CALIFORNIA TORTS ESSAY WORKSHOP PROFESSOR CHRISTOPHER IDE-DON UC DAVIS SCHOOL OF LAW

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1 A. Themis Technique CALIFORNIA TORTS ESSAY WORKSHOP PROFESSOR CHRISTOPHER IDE-DON UC DAVIS SCHOOL OF LAW STRATEGIES; SUMMARY OF ISSUES; SUBSTANTIVE LAW Find all f the trts be aggressive with yur issue checklist Fr the bigger issues, dn t frget t discuss the elements f a rule under separate headings (e.g. negligence duty, breach, causatin, & damages) Discuss any applicable defenses B. Summary f Issues Tested 1. Negligence Duty Duty f care wed t all freseeable persns that may be injured by D s failure t meet reasnable standard f care Failure t act Freseeable Ps Cardz & Andrews Standard f care Reasnably prudent persn under the circumstances bjective standard Other standards (child, prfessinal, cmmn carriers, trespassers, licensees, invitees) Negligence per se Exceptins t affirmative duty t act Breach (prepnderance f the evidence) greater prbability than nt that D failed t meet standard f care (custm/usage, statutry vilatin, r res ipsa lquitur) Causatin Actual but fr test Prximate direct and indirect Intervening Cause Superseding Cause Damages Defenses cntributry/cmparative negligence and assumptin f the risk

2 2. Strict Liability Elements abslute duty, breach, causatin, damages, & defenses Abnrmally dangerus activities Animals wild and dmestic (if wner knws f dangerus prpensities) 3. Prducts Liability Strict prducts liability Prduct defective when sld manufacturing r design defect, and failure t warn Actual & Prximate Cause Damages & defenses Negligence duty, breach, causatin, & damages 4. Defamatin Defamatry language Of r cncerning P Publicatin by D t a 3rd persn Damage t P s reputatin Matters f public cncern Falsity (private figure = negligence; public figure = malice) Fault Defenses truth, cnsent, and abslute/qualified privileges Warranties implied and express 5. Invasin f Privacy Misapprpriatin Intrusin upn seclusin False light Public disclsure f private facts 6. Intentinal Trts False Imprisnment Trespass t Chattels Battery Cnversin Assault Trespass t Land IIED Nuisance 7. Vicarius Liability Themis Bar Review, LLC CA Trts Essay Wrkshp

3 Themis Templates Exam Tip 1: Negligence is a big issue n the bar exam (and smetimes it can even be tested multiple times n the same questin), s make sure yu have yur apprach memrized and ready t g. Negligence T establish a prima facie case fr negligence, a plaintiff must prve duty, breach, causatin, and damages. Duty Wh is wed a duty A duty f care is wed t all freseeable persns that may be injured by a defendant s failure t meet the reasnable standard f care. Under the majrity view (Cardz), a defendant is nly liable t plaintiffs within the zne f freseeable harm. Under the minrity view (Andrews), a defendant wes a duty t everyne harmed. Standard f Care The standard f care wed by defendant t plaintiff is that f a reasnably prudent persn under the circumstances as measured by an bjective standard. Exam Tip 2: Apply the general standard f care t defendant unless a special standard f care applies (i.e. landwner, physician, etc.) r there is a statute (negligence per se). CA Trts Essay Wrkshp 2016 Themis Bar Review, LLC 3

4 Breach Defendant will be in breach f his duty t plaintiff if he fails t meet the applicable standard f care. Negligence Per Se Alternative Duty/Breach Analysis When a statute impses upn any persn a specific duty fr the benefit r prtectin f thers, a vilatin f the statute will cnstitute negligence per se. Statute Exam Tip 3: If there is a statute prvided in the facts, yu shuld always discuss Negligence Per Se. Write ut the statute frm the exam questin: [Here, the statute states ] Class f persn: In rder fr the statute t apply, the plaintiff must be in the class f peple meant t be prtected by the statute. Type f Harm: The plaintiff must als suffer the type f harm the statute intended t prtect against. Prximate Cause: If the statute applies, the defendant will be liable t the plaintiff if his vilatin f the statute prximately caused harm t the plaintiff. Causatin Exam Tip 4: Discuss actual and prximate cause under separate headings. T be liable, defendant s act must be bth the actual and prximate cause f plaintiff s injury. Cause in Fact/Actual Cause T prve actual causatin, plaintiff must shw that but fr defendant s act, plaintiff s injury wuld nt have ccurred. If there are multiple causes, defendant will be a cause in fact if he was a substantial cause f plaintiff s injury. Prximate Cause The plaintiff must shw that her injuries were the freseeable result f defendant s cnduct Themis Bar Review, LLC CA Trts Essay Wrkshp

