THE LAW PROFESSOR TORT LAW ESSAY SERIES ESSAY QUESTION #3 MODEL ANSWER

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1 THE LAW PROFESSOR TORT LAW ESSAY SERIES ESSAY QUESTION #3 MODEL ANSWER Carol stopped her car at the entrance to her office building to get some papers from her office. She left her car unlocked and left the ignition key under the car s front floor mat while she went briefly into her office. While Carol was gone, Peter entered Carol s car, found the ignition key where he had seen her leave it, and started the car, intending to drive it to the hospital where his spouse had just been taken for emergency treatment. After Peter had driven the car for about a block, the brakes failed, the car hit a tree, and Peter was injured. In a dazed condition from the accident, Peter entered a nearby public building and pulled the lever of an emergency fire alarm. A city fire truck, responding to the alarm, hit and seriously injured Carol as she was emerging from her office building. What claims, if any, do Carol and Peter have against each other, and what defenses, if any, may each assert? Discuss.

2 MODEL ANSWER I. PETER v. CAROL. NEGLIGENCE. A prima facie case of negligence requires that plaintiff show that defendant owes them a duty to exercise reasonable care, that the defendant breached the applicable standard of care, and that the breach was the actual and proximate cause of the plaintiff s injury. Defendant may assert the defenses of contributory negligence, comparative negligence and / or assumption of the risk, depending on the jurisdiction. DUTY. Almost all people owe others a duty of reasonable care to act as an objectively reasonable person would act in similar circumstances. In Palsgraf, the Cardozo majority view posits a duty extends just to those in the zone of danger which was created by defendant s conduct. Alternately, the Andrews minority view is that a duty extends to everyone. Peter, originally was not within the zone of danger created by Carol s negligence, because he was not in the car. However, once she openly left the car open with the key easily accessible, her negligent entrustment invited Peter into the car, and he was within the zone of danger created by her negligence. Therefore, under both Cardozo and Andrews, Carol owed a duty of care to Peter. STANDARD OF CARE. REASONABLE ADULT CARETAKER OF CAR / NEGLIGENT ENTRUSTMENT. If owner gives permission to drive their car to one known to be negligent or reckless, there will be liability under negligent entrustment. There is no liability if the car is stolen, unless the keys were left in the car. Carol openly left the door to her car unlocked, and the key to the car was easily within the reach of Peter. Carol thus negligently entrusted her car to Peter. Additionally, she will be held to a reasonable person standard in taking care of the maintenance of her car, and she will have to exhibit reasonable care in keeping the car maintained. BREACH OF DUTY. Where defendant did not act to reasonably protect plaintiff from foreseeable harm. There are three main ways in which breach of duty may be shown, including the Hand Formula, violation of a statute through negligence per se, or through the doctrine of res ipsa loquitur / the thing speaks for itself. HAND FORMULA. B<PxL. Defendant s burden to have acted differently, or the reasonable precaution cost, is balanced against the probability of harm (P), multiplied by the severity of harm (L). Defendant breaches their duty where the burden is less than the probability times the liability. We are given very few facts regarding the maintenance history of Carol s car. Did Carol properly maintain the car? Did the brakes fail due to a manufacturing defect? These are the sort of questions which would help determine whether or not Carol acted reasonably to maintain her car, and prevent an unreasonable risk of danger to Peter.

