Southern California Institute of Law



Torts, Fall 2016Santa Barbara & VenturaProf. Eric Kunkel & Prof . Stephen FayQUESTION #1Peter wanted to be a police officer. He learned the local police department used .40 caliber handguns, and persuaded his father to purchase one for him for his 20th birthday at the local gun store so he could practice shooting. The handgun was always kept in a locked gun safe when not in use. Peter was not allowed to handle the gun by himself, and could only shoot under his father’s supervision. Peter often accompanied his father to the local gun store when his father went to purchase ammunition for the handgun. Owner of the gun store got to know Peter and his father, and was impressed by Peter’s friendly demeanor and maturity. Peter often talked about his fiancé, noting he had never had another girlfriend, and had big plans for their life together. On a visit to the gun store with his father a few months before his 21st birthday, Owner noticed Peter did not seem to be his usual self. He stayed near the door and did not speak to Owner. When Owner asked Peter’s father if Peter was okay, Peter’s father told Owner Peter’s fiancé had just broken her engagement to Peter. One week later, Peter went to the gun store by himself to purchase some ammunition for the gun. When Owner asked Peter where his father was, Peter lied and said his father was busy that morning, and had asked him to get the ammunition. Owner noticed Peter looked like he had been crying, but did not want to pry. Believing Peter had turned 21, Owner sold Peter one box of ammunition without checking his driver’s license. As Peter left the store, Owner said goodbye to him, but Peter did not respond. Peter returned home and waited until his parents left for the afternoon. Having overheard his father tell his mother the combination for the gun safe the night before, he retrieved the handgun from the gun safe. He loaded the handgun with the ammunition he purchased, and shot himself to death. Peter’s parents brought suit against Owner, contending he was responsible for Peter’s death. A statute in the jurisdiction provided it was unlawful for any gun store owner to sell handguns or ammunition for handguns to any person the owner knew, or had reasonable cause to believe, was under the age of 21. What claims or causes of action might Parents bring against Owner, and what is the likelihood they would succeed? Discuss.What defenses might Owner raise in response to those claims or causes of action? Discuss. Torts, Fall 2016Santa Barbara & VenturaProf. Eric Kunkel & Prof . Stephen FayQUESTION #2Patsy and Dory, students of boxing, agreed to meet one day to practice. They had sparred together many times previously and had always given each other strenuous, and therefore efficacious, workouts. They had always pushed each other hard, but they have never harmed each other, always stopping when it appeared someone might be injured.They began their practice. Patsy landed a flurry of punches and Dory none at all. This frustrated and upset Dory so much so that when the bell rang to end the round, and Patsy's trainer Trent jumped into the ring, Dory threw a punch at him. Trent was startled and ducked. Dory’s gloved fist missed Trent and hit Patsy on the back of the head.Patsy turned round and began to berate Dory. This made Dory even more upset. She began to throw punches at Patsy. Patsy avoided every one and jumped out of the ring. Dory followed, throwing more punches at Patsy but connecting not once. Patsy backed up in front of an open supply closet. Dory threw one last big punch; so big that when Patsy ducked under it Dory fell into the closet. Patsy shut the door and locked it, trapping Dory in the closet. Patsy then decided that she had to have her head checked at a hospital. Dory’s car was the only one there. Patsy took Dory's car to the hospital. Patsy was declared OK, so she came back in the car and returned it to the lot. Patsy found Dory asleep in the closet.What are Trent’s rights against Dory in Assault? May Dory prevail with a defense of Consent?What are Patsy’s rights against Dory in Battery? May Dory prevail with a defense of Consent?What are Dory’s rights against Patsy in False Imprisonment? May Patsy prevail with a claim of Self-Defense?What are Dory’s rights against Patsy for Tresspass To Chattel? May Patsy prevail with a defense of Necessity; or a defense of Justification?Torts I Fall 2016Examination Question Issue SheetQuestion #1 (Prof. Eric Kunkel)What claims or causes of action might Parents bring against Owner, and what is the likelihood they would succeed? Negligence:Since Owner did not intentionally harm Peter and there is likely no basis for recovering from him under a theory of strict liability, Parents are likely to bring a cause of action for negligence against Owner. To establish a claim for negligence, a plaintiff must show the defendant owed a duty of care and breached that duty, and further that the breach of the duty caused harm. Where