Tort Exam Barnaby Willows Owns a Small

Tort Exam

Barnaby Willows owns a small boutique petting zoo in downtown Sydney. This petting zoo harbors two of each kind of local species of animal. The zoo is open to the public seven days a week for 8 hours a day. The animals are kept in cages pursuant to city ordinance and have received all of the required vaccinations mandated by public health code. The petting zoo has been in operation since January of 2000; to date no member of the public has been injured by any of the animals. Paul Hogan has been an employee of Barnaby for the past two (2) years his main job includes tending to the animals in their cages. This includes feeding the animals and making sure they are comfortable at all times.

Barnaby has recently received an import of Coyotes from the United States Southwestern Cultural Center located in Phoenix, Arizona. The Coyotes are a large draw for Barnaby and business has increased roughly 25%. Both Barnaby and Paul are inexperienced when it comes to tending to Coyotes. One day after the last tour, Barnaby instructs Paul to clean out the cages of the Coyotes and prepare them for a private showing for the Australian Prime Minister. While cleaning out the cages, Paul notices that some rotten meat has been left over from the previous feedings in the corner of the cage. Paul, attempting to remove it, is summarily attacked by the Coyotes and sustains several injuries to his person.

Our law firm represents Barnaby and the petting zoo; both are being sued by Mr. Hogan for an unspecified amount of damages. What are the main issues that Mr. Hogan can raise and how can our law firm anticipate these issues and what defenses can our firm raise in defense of Barnaby?

Answer #1

The first avenue that Mr. Hogan will attempt to assert will be that as the Plaintiff he was owed a reasonable duty of care in that Mr. Willows should have known or at least attempted to know that Coyotes are wild animals and have the potential to lash out and cause injury. Mr. Hogan will attempt to assert that Mr. Willows was negligent in his maintenance of a safe environment for dealing with animals that are not indigenous to Australia. Mr. Hogan will attempt to assert the four principles of Negligence: Duty, Breach, Causation and Damages.

Mr. Hogan will argue that Mr. Willows owed a Duty to ensure the Coyotes were taken special care of when penning them in at the end of the day; further Mr. Hogan will assert that Mr. Willows breached that duty by NOT creating a higher standard of care when dealing with the Coyotes; Mr. Hogan will claim this breach directly caused the Coyotes to be in a position to injure him and finally he will assert that all of these elements directly and consequently lead to Mr. Hogan being injured by these animals.

In contrast to the arguments used by Mr. Hogan; our client, Mr. Willows is in a strong position to argue three main legal theories. First, Mr. Willows can assert that under Australian Tort Law, in order to establish a construct for damages; the Plaintiff would have to assert the Defendant could have reasonably foreseen the likelihood of damages. This is a standard that Mr. Hogan will find it difficult to overcome. Having no experience in dealing with Coyotes; given they are not indigenous to Australia, it cannot be argued with any degree of persuasiveness that Mr. Willows could have reasonably anticipated that the Coyotes would lash out in the manner in which they did and cause Mr. Hogan injury.

The second theory that Mr. Willows can assert is the Voluntary Assumption of Risk theory. Mr. Hogan works with animals every day of his employment at the petting zoo. All of these animals have the potential to injure, harm or mame in some capacity-just because they haven't yet does not mean they don't possess the ability. Therefore, each time, Mr. Hogan walks into one of the cages, holding areas or pens he voluntarily assumes the risk of injury-therefore Mr. Willows cannot be held liable for risks taken at the behest of his employee, Mr. Hogan.

The third and final theory that Mr. Willows can utilize is the Obvious Risks associated with Mr. Hogan's activities. Mr. Hogan understood the Obvious Risk associated with integrating himself into the holding cage of Coyotes-animals that he was not experienced in interacting with. Furthermore, Mr. Hogan's experience with other animals and training afforded him the knowledge that would have dictated the principle that one never attempts to remove food, rotten or otherwise, from the cages of an animal-for doing so will trigger innate and natural reflexes resulting in the animal lashing out to protect its territory.

Given the facts and the proposed statutory defenses that our firm can utilize with Mr. Willows, it seems unlikely that Mr. Hogan will prove successful in his quest for damages.

Question 2

Linda Blair owns a successful chain of men's and women's cosmetic stores throughout New South Wales. She has been a business owner for roughly 5 and one half years. Recently she has decided to expand her business to include Melbourne and the surrounding areas. Ms. Blair's business model relies on her employees working as Independent Contractors. Ms. Blair's employees are expected to use their own vehicles-with a per diem compensation structure built into the business model and are further expected to hold themselves out as employees of Blair, Inc.-the business that Ms. Blair runs.

