Lumsden-2011-fall-torts-answer3

Lumsden-2011-fall-torts-answer3 - ID Torts LS...

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Unformatted text preview: ID: . Torts LS 1_Lumsden_Fina1_20 11FL Lumsden ID: (Exam Number) Exam Name: Torts LS1_Lumsden_Final_2011FL Instructor: Lumsd n Grade: 2; 77 _______,______._’____._.——— Page 1 0“ Exam taken with SofTesI V2446 ID: Torts LS 1_Lumsden_Final_2 011FL Lumsden _______________________—_———-—— 1) ======== Start of Answer #1 (2145 words) ======== Bryan Stowart (B) and Matthew Stewart (M) may have several claims against both‘Tony fl.”— Soprano (T) and the Daggers (D) through their owner Freddie McCourt (F). M5 Bv.T ,/ In order for B to collect against intentional torts of T, B must prove by the preponderance of the evidence that T meets all of the elements of each tort. Tort law is imposed in order to right 5 - o the wrongs caused by a tortfeasor upon another person j Assault 7 ~/ ' 1 B may be able to prove that T assaulted him after the D game. An assault occurs when the tortfeason intentionally places another person in immediate apprehension of harmful or offensive bodily contact. In or scenario, emotions were nmning high and the events took place quickly. There was a harmful bodily contact as evidenced by B's concussion and broken ribs. There may have been an apprehension, but this isn't élear. B would need to argue that he saw T coming with the bat and that it placed him in apprehension before the beating. T would argue that due to his \K “MW immediate actions, there was no assault. B must see this coming in order to meet the elements of assault. B would need to prove causation as well. Causation is made up of actual (but for) cause and proximate (legal) cause. In order to prove actual cause, the defendant's (D) conduct must be a substantial factor creating the harm. Here, T may have come at B with the bat in time enough for him to be placed in apprehension. Wear. Proximate cause is determined by the foreseeability of the conduct resulting in the harm. If the harm is within the risk of the action, Page1 of 8 (Question 1 continued) ID: Torts LSl Lumsden Final 2011FL Lumsden _ ._ _ then the action is a proximate legal cause of the harm. Here, coming at someone with a bat, whether plastic, metal, or wood, would place them in apprehension of harm, whether a threat or not. Bats are blunt objects and can injure. It would be a proximate cause if B was placed in apprehension, but the facts aren't determinative. There is a possibility of bodily harm as it did happen, but without B's knowledge before the attack, he will not be able to prove assault using these facts. B could use the intentional tort of battery to collect damages from T. A battery is the m-;._.r_~.. intentional’h’apflnful/offensive contact of another humanbeingthatvcausemsgdamages The harmful/offensive contact is apparent. T beat B with a plastic toy baseball bat. Beating someone with an object is harmful in itself. B would need to prove intent. Intentional acts are acts done with either the’pu-rpi-e/goal of completing the act or done with the knowledge to a sufstantial certainty that the result would occur. T also did so with intent. Emotions were running high and he was angered by B's insultsj He went afier the man hurling the insults (B). He beat him severely in order to shut him up) This intentional conduct caused B's harm. Buy}; the beating, B's ribs would not be broken, nor would he have had a concussion.>Also, as stated before, M injuring another person is the harm inherent in delivering blows. B was damaged. T would argue that consent was a defense) Consent is a defense to battery if the plaintiff M. r‘ (P) knowingly agrees to the tortious conduct. Here, B initiated the altercation b hurlin insults ./ M- y i at the D fans. He consented to a verbal arguement after the game by calling names like losers and wirnps. In order for consent to be a valid defense, T can not use more forse than B) Consent ___—————~ " ‘yr" is exceeded when the scope of consent is passed.\B did not use a toy bat, nothing indicated he gr», Page 2 of 8 (Question 1 continued) ID: Torts LS 1_Lumsden_Fina1_20 11FL Lumsden had any weapons. T exceeded the scope of consent. T may also argue self-defense or defense of others. A person may use force to defend "—— herself or another person if there is an immediate need to prevent harm} Once again, T began the physicaljltercation and did so using a weapon} This weapon exceeds the scope of force that M a reasonable person would use against B. Moreover, B was using word§ to insult, not threats. B didn't have the apparent ability to cause harm. T would most likely have to pay B for his batteryg (U51. M 'vM.‘T an racistegg M was present for his fathers beating and has suffered. He may have a claim for Intentional .