Was there a breach of duty? How do we know(1) and who decides(2)?
1) By default, using the R.P.P. standard and 2) The Jury.
What is the Duty of care? the duty owed is to exercise the care that would be exercised by a RPP to avoid foreseeable harm.
Catherine is an avid runner. She enjoys running along a bike/walking path. One afternoon, Catherine was running with her headphones on, listening to Green Day. The segment of path she was on goes next to a park with several ball fields. As she was running, she noticed a group of people playing softball coming up ahead on her right in those fields. As she was watching them and running toward them, her head turned toward the action on her right. What risks, if any, are created by Catherine’s conduct?
There are 2 possibilities here, as there is no actual tort which occurs in this partial scenario:
1) nothing happens
2) something happens, involving an injury.
Beware of risks that in hindsight, appear to be foreseeable.
How do we assess the risks, and whether or not Catherine has breached any duty of care?
Piper v. Parsell, 930 A.2d 890 (Del. 2007).
3 parties in a pick up truck in Delaware (Hello, I’m in Delaware) on of the passengers reaches across to jack the wheel, and the vehicle swerves, but driver gets the vehicle under control.
Ordinary behavior would not have the driver being negligent, as they would not ordinarily foresee anyone to reach across and grab the wheel.
However, when it has happened before and the passenger tries to do it again, there should have been some action on the part of the driver to control his passenger. The driver having laughed about the occurrence in fact increased the risk by positively reinforcing the behavior.
This is the type of question that should ultimately be answered by a jury. In this case the court remands for the jury to evaluate whether or not there is negligence.
Indiana Consolidated Insurance v. Mathew
The question in this case is whether or not Defendant, Mathew, has a duty to act differently in the situation where his brother’s lawn mower lights on fire. Questions raised include his duty(or lack there of) to try to move the lawnmower out of the garage before starting, after it is on fire,.
The insurance company is attempting to subrogate against the brother for what they paid out in the claim, after the tractor/mower lit on fire and burned down the home owner(not the defendant’s) garage.
The court held that the garage was a place designed to start engines such as lawn mowers, cars, etc, and he was under no such duty.
The court held that he did not fill the gas tank entirely and waited 20 minutes before starting the engine, so there was no negligence there.
The court held that it was unreasonable for defendant to risk his own life to try to save mere property by pushing the burning lawn mower out of the garage.
The insurance company in this case makes an argument that essentially states that they would have preferred to make a wrongful death settlement than merely a property damage settlement as they did.
Side commentary on risk (enjoy it):
Ok, and now back to actual class discussion….
The 68 Buick Skylark!
A vehicular accident caused collateral damage involving the knocking down of a light pole, which seriously injured a few bystander pedestrians. These pedestrians, or at least the most seriously injured one, sues the company that makes/installs the pole as well as the driver of the car as co-defendants.
The plaintiff’s argued the pole company could have done more to prevent this type of accident. The company has a truck that does nothing but to replace these poles. They had an expert that stated they could have used stronger bolts for just a few dollars.
Assessing the Defendant’s Conduct
What precautions did Def. take to address risks?
What is ‘ordinarily’ done?
What were the risks to Def. of acting to protect Plaintiff?
Is Def. the better person to task with mitigating risk?
How obvious is the risk to a potential plaintiff?
What are the costs to Def. preventing the risk from happening?
This court decides to throw all of these questions to the jury to sort out as to what is or is not reasonable?
U.S. v. Carroll Towing Co.
This is pretty much a landmark torts case (maybe more so than spring guns??) about someone who’s job is to be on board a barge looking over a situation, who decides to dip out for awhile. Whilst he is out(imagine that).
Here’s the ‘hand formula’ from Judge Learned Hand (our fav. from Civ Pro 1?) to determine whether the defendant has breached his duty of care. There are 3 variables
B (burden on defendant of avoiding the harm–Cost$$)
L (Loss/harm that plaintiff suffers due to defendant’s actions-damages$$)
P(Probability that plaintiff suffers harm due to defendant’s actions-foreseeable, not in hindsight)
if B<PL then defendant is liable for the harm.
If it would cost the defendant $30,000/year to have a bargee on board during daylight hours.
