EDSA Dos

This is my winning piece ... I forgot which year. I must have grown a lot older... yet nothing much have changed in the Philippines.. We still havent learned anything.


Lessons from People Power II


EDSA II have given many of us many things to be proud of yet many things to be ashamed of as well. We felt proud because we have once again ousted the highest official of our land who have recklessly and flagrantly/shamelessly depicted how a man of power can do almost anything he wants to do at the expense of the massive population which he has vowed to serve. Well, almost.

But how was it when the very same leader was proclaimed the winner after the election? Did we not have a feast and did we not rejoice with him in his victory? Did we not laugh at his stupid jokes and the jokes about him? How many of them were really there with him during his winning moments acting in pretense or for real? Were there plenty of them who proclaimed that “their boss” was not guilty, is a good man and that they would stay with him, defend and protect him but have left him the moment he was almost helpless and wanting?

What have we learned of the People Power II then? Was it really a people power at all? Is the EDSA Dos something that we should be proud of or be ashamed of, or both feel equivocally? How was it with the first People Power? Why was there a second? Will there be a third?

EDSA II have become a scary symbol of how unstable our system of government is for all of us. The constitution was supposedly the basis of how a public servant is to be put in place and replaced. But it seems that the people, considerably not the majority though, have a better way of ending and starting the terms of our leaders. Proven twice. The supremacy of the people is said to be the very existence of the state, the general welfare is said to be the main basis of laws. And this is what the People Power is all about, that is why it works every time. What is the constitution for then if we resort to People Power every time a leader cannot prove his worth in a short span of time during his reign? Does this not pose a threat to the book of laws itself? Are we not becoming a country of mob rule? An anarchic
system of moving on to the utopia? These are the questionable sides of the People Power.

EDSA II however, has obviously become a strong factor which would and could put our leaders on their toes and move them to act according to the principle and essence of their being in the public service. The historical event would flash in their minds and give them a solid reminder of how strong and united most of the Filipino people are and this knowledge will make them think twice before acting on a diversion of their original function. The ripples of the People Power will motivate them to do better in their line of duty lest they become the next hero to be held for inquisition, the next who would make a sad wave of goodbye to the very same people who carried him to the palace. All leaders want a good place in history and EDSA II provides them the most solid pillar to hold on to in case they become hesitant and lost in their roles as the Biggest Filipino Symbol. It would be foolishness if they ever falter in being reminded of the soul of the People Power.


It is often said that if there is a beginning there is an end. In People Power II I think the saying does not apply. The event started with I and now it has a II and I believe it will go on to three, four and so on. The question is how many EDSA Revolution or People Power would it take to make us feel secure about our bureaucracy and in the stability of our nation? Must we always then take our protests to the streets in order to overthrow the very person we voted for? The very person whom the masses loved and elected in the position we thought he deserved to be in?

When will we achieve a government that we believe “shall embody our ideals and aspirations, promote the common good”? Did we ever have a government as such? Did we ever have leaders who knew what the “common good” was? How many administration have said that they are against graft and corruption, that they are for the betterment of the society, upliftment if not eradication of poverty, but have never made any visible change in all these aspects? How many of them have said that the poorest of the community deserve the most priority in their agenda, but have actually forgotten that there are indeed poor people in the provinces, in the urban areas and even in rural communities. Was there ever one of them who actually remembered the poor they have made several empty promises to in exchange for their votes as they bask in the grandeur of their authority and bathed in the power we have crowned them?

Will there come a time when the Filipino people would actually feel relieved that the most eligible candidates of the society were elected in the right places and the guilty officials locked in jails? When will that day be? Will the Filipino people ever learn to take a risk in voting for a radical choice instead of clinging on to a cancer? Will we as a whole ever be mature enough to know the difference between the bill that our leaders are supposed to make and the bills that they long for?

As long as our masses believe that the role of our leaders is to give them medicine and bags of food we will never move on from the shadow of EDSA II. As long as the masses believe that election is the best time for them to earn plenty of money, we will often be a land of distress. As long as the less educated continue to sell their votes for a hundred peso bill every election our country will continue to become a circus of protests and rallies led if not influenced by the ecclesiastical leaders of our community.

