Tuesday, October 25, 2011

Torts Exam Example, Law School

This is an example of an exam that I typed out for Torts. Although it's not the greatest, it is an example that I followed closely. I achieved one of the highest grades in the course by this exam. I would advise you, however, if you are to do something similar to spend more time fleshing out the law, so to speak. If I had done this I would have probably had the highest score in the class.
John Smith

Utopia Sewage Company
Smith would argue that USC is liable for his injuries. Smith would argue that a reasonable person would have not left a sewer lid open when stepping away from it. He would also state that they were professionals and had a duty in that respect. He would also say that the burden of putting the cover back on the open sewer was far less than the probability of loss and the magnitude of loss that would occur if someone walked into it. He would also impose vicarious liability against the employer for the acts of the employees.
Smith would state that the sewer lid being left open was the direct cause of him falling into the sewer. Using the but-for test, he would be able to prove “But for the lid being left off of the sewer, smith would have not fallen in.” This is similar to the case of Cay v. State of Louisiana in which the higher railing was found to have prevented the fall that took place.
Smith would not only have to prove basic cause, but also proximate cause. He could use the foreseeability test which asks what the foreseeability of harm to the plaintiff is. Smith would argue that it was pretty foreseeable that there would be great harm when falling into a manhole. In regard to the degree of certainty that plaintiff suffered the injury, he would argue that the injury resulting from the fall would have had a high degree of certainty. He would state that there was a close connection b/t the defendant’s actions and the harm, as they had the duty to keep the manhole covered.
USC’s defenses would be that he was on his cell phone while walking. They would state that, akin to Poyner v. Loftus, where the blind man was not paying attention to where he was going and fell, that Smith was not acting reasonable. Smith isn’t blind, but it was found in Poyner that the reasonable care required of even a blind person requires him to take precautions. USC would argue that Smith was acting unreasonable and fell.
USC would argue that Smith had a high contributory fault.
Smith would argue for damages saying that he is entitled to compensatory damages for the fall, and possible punitive damages if the conduct was reckless. USC would argue against recklessness, showing that their act, if anything, was mere negligence and for reckless is wanton misconduct and gross negligence. USC would further argue against recklessness that in Sandler v. Commonwealth, most cases involve uses of motor vehicles, cases in which the driver himself ‘rode with death’ and in one case where a child was shocked by a pole left out on a path commonly used as children. Since the manhole was on private property, USC would probably not be held for recklessness. Also, the manhole is much different than a electrically charged pole, USC would argue, in that a pole could hide whereas anyone paying attention where they were going would probably see the open manhole.
USC would probably be found to be negligent, with a high degree of fault being given to Smith due to not acting as a reasonable person and not paying attention to where he was going.

Smith may also argue that Jones is liable, but would probably not get past Duty. Jones would argue that Smith was trespassing, but Smith would rebut by stating that he was a mere trespasser and that there are certain duties given to owners of land. He would argue, that as in Ryals v. United States Steel, that the duty owned of a landowner is to a mere trespasser is not intentionally or recklessly injure the trespasser. Jones would argue that Jones did not intentionally injure Smith, nor did he Recklessly injure Smith, as in the standards of recklessness stated in Sandler v. Commonwealth.
If Smith could prove recklessness (which would be very unlikely), he could prove breach of duty by Jones not taking care to have the manhole covered. He might also argue that the landowner had a duty to warn, and that a reasonable person would warn. He could also use the Learned Hand Test and state that the act of warning would have been a far less burden than the high magnitude of injury and possibly death that could take place if a person fell in, and the probability that it would take place, which, when multiplied with the magnitude of injury, would be much higher than the burden, which would only cost a small amount (a warning sign is inexpensive) and take very little time and effort to put up.
Smith would be able to prove causation by using the but for test, stating “But for the land owner not taking the care to make sure the manhole was covered, the injury would have not occurred.” the Foreseeability test or directness test could be used as well.
Jones major arguments would be a high contributory fault and that he was talking on his phone, as well as that he was a mere trespasser, and that if anything, Jones was negligent and there is no duty to not be negligent against a mere trespasser unless it is a child, and Smith was not a child. (If Smith was a child, he would get past duty).

