THE LAW PROFESSOR™
TORT LAW ESSAY SERIES
ESSAY QUESTION #6
MODEL ANSWER
Flora owns a busy florist shop on a major thoroughfare near a dangerous intersection. The
intersection has been the site of recent accidents, some involving cars exiting Flora’s
parking lot. Because of this situation she hired Attendant to direct traffic into and out of the parking lot and placed a sign at the lot’s entrance, visible from the street, which states:
“Caution, Cars Entering Street.” Flora also instructed Attendant to make sure that the
street was clear before sending a car out, but she provided no other instructions or training. She was aware that Attendant was sometimes careless in his work. Attendant, given the clothes he wears, could not be mistaken for a police officer.
One morning, distracted by the line of honking cars that wished to exit the lot, Attendant
waved Customer’s car out of the parking lot with only a hurried glance to determine if the
street was clear. Customer heeded Attendant’s signal to exit the lot, but was distracted by
her crying baby in the back seat and did not check to see if the street was clear.
Businessman, who was driving toward Flora’s shop, was dialing his cellular phone, and did
not see Customer’s car exiting the lot.
Businessman, whose driver’s license had expired, collided with Customer. Both drivers
were injured and both cars were damaged.
It is a crime to drive with an expired driver’s license. It is also a crime to employ a parking
attendant who does not possess a special parking attendant license which costs $50, and
requires three hours of safety training relating to operating a parking lot. Any employer of
a parking attendant must obtain the license on behalf of the employee and is responsible
for ensuring that the employee attends the three hours of safety training. Flora did neither.
On what theory or theories might an action or actions for damages be brought, and what
defenses might be anticipated by:
1. Customer against Businessman? Discuss.
2. Customer against Flora? Discuss.
3. Businessman against Flora? Discuss.
4. Customer and Businessman against Attendant? Discuss.
MODEL ANSWER
I. CUSTOMER V. BUSINESSMAN.
NEGLIGENCE. A prima facie case of negligence requires that plaintiff show that defendant owes them a duty to exercise reasonable care, that the defendant breached the applicable standard of care, and that the breach was the actual and proximate cause of the plaintiff’s injury. Defendant may assert the defenses of contributory negligence, comparative negligence and / or assumption of the risk, depending on the jurisdiction.
DUTY. Almost all people owe others a duty of reasonable care to act as an objectively reasonable person would act in similar circumstances. In Palsgraf, the Cardozo majority view posits a duty extends just to those in the zone of danger which was created by defendant’s conduct. Alternately, the Andrews minority view is that a duty extends to everyone. The zone of danger, here, would be anywhere near where the businessman was driving. Since customer was on the roadway when the accident occurred, customer was within the zone of danger created by the negligence of businessman, and under both Cardozo and Andrews, a duty was owed.
STANDARD OF CARE. In general, a defendant owes a duty of reasonable care, to act as a reasonable person in similar circumstances. Here, businessman will be held to the standard of reasonable adult driver in a congested driving situation.
BREACH OF DUTY. Where defendant did not act to reasonably protect plaintiff from foreseeable harm. There are three main ways in which breach of duty may be shown, including the Hand Formula, violation of a statute through negligence per se, or through the doctrine of res ipsa loquitur / the thing speaks for itself.
HAND FORMULA. B<PxL. Defendant’s burden to have acted differently, or the reasonable precaution cost, is balanced against the probability of harm (P), multiplied by the severity of harm (L). Defendant breaches their duty where the burden is less than the probability times the liability. Here, businessman was dialing his cell phone at the time of the accident. Reasonable drivers would pull over to the side of the road, or wait until they were not driving, before dialing their cell phone, because the probability of harm is very high when one is not attending to the road while driving. Therefore, businessman breached his duty of reasonable care.
NEGLIGENCE PER SE. Plaintiff may establish defendant’s duty and its breach if they can show that defendant violated a safety statue / regulation / ordinance.
Businessman did not have a current driver’s license. It is unclear whether businessman needed only to get another license, or whether he needed to take a test to receive his license, in which case he would have been tested on safety precautions, and on how to keep safe on roadways. On balance, the facts indicate that defendant needed only to renew his license, and thus negligence per se would not apply. However, to the extent that defendant needed to be tested on safety regulations, negligence per se may apply.
