Yates_TortsI_Answer_Fa09 - ID Torts_LSl_Yates_Fa112009...

Info icon This preview shows pages 1–17. Sign up to view the full content.

Image of page 1

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

Image of page 2
Image of page 3

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

Image of page 4
Image of page 5

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

Image of page 6
Image of page 7

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

Image of page 8
Image of page 9

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

Image of page 10
Image of page 11

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

Image of page 12
Image of page 13

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

Image of page 14
Image of page 15

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

Image of page 16
Image of page 17
This is the end of the preview. Sign up to access the rest of the document.

Unformatted text preview: ID: Torts_LSl_Yates_Fa112009 Yates W 1) Bob v. Alan Bob may have a claim again Ian for the trespass to chattel for the damage that Alan intentionally inflicted ont is car. Trespass to chattel is the intentional interference with / the right of posse ’ion of property and you must prove actualycfl dispossesMis case, Alan specificall ,intended to c e the harm. This can be seen from his anger when he yelled Bob and the fact that he deliberately backed directly in a straight line rath an attempting to miss the car. The fact that the force of the collision was enoug jack-knife the car into the street would prove the element of o uring to the car. Thus, Alan intention y dama d Bob's car due to his anger at eing parked in. Bob has a strong claim 9 ' st Alan for trespass to chattel. Bob may also have a claim for negligence against or the second collision that occurred when Alan did not realize that his car was still in reverse. The elements of negligence are duty, breach. causation. and damage. First, Bob must prove that Alan owed him a duty. Duty asks two questions: to whom is that duty owed and what is the standard of care? Alan owed a duty to Bob not to damage his property. The standard of care that would be applied in this case is that of the reasonably prudent person. Alan breached this duty when he fumbled with his gear shift by failing to check to see which gear he was in. A reasonably prudent person in these circumstances would see what gear they were in before pressing the gas. The prove causation, Alan's breach must ________________________________.__._—————————-——-—— Page 1 of 9 (Question 1 continued) ID Torts_LSl_Yates_Fa112009 Yates have been both the actual cause and the proximate cause of the damage (in this case. the damage to Bob's car.) Actual causation is but for causation. Here. but for Alan's failure to put the car in the proper gear, Bob's car's gas tank would not have been damaged. As for proximate causation, the rule from In re Polemis states that if some harm is foreseeable, the defendant is liable for any harm that is the direct result of his%% breach. it was foreseeable to Alan that some harm would occurmis angry state. When Alan breached his duty by failing to put the car in drive, it directly resulted in the damage to Bob's car's gas tank. The damage to Bob's car is evident since the facts tell us that the rupture in the gas tank was caused by the slight force of the second collision. Thus, Bob can ve all of the elements of negligence and has a strong claim against Alan to r ver for the damage done to his car both intentionally and as a result of Alan's negligent driving. W Alan may be able to assert the defense of contributory or comparative negligence. Alan may assert that by parkinWof his driveway. Bob had negligently parked and that were the car not there in the first place, the second collision that resulted Alan's negligent shifting of gears would not have occurred. In a contributory negligence jurisdiction. this would be a full defense and in a comparative negligence jurisdiction this would be a partial defense; however. this defense is weak since the position of Bob's car was caused by Alan's intentional conduct in the first place. Alan's defense for contributory or comparative negligence will fail. W Elijah v. Bob Page 2 of 9 {Question 1 continued) ID: ' ‘ Torts_LSl_Yates_Fa112009 Yates ’/ Elijah may have a claim for negligence agai séob for driving his car in a damaged condition and allowing the puddle of gMa‘ccumulate on the road. As stated above, Elijah must prove duty, breach, causation, awmage. Cardozo states that a duty is owed to foreseeable plaintiffs in the zone of danger created by the defendant's conduct. In this case. Elijah was a foreseeable plaintiff because he was another driver on the road. Drivers owevgfiy amblefiofifie’zrivers on the road. It was foreseeable that another driver could be injured by Bob's reckless driving. Bob should have been acting a reasonbly prudent person would act under the circumstances. Bob clearly breached this duty not only by driving his car while it was damaged and not in a suitable condition, but also by driving recklessly in his anger at Alan and flying over the speed bump causing the tank to rupture even more. Next. Elijah must prove that Bob was both