Smith would have a cause of action against Utopia Hospital and Dr. Grant. Smith would argue that Dr. Grant was an agent of UH and that UH is vicariously liable. He would also argue that the Dr. and UH both had a duty to act like a reasonable person with higher knowledge and skill. Smith will argue that as in Cervelli v. Graves, that existence of knowledge, skill, or even intelligence superior to that of an ordinary person will demand conduct consistent with. Smith will show that a doctor’s duty is to check the charts and did not, and is therefore in breach of that duty. He can use the Learned Hand Test to show that the burden of checking the charts is very small compared to the results. He can also state that there is industry custom among doctors to check charts.
UH would defend itself by stating that there was a wavier that Smith signed. However, as in Turnbough v. Ladner, it would probably be stated that Smith never intended to waive his right to recover from UH for failing to follow even the most basic industry standards. The Turnbough case was very similar in this regard, as the scuba diving plaintiff signed a waiver and the instructor didn’t follow the standards of safety in which caused the resulting injury. The waiver was not looked favorably by the court. In many cases they are not. In Wagenblast v. Odessa School District, it was found that certain entities should not use waivers. The hospital is engaged in performing service of a great importance to the public, which is a necessity for some, willing to perform the service for any member of the public, UH possesses an advantage in bargaining power, most likely does not offer a person to pay additional fees to obtain protection against negligence, and the person being placed under the control of the hospital, Smith in this case, is subject to the risk or carelessness of UH and it’s agents (the Dr.). Therefore, the waiver would probably not be upheld by the court.
UH could also state that Smith failed to mitigate damages by not accepting treatment. It will probably be found that Smith is somewhat at fault for this.

Amy and Max
As Benjamin was not in the car at the time of the accident, there would be no issues involving him.
Amy and Max would have a cause of action against Rogers. Amy would state that Rogers was careless and not acting as a reasonable person when running across the street, perhaps in violation of a statute. Amy would state that she should have at least took the time to look for traffic before crossing. Rogers may try to invoke the sudden emergency doctrine, however, it would likely fail due to Rogers herself not being a part of the emergency. Rogers may state that she felt she had a duty to help Smith, but Amy will state that there is no duty to be a good Samaritan unless there is a special relationship or if Rogers was at fault somehow. Rogers was not at fault, as she had no part in him falling in the sewer. It is unclear if she is a doctor and if some statute exists that she is to render aid.
Amy will be able to prove causation by applying “but for Rogers running in the street, there would have not been a traffic accident.” She would also be able to apply the substantial factor test used in Taylor v. Jackson. In that case, a car pile up resulted from one car stopping. It was held that ‘where it is evident that the influence of the actor’s negligence is still a substantial factor, mere lapse of time, no matter how long, is not sufficient to prevent it from being the legal cause of the other harm.” In this case, however, it was not a two hour period. It was more immediate. Although it was not Rogers that caused the direct harm, it was her negligence that put the events in motion, and Rogers will probably be found to have fault.

Amy and Max both might not have a cause of action against Fressle. Fressle will try to invoke the sudden emergency doctrine. She will state that although she had a duty to drive and act as a reasonable person, she was confronted with a sudden emergency that deprived her of time to contemplate the best reaction, and she cannot be held to the same standard of care and accuracy of choice as one who has time to deliberate. However, it could also be said, that as in Stewart v. Motts, the care required is always reasonable care and that standard never varies. All that varies is the care that is reasonable under the circumstances.
Amy and Max may argue that Fressle was speeding at the time, and is a violation of a statute. Fressle might state that this case is similar to Lyons v. Midnight Sun, in which the driver was speeding at the time, but the speed itself was not the cause of the accident. Fressle might argue that his speed was not the proximate cause of the accident, that the act of Rogers was. It was stated that “with the element of causation lacking, even the most egregious negligence cannot result in liability.”

C: Damages
Damages for Smith would be most likely compensatory but possibly punitive against USC. For punitive he would have to prove that Jones acted very recklessly and was deserving of punishment that would deter him and others in acting in such a manner. I doubt that he would be able to get punitive, but at the same time, do not think he would get past duty.

