Tort Law Essay Series

THE LAW PROFESSOR™

TORT LAW ESSAY SERIES

ESSAY QUESTION #5

MODEL ANSWER

Prof is a professor of torts and commercial law at University Law School (“ULS”). Prof’s

employment contract with ULS requires him to teach a certain number of hours, conduct

research, publish scholarly works, be available for consultation with his students, and

engage in community service. Dave, one of Prof’s students and research assistants, applied for a summer job with the State Office of Youth Assistance, an agency that houses and counsels troubled youths. Dave asked Prof to write a letter of recommendation for him. Prof agreed and wrote a letter recommending Dave highly and in unqualified terms. He sent the letter to the Office of Youth Assistance in a sealed envelope marked “Confidential.”

Prof knew that the job for which Dave had applied required the incumbents to be in frequent close and unsupervised contact with young children. Prof also knew at the time he wrote the letter that Dave had admitted during a confidential disciplinary investigation by ULS that he had molested his girlfriend’s young daughter and that Dave was undergoing counseling related to the incident. Prof did not mention anything about this in the letter because he did not want to hurt Dave’s chances of getting the job and because he was convinced that Dave would not repeat his conduct.

Dave was hired by the Office of Youth Assistance. Toward the end of the summer, while

conducting a private interview with a six-year-old girl, Dave succumbed to temptation and

attempted to molest her. The girl’s screams attracted the attention of Gina, a youth

counselor working nearby. Gina ran to the rescue, but the stress of the situation caused

Gina to suffer a debilitating heart attack.

Gina sues Prof and ULS for negligent misrepresentation, alleging that Prof is liable because

of his neglect in failing to disclose what he knew about Dave in his letter of

recommendation and that ULS is liable under the doctrine of respondeat superior.

Prof moves to dismiss Gina’s suit on the grounds that (i) he owed no duty of care to Gina

to disclose what he knew about Dave and (ii) even if did have such a duty, his breach of

the duty was not the proximate cause of Gina’s injuries.

ULS moves to dismiss Gina’s suit on the ground that ULS cannot be held vicariously liable

because writing letters of recommendations for his students was outside the scope of Prof’s

employment duties as a professor.

How would a court be likely to rule on each ground of the motions filed by Prof and ULS to

dismiss Gina’s suit? Discuss.

MODEL ANSWER

I. GINA V. PROFESSOR.

NEGLIGENT MISREPRESENTATION. Negligent misrepresentation occurs when information is given to plaintiff where plaintiff suffers, and where defendant knew that plaintiff risked being hurt financially. There is a carelessness or lack of reasonable care in fact finding or in presentation of facts. Here, there was a false assertion of a material fact, inasmuch as Dave had problems with molesting child, but that information was never shared, and Dave was instead represented as an upstanding student. There is no scienter, or intent present, but there need not be scienter in a negligent misrepresentation claim. Here, there appears to have been reliance, however, we are not sure if the Office of Youth Assistance relied on the recommendation of Dave by Professor. Finally, Gina suffered damages, but not the kind of damages normally available in a negligent misrepresentation claim, which are normally financial remedies.

NEGLIGENCE.

Negligence is defined as unreasonable conduct by a defendant, where defendant’s conduct fails to rise to standard of care of reasonable person in their situation, their conduct breaches duty to prevent foreseeable risk of harm to plaintiff, and defendant’s breach thereby causes injury to plaintiff. Prima facie issues are: Duty, Standard of Care, Breach of Duty, Actual Cause, Proximate Cause, Damages, Defenses, and Remedies.

DUTY. Almost all people owe others a duty of reasonable care to act as an objectively reasonable person would act in similar circumstances. In Palsgraf, the Cardozo majority view posits a duty extends just to those in the zone of danger which was created by defendant’s conduct. Alternately, the Andrews minority view is that a duty extends to everyone. Gina was probably not within the zone of danger created by Professor’s negligence under the Cardozo view, because Dave targeted children, not adults, to molest. However, danger invites rescue, and rescuers are foreseeable plaintiffs. Additionally, Professor would have a duty of care to take reasonable action to keep Gina safe in a jurisdiction that employed the Andrews view that a duty is owed to all.

