Lumsden-2011-fall-torts-answer2

Lumsden-2011-fall-torts-answer2 - ID:‘ Torts_LS...

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Unformatted text preview: \/ ID :‘ Torts_LS 2_Lumsdep_Final_2 0 11.51. Lumsden ID: (Exam Number) Exam Name: Torts_L82_Lumsden__Final_2011FL Instructor: Lumsden Grade: [email protected][ 15'; —______—_______—____._—_..———-—‘ Page 1 of 1 Exam taken with Safl'est v10.0 ID: Torts_LS2_Lumsden_Final_20 llFL Lumsden 1) ======== Start of Answer #1 (2679 words) ======== \ Bman Stowhard v. Tony "Thuglife" Suprano- BatteSy claim Bryan will have a claim for battery against Tony if he can prove by a preponderance of the evience that Tony acted with intent to cause harmful or offensive contrachony intenteded his act because it was substantially ce ain that his onta c‘d 'W’.’ with Bryan would occur we are also told that he was tired of the insults by Bryan and ”-nf‘“ that he was angred with the defeat which may be construed to show he had intention \.___..~\__‘r/ ..... 0 V achieve thr ofensive contact with ByargIX He had intent. There was a contact .a—u‘. (does not have to necessairly be a physical touch to the person it would be an M'— extension of the persorfi when he "attacked and beat" Bryan with a plastic toyfiThe toys \ . contact ’wIthHBryan ody satisfies that element. The conduct could be considered a offensiveby a reasonable erson even in light of the context and circumstances (baseball game).\lt could be offensive OR harmful. Harmful defined as any physical _—-—.. -——~—‘~ J‘— :4--- imp/ai’nnggt to the body. In Bryan's case he suffered severe injuries and a conc§sion The elements are satisfied. CQNCOEbfL M Tony may bring up a counter argument stating that he was acting in self-defense. _.-—. A person is privilege to defend themeselves to avoid Inj__ur_y from a physical immediate «- .d- "N, threat. ere Tony will claim self-defesen because Bryan initiated the anger in Tony by w, yelling out insults an calling Dagger fans "losers and whimpstowever, his defense ---—-""-"—" F‘s—3;...“ Page 1 of 11 :4 {Question 1 continued) ID : Tort:s_LSZ_Lumsden_Fina1_2 o 1 lFL Lumsden ____________________________—_——— will fail because it an act out of retailation rather than self—defese, which is not permitted / egg»- to be used in these case.> Bryan will be successful in his claim for battteryfi 5 0A 3A, [. / B an Stowhard v.Da ers- Ne li nce f- Bryan can asset a claim against the Daggers for negligence in not providing adequate security to Venent attacé Bryan will need prove by a preponderance of the .—-—¢-—- __._—-——-.—.. evidence that they had a duty towards him. that duty was breached. there was causation (actual and proximate), and damages resultedJDuty can be defined either by establishing that Bryan was in the zone of danger (cardozo's view) or that he was a forseeable plaintiff (Andew view's- almost anyone is a foreseeable plaintiff). Generally there ggoguty owed to a plaintiff by a third party's acts The argument under the [£986 {(7 forseeable plaintiff theory is that the baseball organization owes a duty to those who are paying to watch them play. The standard of care should be one of the ordinary pgdent ._ fl” 0‘qu @j @ere is a duty there must be a breach of that duty, meaning a plaintiff must fall under the reasonable standard of care of an ordinary prudent person. In this case the orgggggrflassuming they-own thépremises) breached a duty when they failed to provide the necessary precations to avoid harm to fans watching their game Breach of duty can be evaluated by three main theories. The first one is a measurement of the learned hand formula, which states that if the burden (B) IS ess than the probability of hawp) times the mangnitude (I) of the harm and the precations were not taken there y... M est, if it was forseeable that Page 2 of 11 (Question 1 continued) ID: Tort:s_LSZ_Lumsden_Fina1_2 0 llFL Lumsden the harm would occur then precations should be taken) The community expceations test is used in some jurisdictions and it asks the question of what the community would expect In that sitaution In this case the burden on the Daggers would medium level, aw... considering that htey do not have contol over their fans, and taking the precations to a ¢;______ revent the Inu would robabl re Ull’e them to haveahi hcost In erson’a‘fgj P l W P V q Jig”, P 6L However. the probabjy_ofharm Is likely In