TORTS
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CONCORD LAW SCHOOL
FINAL EXAMINATION ISSUE OUTLINE
TORTS: BARK the DOG
I.
Dep v. Ace
A.
Negligence
1.
Breach of duty? Did Ace act unreasonably under the:
Learned Hand Test—was gravity and likelihood of harm (two past
attack incidents, but none in past six months) greater than burden on
Ace (restrain Bark before propping door open) to have changed his
behavior. Was putting up the fence enough to show he has acted
reasonably?
Or ----Neg per se test—was the statute only intended to guard against dogs
attacking while out on a walk or running loose, but not jumping over
fence? Intended to protect people or property (other dogs) too?
B.
2.
Causation—Was Ace’s negligence the actual and proximate cause of
all Dep’s injuries? (Inca—yes, but fire and lost job and emotional
injuries too?)
3.
Contrib/Comp fault—Was Dep at fault for grilling too close to house
contra to manufacturer's warnings, not securing the fluid, running and
knocking over the fluid?
Strict Liability
1.
II.
Knowledge of dangerous propensities—two past incidents sufficient?
Dep v. Krull
A.
Negligence
1.
Breach of duty? Leaving the rags created high enough risk of harm?
No burden or utility to Krull’s conduct.
2.
Causation? Were the rags an actual cause of the harm to the
house or would it have burned anyway due to Dep’s
negligence?
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CONCORD LAW SCHOOL
FINAL EXAMINATION ISSUE OUTLINE
TORTS: BELLCO
The injured individuals can seek damages based on a theory of negligence. The prima facie case for
negligence is established by showing a duty of reasonable care, breach of the duty, actual and
proximate cause, and damage. Negligence claims may be asserted by Peter against David, by Kevin
against David, by Kevin and David against Peter, and by Kevin against Bellco.
I. Peter v. David (25 points)
Although David may have breached a duty in not looking when changing lanes, he has a defense in
the emergency doctrine.
A.
Negligence—Duty--Speed: To prove negligence, Peter has the burden to
prove that David had a duty to drive more carefully. One theory would be that David
should drive slower than the speed limit when kids were present. Evidence of
breaking the law is automatically considered a breach of a duty, but not breaking the
law doesn't necessarily establish that a breach didn't occur. All of the facts and
circumstances must be considered. Since 30 mph is a standard speed limit for
residential areas where kids normally play, there does not appear to be basis for
imposing a duty on David to drive slower than the posted speed limit here.
B.
Negligence—Duty--Lane Change: David, however, probably breached a duty
of care by not looking before he changed lanes. A reasonable and prudent person
would naturally look before changing lanes. Here, however, David can claim two
defenses. First, he can claim contributory negligence since Peter was speeding. (See
below for an analysis of Peter's liability.) Second, David can claim the emergency
doctrine. Since his swerving into the lane avoided an accident with Kevin, he was
justified in making the split-second decision to swerve. Under the duty of reasonable
care analysis, David acted with the care of an ordinary and prudent person under the
circumstances of an emergency. Therefore, David will probably not be found negligent
in regard to Peter's claim. Even if he is found negligent, David's liability is limited if
Peter is found to be liable for contributory negligence, or, in the alternative, if the
jurisdiction has a comparative negligence statute, then the damage award, if any, will
be reduced.
II. Kevin v. David (25 points)
A.
Actual Causation: Actual causation is established by demonstrating that but
for the defendant’s negligent conduct, defendant would not have been injured. This
“but for” test applies where there is a single, independent cause of the injury. As to
Kevin's claim of negligence against David, it is arguable that David's action was the
cause of the injury that occurred to Kevin. Under the "but-for" standard of causation, if
he hadn't swerved into the other lane, he would not have sent Peter's car crashing
into the phone pole.
B.
Proximate Cause: However, Kevin's claim against David probably loses on the
issue of proximate cause. Proximate cause limits the liability of David to those risks
that were foreseeable. Was the harm (the telephone pole snapping in two) within the
scope of the foreseeable risks (collision with vehicles in other lanes) created by
David’s negligence (swerving out of his lane without looking). Under traditional
proximate cause analysis, the kind of harm here -- a telephone pole snapping in half
and falling on top of a child nearby – does not appear to be a reasonably likely result
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from swerving into another lane. In this scenario, Kevin is likely to be viewed as an
unforeseeable plaintiff. Accordingly, David will not be liable to Kevin for negligence.
