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Author Topic: Opinions on one of my torts exam question  (Read 971 times)

zemog

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Opinions on one of my torts exam question
« on: December 15, 2004, 03:35:39 PM »
It went something like this and it was on Negligence, per sae, and res ipsa loquitor.  This question pertained more to negligence and per sae.

Fact pattern:  A hotel was within a certain distance from a private school, and there was a statute that said it would be illegal to serve alcohol within that distance because of the school kids.  They went ahead and served drinks to a hotel guest, who visibly drunk, went to valet and drove off.  He then hit a parked car, someone was in it, which hit a light post, when caused a blackout, which then scared a child in their home which attended that private school, she ran out of the house and got hit by another driver, who was not drunk. 

My question involves the duty and breach, not to the drunk driver, but to the lady in the parked car in regards to the hotel and to the school child in the house in regards to the hotel.  If you say there is duty and breach established for the child against the hotel, would you argue Per sae?  I know that you can argue if proximate cause or maybe even actual cause is or is not satisified, but I needed to first get past duty and breach. 

Let's also assume that we already argued that there was duty and breach and negligence was established for the drunk driver against the hotel.

Thanks for any input.


jeffjoe

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Re: Opinions on one of my torts exam question
« Reply #1 on: December 15, 2004, 04:05:04 PM »
I think the child is out of the equation, because their injury was not foreseeable.

It went something like this and it was on Negligence, per se, and res ipsa loquitor.  This question pertained more to negligence and per se.

Fact pattern:  A hotel was within a certain distance from a private school, and there was a statute that said it would be illegal to serve alcohol within that distance because of the school kids.  They went ahead and served drinks to a hotel guest, who visibly drunk, went to valet and drove off.  He then hit a parked car, someone was in it, which hit a light post, when caused a blackout, which then scared a child in their home which attended that private school, she ran out of the house and got hit by another driver, who was not drunk. 

My question involves the duty and breach, not to the drunk driver, but to the lady in the parked car in regards to the hotel and to the school child in the house in regards to the hotel.  If you say there is duty and breach established for the child against the hotel, would you argue Per sae?  I know that you can argue if proximate cause or maybe even actual cause is or is not satisified, but I needed to first get past duty and breach. 

Let's also assume that we already argued that there was duty and breach and negligence was established for the drunk driver against the hotel.

Thanks for any input.


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squarre

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Re: Opinions on one of my torts exam question
« Reply #2 on: December 15, 2004, 04:07:28 PM »
Duty depends on which view is taken, Cardozo or Andrews from Palsgraf.  Cardozo says that a duty is owed only to foreseeable plaintiffs adn it is definitely arguable that the lady in the parked car and the child in the house were unforeseeable.  Andrews says that we owe a duty to society as a whole and therefore owe a duty to everyone so in a jurisdiction that follows his opinion everyone is owed a duty.

To establish breach it must be shown that reasonable care was not used to someone to whom a duty was owed.  

If duty and breach were established you could attempt to argue negligence per se. Obviously you would have to establish:

1. That the child or woman were a member of the class the legislature intended to protect (a lot easier for the child than the woman),
2.that the harm is the type of harm the legislature intended to protect against (arguably being struck by a car, or injured as a result of a drunk driver would work, but in opposition the hotel would contend it was being struck by a drunk driver),
3. that it is otherwise appropriate

After this is depends on how the jurisdiction applies neglignece per se, and causation in fact and proximate cause muist be established.

 

Burning Sands

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Re: Opinions on one of my torts exam question
« Reply #3 on: December 15, 2004, 05:47:43 PM »
It went something like this and it was on Negligence, per sae, and res ipsa loquitor.  This question pertained more to negligence and per sae.

Fact pattern:  A hotel was within a certain distance from a private school, and there was a statute that said it would be illegal to serve alcohol within that distance because of the school kids.  They went ahead and served drinks to a hotel guest, who visibly drunk, went to valet and drove off.  He then hit a parked car, someone was in it, which hit a light post, when caused a blackout, which then scared a child in their home which attended that private school, she ran out of the house and got hit by another driver, who was not drunk. 

