Yesterday, I posted a simplified practice torts hypothetical  for a closed-book exam here.

Below is a model answer, in outline form.  During the review session today, my students may come up with more issues (that’s what I love about torts).  If you see something I missed, say something.

Mary Sue versus Mr. and Ms. Douglas:

Negligence for failure to maintain property

• It’s unclear whether Mary Sure is a trespasser or an invitee, because she was an invited guest but was not expected until later. However, the Restatement Third collapses the distinction between all common law categories of duties of landowners, except for flagrant trespassers, and Mary Sue is not a flagrant trespasser.
• Duty and Injury: The Douglas family thus owes Mary Sue a duty to exercise reasonable care to avoid causing physical injuries like Mary Sue’s hand injury – based on dangers that are known or would be known given a reasonable inspection.
• Breach: The Douglas family could argue that because it just snowed last night and they live in a deserted area, waiting one day to de-ice the driveway was not a failure to exercise reasonable care. This is a pretty good argument, although questions of breach are usually questions of fact for a jury so Mary Sue’s claim may survive summary judgment.
• Causation: But for the fall on the ice, May Sue may have injured her hand anyway.  Mary Sue does not know whether her hand was injured during her initial bike accident or during the fall.  The fact that Mary Sue was dazed affects her ability to give evidence on this issue, but a court is unlikely to extend cases like Ybarra v. Spangard, which allows a res ipsa instruction, to causation – in that case a court was avoiding the problem of lack of evidence because plaintiff is necessarily unconscious during surgery, but something definitely happened during the surgery, and Ybarra is the outer limits of res ipsa.  Res ipsa allows evidence of breach based on injury, and isn’t really applicable to causation.  Mary Sue may just not have enough evidence to prove causation – although if she does, she can show proximate causation because unlike in Wagon Mound, where the ship’s destruction was unpredictable based on the negligence, her type of injury was reasonably foreseeable based on a fall on the ice.
• Affirmative defense: The Douglas family has an affirmative defense of comparative negligence.  Mary Sue was not paying attention while biking, which was both a but-for cause of her injury (she wouldn’t have gone to the Douglas house) and likely a proximate cause of her injury (needing to get help and being dazed after a bike accident is reasonably foreseeable).  A jury will apportion damages between plaintiff and defendant.

Mary Sue versus Winston:

Intentional Infliction of Emotional Distress

Mary Sue can assert a claim of IIED if Winston’s conduct was (1) intentional or reckless, (2) extreme and outrageous, and (3) caused severe emotional injury to a reasonable person.

• Winston likely intended, or was at least reckless to the possibility of, causing severe emotional distress when he purposely berated someone who had just been injured in a bike accident, telling her that she had no value.
• However, this case is not as strong as a case like Womack v. Eldridge, where a photographer deceived a man into having his picture taken and becoming a defendant in a child sexual assault case, because yelling at someone is nowhere near as emotionally stressful as subjecting someone to unjust criminal penalties. Because of this, a court may say that Winston’s conduct was not extreme and outrageous as a matter of law.
• This is especially true because a reasonable person might not have suffered severe enough emotional distress to turn this stand-alone emotional harm into an actionable tort. Mary Sue is a hypersensitive person, although a reasonable person in this situation may also have suffered severe emotional distress.  If so, a court will allow this claim to go to a jury.
• There is no comparative negligence here because a plaintiff’s negligence is not compared to a defendant’s intentional tort.

Edit:  a student noted that you could raise a First Amendment defense.  So shocking that I missed that!