Torts Hypos

Randy Rodeo World is a theme park that is devoted to cowboys and related themes. Its souvenir store sells ten-gallon hats, lassos, saddles, branding irons, and the like. It also includes a restaurant, which features a wide array of barbequed meat as well as numerous vegetarian choices, such as smoked tofu, barbequed veggie burgers, and the "cowboy salad" (lentils, carrots, beans, and hard boiled eggs). The mascot of Randy Rodeo World is Randy Mouse, a cowboy hat-wearing rodent who vaguely resembles Mickey Mouse. There is a second important character featured at Randy Rodeo World, and it is Brad Bull. As an introductory cartoon that is shown to visitors to Randy Rodeo World explains, Randy's best friend is Brad Bull, a "wild and dangerous bull." Pamphlets given out to all guests to Randy Rodeo World describe Randy as "a sweet and gentle cowboy mouse" and Brad as a "life-threatening monster." Acme World Film Studio, the film company that owns Randy Rodeo World, has developed Brad as a very "edgy" character in hopes of attracting a teenage audience to its theme park and related products, such as animated films and video games about the adventures of Randy and Brad. Just after the main entrance to Randy Rodeo World is "Brad Bull," a mechanical bull that permits customers to experience a ride on a bucking bronco. Fans who are interested can also buy their own personal mechanical bull from the store. This product is called the "Brad Bull Home Edition." It comes in two variants. There is the: (1) "Beginner Edition," and the (2) "Dangerous Edition." Joe, Ellen, Susan, and a few of their friends visit Randy Rodeo World to celebrate Ellen's birthday. They are all over 21 years old. Susan works at Randy Rodeo World as a product manager. They watch as ten other visitors give "Brad Bull" a try. Two visitors are successful and stay on the mechanical device for the full 90 seconds of the ride. Eight are thrown from the bull and land on the carpet surrounding the apparatus. One of these eight visitors appears to hurt her ankle; she leaves the immediate area around the mechanical bull and is noticeably limping. Just then Ellen's cellphone rings, and, after her phone call, she announces that she has been called away to the office to work on a business deal. Her friends are sorry that she has to leave. Before Ellen leaves, Susan uses her employee discount (10%) on behalf of all the friends to buy the Brad Bull Home Edition for Ellen. Everyone is to reimburse Susan later for their share of the gift. There is no discussion of which edition 4 of "Brad Bull Home Edition" to buy for Ellen, and somehow the "Dangerous Edition" of the ride is loaded into Ellen's car. At this moment, Joe exclaims, "The party must go on!" He wants to ride the Brad Bull mechanical ride. The other friends are losing interest in the theme park and decide to go home. Neither Ellen nor the other friends want to ride the mechanical bull. "The Brad Bull character seems kind of creepy," one of the friends remarks in the parking lot. After a long wait on line, Joe is eager to ride "Brad Bull." When it is his turn, Joe gets on the mechanical bull, and, as it begins to sway and lurch, Joe holds on expertly and draws the attention of a crowd. Joe grew up in Houston, Texas and is old enough to remember the John Travolta film, Urban Cowboy, and to have enjoyed the resulting popularity of mechanical bulls in bars while he was in college. He has ridden more than a few mechanical bulls in his day, and even is wearing a University of Texas Longhorns t-shirt at Randy Rodeo World that day. With each bucking cycle, however, the bull's movement becomes more challenging and violent. Joe is thinking about letting go for his own safety, but a stranger in the crowd, Carter Monroe, begins to taunt him as a "No good Texan." As a result, Joe decides to hang on "no matter what." Despite his resolve, he is ultimately thrown from the bull. At precisely the moment that he sails through the air, Joe spots a child bystander, Sally Simpson, who has edged very close to the mechanical bull. Joe wrenches his body in the air to avoid the child and, as a result, lands awkwardly on the carpet. He suffers severe injury. Sally is not hurt. The child's father, Ernie Simpson, tells Joe, "If you hadn't moved your body in such a funny way, you still wouldn't have hit Sally, and wouldn't have hurt yourself so badly. Thanks for nothing." While Joe lies incapacitated at the hospital, Ellen arrives home from the office after spending a few hours moving her deal forward. Excited about her birthday gift, Ellen sets up the Brad Bull Home Edition in her carpeted living room. Ellen gets on the mechanical bull, and it begins to sway and lurch. As with Joe, Ellen too is ultimately thrown from the bull. As a result of her being thrown by the bull, Ellen's shoulder lands awkwardly on the carpet and is dislocated. As she rolls over after the initial injury, however, Ellen strikes a narrow and unstable table on which is perched an old heavy vintage Victrola. See Illustration A below. There is also a large heavy pile of old shellac 78's, or vintage recordings on the table. See Illustration B below. The recordings are of famous blues artists and quite valuable. The Victrola and the 78's fly off the table and smash into Ellen. The 78's shatter, and the Victrola is broken. The impact leads to Ellen suffering serious head injuries. 5 Finally, Susan returns home, without any knowledge of these accidents, and decides to test her own Brad Bull home edition, which has been in her house for 48 hours. Her employer, Acme World Film Studio, has required all employees to test one or the other home edition. In some theme parks, it is customary to have employees test rides at the theme park. Building on that industry custom, Susan's manager, Thomas Probst, wants all employees to test the Home Edition of the mechanical bull. Susan was not thrilled about the assignment, but chose the "Beginner Edition" and brought it home. Unfortunately, she walks in the door that day and finds that her son Isaac, age 6 years, had just fallen off the ride and broken his elbow. Assignment: (1) Discuss possible plaintiffs, their claims, and how any party sued is likely to respond. (2) Please pick at least two cases from the semester and discuss how the fact pattern above is similar or dissimilar to these cases. Does the above fact pattern illuminate or otherwise cast any of these cases in a different light?

