Torts

Model Answer #15

A. Alee v. Bob’s Grocery Store (Bob’s)

Negligence
Negligence requires a showing that a duty was owed, that the duty was breached, and the
defendant’s breach was the actual and proximate cause of Plaintiff’s damages.

Duty – Invitee
An invitee is one who comes upon the land with the owner’s permission for the purpose for
which the land is maintained. A landowner has a duty to an invitee to reasonably inspect, correct
or warn of any dangers.

Bob’s is open to the public. Alee will argue she went into Bob’s to seek shelter from a severe
thunderstorm. Moreover, since the grocery store was open to the public, Alee impliedly had the
owner’s permission to seek temporary shelter in Bob’s from a severe thunderstorm. Thus, Bob’s
owed a duty to Alee to inspect the premises, and correct or warn of any known dangers.
Therefore, when Alee went into the store and slipped on a bunch of grapes that had fallen from
the display located near the entryway, Bob’s had a duty to warn Alee.

Bob’s will contend that Alee was not there to shop, but was there to seek shelter from the
thunderstorm. Thus, she was a trespasser and no duty was owed. However, when a business is
open to the public and a member of the pubic enters the premises, a duty is owed. Bob’s will
further contend that a patron of the store must have knocked the grapes off of the display and that
they were not aware of the situation. Thus, no duty arose.

However, the witnesses who saw Alee fall stated that the grapes where smashed, flattened,
squished and gritty. Bob’s had a duty to inspect its premises and correct such condition if no
warning of the condition was provided to its patrons.

Therefore, Bob’s owes a duty of care to Alee.

Breach
A breach is a failure of the landowner to reasonably inspect, correct or warn of any dangers.

Alee slipped on grapes that were on the floor. The grapes where smashed, flattened, squished,
and gritty. Thus, the grapes had been on the floor for a long period of time. By Bob’s’s failure
to notice the grapes on the floor and their failure to either correct the dangerous condition or to
warn Alee shows a breach of their duty.

Therefore, Bob’s breached their duty owed to Alee.

Actual Cause

“But for” Bob’s failing to discover and remove the grapes or warn Alee about the grapes, Alee
would not have fallen and been injured.

Thus, Bob’s was the actual cause of Alee’s injuries.

Proximate Cause
Bob’s will argue that a customer must have allowed the grapes to fall. Thus, an intervening act
occurred which would cut off their liability.

However, although Bob’s acts were indirect and independent of the unknown customer who
knocked the grapes off the display, it is foreseeable that grapes may get knock off a display and
thereafter another customer will not notice the grapes and step on them and fall.

Therefore, Bob’s was the proximate cause of Alee’s injuries.

General Damages

Plaintiff must have sustained actual damages to person or property to recover for negligence.

Due to Bob’s failure to warn Alee about the grapes on the floor she would not have fallen and
suffered injuries.

Therefore, Alee may recover for her personal injury.

Special Damages

Plaintiff may recover for any medical damages or lost of income if specifically plead.

Alee will be able to recover for any medical expenses incurred and any lost wages.

Therefore, Alee may recover special damages.

Defense - Contributory Negligence

In a contributory negligence jurisdiction, conduct of plaintiff which falls below the reasonable
person standard of care is a complete defense to a negligence cause of action.

Bob’s will argue if Alee was looking where she was walking she would not have failed to notice
the grapes on the floor and she would not have slipped on the grapes. The act of not looking
where you are walking is conduct falling below the standard of care to which Alee should have
conformed to protect her own safety. Thus, she contributed to her own injuries

However, Alee will contend that it is common not to look at your feet while you are walking,
particularly in a grocery store where there are colorful, attention-grabbing displays to which
shoppers’ eyes are attracted. Moreover, a customer may assume, without knowledge to the
contrary, that the condition of the premises is not dangerous. While Bob’s might argue Alee was
not shopping and not likely looking at store displays, Alee may still argue she is entitled to the
“safe premises” assumption in the absence of any reason to know the grapes were on the floor,
particularly since the grapes were present in a high traffic area near the entryway. Thus, her
conduct did not fall below the standard of care she owed to herself.

Therefore, contributory negligence is not a valid defense.

Last Clear Chance

To avoid the harsh effect of plaintiff’s contributory negligence, some jurisdictions will hold that
a plaintiff is not barred from recovery where a defendant had the last clear chance to avoid the
accident just before it occurred, but failed to do so.
It appears from the facts that Bob’s could have avoided the accident if they would have warned
Alee about the grapes on the floor. If Alee was warned about the grapes on the floor she would
not have fallen and been injured.

Thus, if the court finds Alee was contributory negligent Bob’s had the last clear chance to
prevent the injury.

Therefore, Bob’s will be liable for Alee’s injuries.

Defense - Comparative Negligence

In other jurisdictions where plaintiff’s conduct falls below the standard of reasonable care
including the amount of plaintiff’s negligence, is apportioned according to fault.

As argued above, Alee’s conduct did not fall below the standard of care she owed to herself.

Therefore, comparative negligence is not a valid defense.

Assumption of Risk

One who assumes the risk when she has knowledge, comprehension and an appreciation of the
danger and voluntarily elects to encounter the danger.

Bob’s will argue Alee failed to notice the grapes that had fallen from a display near the entryway
that caused her injury. By walking without paying attention to the walkway in front of you she
had comprehension and an appreciation of the danger and voluntarily elected to encounter the
danger of any objects that may be on the floor.