III. Kevin and David v. Peter (25 points)
A.
Breach of Duty—Negligence Per Se: Both Kevin and David can state a claim
against Peter for their damages as a result of Peter's negligence in driving over the
speed limit. Peter is liable under the theory of negligence per se. Under that theory,
Kevin and David can use Peter’s breach of the statute to establish his duty and breach
of duty provided that (a) Kevin and David are within the class of persons to be protected
by such a law, (b) Kevin and David suffered the kind of harm to be prevented by such a
law and (c) Peter has no excuse or justification for violating the law. A residential area
speed limit is a law obviously designed to protect children playing in the area, such as
Kevin. However, such laws also protect other motorists in the area, such as David, who
are driving within the speed limit. The injuries suffered by both Kevin and David in the
accident occasioned by Peter’s violation are the kinds of traffic-related injuries the
statute is designed to prevent. However, Peter may be able to defeat the application of
negligence per se on the third element of justification or excuse. Peter might attempt to
demonstrate the existence of a custom to speed on that street; however, the fact that
children were present would go to show that Peter had a duty of care to ignore the
custom and slow down under those circumstances. Thus, overall, it appears likely that
Peter will be found liable for negligence per se.
B.
Contributory Negligence: As an affirmative defense, Peter can also argue
contributory negligence against both David for swerving and Kevin for running into the
street. Peter's defense of contributory negligence against David is valid since David
had a duty to look before changing lanes. Although the emergency doctrine (see
discussion above) relieves David of liability, it does not impose liability on Peter.
David, or his insurance company, will probably have to pay for the damages to David's
car.
Kevin will be judged by the standard of what a reasonable and prudent nine year old
would do when playing games in his own neighborhood. The neighborhood
represents safety in Kevin's mind, thus an exuberant nine-year-old might feel safe
enough to run in the street. Even so, most kids are taught at an early age to look both
ways before crossing the street. Accordingly, it is likely that Kevin, or his parents, will
be allocated some share of fault for Kevin's injuries since he did not belong in the
street. In the alternative, comparative negligence may be adopted in the jurisdiction.
Students should discuss pure and modified comparative negligence and the impact
that such negligence would have on a damage award.
C.
Proximate Cause: Peter's strongest defense against Kevin's claim is to argue,
as discussed above regarding David’s liability, that the injuries arising form the
telephone pole were not foreseeable, and therefore the damage is too attenuated for
Peter to be held liable. Here, however, the force of that argument may be less than it
was in Kevin’s case against David. The casual connection is closer than it was with
David. Arguable, it is foreseeable that when someone is speeding, he might lose
control of his car, and damage would result from that loss of control. While the pole
snapping was not foreseeable, the risk of some type of harm to others coming about
was foreseeable. It is not necessary to show that a specific harm was foreseeable if
the harm that occurred was of the general type that was reasonably foreseeable.
Certainly, it is reasonably foreseeable that when a driver, such as Peter, loses control
of a car, he may crash into all kinds of fixtures along side the road and cause further
injuries to persons in the vicinity of those fixtures. For that reason, Peter will be liable
for some measure of Kevin's damages.
IV. Kevin v. Bellco (25 points)
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A.
Bellco’s Duty of Care: Tort defendants owe a general duty to act with
reasonable care towards all foreseeable plaintiffs. Here, Bellco was under a duty of
reasonable care since it knew that its telephone poles would be placed along the
sides of roads. It was foreseeable that a car might hit a pole with sufficient force as to
knock the pole down. Since the poles are commonly placed in neighborhoods, it is
reasonable to conclude that a pole might fall on someone, such as a child, in the
neighborhood.
B.
Breach of Duty: Despite its duty to protect against potential harm, Bellco did not
do any testing to determine the danger involved in falling poles. Furthermore, it did
nothing to mitigate the danger by seeking to reinforce the pole with metal strips, to
sink poles deeper in the ground or buy a harder type of wood. The only factor that
Bellco thought was relevant was keeping its costs down. However, under the Learned
Hand test of the Carroll Towing case, whether Bellco had to shoulder the burden (B)
of reinforcing the pole or using a different design depends on the gravity of the harm
(L) as a factor of the likelihood that the harm will occur (P). In order to establish
breach, Kevin must show that the burden on Bellco of using a safer pole was
outweighed by the probability that serious injury would occur in the likely event that an
automobile struck one of the poles in the vicinity of a bystander. In this case, we do
not have information about the cost of using a reinforced pole or the cost of using
alternative pole designs, if they were available. Assuming that a different design or
construction was feasible and not grossly disproportionate in costs to the value of the
injuries to be avoided, Kevin will be able to establish Bellco’s breach of duty.
