TORTS MIDTERM EXAMINATION

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  • Discuss the different aspects of the law covered in this course, and how it all comes together to impact the individuals and organizations (e.g. businesses and institutions) in society.  In doing so, you may refer to specific examples of situations that have occurred or may occur in your life, or the lives of others, and the impact that the law covered in this course did have, or could have, on the outcome of each.  Any details that are part of an actual lawsuit or legal dispute should not be included in your answer if they are in any way considered “Confidential.”

TORTS MIDTERM EXAMINATION

Issues

The tort law identifies the law accountable for any injury to others . Different aspects of this law covered are an international tort, strict liability as well as negligence . Clancey had outlined law as a composition of the body of rules conducting or governing with the binding of a legal force. He moreover, stated that the Institute Of American Law has the right to series legal volumes that explains the existing law like tort law or contract law. Moreover, the change of this law is also explained . Along with this, Gilbert's law outline shows that the tracking chart allegedly helps a law student to cross the outlines to the books of cases that they are using . The Black Law Dictionary states that the tort law is related to the civil or private injury or wrongdoing . This furthermore, includes action for breach of contract which tends the court to provide a remedy in the form of punishment for the damages that have been caused to the victims.

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International tort law is applicable when an individual is engaged in any activity that may tend to cause harm or injury to others. This type of tort is associated with any assault, defamation, conversion, false imprisonment or an intentional infliction of any emotional distress. This law can be seen from the case of Ana Marina Perez-Rabanales, the Petitioner v. Jefferson, attorney general, the respondent . This case furthermore, shows that Ana Marina Perez-Rabanales seeks judicial review of the Board of Immigration Appeals (BIA) that denied her application for asylum. BIA moreover, withhold for removal and protection as per the basis of United Nations Convention Against Torture (CAT). Ana Marina Perez-Rabanales claimed that a person named Rodrigo De Leon had stabbed while she was returning from the church. Along with this, that man had raped her. The petitioner believed that women do not have any right to raise any complaint which tends her not to file a complaint against that man. In addition, this incident made her pregnant. Later, she was being attacked by the sister-in-law of Rodrigo De Leon and his three relatives had beaten her. Moreover, the petitioner was being threatened by his relatives. In 2014, Ana Marina Perez-Rabanales was placed in removal proceedings for entering the United States without any proper inspection. Moreover, she was being cross-applied for an asylum, CAT protection and withholding of removal.

For instance, another case study depicts the international tort law. The Gabriel Taylor, the petitioner v. Steven Racette , the respondent, shows that the district court had granted a certificate of appeal ability in the receipt of the petitioner. Taylor had signed the petition in 2014. After signing the petition, the plaintiff placed the petition in the mailbox of the prison. The prison mailbox rule suggests that legal paper of any prisoner must be considered and judged as per the file from the time a prisoner delivers to the authority of the prison. Furthermore, the New York Court of Appeals denied the motion for leave and gave a decision that such appeal is an extraordinary circumstance to equitability toll. Furthermore, report of the magistrate revealed that the petitioner has not alleged based on which the delayed filing of the petition can be excused.

Another aspect of tort law includes negligence that suggests that an individual is expected to follow a specific code of conduct. Moreover, the legal duty of public is to act in a certain way that may help to reduce the risk to others. However, failure to such can lead to negligence. This type of tort is generally related to car accidents, medicine malpractices or accidents caused due to slip and fall. For instance, negligence has been shown by the case of Li v. Yellow Cab Corporation of California . The case had been dealt by the Supreme Court of California. This case involved an accident that occurred near the crossing of Third Street and Alvarado Street in Los Angeles. Furthermore, the Third Street runs in an east west direction along the hill crest. On the other hand, the Alvarado Street runs north-south rising gently to the crest of the hill from either direction. On the day of the incident, Nga Li, the plaintiff was moving in the northbound on Alvarado Street. She was moreover, 70 feet away from the Third Street and was taking a left turn across the three southbound lanes of the Alvarado Street. Robert Phillips, the defendant was an employee of the Yellow Cab Corporation of California. The defendant came over the hill crest and made a collision with the right near the position of the vehicle of Nga Li. This resulted in injury to the plaintiff along with her vehicle.

