Finals -- home stretch! Post your TORTS hypotheticals here!

[eyesroll]

C'mon, give me your best shot. Assault? Battery? Neglgience? Duties of landowners? Strict liability? Let me have 'em.

(Note: We did only a little products liability, but I'm willing to try...we didn't do any trespass/conversion of land/chattels, defamation, intentional infliction of emotional distress.)

(Disclaimer: This is not legal advice. Don't take what I say as anything other than exam prep -- in other words, B.S. I'm a first-year law student, FFS.)

[PVnRT]

1. Let's try this

Terrorists strike the base I work at, where we are neutralizing VX. In the course of the attack, or whatever you want to call it, an air strike is called in, some VX munitions that had been moved out into the open as a threat are hit, the agent disperses, and my family in nearby Dana, Indiana are all killed instantly (and nastily), along with thousands of others, from dispersed nerve agent.

Who do I hold accountable? The federal government or the contractor operating the base?

[eyesroll]

7. You can sue them both. This is beyond my scope...but...a few issues:

(ignore crappy writing; I'm doing this for speed today.)
1. We didn't study immunities, but if the government is immune from lawsuits, you sue the contractor only (unless the contractor is also immune; then you're SO:L).

2. Is neutralizing VX considered an unusually dangerous activity? If so, the government and the contractor can be held strictly liable (you don't have to prove negligence).

3. If you have to prove negligence, you would have to prove that each defendant had a duty, and breached a duty to the nearby citizens. You will also have to prove legal cause (but-for, substantial factor) and proximate cause -- that the negligence was the cause of the harm. I'm going to assume a general duty -- that the federal government and the contractor have duties to exercise reasonable care to avoid harm that is foreseeable. As it is foreseeable that dispersed VX could kill people in the immediate vicinity, I'll declare duty to have been met.

An issue I would need to resolve before I could more accurately predict who would be responsible for what would be the respective roles of the government and the contractor:
• Were the terrorists at all directly responsible for hitting the munitions, or do we know that the government planes hit it?
• How responsible was the contractor for the operation of the base?

For this...I will assume the contractor has the sole responsibility for the base. (Otherwise, you could also sue the government for joint responsibility for the base and analysis will be similar, but will also involve contractor screening and oversight issues.)

I will also assume that it is UNCLEAR who hit the munitions -- it could be the terrorists alone, the government and the terrorists both, or the government alone.

So, first, the contractor's liabilities:

Injured people v. Contractor:
Duty: The contractor had a duty to take reasonable care to protect the citizens from harm.
Breach: What did the contractor do wrong? Did they violate a law or their own internal processes for handling VX? Did they violate industry custom? If they violated a law, and the law was designed to protect the public from harm from VX, we have negligence per se and have an automatic breach of duty. If they violate industry custom, that's either dispositive or persuasive, depending on the jurisdiction and whether we consider the contractors under a professional standard or a general standard.

If the contractor was doing everything reasonably (they don't need to go to heroic measures), no breach. No liability. If, however, the contractor was negligent (i.e. they moved the VX negligently, or they had inadequate security), we can move to:

Cause-in-fact: Can we say either...
But-for cause: If not for the contractor's negligence, the people wouldn't have died. (In any case, the contractor is not the sole but-for cause of the deaths, as the air strike/terrorism/at least one were also responsible.)
Substantial factor: The contractor's negligence was a substantial factor in the people's deaths.

However...if the damage would have happened regardless (i.e. the air strike or terrorist attack hit the building with such force that the munitions would have blown no matter how the contractor handled them), no cause, so liability.

Proximate cause:
Was the terrorist attack an intervening superseding cause? Was the air strike? IF so, we can say the causal chain was interrupted and the contractor's negligence was not the proximate cause of the injuries.
To determine whether an intervening (happened after the initial negligence) cause is superseding, we look to foreseeability. The contractor would say "we never could have anticipated a terrorist attack, or that our own government would blow us up." The victims, of course, would say "of COURSE you could anticipate an attack, and an appropriate response, on a military base."

Harm:
Not an issue, because we know who was harmed and how.

Ok, hurt people vs. government, plus apportionment, in another post.

[eyesroll]

11. OK, victims vs. government...

Remember, I am assuming the government isn't at all responsible for the negligence on the base; that it's just the air strike.

I am also going to treat terrorists as a potential defendant who cannot be found (i.e. a hit-and-run). If the terrorists were captured, I suppose you could sue them and the government jointly, and perhaps end up with some alternative liability (burden shifting). But here, we're suing the defendant we can find.

For this, I am assuming that both terrorist AND government planes hit the munitions, but nobody is sure which one (or both) caused them to explode.

