Essay 101 Flashcards
ISSUE OUTLINE
Homeowner kept a handgun on his bedside table in order to protect himself against intruders. A statute provides that “all firearms must be stored in a secure container that is fully enclosed and locked.” Burglar broke into Homeowner’s house while Homeowner was out and stole the handgun.
Burglar subsequently used the handgun in an attack on Patron in a parking lot belonging to Cinema. Patron had just exited Cinema around midnight after viewing a late movie. During the attack, Burglar approached Patron and demanded that she hand over her purse. Patron refused. Burglar drew the handgun, pointed it at Patron, and stated, “You made me mad, so now I’m going to shoot you.”
Patron fainted out of shock and suffered a concussion. Burglar took her purse and fled, but was later apprehended by the police. Cinema had been aware of several previous attacks on its customers in the parking lot at night during the past several years, but provided no lighting or security guard.
Under what theory or theories, if any, might Patron bring an action for damages against Homeowner, Burglar, or Cinema? Discuss.
ISSUES CHECKLIST
I. P V. H
A. Negligence
1. Duty
a. To whom the duty is owed
b. Standard of care
2. Breach
a. Negligence per se
3. Causation
a. Actual cause
b. Proximate cause
4. Damages
5. Defenses
a. Contributory negligence
b. Comparative negligence
c. Assumption of the risk
II. P V. B
A. Assault
B. Battery
C. IIED
D. NIED
E. Trespass To Chattels
F. Conversion
G. False Imprisonment
III. P V. C
A. Negligence
1. Duty
a. To whom the duty is owed
b. Standard of care
2. Breach
3. Causation
a. Actual cause
b. Proximate cause
4. Damages
5. Defenses
ATTACK OUTLINE - P v H
Homeowner kept a handgun on his bedside table in order to protect himself against intruders. A statute provides that “all firearms must be stored in a secure container that is fully enclosed and locked.” Burglar broke into Homeowner’s house while Homeowner was out and stole the handgun.
Burglar subsequently used the handgun in an attack on Patron in a parking lot belonging to Cinema. Patron had just exited Cinema around midnight after viewing a late movie. During the attack, Burglar approached Patron and demanded that she hand over her purse. Patron refused. Burglar drew the handgun, pointed it at Patron, and stated, “You made me mad, so now I’m going to shoot you.”
Patron fainted out of shock and suffered a concussion. Burglar took her purse and fled, but was later apprehended by the police. Cinema had been aware of several previous attacks on its customers in the parking lot at night during the past several years, but provided no lighting or security guard.
Under what theory or theories, if any, might Patron bring an action for damages against Homeowner, Burglar, or Cinema? Discuss.
ISSUES CHECKLIST
I. P V. H
A. Negligence
1. Duty
a. To whom the duty is owed
b. Standard of care
2. Breach
a. Negligence per se
3. Causation
a. Actual cause
b. Proximate cause
4. Damages
5. Defenses
a. Contributory negligence
b. Comparative negligence
c. Assumption of the risk
I. PATRON (P) V. HOMEOWNER (H)
Negligence
Negligence is conduct without wrongful intent that falls below the minimum degree of ordinary care imposed by law to protect others against unreasonable risk of harm. A prima facie case for negligence consists of four elements: (i) duty; (ii) breach; (iii) causation; and (iv) damages.
Duty
An analysis of duty requires an examination of to whom the duty is owed and what the duty entails (otherwise known as the standard of care).
To whom the duty is owed
The majority rule (the “Cardozo view”) is that a duty of care is owed to the plaintiff only if she is a member of the class of persons who might be foreseeably harmed as a result of the defendant’s negligent conduct. This means a defendant is liable for negligence only to those plaintiffs who are “within the zone of foreseeable harm.” The minority view (the “Andrews view”) states that if the defendant can foresee harm to anyone as a result of his negligence, then a duty is owed to everyone (foreseeable or not) injured as a result of his breach. In this case, P was arguably in the zone of danger because if H leaves his gun unsecured in his home and someone steals it, it is foreseeable that the thief would use the gun to commit a crime and/or cause harm to another person.
Therefore, under both the majority and minority rules, P is owed a duty of care.
Standard of care
In most cases, the standard of care imposed is that of a reasonably prudent person under the circumstances as measured by an objective standard. Therefore, H has a duty to act like a reasonably prudent gun owner.