As long as the educated few refuse to recognize the fact that each of us has a responsibility in the betterment of our society we will linger in this dreadful disease of longing. We the new generation must accept the fact that we too must hurdle in our everyday struggle to take time and talk to every man who listens and we, in turn listen to how the less privileged feel about the reflection of our society. We must feel blessed in the wisdom we have gained and as a way of thanking, we share this to others who have not been given the blessing of such important commodity. Only in this least manner can we feel grateful for what we have. And only in this will we able to repay what we owe. In this small token we will feel contentment and only in the lack of this will we forever miss the days given for us to fill in the gaps and in the omission of this will we always feel remorse every time another leader is placed. We would have made a great difference in all these
then. It is not to o late but if we forget to do something about it now, it might be too late tomorrow.

It will go on as long as the Filipino people do not learn how to choose their leaders wisely. Every election we put persons to be our leaders but we in the later years of their service condemn them and regret the very reason we voted for them, the very reason we imposed on others who refuse to believe that the person we chose is indeed worthy.

There must be something wrong in this. This has been going on for a long time. We must have found the cure already. What is it then? When will we find out and what do we have to do about it? And why are we not doing something about it now?

The struggle is a long one and it does not take a day to exert a principle. It takes longer than a moment to make a person know what something means. It takes more than half or less than that to elect a president. It takes not only one person to make a revolution. If it takes myriad of people to make a People Power I want us to know that it only takes only you and me to talk to one another and move others to do the same to others. In this manner we will find the change we long for and the consolation is a gift we do not receive alone but will be savored by the next generations as well. We live by a dream, we work by a standard, we vote by a background and a promise but we talk by the heart. This can move anything. Well, almost maybe.

PhilippInes My Philippines

Philippines: Imelda's Jewels (CRAP!)

A Girl's Best Friend
Imelda Marcos is suing to keep her jewelry off the auction block
BY ANTHONY SPAETH
Monday, Sep. 19, 2005
When Philippine strongman Ferdinand Marcos fled the country on Feb. 25, 1986, First Lady Imelda was forced to leave behind the 3,000 pairs of shoes that would place her in the record books. But she wasn't traveling light: when the couple landed in Hawaii, the U.S. Customs Service confiscated Pampers boxes stuffed with jewelry, including a gold crown and three gem-encrusted tiaras (not to mention $200,000 worth of gold bullion and $1 million in Philippine pesos). And that's just what they managed to load onto the C-141 cargo plane to Hawaii: back at Malacaٌang Palace, officials discovered a stash of jewelry estimated by the government to be worth $310 million, while a further $13 million in gems (which Marcos has admitted were hers) were confiscated from a Greek national attempting to leave the country a few days later.

Now, after nearly 20 years, the Philippine government wants to cash in on that trove, saying it was paid for with public funds. It has invited three different auction houses—Christie's, Sotheby's and Bonhams—to examine 760 pieces in the collection. Representatives of Christie's flew in last week to inspect three crates of gems. Marcos, who claims the jewels are her private property and that some are heirlooms, is having none of it. The former First Lady filed a 10-page petition before a Manila court last week asking for a restraining order to prevent an auction from being held by the Presidential Commission on Good Government (PCGG), the task force assigned to track down the Marcoses' illicit wealth. "Enough is enough," she told reporters last Thursday. "What this government is doing to me is no longer right ... Why are they selling my jewels, which are mine and mine alone?"
Despite Marcos' petition, PCGG commissioner Rick Abcede is confident the sale will go ahead. "The government needs money to put into the treasury," he says. "And the Imelda jewels are the immediate answer." The government hopes the jewelry might sell for as much as $20 million. But legal action by Marcos blocked previously planned auctions in 2003 and 2004. "If Imelda wants to buy the jewels, she's free to do it," Abcede says. "But the Bureau of Internal Revenue might run after her."

—With reporting by Nelly Sindayen


From the Sep. 26, 2005 issue of TIME Asia Magazine

Divorce in the Philippines... There is no such thing..

Divorce and Annulment in the Philippines and Australia
By Michael Jones
Article XV
THE FAMILY

Section 1. The State recognizes the Filipino Family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.