So, the issues:
• Did the government breach a duty?
I'm not sure that they did -- we'd have to show that the air strikers did not act reasonably under the situation. When responding to an emergency attack, there are often unavoidable accidents. Did they follow proper procedure? Did they try to spot the munitions and take appropriate precautions? Were the munitions obscured or otherwise hard to detect? What would a reasonable air striker of reasonable training and experience do in that situation?
If they acted according to specifications and things went wrong anyway, no breach. No liability.
If they messed up, breach. Move on:

• If so, did the government's negligence cause a harm?
When there's two possible tortfeasors -- both were negligent, but only one caused the harm -- we can use alternative liability and shift the burden to the defendants to prove they DIDN't cause the harm. However, since we can't find the terrorists, we can't do that.
If we assume that the government's planes did strike the munitions (as above), we may be able to find that the government was a substantial factor in bringing out the harm, in which case we can hold them liable for at least part of the damages.

Assuming we find cause-in-fact, proximate causation shouldn't be a problem here, because it's very direct -- government hits munitions, munitions go boom, people die. Harm also isn't an issue.

Apportionments
So, way oversimplifying, we could have four possible verdicts here:
Contractor liable, Government liable = Damages apportioned.
Contractor liable, Government not liable = Plaintiffs collect entirety from contractor.
Contractor not liable, government liable = Plaintiffs collect entirety from government.
Contractor not liable, Government not liable = Plaintiffs collect nothing.

Now, in apportioning damages, we need to figure out who was "more" responsible. The jury does that. I'm not sure what they'd say.
Assuming both parties were found negligent and liable:
The government would say "if the contractor had handled the munitions properly, we would have shot an open field, even if we were negligent in shooting the field. Therefore, the contractor is more blameworthy."
The contractor would say "OK, we panicked, but the government had the last clear chance to avoid blowing us up. The government is more blameworthy."

Chances are, the jury would assign some percentage to the government, and some percentage to the contractor, and plaintiffs could collect accordingly. (My instructor doesn't want us to apportion damages ourselves -- she'll give proportions when necessary.)

(I'll save joint/several/contribution actions for another time.)

[huskerlaw]

2. There's a lady standing on a train platform...

And a scale falls on her... :P

[Hosnon]

5. That case is a perfect rebuttal to: "That could NEVER happen in real life." :)

[eyesroll]

8. Someone suggested Ms. Palsgraf had property in a will that would vest when her as-yet-unborn

grandchildren turned 21...

:shrug:

[huskerlaw]

10. Damn fertile octogenarians!

x(

[flvegan]

3. An individual is out hunting with the Vice President

when the VP "accidentally" shoots him...

[eyesroll]

4. That's pretty basic.

Accident = negligence. Cheney is liable for medical costs and other foreseeable damages, as well as pain and suffering.

"Accident" = battery. Cheney is still liable for everything.

If, however, Cheney and someone else both neglgiently shot at the victim, but it was actually impossible for doctors or law enforcement to tell whose bullets hurt the victim, the burden of proof shifts to each defendant to prove he didn't do it. Otherwise, both are neglgient and they split the damages. Summers v. Tice. Well-known case.

[Hosnon]

6. Ugh...torts...good luck. I had my Administrative final today.

I'm done with 3 page fact patterns:)

[eyesroll]

9. Thanks! How much longer do you have left?

I've got 5 semesters left, but I'm enjoying it...

[Hosnon]

15. One semester left...but I am applying to grad school for my LL.M. so

worst case scenario I have three more.

You're seriously enjoying it? That's good because first year blows compared to the rest.

[eyesroll]

19. So I've heard...I am enjoying it, though.

I take it from your screenname you were born in 1982? I was born in 1975, and I have to say the extra few years helps. Law school, for me at least, is no worse than a job (and is often better).

I didn't leave my town to go to school, so I have outside friends and interests (including a supportive partner and stepdaughter) and didn't have to deal with adjustment.

I read quickly, and wrote/edited for a living for years, which helps tremendously.

Next semester probably won't be quite as fun -- property, civ pro, con law, legal writing part II.

Good luck on the LL.M. Tax?

[billyskank]

12. Please explain the doctrine of unclean hands

:hi:

[eyesroll]

13. That's not a doctrine we covered.

:hi:

(It seems to be a contract or remedies question, not a torts question, anyway. :D)

[philosophie_en_rose]

14. Jorge Arbusto is on juvenile probation . . .

As part of a job placement program for incorrigible youth, Jorge recieves a job in an animal shelter. He cleans cages every day with his friend Guillaume Friste (also on probation). One day, Guillaume decides to dissect a kitten. The cat attacks Guillaume, jumps on Jorge's face, and runs away.