3 RES IPSA LOQUITUR. Where direct evidence of an accident remains unclear, and there is little direct evidence, circumstantial evidence of relating to the accident may create an inference of defendant s negligence. Plaintiff must show: 1. Injury Would Not Have Taken Place Without Negligence. Brakes rarely fail without a bad maintenance history. 2. Defendant was in Exclusive Control Over Instrumentality Causing Injury. We are told that the car was Carol s car, and thus may infer that she was in exclusive control over the car and its maintenance. 3. Plaintiff Did Not Contribute to Own Injury. Peter took the car while in a hurry to get to the hospital and see his wife who had just been transported to the hospital for emergency treatment. We are told that the brakes failed, but we are not told the exact mechanism of failure. It is likely that the brakes failed due to bad maintenance, but the brakes may have failed because Peter slammed the brakes on too hard, and broke an integral mechanism of the brakes, in his haste to reach the hospital. Absent contribution by Peter to the brake failure, we have breach of duty here under res ipsa loquitur. ACTUAL CAUSE. A defendant s conduct must have actually caused harm to plaintiff. Additionally, where two defendants act separately, and both of their acts would be sufficient for actual cause, then both defendants will be liable. But for Carol not maintaining her car, Peter would not have got into an accident. PROXIMATE CAUSE. Defendant is only liable for consequences which are reasonably foreseeable at time of injury, and which are not too remote or improbable. FORESEEABILITY. Was the injury to plaintiff foreseeable to defendant? Failure to maintain a braking system could potentially result in many types of car accidents, with resultant injury to different plaintiffs. Therefore, the injury to Peter, wherein the brakes failed and he hit a tree with the car, would have been foreseeable to Carol. INTERVENING EVENTS. Only superseding intervening events, which are unforeseeable, will break the chain of defendant s causation, and this includes unforeseen criminal behavior or willful wrongdoing by third parties, unforeseen acts of God, or grossly negligent medical care. Here, while Carol did not personally know of Peter s presence, she plainly left her car door open, and she openly left the car keys available for Peter to take the car. Peter s action to take Carol s car could be characterized as either a larceny, or a conversion. In other words, Peter s action was a crime and / or a tort. The key question was whether it was foreseeable. Here, if Carol would have taken her keys, and locked her door, Peter s actions would have been a superseding intervening event that broke her causal chain. However, because she openly left the door open

4 for anyone to steal her car, the fact that it was stolen would have been foreseeable to her, and her causal chain would not be broken. DAMAGES. We are told that Peter was injured, and he will be entitled to remedies, unless Carol successfully asserts an appropriate defense. DEFENSES. ASSUMPTION OF THE RISK. Implied assumption of the risk is strictly construed by the courts, and will exist as a defense where plaintiff, by their actions, showed an implied awareness of the risk of harm, and then acted in a voluntary manner. Peter had no reason to believe that the car that he took was unreasonably dangerous. This defense will fail. CONTRIBUTORY NEGLIGENCE. A total bar to recovery for plaintiff, and where plaintiff s unreasonable conduct proximately causes their harm, also called the doctrine of unavoidable consequences. Here, it would be unreasonable for a person to steal another s car, in order to get to a hospital. Peter could have taken a bicycle, walked, taken a cab, taken a bus, called the police, called a friend, or other reasonable actions to get to the hospital. Instead, he took the unreasonable action of stealing the car of another to provide a mode of transportation that was unreasonable in the circumstances. While it is true that his wife needed immediate medical care, his wife was already at the hospital and was receiving such emergency medical care. Therefore, Peter could not characterize his situation as an emergency situation. Therefore, his actions were unreasonable given the circumstances, and contributory negligence is a viable defense for Carol. COMPARATIVE NEGLIGENCE. Comparative negligence apportions fault by plaintiff prior to the injury, to proportionally reduce plaintiff s recovery. In a pure comparative negligence jurisdiction, the plaintiff will recover something, while in a modified comparative negligence jurisdiction the plaintiff will only recover up to a fifty percent liability. Supra, contributory negligence. Peter should have taken an alternate mode of transportation, and this defense will be viable. REMEDIES. Peter will be entitled to medical expenses, pain and suffering, out-of-pocket losses, loss of bodily functions, future damages, and damages for the loss of the ability to enjoy life. CONCLUSION. Peter has a viable prima facie claim in negligence against Carol. However, Carol likely has defenses to Peter's claim in contributory and comparative negligence.