this situation this part of the equate raises M higher because there have been previous act§already'. The previous attacks were f," similar to this one so we can say the probability' Is m, coupled with the context of the M situation (baseball games with high tempred fans) The magnitude of harm Is gregt M \ ”a, when we have people with fractured ribs anchoncussions, that' Is only one example however, which we would need more information. hwoever considereing the burden which is not high and Daggers are in best position to provide security. the high likelihood of harm times the magnitude of harm (goes up with more people invloved) we can say that they breached a dutfl The third thing Bryan must prove is that their breach of duty actuallyand proximately caused his harm. We know that he stating a "lax of security facilitated the w .. attack". but we are not told what the securi measures wereJBut for having more (’1:ch I‘\ ) securities present Bryan would not have had a concussion or faractured ribs é not one~ that may be accepted by a court. The but for causation was the his own contibritution (also a defense) to the fight, and Tony's physical ntact with him. Unless we can say that the lack of security was a substanti factor in his harm. we wouiy fail in proving the causation damages for but fogThe roximate test is also failed if but for is not establislfiin proximate causation ere must be a forseeablity of the harm or risk of . Rio/g ”or (Question 1 continued) ID : Torts_LS 2_Lumsden_Fina l_2 0 1 1FL Lumsden place Bryan in a higher risk of‘garm that would create the attack, when we can imply ~.1‘~ .. m.” there was a least some securities there. There is no causation. Damges were his tsunami {M (a P concussion and fractured rids. Even if all four elements were met Defense can be used against him by Daggers Implied assumption of the risk would be invoked as a defense. Bryan knowing and voluEflLassumped the(ismjlnvgliveid‘f;He was knew of the risk he was placing , kw: n 5L2 admin He was also contibitory negligent. If he contibuted at all to his harm he would be ‘W, himself by yelling out barred to recovery, which he did by_yelling out irkpltslosers and whimps to the _,_.-——'-"‘ opposing teams, baseball is a serious game for some people and he most likely than not aware of that. He voluntarily entered the arena which also places him at greater Ola harm. His am can be implied to say assumption of the risk. In a companaflvgegligent jurisdciiton his recovery could be barred as well, because he was greater negligent than the Daggers when he placed himself in harms ._—-—--—“"— peril incitingpthers to attack him. regardless of whehter there was security or not he M _(_,:3____,___.___.._——— engaged in those verabal exhanges. IF he is found to be less than or equal to negligently then he would not be barred from recovery so he would get half or less amount of money. In this case he would fail his claim against Daggers. Mathew Stowhard v. Ton "Thu life"su rano- NIED laim /—__y_g_p__# Little Mathew will bring a claim against Mr. Thuglife for negligent infliction of .__——.————-—-——-" emotional distress. In order to satisfy a successful claim Mathew must show by a __‘_____,.._ preponderance of the. evidence that he was present at the time of the attack, Mr. Page 4 of 11 (Question 1 continued) ID : Tort s_L82_Lumsden_Final_2 0 1 1FL Lumsden Thuglife was aware of his resence (but we DO NOT have to show intention to cause a.” A M distres§, and that he hassome subsequent physical symptoms attached to his W emotional distresnghere are three main test courts used, which vary by jurisdiction. h, The Impact test which would require that little was impacted in some way physicaly by .-_..—-»-"" ' Mr. Thuglife WW here). The Zone of Danger test which states that " *7—‘_ [New CUQL’? Little Mathew needed to be in the area of danger, in new to the tramatic act and avoided physical harm. The Dillion Test (CA) has three main requirments, which are pilclflmagarea, there was VEIbLlity, and the person claiming emtotlonal distress had a close relationship with the person they saw get injured. In the case at bar. Mathew is EC, M1 ta'wf l" Agni-Ah" only 11 year old and was in a baseball game with his father, this information 8 ggests that he would be in close proximity to his dad in such a crowded area.lt is a fact that he wfilthe whole attack when talking with his father. thefore he visibly sag/the attack. 