Midterm Essay Tort 1
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Feb 20, 2024
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Torts Practice Essay: 2
Issue: Whether D breached a Duty to P by not locking the car door? Duty of care is imposed when there is a relationship between the parties which requires person to act as a reasonable prudent person would when placed in the same circumstances. There are four ways to determine a reasonable person standard: 1.
Fact finder determination
2.
Judge Made standards 3.
Legislatively determined standards 4.
Judicially declared standards based on legislation The standards which apply to this issue are Judge Made Standards that apply are fact finder determination, legislatively determined standards, as well as Judge made standards. Judge made standards which are important to consider for the Duty and breach of duty elements of Negligence are: Judge Cardozo’s rule in Palsgraff, “the risk to be perceived defines the duty to be obeyed.” A duty of care is owed to a reasonable foreseeable person; and Judge Andrews dissenting Rule in Palsgraff, that everyone is owed a duty of care. This case also uses Judge Learned Hand Negligence Balance Test: There is a duty when the Burden is less than the probability times the loss. (B< P*L). In this case D was asked by P to lock the door on his side of the car, shifting responsibility from P to D. The
burden of not taking the precaution to lock the car door is less than the probability of the car possibly being broken into and being stolen as a whole or for the belongings inside. When D forgets to lock the car door there is a foreseeable risk of probable loss to occur, which outweighs a possible outcome as it highly likely to occur in a known high crime rate area. D has acknowledged that on a regular basis he does not leave car doors open. Upon fact finder determining that a reasonable person in D’s circumstances would have known or should have known of risk, then D was required to exercise ordinary. Fact finder or other person such as P would verify that locking a car door is exercising ordinary care, particularly when asked to do so. As such, D failed to exercise ordinary care when he did not lock the door, therefore, breaching his duty. The role of customs in this case would be a legislative declared standard. P parked car close to a visible sign
with a statute that read “All unattended vehicles must be locked. Floribama Traffic Statute §867-5309.” When there is a statute it is to prevent acts which expressly or implicitly provides civil liability. To define what is expected of a reasonable person one must ask if P is within the class of persons that statute intended to protect and if the injury sustained by P is the type that the statute intended to avoid. D violated the statute when he did not lock the door. Though D breached the duty by not locking the door and ignored the statute. P does not satisfy the class of persons the statute intended to protect. The statute is implied to prevent cars from being broken into. P suffered an injury of breaking her ankle which is not the type of Injury which the statute intended
to avoid. The elements of Negligence Per Se, establishes duty and breach, are therefore not met because both class and type are not established. There are excuses to violations of Statute, in this particular case D has a possible excuse for breach as he reasonably attempted to comply when he informed P of his mistake. D had a duty to lock the door of the car upon his exit, even though he did not lock the door he did not breach
a duty to P.
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