I skipped every question on the multi-state bar exam that smelt like it had anything to do with the the RAP....however, I might drop a little bit of Shelly's case on you. 
Help With Law school exam-Eddie Haskell
- Thread starter TIME TO MAKE $$$
- Start date
Re: Help With Law school exam-Eddie Haskell
TIME TO MAKE $$$ said:Here is my Torts take home exam Ed, was wondering if you could give me a few "pointers" so that I may get a head start since I am an old stupid "wannabe" lawyer that I inspire to become......
I hope you have some time on your hands... Thanks
The stupid, and confused,
TIME
TORTS I
Professor Young
Final Examination
Fall 2002
FACT PATTERN
Elizabeth Kerans is 52 years old. She and her husband are relatively well to do. Elizabeth has not worked for wages since they were married in 1961, although she has worked as a volunteer for a variety of social and charitable causes. She decided to get a job after her husband made a snide comment about her not being able to handle a real job.
Is it just me or did Bertram rob the craddle. Elizabeth is 52 (born in 1950ish) married in 1961 (11years old). :shrug: Thats not even acceptable up here in Maine
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Geez, I thought the number of replies by Eddie were going to help me out....WTF? From a lawyer to a doorman?
A man of many trades I see.... Hmmmm.....
ANSWER -- ESSAY, TORTS EXAM FALL 2002
1. Can we establish a negligence claim against Porter Paint?
-To establish a negligence claim, we must show duty, breach, causation and actual harm.
Duty/Breach
A. The general negligence analysis
-Every actor has a duty to be as careful as an ordinary reasonable person in the same or similar circumstances. In evaluating the duty that Porter Paint owed to Elizabeth, we must consider what duties employers always have toward their employees, or what ordinary reasonable employers do to prevent the type of harm that occurred in this case. To win, Elizabeth must show that Porter did something that a reasonable employer would not have done or failed to do something that a reasonable employer would have done.
-In determining what a reasonable employer would have done, factors to consider are the magnitude of the anticipated harm, the probability that it will happen, and the cost of avoiding the harm. These factors may be considered in a casual way, or you can apply the Hand test. If the cost of avoiding the harm is less than the cost of the harm discounted by the probability of its occurrence, then it is unreasonable (negligent) to fail to avoid the harm. B<PL.
-One implication of either version of the test is that the harm has to be foreseeable before the employer has a duty to prevent it. There is no duty to guard against extraordinary occurrences. Blyth. However, the harm need not be likely. The question is whether there is a possibility of harm of such moment that a reasonable person would act to avoid it. Gulf v. Williams.
-Here, the general duty of an employer is to provide its employees with a reasonably safe place to work. That duty exists at common law, and has also been imposed by statute in most places.
-On the facts in this case, plaintiff should argue that Porter had a duty to protect her from any hazard in the workplace that could result in physical or emotional harm. The first thing she has to show is that it was foreseeable that Chester would engage in misconduct likely to result in such harm to Elizabeth or another employee. Elizabeth will argue that in light of Porter's awareness of Chester's past misconduct, it was foreseeable that Chester would continue to harass other employees. Therefore, the question is whether Porter had a duty to stop him. We will argue that the magnitude of the harm to be expected (shock, humiliation, fear, etc. with resulting physical and mental symptoms) is significant, the probability of its occurrence in the absence of any preventive action by Porter was quite high, and the cost of avoidance was low. All Porter had to do was discipline Chester, supervise him, replace him, or always schedule at least two employees to work in the store with him. A reasonable employer would have taken one or more of those precautions. Porter owed at least that much to an employee that they knowingly placed in a position to be victimized by this known pervert.
-One factor that makes this case a little more complicated than an ordinary negligence case is the fact that Elizabeth was injured by the intentional conduct of Chester rather than, for example, some unsafe condition on the premises. Generally, there is no duty to protect one person from the torts or crimes of another. But a defendant can have a duty based on its relationship to either the wrongdoer or the victim. Here both the wrongdoer and the victim are employees, so we can argue that Porter had a special duty to restrain Chester as well as a special duty to protect Elizabeth.
B. Other ways to establish negligence
-We may want to consider whether the standard of care to be expected of Porter might be dictated by statute, or by law, or by industry custom rather than determined solely by an after the fact application of the general negligence analysis.
1) Negligence per se
-Duty and breach by a defendant can sometimes be established (or at least an inference of negligence can be raised) by proving the violation of a statute.
-Is there a statute that says that employers must prevent one employee from harassing another? If so, can we use it to establish that Porter had a duty to prevent what happened here?
-Title VII does create a statutory cause of action against an employer who maintains a hostile work environment that is so offensive that an employee's ability to work is impaired. We could argue that Elizabeth is a member of the class to be protected (employees), that Porter is a member of the class to be regulated (employers), and that the harm is the kind of harm that the statute was designed to prevent (sexual harassment). However, it is unlikely that the statute was intended as a safety measure, so negligence per se probably will not work. On the other hand, it does circumvent the statute of limitations problem, and it would let the jury know that Porter is a bad guy doing illegal things, so we should probably add it to our negligence case to see if the judge will let us get away with it.
2) Rule of law
-We could argue that the duty of an employer to protect employees from sexual harassment has been established, as a matter of law, by the passage of Title VII. This is different from trying to base a cause of action on the statute (can't because we blew the statute of limitations) or even using the statute to establish negligence per se. Instead, we could simply argue that the ordinary reasonable employer obeys the law, so at least in that sense the statute has the effect of specifying the standard of care as a matter of law. This rarely works, but has some jury appeal and is worth a shot.
-Sometimes, instead of having the trier of fact determine the reasonableness of a defendant's conduct on a case by case basis, courts are willing to create a rule of law that specifies the duty of a party in a particular situation. Helling. Our argument would be that here, as in Helling, the probable harm was so great and the cost of avoidance so trivial that the defendant should be held negligent as a matter of law. Unfortunately, rules of law are disfavored, and it is unlikely that plaintiff would be able to convince the court to adopt one in this case. That is especially true since the cost-benefit ratio is not nearly so high here. (See defendant's analysis of cost of avoidance and probable harm in part 2 below) .
