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James v meow media case brief

23/11/2021 Client: muhammad11 Deadline: 2 Day

Tort And Criminal Law IRAC Case Brief

PART I

The week's assignment concerns briefing a case from the readings. You can pick any case from the readings. You must pick an actual court case and give the citation. The brief should concern a legal case that is relevant to the following Week 3, Torts or Criminal Law, objectives.

Brief the case. Use the IRAC methodology. Discuss the:

I: Issue

R: Rule

A: Analysis

C: Conclusion

The brief is followed by discussion of whether you agree or disagree with the court opinion and why.

Please put this in a separate paragraph.

PART II

When the brief is completed and in paragraph or two discuss how the legal concepts in the selected case can be applied within a business managerial setting. In other words, explain how the rule discussed in the case have impacted the industry in past and what you see for the future. In your answer discuss the positive and negative effect the case law has made on the industry.

CHAPTER 6 Torts and Strict Liability

Automobile accident

Motor vehicle accidents are a primary cause of injury and death in the United States. Most accidents are the result of negligence. Each year, over 6 million motor vehicle accidents occur that result in over 3 million injuries and approximately 40,000 fatalities of passenger car and truck occupants, pedestrians, motorcyclists, and bicyclists. Thus, approximately 110 people die every day in motor vehicle accidents in this country.

Learning Objectives

After studying this chapter, you should be able to:

1. List and describe intentional torts against persons.

2. List and explain the elements necessary to prove negligence.

3. List and describe business-related torts.

4. Define the doctrine of strict liability.

5. Apply the doctrine of strict liability to product defects.

Chapter Outline

1. Introduction to Torts and Strict Liability

2. Intentional Torts

1. Case 6.1 • Wal-Mart Stores, Inc. v. Cockrell

3. Unintentional Torts (Negligence)

1. ETHICS • Ouch! McDonald’s Coffee Is Too Hot!

2. Case 6.2 • Jones v. City of Seattle, Washington

3. CRITICAL LEGAL THINKING CASE • Proximate Cause

4. Special Negligence Doctrines

1. Case 6.3 • Aleo v. SLB Toys USA, Inc.

5. Defenses Against Negligence

1. Case 6.4 • Martinez v. Houston McLane Company, LLC

6. Strict Liability and Product Liability

1. BUSINESS ENVIRONMENT • Strict Liability: Defect in Design

2. Case 6.5 • Cummins v. BIC USA, Inc.

“Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. Proof of negligence in the air, so to speak, will not do.”

—Chief Judge Cardozo Palsgraf v. Long Island Railroad Co. 248 N.Y. 339, 162 N.E. 99, 1928 N.Y. Lexis 1269 (1928)

Introduction to Torts and Strict Liability

Tort is the French word for “a wrong.” The law provides remedies to persons and businesses that are injured by the tortious actions of others. Most torts are either intentional torts or unintentional torts, such as negligence. These are based on the concept of fault. Under tort law, an injured party can bring a civil lawsuit to seek compensation for a wrong done to the party or to the party’s property. Many torts have their origin in common law. The courts and legislatures have extended tort law to reflect changes in modern society.

tort

A wrong. There are three categories of torts: (1) intentional torts, (2) unintentional torts (negligence), and (3) strict liability.

Thoughts much too deep for tears subdue the Court.

When I assumpsit bring, and God-like waive a tort.

J. L. Adolphus

The Circuiteers (1885)

Tort damages are monetary damages that are sought from the offending party. They are intended to compensate the injured party for the injury suffered. Such injury may consist of past and future medical expenses, loss of wages, pain and suffering, mental distress, and other damages caused by the defendant’s tortious conduct. If the victim of a tort dies, his or her beneficiaries can bring a wrongful death action to recover damages from the defendant.

If a product defect causes injury or death to purchasers, lessees, users, or bystanders, the injured party or the heirs of a deceased person may bring legal actions and recover damages under certain tort doctrines. These tort doctrines include negligence, misrepresentation, and the modern theory of strict liability. Under the doctrine of strict liability, defendants may be held liable without fault. The liability of manufacturers, sellers, lessors, and others for injuries caused by defective products is commonly referred to as product liability. If a violation of strict liability has been found, the plaintiff may also recover punitive damages if the defendant’s conduct has been reckless or intentional.

