Yates_Torts_Answer_Fa10 - ID FINAL_Torts_LSZ_Yates_2010FL...

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Unformatted text preview: ID: FINAL_Torts_LSZ_Yates_2010FL Yates ID: (Exam Number) Name: Exam Name: FlNAL_Torts_L82_Yates__201OFL lnstru ctor: Yates Grade: / ______________________________—————————————— Page 1 of1 ID: FINAL_Tort s_LS 2_Yates_2 O 10 FL Yates ________________________________ 1) #1 Buster v Astrid Buster may have a cause of action against Astrid for negligence. Negligence is the breach of a standard of care to whom there is a duty, and the breach was the actual and proximate cause of the damage. Under the broad Andrews view of duty a defendent owes a duty to society at large and liability will be limited by the jury during the proximate cause analysis. Under the more narrow Cardozo view there is a duty to foreseeable plaintiffs in the zone of danger and liabilty will be limited by the judge in the duty analysis. Under either view Astrid owed a duty to Buster. Astrid's conduct of leaving the telescope without the lense and ointed at the sun can foreseeany lead to damages to a person, Buster, on the premises and near the telescope. Was Buster a trespasser? A trespasser is an unautherized intrusion on the land of another and is owed a duty to merely not be intentionaly or wantonly injured. It seems through past experience and realtionship of BUster, Astrid and Luna that Buster was not a trespasser, even though he did not have expressed permission to be on the premises, because he frequented the premises. was "practically a member of the family" and knewwere the hidden key was. M WM 1"”, .7 / 611/ a “z W0 ‘ An invitee is a person on the premises for the mutual beniefit of himself and the Was Buster a invitee? Page 1 of 15 {Question 1 continued} ID: FINAL_Tort s__LS 2_Yates_2 0 1 0 FL Yates ______________________________————-——— landowner, usually there for business or commercial reasons. An invitee is owed a duty to not be intentionally or wnatonly injured, to be warned of known and non obvious dangers and for the landowner to conduct a reaosnable inspection of the premises and remedy any dangers. Alt gh Buster frequently worked on the maintnece of the house and was paid r such work, it seems that Buster is not an invitee because he was not worki tthe time of the incident and was there for personal reasons rather than to work and get paid. Was Buster a licensee? A licensee is usually a friend or social guest and is owed a duty to be warned of known and non obvious dangers. It seems that Buster was a licensee becuase he frequented the premises, was best friends with Luna and was practicelly part of the family. Moreover, at the time of the incident he was there for personal reasons. Therefore he was owed a duty to be warned of the dangers presented by the telescope because they were or should have been known by Astrid and propbably unknown to Buster. However. Buster was there at the moment without expressed permision and can too be considered a trespassor. Y‘yz/ MOdernly Modenrly there as been an abandament of the trichotomy. the three catagory system due to nuiances and confusion of how to define certain people on the land. used commenly now is a two catagroy system with the same rules applying to trespassors. and invitee and licensee being one catagory where there is a duty of reaosnable care in light of possiblity of injury in maneging the prmieses. Attractive nuisance doctrine. The attractive nuisance doctrine is for the protection of children trespassing due to __________________________________.__—————-———-——--—— Page 2 of 15 (Question 1 continued) ID: FINAL_Torts_LSZ_Yates_20loFL Yates ________________—__—__———————-—————— being injticed by an artificial condition on the land. If Buster was considered a trespasser this doctrine can apply. (except however he is 16 and usualy the cut off is 14 but we shall see) A landowner is liable for lnjureis caused to a child who was injured by an artificial condtion on the land if -landowner knows or has reason to know children frequent the area- a dangerous condition exists on the premises- the child due to his immaturity cannot appreciate the danger presented- the landowner failed to exercise reasonable care to eliminate the danger or minimize- and the burden to eliminate or miinimize is slight comapred to the risk on injury. B was attracted to the premises be of the telescope. It is clear that A knew B frequented the premises be he "frequented the home". A is an ammature astronomer and "it is common knowledge amond amateur astron. that pointing a telescope directly at the sun is extremely dangerous", therefore if A did not know, maybe she should have. Whether B could apprecieate the risk due to his age and immaturity is a close call. B is 16 yrs old and has enough life expereince to understand and appreciate most commenly presneted dangers. Hiowever, the danger of a telescope causing injury through looking into it be it was pointed at the sun may not be within the appreciation of a 16 yr old non astronemer. The burden to A would have been merely to point the telescope in another direction or put the lense cap on as she normally did. Therefore the burden was slight compared to the risk of blindness and a broken leg. The attractive nusiance doctrine if applied would show that A would be liable for B if it was determined that B could not appreciate the risk presented. Causation For there to be liability in a negligence case there must be actual and proximate ‘ causation. ________________________.