Negligence In order to make a claim for negligence four elements must be met. First, it must be established that the defendant had a duty to the plaintiff. Second, it must be established that the defendant in fact breached the duty he had towards the plaintiff. Third, it must be established that the breach of the defendant's duty was the proximate cause of the plaintiff's injury. Finally, it must be established that the plaintiff did in fact suffer harm. Duty Everyone has a general duty not to act unreasonably in such a way as to cause harm to others. Beyond the general formulation there are a number of additional relationships which give rise to duties. A defendant has a duty to a plaintiff once the defendant begins to help the plaintiff if the plaintiff was in peril. If the defendant created the risk, even if the risk was created non negligently, the defendant has a duty to exercise reasonable care to prevent or minimize harm resulting from the risk. Common carriers such as trains or airlines have a heightened duty to all passengers. In some circumstances, medical professionals have a duty to warn, such as in Tarasoff where a psychologist was held liable for not warning a victim of an impending attack. The defendant can also have a duty if the defendant owns the building the plaintiff was in when injured. This duty is different depending on the relationship of the plaintiff to the defendant. If the plaintiff is an invitee, someone with whom the owner had a joint interest, then the owner has a duty to take reasonable care that the premises were safe. If the plaintiff is a licensee, a social guest or someone the owner has no explicit interest shared with, then the owner has a duty not to allow concealed dangers to go uncorrected or unannounced. If the plaintiff is a trespasser, and the owner knows the trespasser is there, the owner only has a duty not to do active negligent acts towards the plaintiff. If the owner is unaware of the trespasser, there is no duty to the trespasser. In the instant case J is an invitee of RRW and AWFS. This establishes that RRW had a duty to exercise reasonable care that the premises of its park were safe. Breach One breaches their duty when they fail to act as a reasonably prudent person would with regard to it. This is an objective standard. If an individual is mentally deficient in some way, they are still held to the same standard as everyone else. An exception to this is children, who are held to a more subjective standard, taking into account their age, experience and mental development. While the reasonably prudent person standard does not require people to do the impossible, like demanding blind men see, it does demand that people with disabilities act with reasonable care regarding their disabilities. If they are unable to do an activity safely due to their disability, they ought to not do it. There are various methods of analysis which can be employed in order to determine whether or not someone acted reasonably with regard to their duty. Two common methods are custom and various calculi of risk analyses. Custom The industry standards or customs governing an activity can figure in to whether or not a course of action was reasonable. The weight of custom varies on a case by case basis. Sometimes custom can show a defendant acted with the skill and cautiousness required by his profession, thus acting reasonably. However, a court can also find that the custom itself is negligent, and if they do then it is no excuse that someone adhered to custom. It is useful as evidence when the defendant fails to meet the industry standard; if they did not act as most people in their industry would have, it is unlikely they were nonetheless acting reasonably. This would not be the case only if the industry dictated precautions which far exceeded their duty of care. In the instant case it appears that RRW may have created a mechanical bull which exceeds the common strength and danger of other mechanical bulls. J has ridden many a mechanical bull in his day, and he is surprised mid ride at how strongly Bad Bill begins to buck. This is not a clear violation, but further factual investigation could show that RRW exceeded the standards of how dangerous a mechanical bull can be. If they did exceed custom, it would be good evidence to support J's claim that RRW breached its duty to take reasonable care to keep the premises of the amusement park safe. Calculus of Risk One way to determine if someone acted reasonably is to engage in a calculus of risk. This is a broad term for analyzing the rationality of a given act using an economic methodology. One type of calculus of risk proposed by Learned Hand is BPL analysis. In BPL analysis, one assess whether the burden of preventing the harm for the defendant is less than the cost of the loss associated with the risk times the probability the risk would occur. If the burden is less, then on BPL grounds it was not reasonable not to take the precaution and the defendant is liable. This can be tricky to analyze precisely, but it is useful if one can show one side of the equation or another is negligible in size. In the instant case it is fairly easy to engage in BPL style analysis. There are 11 results in the case from people riding the ride. 2 of 11 stayed on the bull for the full duration. 9 fell off of the ride, with two of those persons suffering injuries (one a twisted ankle, and the other J's injuries). While this is too small a sample size to make definitive statements as to the danger of the ride, if one assumes this sample is representative of the general trend, it shows that there is roughly an 18% chance of injury when riding Bad Bill, and a 22% chance of injury when one falls from Bill. The injuries can range in severity from a twisted ankle to J's severe injuries which require hospitalization. The burden of preventing these injuries is relatively low. The cost of using padding rather than carpet around the mechanical bull and of erecting a fence at a safe distance to keep children away would undoubtedly be lower than the cost of both the medical treatment and pain suffered by all of those injured in the status quo. Another type of calculus of risk was proposed in the Harvard Law Review. On this view there are five separate factors to evaluate to determine the reasonableness of an action. First one should assess the magnitude of the risk. Second one should assess the value of the object exposed to the risk. Third one should assess the value of the collateral object or interest that the risk is taken for. Fourth one should assess the probability that the collateral benefit will be obtained by taking the risk (this is the utility of the risk). And finally one should assess whether the risk was the only way to attain the collateral object. This is not a bright line test like BPL would be in its purest form, but rather it names the factors one should look to when deciding whether or not someone acted reasonably when taking a risk. In the instant case this analysis leads to a similar conclusion as seen above. The risk is serious injury. People are of very high value, although difficult to quantify. The collateral object in this case is savings by not adding safety devices, which is probably not too expensive. Clearly the amusement park saves some money by not deploying the safety devices. However, the park can minimize costs in other ways than skimping on safety; in fact, employing safety may minimize costs of litigation and restitution to those injured in the park. Causation In the instant case there are two contributing causes from RRW to J's injuries. First is the dangerous strength of Bad Bill, and second is the lack of safety measures around bad bill (including both padding and a fence). The dangerous strength of Bad Bill satisfies both the modern foreseeability analysis and the older directness analysis of causation. Because patrons are regularly bucked from bill, it should be fairly easy to establish that it is foreseeable for RRW that patrons will be thrown from Bill. Furthermore, only brief watching gives examples of injury resulting from such bucking. On directness, one can show that, even in the case of experienced and skilled riders from the great state of Texas, Bill bucks people from his back and onto unpadded ground around him, resulting not infrequently in injury. From the bucking to the injury there are no exterior supervening causes. Similarly, the lack of safety measures meets both tests. It is reasonably foreseeable that patrons will move close to the ride unless otherwise stopped; human curiosity is a common driving force that leads people to do things which are generally speaking ill advised. It is also foreseeable that persons being thrown from an object to unpadded ground may suffer injury resultant from that impact. Since the bucking is foreseeable (see above) the injury from the resulting impact is also foreseeable. The force of impact and unexpected objects directly cause the injuries in the case of J; his contortion and impact on the unpadded surface cause his injuries. Damages J suffers serious injuries which require hospitalization. These are actual damages. Res Ipsa Loquitur Res Ipsa Loquitur provides an assumption of negligence in situations where the defendant controls all of the evidence of action prior to the event. The burden is then on the defendant to overcome the assumption of negligence. In order for a plaintiff to establish negligence they must show three things according to the Restatement (Second) of Torts. First, the event which occurred must be an event which normally does not occur in the absence of negligence. Second the plaintiff must sufficiently eliminate other possible causes of the event with evidence. Third, the negligence still must be within the scope of the defendant's duty to the plaintiff. If these three requirements are met, negligence on the part of the defendant is assumed unless he can prove otherwise. J could argue that Bill's strength was negligent whether RRW intended for the ride to be that strong or if it was as a result of a malfunction. RRW would have to show that either it was not negligent to have the ride be that strong or that they exercised due care in maintaining the ride and it malfunctioned anyway. Defenses for RRW / AFWS Assumption of Risk J has ridden many a mechanical bull in his time. Inherent in the concept of riding a mechanical bull is being thrown from it. Furthermore, J observed 80% of previous riders were thrown from Bill. As Cardozo would say, the timorous may stay at home. The fun of a mechanical bull is in the possibility of being thrown from it, and the accomplishment of avoiding that. J knew this all too well, having ridden many a mechanical bull in his day. By getting on the ride J assumed the risk of being thrown and also the risk of being injured, since he saw one of the people before him get injured. Assumption of risk traditionally is a complete defense to a tort action, although typically today it is incorporated into comparative negligence, rather than acting as a defense on its own. Contributory Negligence Contributory negligence is conduct on the part of the plaintiff which falls below the standard of conduct to which he should conform for his own protection and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff's harm. Contributory negligence is a complete defense for the defendant where it is still recognized. J realized midway through the ride that it was dangerous to remain on the ride. He decided to stay despite the danger because of taunting from the crowd. While it is common knowledge that Texans are proud people, one could not say that taunting based on one's Texan heritage would make a reasonable person leap headfirst into any possible danger. J decided, against his better judgment, to remain on the ride even once he realized it was dangerous to remain. This is negligent and is a contributing cause to his injury. Furthermore, J chose to land in an unsafe manner when avoiding the child. If J had chosen to land in a safer manner, which surely he knew how to do from his years in college riding mechanical bulls, his injuries would in all likelihood be less severe, or possibly nonexistent. Comparative Negligence Comparative negligence has largely replaced contributory negligence in assessing whether or not the plaintiff's negligence excuses the negligence of the defendant. Rather than acting as a complete defense, comparative negligence lessens the burden the defendant must bear in damages. The court assesses fault on a percentage basis, and each party assumes a percentage of the cost equal to their percentage of fault. There are two competing forms of comparative negligence, a pure version and a hybrid version. The pure version assess damage on the basis of % of fault, no matter how much of the fault is the plaintiff's. The hybrid version acts like the pure version until the plaintiff's negligence reaches the 50% threshold, and then bars any relief for the plaintiff. California adopted the pure model in Li v. Yellow Cab, but the majority of states have adopted some form of hybrid comparative negligence. Even if all the reasoning in the sections above on contributory negligence and assumption of risk hold, it is likely that the fact finder would assess fault on the part of RRW to be higher than J's personal fault. The precise evaluation of percentages of fault is a responsibility of the fact finder, so this analysis will not spend time dwelling on it. Responses J may respond as to the claim that he was contributorily negligent in trying to avoid the little girl (who he would not have hit anyway) by saying that his belief was reasonable, and that it is not negligence to act reasonably to avoid a greater harm, even if it results in injury. One case in the class concerned a man 'saving' a child from an approaching train, even though the child was not on the same track as the train. The man 'saved' the child by moving it off of the tracks, but himself died. The court held that it was not contributory negligence, because the train would have been liable for the death of the child if it had hit it. In the instant case, the injuries to the child would likely have been severe had J hit it while flying from the mechanical bull, so his reasonable belief that he was going to hit the child justified his effort to avoid such a collision. J could also argue that he reasonably expected bad bill to fall in line with other mechanical bulls he had ridden, rather than being stronger than average. As an experienced rider he could reasonably have assumed that the general park patrons were not as experienced as him, and that was why they were falling from Bill. It was not until he was on the ride that he could really assess the risk posed by Bill. E v. AWFS Negligence Duty AWFS had a duty to warn E because it created the hazard which E is subjected to. Breach AWFS did not include warnings or instructions with Bad Bill (at least as are mentioned in the fact pattern). By failing to provide such warnings and instructions, AWFS breaches its duty to minimize the risks associated with the dangerous version of bad bill home edition. Causation Had AWFS included warnings and instructions E would likely have set up the device at a safe distance from her furniture and valuables, or perhaps not used it at all if it warned of the force with which Bill could buck her to the ground. It is reasonably foreseeable that valuables in the home could be damaged by people flying from a device placed in their proximity, and the failure to instruct otherwise makes the possibility that people would set up the device near furniture foreseeable as well. Damages AWFS is responsible for the foreseeable consequences of its negligence. In this case, they would clearly be liable for the injury to E's shoulder. It is likely that they would be liable for the damage to both the Victrola and the records, as well as the head trauma suffered due to the Victrola falling on E's head. Defenses for AWFS Assumption of Risk Since E saw the full size version of the device in action, she could reasonably assume that the home version would be similar. This would include the possibility of being thrown from the device. Because E knew she could be thrown from the device, she assumed the risk of all of consequences of falling for the sake of the thrill of the ride. Contributory Negligence Because she knew of the risks, her failure to pad the area around the home edition as well as her choice to set it up near furniture and valuables constituted an unreasonable departure from the care she should maintain. He E acted reasonably and set up safety measures before riding she would neither have injured herself or her possessions. Comparative Negligence E would likely be found to be less than 50% liable for the initial injury, but more than 50% liable for the later injuries. Because of this, the amount awardedin damages could vary widely based on whether the jurisdiction adopted pure or hybrid comparative negligence. Responses E could not reasonably be expected to set up safety measures when AWFS and RRW failed to set up safety measures around the full sized version of Bill. S (on behalf of her child) v. AWFS Negligence Because the device was set up at home by an agent of AWFS pursuant their responsibilities as an employee AWFS is liable for the actions of the agent. The mechanical bull would likely constitute an attractive nuisance, which creates a duty on behalf of AWFS toward the child. AWFS does not warn of the attractive nuisance or instruct the agent to assemble the device with measures in place to keep children away from it. Such a failure to warn in conjunction with the attractive nuisance duty constitutes a breach of duty. That breach directly causes the child's injury of a broken arm. Defenses Because the version assembled was the beginner edition, AWFS could argue it was not foreseeable that it would cause injury. Whether or not it was foreseeable would be an empirical question based upon the strength of the beginner edition, which is not discussed in the fact pattern. (2) Murphy v. Steeplechase The above fact pattern is very similar to Murphy v. Steeplechase in the section relating to J. Both cases involve amusement park rides, and in both cases strapping men are injured by rides they thought they could handle (an probably impress others in so doing). In Murphy Judge Cardozo claimed that the chief allure of amusement park rides was the risk inherent in them. That seems to be the case in the instant case as well, since people continue to ride Bill even after it is shown how frequently people are bucked from his back. In comparing the instant case to Murphy it is interesting to consider the difference that time makes in the analysis of the cases. In Murphy Cardozo held that the amusement park was not liable for the damages suffered because the riders assumed the risk when they got on the rides. The analysis above with regard to modern tort law seems to reach a very different conclusion. It is interesting to look at the two highly similar fact patterns as lenses through which one can see the differences between tort law in 1929 as compared to 2009, 80 years later. Today as a society we are much more likely to hold others responsible for our injuries than we would have in 1929. We can also look at the explosion of litigation resultant from that change in vantage, and try to assess whether or not the broader net of liability employed today is a good thing for society as a whole. Daniels v. Evans At first blush the instant case may not seem very similar to Daniels v. Evans but both speak to a similar issue. In both cases someone underage is injured, and one must assess whether or not the child is responsible for their actions. In Daniels the court holds that the child is responsible since riding a motorcycle is an adult activity. This raises the question of whether or not riding mechanical bulls is an adult activity. In the cases about children, there is mention of license requirements making something an adult activity. However, in Harrelson v. Whitehead the court held speed boating was an adult activity because of its inherent dangers, despite not having a license requirement. It is also interesting to compare that, in the instant case, the child is but one year beyond the age where he cannot be negligent under the law (age 5). The case law establishes that the court must engage in a subject analysis of the child's mental faculties to determine whether or not he was acting reasonably. But that analysis could be disregarded if riding a mechanical bull is considered dangerous enough to qualify as an adult activity. It is also unclear whether the beginner bull may be something children could engage in, while the dangerous bull could be an adult activity. The differences between the instant case and Daniels is useful to illustrate that, despite the caselaw on the subject, dealing with children in negligence cases is still very much a case by case analysis that is very difficult to predict. The decisions made by the fact finder, either jury or judge, could vastly alter the scheme of liability operating within the case. This provides a lot of ground for creative and interesting legal argument on the part of lawyers on both sides of the case.

