Analyzing Negligence & Strict Liability in Wrongful Death & Property Damage, Exams of Law of Torts

Download Analyzing Negligence & Strict Liability in Wrongful Death & Property Damage and more Exams Law of Torts in PDF only on Docsity! The facts for this question were based upon Trainor v. Estate of Hansen, 740 So.2d 1201 (1999), in which the court held that the violation of the statute created a cause of action for social host liability. TORTS I PROFESSOR DEWOLF SUMMER 2005 July 11, 2005 MIDTERM EXAM SAMPLE ANSWER QUESTION 1 In order to recover, Becky ("BT") will need to establish that (1) the Hansens ("Hs") breached a duty that they owed to Megan, (2) that such a breach was a proximate cause of Megan's death; and (3) BT is entitled to recover pursuant to statutory remedies for wrongful death. Breach of Duty A breach of duty can be shown either by establishing negligence on the part of the defendant, or that the defendant is subject to some form of strict liability. I don't see any basis for strict liability on these facts, and consequently we will need to show negligence on Hs' part. Negligence is the failure to use reasonable care. One powerful way to establish negligence is to show that the defendant violated a statute that was designed to prevent injuries like this. Linden Statutes § 856.015 forbids permitting minors to drink at "open house parties," which this would appear to be. In some jurisdictions a violation of a statute is considered negligence per se; that is, the violation of the statute (if unexcused) establishes negligence as a matter of law. In other jurisdictions the violation is evidence of negligence. However, negligence per se would not apply unless the statute is actually violated. Here the statute forbids having an "open house party" where the defendant (1) knows that an alcoholic beverage is in the possession of or being consumed by the minor, and (2) the defendant fails to take reasonable steps to prevent such possession or consumption. Here we would need evidence that Hs knew that minors were possessing or consuming alcohol and that they failed to take reasonable steps to prevent such possession / consumption. (In addition, the application of negligence per se requires a finding that the purpose of the statute was at least in part to prevent injuries like this. I don't think the judge would have any doubts about statutory purpose. In some cases a statutory violation would be excused, but in this case the excuse would likely be a denial of the elements of the statutory violation rather than a separate excuse such as an emergency. Proximate Cause Proximate cause is composed of two elements: but-for cause and legal cause. To satisfy but- for cause, BT would need to show that, more probably than not, but for the Hs' negligence Megan would not have died. To satisfy this test we will need to show that, but for the alcohol that Nelson consumed, he would not have collided with Benson. The facts state that Nelson drank five glasses in two hours. If Nelson is of average body weight, and the glass was of normal size, that would probably result in impairment of Nelson's ability to drive. Since even the first drink was illegal, even if Nelson's BAC was not above the legal limit, we will probably have persuasive evidence that alcohol made a difference in his ability to drive, and but for the influence of alcohol Megan would still be alive. As far as legal cause, there is nothing to break the chain of causation between serving alcohol to a minor and the injury. True, there were many fortuities in how the accident came about, but none of them would prevent a finding of legal cause. In older cases courts refused to find that the overserving of a driver was a proximate cause of injury because of the intervening actions of the intoxicated driver. However, by enacting the statute prohibiting the supply of alcohol to minors, the legislature would likely be found by the court to have established legal causation as a matter of law. Damages DeWolf, Torts I, Summer 2005, Midterm Sample Answer Page 2 The facts of this case were drawn from Koger v. Ferrin, 23 Kan.App.2d, 926 P.2d 680 (1996), in which the court rejected a strict liability claim, but permitted entry of a judgment based upon defendants’ negligence. The statute authorizes a recovery by "survivors" of the decedent, which would include BT. The statute is pretty generous in its enumeration of recoverable damages, and the courts are instructed to construe the statute "liberally." BT is entitled to "lost support and services," which might include functions that Megan performed for the family, such as babysitting siblings or housecleaning. I'm assuming that Megan was a minor, as defined by the statute, which is anyone under 25 years old (§768.18(2). More significant is the right to recover for "mental pain and suffering" (§ 768.21(4)), which for a mother who lost her daughter would be considerable. (Even if MT were an adult, BT would be entitled to this recovery so long as MT had no other survivors.) There doesn't appear to be any basis for the estate of Megan to recover, since she would not qualify as a spouse, or as someone who is "not a minor child" (§ 768.21(6)). If the evidence shows reckless disregard for safety (e.g., evidence that Hs were warned about minors imbibing, and Hs dismissed the concern), then BT could ask for punitive damages. Unless additional damaging facts are brought forward, I wouldn't expect a punitive award. In addition, there is no explicit mention fo punitive damages in the wrongful death statute, and it does say that actions for personal injury abate with the death of the decedent, so I'd want to be sure that punitive damages are authorized for wrongful death actions in this jurisdiction. [NOTE: In the exam as originally given, the facts state that at the last minute the Hansens decided not to attend the party. It should have stated that at the last minute Nelson's parents decided not to attend the party. I don't think it changes the analysis significantly.] QUESTION 2 The owners of the Koger ranch (or anyone who lost property as a result of the fire) could recover from Seven-S Corporation (7S) would be found liable if the plaintiffs showed that (1) 7S breached a duty of care, which (2) proximately caused (3) the property damage. Breach of Duty There are two ways to establish a breach of duty. One is to show that 7S acted negligently; the other is to show that their conduct is subject to strict liability. (1) Negligence. Negligence is the failure to use reasonable care. An employer is vicariously liable for its employees' negligence if committed in the course and scope of employment Plaintiffs would point to Seidel's apparent failure to make sure the fire was out. It may also be that Seidel and Ferrin's response to the phone call from the rancher was negligent. Several doctrines might prove useful to the plaintiffs: Industry Custom. Farmers and ranchers might have methods of dealing with fires that would establish the reasonableness (or negligence) in Seidel's initial approach to the fire. If Seidel's conduct conformed to industry standard, we would still be vulnerable to the claim that a reasonable person would have done more. Perhaps Learned Hand's calculus (comparing the cost of prevention to the probability of loss multiplied by the magnitude of loss) would suggest that additional precautions (given the heightened fire danger) were advisable. It's possible that 7S had its own internal policies or rules with respect to dealing with fires. If Seidel failed to follow those policies it would be strong evidence of negligence. Even worse, if a statute or regulation prescribes the proper way to deal with a fire, and Seidel failed to follow it, the judge might treat the violation as negligence per se—conclusive evidence of negligence. That would occur if the jurisdiction follows the so-called Cardozo rule, and assuming that the statute was in part designed to prevent damage from fires like this.