a party engages in conduct which creates a risk of harm to others, he or she is normally under a duty to use due care to avoid that harm, and act as a reasonably prudent person under the circumstances. In addition, where a party can foresee a risk of harm in light of his or her knowledge of certain facts (“special reason to know”), he is under a duty of care to avoid that risk of harm, especially where he had the opportunity and ability to avoid that risk of harm. 1.Duty of Care Cardozo View: Was Peter in the reasonably foreseeable zone of danger caused by Owner’s negligence. As a seller of firearms and ammunition, Owner was engaged in an activity which could pose a risk of harm to others. That fact is evidenced by the statute prohibiting gun store owners from selling firearms and ammunition to minors. Owner was therefore under a duty of care to avoid actions in that regard which would pose an unreasonable risk of harm to others. That likely included the duty to avoid selling ammunition to a person who might use it to harm himself where, given Owner’s knowledge of certain facts, he could reasonably foresee that person might harm himself in that manner (“special reason to know”). Here, Owner had seen Peter in his store one week before the sale, and noticed Peter was distant and not his usual self. He also learned Peter’s fiancé had just broken her engagement to him. He knew Peter was very enamored of his fiancé given how much he talked of her, and that he had big plans for their future together. Owner also knew Peter had never had another girlfriend. Those facts show Peter was likely devastated by his fiancé’s decision to break their engagement. In addition, the facts indicate Peter had never purchased ammunition by himself. A person in Owner’s position would have been understandably suspicious when Peter came into the store by himself and told Owner his father was “busy” that morning and had asked him to buy the ammunition. Further, Peter looked as if he had been crying, and did not respond when Owner said goodbye to him. Owner may therefore have been under a duty of care to avoid that harm by not selling the ammunition to Peter, irrespective of whether doing so violated any other law, such as the statute noted in the facts. Taken together, these facts indicate Owner may have been able to foresee there was a risk Peter would harm himself with the ammunition. Further, Owner had the opportunity and ability to avoid that risk of harm by not selling the ammunition to Peter. Andrew’s View: Plaintiff is owed a duty of care by defendant if he/she is injured by defendant’s negligent act. Here, since Peter was killed because of Owner’s negligence a duty of care was owed. Standard of CareThe standard of care is what a reasonably prudent person in defendant’s position would have done. Here, a seller of firearms who is aware of a possibly underage buyer in a distraught condition would have asked for age identification or given buyer demeanor would have refused to sell or requested that he be accompanied by his parent.Breach of the Duty of CareAssuming Owner was under a duty of care to Peter to not sell him ammunition for the handgun, he breached it when knowing of Peter’s condition he sold him the ammunition for the handgun. Causation in Fact (“But-For Test)That Owner breached a duty of care does not, however, end the inquiry. That breach must have caused the injury complained of for Owner to be held liable for negligence. To establish causation, the plaintiff must ordinarily show either that, but for the actions of the defendant the injury or damage, Peter’s death, would not have occurred, or that those actions were a substantial factor in bringing it about. If the harm would have happened even if Owner had not breached any duty of care, his act of selling Peter the ammunition may be deemed to not be a cause in fact of the injury or damage which occurred.Nonetheless, where separate acts combine to produce a single injury, each is deemed a cause of the injury, even though each act alone might not have caused it. While Owner’s act of selling Peter ammunition did not bring about Peter’s death in and of itself, it strongly appears it was an act which, when combined with Peter’s acts of loading the gun and pulling the trigger, brought about the harm. In that regard, it appears there was no ammunition in Parents’ home for Peter to use. Otherwise, there would have been no need for him to buy ammunition. It thus appears that, but for the sale of the ammunition, Peter would not have been able to shoot himself with the handgun. It therefore appears Owners’ act of selling the ammunition could be deemed a cause in fact of the harm. Proximate CauseHere the focus is on the injuries or damages. Thus the real question is was Peter’s suicide the proximate cause of Owner’s negligence. The law supplies two tests of proximate causation. In re PolemisDefendant is responsible for all the direct injuries caused to Plaintiff by his negligent act unless there was a third