(Res Ipsa Loquitor, Yes or No?) Flynn is walking past a high-rise hotel when a beer mug falls on his head from one of the balconies above. He sues the hotel for negligence.

No. The accident is not likely to happen without someone's negligence. The problem is attributing the negligence to the hotel owner.

Ralph Rossnagel has four sheds on his property. There is a fence on the side of his property that faces a road. The part of his property that abuts a large wooded area is open. The large wooded area is part of an extensive public park owned by the county. There is an easily accessible playground in the public park, but it is located some distance from Ralph's property. Ralph was walking on his property one day with his father, Wolfgang Rossnagel. Wolfgang sufferes from Alzheimer's disease, which causes dementia in his case. Ralph and Wolfgang came to the vicinity of the sheds and saw six or seven boys on the roof of the first shed. The boys were all barefoot, and all were lighting firecrackers. They were throwing the firecrackers in the air. Ralph ordered the six or seven boys to get down, and they did so at once. He asked the boys to leave his premises at once. One of the boys, Ronald Asheton, age eight, put a firecracker in the shoe of an unsuspecting boy, James Williamson, age seven. James suffered burn injuries. At the time of this incident between Ronald and James, Ralph and Wolfgang had already gone around to another shed. Ralph spotted two boys on the roof of the second shed. There were, however, actually three boys on the second shed roof, including Frank Thorne. Ralph claims that he did not see Frank Thorne on the roof of that shed. The proof is not very clear that he did, although some testimony was offered that suggested that Frank Thorne was within his sight. Ralph ordered the boys to get down, and testimony was offered that the boys did start to get down at once. Before they succeeded in doing so, however, Wolfgang picked up a stick, which was two inches in width and about fourteen inches long, and threw it in direction of the boys. There was testimony tending to show it was thrown at one of the two boys in view of Ralph. The stick missed these two boys, but struck Frank Thorne and hit him in his upper thigh, which caused a deep gash. Ralph noticed Frank's injury at once, and he loaded Frank into Ralph's car and began to drive to the local hospital, Deep Valley General Hospital. Wolfgang came along for the drive on the freeway. On the way to the hospital, Frank began to scream at both Ralph and Wolfgang. He was in significant discomfort and, therefore, not his usual polite self. While not admitting any wrongdoing, Ralph expressed regret at Frank's injury. Frank then began to imitate Ralph's stuttering. For his entire life, Ralph has suffered from a speech impediment which causes him to stutter. He is extremely sensitive about his stutter and resents when people draw attention to it. For twenty minutes, Frank berated him about this aspect of his speech, told crude jokes about it, and cruelly ridiculed him. 7 Due to his increased nervousness, Ralph did not notice a silver automobile driving behind his car and attempting to pass it on the right side. Under the applicable motor vehicle code, it is not permitted to pass on the right side of cars on the freeway. Nonetheless, many drivers do so. Unfortunately, just as the automobile attempted to speed pass Ralph's car, Ralph turned around to scream at Frank and to tell him to stop making fun of his stutter and to do so immediately. For some reason, as Ralph started to scream at Frank, his car swerved slightly to the right as the passing car attempted to pass him. An accident ensued in which the driver of the passing car, Suzanne Smith, suffered a broken leg. Suzanne Smith had been at a tavern before getting in her car. The bartender there later explained, "As long as she had money, I kept pouring her drinks." In the emergency room, Dr. Tamar Weisman examined Frank's wounds. Before being called unexpectedly to the hospital, Dr. Weisman had been at a private social gathering. According to the host, Naomi Yang, "As long as she was thirsty, I kept pouring her drinks." The smell of alcohol on Dr. Weisman's breath flooded Frank Thorne with horrible childhood memories of being terrorized and beaten by other boy scouts when he was eleven years old and at Ten Mile River summer camp. The other boy scouts had stolen liquor from the scoutmaster, and Frank suddenly remembered that extremely traumatic event in his life. He felt just as traumatized at the hospital as he had on that terrible day in his past. Assignment (1) Please discuss possible plaintiffs, their claims, and how any party sued is likely to respond. (2) As you consider your answer, do you find that the law treats negligent and intentional tortfeasors differently? Are these differences justified?

