TORTS -- FINAL EXAMINATION
*Essay Questions Only
Professor Mantel
Fall 2011
Essay #1 (120 points)
Coach Dusky is the football coach at Tenn State University, the state university of
Tennsylvania. Having led his team to several national championships, Coach Dusky is revered
by many. He is also a pedophile. In the summer of 2001, Coach Dusky molested 10-year old
Victor after luring him into the showers in the Tenn State football team’s locker room. Coach
Dusky believed the locker room would be vacant that day, as it was normally kept locked on
Sundays and only Coach Dusky and the university janitors had keys to the locker room.
However, Coach Dusky’s molestation of Victor was witnessed by Joe Janitor. Joe reported what
he saw to Allen Director, Tenn State’s Athletic Director.
Allen questioned Coach Dusky about the incident, and Coach Dusky admitted to having
molested Victor. Coach Dusky promised Allen that he would never again molest a child, and
Allen believed him. Nevertheless, Allen prohibited Coach Dusky from bringing children onto
Tenn State’s campus. Allen also asked Coach Dusky to turn in his key to the football locker
room, but the coach never did so. Allen failed to report the incident to law enforcement
authorities or child protective services, as required under Tennsylvania state law. The criminal
law in this jurisdiction provides as follows:
“Any person who, in the course of employment, occupation or practice of a profession,
has reasonable cause to suspect that a child is a victim of child abuse shall report their
suspicions to law enforcement authorities or child protective services. Any violation of
this provision is punishable as a misdemeanor.”
A few months later, Coach Dusky broke his promise to never again molest a child. In
early 2002, Coach Dusky again lured a 10-year old boy, Paul, into the showers in the football
team’s locker room. This time, however, a member of the football team walked in before Coach
Dusky molested Paul. Although Coach Dusky never touched Paul, the incident left Paul
emotionally scarred. Once a promising student with many friends, Paul became depressed and
socially withdrawn. Three months after the locker room incident, Paul committed suicide.
Coach Dusky retired in 2002 shortly after his attempted molestation of Paul. In the
summer of 2011, an enterprising journalist doing a story on the legendary coach discovered that
Coach Dusky was a pedophile. Her article reported the incidents involving Victor (who was now
almost 21) and Paul. Both Victor’s and Paul’s parents, who through no fault of their own had
previously been unaware of Coach Dusky’s molestation/attempted molestation of their sons,
suffered shock and grief upon reading the article.
A civil statute in this jurisdiction provides as follows:
“(a) The following actions survive the death of the party injured: tort
actions to recover damages from an injury to a person and actions to recover
damages for an injury to real or personal property.
“(b) Whenever the death of a person shall be caused by wrongful act or
negligence, and the act or negligence is such as would have entitled the party
injured, if death had not ensued, to maintain an action and recover damages in
respect thereof, then the person who or entity which would have been liable if
death had not ensued, shall be liable for damages incurred by the wife or husband
and child or children of the person whose death shall have been so caused,
notwithstanding the death of the person injured.
“(c) No action for damages for injury or death against a defendant under
paragraphs (a) or (b) shall be brought more than two (2) years after the date on
which the claimant knew or through the use of reasonable diligence should have
known of the existence of the injury or death for which damages are sought,
whichever date occurs first, but in no event shall such action be brought more
than ten (10) years after the date on which occurred the act or omission alleged in
such action to have been the cause of such injury or death.”
Tnsyl. Stat. § 123.
Please discuss the merits of all legal claims that Victor, Paul’s estate, Victor’s parents,
and Paul’s parents may have against Tenn State and/or Coach Dusky.
WORD OF CAUTION: This question is obviously based on the recent Penn State scandal. In
answering the question, base your answer on the facts provided above. Do not incorporate into
your answer any additional or modified facts that you have heard regarding the actual Penn
State scandal.
Essay #2 (45 points)
Toilet Seat Co. (“TSC”) produces and manufactures toilet seats for businesses and
homes. Although nowadays most toilet seat manufacturers use a type of thermoplastic called
polystyrene, TSC is proud to use a unique material that, unlike polystyrene, requires an assembly
line method of production. The first step in TSC’s manufacturing process requires a TSC
employee to mix wood fiber pulp with melamine (a compound used in making plastics) and pack
the wood pulp/melamine mixture tightly and evenly into a toilet seat mold. After the wood and
melamine have fused together and hardened, the next worker places the new seat on a conveyor
rack. The seat is moved along the conveyor to the finish area. At the finish area, another worker
coats each seat with glass fiber reinforced polyester, a necessary part of the process which
ensures that the seat can withstand the weight of a 250-pound person. The seats then move along
the assembly line to be drilled, sanded, and painted with two coats of primer and enamel paint to
produce a smooth, hard, plastic-like surface.
Ernest, an employee of TSC, is assigned to work in the finish area. Sadly, recently he
and his wife have had marital problems, and as a result, Ernest has been distracted at work. One
day, Ernest was particularly distracted and failed to coat several seats with the glass fiber
reinforced polyester before sending them along the assembly line to be drilled, sanded, and
painted.
One of the uncoated toilet seats ends up in Susie Sickley’s home. Susie, the singlemother of three young boys, has been ill for several weeks, and Susie’s sister Mary has brought
dinner by for Susie and her family. When Mary arrives at Susie’s home, she finds the place a
mess. Having to use the restroom very badly, Mary enters the only bathroom in the house and
finds the toilet seat in a disgusting condition. Seeing only a couple of squares of toilet paper, no
cleaning supplies in sight, and in dire need of relieving herself, Mary decides to stand on the
toilet seat in order to empty her bladder. Soon after she manages to perch herself atop the TSC
toilet seat, the seat breaks and Mary falls, breaking her hip and an arm. It is later determined that
the toilet seat was not coated with the glass fiber reinforced polyester.
Mary (all 5’4”, 125 pounds of her) visits you, a local attorney, to ascertain whether she
might be able to sue TSC in tort. This jurisdiction has adopted the following statute:
Contributory fault does not bar recovery in an action by any person to recover damages
for death or injury to person or property unless the fault was as great as the combined
fault of all other persons who contribute to the injury, but any damages allowed must be
diminished in proportion to the amount of contributing fault attributable to the person
recovering.
Please advise Mary whether she might be able to bring a viable tort action against TSC.
[And yes, this question is based on an actual case!]
Essay #3 (30 points)
Courts in the state of Zexas currently hold a manufacturer strictly liable in tort for all
physical harms caused by a manufacturing defect in one of the manufacturer’s product. The
Zexas state legislature will soon be voting on proposed legislation that would require courts to
apply a negligence standard in determining a manufacturer’s liability for products with a
manufacturing defect. (In other words, under the proposed legislation manufacturers would no
longer be strictly liable for manufacturing defects, but would be liable only if they were
negligent.) You are an aide to State Senator Smith. She has asked you to draft a memo advising
her on the merits of the proposed legislation.
MODEL ANSWERS
(Top 2 scoring answers for each essay question for Fall 2011 final exam)
Question #1- Model Answer A
Victor v. Dusky
Claim #1 - Battery
There are two elements required to establish a claim for battery. First, the intent element, which
requires both intent to contact and intent to harm or offend. This can be met by showing actual intent
or substantial certainty harm or offense would result. A defendant has substantial certainty harm or
offense would result if a reasonable person would be harmed or offended.
In this case, the intent element is probably met. Though it is debatable whether or not he had actual
purpose to cause harm, Dusky likely had substantial certainty that harm would result because most
people would be harmed by molestation (since it is, by definition, harmful). The court in Synder found
that a surgeon who grabbed a woman's head and shoved it near an orifice had substantial certainty of
offense, and in this case, the act is much more severe.
The other half of the intent element, intent to contact, is stipulated - he had actual purpose to molest
(touch) Victor.
The second element of battery is the result element. This requires contact and harm or offense to result.
Here, Victor was contacted when he was molested. Presumably, Victor was also physically harmed by
the molestation. Of course, he can also recover pain and suffering damages as an element of his claim,
and probably punitive damages because the crime was morally repugnant that it should be punished.
Dusky might argue "consent" as a defense because perhaps Victor never objected by yelling "Stop!" This
defense is not likely to be successful for two reasons. First, as a minor, courts have found that Victor
lacked the capacity to consent. Second, consent is measured by what a reasonable person in the
defendant's place would have thought, and no reasonable person in the defendant's place would have
thought a young boy might consent to molestation.
Therefore, Dusky is probably liable for battery.
Claim #2 - Negligence
Here, it is not entirely claim what harm Victor suffered. If he suffered an actual harm, it seems obvious
that Dusky breached the duty of reasonable care he owed for the same reasons he battered the
defendant.
Claim #3 - Intentional Infliction of Emotional Distress
Assuming Victor suffered some very severe emotional distress, he can probably recover. The analysis
here will be discussed in Paul's claim, because the two claims do not substantially differ (except Victor
did not kill himself, but that just would reduce damages, not bar them completely).
Victor v. Tenn State
Claim #1 - Janitor (Vicarious Liability)
The first claim Victor has against Tenn State involves the Janitor's negligence in just standing by and
watching, without intervening to stop the battery.
Duty: Generally, a person owes no duty to take affirmative steps to protect another from harm
(nonfeasance). This also applies to protect from third party tortfeasors - generally, there is no duty to
take affirmative steps to protect from them. In this case, the Janitor probably had no special relationship
with Dusky. The special relationship that arguably exists between employer and employee does not
apply here because Joe was just a lowly janitor. Even though they were fellow employee's, a court is
unlikely to every employee has a duty to protect against every other employee's actions, because doing
so would hugely increase liability and in doing so subvert the nonfeasance rule.
This also means that there was no special relationship for the purposes of protecting from the third
party (no special relationship). Moreover, courts have refused to impose a duty to protect from a third
party when the defendant (Joe) cannot control that party. Here, Joe had no ability to control Dusky
because Dusky was the head football coach, several ranks above him.
Rest of P.F. Case: Probably satisfied if there was a duty, but since there was not, he is unlikely to recover.
Vicarious Liability: If the court for some reason does find Joe liable, Tenn State might be vicariously
liable. The general rule for vicarious liability is that there must be a principal-agent relationship. Here,
that is met because Joe was an employee. Second, the agent must be acting in the scope of his
employment. This test is generally applied very loosely - as long as Joe was doing something related to
his employment, a court will probably find his employer vicariously liable. In this case, Joe was working
during regular hours and probably cleaning the room. Therefore, he passes the scope of employment
test, and the employer would be vicariously liable (only if Joe is).
Claim #2 - Negligent Failure to Supervise
Duty: A court will probably find that Tenn State owed Victor a duty of reasonable care. While a court
could plausibly find the only duty owed was to avoid reckless/wanton conduct (because Victor was a
licensee when on the land), that is unlikely because Victor's interactions were entirely with one of their
employee's, rather than the land.
Generally speaking, one owes no duty to protect from third parties. Courts have found an exception
when several circumstances are met. First, there must be a special relationship between the defendant
and the tortfeasor. Here, there probably is such a special relationship. Though the court has previously
rejected holding business partners have this duty in Iseberg, this case is distinguishable because it
involved an employer hiring someone. The employer put Dusky in his position of power and paid him a
regular salary. Therefore, a court will probably find a special relationship.
The second requirement of the "special relationship with 3rd party" exception is that the D could have
exercised control over the 3rd party. In this case, it seems like they could have - they could have
monitored him more carefully or installed security cameras, or posted security guards, or taken away his
key, or fired him to take him out of his position of power. The Dudley court found a halfway house could
take these steps to exercise control, and so it will probably find a university could too. Therefore, a court
will probably find the requisite level of control.
