Tuesday, October 25, 2011

Torts Exam Outline Example - How to get an A on a Torts Exam

This is an example of a Torts law school outline I made to prepare for an exam. My grade in this course was very high, amongst the top of my class (6/68). This outline is designed to help you think of how to write a law school exam. A torts exam is different than many other types of law school exams because there are so many players and issues, and it is difficult to cover everything (almost impossible, really). 

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Characters: Dina (child) Mary (mother), Paul (neighbor), Sam (Paul’s infant son)
Issues: transfer of intent, vicarious liability, assault, battery, intentional tort, unintentional tort.

Dina is a child who committed the intentional torts of assault and battery on Paul. “A single act may be both an assault and a battery. Battery is defined as follows.
An actor is subject to liability to another for battery if:
a) He 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 contact
b) a harmful contact with the person of the other directly or indirectly results.
Dina intended to throw the rock at Paul (the harmful or offensive contact) and the harmful contact resulted. Although Dina did not intend for Paul to dive to the street and hit his head, she intended a harmful contact. “Intent” is used to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.” “Intent is not, however, limited to consequences that are desired.” “It is not essential that the precise injury which was done be the one intended.”

Although there was a battery, there was also an Assault. Assault is defined as follows:
a) He 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 contact
b) the other is thereby put in such imminent apprehension.

Paul was put in apprehension as evidenced by the diving. “An assault constitutes of the touching of the mind, if not of the body.” The threat in this case was imminent, resulting in Paul’s swerving.
Sam would have a claim for battery against Dina. Even though Dina did not intend to hit Sam, she did intend to hit Paul, and the result was Sam’s injury. In regards to transfer of intent The Restatement (second) provides:
(1) If an act is done with the intention of inflicting upon another an offensive but not a harmful bodily contact, or of putting another in apprehension of either a harmful or offensive bodily contact, and such act causes a bodily contact to the other, the actor is liable to the other for a battery although the act was not done with the intention of bringing about the resulting bodily harm.
(2) If an act is done with the intention of affecting a third person in the manner stated in subsection (1), but causes a harmful bodily contact to another, the actor is liable to such other as though he intended so to affect him.
“When one intends an assault, then, if bodily injury results to someone other than the person whom the actor intended to put in apprehension of harm, it is a battery actionable by the injured person.” Dina intended to assault Paul, but injury not only resulted to Paul but to Sam as well. In such a case, Sam is also able to recover in an action against Dina.
Mary, Dina’s mother may be vicariously responsible for the actions of her daughter [oftentimes parents are not liable for the torts of their children, but sometimes they are in limited ways]. When looking at the reasonable person standard, it could be inferred that a reasonable person would take steps to ensure that their child’s schizophrenia was under control. In the case at hand, Mary was aware of her daughter’s dangerous propensities, was told that she verbally threatened Paul, and Mary replied “Dina has sometimes made threats to others...I assure you this will not happen again.” Even though she asked Dina if she was taking her medication, a reasonable person could be found to have also took steps to ensure that medication was indeed being taken, especially since she assured Paul it would not happen again.
Looking at the Learned Hand formula we can further infer the duty that existed between Mary and Dina. There was a burden, which was of a small cost (the action of giving the daughter medication that was already prescribed) compared to the probability of loss and the magnitude of loss. Mary was aware that her daughter had threatened people in the past, including Paul. Even though she stated “I do not think she will to hurt you” she did assure Paul it would not happen again. Paul has the right to be free from apprehension of any kind, even if no monetary damages result. However, the nature of schizophrenia is well known to be volatile and random in nature. As such there is the risk of damages resulting. It could be inferred that Mary had a duty to give her daughter medication and make sure she was taking it instead of only taking her word on the matter, and by not doing so she breached that duty.
Looking at causation one can apply the “but-for” test to this situation. “In most situations, a defendant’s action is defined as a ‘cause-in-fact’ of a plaintiff’s harm if the plaintiff’s harm would not have occurred if the defendant had acted properly. Put another way, the question is whether the plaintiff would have been free from harm “but for” (in the absence of) the defendant’s negligent conduct.” Applied to the situation before us: ‘but-for Mary not giving medication to Dina, Paul and Sam were both injured as a result of Dina’s tortious act.’

[Damages omitted.]
Dina is a child, and if she claims that her tortious act of assault/battery is not intentional but as a result of her illness, she will present a type of defense. Under the age of majority, therefore her actions will be held to the reasonable person standard of a child. According to the restatement:
If the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable person of like age, intelligence, and experience under like circumstances.
Not only is Dina a child, but one who suffers from a mental illness. “When conduct by a person with a mental disability needs to be evaluated in a tort case, typical tort law evaluates that conduct by comparing it with how a reasonable person without that mental disability would act.”
She could also raise the issue of self-defense, believing that Paul was out to get her. However, this would probably be a lack of a defense, as it was an irrational fear.
Mary could raise very weak defenses of consent, assumption of risk, and comparative fault.

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