BARWINNERS CUT SHEET Torts 1 PLC High Voltage

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1 p. 1 SAMPLE A SIMULATED EXAM QUESTION TORTS QUESTION 1 PLC High Voltage Peter, a twelve-year old, was playing with his pet pigeon in a field near his home, which is adjacent to a high voltage electricity power substation. The substation is surrounded by a six-foot tall chain link fence topped with barbed wire. Attached to the fence are twelve 10 inch by 14 inch warning signs, which read Danger High Voltage. Peter s pigeon flew into the substation and landed on a piece of equipment. In an attempt to retrieve his pet, Peter climbed the surrounding fence, then scaled a steel support to a height of approximately ten feet from where the bird was stranded. When Peter grasped the bird, it fluttered from his hand, struck Peter inthe face, causing Peter to come into contact with a high voltage wire, which caused him severe burns. Peter s father is contemplating filing a lawsuit on Peter s behalf against the owner and operator of the substation, Power and Light Company (PLC), to recover damages arising from the accident. What causes of action might Peter s father reasonably assert against PLC; what defenses can PLC reasonably raise; and what is the likely outcome on each? Discuss SAMPLE OUR CUT SHEET BARWINNERS CUT SHEET BARWINNERS provides Cut Sheets for all of our Simulated Essay Exams. These are cut outs of all of the issues, sub rules and factual analysis tested in the essay. They also provide you a cut out of what to write and how to analyze each issue and sub issue. We give you the key facts that need to be quoted. The cut sheets are the boilerplate you need to use to prepare for the bar exam essays. The BARWINNERS CUT SHEETS mimic the bar examiners grading sheets on the actual bar exam. BARWINNERS CUT SHEET Torts 1 PLC High Voltage Here after reading the fact pattern you should identify that the subject is Torts and that this is asking you to analyze Strict Liability for an Inherently Dangerous Activity and Negligence. The best way to format and organize your answer is to follow the Barwinners Approach, breaking out, headnoting, and discussing each sub-issue, which is where you will get your points. Discussing the main points is most important here, not the content of your

2 p. 2 conclusions (you just have to have one) the two released bar answers have conflicting conclusions and sometimes just mention both possible outcomes. What causes of action might Peter s father reasonably assert against PLC, what defenses can PLC reasonably raise, and what is the likely outcome on each? Discuss. STRICT TORT LIABILTY: INHERENTLY DANGEROUS ACTIVITY Activities which involve a serious risk of harm to persons or property which cannot be avoided or eliminated by due care and the activity is not usually conducted in that area. ACTIVITY POSES SERIOUS RISK OF HARM TO PERSONS OR PROPERTY Activity must involve risk of serious harm to persons or property. FACTS: Here, running a high voltage electricity power substation is an activity that is inherently dangerous, however it is likely not abnormally dangerous. Therefore, the activity poses a risk of serious harm to persons or property. CANNOT BE PERFORMED WITH COMPLETE SAFETY Activity cannot be made safe by the exercise of due care. FACTS: Here, running a high voltage electricity power substation is an activity that most likely cannot be made safe, because the danger of electric shock was not eliminated by use of a six-foot tall chain link fence topped with barbed wire and he twelve 10 inch by 14 inch warning signs, which read Danger High Voltage. The only way to make the activity completely safe would be to stop electricity from running, but that is not likely to occur. However, PLC will claim that the substation is in a controlled, secure environment and that the danger only occurs when a third party comes into contact with the substation as Peter did when he came into contact with a high voltage wire but that the use of a six-foot tall chain link fence topped with barbed wire and he twelve 10 inch by 14 inch warning signs, which read Danger High Voltage intended to restrict free access to third parties was enough exercise of due care to allow PLC to perform the task with complete safety. In spite of this argument, the fact that Peter was injured will likely show that the fence and signs were not enough to make the activity safe. Therefore, it is likely this activity cannot be performed with complete safety. ACTIVITY NOT USUALLY CONDUCTED IN THAT AREA FACTS: Here, the high voltage electricity power substation was located in a field near (Peter s) home and electricity substations arguably are common near residential areas in order to supply them electricity. However, Peter s father will claim PLC should be sure the substation is as far as possible from residences, and possibly only operate low voltage substations near residences.