party intervening force that was neither probable nor foreseeable that act as a superseding cause and broke the chain of causation. Normally the independent and intentional act of a third party breaks the chain of causation. In that regard, a separate act or event occurring after the original, negligent act of the defendant and also playing a role in bringing about the harm can be deemed to supersede the original, negligent act of the defendant as the cause of the harm when it was not reasonably foreseeable from the standpoint of the defendant. Moreover, suicide is an intentional act and, as a general matter, a person has less reason to anticipate an intentional act than a negligent one. As noted above, it appears Peter’s suicide was reasonably foreseeable by Owner. Owner’s act may therefore be deemed the proximate cause of Parents’ harm under this test.Wagon MoundHere, the inquiry is whether the nature and extent of the injuries were reasonably foreseeable. Was death by suicide reasonably foreseeable. For the reasons stated above, one can answer this question in the affirmative. 6.Damages Finally, to prevail on a cause of action for negligence, Parents must establish they suffered damages. Here, that requirement is easily met, as Peter died. Parents may therefore be able to recover from Owner on a cause of action for negligence. Negligence Per Se:Apart from bringing a case for negligence against Owner, Parents would likely also consider a claim for negligence per se. The doctrine of negligence per se permits a plaintiff to establish the defendant was negligent by utilizing a statute or regulation to establish the duty of care. Under the doctrine, the statute or regulation establishes what a reasonably prudent person would do under the circumstances, with the result that a failure to comply with the statute will be deemed a breach of the duty of care. To rely on the doctrine, the plaintiff must ordinarily establish he or she was within the class of persons intended to be protected by the statute, and that the harm or injury he or she suffered was the type the statute was intended to guard against. The plaintiff must also demonstrate the statute is one appropriate for application of the doctrine. The trial judge must decide whether these preliminary criteria are met.The case law in the jurisdiction determines the effect of an unexcused violation of the statute or regulation, whether it be negligence per se, a rebuttable presumption, or merely evidence of negligence. Even in those jurisdictions deeming an unexcused violation negligence per se, or the establishment of both a duty and the breach of that duty, the jury must still determine whether the defendant violated the statute or regulation, and whether any violation caused the injury.Here, a statute in the jurisdiction provided it was unlawful for any gun store owner to sell handguns or ammunition for handguns to any person the owner knew, or had reasonable cause to believe, was under the age of 21. Peter is undoubtedly within the class of persons intended to be protected by the statute, which likely recognizes persons under the age of 21 are more likely to injure themselves or someone else with a handgun due to their lack of maturity, inexperience or poor judgment. The statute is also likely intended to prevent young persons from taking their life, given the greater emotional instability they often experience in the face of traumatic circumstances. By extension, Parents are also likely within the class of persons intended to be protected by the statute, as parents naturally care for their children and are heavily invested in their lives. As for the second requirement, for the same reasons, the harm Peter suffered is likely the type of harm the statute was intended to guard against. Lastly, it appears the statute is one appropriate for application of the doctrine, because it does not appear to work any unfairness or pose the specter of the imposition of an ill-defined liability on an inordinate number of persons. Only gun store owners are affected, and they can easily take steps to comply with the statute by always requiring proof of a customer’s age. Parents may therefore be able to rely on the statute to pursue a claim for negligence per se. As for whether Owner violated the statute, the facts indicate he sold Peter the ammunition because he believed he had turned 21. However, it is evident Peter had not yet turned 21, because he purchased the ammunition a few months before his 21st birthday. Moreover, the facts suggest Owner had reason to know Peter was not yet 21, because his father had always purchased the ammunition prior to that time. Owner therefore likely had reasonable cause to believe Peter may have been under the age of 21. Further, he could have easily asked for and checked Peter’s driver’s license to verify Peter’s age. Had he done so, he would have known Peter had not turned 21. It therefore appears he did violate the statute, thereby breaching the duty it effectively