Danny, age 6, grabs some rocks from the garden and throws them at the windows of the home next door, breaking them. The Homeowner sues for property damages, answer the following: (3 pts) What is the best tort theory for the Homeowner assert, identify its elements, and apply them to the facts of this case to determine if the lawsuit is viable (focus only elements, not defenses). (2 pts) Can Danny escape liability by arguing he is a child? Discuss fully (REMINDER: do not simply rely on text; lecture factors into this one). (5 pts) Pat worked as one of two research attorneys for Judge Jo, a circuit court judge serving as a trial court presiding over civil and criminal cases. Pat and the other research attorney prepared legal memoranda for Judge Jo’s review.  Each research attorney was supposed to identify their work by typing their initials at the top and bottom of each memo.  Pat was meticulous in research, and initialing work product

QUESTION

Introduction & Instructions:  This Test is worth 30 points, with up to 4 additional extra credit points.  The point value of each question is designated after its corresponding number.   Resources to use are your text, Compliments emailed to you, and lecture notes–I don’t expect or want you to use other resources.

Be sure to read the whole question before you begin writing your answer so that you can work out the proper analysis and conclusion – at times, the question gives you the issue; other times the question may focus you in the direction but leaves it to you to ID the issue).

This test focuses on TORTS (not contracts and not warranties).  the specific tort is identified; other times you are asked only to address defense(s). Write your answers separately – either typed, or handwritten legibly on separate paper.   Use the “I.R.A.C.” principles. ALWAYS include analysis (marshaling facts to the elements and a conclusion).

All the facts below are not disputed, use them.  If you believe a fact is missing or unclear from any of the following fact patterns, tell me what is missing or what you have to assume in order to complete your analysis of the law – I reserve the decision to agree or disagree with you as nothing is intended to be unclear or missing. PLEASE NOTE: this is not an invitation to change facts. GOOD LUCK!

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1. (5 pts) Danny, age 6, grabs some rocks from the garden and throws them at the windows of the home next door, breaking them. The Homeowner sues for property damages, answer the following:

• (3 pts) What is the best tort theory for the Homeowner assert, identify its elements, and apply them to the facts of this case to determine if the lawsuit is viable (focus only elements, not defenses).
• (2 pts) Can Danny escape liability by arguing he is a child? Discuss fully (REMINDER: do not simply rely on text; lecture factors into this one).

2. (5 pts) Pat worked as one of two research attorneys for Judge Jo, a circuit court judge serving as a trial court presiding over civil and criminal cases. Pat and the other research attorney prepared legal memoranda for Judge Jo’s review.  Each research attorney was supposed to identify their work by typing their initials at the top and bottom of each memo.  Pat was meticulous in research, and initialing work product. The other research attorney, however, was not; that attorney’s work varied from fair to horrible and initials were often missing.  Judge Jo had little personal contact with Pat and often was confused as to which attorney worked on which matter.  After two years of working for Judge Jo, Pat decided to seek employment in the private sector.  Pat sent resumes and obtained several interviews.  After a promising interview with one law firm, the prospective employer asked Pat’s permission to contact Judge Jo, and Pat indicated that would be fine.  The firm thereafter declined to hire Pat.  Disappointed, Pat decided to call the partner who had originally interviewed him at the firm and was told that Judge Jo stated that Pat did superficial work and had terrible research habits, often failing to “Shephardize” cases (determine if still good law).  Angered, Pat immediately resigns his job with Judge Jo and sues Judge Jo.

• (2 pts) What THEORY IN TORT must Pat be pursuing? And, what are the elements of this Tort?
• (3 pts) Assume at trial it is established as fact that Judge Jo had based his opinion of Pat on memos prepared by the other research attorney (i.e., not Pat) but which Judge Jo erroneously believed to be done by Pat. Judge Jo also revealed that he never looked for initials when reviewing memos, and that, while he very rarely spoke to Pat, he spoke in Chambers with the other research attorney regularly and occasionally socialized with the other research attorney.  What Defense must Judge Jo be pursuing? Define this defense and DISCUSS FULLY what Judge Jo must prove to prevail on it.

3. (3 points) Judy Dunne weighed over 450 pounds. For her birthday, Judy’s children bought her an exercise bike from Wal-Mart Stores. When Judy mounted the bike, she pedaled for three or four rotations. The bike then collapsed, and Judy fell off, sustaining numerous injuries. The bike was designed for people who weigh under 250 pounds (99% percent of the population) and had been tested up to 440 pounds.  The manufacturer did not specify any weight limit in marketing the bike and there was no way that Judy could have known of this weight limit.  If Judy sues the manufacturer, what tort theory should she pursue (do not go to warranty which is contractual)?  Will she win?  Discuss fully.