5 Intervening Cause An intervening cause is an utside frce/actin that cntributes t the plaintiff s harm after the defendant s act/missin has ccurred. If the intervening cause is unfreseeable, it is a superseding cause and defendant s liability will be cut ff. Exam Tip 5: There can be mre than ne intervening cause in an exam questin. Address each intervening cause separately and analyze whether they are freseeable r unfreseeable. Damages T recver damages, plaintiff must prve actual injury and nt just ecnmic lss. Defenses Cntributry Negligence Exam Tip 6: Only discuss the defenses that apply, and if nne apply, simply state this in yur answer. In a cntributry negligence jurisdictin, plaintiff s negligence is a cmplete bar t recvery. In a pure cmparative negligence jurisdictin, plaintiff s negligence is nt a cmplete bar t recvery, but her damages are reduced by prprtin that plaintiff s fault bears t the ttal harm. Assumptin f the Risk Plaintiff s recvery may be barred if she vluntarily and knwingly assumed the risk f her behavir. CA Trts Essay Wrkshp 2016 Themis Bar Review, LLC 5

6 SUBSTANTIVE ISSUES (CONT D) Strict Liability A defendant engaged in an abnrmally dangerus activity will be held strictly liable withut any prf f negligence fr persnal injuries and prperty damage caused by the activity. Exam Tip 7: Strict liability fcuses n the danger f the activity, regardless f hw careful the defendant acts. If the activity is abnrmally dangerus, a defendant will be held strictly liable fr injuries. Abnrmally dangerus activity An abnrmally dangerus activity is ne with a high risk f harm, that is nt cmmnly fund in the cmmunity, which has a risk that cannt be eliminated with due care. Exam Tip 8: Be sure t address all three f the elements f abnrmally dangerus activity in yur analysis. Cnsider writing a separate paragraph fr each element. Examples f abnrmally dangerus activity include using explsives, fumigating, dispsing f hazardus waste, and strage f chemicals. Causatin T be liable, the abnrmally dangers activity must be bth the actual and prximate cause f plaintiff s injury. Cause in Fact/Actual Cause T prve actual causatin, plaintiff must shw that but fr defendant s act, plaintiff s injury wuld nt have ccurred. If there are multiple causes, defendant will be a cause in fact if he was a substantial cause f plaintiff s injury Themis Bar Review, LLC CA Trts Essay Wrkshp

7 Prximate Cause T prve prximate cause, plaintiff must shw that her injuries were the freseeable result f defendant s cnduct. Intervening Cause An intervening cause is an utside frce/actin that cntributes t the plaintiff s harm after the defendant s act/missin has ccurred. If the intervening cause is unfreseeable, it is a superseding cause and defendant s liability will be cut ff. Exam Tip 9: There can be mre than ne intervening cause in an exam questin. Address each intervening cause separately and analyze whether they are freseeable r unfreseeable. Damages T recver damages, plaintiff must prve actual injury and nt just ecnmic lss. Defenses (The best defense t Strict Liability is Assumptin f the Risk) Assumptin f the Risk Editr's Nte 1: Assumptin f the risk is nt the nly defense, but it is the best defense. Plaintiff s recvery may be barred if she vluntarily and knwingly assumed the risk f her behavir. Wild Animals Strict liability als applies t wners f wild animals r dmestic animals, if the wner knws f dangerus prpensities f the dmestic animal. Exam Tip 10: If a wild animal r dmestic animal with dangerus prpensities is invlved, the analysis f causatin, damages, and defenses is the same as abnrmally dangerus activity. CA Trts Essay Wrkshp 2016 Themis Bar Review, LLC 7