the actual and proximate cause of his damage (being injured when thrown from the car by the explosion.) As I stated above, actual causation is but for causation, or when there are a umber of different factors, the defendant's breach must have been a subflrw: causing the injury. Here. but for the puddle of gasoline on the road from Bob's car, Elijah's car would not have caught fire, so we can say that Bob's driving of his damaged car was a suan Elijah's injury. it will be harder for Elijah to establish proximate cause. There are three tests for proximate cause. The In re Polemis test is stated above. in this case, some harm was foreseeable to Bob, but it will be hard to establish that Elijah's injury the direct result of Bob's reckless driving. Yes, it is true that the gasoline in the road was a substantial factor, but there are was a supserseding cause and an independent intervening. A superseding cause is an unforeseeable event unrelated to the situation that the defendant is already reSponsible for that will cut off the chaindLliability. The fact that Corrine dropped a Page 3 ol 9 (Question 1 continued) ID: Torts_LSl_Yates_Fa112009 Yates towel in the a line was certainly an unforeseeable event that caused a greater likelihood fire. An independant interving cause is a cause unrelated to the situation created by the defendant that is more likley to cut off liabilty, but does not always. Doug dropping the cigarette in the road was an independant intervening cause. It may be foreseeable that someone would drop a cigarette ou their c window as that happens often. but this was in no was related to Doug's mom; The next test for proximate cause is from Wagon Mound and that states that the defendant is only liable for the foreseeable type of harm. An explosion may have been foreseeable from a gasoline puddle, but the type of harm in this case is not just an explosion. It is an explosion caused by a gasoline soaked towel lit by a cigarette. This would not have been foreseeable to anybody, let alone Bob since he was not even aware of the leak in his tank. Finally, the modern rule states that the defendant is liable for any foreseeable harm. This would be the strongest argument because it is certainly foreseeable that driving a damaged car recklessly would cause 5 eone harm; however, this is still a weak argument due to the inteweniang causes that I discussed above. For this reason, Elijah will not be able to prove that Bob's breach was the proximate cause of his injury, so he will not b able to establish a claim for negligence. Zia/— W - Elijah v. Doug Elijah may also have a claim against Doug for negligence in throwing his lit cigarette out the window. Elijah must first establish duty. Andrews stated that a duty is owed to the world at large and that liability is then limited by proximate cause. In Andrews view. Doug would have owed a duty of reasonable care to Elijah since Elijah was another Page 4 of 9 (Question 1 continued) ID Torts_LSl_Yates_Fa112009 Yates driver on the road. Elijah will be able to establish that Doug breached this duty through negligence per se. Negligence per se established both breach and duty and is used in reference to the violation of a statute. Breach according to negligence per se is established when the person injured the in the class of people the statute was intended to protect and when the harm or injury is the type of harm the statute was intended to prevent. Here, the statute clearly states that you may not throw any cigarette. lighted or non—lighted, upon the road. This is most likely to protect other drivers and pedestrians driver. so he was in the class of people that this statute w ' ended to protect. The harm that this statute was intended to prevent was harm from flammable things found around cars on in the roadways. It is most likely that this statute was intended to prevent people from being burned or harmed in some other fashion. In this case, Elijah suffered harm from an e osion, so this is the type of harm that the statute was intended to pre e . For this reason, Elijah will be able to establish that Doug had a duty and breached that duty through negligeéee per se. Elijah must also establish that Doug's breach was both the actual and the proximate cause of his damage. But for Doug throwing the cigarette out the window, the rag would not have caught fire and Elijah's car would not have exploded. Thus, we have actual causation. Under the wagon mound rule for proximate cause. the defendant is liable for the foreseeable type of harm. It is foreseeable that by throwing a lit cigarette out of your window, a fire may result. When being around cars, ' s likely that there will be gasoline somewhere and that is a highly flammable s tance. Thus, Elijah may be able to establish that the explosion of his ca/ 5 the type of harm foreseeable to Doug. Under the In re Polemis rule, it is clear that the fire started as a direct result from Doug's _____________________________——————————— Page 5 of 9 (Question 1 continued) ID: Torts_LSl_Yates_Fa112009 Yates breach and that fire caused the explosion. Doug could have foreseen some harm, so he will be liable for this harm since it was the direct result of his breach. Doug may argue that Elijah driving over