Exam Name: Torts_l_B_(LOGAN)_1 ?

FL

Please type the answer to Question 1 below.

Short Essay: Negligence COA

a) Negligence COA came about in the late 1800's to early 1900's.

b) It came about as a response the the industrial revolution. During this time factories and machinery began to

replace single craftsmen, making production quicker and more efficient, but posing a substantial risk to those

working the in factories. Many people were not yet used to the fast pace of the work environment and were

subsequently injured or killed. The idea of machinery was new and exciting for the growth of the economy but it

quickly became apparent that these machines were more dangerous than the workers or supervisors knew.

c) During this time it made sense to implement a negligence COA for a couple reasons. First, it served as an

incentive for better supervision and training on the part of the owners and managers of the factories. Before this,

the only available remedy was for intentional harm, and since these accidents were not intentional, the owners did

have to worry about losing money in lawsuits so they didn't waste their time maintaining the factories. The

prospect of economic benefits was far more important to them than worry about poor women getting their hair

caught in a weaving loom. The second reason for using negligence as a remedy was that workers were left

without remedy if the accident wasn't intentional. If an accident occurred at work and no one intentionally

caused it, they had no way to recover. Negligence provided them with that remedy.

d) A jury plays an important role in determining liability in cases with negligence because of the standards that Os

are held to. In all cases involving negligence there is a standard of care,.that which is expected from a

reasonable person under the circumstances. Although there are exceptions and modifications, in general, it is

better to leave the decision to a group of people who are presumably reasonable, than to leave it to just one

person, a judge, who could potentially be biased in some way or another. It is far more fair and accurate to use

the opinion of many people when deciding whether a person was reasonable than to compare it just to what one

other person would have done under the circumstance.

Long Essay:

In this case I would inform the father that there are various separate claims that could potentially be made but that

due to exceptions or missing pieces, many of them may fall short.

1 of 5
 Exam Name: Torts_l_B_(LOGAN)_17FL
I�

JIii v. Diplo

Because the house is the property of Diplo, he owes a duty to Jill to remedy the danger. This duty was triggered

by Jill entering his property. If JIii were not a child, Diplo would owe her only the duty of not creating a willful,

wanton or malicious danger because she would be just a trespasser, but becasue JIii is only 11, Diplo owes her a

duty under the child trespassers doctrine, and that duty was breached. In this case Jill, being only 11 could not

appreciate the danger of wandering through an open door in a house. It is reasonable to assume that she does

not know about homeless drug users. Diplo lived just down the street and knew that homeless people often did

this to the abandoned house and therefore should .ve-kflew of the danger that was present. When using the

child trespasser doctrine, the danger mus be of artificial creatio , which in this case would be considered to be

the house not being properly boarded up. Because Diplo lived just down the road and knew of the activity in the

house and had remedied it before, there are various untaken safer alternatives that he could have used in which

the benefit would have outweighed the cost. For example he could have put up warning signs, told the

community in a mailed notice, boarded the house up again or put a fence around it. Though it may not have

passed the cost benefit test here, he could have also torn the whole place down.

Push Back:

Although there are not substantial facts to make this determination, Diplo may also argue that he was not

negligent because he did not know that the boards had been taken down. This could be successful if he could

prove that they had been ripped down within moments of Jill entering the house. However, it is unlikely that this

argument would be accepted because even if he truly did not know, the frequency with which the boards were

torn down is ample evidence that he should known.

Although the house is clearly man made, I would inform Jill's father while he had a good case, it is possible that

Diplo will argue that the house is not as clear an artificial creation as it a pool or a grill in the back yard for

example.

Jill v. Diplo

Because there is a statute regarding a property owner's duty to keep the doors and windows of any vacant house

securely closed, it is possible, but unlikely, that a negligence claim could be brought against Diplo under

2 of 5
Exam Name: Torts_l_B_(LOGAN)_ 17FL

Negligence Per Se. Under this theory, Diplo owed a duty o keep his abandoned ouse properly boarded up.