Guillame and Jorge are upset. They get into their van and rush out of the driveway. They don't notice, but they back into three elderly men - Wash, Jeff, and Link. Link and Jeff die. Wash crawls away and screams for help. Guillame and Jorge feel the bump, but leave.

They park their van down by the river, where they decide to get high. They open a pack of *sniffy mcsmelly* markers that are labelled "non-toxic" and a pack of "sharpees" which are labelled toxic. Neither Jorge or Guillaume can read. Guillame sniffs the scented markers, but nothing happens to him and he falls asleep. Guillaume sniffs the sharpees and gets really high.

He backs the van into a tree. The van catches on fire and Guillaume is deeply asleep. Jorge escapes, but has permanent brain damage from fume inhalation. He does not call 911 for Guillaume (who dies).

Jorge's parents - Jorge H.W. and Barbarella Arbusto - decide to sue. They want to sue:

* the animal shelter for scratches on Jorge's face
* the animal shelter for negligent supervision
* the old people for being in the way
* the marker manufacturers for causing Jorge's brain damage
* the van manufacturer for a faulty gas tank

Do they win?
Who could sue (and prevail) against the Arbustos?

[eyesroll]

16. Hm...Okay...one by one

(and probably too simply...I just want to get the issues on paper today)

Arbusto v. Animal Shelter

We didn't specifically discuss negligent supervision, but if I could hazard a guess...the shelter could be held liable for the scratches and perhaps the car crash, as these were at least somewhat foreseeable consequences of not supervising the boys. The chain of causation, I think, breaks with the intervening act of the marker-sniffing. That's too remote to be foreseeable. (Arbustos, of course, would argue that "boys will be boys" is a foreseeable consequence, but I don't think a judge or jury would buy it.)

We didn't really get into too much vicarious liability -- I know that employers are liable for their employees on-the-job conduct, but Guillaume isn't an employee of the shelter. So I don't know how that would work. If we assume Guillaume is an employee, Arbusto would probably be limited to workers' compensation absent intent (which Guillaume didn't intentionally batter Jorge) or, in some jurisdictions, recklessness.

Arbustos probably could claim recklessness -- not only did Guillaume breach a duty of reasonable care and cause harm to Jorge (not much to discuss -- Guillaume shouldn't have been dissecting a cat in that situation; it was foreseeable that an injury could result, etc.) but the risk was pretty big compared to the cost of avoiding it (which would be, well, not dissecting the cat).

Guillaume could claim primary assumption of the risk -- Jorge assumed the risk of animal injury when he accepted an assignment working in an animal shelter. Arbustos could counter that Jorge didn't voluntarily assume the risk (he was assigned there), and while he accepted the risk of perhaps an animal scratch or bite in the normal course of business, he didn't accept the risk of a dissection escapee.

Guillaume could possibly claim secondary implied assumption of the risk -- Jorge saw Guillaume negligently trying to dissect a cat, but took the risk of hanging out. Arbustos could counter that Jorge was simply a bystander.

A separate standard of liability for children will not come into play, even though Jorge and Guillaume are presumably minors, because a reasonable child old enough to work in an animal shelter would know this behavior is unreasonable. (The same goes for the car -- driving is an adult activity, so we hold kids to adult stanards.)

Arbusto v. Old People
No deal. The old people were just standing there. Innocent bystanders have no duty to get out of the way a negligently driven car (that they couldn't even reasonably see).

Arbusto v. Markers
Jorge didn't sniff the sharpees (your hypo says Guillaume siffs both), so there's no claim here.
However, if Jorge did sniff the sharpees (which I think was your intent), the Arbustos could have a products liability claim for defective design (the design in and of itself was defective -- we can do a risk/benefit analysis: does changing the formula to make it safer compromise the utility of the marker? I doubt it; or we can do a consumer expectations test: would a reasonable customer expect this level of danger? Probably not) and perhaps for inadequate labeling (although that would probably get thrown out because, if Jorge and Guillaume couldn't read, they wouldn't have read the warning and it wouldn't have mattered). We'd need an expert to testify about the brain effects of the markers and what happened to Jorge.

Markers could counter that a manufacturer is not liable for unforseeable misuse.
Arbustos could counter that there is no way in hell that kids sniffing markers is unforseeable. And they'd be right -- the four-year-old inhales dry erase markers. Eew. Anyway.

Anyhow, I think the Markers suit has a decent chance of succeeding on defective design theory.

