Lumsden_Torts_Answer4_Fa10

Lumsden_Torts_Answer4_Fa10 - ID...

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Unformatted text preview: ID: FINEL_Torts_fi_LS3;thms<§en;_2~3~lo-FL— Lumsden §= : Hummer; Name: Exam flame: 53MLATom_LSS_Lums§aa_2G1%Ei Instructor: Lumsden \ x L' ' Grade: 0 l U Page 1 of? Exam taken wiih SofTast V100 ID: ‘ FINAL_Tort s_LSB_Lumsden_2 010FL Lumsden ______________________—_————————— 1) Essay One Linton (L) V. Reardon (R) / ./ Linton may bring a claim of negligence against R for the injuriespf her as well as the death of her dog, as well as a possible claim for conversio/n‘f Negligence- failure to take proper care in watching her dog L may bring a claim of negligence against R for her pers’onalmigigries and. death. of Beast. Negligence is the failure to exercise the care of a reasonably prudent person under the circumstancesfior a claim of negligence, L must establish that R owed her a duty of care. that she breach this duty of care by falling below the standard of care. and that this breach actually and proximately caused her damagesv’ :‘Jleo‘it Duty First it must be established that R owed a duty of care to L/éenerally, duty is owed to those plaintiffs that are foreseeable. However. according to Cardozo. a duty may be imposed for unforeseeable plaintiffs if they are within the zone of danger. Here, it can be argued that L and her dog were within the zone of danger, as they were located very close to the home of the dog. and the dog was roaming freely in the hallway. If it is found that L was not within the zone of danger however, L could be seen _________________________________—————————— Page 1 of 13 gaizsasiém. r madau‘am ‘2 ID: FINAL_Tort SHLS3_LumsdenH2010FL Lumsden as a foreseeable P under Andrew's notion that a duty is owed to the world at large, and ,_._—_._.— that everyone is therefore a foreseeable P/ Therefore, R did owe a duty to L as it can be-argued-stte-wes a-foreseeabteP under- Andrews rut-a. the-type at duty in this-case, would be the duty of a reasonble person. where R owed L a duty of care to act as a reasonbty prudent person would, in the same circumstances. 3%? ' it can be argued that L therefore breached this duty owed to R. For a breach of duty. it must be found that R‘s conduct felt betow the standard of care that is imposed 3 be whether one breached a duty. These tests inciude the teamed hand test, fareseeabie danger test and community expectations test. Applying the Learned Hand test, that one falls below the standard of care if the burden of adequate precautions’was outweighed by the magnitude of harm multiplied by the probability of harrri, it can be found that the burden of ensuring that the dog stayed indoors, where it wouid not be abie to attack anyone, asi'aimatflfne preheating? et- hane can he as. rather high-r given that prior incidents have occurred involving R's dog attacking other people and dogs and therefore it can be argued that it was quite probable that the dog, if not properly teashed or confined, may hurt someone. The magnitude of harm in this situation can be argued as pretty high, given that the type of dog is a buiidog, which can be argued as/being inherently vicious and agressive, and the dog was rather large. at 60 pounds; iérorn this test. it can be argued that R therefore did fali below the standard of care therefore breaching her duty owed to L. Page 2 of 13 {Question 1 continued} ID: _ FINALflTort sHLS3_Lumsden#2010FL Lumsden Caustion For caustion to be established, R's condcut must be the actuat and proximate cause of L's injuries and death of her dog. For actuai causationithe but for test and substantial factor test can be applied/fitters, it can be argued that but for R's lack of confining and restraining her dogJ,Land her dog would not have been attacked and sustained such injuries. The facts do not state whether R was present during the incident however. and that Feder waspresent and was the actor who allowed Cuddles to be running freely in the hallway1.Therefore. applying the substantial factor‘test (that R would be the actual cause if she contributed materially to the cause of the injuryilf R were not present at the time of the accident and that Feder was the one who allowed the dog to roam the hallways, that R's failure to instruct her friend notgto allow cuddles to roam the hallways was a material-factor that caused L's injuriesirigroximate cause must also be estabttshed for the element, which concerns whether the iniury was foreseeable due to R's conduct. Severe? test can be apptted' inci'uding t’ne‘harm within risk test, Fess-smiths; test, fiestas-see gees %. gaeéjeg terse the risk test, which states that R’s conduct ts a proxtma’re cause it the harm that secured to L was one of the risks that made L's conduct negligent in the first placg;‘"i€ can be found" that the type of risk from letting her aggressive dog roam freely was a risk of an- attack by this dog toward any person or other dog that it would encounter in the hatlwayjrfit can be argued that