3) Industry custom
-Evidence of what other employers do to avoid this problem, while not conclusive, is both admissible and persuasive. Trimarco. Here, it is very likely that other companies, one might say the ordinary reasonable company, takes far more precautions than Porter did. It is also likely, especially in light of Title VII, that Porter's condonation of reported offenses, trivialization of employee complaints and general jerklike conduct are substantial deviations from common industry custom.
Preliminary conclusion on duty/breach
-We certainly have enough evidence on duty and breach to get to a jury. Porter did many things that a reasonable company would not have done and failed to do other things that a reasonable company would have done. Porter did not screen its supervisors to make sure that they were not inclined to attack their subordinates. Porter did not train its employees to avoid inappropriate behavior, nor did it punish employees who did engage in such conduct. Porter responded inappropriately to complaints, condoning past misconduct and perhaps even encouraging such conduct in the future. It certainly did not give Chester any reason to stop what he was doing. Porter's conduct was contrary to both law and industry practice, and it was at least arguably "unreasonable".
Causation
Assuming that plaintiff can establish duty and breach, the next step is to establish that the defendant's breach of duty caused plaintiff's harm. Plaintiff must establish that defendant's negligence was the cause in fact (but-for cause) of the harm, that the defendant's negligence was the proximate cause of the harm, and that there was no superseding cause that would operate to cut off defendant's liability.
A. Cause in fact
-The first thing that Elizabeth must establish is that if Porter had acted reasonably she would not have been injured. She must, at a minimum, establish that her injury occurred because of Porter's negligence and would not have happened without it.
-On the facts of this case, that should not be difficult. Porter's negligence need not be the sole cause of the harm, just a "substantial factor". Perkins. The fact that she would not have been injured without Chester's wrongful conduct does not save Porter. Where separate acts of negligence combine to produce a single injury, each tortfeasor is liable for the entire result even though his act alone might not have caused it. Hill v. Edmonds. The issue is whether the negligence of Porter increased the chance of harm to plaintiff and was of a character naturally leading to its occurrence. Reynolds. The negligent conduct in this case, failure to screen, supervise, train or discipline Chester, was certainly a substantial factor in the harm suffered by Elizabeth, increased the chances that it would happen, and naturally led to just the events that occurred here. If Porter had acted responsibly, Elizabeth would not have been assaulted. Therefore, we have but-for causation.
A man of many trades I see.... Hmmmm.....
ANSWER -- ESSAY, TORTS EXAM FALL 2002
1. Can we establish a negligence claim against Porter Paint?
-To establish a negligence claim, we must show duty, breach, causation and actual harm.
Duty/Breach
A. The general negligence analysis
-Every actor has a duty to be as careful as an ordinary reasonable person in the same or similar circumstances. In evaluating the duty that Porter Paint owed to Elizabeth, we must consider what duties employers always have toward their employees, or what ordinary reasonable employers do to prevent the type of harm that occurred in this case. To win, Elizabeth must show that Porter did something that a reasonable employer would not have done or failed to do something that a reasonable employer would have done.
-In determining what a reasonable employer would have done, factors to consider are the magnitude of the anticipated harm, the probability that it will happen, and the cost of avoiding the harm. These factors may be considered in a casual way, or you can apply the Hand test. If the cost of avoiding the harm is less than the cost of the harm discounted by the probability of its occurrence, then it is unreasonable (negligent) to fail to avoid the harm. B<PL.
-One implication of either version of the test is that the harm has to be foreseeable before the employer has a duty to prevent it. There is no duty to guard against extraordinary occurrences. Blyth. However, the harm need not be likely. The question is whether there is a possibility of harm of such moment that a reasonable person would act to avoid it. Gulf v. Williams.
-Here, the general duty of an employer is to provide its employees with a reasonably safe place to work. That duty exists at common law, and has also been imposed by statute in most places.
-On the facts in this case, plaintiff should argue that Porter had a duty to protect her from any hazard in the workplace that could result in physical or emotional harm. The first thing she has to show is that it was foreseeable that Chester would engage in misconduct likely to result in such harm to Elizabeth or another employee. Elizabeth will argue that in light of Porter's awareness of Chester's past misconduct, it was foreseeable that Chester would continue to harass other employees. Therefore, the question is whether Porter had a duty to stop him. We will argue that the magnitude of the harm to be expected (shock, humiliation, fear, etc. with resulting physical and mental symptoms) is significant, the probability of its occurrence in the absence of any preventive action by Porter was quite high, and the cost of avoidance was low. All Porter had to do was discipline Chester, supervise him, replace him, or always schedule at least two employees to work in the store with him. A reasonable employer would have taken one or more of those precautions. Porter owed at least that much to an employee that they knowingly placed in a position to be victimized by this known pervert.
-One factor that makes this case a little more complicated than an ordinary negligence case is the fact that Elizabeth was injured by the intentional conduct of Chester rather than, for example, some unsafe condition on the premises. Generally, there is no duty to protect one person from the torts or crimes of another. But a defendant can have a duty based on its relationship to either the wrongdoer or the victim. Here both the wrongdoer and the victim are employees, so we can argue that Porter had a special duty to restrain Chester as well as a special duty to protect Elizabeth.
B. Other ways to establish negligence
-We may want to consider whether the standard of care to be expected of Porter might be dictated by statute, or by law, or by industry custom rather than determined solely by an after the fact application of the general negligence analysis.
1) Negligence per se
-Duty and breach by a defendant can sometimes be established (or at least an inference of negligence can be raised) by proving the violation of a statute.
-Is there a statute that says that employers must prevent one employee from harassing another? If so, can we use it to establish that Porter had a duty to prevent what happened here?
-Title VII does create a statutory cause of action against an employer who maintains a hostile work environment that is so offensive that an employee's ability to work is impaired. We could argue that Elizabeth is a member of the class to be protected (employees), that Porter is a member of the class to be regulated (employers), and that the harm is the kind of harm that the statute was designed to prevent (sexual harassment). However, it is unlikely that the statute was intended as a safety measure, so negligence per se probably will not work. On the other hand, it does circumvent the statute of limitations problem, and it would let the jury know that Porter is a bad guy doing illegal things, so we should probably add it to our negligence case to see if the judge will let us get away with it.