However, Alee was not aware of the grapes on the floor. Hence, she was not aware of nor
comprehend the risk before she encountered it.

Therefore, assumption of the risk is not a valid defense.

B) Cathy v. Bob’s Grocery Store (Bob’s)

Products Liability

When a product is defective and causes injury, the manufacturer, distributor or retailer may be
liable under one or more theories of recovery governed by products liability. In a products
liability lawsuit, the product can be defective in design, manufacture and/or warning.

Negligence

Negligence requires a showing that a duty was owed, that the duty was breached and that the
breach was the actual and proximate cause of damages.

Duty

A distributor of a product owes a duty of due care to inspect, discover, and to correct or warn of
any defect. The duty is owed to all foreseeable persons who may be a user of their product.

Bob’s was offering samples of the berry pie that had a pebble in it. As the retailer of the product,
Bob’s owes a duty of due care to correct known defects associated with the sale of the Mom’s
berry pies and to eliminate the harm that can be caused from the use of such product. Since
Cathy sampled the pie that was being offered, she is a foreseeable user.

Therefore, Bob’s did owe a duty to Cathy.

Breach

Where the product is defective in manufacturing, design or there is a lack of warning, a Plaintiff
may establish a breach if the product does not meet the ordinary consumer expectations of the
average reasonable consumer.

Manufacturing Defect

A manufacturing defect is where the product is different in kind to the rest of the line of
products.

Cathy sampled some of Mom’s Whole Berry Pie that was being offered from Bob’s. Mom’s
Bakery made the berry pie. Since the pie that was produced had a pebble inside, the pie
produced was different in kind from the rest of the berry pies produced by Mom’s Bakery.

Therefore, there was a manufacturing defect.

Warning Defect

A warning defect exists when the manufacturer fails to warn of any potential harm that may
result from the use of its product.

Cathy sampled Mom’s Whole Berry Pie that was being offered from Bob’s. The berry pie had a
pebble inside which Cathy bit down on and broke a tooth. Bob’s failed to warn Cathy of the
pebble in the berry pie. Thus, there was a warning defect.

However, Bob’s had no knowledge of the defect in the pie. Thus, under the sealed container
doctrine, Bob’s had no duty to warn of any potential dangers.

Therefore, Bob’s did not breach their duty to Cathy.

Implied Warranty of Merchantability

There exists an implied assurance from a manufacturer, distributor or retailer that warrants the
product is of fair and average quality when the product is put into the stream of commerce.

Bob’s sold and offered samples of Mom’s Whole Berry Pie to their customers. Bob’s, as a
retailer, warrants that the product is of fair and average quality. Because of the manufacturing
defect of the pie and the lack of warning, Cathy would not have bit down on a pebble and broke
a tooth sustaining injuries. Thus, the berry pie was not of fair and average quality.

Therefore, Bob’s will be held liable for breach of implied warranty of merchantability.

Actual Cause

But for Bob’s failure to adequately warn that the berry pie had a pebble inside, Cathy would not
have bit down on the pebble and broke a tooth

Therefore, Bob’s is the actual cause of Cathy’s broken tooth.

Proximate Cause

It is foreseeable when Bob’s, a retailer of Mom’s berry pies, failed to adequately warn that the
pie had a pebble inside, Cathy would have bitten down on the pebble in the pie and break a tooth.

Therefore, Bob’s is the proximate cause of Cathy’s broken tooth.

General Damages

General damages allow recovery for personal injury and property damages.

Since Cathy suffered a broken tooth because of the pebble inside the berry pie, she received
damages which flow naturally from Bob’s lack of warning, such as her pain and suffering.

Therefore, Cathy is entitled to general damages.

Special Damages

Special damages allow recovery for those damages which are plead and proven.

Cathy will be able to recover for any medical expenses or lost income that is plead and proven.

Therefore Cathy is entitled to special damages.

Strict Liability in Tort

If a defective product is placed in the stream of commerce, the manufacturer, distributor, or

retailer will be held strictly liable in tort to all consumer-users for their injuries. For a product to
be defective it must be sold by a commercial seller and be unreasonably dangerous in its normal
intended use. Some jurisdiction require the defective product causes harm in it normal use.

Bob’s was offering a sample of the berry pie to get consumers to purchase the new product, i.e.
Mom’s Whole Berry Pies. Bob’s gave Cathy a sample of the berry pie which contained the
pebble. Thus, Bob’s placed the pie in the stream of commerce.

Further, the pie had a pebble inside which Cathy bit and broke her tooth. Thus, the berry pie was
unreasonably dangerous in its normal use.

Therefore, Bob’s will be held liable for strict liability in tort.

Actual Cause

Defined and discussed supra.

Proximate Cause

Defined and discussed supra.

General Damages

Defined and discussed supra.

Special Damages

Defined and discussed supra.

Indemnity

Indemnity allows a Defendant, who is secondarily liable for Plaintiff’s injuries, to receive full
reimbursement against the party who was primarily responsible for the injury.

Although Bob’s gave the sample of the defective berry pie to Cathy, it was Mom’s Bakery who
manufactured the defective berry pie. Thus, Mom’s Bakery is primarily responsible for Cathy’s
injuries and Bob’s only secondarily liable.

Therefore, Bob’s will be entitled to indemnification again