1. Plaintiff in Protected Class. The plaintiff must be part of the class of people the statute is meant to protect. Plaintiff was driving the roadways, and would be part of the protected class.
2. Injury Sort That Meant to Be Protected Against. The injury suffered by plaintiff must be the same type of injury that the statute intended to protect against. Customer received injury to her car and to her person, which is the type of injury to be protected against.
3. Defendant Has No Excuses. Plaintiff must show that defendant had no viable excuses for violation of the statute. An excuse may exist where defendant attempted to comply with the statute, defendant encountered an emergency situation, or there would have been a greater risk of harm had defendant complied with the statute. None applicable, here.
ACTUAL CAUSE.
A defendant’s conduct must have actually caused harm to plaintiff. Additionally, where two defendants act separately, and both of their acts would be sufficient for actual cause, then both defendants will be liable. Here, but for businessman using his cell phone while driving, customer would not have been injured. There were other factors involved, but use of the cell phone while driving would be considered a substantial factor.
PROXIMATE CAUSE. Defendant is only liable for consequences which are reasonably foreseeable at time of injury, and which are not too remote or improbable.
FORESEEABILITY. Was the Injury Foreseeable to Defendant? Yes, many types of driving accidents may occur when one is not attending to their driving. It is therefore, foreseeable, that Customer might get hurt by defendant’s actions.
INTERVENING EVENTS. Only superseding intervening events, which are unforeseeable, will break the chain of defendant’s causation, and this includes unforeseen criminal behavior or willful wrongdoing by third parties, unforeseen acts of God, or grossly negligent medical care. Here, overall, there are a number of intervening events, including customer attending to child, parking attendant waiving customer out of the parking lot without looking, and Flora’s lack of supervision of parking attendant, however, none meet the requirements to supersede. Therefore, there are no intervening events that break the causal chain.
DAMAGES. Customer received injury to her person, and to her car, for which she may be compensated for.
DEFENSES.
CONTRIBUTORY NEGLIGENCE. A total bar to recovery for plaintiff, and where plaintiff’s unreasonable conduct proximately causes their harm, also called the doctrine of unavoidable consequences. Customer was attending to her child, and did not look before leaving the parking lot, wholly relying on the direction of parking attendant. However, inasmuch as the parking attendant was directing the traffic, her conduct was reasonable, given the circumstances.
COMPARATIVE NEGLIGENCE. Comparative negligence apportions fault by plaintiff prior to the injury, to proportionally reduce plaintiff’s recovery.
PURE AND MODIFIED. In a pure comparative negligence jurisdiction, the plaintiff will recover something, while in a modified comparative negligence jurisdiction the plaintiff will only recover up to a fifty percent liability. Customer should have looked for possible traffic, instead of attending to her child, and her recovery will be reduced proportionately.
ASSUMPTION OF THE RISK. Implied assumption of the risk is strictly construed by the courts, and will exist as a defense where plaintiff, by their actions, showed an implied awareness of the risk of harm, and then acted in a voluntary manner. Customer took a risk by attending to her child, and not looking at the traffic, herself.
REMEDIES. Customer will be entitled to medical expenses, pain and suffering, out-of-pocket losses, loss of bodily functions, future damages, and damages for the loss of the ability to enjoy life.
TRESPASS TO CHATTELS V. CONVERSION.
Trespass to chattels is an intentional interference with ownership / possession of personal property, which is minor, allowing partial damages to the plaintiff if there is actual damage or deprivation of use of chattel. As related to trespass to chattels, conversion is: longer in duration, more inconvenient to plaintiff, more harmful to chattel, and sometimes entails bad faith of defendant. Here, we are told that the car was damaged, but need more information to determine the extent of damage, to determine whether the damage constitutes mere trespass to chattels, or the more severe tort of conversion.
II . CUSTOMER V. FLORA.
NEGLIGENCE.
DUTY. Supra. The accident took place right outside of the parking lot, and therefore was within the zone of danger created by Flora’s negligence. Therefore, there is a duty of care under both Cardozo and Andrews.