5 II. CAROL v. PETER. NEGLIGENCE. Supra. DUTY. Supra. The zone of danger created by Peter s action to pull a fire alarm in a nearby building, would consist of the area within, and immediately surrounding, the building, as people rushed to get out of the building. Here, the accident with Carol took place outside of Carol s office building, not the building in which Peter pulled the fire alarm, thus, it was outside of the zone of danger created by defendant s conduct. However, once the fire trucks responded, the zone of danger would have been expanded to include the entire route of the fire trucks, including the area of Carol s accident. Therefore, under both the Cardozo and the Andrews view, Peter owed Carol a duty of care. STANDARD OF CARE. Supra. REASONABLE PERSON IN AN EMERGENCY. A reasonable person in an emergency situation, will be held to the same standard of a reasonable person in an emergency situation, with little time for reflection. Here, we find that Peter s wife is already at the hospital, and that there is no emergency. However, we also find that he is in a dazed condition. People in a dazed mental condition, will still be held to a reasonable person standard, and Peter will be held to such a standard, here. BREACH OF DUTY. Supra. HAND FORMULA. BPL. Peter apparently pulled the fire alarm to get medical care, and possibly, to commandeer a ride to the hospital to see his wife. However, Peter could have taken other more reasonable actions, such as borrowing a cell phone, and calling 911 for his own medical treatment. He acted unreasonably in pulling the fire alarm, and putting a lot of people at risk of potential injury as people were hurriedly exiting the building, and he thus breached his duty of reasonable care to Carol. ACTUAL CAUSE. Supra. A defendant s conduct must have actually caused harm to plaintiff. Additionally, where two defendants act separately, and both of their acts would be sufficient for actual cause, then both defendants will be liable. Here, but for Peter pulling the fire alarm, Carol would not have been hurt. Further, even thought the fire truck was the immediate modality of injury to Carol, the fact that Peter pulled the fire alarm would be seen as a substantial factor in causing her injury. PROXIMATE CAUSE. Supra. Defendant is only liable for consequences which are reasonably foreseeable at time of injury, and which are not too remote or improbable. FORESEEABILITY. Any number of eventualities may occur when one pulls a public fire alarm. People are scared and rush about, and the fire trucks respond with horns blaring. It is foreseeable that people may slip on stairs and fall, and that a fire truck may be involved in an

6 accident. Here, a fire truck was involved in an accident along the fire truck route with Carol, which was foreseeable. INTERVENING EVENTS. Only superseding intervening events, which are unforeseeable, will break the chain of defendant s causation, and this includes unforeseen criminal behavior or willful wrongdoing by third parties, unforeseen acts of God, or grossly negligent medical care. A number of events occurred after Peter pulled the fire alarm. However, none of the acts meet the requirements to supersede his causation. DAMAGES. We are told that Carol suffered severe injuries. DEFENSES. Supra. CONTRIBUTORY NEGLIGENCE. If Carol was aware of the fire trucks, and heard the sirens blaring, it seems that her actions would have been unreasonable. Perhaps all that she noticed was there her car was missing, and proceeded out into the street to look for her car. In a normal chain of events, this might have been appropriate. However, all citizens are required to step aside and let emergency vehicles pass, which she did not do. COMPARATIVE NEGLIGENCE. Comparative negligence apportions fault by plaintiff prior to the injury, to proportionally reduce plaintiff s recovery. As stated above, it is difficult to specifically apportion the amount of fault that Carol should be levied with. However, to the extent that she was responsible for her injuries by being unreasonably non-attentive, her reward may be diminished. ASSUMPTION OF THE RISK. Implied assumption of the risk is strictly construed by the courts, and will exist as a defense where plaintiff, by their actions, showed an implied awareness of the risk of harm, and then acted in a voluntary manner. To the extent that Carol heard the sirens of the fire trucks, and proceeded to cross the street anyway, she would have assumed a risk of injury. REMEDIES. Carol will be entitled to medical expenses, pain and suffering, out-of-pocket losses, loss of bodily functions, future damages, and damages for the loss of the ability to enjoy life. TRESPASS TO CHATTEL V. CONVERSION. At the moment that Peter took Carol s car, he committed a trespass to chattel, which is a minor interference with the personal property of Carol. However, when he got into a car accident with her car, the intrusion upon Carol s property rights became more severe, and could possibly entail a conversion, which is a full destruction of the personal property of another. REMEDY. If this is just a trespass to chattels, Carol will be entitled to the value of the intrusion, and if a full conversion, she will be allowed to recover the full value of the car.

7 PUBLIC / PRIVATE NECESSITY DEFENSE. Peter may claim private necessity as a defense. However, this defense will fail, because Peter was in no immediate harm, and his wife was getting treatment at the hospital, when he took Carol s car. CONCLUSION. Carol has viable claims against Peter in negligence and trespass to chattels or conversion. It is clear that she will win her trespass to chattels / conversion claim, because her car suffered damage, and Peter took her car without her express consent. However, Peter may have a viable defense in contributory or comparative negligence for the negligence claim.