Breach
The defendant will be in breach of his duty to the plaintiff if he fails to meet the applicable standard of care. Although H kept a handgun on his bedside table in order to protect himself against intruders, doing so constitutes a breach of his duty. By leaving the (presumably) loaded handgun out in the open, he has created a risk of harm to himself, visitors, and future victims of intruders. Most gun owners have safes that their guns are kept in at all times. A reasonable gun owner would at least put the gun away whenever he wasn’t home. After all, if he came home and an intruder was already there, then the intruder would likely have found the gun with greater ease than if it had been put away in a drawer, safe, etc. H’s act of leaving the handgun on his bedside table is a breach of his duty.
Negligence per se
P may also attempt to invoke the doctrine of negligence per se. When a statute or administrative regulation defines the standard of reasonable conduct, that standard supersedes common law standards. The plaintiff may establish duty and breach by proving that: (i) he was in the class of people intended to be protected by the statute; (ii) the harm was of the type intended to be protected; and (iii) the harm was proximately caused by defendant’s violation of the statute.
With respect to the first requirement, H will argue that P was not in the class of persons intended to be protected by the statute because the requirement that guns be stored in a secure container seems to be intended to protect children in the home. It does not seem to protect people who will be harmed by guns that are stolen. If that were the case, the requirement might be that guns be kept in a hidden location, or that they must be kept in rooms with locked doors, but not necessarily in “secure containers.” P will argue that the statute is broader, and legislative intent may show that it was designed to protect all people who might be injured by guns. This why they specified that the gun be in a locked container. Although not hidden, this would deter someone from taking the gun because they might not be able to cut the lock or decipher the lock code. This is a close call, but the court will probably conclude that P was within the class of persons intended to be protected.
As for the second requirement, P will argue that her harm is the type the statute was designed to protect against, because it was designed to protect people from being injured by handguns. Although a bullet didn’t injure her, the handgun arguably injured her because she fainted from shock at having one pointed at her. The court will likely agree.
Finally, with regards to the third requirement, P’s injuries were not proximately caused by H’s failure to lock the gun in a container (see discussion below).
Thus, because the third requirement is not satisfied, it is likely P will not be able to establish breach based on a negligence per se argument. However, P can still establish breach based upon a reasonable person standard.
Causation
The plaintiff must prove that the defendant’s actions were both the actual cause and proximate cause of his injury.
Actual cause
If the plaintiff’s injury would not have occurred but for the defendant’s tortious acts, then the defendant’s conduct is the actual cause of the harm. If there is more than one actual cause, the defendant is the actual cause of the injury when the defendant’s conduct was a substantial factor in causing the damages. Here, but for H leaving the handgun in a visible place, Burglar (B) would not have been able to find it and then use it on P. Therefore there is actual causation.
Proximate cause
To prove proximate causation, the plaintiff must show that her injuries were the foreseeable result of the defendant’s conduct.
In this case, H will argue that it was not foreseeable that someone would break in, steal the gun, and use it to commit a crime or tort against someone else. Typically, the court finds that criminal acts of third parties are superseding intervening causes, meaning that they break the chain of causation. H will argue B’s burglary and subsequent assault should break the chain. P, however, will argue that it was foreseeable this harm would occur because people often steal guns and cash when they break into homes, and homes are broken into every day. Further, guns are only useful for two purposes: shooting and threatening to shoot. The latter is exactly what B did to P. However, the key distinction in this case is that P was not injured because H left his handgun on the table, but rather because she refused to give B her purse and he threatened to shoot her for that reason. If she had handed over the purse, he would not have taken out the gun.
Although it is a close call, the court will likely agree with H and find no proximate cause.
Damages
If P were to succeed in showing proximate cause, she would also need to show damages in order to succeed in her claim against H. To recover damages, the plaintiff must prove actual injury and not just economic loss. In this case, she will claim that the damages were the shock she suffered, the concussion, and any emotional damages suffered.
On balance, assuming the court finds proximate cause lacking, H will not be liable to P for negligence. However, if the court finds there is proximate cause, then H will be liable, barring any applicable defenses.
