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Memorandum Answer Sample
Memorandum Answer Sample
Memorandum Answer Sample
11.
Phillipe?
12.
Can Moshroff be held liable for causing the death of
Multibutton?
Brief Answers
1. Yes and Yes, Marankan and Cordrey can be held liable for public
nuisance due to their protestors interference with public rights
and special damage caused to Moshroff.
2. Yes, Moshroff was negligent under the reasonable man standard.
3. Yes, Gluebutton was contributory negligent for the harm he
suffered.
4. Yes, he can be held liable for his failure to assist Gluebutton.
5. No, Moshroff cannot be held liable for his refusal as there is no
duty to rescue others.
6. Yes, Moshroff can be held liable for taking 10,000 rupees under
conversion.
7. Yes, Moshroff was negligent as he created unreasonable risk of
harm for others.
8. Yes, the Organizers were negligent because of their failure to
take necessary precautions.
9. Yes, they can be held jointly liable as the cause cannot be
ascertained.
10.
Yes, if shown that Ms. Zeemy had knowledge of her dogs
vicious propensities.
11.
No, Moshroff acted reasonably in self-defense.
12.
Yes, Moshroff can be held liable.
Facts
Fifty thousand supporters have gathered in support of Mr.
Marankan and Mr. Cordery, in the capital of Kapistan, outside
Moshroffs residence.
around
to
deter
people
from
coming
close.
He
heard
an
and if the gun jams then aim at Moshroff. Multibutton inquired about
the removal of all bullets but one, Moshroff however encouraged him to
go ahead with fully loaded gun. Multibutton pulled the trigger and died.
Discussion
1. Mr. Marankan and Mr. Cordery can be held for public
nuisance and therefore Moshroff can bring a private
action against them.
Fifty thousand protestors had gathered in support of Mr. Marankan
and Mr. Cordrey. These protestors described as rowdy, impeded the
public works and littered the surroundings and led to an unsanitary
environment. Driving in the neighborhood was impossible; Moshroff,
resident of that area, often had to leave his house on foot. Protestors
would at times hit him with a bat or stick or tear his clothes.
According to the Restatement(Second) of Torts 821B a public
nuisance is an unreasonable interference with a right common to the
general public Restatement(Second) of Torts 821B(2)(a) defines a
right common to general public as rights of public health, public
safety, public peace, public comfort, and public convenience. The
Court in Cantwell v. Connecticut, 310 US, held when clear and present
danger of riot, disorder, interference with traffic upon the public
2)
environment
littered
4)
the
street
disturbed
the
3)
contributed
traffic.
This
is
to
an
an
unsanitary
unreasonable
Applying the rules set out in Werium v. RKO General and Vaughan v.
Menlove it can be seen that Moshroff was negligent in driving his car
over Gluebutton. Moshroff faced trouble driving his car in and out of his
house and hence, at times he had to leave his house on foot. This
highlights that it was foreseeable that the protestors could be sleeping
on the road outside his house. Moreover, it was common for the
protestors to impede with public works; this suggests that being out of
light was something which could have been foreseen. Knowing the
unusual circumstances prevailing because of a mob of fifty thousand, it
was Moshroffs duty to exercise such care as man of ordinary prudence
would observe. A reasonable man would have assured that no
protestor was in his way while driving out. Moshroffs failure to do so
caused injury to Gluebutton.
Moshroff had a duty to take care under the reasonable man
standard, his breach of duty caused injury to Gluebutton and thus he
can be held liable for his negligence.
3. Gluebutton was contributorily negligent for his injuries
by switching off the lights.
Gluebutton has disabled the lights around Moshroffs house and was
found sleeping outside the gate of his house.
The Court elucidated upon contributory negligence in Walter v. WalMart Stores, Inc 2000 ME 63 (2000). It was defined as negligence by
the plaintiff that unites with the negligence of defendant and makes
the damage the direct result of both the defendants negligence and
plaintiffs contributory negligence. In Crosby v. Plummer 111 ME. 335,
357, 89 A. 145, 146 (1913) it was held that contributory negligence
does not take way the plaintiffs right to recovery only the amount of
damages maybe affected.
Gluebutton was negligent in turning off the lights and then sleeping
on the road right in front of the driveway, as a reasonable man would
have appreciated the risks of this conduct. Gluebutton was responsible
for his injuries; he was the one who had redirected the lights making it
dark and hence difficult for Moshroff to see him. This contributory
negligence would not discharge Moshroff of his duty to exercise care
but it would result in mitigation of the damages paid to the plaintiff
because of plaintiffs unreasonable conduct and failure to exercise
care.
The injury that resulted was due to the failure to exercise care as a
reasonable person would have not only by Moshroff and but also by
Gluebutton.
negligence.
Hence,
Gluebutton
can
be
sued
for
contributory
F.Supp.2d 418, the Court held that defendant was negligent in his
failure to aid the plaintiff even though the plaintiff only had a 34%
chance of survival.
Moshroff since he had originally injured Glubeutton, can be held
liable for his failure to remove the car and increasing the risk, let alone
his active encouragement to push off the car.