3 p. 3 Therefore, the activity will likely be considered usually conducted in that area. DAMAGES Plaintiff can recover all damages which are proximately caused by defendant s actions. FACTS: Here, Peter s father will be able to recover damages for Peter s severe burns unless a defense applies. ASSUMPTION OF THE RISK The test is whether plaintiff knew of the risk and voluntarily assumed it. FACTS: Here, PLC will claim that Peter, a twelve-year old could read the sign Danger High Voltage, so he knew of the risk and voluntarily assumed the risk when he climbed the surrounding fence then scaled a steel support. However, Peter s father will claim that a 12- year old cannot know of the risk to himself when he is preoccupied with retrieving his stranded bird. Therefore, the court may or may not find that Peter assumed the risk as a defense. CONTRIBUTORY NEGLIGENCE Plaintiff has a duty to act as a reasonable person would in like or similar circumstances to prevent an unreasonable risk of harm to himself. Contributory negligence does not apply to strict liability if the plaintiff failed to realize the danger or guard against its existence. FACTS: Here, Peter, a twelve-year old, had a duty to act as a reasonable twelve-year old to prevent an unreasonable risk of harm to himself, so if a reasonable 12-year old would have failed to realize the danger in climbing the surrounding fence then scaling a steel support and ignoring twelve warning signs to retrieve his stranded bird, contributory negligence will not be a defense to this strict liability action. Therefore, the court may or may not find that Peter was contributorily negligent as a defense. CONCLUSION ON STRICT LIABILITY Therefore, it is unlikely that the court will find PLC liable under a strict liability cause of action. However if the court finds that Peter did not assume the risk or was not contributorily negligent, then Father may recover damages for Peter s severe burns. NEGLIGENCE

4 p. 4 In order for plaintiff to recover in negligence he must plead and prove DUTY, BREACH OF DUTY, ACTUAL CAUSATION, PROXIMATE CAUSATION, AND DAMAGES. DUTY Defendant has a duty to act as a reasonable person would in like or similar circumstances to avoid causing unreasonable risk of harm to others. OWNERS AND OCCUPIERS OF LAND Liability rests on the status of the person coming into the land. FACTS: Here, Peter, a twelve-year old was the person who climbed the surrounding fence and came onto the land. Therefore, liability rests on the status of child trespassers the attractive nuisance theory. CHILD TRESPASSERS ATTRACTIVE NUISANCE THEORY Land occupier is liable to children only if: (1) POSSESSOR KNOWS OR HAS REASON TO KNOW THAT CHILDREN ARE LIKELY TO TRESPASS FACTS: Here, since the substation was near Peter s home would indicate that PLC had reason to know that, being located near a home or homes that children would be likely to trespass. However, PLC will claim and there are no facts to indicate that they actually knew that children were trespassing but this argument will likely fail since the standard is not actual knowledge. Therefore, the court will likely find that PLC knew or had reason to know that children were likely to trespass. (2) LAND OCCUPIER KNOWS OR HAS REASON TO KNOW CONDITION IS DANGEROUS TO CHILDREN FACTS: Here, PLC would have to know that a high voltage electricity power substation would be a condition dangerous to children. Therefore, the court will likely find that PLC knew or had reason to know that the condition is dangerous to children. (3) RISK TO THE CHILD OUTWEIGHS THE UTILITY OF MAINTAINING THE CONDITION AND THE BURDEN OF ELIMINATING THE DANGER FACTS: Here, the risk to Peter is very great -- severe burns, if not death. This will balance against PLC s burden of maintaining the condition and eliminating the danger which they already do by maintaining a six-foot tall chain link fence topped with barbed wire and having twelve 10 inch by 14 inch warning signs, which read Danger High Voltage which PLC will argue is sufficient maintenance of the condition. However, Peter s father may claim that PLC could do more to eliminate the danger, i.e. making a taller fence or even closing the substation. It is unlikely the court will find closing the substation a reasonable solution since the substation is placed to provide reliable

5 p. 5 power to the community, its residence, and businesses, on the other hand, making a taller fence would not probably be too costly of a solution. Therefore, the court will likely find that the risk to the child outweighs the utility of maintaining the condition and eliminating the danger. (4) CHILD IS TOO YOUNG TO APPRECIATE AND UNDERSTAND THE RISK FACTS: Here, Peter was twelve years old and the argument if whether twelve years old is too young to appreciate and understand the risk could go either way. PLC will claim that Peter, at 12-years old would likely be able to read and, therefore, should have read the signs that read Danger High Voltage all around the fence and understood the risk before climbing the fence or, alternatively, that the act of climbing the fence topped with barbed wire showed Peter s appreciation of the risk. Peter s father will claim that he was too young to appreciate and understand the risk since the sign only said Danger High Voltage and did not expand on the risks saying something like, i.e. High Risk of Serious Shock or Death and/or accompaniment of a picture for those who do not read that would get the point across, like a skull and crossbones, which may be clearer to a child. Alternatively, he may claim climbing a fence in and of itself is a common act for children and does not mean that they would understand a dangerous risk of shock resulting from doing so. Therefore, the court will likely find that the child is too young to appreciate and understand the risk. TO WHOM IS DUTY OWED? Under Cardozo, a duty is owed to foreseeable plaintiffs in defendant s physical zone of danger. Under Andrews, one owes a duty to the whole world to behave in a manner so as to not create unreasonable risk of harm. FACTS: Here, Peter came into contact with a high voltage wire, which caused him severe burns and under Cardozo, Peter s father will claim that as a person in a field near his home adjacent to a high voltage electricity substation he was a foreseeable plaintiff in the physical zone of danger. PLC may attempt to claim that it is unforeseeable a person would ignore the twelve warning signs and climb the six-foot tall chain link fence topped with barbed wire, however this claim will most likely fail. Under Andrews, since Peter was severely burned by the high voltage wire, he is owed a duty due to the unreasonable risk of harm that caused his burns. Therefore, under both the Cardozo and Andrews tests, Peter is a foreseeable plaintiff to whom PLC owed a duty of reasonable care. BREACH OF REASONABLE CARE FACTS: Here, PLC maintained a six-foot tall chain link fence topped with barbed wire and had twelve 10 inch by 14 inch warning signs, which read Danger High Voltage that surrounded the high voltage electricity power substation. However, it is foreseeable a person (particularly a child) could and would climb a chain link fence. PLC could have installed a taller fence or one made of a material that was less climbable and they could have labeled the results of the danger more clearly