6 The relationship cannot bestronger than a paMgéfi-ild [as we know from a M, flowery opinajor ca_s§. therefore that portion is satisfied. The distress is such as to cause physical manifistations- he cannot speak without a stutter, he has ————,..—_. N nighmares and wets the be ' Althogh, we cannot be sure that Mr. Thuglif caused)” gmd’ ’"’ ”" sex it" those manifistations on the child. can conclude that it is traumatic for a11 year old to ____.._-——-——---~""“ witness his father get beat up until ribs are fractured and is left with a concussion. It can be proved with a note from a physican or pyschologist to back up Little Mathews claim. He will be successful in the NlED claim against Mr. Thuglife.) x.“ aw . Mournful v. Dangerzone- strict liabélig- desigé defect Page 5 of 11 (Question 1 continued) ID: Tort s_LSZ_Lums den_Final_2 O 1 lFL Lumsden In order to succeed in this case of ation it must be proved by a preponderance of the evidence that there was a design” defect, that the mfr knew QLSDEUJd have known of _,_.‘_.-———-~—. W p—' .— . _..._.‘.__.—-... . the risk of harm by design defect and that the defect in design ca‘lfisfliharm (deathg To prove that there was a design defect there are two common test used, the first is M W _ -4v-——-:—"“""" W1? common-expectations test the second one is risk utility test which is used to show that / a: if the utility of the design does not outv_./e_ight the danger of the risk involved there is adesign defects There are seven factors used to determine this. usefulness to the user and the public for this product, the safety (likihood risk of harm by the product), an Mrs H "W,“— alternative substtyfite, elimiantion of the risk. users ability to avoid the risk, knowledge of “Ft..." - the open danger, feasibility of t???" to spread the cost, and an eighth factor <"“‘_.__ reasonable alternative design. The usefulness of the product is one used in plant for work and it was impair¥ by having a blade that needs to be remvoed in order for it to ,,_,.——.—....-u_ be used wellXThe risk of harm is great without tha safety, it was implemented by the manufacture before hand. It is hard to tell from teh fact partern if there was an alternative product, but the assuming there were. then alternatives were avilable. The manfacutures are at the best place to spead out the cost. the danger was not open and obvious. The biggest problem here is that the machine started with_it was net-turned off. There is a high risk with taht deisgn>it could have been designed by turning off the machine. (there is a desing defect); The facts show that they were aware of the mfr knew that the amchines were W having problems (knew of hsould have known). They are purposefully availing _-__.————-—-'- -ru—- - - themselves of that maket place and they were told that the _s_afey handles were taken oféthey should have also been aware that having a machine turn on automatically W wihtout an on sign is a bad desig ‘ "it activiated when she was leaning in and it closed Page 6 of 11 {Question 1 continued) ID : Torts_LS2_Lumsden_Final_2 0 llFL Lumsden on here resulting in her death" But fortheir negligent design Mr. Mournfull would not have lost his wife and 17 defense: ”,7 he will always try to blame the victim in these cases or employers in this case. comparative negligence: they may argue it was negligent for the plant not to train \‘ nu...“- employeeszell or that they were allowing to take the safety bar 0 It would not bar M" «-—-———" <,_.... ...... .. their reocovery under teh strict liablity design defect hguaever. bCCLugz/_ 2 Evzgadyu notify from buyer to seller: it would not work. be se they were notified of the problems with teh design \ Q {bf/Lu ck kt’gea’O-br’lq Misuse: not sucessful they had knowledge it would work yes liable for SL Mournful v. Dangerzone- Implied warranty of merchantability M,” - ALmost any product will follow under this and no need of respresentation is needed. You do need to prove the follwing elements: The defendat was seller of the goods: The mfr was one that was focused on selling these printing machines. they goods were sold by defendant: while we are told that they were obtain by .1 the company throug someon else cause they were previously owned they could still be held liable if they shoul it to the previous owned and th®e court accepts M'fl’ horizontal