R v. C To establish the tort of trespass, there are four elements which must be satisfied. First, the act must have been done intentionally. Second, the defendant must have entered the land in question. Third, the land must be owned by the plaintiff. Fourth, it is trespass whether the defendant himself enters, or a 3rd party compelled by the plaintiff or an object. In the instant case, since the children were playing on the top of the plaintiff's sheds it seems reasonable to surmise that they entered the area intentionally. One need not show that they knew that the land was the plaintiff's. (Dougherty v. Stepp) It is clear that the children did in fact enter the land. It is undisputed that the plaintiff owns the land. The children were themselves on the property. Relief for R in a trespass case would probably be an injunction against further trespassing, although if the fireworks caused any damage while on the property the children would be liable for that damage. R v. T R could attempt to raise a claim for intentional infliction of emotional distress against T. To establish the tort, R would have to show that T engaged in extreme or outrageous conduct intentionally or recklessly which caused him severe emotional distress. The fact that R is extremely sensitive about his stutter could contribute to show that the conduct was extreme or outrageous. However, in order for this to contribute the defendant must have known about this sensitivity. It is unclear based on the fact pattern whether or not T was aware that R was sensitive about his stutter. The duration of the activity can also contribute. T continued to taunt R for twenty minutes, which is a fairly long time for one taunting session. Furthermore, it could be argued that R's discomfort during the twenty minute period could inform T that R is sensitive about his stutter. T did not have to act with the intent to cause the severe emotional harm. The requirement is mere recklessness which could be influenced by the reaction of R to T throughout the 20 minutes. While the initial taunting my not have been reckless, the continuation after it clearly bothered the driver of the car could be argued to be reckless. R would have to show that there was actual damage as a result of the taunting. It is unclear whether R actually suffers severe emotional distress, and the success of the claim could turn on the absence of such evident. R could try to argue that the damages to his and the other car were the result of this emotional distress, making T and joint tortfeasor in the action of S v. R. T v. W T has a battery claim against W. To establish battery one must show that there was (1) intentional (2) contact with another (3) that is offensive, harmful, or unauthorized and (4) not justified by the other's apparent wishes or a privilege. While W apparently did not intend to hit T specifically, his intent to hit one of the boys satisfies the intent requirement for battery. This is commonly referred to as transferred intent. W made contact with T using a stick he threw, which counts for battery, as evinced in Talmage v. Smith. The deep gash which required a trip to the hospital is clear evidence of harm, and there is no evidence to show that T wished to have a stick thrown at him. While W was perhaps insane, insanity is not a defense to intentional torts, unless the defendant is unable to formulate intent at all. Since W was aware the trespassers were children, and threw the stick at them, his dementia does not absolve him of liability. S v. R Negligence In order to make a claim for negligence four elements must be met. First, it must be established that the defendant had a duty to the plaintiff. Second, it must be established that the defendant in fact breached the duty he had towards the plaintiff. Third, it must be established that the breach of the defendant's duty was the proximate cause of the plaintiff's injury. Finally, it must be established that the plaintiff did in fact suffer harm. One has a duty to take reasonable care while driving on the road, and by veering into the lane next to him and striking S's car R breached that duty. As noted above, R could possibly bring T in as a joint tortfeasor because of his contribution to distracting him while driving. By veering into the lane to his right, R caused the accident which directly resulting in the breakage of S's leg. R could counter by arguing that S exhibited negligence per se by driving in the manner that she did. Negligence Per Se Breach of duty can be established when someone violates the law under specific circumstances. In order to impute negligence from breaking the law, the situation must have two characteristics. First, the person who was harmed must be a member of the class which the statute is meant to protect. Second, the statute must protect against the type of harm which occurred. However, some statutes do not provide for a right of action. If the statute does not include immunity against a right of action in the text of the statute, one still must consider whether or not recognizing a right of action would promote the purpose of the legislation. One should also consider whether such a right is consistent with the overall legislative scheme. S violated three separate driving statutes when she passed R. She passed on the right, she was speeding, and she (possibly) was driving under the influence. The question then turns to whether or not the required elements are met to infer negligence from these violations. Other drivers on the road are the class of persons meant to be protected by these laws, which R satisfies. Injuries and vehicular damage are the type of harm meant to be avoided. Contributory Negligence Contributory negligence is conduct on the part of the plaintiff which falls below the standard of conduct to which he should conform for his own protection and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff's harm. Contributory negligence is a complete defense for the defendant where it is still recognized. Negligence per se can establish contributory negligence as well as negligence on the part of a defendant. This means that R would have a complete defense in a jurisdiction with contributory negligence if R can establish that S's negligence per se was a legally contributing cause of the accident. Causation This leaves a question of whether in this case the breaches of the traffic laws caused the accident. While S should not have been passing on the right, she could legally have been there driving at an equal speed to R. S did not appear to be swerving or reacting slowly, which are the dangers of driving drunk. This seems to show that, rather than causing the accident, the negligence on the part of S simply put her at that spot at the time R acted negligently. Based on Berry v. Sugar Notch negligence which puts someone at a place at a certain time is not considered a contributing cause of the damage. Therefore, while R could argue for negligence per say as contributory negligence, the claim is unlikely to succeed. T v. D T could try to raise a claim against D for negligent infliction of emotional distress. The requirements are similar to intentional infliction of emotional distress, but it has a lower intent requirement. To counteract this though, NIED requires immediate physical contact in order to proceed with the tort. In many cases very very slight contact was sufficient to proceed with the action, sometimes as little as dust landing on the eye. Must would turn in the instant case on whether or not the breath and the residual odor of alcohol it contained entering T's nose could be construed to be such a physical harm. If it is construed as such, T would still have to show damages resulting from the trauma he experiences, at that is not covered in the fact pattern. J v. A J has a claim for battery against A. A's action of placing a firecracker in J's shoe before J put it on would satisfy the intent requirements formulated in both Vosburg and Garratt. In Vosburg the court found that the defendant is liable for all damages resulting from unlawful intent. It is not allowed to place explosives within the shoes of other people, and therefore his intent to place the firecracker in the shoe is sufficient to satisfy the tort of battery. In Garratt the court holds that intent is met if the defendant acted with the knowledge that the consequence was substantially certain to result. While the fact pattern is silent as to whether or not the firecracker was it, the natural function of a firecracker is to explode. Thus the severe burns are a substantially certain result, and furthermore the boys had been detonating firecrackers previously, so the boy knew what firecrackers did. Based upon this, A's actions would likely satisfy both constructions of intent for battery. The harm and contact are clear in this case, in that the firecracker exploded (contact) and J suffered burns (harm). (2) Tortfeasors in intentional torts and in negligence are inevitably going to be treated differently. In the modern world, for example, tortfeasors in negligence cases can be partially excused of liability if the plaintiff acted negligently (under a scheme of comparative negligence). In intentional torts there is no such defense. If the defendant intentionally harms the plaintiff, they must pay for the full cost of that harm, regardless of how negligent the plaintiff was in arriving at that situation. This difference, however, seems justified. Negligence concerns the world of accidents. Intentional tort law concerns the world of willful acts. It is a common understanding that accidents happen. No one can, nor is expected to, exercise an impossibly high standard of care. Negligence law allows people to be partially forgiven for their own accidents by analyzing whether or not they acted with due care, and whether the other people involved acted with due care. In intentional torts such considerations of the negligence of others ought not factor in, because the culpability of the defendant resides in his intent to cause contact or harm to the plaintiff. Even if the plaintiff was drunkenly stumbling about in the middle of the street, it does not mitigate the culpability of someone who then walks into the street and strikes the drunkard with a baseball bat. The intentional tortfeasor takes the world as it is, with all the people in it who act negligently, and then makes an active decision to do some harm or engage in an activity which could result in harm. The actions of others are only important insofar as they factor into defenses such as selfdefense and necessity. These defenses are allowed because they mitigate the culpability with which the defendant is charged. Hitting someone for fear of being his is not a bad act in the same way that hitting someone for the fun of it is. It is interesting to note that if the law were to switch to a strict liability scheme that the treatment of negligent and intentional tortfeasors would be much more similar. Because in a strict liability regime there is no excuse for harm caused, the failure on the part of others to assess risks in their actions would not factor in to the damages the defendant would have to pay out. It is possible that in a strict liability scheme those who cause harm to others by accident could be held even more responsible than intentional tortfeasors. While the intentional tortfeasor has access to defenses such as a necessity and self defense, by definition someone violating a strict liability statute has no such option. If harm results, they must pay for it. Epstein argues that strict liability works better than negligence in situations in which people know each other, but that negligence works better when strangers are involved. Currently we favor a general regime of negligence, but perhaps a hybrid system such as Epstein suggest would be superior. But it is important to note Epstein's view is largely based on efficieny; it does seem like, at an intuitive level, holding a negligent person more responsible than an intentional actor would be unjust.

In conjunction with its School of Education, Linden State University ("LSU") operates an elementary school (Woodrow Wilson Elementary), a middle school (Jefferson Middle School), and a high school (Kennedy High School). The pupils who attend the school are children of employees (or students) of LSU, or else are residents of Springfield, the town in which LSU is located. Instead of being operated as part of a local school district, Wilson, Jefferson and Kennedy are funded through the Linden Department of Education. George and Sarah Dornfried are both employed by LSU. In 2008 their son Jerry was 14 years old, just entering the freshman class at Kennedy, when he expressed an interest in trying out for the football team. Although somewhat slight of stature, Jerry had played soccer for many years and was told by his soccer coach that he might be successful as a placekicker. Jerry approached Vincent Capodice, the coach of the football team, and was told that for the first year he would be a backup, and might not play at any of the games (barring an injury to their primary kicker), but he should train with the team. Jerry began attending practices and almost immediately was subjected to what he alleges was "incessant bullying, harassment, intimidation, threats of violence, and actual violence." At first Jerry tried to get along and assumed that he would eventually be accepted as a team member. Eventually he sought out the school's guidance counselor, Doris Chiechetti, who spoke to the principal, Andrew Synott, who spoke to the athletic director, Terence Day, who spoke to Capodice. Capodice assured Jerry that he would speak to Jerry's teammates, but also told Jerry that football was a "tough" sport, and by enduring some of the normal teasing he would earn his teammates' respect. Approximately a week later Jerry was subjected to worse treatment by the other members of the team. In addition to the previous acts of bullying and harassment, several football players began referring to Jerry as a "sissy." Jerry again sought out Chiechetti, who again reported the situation to Synott, who in turn spoke to Day and again to Capodice. Capodice called George Dornfried to discuss the situation. Capodice told George that his players had denied treating Jerry any differently from other members of the team; that Capodice had never observed any bullying or harassment, and questioned whether or not Jerry was "serious" about football. After a tearful exchange between George and Sarah and their son Jerry, the decision was reached that Jerry would continue on the team for another two weeks, and if things didn't improve he would quit. Before the two weeks were up, Jerry had a psychological breakdown. Formerly a good student with a normal social life, Jerry refused to return to Kennedy, and George and Sarah were forced to enroll him in a private school twenty miles away. Jerry and his parents have now filed a claim against the State of Linden. You work as a lawyer in the Tort Claims Division of the Attorney General's office. Another lawyer in the office was assigned the task of assessing the value of the medical treatment, potential future wage loss claim, and the pain and suffering. Her estimate is $500,000. You have been assigned the task of evaluating the potential liability that the State faces. Please prepare such a memo

