TA Practice Torts Hypos for Gilles and Answers PDF

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TA Practice Torts Hypos for Gilles and Answers. This is it. Practice it. Do it. Don't slack off. This is what it is....

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TA SESSION #1: Question 1: In Hammontree v. Jenner, plaintiffs argued that strict liability rather than negligence should be imposed on Jenner and sought to draw an analogy to strict products liability. This argument failed, but would it have been stronger or weaker if the defendant had been driving a taxi? Why or why not? Approaches/discussion points: Probably the plaintiffs’ argument would have been stronger if Jenner had been driving a taxi. One of the justifications for strict products liability is that it will force the product manufacturer to spread the costs of accidents that occur despite taking precautions; if the product or activity is socially beneficial, then society will prefer to pay that cost rather than live without the product or activity. A person on his own personal business (like Jenner when he was driving his car) does not have the ability to spread costs, but a taxi driver, who has paying passenger, might. But it isn’t clear that this difference, though stronger, would change the Hammontree court’s ruling given its concerns about the likelihood of administrative confusion and potential unfairness that a strict liability approach would produce. Think of the differences between negligence and strict liability, and make sure you understand both. Question 2: Law Student A sues Professor Blue for negligent instruction and adds the Cardozo Law School as a defendant as well. Assuming the student proves the negligence of Professor Blue, would the Law School be liable as well? Why or why not? Approaches/discussion points: First we need to establish that Professor Blue is an employee (seems like a good bet) and that, by teaching, s/he is acting within the scope of employment. Applying the Birkner factors, Blue is doing work he was hired to perform (teaching), presumably on Law School property, with the goal of serving the Law School’s interests. Since Blue appears to be an employee of Cardozo Law School and acting within the scope of his/her employment, he may be held directly liable and the Law School vicariously liable for his/her negligence. The big point here is to know the Birkner factors and how they apply to different cases and fact patters, like we did with Christensen. It’s also important to emphasize that (1) once you’ve gone through the Birkner factors, there’s no need to delve into independent contractor or other exceptions to vicarious liability; and (2) the question doesn’t require any analysis of the substantive claim for “negligent instruction” because the question only asks who can be held liable.

TA SESSION #2:

Hypo 1: Plaintiff, who is blind in one eye, works in a factory that manufactures rakes. While working on the factory line, plaintiff is blinded in his good eye when a metal splinter flies off a rake he is assembling. He sues his employer, alleging negligence in failing to provide him a pair of goggles. Assume that, in this jurisdiction, there is precedent holding that

an employer is not negligent for failing to supply goggles to workers. The trial judge nevertheless permits the jury to decide the employer’s negligence, and the jury returns a verdict for the plaintiff. The defendant appeals, citing Carroll Towing as the relevant precedent. How should the appellate court rule? Approaches/discussion points: The first and most important point of this Q is to think about how to price the variables, even if it’s a rough estimation, because the Hand formula offers a way of putting numbers to an intuitive analysis about risks vs. rewards. The second point is to present a case with a complicated procedural posture. First, P, L and B are about comparing the costs of a defendant’s precaution against harm with the expected accident losses that can be prevented by adopting that precaution. Here’s one way of providing content to these variables: B=the cost of providing goggles (and maybe any lost productivity because of wearing them). P=the probability of metal flying into a worker’s eye and blinding him (note that whatever P might be for someone who has sight in both eyes, it will be about ½ of that for our plaintiff because he has only one eye that can be blinded – or maybe slightly higher than ½ because a one-eyed plaintiff may be less able to avoid flying metal sparks). L= for a two-eyed worker, the loss is only the sight in one eye. But for our plaintiff, the loss is becoming entirely blind -- a far greater loss than simply losing sight in one eye. So on these soft facts, notwithstanding the precedent in this jurisdiction, its likely that B is far less than PxL – which means the trial judge was arguably correct in permitting the case to go to the jury and the appellate court should therefore affirm the plaintiff’s verdict. On the other hand, if there is precedent establishing that employers are not negligent for failing to provide their workers with goggles, a motion to dismiss or for summary judgment should have been granted because the court could decide this as a matter of established law. So we need to know more before we can definitively answer this question: for example, how “established” is the precedent, how fact-specific are the prior cases establishing this rule, were these precedents established at co-equal courts or at the state supreme court level?