The Constitution of the Republic of the Philippines, from which the above words are taken, forbids the making of laws which would "violate" the institution of marriage, and charges the State with the duty of actively intervening to protect that institution.

As a result, the legal ending of what had been a valid marriage between two living spouses, allowing them both to go on their way in life and, if they so desire, marry again, is not possible in the Philippines, and the State actively intervenes in marital disputes wherever it feels that the institution of marriage is under attack.

The law of Australia is completely different. Although the Constitution of this country gives the Federal government the power to make laws with respect to "matrimonial causes", it says nothing whatsoever about the nature of marriage. In Australia, the State prefers to facilitate the legal termination of marriages that are not working. This reflects an attitude in this country that personal relationships are a private affair which the State should have little or nothing to do with.

For Filipinos who have made this country their home, the difference between the two approaches to marriage can be a source of great personal and legal difficulty.



Divorce and nullity
But is it true that there is no divorce in the Philippines? How can it be that the Solicitor General of the Philippines recently claimed in the Supreme Court that the Philippines had the "most liberal divorce procedure in the world"? What he was referring to, in the case of Republic of the Philippines v Court of Appeals and Roridel Olaviano Molina (decision of February 13, 1997) was Article 36 of the Family Code. According to that provision, a marriage entered into by a person who was, at the time of the marriage ceremony, "psychologically incapacitated to comply with the essential marital obligations of marriage", is null and void.

To say that a marriage is "null and void" is to say that it never really happened. The couple went through the ceremony, the papers were signed, it looked like a marriage, but in fact it never was a marriage. In a divorce, the couple are legally married up until the divorce takes effect. Where the Court rules that a marriage is void (called a "declaration of nullity"), the law treats the couple as never having been married at all.

There are several other grounds on which a marriage can be declared null and void, some of which apply under Australian law as well. Since a person can only be legally married to one person at a time, any subsequent or bigamous marriage is null and void. So are marriages where one of the parties is under the legal age for getting married (now 18 in the Philippines, as in Australia), or marriages between close relatives (first cousins can't marry in the Philippines, though they can in Australia), or in some cases of mistaken identity or failure to comply with legal requirements. To complicate matters, certain other marriages in the Philippines (though not in Australia) are "voidable", which means they can be declared void in certain circumstances but remain valid until "annulled".

It goes without saying that Filipino law with respect to marriage is based on the law of the Catholic Church, known as Canon law. However, a declaration by the Marriage Tribunal of the Church that a marriage is void does not automatically make it void in Filipino law. That can only be done by the Regional Trial Court or a higher Court. It is possible therefore for a couple to be unmarried in the eyes of the Church but married in the eyes of the State.



Psychological incapacity
Article 36, which was only introduced in 1988, was put into the Family Code because Filipino law was actually stricter than the law of the Catholic Church. The "psychologically incapacitated" ground has been part of Canon law for many years.

In the case of Roridel Olaviano Molina, the Regional Trial Court of La Trinidad declared her marriage to Reynaldo Molina void under Article 36. She claimed he was immature and irresponsible as a husband and father, preferred the company of his friends to that of his family, squandered his money, was dishonest about finances, would not get work to support the family, and was highly immature and habitually quarrelsome.

That decision was upheld on appeal to the Court of Appeals, but was finally struck down by the Supreme Court. In doing so, it was following the precedent set in 1995 in the case of Leouel Santos v Court of Appeals. After these two decisions, the scope for use of Article 36 has been greatly reduced, but not removed altogether. The noted commentator Ernesto L. Pineda lists a number of examples of psychological incapacity taken from Canon law: homosexuality; lesbianism; satyriasis; nymphomania; emotional immaturity or irresponsibility; epilepsy; habitual alcoholism; criminality. It must be said that epilepsy would be unlikely to be considered a psychological problem by a modern secular Court.



