Torts negl. question

A forum for applicants and admitted students to ask law students and graduates about law school and the practice of law.
User avatar
patienunderstanding
Posts: 250
Joined: Sat Mar 24, 2012 12:45 pm

Torts negl. question

Postby patienunderstanding » Sun Oct 13, 2013 9:10 pm

Hello everyone,
I have a question. So far in Torts we studied Negligence. Let's say a child (I know MUCH different story than an adult), climbs over a very tall fence, school fence, falls and dies. What causes of action can a mother bring? Thanks a lot.

User avatar
justonemoregame
Posts: 1160
Joined: Fri Jul 01, 2011 3:51 pm

Re: Torts negl. question

Postby justonemoregame » Sun Oct 13, 2013 9:14 pm

Child is spiderman, contributory negligence

Connor Benz
Posts: 113
Joined: Wed Sep 04, 2013 10:49 pm

Re: Torts negl. question

Postby Connor Benz » Sun Oct 13, 2013 9:18 pm

justonemoregame wrote:Child is spiderman, contributory negligence


LOL.

User avatar
patienunderstanding
Posts: 250
Joined: Sat Mar 24, 2012 12:45 pm

Re: Torts negl. question

Postby patienunderstanding » Sun Oct 13, 2013 9:25 pm

I was thinking WDA (where all four elements need to be proven), but what else?

Connor Benz
Posts: 113
Joined: Wed Sep 04, 2013 10:49 pm

Re: Torts negl. question

Postby Connor Benz » Sun Oct 13, 2013 9:38 pm

patienunderstanding wrote:I was thinking WDA (where all four elements need to be proven), but what else?

How was the school negligent? Was the fence not build properly? Did the school not conform to customs with building the fence? Who build the fence? Was it a independent contractor or the principal's brother? You just said he climbed a fence and died. Why would that be the school's fault? You need to satisfy all 4/5 elements of negligence to prevail on negligence claim.

That's like saying a child climbed my fence fell onto MY PROPERTY and died. How can the mother sue me? How was I negligent?

User avatar
patienunderstanding
Posts: 250
Joined: Sat Mar 24, 2012 12:45 pm

Re: Torts negl. question

Postby patienunderstanding » Sun Oct 13, 2013 9:50 pm

Connor Benz wrote:
patienunderstanding wrote:I was thinking WDA (where all four elements need to be proven), but what else?

How was the school negligent? Was the fence not build properly? Did the school not conform to customs with building the fence? Who build the fence? Was it a independent contractor or the principal's brother? You just said he climbed a fence and died. Why would that be the school's fault? You need to satisfy all 4/5 elements of negligence to prevail on negligence claim.

That's like saying a child climbed my fence fell onto MY PROPERTY and died. How can the mother sue me? How was I negligent?

Don't they have a duty to rescue and protect, since there is this special relationship between school-minor? So if not WDA are there any causes she can bring against anyone?

User avatar
hephaestus
Posts: 2385
Joined: Mon Jan 07, 2013 4:21 pm

Re: Torts negl. question

Postby hephaestus » Sun Oct 13, 2013 10:05 pm

Mother could probably bring an action against the teacher/school guard/whoever should be watching the kid, attaching the school using respondeat superior/vicarious liability.

Connor Benz
Posts: 113
Joined: Wed Sep 04, 2013 10:49 pm

Re: Torts negl. question

Postby Connor Benz » Sun Oct 13, 2013 10:10 pm

ImNoScar wrote:Mother could probably bring an action against the teacher/school guard/whoever should be watching the kid, attaching the school using respondeat superior/vicarious liability.


This is the type of information is needed to the best decision

User avatar
justonemoregame
Posts: 1160
Joined: Fri Jul 01, 2011 3:51 pm

Re: Torts negl. question

Postby justonemoregame » Sun Oct 13, 2013 10:11 pm

Why was the fence climbable? Clearly, they should have greased it.

musicfor18
Posts: 692
Joined: Mon Feb 09, 2009 9:15 pm

Re: Torts negl. question

Postby musicfor18 » Sun Oct 13, 2013 10:13 pm

What is WDA? Wrongful death action? In any case, I think the school does have a duty beyond that of the ordinary person to guard against this kind of danger die to the special "in loco parentis" relationship. But we'd need to know more about the fence. Is it built to the standards that reasonable school would use building a fence? Is there a statute or regulation about fences on school grounds? If so, there could be negligence per se. At any rate, there could be problem with intervening causation or possibly a defense of contributory negligence. Depending on the jurisdiction and the age of the child, he might be too young to be capable of negligence.

musicfor18
Posts: 692
Joined: Mon Feb 09, 2009 9:15 pm

Re: Torts negl. question

Postby musicfor18 » Sun Oct 13, 2013 10:15 pm

justonemoregame wrote:Why was the fence climbable? Clearly, they should have greased it.


Depending on how much it costs to keep the fence greased on an ongoing basis, Posner might find no negligence because B>PL.

Connor Benz
Posts: 113
Joined: Wed Sep 04, 2013 10:49 pm

Re: Torts negl. question

Postby Connor Benz » Sun Oct 13, 2013 10:18 pm

patienunderstanding wrote:
Connor Benz wrote:
patienunderstanding wrote:I was thinking WDA (where all four elements need to be proven), but what else?