If there were a breakaway, the average loss would be $25,000.00
These breakaways typically happen once/year.
Assuming the above, the B($30,000) is not greater than $25,000×1. The defendant does not have such burden in the assumed scenario.
If the average number of losses increases to twice per year (or even thrice every 2 years) the math changes, and the burden shifts to the defendant to hire the bargee to prevent these losses.
Here’s an example of the Learned Hand math, from pop culture.
Disclaimer- I pulled this youtube video while in class and did not actually check to see if it is what it purports. If it isn’t what I anticipated, and you view this before I have a chance to change it, I apologize!
Back to the scenario above for Catherine:
Catherine is an avid runner. She enjoys running along a bike/walking path. One afternoon, Catherine was running with her headphones on, listening to Green Day. The segment of path she was on goes next to a park with several ball fields. As she was running, she noticed a group of people playing softball coming up ahead on her right in those fields. As she was watching them and running toward them, her head turned toward the action on her right.
Now, assume that when Catherine is looking at the softball game, Susan comes into the path ahead of Catherine from the left(out of her line of vision) and Catherine crashes into Susan, causing injuries to Susan. Did Catherine breach any duty to Susan? How would you assess whether or not this breach occurred?
What would a reasonable and prudent person in Catherine’s situation do? Would they look out for their own safety, and pay closer attention to the softball game? Or would the risk of a bigger harm, such as a bike coming into the path ahead of them supersede that risk? Is it foreseeable that someone would enter the path ahead of her? If so, what is the likelihood that harm would be caused if there were a collision? Does Susan assume a similar risk when entering the path, and does she herself have a duty to look out for oncoming runners/bikers/etc before entering? Does the boulevard rule that applies to drivers also apply to runners/bikers?
Other factors to consider: What is the traffic on the bike/running path that day? Why was she looking at the softball game- simply watching or watching out for her own safety?
Get excited, its bully time. Tonight we’re talking about contracts, or at least one contract, that is basically held hostage for more money from one of the parties, because the delivering company must have realized how important their deliveries are.
In Austin Instrument, Inc. v. Loral Corp., 29 N.Y.2d 124 (1971) the original plaintiff, Loral, wins a $6,000,000 contract with the Navy to build and delivery of various radar sets. They bid out to subcontractors for component pieces, and Austin is the winner of one of the bids, the enter into a contract. While in the midst of this contract, Loral was awarded yet another bid for more radar sets from the Navy, and put out the same type of subcontract bids. At which point the facts become a little fuzzy, but essentially Austin holds out on delivery of their widgets in exchange for a vast increase in price. Loral, seeing that they have few other options(which is debated in the dissenting opinion of this decision) respond stating that despite the unethical behavior, they needs the parts, and will pay. They do, and Austin delivers. Immediately upon the completion of all deliveries and subsequent manufactures, Loral contacts Austin to notify them of their intent to sue and recover for the excess charges.
Their contention in this matter is that they were induced to modify their contract under economic duress, and this court finds that to be the case, with a dissenting opinion.
I suppose that Justice Bergan would have preferred that Loral hire one of the alternative suppliers to complete the job under duty to the Navy, and then sue Austin in breach and collect expectation damages after the fact. While this may have been the best option logistically, the court found that what they did was also recoverable.
Moral of the story, contracts are modifiable, if there is mutual assent from both parties to do so, in cases like this, holding the other party hostage is not acceptable. I’m wondering how this type of action, at least on the part of Austin, is similar to the concepts of Anticipatory Repudiation, which we’ll cover in later chapters…
In case you were wondering, I haven’t lost steam in doing videos. I have a cold sore on my nose, and it’s going away. Once its gone, I’ll start doing videos again. When you see me, go ahead and point & laugh while you can, it’ll be cleared up soon.
Next post we’ll discuss Contracts 2, and duress and bad faith in relation to contract modifications…..
This week we’re discussing Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987) a case that is in every civil procedure case book and every law student reads, despite no real law being determined by it.