As part of his duties, Mr. Loiselle is a traveling salesman for Blair Cosmetics. His "jurisdiction" includes most of Sydney and the surrounding areas. Mr. Loiselle uses his own vehicle when traveling for "sales calls" to local salons and beauty parlors. Mr. Loiselle has been an employee of Ms. Blair's for the past 3 years. To date Mr. Loiselle has not received any negative comments from any of his clients in these three years.

One day, while returning from a sales call on the outskirts of Sydney, Mr. Loiselle decided to change his usual course to the main office. He instead, decided to travel through downtown Sydney during rush hour. Unaware of the time of day, Mr. Loiselle became ensnared in traffic, causing him to run approximately 20 minutes late. Mr. Loiselle was fully aware of a staff meeting to be held in the main offices that afternoon and furthermore is aware of the fact that Ms. Blair does not tolerate tardiness to any company meeting.

In order to alleviate the possibility that he would be late for the staff meeting, Mr. Loiselle began to drive erratically through the streets of Sydney, he drove in excess of the speed limit and broke several traffic laws by refusing to signal and blowing through a red light. As a result of these actions, Mr. Loiselle caused his vehicle to collide with a van being driven by Annie Potts. Ms. Potts was parked at a stop sign that was at an intersection that traversed Mr. Loiselle's path. As a direct result of the accident Ms. Potts sustained severe injuries resulting in approximately $250,000 in medical bills for physical injuries and another $650,000 in damages for psychological damage. Ms. Potts is suing both Mr. Loiselle and Ms. Blair for recovery of her damages and also punitive damages. In total, Ms. Potts is seeking a total of $2.5 million in damages. Ms. Potts is claiming, among other things that Ms. Blair was negligent in her management of Mr. Loiselle and should have reasonable known there was a possibility of Mr. Loiselle's actions.

You have been contracted and retained by Ms. Blair as her counsel. What legal theories can she utilize that can prevail at trial or alternatively, minimize the amount of damages her company will have to pay?

Answer

One of the main theories of defense that can be used in representing Ms. Blair comes from the Independent Contractors Act of 2006. This national law sets several boundaries for establishing whether an individual is an independent contractor or not. If it can be demonstrated that Mr. Loiselle is indeed an Independent Contractor then Ms. Blair cannot be held liable for the damages sustained by Ms. Potts. The critical distinction, under common law, for determining if Mr. Loiselle was an Independent Contractor or Employee lies in the manner in which Mr. Loiselle performed his duties. If it can be established to the court that Mr. Loiselle possesses the power, authority and ability within his daily life as an Independent Contractor of Blair, Inc. To perform and carry out business transactions and commercial agreements with clients in a manner that Mr. Loiselle sees fit without any need to seek approval or authorization from anyone in the corporate offices of Blair Inc. Proving that Mr. Loiselle is an Independent Contractor both under Australian Statute and Common Law would remove the potential for Vicarious Liability attaching itself to Blair Inc. The main premise of the Vicarious Liability theory is that the rule was developed so that employers are NOT held liable for the actions of their Independent Contractors. The correct test today, is to concentrate on the connection between the nature of the employment and the particular wrong. The courts would then decide generally, whether it is just and reasonable, to hold the employer vicariously liable.

The Vicarious Liability test would not prevent Ms. Potts from seeking damages from Mr. Loiselle for his actions that caused Ms. Potts to be injured. Rather, it would only prevent Ms. Blair from paying for damages that she would not have any responsibility towards. Ms. Blair will assert that at the time of the accident, Mr. Loiselle was clearly an Independent Contractor and therefore solely liable for the damages caused by his negligence toward Ms. Potts and therefore, Blair Inc. would not be liable to compensate any party for Mr. Loiselle's negligence.

Question 3

Millard Fillmore recently purchased a home in the northern part of Melbourne for his wife and children. Mr. Fillmore works as an orthodontist in downtown Melbourne and is able to provide a comfortable lifestyle for his family. Approximately 6 months after purchasing and moving into the home, Mr. Fillmore decided to build and in ground swimming pool for his family to enjoy during the hot Australian summers. Mr. Fillmore hired the top contractor in the area to dig the foundation, pour the concrete and engage in the construction of his swimming pool.

The pool was approximately 10 feet deep at the deepest part with a built-in diving platform adjacent to the deepest portion of the pool. At the shallow end the pool was approximately 5 feet. Despite the requests from the contractor, Mr. Fillmore opted not to surround the pool with a safety fence but rather opted for a whole pool screen enclosure. This enclosure contained a door on each side of the pool that could be opened from the inside only. In the mind of Mr. Fillmore this would prevent his neighbor's son from endangering himself by falling in the pool.