8 Prducts Liability Exam Tip 11: Yu shuld discuss Prducts Liability under bth a Strict Liability thery and a Negligent Prducts Liability thery. Yu shuld als discuss Express Warranties and Implied Warranties. Strict Prducts Liability A defendant wh is in the business f selling a cmmercial prduct may be strictly liable fr a defective prduct causing freseeable injuries t a plaintiff. T establish a prima facie case fr strict prducts liability, the plaintiff must prve that defendant had an abslute duty as a cmmercial seller f the prduct, that defendant prduced r sld a defective prduct, actual and prximate causatin, and damages. Abslute Duty A defendant wh is in the business f selling a cmmercial prduct including manufacturers, distributrs, and retail sellers is under an abslute duty t prvide a safe prduct. Exam Tip 12: Discuss here whether defendant qualifies as in the business f selling a cmmercial prduct (as ppsed t a casual r ccasinal seller f this particular prduct). Defective Prduct A prduct is defective when, at the time f the sale r distributin, it cntains a manufacturing defect, a design defect, r inadequate instructins r warnings (i.e., failure t warn). Exam Tip 13: It is pssible fr a prduct t be defective based n mre than ne thery. Yu shuld discuss all defect theries that are raised by the facts. Manufacturing Defect A manufacturing defect is a deviatin frm what the manufacturer intended the prduct t be that causes harm t the plaintiff. The test fr the existence f such a defect is whether the prduct cnfrms t the defendant s wn specificatins Themis Bar Review, LLC CA Trts Essay Wrkshp

9 Design Defect Depending n the jurisdictin, curts usually apply either the cnsumer-expectatin test r the riskutility test (r a hybrid f bth tests) t determine whether a design defect exists. Under the cnsumer-expectatin test, plaintiff must prve that the prduct is dangerus beynd the expectatin f an rdinary cnsumer. Under the risk-utility test, the plaintiff must prve that a reasnable alternative design that is ecnmically feasible was available t defendant, and failure t use that design rendered the prduct unreasnably safe. Exam Tip 14: Lk fr facts in the exam questin abut the availability f alternative designs and the cst f these alternative designs. Failure t Warn A failure t warn defect exists if there were freseeable risks f harm, nt bvius t an rdinary user f the prduct, which culd have been reduced r avided by prviding reasnable instructins r warnings. Exam Tip 15: Read the exam facts carefully- the defendant might prvide a warning abut ne type f harm, but nt warn abut the type f harm that actually ccurred. CA Trts Essay Wrkshp 2016 Themis Bar Review, LLC 9

10 Causatin Actual Causatin T be the actual cause f plaintiff s injury, the prduct must have been defective when it left defendant s cntrl. Prximate Causatin T be the prximate cause f plaintiff s injury, the defect causing plaintiff s injuries must have ccurred when the prduct was being used in an intended r reasnably freseeable way. A defendant will still be liable if the plaintiff misuses the prduct and is injured, if the misuse is freseeable. Damages Plaintiff must als suffer persnal injury r prperty damage. Defenses Cntributry Negligence In a cntributry negligence jurisdictin, plaintiff s negligence is a cmplete bar t recvery. Editr's Nte 2: Cntributry negligence is nly a cmplete bar t recvery when the plaintiff s fault cnsisted f unreasnably prceeding in the face f a knwn prduct defect. In a pure cmparative negligence jurisdictin, plaintiff s negligence is nt a cmplete bar t recvery, but her damages are reduced by prprtin that plaintiff s fault bears t the ttal harm. Assumptin f the Risk Plaintiff s recvery may be barred if she vluntarily and knwingly assumed the risk f her behavir Themis Bar Review, LLC CA Trts Essay Wrkshp