___.___—_———————————— Page 3 of 15 (Question 1 continued) ID: FINAL_Torts_LSZ_Yates_2 OIOFL Yates Actual cause But for the D's conduct there would not have been the consequences suffered by Here, but for A not pointing the telescope in another direction or putting the lense cap on as shoe normally did. B would not have suffered the eye injury. would not have reacted by tripping over the plant and break his leg. There is actual causation. Proximate cause Proximate cause is a policy determination to limit liabiity to foreseeable consequences of D's conduct were there are no superseeding causes. As we have seen A owed a duty to B. B was on the deck loocking through the telescope that was pointing at the sun, it is a foreseeable consequence that he would sufer an eye injury from that. His reaction by moving back and stepping on the planter is a dependent interveening cause. It was a foreseeable and anticible natural result of the condition and situation. Further. it is also foreseeable that an explosion can result from such heat and energy built up in the telescope which lead to the explosion and fire. WW JW Damages '1??? M Z A negliegence action must prove damages. Buster sufered eye injury and a broken leg. Contriburoty negl Contributory negl is a complete bar to recovery if there is any amount of negl on the part of the P, unless there is a last clear chance for the D to avioid the accident. Contributory negl is not commenly used. ___________________________________________——-—-————— i Page 4 of 15 (Question 1 continued) ID: FINAL_Torts_LSZ_Yates_20lOFL Yates _______—_____________————————————————— Comparative negl Comparative negl reduces the damages awarded by the % of negl of the P. There is pure comp. negl. where no matter what % of P negl they will be awarded the amount of the D's negl. There is modified comp negl where there is the 49% rule were P's negle must be less than that of the D. There is the 50% rule were P's negl can be equal to or less than that of the D. Damages will be awareded similer to pure, % of D's negl. Here, A can claim that B was comparative negl in entering the house wihtou permision and looking through the telescope. A can also claim that B was negl in stepping back onto the planter. These arguments are not likely to succeed however be the attractive nuisance doctrone holds liability even if the child is trespassing and was lured to the premise by an artificial condition, here the telescope. Assumption of risk A may try to claim that B assumed the risk of using the telescope which is a complete defense. However for secondary imp ied assumpt' risk to apply there must be a subjective. actual, awareness of e ‘ . he magnitude of the risk, appreecieation of the risk, and voluntariliy encoutLr the risk. Here, it has been determined that B was not aware of the risk and therefore could not have assumed the risk. Astrid v Star Pro A P can bring a cause of action against a manfacturer or anyone in the supply chain for an injury caused by a product they place in the market. There are three Page 5 of 15 (Question 1 continued) ID: FINAL_Torts_LSZ_Yates_2 0 NFL Yates cuases of actions. negligence. strict liability, or breach of warranty. Strict liability does not focus on the conduct of the manf and focuses on the product itself. Therefore it is more P friendly and likely would be used by astrid here. Durring the common law time for strict prodicts liability there was a requiremenet of privity (the P must have bought the product from the manft, person being sued). Privity no longer exists so A can bring a suit against Star even though it is not known whether she bought the product from Star. Manf owe a duty to consumers. and foreseeable users. A was a consumer and foreseeable user. Manfacturer defect A manft defect is an unintentional deviation from the intended design of the product. The telescope was not a deviation from the intended design and therefore can not be a manufactur defect. Design defect A design defect occurs when there is inherent danger in the intended design of the product and the risk outwiehgs the benefits and utilty of the product. There are tests to determine if there is a design defect. Consumer expectation test Does the product function to its intended use or foreseeablel misuse safely and to average quality. This test is similer to implied warranty and merchantability were it is implied that a product in the market will perfrom its intended use safely. Here. the telescope performed its intended use safely until it was directed at the sun for extended time wihtout the lense 'cover. A consumer would expect a telescope ___________________________________________———— Page 6 of 15 (Question 1 continued) ID: FINAL_Tort s_LSZ_Yates_2 O 10 FL Yates ________________________.