(no subject)

[vicarz]

Did you ever get the impression that some people study a little too much? I was thinking of bringing in candy for my classmates, which led me to this mental picture - and now I'm thinking I'll just leave the idea at home (and certainly the fictitious bat)!

ESSAY:
A 1L Evening student, José, arrived early for the 2nd semester Torts II exam, along with many of his classmates. While waiting for the exams to be distributed, many of the nervous students wandered about the GMU Atrium - an open area appoximately 3 stories tall lined with glass windows. José decided to treat his fellow classmates in the atrium by sharing a bag of Chocolate Truffles, which were wrapped in plastic and foil. José also brought with him a whiffle bat.

Approximately an hour before the exam, José announced that he had a bag of chocolates. The hungry GMU Law students quickly formed a crowd. Rather than handing out the candy, José instead stood back from the crowd, and used the whiffle-bat to launch the candies into the air above the hungry crowd for them to catch.

Jane Doe, a hungry 1L evening student, saw the crowd of hungry students catching candies. Leaving her books on her chair, she got up and joined the crowd in trying to catch candy. Just as she joined the crowd, José batted another chocolate into the air - one that by multiple witness accounts went approximately 2 floors up before landing in the crowd. Jane jumped up to catch the candy, but missed the candy with her hands, only to have the candy hit her eye. The plastic-foil wrap of the truffle cut her eye, injuring her and causing her to miss the exam.

Although Jane's injuries were not permanent, as a result of the choco-mishap she incurred medical bills, pain & suffering, and had to take a make-up exam during her paid-summer-internship, resulting in a loss of pay.

PART I
1. What is the best argument that José is liable for Jane's injuries?
2. What is Jose's strongest defense?

PART II
Assume now that when Jane reached for the candy, she was jostled by another hungry student, John Deere, as she reached for it.

1. Does John Deere affect Jose's potential liability? Why or why not?
2. What liability does John Deere have, if any, for Jane's injuries?

Let's see, we've got encouragement, confusion as to whether GMULaw students are responsible or free-radicals in the pressence of chocolate, cause in fact, proximate cause, volunteers, assumption of the risk, a concurrent efficient causation twist...

Comments

[chadu.livejournal.com]

Give him the Chair... ...oscuro.

CU

[dcjester.livejournal.com]

1.1: There was no reason for Mr Jose to be bunting chocolates into thre air. If he would have passed them out by hand, then no injuries would have been incurred. If Mr Jose had wanted to bunt candies, then he should have been in an approved or more open area that would not have had students sitting around to watch the spectacle.

1.2: No one forced Ms Doe to step forward and catch one of the candies. No one held a gun to her head and made her come over to the group and try to catch one. Likewise, as soon as Ms Doe jumped into the air, she immediately put not only herself , but the other students around her, into danger by not being a stable position in order to catch said candies. Ms Doe also did not give any warning to those around her that she was going to jump, nor signaled to anyone of her intent to leave the ground in her effort to catch said candy. With this, she endangered every person within her reach.

2.1: Mr Deere does indeed affect Mr Jose's injuring of Ms Doe. If Mr Deere had not jostled Ms Doe at the improper time, then Ms Doe may not have fumbled in her jump, and missed the piece of candy which came down upon her face.

2.2: Mr Deere's jostling of Ms Doe resulted in Ms Doe not being able to safely jump in the air, thus causing the candy to hit her in the eye. It can be said that Mr Jose's bunting of candies could have caused Mr Deere's grabbing, however, Mr Deere should have been more aware of those around him, and been prepared to modify his stance in order to accomodate those other students around him. Likewise, if Mr Deere knew that he jostled Ms Doe, then he should have been willing to help her instead of leaving the seen without filing the proper reports.

[vicar.livejournal.com]

Holy crap I didn't expect people to answer! lol

1.1 - once the affirmative act is taken it is judged, there really isn't this type of analysis - though the argument you make is reasonable. I think you go beyond reason though, with the 'approved area' idea.