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12 Negligent Prducts Liability Exam Tip 16: After yu analyze strict prducts liability, yu shuld always discuss negligent prducts liability. This analysis is the same as a typical negligence analysis and analyzes whether the defendant acted negligently in relatin t the prduct. Under a negligent prducts liability thery, a plaintiff must prve duty, breach, causatin, and damages. Duty Wh is wed a duty A duty f care is wed t all freseeable persns that may be injured by a defendant s failure t meet the reasnable standard f care. Under the majrity view (Cardz), a defendant is nly liable t plaintiffs within the zne f freseeable harm. Under the minrity view (Andrews), a defendant wes a duty t everyne harmed. Standard f Care The standard f care wed by defendant t plaintiff is that f a reasnably prudent persn under the circumstances as measured by an bjective standard. Exam Tip 17: Apply the general standard f care t defendant unless a special standard f care applies (i.e. prfessinal, physician, etc.) r there is a statute (negligence per se). Breach Defendant will be in breach f his duty t plaintiff if he fails t meet the applicable standard f care. Causatin, Damages, & Defenses Themis Bar Review, LLC CA Trts Essay Wrkshp

13 Exam Tip 18: The causatin, damages, and defenses analyses fr negligent prducts liability are the same as the analyses fr strict prducts liability. T save time, yu can cut/paste the causatin, damages, and defenses analysis sectins frm yur earlier strict prducts liability sectin, r say see abve fr the causatin, damages, and defenses analyses. Warranties Exam Tip 19: Prducts liability questins are lengthy. When yu reach warranties, yu quickly analyze express warranty (if applicable) and the tw implied warranties. Express Warranty (if applicable) An express warranty is a prmise r guarantee made by the defendant abut the prduct. If the prduct des nt meet this warranty, the defendant has breached this warranty and plaintiff can recver damages. Implied Warranty f Merchantability (always discuss) Under the implied warranty f merchantability, a prduct that is sld is impliedly warranted t be reasnably useful and safe fr average use. Implied Warranty f Fitness fr Particular Purpse (if applicable) Under this implied warranty, if a seller knws r has reasn t knw f a particular purpse fr which sme item is being purchased by the buyer, the seller is guaranteeing that the item is fit fr that particular purpse. CA Trts Essay Wrkshp 2016 Themis Bar Review, LLC 13

14 Defamatin A plaintiff may bring an actin fr defamatin if the defendant s defamatry language is f r cncerning the plaintiff, is published t a third party wh understands its defamatry nature, and damages the plaintiff s reputatin. Defamatry Language T be defamatry, the language used must diminish the respect, esteem, r gdwill twards plaintiff. Of r Cncerning Plaintiff A reasnable persn must believe that the defamatry cmmunicatin refers t this particular plaintiff and hlds him up t scrn r ridicule in the eyes f a substantial number f respectable members f the cmmunity. Publicatin Publicatin f defamatry matter is its intentinal r negligent cmmunicatin t a third party. Damage t Plaintiff s Reputatin General damages are presumed when the cmments invlve libel, which are written statements. Hwever, they are nt presumed when it invlves slander, which are ral cmments. Damages fr slander per se are presumed when the cmments invlve the prfessinal reputatin, disease, crimes f mral turpitude, r unchaste behavir Themis Bar Review, LLC CA Trts Essay Wrkshp

15 Cnstitutinal Defamatin Requirements The Cnstitutinal defamatin requirements apply if: 1. The plaintiff is a public fficial/figure, r 2. The plaintiff is a private individual, but the statement invlves a matter f public cncern. Exam Tip 20: Be sure t explain why the plaintiff is a public fficial/figure r why the statement invlves a matter f public cncern (if the plaintiff is a private individual). First Cnstitutinal Requirement: Falsity The plaintiff (public figure/fficial r private individual and statement invlving a matter f public cncern) must als prve that the statement is false. Fault If the plaintiff is either a public fficial r a public figure, he is required t prve that the defendant acted with actual malice, and either had knwledge that the statement was false r acted with reckless disregard as t the truth r falsity f the statement. If the plaintiff is a private individual and the defendant s statement invlves a matter f public cncern, the plaintiff is cnstitutinally required t prve that the defendant acted with fault either negligence r actual malice. CA Trts Essay Wrkshp 2016 Themis Bar Review, LLC 15