- Infliction of Emotional Distress (IIED). The factors for IIED are that there was l)irnenfional, 2) / ‘- ., M"- ‘ outrageous conduct that 3)caused 4)severe emotional distress. T's conduct was tentionaldt His ,~ '/~/'T-—‘\ 5 ,, ’ 3r Prat actions were voluntary. He meant to hurtklgn e beating. He also meant to h emotionally. He acted with the goal of causing harm, and M was there. M is B's son and a very close familial relationship. If T looked around, he would see the M was there and that M would probably suffer watching his father get taken down with a bat. Moreover, T acted outrageously. This conduct is defined by going beyond the bounds of decency in a civilized society. T used a bat to viciously beat another person for using insults. This is a crime, which shows society looks down upon harming other in this way. T would argue that such conduct isn't unreasonable, afier all look at soccer riots in europe or south america. Unfortunatley for T, most reasonably prudent people would aggee with M that this conduct is outrageous. M must also show causation First, changed a'fiiwgds. Proximate causation would be trickier. T's battery would horrify any in the Page 3 of 8 (Question 1 continued) ID: Torts LS 1_Lumsden_Fina1_20 11FL Lumsden vicinity of the act. If would definately cause foreseeable harm to a child dependant on is parent. T's actions caused M's severe emotional distress because theharn was foreseeable and the only ‘-- ”MW”— be liable because he caused this. MC M [C 3 In T's defense, he may argue that he did not knoWafamii ___r__n er was present at the time. /j _-,...~..—~_- —-- —_._._..-.. Had be seen the child before beating the adult, he would have known. T may also argue that B is responsible and a proximate cause sense he started the altercation. This would not ammount to 09;,— much of an argument, because T's acts were voluntary and exceeeded any altercation B is responsible for. T is liable for M's IIED claim. Bv.D/F H/ 1 B may have a claim against the Daggers and their owner Freddie based on neglige}ce. D/F would be liable for Negligence if B can prove by a preponderance of the evidence that they had a duty toward him, they breached that duty, and this breach caused damages} the standard for Negligence is the failure to act as a reasonably prudent _e_rs9r_1_§RPP) in the circumstances. F would be liable as the owner of the Daggers because he has the apparent authority as the head - F..-— boss. Under respondeat Superior, the boss has authority over his underlings and is liable for their actions while on the job. F is the ultimate boss of everyone working for D. There must be a dutym order for F to be liable. Duty may be created if there is a foreseeable P The foreseeable P for a majority is any person withing the zone of danger 6/ ”Q ~ (Cardozo), yet the minority (Andrews) believes that one must act as a RPP to the world at large. -._._.._ Page 4 of 8 {Question 1 continued) ID : Torts LS 1_Lumsden_Final_2 O l 1 FL Lumsden Here, B would be a foreseeable P because of prior similar lgizstances. There had been manflghts before\and the toy bats provided at the concessions had been used in those fights. If the fights are / frequent and had happened recently, if is foreseeable that B would become {fig F/D must act 1—... _.-.-.- reasonablly in the circumstances. Moreover, F/D are benefiting from thepublic and from SPY __.._—-¢- sellin tiflcits—tgt’hggames. Since F is the landowner, he owes a higher duty that just reasonability to B. B would be an invitee. An invitee is owed a higher duty than either a licensee or a I‘M trespasser since the landowner benefits finacially from their presence. These distinctions have been done away within‘gA thoughk In CA, the Rowland factors must be weighed. The W foreseeability of the harm is great, fights have happened before. Likelihood of the injury is also w». -.‘.. high, as B was injured on the premises. The closeness of the connection is there as well, because the lack of security allowed the beating and injuries to take place. Moral blame is high for F/D. They are a public sporting arena. People want to feel WWE¥M allowing such fights to happen is blamewothy, especially when stating on television a lack of care for someone harmed. The public policy would be against this. The extent of the bu_rd_en is lg. They could guard the arena afier the games by placing guards in strategic locations. Had there been an adequate police presence, the fight would be less likely to happen. Finally, F should insure D for such things. Insurance usually covers private owners of public places. The foreseeability of this plaintiff coupled with strong need for duty based on the rowland factors makes duty in this case necessary. F way argue that he has to duty to protect against this type of harm. The fact that these fights happen all the time stands against him. If he is going to profit on the games, he must protect the crowds. Page 5 of 8 {Question 1 continued) ID: Torts LS 1_Lumsden_Fina1_2011FL Lumsden _______________—__________————————-—————— Win duty is also necessary. A breech is determined by several tests. The learned hand formula states that if a burden 15 less than the probibility of harm multiplied by the loss ‘_-.. M "‘ ~§ when the harm results, there IS a breech/ B 15 arguing that adequate security is the breach of F's duty. The cost of hiring more security guard is probably small. it is a public arena. Los Angeles ‘Ww- ”p is a dangerous place. The propbablity of harm/crime occuring there is high. Plus, this harm is costly. F may argue that it is just a few broken ribs and not much 1n medical bills, but there is a ~.