This chapter discusses intentional torts, negligence, strict liability, and product liability.

Intentional Torts

The law protects a person from unauthorized touching, restraint, or other contact. In addition, the law protects a person’s reputation and privacy. Violations of these rights are actionable as torts. Intentional torts against persons are discussed in the paragraphs that follow.

intentional tort

A category of torts that requires that the defendant possessed the intent to do the act that caused the plaintiff’s injuries.

Assault

Assault is (1) the threat of immediate harm or offensive contact or (2) any action that arouses reasonable apprehension of imminent harm. Actual physical contact is unnecessary. Threats of future harm are not actionable.

assault

(1) The threat of immediate harm or offensive contact or (2) any action that arouses reasonable apprehension of imminent harm. Actual physical contact is unnecessary.

battery

Unauthorized and harmful or offensive direct or indirect physical contact with another person that causes injury.

Examples

Suppose a 6-foot-5-inch, 250-pound person makes a fist and threatens to punch a 5-foot, 100-pound person. If the threatened person is afraid that he or she will be physically harmed, that person can sue the threatening person to recover damages for the assault.

Battery

Battery is unauthorized and harmful or offensive physical contact with another person that causes injury. Basically, the interest protected here is each person’s reasonable sense of dignity and safety. Direct physical contact, such as intentionally hitting someone with a fist, is battery.

Indirect physical contact between the victim and the perpetrator is also battery, as long as injury results.

Examples

Throwing a rock, shooting an arrow or a bullet, knocking off a hat, pulling a chair out from under someone, and poisoning a drink are all instances of actionable battery. The victim need not be aware of the harmful or offensive contact (e.g., it may take place while the victim is asleep).

Assault and battery often occur together, although they do not have to (e.g., the perpetrator hits the victim on the back of the head without any warning).

False Imprisonment

The intentional confinement or restraint of another person without authority or justification and without that person’s consent constitutes false imprisonment . The victim may be restrained or confined by physical force, barriers, threats of physical harm, or the perpetrator’s false assertion of legal authority (i.e., false arrest). A threat of future harm or moral pressure is not considered false imprisonment. The false imprisonment must be complete.

false imprisonment

The intentional confinement or restraint of another person without authority or justification and without that person’s consent.

Example

A person who locks the doors in a house or automobile and does not let another person leave is liable for false imprisonment.

Shoplifting and Merchant Protection Statutes

Shoplifting causes substantial losses to retail and other merchants each year. Suspected shoplifters are often stopped by the store employees, and their suspected shoplifting is investigated. These stops sometimes lead to the merchant being sued for false imprisonment because the merchant detained the suspect.

Almost all states have enacted merchant protection statutes , also known as the shopkeeper’s privilege. These statutes allow merchants to stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment if:

merchant protection statutes (shopkeeper’s privilege)

Statutes that allow merchants to stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment if (1) there are reasonable grounds for the suspicion, (2) suspects are detained for only a reasonable time, and (3) investigations are conducted in a reasonable manner.

1. There are reasonable grounds for the suspicion.

2. Suspects are detained for only a reasonable time.

3. Investigations are conducted in a reasonable manner.

Proving these elements is sometimes difficult. The following case applies the merchant’s protection statute.

CASE 6.1 STATE COURT CASE False Imprisonment Wal-Mart Stores, Inc. v. Cockrell

61 S.W.3d 774, 2001 Tex. App. Lexis 7992 Court of Appeals of Texas

“He made me feel like I was scum. That I had no say-so in the matter, that just made me feel like a little kid on the block, like the bully beating the kid up.”

—Karl Cockrell

Facts

Karl Cockrell and his parents went to the layaway department at a store owned by Wal-Mart Stores, Inc. (Walmart). Cockrell stayed for about five minutes and decided to leave. As he was going out the front door, Raymond Navarro, a Walmart loss-prevention officer, stopped him and requested that Cockrell follow him to the manager’s office. Once in the office, Navarro told him to pull his pants down. Cockrell put his hands between his shorts and underwear, pulled them out, and shook them. Nothing fell out. Next, Navarro told him to take off his shirt. Cockrell raised his shirt, revealing a large bandage that covered a surgical wound on the right side of his abdomen. Cockrell had recently had a liver transplant. Navarro asked him to take off the bandage, despite Cockrell’s explanation that the bandage maintained a sterile environment around his surgical wound. On Navarro’s insistence, Cockrell took down the bandage, revealing the wound. Navarro let Cockrell go. Cockrell sued Walmart to recover damages for false imprisonment. Walmart defended, alleging that the shopkeeper’s privilege protected the store from liability. The trial court found in favor of Cockrell and awarded Cockrell $300,000 for his mental anguish. Walmart appealed.

