Lumsden-2011-fall-torts-answer1

Lumsden-2011-fall-torts-answer1 - ID ‘...

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Unformatted text preview: / ID : ‘ Torts_L82_Lumsden_Final_2 011m. Lumsden ID: _ (Exam Number) Exam Name: Torts_LSZ_Lumsden_Final_2011FL Instructor: Lumsden Grade: I7}; ’ I%§€@ ___—__—__~—————-_-————-—-———— Page 1 of1 Exam taken with SotTest v2445 ID: Tort s_L82_Lumsden_Fina1_2 0 1 lFL Lumsden _—______—___—____—___—_——————————- 1) ======== Start of Answer #1 (3220 words) ======== ESSAY 1 Bryan v. Tony Did Tony committ a battery against Bryan after the Giganes-Daggers game? Battery is the vglgnta/ry/and intentional harmful or offensive contact with another or another‘s __—-—- “‘-'< N persoflFirst Bryan must prove that Tony acted voluntarily. While Tony was angered by bryan's insults, there is no evidence suggesting that he acted involuntarily. Nest, Bryan must show that Tony acted intentigrElly. This means that Tony either acted with the flgsiof injury Bryan, or he acted with the knowledge that injury was substantially Men—~— W“ certain tooccurxThe facts indicated that Tony beat Bryan severly with a toy baseball bat. It is substantially certain that one would be injured if breaten with a baseball bate/VathPM“C W ' Bryan will also have to prove that Tony made Contact with him that is either harmful or e.-——v.. ‘ w M ,/ '. offensive) Harmful contact is that which physically ilfioairs the physical condition of \ / (t. We body. Tony made contact with Bryan by beating him with th togbaseball batj The fact that Bryan suffered broken ribsand agoncussion are evidence that this contact was harmful. in conclusion, Bryan will likely be able to recover for battery. Bryan v. Daggers (7 f Page 1 of 14 ( Question 1 continued) ID: Torts_LS 2_Lumsden_Final_2 011FL Lumsden Negligenceg "vi-“p... c... Bryan will likely bring a claim against the Daggers for negligence for failingtoflhave --—u c a———.——— adequate security. The question is whether by failing to have security intervene with (W Tony and Bryan's altercation were acting negligently. Byran must prove that the security owed him a duty. they breached that duty. this breach caused Bryan harm. and as a result Bryan suffered damagesfi Duty .4/ Generally, people have a duty to act in a way that does not cause injury to another A person will be held liable if they create the_risk of harm to another. Moreover. people owe a duty to foreseeableplaintifis. According to Cardozo. foreseeable plaintiffs are limited to those int he geographical zone of danger, but Andrews asserts that everyone m“ M“ ,_ is a foreseeable plaintiff. Generally. there is no duty for failure to act unless their is a CMuEQ’ special relationship with one of the parties. Because the Daggers did not cause the harm, rather they allowed an injury to occur, we are looking at a duty for failure to acfi‘lt .... —ru—'W W. _,_._..... is their job aeaa-seeuritrgaurds to make t®§§§¥safe for baseball patrons. It is likely that tlac-secufity—gaurds did owe Bryan a duty because that was there job. Breach . L. ‘7 M, (/0in ’, Breach is present when the defendant falls below‘the standrCl of ca_r_e owed to the plaintiffglere the defedants will be held to the retandard. the reasonable person always considered his/her interests as well as the interests of others before actinggThe Daggers were not acting a reasonable pey/s’n would have when they failed to employ security gaurds that would have intervened with the fight that Page 2 of 14 not 97% (Question 1 continued) Lumsden ID: Torts_LS2_Lumsden_Final_2011FL errupted between Tony and Bryan. A reasonable person working as a security guard would have intervened. Breach is also established by the begned Hand Forumla (B<PL). The defendant -as~-.—m..__..._—m -W breached their duty of care if the burden on them to prevent harm to the plaintiff is less than the likelihood that the plaintiff would suffer harm mumlied by the_magnitude of H-“ that harm. 'Here, the burden would have been for the effort on the part of the stadium to “47"” r“ prevent attacks between fans like Bryan and Toby. The bruden on the stadium would c:::::a-—— be the cost and the effort of hiring securi guards to be present and intervene in these " ‘T i sorts of attaks. The Iikleihood of harm is arguably pretty igh because baseball fans have a tendency to get drunk and mad at these games: However. the Daggers may ,o- ————— ‘7 argue that this tarot comment therefore the likelihood is very low. Thewmagnitude of _// s ribs_and §concussion It could harm here is prggygreat because Bryan suffered broken have been worsrfi Courts alos look at the foreseeable danger test and community expectations. The Mg foreseeable danger test examines whether the harm was foreseeable and if it could ahve been preveneted by the exercise of reasonabel care It is foreseeable that as.