Finally, the harm has to have been foreseeable. Generally, intentional torts of employee's are not
considered foreseeable. Yet, courts have found an exception when the intentional tort is at least
somewhat common or incident to the job. In this case, other coaches have molested their players and
people in power position have molested others. Though this is not probable, it is at least foreseeable
because it happened with some regularity. Therefore, a court will probably find that the University had a
duty to protect people from Dusky. That duty was one of reasonable care for harms arising out of the
scope of that special relationship.
Breach: To establish breach, the plaintiff must show both that 1) harm was foreseeable and 2) a
reasonable person would have taken steps to avoid that harm.
In Victor's case, there will probably be serious problems showing harm was foreseeable. Dusky was a
national coach and a well-respected member of the community. He had never (as far as the University
knew) acted this way in the past. A reasonable person would not foresee that Dusky specifically (as
opposed to coaches in general) would commit harm because he had no record of doing so in the past,
and no evidence suggested it.
Moreover, a reasonable person probably would not have taken steps to avoid harm. Generally, a
reasonable person acts to avoid harm when the safety benefits of doing so outweigh (probability of
harm x magnitude) the burden of acting. As just discussed, the probability of harm was low. Moreover,
the burden of constantly monitoring a football coach or installing security cameras would have been
very high. It could scare the coach off or cause him to quit or feel like his rights were being violated.
Therefore, given the low probability of harm, a reasonable person would probably not have supervised
Dusky in Victor's case.
Cause-In-Fact: Of course, had they supervised Dusky, perhaps they could have stopped the harm. If, but
for their failure to do so the harm would have been stopped, the University is a cause in fact.
Prox Cause: It makes little sense to discuss this since there was no breach.
Claim #3 - Vicarious Liability for Dusky
Vicarious Liability: The general rules for vicarious liability were discussed above in the context of Joe
Janitor. In this case, the principal-agent relationship existed because he was an employee of the
university. In this case, the University could be vicariously liable for Dusky's battery against Victor.
Therefore, the relevant question will be if he was acting in the scope of his employment. However, there
is an extra wrinkle here because this was an intentional tort. In terms of the scope of employment test,
the university will argue he was not acting in the scope of his employment because he was on the
grounds at off hours and was doing something expressly barred by the university (molestation). Because
he could not have conceivably been doing anything even related to his employment and was not acting
during work hours, a court might agree that the defendant is not vicariously liable.
Moreover, generally speaking, an employer is not liable for the intentional torts of their employees. The
intentional tort is both outside the scope of employment and not usually sufficiently foreseeable to hold
the employer liable. As such, it would simply not be fair to hold Tenn State liable.
These arguments, though somewhat persuasive, are likely to fall on deaf ears. First, he was acting within
the scope of his employment because he used his reputation and power as Penn State's employee to
bring them to their campus to a place that he alone had access to. The scope of employment test is very
lose; as long as a defendant is acting in a way related to the employment, courts will often stretch the
doctrine to find the employer liable. Here, it makes sense in terms of the goals of vicarious liability. The
court will want to encourage employers to try and take extreme measures to ensure this will not happen
again.
As far as the intentional tort goes, a court will probably find them vicariously liable. In Fahrendorff, the
court found an employer liable when one of their counselors abused his position of power to exploit
someone. The defense might try to distinguish this case because Farhrendorff involved a counselor
abusing a patient. However, a court is likely to reject this argument. The reasoning of the Fahrendorff
court was that people in positions of power can use that power to commit intentional torts. That case
involved someone who wielded a great amount of power, as does this case. Moreover, the intentional
tort was foreseeable (if not improbable) because people in positions of power can abuse it for harm, as
discussed above. Though the specific intentional tort was not foreseeable (as discussed in the breach
section), the Fahrendorff court seemed to focus on the type of intentional tort for purposes of vicarious
liability. Therefore, because this type of tort (abusing power for battery) was foreseeable, the university
will be held vicariously liable.
Victor's Parents v. Dusky
Victor's parents have two possible claims against the university, both relating to the infliction of
emotional distress.
Claim #1 - Intentional Infliction E.D.
The first element of this claim is that the D must have intended to cause severe emotional harm to the
plaintiff. The plaintiffs in this case are the parents, so the Dusky must have had to intended to cause
severe emotional harm to them (as opposed to Victor). Intent for this type of claim can be established
either by recklessness or by actual intent (substantial certainty).
Here, the easiest way to satisfy this claim is to pursue the "recklessness" attack. Recklessness is when
the D showed indifference to the P's risk of emotional harm. That is, the D knows the risk of harm is
obvious and the burden of acting differently is slight. In this case, it is obvious that a child's parents will
be distressed upon hearing their child was molested. The D must have been substantially certain this
would result (after all, children have parents), even if it never crossed his mind while he was engaged in
the act. Therefore, a court will probably find this element is satisfied. For the same reason, the cause-infact element is satisfied.
The next element is that the D's conduct must have been extreme and outrageous with regards to the
plaintiff. In this case, that should be obvious - molesting someone's child is extreme and outrageous
because parents care about their children. Society cannot tolerate this molestation conduct.
The next element is the P suffered emotional harm. Here, the level of emotional harm is not discussed.
Assuming it was severe, because the P was a family member of the victim, physical manifestation is not
required in most jurisdictions.
The real wrinkle of this claim is that the parents were not near the intentional tort at the time it
occurred; instead, they found out about it much later. While some jurisdictions could impose a rule like
this (as most courts do when it comes to negligent infliction of emotional distress), it is unlikely they will
do so in this context. If the D's conduct truly was so extreme and outrageous, and it was utterly reckless,
a court is not likely to find "nearness" or "witnessing" is important because the goal of the law is to
punish someone for causing emotional distress. The nearness / witnessing requirements exist only to
place limits on foreseeability, but here, the fact that the tort was intentional (see recklessness discussion
above) makes it foreseeable that the parents could be damaged.
Of course, the Defendant might try and cite the Homer case, in which the therapist seduced the P's wife.
The court in that case found the conduct was not extreme and outrageous toward the plaintiff husband
so he could not recover. However, that case is distinguishable because seducing someone really is not
extreme toward the husband; holding it is would result in unlimited liability for every affair in the U.S.
Yet, molesting someone's child is very extreme in relation to the parents. As such, a court will impose
liability.
The parents can recover their emotional harm and pain and suffering.
Claim #2 - NIED
Probably not only will fail in this case (because they were not negligent, as discussed in Victor's case),
but it is also unnecessary because IIED should be much easier to establish. The fact that they were not
near the negligence when it took place means they probably cannot recover under any jurisdictions
rules.
Victor's Parents v. Tenn State
The claims Victor's parents have against Tenn State are not really that much different from Victor's. It is
vicariously liable for the intentional tort for the same reason as in Victor's original case. The negligence
claim against the university will probably fail. Therefore, there are no new issues here.
Paul's Estate v. Dusky
Claim #1 - Assault
The prima facie case requires the plaintiff to prove an (1) reasonable (2) apprehension of (3) imminent
(4) battery.
Unfortunately, Paul cannot sue for Battery because Dusky never made harmful contact with Paul. The
facts are unclear, but it does not seem like he threatened to or tried to batter or make contact with Paul.
If Paul can show that Dusky was about to touch him (which would be a battery for the same reason as in
Victor's case), and Paul knew it, he could recover, but further discovery will be needed to determine if
this is the case.
Claim #2 - IIED
Note, this analysis probably applies to Victor's case as well, and he should consider pursuing a claim for
IIED as well as battery. The only difference in Paul's case is that he was not touched - in Victor's case,
because he was, recovery should be even easier under an IIED claim.
The case here does not substantially differ from Victor's parent’s case . The D's conduct was extreme
and outrageous because he apparently took steps to lead Paul to believe he might be molested (the
facts imply that is why Paul felt the emotional harm). Making someone feel like they are about to be
molested is extreme and outrageous conduct, and because it was directed at the plaintiff, he can
probably recover. For the same reason as above, Dusky's molestation attempt was reckless - he knew
that a 10 year old boy could suffer serious harm if someone tried to molest him. The P suffered very
serious, severe emotional harm, leading to his ultimate suicide and death, and the D's conduct probably
caused it.
The wrinkle here is whether damages can be recovered for the suicide. The court might transport
superceding cause type analysis. He killed himself, and so he is responsible for that. The defendant
should not be held liable, he will argue, because his actions may have caused severe emotional harm,
but were supervened by the suicide itself.
There are several reasons a court might reject this argument. First, this is not a negligence claim "supervening cause" is generally thought of as a proximate cause issue, which is not a direct element of
the prima facie case of IIED. Second, even if a court rejects that reasoning, this case is distinguishable
from other suicide cases. This case involves a child who was induced by the extremely tortious acts of
Dusky to kill himself. Other cases involved adults, who have the full capacity to make the decision for
themselves. A child lacks that capacity and is more easily impacted by emotional harm. Therefore, the
child did not "supervene" by making a choice to kill himself, since he lacked the capacity to make that
choice effectively.
Moreover, in cases like this, it is utterly foreseeable that a child could be so impacted and depressed by
the molestation attempt that he could become withdrawn from the world. This could lead to serious
trauma and even suicide, and child suicides after rape-attempts are well documented. Because of this
evidence, a court will probably conclude it was foreseeable and allow him to recover.
Claim #3 - NIED
If a court concludes against Paul's estate on the intent element, he may choose to pursue an NIED claim
(for the same reason Victor might). This case presents the wrinkle of not fitting neatly within any of the
three NIED categories. It is not clearly a fright to self case, because it does not seem like Paul was afraid
of an imminent physical injury. Moreover, it is not a bystander case because Paul himself was the one
whose own harm resulted. Finally, it may not be a direct victim case because the Paul and Dusky don't
seem to have had any preexisting special relationship. All of this should go to show that IIED is the
proper claim to pursue - negligent claims don't make sense.
But, a court would probably stretch to fit it in one of these categories if it had to. Optimally, it would
adopt the Tennessee approach and just treat it as a regular negligence. That would be easily established
for the reasons discussed in Paul's IIED claim. Otherwise, a court would probably really stretch to make
it a fright to self case. This is likely because courts seem to bend the rules to allow for recovery of
seriously injured victims. They might conclude that Paul was in the zone of danger because he was about
to be molested. Of course, he was never impacted but most courts abandoned that rule. He had a
physical manifestation of killing himself, and probably losing sleep, etc. And it was severe. Thus, the
requirements are arguably satisfied.
The rest of the p.f. case presents no issues for all the reasons discussed in IIED. Therefore, he might be
about to recover for NIED.
Defense - Statute of Limitations (Survival Claims)
Because Paul has passed away, his estate will have to pursue his claims as Survival claims. The relevant
statute exists, and so the claims pass to his estate. Unfortunately, (c) of the code specifies that a
person's survival claims expire within two years of when they could have been brought. Because his
claims could have been brought in 2002, the statute of limitations started ticking. Therefore, it has
expired since the two years has passed.
A court might find it tolled while he was a depressed child, and perhaps make up something about
repressing his fears. Unfortunately, those arguments will probably not succeed -- Paul knew about his
injuries, could have brought his claims and did not, and they can no longer be brought.
Paul's Estate v. Tenn State
Claim #1 - Negligent Failure to Supervise / Stop Dusky
Duty: The duty element was discussed in Victor's claim. There is no reason it substantially differs here,
except that it was even more foreseeable because Dusky had molested someone.