Issue

Does the shopkeeper’s privilege protect Walmart from liability under the circumstances of the case?

Language of the Court

Navarro claimed he had reasons to suspect Cockrell of shoplifting. He said that Cockrell was acting suspiciously, because he saw him in the women’s department standing very close to a rack of clothes and looking around. We conclude that a rational jury could have found that Navarro did not “reasonably believe” a theft had occurred and therefore lacked authority to detain Cockrell. Navarro’s search was unreasonable in scope, because he had no probable cause to believe that Cockrell had hidden any merchandise under the bandage. Removal of the bandage compromised the sterile environment surrounding the wound.

Decision

The court of appeals upheld the trial court’s finding that Walmart had falsely imprisoned Cockrell and had not proved the shopkeeper’s privilege. The court of appeals upheld the trial court’s judgment that awarded Cockrell $300,000 for mental anguish.

Ethics Questions

1. Did Navarro, the Walmart employee, act responsibly in this case? Did Walmart act ethically in denying liability in this case?

Misappropriation of the Right to Publicity

Each person has the exclusive legal right to control and profit from the commercial use of his or her name and identity during his or her lifetime. This is a valuable right, particularly to well-known persons such as sports figures and movie stars. Any attempt by another person to appropriate a living person’s name or identity for commercial purposes is actionable. The wrongdoer is liable for the tort of misappropriation of the right to publicity (also called the tort of appropriation).

misappropriation of the right to publicity (tort of appreciation)

An attempt by another person to appropriate a living person’s name or identity for commercial purposes.

Example

A company that uses a likeness of a famous actress in its advertising without the actress’s permission is liable for this tort.

Invasion of the Right to Privacy

The law recognizes each person’s right to live his or her life without being subjected to unwarranted and undesired publicity. A violation of this right constitutes the tort of invasion of the right to privacy . If a fact is public information, there is no claim to privacy.

invasion of the right to privacy

The unwarranted and undesired publicity of a private fact about a person. The fact does not have to be untrue.

Examples

Secretly taking photos of another person with a cell phone camera in a men’s or women’s locker room constitutes invasion of the right to privacy. Reading someone else’s mail, wiretapping someone’s telephone, and reading someone else’s e-mail without authorization to do so are also examples of invasion of the right to privacy.

Defamation of Character

A person’s reputation is a valuable asset. Therefore, every person is protected from false statements made by others during his or her lifetime. This protection ends upon a person’s death. The tort of defamation of character requires a plaintiff to prove that:

defamation of character

False statement(s) made by one person about another. In court, the plaintiff must prove that (1) the defendant made an untrue statement of fact about the plaintiff and (2) the statement was intentionally or accidentally published to a third party.

1. The defendant made an untrue statement of fact about the plaintiff.

2. The statement was intentionally or accidentally published to a third party. In this context, publication simply means that a third person heard or saw the untrue statement. It does not require appearance in newspapers, magazines, or books.

A false statement that appears in writing or other fixed medium is libel . An oral defamatory statement is slander .

libel

A false statement that appears in a letter, newspaper, magazine, book, photograph, movie, video, and so on.

slander

Oral defamation of character.

Examples

False statements that appear in a letter, newspaper, magazine, book, photograph, movie, video, and the like, are libel. If a person verbally makes an untrue statement of fact about another person to a third person, such oral statement constitutes slander.

The publication of an untrue statement of fact is not the same as the publication of an opinion. The publication of opinions is usually not actionable. Because defamation is defined as an untrue statement of fact, truth is an absolute defense to a charge of defamation.

Hard cases make bad law.

Legal maxim

Examples

The statement “My lawyer is lousy” is an opinion and is not defamation. The statement “My lawyer has been disbarred from the practice of law,” when she has not been disbarred, is an untrue statement of fact and is actionable as defamation.