“ impassioned fans would get into brawlsjand it could ahve been prevented by 'Wg establishing the presence of security guards during and after games. The community H expectations surrounding these events probably would be to have security. Normally security gards ar present around the stadium/and}; he péEiWnd everyone is aware of their presence. By failing to have adequate security, it appears that the Daggers breached their duty of care. Page 3 of14 (Question 1 continued) ID: Tort:s_LS2_Lumsden_Final_2 011FL Lumsden Causation M..- Bryan must show that the failure to have adequate security was the actual and t , I ‘f.’~- \ V ., roximate le al cause of his in'uries. Actual cause ’3 illustrated throu htheb t-fo't t: p I was ' 9 w and the substantial factor test.\?ut for the Dagger's failure to have adequate security W ‘-‘-:=~'.-——-———-———--~- I entirely convincing G anted, if " i Bryan suffered broken ribs and a concussion. This is no .‘I ‘ ‘r’ ‘m... the Daggers had a security standing by the guard maybave intervened in time to prevent the injuries to the extent they were suffered, but Bryan was the one taunting the Daggers fans like Tony and it is likely that Tony would have done great harm to Bryan H _._...44__.—.-—... p..-,.._~_—.__.. ...._... Dagger's failure to have adequate security substantially or materially @ntributed to Bryan's injuries- ThisMg than the but-for test because had security been present, Bryan may not have been beaten up to the xtent that he was. Perhaps, just a black eye or a couple of bruises. But because security failed to intervene he before a security guard had time tgjntervene. The substantial factor test begs that the suffered much worse. Proximate cause is established by The foreseeability test and the harm within‘the risk fl _...__~ testSAccording to the foreseeability test, one is the proximate cause of another‘s injuries if the harm was the foreseeable resWt's coflctgand if the vow. defendant knew or should have known that the harm was likely to occur. The court in Wagon Mound ll established that even slight foreseeability is enough to establish causation. It is foreseeable that baseball fans would get into physical altercations with one another after big rivalry games - fans get drunk. they are usually men so they are more likely to release aggression in a physically violent manner, and baseball is very __________________________—.————————-——-—-——-——- Page 4 of 14 (Question 1 continued) ID : Torts_LS2_Lumsden_Fina1_2 0 llFL Lumsden ____________________________———————————————-—— important to a lot of people. This was a big rivalry game, SF v. LA and it was a World cMflL—c—«k ‘ Series game, so there was a lot at stake? It is foreseeable that fans of opposite teams would get into a fightfi It is also foreseeable that security would be needed to keep fans of opposite teams from hurting each othersTo satisfy the harm within the risk test. Bryan must show that the Daggers' failure to have adequate security unreasonably #9 increWarm that Bryan suffereé Of all games. the World Series game between rival cities needs to have security. Security does a good job at keeping people safe. By not having adequate security, the Daggers' was taking a risk of one of the baseball fans getting injured in a fight with another fan. Damages’g‘ Bryan suffered damages because he had injuries including fractured ribs and a ____._..—-—— r concussion.§ Ma Refenses gal, . . ' n ’ Assumption of the Risk / M Daggers will argue that Bryan assumed the risk of injury Maunfing the players of another team He voluntarily called the the Daggers fans losers and wimps and he M kfihat this kind of behavior may escalate into a physcal fight. ff- Contributory/Comparative Negligence W lf Bryan fell below the standard of care to act reasonablnyon, his 1;... __ Page 5 of 14 (Question 1conlinued) ID : Torts_LS 2_Lumsden_Final_2 01 1FL Lumsden __________________—__________———-—— comparative negl jx). The Daggers will argue that he failed to act reasonably for his own .—————-'—' W...- ..s..... .........a......... . 1-4?" x protection by taunting the players of the other teamgBryan should not have acted that (2:: way. and Tony's conduct was really instigated by Bryan's acts. However. under the last clear chance doctrine, this may not be a complete bar to his recovery. At some point , __.-—-—. when Tony attacked Bryan. Bryan was helpless. Security would have been aware of this and been in a position to prevent his injuries. Because security failed to do this, they may still be liable) /‘ Conclusion _....., likelythat the court will find the Daggers negligent for failing to have adequate securitygsHowever. it is also likely that Bryan's damages will be reduced since he ——...’- instigated the altercation with Tony.) Matthew v. Tony x @2532” Matthew will likely sue Tony for the inte ional infliction of emotional distress. Even though Matt was just a bystander, he ould still recover because he is a fmaily l .. “\ memeber an as present at the ti j‘To have a prima facie case for IIED, Matt muast / lama/k3 ’show that Tony acted intentionally r reckl ssly. his conduct was extreme or 4—(jCWW1‘ ¢——-—.- outrageous, Matt suffered emtional distress. and his distress was severe. Tony acted . 