Tort Revision Paper

1. Match the following holdings with the cases that they represent:

A. In Re Polemis 1. A person may not recover for damages
caused by another's negligence unless he is a
member of a foreseeable class of victims.

B. Palsgraf 2. A person may recover for unforeseeable
damages as long as the damages are the direct
result of  the other's negligent act.

C. Wagon Mound 3. A person may only recover for damages
that are a foreseeable result of another's
negligent act.

1. A. 2; B. 1; C. 3.

2. Jim owns a tuna boat moored in San Diego bay. On a calm day, it comes loose from it's moorings Assume that the mooring lines were negligently tied, even for good weather. The tuna boat drifts out into the bay where it crashes violently into the bay bridge. The collision sparks a fire onboard the tuna boat. Within minutes, the fire reaches the tuna boat's engine room. The resultant explosion sends tremendous shock waves across the bay, shattering Annette's bayside condo's windows. The flying glass cuts her face severely. May Annette recover damages from Jim under the rule in Polemis? Under Palsgraf? Under Wagon Mound?

2. Annette's injuries were the direct result of the explosion, which was caused by Jim's negligence. However, it is unlikely a court would find that flying glass injuring a bayside resident was a reasonably foreseeable result of negligently mooring a tuna boat, or that it was reasonably foreseeable that bayside residents inside their condos would be injured at all. Under Polemis, the actual injury does not need to be foreseeable as long as it was: 1) the direct result of the negligent act, and 2) foreseeable that the negligent act would result in some injury. Thus, under Polemis, Annette could recover against Jim. Under Palsgraf, even if the damage is a direct result of the negligent act, the injured party may not recover unless he is a member of a foreseeable class of victims of the negligence - a class to which the tortfeasor owed a duty of care. Thus, under Palsgraf, Annette may not recover against Jim because bayside residents are not a foreseeable class of victims to whom Jim owed a duty of care. Under Wagon Mound, the injured party must prove that the actual injury was a foreseeable result of the negligent act. Thus, Annette may not recover against Jim under Wagon Mound.

3. Same facts as in Question 2, but now Annette is sailing her 40 foot yacht around the bay bridge area, instead of being at home in her condo. What affect does this have on the probable outcome under Palsgraf or Wagon Mound?

3. As a boater in the bay, Annette would now probably belong to a foreseeable class of victims of an adrift tuna boat. However the foreseeable injury from an adrift tuna boat is collision with the yacht itself, not cuts due to a shock wave caused by collision of the tuna boat with the bridge. So Annette has met the "duty" and "breach" elements established by Palsgraf.  Although in Palsgraf Cardozo did not comment on whether foreseeability of the actual injury was required, it is likely that he would have followed the Polemis rule and allow Annette to recover because the injury was a direct, even though the manner in which it occurred was unforeseeable. Under Wagon Mound, Annette still cannot recover.

4. Jim works in a coal mine. To get to and from the depths of the mine, Jim and his co-workers must take a platform elevator. There is a statute in the Jim's state which requires the passengers in such elevators to wear a safety harness, and to "clip" that harness to the rails of the elevator while it is in motion. Jim thinks that "clipping in" is too much trouble for a hard-workin', budwieser-drinkin', backbone-of-America guy like himself, so he merely drapes the harness over himself loosely, but does not "clip in". While riding the elevator one day, Jim's unclipped harness slips off of him and falls down to the bottom of the elevator shaft where it lands on the head of his co-worker Annette, injuring her severely. Is Jim liable to Annette for her injuries under a per-se negligence theory? Why or why not?

4. Jim is liable under per se negligence only if it was the intent of the statute to protect coal miners from objects that fall off the elevator, in addition to the obvious intent of protecting them from falling off themselves. If it was not the intent of the statute to protect coal miners from falling objects, then Jim's violation of the statute, even though negligent toward the risk of falling himself, was not a proximate cause of Annette's injury. It was only an incidental circumstance surrounding the injury. The foreseeable injury from not "clipping in" was that Jim would fall off the elevator, not that the harness itself would fall off. Thus, Annette would probably have to prove Jim's negligence in some other manner.

