Torts Mock Midterm Question 2
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TORTS
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English
Date
Feb 20, 2024
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Part II
Short Essay Question
30 Points
One month ago
, Foster Mom met and became foster mom to Child
, a 12-year-old.
Foster Mom
has no biological children or additional foster children. She is overjoyed about being a parent to
Child and hopes to adopt him one day. Child has lived in a variety of foster homes and
orphanages throughout his life. He has never known his biological
parents.
Foster Mom has enrolled Child into a neighborhood middle school and allowed him to join a
community football
team. The football team, the Bears, is led by Coach and plays other
community teams throughout the city.
Coach is a former professional football player
. He retired from, as he would say, “the game of
football” a few years ago. He now spends his days coaching. He coaches because he continues to
love football but also because he believes that children benefit from the discipline of
sports
. To keep activity costs low
, he has partnered with a number of sporting goods
manufacturers.
Those manufacturers have donated helmets, pads, uniforms and other items
to the Bears.
AthletX manufactured the helmets that the Bears use. While AthletX donated these helmets to
the Bears the helmets usually sell for $30 each
(It costs AthletX $5 to manufacture each
helmet
.). According to AthletX advertisements, they are entry level helmets and designed
specifically for juvenile
football. The helmets are made of three-ply plastic
.
In the last year AthletX has sold 1 million
of these helmets. It has had reports that 100,000 of
them have cracked
while their juvenile wearers were playing football. AthletX is aware that
helmets made of polycarbonate are stronger and would be less prone to cracking
when
subjected to appropriate use. However, it would cost AthletX an additional $15 to manufacture
each helmet made of polycarbonate
.
There are three other manufacturers of juvenile football helmets
. They each manufacture
their helmets with polycarbonate. They have virtually no incidences of helmet
cracking when
subjected to appropriate use.
Last Saturday Child had a football game. Child had only practiced with the team once before the
game. Accordingly, Coach told Child that he could dress for the game but not play. Nonetheless,
by the end of the first quarter of the game, Child was begging Coach to let him play. Coach
relented. Within minutes, Child had caught the football. He was soon tackled, however, by
numerous players from the opposing team and lay for several long moments at the bottom of a
pile of human beings.
When the players stood up, Child grabbed his head. His helmet had
cracked to such an extent that it had fallen off.
Child has since seen a variety of doctors.
He has suffered a severe concussion
. As a result
of this condition, he has no memory of the game and suffers severe and debilitating
headaches.
His medical expenses, to date, are $10,000. His medical expenses are not expected
to exceed $25,000.
You represent Child. Draft a memo to your Senior Partner fully discussing whether AthletX
breached a duty of care owed to Child. Base your argument solely upon a commonsense
reasonableness analysis. Assume that AthletX owed Child a duty of reasonable care pursuant to
the general duty rule. (30 Points)
Issue:
Whether AthletX owed Child a duty of care pursuant to the general duty rule? Rule:
The General Duty Rule states, an actor owes a duty of reasonable care under the circumstances to those persons who are foreseeably exposed to physical risks arising from the actors conduct. Application: AthletX made their juvenile helmets out of the three-ply plastic, rather than the polycarbonate they use to manufacture all their other helmets. The polycarbonate is used by all other juvenile helmet manufactures. Concussions and other head related injuries pursuant to subjecting the helmets to appropriate usage are likely to occur in football. The juvenile players on the Bear’s team and other teams similarly situated are at risk for these injuries.
Conduct
making their juvenile helmets out of the three-ply plastic, rather than the polycarbonate that was standard for their non-juvenile helmets (along with the other three
manufacturers of juvenile helmets
FRH
concussions or other head related injuries pursuant to subjecting the helmets to appropriate usage, brains not fully developed and the helmets were entirely manufactured
for juveniles
FP
juveniles playing football
Limited duty rules do not apply therefore there are no exceptions to this fact pattern
Not a novel area the court has yet to deal with Counter Argument:
Plaintiff may allege that although they manufactured the helmets, the privity of the contract extended only to the retailer who donated them to the Bears team and not to anyone beyond that. Rebuttal:
There is a known danger of head injuries when playing football, especially at a juvenile age when children are still developing. There is also a known use, as in the players are likely to subject the helmets to appropriate use. Conclusion: As a result of their conduct, AlthetX owed Child a duty of care pursuant to the general duty rule. The danger of a potential head injury is foreseen and therefore AthletX owes a duty to make the product carefully to avoid the injury.
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