2) Rule of law
-We could argue that the duty of an employer to protect employees from sexual harassment has been established, as a matter of law, by the passage of Title VII. This is different from trying to base a cause of action on the statute (can't because we blew the statute of limitations) or even using the statute to establish negligence per se. Instead, we could simply argue that the ordinary reasonable employer obeys the law, so at least in that sense the statute has the effect of specifying the standard of care as a matter of law. This rarely works, but has some jury appeal and is worth a shot.
-Sometimes, instead of having the trier of fact determine the reasonableness of a defendant's conduct on a case by case basis, courts are willing to create a rule of law that specifies the duty of a party in a particular situation. Helling. Our argument would be that here, as in Helling, the probable harm was so great and the cost of avoidance so trivial that the defendant should be held negligent as a matter of law. Unfortunately, rules of law are disfavored, and it is unlikely that plaintiff would be able to convince the court to adopt one in this case. That is especially true since the cost-benefit ratio is not nearly so high here. (See defendant's analysis of cost of avoidance and probable harm in part 2 below) .
3) Industry custom
-Evidence of what other employers do to avoid this problem, while not conclusive, is both admissible and persuasive. Trimarco. Here, it is very likely that other companies, one might say the ordinary reasonable company, takes far more precautions than Porter did. It is also likely, especially in light of Title VII, that Porter's condonation of reported offenses, trivialization of employee complaints and general jerklike conduct are substantial deviations from common industry custom.
Preliminary conclusion on duty/breach
-We certainly have enough evidence on duty and breach to get to a jury. Porter did many things that a reasonable company would not have done and failed to do other things that a reasonable company would have done. Porter did not screen its supervisors to make sure that they were not inclined to attack their subordinates. Porter did not train its employees to avoid inappropriate behavior, nor did it punish employees who did engage in such conduct. Porter responded inappropriately to complaints, condoning past misconduct and perhaps even encouraging such conduct in the future. It certainly did not give Chester any reason to stop what he was doing. Porter's conduct was contrary to both law and industry practice, and it was at least arguably "unreasonable".
Causation
Assuming that plaintiff can establish duty and breach, the next step is to establish that the defendant's breach of duty caused plaintiff's harm. Plaintiff must establish that defendant's negligence was the cause in fact (but-for cause) of the harm, that the defendant's negligence was the proximate cause of the harm, and that there was no superseding cause that would operate to cut off defendant's liability.
A. Cause in fact
-The first thing that Elizabeth must establish is that if Porter had acted reasonably she would not have been injured. She must, at a minimum, establish that her injury occurred because of Porter's negligence and would not have happened without it.
-On the facts of this case, that should not be difficult. Porter's negligence need not be the sole cause of the harm, just a "substantial factor". Perkins. The fact that she would not have been injured without Chester's wrongful conduct does not save Porter. Where separate acts of negligence combine to produce a single injury, each tortfeasor is liable for the entire result even though his act alone might not have caused it. Hill v. Edmonds. The issue is whether the negligence of Porter increased the chance of harm to plaintiff and was of a character naturally leading to its occurrence. Reynolds. The negligent conduct in this case, failure to screen, supervise, train or discipline Chester, was certainly a substantial factor in the harm suffered by Elizabeth, increased the chances that it would happen, and naturally led to just the events that occurred here. If Porter had acted responsibly, Elizabeth would not have been assaulted. Therefore, we have but-for causation.
B. Proximate cause
Even where it is established that defendant's negligence was a cause in fact of plaintiff's injury, liability is sometimes limited for reasons of policy. If it is determined that the defendant should not have to pay because his act was too far removed from the result, we say that the defendant's act was not the "proximate cause" of the harm.
-On behalf of the plaintiff, we will want to argue that Porter's negligence was the proximate cause of her injury as well as a cause in fact. Because there are competing lines of case law, we will want to emphasize the cases most favorable to the plaintiff. However, no matter which line of cases the court decides to follow in this case, we have a good shot at winning.
-Under Palsgraf, Elizabeth is a clearly foreseeable plaintiff. She was an employee of Porter Paint, and Porter was aware that she had been assigned to work in Chester's store, and often scheduled at times when no one else would be present in the store. The risk that Chester would injure an employee in her position is precisely the risk that made Porter's conduct negligent in the first place, and Elizabeth herself was known to Porter to be in a position of jeopardy. A case doesn't get any better than that. Under Polemis, plaintiff wins as long as her injury was directly caused by defendant's negligence, no matter how unforeseeable the extent of the harm or the exact manner of its occurrence may be. Again, we have a clear winner. Under Wagon Mound II and the Palsgraf dissent, the occurrence at issue was at least remotely foreseeable, so plaintiff should win. In fact, in light of Chester's past actions, and the fact that Porter knew all about them, we could probably win even under Wagon Mound I (reasonably foreseeable), the case that is generally most favorable for the defense.
-Because plaintiff can establish both but-for causation and proximate cause, Porter should be held liable unless it can establish that Chester's misconduct was an intervening, superseding cause of Elizabeth's injury
C. Was Chester's misconduct an intervening, superseding cause of the injury?
-To have any hope of prevailing on a claim that its liability is superseded or cut off by Chester's, Porter will first have to demonstrate that Chester's conduct was wrongful, was a but-for cause of Elizabeth's injury, was the proximate cause of her injury, and was intervening. Once Porter establishes all of that, it can move on to the issue of whether Chester's act was "superseding".
-Chester's conduct was clearly wrongful. However, that raises the troublesome issue of whether any of the rules for intervening and superseding causes apply where the conduct of the intervening actor was intentional or even criminal rather than just negligent. All of the cases we discussed concerned negligence. However, it seems that defendant number one can be held liable for the intentional act of an intervener under some circumstances -- where D1 had a special duty to the plaintiff or a special responsibility for the intervener. Since it seems that Porter had a special relationship with both Elizabeth and Chester, we will probably be able to use the i/s cases even though Chester's misconduct amounted to battery or even a criminal act, and that position is strengthened by the fact that the intentional misconduct was both foreseeable and within the scope of the risk created by Porter's negligence.