The other difference from Victor's claim is that this involves a negligence per se claim. Negligence per se
is applicable when a statute clearly defines a duty, and was intended to protect people including the P
from the general type of harm that the P suffered. All three requirements are probably met in this case.
The statute clearly defined the conduct - the university had to report the abuse or suspicions further
abuse would occur. It was designed to protect the class including P because it was designed to protect
children. Moreover, more or less says it was intended to stop "abuse" of which molestation certainly is
part of.
Breach: The general rules for breach are discussed above. For the ordinary negligence claim, what
makes this different from Dusky's claim is that the university knew about Dusky had done. They knew he
had molested another small boy.
This goes to the foreseeability of harm. It was highly foreseeable that Dusky would strike again, because
he now had a record of doing so in the past. Dusky may have seemed like a stand-up guy, so perhaps it
did not seem probable, but it certainly was foreseeable. The facts here resemble Pipher, when the third
party grabbed the steering wheel and the defendant did not pull over because he thought he would not
grab it again. Similarly here, even though it may have seemed unlikely he would strike again, it was still
foreseeable - the reasonable person has the knowledge of the past events that the defendant does.
A reasonable person would have acted differently to avoid that harm. First, they would have actually
taken away his key and monitored him more (not merely told him not to take away his key). The burden
of doing so could be large, but is mitigated by the fact that even Dusky knew he did something wrong,
and so he is unlikely to be as offended. Moreover, the risk of harm was sufficiently large given that the
impact could be enormous - one or more boys could be molested, which is an enormous impact.
Therefore, even though there was some burden, the probability of harm would require the reasonable
person to act differently.
Second, the reasonable person probably would have fired Dusky. Allowing him to maintain his position
of power could lead to another molestation, but firing him would take away that power and make it
substantially less likely he could strike again. A jury is likely to be convinced that the burden of this,
though large, pales in comparison to the risk of molestation of another child. Consider the plaintiff's
closing argument, "What if it was your child?"
Though Allen prohibited him from bringing the children on campus, that just goes to show that this was
foreseeable. The reasonable person would have enforced this policy, which Allen clearly did not (or it
would not have happened). The burden of placing security guards or other monitoring techniques would
have been sufficiently small to justify the reasonable person acting differently.
As far as the negligence per se claim, it does not seem like the university violated the statute. The
university talks about a defendant who has reasonable cause to suspect a child "is" a victim of abuse
should report it. In this case, they had no reason to think Paul was being abused since Paul had not even
entered the picture at this point. The statute prohibits not reporting ongoing abuse, but it does not
seem to prohibit failing to report future potential abuse. Therefore, they did not breach the statute and
are not negligent per se.
While this result may seem morally repugnant, it makes sense. Someone should not be liable to report
every mere suspicion of potential abuse in the future. Doing so would unlimit liability and encourage
neighbors to spy on each other at mere suspicion of the potential of future harm. A court is likely to
reject that the statute required this type of conduct. Moreover, because they can probably recover for
the negligence claims alone, the court should not find a need to set the precedent of extending this
statute to all other cases.
Cause in Fact: The general test is that the defendant is the cause in fact if, but for the defendant's
conduct, the injury could not have happened again.
As far as the "take away the key / monitor him more" claim, it may be hard to prove that this is a "but
for" cause of the molestation. After all, Dusky may have just molested him somewhere else. Therefore,
even if the university had not been negligent, Paul would have been injured and so this element may not
be met.
A court is likely to reject this argument. Clearly, Dusky had a special affinity for the football room. He
probably had a wife and kids elsewhere and it was probably much easier to lure people to the football
locker room because of its inherent attractiveness. If they had taken away the key or ensured
monitoring would result, his injury may have been prevented. Therefore, they were a but for cause of
his suicide because, but for them not monitoring Dusky, Dusky would not have molested him and but for
that, he would not have killed himself.
Firing him almost certainly would have alleviated the risk, because, but-for him being in this position of
power, he could not have lured a ten year old into his midst.
Actual Harm: The actual harm was the suicide, not just the emotional distress. It is worth noting that
because, generally, negligence claims do not allow recovery for just emotional harms. But, because he
killed himself, it can be a negligence claim.
Proximate Cause: To prove proximate cause, the plaintiff must show his actual injuries were within the
scope of risk caused by the defendant's negligence. This means the plaintiff's injuries must a) be of the
same general type and b) the P must be of the same general class of people [put at risk by the D's
negligence]. In this case, both requirements seem satisfied. A court is likely to adopt the Hughes
approach of broadly defining the mechanism - the actual harm here was foreseeable because he might
strike again. The general type of injury was physical resulting from molestation, but also causing the
plaintiff to be so traumatized as to kill himself. After all, as discussed above in the IIED section against
Dusky, one well documented risk of molestation is child suicide.
Even though they may not have known when, or how, the general type of harm (molestation) was
predictable because it had happened in the past. The specifics matter less. The P was of the foreseeable
class because he was a child, again, predictable based on past incidents. Therefore, the university
probably was the proximate cause.
The university might argue they were too far separated in time and space to have been negligent. After
all, it occurred one year after the first incident. A court is likely to reject this argument. The time and
space does not disrupt the fact that it was probable, and a year is not that long.
The university might argue he Dusky was a supervening cause. Here, that will not matter because
supervening causes are only given weight when they are not foreseeable. As repeatedly emphasized,
this particular act was very foreseeable, and so the university is the proximate cause.
Claim #2 - Vicarious Liability for Dusky's Intentional Tort
See vicarious liability discussion for Victor. The only difference here is that this time the employer
expressly barred him from bringing children on campus. That changes nothing - obviously Dusky was
barred from molesting children in the first case and could still be found vicariously liable. Therefore, just
because they tried to put additional measures in place does not mean his actions fall out of the scope of
employment. Again, see the analysis above.
Defense - Statute of Limitations
See above analysis, these claims have probably expired because they belong to the estate.
Paul's Parents v. Dusky
Claim #1 - Loss of Consortium v. University & Dusky
Prior to Paul's death, he became withdrawn. If Trans. recognized loss of consortium for children, the
parents can probably recover because it only usually requires showing that wrongful conduct seriously
disrupted the relationship. Here, if they can show the relationship was disrupted, they can recover for
damages prior to his suicide.
Claim #2 - IIED
See the claim Victor's parents have - the only difference here is he did not actually molest Paul. Yet the
very act of TRYING to molest someone's child is probably sufficiently extreme and outrageous (and
reckless) conduct to justify recovery.
Claim #3 - Wrongful Death
This claim is powerful because it is not barred by the statute of limitations. Here, the statute of
limitations is 10 years max (met), and the 2 year limit does not apply because the parents on found out
their son was wrongfully treated very recently. Because the statute says "the claimant should have
known" and "the claimant" in wrongful death claims is not the estate, but the parents, the statute of
limitations did not start ticking.
The elements of the wrongful death claim were established above. Really, the parents will only have to
show that the defendant's conduct lead to their son's death, and that it was wrongful. As analyzed
above, this should not be very difficult. The family should be able to recover loss of consortium type
damages and nonpecuniary damages like grief. Of course, was only a child so they probably could not
recover anything for loss-of-contribution since he was not contributing much since he was not working.
However, the recovery may be significant if the loss to estate damages are the appropriate model. That
model holds that the loss is the projected lifetime savings. In this case, because he was a child and
would have earned money until he died, this award could be very substantial.
Paul's Parents v. Tenn State
There is nothing much new here to discuss. They can pursue their various vicarious liability claims, as
have been analyzed above. They should also sue for negligence on the part of Allen (vicarious liability)
for failing to take steps to protect their son, along with the IIED claim that the university also should be
vicariously liable for. See Victor's parents, the analysis here is not much different.
The interesting question is whether these claims are barred by the statute of limitations. The answer is
probably no. The statute only bars survival claims, but the IIED against Dusky and the negligence claim
Paul's parents have against Allen (and thus the university) belongs to them, because the injury they are
suing for is their son dying. The injury they suffered was their child's death, and they did not know this
was the result of negligence until just recently. Therefore, they are not survivor's recovering for their
child's injury, but stand in their own shoes to recover for their own injury. As such, a court might
conclude the statute of limitations has not started ticking.
Of course, this is not entirely clear. A court could require them to sue under the wrongful death statute
because it is broad enough to encompass all their claims. Indeed, that is probably true, and likely the
path of least resistance. They will still need to show negligent conduct, so the analysis above is still
relevant. But, they might also be allowed to pursue claims for their injury (their child's death) separately
from the wrongful death statute.
Finally, a court might prohibit them from recovering at all in some jurisdictions. A court could conclude
that "their child's death" is not a physical injury suffered by them. As such, it does not meet the "actual
harm" standard. They might respond that it was physical, because their child died. But a court will
probably conclude the physical injury must happen to them to constitute actual harm.
This does not bar recovery under the wrongful death statute, and probably does not bar recovery under
IIED (same as Victor's parents), since the damages there are emotional. They obviously cannot recover
under NIED because they were not near the accident, nor did they witness it, and so meet none of the
requirements in almost any jurisdiction.
Defenses against Both Parents - Comparative Fault
It is conceivable the defendants could argue they were comparatively at fault for failing to monitor their
children. This is unlikely to succeed. First, the problem stipulates they were not away of Dusky's
negligence. Therefore, harm was not foreseeable. A reasonable person would not have acted differently
to maintain absolute security and monitor their children at all times because doing so would be too
burdensome, since parents are no omniscient beings. Therefore, no evidence suggests comparative
fault.
A Final Possible Issue
It could be argued in Paul's Case / Wrongful Death action against the university that the Dusky was a
trespasser because he was not on the land with the employer's permission (which had said he could not
bring children to campus). They will argue that Dusky exceeded the scope of his invitation by bringing a
child onto the land, and so the child was a trespasser too. Even though the child did not intend to
trespass, he still is a trespasser because he volitionally took steps to enter another's land, even though
he was not invited to do so.
Therefore, they could argue that they only had the duty to not act willfully or wantonly. They did not
breach this duty because they told him not to enter and did not know harm was probable. Moreover,
there is no duty to prevent trespassers. Therefore, they could argue the standard of duty falls.
A court will probably reject this argument. First, as an agent of the university, Dusky had the right to be
there, and the right to invite other people on. Even though he brought other people on with him, he did
not exceed the scope of his invitation because no evidence suggests they completely barred him from
going to the locker room on the weekend. Even so, some courts have found a duty when there is an
"attractive nuisance" - a court here might stretch that doctrine and say it was met because children
were likely to trespass (by being lured) and it would be dangerous for them to do so (by being
molested). There are other elements, but not enough time to discuss them here.
Moreover, it was probably willful to not take steps to prevent from a rape. Another molestation was
probable because he had done it in this past. Therefore, they had a duty to take some action.
Finally, the above negligence claims have to do with them not firing him or taking away his key.
Regardless of whether the boys were technically trespassers, the duty to protect against the third party
by taking those steps exists, because they had requisite levels of control to do so.
Question #1- Model Answer B
V v. D/TS: Battery (Sexual Assault) and Vicarious Liability
V can bring a claim for battery against D. V can certainly prove that D had actual intent to contact V in
that he deliberately led him to the showers and proceeded to sexually abuse him.
V can certainly prove that D had the intent to harm/offend in that one can reasonably conclude that
sexual molestation of a child is both harmful and offensive.
Further, we can prove that contact actually happened here. For evidentiary support, V can rely on the
testimony of AD.