Public Figures as Plaintiffs

In New York Times Co. v. Sullivan , 1 the U.S. Supreme Court held that public officials cannot recover for defamation unless they can prove that the defendant acted with “actual malice.” Actual malice means that the defendant made the false statement knowingly or with reckless disregard of its falsity. This requirement has since been extended to public figure plaintiffs such as movie stars, sports personalities, and other celebrities.

Disparagement

Business firms rely on their reputation and the quality of their products and services to attract and keep customers. That is why state unfair-competition laws protect businesses from disparaging statements made by competitors or others. A disparaging statement is an untrue statement made by one person or business about the products, services, property, or reputation of another business. This is called the tort of disparagement .

disparagement

False statements about a competitor’s products, services, property, or business reputation.

Example

If a competitor of John Deere tractors told a prospective customer that “John Deere tractors often break down” when in fact they rarely do, that would be product disparagement.

Intentional Misrepresentation (Fraud)

One of the most pervasive business torts is intentional misrepresentation . This tort is also known as fraud or deceit. It occurs when a wrongdoer deceives another person out of money, property, or something else of value. A person who has been injured by intentional misrepresentation can recover damages from the wrongdoer. Four elements are required to find fraud:

intentional misrepresentation (fraud or deceit)

The intentional defrauding of a person out of money, property, or something else of value.

He that’s cheated twice by the same man, is an accomplice with the Cheater.

Thomas Fuller

Gnomologia (1732)

1. The wrongdoer made a false representation of a material fact.

2. The wrongdoer had knowledge that the representation was false and intended to deceive the innocent party.

3. The innocent party justifiably relied on the misrepresentation.

4. The innocent party was injured.

Item 2, which is called scienter , refers to intentional conduct. It also includes situations in which the wrongdoer recklessly disregards the truth in making a representation that is false. Intent or recklessness can be inferred from the circumstances.

Example

Matt, a person claiming to be a minerals expert, convinces 100 people to invest $10,000 each with him so that he can purchase, on their behalf, a gold mine he claims is located in the state of North Dakota. Matt shows the prospective investors photographs of a gold mine to substantiate his story. The investors give Matt their money. There is no gold mine. Instead, Matt runs off with the investors’ money. Matt intended to steal the money from the investors. This is an example of fraud: (1) Matt made a false representation of fact (there was no gold mine and he did not intend to invest their money to purchase the gold mine), (2) Matt knew that his statements were false and intended to steal the investors’ money, (3) the investors relied on Matt’s statements, and (4) the investors were injured by losing their money.

Intentional Infliction of Emotional Distress

In some situations, a victim may suffer mental or emotional distress without first being physically harmed. The Restatement (Second) of Tortsprovides that a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is liable for that emotional distress. 2 This is called the tort of intentional infliction of emotional distress , or the tort of outrage.

intentional infliction of emotional distress (tort of outrage)

A tort that says a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person is liable for that emotional distress.

The plaintiff must prove that the defendant’s conduct was “so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.” 3 The tort does not require any publication to a third party or physical contact between the plaintiff and defendant.

Example

A credit collection agency intrusively berating a debtor for being a “deadbeat debtor” in front of his family as he is exiting religious services is outrageous conduct that constitutes intentional infliction of emotional distress.

Malicious Prosecution

Businesses and individuals often believe they have a reason to sue someone to recover damages or other remedies. If the plaintiff has a legitimate reason to bring the lawsuit and does so, but the plaintiff does not win the lawsuit, he or she does not have to worry about being sued by the person whom he or she sued. But a losing plaintiff does have to worry about being sued by the defendant in a second lawsuit for malicious prosecution if certain elements are met. In a lawsuit for malicious prosecution, the original defendant sues the original plaintiff. In this second lawsuit, which is a civil action for damages, the original defendant is the plaintiff and the original plaintiff the defendant. To succeed in a malicious prosecution lawsuit, the courts require the plaintiff to prove all of the following:

malicious prosecution

A lawsuit in which the original defendant sues the original plaintiff. In the second lawsuit, the defendant becomes the plaintiff, and vice versa.

1. The plaintiff in the original lawsuit (now the defendant) instituted or was responsible for instituting the original lawsuit.