Void and "voidable" marriages
As I have said, a marriage that is declared void never really happened, while a divorce just brings a marriage to an end. Unfortunately, and no doubt in large part because of the difficulty of getting out of a marriage in the Philippines, some Filipinos take the risk of marrying again while their first spouse is still alive. This is a criminal offence (bigamy) in both the Philippines and Australia, and the second marriage is considered void in both countries. A second marriage is not made valid by the subsequent termination of the first one. Thus if a person marries once in the Philippines, then marries again in Australia, then the first marriage ends because the other spouse dies or a divorce is obtained in Australia, the second marriage remains invalid and the liability to be charged with bigamy remains. But what if the first marriage is declared void?

This is where another difference arises between Filipino and Australian law. Although a void marriage is no marriage at all, in the Philippines there must be an actual declaration by a Court that the marriage is void before the person can marry again (Article 40). Any second marriage before the Court order is made is also void. Australian law takes what seems to be the more logical approach. If the marriage never happened, then all the Court is doing is stating it for the record. So if a first marriage is declared void after a second marriage has taken place (in Australia), the second marriage is perfectly valid in Australian law and the parties cannot be charged with bigamy.

The situation with respect to "voidable" marriages is more complicated. Voidable marriages can be annulled until a certain event happens or a certain time passes. After that, they are no longer open to challenge. For example, in the Philippines a person aged 18 or over but under 21 needs the consent of a parent or guardian to marry. If such a person marries without that consent, the marriage can be annulled up until the party turns 21 or for five years after that, unless after turning 21 the couple freely cohabit and live as husband and wife. If that happens, the validity of the marriage cannot be challenged.

Under Australian law, foreign marriages which are voidable under the law of the other country are considered invalid until such time as they are no longer voidable (Marriage Act, s 88D(4)). This means that a Filipino whose marriage remains voidable in the Philippines could legally marry in Australia. An example would be someone who married under the age of 21 without parental consent, and either has not yet turned 21 or did not live with the spouse after turning 21. No Court order is necessary in Australia, but would be required in the Philippines.

But Filipino law contains an even more complicated idea than the voidable marriage. Under Article 41 of the Family Code, a person is free to remarry if the first spouse has been absent for four consecutive years and the person wanting to remarry has a "well-founded belief" that the first spouse is already dead. This four year period can be reduced to two years where the first spouse disappeared in certain dangerous circumstances. In any event, there must be a Court order that the first spouse is presumed dead. Where a second marriage takes place, and the first spouse then reappears, the second marriage is "automatically terminated" (Article 42).



Choices for Filipino-Australians
A Filipino or former Filipino residing lawfully in this country for more than 12 months can of course obtain a divorce under Australian law and is then free to marry in this country. As most readers would be aware, however, the Australian divorce is not recognised in the Philippines and the first marriage continues to be valid in that country. Where possible, a declaration of nullity under Filipino law can therefore have advantages.

Generally speaking, even if both of the parties to the first marriage are living permanently in Australia, the application should be lodged in the Philippines. This is not to say that Australian Courts could not be called upon to apply Filipino law to determine the marital status of someone living in Australia, say in a bigamy case, but generally they would be reluctant to do so on the principle that each country's Courts are the ones best suited to interpret their own laws.

Perhaps because it was a new ground introduced into the law, the legislature decided to limit the availability of Article 36 in respect of marriages contracted before the Family Code came into effect on August 4, 1988 to ten years from that date. Therefore action to declare nullity on the grounds of "psychological incapacity" in respect of a marriage entered into before that date must be commenced by August 4, 1998. An action in respect of a marriage contracted on or after August 4, 1988 can be commenced at any time.

Matters of marriage and divorce are not just private issues, even in Australia. They can have serious implications in relation to property, children, immigration and even the criminal law. It can never hurt to discuss the situation confidentially with a qualified legal practitioner.

Alternative Law

In my search for MSU barpassers, I stumbled across this article. I felt a lump in my throat in reading this. Knowing that there are now new-blood lawyers seeking for betterment for the environment, and actually applying laws on protecting them and educating people makes me feel this heavy pull in my heart to make want to go back and finish what I started a few years back.


Alternative law, anyone?
Posted: 6:58 AM (Manila Time) | Jun. 20, 2004
By Rex Godinez Ortega
Inquirer News Service

THERE is no money in alternative lawyering.

Besides, what respectable lawyer would trade his barong tagalog and attaché case for a backpack and a ride on a habal-habal (an improvised motorcycle transport with extended seats) to far-flung places just to go to work? It's hardly the ideal picture of a lawyer that people have in mind.