waspawarefl of this risk of Cuddles attacking others, as it had occurred in the past. and other residents of the building had informed her of the dog's aggressive tendencies. However. as the facts do not state whether R was present at the time of the accident, the fact that Feder may have been the actor to have allowed the dog to roam freer may be a supersedinggaruse that can cut off liability is it can be Page 3 of 13 (Question 1 continued) ID: ‘ FINAL_Tort:s_LS3_Lumsden_2010FL Lumsden argued that it was not foreseeable that F would open the door and allow her dog to 1/, . roam the hallwaysm” Damages ' L sustained injuries caused by R's dog. and' her dog Beast died‘ as well, due to the attack. Defenses R may be able to assert that she was not the actual actor that allowed the dog to roam the hallways as she may not have been home’véowever, this claim may not be very successful if it was foreseeable that her friend F would allow the dog to roam, and that therefore she did not take reasonble steps to warn him not to do so. Especially given that R was more likely than not, aware of the possibilty of injuries from her dog, if her dog was unleashed, she should have taken better precaution in ensuring that her dog did not leave the apartment unsupervised. R may also assert that she had aireaa'y taken steps to improve her dog's aggressive behavior, given that she had taken him to obedience school and the dog was recieving high marks/é'owever. it can be argued that given the nature of animals, one can never be sure of their behavior therefore must always take adequate precautions in supervising the animalvl L's claim for negligence against R for failure to watch her dog Cuddles. will likely be / successful, given the previous history of the dog's behavior and other accidents. \/ ‘ " \t‘ / (Latin?- , - conversion? \, Sl. a W . u, Page 4 of 13 (Question 1 continued) ID: i FINAL_Torts__LS 3__Lurnsden_2 010FL Lumsden Linton v. Feder L may bring a cause of action of negligenfiégasint F as well, for failure to properly supervise and restrain Cuddles and failure to assist L. Ne Ii ence- failure to assist L durin attack of her do Duty In this situation. L and her dog were being attacked by Cuddles and during this attack. L had called out to F‘for aid and F watched the incident happen however he did nothing. Under duty priniciple 1. there is no liabilty for failure to act, UNLESS. there was u ,u.._..._ a special relationship with the perpetrator or victim, there was a duty by contract. H voluntary assumption of the risk. or creation of the risk/(ere, it can be argued that F's "Na-W’- “M , ..~ «- -Wu... .... act of opening the door and allowing Cuddles to roam the hall unleashed constituted a creation of a risk/r he risk being that the dog. while unleashed may injure another person or dog. Therefore, it can be argued that from this creation of risk of injury to others in the hall, that F therefore owed a duty of care to ensure that the dog will not hurt anyone or thing, or in this case a duty to help L while she her dog was being attacked. / Breach Applying the hand test, it can be argued again that the burden of helping L while she her dog was being attacked was not very high. given the Iikelyhood that Cuddles __>__—__—_________—____————————'———‘ Page 5 of 13 (Question 1 continued) ID: FINAL_Tort:s_LS 3_Lumeden_2010FL ‘ Lumeden will inflict sever injuries on L and here dog, and the magnitude of harm of a severe bites on L's body and possible death. F allowed the dog to roam the hallways and therefore creating a risk to L. and it can be argued that he breached his duty of care by failing to 7 come to L's aid. C 01,30; 47‘ .- . /J» Causation ’ It can be argued that but for F's creation of the risk by allowing Cuddles to roam the hallways and his failure to come to L's aid. that her dog would not have been killed. Applying the direct consequences test for proximate cause however. F's omission was M - ‘, ... a prox cause if the deathof the dog was a direct consequence of the omission and that SOME injury was foreseeable/Flew, injury was arguably foreseeeable given that the dog was roaming unleashed in the hallway and attacked L prior to killing the dog. The death of the dog can also be said to be a direct consequence of F‘s failure to assist, in that the two dogs were fighting. and if F came to assist. he would have been able to assist in separating the dogs and Beast would not have been killed. Damages Beast was ultimately killed. / Ne Ii ence- failure to ro erl su ervise Cuddles Duty it can be argued that F owed L a duty of care to act as a reasonbly pruden person would in the circumstances. However it can be argued that F did not owe a duty Page 6 of 13 (Questiontmnfinusd; ID : FINAL__Tort s_L83_Lumsden_2010FL Lumsden to L as the dog was not his and he had just walked into the apartment and did not actively permit the dog to run freely. as the dog may have just run outside/4d therefore he did not have a duty to restrain or watch over Cuddles. It can also be argud