2. There was no probable cause for the first lawsuit (i.e., it was a frivolous lawsuit).

3. The plaintiff in the original action brought it with malice. (Caution: This is a very difficult element to prove.)

4. The original lawsuit was terminated in favor of the original defendant (now the plaintiff).

5. The current plaintiff suffered injury as a result of the original lawsuit.

The courts do not look favorably on malicious prosecution lawsuits because they feel that such lawsuits inhibit the original plaintiff’s incentive to sue.

Example

One student actor wins a part in a play over another student actor. To get back at the winning student, the rejected student files a lawsuit against the winning student, alleging intentional infliction of emotional distress, defamation, and negligence. The lawsuit is unfounded, but the winning student must defend the lawsuit. The jury returns a verdict exonerating the defendant. The defendant now can sue the plaintiff for malicious prosecution and has a very good chance of winning the lawsuit.

Children’s Thrill Ride

In this children’s thrill ride, the children are strapped in with their feet left dangling. The car goes up a 100-foot tower and then free-falls down, giving the riders a feeling of weightlessness. Operators of thrill rides carry liability insurance to cover any possible accidents that may occur.

Critical Legal Thinking

Should defendants that lose cases and plaintiffs that do not win cases have to pay the other side’s legal expenses? What would be the consequences of such a rule?

Unintentional Torts (Negligence)

Under the doctrine of unintentional tort , commonly referred to as ordinary negligence or negligence, a person is liable for harm that is the foreseeable consequence of his or her actions. Negligence is defined as “the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do.” 4

unintentional tort (negligence)

A doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions.

To be successful in a negligence lawsuit, the plaintiff must prove that (1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached this duty of care, (3) the plaintiff suffered injury, (4) the defendant’s negligent act was the actual cause of the plaintiff’s injury, and (5) the defendant’s negligent act was the proximate cause of the plaintiff’s injuries. Each of these elements is discussed in the paragraphs that follow.

1. Duty of Care

To determine whether a defendant is liable for negligence, it must first be ascertained whether the defendant owed a duty of care to the plaintiff. Duty of care refers to the obligation people owe each other—that is, the duty not to cause any unreasonable harm or risk of harm.

duty of care

The obligation people owe each other not to cause any unreasonable harm or risk of harm.

Examples

Each person owes a duty to drive his or her car carefully, not to push or shove on escalators, not to leave skateboards on the sidewalk, and the like. Businesses owe a duty to make safe products, not to cause accidents, and so on.

The courts decide whether a duty of care is owed in specific cases by applying a reasonable person standard . Under this test, the courts attempt to determine how an objective, careful, and conscientious person would have acted in the same circumstances and then measure the defendant’s conduct against that standard. The defendant’s subjective intent (“I did not mean to do it”) is immaterial in assessing liability.

reasonable person standard

A test used to determine whether a defendant owes a duty of care. This test measures the defendant’s conduct against how an objective, careful, and conscientious person would have acted in the same circumstances.

No court has ever given, nor do we think ever can give, a definition of what constitutes a reasonable or an average man.

Lord Goddard C.J.R.

Regina v. McCarthy, 2 Q.B. 105 (1954)

Defendants with a particular expertise or competence are measured against a reasonable professional standard . Applying this test, the courts attempt to determine how an objective, careful, and conscientious equivalent professional would have acted in the same circumstances and then measure the defendant professional’s conduct against that standard.

Examples

A brain surgeon is measured against a reasonable brain surgeon standard. A general practitioner doctor who is the only doctor who serves a small community is measured against a reasonable small-town general practitioner standard.

2. Breach of the Duty of Care

Once a court finds that the defendant actually owed the plaintiff a duty of care, it must determine whether the defendant breached that duty. A breach of the duty of care is the failure to exercise care. In other words, it is the failure to act as a reasonable person would act. A breach of this duty may consist of an action.

breach of the duty of care

A failure to exercise care or to act as a reasonable person would act.

Example

Throwing a lit match on the ground in the forest and causing a fire is a breach of a duty of care.

A breach of duty may also consist of a failure to act when there is a duty to act.

Example

A firefighter who refuses to put out a fire when her safety is not at stake breaches her duty of care for failing to act when she has a duty to act.

Passersby are generally not expected to rescue others gratuitously to save them from harm. However, most states require certain relatives—parents to children or children to parents if the children are old enough—to try to save their relatives from harm.