5. Jim is a forgetful taxi driver with a broken gas gauge. One night, after picking up Annette at the airport, he runs out of gas in a bad part of town. While Jim and Annette are walking several blocks away to get to the nearest gas station, local thieves seize the opportunity to steal Annette's valuable luggage from the locked trunk. Annette sues Jim for the value of the stolen luggage, claiming that his negligence was a proximate cause of her loss. Jim admits negligence in running out of gas, but claims that he is not liable for the luggage because he exercised his duty to lock the trunk, and cannot be held responsible for the intervening intentional tort of the thieves. Who should win? Why?

5. Annette should win because the theft was a foreseeable result of Jim's negligence. Normally, the chain of causation is broken when an intervening third party commits an intentional tort. However, the chain of causation is not broken if the original wrongdoer puts a person into a situation where the original wrongdoer should have realized that a third person might avail himself of the opportunity to commit that intentional tort. Jim should have known that running out of gas would expose his passengers to a foreseeable risk of theft. Thus, Jim's negligence in running out of gas was the proximate cause of Annette's loss.

6. What is the policy reasoning behind the law refusing to impose a legal duty to rescue a person even if the rescue can be performed successfully at minimal cost to the rescuer?

6. Arguments against imposing a duty are: 1) The higher your ability level, the less inconvenient it would be for you to rescue. This provides a disincentive to invest in activities that would make you a more effective rescuer. 2) It undermines the strength of contract law where the patient could offer the doctor an amount of money less than he normally charges, and the doctor would be forced to take it as long as the difference is small enough. 3) Careless persons would be subsidized at the expense of careful persons.

7. Give an argument for the imposition of a legal duty to rescue when the cost to the rescuer is slight.

7. There is a quasi-contractual argument such that each member of society has impliedly promised to help others in danger, in return for the promise of others to help him/her under the same circumstances.

8. Match the following duties a landowner owes to the traditional classes of persons:

A. Trespasser 1. duty to warn of hidden dangers
B. Licensee 2. duty to keep property in reasonably safe condition
C. Invitee 3. duty to refrain from willful, wanton or intentional harm
4. duty to avoid affirmative acts of negligence

8. A = 3, B = 1+3+4, C = all.

9. Ginger is 8 years old. At the end of her block is a vacant lot with an oil derrick on it. The lot is fenced off, but the neighborhood kids have bent the fence back enough so that they can slip in and out in order to play on the oil derrick. The owners of the oil derrick know that kids often play on or around it, and scare them off every time they come to turn it on. One day, Ginger is playing with some friends on the dormant oil derrick, when the owners show up. They yell at the kids to get off the derrick, and all but Ginger scurry away. Ginger is too scared to run, and instead hides in the derrick. The owners do not check to see if there are any kids hiding on the derrick, and proceed to start it up. If Ginger is then injured by the motion of the oil derrick, would the owners liable for damages? Why or why not?

9. The owners liability depends on the nature of the duty that they owe to Ginger. Ginger would probably be classified as a trespasser. As such the owners generally would only owe a duty of care to refrain from willful, wanton or intentional injuries to Ginger. However, since Ginger is a child, the owners duties may be expanded under the Attractive Nuisance doctrine which requires the owner to exercise reasonable care to protect a trespassing child from an unreasonable risk of great bodily harm presented by his machinery which he should know that children are likely to play on, as long as the cost of prevention is slight. The owners have taken some steps to prevent children from getting hurt, for instance putting up a fence, and chasing away children before they started the oil derrick. However, they have not gone so far as to physically inspect the derrick for hiding children before they started it in motion. It is likely that failing to inspect the machinery before setting it in motion would be viewed as unreasonable, since the cost of taking such a precaution is essentially zero. Even if the operation of the oil derrick was not found to fall under the Attractive Nuisance doctrine, the owners would be liable if their failure to inspect was categorized as willful and wanton, but the burden of proof would be higher.

10. What changes to the traditional approach of landowner duties did the case of Rowland v. Christian make? What was the courts justification for these changes?

10. In Rowland, the court did away with the traditional rigidity of the trespasser/licensee/invitee distinction in determining the standard of care which a landowner owed to those on his property. They held that the reason for a persons presence on the property is a relevant factor in determining the appropriate standard of care, but it was not strictly determinative. The class distinction was held to be too rigid, leading to artificial results. Furthermore, the traditional approach, which was fashioned in times where landowner status was sacred, was held not to reflect community consensus of reasonable care in the modern world. The new standard was reasonable care under the circumstances (standard negligence).