-There is no problem with establishing that Chester's misconduct was the but-for cause of the injury. Proximate causation is also clear. The harm was both direct (Polemis), and clearly foreseeable (Wagon Mound I, Wagon Mound II, and Palsgraf dissent) since it was actually intended. Even Palsgraf doesn't help Chester since Elizabeth was a foreseeable plaintiff within the scope of the risk created by the wrongful conduct.
-Chester's conduct was intervening between Porter's negligence and the actual harm to Elizabeth, since it happened in between them. However, an intervening act does not cut off the liability of the first defendant where the risk of the intervening act is the risk that made defendant's act negligent in the first place. Derdiarian. If the intervening act was a normal or foreseeable consequence of the situation created by the defendant's negligence, it is not superseding even though the precise manner of the event could not be anticipated.
-Elizabeth will have to argue that some harassment by Chester was the risk that made Porter's various acts and omissions negligent, and it is immaterial that he had never gone this far before and Porter had no way of knowing that he would do something this bad. Under the Solomon test, we will argue that Porter's negligence was a substantial factor in bringing about the harm, that Porter's negligence was still operating at the time of the injury, and that Elizabeth suffered the type of harm to be expected from the negligence. Under the Restatement section 447 test, we will argue that the intervening act was foreseeable. The other two prongs of the test are more problematic, but we still have a pretty good shot. Since Chester's misconduct could not have happened without the negligence of Porter, there is a sense in which it was a "consequence" of that negligence. While Chester's actions were certainly "extraordinary", we will argue that the fact that they were both foreseeable and within the scope of the risk means that Porter's duty to prevent them gets stronger as the misconduct gets worse, not weaker as the test seems to imply.
Preliminary conclusions
-We should have no trouble making out a jury question on duty, breach, and causation. The facts as stated establish actual harm. Therefore, we should survive a motion for summary judgment without any problems.
Even where it is established that defendant's negligence was a cause in fact of plaintiff's injury, liability is sometimes limited for reasons of policy. If it is determined that the defendant should not have to pay because his act was too far removed from the result, we say that the defendant's act was not the "proximate cause" of the harm.
-On behalf of the plaintiff, we will want to argue that Porter's negligence was the proximate cause of her injury as well as a cause in fact. Because there are competing lines of case law, we will want to emphasize the cases most favorable to the plaintiff. However, no matter which line of cases the court decides to follow in this case, we have a good shot at winning.
-Under Palsgraf, Elizabeth is a clearly foreseeable plaintiff. She was an employee of Porter Paint, and Porter was aware that she had been assigned to work in Chester's store, and often scheduled at times when no one else would be present in the store. The risk that Chester would injure an employee in her position is precisely the risk that made Porter's conduct negligent in the first place, and Elizabeth herself was known to Porter to be in a position of jeopardy. A case doesn't get any better than that. Under Polemis, plaintiff wins as long as her injury was directly caused by defendant's negligence, no matter how unforeseeable the extent of the harm or the exact manner of its occurrence may be. Again, we have a clear winner. Under Wagon Mound II and the Palsgraf dissent, the occurrence at issue was at least remotely foreseeable, so plaintiff should win. In fact, in light of Chester's past actions, and the fact that Porter knew all about them, we could probably win even under Wagon Mound I (reasonably foreseeable), the case that is generally most favorable for the defense.
-Because plaintiff can establish both but-for causation and proximate cause, Porter should be held liable unless it can establish that Chester's misconduct was an intervening, superseding cause of Elizabeth's injury
C. Was Chester's misconduct an intervening, superseding cause of the injury?
-To have any hope of prevailing on a claim that its liability is superseded or cut off by Chester's, Porter will first have to demonstrate that Chester's conduct was wrongful, was a but-for cause of Elizabeth's injury, was the proximate cause of her injury, and was intervening. Once Porter establishes all of that, it can move on to the issue of whether Chester's act was "superseding".
-Chester's conduct was clearly wrongful. However, that raises the troublesome issue of whether any of the rules for intervening and superseding causes apply where the conduct of the intervening actor was intentional or even criminal rather than just negligent. All of the cases we discussed concerned negligence. However, it seems that defendant number one can be held liable for the intentional act of an intervener under some circumstances -- where D1 had a special duty to the plaintiff or a special responsibility for the intervener. Since it seems that Porter had a special relationship with both Elizabeth and Chester, we will probably be able to use the i/s cases even though Chester's misconduct amounted to battery or even a criminal act, and that position is strengthened by the fact that the intentional misconduct was both foreseeable and within the scope of the risk created by Porter's negligence.
-There is no problem with establishing that Chester's misconduct was the but-for cause of the injury. Proximate causation is also clear. The harm was both direct (Polemis), and clearly foreseeable (Wagon Mound I, Wagon Mound II, and Palsgraf dissent) since it was actually intended. Even Palsgraf doesn't help Chester since Elizabeth was a foreseeable plaintiff within the scope of the risk created by the wrongful conduct.
-Chester's conduct was intervening between Porter's negligence and the actual harm to Elizabeth, since it happened in between them. However, an intervening act does not cut off the liability of the first defendant where the risk of the intervening act is the risk that made defendant's act negligent in the first place. Derdiarian. If the intervening act was a normal or foreseeable consequence of the situation created by the defendant's negligence, it is not superseding even though the precise manner of the event could not be anticipated.
-Elizabeth will have to argue that some harassment by Chester was the risk that made Porter's various acts and omissions negligent, and it is immaterial that he had never gone this far before and Porter had no way of knowing that he would do something this bad. Under the Solomon test, we will argue that Porter's negligence was a substantial factor in bringing about the harm, that Porter's negligence was still operating at the time of the injury, and that Elizabeth suffered the type of harm to be expected from the negligence. Under the Restatement section 447 test, we will argue that the intervening act was foreseeable. The other two prongs of the test are more problematic, but we still have a pretty good shot. Since Chester's misconduct could not have happened without the negligence of Porter, there is a sense in which it was a "consequence" of that negligence. While Chester's actions were certainly "extraordinary", we will argue that the fact that they were both foreseeable and within the scope of the risk means that Porter's duty to prevent them gets stronger as the misconduct gets worse, not weaker as the test seems to imply.
Preliminary conclusions
-We should have no trouble making out a jury question on duty, breach, and causation. The facts as stated establish actual harm. Therefore, we should survive a motion for summary judgment without any problems.