The following ethics feature discusses a classic case involving the issue of negligence.

Ethics Ouch! McDonald’s Coffee Is Too Hot!

McDonald’s Corporation found itself embroiled in one of the most famous negligence cases of modern times. Stella Liebeck, a 79-year-old resident of Albuquerque, New Mexico, visited a drive-through window of a McDonald’s restaurant with her grandson Chris. Her grandson, the driver of the vehicle, placed the order for breakfast. When breakfast came at the drive-through window, Chris handed a hot cup of coffee to Stella. Chris pulled over so that Stella could put cream and sugar in her coffee. Stella took the lid off the coffee cup she held in her lap and the hot coffee spilled in her lap. The coffee spilled all over Stella, who suffered third-degree burns on her legs, thighs, groin, and buttocks. Stella was driven to the emergency room and was hospitalized for seven days. She required medical treatment and later returned to the hospital to have skin grafts. She suffered permanent scars from the incident.

Stella’s medical costs were $11,000. Stella asked McDonald’s to pay her $20,000 to settle the case, but McDonald’s offered only $800. Stella refused this settlement and sued McDonald’s in court for negligence for selling coffee that was too hot and for failing to warn her of the danger of the hot coffee it served. At trial, McDonald’s denied that it had been negligent and asserted that Stella’s own negligence—opening a hot coffee cup on her lap—had caused her injuries. The jury heard the following evidence:

· McDonald’s enforces a quality-control rule that requires its restaurants and franchises to serve coffee at 180 to 190 degrees Fahrenheit.

· Third-degree burns occur on skin in just two to five seconds when coffee is served at 185 degrees.

· McDonald’s coffee temperature was 20 degrees hotter than coffee served by competing restaurant chains.

· McDonald’s coffee temperature was approximately 40 to 50 degrees hotter than normal house-brewed coffee.

· McDonald’s had received more than 700 prior complaints of people who had been scalded by McDonald’s coffee.

· McDonald’s did not place a warning on its coffee cups to alert patrons that the coffee it served was exceptionally hot.

Based on this evidence, the jury concluded that McDonald’s acted recklessly and awarded Stella $200,000 in compensatory damages, which was then reduced by $40,000 because of her own negligence, and $2.7 million in punitive damages. The trial court judge reduced the amount of punitive damages to $480,000, which was three times the amount of compensatory damages. McDonald’s now places a warning on its coffee cups that its coffee is hot. Liebeck v. McDonald’s Restaurants, P.T.S., Inc. (New Mexico District Court, Bernalillo County, New Mexico, 1994)

Ethics Questions 

1. Do you think that McDonald’s properly warned Stella Liebeck of the dangers of drinking McDonald’s hot coffee? Do you think McDonald’s acted ethically in offering Stella an $800 settlement? Was the award of punitive damages justified in this case? Why or why not?

3. Injury to Plaintiff

Even though a defendant’s negligent act may have breached a duty of care owed to the plaintiff, this breach is not actionable unless the plaintiff suffers injury or injury to his or her property. That is, the plaintiff must have suffered some injury before he or she can recover any damages. The damages recoverable depend on the effect of the injury on the plaintiff’s life or profession.

injury

A plaintiff’s personal injury or damage to his or her property that enables him or her to recover monetary damages for the defendant’s negligence.

Negligence is the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do.

B. Alderson

Blyth v. Birmingham Waterworks Co. (1856)

Examples

Suppose that a man injures his hand when a train door malfunctions. The train company is found negligent. If the injured man is a star professional basketball player who makes $5 million per year, with an expected seven years of good playing time left, this plaintiff can recover multiple millions of dollars because he can no longer play professional basketball. If the injured man is a college professor with 15 years until retirement who is making only one-fortieth per year of what the basketball player makes, he can recover some money for his injuries. However, because he makes a lot less per year than the professional basketball player and because he can continue working, albeit with more difficulty, the professor can recover much less for the same injury.

The following case involves the issues of injury and damages.