set. However, whether Owner’s violation of the statute was the cause in fact of Parents’ harm is less clear. The facts indicate Peter was close to the age of 21, and that Owner was impressed by Peter’s maturity. That Peter was serious about his future and apparently otherwise obeyed his father’s requirement he only use the handgun under his father’s supervision indicates Peter generally exercised good judgment. Those facts therefore suggest Peter’s age did not play a role in his act of suicide, and that Owner’s violation of the statute was therefore not the cause in fact of the Parents’ harm. Nonetheless, younger persons are known to have greater difficulty with traumatic experiences, and to experience suicidal ideation over the loss of a relationship, especially one that had ripened into a commitment of marriage. Peter’s age consequently may have made him more vulnerable to taking his own life. If so, the Owner’s violation of the statute might be deemed a cause in fact of the Parents’ harm. It also appears Parents may be able to prove Owner’s violation of the statute was the proximate cause of the harm they suffered. As noted above, it appears the harm was reasonably foreseeable by Owner. Parents may therefore also succeed in bringing a cause of action for negligence per se. What defenses might Owner raise in response to those claims or causes of action?Owner would most likely contend he was under no duty to not sell Peter ammunition because he could not have reasonably foreseen Peter would act to harm himself simply because Peter’s fiancé broke their engagement and Peter did not seem to be his normal self. He would also likely contend suicide is an intentional act and therefore one he could not have reasonably foreseen, with the consequence it was an intervening, superseding cause of the Parents’ harm. However, he is likely to have difficulty in making those arguments. The facts indicate he may very well have had special reason to know Peter might harm himself, and therefore been obligated to take action to avoid that harm by not selling Peter the ammunition. For the same reason, Peter’s act of taking his own life is likely to not be deemed a superseding cause of Parents’ harm. Owner might also attempt to dispute a claim for negligence per se on the ground Peter’s age played no role in his decision to take his own life. As noted above, however, that claim may very well fail. Finally, Owner might attempt to blame Parents for Peter’s death at least in part, contending they were negligent in failing to insure Peter could not overhear their conversation regarding the combination for the gun safe. However, that argument is not likely to succeed. The facts suggest Peter had obeyed their rules up to that point and therefore not given them any reason to believe he might try to get into the gun safe. As a result, they likely could not have reasonably foreseen he would use that information to take his own life. Owner, on the other hand, knew Peter intended to buy ammunition, and was aware of other information indicating Peter might harm himself. Torts I Fall 2016Examination Question Issue SheetQuestion #2 (Prof. Stephen Fay)Trent v DoryAssaultIs Dory liable to Trent in assault?Assault is a volitional act done with the intent to place plaintiff or a third party in immediate apprehension of a harmful or offensive contact; or done with the intent to cause some other direct, forcible, and immediate harm to plaintiff or a third party , which does in fact cause plaintiff to suffer an immediate apprehension of harmful or offensive contact.Here, Dory threw a punch. A conscious act of her will and therefore volitional. She threw the punch at Trent. One may infer from this that she desired to strike him, an offensive contact. Under the doctrine of transferred intent between torts , Dory's probable intent to strike, or batter, Trent is sufficient to support the intent element in a cause of action for assault. Her volition and intent then joined to cause Trent to be startled and duck, in immediate apprehension that he would be struck. Dory may be liable for assault.May Dory prevail with a defense of Consent?Volenti non fit injuria: “To one who consents, no wrong is done."Dory may submit that a boxing match, practice or not, is a dangerous place and that whoever steps into that place is therefore subject to that foreseeable danger. She could take the position that she could not possibly be expected to resist her excitement and aggression and simply stop.On the other hand, Dory had done this before, and always stopped before someone was injured. Trent was not a combatant, he was Patsy's trainer. The round had ended. Patsy had dropped her hands and turned around. So Dory may have acted beyond the scope of whatever consent she may have had.Patsy v DoryBatteryIs Dory liable to Patsy in Battery?Battery is a volitional act done with the intent to cause a harmful or offensive contact to plaintiff or a third person; or done with the intent to cause some other