How was the school negligent? Was the fence not build properly? Did the school not conform to customs with building the fence? Who build the fence? Was it a independent contractor or the principal's brother? You just said he climbed a fence and died. Why would that be the school's fault? You need to satisfy all 4/5 elements of negligence to prevail on negligence claim.

That's like saying a child climbed my fence fell onto MY PROPERTY and died. How can the mother sue me? How was I negligent?

Don't they have a duty to rescue and protect, since there is this special relationship between school-minor? So if not WDA are there any causes she can bring against anyone?


Yes to an extent. What you should include in your fact pattern is something like this:
Child is on recess playing
Big Bird is the recess monitor and is responsible for watching the kids.
Child climbs fence and dies
Could the mother bring a negligence claim against big bird?
Yes, Big Bird had a duty owed to the children by watching them. Big bird breached that duty when he failed to watch the child. But for the fact Big Bird was not excessing reasonable care and through his lack of attentiveness, child would not been climbing the fence. Because the child climbed the fence he died. Mother can bring a negligence suit against Big Bird and a wrongful death suit as well because of the negligent conduct from Big Bird.

This isn't a model perfect, but you get the idea. Details are key.

Connor Benz
Posts: 113
Joined: Wed Sep 04, 2013 10:49 pm

Re: Torts negl. question

Postby Connor Benz » Sun Oct 13, 2013 10:19 pm

musicfor18 wrote:What is WDA? Wrongful death action? In any case, I think the school does have a duty beyond that of the ordinary person to guard against this kind of danger die to the special "in loco parentis" relationship. But we'd need to know more about the fence. Is it built to the standards that reasonable school would use building a fence? Is there a statute or regulation about fences on school grounds? If so, there could be negligence per se. At any rate, there could be problem with intervening causation or possibly a defense of contributory negligence. Depending on the jurisdiction and the age of the child, he might be too young to be capable of negligence.


Amen!

User avatar
hephaestus
Posts: 2385
Joined: Mon Jan 07, 2013 4:21 pm

Re: Torts negl. question

Postby hephaestus » Sun Oct 13, 2013 10:21 pm

musicfor18 wrote:
justonemoregame wrote:Why was the fence climbable? Clearly, they should have greased it.


Depending on how much it costs to keep the fence greased on an ongoing basis, Posner might find no negligence because B>PL.

Right. There is also a proximate cause/scope of liability question. How many children tried to climb the fence before? Any injuries? Is this a predictable result of the activity (in this case building a fence)?

User avatar
justonemoregame
Posts: 1160
Joined: Fri Jul 01, 2011 3:51 pm

Re: Torts negl. question

Postby justonemoregame » Sun Oct 13, 2013 10:27 pm

They shouldn't have built a climbable fence in the first place. Strict liability. for failed schoolyard fences.

User avatar
banjo
Posts: 1345
Joined: Wed Nov 30, 2011 8:00 pm

Re: Torts negl. question

Postby banjo » Mon Oct 14, 2013 10:46 pm

A hypo involving a fence is pretty much begging for a discussion of trespasser/licensee/invitee, as well as the fact that some courts have eliminated these distinctions. Also, is the child a student at the school? Did the accident happen during school hours when the school was supervising the student? Was there an attractive nuisance issue? And yeah a school fence that's readily climbable by a child and high enough to kill somebody (yikes, so unnecessary) is arguably res ipsa.

User avatar
atcushman
Posts: 389
Joined: Tue Oct 25, 2011 5:08 pm

Re: Torts negl. question

Postby atcushman » Mon Oct 14, 2013 10:49 pm

attractive nuisance

TUICE
Posts: 81
Joined: Mon Aug 20, 2012 3:43 pm

Re: Torts negl. question

Postby TUICE » Mon Oct 14, 2013 11:37 pm

patienunderstanding wrote:Hello everyone,
I have a question. So far in Torts we studied Negligence. Let's say a child (I know MUCH different story than an adult), climbs over a very tall fence, school fence, falls and dies. What causes of action can a mother bring? Thanks a lot.


As a 1L, i read this and immediately looked over my shoulder to see if my friendly neighborhood gunner had his hand raised.

User avatar
patienunderstanding
Posts: 250
Joined: Sat Mar 24, 2012 12:45 pm

Re: Torts negl. question

Postby patienunderstanding » Tue Oct 15, 2013 9:46 am

Thanks A LOT for all the responses. We recently finished Negligence so I tried to come up with a hypo that would involve a couple of diff COA. A child, because diff standards apply. A school bc I was thinking of this school- student relationship in terms of duty etc etc. So summing up: Prima Facie Negligence case against whoever was supervising the kid (and attaching the school if this was during school hours), Wrongful Death Action, possibly attractive nuisance, Res ipsa, Negligence per se (if there's a statue). Anything else? And more basic question, for each of them I would have to prove duty, breach, causation, injury right?




Return to “Ask a Law Student / Graduate”

Who is online

Users browsing this forum: playersball and 1 guest