STANDARD OF CARE.
Flora would be held to a standard of a reasonable professional parking lot owner. We are told that this is a busy intersection, with previous accidents. Therefore, her duty of care would be significantly high, to make the parking lot safe for customers and other foreseeable plaintiffs.
BREACH OF DUTY. Supra.
HAND FORMULA. Here, Flora was aware of previous accidents, yet did not spend any time or money on training and supervision of the parking attendant, as a reasonable parking lot owner would have done. Therefore, she breached her duty of reasonable care.
Negligence per se. Supra. Here, a safety law requires that employers of parking attendants make their parking attendants attend three hours of safety training, and purchase a $50 parking attendant license. It is clear that the purpose of the law is to protect the public against dangerous and congested parking lot situations.
Injury Intended to Protect Against. Customer received injury to her person and her car, which is the types of injuries that would have been prevented with adequate parking attendant supervision.
Class of Persons. Here, the class of persons meant to be protected, are drivers and pedestrians, and Customer was a driver.
Excuses. None are applicable. Therefore, Flora breached her duty of care under a negligence per se discussion.
ACTUAL CAUSE. Supra.
But for the lack of proper training and supervision of the parking attendant, customer would not have been harmed. There were other factors involved, but the lack of supervision would be considered a substantial factor.
PROXIMATE CAUSE. Supra.
FORESEEABILITY. It is foreseeable that if Flora did not properly train and supervise her parking attendant, that many types of accidents might occur.
INTERVENING EVENTS. Yes, but none would supersede to break the causal chain.
DAMAGES. Supra.
DEFENSES. Supra.
REMEDIES. Supra.
TRESPASS TO CHATTELS V. CONVERSION. Supra. Here, we are told that the car was damaged, but need more information to determine the extent of damage, to determine whether the damage constitutes mere trespass to chattels, or the more severe tort of conversion.
III. BUSINESSMAN V. FLORA.
NEGLIGENCE.
DUTY. Supra.
STANDARD OF CARE. Supra.
BREACH OF DUTY. Supra. Flora could have made the roadway which businessman was driving on, considerably safer by merely following the safety regulations she was required to comply with. Thus, she breached her duty under both the Hand formula, and negligence per se.
ACTUAL CAUSE. Supra.
Here, but for Flora failing to properly supervise the parking attendant, businessman would not have been injured. There were other factors involved, but improper supervision would be considered a substantial factor.
PROXIMATE CAUSE. Supra.
FORESEEABILITY. Yes, if is foreseeable that accidents will occur if safety regulations are not followed. It is true that businessman was not a customer, but he would be considered a foreseeable plaintiff because anyone that passed the parking lot would be a foreseeable plaintiff.
INTERVENING EVENTS. Yes, but none supersede to break the causal chain.
DAMAGES. Plaintiff suffered injury to their person and their car.
DEFENSES. Supra. Here, businessman was dialing his cell phone while driving. Such activity is both unreasonable, and businessman would thus be seen to have assumed a risk of harm, and to have contributed to his injuries.
REMEDIES. Supra.
IV. CUSTOMER and BUSINESSMAN V. ATTENDANT.
VICARIOUS LIABILITY / Respondeat Superior. An employer is jointly responsible for the actions of their employees, while the employees were acting within the scope of their employment duties.
EMPLOYEE. Employees are those that work directly under the supervision of their employer. Here, parking attendant was working directly for Flora, and we are not told that he was an independent contractor, over which Flora would have had less control. Further, the safety law requires significant supervision of parking attendants, indicating further that parking attendant was an employee.
SCOPE OF EMPLOYMENT. The employee must be enacting the furtherance of the business interests of employer at time of the negligent act. Here, the parking attendant was directing traffic out of the parking lot at the time of the accident, and was therefore acting within the scope of his employment. Parking attendant was not engaged in extraneous activity, through frolic and detour, nor was parking attendant engaged in unforeseen criminal activity, therefore, Flora will be liable for the negligence of parking attendant under respondeat superior.
NEGLIGENCE.
DUTY.
STANDARD OF CARE. The parking attendant will be held to a standard of a reasonable professional parking attendant, in same or similar circumstances.