Affirmative Defense:
D may rely on the statute of limitations affirmative defense in that the claim would be barred by the 2
year SoL and the 10 year time limit as giving in the civil statute 123. However, this statute is for Ps who
are dead (as referenced to section (a) and (b)). There is no SoL indicated for Ps who are alive.
Even if we applied this statute to V, who is alive, V can rely on some minority rules for tolling principles
where, as matter of policy, we may in rare cases toll the statute of limitations for children until they
reach adulthood. We may also rely on the minority rule applied in McCollum, extend the application of
the discovery rule, which allows one to bring suit when injury is reasonably discoverable (known or
should have known) to include instances of mental repression in sexual abuse cases. However, it is
important to note that this is a minority rule in that it was not extended to a similar case, Doe v. Maskell,
which also involved sexual abuse of a minor with a claim brought in adulthood.
However, D may likely assert that the purpose of the statute of limitations is to bar stale claims and to
prevent claims from occurring where evidence has disappeared or where claims may be more
fraudulent. Further, D may also argue that the purpose of the statute of limitations in protecting D is to
allow him the expectation of a reasonable time that the claim can be brought so that he can go on
"living his life," so to speak.
However, V can also assert the policy argument behind this unusual and prolonged tolling of claims in
that he could not have reason to discover due to psychological damage nor could bring the claim as a
minor and that as a matter of policy, we should not punish children for not being in a position to speak
out in a relationship of unequal power nor should we allow Ps who act maliciously and wantonly to
escape for unreasonable crimes.
Vicarious Liability:
Further, V can bring a claim against TS for vicarious liability in that D works for TS. When applying
vicarious liability for an employee's intentional torts, we apply the foreseeability standard. V may argue
that this is like Fahrendorff in that it was reasonable that a young child brought onto campus for the
purposes of mentorship/child activities could be reasonably susceptible to abuse given the nature of the
activity.
However, the TS will likely argue that in Fahrendorff, the crime occurred at a camp for children whereas
this is an isolated incident, and therefore they should not be held liable.
Damages:
V can claim compensatory damages for pain and suffering (which will most likely need to be proved by
expert testimony, as we know in ARB that these claims for psychological damage do not necessarily
need to be proven by a line item expense) and medical expenses (or, in this case, compensation for any
medical expenses/therapy incurred). This includes any potential future costs foreseeable.
V can probably not recover any earning capacity/lost wages unless it can be proven that psychological
damage to his persons (which is left unmentioned in the facts) impeded his ability to hold gainful
employment or receive better employment.
V might be able to recover punitive damages under the tort for pleasure standard if he can prove that D
acted with malice and tremendous indifference to the risks that the conduct creates for plaintiffs. In this
case, since sexual abuse of a child is a willful and wanton conduct that society has an interest in
deterring, the court might award V punitive damages.
Punitive damage calculations are based on either a ratio (where we compare harm suffered and punitive
damages incurred), the degree of reprehensibility or the defendant's wealth. These are usually also
subject to damage caps based on the jurisdiction.
Damage Adjustments:
These would, of course, be adjusted for any interest for past expenses/losses and for the present value
of any future expenses/losses as well as any interest earnable on the sum.
Further, the award might be subject to caps on damages as well as any other local rules on damages
such as periodic payment (in which V would receive the sum in installments and thus would not be
subject to interest adjustments), the collateral source rule (in which V would receive compensation for
any amount on top of the amount fully covered by his insurance), the insurance's right of subrogation to
sue for any expenses already incurred, the jurisdiction's rule barring double-recovery under the
collateral source rule for fear of windfall awards, any mitigation of damages or avoidable consequences
in which the plaintiff could have reasonably lowered the amount of damages incurred, and local caps on
damages including caps on punitive damages.
P v. D/TS: Assault and Vicarious Liability
P's estate could bring a survival action against D/TS for assault. This action is regulated by the
Tennsylvania statute.
P could assert assault claims against D for bringing him to the showers. P would first have to establish
that D had the intent to cause imminent harmful or offensive contact. In this case, P could argue that he
would have been molested but for the football player's interference.
Second, P would have to establish that reasonable apprehension of a battery existed. P was lured to the
showers and was probably aware that something bad was about to happen. His subsequent emotional
harm shows this. Further, under the Cullison standard, no contact need occur; he only needs to have a
reasonable (objective standard) apprehension.
Affirmative Defenses: Statute of Limitations
The statute of limitations is different in this case in that it has not been 10 years since P's molestation, it
has only been 9, so he will most likely be able to bring the claim.
However, D/TS will claim that P is barred from bringing the claim based on the statute of limitations in
that he should have reasonable discovered the assault when it occurred in 2002 and therefore needed
to bring the claim by 2004.
However, P's estate will probably rely, again, on the rare cases of statutes of limitations tolling in the
case of children and sexual abuse cases. (See above)
Further, since this is a survival action, there could possibly be two separate statute of limitations: one
for the underlying claim and one for the survival action. In some cases, not bringing the survival action
within the underlying statute of limitations bars the claim. In others, the only state of limitations that
applies is the statute of limitations for the survival action/wrongful death claim.
Vicarious Liability:
Like V, P could also claim against TS for vicarious liability. See above.
Further, this time TS could not assert the argument that this was an isolated incident in that it was
foreseeable. If we use the standard established in Piper v. Parsell, more than once might be enough to
establish foreseeability so that the Fahrendorff standard has greater merit in this case.
However, TS could still counter-argue and say that it was not foreseeable because it was still a rare
instance.
Damages:
Similar to V. See above.
V v. JJ/AD/TS: Negligence in Failure to Report Crime
Duty:
The duty owed by JJ/AD/TS here can first be considered under Dobb's Reasonable and Prudent Person
standard in that there is a duty owed to all people, generally.
AD/TS may claim, however, that the failure to call authorities was acceptable because of rules
surrounding nonfeasance. They have no duty to act.
However, V will most likely counter that this situation is an exception to nonfeasance under the duty to
protect from third persons under scenario two in that there is a relationship between the defendant and
the third party (in this case, D). This is an employer-employee relationship first, in that AD/TS is D's
employer and therefore generally, the employer has a duty to control the employee if it is foreseeable.
Further, this is similar to the relationship that was upheld in Marquay in which students were allowed to
sue the school and administration based on a special relationship. This relationship can fall under the
allowable special relationships for these kinds of cases as a "voluntary custodian-protectee"
relationship.
However, AD/TS will likely point out that the risk that V was going to be sexually assaulted again was not
imminent and that they took action, internally. However, we know that the imminent standard when
related to special relationships is a narrow requirement. However, when it is related to third parties
outside of the relationship, the requirement is broader. So a jury may find that a duty still exists.
As a defense, TS may also assert that since V was a licensee and not an invitee, they have no duty to V.
However, V will counter with the exception rule that once TS knew about danger or discovered the
danger to V, they had a duty to act according to the reasonable and prudent person standard.
Negligence Per Se for Violating Tennsylvania Child Abuse Statute:
Further, to establish duty, V may bring a separate but related claim of negligence per se against TS based
on AD's violation of the statute that requires one to report sexual abuse to law enforcement. Under
negligence per se, the statute defines the duty and violation of the statute is breach of duty as
established in Martin v. Herzog.
While TS may claim that they are not liable for the unilateral action or nonaction of AD, V will probably
bring this claim under vicarious liability rules, which will be discussed below.
For V to succeed in the negligence per se claim, he must assert the elements established under O'Guin in
that the statute/regulation clearly defines the required standard of conduct, the statute/regulation is
intended to prevent the type of harm D caused, P is a member of the class of persons the
statute/regulation is designed to protect and the violation of the statute/regulation is a proximate cause
of P's injury.
In analyzing the viability of the claim, we must first look to the statute to see if it creates a public right of
action. If the statute creates a private right of action (for example, like FELA, in which plaintiffs can
directly recover from defendants for railway accidents), then V cannot bring this negligence per se claim.
Here, however, the test is generally whether or not the statute is enforceable by the government. This
statute is a criminal statute and is enforced by law enforcement against citizens to prevent
reprehensible behavior, therefore it is a public right of action statute.
We then proceed to evaluate the claim under the O'Guin elements. The statute here clearly defines that
AD had a duty to call law enforcement and report the incident. Further, it also is intended to prevent the
type of harm that D caused in that it is designed to punish and prevent sexual offenders from repeating
their misconduct. Further, we can claim that V is a member of the class of persons this statute is trying
to protect in that he is a child, who is clearly the beneficiary of this protection. And finally, we can say
that a violation of the statute (failure to report) is a proximate cause of the injury in that if the violation
were reported, V might have been able to receive extensive counseling and psychological help to
prevent further damage.
However, AD/TS will likely point out that while P (the second boy to be molested; see below) may claim
negligence per se for violation of this statute, V cannot, because he was already injured and therefore
failure to report was not a proximate cause of the injury.
Further, it is important to note that the negligence per se claim is also applied in different ways. Though
it is unlikely that AD has an excuse, he can allege an excuse (R2T §288) for violating the statute. Further,
some jurisdictions might only treat the negligence per se as a presumption of negligence or as evidence
of negligence rather than a conclusion of negligence.
Vicarious Liability of TS for AD's Actions:
TS will claim that they are not liable for this negligence per se (or the negligence action) that V is
bringing against them for AD's actions. However, V may assert that AD was acting within the scope of
employment and that this standard is applied loosely. It was TS's duty as AD's supervisor and D's
employer to assume any liability for employee's action/nonaction.
Breach:
Assuming that V successfully establishes the duty to report the crime and TS's vicarious liability, we can
assume that AD/TS breached this duty by not calling.
V can also assert a risk utility balancing argument under the Learned Hand Formula in that picking up the
phone and calling the authorities would not have required any extra effort on AD and that the cost of
the burden compared to the magnitude of harm or the probability of harm was very low.
Actual Harm:
In this case, the facts do not assert that V experienced actual harm. However, we will assume for the
purposes of continuing the analysis that he suffered both physical harm from the attack and extended
psychological/emotional harm in not receiving help after the failure to report.
The weakness of the entire negligence claim lies here, in that the failure to report may or may not have
resulted in additional actual harm other than emotional harm that already existed from D's actions.
However, if V can establish that additional emotional harm/separate emotional harm manifested as a
result, he can probably claim actual harm.
Cause in Fact:
To establish cause in fact we would use the but-for test. But-for AD failing to report the action, V would
not have suffered more harm. However, AD/TS will likely assert that this emotional harm would better
be brought under an IIED/NIED claim (see below) and further that V would have experienced emotional
harm anyway.
However, V can counter by saying that TS/AD's negligence was a substantial factor of his harm.
Proximate Cause:
We cannot establish proximate cause under the direct cause test, because D's actions seem to overtake
the harm that would have resulted from D's actions.
However, we can use the scope of risk test to determine proximate cause. V will argue that under the
broad Hughes standard, the foreseeable harm is that failure to report sexual abuse will result in delayed
medical care and further psychosis.
AD/TS will argue that under the narrow Doughty standard, it would not be foreseeable that failure to
report a sexual abuse that already resulted in psychosis would result in more psychosis to a young child.
V can also assert proximate cause under the zone of danger or multifactor tests, though it will be
difficult for him to establish these, as under zone of danger, V must have been within the zone of danger
of the negligent act (which in this case seems more theoretical) and under the multifactor test, the court
would just take into account a totality of the circumstances that are already covered under the
traditional scope of risk assessment.
Damages:
V might be able to recover compensatory damages for any harm suffered (see V's Battery recovery for
specifics). He would probably not receive punitive damages as the failure to report was not committed
willfully and wantonly by AD/TS.