The last aspect of this law is a strict liability which depicts the fact that liability can be applied to cases where responsibility for injury can be applied on the person who is involved in the wrongdoing without any direct fault or any proof of negligence. In such cases, the victim needs to establish that the injury is related directly to the products. For example, this aspect can be seen from the case study of Rylands v. Fletcher . The case depicts that the coal mine of Mr. Fletcher had been flooded by the water of mill reservoir of Mr. Rylands'. Along with the above-mentioned case study, the case study of Larson v. Francis Hotel shows a strict liability of tort law . In this case, the plaintiff was walking on the sidewalk of Post Street that adjoins the Francis Hotel. Stepping out from the marquee, she was being struck on the head by an overloaded armchair. She moreover, had injuries which tend her to claim for damages from the owner of the hotel. However, no one has witnessed this incident and as per the owner of the hotel, the chair does not even belong to the hotel. The plaintiff of this case had further quoted that the motion of the non-suit must indicate the attention of the council and court. However, as per the complaint of the plaintiff, the defendant was involved in the business of the hotel and had the right to control the management. However, the defendants later commented that such argument of the plaintiff has been without any merit.

Regulation

 The case of Ana Marina Perez-Rabanales v. Jefferson shows the fact that any review related to cases of immigrants are focused on the final decision of BIA. Moreover, this case is based as per the basis of the Matter of Acosta of BIA 1985. This legislation, however, depicts that an individual who is entering the United States without any proper inspection is denied the application of the respondent for the grant of an asylum. In addition to this, an individual in order to be entitled to withholding banishment to any country is required to show that his freedom, as well as his life, is threatened in such country. This is, however, applicable on the basis of the account of religion, race, membership of any specific group and nationality as per the section 243 of the Immigration and Nationality Act (1982).

In the case study of Gabriel Taylor v. Steven Racette, section 636 of 28 US code has been used by the New York Court of Appeals. This legislative, however, reveals that the power so as to conduct trials as per the section 3401 of codes of the United States is similar with the limitation of that section. Moreover, as per the section d of 2244 of 28 US code , a limitation of one year period may be applied to the application for a warrant of habeas corpus by the person who is in custody. However, the limitation period runs from the date on which the final decision had been taken by the conclusion of the expiration of time or by the direct review.

The case study of Li v. Yellow Cab Corporation of California depicts that contributory negligence has been conducted on plaintiffs' part. This moreover, falls below the standard that leads to the fact that the defendant must confirm his own protection. As per the section 463 of Restatement (Second) of tort , a vehicle driver can be found guilty of negligence or contributory negligence if that driver drives into a screen of smoke or dust or fog for which he lost his visibility. Along with this, this legislation describes that the conduct on the part of an individual seeking recovery for any harm due to negligence that tends him to the doctrine of contributory negligence. Moreover, as per section 1714 of the civil code of California, an individual is responsible for the outcomes of his willful activities. Moreover, that individual is responsible for the injury that resulted from the activity. In addition to this, in order to reinstate the interpretation of judicial of this section, the consumption of alcohol can be the cause of the injury inflicted on other.

From the case study of Rylands v. Fletcher, it was seen that the Court of Exchequer had opined that the plaintiff had developed no cause of action. However, the Court of Exchequer Chamber came to a conclusion that there was indeed a cause of action. As a result of this, the plaintiff must be entitled to the damages that were caused. Furthermore, two points were being argued in this case. Firstly, if the defendant is liable despite proof of negligence on his own part or on the part of one who was engaged with him to construct the reservoir. Secondly, if the defendants, though guiltless of negligence was liable for the negligence of the employed contractor. Based on the first point, it was being argued that the defendant is not guilty of negligence and is, therefore, not liable to any harm because of the outburst of the reservoir. The restatement (third) of the torts: products liability of 1998  has depicted liability rules of sellers of commercial products on the basis of any product defects at the time of sale. Additionally, this legislation depicts liability rules of commercial products sellers not on the basis of any product defects at the selling time and also the liability of apparent manufacturer. Moreover, as per this legislation, a product is defective if it contains any manufacturing defects at the time of departure from the intended design. Along with this, a product can be defective due to inadequate warnings or instructions at the time of foreseeable risk of harm. The case study of Larson v. Francis Hotel shows that the plaintiff after proving her injuries and the forging facts relied on the doctrine of res ipsa loquitur (that is the thing speaks for itself). Furthermore, the court had granted a non-suit. In addition to this, the District Court of Appeal of California as per the basis of Restatement (second) of the tort of 1965 has stated that the Francis Hotel does not have any control on the windows, rooms, furniture, and guests. Moreover, section 402 (A) of this legislation deals with the strict liability of the tort law. This legislation has depicted the emergence of uncertainty in strict liability of product of the tort law. This was, however, done to protect the consumers or individuals from any harm or injury.