Hypo 2: Bart is a seven-year-old with a knack for getting into trouble. He has trouble keeping up at school, and cognitive tests confirm he is somewhat delayed developmentally as compared to his peers. One day, Bart is walking home from school and finds a cigarette lighter on the ground. He starts to play with the lighter as he walks home through a field full of haystacks that have dried out as a result of recent weather conditions. Bart finally gets the lighter to catch, but it quickly gets too hot to hold and he drops it on the ground. The lighter catches a nearby haystack on fire, and soon, the entire field is ablaze. Lisa’s house, which abuts the field, is burned to the ground. If Lisa sues Bart for negligence, how should a jury evaluate his conduct? Approaches/discussion points: This hypo is linked to our discussion of the “reasonable person” standard, and exceptions or deviations from that standard. The example of how children are treated by tort law highlights the difficulty with an objective standard of care. 

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Generally speaking, children are held to the standard of a ‘‘reasonably careful person of the same age, intelligence, and experience.’’ See Rest. (3d) Torts. But this is a highly fact- and context-specific analysis (which is why it is generally a question for the jury). o The justifications for a deviation from the ordinary reasonable person standard should be intuitive: (1) kids are generally less capable of understanding the consequences of their actions; and (2) as a society, we should want kids to take some risks or else they may never fully grow up. One way to start analyzing this problem is to make clear what is not at issue: this is not a case where a child is engaging in an adult activity (like driving a car or motoring a boat), nor is this a case alleging injury from a defective product (nothing in the facts indicates the lighter was defective). o So this is solely a question of how a jury should be instructed to evaluate Bart’s conduct.  As a side note: See p. 61 of the casebook for the “adult activities” exception. Some reasons why the law recognizes this exception: (1) if engaged in adult activities, then presumably children are capable of understanding the consequences of their acts; and (2) we generally think that reasonable adults can avoid being injured by children when they’re engaged in child-like activities – but none of us know when a kid is behind the wheel of a car on the highway. Looking at the Restatement, Bart’s conduct should be stacked up against a reasonable 7-year old of the same intelligence – which

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means that the fact that Bart is of below-average intelligence is relevant to this inquiry. Ultimately, the jury will probably be instructed that Bart is a developmentally-delayed 7-year old who should be held to the standard of any other ‘‘reasonably careful person of the same age, intelligence, and experience.’’ Which may mean that he will not be held responsible for the fire, but the question doesn’t ask this and we’d need to know a lot more about the facts/circumstances/Bart’s history before we could answer that. [Note: For those who are interested in pursuing this more deeply, the discussion of Bart’s below-average intelligence can lead to a broader discussion of how the law deals with physical and mental disabilities in the reasonable person analysis. o The Rest. (3d) Torts tells us that “[a]n actor’s mental or emotional disability is not considered in determining whether conduct is negligent, unless the actor is a child.”  Is this fair? Why does the law deal with mental/emotional disabilities differently from physical disabilities? Here, you can get students to think about the arguments here:  It may be hard to determine whether someone is suffering from a mental disability. If a drunk driver injures someone in a car accident, can the driver argue that she is suffering from severe alcoholism which prevents her from taking due care?  Physically-disabled people are still held to the standard of reasonableness given their disability. We can figure out how a reasonable blind person might have acted in similar circumstances. But what is the appropriate standard by which to adjudge someone with a mental or emotional disability?]

Hypo 3: Emily, a 25-year-old, decides to take up rock climbing and takes two lessons with an instructor, who emphasized the importance of secure footing and attention to detail. Emily believes she has mastered the basics, and decides to a try climbing an advanced 100’ boulder that is popular with expert climbers in her area. In the middle of her climb, Emily’s foot slips and she falls from the rock face, crashing into Matt who is climbing several feet below her. Matt brings a negligence suit against Emily to recover compensation for the physical injuries he suffered in this incident. Assume Matt establishes that Emily owed him a duty of care, and now must now prove that she breached that duty. If Matt presents only the evidence described above, how should the jury find?