___ _._._...._. .._.___.. ”a...“ _..- .W——~— m..- real possibility of grave harm. Such grave harm occured in a similar sitation last year. Moreover, the community expectationstest would state there IS a breach. Concerts, malls, ___'..-_’--“ sporting events, shows, all sorts of recreational ativities necessitate security when out in a crowd. The larger the crowd, the more security neededg Security at stadiums checks every purse and bag for weapons and drugs. The community wants to be safe in large crowds. F breached hidsdduty. Causation is necessary as stated above. B identifies the lack of security as the substantial _.__.-.. factor. Had there been a guard, there would be no fight, or not as harmful a fight. Proximately, it is more difficult to prove. Thinking about security being necessary, without it it is foreseeable that fights will ha pen. Proximate and Actual cause are here. F may argue that T's action are a supercedinc 9&ng Generally a criminal achgupgrg§dmg cause, but here this act is foreseeable and recurring. SThere 18 cause Finally, B sustained damages. D“! 1 Ag; the fight running his mouth. This was negligent. B must have known such actions would anger othersJHe inteded that after the game. The knowingly antagonized T where there was little security. Fights had happened in the past. A jury could find B negligent for his own harm, and Page 6 of 8 (Question 1continued) ID: Torts LSl_Lumsden_Final_2011FL Lumsden the harm to his son. Finally, it would appear that B did assume the risk. He must knowingly and voluntarily take on the risk to do so. He knowingly called out insults. No one made him do so. ’i'"; (1 F. I. \. He will not be able to collect the full ammount of his negligence claim for his comparative R negligence and his own actions. 1 _.’-‘—~ M may have a negligence claim against D/F like that of his father'sr but would more than (”MA ; c c‘ c; . likely claim for Negligent Infliction of Emotional Distress (1%D . NIED claimants must prove POE that the D's negligence caused physical harm. Here, there was negligence by D/F in not having security to prevent the fight. M was in the zone of danger. He was beside his father as he ‘3‘; “—‘V . " u. w ..._—-.-- was accosted. M is also a family member, whose relationship is close. He suffered physical . . ,0“. .. -W.-w.... fir—W- harm, with symptoms of psychiatric distress due to the fight. Whether the secififlronimately _..u-.-..._..—...___—v.———- ____.‘_ caused the injuiy'isiipfggdebatej But for the security lapse, the fight and M's symptoms would not have happened. It may not be foreseeablt that a child sufi'er distress from a lack of security. Generally parents don't provoke fights when with their kids. . ‘ ,,_(. Page 7 018 (Question 1 continued) ID: Torts LS 1_Lumsden_Fina1_2 0 1 1FL Lumsden ___—________—___._._—.—~— ======== End of Answer #1 ======== Page 8 of 8 ID: Torts LS 1_Lumsden_Fina1_2011FL Lumsden 2) ======== Start of Answer #2 (1209 words) ======== Moumful has filed a wrongul death suit against DPI and Dangerzone for the death of his wife, and her baby inside. i [.7 W i Strict Liability in tort is a much easier claim that that of NegligenceX‘ Strict liabilityfor design defects has fewer elements: l)there is a defect in the design, 2)the manufacturer knew or /“"’“ W M, an..- should have known about the defect, 3)that the defect cause 4) harm. ' a”... This defect claim would most likely be about the design of the creasing maching. Defects are determined by two tests, the risk/utility test or the consumer expectations test. For the _,...._f.. ._.__.__.——-——--"""’" riskof the product) Here, workers would not expect a maching to turn on unexpected] The maching activated when Mojica fell in. This is not a normal expectation for most machines when they are turned off] For further defect analysis, the risk utility test can be used. There are 8 factor/Sig a design defect. First, the usefiillness of the product. This is a large machine which is probably needed in the industry: 2) Safety features: The safety feature is a padldick'in the off M—fl‘ position and a safety gbar. There is no failsafe for if these are not employed, making the safety features almost useless} 3) the availability of a substitute machine - there may be different M M k ....__.-4 manufacturers, but this isn't given in the factg 4)the manufacturers ability to eliminate the risk - Mojica was killed when she was replacing a cutting die. Had the die been easie to replace, the aw- accident may not have happened. 