__——————-————— not to injure the eye from looking thorugh it. which is what it is designed for. Risk utilty test The risk utility test weighs the risk inherent in the product to the utiltiy of the product and considers if there are alternative technological and economically feasible design that can minimize the risk without substantially diminising the utiltiy. Factors to consider are— attractivness and utlity of the product to the consumer and public- alternative design available- applicability of wanrings- ability to eliminate risk through due care— and Iikelyhod of risk. Here. the telescope was designed to its intended design but still posed a danger. There is great utilty in telescopes ot the public and society at large. Astronomy is a great hobby for some and a career for others. However, the danger presented is great as B has discovered. The prupose of the telescope is to collect and concentrate light, which lead to the injuries suffered. It would be unrealistic to design a telescope that did not do such. However. as the facts state "it is theoretically possible to reduce this potentional danger by installing sensers and fans that ould vent the heat when it economically feasible is sufficeint. T fact that no other telescope manft include the safety feature is relevent bu n c nclusive. It is tech feasible. however "that would add significatn cost to the ice of the telescope". Therefore the risk were " the odds of a telescope b mg i dvertantly ponited at that precise place were extrmer low" does ay the benefit and utility of this particualr telescope to the ammature 4/ M W ( Page 7 of 15 not seem t o astrono (Question 1 continued) ID: FINAL_Tort s__LS 2_Yates_2010FL Yates —_______—_______—__________————-————————— A P can also bring a warnign defect against a manft for inadquate warnings. The warnings must be sufficient in scope and degree. The manf does not owe a duty to warn of known and obvious risks. Here there were warnings of using proper filters which could lead to eye damage if not used correctly. and warnings to attach the lense cap. Moreover, "it is common knwoeldge among amateur ast. that pointing a telescope directly at the sun is extrrnely / dangerous." It seems that the rnings were sufficient for the filter considerations and protecting the lens but t quite sufficent for the dangers that resulted from pointing the telescope at sun. Although yt is comon knowledge among amatuer astronomers of the danger it is not to Buster. The warnings must include the applicability to foreseeable users. Not ev one that uses a telescope is an amatuer astroonomer. And it was B's u e e telescope that lead to the dnamages to A's house and B cannot be pre med to know of such danger. Compatrative neg explaines supra Star will try to claim compatraive negl on the part of A because of her lack of proper sotrage of the telescope. She failed at put the lense cap on as she was wanred. she failed ot direct the telescope away from the sun and she failed to move the telescope all together. Her plan to put it away the next day was insuffcient and all together negligenent. Star has a good case for comparative negligence. Star will also try to claim that the way the telescope was left pointed at the sun without the lense was an unforeseeable misuse of the product. HOwever. it is foreseeable for such conduct and this argument is likely to fail. ________________________.____———————————— Page 8 of 15 (Question 1 continued) ID: FINAL_Tort s_LSZ_Yates_20 10FL Yates ______________—___________________———-—————————— Astrid v Buster Astrid has a cause of action against Buster of trespass to land and trespass to chattel or conversion. Trespass to land is the intentional unautherized invasion of the premises of another. The intent is merely to be on the land no matter what kind of mistake or assumption the person is acting under. Here, B may have felt that he was welcomed onto the land bc of his relationship to A. He was practically part of the family and alsays came over. However, he was not given express permision to be on the premises at that moment. Autherization to be on a premise can run out. B took the hidden key and entered the house without expressed aiutherization or invitation. It can be said tha he was a trespassor. MOreover, a trespassor is liable for any damage cuased during his trepsass no matter what type of fault there is. IF B was considered a trepasser he wouod then be liable for all of the damage to the house. W Trespass to chattel is the intenitonal dispossession. intermeddling or devaluing of a chattel. a thing. property of another, to an extent that the owner should be compensated. Conversion is a higher degree of trespass to chattel where the owner should be awareded the full value of the item. B compltly destroyed the telescope and would thus be liable for conversion. However. to be liable there must be intent and the destrictiuon of the telescope was an accident out of the control of B. therefore would be unlikely to be liable for conversion or _____________________________.