negligence are contributory and comparative Iv” negligence and assumption of the risk. Contributory negligence barsfill possible recovery for plaintiff if they were found at fault at any point during the incident' In question. This has been deemed unfair and abolished by most jxnsyln’this case there are no facts to suggest that L or beast were doing anything without taking ordinary care/""' They were waiting for the elevator when they were suddenly attacked. Comparative negligence is held in 2 forms. and can result in either complete bar of recovery or decrease recovery by percentage of fault depending the NT. Pure comparative “M V "'“""’""‘"“—"“- negligence never bars recovery and makes the defendant pay for all damages they are deemed responsible for. If D is only responsible 1% of the damage P will get that 1%. The other form modified comparative negligence holds that if plaintiff is more at fault (50%) then there is no recovery, but if 50% or lower then D is liable for their respective percentage of fault._lie,re again the facts present no fault on the plaintiff‘s pa5,unless L in defending herself can be said to have provoked cuddles to inflict further harm. / Assumption/ow]? risk must be bothfit‘owing and voluntary. The knowing must be of the speZific dangers that caused harrv/ When cuddles snarled and barked at beast L knew of the danger presented to beast even though R tried to reassure her that there was no danger. However L didnt voluntary assume the risk, R will argue this since the facts state she thought about but did not actually conylaiyzto hte homeowner's association. Of the presented defenses assumption of the risk would be the best for R. Page 3 of 6 (Question 1 continued) ID FINAL_Tort s_LS3_Lumsden_2 OloFL Lumsden yet L was aware of the danger to her dog and not to herself so she would still recover for her damages if not for those to beast. L v.R and F MED «Wk negligent infliction of emotional distress traditionally had to result in physical harm. and the impact rule was applied meaning that the plaintiff must have actually be made —// gu, u‘b contact with to recover. L could recover for emotional distress after her Injuries and fearing for her own well-being in living in the same building as such a violent dog, yet there is nothing in the facts that show emotional stress resultin . If she attempt to .__/' recover from her dog's death, she would be in the zone of danger as cardozo would require and a majority of jxns. IN a minority including CA that apply the Dillon rule she H’— was in extremely close proximity, and saw first hand the vicious attack on her dog, yet I ’ ¥It do not believe the dog will be considered a relative. which would not allow recovery for her mental damages, again assuming there were some. .l lil- Lv.R-::o/[email protected]/JQ\° Conversion is unlawful iinterference with the P's rights to something so much so that it warrants D paying Pthe full ,3?!“ . u . of, the property. In order to establish a prima facie case for conversion L must prove the extent and duration of interference with her property, R's intent to assert a right inconsistent with L's. R's good faith, extent and duration of excessive dominion, harm done to L‘s property, and the cost of inconveniences. The' Issue is R did not [email protected] t3 assert control inconsistent with L's control of her dog. even if intent could be established through R having a substantial certainty that the results would occur. I” J /" Page 4 of 6 (Question 1confinued) ID: FINAL_Tort s_LS 3_Lumsden_2 OlOFL Lumsden Lv. R Battery 0L Battery Is intent to commit an unlawful harmful or offensive contact with the person of another. Again the intent element will be a stretch, even if R knew with substantial certainty the results she did not volitionally let cuddles out of the condo. Lv. Feder (9:939le l /" Neg rule stated above. The general principle of duty is that one does not need to affirmatively act in the absence of a special relationship to the plaintifV/et there is an exception to the general f principle when the defendant createWere, F allows the dog out of the condo (3" to roam free, since cuddles subsequently attacked L and beast, F has a duty to act in a reasonable manner to assist In mitigating or eliminating the risk of harm he created// will contend that he did not own the dpfl have a duty based on no owne/rszd yet he .a.” did create the risk. F breached this duty by refusing to come to th aid of L to separate the dogs especially ”7: -__.....«»~ when she explicitly asked for his assistance. Considering he was a friend of R's and let the dog out, and was not attacked by cuddles it can be assumed that he had a good enough relationship with the dog to mitigate the harm without significantrisk of injury to himself. Using some of the reasonable person factors presented by Prosser the utility from separating cuddles from the 4 pound yorky outweighed the risk of harm from not acting. In Learned Hand terms B<PxL the burden of breaking up a dog fight is ,... -A .