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.
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.
posted by alfieping at 11:22 PM
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