Application 

Tort law has a direct impact on the business that can be in the form of a person who is being harmed by the actions of any of the employees or by the business . Moreover, an individual can be harmed by the products that are being manufactured. In addition to this, a business can be harmed by the wrongdoing of an employee or by other competitors. These can furthermore, led to the loss of the business opportunity. As a result of this, loss of clients can take place . The Ana Marina Perez-Rabanales v. Jefferson depicts that BIA had described immutable and common characteristics as one that the members of a group either cannot change or should not be changed. This is moreover, due to the fact that it is fundamental to consciences as well as the identity of an individual. The petitioner in this case that is Ana Marina Perez-Rabanales argued that the agency has failed to analyze her claim. Moreover, the Immigration and Nationality Act does not support asylum for an individual who had already suffered from severe harm. BIA had found that Ana Marina had failed to establish a link between the statutorily protected ground and the harm that she has claimed for. As a result, there was no mistake in renouncing the analysis of prosecution of the past. Finally, BIA had rejected the claim as put forward by the petitioner for CAT protection. Furthermore, BIA concluded that Ana Marina had not shown likelihood and she will be subjected to torture upon returning to Guatemala.

The Gabriel Taylor v. Steven Racette shows that the court considers the filing date of the petitioner that is the date in which the petitioner had signed the petition rather than the day of placing the petition in the mailbox. However, this case study has tended to the fact that any in absence of any proper evidence, the district court assumes that the paper of the prisoners on the date of signing is given to the officials of the prison. However, the court agreed with the fact that if conviction of the petitioner was being finalized on 26 December 2012 then the petition will be untimely. Furthermore, the court agreed to the fact that Gabriel Taylor does not contain the equitability toll of the limitation period of Antiterrorism and Effective Death Penalty Act (AEDPA). The court had moreover, read the charitable light that contained the basis of equitability toll of AEDPA's limitation period. Taking such step had enabled the court to identify one of the basic toll limitation periods. Furthermore, the United States Court of Appeals concluded that the petition of Gabriel Taylor is untimely. Moreover, the court concluded that the petitioner has not shown the extraordinary circumstance that may tend to a warrant of equitability toll of the limitation period as per AEDPA.

Any change in the contributory negligence law needs to made by the legislature and not by the court as was seen from the case of Li v. Yellow Cab Corporation. Despite the fact, that the doctrine of contributory negligence has been originated from judicial. This case had tended the Supreme Court of California to reverse the judgment of the trial court. As per the doctrine of contributory negligence, if a plaintiff is not attentive in any manner then it is a bar to recovery no matter how severe the injury is. Furthermore, the court held that California needs to adopt the pure form of comparative negligence instead of a harsh doctrine of the contributory negligence of tort.

The House of Lords in the case of Rylands v. Fletcher  had come to a conclusion that liability existed due to the fact that the defendant had put his land to an unnatural use. Moreover, if the water had flooded any land naturally then in that case the defendant is no longer liable for the harm or damage. This case furthermore had tended to make a rule that an individual who brings any dangerous or unnatural thing onto the land and becomes unsuccessful to keep that limited to his land then he is answerable for the consequences of its escape. However, he can be excused if it can be proved the escape was because of the plaintiff or due to any natural phenomenon. The case of Larson v. Francis Hotel had led to the conclusion and policy argument that hotels need not be required to post guard in each and every room of the hotel in order to have a watch over the furniture. On the contrary, hotels are not allowed to keep its windows open. Moreover, the res ipsa loquitur is applicable when there is an accident involved or anything that causes harm is under the control of the defendant. In addition, a plaintiff can entitle for the benefits of doctrine but for that, he needs to prove that the thing that caused the accident was at the time under the exclusive control of the defendant. However, the damage recovery of the plaintiff caused due to any defect of a product can be reduced if the plaintiff's conduct combines with the defect of the product. Moreover, the conduct of the plaintiff fails if the general applicability rule establishes the appropriate standard of care.