-~ I ~ PageSofB {Question 1 continued) ID: FINAL_Torts_LSB_Lumsden_2 010FL Lumsden substantial dangerous when compared to the probability of harm and magnitude of harm considering the harm is actually taking place and a woman has severe injuries and there' Is a large amount of blood the burden though dangerous is less theéthe probability and magnitude of the harm especially when-there; a preexisting relationship between the defendant and the dog. F will likely feel as though the dog presented a significant danger tghjmjad he intervened, with no facts on the extent of his relationship with cuddles its hard to tell, but beyond actually intervening he breached his duty by letting out a known aggressive dog. again the facts to F's extent of knowledge on the subject hinders applying liability for negligence on F. But for F letting cuddles out L and beast would not have sustained the injuries they did. Much like causation in Lv.R its both foreseeable harm, to foreseeable plaintiff and the harm was within the risks of a loose aggressive dog in a building full of residents. frame damages as in Lv. R. Yet F will likely not be held liable due to the lack of evidence 4&9; 'J of his knowledge of the aggressiveness of the dog and his relationship to determine if i” he should have aided. Lv.F Battery Battery described above. IN this case the intent is also the problem, the facts do not show that F had knowledge enough of the dog's behavior to say he would be substantial! certain of harm occuring by letting cuddles out free. \ ‘ 0 ,. ' 002‘ ) Pageeofs ID: FINAL_Torts L33 Lumsden 2010FL Lumsden E 2) Geraldo (G) v. Miyoda (M) and Cars-R- US (C) express “Warranty was -—- ~~--— Express warranty are oral or written pr9mises made by the mfr/seller of specific aspects -.’- of the product. In order to recover G need to show the was an express warranty to the specific aspect that caused the harm/he $th and that reliance caused the harm." Displayed at C In brochures supplied by M the were claims that the minivan G bought was "the safest van money cna buy" and it was "especially good for families with young children because all due care was paid to the safety" of the vehicle. G will contend that the the second quote about all due care was paid to safety was breached since there was no should harness in the middle seat, eventhough M was aware that a shoulder . . '1 . harness would provide more safety there and according to its warranty should have v_ ._._ M“ .«u' been done. G's reliance on the apparent exceptional safety of this van was why he purchased it foe his family especially immediately prior to going on a road trip to a family reunion. Therefore relying on the promises made on the safety of the van that apparently could not be topped by any other van on the market he purchased the van which left out a safety feature that would have mitigated injuries to his 10 year old daughter that are so severe they threaten her ability to ever walk again. M‘will contend / that the claims in the brochure weren‘t specific to the center back seat and were merely n .. "N addressing the van and its features in its entirety compared to other vans on the ‘. market. IN addition the claims we e puffeyy commonly used by companies to distinguish 1...,1 3k J {I themselves from competitors in the market. Considering thr center seat would have . / ., W_ been more safe with a shoulder harness the express warranty did not specifically cover the seats and seatbelts. and a court will mostly like not consider it directly speaking to M Page 1 of 8 (Question 2 continued) ID : FINAL_Tort s_LS3_Lumsden_2 0 1 0 FL Lumsden the center back seat risks that caused the extend of Sally‘s injuries. G v. M PL (Design Defey ‘ M Under product liability a design defect P must prove a design defect exis d. the mfr _'_. --...7. ,, knew or should have known and defect caused the We. Design defects are \~.~...~~—-~"' ‘ " Mm...»— determined by 2 test the consumers expectation test in which the jury is equipped to determing what an ordinary consumer of a minivan would ordinarily expect the safety / a W. features or the van to bev/l' he second is a risk utility test which is usually used for more _.__,..»~-W -—~» W. -_,,_____. / technical design’test/afid in some jxns used in conjunction with consumer expectations/ risk-utilitflonvs’iders 7 factors which are. the usefulness of the product, its safety aspects. availability of alternative product already on the market, mfrs ability to (LA 5 eliminate risks while maintaing utility, users ability to avoid danger. general public knowledge of obvious dangers; and feasibility of mfrs ability to spread costs. Under the comsumer expectations test. whe a minivan is rear ended and a small 10 year old child is not wearing a seatbelt would be ejected from her seat. However uncontroverted expert testimony states that eWt the same result would have haypéned in the absence of a shoulder harness. This expert testimony is the very reason why the risk utility test is applied because an ordinary consumer would not normally know this and the addition of an expert goes agains the coonsumer test. In the risk utility test there are other minivans produced and custom has established that most use a W shoulder hamess. Also mfr could have eliminate risk with the only decrease in utility being the price they could offer the minivan for, here the minivan was legally stopped at an intersection therefore could not completely avoid the unforeseen danger of a car rear ending them, also important is the feasibilty of the mfr to spread the cost is ‘ Page 2 of 8 (Question 2 continued) ID: FINAL_Torts_LS 3_Lumsden_2010FL Lumsden significantljliaisler then the consumer's. That is the most telling factorjn this case since w/ .' other minivans do it there cannot not be too extensive of a burden/even though M claim it would significantly increase the cost of there minivan. and will also contend that their customers want cheaper cars thats why they but Miyodas instead of the more expensive minivan. M obviously knew of the defect since its competitors did it and they expressed the it ~..