Law School Discussion

Torts Hypo

Torts Hypo
« on: September 11, 2005, 08:25:34 AM »
Anyone who can help with the following torts hypo, I would be in your debt.  Answering the hypo with a focus on assigning duty via the doctrine of forseeability would be greatly appreciated.

Florence is overjoyed at the news that she has gained a place at the Magic Roundabout College of Law and decides to celebrate. She buys a bottle of champagne in a liquor store which stands by a road. Once back outside the store, Florence shakes the bottle vigorously for several minutes in the manner of a racing driver. The cork flies out and hits the windshield of a car which happens to be passing at the time. The glass shatters and Dougal, the driver, is killed almost instantly as pieces of glass pierce his head. (It is later discovered at the autopsy that Dougal had a congenital weakness in his skull which made him peculiarly vulnerable if struck on the head.) Dougal’s car veers across the road and onto the sidewalk on the opposite side from Florence, where it hits Zebedee, who is killed instantly. The car carries on into a store owned by Dylan. Luckily no-one inside is injured but the store is effectively destroyed. Zebedee’s wife, Ermintrude, saw the whole incident and now suffers from post-traumatic shock.

Explain what the legal position is of each of the parties involved. Are you motivated to achieve a particular result irrespective of the law? If so, why? Is such motivation relevant and/or permissible?

Re: Torts Hypo
« Reply #1 on: September 11, 2005, 08:41:36 AM »
well...briefly, b/c i have a TON of my own work to do...this might get you started...

you could argue that the P could "forsee" that by vigorously shaking a champagne bottle, the cork would fly out like a bullet. a reasonable person would assume that shaking a champagne bottle is not the smartest thing to do. on the other hand, while the P may have forseen that the champagne cork may have flewn off, it was NOT forseeable that two people would have been killed by a champagne cork. the reasonable person would not forsee a cork killing two people.

like i said..this is just a start. a real exam would require much more detail and more arguments. good luck!!

Re: Torts Hypo
« Reply #2 on: September 13, 2005, 12:24:40 PM »
Negligence, negligence, negligence.

eray01

Re: Torts Hypo
« Reply #3 on: September 17, 2005, 11:40:08 AM »
RonnieDeutch. That's a great screenname. I too am making fun of a cheap TV attorney. "I've settled tax claims for twenty dollars, that's right just twenty dollars!"

Re: Torts Hypo
« Reply #4 on: September 18, 2005, 08:56:46 AM »
hey hammer, thanks. i did spell "roni" wrong. i should change it! im going to settle bankrupcies for $19.95!!

eray01

Re: Torts Hypo
« Reply #5 on: September 18, 2005, 04:45:42 PM »
You should get a picture of her as your avatar. You spelled it right. I spelled it wrong.

Re: Torts Hypo
« Reply #6 on: September 26, 2005, 09:49:20 AM »
well...briefly, b/c i have a TON of my own work to do...this might get you started...

you could argue that the P could "forsee" that by vigorously shaking a champagne bottle, the cork would fly out like a bullet. a reasonable person would assume that shaking a champagne bottle is not the smartest thing to do. on the other hand, while the P may have forseen that the champagne cork may have flewn off, it was NOT forseeable that two people would have been killed by a champagne cork. the reasonable person would not forsee a cork killing two people.

like i said..this is just a start. a real exam would require much more detail and more arguments. good luck!!

Exactly, your using the reasonable person theory is correct.  Just like the person on the top post said, "negligence...negligence..negl igence." 

eray01

Re: Torts Hypo
« Reply #7 on: September 26, 2005, 10:08:30 PM »
I wanted to say negligence, but that seemed to easy.  ;)

Re: Torts Hypo
« Reply #8 on: October 05, 2005, 06:45:08 PM »
Anyone who can help with the following torts hypo, I would be in your debt.  Answering the hypo with a focus on assigning duty via the doctrine of forseeability would be greatly appreciated.

Florence is overjoyed at the news that she has gained a place at the Magic Roundabout College of Law and decides to celebrate. She buys a bottle of champagne in a liquor store which stands by a road. Once back outside the store, Florence shakes the bottle vigorously for several minutes in the manner of a racing driver. The cork flies out and hits the windshield of a car which happens to be passing at the time. The glass shatters and Dougal, the driver, is killed almost instantly as pieces of glass pierce his head. (It is later discovered at the autopsy that Dougal had a congenital weakness in his skull which made him peculiarly vulnerable if struck on the head.) Dougal’s car veers across the road and onto the sidewalk on the opposite side from Florence, where it hits Zebedee, who is killed instantly. The car carries on into a store owned by Dylan. Luckily no-one inside is injured but the store is effectively destroyed. Zebedee’s wife, Ermintrude, saw the whole incident and now suffers from post-traumatic shock.

Explain what the legal position is of each of the parties involved. Are you motivated to achieve a particular result irrespective of the law? If so, why? Is such motivation relevant and/or permissible?


There's a lot here.  First of all, it seems that Florence is subjectively unaware of the possibility that this could create any sort of risk.  At the very least, we're not told she was aware of disregarding a risk, but if she knew this was risky behavior and proceeded anyway, she would be held at a recklessness culpability standard.  Most likely, negligence is proper, however.

However, she certainly could not have foreseen the cork killing somebody.  Even the reasonable person would not have foreseen this.  So the question is, when does a chain of action (triggered by negligence on the part of the defendant) become too attenuated to hold the defendant culpable?

Additionally, the driver of the car had a congenital weakness in his skull.  The traditional rule is that you take the victim as he stands - with all his inherant weaknesses and disabilities.  How does this factor into the equation?  If it is foreseeable that her negligent action could have struck a person in the head (I would argue it is), and that did in fact happen, and as a result the extraordinarily weak victim DIES...she would be liable.  However, the causal chain leading to the death of Zebedee is COMPLETELY unforeseeable, as is the causal chain leading to the destruction of the store.  She should NOT be held liable for these.

Lastly, you've got Ermintrude, who physically watched her husband get hit by a car.  This is obviously cause of action for emotional distress.  You'd go through the requirements on emotional distress, showing how she satisfies them (as inevitably she does).  I'm not sure if there's enough of a causal chain for her to recover from Florence, or if that'd even be a factor here.

DISCLAIMER:  While I extensively prepped for law school, I'm only in my first semester, and I don't have Torts yet, so take this at your own risk.  Hope it helps!

Re: Torts Hypo
« Reply #9 on: October 05, 2005, 08:42:41 PM »
This hypo seems to be lacking something.  Where did it come from?

I mean either Florence is liable or she isn't.  I'd have to say that she isn't because it seems pretty unforseeable that a champagne cork would fly through a windshield and break glass.  Cork doesn't usually pierce glass.  This lack of liability for the first event precludes liability for all. 

Maybe you could say that she shouldn't have been shaking it vigorously by the road where it could presumably fly out and cause damage.  But again, it seems like a freak accident more than anything.

As far as Dougal goes it is also unlikely that he will be held negligent as against Zebedee.  Physical illnesses and infirmities that cause sudden unconsciousness are usually taken as an affirmative defense to liability unless they are forseeable.  So you could argue that Dougal might foresee an accident causing head trauma which might also render him unconscious.  This seems pretty far fetched though, so Dougal may also get off without any liability.

If Zemedee can't recover from Dougal, I don't see how Ermintrude will be able to recover from Dougal either.  She might just be S.O.L.

I just don't see any case for forseeability for either Florence or Dougal.  I think that this hypo might just be a case where the victims have to bear the costs.