11. Jim is a surfer. While surfing on a particularly stormy day at the jetty, he notices that a lone tourist (Annette) is wandering out too far on the rocks. He says to his buddies that he bets the woman will get soaked with the next big set. Everyone agrees. On the next big wave, Annette not only gets soaked, but also gets washed over the rocks into the pounding surf. Instinctively, Jim begins to paddle over to her. None of the other surfers take any action to save Annette because they think that Jim is going to save her. Jim actually does intend to rescue Annette, but stops short once he realizes that there is a very large probability that he will get smashed onto the rocks if he gets any closer. While he hesitates, Annette drowns. Is Jim liable for Annettes death? Why or why not?

11. To be liable for a gratuitous undertaking, generally there has to be the intent (action) to rescue, and reasonable reliance by others. The presence of these two things establishes a duty on the rescuer to act with reasonable care to rescue the victim. Under these facts, Jim had the intent to rescue, and he also induced reliance of the other surfers on his actions. Thus, he had a duty of care to take reasonable steps to rescue Annette. However, it is unlikely that the court would find that Jim breached that duty by aborting the rescue because there was a very large probability that Jim would be injured severely if he continued. Although one of the other surfers might have been successful in rescuing Annette if they hadnt relied on Jim, reliance only creates a duty. Abortion of a rescue does not conclusively show breach of that duty.

12. Annette takes a trip to Tuscon, AZ. She decides to stay at the Motel 6. At about midnight, she hears a knocking at her door. She asks, "Who is it?" The voice on the other side says, "It's me. Let me in." Thinking the voice to be that of her friend, Jim, she opens the door. Tragically, it was a stranger who robs her and leaves. Annette brings an action against the Motel 6 alleging that a special relationship was created when she rented the room, and that the Motel had breached a duty of care under that relationship to provide for her safety. Should Motel 6 be liable for Annette's damages? Why or why not?

12. The issue here is the extent of the duty that a motel owes to its customers. A close analogy might be the special relationship between a landlord and a tenant, where the landlord has the duty to take reasonable steps to protect the landlord from harm in the common areas under which he has exclusive control. This would probably involve patrolling the common areas and restricting access to customers and their guests only. However, the reasons to impose such a broad duty in the case of a motel-guest relationship are not as compelling as in the landlord-tenant relationship. The motel guest, unlike the tenant, is a short-term resident who can more easily choose to stay at a safer location. There is generally less reliance on a motel to provide protection. The risk of crime is a burden that the guest customarily bears. Due to the tremendous number of people coming and going, it may be impractical for the motel to know who is a guest and who is a criminal. Furthermore, it is common knowledge that it is unsafe to open your motel room door at night without first positively identifying the visitor. Thus, Motel 6 would probably not be liable for Annette's damages.

13. What reasoning did the court in Tarasoff use to find a special relationship was created between the psychiatrist and the intended murder victim of one of his patients once he knew of the patients intent to kill her?

13. The court reasoned that although a special relationship did not initially exist between the psychiatrist and the victim, one arose when he became aware of the patient's intent to kill the victim. The foundation for the special relationship with the victim was the already existing special relationship with the patient. The special relationship with the patient was extended to include the foreseeable victims of his conduct. As a matter of policy, the court stated that the confidential relationship between a doctor and his patient was outweighed by the greater public interest in safety.

14. Jim owns a pit bull which is known to be ferocious. It has gotten loose and bitten other dogs before. Yesterday, it got loose and came into my yard, where it urinated in my flower garden and trampled my prize petunias. Jim is strictly liable to me for the damages because his dog was known to be ferocious. True or False?

14. False. Strict liability for animals applies only to personal injuries, not property injuries. I would have to prove Jim's negligence in failing to take reasonable precautions to keep his dog from escaping in order to recover for property damages.

15. True or False: Fletcher v. Rylands is one of the earliest cases involving strict liability for abnormally dangerous activities.

15. False. Fletcher v. Rylands was ultimately decided on the grounds of "non-natural" use of the land, not "abnormally dangerous activities". Don't confuse the two. It is very unlikely that keeping a reservoir of water on your land would qualify as an abnormally dangerous activity under the Restatement.

16. In determining whether an activity is "abnormally dangerous", the jury should take into account what factors?

16. Trick question. The jury does not decide whether an activity is abnormally dangerous. It is a question of law not fact. The judge, however, would need to consider the following:
1). existence of a high degree of risk of harm,
2). likeliho