7,: 0%» Intentionally. at th waby attacking Matt's uncle, Bryan. Tony made a broken ribs (that oes not sound like an accident). Tony's acts were outrageous because a reasonable pers would not have beaten a rival fan up to this extent in front Page 6 of 14 V5. Mathew tiéol (Question 1 continued) ID: Tort:s_LSZ_Lumsden_Final_2 011FL Lumsden ' I? of his nephew. Matt ob éy suffered severe emotional distress becaus he can no loner talk without a stutte. has nightmares. and wets his bed. Matt will likely succeed with this claim. L Lam/Mia“, ESSAY 2 Mournful v. DPI \ 2991192166 5 Mournful will bring a claim of negl agaisnt DPI for failing to take adequate precautions to flmv'Ws— x.” .. a - ..._._ make the work place safej (M BEL Q’Qccl‘aQ Pei/‘1 :gflwww DPI may be liable if they created the risk of harm. It seems that they did create the risk of harm to Mojica because they failed to train their employees on how to shut off the rm”...— equipment for repair. and they failed to reinstall the saftey bar. A duty is owed to M“ foreseeable plaintiffs (this means everyone in Adrews' eyes and just those in the zone of danger for Cardozo). As an eployee who worked with the machine. Mojica was in the zone of danger, therefore DPI owed her a duty of care BrefgL A To establish breach, DPI must have fallen below the reasonable @‘ standard. The reasonabel person always considers his intrests as well as the intrests of others. It does not seem like DPI was considering Mojica's interests when they failed to train her on Page 7 of 14 (Question 1 continued) ID: Torts__LS 2_Lumsden__Fina1_2 011FL Lumsden how to safely use/r pair the machine and keeping up with industry standards that “(.71. _________,-___m -.~ “ m. require the machine to be padlocked during repair. The Learned hand formula is also used to establish breach (B<PL). If the burden to W -~.—:—'—" avoid harm is less than the porbably of harm multiplied by the magnitude of the harm. ____.:-— — r‘w‘ ' It." then the efendant breached their duty of reasonable careSThe burden on DPI to avoid L- a . . a. .u‘...‘......—- ~.. .— harm ti Mojica would entail having madatory tra_ini g_sessions that could be pricgy. and requiring that the machine be padlocked during repairs, which could be burdensome M.— and not time efficent. DPl will agrue that they did have mandatory training sessions.) however the facts show that the plant did not adequately train its workers.0n the other ‘ . /N SDLLASQ hand the probability of harm was great because this is a dangerous machine and the szmfi \ . magnitude was even greater becau a woman and her unborn child losttheirjivesj __—_—-——s According to this test. DPI breached heir duty. 0W4“?- Causation M To be held liable, DPI must be the actual and proximate cause of Mojica's death. Actual -M’v cause is proven with the use of the but-for and substantial factor tests. But-for DPl's a” / negligence, Mojica dieA DPl's failure to train Mojica and ensure that its employees. i“ Mflww % v ) Including Molica, caused her death. Had she known or been forced to make sure the machine was padlocked while she repaired it she might not have been crushed will working on the machine. However, she may have ignored these warnings anywaADPl W materiaflyg_ tributed to Mojica's death by failing to adequately train her on the proper a“ use of the machine and failing to make sure that she used the machine in a safe manner. 5 Page 8 of 14 { Question 1 continued) ID : Torts_LSZ_Lumsden_Final_2 0 llFL Lumsden Proximate cause is proven with the foreseaability test and the harm within the risk test. DPI would be the proximate cause of Mojica's death if it was foreseeable that an employee may be gretly injured as a result of their lack of knowledging regarding the proper and safe use of the machine. DPI knew or should have known that someone would be injured as a result of their nelgigence. DPI was cited for failing to have worker's safety programs. DPI's lawyer claimed it wasjnforeseeableybut the facts ,M—«w- ~—-—~ \ suggest othenNise. it was foreseeable that this was a serious issue and that it needed to be addressed. The harm within the risk tests asks if DPI's failure to have training programs and enforcement of safe use of the machine had unreasonably increased the risk of harm to an employee like Mojica. It did. Has Mojica at least known the proper and safe way to use and repair the machine she probably would have done so and would not have been crushed, thus decreasing the risk of harm lmflrum/ 2, Ms ' Damages WM Mournful suffered damages through the death of his wife and their unborn child. _ fihfl-M n44 Defenses W.”