case study

BLAW 320 TORTS

5-1. Bike Riding Sweet Sixteen

Dina, age sixteen, lives at home with her mother, Mary. Mary is aware that Dina has recently exhibited a sometimes violent and delusionary nature diagnosed as schizophrenia and has attacked persons in the neighborhood. Medication that can control Dina's behavior has been prescribed, but without Mary's knowledge, Dina has stopped taking it.

After Dina stopped taking the medication, she approached a neighbor, Paul, as he walked along the sidewalk fronting Mary's home. Without provocation, Dina gestured threateningly at Paul and screamed, "I know you're out to get me and I'm going to get you first," and then left.

Paul, who had no knowledge of Dina's mental illness, phoned Mary about the incident. Mary told Paul that "Dina has sometimes made threats to others, but I do not think she will try to hurt you and I assure you that this will not happen again." Paul believed Mary's assurances and, for that reason, did not seek to avoid Dina.

Mary questioned Dina about the incident, scolded her, and asked if Dina was taking her medication. When Dina said she was taking it. Mary did not pursue the matter.

Two days after Dina confronted Paul, Dina saw him raking leaves which had fallen into the street fronting their adjoining homes. Dina got on her bicycle and rode it as rapidly as she could directly at Paul. Although Dina swerved away from Paul at the last moment, Paul reacted by diving to one side. He struck his head on the curb and suffered a severe concussion and facial injuries.

Paul has sued Dina and Mary, alleging tortious causes of action.

1. Is Paul entitled to recover against Dina for:
   a. Assault?
   b. Battery?

2. Is Paul entitled to recover against Mary:
   a. On the ground that Mary was negligent as to Paul?
   b. On the ground that Mary is vicariously liable for Dina's conduct?

5-2. Shopping Dispute

Superstore is a 24-hour grocery store. For safety reasons, Superstore has installed bright lights in its parking lot that turn on in response to loud noises. The lights turn on several times a week, especially during the night, and have caused neighboring homeowners to complain of loss of sleep and various adverse health consequences.

One night, Ned and Carl exited Superstore, each carrying a heavy bag. Ned is the publisher of a local newspaper and Carl is a business consultant. As they exited, they accidentally bumped into each other, each causing the other to drop his bag and spill its contents. A loud argument ensued. Ned took several steps toward Carl; Carl threw an orange at Ned and grazed his pant leg without injuring him; and Ned punched Carl in the stomach. The loudness of the argument caused the lights in the parking lot to turn on. Soon, a Superstore security guard arrived and restored order.

The next day, Ned published an account of the incident, calling Carl a “coward and a liar.” Carl experienced a substantial decrease in business consulting thereafter.

1. What tort claim or claims can Ned reasonably bring against Carl, and what defense or defenses can Carl reasonably raise?

2. What tort claim or claims can Carl reasonably bring against Ned, and what defense or defenses can Ned reasonably raise?

3. What tort claim or claims can the neighboring homeowners reasonably bring against Superstore?

5-3. Diner Incident

Pam drove to Diner, a local restaurant, at about 5:00 p.m. When she got out of her car in Diner’s parking lot, she was robbed at gunpoint by an unknown assailant, who took her purse and her cellular phone. Pam later discovered that she was not the first victim of a crime in the Diner parking lot. In the past year, two other customers had been the victims of auto burglaries, which occurred while they were dining inside the restaurant. Diner put two video cameras in the parking lot, but did not hire security guards to patrol the parking lot.

As the robber began to flee, Pam wanted to get help and decided to run into Diner to use one of its telephones. She hoped that by calling “911” quickly, the robber could be apprehended and her property returned. As Pam ran across the parking lot she tripped in a large pothole and fell and broke her arm. Diner had not repaired the pothole, although customers had been complaining about it for weeks. All of the complaints were from customers who had not spotted the pothole while driving, hit it, and worried that their tires would be knocked out of alignment. The pothole was readily visible to pedestrians. Had Pam not been so panicked by the robbery, she likely would have noticed the problem and avoided it.

When Pam entered the restaurant, she asked a waiter, Wayne, to let her use Diner’s phone to call “911.” Wayne refused to let her use the telephone. He said Diner’s policy limited use of the telephones to employees making business-related calls and strictly prohibited calls by customers. In fact, Pam later found out that Wayne had misstated the policy, which included an exception for emergencies. When Wayne refused, another customer promptly called “911” for Pam, using his own cellular phone. The paramedics and police arrived shortly thereafter, enabling Pam to get immediate treatment. However, the robber was never apprehended and Pam never recovered her purse or her cellular phone.

Pam is suing Diner. Under what theory or theories might Pam bring an action against Diner, what defenses, if any, might Diner assert, and what is the likelihood Pam will be successful in obtaining damages for:

1) The loss of her purse, her cellular phone, and her emotional distress as a result of the robbery?

2) Her broken arm?

3) Exacerbation of her injuries due to Wayne’s refusal to allow her to use Diner’s phone to call “911”?

5-4. Neighborhood Idiots

Abe wanted to cut down a tree that was growing on public property bordering his house because he did not want to rake its leaves. When Abe attempted to do so, Bill, who lived across the street, demanded that he stop. Abe refused and, holding his saw in front of him, took two steps toward Bill. Avoiding Abe, Bill climbed high into the tree, insisting he would not come down because he wanted to save the tree. Abe nevertheless sawed through the trunk of the tree, which fell into the street with Bill in it, causing Bill serious injuries.

Cindy, a passerby, rushed to help Bill. As she was assisting him, she was struck by a car and sustained serious injuries.

Debbie, a neighbor, watched the entire incident from her front porch and suffered severe emotional distress as a result.

1. Is Bill likely to prevail on any intentional tort claim against Abe?

2. Is Cindy likely to prevail on a negligence claim against Abe?

3. Is Debbie likely to prevail on a negligent infliction of emotional distress claim against Abe?