After the pool was completed, Mr. Fillmore invited his neighbor, Mr. Jefferson along with his wife Susie and their 6-year-old son Thomas to a summer swimming party to commemorate the completion of the pool's construction. The adults were eating and drinking and some of these drinks were alcoholic. The party lasted for approximately 4 hours during that time, numerous alcoholic drinks were consumed by all adults in attendance. During the party, Thomas, the six-year-old son had climbed upon the built in diving board adjacent to the deep end of the pool. Without any proper adult supervision, Thomas fell into the deep end. Thomas, has never learned to swim on his own. Approximately 2-3 minutes passed before any of the adults, including Thomas' parents realized what had happened.

Emergency workers were responded to the call from the Fillmore residence. Thomas was rushed to the hospital where it was determined that he suffered significant neurological injuries due to oxygen deprivation. As a result of these injuries, Thomas would have severe motor, cognitive and neurological impairment for the foreseeable future. Thomas' learning skills and reasoning ability would be greatly hampered as he developed into adulthood.

The Jefferson have filed suit against Mr. Fillmore and his family on many grounds including breach of a duty of care related to a negligence claim within their compliant. The Jefferson's are asserting that Mr. Fillmore owed their son a higher duty of care given his young age and the environment where he was located. As a direct and consequential result of this breach of duty towards Thomas, Thomas sustained significant and severe injuries. Therefore, the Jefferson's are seeking over $10 million in compensatory and another $10 million in punitive damages.

Our law firm has been retained by Mr. Fillmore to represent him in this matter. The senior partner has asked you to draft a simple memo for a client meeting later this afternoon regarding the existence of a claim for relief presented by Mr. Jefferson. The senior partner wishes to know if the elements of a Breach of Duty of Care exists. She would like you to reference at least two recent cases in your memo that would demonstrate a lack of support for Mr. Jefferson's argument.

Answer

In determining if Mr. Fillmore owed Mr. Jefferson a reasonable duty of care, the main principle to incorporate into any analysis that carelessness does not always equate to breach of duty or to negligence. The main point of law to be considered is that a Defendant is found to have breached their duty of care when and if the damages are reasonably foreseeable. Careless acts do not always amount to negligence. In negligence, a person is only liable for harm that is the foreseeable consequence of their actions, that is, failure to exercise reasonable care and skill. The Plaintiff must be able to substantiate that the damages caused by the Defendant were not too remote and were resultant from Defendant's breach of their duty.

The definition of a Duty of Care is found in the common law's definition of the "reasonable person standard." This standard holds that all members of society are required to act with care towards one another in a manner consistent with what a "reasonable person" would do. There are various situations wherein a duty of care applies and one of these areas is for owners of a premise; wherein individuals are entering the premises. Under the common law, there is no breach of duty when injuries are caused by a failure to act.

Mr. Jefferson may attempt to argue that there was a vulnerable relationship between the Defendant and the Plaintiff's son. This is an issue for the trial court to determine at a hearing; however Mr. Fillmore can raise the defense of contributory negligence. Mr. Fillmore can assert that Mr. Jefferson's consumption of alcoholic beverages during the party impaired his judgment as to the nature of the risk.

Although this is a valid point, the main issue is the presence of a Duty of Care. According to Common Law, there are three elements that establish a Duty of Care. These elements are: (1) Was the Defendant in a controlling position?; (2) Was the Plaintiff reliant on the Defendant? And (3) was the Defendant in a position to be protective of the Plaintiff? The answer to these questions will undoubtedly determine if a Duty of Care was owed to Mr. Jefferson's son.

With respect to the first element, there are no facts to establish the premise that Mr. Fillmore was in a controlling situation or position. There are no facts to support the theory that Mr. Fillmore was entrusted with the responsibility to monitor Mr. Jefferson's son during the pool party; therefore, Mr. Fillmore was not in a position of control.

Regarding, issue number two, the Plaintiff was not reliant on the Defendant. There are no facts plead by the Plaintiff that demonstrate that Mr. Jefferson relied on the Mr. Fillmore at any time during the pool party. Additionally, there are no facts to substantiate that Mr. Fillmore was in a position to be protective of the Plaintiff. Mr. Fillmore could not have reasonable foreseen that Mr. Jefferson's son would endanger himself by falling into the deep end of the pool. In the alternative, Mr. Fillmore relied on Mr. Jefferson and his wife, Susie, to exhibit the reasonable duty of care towards their own son to monitor and control the situation. Therefore, Mr. Fillmore could indeed argue an alternative theory; that all the elements of a Duty of Care and the resultant Breach of that duty were present; however they were present on behalf of Thomas' parents, not Mr. Fillmore.