6 p. 6 i.e. a sign reading High Risk of Serious Shock or Death and/or accompaniment of a picture for those who do not read that would get the point across, like a skull and crossbones. Therefore, it is likely PLC breached its duty of reasonable care to Peter. ACTUAL CAUSATION BUT-FOR TEST Defendant is the actual cause of plaintiff s injuries because but for operating the high voltage electricity power substation and presence of the high voltage wire the plaintiff, Peter was able to access, he would not have been injured, resulting in severe burns. Therefore, PLC is the actual cause of Peter s injuries. PROXIMATE CAUSATION Where something intervened between defendant s act and plaintiff s injuries, it must be determined whether the intervening force was dependent or independent. INDEPENDENT Superseding forces not arising from defendant s act which may relieve defendant of liability. FACTS: Here, Peter s pet pigeon flew into the substation and landed on a piece of equipment, then upon Peter s attempt to retrieve his pet (he) grasped the bird, it fluttered from his hand and the independent, superseding force here would be the bird striking Peter in the face, causing him to come into contact with the high voltage wire which, in turn, caused him severe burns. Therefore, the retrieval of the bird and the bird striking Peter was the independent, superseding force not arising from PLC s act and it may relieve PLC of liability. FORESEEABILITY If the intervening act was unforeseeable, then the chain of causation was broken. FACTS: Here, the question now is if the retrieval of the bird and the bird striking Peter was unforeseeable in which case the chain of causation would be broken. In this case, it is not unforeseeable that a pet of any kind would get into a substation located near a home or many homes, and so, any resulting effort of rescue of a pet, including Peter s attempt to retrieve his pet here, would be foreseeable. Therefore, foreseeability is present and does not break the chain of causation. Therefore, the independent superseding force was foreseeable PLC s operation of the substation was the proximate cause of Peter s injury.

7 p. 7 DAMAGES Plaintiff may recover for pain and suffering. Economic damages alone are insufficient. FACTS: Here, Peter suffered severe burns which likely incurred physical and emotional pain and suffering as well as medical and rehabilitation costs. Therefore, Peter s father may be able to recover damages for pain and suffering on Peter s behalf. DEFENSE CONTRIBUTORY NEGLIGENCE Plaintiff has a duty to act as a reasonable person would in like or similar circumstances to prevent an unreasonable risk of harm to himself. FACTS: Here, as stated above, Peter, a twelve-year old, had a duty to act as a reasonable twelveyear old to prevent an unreasonable risk of harm to himself, so if a reasonable 12-year old would have failed to realize the danger in climbing the surrounding fence then scaling a steel support and ignoring twelve warning signs to retrieve his stranded bird, contributory negligence will not be a defense to this strict liability action. Therefore, the court may or may not find that Peter was contributorily negligent as a defense. ASSUMPTION OF THE RISK The test is whether plaintiff knew of the risk and voluntarily assumed it. FACTS: Here, as stated above, PLC will claim that Peter, a twelve-year old could read the sign Danger High Voltage, so he knew of the risk and voluntarily assumed the risk when he climbed the surrounding fence then scaled a steel support. However, Peter s father will claim that a 12-year old cannot know of the risk to himself when he is preoccupied with retrieving his stranded bird. Therefore, the court may or may not find that Peter assumed the risk as a defense. CONCLUSION ON NEGLIGENCE Therefore, it is unlikely that the court will find PLC liable under a negligence cause of action. However if the court finds that Peter did not assume the risk or was not contributorily negligent, then Father may recover damages for Peter s severe burns.