16 Damage t Plaintiff s Reputatin Plaintiff must prve actual damages if he is a public figure/fficial r a private figure but a matter f public cncern is invlved. If the plaintiff is a private figure and shws malice, he can recver punitive damages as well. Defenses Exam Tip 21: Only raise the defenses that apply. Truth Truth is an abslute defense. Cnsent Cnsent is an abslute defense as lng as defendant did nt exceed the scpe f cnsent. Abslute Privilege An abslute privilege can never be lst, and is used fr remarks during judicial r legislative prceedings, between spuses, r in required publicatins. Qualified Privilege A qualified privilege is ne affecting an imprtant public interest, in the interest f defendant r a 3rd party, and it can be lst if the statement exceeds the scpe f the privilege r the speaker acted with malice Themis Bar Review, LLC CA Trts Essay Wrkshp

17 Invasin f Privacy Trts Exam Tip 22: Lk fr the call f the questin t ask yu abut Invasin f Privacy. If the questin asks abut this issue, yu shuld discuss the trts belw. Misapprpriatin Misapprpriatin is the unauthrized use f P s name, likeness, r identity fr D s advantage (cmmercial r therwise). Plaintiff must prve lack f cnsent and injury. Intrusin upn Seclusin An intrusin upn seclusin is defendant s act f intrusin int plaintiff s private affairs that are bjectinable t a reasnable persn. Nte that n publicatin is required. False Light T maintain an actin fr false light, plaintiff must prve that defendant published facts abut plaintiff r attributed views/actins t plaintiff that place him in a false light and are highly ffensive t a reasnable persn. Public Disclsure f Private Facts The public disclsure f private facts is actinable if the publicatin wuld be highly ffensive t a reasnable persn, and is nt f legitimate cncern t the public. CA Trts Essay Wrkshp 2016 Themis Bar Review, LLC 17

18 Intentinal Trts Persnal Injury Battery Battery requires harmful r ffensive cntact (bjective standard) with the plaintiff s persn (r anything cnnected t it), intent by defendant t cause the tuching (transferred intent applies), and causatin. Assault Assault requires an act/threat (mere wrds nt enugh) placing the plaintiff in in reasnable apprehensin f imminent harmful r ffensive cntact with his persn, intent by defendant t place defendant in apprehensin (transferred intent applies), and causatin. IIED IIED requires extreme and utrageus cnduct by the defendant causing severe emtinal distress t plaintiff and intent (transferred intent des nt apply) by the defendant t cause distress. Liability t third parties Defendant can be liable if he distresses a member f victim s immediate family Defendant can be liable if he distresses a bystander (nt family) if the distress results in bdily injury t the bystander. False imprisnment False Imprisnment is the intentinal cnfinement/restraint f defendant (methds f cnfinement include physical barriers r frce, threats, invalid use f legal authrity, duress) fr any amunt f time. There must be n reasnable means f safe escape and actual damages are unnecessary if P was aware f cnfinement. Shpkeeper s Privilege (Defense) If a shpkeeper reasnably suspects plaintiff f stealing, he can detain the plaintiff fr a reasnable amunt f time in a reasnable manner. Defenses Cnsent Cnsent is a defense against intentinal trts. Hwever, if must be vluntary and a defendant will be liable if he exceeds the scpe f plaintiff s cnsent Themis Bar Review, LLC CA Trts Essay Wrkshp

19 Harm t Prperty Trespass t chattels (tangible persnal prperty) Trespass t chattels is an interference with the plaintiff s pssessin f her chattel, intent t perfrm the act that interferes with the pssessin (transferred intent applies), causatin, and damages. Damages are limited t cmpensatin fr the lss in value r cst f repair f the prperty. Cnversin Cnversin requires serius interference with plaintiff s pssessin f her chattel, intent t perfrm the act that interferes with the pssessin (transferred intent applies), causatin, and damages. The serius interference with plaintiff s persnal prperty results in damages fr the full value f prperty. Trespass t land Trespass t land requires the physical invasin f anther s land and intent t enter the land r cause physical invasin (transferred intent applies). Necessity (Defense) Private Necessity allws a persn t enter plaintiff s land t prtect her wn persn/prperty frm harm; she is nt liable fr trespass but respnsible fr actual damages. Public Necessity allws a persn t enter plaintiff s land t prevent an imminent public disaster; the persn is nt liable fr damage if her actins were reasnable r she had a reasnable belief that necessity existed, even if initial entry was nt necessary. Nuisance Private Nuisance is a substantial (ffensive t a reasnable persn) and unreasnable (balance the interests f the plaintiff and defendant) interference with anther s use r enjyment f his land. Public Nuisance is an unreasnable interference with a right cmmn t the general public Defenses Regulatry cmpliance is a partial defense if the defendant is fllwing the law. Cming t the nuisance is a defense. Exam Tip 23: When analyzing Private r Public Nuisance, be sure t balance the interests f the plaintiff in being free frm the nuisance with the interest f the defendant in cntinuing his activities. Remedies available are mney and damages and injunctive relief Abatement (eliminating the nuisance) CA Trts Essay Wrkshp 2016 Themis Bar Review, LLC 19