But for alternative lawyers in Mindanao, money and glamour are not everything.

To this unique breed of lawyers, saving the environment and empowering the disadvantaged are more important -- and summer sees them working hard to win the hearts and minds of law students.

Lying just under the shadow of all the writers' workshops that blossom in the country during summer is the little-heard-of Alternative Law Groups' Summer Internship Program (ALGSIP) for law students.

Held from April to May, the ALGSIP helps law students choose the right career paths for them to take as lawyers in the future and provide them opportunities to bond and have a great time.

Lawyer Normita Batula of the Cagayan de Oro-based Balay Alternative Legal Advocates for Development in Mindanaw (Balaod-Mindanaw) said the internship program introduces law students to alternative lawyering.

Balaod-Mindanaw, the Legal Rights Center (LRC) and the Pagadian City-based Environmental Legal Assistance Center (Elac-Mindanaw) held the ALGSIP for the Northern Mindanao cluster for 24 interns from seven law schools.

Seventeen of this year's interns came from the Mindanao State University's College of Law in Iligan City, Liceo de Cagayan University in Cagayan de Oro City, and Urios College in Butuan City.

Four interns from the San Carlos University and San Juan Recoletos in Cebu City, San Agustin University in Iloilo City and La Salle Bacolod joined the Northern Mindanao cluster.

The program opened the eyes of participants to women issues, the plight of the poor, the indigenous peoples and the environment. It showed them a different side to lawyering -- one that is not so high profile but noble nonetheless.

LRC intern Eric Talja, a law student from Urios College, described his immersion with the Higao-nons in the hinterlands of Naawan town, Misamis Oriental province: "Out there you are forced to learn the law since that is what you use to help the people."

Talja also said that there was no other place in the country where he felt the need for social justice more acutely than in the charming hills overlooking the beautiful Macalajar Bay.

"I am aware of the injustices committed against indigenous peoples and the poor but it is truly different when one ... sees it face to face," said the 30-year-old former bank officer.

Balaod-Mindanaw intern Audrey Abamonga of Liceo de Cagayan University shares Talja's sentiments saying what she saw in her immersion in a town in Negros Oriental province opened her eyes to the ever widening chasm between the landed rich and the dirt-poor peasants.

The 23-year-old Abamonga said she was moved by the poverty of peasants who until now are still fighting for their benefits under the Comprehensive Agrarian Reform Program (CARP).

It was while Abamonga was helping document cases of abuse there that she heard her "calling."

"This experience has shown me that I can be in a position to help these people; and when I become a lawyer in the future I really will help them."

Another intern who also heard his "calling" is MSU-College of Law student Margarito Pacilan who entered law school because it was the "most economically profitable."

"Now, I don't even think of the money," swore the 25-year-old Elac-Mindanaw intern who was dismayed to learn -- first hand during the internship -- that even judges were ignorant of environmental laws, "especially the new laws." But no matter the personally-fulfilling and heart-warming perks of alternative lawyering, its reputation as a cash-strapped profession still remains a stumbling block for most law students.

Alternative law groups are trying to address this by establishing links with law schools in Northern Mindanao.

Lawyer Jennifer Ramos, Elac-Mindanaw area manager, and a former law student intern herself of the Ateneo Human Rights Center in 1999, said the internship program is their way of finding new blood for alternative law.

"Lawyers have to find their mission in life. This is ours," she said.

Torts

Torts Rules of Law
The following contains the Rules of Law you'll need for the Torts Practice Exam. These rules are presented in outline form only for purposes of the practice exam.

NOTE: Some rules are stated with elements that must be proven. Other rules are just stated without being broken into elements. In the latter case, you should figure out what the elements of the crime are yourself and incorporate that into your answer.

Negligence
Duty
Breach
Causation
Damages
Defenses to Negligence

Negligence
The prima facie case for negligence requires:

Duty is owed to the plaintiff by the defendant
Breach of the Duty
Causation: The defendant caused the harm to occur.
Damages: The plaintiff suffers harm.