direct, immediate ,and forcible harm to plaintiff or a third person, which does in fact cause plaintiff to suffer a harmful or offensive contact. Here, Dory threw a punch: an act of her conscious will and therefore volitional. It may be inferred from her act that her intent, her desire, was to strike Trent; but she missed Trent and struck Patsy. Still, under the doctrine of transferred intent between parties, Dory's intent to strike Trent may be transferred to sustain a cause of action for Patsy. That intent , with Dory's conscious act, caused Patsy to be struck on the back of the head and suffer a harmful and offensive touching.Dory may be liable in Battery.May Dory prevail with a defense of Consent?Patsy did agree to practice with Dory. Patsy was a combatant. Their workouts had always been strenuous. They had pushed each other hard. Dory may take the position that a punch such as Patsy got was to be expected in a sport such as theirs; that Patsy had impliedly consented by engaging in such a sport.However, they had never harmed each other, and had always stopped when it appeared someone might be injured. Striking your partner on the back of the head sounds as if it could be injurious or offensive, causing some kind of hurt beyond the scope of Patsy's consent.Dory v PatsyFalse ImprisonmentIs Patsy liable to Dory in False Imprisonment?False Imprisonment is a volition act done with the intent to confine plaintiff or a third person to a bounded area; or done with the intent to cause some other direct, forcible, and immediate harm to plaintiff or a third person, which does in fact cause plaintiff to be confined to a bounded area, and there is no reasonable means of escape. Here, after Dory fell in the closet, Patsy closed and locked Dory inside, confining her to a bounded area.May Patsy prevail with a claim of Self-Defense?For Patsy to prevail, she must show that she believed she was in danger, that her belief was reasonable, and that the force she used to defend herself was reasonable force.Here, Dory had tried to hit Trent and struck Patsy on the back of her head; Dory had also been throwing punches at Patsy. Patsy could probably show that she believed she was in danger of being hit by Dory. A reasonable person in such a situation would probably believe she was in danger. Locking Dory in a closet would seem to be a way to keep her from doing further harm without having to resort to battery, and thus may be considered a reasonable force; however, keeping Dory locked in the closet while Patsy went to the hospital may be found to have been unreasonable force. Trespass To ChattelIs Patsy liable to Dory in Trespass To Chattel?Trespass To Chattel is a volitional act done with the intent simply to perform an act which interferes with the chattel of another; or done with the intent to cause some other direct, forcible, and immediate harm to plaintiff or a third person which causes an interference with the chattel of another, and the interference causes actual injury.Here, Patsy took Dory's car to the hospital. In doing so she interfered with the chattel of another. Dory would have to show actual injury: perhaps the possessory value of the car as measured by the cost of rental, wear and tear, and loss of gasoline.May Patsy prevail with a claim of Necessity?One may interfere with the chattel of another in order to prevent a worse harm. If Patsy can show she reasonably believed that her head injury may have caused worse harm than her interference with Dory's automobile would cause Dory, and there was no other way to get to the hospital, she may prevail . Even if she does, this being a private necessity, Patsy will remain liable to Dory for any actual injury caused by Tresspass To Chattel.May Patsy prevail with a claim of Justification?One may be considered justified in doing what one did if the act of the party claiming justification is considered in light of the law, practicality, and ethics; those considerations are applied to the timing and circumstance of the event; and after using any information extracted in examining the impact of the act upon the parties, collateral parties, and the community, it appears better to have done it than not. Here, Patsy may submit that the law of necessity in an emergency, the practical matter of getting to the hospital, and a sense of compassion, as applied to the facts that Dory had hit her on the head, was in her present state no help to her, and that Patsy needed to get to a hospital, weigh in favor of her use of the car.Dory may counter that as a matter of necessity her car was probably not the only way to get to the hospital; as a practical matter, an ambulance may have been safer and possibly quicker; and Patsy could have explained the emergency to Dory and not kept Dory locked in a closet; Patsy may submit that the event would have been quicker, safer, and more humane for everyone had Patsy either let Dory help or used an ambulance. ................
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