I quite enjoyed this one, since it involves a reality Tv show.

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Part II. Essay

Respond fully in essay form to the question below. 

Erica Plaintiff is selected, after a rigorous screening process, to be on a new reality TV show, “Torts Everywhere.”  Erica is to live in the state of Goldbergia, USA, in a house selected by the television show.  Viewers watch her contend with a variety of issues set up by the “Torts Everywhere” producers, including the oven easily catching on fire, the toilet overflowing, and strange noises constantly being heard while Erica is trying to sleep. 

One day, during filming, the producers of “Torts Everywhere” also discontinued Erica’s phone service.  She accidentally tripped on the floor (not due to anything set up by the producers, but because she is clumsy), and could not call for emergency assistance.  Due to her inability to get timely medical care, what might have been a simple cut became infected, and Erica incurred medical bills and lost wages as a result of the delayed medical treatment.

Erica sues those involved in the making of “Torts Everywhere” for both battery and negligence (assume vicarious liability is met). 

Answer the following questions:

1. How is Erica likely to fare on the battery claim?  Can she meet the elements of battery?
2. What defense would “Torts Everywhere” assert to the battery claim, and how is that likely to fare?
3. How is Erica likely to fare on the negligence claim?
4. If “Torts Everywhere” argues assumption of the risk and comparative negligence, how are these defenses likely to fare?  Analyze the two defenses separately.

Answer Key:

Battery:

1. Battery is an intentional harmful or offensive contact upon another.  The harmful/offensive contact was between Erica and the ground, but the intent element may not be met.  The producers, in this scenario, didn’t do anything to the floor for Erica to trip.  Although they did disable her phone service, which made her injury worse, they do not seem to have the requisite purpose or knowledge for the contact that occurred between Erica and the floor.  This is unlike Garratt v. Dailey because there isn’t even a supposed prank involved that caused the contact. 

2. Their best defense to this battery, if it is a battery, is consent.  Erica agreed to be on this TV show, where she would experience many torts.  She agreed to do this for money, or for fame, or for fun, or any number of reasons.  To the willing, there is no injury, just as a prize fighter who dies cannot later sue if he is injured far more than he expected.  There is a question of whether disabling Erica’s telephone was within the scope of her consent, but “Torts Everywhere” as a premise seems to indicate that Erica was agreeing to any number of offensive contacts potentially happening to her – and the defense might at least get to a jury.

Negligence:

3. The act of cutting Erica’s telephone wires constitutes malfeasance, so there is a general duty to avoid causing harm through actions.  A reasonable person would not cut someone’s telephone wires, and this did cause Erica’s injury – or at least cause the aggravation of an existing injury.  An injury of this nature is not unforeseeable, so the breach will not be dismissed on summary judgment like in Adams v. Bullock.

But for the cutting of the telephone wires, Erica would only have a simple cut, not an infected injury requiring medical treatment.  Certainly, this type of injury is not unexpected, given that Erica is living in a torts-infested house and cannot call for help, so this is not a Wagon Mound situation.  Disabling someone’s phone is risky precisely because then people cannot use their phones when they are needed, so this injury is within the scope of the risk, and proximate causation is met. 

4. The producers of “Torts Everywhere” will first claim comparative negligence.  Erica had a duty to herself to avoid causing harm through malfeasance, such as tripping.   She breached this duty by being clumsy.  Her clumsiness doesn’t get taken into account in the reasonable person standard, so a jury is likely to decide she fell below the standard of care.  In addition, her clumsiness is both the but for and proximate causes of her injury.  If she hadn’t fallen, even with the disabled phone wires, she wouldn’t have been injured.  Tripping and falling is within the scope of the risk of acting clumsily.  She will likely have to pay some amount for falling in the first place.   if Erica lives in a comparative negligence jurisdiction, that will be a complete bar to recovery, otherwise, the negligence gets compared in some way – or perhaps is a bar in a modified comparative negligence jurisdiction. 

The assumption of the risk defense may also be valid, both express and implied.  Erica likely signed a contract to be on the show, and she may even have accepted the idea that her phone would be disabled, or any number of tortious events would happen to her.  Discuss the Tunkl factors… Given that, if the courts upheld this contract, any number of injuries could befall her, and the “Torts Everywhere” producers would have a complete defense even to the aggravation of her harm from a small cut to a serious injury.    For implied, this would be primary assumption of the risk, because the risk is inherent to the activity, but the tough question would be whether having her phone service discontinued is within the scope of the risk.  Perhaps not, since that seems beyond just a house of torts happening.