——---—"" was a conscious decision to omit the shoulder harness due to price concerns. and the q._ a“ W... ..._...._—- possibility of an uncomfortable passenger. That uncomfortability and price increase would most likely be outweighed by the fact that small children will be presumably sat in / the middle in the back and therefOre are more susceptible to be ejected from thir seats/”f IN light of th uncontroverted expert testimony the shoulder harness would have be the only way to prevent sally from flying out of her seat and suffering the severe injuries she did. M would contend that the design defect was not the actual cause of sally's injuries since it is the unforeseen accident caused by another driven/Zowever under the _, 7.- -- .._~_.,... v..- crashworthiness doctrine a mfr can be held liable for the extent that which the design defect increase the injury caused by the unforeseeable injury. As a result M would be liable for the extent of the injuries sally suffered becasue a shoulder harness would ”ave kept her in her seat and presumably kept her from being paralyzed. Defenses for products liability are comparative/contributory negligence, assumption of ..... W-mvv‘~-~wu~~ the risk. Present here G placed sally in a center back seat that though had a warning 7¢———-——————_—_—’_—_ ' Page 3 of a (Question 2 continued) ID FINAL_Torts_LS3_Lumsden_2010FL Lumsden saying to not place children there, also had a seat belt which implied someone could in fact sit there. After the expert testimony that the seatbelt would not have changed the harm at all there was no fault on the part of G's actions to find fault in unless the warning was deemed adequate which is discussed below. Assumption of the risk can be express or implied. Again it hinges on G's knowledge of the warning not to seat f ,- ”mean-“m" ‘c—i" children in the rear seat. had he read the warning and knew of the dangers he would be said to have taken the secondary implied assumption of the risk and if his behavior was deemed unreasonable he would not be able to recover. Yet when you travelling to a family reunion you and you have children the back is going to be packed with clothes and things you need and the center back seat is often most appropriate for the youngest or smallest child to, so it would not be unreasonable to put a child there especially considering there is a seatbelt/ G v. M warning // — Another product defect can be an inadequate warning. P There is a heeding Vfisumption that the consumer will take into accouont the warnings and apply them. / f .— There are a few factors that speak to the adequcay of a warning. For the plaintiff to recover. there must be an warning (or lack of), that does not adequately make the consumer aware of the dangers, and the inadequate warning caused the harm. The warning states that children in rear seat should wears seatbelts allthe time, and children should not be seated in the center back seat. and also disclawponsibilty for and . -._..‘....- injuries or death specifically that come out of failure to properly fasten seatbelts. Among the factors that determine the adequacy of the warning the scape of the danger involving sitting in the center rear seat, and. potential injuries from not wearing seatbelts . Page 4 of8 { Question 2 continued) ID: FINAL_Torts_LS3_Lumsden_2 OlOFL Lumsden is not given. Also give that this was in the owners manual and not placed on a sign on the center back seat shows a lack of substantial physical prescence of the warnig to not «— _-,.— use the seat In an attempt to make sure the consumers has knowledge of this warning. :[o go further we need more facts as to where in the owners manual and the size of the V font use as well as the overall length of the owners manual as to asses its effectiveness to be reasonable foe a consumer to read. Due to the lack of signs on the seat, and limited information on the scope of danger presented by the middle seat and the warning the warning is therefore inadequats and was the cause of sally's injuries using the heading presumption that had it been adequate G would not have sat his daughter their, especially since he boguht the van mostly on his interpretation of the safety it provided compared to other minivans. M would contend that the warning clearly stated WM -...—--. to not use the center back seat and G directly went against‘the warning and t...
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