2. What defenses will Porter Paint raise? [Note that plaintiff's responses will be as already discussed in Part 1]
A. Porter Paint will claim that it did not breach any duty to Elizabeth
-Porter's duty was to act as a reasonable employer would act under the same or similar circumstances. In deciding whether Porter's actions or omissions were negligent, we have to look at the situation from the perspective of what Porter knew or should have known at the time that it made its decisions. According to the facts, what Porter and its current management personnel knew at the time that it assigned Elizabeth to Chester's store was simply that one employee had complained that Chester had brushed into her. Porter had told him to knock it off, and the situation seemed to be resolved. At that point, it did not appear that Elizabeth would be exposed to much risk of harm. To apply the Hand test, it looked like there was only a remote chance of some minor misconduct. Although plaintiff minimized the cost of avoidance in Part 1 above, in fact any of the measures that plaintiff is now claiming should have been taken were pretty extreme and expensive solutions to what appeared to be a minor problem. Extensive training programs, double staffing of stores, even firing a long-term employee whose services were otherwise satisfactory all seem like overkill for the rather minor misconduct that had been documented at that point. It is unlikely that the ordinary reasonable employer would have done any of those things.
-Further, Porter will argue that the outrageous conduct at issue here -- the criminal offense of gross sexual imposition -- was simply not foreseeable. Nothing Chester had allegedly done in the past gave any indication that he might do anything like this. It is well established that there is no duty to guard against extraordinary occurrences. Blyth. There is no way to characterize Chester's actions except as extraordinary and unforeseeable.
-Moreover, it is well settled that there is no duty to protect others from the intentional torts and crimes of third parties. Chester's confession establishes that the conduct was not negligent, but clearly intentional. Porter should not be responsible for his criminal assaults any more than the railroad in Watson should be responsible for the action of the criminal who threw a lighted match into a pool of gasoline. In each case, the criminal conduct of the third party was unforeseeable as a matter of law, and there can be no tort liability simply because the defendant failed to anticipate and prevent the crime. Further, the analysis does not change just because both Elizabeth and Chester were Porter's employees. While Porter may have some duty to Elizabeth, as an employee, to protect her from hazards on the job, that responsibility only extends to hazards for which Porter is responsible. If Elizabeth was struck by lightning while on the job, or shot by a robber in the course of a hold-up, Porter would not be held liable. How is this case any different?
-As to the negligence per se claim, even plaintiff concedes that the doctrine has no application because Title VII is not a safety statute. While reasonable companies ordinarily comply with the law, there has been no determination in this case that Porter even violated Title VII.
-There is no basis for the creation of a rule of law in this case. As already discussed, it is not clear either that the expected magnitude of the harm was great or the cost of avoiding it was minimal. Further, the majority rule clearly disfavors the creation of court made rules of law. The better rule is to let the jury determine reasonableness on the unique facts of the case.
-As to industry custom, there is no indication that there is any widespread industry custom to handle minor workplace complaints like we have here any differently than Porter handled them. Even if plaintiff introduces evidence that other companies would have handled the situation differently, it will be for the jury to decide which approach is the more reasonable one.
B. Porter Paint will contend that, if it did breach a duty to Elizabeth, its breach of duty was not the cause of the injuries that she suffered.
-Porter won't put up much of a fight over cause in fact. If its actions were negligent, they were pretty clearly a substantial factor in the events at issue.
-Porter will fight hard over the issue of proximate cause. It will probably concede that under the Palsgraf duty analysis Elizabeth was a foreseeable plaintiff within the scope of the risk. However, Porter will argue that it should win under any of the causation cases. The harm to plaintiff --suffering a criminal sexual assault-- was not a probable consequence of Porter's conduct (retaining Chester and scheduling only one employee to work with him) as required by Wagon Mound I, or a reasonably foreseeable consequence as required by the dissent in Palsgraf, or even remotely foreseeable as required by Wagon Mound II. Chester's conduct was extraordinary, bizarre, and utterly unforeseeable, and none of the classic causation cases support the imposition of liability under such circumstances. Even Polemis, with its statement that a defendant can be liable no matter how unforeseeable the nature of the occurrence or the extent of the harm, gave no indication that one defendant could be held liable for the intentional, criminal misconduct of a third party.
-Porter will also argue that Chester's intervening misconduct was superseding. First, it is superseding because it was criminal, and there is no duty to anticipate the criminal conduct of another (see above). The problem is that the possibility that Chester might engage in intentional or criminal misconduct is precisely the risk that made Porter's action negligent in the first place. Porter will argue that misconduct of this magnitude is not the kind of risk it had any reason to believe that it was taking (or imposing on plaintiff). Under the Solomon test, Porter will argue that its conduct was not a substantial factor in bringing about the harm. Chester is a very sick puppy, and if he is compelled to act so far outside the bounds of normal behavior there is really nothing Porter could have done to stop him. The fact that Porter happened to disregard a previous complaint about minor misconduct had nothing to do with the subsequent bizarre and criminal activities. While Porter will probably have to concede that its negligence, if any, was still operative at the time of the injury, it will argue emphatically that the harm Elizabeth suffered was not the kind of harm to be anticipated at the time that Porter made its scheduling decisions. Therefore, two of the three Solomon factors cut in favor of finding that Chester's misconduct was superseding. Under the Restatement section 447 test, Porter will argue that Chester's actions were certainly not foreseeable, that Chester could have done similar harm no matter what Porter did, and that Chester's conduct was certainly not caused by anything that Porter did or did not do. Therefore, all three restatement factors cut in favor of finding Chester's misconduct superseding.
C. Porter Paint will argue that Elizabeth was contributorily negligent and/or assumed the risk.
-Porter will argue that even if it had a duty to protect Elizabeth from Chester's intentional misconduct, that duty only extended as far as a reasonable person in Elizabeth's position would have needed it or profited from it. Here, Elizabeth did not respond as an ordinary reasonable person would have in the same circumstances, and consequently she was injured worse than she would have been had she exercised due care for her own safety. Elizabeth had the benefit of Sally's warning, but chose to work alone with Chester the very next night, essentially assuming the risk that something bad might happen. Further, she did not complain or respond when Chester stared at her, or stood too close, or touched her breasts, or even when he reached up under her dress. Surely an ordinary reasonable person would have offered some objection or resistance at some point. And if she had done so, who knows that Chester would not have stopped before more serious harm was done. Unlike Porter, Elizabeth was aware of everything that went on, and was in a position to respond effectively. Since she chose not to do so, why should Porter have to pick up the tab?