— DPI will claim that Mojica was contributorily/comparatively negligent for failingto use the machine in a safe manneLSCertainly, trying to repair the machine without using the 4, padlo§< was negligent on her part, but perhaps she did not know that she was risking WLLL her life by not doing so. DPI may also claim. under the theory of implied assumption of the risk, that Mojica 4””; Page 9 of 14 (Question 1 continued) ID: Tort s_L82_Lumsden_Fina1__2 0 1 lFL Lumsden assumed the risk. Implied assumption of the risk happened when Mojica participated in the repair of the machine. However. assumption of the risk implies that you knowingly _______,,.. and voluntarily assumed the risk. Mojica may not have b n aware fthe dangerJand if she did she prbablydidflnr do so voluntarily as she had little bargaining wer against her employer. Conclusion Mournful will likely recover on behalf of Mojica for DPl's negligence .ln Wrongful Death Claim ,‘ :3W‘ Mournful v. Dangerzone Product Design Defect§ Mournful will bring a a design defect claim against Dangerzone under the theory of strict liabilitysg 1., Mournful must prove that a defect existed He can prove this by using the consumer fl expectation test. A product is defectively designed if it does not operate as safely as an “M ordinary consumer would expect when used in its proper manner.)Mojica's co-workers -_.-«~-:.:/ Ly would porbably testify that the cutting and creasing machine was not intended tdfitmjwh 0“ pe>éle This test is usually over shaddowed by the Riskilltility testSAccording to this UMW M test, a product is defective if the risk of danger in using the product outweighs its Page 10 of 14 (Question 1 continued) ID : Tort s_LS 2_Lumsden_Fina1_2 0 NFL Lumsden usefulnesssThere are seven factors: Usefulness of the prod uct, afety aspects, -::..——-o f M ._~.___..‘- availability of substitute products. mfr's ability to’deerease the risk of harm while A W maintainih'gflits’ utility. user‘s ability to avoid harm, general public knowledge of the risk, __.4u-:-""' -. 7.....- 1”- the feasibility of loss spreading. and reasonable alternative designj‘l his seems like a “v...”- H ,, \a very dangerous product because mojica died using it. It is not certain how WK knowledgable mojica was on how to avoid the risk of harm, since she may have not been properly traineck This product is very useful, though as we use paper products (“lam flue—:4,- " a...” ') every daySUltimately, this may be deemed a desing defect because the risk of in”; « someone dying is much greater than the need to quickly cut and cold paper. Next. mournful must show that the mfr knew or should have known of the risk of the defect. Dongerzone was aware that people were removing M ban? and since it is W called the safety bar, one could assume that the risk of removing this bar increases the risk of harm to someone using the machine3Moumful could also show that eprhaps making a machine that does not need to be padlocked in order to be turned off for repair and making a machine where the safety bar could not be removed would have made this machine much safer to use.<6’ (i e at .‘ .\\ //-‘" ’-<~_,, Lastly, Mojica sufi[email protected] the foreseeable risk of the defectfiler death 3 W may have been an extreme result it was the result of her attempting to repair the - Coma ? machine which was designed in a way that mayinjure those thrying to repair it. Defenses #- DPI will argue contributtyjegligence as a defense. Mojica was contributorin negligent Page 11 of 14 (Question 1 continued) ID : Tort:s_L82_Lumsden_Final_2 0 llFL Lumsden for failing to padl _k_t_he machine in the off position beofre trying to repair it.They will ##— also argue Product alteration because mas removed the safety arm‘XThis was a M \. modification that took place after it left the man facturer so they should not be held M it?“ \ ‘fl . liable for the harm caused by failing to have a safety barg However, y’knew that this was common, so it was not agé unfogeseeable modification, and is thus not algood defenseg They may also argue that Mojica assumed the risk because she knowingly c”. _."_“, '.._,._.....J K, and voluntarily, and arguably unreasonably, used this machine that she know could be __.—~ .. a..." dangerous. However. Mojica may not have been aware of the dange‘rJand she may not We in using the machine safely under pressure from her employer to work as quickly as possble. Conclusion It is likely that the court will find Dangerzone strictly liable for manufacturing a product with a design defect? WW c, L, Mournful may also bring a claim against Dangerzone for a warning defect. To recover k... for this. Mournful must show that Dangerzone failed to adequately warn the user of the dangers of using the product inaproppriatelySThere are no facts that suggest that there we; - was any warning. Mournful must also show that Dangerzone knew or should have ”'—> W 6”“ known of the risk of failing to warn would cause harmSThis was a dangerous piece of M heavy machinery, so it is likely that theyW someone did not know how to use \‘ .\ use she it correctly,»they could be injured. Lastly. Mojica may have been injure beca Page 12 of 14 (Question 1 continued) ID: Tort s_L82_Lumsden_Final_201lFL Lumsden was not warned about the dangers of not using the padlock to turn the machine off. However, she may have been ...
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