4. (3 pts) Bob, a driver for City Delivery Company, carelessly leaves the truck’s motor running while he makes a delivery.  The transmission engages and the truck crashes into a nearby gas station bump, igniting a fire that spreads quickly to a construction site a block away.  A burned wall collapses onto a crane, which falls on, and injures a bystander, Carol.  If Carol sues Bob for negligence, WHAT WILL BE THE CRUCIAL ELEMENT(S) to her success and DISCUSS FULLY WHETHER OR NOT (WHY) SHE WILL OR WILL NOT PREVAIL.

5. (4 pts) It’s Halloween night. Darryl, age 12 and on the shorter side for his age, went trick-or-treating dressed up as a bandit by wearing dark clothes, a pair of panty hose over his head, and carrying a toy gun that looked like a real firearm.  Darryl would ring the door-bell of a home and when the person answered, he would point his toy gun at the person’s face and say “Your money or life” and then shout “Trick or Treat.”  The first 4 homeowners laugh and give Darryl candy. At the 5^th house he went to, Darryl began his routine, but before he could say “Trick or Treat”, Patty, an elderly homeowner, screamed and slammed the door in Darryl’s face.  Five minutes later, Patty suffered a heart attack.  If Patty sues Darryl for intentional infliction of emotional distress, will she prevail? Discuss fully. (Note minors can be sued for tort so being under age is not an absolute defense)

6. (3 pts) Pat, who suffers from obesity, decides that he wants to undergo an operation that will reduce the size of his stomach, commonly referred to as stomach stapling.  Pat is competent and specifically instructs that he wants to be consulted on any non- life threatening decisions which may appear during the operation.  During the surgery, the doctor unilaterally decides to reduce the size of Pat’s chest to compliment the stomach reduction.  Pat sues the doctor for performing the chest reduction surgery.  What is Pat’s BEST TORT theory against the doctor? Discuss WHY AND WHETHER he will he prevail.

7. (4 pts) Joe drives a motorcycle in a state where helmet use is required by statute and with a statute barring recovery for an injury in a motor vehicle accident where the Plaintiff is more than 50% at fault. 

While driving one day, Joe does not wear his helmet because he thinks it makes him look goofy.  As Joe is driving on the highway at the posted speed limit, Dana is in a car that pulls out directly in front of Joe, and effectively cuts him off.  Joe runs into Dana’s car and receives a severe, permanent head injury. Medical evidence reveals that, had Joe been wearing his helmet, he would not have received the head injury.  Joe (through his conservator/next best friend) sues Dana for negligence, and among other things, seeks damages for the head injury.    In defending the action, Dana asserts she cannot be responsible for the head injury.  Is she right? – In answering this question, discuss the (1) key element(s) of negligence she must be focusing on (see Ch 7 and Ch 8), and (2) any defense discussed in class in refining Ch 9, you deem to be key.

8. (4 pts) Phil was crossing the street using the crosswalk, but did not look both ways before crossing. While walking, Phil was hit by a car driven by Andrew, and immediately afterwards, Phil was struck by a car driven by Dan.  As a result of the collisions, Phil suffered severe injuries. It is impossible to determine which portion of Phil’s injuries were caused by Andrew and which by Dan

• (2 pts) Phil sues Dan, but not Andrew in tort for negligence because Andrew is insolvent. Facts reveal that both Dan and Andrew were negligent. Explain whether Dan can be held liable for the entire injury suffered by Phil … identify the legal theory, define it, and apply it to the facts of this case.

• (2 pts) Under Michigan law, is there a defense Dan can assert against Phil (Plaintiff)? If so, identify it, define it, and apply it to the facts. [You need only consult our tool box to answer this question; it’s not necessary to do extra research]

9. (3 pts) Pat, obviously drunk, took refuge in D’s Department Store during a winter rainstorm. Allen, store employee/floorwalker, noticed Pat and asked Pat to leave. Pat started to stammer away, but then turned around, grabbed Allen’s sleeve and said “You are lucky, if we were on the street, I would punch you in the nose.” Allen then took Pat by his arm and escorted him out of the building at the employee’s exit.  While walking outside down the alley outside the employee’s exit, Pat slipped in a puddle and broke his wrist.  Pat sues D’s Department Store and Allen for battery and negligence. Identify and discuss the theory under which D’s Department store can be held liable for the actions of Allen (employee), and apply it to determine if Pat can use it to hold D’s Department store liable If he proves that Allen was negligent and/or committed the tort of battery.