A. Porter Paint will claim that it did not breach any duty to Elizabeth
-Porter's duty was to act as a reasonable employer would act under the same or similar circumstances. In deciding whether Porter's actions or omissions were negligent, we have to look at the situation from the perspective of what Porter knew or should have known at the time that it made its decisions. According to the facts, what Porter and its current management personnel knew at the time that it assigned Elizabeth to Chester's store was simply that one employee had complained that Chester had brushed into her. Porter had told him to knock it off, and the situation seemed to be resolved. At that point, it did not appear that Elizabeth would be exposed to much risk of harm. To apply the Hand test, it looked like there was only a remote chance of some minor misconduct. Although plaintiff minimized the cost of avoidance in Part 1 above, in fact any of the measures that plaintiff is now claiming should have been taken were pretty extreme and expensive solutions to what appeared to be a minor problem. Extensive training programs, double staffing of stores, even firing a long-term employee whose services were otherwise satisfactory all seem like overkill for the rather minor misconduct that had been documented at that point. It is unlikely that the ordinary reasonable employer would have done any of those things.
-Further, Porter will argue that the outrageous conduct at issue here -- the criminal offense of gross sexual imposition -- was simply not foreseeable. Nothing Chester had allegedly done in the past gave any indication that he might do anything like this. It is well established that there is no duty to guard against extraordinary occurrences. Blyth. There is no way to characterize Chester's actions except as extraordinary and unforeseeable.
-Moreover, it is well settled that there is no duty to protect others from the intentional torts and crimes of third parties. Chester's confession establishes that the conduct was not negligent, but clearly intentional. Porter should not be responsible for his criminal assaults any more than the railroad in Watson should be responsible for the action of the criminal who threw a lighted match into a pool of gasoline. In each case, the criminal conduct of the third party was unforeseeable as a matter of law, and there can be no tort liability simply because the defendant failed to anticipate and prevent the crime. Further, the analysis does not change just because both Elizabeth and Chester were Porter's employees. While Porter may have some duty to Elizabeth, as an employee, to protect her from hazards on the job, that responsibility only extends to hazards for which Porter is responsible. If Elizabeth was struck by lightning while on the job, or shot by a robber in the course of a hold-up, Porter would not be held liable. How is this case any different?
-As to the negligence per se claim, even plaintiff concedes that the doctrine has no application because Title VII is not a safety statute. While reasonable companies ordinarily comply with the law, there has been no determination in this case that Porter even violated Title VII.
-There is no basis for the creation of a rule of law in this case. As already discussed, it is not clear either that the expected magnitude of the harm was great or the cost of avoiding it was minimal. Further, the majority rule clearly disfavors the creation of court made rules of law. The better rule is to let the jury determine reasonableness on the unique facts of the case.
-As to industry custom, there is no indication that there is any widespread industry custom to handle minor workplace complaints like we have here any differently than Porter handled them. Even if plaintiff introduces evidence that other companies would have handled the situation differently, it will be for the jury to decide which approach is the more reasonable one.
B. Porter Paint will contend that, if it did breach a duty to Elizabeth, its breach of duty was not the cause of the injuries that she suffered.
-Porter won't put up much of a fight over cause in fact. If its actions were negligent, they were pretty clearly a substantial factor in the events at issue.
-Porter will fight hard over the issue of proximate cause. It will probably concede that under the Palsgraf duty analysis Elizabeth was a foreseeable plaintiff within the scope of the risk. However, Porter will argue that it should win under any of the causation cases. The harm to plaintiff --suffering a criminal sexual assault-- was not a probable consequence of Porter's conduct (retaining Chester and scheduling only one employee to work with him) as required by Wagon Mound I, or a reasonably foreseeable consequence as required by the dissent in Palsgraf, or even remotely foreseeable as required by Wagon Mound II. Chester's conduct was extraordinary, bizarre, and utterly unforeseeable, and none of the classic causation cases support the imposition of liability under such circumstances. Even Polemis, with its statement that a defendant can be liable no matter how unforeseeable the nature of the occurrence or the extent of the harm, gave no indication that one defendant could be held liable for the intentional, criminal misconduct of a third party.
-Porter will also argue that Chester's intervening misconduct was superseding. First, it is superseding because it was criminal, and there is no duty to anticipate the criminal conduct of another (see above). The problem is that the possibility that Chester might engage in intentional or criminal misconduct is precisely the risk that made Porter's action negligent in the first place. Porter will argue that misconduct of this magnitude is not the kind of risk it had any reason to believe that it was taking (or imposing on plaintiff). Under the Solomon test, Porter will argue that its conduct was not a substantial factor in bringing about the harm. Chester is a very sick puppy, and if he is compelled to act so far outside the bounds of normal behavior there is really nothing Porter could have done to stop him. The fact that Porter happened to disregard a previous complaint about minor misconduct had nothing to do with the subsequent bizarre and criminal activities. While Porter will probably have to concede that its negligence, if any, was still operative at the time of the injury, it will argue emphatically that the harm Elizabeth suffered was not the kind of harm to be anticipated at the time that Porter made its scheduling decisions. Therefore, two of the three Solomon factors cut in favor of finding that Chester's misconduct was superseding. Under the Restatement section 447 test, Porter will argue that Chester's actions were certainly not foreseeable, that Chester could have done similar harm no matter what Porter did, and that Chester's conduct was certainly not caused by anything that Porter did or did not do. Therefore, all three restatement factors cut in favor of finding Chester's misconduct superseding.