that as previous discussed, F created the risk by allowing the dog to run freely and therefore he did have a duty of care to anyone that may be injured by the freely roaming dog. Breach It can also be found that F therefore breached a duty by falling under the standard of a care. Here. the facts state that F had been the actor who opened the door of R's apt and allowed Cuddles to freely roam the hallways. Applying the—:drege‘able “fulfil/b danger test, that one must undergo precautions to prevent foreseeble injuries to others. it 6:831; said that F breached the duty to act as a reasonable person. as it can be found that injury was relatively foreseeable given the dog's aggressive nature. and the prior accidents that occured. However, F may be able to counter this by arguing that it was not reasonbly foreseeable that the dog would injure another while unleashed. given that the dog had never attacked him, or possibly F had never seen Cuddles be aggressive at all in the past. it Causation It can be argued that but for F's allowing Cuddles to roam the halls, that L and her dog would not have been attacked and injured. But for F's opening of the door and allowing Cuddles to roam. L and her dog onld not have been injured. Applying the —_____—_____—___________—_.—————_—-— Page 7 of 13 [Question 1 continued} ID: FINAL_Torte_LS3_Lumsden_20 lUFL Lumsden foreseeability test for proximate causte ( that the injury must be foreseeable), it can be argued; that it ares feraeeeabie that ailewieg Mes. to iceeigr gee. haiiwa'y's; cat-rid resoit in some time of injury to Whoever is in the haiiway; especiai‘iy' given the dog's size and nature and the nature of animals and general. it is reasonably foreseeabie that animate act unpredictiveiv and therefore if is Foreseeabie diet the wags. e5 Damages L was injured and her dog sebsequentiy died. This. cia-im may be have issues given that the dog was not F’e boweizezr it can be that heareatect therisit‘of nnieashingebeifia‘eginte—fine-hafiways and therefore may be held liable for any injuries resulting from the dog being unleashed. "it l to ESSAY 2 Geraldo (G) vs. Miyoda (Ml G will likley brin/g causes of action for breach of eggpress warrantyehstrict liability for _ J, V___ design defecfstrict liability for warning defect and negligence in design of the car for _ "nu—— .. _.__ Page 8 of 13 (Question 1 continued) ID: _ FINAL Torte. 1:53- Lumsden- zo-lGFL _ Lumsden the death iniery- of her salty. Breach of exgress warranm»--“' J“. For aciatm- to breach of express warranty; the setter has specifically promise or _..-- ___...pge—r _ guranteed that the product is fit for a particular use or feature. Here, the manufacturer did in fact have an explicit warranty on their manual warranting that the good was the / safest van that money could buyf/and was especially good for families. For a breach of ._._...,—- this warranty, G must prove that M was seller of the good, and that the good was not fit fort’rte what the manufacterer promised and that due to. his retiaoce ootthisgsoedse? - 3‘ ___ _ .. 593' 5‘? “54";173‘5 injury occurred. Here, it can be argued that G puohased this minivan for the transportation of this chiidren and that he bought it because it was sgectflcattg. gem-d”- safest-"van market: can E farther sopported at: the fact that G was feeling very confident in his [curettaser most titsety because he felt he testis oer:er a seat sea; the. of the minivan and therefore it can be toood that this van was hot as sate as it was. expresst warranted and therefore, since G may not have purhcased the van if he was not warranted that it was safe and good for the family and childrenytherefore reiying on that particular expressed warranty, his daughter was iniured. V- SL for Design Defect According to the restatement of torts. a seiler of a defective good unreasonbly dangerous to the user is strictly liable for injuries resulting from the defect. For a design Page 9 of 13 tfiwgkntmmfimmfi ID: FINALLTorts_LS3_Lumsden_2OloFL Lumsden detect, the manufacturer essentially decided to design the product in a way that turned / (75‘56 out to be not very safe for the consumer. and this occurs at the planning stage of the "w product. 2 tests are applied for defective design claims which include the consumer -. u._..._.._...u- .__ _,____ expectation test sad risk utility test; For the consumer expectation test, the product failed-to perform ’95 expected by an ordinary consumer, when used in its intended way/tiers. it can be argued that the ordinary consumer would not expect a child in the back seat to be ejected by a rear end collision. The colllision was from the rear and the car did not roll or tumble, and therefore it can reasonbly be expected that If ’t . . . : "A if. someone sitting in the backseat would not be thrown out of a the vehicle from being ' ‘5 t’ {L “ / rear-ended, especially in a larger car, such as a minivaWApplying the risk utility test, the product can be found as defectively designed if the riskof injury oume_igfid the usefulness or utility of the productVS/everal factors mUSt be assessed including, the . . ...._.