The State's potential liability depends upon (1) the interpretation of the state sovereign immunity statute; (2) whether a duty of care was owed; and (3) the application of comparative fault principles. I.Sovereign Immunity Statute Because this is a claim against the State, the first point is to determine the scope of the State's waiver of immunity. (Absent a waiver of sovereign immunity, the plaintiff's claim would be barred.) Here the statute establishes a preliminary review by a Claims Commissioner, appointed by the Governor. If the Claims Commissioner deems that it is "just and equitable" to do so (LRS § 4- 160(a)), the Claims Commissioner may permit the claimaint to sue the State. In making this determination, the standard is whether or not the state, if it were a private person, could be held liable. It seems likely that a Claims Commissioner would permit JD to sue in state court. From the time the claim is filed with the Claims Commissioner, any statute of limitation is tolled; but from the time the Claims Commissioner authorizes suit in state court no more than one year can elapse (LRS § 4-160(d)). DeWolf, Torts, Fall 2010, Sample Answer Page 2 Once in court, the claim against the State would be tried to a judge without a jury. Moreover, the rights and liability of the State are to be "coextensive with and shall equal the rights and liability of a private person in like circumstances." LRS § 4-160(c). Thus, the burden on JD is to show that, if a private person committed the same acts as the state employees in this situation, that private person would be held liable.1 II. Duty of Care Since no State employee actually caused the injury to JD, but at worst allowed it to occur, the State would dispute that it owed JD a duty of care to prevent this injury. JD would probably argue that a duty of care could be predicated on two grounds: first, JD could argue that the state had a "special relationship" -- in fact, two such relationships -- that created a duty of care. One was that the state operated the school where the alleged bullies ("Bs")2 inflicted the harm that JD claims. Because of that relationship to the "perpetrators," the school had a duty to use reasonable care to see that they didn't cause harm to others. JD could also argue that there was a special relationship between himself and the school, because he was a student there and thus they owed him a duty to ensure a reasonably safe environment. (In this respect the case is like the Tarasoff case in which the school had a relationship to both the perpetrator and the victim. Alternatively, JD might argue that in offering the services of the guidance counselor the school induced justifiable reliance that JD would be protected. On the other hand, the State might credibly argue that the promises made to JD were limited in scope: for example, Capodice only said he would talk to the players, which he did. a. Malpractice Claim v. Guidance Counselor? It would be a stretch, but JD might make a claim that the guidance counselor (Chiechetti) committed malpractice when she simply informed the principal of the problem and expected him to take care of it. The key question is whether or not guidance counselors are licensed, and whether they are considered "health care providers." The latter is dubious, but if this label applied, then it would provide a basis for suit. If this does turn out to be a malpractice case, there is a particular statute, LRS § 4-160(b), that requires a "Certificate of good faith" (essentially, expert testimony that alleges malpractice) to support a claim for malpractice. On the other hand, if such a certificate is attached to the claim, the Commissioner must permit the claim to go forward. 1. There is no reference in the statute to anything like the discretionary function exemption. Even if there were some parallel principle adopted by case law (for example, in stating that private persons don't engage in "policymaking" and therefore governmental policymaking is excluded by the definition of the state's liability), it seems unlikely that Linden could claim that the failure to provide reasonable counseling (or protection) to JD was a policy decision. The only place where this might become relevant is if JD argued that the school's failure to adopt an anti-harassment policy was negligent. 2. It's not clear whether or not significant bullying took place. JD certainly alleges that it did, and the facts may bear him out. On the other hand, we don't want to admit this until further investigation has been conducted. But for simplicity's sake I will simply refer to them as the "Bs" rather than alleged bullies. DeWolf, Torts, Fall 2010, Sample Answer Page 3 Even if the "health care" classification was inapplicable, JD might argue that the school engaged in "educational malpractice" by failing to address the situation in a more effective way. But this would be a weak claim. b. Failure to Restrain Players JD could more plausibly argue that the school, through its employees, was negligent in its response to alleged bullying. It would strengthen JD's case if he could point to anti-harassment policies already adopted by the school. Alternatively, JD might simply point to the ineffectual way in which the school responded to allegations of bullying. Although there are a number of hurdles for JD to overcome, including the issue of causation, a judge might find that the school's lax policies were responsible for JD's emotional injury. III. Comparative Fault There are two aspects of comparative fault here. One is the question of whether or not a judge would assign any contributory fault to JD. Perhaps JD failed to use reasonable care to avoid the bullying, or even deliberately provoked it. Since the case is tried to a judge rather than a jury, I would worry less about a backlash from "blaming the victim," but it's still a risky move. In Linden contributory negligence only reduces the claim proportionate to the degree of contributory fault, unless the plaintiff's fault is greater than that of the defendant(s) (unlikely). A second aspect of comparative fault is the effect of assigning fault to the Bs. On the one hand, it seems intuitively obvious that the damages occurred primarily because of harm deliberately inflicted by the Bs. Shouldn't they bear the brunt of the damages? In support of that is Linden's statute, which adopts several liability as the default mode, making each defendant liable only for its proportionate share (except for reallocation rules3 ). On the other hand, there is a glitch: the statute explciitly forbids apportionment of fault between negligent defendants and defendants who are strictly liable or who are liable for intentional, wanton or reckless acts. (LRS § 52057h(o)). Thus, unless the Bs' conduct could be classified as a merely negligent (which seems highly unlikely), the State could not ascribe fault to the Bs and then attempt to limit liability to its proportionate share. If the State is liable for JD's emotional injury, it appears it will be liable for all of it.

Herman Blankenship was employed, at times, by CRT Tree Service and Sun & Seed Landscaping. On July 12, 2010, Blankenship had just returned to the Sun & Seed Landscaping premises after having returned a stump grinding machine to a rental company. Simms Goodman, the owner of CRT Tree Service, had leased a Model 1568 telescopic hydraulic boom crane, manufactured by Manitex, Inc., approximately two weeks earlier. The crane was being stored on the premises of Sun & Seed as a favor by Sun & Seed's owner, Gregory Naploszek. The main boom on the crane has three telescoping sections. When fully deployed, the three sections on the main boom measure 68 feet long. The main boom may be extended up to forty additional feet using an optional jib extension. According to the manufacturer, the jib extension is mounted to the side of the main boom on a hinge. Robert Doyle, an employee of CRT Tree Service, had already set up a boom crane with the jib extension by the time Blankenship arrived. Doyle was not trained on the operation of the crane, and was unaware of whether there were operating manuals with the crane or whether there was an aluminum load charter capacity chart warning sign on the crane. Goodman and Greg Naploszek were on the scene for a period of time with Doyle and Blankenship. Goodman had been summoned there by radio so as to watch Doyle and others engage in bungee bouncing.1 In fact, while the crane was set up that afternoon, Goodman had hoisted Greg Naploszek and his son up into the air with the crane without bouncing so they could look around from the elevated vantage point. Following this, Goodman and Naploszek joked with Doyle about Doyle getting up in the air and bungee bouncing from the crane, but the two business owners decided to leave the area. Before Goodman and the Naploszeks left the scene, Goodman and Gregory Naploszek claim that they ordered Doyle and Blankenship to break down the equipment, pack up everything and go home. Doyle recalls things differently. He has stated that Goodman said "don't be all day with this stuff, you know, finish up. That was it.", and that Gregory Naploszek told him to "don't take all day." Doyle specifically stated that he was not told to "put this stuff away right now." According to Blankenship, before leaving the scene, Goodman told him to "take it easy." Blankenship interpreted this "take it easy" instruction to mean "not so much bouncing ... Just a little bit of bouncing I guess. He didn't want any bouncing too high." With Doyle at the crane controls, the employers gone from the scene, and the crane still deployed to its maximum length of 108 feet using the optional jib extension, Blankenship climbed 1. "Bungee bouncing is a variation of the activity of bungee jumping. Rather than jumping off of a high structure, the `bouncer' wears a harness that is attached with a bungee cord to the wire cable of a crane and is hoisted off the ground. An operator then takes up and lets out the cable to create a bouncing motion for the participant." into a harness. This harness was attached to a forty foot length of blue and white bungee cord, which in turn was secured to the crane's steel wire rope at the lower load block. The lower load block assembly consists of a steel hook, which is attached to a short length of wire cable, which is in turn attached to a heavy steel ball (a.k.a. the "overhaul" ball), which is further attached to the wire rope used by the crane. The distance from the tip of the crane to the ground measured 105 feet. Doyle then retracted the wire rope, thereby hoisting Blankenship into the air. While Blankenship was suspended in mid-air, Doyle spasmodically raised and lowered the wire rope so as to cause Blankenship to bounce up and down in the air. According to Blankenship, he bounced "above the jib."2 This bouncing caused the wire rope to derail from the deep groove in the pulley (a.k.a. jib sheave), which was mounted between the two steel side plates of the upper load block assembly at the extension jib point, and slide down to the end of the main boom, a.k.a. the boom point, where it caught hold. According to the police supplementary report, this derailment action caused approximately 25 feet of wire rope to now be immediately available to the acrobatic Blankenship. With this extra length of wire rope now in play, Blankenship plummeted to the ground where he struck a pile of logs. Inspection of the crane subsequent to the accident revealed several anomalies in the mechanical operation of the machine that day. First, two steel wire rope retaining pins, which would normally be located running through the two steel side plates of the upper load block at the jib point and whose safety function is to prevent the lower load block from riding up and over the sheave and thereby cause the wire rope to derail, were missing. These retaining pins "must be removed in order to place wire rope inside" the groove of the sheave. These retaining pins were allegedly given to Goodman by Doyle after the accident: According to Goodman, Doyle had put the pins inside the flatbed truck. However, Doyle denies ever having these pins. Second, the anti-two block3 safety device on the jib point was not activated by the operator at the time of the accident. You work at a personal injury firm that represents Blankenship. Your firm has hired a crane engineer, who is preparing a report on the crane. Another lawyer has estimated that 2. Blankenship also admitted to one previous episode involving bungee jumping, approximately nine months prior to this accident, when, despite being scared by the idea of dropping off a bridge and being hurt, he was, at his own insistence, dropped by a friend from a bridge at Badger Mills Ski Resort. 3. "Two-blocking," according to the crane manufacturer, occurs when the crane "operator raises the lower load block so far that it crashes into the upper load block." The crane manufacturer further describes the use of this "anti-two block" safety device "Manitex equips all of its cranes with an `anti-two block' safety to halt the upward travel of the lower load block in order to prevent two-blocking. A weighted chain holds a limit switch mounted on the upper load block in the ON position. The wire rope travels freely inside a hole in the weight. If the operator raises the lower load block too high, the overhaul ball will lift the weight, taking the tension off the chain, and causing the limit switch to spring into the OFF position. This actuates an interlock system to sound a loud warning horn and to prevent the winch from raising the lower load block any higher. "The jib and main boom have their own limit switches for the anti-two block device. Thus, when switching between the jib and the main boom, the operator must move the weighted chain to the applicable limit switch. * * * " Blankenship's damages, including lost wages, medical expenses, and pain and suffering, would be assessed by a jury at $2 million. The senior partner in the firm has asked for an analysis in preparation for making a settlement demand against Manitex. Please prepare an analysis of the strengths and weaknesses of the case against Manitex.