C. Porter Paint will argue that Elizabeth was contributorily negligent and/or assumed the risk.
-Porter will argue that even if it had a duty to protect Elizabeth from Chester's intentional misconduct, that duty only extended as far as a reasonable person in Elizabeth's position would have needed it or profited from it. Here, Elizabeth did not respond as an ordinary reasonable person would have in the same circumstances, and consequently she was injured worse than she would have been had she exercised due care for her own safety. Elizabeth had the benefit of Sally's warning, but chose to work alone with Chester the very next night, essentially assuming the risk that something bad might happen. Further, she did not complain or respond when Chester stared at her, or stood too close, or touched her breasts, or even when he reached up under her dress. Surely an ordinary reasonable person would have offered some objection or resistance at some point. And if she had done so, who knows that Chester would not have stopped before more serious harm was done. Unlike Porter, Elizabeth was aware of everything that went on, and was in a position to respond effectively. Since she chose not to do so, why should Porter have to pick up the tab?
3. Evaluation on the merits
As with most tort cases, this one will come down to which witnesses are more credible in the estimation of the jury. If the jury believes Ross about the nature of her complaint and Neff's response, Porter will have a real hard time selling its argument that it had no way of knowing how bad Chester was and no duty to respond more forcefully to the information that it did have. Probably, a jury would conclude that most companies would, or at least should, respond differently than Neff is alleged to have done. It is also likely that a jury will be more inclined to find the likely harm more serious and to think that more expensive preventive measures were in order. In short, the jury is likely to find a breach of duty.
Further, if Ross' version is credited, it makes Chester's misconduct more foreseeable, and thus less likely to be held superseding.
On the other hand, if the jury believes Neff instead of Ross, Porter's argument that it acted reasonably will be relatively strong. It will still have to deal with the very old claims of misconduct by Chester, but the jury may well think that things were different then and that most companies would have ignored complaints back then. Also, if the jury believes Neff, then Chester's conduct is much less foreseeable and more likely to be considered superseding.
Either way, we will have to deal with Elizabeth's unusual lack of reaction. We will have to depend on her age, lack of work experience, and the frightening and bizarre situation with which she was faced. I don't think that the jury will be too critical of her, and Porter will have to be careful not to attack her too hard or the plan may backfire and generate jury sympathy for her.
On balance, I think that plaintiff will win. The corporate defendant's indifference to the plight of women employees faced with supervisor misconduct that went well beyond the usual juvenile behavior to conduct that would clearly frighten and offend any reasonable person will probably result in a judgment for plaintiff
As with most tort cases, this one will come down to which witnesses are more credible in the estimation of the jury. If the jury believes Ross about the nature of her complaint and Neff's response, Porter will have a real hard time selling its argument that it had no way of knowing how bad Chester was and no duty to respond more forcefully to the information that it did have. Probably, a jury would conclude that most companies would, or at least should, respond differently than Neff is alleged to have done. It is also likely that a jury will be more inclined to find the likely harm more serious and to think that more expensive preventive measures were in order. In short, the jury is likely to find a breach of duty.
Further, if Ross' version is credited, it makes Chester's misconduct more foreseeable, and thus less likely to be held superseding.
On the other hand, if the jury believes Neff instead of Ross, Porter's argument that it acted reasonably will be relatively strong. It will still have to deal with the very old claims of misconduct by Chester, but the jury may well think that things were different then and that most companies would have ignored complaints back then. Also, if the jury believes Neff, then Chester's conduct is much less foreseeable and more likely to be considered superseding.
Either way, we will have to deal with Elizabeth's unusual lack of reaction. We will have to depend on her age, lack of work experience, and the frightening and bizarre situation with which she was faced. I don't think that the jury will be too critical of her, and Porter will have to be careful not to attack her too hard or the plan may backfire and generate jury sympathy for her.
On balance, I think that plaintiff will win. The corporate defendant's indifference to the plight of women employees faced with supervisor misconduct that went well beyond the usual juvenile behavior to conduct that would clearly frighten and offend any reasonable person will probably result in a judgment for plaintiff
Time:
One of the first rules I learned when I graduated from law school was to keep my memorandum brief because if not, most judges (state court) will not read them. Accordingly, I have not, nor will I read your post. Maybe okay for law school exam but I have beer to drink and football to watch. Good luck and I hope your professors are more understanding than the undersigned.
Eddie, the winded
One of the first rules I learned when I graduated from law school was to keep my memorandum brief because if not, most judges (state court) will not read them. Accordingly, I have not, nor will I read your post. Maybe okay for law school exam but I have beer to drink and football to watch. Good luck and I hope your professors are more understanding than the undersigned.
Eddie, the winded
Eddie Haskell said:
Eddie I hope that you realize that you were of no help at all in doing Times homework.
I am pissed at you for not answering my direct question to you in a previous post You seem to be too busy these days swilling beers.
At least I didnt see a answer. or maybe I didnt read your posts !
Scott-Atlanta
Scott,
I never expected ED to help, but you have to admit his posts are fun to read....
TIME, the exhausted.
I never expected ED to help, but you have to admit his posts are fun to read....
TIME, the exhausted.
Time:
My posts are not meant to be funny. I am a most serious, compassionate human being seeking to spread reason and intelligence in a right-wing, short-sighted, instant gratification world (and board). Thank you for your support. I hope you did well on your examination.
Scott, could you please repeat the question. I did not intend on ducking yours, or for that matter, anyone elses question.
Eddie
My posts are not meant to be funny. I am a most serious, compassionate human being seeking to spread reason and intelligence in a right-wing, short-sighted, instant gratification world (and board). Thank you for your support. I hope you did well on your examination.
Scott, could you please repeat the question. I did not intend on ducking yours, or for that matter, anyone elses question.
Eddie
Eddie Haskell said:
uhh there is wrong in that statement. It should be their.
Eddie question..
Can you list maybe the top 10 things that make someone extremely right wing ?
I kinda want to know if i fit in there or not.
Thanks
Scott-Atlanta
Scottie:
Oh I don't know, how do you define Tom DeLay? How do you define individuals who blindly support corporate America at the expense of individual freedoms?
As Potter Stewart once said concerning pornography, paraphrasing, "I can't define it but, I know it when I see it".
Same here.
Generally speaking, republicans, corporate america and there many minions, bankers, insurance company employees, members of the chambers of commerce, physicians, farmers, 2nd amendment zealots, Bush lovers, Dr. Freeze, the majority of posters on this board, kkk, moral majority christians, Jerry Farwell, excuse me, the Reverend Jerry Farwell, Tom DeLay, Newt Gingrich, Cal Thomas, Trent Lott, Orin Hatch, soccer moms, most midwesterners, especially Cincinnatians, you know, and of course the man running this country......... Dick Cheney, and other various and sundry stupid people.