Defenses
Contributory negligence
Contributory negligence occurs when a plaintiff fails to exercise reasonable care for her own safety and thereby contributes to her own injury. In a contributory negligence jurisdiction, the plaintiff’s negligence is a complete bar to recovery. H might argue that P owed a duty to exercise care for her own safety, and failed to do so because she saw a movie late at night, was approached by a burglar who demanded her purse, and failed to give it to him. This was the actual cause of her harm and also a foreseeable result of her failing to give over the purse. However, a court would likely find that a reasonable person would not necessarily give over her purse, because she might think that a security guard could come help her or that the burglar was not armed. This would depend on whether P knew it was an area where attacks had happened before and if she saw the gun in B’s pocket before he drew it.
On these facts, P was likely not negligent, so there was no contributory negligence.
Comparative negligence
In a pure comparative negligence jurisdiction, the plaintiff’s negligence is not a complete bar to recovery, but her damages are reduced by the proportion of the total harm that is attributable to the plaintiff’s own conduct. For the reasons discussed above, comparative negligence is also not a valid defense on these facts.
Assumption of risk
In general, parties can contract to disclaim liability for negligence. Voluntary and knowing assumption of the risk is a complete bar to recovery in contributory negligence jurisdictions and in a small number of the comparative fault jurisdictions. In most comparative fault jurisdictions, a plaintiff’s assumption of a risk will reduce his recovery in proportion to degree of fault, but it will not be a complete bar to recovery.
Here, whether P voluntarily and knowingly assumed a risk would depend on whether P knew Cinema’s (C) parking lot was a dangerous area. P will argue that she did not know that there had been several attacks on C’s patrons over the past years. H will counter that even if P did not know about the previous attacks, she should know that a woman leaving an establishment by herself around midnight might open herself up to dangerous encounters with people of a criminal nature. However, the fact that it can be dangerous for a woman to be by herself in public late at night does not mean that the woman voluntarily and knowingly assumes the risk of being held up at gunpoint by a burglar. Thus, this defense is not valid.
ATTACK OUTLINE - P v B
Homeowner kept a handgun on his bedside table in order to protect himself against intruders. A statute provides that “all firearms must be stored in a secure container that is fully enclosed and locked.” Burglar broke into Homeowner’s house while Homeowner was out and stole the handgun.
Burglar subsequently used the handgun in an attack on Patron in a parking lot belonging to Cinema. Patron had just exited Cinema around midnight after viewing a late movie. During the attack, Burglar approached Patron and demanded that she hand over her purse. Patron refused. Burglar drew the handgun, pointed it at Patron, and stated, “You made me mad, so now I’m going to shoot you.”
Patron fainted out of shock and suffered a concussion. Burglar took her purse and fled, but was later apprehended by the police. Cinema had been aware of several previous attacks on its customers in the parking lot at night during the past several years, but provided no lighting or security guard.
Under what theory or theories, if any, might Patron bring an action for damages against Homeowner, Burglar, or Cinema? Discuss.
II. P V. B
A. Assault
B. Battery
C. IIED
D. NIED
E. Trespass To Chattels
F. Conversion
G. False Imprisonment
II. P V. B
Assault
Assault is the plaintiff’s reasonable apprehension of an imminent harmful or offensive contact caused by the defendant’s action or threat, with the intent to cause either the apprehension of such contact or the contact itself.
Here, B acted intentionally when he approached P and demanded that she hand over her purse. He acted in a physically threatening manner in order to achieve his goal of obtaining P’s purse. Further, when she refused, he pulled out a gun. Having a gun pointed at someone would cause reasonable apprehension of an imminent harmful or offensive contact (i.e., being shot). P was apprehensive of this imminent contact, as indicated by her fainting out of shock. This apprehension was reasonable because, as he pointed the handgun at P, B said “You made me mad, so now I’m going to shoot you.” When confronted with a handgun, along with threatening words indicating they will be shot, any reasonable person would be apprehensive of being shot.
As such, P will succeed on an assault claim.
Battery
A battery occurs when the defendant causes a harmful or offensive contact with the person of another and acts with the intent to cause such contact or the apprehension of such contact. The act must in fact result in contact of a harmful or offensive nature. Contact with anything connected to the plaintiff’s person qualifies as contact with the plaintiff’s person for the purposes of battery. The plaintiff need not be aware of the contact when it occurs in order to recover.
Here, B did not touch P. However, B took P’s purse off of her person when she was on the ground with a concussion. B approached P and demanded she hand over her purse. When she refused to hand it over, he pointed the gun at her, told her he was mad, and said he would shoot her. P fell to the ground from shock and suffered a concussion. Although B did not actually touch P, her purse was connected to her when she was on the ground.