The assignment is to evaluate the strengths and weaknesses of the case against the crane manufacturer, Manitex ("M"). The primary issues are (1) what is the standard for establishing liability? (2) What is the effect of contributory fault? and (3) What is the effect of the fault of other parties? I. Product Liability Claim v. Manitex A product manufacturer is liable for injuries caused by a defect in the product. In this case Blankenship ("B") would try to establish that the crane had a manufacturing, design, or warning defect. The tests for each are slightly different. Manufacturing Defect. If the crane was not made according to the specifications, and that anomaly caused the injury, it would result in strict liability for M. There is some dispute in the facts about the presence of "retaining pins" that would have held the wire rope in place, but this appears to be a result of operator error rather than any defect in the crane itself. Design Defect. If the design of the crane made it unreasonably dangerous, M could be held liable. Jurisdictions differ in the definition of a design defect: some use a "strict liability" test, which looks at the balance of risk and utility in light of what is known today about the product. Other jurisdictions use a true negligence test, which requires proof that a reasonable manufacturer, given what could reasonably have been known about the product at the time, would have used the design in question. Ordinarily the difference is only significant where there is additional knowledge since the time of design that would make the "strict liability" test easier to meet than a true negligence test. However, because of the comparative fault statute (discussed below), it would be important to know whether or not this jurisdiction classifies product liability for design (or warning) defects as a form of strict liability. In any event, our engineering expert would have to persuade the jury that there was a better design for this crane that would have prevented this injury from occurring. Even if our expert is of the opinion that there was a better way to design the crane, M will undoubtedly have its own experts who will dispute our expert's opinion. Warning Defect. The crane might also be defective in lacking adequate warning of the product's dangers. There may be other types of accidents that occur when the "retaining pins" are missing, and B might be able to show that a reasonable person would have used a more effective warning. The information we have suggests there are other accidents that result from operator error. Depending upon how widespread this use of a crane might be, our expert might be able to show that a warning about the danger of this type of accident would be inexpensive compared to the risk of such accidents occuring. Like design defects, warning defects are subject to the same jurisdictional variation in terms of whether they are described as a form of strict liability or simple negligence. Again, it would make a big difference in terms of the application of the comparative fault statute if warning claims were governed by one rather than the other. In addition to showing that the warning was inadequate, B would also have to show that, if it had been adequate, it would have changed either B's or Doyle's behavior. Since Doyle didn't read the instruction manual, it might be difficult to show that he would have behaved any differently even if there had been a warning of some kind. Alternatively, B might argue that a warning to him would have changed his behavior--but that seems implausible. II. Contributory Fault B's claim would be subject to two defenses based upon contributory fault. The first is that B was contributorily negligent; that is, he failed to use reasonable care for his own safety. A reasonable person would probably not engage in this kind of activity in the absence of a more DeWolf, Torts, Fall 2010, Sample Answer Page 5 experienced crane operator who had tested the equipment previously. More particularly, B admits he was specifically warned not to bounce too high; but he did so anyway. The Linden comparative fault statute provides that a plaintiff's claim is barred if the plaintiff's fault is greater than the combined fault of all of the defendants (including any who have been released by a pretrial settlement).4 As is suggested below, part of the difficulty is in determining who would be included in the apportionment of comparative fault, thus making it difficult to predict whether B would be barred from recovery. A second form of contributory fault is assumption of risk. Some forms of assumption of risk result in a complete bar to recovery. When a plaintiff voluntarily assumes a known risk, such as a baseball patron who chooses to sit where she is struck by a line drive foul ball, then in most jurisdictions a negligence claim (e.g., claiming that a reasonable person would have erected a screen or net to prevent such injuries) is barred. However, Linden has a statute providing that assumption of risk is abolished. Before getting too confident about that language, it must be read in context: "The legal doctrines of last clear chance and assumption of risk in actions to which this section is applicable are abolished." M might argue that assumption of risk is abolished only if it simply a restatement of contributory negligence, whereas it remains as a complete defense in the baseball seat type of assumption of risk is based upon relieving the defendant of a duty of care. Even if that were true, however, it hardly seems to be the case that B voluntarily relieved M of a duty of care in order to enhance the experience. Instead, it seems as though in this case assumption of risk would simply be a factor in determining B's contributory negligence.5 But even so, M would argue persuasively that B was more negligent than the combined fault of the defendants and by the terms of § 52- 572h(b) should be barred from recovery. III. Multiple Tortfeasor Liability Even if M were found liable for a defect in the crane, it does not mean that they would be liable for all of the damages. In particular, Linden follows a rule that holds defendants liable only for their proportionate share of the liability. M would undoubtedly argue that, in addition to the contributory fault of B, there is significant fault on the part of other defendants, including Doyle, the owner of the property, and the lessor of the crane. M would argue that these other defendants should be assigned share(s) of fault and therefore any judgment against M -- even if B could establish liability against M -- would be modest. However, we have good counterarguments. The first is that some of the defendants may be found to be B's employer(s), and might be excluded from the apportionment of comparative fault. It states in the facts that B was "employed, at times" by CRT Tree Service ("CRT") and by Sun & Seed ("S&S"). Of course, even if B were an employee of either CRT or S&S it is debatable whether or not B was actually employed at the time that he engaged in bungee jumping. But since the owner of 4. LRS § 52-572h(b) addresses contributory negligence, and while § 52-572h(o) excludes strict liability from comparison with parties found liable for negligence, it explicitly permits a comparison of contributory negligence and strict liability pursuant to § 52-572h(b). 5. The facts of this case were actually drawn from a case that used a different comparative fault statute; in the jurisdiction (Connecticut) that adopted this statute, the courts reached precisely this conclusion about the statute: they found that assumption of risk was no longer a bar to recovery, but remained as a factor in determining comparative fault. DeWolf, Torts, Fall 2010, Sample Answer Page 6 CRT had hoisted the owner of S&S up in the air on the crane, and since there seemed to be permission to continue with this activity, it might turn out that this could fall within employer immunity.6 Many jurisdictions exclude immune employers from the apportionment of fault. Thus, even if Doyle, CRT or S&S's negligence were found to be proximate cause(s) of the injury, their fault might be excluded from any comparison with M. The second caveat is that there is a specific statutory prohibition against apportioning fault between negligent defendants and defendants who are strictly liable. As noted above, the jurisdictional treatment of product liability as a form of strict liability (as distinguished from treating it as governed by a true negligence standard) would wind up mattering quite a bit because of the way that the statute excludes strict liability from the apportionment of fault. In M's favor, if employer immunity does not apply, and if M is held liable on the basis of negligence rather than strict liability, then M might assert that S&S should be a defendant on the basis of premises liability. However, this would be a weak argument, because if B's relationship to S&S was not business related (and that would seem to be necessary in order to avoid employer immunity), then B's status on the property would be that of a licensee rather than an invitee, and as a licensee B could only expect to be warned of hidden perils of which the owner was aware. There is no evidence that Naploszek (the owner) knew anything about the crane's dangers that were hidden from B. Thus, a premises liability claim would seem like a dead end for M (as well as for us). M's best case (and B's worst case regarding comparative fault) is if there is no employment relationship and Doyle is simply a defendant on his own. If Doyle is assigned a significant portion of the fault, and is unable to pay a judgment (which seems likely), and if apportionment of fault is permitted between M and Doyle, then a reallocation provision (LRS § 52-572h(g)) kicks in which could increase M's liability from just its proportionate share to something greater.7 6. The scope of this question was to evaluate the strengths and weaknesses of B's case against M. If it were found that this accident occurred while B was in the employ of either CRT or S&S, it would mean that either CRT or S&S (conceivably both) would be immune from tort liability. Determination of the application of worker's comp. would require additional factual investigation and agency determination. 7. There is a complicated formula that permits greater reallocation of uncollectible economic damages, and more limited reallocation of non-economic damages.

Romeo likes to drive his souped-up Trans Am around the parking lot. He arrives at school. Speeds across the parking lot, and screeches to a halt in a parking space. Unfortunately, the parking lot is icy; the rear end of the car skids out of control, jumps the curb, and knocks Thibault to the ground. Has Romeo battered him?