Arbusto vs. Van. I'm gonna do this as a d/b/c/h, even though I'll spell all this crap out tomorrow on the exam.
Duty: Manufacturers have a duty to provide reasonable care to their customers.
Breach: We'd probably need an expert here -- was the gas tank actually faultily designed? What was the industry custom? (That's not a complete defense when we're dealing with a car company, whose first priority is making money -- if they'd sued the engineers who designed the gas tank, we could use the professional standard and custom, unless it's a bad custom, IS a complete defense). Was there a safer feasible alternative? (Also, see discussion of negligent design, above; we could also talk defective individual product, if the gas tank's design was fine but that particular tank itself was defective.)
Causation: If we find the design was neglgient...Would the impact have caused the fire anyway? Or was the fire And...what exactly caused Jorge's brain damage? Markers or gas fumes? Both? (If both, we've got an indivisible injury and we need to apportion damages between Marker and Arbusto.)
Harm: We've got the van damage (you never say who owned the van), and we may have Arbusto's fume inhalation.

[Hosnon]

17. Kudos to you...I hate torts...nt

[eyesroll]

18. And...who could sue the Arbustos?

In general, parents aren't held liable for the torts of their children (I believe Texas is an exception, although liability is limited). I will assume for the sake of this exercise that suing Arbustos and suing Jorge are functionally equal.

Anyhow...Guillaume (decedent) v. Arbusto
• Guillaume was harmed when the van a fumes-addled Jorge backed into the tree. Jorge is certainly responsible -- he had a duty to drive properly (even intoxicated or brain-damaged people have a duty to drive reasonably) and he breached it (by backing into a tree), and that was a but-for cause of Guillaume's death. (If George hadn't driven negligently, Guillaume would be OK.)

The van manufacturer might be liable as well (see above), so in that case, damages should be apportioned between it and Jorge.

However, Guillaume might be contributorily negligent. The defendants would argue that he was acting in concert with Jorge by sniffing the markers, and/or he accepted the risk of getting into a car with someone who was sniffing markers (that it was foreseeable a marker-addled driver could get into an accident). However, Guillaume could argue he was asleep when the van hit, and even if he was neglgient, his negligence didn't contribute to Jorge's bad driving (and he'd probably be right -- I don't think contributory negligence fits here. If it did, and we were in a contributory negligence jurisdiction, Guillaume could be barred entirely from recovering. However, Guillaume could argue that Jorge had the last clear chance to avoid harm -- Guillaume put himself into a situation of peril and couldn't escape, Jorge was aware of the peril, he had the time and means to avoid injury, he failed to do so, and Guillaume got hurt. If Jorge had the last clear chance, Guillaume still might be able to recover. But anyway...this is a tangent.

I think Guillaume could recover against the Arbustos (and against Van if Van was negligent too).

Old people v. Arbusto
• Yeah, they've got a straight negligence case here. Jorge had a duty to exercise reasonable care when driving the car. He breached the duty by not looking OR stopping to help (because you have a general duty to aid when you've caused harm).

Old people will win this one.

Shelter v. Arbusto
• Shelter might be able to get Jorge for any damage caused by the cat dissection, if the shelter can show Jorge and Guillaume were acting in concert. In that case, it doesn't matter who caused the actual damage; both will be liable for the result. Damages probably won't amount to much, though, since how much damage can a kitten do? (Yeah, don't answer that.)

[Redstone]

20. How about "Trespass to chattels?" That's the concept that sign spammers

(the ones who nail plastic signs to telephone poles...remember "Work From Home?") never seem to understand, even though it's pretty simple: You can't use someone else's property without their permission.

Redstone

[eyesroll]

21. We didn't cover trespass to chattels...I'm sure we'll get a bit in Property next semester.

We got theft/larceny in crim law, though...:zzz:

[Redstone]

22. I'll bet a lot of it is numbing; but that prepares you to be able to be in court

and stay awake.

That's a tough job in itself.

Redstone

[Sanity Claws]

23. Here's one - an issue spotter.

Homeowner A has noticed rodent droppings around the perimeter of his house. He puts rat poison at various places around his house. Unbeknownst to him, the poison is moved to outside his premises (he doesn’t know how – perhaps raccoons dragged it) and into a public alleyway behind his and other houses. B’s cat likes to wander in the alley way and sees the poison. She nibbles on it and leaves. Later, she vomits on the upholstery in C’s convertible car. C sees the cat vomit on his car and is so mad that he runs after the cat with a meat cleaver. C was unable to catch the cat but Missy, B’s daughter who is attached to the cat, sees C run after her cat with the cleaver and starts screaming. She is so upset that she has an asthma attack. Unfortunately, she left the house without her inhaler and dies while gasping for air.

Does anyone here have any claims?