Lets see if theres any other groups that I haven't pissed off. I am sure I'm missing many other groups that generally, let me repeat that, generally fit the mold of right wingers.
Two years ago I remember overhearing a woman on my shuttle asking a friend who she thought was going to win the election. She said that she was going to vote for Bush because she thought he was going to win. Wow, what an electorate.
Makes me want to move in with Time up there in Canada. By the way, I was a betting man. Got out of control for me. Proud member of GA for the last six months. Don't worry, although you may find this hard to believe, I'm not a whack. I wish I could gamble like most people but got too addicting and I wasnt hearing ambulance sirens anymore, just the bells of slot machines.
Eddie, the reformed and normal
Oh I don't know, how do you define Tom DeLay? How do you define individuals who blindly support corporate America at the expense of individual freedoms?
As Potter Stewart once said concerning pornography, paraphrasing, "I can't define it but, I know it when I see it".
Same here.
Generally speaking, republicans, corporate america and there many minions, bankers, insurance company employees, members of the chambers of commerce, physicians, farmers, 2nd amendment zealots, Bush lovers, Dr. Freeze, the majority of posters on this board, kkk, moral majority christians, Jerry Farwell, excuse me, the Reverend Jerry Farwell, Tom DeLay, Newt Gingrich, Cal Thomas, Trent Lott, Orin Hatch, soccer moms, most midwesterners, especially Cincinnatians, you know, and of course the man running this country......... Dick Cheney, and other various and sundry stupid people.
Lets see if theres any other groups that I haven't pissed off. I am sure I'm missing many other groups that generally, let me repeat that, generally fit the mold of right wingers.
Two years ago I remember overhearing a woman on my shuttle asking a friend who she thought was going to win the election. She said that she was going to vote for Bush because she thought he was going to win. Wow, what an electorate.
Makes me want to move in with Time up there in Canada. By the way, I was a betting man. Got out of control for me. Proud member of GA for the last six months. Don't worry, although you may find this hard to believe, I'm not a whack. I wish I could gamble like most people but got too addicting and I wasnt hearing ambulance sirens anymore, just the bells of slot machines.
Eddie, the reformed and normal
Eddie Haskell said:
I dont think I fall into that right wing category.
I know who these people are but I don't what they believe. And that whats important to my understanding. It bugs me that I dont really know what I am .
What is the opposite of the right winger ? maybe i am that.
Thanks
Scott-Atlanta
FDC,
Drew Carey! What a hoot!
But, in all fairness to Ed, that would be cleveland, and he hails from the Queen City.
Drew Carey! What a hoot!
But, in all fairness to Ed, that would be cleveland, and he hails from the Queen City.
Hey Fat;
Thank you for reminding me, I forgot another whole group of morons from my right wing list.....Texans,..... except of course for Molly Ivins and Ann Richards....other than those two, you can flush the rest of the state down the toilet.
Fat are you suggesting I should have been on the space shuttle with Krista McCauliffe. How unkind of you. Didnt realize I was getting under your skin, you trailer trash, hillbilly scum. By the way, you are right, I wasn't very good at pickin winners.
I'll bet ya your a great handicapper (oops there goes my abstinence). Another Jim Feist. You probably make a lot of money pickin winners all day long sweating over that daily racing form with a three day beard in your white tee shirt with that beer belly hanging over your belt. I can see that ashtray in your trailor with cigarette butts spilling out onto your coffee table with the four empty lone star bottles decorating your lovely one-bedroom double wide in suburban Ft. Worth.
Thats a lovely picture of Jesus hangin about 6 foot high over your zenith. Those four month old gas and electric, cable tv and rent bills are stacking up so high on the tv its gettin kinda hard to see that velvet elvis hanging crooked next to the painting of Jesus.
Based upon your posts, the only thing your pickin is your nose and your ass, lowlife.
My clients, you ask. Losers like you fat, losers like you! However, they pay me so that I can afford to pay my ISP in order that I can communicate with wonderful people like you. Where does that put you on the food chain. Thank you y for the clarification.
Eddie
Thank you for reminding me, I forgot another whole group of morons from my right wing list.....Texans,..... except of course for Molly Ivins and Ann Richards....other than those two, you can flush the rest of the state down the toilet.
Fat are you suggesting I should have been on the space shuttle with Krista McCauliffe. How unkind of you. Didnt realize I was getting under your skin, you trailer trash, hillbilly scum. By the way, you are right, I wasn't very good at pickin winners.
I'll bet ya your a great handicapper (oops there goes my abstinence). Another Jim Feist. You probably make a lot of money pickin winners all day long sweating over that daily racing form with a three day beard in your white tee shirt with that beer belly hanging over your belt. I can see that ashtray in your trailor with cigarette butts spilling out onto your coffee table with the four empty lone star bottles decorating your lovely one-bedroom double wide in suburban Ft. Worth.
Thats a lovely picture of Jesus hangin about 6 foot high over your zenith. Those four month old gas and electric, cable tv and rent bills are stacking up so high on the tv its gettin kinda hard to see that velvet elvis hanging crooked next to the painting of Jesus.
Based upon your posts, the only thing your pickin is your nose and your ass, lowlife.
My clients, you ask. Losers like you fat, losers like you! However, they pay me so that I can afford to pay my ISP in order that I can communicate with wonderful people like you. Where does that put you on the food chain. Thank you y for the clarification.
Eddie
just wanted to say a special thank you to Chad for his help.... he sent me his study guide from when he took this course, it was indeed helpful
Thanks my southern friend.....
As always a class act
Thanks my southern friend.....
As always a class act
...not a problem, anthony. glad i could be of a little help...looks like you already had it under control. hope that you do well on your exam, my northern friend.
...you gonna send me out some pics from MeesterMike's place? LOL
...you gonna send me out some pics from MeesterMike's place?
LOLI guess as a reward I could hopefully arrange something with Mike, assuming he allows me to take some pics...
check your email in about 10 minutes, you will have a surprise
check your email in about 10 minutes, you will have a surprise