1.2 - You start talking about the assumption of the risk idea somewhat. You can argue that a crowd of people jumping for candies is a foreseeable risk factor, like in Knight v. Jewitt where someone was injured playing touch-football. As for warning people around her, there is no injury so no case in that regard, and again such behavior while cautious would be so cautious as to be not reasonable or expected.

2.1 - It depends on how you judge his jostle. Was he part of the crowd, perhaps jostled himself? Did he intentionally or negligently jostle? Does his jostle remove J's liability? I would say that there is more of a but-for factor that while his behavior was negligent, that the tossing of the bon-bon into the crowd created the risk more than the jostle. Er, I didn't think that one out well, but I was trying to work in concurrent efficient causation - the idea that were it not for both acts of negligence there would have been no accident. I think it's more the case that the jostler was also influenced by Jose's bon-bon bunting.

2.2 - again your answer assumes much more conscious thought than I think is reasonable to assume would occur. Given that they are engaged in something like a game or sport, you'd have to prove that his behavior was completely outside the expected range of behaviors and potential liabilities - very hard to do as this is not an official activity with rules and history.

For comparison, the moron in the Knight v. Jewitt case was found not liable for injuring a female player - in a case where a very rough player who was essentially playing full-contact football in a co-ed touch football game.
Contrast this to a case (name forgotten) where a discuss-thrower failed to wait for the person preceeding them to leave the field, and hit the 'opponent' with a discus. He was liable, as while the sport is competitive, it is played one at a time.

I cannot possibly be this lame...

[dcjester.livejournal.com]

Altho I have never practiced Law, never took any cases on Law, nor ever plan to, I think the arguments I put forth were at least intelligent and thought out.

1.1: An approved area would be a place where most bunting or hitting of an object with a bat would be expected...thus a baseball field.

1.2 I can see how the warning from her end would be futile, considering she caused no accidents. However, it would fall under her responsibility in for her injury due to the fact that other students were likewise jumping, and thus she knew there was an inherent risk involved with this action she was undertaking.

2.1 This can be answered easily: Is there any witness to Mr Deere's jostling of Ms Doe? If so, then a witness in this matter would clear up the situation and Mr Deere's effect on Ms Doe when she jumped.

2.2 Again, a witness to this would show whether or not Mr Deere is in fact more liable than Mr Jose.

[vicar.livejournal.com]

Oh I totally agree - they were decent stabs, and I didn't mean to say they weren't. I'm similarly taking my best stab - may or may not be accurate itself! I'll tell you after the exam ;)

They do say law is 99% common sense...which puts it out of my reach?

[jeffwik.livejournal.com]

I want to know the answers to these questions now.

Application of the Hand Rule should apply here.

[tony-laetrile.livejournal.com]

As José was batting the candies into the air, the vector of approach would be vertical. At best, the candy would land on the head of a standing individual, possibly smearing chocolate but in no way providing physical damage. The only way physical injury could occur would be in the rare case of foil scraping the eye; a position incurred only by one staring up. In sort, someone had to actively be seeking the candy to risk injury.

Jane Doe would more easily have borne the cost of preparation and prevention; by either not jumping, or jumping with head down, or eyes closed. José could not have foreseen and prepared for all possibilities in a cost-effective way (the opportunity cost can be roughly approximated by saying that José would have needed to purchase helmets and eye guards, as well as a motion-detector system and radar tracking, to provide the same real-time warning that Jane had intrinsic in her decision making process).

Thus, as Jane could bear the cost of prevention more readily, she is liable for the injury.

Re: Application of the Hand Rule should apply here.

[vicar.livejournal.com]

Not a bad stab, cost of the precaution vs. risk of injury. Still, I've kinda created the situation with my idiotic crowd-creation, which probably removes us from the realm of Hand. Under Hand though, I fail as there was limited benefit by my tossing-off...

Jane does subject herself to a visible hazzard / sport, which may cost her the assumption of risk argument.