C.
Causation: Under a causation analysis, Bellco’s breach of duty was both a
direct and proximate cause of Kevin's injuries. Kevin's injuries would not have
occurred but for Bellco’s breach of duty in selecting pole construction and design
solely with the objective of minimizing costs. Furthermore, it is foreseeable that when
a pole is knocked down by a car in an accident, any person in the vicinity of the pole is
likely to be seriously injured by it. Since Kevin has shown damages, a prima facie
case of negligence against Bellco is likely to be established.
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CONCORD LAW SCHOOL
FINAL EXAMINATION ISSUE OUTLINE
TORTS: BOB's BOAT
1.
Exec v. Bob
Negligence in not checking for life jackets. Student should discuss the elements of negligence,
most important of which here is proximate cause. Since the fishing boat would have saved Alice,
failure to have the life preservers was the proximate cause of death. Students should distinguish
between wrongful death actions (recovery for victim’s family for their loss) and survival actions
(recovery for pain and suffering or other pre-death damages suffered by the decedent).
2.
Exec v. Victor
Negligence for failure to complete the rescue attempt. No duty to rescue, but once there is
intervention, a duty arises. Under traditional view, once rescue undertaken, the rescuer may not
leave the victim in a worse position than when she started. Under the modern view, rescuer must
act reasonably. Under the traditional view, the issue is whether Victor’s letting go of Alice placed
her in a worse position. Although the facts state that Alice was not a good swimmer, and thus she
may have drowned even if Victor hadn’t undertaken the rescue, the fishing boat would have saved
Alice. Thus, Victor did leave her in a worse position. Under the modern view, it was likely
unreasonable for Victor to let go of Alice just to save the ice cream from being stolen.
3.
Paula v. Dep for emotional distress
--Students should list elements of IIED: defendant’s intentionally or recklessly causes victim
severe mental distress. Defendant’s conduct must be extreme and outrageous.
--Outrageous? This is conduct beyond all bounds of decency, utterly intolerable in a civilized
society. It goes beyond callousness or rudeness. The vulnerability of the victim is important Here,
Dep could claim that he was just trying to play a practical joke on Paula and that at worst Dep’s
conduct was callous. Here, though, we have a history of bad blood between Dep and Paula, and
Dep bought the video with the apparent hope of greatly upsetting Paula. Dep’s asking Paula how
her daughter was doing should be considered outrageous, given that Dep knew Alice died by
drowning, The videotape contained a similar scene, and Dep knew Paula was unaware of her
daughter’s death when he gave her the tape.
--Intent to cause severe emotional distress?
Intentional or reckless conduct will suffice to establish this element of the tort. Here, Dep, by
giving Paula the video, may have intended to cause Paula great distress Also, if Dep acted with a
deliberate disregard of a high probability that severe mental stress would occur, that would suffice
under a recklessness theory.
--Severe emotional distress?
Paula must show that she suffered severe emotional distress as a result of Dep’s conduct. Mild
distress will not suffice. Under the traditional rule, physical manifestations of severe emotional
distress was required, but most jurisdictions no longer require this for IIED. Thus, if Paula is able
to show a causal connection between Dep’s conduct and Paula’s severe stress, Paula will
establish this element.
4.
Spouse vs. Bob
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Damages for Spouse if Spouse can show Bob’s negligence caused the death of Victor. Proof of
Bob’s negligence will be based on “danger invites rescue” doctrine. Bob failed to check if the boat
had life preservers. If that is negligent, (see 1. Exec v Bob above), then there will be an exception
to the “no duty to rescue” doctrine: the exception is that if a party negligently causes the need for a
rescue, then that party will be liable to the rescuer. Here, Bob’s negligence caused Alice to begin
to drown, and also caused Victor to undertake the rescue. Bob is thus liable for proximately
caused injuries to Victor. Here, it was foreseeable that Victor would drown, given that there were
heavy waves. Loss of consortium damages for Spouse.
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