Further, any damage awards would be adjusted (see damage adjustments in V's battery claim above).
And finally, the damage awards might be apportioned to the percent that each defendant is liable under
a comparative fault scheme and joint and several liability rules.
Affirmative Defenses to Claim:
Statute of Limitations. See above--V's Battery Claim.
P v. JJ/AD/TS: Negligence in Failure to Report Crime
P's claim against AD/TS would be almost identical to V's above, except that P could claim that failure to
initially report V's molestation caused D to continue to be on campus and thus put him in a position to
be potentially molested.
This claim can be brought under the survival statute. Any actions brought by P would be limited to what
is allowable under survival statute in Tennsylvania. But it is also important to take into account the
policy behind survival statutes in that we want to be fair and just to the dead plaintiff, and that survival
statutes uphold the general tort goals of deterrence and compensation.
Duty:
Similar to V. See above Negligence Claim.
Difference: TS can no longer rely on the fact that the danger was not imminent or that it was not
foreseeable. Because of the prior incident, AD/TS have a duty to control employee if foreseeable. In this
case, using the foreseeability tests established in Posecai (Specific Harm Rule--the harm is now specific
and imminent as the tortfeasor is with another child; Prior Similar Incidents Test--there is a prior
incident; Balancing Test--foreseeability of harm against burden of imposing duty, which in this case is
low as it was only to call the authorities the first time), as well as the foreseeability standard established
in Piper (more than once is enough to establish foreseeability), we can establish foreseeability.
Negligence Per Se for Violation of Statute:
Similar to V. See above Negligence Claim.
Difference: P can claim that the primary violation of the statute was the proximate cause of his harm in
that it was within the scope of risk that failure to report D to the authorities would result in another
attempted molestation.
Vicarious Liability of TS for AD
Same as above. See above Negligence Claim.
Breach of Duty:
Same as Above. See above Negligence Claim.
Differences: In this case, a P has a stronger case for arguing that a reasonable person would have
foreseen the risk of harm under the Piper standard in that D might have tried to molest again and that a
reasonable person would have done taken steps to avoid/minimize the risk by calling.
Actual Harm:
Psychological damage/emotional harm and death occurred.
Cause in Fact:
Under the But-For Test, P can claim that but-for the failure to call and report the violation and thus hold
D liable for his first molestation, he probably would not have been a second victim.
If not, P can certainly claim that the failure to call was a substantial factor of his harm.
Proximate Cause:
P will probably argue that it was within the scope of risk under both the Hughes and Doughty standards
that the failure to call would probably cause the repeat molestation and harm suffered.
However, AD/TS will probably argue that P's suicide was a superseding cause and therefore cuts off their
liability.
However, P can probably argue the exception rule and that like Delaney, it might have been foreseeable
that AD/TS's negligence rendered the decedent unable to appreciate the self-destructive nature or
unable to resist suicidal impulse in that he was placed in a position where his emotional harm overtook
his reasoning.
Further, P might also point out that in this case, though suicide can be an supreseding cause, it is not
treated as such in the case where there is a special relationship established like the case in which the
patient in the mental hospital hung themselves, because AD/TS owed P a duty of care while he was
within their custody to prevent acts like this from happening.
Affirmative Defenses to Claim:
Statute of Limitations. See Above--P's Assault Claim.
Damages:
Because this is a survival action, P can recover damages from injury to a person. In this case, he may be
able to recover compensatory damages for pain and suffering. In some cases, depending on the state,
he also may be able to bring punitive damages if he can prove that AD/TS acted willfully and wantonly
(although we established above that this negligence probably is not an instance of such).
For Other Damage Adjustments and Compensatory Damage Claims, See Above V's Battery Claim.
P v. D/TS: Emotional Harm and Vicarious Liability
P could bring a survival claim against D and TS (vicariously; see above) for IIED. However, it is notable
that in some jurisdictions, survival claims for emotional harms are not allowed. For the purposes of this
analysis, we will assume that in Tennsylvania you can.
Under IIED, P must first prove that the conduct was extreme and outrageous. In this case, it is probably
safe to say that child abuse is extreme and outrageous conduct and generally not acceptable.
P must then prove D's state of mind in that he intended to cause severe emotional harm or that he was
recklessly indifferent. In this case, we can prove that D is recklessly indifferent to P's harm.
We can certainly prove that severe emotional harm occurred in that P was so distraught he committed
suicide.
Damages
Compensatory (See Above V's Battery Claim.).
Damage Adjustments (See Above V's Battery Claim).
Punitive Damages: While these are sometimes not allowed for IIED cases, in this case we may make the
argument that D is engaging in willful and wanton conduct and that this is a clear example of tort for
pleasure. Further, P can probably assert that society has a responsibility to deter conduct like this and
that this deterrence goal outweighs the need to cap D/TS's liability.
Statute of Limitations: As established above, P probably can still bring his claims because he is within the
10 year time limit.
V v. D/TS: Emotional Harm and Vicarious Liability
While it was not specified in the facts whether or not V suffered emotional harm, we will assume for the
purposes of this exercise that he did. We will also avail ourselves to the vicarious liability claim (see
above) to hold TS liable.
If so, he can prove IIED under the same claim as P above.
And the damages would be similar to P's above.
Paul's Parents (PPs) and Victor's Parents (VPs) v. D/TS: Emotional Harm and Vicarious Liability
PPs and VPs will probably not be able to bring either an IIED claim. The IIED claim would be regulated by
the same PFC as above, except that under the extreme and outrageous conduct element, the parents
would have had to be present. Since the parents were not present, they cannot recover even though
they could prove their damages.
They cannot recover under NIED for Bystander, because again, they did not witness D harming their
children.
While this may seem patently unfair, courts generally are very strict about the emotional harms
recovery for fear of opening the floodgates and/or encouraging fraudulent litigation.
There is a slight chance that PPs and VPs may be able to recover under the Camper standard, which
treats all claims under the traditional negligence approach. However, under the Camper standard, while
courts would follow the traditional negligence PFC. the parents would still need to prove that they
suffered serious or severe emotional injury and that serious or severe emotional injury is supported by
expert medical proof.
This Camper treatment, however, is not widely accepted because it generally allows more emotional
harm claims to go through to the jury. It is notable that for emotional harm claims, and especially NIED
claims, courts generally differ widely in their approach and there is no singularly accepted approach to
these claims. Therefore, PPs and VPs, while not fulfilling the PFS for either IIED or NIED, might still be
able to recover under a variation of these applications.
Damages:
Compensatory--See V's Battery Claim Above.
Damage Adjustments--See V's Battery Claim Above.
PPs v. D/TS: Wrongful Death
The estate of P/PPs might bring a wrongful death claim against D/TS for the suicide. Under the Weigel
standard it was established that even if you cannot recover under loss of consortium or emotional harm,
you can still bring a wrongful death claim.
Here, PPs would assert wrongful death in that the sexual abuse of their son by D and under the
employment of TS resulted in his death.
This claim can either be brought by the estate in conjunction with survival actions or by categories of
people/heirs at law. Since P's parents are bringing the claim, we will assume that the courts will treat
them as close relatives/heirs at law.
Affirmative Defenses/Bars:
D/TS might argue that the decedent's contributory negligence, or in this case his suicide, is a
superseding cause and therefore they should not be liable.
However PPs will point out that we might not take contributory negligence into account here because of
the special relationship between D and TS and the temporary custodial relationship between D and P.
Damages:
Under a wrongful death claim, families can recover a loss of support or loss to the estate. If it is proven
that P would not have brought either, they would recover nothing under these two standards.
However they could still recover funeral costs and other damages including loss of consortium (see
below) and emotional harm (see above) and punitive damages (see P's negligence claim punitive
damages).
Loss of Consortium:
If PPs can recover under this wrongful death action, they can most likely also claim loss of consortium
damages. It should be noted, however, that parents cannot recover in some jurisdictions for loss of
consortium.
It should also be noted that this is a derivative claim, so the recovery for loss of consortium depends on
the success of recovery in the wrongful death claim or any other claim PPs might bring. If D is not liable,
there is not loss of consortium allowed.
Note:
All damages in which multiple defendants are liable or in which plaintiffs are contributorily negligent
must be accounted for under a comparative fault regime. If we assume that pure comparative fault rules
exist, the claims will be reduced by the percentage of the plaintiff's liability. If we assume joint and
several liability exists, the plaintiff can then recover the full award from one defendant, who can than
ask for a contribution from the other.
This would be different under a several liability scheme, in which the plaintiff would only recover
whatever % liability each defendant is responsible for.
This would also be different under a modified comparative fault scheme in that if the plaintiff’s liability
is higher than the defendants', their recovery might be barred.
Also note that in terms of the emotional harms claims of P and V, if they were to receive compensation
for the same emotional harm under any of their other claims, they cannot double recover, as the goal of
torts is compensation not giving P's a windfall.
Question #2- Model Answer A
Mary v. TSC
Mary's best claim against TSC is a products liability action. She must prove several elements in order to
win her case.
Element 1: The P was a member of the class of foreseeably injured individuals
Generally, courts have found that this class includes the purchaser of the product and any foreseeable
users of the purchased product. The issue in this case is that Mary was a sister of the purchaser, rather
than the purchaser herself. However, it is predictable that someone's friends and family members will
use their toilet, because such happens on a regular basis. Therefore, even though she never purchased
the toilet, Mary might foreseeably use it, and so this element is probably met.
Element 2: The product was defective
Manufacturing Defect
In this case, the strongest claim that Mary has is a manufacturing defect. Generally, a product has a
manufacturing defect when it departs from its intended design so as to become unreasonably
dangerous for its intended use. Moreover, the product has to have been defective when it left the
manufacturer's hands.
In this case, the product depart from its intended design. The product was intended to have this
polymer coating, which it did not. It was designed to have this polymer coating, but the manufacturing
process messed it up, and so it did not. Therefore, this prong of the defects test is probably met.
The second prong of the test is that it has to have become unreasonably dangerous for its intended use.
One standard that many jurisdictions employer is the consumer expectation test - a product is
unreasonably dangerous when it is more dangerous than what a reasonable consumer would expect.
There are two issues here. First, this test measures the intended use. Toilets are meant for sitting on,
not standing on. The toilet was intended to be sat on, and in this case, it was not. Therefore, its intended
use (being sat on) was not unreasonably dangerous because if she had sat on the toilet, no harm would
have happened (presumably the other similarly sized people in the house use the toilet which proves
this).
Thus, the plaintiff will argue that it was a FORESEEABLE unintended use. Courts have found
manufacturing defects even when the product was not used as intended if that use was sufficiently
predictable so the manufacturer could foresee it. In this case, this will be a fact question for the jury. On
the one hand, most people don't stand on their toilets. On the other hand, it is imagine that a toilet
could be stood on. For instance, if someone needed to get something off the top shelf, they might stand
on their toilets. Though the precise way the toilet might be misused was unforeseeable, the general idea
- that someone would stand on their toilet - was at least plausible.
A court will probably reject this argument. Toilets are not meant to be stood on, but to be sat on. The
manufacturers can only account for people who will sit on the toilet, they are not designing toilets with
the structural integrity of a stool. Therefore, a court is likely to conclude that the toilet was not
unreasonably dangerous for its intended use for this reason.
The other wrinkle is that if Mary had been more than 250 pounds, she could recover because the toilet
would have broken. A court is likely to find this argument much more plausible. The intended use of the
toilet - to be sat on by a 250 pound person - would have been broken. Therefore, a court will probably
conclude that even though Mary was not using it as intended, it still departed from its intended use. This
makes sense - TSC should not get off the hook because Mary happened to be a small woman instead of
a big one. Their product was defective, and they should be held accountable.
