Posted: April 19th, 2021
Please read the following hypothetical fact scenario:
Josephine and Tina are both law students at National Law School. They are highly competitive and they both aim to be the top graduate in their class. Only one of them can earn this honor. They consider themselves “frenemies.”
As they study for their upcoming torts exam, they visit their instructor, Professor Alvarez, in her office and ask if she could recommend any additional study guide. Professor Alvarez says that she authored a new supplemental study guide that was recently published and that the guide would be a huge help. Tina leaves the office but Josephine stays a bit longer– long enough for Professor Alvarez to mention, “the publisher sent me so many extra copies of the guide that I have to store them on my back porch.”
Josephine and Tina go online and discover that the guide book will not be available to the public for another month. They express disappointment with each other.
At nightfall, Josephine goes to Professor Alvarez’s house, walks onto the backyard and approaches the back porch but does not see the guide books. She looks around and then sees a stack of study guide books on the public sidewalk in front of Professor Alvarez’s house. She takes one of the study guides.
The exam was brutal. After the exam, Professor Alvarez sees Josephine in the hallway holding a copy of the study guide. She says, “I’m so glad you found the study guide on our sidewalk. My husband has been nagging me to find a place for them, so he stacked them on the sidewalk for me to load them into my car and take them to my office. When I saw you come onto my property and look for one on the back porch, I giggled to myself, noting what a resourceful student you are.”
Tina sees this interaction between Josephine and the Professor and Tina is jealous that Josephine scored a copy of the study guide.
After the exam, many of the students go to the local bar to celebrate. Tina did not feel like celebrating, and she does not drink– in fact, she is the president of the Students Against Drunk Driving club. She went to the bar nonetheless, looking for Josephine.
Tina approaches Josephine in the bar, puts her fist in Josephine’s face and says, “if you score better than me on the exam, you may not be around to show your face at school ever again.” Believing she was about to be harmed, Josephine slapped Tina in the face. Tina, who now has a bruise on her face, backs off. Josephine and a group of friends raise their beers in celebration. Unbeknownst to Josephine, Tina snapped a photo of Josephine drinking a beer.
Tina operates a Facebook page for the Students Against Drunk Driving student group. She posts the photo of Josephine on the page with the caption, “Josephine is a partier who causes drinking and driving accidents.” She tags Josephine and all students at the law school, who are all notified by Facebook of the post.
Josephine is humiliated. Under the impression that she causes drinking and driving accidents, the students at school shun her. Further, the law firm she planned to work for after graduation notified her that it was rescinding (taking back) the job offer as a result of seeing the Facebook post.
Josephine suffers from emotional distress. She has not eaten in days. She drives to see Wendy, her therapist, for an evening appointment. Frazzled, she accidentally hits a light pole in front of Wendy’s office while trying to park. The impact causes an immediate power outage in Wendy’s office. The other patients waiting in Wendy’s office are startled by the sudden blackout. One patient– a 90-year-old woman named Lydia–suffers a serious heart attack.
Having seen the Facebook post and assuming this accident was the result of Josephine’s drinking and driving, Wendy locks Josephine in the office closet for 3 hours until the police arrive.
Please prepare your responses to the questions below on a typewritten document. Include your name and course section number printed at the top of the first page. If there is more than one page, you must staple the pages together. There is no page minimum or maximum. Your responses should be well-organized and easy to follow.
The hypothetical fact scenario raises possible tort law claims described in chapters 5 and 6 of our course textbook. Please identify any torts in the scenario that have been, or may have been committed, and provide the information requested below for EACH possible tort. For your reference and example, I include model answers for the claim of battery. Please DO NOT include a battery claim in your response; you will receive no points for doing so.
Be sure to answer the five questions for EACH possible tort you identify, even if it may feel repetitive. You do not need to write a narrative or essay in response to each question, just provide the necessary answer for each question and make it clear which question you are answering for each tort you identify. For ease of organization, I recommend following the format I provide for each tort.
This assignment is worth up to 25 points. Each tort identified is worth up to 7 points. It is to your advantage to identify as many tort claims as possible, although the maximum number of points available is 25.
1. Identify the tort or possible tort claim.
2. Describe the essential elements of the tort or possible tort claim. These elements are provided by law. It is not necessary in response to this question to mention any of the facts of our hypothetical case (you will do so in questions #3-5 below) (1 point per tort)
Example: a. the defendant harmfully or offensively made physical contact with the plaintiff
b. the physical contact was intentionally committed
3. Identify the relevant facts for the support– in other words what facts lead you to believe that a tort claim exists or might exist. (2 points per tort)
Example: Josephine made harmful physical contact to Tina– she slapped Tina and the impact left a bruise. Josephine intended the contact– it was not an accident.
4. Evaluate the strength and weaknesses of the tort claim or potential tort claim, including any defenses that could be raised. Is it more likely for the plaintiff to bring the claim to prevail? Or is it more likely for the defendant defending against the tort claim to prevail? Argue your case. (3 points per tort)
Example: It seems more likely for the defendant to prevail. Tina made an aggressive hand gesture at Josephine, likely giving her the impression that she could be punched at any moment. Tina also made and a serious threat– a threat that implied that Tina could kill Josephine. At the moment, Josephine defended herself by slapping Tina. Self-defense is a defense to the claim of battery. The form of self-defense employed by Josephine was more than reasonable and necessary given the seriousness of Tina’s gesture and threat.
5. Assuming the plaintiff (the party bringing the claim) prevails, what damages might the plaintiff recover? (1 point per tort)
Tina, the plaintiff, would be entitled to compensatory damages to make her whole as if the tort never occurred. It seems unclear if the slap required Tina to incur medical bills. If it was just a bruise, it seems doubtful. If the bruise was painful, Tina may recover some compensation for her pain and suffering.
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