10. ANSWER

11. The Importance of Initialing Work Product: Enhancing Accountability and Efficiency in the Court System

    The best tort theory for the Homeowner to assert in this case is the theory of negligence. Negligence is a common tort theory that requires the plaintiff to prove four elements: duty, breach of duty, causation, and damages.

    Duty

     The Homeowner must establish that Danny owed a duty of care towards them. In this case, the duty of care would typically be owed by individuals to refrain from causing foreseeable harm to others or their property.

    Breach of Duty

    The Homeowner needs to demonstrate that Danny breached his duty of care. By throwing rocks at the windows of the home next door, Danny engaged in a dangerous activity that could reasonably be foreseen to cause property damage (BCR QUESTION.docx – Question 1 General Principles of Delicate Kulpa: For a Claim to Be Successful  the Defendant Must Have a Fault  Kulpa . In English | Course Hero, 2021). Therefore, his actions can be considered a breach of the duty of care.

    Causation

    The Homeowner must show that Danny’s actions were the actual and proximate cause of the damages. It should be established that the rocks thrown by Danny directly caused the windows to break, resulting in the property damage suffered by the Homeowner.

    Damages

     The Homeowner needs to demonstrate that they suffered actual damages as a result of Danny’s actions. In this case, the broken windows represent the property damage suffered by the Homeowner.

    By applying these elements to the facts of the case, it appears that the lawsuit is viable as long as the Homeowner can prove each element of negligence.

    Danny cannot escape liability by arguing that he is a child. While the age of the defendant may be a relevant factor to consider, it is not an absolute defense that automatically absolves a child of liability for their actions. The concept of “age of reason” or “age of accountability” recognizes that younger children may not have the same capacity for judgment and understanding as adults, and their actions may be evaluated based on their age and level of maturity.

    However, even young children can be held accountable for their actions if they can understand the difference between right and wrong and appreciate the consequences of their behavior (Kkienerm, n.d.). The court will consider factors such as the child’s age, intelligence, and experience to determine if the child had the capacity to understand the nature of their actions and the potential harm they could cause.

    In this case, Danny’s age of 6 might be considered by the court, but it does not automatically absolve him of liability. The court will likely evaluate his level of maturity and capacity to understand the consequences of throwing rocks at the windows. If the court determines that Danny had the ability to appreciate the wrongfulness of his actions and the potential harm they could cause, he may still be held liable for the property damages.

     Pat worked as one of two research attorneys for Judge Jo, a circuit court judge presiding over civil and criminal cases. Pat and the other research attorney were responsible for preparing legal memoranda for Judge Jo’s review. Each research attorney was supposed to identify their work by typing their initials at the top and bottom of each memo.

    Pat, being meticulous in research, adhered to the requirement and consistently initialed their work product. This practice of initialing serves multiple purposes. Firstly, it ensures accountability by clearly identifying the responsible party for the legal memorandum. It helps Judge Jo and other court staff members to differentiate between the work of different research attorneys, making it easier to attribute credit or seek clarification when necessary.

    Secondly, initialing provides a level of transparency and traceability to the work process. By having the initials at the top and bottom of each memo, it becomes evident who worked on the document and who can be held responsible for its contents (Fontinelle, 2023). This can be crucial for maintaining the integrity of the court proceedings and ensuring that errors or inaccuracies can be addressed and rectified appropriately.

    Furthermore, initialing also contributes to the organization and management of the court’s administrative tasks. With multiple research attorneys working on various legal memoranda, the practice of initialing allows for efficient tracking and coordination of the work product. It facilitates a streamlined workflow and assists in maintaining a clear record of the contributions made by each research attorney.

    In summary, Pat’s meticulousness in initialing their work product serves the purpose of accountability, transparency, traceability, and organizational efficiency within the court system. It helps to ensure that the legal memoranda prepared by research attorneys can be appropriately attributed, managed, and reviewed within the context of Judge Jo’s duties as a circuit court judge presiding over civil and criminal cases.

    References

    BCR QUESTION.docx – Question 1 General Principles of Delicate Kulpa: For a claim to be successful  the defendant must have a fault  Kulpa . In English | Course Hero. (2021, May 24). https://www.coursehero.com/file/94550436/BCR-QUESTIONdocx/ 

    Fontinelle, A. (2023). Introduction to Accounting Information Systems (AIS). Investopedia. https://www.investopedia.com/articles/professionaleducation/11/accounting-information-systems.asp 

    Kkienerm. (n.d.). Crime Prevention & Criminal Justice Module 13 Key Issues: Topic four – Justice for children in conflict with the law. https://www.unodc.org/e4j/en/crime-prevention-criminal-justice/module-13/key-issues/4–justice-for-children-in-conflict-with-the-law.html