Amy might be able to get loss of consortium for Max, as such damages are often given to a husband-wife where one dies. There might also be a pecuniary loss award for the economic contributions lost by the death of Max.
If there was a survival statute, Amy would have a cause of action that survived Max’s death. If there is a wrongful death statute, a new cause of action will be created for Amy in favor of her (the survivor), for the benefit she would have received had Max not died.
There may be a Per Diem argument for her lost pelvis. In this argument, the years that she will have the injury are divided by a certain amount of time (day/hour) and multiplied by life expectancy.
Amy would probably be able to get compensatory damages against Rogers, and possibly Fressle, if it is found that she was somehow liable. There would be no punitive damages as there was no intentional or reckless behavior involved.

Essay II

Alex will argue that AAA is liable for her ‘injuries’, the nightmares and emotional distress. She will also argue that they are liable for her suffering grades and for the fact that she may drop out of college. She will state that the acts caused by AAA were not negligent, but intentional.

Assault & Battery

Alex will argue an assault. An actor is subject to liability to another for assault if the person acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and the other is thereby put in such imminent apprehension. In order to succeed on an assault charge, Alex will have to prove both elements. She will state that there was an intentional act. While AAA may argue that they didn’t intend to cause the harm that did result, Alex will state, as in Polmatier v. Russ, that intent is not limited to the consequences which are desired. Alex will also state that she was in imminent apprehension of the contact, that being the fire. She will argue that AAA purposely acted to put her in such apprehension and that it was immediate. In Cullison v. Medley, it was stated that an assault constitutes a touching of the mind if not the body. Like in Cullison, the apprehension was real and immediate. Like in Cullison, she was not physically hurt, but there were mental damages that took place. Unlike the case of Brower v. Ackerley, the apprehension was imminent. She was not told that she would be put in a situation with a fire later. She was not told that she might be in danger later. Instead she was put in immediate apprehension of events that were taking place around her.

Alex will also argue a battery. An actor is subject to liability to another for battery if they act intending to cause a harmful or offensive contact with the person of the other or a third person, and a harmful or offensive contact with the person of the other directly or indirectly results. In Leichtman v. WLW Jacor, a non-smoking advocate was contacted by smoke particles that were offensive to him. It was said that tort liability is not necessarily concerned with a hostile intent or a desire to do any harm. It is the intent to bring about a result which will invade the interests of another in a way that the law forbids. Contact that is offensive to a reasonable sense of personal dignity is an offensive contact. Alex can easily state that she lost her dignity by her immediate fear shown, her grades suffering, the mental trauma that has been a result. Therefore, she may have a Battery case.

AAA will state that Alex consented. The defense of consent arises when a person voluntarily relinquishes the right to be free from harmful or offensive contact or imminent apprehension of such contact. In McQuiggan v. Boy Scouts, the plaintiff gave consent by participating in the game. His consent was implied when he joined in. AAA also gave Alex the opportunity to leave, but she stayed, knowing that some type of initiation would take place. Alex did not take the opportunity leave, but chose to stay.

Alex could state that unlike the Boy Scouts case, she didn’t know what exactly she was getting into. She could argue that there was not a consent to be harmed, but consent to participate in the acts that she believed would take place, such as the eating of dog food, listening to awful music, and do menial tasks.

Alex will probably have a case for assault and battery, but AAA may win in that she consented. AAA could prove that many activities usually take place during initiation. However, the court may find that AAA went too far in this sense.

If Alex wins, she will be entitled to compensatory damages for her medical expenses. And possibly nominal damages for the smoke as well as the possibility of punitive damages to make an example out of AAA as well as to punish.

Alex may also have a claim against the school or the owner of the sorority house if AAA was not the owner, or if the school was somehow involved. There may be a vicarious liability action against the school if it is a supporter of AAA.


The statute imposes a 49%-51%

In the common law, contributory negligence was a bar to recovery. In the modern law, however, there is a comparative fault system in which the plaintiff can often recover if he is somewhat found to be at fault. There are three types of ways in which this is done. 50-50, 49-51, and pure.

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