Romeo's act was negligent. A battery requires an intent to cause a harmful or offensive contact. While Romeo certainly did cause harmful contact, he did not intend to. He did intentionally drive his car in the way he did. However, he did not act with the purpose of hitting Thibault or with knowledge that he was substantially certain to do so (Always distinguish between the "Intent to Act" vs. the "Intent to Harm/Offend")

"If the plaintiff cannot prove a claim for negligence, she may be able to recover damages for Smith's death under the applicable wrongful death statute." Can you articulate the misconception that underlies the statement?

This statement is based on the premise that there is a distinct "cause of action for wrongful death" apart from traditional torts live plaintiffs can recover for. Wrongful death statutes typically allow recovery if the decedent would have had a right to recover if she had lived.

MULTIPLE CHOICE QUESTIONS 1. Joe Jessup was a professional football player. He enjoyed going to nightclubs and drinking alcohol. On one evening he was coming out of a bar when Freddie Fan grabbed him by the arm and said, "Aren't you the guy who dropped the pass in last Sunday's game?" Joe responded by taking a swing at Freddie, but he was so drunk that he missed him by a foot. Which of the following is true? (a)Joe could recover from Freddie for battery, but only if he could show that he suffered actual harm; (b)Joe could recover from Freddie for assault, even if he could not establish actual harm; (c)Freddie could recover for assault from Joe, even if he knew that Joe was unable to land the punch; (d)Freddie could recover for assault from Joe, if Joe intended to punch him in the face. 3. Geraldine Gipp was a security guard at a large suburban mall. She saw Sam Sophomore, who was wearing a "letterman's" jacket displaying the symbols of a high school that had been her nemesis as a young woman. As Sam was walking toward the door leading to the parking lot, Geraldine called out to Sam, saying in a loud voice, "And just where do you think you're going?" Sam froze in fear. Could Sam recover damages from Geraldine for false imprisonment? (a)Yes, because Sam could reasonably believe that Geraldine would use force if he continued. (b) Yes, if Sam reasonably believed that Geraldine was armed; (c) No, unless Geraldine intended to confine Sam; (d)No, if Sam did not suffer actual damage from the confinement. DeWolf, Torts Final, December 15, 2010 Page 3 of 15 .

1. (A) is incorrect, because even harm to one's dignity is compensable; (B) is incorrect for the same reason as (A); (C) is incorrect, because one must experience apprehension of imminent harmful or offensive contact in order to recover for assault; (D) is correct, because the intent to punch him in the face would transfer to the tort of assault.

Blake decided to surprise Matilda with a bundle of 100 balloons. Unbeknownst to Blake, Matilda is deathly afraid of balloons. Matilda sues Blake for assault. Is Blake liable? What if Blake knew beforehand that Matilda had a sever fear of balloons?

1. The test for assault sets out that the inflicting actor must have Intent to cause Apprehension, and that this Apprehension be of a reasonable person's standard. Blake exhibited no sign of intending to cause Matilda apprehension. Blake was completely unaware that Matilda had this fear, therefore there is no possibility that he intended to cause her this apprehension. 2. If Blake knew of her apprehension beforehand, he would be liable for assault because his actions would constitute a clear intent to cause apprehension in Matilda. (This may be hard to argue when considering the "imminence" requirement)

2. Mike was jealous of Barbara because of her superior academic performance. When she wasn't looking, Mike put a plastic replica of a snake in her backpack. Barbara was getting ready for class when she pulled out her books and the plastic snake fell out, brushing her hands before it fell to the floor. She screamed in terror. Mike laughed. Which of the following is true? (a)Barbara could recover damages from Mike for battery but only if a person of normal sensibility would be offended by the contact. (b)Barbara could recover damages from Mike for assault, if she was put in fear of imminent harm; (c)Barbara could not recover for the intentional infliction of emotional distress if she did not suffer severe emotional damages. (d) All of the above.

2. (A) is partially correct, because a battery can consist of harm to one's dignity, and an offensive touching did occur; (B) is partially correct; (C) is partially correct, because severe emotional distress is one of the elements of the tort of outrage; thus, (D) is correct

3. Geraldine Gipp was a security guard at a large suburban mall. She saw Sam Sophomore, who was wearing a "letterman's" jacket displaying the symbols of a high school that had been her nemesis as a young woman. As Sam was walking toward the door leading to the parking lot, Geraldine called out to Sam, saying in a loud voice, "And just where do you think you're going?" Sam froze in fear. Could Sam recover damages from Geraldine for false imprisonment? (a)Yes, because Sam could reasonably believe that Geraldine would use force if he continued. (b) Yes, if Sam reasonably believed that Geraldine was armed; (c) No, unless Geraldine intended to confine Sam; (d)No, if Sam did not suffer actual damage from the confinement. DeWolf, Torts Final, December 15, 2010 Page 3 of 15 .

3. (A) is incorrect, because it does not require that G intended to imprison Sam; (B) is incorrect, for the same reason; (C) is correct; (D) is incorrect, because one can recover for false imprisonment so long as one is aware of the confinement

4. Eleanor Eastwick was running to catch a bus when she saw two men carrying a couch backing out of a doorway. She could have stopped but tried to squeeze between them and the lamppost so that she wouldn't miss her bus. She almost made it, but her foot caught Tom Treach, who dropped the couch on his toe. Could Treach recover damages from Eastwick? (a)Yes, because her lack of reasonable care in assessing whether she could run past the men would constitute battery; (b) Yes, if she knew that she was going to collide with the men; (c) No, if she did not intend to cause any harm; (d) No, if the men could have easily avoided her

4. (A) is incorrect, because lack of reasonable care alone is insufficient to support a claim of battery; (B) is correct, because knowledge of a substantial certainty is the equivalent of an intent to cause harm; (C) is incorrect, because intent to cause the contact is sufficient, even if one does not intend to cause harm thereby; (D) is incorrect, because it is not a defense to an intentional tort that the plaintiff could have avoided the injury.

(Hand-Rule) Costard, owner of a large estate, throws an all-day party for a few hundred of his close friends. During the day, some of his guests wander through the woods and come to an abandoned quarry on the property which has filled up with water. They opt for a dip. Trinculo is injured when he dives into the quarry and hits his head on a submerged promontory only three feet under the surface. He sues Costard for negligence. Costard argues that he was not negligent, since, though the injury was foreseeable, filling in the quarry was prohibitively expensive. In Hand formula terms, the burden was too great given the relatively low risk of injury to a wandering entrant on the property, which is normally not open to outsiders. What is the problem with this argument?

Costard has tried to take charge of the negligence analysis here by looking at one possible means of dealing with the risk. But other, less burdensome "B's" exist here. Costard could have fenced the quarry, or posted signs warning of the danger of rocks beneath the surface. The burden of taking these alternative precautions is much lower, and the balance of risk against cost of prevention is a great deal closer on these facts. This is not to say that Trinculo will necessarily win, but that it is important for his counsel not to let Costard frame the negligence issue only in terms of a prohibitively expensive precaution, since other means of prevention are possible.

Romeo is a track athlete. At the first meet of the season, he is nosed out by Mercutio. He goes over to Mercutio, slaps him heartily on the back, and says "great run, Mercutio!" Mercutio, who, it turns out, is very sensitive about being touched by strangers, reacts with rage at the contact. Is Romeo liable for battery?

Good intentions may not negate a battery if the elements of the tort are established. However, the elements are not met in this circumstance. Romeo has no reason to believe that his slap will be offensive to a reasonable person under these circumstances. The requirement places the burden on the party with unusual sensibilities to inform people of his susceptibility.

(Using Harper/James negligence as but-for cause of Gray's auto accident injuries) Gray is taken to the hospital, where Dr. Green negligent sets his arm. Consequently, it must be re-broken a week later and set again, causing Gray considerable pain and medical expense. Which actors are the "but-for" causes of the injuries to Gray?

Harper and James are both "but-for" causes of Gray's initial injury, and of his additional injuries due to Green's malpractice. Gray would not have been in the hospital to begin with but-for their negligent acts. Dr. Green, however, is not the cause of the accident. He is, the but-for cause of the injuries from resetting the arm. He may be liable for the enhanced injuries but not those resulting from the initial event

Gray is driving his delivery truck on the interstate when it suffers a freak blowout and jackknifes to a halt across the three lanes of traffic. Harper, another driver who is tuning the radio instead of looking where his car is going, doesn't see the truck until too late and applies his brakes hard, swerving into the next lane. James, a third driver who is combing his hair in the little mirror on the visor fails to brake and hits Harper, sending Harper's car careening into Gray's truck, causing injuries to Gray. Who is liable to Gray?

Harper's and James's negligence are both "but-for" causes of the accident, because each contributed to causing Gray's injuries. But-for Harper's sharp stop, which sent him into James's lane, James would not have hit him. But-for James's failure to watch the road, he would have avoided hitting Harper and knocking his car into Gray's truck. Each contributed to causing a single, indivisible injury to Gray, and each is liable for the entire injury.

(Risks and Reasonableness) The Leadville RR Co. is putting in a new rail line. The line will cross Elm St. The RR's planners have to decide between a grade crossing (where the street simply crosses the tracks) and an overpass. Based on long experiences they predict that, even with gates and flashing lights, there will be (statistically speaking, anyway) two accidents at a grade crossing on a street like this every ten years. If they build an overpass for the street, the presence of the rail line will not cause any accidents. However, it will cost $12mil. for the overpass, compared to $20,000 to install a grade crossing. The planners opt for the grade crossing. Feste is seriously injured when he fails to see the gate coming down and drives across teh track in the path of an approaching train. Is the RR negligent?