Conclusion 

It can be concluded that the tort law in the United States of America exists in order to reduce the damages that are being caused by individuals which can lead to injury or harm to others. Cause of actions of tort law of USA includes international misconduct, any conduct without any proper reason and defects in the manufacturing or design of any products of a business. Tort law has, therefore, has a direct impact on the business in the form of an individual who is being harmed by the actions of any employees or by the business itself. In addition to this, a business is being harmed by the wrongdoing of an employee or by other competitors which can lead to loss of business opportunity. Moreover, the final result of negligence is damage. The monetary damage, as well as the non-economic losses, can, however, be recovered. The case study of Ana Marina Perez-Rabanales v. Jefferson shows international tort law. On the other hand, Gabriel Taylor v. Steven Racette reveals the defamation. The Li v. Yellow Cab Corporation of California depicts the negligence tort law. In addition to this, the case of Rylands v. Fletcher and Larson v. Francis Hotel case study shows the strict product liability of tort law.
Moreover, this essay depicts that international tort acts can be conducted with an intention to harm others or to interfere rights of privacy, emotional tranquility and freedom of others. One of the key issues of this law is intent due to the fact that the plaintiff is required to prove before the court that the actions of the defendant had caused harm. Such incidents can often lead to criminal offense. On the other hand, the negligence law depicts that the harm caused by others is not intentional. As a result, the defendant must have violated or has failed to the plaintiff. Moreover, the plaintiff is required to suffer from severe loss and damage as an outcome of his own act or activities in order to satisfy the claim for negligence. In addition to this, the strict liability law indicated imposing liability on the defendant who is generally the manufacturer of the product that has caused harm to others. It can, therefore, be further concluded that the tort law has been able to limit or control the injuries or damages.

Reference List

28 U.S. Code (2014). United States.  
Abraham, K. S., & White, G. E. (2017). The Transformation of the Civil Trial and the Emergence of American Tort Law. Ariz. L. Rev., 59, 431.
ANA MARINA PEREZ-RABANALES, Petitioner, v. JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL, Respondent [2018] 17-1803 (United States Court of Appeals, First Circuit).  BEULAH LARSON, Appellant, v. ST. FRANCIS HOTEL et al., Respondents. (The District Court of Appeal of California 1948).  
Burnham, W. (2016). Introduction to the law and legal system of the United States. US: West Academic Publishing.
Friedman, L. M., & Hayden, G. M. (2017). American law: An introduction. Oxford, United Kingdom: Oxford University Press.
Gabriel Taylor, Petitioner-Appellant, v. Steven Racette, Respondent-Appellee [2014] 16-3696 (United States Court of Appeals, Second Circuit).   
Gifford, D. G., & Jones, B. (2016). Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law. Wash. & Lee L. Rev., 73, 557.
Goldberg, J. C., Sebok, A. J., & Zipursky, B. C. (2016). Tort Law: Responsibilities and Redress. Wolters Kluwer law & business.
Li v. Yellow Cab Corporation of California, 532 P.2d 1226 (Supreme Court of California 1975).    
Restatement (Second) of Torts (1979).   
Restatement of the Law, Third, Torts: Products Liability (1998). 
Robbennolt, J. K., & Hans, V. P. (2016). The psychology of tort law. In Advances in Psychology and Law (pp. 249-274). Springer, Cham.
RYLANDS V FLETCHER, L.R. 3 H.L. 330 (Court of Exchequer Chamber 1865).   
Sharkey, C. (2016). Stealth Ways to Keep Tort Cases from African-American Juries. Jotwell: J. Things We Like, 41.
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