This case stems from a products liability lawsuit in which a tire blows on a motorcycle, causing serious injuries to the driver and apparently death to the driver’s wife, who was riding on the back of the motorcycle. This story reminds me of a tee shirt that I’ve seen somewhere, probably on the boardwalk of some beach. Something to the effect of “If you’re reading this, the B** fell off?” Well Mr. Zurcher probably felt pretty bad if he was wearing such a shirt at the time of this accident. Regardless, Zurcher files a products liability lawsuit against the manufacturer of the tires, Cheng Shin, a company from Taiwan who is appropriately sued in California as they sell the tires directly in the forum state. However, Cheng Shin files a cross complaint to indemnify another company, Asahi Metal Industry, from whom they buy valves for the tires. The indemnification law suit is basically their way of saying that they feel that Asahi is at least partially responsible for the issue that caused this accident, and should at least contribute to the settlement as deemed appropriate by the court. Cheng Shin settles the underlying claim with Zurcher, but still wants a contribution from Asahi. Asahi sues the Superior court for the personal jurisdictional question, as they claim that they in fact do not have minimum contacts in California, they deal directly with Cheng Shin, and that the venue is not appropriate.
The reason that I make the comment about there being no law determined in this case, is that there is a 4-4-1 split among the justices, no majority means no law.
The first grouping says that when you enter a product into the stream of commerce, and have reason to believe where it may end up, that you are liable to litigation in that forum. The second grouping says that with the stream of commerce that there needs to be another step, another level of purposeful availment, or reaching into the forum to avail one’s self. The final justice seems only to care about the fact that they are subject to this case, despite the fact that the other justices found 2 different ways to get there.
So we start to see two different theories to discuss when breaking down similar cases, and different courts could adopt either method. HINT: When you see a similar fact pattern or hypo, break it down and discuss it both ways.
Needless to say, that game didn’t end how I hoped or thought it would have. Now its time to get back to work and get started on the week. I did manage to get a lot more reading done this weekend that I thought I would.
P.S. Vernon Davis is a beast. He just caught what I think is his second touchdown of the NFC Championship game. If the 49ers win this game I’ll be even more upset that the Ravens didn’t, having both Harbaugh brothers in the Super Bowl (am I allowed to type that?) would have been fantastic.
So I posted already about the topics for torts, and it looks like there’s only one case this week for Civil Procedure, which I’ll post about later tonight or tomorrow.
Looks like we’re going to be taking on some pretty big cases this week, including some potentially higher profile with media cases. It’s perfect timing because we’re bringing on an associate attorney in the office to take some of the work load off of Marc. Growth is good. Success is good. and those two seem to be working in tandem right now. Ok, and here’s another shameless backlink to the Baltimore Criminal Lawyer. Hopefully no one reading this needs us for anything, or for a Baltimore Auto Accident, but if you do, you know where to find us 😉
Hopefully everyone had an eventful weekend, and doesn’t have too much of a hangover tomorrow after the Ravens game.
I have embedded a youtube video to demonstrate a new fact pattern to discuss. You will see some clear nuisance committed in this hypothetical situation, and force used to stop the act. How would the intentional tort laws we have discussed in class so far apply to this scenario?
So this week we get to talk about guns! Fun stuff!
There are two cases that I want to discuss for this week’s tort class involving the use of “excessive force” to defend, and how the affirmative defenses in these intentional torts fail.
The first is a case that for some reason I’ve read a number of times in the past. This case, Katko v. Briney, 183 N.W.2d 657 (Iowa 1971) in which the Briney’s inherit a property that has a farm house on it. Over the years of them owning it, but not occupying it, there are a number of break-ins and thefts on the property. In order to stop this, the defendant’s in this case board up the windows, put up some no tresspass signs, and rig up a spring loaded trap style gun, the type you see on cartoons or in video games such as Fallout 3.
Plaintiff Katko, admittedly breaking the law, enters the property and is shot by the spring gun. He suffers injuries and sues, winning $20,000 in compensatory and $10,000 in punitive damages against Briney. In appeal this case turns on the fact that the defense of self defense is one that should only be used successfully when defending one’s person of imminent harm of physical injury, fear of death, or sexual assault. The follow up questions ask whether or not changing the facts to have the owners putting up warning signs about the gun. I think this might introduce an additional defense of “assumption of risk,” but does not instill the privilege of rigging up the trap like they did. However, had they been living in the property, and were protecting themselves the case would likely have had a different outcome.