In this case, the RR could foresee injuries if it chose a grade crossing, but went ahead anyway, based on the great expense of eliminating the risk and small number of injuries likely to be caused by the grade-crossing option. This may well be a reasonable decision, even though the RR knows, on an actuarial basis, that its decision will cause injuries to others. The RR is not required to eliminate all risk of injury from its operations, only to conduct it with reasonable care. If the planners drew a reasonable balance here between risk and the expense eliminating it, the decision to use a grade crossing will not be deemed negligent.

Romeo considers himself irresitible. He is accustomed to flirting with girls at will. He comes up to Ophelia, a new student, on her first day in school and, by way of introduction, gives her a hug. She sues him for battery. Is he liable?

The question is not whether Romeo finds his conduct offensive. Nor is it whether Romeo thinks that Ophelia will find it offensive. Romeo must think about whether the reasonable person in Ophelia's circumstances would find it offensive. Offensiveness is an objective test -- Whether the contact would be offensive to the reasonable person in the victim's circumstances.

Killey decides to ski. He arrives at the ski area, buys a small lift ticket that attaches to the lapel of his jacket, and starts to ski. While riding the chairlift up to the trails, he is inured when the chair separates from the drive cable and falls to the ground. He threatens to sue Big Mt., its lawyer points out the following language printed on the back of the lift ticket: "The purchaser assumes all risks of injury from any source whatever, arising in the course of the acitivies authorized by this ticket, whether due to the negligence of the ski operator or third persons, or any other cause" Is Killey barred by Express AoR?

Parties can assume risks, including the risk of another's negligence, by an express agreement to do so. And the language in this release clause is certainly broad enough to cover the accident Killey suffered. If Killey has accepted the release clause, he would be barred. However, Courts are wary of applying the doctrine of express assumption unless the party clearly chose to accept the risks that were being allocated to her. Killey will argue that he did not assume the risk of injury because he never knowingly agreed to the terms of the release.

When Romeo gets out of the car to apologize, Thibault yells, "what the hell?" and gives him a push. Romeo slips on a patch of ice, hits his head on one of the mag wheels of his Trans Am, and suffers a serious concussion. Is Thibault liable for Romeo's injuries?

Thibault has intentionally inflicted a contact that Romeo will find offensive, and perhaps harmful as well, and he is liable to him for battery. Although Thibault did not have the intent to cause Romeo's concussion, specifically, he did intend to push him. He is liable for all resulting injuries, even unexpected ones. (Intentional Torts do not calculate "foreseeable harm;" Defendant is more culpable)

Falstaff heads home after heavy drinking. He is proceeding along at 28 mph, just below the speed limit, within his traffic lane, when a pickup truck, going the other way, makes a sharp stop in the opposite lane. Moth, a boy of five, is leaning over the side of the bed of the pickup and is thrown out immediately in front of Falstaff's left front wheel. Falstaff runs him down and is sued for negligence. Leaving aside possible contributory negligence of Moth, would Falstaff be liable?

The tort of negligence has three other elements, and one of those is causation. Here, the facts suggest Falstaff was not negligent in the way he handled the car, even though he was drunk. He was in his lane, driving below the speed limit. Because Moth fell right in front of the car, there was nothing he could have done to avoid hitting him; even if he had been sober, the accident would have happened the same way. Liability for negligence turns not just on being negligent, but upon negligent conduct causing the injury.

(Res Ipsa Loquitor, Yes or No?) While entering a highway, Daley is injured when a stray Volkswagen engine suddenly appears in the roadway in front of him, causing him to crash. There is no sign of an ailing Volkswagen to be found in the area. Daley sues his insurance carrier, under a policy provision allowing recovery from the insurer for injuries negligently caused by unidentified motorist.

Yes. When an engine is found in the middle of an expressway, it probably didn't walk there. The facts strongly suggest that the engine must have fallen from a truck. Clearly, that shouldn't happen if the hauler has exercised reasonable care in securing the load.

Reik decides to go boating. She goes down to the local marina, rents a rowboat from Lake Rentals, and takes her family out in the boat. An hour after they get out onto the lake, the wind comes up, the boat capsizes , and Reik is drowned. Her estate sues Lake Rentals for wrongful death. The complaint alleges that Lake was negligent in failing to supply adequate life vests, in renting a boat that was not seaworthy for the lake, and in failing to warn her that strong winds were expected that afternoon. a. Which theory is likely to be challenged on the no-duty grounds? b. How do you think it will be resolved?

a. The estate's third theory raises the most difficult duty question. Lake Rentals engaged in risk-creating conduct by renting the boat to Reik: It would clearly create unreasonable risks if it rented her a boat that wasn't seaworthy, or that lacked adequate life vests. However, it is more of a stretch to argue that they assumed a duty to warn her about the weather. b. While Lake Rentals clearly engaged in risk-creating conduct by renting the boat to Reik, there must be some limits to the duty it has assumed. Liability is denied, not for lack of proximate cause, but because the judicial system is unwilling to impose a duty to prevent the harm

Marat is shaken up but not injured when the care she is riding in, driven by her husband De Sade, collides with a car negligently driven by Robespierre. De Sade suffers gruesome injuries and is in severe pain. Marat brings suit against Robespierre for the distress she suffers from seeing her husband seriously injured in the accident. a. Would Marat recover in a under the impact rule? b. Would Marat recover in a state that applies the zone-of-danger rule? c. Would Marat recover in a state that applies the Bystander Liability (Dillon Rule)?

a. The impact rule is based on the premise that physical contact corroborates the likelihood of actual emotional distress. That premise seems justified where the distress is "parasitic" to the impact itself, that is where the distress is suffered due to the accident and the injury. Likely not a great claim to make in this circ. b. Marat was in the zone of danger in this case; that is, she was herself at risk of physical injury from the defendant's conduct. c. Marat satisfies all three requirements of the Dillon Rule (Bystander Liability). She was present at the time of the accident, witnessed the accident first-hand, and is a close relative.

Ellis leaves his house to walk to the train station. He notices a tree limb in the road opposite his neighbor's driveway. He continues on to catch the train. Neighbor is injured when her car hits the limb as she backs out of driveway. Neighbor sues Ellis for "failure to warn" her of the danger. a. Should this case be analyzed under the no-duty principle or the risk-creation principle?

a. This case should be analyzed under the no-duty principle. Ellis has no duty to protect or aid another. The exception of this principle does not apply because Ellis has not created a risk.

Verdi and Vivaldi are seriously injured when Strauss drops a tuba from a scaffold above the stage. Verdi survives for a year in constant pain and is unable to work. He then dies of his injuries. Vivaldi suffers a broken arm, is out of work for three months, and suffers permanent reduction of function in the arm. a. What causes of action would Verdi and Vivaldi have against Strauss at common law? b. If the Maine survival statute applied: "No personal action or cause of action is lost by the death of either party, but the same survives for and against the personal representative of the deceased..." What damages could Verdi's estate recover in the survival action? c. If Verdi's executor sought damages under the survival statute, could he also sue for wrongful death? d. What type of damages might Vivaldi be able to recover for? e. Assume that Verdi suffers a broken hip from the accident and is laid up in bed. Six months later, he dies of an unrelated stroke, without having brought any suit against Strauss for his tuba injury. What actions may his executor or administrator bring against Strauss, if any? f. Could Jane Verdi, his widow, bring an action against Strauss for loss of consortium under the survival statute?

a.) This example illustrates the effects of the common law abatement rule. Under that rule, Vivaldi would recover in full for his injuries, since he lived, and is personally able to bring his "personal" cause of action. (Common Law bars wrongful death actions) However, at Common Law, Verdi's claim abated at his death unless he obtained judgment against Strauss before he died. His estate had no right to sue for his predeath losses b.) Verdi's claim would survive his death and could be enforced by the representative of his estate. BUT the survival action is for Verdi's Pre-Death losses from the tort. It is not a claim for wrongful death, it is for losses Verdi suffered before death that he could have recovered himself had he lived. c.) Yes. The two actions address distinct injuries, and may benefit different parties. The survival action compensates Verdi's estate for his pre-death damages, while the Wrongful Death action compensates the survivors for their losses as a result of his death. d.) Assuming Vivaldi can make out a prima facie negligence case, he could recover compensatory damages for his loss of work, as well as future earnings, and medical expenses incurred due to the injury. e. Verdi did have a claim against Strauss for his injuries in the accident, but he died of an unrelated cause before bringing suit to enforce it. Under a survival statute the right survives to his estate, regardless of the cause of his death. The tortfeasor should compensate the victim's estate for the damages the victim suffered before dying. It is worth noting that the claim must still be under the SOL. A wrongful death action could not be made because Strauss can not be held liable for damages he did not cause f. Verdi's widow does have a claim against Strauss for loss of consortium. BUT the survival statute would not apply in this instance. Survival statutes allow a decedent's estate to bring a claim the Decedent could have brought before death. Consortium would be Jane's personal claim.

Ellis leaves his house to walk to the train station. He notices a tree limb in the road opposite his neighbor's driveway. He continues on to catch the train. Neighbor is injured when her car hits the limb as she backs out of driveway. Neighbor sues Ellis for "failure to warn" her of the danger. b. Will Ellis' motion to dismiss be granted?

b. Ellis is not his neighbor's keeper. He is under no legal duty to aid another simply because she may need it. Ellis' motion shall be granted.