Approaches/discussion points: The point of this hypo is (1) to focus on what Matt’s claim of negligence rests upon and (2) evaluate whether he has enough evidence to convince a jury. 

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Basic tort doctrine tells us that a defendant breaches a duty of care by failing to use reasonable care to avoid a reasonably foreseeable risk to the plaintiff. o Here, Matt will probably argue that Emily failed to use reasonable care by trying an advanced climb without sufficient training. o But this is a highly fact-specific analysis: for example, what if Emily is a superstar athlete or has some other skill set that makes her decision to climb the advanced boulder reasonable? o For this reason, once a legal duty has been established, we leave it to a jury to examine the facts and decide whether the defendant acted reasonably under the circumstances. In at least some situations, a plaintiff simply has prove what defendant did or didn’t do, and we trust the jury’s common sense to determine whether this action or inaction constitutes a failure of reasonable care under the circumstances. o For example, in Martin v. Herzog, it was sufficient for plaintiff to prove that defendant’s lights were off in violation of the statute. In other cases, it would be sufficient to show that defendant was texting while driving, or failed to clear ice on her walkway, etc. etc. o Note this simple approach isn’t available where defendant’s conduct involves specialized knowledge that a jury’s common sense can’t penetrate – see, e.g., medical malpractice claims. o But Matt v. Emily seems to fall within the category of tort claims where a jury’s common sense determination is probably sufficient. Again, its important to be clear that Matt’s best chance at establishing liability is grounded in Emily’s decision to take on an advanced climb without sufficient training. If, instead, Matt tries to argue that Emily was negligent in falling, he may face evidentiary difficulties because he can’t know exactly why Emily’s foot slipped or whether she engaged in a specific act of negligence that led to the fall. After all, climbers sometimes fall without any fault of their own. o Remember here to not fall into the trap of seeing res ipsa everywhere! This certainly is not a res ipsa case because there are alternative explanations for the accident (maybe the rope broke?). Think about why res ipsa isn’t always available or attractive.

TA SESSION #3

Hypo #1: In which (if any) of the following scenarios do you think the plaintiff could reach the jury by invoking res ipsa loquitur? Briefly explain your reasoning. 1. James, a 2-year old, returns home from a half-day at the daycare center and, during his bath later that evening, his mother notices that he cannot place any weight on his right arm. The next day, an X-ray discovers the arm is broken. 2. While George is driving on a flat road in the middle of a sunny day with little traffic, a stray car bumper suddenly appears on the road in front of him, causing him to swerve to avoid hitting it. As a result, George crashes into a tree, suffering injuries. 3. Veronica is emptying her dishwasher when glass shatters in her hands, causing injury. She had purchased the glass new (in the box) just one day earlier. Approaches/Thoughts for Discussion: The point of this question is to see that establishing res ipsa isn’t easy, and where a plaintiff is able to offer actual proof of negligence, that is far better than relying on a presumption of negligence. So, none of these are very good res ipsa cases, but each is worth some discussion as to why not. 

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#1 is a weak res ipsa case. Given the nature of toddlers (they fall, they bump into things, etc.), even if the day care personnel were exercising due care in supervising Oliver, it is doubtful that a jury could infer negligence from the mere fact of this accident. See Ward v. Lutheran Church; but see Helton, where the court did apply res ipsa to a case involving a child presumed to have been injured by negligence in a similar context. #2 might be a good res ipsa case because when a bumper is found in the middle of the freeway, the facts strongly suggest that it must have come from another car and that shouldn’t happen if reasonable care is exercised. But note that George can’t sue the actual defendant, who is unidentified, so how can he meet the requirement of exclusive control? #3 - Preview of Escola, where the majority does rule for plaintiff on res ipsa grounds – but Traynor’s concurrence points out the weakness of this analysis. After all, lots of things can cause a bottle to shatter.