5. Moshroff cannot be held liable for his refusal to take
Pollybutton to the hospital.
Moshroff was driving out when Pollybutton, seeing his uncle
Gluebuttons body in front of Moshroffs gate, smashed the windshield
of. Moshroffs car. Pollybutton was injured by the pieces of glass flying
everywhere. He asked Moshroff to take him to hospital, Moshroff
refused.
In Theobald v Dolcimascola 299 N.J.Super.299 (1997), the question
was whether the friends of the victim, who died playing Russian
Roulette, could be held responsible. The court distinguished between
being actively participating in the game and merely giving instructions
on how to play. It was held that the friends were not liable since there
was no evidence that the friends actively participated or induced the
victim to play and hence they were mere bystanders and owed no duty
to protect him. According to the Restatement(Second) of Torts 314,
the fact that the actor realizes or should realize that action on his part
is necessary for anothers aid or protection does not of itself impose
upon him a duty to take such action. This is illustrated through the
example that a person, who is in position to save a blind man stepping
in way of an automobile, owes no duty towards a blind man.
Pollybutton acted on his own accord and assumed the risks of his
conduct when he smashed the windshield of Moshroffs car. He was not
encouraged by Moshroff to break the glass. The fact that he acted in
anger when he saw the body of his uncle is not sufficient to change the
status of Moshroff from a mere bystander in this particular incident.
Under the above mentioned rule, Moshroff had no duty to rescue
Pollybutton and take him to the hospital.
Moshroff cannot be held liable for his refusal to take Pollybutton to
the hospital since law does not impose a duty to rescue those in peril.
6. Moshroff can be sued under conversion for taking 10,000
rupees from Pollybuttons wallet.
After Pollybutton had smashed the windshield of Moshroffs car,
Moshroff believing that Pollybutton was blinded from the injuries,
reached for Pollybuttons wallet and took 10,000 rupees for the
damage done to the windshield.
Taking
someones
property
without
permission
amounts
as
The organizers of the protest were in the best position to avoid the
harm that resulted. The probability of electric failures and being out of
light is quite high in Kapistan. The organizers should have taken
necessary precautions. They could have avoided the damage by being
equipped with back-up generators; there was no light for fifteen
minutes in a gathering of over two hundred people. The cost of taking
precautions to avoid such circumstances is much less than the
probability multiplied by the loss. It was foreseeable that the crowd
could grow restless in pitch black darkness and that it could result in
injury to the gatherers hence the organizers breach of duty was the
proximate cause of the harm. It is established that the crowd grew
restless, there was rush and several people were trampled as a result,
regardless of the actions of Moshroff.
The organizers were negligent, since that cost of taking precautions
was less than the harm, they had a duty to take care and their breach
of this duty resulted in harm to the protestors.
9. The organizers and Moshroff can be held jointly liable for
the injuries sustained by the protestors.
After the lights went out, people were trampled underfoot because
of the restlessness of the crowd. Moshroffs chair which he was blindly
swinging during this time also hit people. When the lights came on,
twenty people were found lying motionless. Moshroff denied assuming
the responsibility by saying that they might have been injured due to
the rush.
In Summers v. Tice 33 Cal.2d 80, the Court had to decide which of
the two defendants shot hit the plaintiff injuring him in face and eye.
The Court held that both the defendants were jointly liable since it was
impossible to ascertain whether the shots were from the gun of one
defendant or the other or one shot from each of them. It was further
held that in case like this where there are several tortfeasors, the
burden of proof would shift on them to show that they were innocent.
As already established twenty people were lying motionless and
both the parties were negligent. Some of these people might have
suffered harm due to being trampled underfoot; others might have
been harmed because of being hit by the chair. It is not possible to
ascertain how exactly these twenty people suffered injuries. Therefore,
Moshroff and organizers could be held liable joint and severally and the
burden of proof would be on them to show that they their actions were
not the cause of injury to these twenty people.
Since, the sole cause of harm cannot be ascertained and both the
parties were negligent; Moshroff and the organizers can be joint and
severally liable.
10.
Moshroff
cannot
be
held
liable
to
pay
for
Since, the dog posed considerable threat and Moshroff acted in selfdefense, he cannot be held liable to pay for the medical bills.
12.
Moshroff
can
be
held
liable
for
causing
Multibuttons death.
Mutlibutton came to Moshroffs place to avenge him for his
nephews death. Multibutton was let onto the balcony where he pulled
out a revolver and pointed it at Moshroff. Moshroff proposed the game
of Russian Roulette and to leave it on fate to decide who gets to live.
He instructed Multibutton on how to play the game and encouraged
him to go ahead with all the bullets in the revolver.
In Great Central Ins. Co v Tobias 37 (1987) Ohio St.3d 127 it was
held that inducing an individual to engage in Russian Roulette creates
a sufficiently foreseeable harm to engender potential civil liability.
The
issue
at
hand
can
be
distinguished
from
Theobald
be
mitigated
due
to
the
comparative
negligence
of
Multibutton.
Conclusion
From the above discussion, it seems that Mr. Moshroff is likely to be
found
negligent
in
most
cases.
Using
the
principle
of