For the same reason, the plaintiff will argue that product probably was unreasonable from the
perspective of an ordinary consumer. An ordinary consumer would expect that the product could
withstand up to 250 pounds of force, because that's what the product was advertised as being able to
do.
However, the defendant's might argue the ordinary consumer would have no expectations. "Seriously,
how many of you know how many pounds of force your toilet can withstand?" the defense attorney will
ask the jury. The jury will probably agree - they have no prior expectations. Indeed, their only
expectation is that they should be able to sit on it without it breaking.
A court is likely to conclude with the plaintiff. Consumer are likely to expect that toilets withstand a lot
of pounds of pressure - after all, how else can they accommodate Big Uncles and other family members?
Because the toilet could not actually withstand this amount of force, it was unreasonably dangerous.
The second element of the manufacturing defect, that the product was defective when it left the
manufacturer's hands, is stipulated in the problem.
Design Defect
There is an available alternative design, the polystyrene. However, the problem gives us no facts that
this is a safer design. Therefore, we cannot evaluate whether it would be a reasonable alternative,
because the safety costs might outweigh the risks.
Of course, if the court employs the older consumer expectations test, perhaps she could argue the toilet
should have handle bars to allow people to stand on it. This allegation will probably not fly. Toilets are
meant to be sat on, and so a reasonable consumer would not expect it to be designed differently.
Information Defect
She could also allege an information defect for failing to put on a sign that said "WARNING: DO NOT
STAND ON. SUCH RISKS SERIOUS INJURY." The key question is whether that warning actually would have
reduced the risk of her harm. If the risk was obvious, there would be no duty to warn. In this case, the
risk of standing on a toilet is not very obvious. She only weighs 125 pounds. If she can stand on a chair
and not be hurt, she should be able to stand on a toilet because a toilet is just a glorified, multifunctional chair. As such, the risk was not so utterly obvious that a reasonable warning would not have
reduced it.
The issue, however, is that the warning must be able to reasonably accomplish this. It is unclear where
the warning would go on the toilet. If it went in the handbook, she would not have the read the
handbook before using it (most people don't). If it went on the toilet, she probably would not have seen
it. Of course, they could print in huge red letters "DO NOT STAND ON..." but this warning is an
unreasonable requirement. It would hugely diminish the value of the toilet, no one would buy it because
it would look to goofy, and it unreasonable to expect the company to bankrupt themselves out of the
small fear that someone who would stand on the toilet would not from seeing the warning. Therefore,
there probably was no information defect.
Element 3: Actual Harm
Stipulated - she broke her bones.
Element 4: Cause in Fact
The general rule is that if, but for the defect, the person would not have been injured, the defect is the
cause in fact. Expert testimony that her standing on the toilet would exert less than 250 pounds of force
will be necessary. If she would have exerted more than 250 pounds of force, then even if they
manufactured it correctly, the toilet would have broken. The local physics professor or engineer will
have to establish this, i.e., but for the manufacturing defect she would not have been injured.
An information defect only was the "but for" cause if the person would have seen it. As discussed above,
this is unlikely.
Element 5: Proximate Cause
This element rarely comes up because foreseeability was established above. Because the misuse was
foreseeable, proximate cause can be established. This makes sense - we do not want the toilet
manufacturer to have an incentive to protect against foreseeable misuse (like standing on the toilet).
Given all these elements, the prima facie case can be proved.
Ordinary Negligence Claim
It might be slightly easier to prove the negligence case.
Duty: the employee had a duty to exercise reasonable care when manufacturing the toilets. That
reasonable person is not suffering his mental distress, but rather has the mental state of a reasonable
person.
Breach: He breached that duty by not paying attention because a reasonable person would have been
paying attention since the burden of doing so was slight and the potential harm prevented potentially
big (broken toilet seats cause lots of harm).
Cause in Fact: He was the cause in fact because the toilet would not have collapsed if designed correctly.
Proximate Cause: He was the proximate cause because it was foreseeable that, absent this important
covering, someone could be injured. The precise mechanism of injury is less important than the general
mechanism (the toilet breaking) and so a court will likely find it foreseeable, since she was also part of
the foreseeable class of injured people (users of the toilet, discussed in the first element of products
liability case).
Because the employee was negligent, the employer TSC will be vicariously liable. The principal-agent
relationship exists because he is their employee. He was in the scope of employment because he was on
the job, acting for the employer's benefit, during work hours, doing what he was hired to do - taken
together, these prove he was in the scope of his employment. As such, the employer will be vicariously
liable.
Therefore, if she cannot prove the product was defective, she may able to rely on his negligence to win
her case. Assuming he does not lie on the stand, Res Ipsa will not be necessary, and the question does
not seem to imply it will be.
Defense: P Participated In Causing Harm
For the products liability claim, this is not a defense in many jurisdictions if a) the P's negligence was
foreseeable in the causal chain leading to the injury. As discussed above, the P's negligence was
foreseeable in the causal chain leading up to the injury. Therefore, if the courts follow the above analysis
and conclude that her misuse was foreseeable, some jurisdictions will refuse to have this as a defense.
This makes sense - we do not want to encourage manufacturers to not take into account foreseeable
misuses of their products.
However, other jurisdictions will hold that the plaintiff negligently standing on the toilet is something
she should be held accountable for. It was negligent because she had a duty of reasonable care, and a
reasonable person would not have stood on a toilet because there is some risk that she could fall or the
toilet might not be able to withstand that force. Therefore, she acted negligently. That negligence lead
to her own harm because had she not stood on the toilet, she would have been fine.
Under comparative fault rules, she will be able to recover only if the jury determines this negligence did
not exceed the D's (<50%). If I were the jury, I would hold her 75% responsible for her injury, so if we are
in a jurisdiction that evaluates her participating in causing her harm as comparative fault, she will not be
able to recover anything.
This analysis applies to her negligence claim as well, given the foreseeability.
Question #2- Model Answer B
Mary (M) v. Toilet Seat Co. (TSC)
Negligence of Ernest (E):
Duty: E had a duty to pay attention while working in order to not miss a seat and send out a defective
product.
Breach: E breached this duty because a reasonable person who worked in a factory would have foreseen
by not paying attention a seat could not be coated with glass and break, and would make sure to pay
attention at all times to minimize or reduce that risk. Applying the Learned Hand Formula, the burden of
paying attention is slight to none, but the amount of damage and the severity of damage of sending out
unfinished toilet seats his high, therefore E was negligent in not paying attention.
Actual Harm: There was actual harm when the toilet seat cracked and M broke her hip and arm
Cause in Fact: But-for E's negligence in not coating the seat with glass, it would have held 250 pounds,
not broken when M stood on it and M's injuries would not have occurred.
Proximate Cause: E's action may be a proximate cause if a reasonable person in similar circumstances
would have foreseen the type of harm to the general class of persons that include M, and a reasonable
person would have taken greater precautions to avoid the risk than E took. A court could view the harm
broadly or narrowly
Broadly: If they view it broadly they will look at the harm that occurred and see if it was
foreseeable in this case the seat cracking and causing injury to M, because there was not glass on it was
foreseeable and therefore it would be a proximate cause.
Narrowly: However, if the court looks narrowly they will look to see if the harm was foreseeable
as well as the mechanism. In this case they are likely to find that the harm from a cracked seat was
foreseeable but the mechanism (standing on it) was not foreseeable and therefore not a proximate
cause.
Vicarious Liability:
Assuming the court uses the broad approach and finds E liable for negligently doing his job
creating toilet seats TSC will be held vicariously liable because E was within the scope of employment
and doing his master's work when the negligent act occurred. Therefore M is likely to succeed against
TSC for the negligence of E
Product Liability
M argues: M will argue the product was defective because TSC breached their duty in that there
was a manufacturing defect, a design defect, as well as an information defect.
Duty: M is a member of the class of individuals who will foreseeable by injured by a defective product
because she is a person who may visit a home and use one of their toilet seats.
Breach: M will argue TSC breached their duty by sending out a defective product
1. Manufacturing Defect: As determined in Lee where a coke bottle exploded open opening, the
court determined that a product has a manufacturing defect if it is unreasonable for its intended use, or
departs from intended design, when it leaves the hand of the manufacturer. In this case when the
product left the hands of TSC it was not fit for its intentional use, to support 250 pounds, and therefore
if it is defective TSC is liable for putting out a defective product.
2. Design Defect: M will argue first that TSC is strictly liable because it did not meet the
consumer expectation test. Consumers have an expectation about toilet seats that they can hold a
certain amount of weight (probably 250 pounds since that is what TSC strives for) and therefore if it
doesn’t meet that expectation they are responsible for it. M only weights 125 pound, half of the
expected weight, she will argue that even if she stands on it, it is still expected not to break, and because
it did it did not meet her expectation and TSC should be held strictly liable.
Further M will argue there was a design defect under the more popular reasonable alternative
design test (RAD) (most courts are moving away consumer expectation and towards this test). In order
to prove there was a RAD has determined in Honda, M must show (1) there existed an alternative design
that would have prevented the injury (2) it was both technologically and economically feasible (3) that
the safety benefits outweighed the cost (Risk Utility Learned Hand Formula) and that (4) the harm to M
was foreseeable. M will argue there was an alternative design because they could have used the plastic
most other toilet seat creates use. That if they did use this there would be no need for applied glass
which would lead to no error by E and no injury to M. The hardest part would be to show that it was
economically feasible and that under the Learned Hand Formula, it was worth the cost to add the
benefits of the alternate design. M will argue that many people could get hurt by seats that miss the
glass stage and therefore unless it would be so costly to shut down the plant TSC should have applied it.
3. Information Defect, Finally M will argue that if the seats were not safe to stand on there
should have been a warning letting her know that. M will argue it was foreseeable that people may
stand on toilet seats to put things away in high shelves or do anything else high in the bathroom and TSC
should have foreseen this and warned against it. Further she will argue normally it is ok to stand on it
and if there had been glass it would have held her furthering her argument that the defective product
caused her injury.
Actual Harm: There was actual harm because M broke her arm and hip
Cause in Fact: But for the seat cracking and negligence of E and TSC the injury to M never occurs
Proximate Cause: Here is where a court would need to determine if there was a misuse of the product
and whether or not the misuse was foreseeable. M will argue even if the court finds a misuse it was
foreseeable because plenty of people stand on toilet seats for a number of tasks, and even then the seat
should still support her 250 pound body.
TSC argues/Defenses:
Counter Arguments to Elements of Neg: First they will counter her breach arguments that there
was not an information breach because it was not foreseeable that people would stand on toilet seats.
Further that RAD was not economically feasible and that if they were to use the other material the cost
of production would make them increase their prices so much as to not be able to compete and
therefore it was not economically feasible or worth the costs under the Learned Hand formula to
incorporate the other design. As for proximate cause, TSC will argue that not only was standing on the
seat a misuse it was an unforeseeable misuse. No one would ever stand on a toilet seat, and if a
reasonable toilet seat company would think that they would have warnings against it, but they don’t
think that and neither do their competitors. Which is why, they will argue no one warns against it
because it is not foreseeable. They will argue that they are not a proximate cause but rather the
unforeseen misuse falls outside the scope of risk and they are not liable.