Based on this analysis of Australian Case Law and Common Law theories, it is likely that a trial court would rule that Mr. Fillmore did not Breach the Duty of Care, that no Duty of Care existed between Plaintiff and Defendant and Mr. Fillmore is not liable for the damages suffered by Mr. Jefferson's son, Thomas.

Question 4

Abraham Washington is an employee of Acme Processing, Inc. A wholesale electronics distributor within the greater Sydney area. Mr. Washington has worked for nearly 10 years with Acme and according to his records is a quality employee. Mr. Washington's job duties include inspection of the stereo equipment that is placed onto pallets by a giant forklift and are scheduled to be shipped to various vendors throughout Australia.

Mr. Polk has recently been hired as a forklift operator with Acme, Inc. Mr. Polk is 22 and this is his first job in the private sector. His prior employment was at the University library. He has no experience operating heavy machinery; however, Mr. Polk was recently certified by Acme's own training program as possessing the required skills necessary to operate a forklift within the confines of the factory floor. This is Mr. Polk's first attempt at loading equipment onto the pallet so it can be inspected by Mr. Washington.

During the day in question, Mr. Polk was loading industrial sized speakers onto the pallets that were set to be inspected by Mr. Washington before they were sent to vendors throughout Sydney. Mr. Polk usually operates with a supervisor to ensure the safety of other employees; however, the supervisor a Ms. Dolly Madison, called in sick today. Therefore, Mr. Polk is operating the fork lift on his own.

The speakers are loaded on the forklift in stacks of 4-5. It is imperative they are stacked in a manner that renders them stable so they do not fall off the forklift. During the transportation of these speakers to the platform where Mr. Washington awaits them, the fastener becomes dislodged, causing the speakers to wobble. As they continue to be transported towards Mr. Washington, the stack of speakers becomes unstable and begins to tumble towards Mr. Washington. Each speaker weighs in excess of 150 pounds-these speakers are used at major venues such as football stadiums, concerts and political events. Being injured by a falling speaker could render sever damages. Mr. Washington, seeing the speakers coming towards him, moves as far as he can toward the outer edge of the platform to remove himself from immediate damage. However, the speakers land on the platform near Mr. Washington. Although Mr. Washington did not suffer any immediate physical damage; asserts that he has been psychologically damaged and is unable to perform duties vital to his job requirements.

Mr. Washington has retained our law firm to represent him in his claim against Acme, Inc. Mr. Washington is suing for upwards of $5 million in compensatory damages for psychological injuries sustained as a result of the accident and another $10 million in punitive damages. The senior partner and lead counsel on this case have asked for a short explanation of the Duty of Care that Acme, Inc. owed to Mr. Washington. They would like to know if there is any case law that supports the position that Acme can be held liable for the psychological damages suffered by the firm's client, Mr. Washington. The partners do not want an extended analysis of Australian case law but rather a general discussion of the common law theories that can support such a claim.

Answer

The damages sought by Mr. Washington in this case are psychological. This fact provides for a defense using the "Proximity Standard." In 2001, the case of Sullivan v. Moody, dismissed the Proximity Standard Test in lieu of the "Foreseeability Test" that most Australian courts used today. However, common law preserves the Proximity Standard Test for Psychological Damages. Recent case law has upheld the Proximity Test for such damages. These cases include: (1) Janesch v. Coffey (1985); (2)Tame v. New South Wales (2002) and (3) Gifford v. Stray Patrick Pty Ltd. (2003). Each of these cases have upheld the Proximity test when determining the nature of psychological damages. One of the key points of the Proximity test is the degree of reasonableness of the injuries sustained. Given the facts of this case, the Defendant was proximate to the Plaintiff in both time and space; therefore the reasonableness and the proximity elements of the test are readily satisfied. Furthermore, the Proximity Test is sustained in that the relationship is circumstantial, given that Mr. Washington is an employee of Acme, Inc. And Acme, Inc. is the employer; therefore the circumstantial element of the Proximity Test is also readily satisfied.

Based on this brief factual analysis, the prevailing case law, the elements of the Proximity Test it can be readily established that Mr. Washington does have a claim of a breach of duty of care based on the Proximity Test against Acme, Inc. Mr. Washington is seeking Psychological damages in lieu of physical injuries. Therefore, any objection made by Acme, Inc. will be readily surmountable given that existing case law within Australia supports the use of the Proximate Test in the ascertaining of Psychological damages.