Duty
In order to hold a defendant liable for negligence, the defendant must owe a duty of reasonable care to the plaintiff. Two issues arise in terms of duty of reasonable care:

Foreseeability
Standard of Care
Foreseeability
The duty of care must be toward a foreseeable plaintiff.

Test for foreseeability: A plaintiff is foreseeable if he was in the zone of danger created by the defendant.

Standard of Care
The Standard of care that the defendant must exercise towards the plaintiff is that of a reasonable, ordinary and prudent person in the same or similar circumstances.

Factors to consider that may or may not modify the circumstances include:

Physical characteristics
A person who has great physical strength will be judged according to an ordinary person of great physical strength. Likewise, a weak person will be judged according to a standard of what an ordinary weak person would do.

Average Mental Ability
Everyone is judged as being of average mental ability and no accommodation is made for being extraordinarily intelligent.

Same knowledge as an average member of community
Presumed to have common knowledge about known dangers in the community.

Professionals
Professionals are judged according to other professionals in same community.

Children
Children are judged according to children of same age, education, intelligence and experience.

Breach of the Duty
In order to be held liable for negligence the action by plaintiff must fall below standard of care.

The primary issue is where to draw the line as to the standard of care. Factors to consider in drawing the line are:

Custom in the community

Violation of statute (negligence per se)
Violating a statute creates a rebuttable presumption of negligence. Defendant is presumed to be liable for negligence if he breaks a law and cause harm to the plaintiff but he can rebut that presumption by showing that there was a custom to break the law.

Res Ipsa Loquitur
Latin for "The thing speaks for itself." This doctrine draws an inference of liability because the thing that caused the accident was in the exclusive control of the defendant. In other words, it couldn't be anyone but the defendant who caused the harm.

Causation
The defendant caused the harm to occur. There are two types of causation:

Actual Causation

and Proximate Causation.

Actual Causation: Did the defendant actually cause the harm to occur? There are two different tests you can use.

"But for" Test: Ask yourself the question: "But for the defendant's actions, would the plaintiff's harm have occurred?"

Substantial Factor Test: If several causes could have caused the harm, then any cause that was a substantial factor is held to be liable.

Proximate Causation: This sometimes difficult to grasp concept is actually very simple on most exams. Be sure to check with your professor but if in doubt, use the following generally accepted test:

Foreseeability Test: If harm is unforeseeable, then defendant is not held liable by reason that there is no proximate causation.

Famous Proximate Cause Case: Palsgraf v. Long Island RR. Judge Cardoza. Railroad guard pushes man who drops package. Package contains hidden fireworks that explode and cause scales to fall harming plaintiff. Illustrates that harm was not foreseeable by guard as to plaintiff so no proximate cause.

Damages
The plaintiff must suffer some harm. Two issues arise:

Was there actual harm?

Did plaintiff attempt to mitigate the harm?

Actual harm or injury: Can be shown by the following:

Personal Injury

Property Damage
Plaintiff gets Cost of repair OR fair market value

Punitive Damages
Extra damages beyond actual damage is available if the defendant's behavior was wanton and willful, reckless or malicious

Duty to mitigate: Plaintiff must not act in a manner that makes damages worse - i.e. not going to the doctor to get well. Defendant is not liable for damages where plaintiff did not mitigate.

Defenses to Negligence
Even if a defendant is found liable for negligence, he can argue to be relieved of or share liability because of a valid defense. Defenses include:

Contributory Negligence
In these circumstance, the plaintiff contributed to the negligent act. The defendant must prove the plaintiff was negligent using the negligence test above.

Under common law, if both parties are negligent, then the one with the last clear chance to prevent the accident is liable; otherwise both plaintiff and defendant share liability.

Assumption of Risk
If plaintiff knew the risk and voluntarily assumed the risk by engaging in the behavior then the plaintiff will be denied recovery.

Emergency Doctrine
Allows defendant to lower standard of care because an emergency required them to act rashly in order to avoid a greater harm from occurring.

Custom
Custom can be used to show that behavior was in line with the behavior of everyone else, thus resulting in no breach. E.g. Everyone drives at 50 MPH on that particular stretch of the highway even though it is posted at 30 MPH.