Thus, when B took P’s purse after she fainted, this contact was sufficient to constitute battery. This would still be true even if P was unconscious since she would not need to be aware of the contact to recover.
Intentional Infliction of Emotional Distress (IIED)
A defendant is liable for intentionally or recklessly acting with extreme and outrageous conduct that causes the plaintiff severe emotional distress. Conduct is extreme or outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society.
Pulling out a deadly weapon and threatening to use it unless another person gives up their property is clearly extreme and outrageous since such conduct is illegal. B’s act was intentional, as evidenced by the fact that he said, “You made me mad” as he pulled out the gun. Fainting from shock is likely sufficient to constitute severe emotional distress, especially because it is a physical manifestation of emotional distress.
P will likely succeed on an IIED claim.
Negligent Infliction of Emotional Distress
A defendant will be liable for negligent infliction of emotional distress when his negligence creates a foreseeable risk of physical injury to the plaintiff through a threat of physical impact that results in emotional distress. The emotional distress generally must result in some form of bodily harm.
As B’s act was intentional, this will not apply. However, if it were somehow found to be negligent instead, this would apply because P suffered physical manifestations in the form of fainting and getting a concussion.
Trespass to Chattels
A defendant is liable for trespass to chattels if he intentionally interferes with the plaintiff’s right of possession by either: (i) dispossessing the plaintiff of the chattel; or (ii) using or intermeddling with the plaintiff’s chattel.
Here, B intended to interfere with P’s right of possession because he threatened her both verbally and with a gun with the end goal of gaining possession of P’s purse. Further, he actually took P’s purse off her person after she fainted and got a concussion. B’s conduct constitutes dispossession because he took the purse and fled. Thus, P will likely succeed on a trespass to chattels claim.
Conversion
A defendant is liable for conversion if he intentionally commits an act depriving the plaintiff of possession of her chattel or interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff of the use of the chattel. The plaintiff’s damages are the chattel’s full value at the time of the conversion.
As explained above, B meets all of the elements of trespass to chattels, which differs from conversion only with respect to degree of interference. P’s purse was likely returned when B was apprehended by police, but without knowing how long she was without possession of her purse or its subsequent condition upon return, it is unclear whether the proper claim is for conversion or trespass to chattels. The longer the deprivation, however, the more likely conversion is the more appropriate claim.
False Imprisonment
False imprisonment occurs when the defendant acts intending to confine or restrain the plaintiff within boundaries. Those actions must directly or indirectly result in such confinement, and the plaintiff must either be conscious of the confinement or harmed by it.
B will argue that P was never physically restrained, nor was she confined because the altercation took place in a wide open parking lot. However, the defendant may confine or restrain the plaintiff through the use of threats, in addition to physical barriers or force. P was threatened by B’s words combined with him pointing a gun at her. Since P couldn’t outrun a gun, B left her with no means of escape. Finally, P was aware of the confinement because she fainted in shock.
Because of the above, P will likely succeed on a false imprisonment claim.
ATTACK OUTLINE P v C
Homeowner kept a handgun on his bedside table in order to protect himself against intruders. A statute provides that “all firearms must be stored in a secure container that is fully enclosed and locked.” Burglar broke into Homeowner’s house while Homeowner was out and stole the handgun.
Burglar subsequently used the handgun in an attack on Patron in a parking lot belonging to Cinema. Patron had just exited Cinema around midnight after viewing a late movie. During the attack, Burglar approached Patron and demanded that she hand over her purse. Patron refused. Burglar drew the handgun, pointed it at Patron, and stated, “You made me mad, so now I’m going to shoot you.”
Patron fainted out of shock and suffered a concussion. Burglar took her purse and fled, but was later apprehended by the police. Cinema had been aware of several previous attacks on its customers in the parking lot at night during the past several years, but provided no lighting or security guard.
Under what theory or theories, if any, might Patron bring an action for damages against Homeowner, Burglar, or Cinema? Discuss.
III. P V. C
A. Negligence
1. Duty
a. To whom the duty is owed
b. Standard of care
2. Breach
3. Causation
a. Actual cause
b. Proximate cause
4. Damages
5. Defenses
III. P V. C
Negligence
Patron must prove the same elements against C as she did against H in order to be successful in a claim of negligence.
