A tort grows in Brooklyn
[Phillip Carter,
Monday December 31, 2007 at 9:35am ]
When you're studying for the bar exam, everything looks like a bar exam hypothetical. As part of my recent move to New York City, I'm now studying for the Feb '08 New York bar exam. So now, as I walk around Brooklyn and Manhattan, I see lots of scenarios that could be hypotheticals on my exam... and I find myself breaking them down into their component issues and outlining bar exam answers in my head. Weird, to be sure, but a useful study technique nontheless.
So there I was, coffee in hand, walking my dog Peet down 5th Ave in Brooklyn this morning, just after dawn. A Ford F350 diesel pickup truck driven by Dan and Ed sped past me going north on 5th Ave, towing a cement mixer. Dan is Ed's boss; last night, Dan took Ed out to celebrate his 1-year anniversary with the company, and they stayed out drinking until dawn. About 20 feet past me, the left wheel of the cement mixer comes off the axle. The truck continues to drag the cement mixer on one wheel and one axle for approximately 100 feet. The wheel continues past the truck on a slightly different trajectory. It narrowly misses Al, who is driving south on 5th Ave in a minivan with his two kids. Bruce, walking on the street, jumps to avoid the tire, turning his ankle in the process. Charlie, Bruce's labrador, gets very worried by the passing wheel and starts whining and howling, clearly in extreme emotional distress. As I walk by the parked truck, I see Ed walking towards the wheel to retrive it. I hear Dan yell to Ed: "When you bring back the wheel, I'll take some nuts off the good wheel to hold it on."
What are Al, Bruce and Charlie's potential causes of action against Dan and Ed? What defenses can Dan and Ed raise?
Discuss.
So there I was, coffee in hand, walking my dog Peet down 5th Ave in Brooklyn this morning, just after dawn. A Ford F350 diesel pickup truck driven by Dan and Ed sped past me going north on 5th Ave, towing a cement mixer. Dan is Ed's boss; last night, Dan took Ed out to celebrate his 1-year anniversary with the company, and they stayed out drinking until dawn. About 20 feet past me, the left wheel of the cement mixer comes off the axle. The truck continues to drag the cement mixer on one wheel and one axle for approximately 100 feet. The wheel continues past the truck on a slightly different trajectory. It narrowly misses Al, who is driving south on 5th Ave in a minivan with his two kids. Bruce, walking on the street, jumps to avoid the tire, turning his ankle in the process. Charlie, Bruce's labrador, gets very worried by the passing wheel and starts whining and howling, clearly in extreme emotional distress. As I walk by the parked truck, I see Ed walking towards the wheel to retrive it. I hear Dan yell to Ed: "When you bring back the wheel, I'll take some nuts off the good wheel to hold it on."
What are Al, Bruce and Charlie's potential causes of action against Dan and Ed? What defenses can Dan and Ed raise?
Discuss.
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First off, good luck on the Hazing in February. Second, the 'my life is a bar exam' phase will pass when you do. I believe we all go through the same phase.
Go get um!
Jonathan Kramer, Esq.
Kramer Telecom Law Firm, PC
Los Angeles, CA
PS:
Randy:
You didn't indicate the direction of travel of either train, much less whether the trains share a common track. Discuss. :-)
jlk
It's really the only option left for a Californian living in on the East Coast.
You have committed a corruption of the English language.
An anniversary is an annual observation of past event. The inclusion of "year" is redundant. Even worse are those folks who celebrate a "six month anniversary"!!!
Might I suggest you adopt the more correct usage:
Happy New Year to all.
Al
Who is currently in Winnipeg to surprise some friends who are performing tonight at a hotel's party here. They have no idea that we are not in Greece. And, BRRRRR!, it's cold.
All the best to one and all in the new year.
A healthy and wealthy New Year to all here.
mike
mike
Palm Springs has always been a Canadian tourist destination of choice (like Florida). Now they are buying condos like crazy, because of the exchange rate of the Loonie vis-a-vis the dollar, the booming of the Canadian economy, and the bargain prices of the Palm springs condos compared to those of the urban frozen north. Happy new year. I will make a resolution to be less ornery.
And, Phil, why don't Al, Bruce and Charlie consider mediation with Dan and Ed? Can't we just all get along?
Al
No IIED or NIED claim. Blah blah blah in the end no intent to prove the former and no physical manifestation to prove the latter. He'll argue his kids crying in the back is physical manifestation but in the end it's not.
No damage for any negligence claim.
Bruce
Negligence/Negligence Per Se
(Free legal lesson of the day to on line)
Bruce will argue that he sprained his ankle as a result of Dan and Ed's negligence. Bruce will argue that this is negligence per se because they were drunk. But to prove negligence per se, the resulting harm must be caused by the violation of a law, ordinance, etc. Dan and Ed will argue wheel flying off has nothing to do with DUI. Bruce might argue properly inspecting the wheel is required under the vehicle code or some crap like that. If negligence per se fails, Bruce has an easy negligence case b/c Bruce is not Mrs. Palsgraf. That means he was within the zone of danger and a foreseeable victim of Dan and Ed's negligence. Dan and Ed apparently breached their duty to Bruce and others by driving knowingly on a bad wheel. The breach caused Bruce to sprain his ankle. Was bruce a world champion high jumper who could have easily avoided the wheel? Phil? Don't forget to sprinkle in some discussion about respondeat superior and principal/agent relationships.
Charlie.
Animals cannot sue.
Fasteddiez -
I wish I could afford Palm Springs. We are further east though I admit to visiting there for a hike along the creek on the Palm Canyon Indian Reservation - beautiful. And we also did an obligatory stop at the casino.
I have no beef with the Canadians as Grandpa and Grandma hailed from New Brunswick and Nova Scotia respectively. They snuck across the border into Maine one night when they eloped. Last year I visited Kingston, NS to reconnect but the place Grandma was born is now a CFB airfield. Nice visit though, a very polite, gentlemanly, Canadian MP corporal brought us to the old cemetery and was patient enough to wait around while we copied names and dates from headstones. He had recently come back from Afghanistan and I enjoyed talking with him.
That said, I wish the golf courses here were not jacking up the prices so high on behalf of my Canadian cousins. There is a potential price-gouging lawsuit for you Phil.
mike
mike
Weather report from my area is I played golf at Parris Island in shirt sleeves during the day on New Year's Eve, although I did wear long pants. Last night (New Year's night), it went into the 20s. Never got out of the 30s today, with 30 MPH winds. Same forcast for tonight and tomorrow. My buddy in Florida told me there's a forecast for possible snow in Daytona Beach. But he might have been drinking. Maybe that will make more Canadians decide to head towards your more balmy climes in the desert.
WRT Phil's tort question, the first thing that came to mind was, "what is Phil doing out there so early in the AM?" Oh, yeah, the dog's gotta do its morning constitutional. I'd strongly advise Phil to consider trading the dog in for a cat, the city dweller's better option. You can sleep while the cat's doing its thing, always remembering to scoop that litter box later. Then the results can be bagged and put down the apartment trash chute. Advantages: maybe a couple of hours more sleep, you don't have to carry a bag and a pooper scooper or put on those disposaable little glove things, plus—and this is a BIG plus—you won't be placed in potentially life-threatening situations when two idiots are making their way home after a night of carousing (bars in NYC close at 4AM as I recall. Not that I'm an expert).
So far as the others in Phil's scenario are concerned, I'd say "no harm, no foul, just another day in the life of a New Yorker." New Yorkers pride themselves on their toughness; they can take it. But then, there is our litigious society. Phil, did you have business cards with you?