- usefulness of the product, possible safety aspects, availability of a substitute product, the mfr‘s ability to eliminate the risk while still retaining the products utility. theuser's v ability to prevent danger. the public's awarenessof the dangerousness of the product. the feasibility of the mfr to spread the loss and possible other reasonbte alternative _.—- designs. Here, the facts state the when M was designing this vehicle, they specifically decided not to include a certain safety feature, the seatbeltfshoulder harness for the back. seat due in the imease in the of the palate, the leek at the belts cause. However, it can be argued that the mft ability to eliminate the risk of ejection while stil retaining the car's usefulness as a van that is safe and good for children was therefore present. in that he could have added this featured, Especially due to the fact that they expressly warrant that the van is the safest money can buy. it can be said that the consumer looking to purchase a minivan, would py the extra money to Page 10 of 13 {Question 1 centinued) ID: FINAL_TortsfiLSBHLumsden_2010FL Lumsden fliii’iff '- drive a safe yang-"given that the nature of a minivan is to transport many people, especially childrem and that therefore it is expected that the van be reasonably safe. M _/ may argue that they wished not to equip the van with this feature for economic reasons.'/ however, the risk of injury. of being ejected and possibly dying, significantly outweighs the van's tack of that safety feature. SL for Warning Defect v" G with bring a ct 8L for. a warming detect. Here, the. van. came. with. a / warning’én the owner’s manuat that chitdren must wear seatbetts at ati times and chitdren must not be seated in the center back. However, this warning may be arguable inadequate‘TH'Er a warning defect ciaim, G must prove that a warning defect existed he" (either no warning or inadequate), the mtr knew or should have known the risk of injury, and that the injury occurred due to £39 warning defect. Here, it can be argued that the warning was inadequateu._,.'l:he warning only indicated that children should wear seatbelts and that they should not be seated in the center back seat. however does not actually further expiain the risks of sitting the center back seat. it can be reasonbly said that if one‘read this particular warning, they most likely would not abide by it, as it does not really state what will happen if a child sits in the center back seat. The warning should have discussed exactly what would occur when sitting in the back seat, specifically that a child may be ejected from the vehicle in an accident, The mfr should have known that his warning defect entails a risk of harm. in that it is arguably tdLeseeable that if one read this warning, they wouid most iikely not abide by Especially since the van was tailored for families and children, one would not think to ensure that no ohild ever sits in Page 11 of13 (Question 1conlinu9d) ID: FINAL_Torts_LS 3_Lumsden_2010FL Lumeden the middle seat, as the point of a van is to transport a larger amount of passengers. especially children/£0. the warning was located in the user manual, and it can be reasonably argued that most purchasers of vehicles do not fully and comprehensively 7554 read these manualg/lherefore. since the mfr were aware of the risk of injury. since they actually decided not to include the safety feature taht would preven that from occurring, it can be argued that they should have more adequatly warned of that risk but’placing a sign that was more visible. possibly a sticker in the car (like they have with airbagsl/"qax MDmflayarguethat the manual included a disclaimthat they would not be ‘~—-» ~0— responsble for injuries that result in the failure to properly fasten seatbelts, however, generally. mfrs cannot disclaim for personal injuries/M may also argue that Sally was . s- u--.”— not wearing seat belt therefore is comparatively negligent or contributorin negligent - ~- w» w...— (traditionally bars P's recovery). However. given the age of Sally, a court may find that she cannot be held-negligent since she is a child that she must be held to the *’ " fl \\ rekc 5‘ standard of a child or like intelligence and age‘firébuld be argued that a child of 10, in a van that generally used to transport families and children, will take of their seatbelts during a drive. and that it was therefore foreseeable that a child would not be wearing a seatbelt. Therefore. M's defense of contributory or comparative negligence may not be very strong. ./ l / t / JNegligent design G'may bring a negligence action against’i. ‘ u Page 12 of 13 (Question 1 continued) ID: FINAL_Tort s_L83_Lumsden_2010FL Lumsden / 6 vs. Cars R Us / \/ Since Cars R us was the retailer that sold G the van, they can too be held liable for / breach of express warranty, SL for des...
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