20 Private Nuisance: Reasnable frce is permitted t abate the nuisance; P must give D ntice f the nuisance first and D must refuse t act befre actin can be taken. Public Nuisance: Absent unique injury, public nuisance may be abated nly by public authrity. Vicarius Liability Generally, an emplyer is liable fr the trts f an emplyee, but nt fr the trts f an independent cntractr. Exam Tip 24: The first issue t discuss in a vicarius liability analysis is whether the persn wh cmmitted the trt is an emplyee r an independent cntractr. This will be a factual based analysis and yu can argue fr bth sides. Exam Tip 25: After yu determine the status f the persn wh cmmitted the trt, yu shuld analyze the liability f the emplyer under an emplyeremplyee relatinship and/r an emplyer-independent cntractr relatinship. Under the thery f vicarius liability, an emplyer is liable fr the trts f an emplyee if the emplyee is acting within the scpe f the emplyment (even if the emplyee cmmits an intentinal trt). An emplyer will nt be liable fr negligence f their emplyees utside f the duties. An emplyer is generally nt liable fr the negligence f an independent cntractr. Hwever, a defendant will be liable fr the negligence f a cntractr if the negligence invlves a nn-delegable duty r an inherently dangerus activity Themis Bar Review, LLC CA Trts Essay Wrkshp

21 PRACTICE QUESTION Trts Exam Questin July 2010, Questin #1 Hmewner kept a handgun n his bedside table in rder t prtect himself against intruders. A statute prvides that all firearms must be stred in a secure cntainer that is fully enclsed and lcked. Burglar brke int Hmewner s huse while Hmewner was ut and stle the handgun. Burglar subsequently used the handgun in an attack n Patrn in a parking lt belnging t Cinema. Patrn had just exited Cinema arund midnight after viewing a late mvie. During the attack, Burglar apprached Patrn and demanded that she hand ver her purse. Patrn refused. Burglar drew the handgun, pinted it at Patrn, and stated, Yu made me mad, s nw I m ging t sht yu. Patrn fainted ut f shck and suffered a cncussin. Burglar tk her purse and fled, but was later apprehended by the plice. Cinema had been aware f several previus attacks n its custmers in the parking lt at night during the past several years, but prvided n lighting r security guard. Under what thery r theries, if any, might Patrn bring an actin fr damages against Hmewner, Burglar, r Cinema? Discuss. State Bar f Califrnia. Reprinted with permissin. CA Trts Essay Wrkshp 2016 Themis Bar Review, LLC 21

22 ISSUES CHECKLIST I. P V. H A. Negligence 1. Duty a. T whm the duty is wed b. Standard f care 2. Breach a. Negligence per se 3. Causatin a. Actual cause b. Prximate cause 4. Damages 5. Defenses a. Cntributry negligence b. Cmparative negligence c. Assumptin f the risk II. P V. B A. Assault B. Battery C. IIED [D. NIED] E. Trespass t Chattels F. Cnversin G. False Imprisnment III. P V. C A. Negligence 1. Duty a. T whm the duty is wed b. Standard f care 2. Breach 3. Causatin a. Actual cause b. Prximate cause 4. Damages 5. Defenses Themis Bar Review, LLC CA Trts Essay Wrkshp