the burning towel was an independent intervening cause and that it should cutoff his liability. This is a fairly strong argument since Elijah's driving over the towel did not result from Doug throwing the cigarette out the window. Though Doug's argument against proxi te cause is strong, Elijah will still succeed in proving proximate cause since it can b e blished that the explosion was a foreseeable even that occurred directly from D ug's breach. Elijah's damage i se evident as he was thrown from the exploding car. Thus, Elijah has a fairly strong argument for negligence as he can establish duty, breach, causation, and damage. V 1’7/ W C/‘ Doug will raise the defense of contributory or comparative negligence because Elijah was driving in a car with fogged-up windows and drove over the towel when he could have avoided it. In a contributory negligence jurisdiction, the would bar Elijah from any recovery because it is a complete defense. In a comparative negligence jurisdiction, the percentage of the injury that Elijah was responsible for would be taken into consideration. This is only a partial defense, so Elijah would still be able to recover. but his damages will be reduced. Doug's defense is fairly strong since Elijah should have been paying more attention to the road while driving and should not have been driving in impaired conditions with the foggy windshield. For this reason, Elijah's damages will be reduced in a pure comparative negligence jurisdiction to only the percentage of injury that Doug was responsible for. In a modified negligence jurisdiction, Elijah will only recover if he was 50% or less responsible for the injury or 49% or less responsible Page 6 of 9 (Question 1 continued) ID: Torts_LSl_Yates_Fall2009 Yates for the injury depending on the jurisdiction. Doug may also seek to implead or seek contribution from/Bob. Alan, and Corrine. He will argue that were in not for their actions, his minor'breach of flicking the cigarette out the window would not have caused any injury/Under the theory ofjoint and several liability, two or more people acting in con/cert to create a single indivisible injury may / seek contribution from t e other rties that were responsible. Doug is most likely to receive contribution fr and Alan since it was already established that their negligence contributed o the accident. It is less likely for Corrine as she was simple a superseding cause and most likely does not owe a duty to the world at large to not drop towels. Fanny v. Elijah Fanny may have a claim for negligence against Elijah for the driving of his car in a negligent manner which caused the accident and him to fly through her store front window. Elijah owed a duty to all people to drive his care in a manner that a reasonably prudent person would drive their car under the same circumstances. Thus. Elijah owed a duty to Fanny. He breached this duty by driving with the windows fogged up after a rain storm. Most reasonable people would wait until they could see out their windshield to begin the drive home. so Elijah did not exercise reasonable care. But for Elijah's breach of driving without proper vision. he would have been able to avoid the towel and the explosion which propelled him through Fanny's window d not have occurred. Thus. Elijah's breach in his driving was a substa ia ctor in Fanny's injury (the damage to her store.) Proximate cause will be harder to establish. Under the modern Page 7 of 9 (Question 1 continued) ID: Torts_LSl_Yates_Fa112009 Yates rule, Elijah would be liable for any foreseeable harm. It is foreseeable that driving without good proper sight out of your windshield would result in some type of injury. Thus, proximate cause could be established under this rule; however, Elijah will argue that the towel in the road was a superseding cause a at his driving was not the " IS not foreseeable that a flaming towel would be laying in the road and that an unfogged windshypa‘d be needed in order to see and avoid it. He will also state that the flaming got/val was totally unrelated to his impaired driving. For this reason, it will be hard for Fanny to establish proximate cause. proximate cause of the injury. He will state t Though her damage is f—evident, proximate cause is the weakest part of her argument. This i rather weak claim for negligence since the flaming rag was very unforeseeable. Elijah will also seek contibution from Doug. Corrine. Bob. and Alan under the theory of joint and several liability. He will argue that it w their negligence that put the burning rag in the road and that he sho d not responsible for Fanny's injury or that the amount of damages he must p ould at least be reduced. It has already been established that Alan. Bob, and Doug all contributed to the incident, so all four defendants will most likely be responsible for damages. Fanny v. Junction City Railroad Fanny may also have a claim for negligence against Junction City through vicarious liability under the doctrine of respondeat superior. Under this doctrine, it is stated that a corporation may be held liable for the negligent acts of their employees when the Page 8 of 9 ( Question 1 continued) ID: Torts_LSl_Yates_Fa112009 Yates employees are acting in the scope of employment. Generally. according