Side note: If you want to commit such an act and rig up a method to shoot a trespasser (already knowing you’re likely to be liable for any injuries) check out this link I found to the method for rigging up an airsoft (non-lethal) spring gun apparatus! Again, I would never condone such an act, nor am I suggesting that you do something like this.
The next case is Brown v. Martinez, 361 P.2d 152 (N.M. 1961). Here we have a defendant party who is actually present at the time of the trespass, but is defending his farm and crops, not his property. Two young boys make a habit of sneaking into the defendant’s garden to steal watermelons. I presume from the limited facts that the defendant decides to stake out his property and scare off the culprits with his shotgun. As expected, the boys return and when he scares them off he fires a shot opposite of the direct that they are running, merely to scare them and with no intent to harm. Unfortunately, one of the boys is somehow shot in the leg, and subsequently sues for injuries. I think its important to quote some of the actual text from the case “The reasonableness of the force used is usually a question of fact for the jury. But as in the case of self-defense, the law has marked out certain limitations. The force used must be of a kind appropriate to the defense of the property. A push in the right direction may be proper where a slap in the face is not.”
The court here looks to the fact that there is no evidence that the defendant in any way felt personally threatened, and therefore the force used was deemed as excessive. The court upheld the fact that he would be liable for the injuries caused. I am sure that there will be some extensive discussion on this topic in class. Feel free to get that started in the comments below.
This semester at UB feels different than the first, and I am not alone. In passing discussions with more than a few classmates, it is apparent that the “feel” of class and the approach of the professors has changed somewhat since the last semester. It makes me think that the first semester may be the hardest because they make it the hardest, and now that we’ve survived, its time to push us through. I feel like the “socratic method” is taking a back burner. Maybe its because it’s cold outside, maybe it’s because one of our professors is video recording classes, so he seems to have a vested interest in getting the material covered correctly, and efficiently, without too many people giving answers that are way off base. Who knows. Regardless, the semester is now two weeks through, and everyone already seems to be looking forward to the end of it. My hope is to do a lot of the reading for next week over the weekend, but this may be difficult for a number of reasons:
Yesterday Baltimore Criminal Lawyer Marc G. Snyder (my boss) met with a representative of an organization who is working to obtain competent representation for a 16 year old child who is being charged as an adult with the murder of his allegedly abusive father* in Harford County. We may be going to visit the defendant in jail today or tomorrow, and possibly meet with family members and other supporters who are working to secure his representation. (*Not only do I not know all of the facts in the case yet, but I certainly do not want to discuss any legal strategy that may be employed, or discuss any intimate particulars of the case that aren’t already publicly posted in various media outlets.) If we do end up taking on this case, there’s likely to be a storm of media attention, as there already has been up to this point in this case. We’ve handled a lot of significant cases at the office, but nothing eliciting a heavy media response. I’m not certain that I look forward to something like this, but I also suppose it goes with the business of handling higher profile cases.
Tomorrow is Marc’s birthday, and my initial plan was to take him out tonight to celebrate in some capacity, but that may be put on hold, or delayed somewhat due to our office possibly taking on the above case.
AFC Championship game, Sunday, 3pm. At this point anyone who is reading this blog is likely a UB student, and most likely (except MargoT, our ILS TA from first semester) is a Ravens fan. The interesting thing about this game is that my wife was born and raised in New Hampshire, and thus a patriots fan. Fun times. If I have time I hope to be posting my prediction of the game on here in the next few days.
Hopefully despite all of these distractions I find the time to read, analyze and respond the work for the upcoming week on here. I’ve had fun writing this so far, and I think it’s going to help me solidify the concepts that we cover, and apparently it’s helping some classmates, too.
A shout out and thank you to the number of people who’ve found, started reading, and have approached me positively about this site so far. My intention is to continue, through all of my remaining years of law school(which is all of them) and hopefully provide a mix of both course-relevant material/commentary, real life law office experience, and maybe a little mix of my crazy life, too. Sometime next week I’ll try to provide some background on my journey to this point, what I do on a daily basis for work, and what my plans are following law school and admission to the Maryland Bar.