Question 5

Merri Jones and Michael Yamakovich have been friends since their days at primary school. They have lived in the same neighborhood and have been in each other's lives for the better part of three decades. On Ms. Jones' 32nd birthday she was surprised by her husband with a new Jeep. Excited to drive her new Jeep off-road, she invited Michael to join her husband on a trip to Ayer's rock.

On the day in question, Ms. Jones, her husband and Michael were all seated in the Jeep. Merri in the driver's seat, her husband next to her and Michael seated in the backseat behind the husband and crosswise from Ms. Jones. Nobody within the vehicle was drinking alcohol during this road trip. Ms. Jones had never operated a Jeep before, so she was inexperienced in the operation of a motor vehicle of this nature.

During the trip to Ayer's rock, Ms. Jones suggested to the other passengers that they test out the Jeeps "off-road skills" and deviate from the standard roadways. Michael initially objected stating that value of such an idea given that Ms. Jones was inexperienced in driving a vehicle such as Jeep, let alone off road. Nevertheless, Ms. Jones ignored the warnings of her passengers and proceeded to extract herself from the roadway and encounter the rough terrain of the Australian outback.

Along the highways leading to Ayer's rock there are numerous warnings about the safety of driving off road. Ms. Jones apparently did not heed these warnings. As Ms. Jones drove the Jeep off road she increased her speed to well over 60 mph. The jeep began to be very unstable. While make a sharp turn, Ms. Jones proceeded to roll her jeep over causing Michael to be ejected from the back seat of the jeep and land some 30 meters away from the jeep and sustain massive head trauma. Michael was airlifted to a local hospital where it was determined he has suffered several broken bones, a severe concussion and a ruptured disc within his spinal column. These injuries would require several weeks in the hospital and months of intensive physical therapy.

At the time of the accident, none of the occupants of the Jeep were wearing their safety belts. None of them were intoxicated. Ms. Jones and her husband sustained only minor injuries. Michael is suing Ms. Jones for $15 million in damages; a combination of compensatory and punitive. Our law firm has been retained by Ms. Jones to represent her. She wants to know if there is a legitimate compliant resulting from the accident and Michael's sustained injuries.

The senior partner of our firm has asked you to prepare a short analysis of the facts of this case and any tort theories that can be used on behalf of Ms. Jones and her husband's defense against Michael's claims. Michael is asserting that Ms. Jones did not heed the warnings of both the passengers and the stated signs along the highway. Furthermore, Michael is asserting that Ms. Jones breached the Duty of Care she owed to everyone in that Jeep as a result of Ms. Jones insisting to use the motor vehicle- a vehicle that she is inexperienced in using-in a manner that she is unaccustomed to using it in.

The senior partner would like to know if there are any grounds for challenging both of these claims made by Michael's counsel. The senior partner does not want a laundry list of cases nor does she wish to receive a highly theoretical analysis; rather she is expecting a very terse, brief and to the point analysis of the facts and any tort principle that our firm can use in defense of Ms. Jones and her husband.

Answer

The theory that can be used to defend Ms. Jones and her husband from Michael's compliant is the well-established Tort theory of Contributory Negligence. Contributory Negligence is defined as the negligence of a person which, while not being the primary cause of a tort, nevertheless combined with the act or omission of the primary defendant to cause the tort, and without which the tort would not have occurred. In the 2006 edition of Charlesworth & Percy on Negligence, the authors define contributory negligence as follows: "Contributory negligence applies solely to the conduct of the claimant (plaintiff). It means that there has been some act or omission on the claimant's part which has materially contributed to the damage caused and is of such a nature that it may properly be described as negligence."

There is a variety of well-established case law and precedent creating the defense of contributory negligence that could be used to defend Ms. Jones and her husband. The case of Pilloni v. Doyle, 49 NWSR 13 (Australia, 1943) established the precedent of Contributory Negligence and has stood as the accepted authority on this Tort theory for over 60 years. In this case, in Pilloni, Justice Davidson of the New South Wales court wrote:

"The term contributory negligence can properly only be applied to a case where both parties, the plaintiff and the defendant, are each guilty of negligence so connected with the injury as to be a cause materially contributing to it."

The facts of this case specifically underscore the theory of Contributory Negligence. At the time of the accident, Michael was not wearing his seat belt. Neither were any of the other passengers, including Ms. Jones. However, Michael's inability or refusal to wear his safety belt directly contributed to the injuries sustained within the accident. Had Michael been wearing his seat belt it is highly unlikely that he would have sustained the severe injuries that he has. In addition to the well-established case law within Australia, there is also statutory support for this legal defense.