to the coming and going rule, driving to or from work is not considered to be in the scope of employment. so Junction City will state that Elijah was heading home and that they are not responsible for his actions. However, Fanny will argue that Elijah was planning to finish his monthly bookkeeping reconcilation at home, so he was still in the scope of employment since he was still intending to do work when he got home. She will state that his driving was a detour on the way home that still involved business, not a frolic that was for a mere personal use. This is a fairly strong argument since driving to and from another office would sometimes be considered to be within the scope of er, Fanny's claim against Elijah for negligence is rather weak as continuing work; however, Fanny's negligence claim against Elijah will most likely not prevail. Page 9 of 9 ID: Torts_LSl_Yates_Fa112009 Yates 2) 1) Alex may be able to have two causes of action - he may be able to establish a claim for medical malpractice and he may also be able to raise a claim for negligent infliction of emotional distress. In order to have a medical malpractice suit, one must first establish the standard of care that medical professionals are held to. Medical professionals are held to the standard of the reasonable professional. That means using the same level of skill. knowledge. and experience that an ordinary member of the profession would use. In a medical malpractice suit, a professional will not live up to the standard of care if they commit and act or ommission that is in violation of the community standard. According to the locality rule, a medical professional will be held to the standard of other professionals in the community under similar circumstances; however, if the professional is board certified, they will be held to the national standard. In Alex's case, he will be able to assert that his doctor violated this standard of care by failing to disclose his condition - this would be the ommission in violation of the / community standard stated W7 The law states that doctors must disclose all material risks to their/patéits. Material risks are anyt ' that a patient would want or need to know in order to make ision. Doctors must also inform patient of any personal interés ot related to the patient's treatment that may affect their medical judgment. In this case, Alex would argue that the doctor being HIV positive was a material risk that Alex would have wanted to know about before he made an informed decision to consent tom He would state that the doctor violated the national standard of care by failing to disclose a maémder for a medical malpractice suit to be successful, the plaintiff must demonstrate that the doctor failed to disclose a Page 1 of 7 (Question 2 continued) IL; Torts_LSl_Yates_Fa112009 Yates material risk. that disclosure of that risk would hav anged their decision in the process, and then the risk that was not dis sed must actually materialize. In this case, M Alex would argue that the material risk was that the doctor was HIV postive, that this risk was not disclosed, and that Alex would n/ot have consented to undergo the surgery if he had know that doctor was HlV p ' Ive. Alex would als gue that even though the risk does not seem to have ma rialized. he will noée cert ' hat risk did not material for two mo ye and that in the mean time he i ergoing pain. suffering. and severe s e . He will state that/for these reasons. he has established the elements of a medica mam that he should be compensated. Alex may also have a claim for negligent infliction of emotional distress. Negligent infliction of emotional distress occurs when it is foreseeable to the defendant that a direct victim will be emotionally distressed by their negligent actions. Alex will argue that, as stated above, the doctor breach his duty under the professional standard of care and this his breach of nondisclosure is the direct cause of his severe stress. Under the old impact rule, the plaintiff must actually have been physically impacted by the defendant and sewers stress must have cause a physical injury. Under the more modern rule, there is no impact necessary as long as the emotional stress was foreseeabl. In some jurisdictions, there must also be a physical manifestation of the stress and the stress must be severe. According to our facts, there is a physical manifestation of the stress that Alex is experiencing. He is not able to eat or sleep and he has lost a significant amount of weight. This shows a physical manifestation of the stress. The stress must also be severe meaning that no reasonable person could be expected to endure it. In this case, Alex would argue that no reasonable person should be expected to live a life of paranoia. fearing that he may be sick every minute of every Page 2 of 7 (Question 2 continued) ID: Torts_LSl_Yates_Fa112009 Yates day and being obsessed with that possibility and able to think of nothing else. This is a fairly strong argument for negligent infliction of emotional distress since Alex is clearly experiencing severe stress that has physically manifested from the...
View Full Document

  • Fall '
  • Gallagher

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern