Funny Torts Hypo

[Dean Prosser]

"Bob is driving his car down the street when he sees Sally, his ex wife, driving in the opposite direction.  Bob, who is in bitter divorce proceedings with her, swerves his car towards her at high speed and at the last second swerves back into his own lane.  Sally in an attempt to avert the collision, pulls her car sharply to the right, loses control and enters Alex's front yard smashing into a tree.  The fire department has to cut up the tree in order to free Sally from the car.  She suffers a nervous breakdown and other physical injuries."

Discuss all parties' liability.


What (main and small) issues would you write about???

[jeffjoe]

Bob's assault is first on my list.

[Boxergirl]

Why is it that all of the hypos that are posted as "funny" are not funny.  There ARE funny hypos out there... These are not "funny". 

[Dicta]

Maybe you just don't have a sense of humor   


quote author=boxergirl link=topic=1054.msg6222#msg6222 date=1100731745]
Why is it that all of the hypos that are posted as "funny" are not funny.  There ARE funny hypos out there... These are not "funny". 

[IHEARTLS]

"Bob is driving his car down the street when he sees Sally, his ex wife, driving in the opposite direction.  Bob, who is in bitter divorce proceedings with her, swerves his car towards her at high speed and at the last second swerves back into his own lane.  Sally in an attempt to avert the collision, pulls her car sharply to the right, loses control and enters Alex's front yard smashing into a tree.  The fire department has to cut up the tree in order to free Sally from the car.  She suffers a nervous breakdown and other physical injuries."

Discuss all parties' liability.


What (main and small) issues would you write about???

Sally v. Bob (Negligence. Bob had duty.  Maybe even special relationship??? Breached that duty by swerving.  Causation in fact caused by Bob.  But for Bob, Sally would not have been harmed.  Proximate b/c Sally's harm was w/in the risk of Bob driving like a maniac. No defenses, Sally did not contribute to the risk/harm, did not assume the risk. We haven't reached damages yet.)

Alex v. Sally (Negligence.  But for Sally, the harm to Alex's yard would not have occured, but Sally was a free intervening actor to Bob's action, so Sally was not the proximate cause.  Not too sure.)

Alex v. Bob (But for Bob Alex's property and tree would not have been messed up.  Bob was the direct cause, Sally just a FVIA.)

Alex v. Fire Dept

Give me a break...I did this quick as hell.  Someone tell me if I made any sense at all.

[Dean Prosser]

How about:

Assault, and Battery (the offensive contact) through Transferred Intent
Trespass to Land by Bob, because he put Sally into motion.  Sally didn't intentionall trespass (This is a Big issue, because you can argue that Sally intentionally went on to Alex's land to avoid Bob and this would make her liable for Trespass to Land)
IIED - that's an issue, did Bob intend to cause SED?  Perhaps.
Trespass to Land by Fire Department - they have a defense, a Public Necessity to enter.
Conversion?  You can't convert a tree, it's considered Real Property, but an issue to discuss.

Damages?  Bob would have to pay Sally for for ED damages (if IED was argued) and Car damages from Assault/Battery - he would also pay Alex for tree and any damage.  Perhaps Sally would pay nominal damages for a trespass to land.  Fire Department having a public necessity have a complete privilege and pay no damages.

[swifty]

I'd get him criminally first for assault with a`deadly weapon.  Once convicted there, just about anything you mention can apply in civil court, with punitive damages to boot.

I hope the jail time does not interfere with his future earnings, or the fine reduces what he will ever pay. 

[IHEARTLS]

Hmmm...we did not cover assault, only battery.  We did not cover emotional distress either.

I see your points Dean Prosser.  My eyes are now open.  Do you think it would be helpful to make a checklist and just run down the checklist during the exam...checking to see if anything applies?

[Dean Prosser]

Hmmm...we did not cover assault, only battery.  We did not cover emotional distress either.

I see your points Dean Prosser.  My eyes are now open.  Do you think it would be helpful to make a checklist and just run down the checklist during the exam...checking to see if anything applies?

I think you should make an outline of all the possible issues and causes of action, and also the defenses to them.  Then rank them in a hierarchy to discuss them.  So in this hypo, Assault would be #1, then Battery, then Trespass, then IIED, etc. 

Even though I have written many Torts Casebooks, Law Review articles, testified before congress, and am deceased (testate, of course), I have never taken a Torts exam, but assuming the nature of this area of law, the more causes of action you can “make,” the better - even if you find them so ridiculous as I do!

[Wild Jack Maverick]

In many states, Bob could not be convicted of battery, since he did not touch Sally (or her vehicle), but could be charged with 1st degree assault, 2nd degree assault and/or aggravated assault, since, by swerving toward her car, he 'threatened' her with harm, and was in the proximity wherewith he could have ability to carry it through, and Sally felt enough apprehension to cause her to swerve, causing her injuries.

According to Restatement of Elements, he could not be charged with battery because he did not touch her (or her vehicle), although he 'possibly' intended to. Depending upon the state, Bob could be charged with attempted battery.

Attempted vehicular homicide is another possible charge, and if Bob has prior convictions of driving under the influence or of other vehicular assaults, he might be charged with attempted aggravated vehicular homicide. Bob could also be charged with careless or reckless driving.

Alex, as the owner of the tree, could sue Sally for damages, who then could file a cross-claim against Bob; or Alex could file suit against BOTH Sally and Bob.

Sally could also file suit against Bob for negligent and intentional damages--damages to her vehicle, personal injuries and medical costs, emotional distress, punitive damages, costs and attorney fees. (Attorney fees aren't always granted, but she could ask for them.)