Contributory Negligence: TSC will argue that even if they are held to be negligent that M is also
negligent and more negligent than themselves. TSC will argue that M has a duty not to stand on toilet
seats and that she breached this duty. As a result of this breach of duty M suffered injuries that she
would not have otherwise sustained. For this reason, TSC could argue a defense of comparative fault, If
it could be proved that M was more at fault than TSC under the contributory fault statute in this
jurisdiction she would be barred from bringing a claim.
Court: Depending on how the court finds in whether or not the misuse was foreseeable or not
TSC is still likely strictly liable for their manufacturing defect and negligence of E. However, a court is
likely to find M is also at fault here for standing on the toilet seat. If M is found to be less negligent than
both E and TSC she will be able to recover the amount of damages reduced by the percentage of her
own fault. All of these are fact questions left up to the jury who could find either way.
Damages: If the court did find that M's negligence was less than that of TSC she could recover
compensatory damages. Which would include pain and suffering, past and future medical expenses for
her hip and arm, as well as any work capacity she lost if she is permanently injured. The jury may also
had punitive damages as a deterrence factor to send a message to other toilet seat companies they
need to pay attention to their products, or to deter TSC from using the old method and convert to the
new more modern method to stop them from committing Tort for Profit- because it is cheaper to pay
for the litigation and settlements then it is to upgrade to the new modern material. Assuming the
jurisdiction allows punitive damages in these types of cases and have not capped them as in Texas.
The National Jurist recently listed health law as one of the “hot” areas of law right in terms of job
opportunities for lawyers. Employers looking to hire in health law have a preference for students
who have a demonstrated interest in the field, and taking courses in health law is one way to
signal your interest. If you are interested in a career in health law, we recommend that you (1)
focus on acquiring a basic understanding of the areas of health law identified as core and
encouraged competencies
Question #3- Model Answer A
MEMO
To: Senator Smith
From: Aide
Date: 12/13
Subject: Vote on Products Liability Legislation
Current Law
To understand the change this legislation would have, it is necessary to understand the current law. The
current law requires that for manufacturing defects (that is, those that depart from the intended design
in a way that becomes unreasonably dangerous for its intended use), the manufacturer is held strictly
liable. This means that negligence is not required - no matter how many steps the manufacturer took to
try and prevent the defect, they will be held accountable if it is defective. This is a much harsher
standard than in ordinary negligence claims, which requires plaintiffs to demonstrate that some
reasonable behavior on the part of the manufacturer could have prevented the problem.
Proposed Change
This legislation changes the strict liability standard and more-or-less merges manufacturing defects in
with ordinary negligence claims. As such, presumably, manufacturers will owe a standard of reasonable
and prudent care when manufacturing their products. They will have to take steps to prevent those
products from becoming defective, but, if those steps are taken, will not be held liable if they are
defective.
Advantages of Bill
1. Fairness - The first advantage of this legislation is that it would encourage fairness by encouraging
egalitarian treatment of manufacturers. Consider, in almost all cases, a person is just held to the
standard of reasonable person. From a justice perspective, this makes sense because it would be unfair
to hold someone to a standard they cannot meet. Our society does not expect, for example, a blind man
to save a drowning child, because the blind man cannot see. The point is that people should not be held
to super-human standards because people are not super-humans.
Strict liability, however, holds manufacturers to that super-human standard. This is unfair, unegalitarian,
and unjust. Manufacturers should be held to the same standard as everyone else, and so the reasonable
person standard should be adopted. If a manufacturer did everything they could to prevent a defect, it is
wrong to hold them liable for the absurdity of the world in letting that single defect slip through. Such
could cost them millions of dollars. Because it is unegalitarian and unfair, it should be rejected.
2. Economic Activity - Holding manufacturers liable for every injury reduces economic activity.
Paradoxically, even though they will not get off the hook for doing so, manufacturer's must spend large
sums of money do extreme quality control to make sure not even one of their products is defective. In
other words, strict liability leads to overdeterrence. One defect could cause millions of dollars in
damages, and so every defect must be prevented. Because additional steps will increase in cost even
though they will be less and less effective (principle of diminishing returns), manufacturers have to
spend more and more money trying to prevent less and less probable injuries. This money is diverted
from more productive.
Moreover, whenever a manufacturer is found liable despite having exercised reasonable care, they must
divert millions of dollars to pay out the claim. If the claim is sufficiently large, the manufacturer might go
out of business. Or, perhaps, they had to step hundreds of thousands to buy more insurance or because
their premiums went up. All of this not only has a profound economic consequence, but seems unfair they did everything they could, and are still held liable.
Therefore, it could be argued that this bill will have the benefit of unleashing a wave of economic
activity -- manufacturers will only need to allocate a reasonable amount of resources, and can use the
freed up money to hire more employees. In other words, this could be a job creating measure.
3. Innovation - Similar thinking applies here. Whenever a new product is developed, it will be harder to
detect flaws because manufacturer's have less experience with that product. They do not know all the
potential ways it could be defective, or what could go wrong in the manufacturing process. As such,
manufacturers must keep innovative products off the shelves for longer for more thorough testing. They
also are discouraged from innovating because the cost of trying to quality control new products could be
prohibitive.
Our society depends on continued innovation. What keeps Zexas competitive - indeed, the greatest
state in the world - is that it is known for its innovation. Yet Zexas is falling behind, and this bill could be
a measure to help us catch up.
Disadvantages of Bill
1. Fairness - Proponents may whine about treating manufacturers and companies the same as people,
and about how it is unfair to do so, but there is a fundamental difference that the proposers of the bill
do not recognize. Namely, most people's actions do not affect millions of lives. If just 1% of a product is
defective, and that product is sold in the millions, then thousands upon thousands of people could be
impacted. The average person seriously interacts with maybe a hundred people a month. Thus, it is
wrong to speak of fairness and equality, when the very nature of a manufacturer makes them subject to
greater scrutiny.
2. Unjust Enrichment - The flipside of the fairness coin is that manufacturer's benefit from selling the
product, so should bear the cost of the product being used. The manufacturer received money for the
defective product; indeed, it receives money for all its products. Because they benefit from selling the
products, they should be forced to bear the risks of those products as well. From the point of view of the
victim, the manufacturer has gained all of its profits from this product's sales, and so it makes sense to
force them to bear all of the risk.
Personally, I do not find this argument very persuasive. The reasonable care standard would definitely
prevent unjust enrichment by holding manufacturer's accountable for being unjustly enriched (i.e.
enrichment resulting from a product being unreasonable). Holding them accountable for everything
seems to state the manufacturer is liable even for just enrichment, i.e. when the manufacturer did
everything they could and just got unlucky. Therefore, I would not focus your decision on this argument.
3. Deterrence - Internalizing the costs forces manufacturers to invest in safety. Alternatively, it raises the
price, and thus discourages people from purchasing these sorts of defective products. Therefore, a
deterrent effect is served by holding them strictly liable.
Again, this argument carries little force. The reasonable care standard can create sufficient levels of
deterrence because if a manufacturer does not build their product reasonably and fails to reasonably try
and prevent harm, he will be liable. Strict liability leads to overdeterrence, though, because by
definition, manufacturers are forced to invest unreasonable ("reasonable" investment is required under
the negligence standard) amounts of money in product safety. Because of the law of diminishing
returns, this means that more money will be lost as fewer injuries are prevented. It makes little sense to
cost the economy so many jobs - especially when unemployment is so high - just to prevent a few more
injuries.
4. Compensation - The strict liability rule does ensure the plaintiff will get compensated no matter what.
The problem with this argument is that compensation is rarely sufficient to justify tort liability. If it was,
all liability would be strict liability; anyone who was a cause in fact of the injury would be held
accountable. In the state of Zexas, we only like to hold people liable who have done something
blameworthy, or if there is a policy reason for doing so. If compensation is the goal, maintaining strict
liability does not make sense as a way to accomplish it.
5. Spreading the risk - The manufacturer is often in a better position to spread the risk to all of its
clientele. It can charge higher prices and purchase business insurance, and this allows it to mitigate the
impact rather than absorbing it all. People, however, cannot spread the risk. They do not have "injured
by product" insurance, and cannot charge higher prices to cover the cost of their injuries. As such,
spreading the risk is accomplished by strict liability.
This is a fairly persuasive argument, but there are two issues. First, spreading the risk does not seem like
reason alone to justify liability. Otherwise, we should just create a massive single-payer insurance policy
for manufacturing defects. That would enable completely spreading the risk out among all
manufacturers so that no one would be disproportionately impacted.
Second, the economic impact of spreading the risk is too great. Though companies like Wal-Mart might
be able to absorb the blow and redistribute it with easy, many smaller businesses will not able to do so.
Purchasing reasonable amounts of insurance will be too expensive, and the impact of an immediate
judgment may cause stocks or profit to plunge so sharply that even charging higher prices cannot bring
them out of the hole in time. Moreover, charging higher prices could cause the business to lose
customers.
Manufacturers will still be liable and spread the risk for when they acted unreasonably. But, forcing
them to spread all the risks leads to overdeterrence and hampers innovation.
6. Consumer Expectations - Consumers expect products to be reasonably safe. Therefore, when they are
not, they should be compensated.
However, the issue here that is that everyone always expects not to be injured. Why not impose strict
liability in all claims if this is the goal? These sorts of claims are better left for contracts and warranty
disputes, not tort law.
7. Efficiency - It is usually very difficult to prove a manufacturer was negligent, and so perhaps this
justifies strict liability. From a process perspective, we do not want plaintiffs to get left out of the court
room because they lack the evidence.
The issue here is that res ipsa, circumstantial evidence, and people's aversion to lying can all help
overcome this problem. Indeed, these doctrines work fairly well in "regular" negligence claims, and so
extending them to this doctrine should present few novel issues. Of course, some people will always be
disadvantaged by the system, but those few problems do not justify an entire system.
Conclusion
I think you should vote for the bill. There is no question that the current strict liability regime has some
advantages. This will not be a matter of pure black and white, but of weighing comparative advantages
and disadvantages.
We know that inserting a negligence standard into these defects claims can work fairly well. After all, in
the design defects arena there is a requirement something like "the harm must have been foreseeable
from the defective design," which resembles the ordinary negligence standard. Similarly, in information
defects, the warning only has to be "reasonable," which again, introduces a negligence-like standard.
These claims have survived under a similar standard to what this bill proposes, and so manufacturing
defects can too.
Moreover, the comparative advantages of this bill outweigh the negative impacts. Overdeterrence
hampers innovation and economic activity. Businesses leave Zexas, and Zexas becomes less competitive
because its manufacturer's must be held liable for everything that goes wrong, even those that they
could not have prevented. Therefore, manufacturers go to great lengths to prevent this marginal
problems, and cannot allocate resources as effectively as they otherwise would.
Though some people will be left out, that is a small price to pay for the potential benefits. Not every
person will be compensated for every injury that they have. Indeed, doctrines like the reasonable and
prudent person and proximate cause are designed to limit liability. This is a tragic result, but a fact of the
world. It sounds cold and cruel to say people should not be compensated. However, it is equally cruel to
say that one person's injuries justify ten people being out of the job. There are no easy choices in policy
matters, and someone will always get hurt. In terms of maximizing social utility and fairness, this bill
seems like an appropriate measure.
Question #3- Model Answer B
There are several rationales that would encourage strict liability for manufacturer's products, and if a
consumer would have to prove negligence on the part of the manufacturer, it would be much more
difficult for him to recover.