__————————————-————- Page 9 of 15 (Question 1 continued) ID: FINAL_Tort s_L82_Yates_2 0 1 0 FL Yates trespass to chattel. thent is to desire the outcome or desire the conduct where the outcome is subtantially certain to occur. Here. B did not desire the outcome. W W {_ ’47 #2 Jenny v Raves. lNc Jenny wille be sueing for strict liablity for inherently dangerous activities. lnherenty dangerous activity An inherently dangerous activity can be determined by the following factors. leelyhood of risk Magnitude of risk Whether it is of common usage appropriatness of the locale utiltiy to society availability of minimizing the risk through due care leelyhood of risk We are talking about a rave where there are ovenrvhelming amounts of drugs and alcohol readily and easily available. The danger of such drugs are very much present and especially if combined. This rave permitted people under 21 in. Such age range that attend raves, especially ones permitteing under 21 in. is of the phase in life where _____________________.____________————————- Page 10 of 15 (Question 1conlinued) ID: FINAL_Torts_LSZ_Yates_2010FL Yates _________________.______——————————-———- eperimintation is high. In addition peer pressure the likelyhood of a person attending a rive taking a drug or alchool is extrmer high. The drugs are easy to obtain and the purpose of many rave attendees is to enter an enclosed prmiese which seemingly is safe to take such drugs. loose inhabitions and dance and enjoy music with friends and fellow "ravers". There are countless, as seen through the onctorversy stated in the facts, of prior experiences of danger. In addition, there have been incidents of guns and violance. jenny, not plannign on comsuming drugs or alcohol inadventatly did. That shows that even without the intent of becomeing under the inlfuence, it can happen. Therefore it is clear that he likelyhood of injury is very present. MAgnitude of risk Jenny suffered permanent brain damage. Others have been to the local hospital with serous drug and alcohol related problems. There has been incidents with guns and violance. It is common for people to either OD or suffer from alcohol. poisneing from such behavior at raves. The risk involved is serious and includes death. Common usage Raves are becoming increasingly more common. The advance of music and lighting technology has made raves more attractive to a wider range of people. It is not uncommon for the city of SF to host raves. The facts state that there have been numerous raves in the past and even at the Cow Palace. Although raves are not an everyday experience. and many never do experience raves, it cannot be said that they are uncommon. World wide rave music may be the most popular music especially ‘ comming out of Europe and is increasingly more'popular in america. _-_______________________—————————-————— Page 11 of 15 (Question 1 continued) ID: FINAL_Tort s_LSZ_Yates_2 0 10 FL Yates ________________________________——————————-———-————— Approperiatness of the locale The cow palace is near a residential neighborhood an there is a hospital "loCal". Is there an approproate place for a rave? The most approppriate place would be next to or inside a hospital for there to be avialable help when needed be as we have seen the likelyhood and magnitude of risk is great. It is a tough argument to determien where an approproate place for a rave is when there are such strong arguments for there to be an elimination of raves. It is unclear from the facts what type of event center the Cow Palace is. but from recent local news there have been deaths in the cow palace from raves due to poor security and helpful measures, including adequate exits. Utiltiy to society Other than the temproary euphoric state that many rave attendees may experience what is the utiltiy of a rave? Society values "'party" and "play" highly; People commenly work through the work week to get to the weekend with the inhibition to "let loose" for a few days. People who work hard have the right to play hard. However there is a limit. Drugs and alcohol have always been a major problem in America. A high % of crimes. prisons inmates. abUsive relationships, etc are filled with drugs and alchohol. Many drugs avialable at the raves are illigal but easily available. Marijuana is becomeing more and more thought of as "legal". This discussion is a focus on the right to party and use drugs and alchohol. The legality of alchohol shows societies value of its utilty. Raves may seem like a secluded and at least controled place to consume such drugs and alchohol. Moreover, a rave a...
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