Torts Practice Exam
Instructions:
Read the following fact pattern, and answer the question. Give yourself 60 minutes to complete this exam. Do not go over the time limit.

We recommend that you take this exam only after you have completed your study of Negligence issues. If necessary, review the Torts Rules of Law before starting this exam.

Once you have completed the practice exam in the time allotted, then compare your answer with this Torts Sample Answer.


Torts Fact Pattern
David is driving 25 MPH in 25 MPH zone down a four lane street where there are children playing. One nine-year-old child, Kevin, runs into the street chasing a soccer ball. David, without looking over his shoulder, swerves into the other lane to avoid Kevin and in the process he hits a car, driven by Peter, that was speeding past him in the left-hand lane going in the same direction.

Peter loses control of his car, hits a telephone pole and is seriously and permanently injured. The telephone pole, owned by the local phone company TeleCo, easily snaps into two pieces and hits Kevin, who is still in the street, knocking him unconscious and resulting in permanent injuries.

TeleCo never did any testing of its poles to establish how easily the poles broke. The only factor used in manufacturing the poles was cost. The poles were made of low quality trees and were not treated in any significant manner except for a coating of tar. No reinforcement was used on the poles.

Question: What are the various liabilities and rights of the parties involved?

Once you have completed the practice exam in the time allotted, then compare your answer with this Torts Sample Answer.

Torts Sample Answer
The following is a sample answer to the Torts Practice Exam. If you have not already done so, take the exam and then compare your answer to this sample. If necessary, you can also review the Torts Rules of Law for this exam. Since law school professors vary in what they consider excellent work, this answer is only presented as a sample.

The injured individuals can seek damages based on a theory of negligence. I will examine the potential liability of each party in turn. 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.

Peter v. David
Although David may have breached a duty in not looking when changing lanes, he has a defense in the emergency doctrine. 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 25 MPH is a standard speed limit for residential areas where kids normally play, I don't think that David had a duty to drive slower.

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. I think that 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.

Kevin v. David
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 review, if he hadn't swerved into the other lane, he would not have sent Peter's car crashing into the phone pole. 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. Here, I don't think that a telephone pole snapping in half and falling on top of a kid is a likely result from swerving into another lane in order to avoid the kid in the first place. It is as improbable a result as that in Palsgraf. David is probably not liable for negligence in regard to Kevin's injuries.

Kevin, David v. Peter
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 since he was over the speed limit. Breaking the law - such as posted speed limits - creates a rebuttable presumption of negligence and doesn't require further analysis. Peter can rebut the presumption of negligence by showing it was the 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.

Peter can also argue contributory negligence against both David for swerving and Kevin for running into the street. While David was not judged to be negligent for, I don't think his claim for damages to his car will survive. Peter's claim of contributory negligence against David is valid since David had a duty to look before changing lanes. Although the emergency doctrine relieves David of liability, it does not confer liability on Peter. David, or his insurance company, will probably have to pay damages on 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. I think it is likely that Kevin, or his parents, will bear some responsibility for Kevin's injuries since he did not belong in the street.

Peter's strongest defense against Kevin's claim is to argue - as David did above - 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, it is less clear. The casual connection is closer than it was with David. I think that it is foreseeable that when someone is speeding they might lose control and damage would result from that loss of control. While the pole snapping was not foreseeable, the risk of some type of harm coming about was foreseeable. It is not necessary to show that a specific harm was foreseeable as it is that some harm was foreseeable. I think Peter will be liable for some measure of Kevin's damages.

Kevin v. TeleCo
Although it may not have been foreseeable for this accident to happen, I think that TeleCo is probably liable to Kevin for damages. Here, TeleCo 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.

Despite its duty to protect against potential harm, TeleCo 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 TeleCo thought was relevant was keeping its costs down. Consequently, I think that TeleCo's failure to seek alternatives was a breach of its duty of care.

Under a causation analysis, the breach was both a direct and proximate cause of Kevin's injuries. But-for TeleCo's breach, Kevin's injuries would not have occurred. Furthermore, it is foreseeable in a car accident where a pole falls, that an innocent bystander will get hurt. Since Kevin has shown damages, I think that TeleCo will probably be found negligent and liable for damages.