My question involves the duty and breach, not to the drunk driver, but to the lady in the parked car in regards to the hotel and to the school child in the house in regards to the hotel.  If you say there is duty and breach established for the child against the hotel, would you argue Per sae?  I know that you can argue if proximate cause or maybe even actual cause is or is not satisified, but I needed to first get past duty and breach. 

Let's also assume that we already argued that there was duty and breach and negligence was established for the drunk driver against the hotel.

Thanks for any input.




Disclaimer - I'm still in crim law mode since my final is tomorrow, but I'll take a crack at it.

Whenever talking about Negligence per se, you're talking about if somebody acted negligently with respect to the intentions of a statute.  In this case, the statute was developed arguably to prevent kids from being exposed to the dangers inherent from alcoholic consumption.

In a comparitive negligence jurisdiction, the cat who ends up hitting the kid in the street will argue that the child was contributorily negligent for running into the street, however they will lose b/c harm from automobiles is almost always held to be a foreseeable consequence when somebody is injured.  The real issue here is whether the initial tort, the drunk guy who hit the first car, was the proximate cause of the child's injury.  Probably not foreseeable, even though he was negligent per se.

I agree with Square's analysis in determining if the original tortfeasor was negligent per se.
Burning Sands

zemog

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Re: Opinions on one of my torts exam question
« Reply #4 on: December 15, 2004, 07:28:02 PM »
So let me put it another way just to make sure I understand what you guys are saying.  If the child from the house that ran out because of the blackout, sues the hotel for negligence, you are saying...

1)that duty and breach are satisified if using the Palgraff split for the Andrews view. 
2)Per sae is not qualified because even though she falls under that statute, her getting hit by the random car is not what that statute was protecting.
3)the child would lose the law suit because it's unforseable.

Is this correct?

squarre

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Re: Opinions on one of my torts exam question
« Reply #5 on: December 16, 2004, 09:27:24 AM »
On each point:
1. Most likely using thi view duty and breach would be satisfied.
2. It could be argued both ways on this point. It would depend on what the jurisdiction in question has done in the past or what they feel like should be done in the situation.  I personally think it would be difficult to establish but that doesn't mean it could not be established.
3. Well...under Cardozo's view from Palsgraf the child would probably be an unforeseeable plaintiff so there would never been any duty.  Also if you get into a proximate cause analysis it would seem difficult to find proximate cause, but this doesn't mean it is impossible.  We haven't covered anything to do with contributory negligence yet so I have no clue on that point.

So let me put it another way just to make sure I understand what you guys are saying.  If the child from the house that ran out because of the blackout, sues the hotel for negligence, you are saying...

1)that duty and breach are satisified if using the Palgraff split for the Andrews view. 
2)Per sae is not qualified because even though she falls under that statute, her getting hit by the random car is not what that statute was protecting.
3)the child would lose the law suit because it's unforseable.

Is this correct?

baseballjones

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Re: Opinions on one of my torts exam question
« Reply #6 on: December 17, 2004, 01:37:54 PM »
first let me be anal and say its "negligence per se"  there is no a in se.

neg per se will work for the parked car person.   for the child it would have worked if there had not been an intermediate step of the blackout.  lets say the child heard the crash and got scared then ran into the street as a reaction to her fear.  Then the type of harm that the statute was meant to protect (harm associated with crashing a car while drinving drunk and the ramifications of such crashes) would be present here.  Here, however, the car crashes and causes a blackout (unforeseeable result) which causes fright to a child inside a house (unforeseeable plaintiff, i think Cardozo would say the child is out of the zone of danger).  I don't think a crt would find that the child is of the class the statute was meant to protect (the child was not outside or involved in the accident scene or it appears to me even close to the accident).

remember even if neg per se is applied there are those excuses (can't remeber them now had an info dump after my final).