Hypo #2:

Michael goes to see his primary care physician, Dr. Dorothy, for a routine checkup. Although he did not feel particularly ill, he did complain to Dorothy of swollen glands, tiredness, and occasional mild fever. Because Michael’s symptoms, although mild, had persisted for some time, Dorothy thought that he might have cytomegalovirus (CMV). CMV is a very common virus that rarely causes serious illness in men. It is not highly infectious, but it can be spread from person to person by direct contact. Studies show that between 3% and 11% of men with CMV can spread the virus through sexual contact. For women, CMV poses a special danger because it remains in the body throughout their lifetime and, in a small percentage of women, the virus can have adverse effects on fertility. Dorothy did not prescribe Michael any treatment, as no effective vaccine for CMV has yet been developed; she did say to Michael, “It’s probably best not to have sex until your symptoms clear up,” but she did not make any specific inquiries about his sexual partners. Ten days after visiting Dorothy’s office, Michael was feeling much better and resumed having sex with his girlfriend, Pamela. Pamela contracts CMV and now cannot get pregnant. Pamela sues Michael, who cross-claims against Dr. Dorothy for medical malpractice. Advise Michael about the nature and likelihood of success of his claims. Approaches/Thoughts for Discussion: 

This is really a question about informed consent, one on which there is a split of opinion: o One school of thought might emphasize the importance of the provision of information to patients.  In cases involving elective treatments, for example, the doctrine of patient autonomy requires doctors to warn patients of the risks posed by the proposed treatment so that the patient can make an informed choice as an active co-participant in her or his treatment.  This is not such a case, but it is a case about the provision of information and one school of medical thought might emphasize the doctor’s role in providing the patient with full information so that he or she can make informed choices about his or her life. See Matthies v. Mastromonaco. o Another school of thought might stress the relatively small degree of risk.  Only a small number of men with CMV—between 3% and 11%—can spread the virus through sexual contact. A smaller percentage of those men would be likely to have sex with a pregnant woman. The risk of infection is

presumably not 100%; there must have been some chance that Michael could have had sex with Pamela and not infected her, despite the fact that he carried the virus. And only a small percentage of women suffer fertility issues.  The expert medical witnesses might say that it would be inappropriate to warn of every possible risk, however small, particularly because CMV is such a widespread but comparatively mild virus. o If the expert medical evidence is split in this way, Michael’s action will probably fail.  In other words, Dorothy will not be held liable for malpractice if she can show that she followed a method of treatment advocated or approved by a considerable number of reputable members of the medical profession, even though that method is not universally used, or even generally used. Hypo #3: Dr. Veronica, a surgeon, decides to perform back surgery on Warren after examining Warren’s medical history of back problems. Most doctors would not have recommended such surgery because of its risk of paralysis, preferring instead to use a “conservative treatment” of bed rest for two weeks to see if Warren’s back improves. Dr. Veronica goes ahead with the surgery, and unfortunately Warren becomes paralyzed. Warren sues Dr. Veronica for medical malpractice, and Dr. Veronica wishes to argue that she follows her own “school of thought,” the “Cut ‘Em and Hope for the Best” strategy of dealing with back problems. No other doctors are part of this school of thought. Dr. Veronica argues that because she complied with this school’s teaching, a jury cannot find that she breached. How should the court rule? Approaches/Thoughts for Discussion:  

In medical malpractice cases, evidence of custom is dispositive in most cases. When there is more than one “school of thought” over proper medical care, a defendant can follow any recognized school of thought. here may be two (or more) schools of thought over how to deal with a particular medical issue. Some doctors may recommend one course of treatment, and other doctors recommend something different. So long as a medical professional follows the custom of a recognized school of thought (even if it is not the approach taken by a majority of professionals in the field), compliance with that custom will defeat a negligence claim. There must be a large enough group of medical

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professionals (not just a handful) to constitute a recognized school of thought. But one doctor cannot make up her own recognized school of thought. In this case, Dr. Veronica is a school of one; she is not following any recognized school of thought. Accordingly, the court should reject Dr. Veronica’s argument.

TA SESSION #4

Hypo #1: Ken Locke...