One rationale is fairness. If a company gets all of the profits from manufacturing their product, they
should also bear the risk. The promoters of the negligence standard will argue that companies need
strict liability in order to run a profitable business without going to court for every little mishap with a
product. But If consumers had to prove negligence, a consume may not be able to recover if they cannot
prove exactly what the defect was and how the company was negligence, and then the manufacturer
would be unjustly enriched. The manufacturer would reap all of the benefits and not have to answer for
the risks and harms caused by their product.
Another rationale that encourages strict liability is deterrence. Internalizing costs promotes safety by
incentivizing companies to invest in safety features. The companies who don't make products safer will
have to raise prices to account for litigation costs, so the companies who choose to market a safer
product will have cheaper prices. The promoters of the negligence standard will argue that companies
cannot compete in the business if they are constantly having to implement unnecessary safety
mechanisms in order to stay out of court. However this is a weak argument, because all companies have
strict liability, so all companies will be deterred from not using safety devices. As a society, we should
encourage companies to keep consumers safe, and deter manufacturers from marketing faulty products
that could be safer.
Strict liability also serves compensation goals. Usually in strict liability, there is an innocent plaintiff who
is harmed. The defense will argue that we should not compensate an innocent person when the defense
is not at fault, as the court found in McAfoos. However because there are so many other rationales
behind strict liability, this is more of a benefit than a rationale behind strict liability. If we hold a
manufacturer strictly liable, the manufacturer often has deep pockets and can spread the risk across the
company by raising prices. An innocent plaintiff has no way to compensate for the loss.
Strict liability also recognizes consumer expectations. For a manufacturer to be held strictly liable, the
intended use and the expectation of a consumer is considered. This is important because products will
reflect what consumers expect, and there will be fewer injuries. If a product isn't as safe as a consumer
would expect, and there is litigation, the company would implement the safety feature, and more
consumers would design safer products that will perform the way the consumer is expecting. If a
product acts as a consumer expects, there is a lower chance of harm and future litigation.
Overall from a social utility perspective, it is important that we protect the consumer in our society from
faulty and defective products. Manufacturers are equipped as large corporations to handle litigation and
compensate plaintiffs, and they will then be promoted to make products safer and more usable.
Procedurally, if a negligence standard is required instead of strict liability, plaintiffs will often not
recover because it is difficult to obtain the evidence necessary to prove specifically what negligence
occurred. Many plaintiffs cannot afford the discovery that would be required to prevail under a
negligence claim. As such, fewer consumers would bring claims, fewer manufacturers would have to
compensate consumers for their fault products, and manufacturers would not be deterred from
marketing unsafe products. This would defy morality and corrective justice principles, as we want to
promote fairness and justice, and hold defendants liable when they wronged another. If the negligence
standard is implemented instead of strict liability, manufacturers would often not be liable when they
wrong a consumer.
The proposed litigation to implement a negligence standard in determining a manufacturer's liability for
products with a manufacturing defect would not promote the social utility or corrective justice goals.
Exam Memo, Torts 2011
Professor Mantel
I hope you all enjoyed your semester break. The purpose of this memo is to give you a
big picture assessment of the class’s performance on the final exam. Overall I was pleased with
your final exams. Below I’ve highlighted some of the common weaknesses in your answers.
I’ve also attached the two highest scoring student answers for each of the three essay questions.
I believe carefully reading both this memo and the model answers will help you identify ways in
which you can improve your performance on future law school exams.
Essay #1 – Tenn State
This clearly was a very challenging question for many of you, as it was intended to be.
The strongest answers spotted most (although not all) of the relevant issues, and frequently
provided in-depth and nuanced analysis.
Most of you did reasonably well in your discussion of the claims the two victims (Victor
and Paul) could bring against Coach Sandusky. Some of you, however, failed to identify
potential claims for false imprisonment and the intentional infliction of emotional distress.
As for Tenn State’s liability for the harms suffered by the two victims, most of you
identified the two possible theories of liability – vicarious liability for Coach Sandusky’s conduct
and negligence for Tenn State’s own conduct (or more accurately, vicarious liability for the
negligent conduct of the janitor and athletic director). With respect to Tenn State’s liability for
Coach Sandusky’s conduct, the best answers noted that employers generally are not liable for
their employees’ intentional torts, but discussed whether the facts arguably met the exception we
saw in Fahrendorff.
With respect to Tenn State’s liability under a negligence theory, this was the primary
issue that distinguished the strongest and weakest answers, particularly the duty and breach
issue. The hypothetical raises a nonfeasance question, namely whether Tenn State owed the two
victims a duty to protect them from Sandusky’s abuse. As we discussed in class, defendants
generally do not owe plaintiffs a duty to affirmatively protect them from others unless one of the
exceptions to the nonfeasance no duty rule is met. The best answers highlighted this issue and
identified possible exceptions that might apply to Tenn State’s conduct: (1) Tenn State was
required by law to report Sandusky’s abuse; (2) Tenn State as Sandusky’s employer had a duty to
protect third persons from Sandusky’s abuse; (3) Tenn State as a landowner had a duty to protect
those on its property from harm; and (4) after learning of the first victim (Victor), Tenn State
(through the actions of its athletic director) assumed a duty to protect potential future victims
from abuse. Regarding Tenn State’s status as a landowner, there is a question as to whether the
victims were invitors, licensees, or trespassers. The victims’ status would determine the standard
of care Tenn State as a landowner owed the victims. Tenn State’s conduct also could have been
analyzed as affirmative conduct. Specifically, Tenn State may have been negligent in its
hiring/supervision of Sandusky and by facilitating Sandusky’s tortious conduct by giving him the
means to do so (the key to the locker room), similar to the defendant-bar in Brigance. Many of
you focused on only 1 or 2 ways in which Tenn State may have breached the duty of care. For
example, several answers focused only on the negligence per se issue (Tenn State’s failure to
report Sandusky’s suspected abuse of Victor). In addition, numerous answers failed to note that
it would be difficult for Victor to establish that Tenn State owed him a duty of care and breached
this duty given that Sandusky’s abuse of Victor may not have been reasonably foreseeable.
With respect to Paul’s claim against Tenn State, it was important to note that he suffered
no direct physical harm (because Sandusky never touched him), only emotional harm.
Accordingly, to succeed against Tenn State under a theory of negligence, Paul must bring a
negligent infliction of emotional distress claim. Many of you missed this issue. As for which
type of NIED claim Paul could bring, his claim would be a fright-to-self claim – that is, the
question is whether Tenn State’s negligence indirectly led to Paul’s fear that Sandusky would
physically hurt him and Paul’s resulting emotional distress and suicide. As for those who
discussed the NIED issue, many of you failed to evaluate the issue in the alternative under the
general negligence approach followed in Camper.
As for the victims’ parents’ claims against Sandusky and Tenn State, I expected you to
evaluate whether they could have brought IIED and NIED (bystander) claims. Many of you
highlighted only one of these claims, but failed to discuss the other type of claim.
Regarding the statute of limitations/statute of repose issues, quite a few of you misread
the relevant provisions of the survival and wrongful death statute that you were given. The
statute stated that its time limitations apply only to claims brought under the statute, which would
include the survival claims brought by Paul’s estate and the wrongful death action brought by
Paul’s parents. Many of you read the statute’s time limitations as applying to all potential claims
brought against Coach Sandusky and Tenn State. (The hypothetical did not give any information
as to the applicable statute of limitations and statute of repose for the remaining claims.)
Reading statutes is a very important lawyering skill and is something you will get better at over
time with practice. I encourage each of you to take at least one law school class that offers you
the opportunity to read lots of statutory provisions so that you can become better at reading
statutes.
Essay #2 – Defective Toilet Seat
Many of you did quite well on this question. Those receiving lower scores on this
question usually provided a solid analysis on the issues they identified, but missed several key
issues.
Most of you recognized that Mary (the plaintiff) could bring a products liability claim
based on a manufacturing defect. Some of you failed to discuss her claim under the two
approaches to manufacturing defect cases – the consumer expectation test and the Restatement’s
test – focusing instead on only one approach. The stronger answers also included a more
nuanced analysis of whether Mary’s standing on the toilet seat was a foreseeable misuse of the
product, and how your conclusions on this issue impact the manufacturer’s liability under the
consumer expectation test.
To my disappointment, many of you missed Mary’s potential products liability claim
based on a design defect. For those of you who spotted the design defect issue, I expected you to
analyze Mary’s claim under both the consumer expectation test and the RAD test, whereas some
of you focused only on the RAD test.
Quite a few of you focused exclusively on Mary’s potential product liability claims,
failing to discuss the claims Mary could bring under a theory of general negligence or vicarious
liability (for the negligence of the Ernest, the manufacturer’s employee). Regarding Mary’s
claims under a theory of general negligence, only a minority of you discussed the manufacturer’s
potential negligence for failing to (1) adequately supervise Ernest, (2) implement an adequate
quality assurance program, and (3) conform to industry custom by implementing a “unique”
manufacturing process.
Most of you recognized that Mary herself may have acted negligently. However, many
of you simply assumed that her conduct was negligent and moved on to discussing how this
affected Mary’s damages. The stronger answers recognized that Mary’s conduct was not
obviously negligent, and discussed the arguments for and against characterizing her conduct as
negligent. Assuming Mary’s conduct was negligent, many courts would ignore her negligence
under the exception to comparative fault for foreseeable misuses of a product; quite a few of you
missed this exception.
Essay #3 – Policy Discussion of Strict Liability for Manufacturing Defects
Many of you gave thoughtful answers on whether to retain or eliminate strict liability for
manufacturing defects. In general, what separated the strongest answers from the rest was a
thorough discussion of arguments both for and against strict liability for manufacturing defects.
Those of you who simply presented the arguments in support of your position, without
acknowledging and responding to the counterarguments, scored lower. Those who scored
highest also hit on all or most of the policy considerations we covered during this course, while
others limited their discussion to only those concerns they considered most important.
Advice for Those Who Were Under Time Pressure
Some of you noted that you did not have enough time to discuss all of the issues raised by
a question. As I mentioned in class, when you are running out of time, usually the best approach
is to briefly touch on the remaining issues. Most professors award a fair number of points for
spotting an issue and demonstrating in a sentence or two that you understood the ambiguities
raised by the hypothetical. (Some of the model answers include examples of this.) You are
likely to rack-up more points by briefly touching on many issues rather than providing an indepth discussion of a few issues.
Words of Wisdom (???) for Those Who are Disappointed with Their Grade
For those of you who had hoped for a higher grade, I want to let you know that even
among the lower scoring exams, I saw in your answers the potential to be good lawyers. Usually
a lower grade was not due to your applying the law incorrectly – often your discussion of the
issues you identified was solid. Rather, you simply missed some of the issues that your
classmates discussed, or your discussion of an issue was less nuanced than your classmates’
analysis. In the “real world,” however, you obviously will have more than an hour or two to
analyze a case. In the real world, you will have the time to carefully review a case, and thus are
likely to spot most of the relevant issues. Also, as you become more familiar with an area of
law, you will become better at identifying the issues relevant to your client’s case. You also will
have the time to conduct legal research when necessary to clarify your understanding of the law
and how it may apply to your client’s case.
Also, please understand that law school grades are very different from most undergrad
grades. The Law Center has a very strict grading policy that limits the number of As a professor
can give, as well as requires that first year professors give a certain number of Cs. So in contrast
to undergrad grades, a low grade does not necessarily mean that you had a poor understanding of
the course materials; rather, it reflects your performance on the final exam relative to your
classmates’ performance.
*** **
Thank you again for a very enjoyable semester. I wish you the best of luck in the
remainder of your time here at the Law Center, and hope you all have successful and rewarding
legal careers.