5) the user's ability to eliminate the harm - here Mojica was r“ t l ' d. Sh d‘dn't dl kth ff h th th .Sh d'dn'tkn no I’M“ e 1 pug/3’0 or ave angryflmr ere e 1 ow Page 1 of 5 (Question 2 continued) ID: Torts LS 1_Lumsden_Fina1_2011FL Lumsden how to eliminate the risk, but DPI proggallly. 51E. 6) society's use for the product - this product may be unnecessary since it isn't readily identifiable, but society does need cardboard to functioni; 7) loss spreading— this IS a large machine and Dangerzone would probably charge a lot for it. ”V..— They could spread the loss. 8) an alternative design- this may exist, but this' is an old machine. o(< Since the machine was able to work while Mojica was changing a part and turned on after she fell in, which crushed her, there was a design defect. B ,A The manufacturer needed to know of the defect. Had they foreseen this type of harm, they ,.... should have known about the defect. Since they knew of the practice of removing the safety bar, they knew of the defectSIt was a common practice or custo __in the trade. /"‘ (,J.’ Causation 18 actual causation in products liability cases. Had there not be a design defect, -...—-- _M ( («OR 51/ ~ ’) the machine would not have turned on and killed Mojica. Her death was a result of the design. 0-41 Wl ’ But for the ability of the machine to run while someone was inside, M0] 1ca would not have died. 7 ._\ ‘ L‘ (M ’0‘. ’ Damages are apparent. Mojica is dead. The child in her womb is also dead. M lost his ’ wife and her consortium. His living daughter has also lost her mother's consortium. In a strict liability products design defect case, M would probably prevail. Along with a design defect, M could claim that there was Was well. A warning is defective if it does Mantel): warn of the dangers of a productJ Here there seems to be no warning for Mojica at all. This sis a large machine that was able to crush her. There M / \ were supposed to be safety programs in [email protected] ‘A picture showing someone being crushed by the‘machine would have sufficed for a warning. Moreover, the known dagger of a large machine and lack of warning caused Mojica's death. She wasn't warned of the machines M ”W” M’— dangerousness because the warning didn't exist. Darlgizgng is liable for a warning defect as Page 2 of 5 {Question 2 continued) ID: Torts LS 1_Lumsden_Fina1_2011FL Lumsden well. -1 Dangerzone has several defenses in which to use. One is that the product was alter§d. The MM -. product was bought by the owner DPI, used frgm someone else. The safety bar was removed somewherein’the chain and nt reinstalled. This was done to allow the maching to handle thicker . ~.......~._—o~ cardboard. The modification was done to make the device work better. Moreover, Dangerzone .;———-—‘ . ’/.\ knew of the modification and practice was common in the industry. Because it was common, it will be hard to relieve liability from this known alteration.) whenjLwasdesigned. It has W- Dangerzond can also state that the product was state of the art _ .._. "~— “rye—~— / ...r been in use for years. ”re-’- 4/ ’e‘ l Dangerzone can also claim the fault was really DPI'SS (1255}. . «M Dangerzone will also most likely raise a compmativefault defense. Mojica herself as —_.w-—. ...—n" changing the cutting die and leaning into the machine.) She performed negligently and fell in as a result. The jury may find her negligent for some of the damages, but this design defect still tw ' h ' 1 tr ' d 1 ' l' . . ou erg s an improper y aine emp oyees neg igence 3 \Hill A!“ l. __.e.-:——""‘". M v. DPI ,-«4"" ’1”- M can start a lawsuit against DPI for negl'rgig As stated previously, there are four , ,w. element. First, DPI had a duty to act as a reasonable eme/er in there circumstances. They ”f... should have trained their employees. This type of injury was forseeable, theou the lawyer / M claimed it was not. Poorly trained employees should not be near such machines. Moreover, the company had been cited pripr to this incident for failure to have a safety programJ / . This may be a case of negW. Negligence per se allows an inference of Page 3 of 5 (Question 2 continued) ID : Tort 5 LS 1_Lumsden_Fina1_2 0 1 1FL Lumsden .—o:: /’ ‘ . negligence wheé statute is violated so long as the person harmed was in the class of persons to be protected by the statute and the type of harm was prohibited by the statueJHere, having a safety program was meant to protect the workers. The workers did not have a safety program. I...— DPI was shut down for the lack of that program. They were issued 14 citations after the accident for poorly training their workers. The state regulators failed to inspect DPI before the accident. f Sakhuja (S) was responsible for ensuring a safety program existed at DPI to prevent accidents in the workplace. Moreover, death is catastrophic and should be avoided at all costs. The workplace laws to have a safety program can be used to infer that DPI was negligent. OF ”"‘ “(-21” “ ’ MM”- /— A“ The lack of the safety program still must have (3%531‘ the harm. Not having adequate safety _— Mu...
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