This duty was triggered by Jill entering the house and ge ting hurt. However, when discussing negligence per se,

---
various requirements must be met. There must be a viol lion of':rsafety s!Wefe that is unexUd and that is

meant for the type and class of person that was aff�ted In this situation there are various problems with this

rf::8'�0:;,T
theory. There was clearly a violation of a statute which was not excused by any of the 5 exceptions (emergency

t j;X�' j gce tec

:::·�; :�:::•pad y, ad � �
h e
a
o e llh

Push Back: However, it is not abundantly clear whether or not that statute was a sa]y statute. It only says "to

prevent unauthorized entry," and fails to mention anything about protecting a specific class of person harmed, or

type of harm. Therefore, it is unlikely that a court would accept the theory of NPS.

CAfv'--� , ·\/'L
Jill v. EMT

Under the theory of Respondent Superior, the owner of the ambulance company would be liable for negligence on

the part of their employee, the EMT. For R.S. there must be an employer employee relationship and there must

have been negligence which occurred during the scope of employment. In this case, the EMT owed a duty to Jill

to exercise reasonable care under the circumstances and breached that duty by making a medical decision which

aggravated her condition. The company that the EMT works for would be responsible for this actions. Because

an EMT is not a doctor this would not be a malpractice case, which means that expert testimony would not be

absolutely necessary but would almost certainly help the P. In this case it would be extremely helpful to find

another EMT who could attest to the fact that what the inexperienced EMT did in that situation was not custom

and that they would have done something differently.

Pushback: The EMT may try to deny his negligence by stating that it was an emergency situation, because it was

sudden, he should not have been held to the reasonable standard. This however, would be a weak counter

argument given that emergencies are inherent to his job and he should therefore be trained to act reasonably. In

addition, it was neither unexpected for unforeseeable.

Jill v. AMBULANCE Co.

3 of5
Exam Name: Torts_l_B_(LOGAN)_17FL

Alternatively, Jill's father could sue the ambulance company directly, not under the theory of R.S. but for their own

negligence. An ambulance co. owes a duty to their patients to exercise reasonable care in the hiring and training

of their employees. This duty was triggered by them reporting to the scene of the accident and taking charge of

JIii. The Ambulance breached that duty by allowing a inexperienced employee work, which ultimately contributed

to her death. The company could have assigned a different employee to ride in the ambulance at no cost or

inconvenience to them.

Jill V. Jack

----
Because Jack is Jill's sister, their father most likely wouldn't want to sue, but if he perhaps favored Jill and thought

Jack to be a bumbling idiot, they could try to sue him for negligently hesitating before going to get help but it would

be a weak claim. Because Jack did not create the risk, he would normally not have a duty, however because of

his special relationship with his sister he did have a duty to act which was triggered by him seeing her in peril.

Push back: However, because it was an unforeseen, sudden and unexpected emergency, he is not held to the

reasonable standard of care because a person's conduct can not be considered negligent under these

circumstances. In addition, he would be held to the child standard which is blended and would incorporate his

age, intelligence and experience which would probably lead to him not being liable. In addition he took the safest

alternative a reasonable child in the circumstances knows, which is to tell an adult.

Jill v. Neighbors

Because the neighbors in this case knew that drug dealers were using the vacant house but didn't say anything,

Jill may possibly have a claim against them also. Although under 37 of the restatements there is no duty if a party

did not create a risk, it is possible to argue that because the list of special relationships is not exclusive, a

neighbor with other neighbors could be considered as a special relationship as the P did in Farwell v. Keeton with

friends on a joint venture. This would therefore remove the neighbors from being simply a bystander and impose

a duty upon them to warn Diplo about the drug users in the house. They breached that duty which ultimately

caused Jill's death. The untaken safer alternative for the he neighbors would have been to simply tell Diplo of the

activity in the house. This would have been of almost no cost ti them and yet they did not.

4 of5
Exam Name: Torts_l_B_(LOGAN)_ 17FL

Jack v. Diplo

As a result of seeing his sister covered in blood Jack was petrified and went into shock. This could potentially

create a claim for NIED to a third party because Jack and Jill have the special relationship of being brother and

sister. However, Jack did not contemporaneously perceive his sister getting attacked and also did not show signs

of distress after his initial shock so it is unlikely that he would be able to recover.

Question #1 Final Word Count= 1744

END OF EXAM

5 of 5