Duty
An analysis of duty requires an examination of to whom the duty is owed and what the duty entails (otherwise known as the standard of care).
To whom the duty is owed The majority rule (the “Cardozo view”) is that a duty of care is owed to the plaintiff only if she is a member of the class of persons who might be foreseeably harmed as a result of the defendant’s negligent conduct. This means a defendant is liable for negligence only to those plaintiffs who are “within the zone of foreseeable harm.” The minority view (the “Andrews view”) states that if the defendant can foresee harm to anyone as a result of his negligence, then a duty is owed to everyone (foreseeable or not) injured as a result of his breach. P was in the foreseeable zone of harm because, as a movie patron viewing late-night movies offered by C, it was foreseeable that C’s negligence in protecting its customers could cause P injuries. Thus, she is a foreseeable plaintiff under both the Cardozo and Andrews tests.
Standard of care
In most cases, the standard of care imposed is that of a reasonably prudent person as measured by an objective standard. Landowners owe a duty to protect people on their premises. While the modern trend is a duty of reasonable care under the circumstances, under traditional rules, duty depends on the category of individual to which the person on the land belongs: trespasser, licensee, or invitee.
A trespasser is one who enters or remains on the land of another without consent or privilege to do so. A licensee is someone who enters the land of another with the express or implied permission of the landowner (e.g., social guests, emergency personnel, etc.). An invitee is someone invited to enter or remain on the land for a purpose connected to business dealings with the landowner.
In this case, the court will find that P was an invitee because she was there to pay to see a movie, which constitutes a business dealing with C, the landowner of the theater and parking lot. As an invitee, C owes P a duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and to protect the invitee from them.
Breach
The defendant will be in breach of his duty to the plaintiff if he fails to meet the applicable standard of care. C breached its duty to P when it continued to offer late movies without providing lighting or a security guard, despite knowing for years that there had been previous attacks on customers in the parking lot at night. Personal attacks definitely qualify as unreasonably dangerous conditions, and not only did C fail to protect P, it didn’t even warn her of the problem. Thus, C breached its duty.
Causation
The plaintiff must prove that the defendant’s actions were both the actual cause and proximate cause of his injury.
Actual cause
If the plaintiff’s injury would not have occurred but for the defendant’s tortious acts, then the defendant’s conduct is the actual cause of the harm. If there is more than one actual cause, the defendant is the actual cause of the injury when the defendant’s conduct was a substantial factor in causing the damages.
C will argue that it was not the actual cause of P’s injuries because B would not have been able to threaten P if it had not obtained the gun from H’s house. Although it is true that B could not have threatened P with H’s gun if he hadn’t obtained H’s gun from the previous burglary, C’s failure to provide any type of protection to its late night patrons was a substantial factor in causing the damages since the presence of security guards likely would have deterred B from approaching P. Since C’s actions were a substantial factor in causing P’s damages, there is actual cause.
Proximate cause
To prove proximate causation, the plaintiff must show that her injuries were the foreseeable result of the defendant’s conduct.
C will claim the chain of causation is broken by the criminal act of a third party. However, this does not protect a landowner from liability where the landowner was aware of the risk. In this case, C was aware of several previous attacks at night in the parking lot over the past several years. C may claim that the attacks were spread out over many years. It may also introduce evidence that the neighborhood has become safer recently, or that there is a greater crackdown by the police so it had less reason to worry. However, in the absence of this sort of evidence, P will successfully argue that since there were several past attacks, it was foreseeable there could be another attack, particularly because C continues to show movies at night which is when the past attacks had occurred.
B stealing the gun will not affect C’s liability here because it happened before the attack on P. Further, it is foreseeable that an attacker would have a gun, regardless of how he obtained it. It is also foreseeable that a victim could faint and injure herself, because people are commonly afraid of guns.
The court will likely agree with P, and find proximate causation because the attack was foreseeable. The court will also find it fair to hold C responsible, because it was in the best position to avoid the danger and prevent this from happening. Customers rely on their businesses to protect them while on the premises. Thus, this element is met.
Damages
As explained above, P must prove actual harm in order to recover. In this case, P suffered a concussion when she fainted out of shock so this requirement is met.
Defenses
The defenses of contributory negligence, comparative negligence, and assumption of risk do not apply, as discussed above.