CASE 6.2 STATE COURT CASE Negligence Jones v. City of Seattle, Washington

314 P.3d 380, 2013 Wash. Lexis 955 (2013) Supreme Court of Washington

“The trial judge characterized the city’s motion as an attempt to get a ‘second bite of the apple.’ ”

—McCloud, Justice

Facts

Mark Jones was a firefighter for the city of Seattle, Washington. He was assigned to Station 33 firehouse, where he remained on duty for long shifts, including staying overnight. Mark slept in quarters on the second floor of the firehouse. One of the common features of many firehouses, including the one Mark worked in, is the pole hole in the second floor with a pole leading to the first floor. When called to action, firefighters slide down the pole to reach the first floor and their firefighting equipment and vehicles. One night, around 3:00 a.m., Mark fell 15 feet through the fire station’s pole hole. Mark told a responding medic that he had awoken to use the bathroom, which was next to the pole hole. Mark sustained both serious physical and cognitive impairments as a result of his fall. Because of his permanent impaired mental and physical injuries, Mark’s sister Meg was appointed his guardian. Meg, on behalf of Mark, sued the city of Seattle for injuries caused to Mark by the accident, alleging that the city had been negligent in failing to block accidental access to the pole hole. The jury found that the city’s negligence was the sole cause of Mark’s injuries and awarded Mark $12.75 million in damages. Seattle made a motion for a new trial, which the trial court denied. The court of appeals upheld the verdict and damages. Seattle appealed to the supreme court of Washington, seeking a new trial regarding damages.

Issue

Is the award of damages proper?

Language of the Court

The first two weeks of trial were devoted to testimony by Mark’s treating physicians, various witnesses who spoke to the general condition and layout of Station 33, to the city’s ability to prevent accidents like Mark’s, and to Mark’s demeanor, habits, and capabilities since the accident. The various physicians and therapists who took the stand uniformly testified that Mark had significant and permanent cognitive impairments. Further, the judge permitted the city to cross-examine Meg and Mark on Mark’s ability to perform physical tasks. The trial judge characterized the city’s motion as an attempt to get a “second bite of the apple” after its strategic choices proved unwise.

Decision

The supreme court of Washington upheld the damage award to the plaintiff against the city of Seattle.

Ethics Questions

1. Do traditional pole holes in fire stations pose a risk to firefighters? Should pole holes be eliminated? Was the award in this case warranted?

4. Actual Cause

A defendant’s negligent act must be the actual cause (also called causation in fact) of the plaintiff’s injuries. The test is this: “But for” the defendant’s conduct, would the accident have happened? If the defendant’s act caused the plaintiff’s injuries, there is causation in fact.

actual cause (causation in fact)

The actual cause of negligence. A person who commits a negligent act is not liable unless actual cause can be proven.

Example

Suppose a corporation negligently pollutes the plaintiff’s drinking water. The plaintiff dies of a heart attack unrelated to the polluted water. Although the corporation has acted negligently, it is not liable for the plaintiff’s death. There were a negligent act and an injury, but there was no cause-and-effect relationship between them. If, instead, the plaintiff had died from the polluted drinking water, there would have been causation in fact, and the polluting corporation would have been liable.

5. Proximate Cause

Under the law, a negligent party is not necessarily liable for all damages set in motion by his or her negligent act. Based on public policy, the law establishes a point along the damage chain after which the negligent party is no longer responsible for the consequences of his or her actions. This limitation on liability is referred to as proximate cause (also called legal cause). The general test of proximate cause is foreseeability. A negligent party who is found to be the actual cause—but not the proximate cause—of the plaintiff’s injuries is not liable to the plaintiff. Situations are examined on a case-by-case basis.

proximate cause (legal cause)

A point along a chain of events caused by a negligent party after which this party is no longer legally responsible for the consequences of his or her actions.

Example

A person is walking on a public sidewalk. When he finishes smoking a cigarette, which is still lit, he negligently tosses it and it lands close to a house. The cigarette causes a fire that burns down the house. In this instance, the smoker is the proximate cause of the damage because it is reasonably foreseeable that his action could burn down the house. If the fire jumps and burns down the adjacent house, the smoker is still the proximate cause. If the third house in the row burns, he is probably still the proximate cause. However, if the fire spreads and burns down 100 houses before it is put out (the smoker is the actual cause of the damage under the “but for” test), the smoker would not be the proximate cause of burning the one hundredth house because it would not be reasonably foreseeable that his action of throwing a lit cigarette would burn down so many houses. Where does one draw the line of liability? At the fourth house? The 20 house? The 40 house? This decision is left up to the jury.

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