23 Sample Answer I. PATRON (P) V. HOMEOWNER (H) Negligence Negligence is cnduct withut wrngful intent that falls belw the minimum degree f rdinary care impsed by law t prtect thers against unreasnable risk f harm. A prima facie case fr negligence cnsists f fur elements: (i) duty; (ii) breach; (iii) causatin; and (iv) damages. Duty T whm the duty is wed The majrity rule (the Cardz view ) is that a duty f care is wed t the plaintiff nly if she is a member f the class f persns wh might be freseeably harmed as a result f the defendant s negligent cnduct. This means a defendant is liable fr negligence nly t thse plaintiffs wh are within the zne f freseeable harm. The minrity view (the Andrews view ) states that if the defendant can fresee harm t anyne as a result f his negligence, then a duty is wed t everyne (freseeable r nt) injured as a result f his breach. In this case, P was arguably in the zne f danger because if H leaves his gun unsecured in his hme and smene steals it, it is freseeable that the thief wuld use the gun t cmmit a crime and/r cause harm t anther persn. On the ther hand, H will argue that the zne f danger was within his hme and P was nt in the zne f danger because she was attacked in the Cinema parking lt. This is a clse call and the curt culd ut either way. Under the Andrews view, P wuld be wed a duty because H culd fresee harm t smene if he left his gun unsecured in his huse; therefre a duty is wed t everyne. Standard f care In mst cases, the standard f care impsed is that f a reasnably prudent persn under the circumstances as measured by an bjective standard. Therefre, H has a duty t act like a reasnably prudent gun wner. Breach The defendant will be in breach f his duty t the plaintiff if he fails t meet the applicable standard f care. Althugh H kept a handgun n his bedside table in rder t prtect himself against intruders, ding s cnstitutes a breach f his duty. By leaving the (presumably) laded handgun ut in the pen, he has created a risk f harm t himself, visitrs, and future victims f intruders. Mst gun wners have safes that their guns are kept in at all times. A reasnable gun wner wuld at least put the gun away whenever he wasn t hme. After all, if he came hme and an intruder was already there, then the intruder wuld likely have fund the gun with greater ease than if it had been put away in a drawer, safe, etc. H s act f leaving the handgun n his bedside table is a breach f his duty. CA Trts Essay Wrkshp 2016 Themis Bar Review, LLC 23

24 Negligence per se P may als attempt t invke the dctrine f negligence per se. When a statute r administrative regulatin defines the standard f reasnable cnduct, that standard supersedes cmmn law standards. The plaintiff may establish duty and breach by prving that: (i) he was in the class f peple intended t be prtected by the statute; (ii) the harm was f the type intended t be prtected; and (iii) the harm was prximately caused by defendant s vilatin f the statute. Class f Peple H will argue that P was nt in the class f persns intended t be prtected by the statute because the requirement that guns be stred in a secure cntainer seems t be intended t prtect children in the hme. It des nt seem t prtect peple wh will be harmed by guns that are stlen. If that were the case, the requirement might be that guns be kept in a hidden lcatin, r that they must be kept in rms with lcked drs, but nt necessarily in secure cntainers. P will argue that the statute is brader, and legislative intent may shw that it was designed t prtect all peple wh might be injured by guns. This why they specified that the gun be in a lcked cntainer. Althugh nt hidden, this wuld deter smene frm taking the gun because they might nt be able t cut the lck r decipher the lck cde. This is a clse call, but the curt will prbably cnclude that P was within the class f persns intended t be prtected. Type f Harm As fr the secnd requirement, P will argue that her harm is the type the statute was designed t prtect against, because it was designed t prtect peple frm being injured by handguns. Althugh a bullet didn t injure her, the handgun arguably injured her because she fainted frm shck at having ne pinted at her. The curt will likely agree. Prximate Cause Finally, with regards t the third requirement, P s injuries were nt prximately caused by H s failure t lck the gun in a cntainer (see discussin belw). Thus, because the third requirement is nt satisfied, it is likely P will nt be able t establish breach based n a negligence per se argument. Hwever, P can still establish breach based upn a reasnable persn standard. *** [END OF HANDOUT] Themis Bar Review, LLC CA Trts Essay Wrkshp

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