privity. Veritcial privity is allowegmhain of distribution) but the horizontal privity (buyer and seller without giving it out to another person) is still under construction Page 7 of 11 (Question 1 continued) ID : Tort: s_LSZ_Lumsden_Final_2 0 1 1FL Lumsden and changes by jurisdcitoon/ Not fit for ordinary prupose: A printing machine's ordinary purpose is to print not to cause a death by automatically slaming down onsgmeone Plaintiff relied on use causing the injury: she leaned forward without expecting to be killed by the machine. it would be unfair to have each plaintiff prove more causation. she was injured by the mahcine unexpectly. He will recover under IWOM Mournful v. Dangerzone- Negligence- (rules in part I) Duty : as a mfr they have a duty towards their consumers in making a product safe. Breach: the duty was breached when they did not take ”99?§§§I¥,_EL9_9§§90§ to make sure dangerous functions were adequaly installed or in place. causation: They placed out into-a market a product that was defective and caused , _ ”aw. --....__.. LSL damage to an entire family. They are liable for negligence 1: . Mounful v. Dangerzone- faluire Q warn / g L— there must be prove that there was an a warning defec: (presnt or inagequate). the mfr knew or should have known of the risk, and failure to warn caused the harm. I” 2 Ni) Warning defect: Megan be considered a warning, but they must be clear /,._,‘ -—._N w, r at f ‘s‘ _ _ WMinjury when under repair. there was a wanring defect. also, they cannot claim not liability ~ 1 0»le and adeguate. The did not say that the machine would automaticall start and cause i 7 943M ‘ for injuries caused by the product [contract "as is" okay, but not in torts to avoid injuryl'.’ that? kknew or should have known: The mfr was fully aware that they safety barrwas taken M“ off by companies due to the utiltity>lt was their duty to warn of the consequences of such act. Page 8 of 11 {Question 1 continued) ID: Torts L82 Lumsden Final 2011FL FaIlure to warn caused the harm: ThIs one of the elements were there may be M1 conclusion: they will be held liable because they were aware of that it was being ) i W missued. thaw Mournful v. DPI - Negligenge Claim (rules on part i of test) PiggErflP'deg have a duty to keep their presmises safe and take ordinary WWW—M reasonable precatigns with the products they have their worker§>use. Breach: there was a breach under the learned hand forumla test. The burden /l. was as low as having traning progBams and following the instrtélions. The likelihoglRTC “0143’? M ,...o-—-' (ml... < >~——- harrn and mangnitude of harm are great. because machines that are operated In a f.“ workdplace with cutting edges are going to be dangerous and necessary precations needs to be taken. they breach it when they did not instruct how to shut down the machine while In repair did not bring back the safety ar back (even of an em loyee 0L 2 did that they would be variously liable). They also did not have two w s pres"‘e'ril.S 91g“ 01 (M TC Cavitiflsq "1 Causation: but for their negligence in proper instruction on how to use the Ufiéfitxdm cines the death w Id not occur. It was NOT unforuntately unforseeable that wsomeone would be hurt hen a safety bar would be taken out. if they did not think it was work efficient they sh uld have used another one. j’hey assumed the risk of taking -..~———~v' off those safety bars. Damages: he can recovery damages for the loss of his wife and the baby. Also on belalf of her wife, since she was till alive g? 3 day (wrongful death) Defense: Assumption of the risk does not apply to work place because of the lack «~— of bargaining pow§ it was not volunarily. plus she did not know that safety was _____,_..——-“_ M...“ removed. their best bet is be idemnified from the chain of distrution, but since they were Page 9 of 11 (Question 1 continued) ID: Torts_LS2_Lumsden_Final_20llFL Lumsden negligent they will be comparative libale. (several liability: place the amount your actions Q...‘ caused) 7‘ conclusion: He would be successful. =___..»- _,.;--—-—‘" —___—_—__—————-—— Page 10 of 11 (Question 1 continued) ID: _ Torts_LSZ_Lumsden_Final_2 OllFL Lumsden ======== End of Answer #1 ======== ______—_—______—__——.——————— Page 11 of11 ID: Torts_Lsz_Lumsden_Final_20 11FL Lumsden END OF EXAM __—._-.—_—————-—-—“_ Page 1 of 0 ...
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