STANDARD OF CARE. In general, a defendant owes a duty of reasonable care, to act as a reasonable person in similar circumstances. A professional must use the superior knowledge and ability commonly possessed by other professionals in their specific field or sub-specialty. Here, Professor would have had to act with a high level of knowledge, and as a reasonable Professor would act.

BREACH OF DUTY. Where defendant did not act to reasonably protect plaintiff from foreseeable harm. There are three main ways in which breach of duty may be shown, including the Hand Formula, violation of a statute through negligence perse, or through the doctrine of res ipsa loquitur / the thing speaks for itself.

The Learned Hand Formula. . B<PxL. Defendant’s burden to have acted differently, or the reasonable precaution cost, is balanced against the probability of harm (P), multiplied by the severity of harm (L). Defendant breaches their duty where the burden is less than the probability times the liability. Professor acted to protect Dave’s job prospects, by not revealing pertinent information related to Dave and possible child molestation. However, the question here is whether Professor took reasonable action to protect Gina. There are feeble facts indicating that Dave would not continue to harm children, which would put all of the children at the site, and the adults as rescuers, within danger of Dave’s frightful behavior. It would have been reasonable for Professor to decline to write a recommendation, or to wait until the investigation of Dave was complete, and Dave had been cleared. Professor did neither of these reasonable things, and therefore he breached his duty of care to Gina.

ACTUAL CAUSE. A defendant’s conduct must have actually caused harm to plaintiff. Additionally, where two defendants act separately, and both of their acts would be sufficient for actual cause, then both defendants will be liable. But for Professor’s recommendation of Dave, there would have been no incident. There were other factors involved, but the recommendation of Professor was a substantial factor.

PROXIMATE CAUSE. Defendant is only liable for consequences which are reasonably foreseeable at time of injury, and which are not too remote or improbable.

FORESEEABILITY. Danger invites rescue, and it is foreseeable that Gina, as a staff member, would try to rescue a child in harm’s way. The type of harm suffered by Gina, a heart attack, seems unconnected to the situation, however, defendant take plaintiff as they find them, and will be responsible for greater than normal extent of injury to plaintiff. However, we are not told directly that the Office read the recommendation or relied on it, and if they did not, then Professor’s actions may not have been a proximate cause of injury.

INTERVENING CAUSES OR EVENTS. Only superseding intervening events, which are unforeseeable, will break the chain of defendant’s causation, and this includes unforeseen criminal behavior or willful wrongdoing by third parties, unforeseen acts of God, or grossly negligent medical care. Here, Dave was engaged in criminal or tortious behavior, at the time of Gina’s injury. However, Professor was aware that Dave was a possible child molester, and thus the criminal activity was foreseeable, and no intervening events would break the causal chain.

DAMAGES / PERSONAL INJURY. Gina suffered a heart attack due to the negligence of Professor, and will be entitled to remedies.

DEFENSES.

CONTRIBUTORY NEGLIGENCE. A total bar to recovery for plaintiff, and where plaintiff’s unreasonable conduct proximately causes their harm, also called the doctrine of unavoidable consequences. Gina ran to the scene of the crime, in an effort to try and rescue the child. This activity was not only reasonable, but it was required of her to protect children in her charge at the child care center. Therefore, defendant will not be able to use this defense.

COMPARATIVE NEGLIGENCE. Comparative negligence apportions fault by plaintiff prior to the injury, to proportionally reduce plaintiff’s recovery.

PURE AND MODIFIED. In a pure comparative negligence jurisdiction, the plaintiff will recover something, while in a modified comparative negligence jurisdiction the plaintiff will only recover up to a fifty percent liability. There are no facts indicating that Gina did anything except what she required to do, in a danger invites rescue situation, to try and protect one of the children in her charge.

ASSUMPTION OF THE RISK. Implied assumption of the risk is strictly construed by the courts, and will exist as a defense where plaintiff, by their actions, showed an implied awareness of the risk of harm, and then acted in a voluntary manner. It is certain that Gina knew of a risk, but she was responding as it was her duty to do to protect a child in harm’s way, and thus she did not voluntarily assume a risk of harm.

REMEDIES. Gina will be entitled to medical expenses, pain and suffering, out-of-pocket losses, loss of bodily functions, future damages, and damages for the loss of the ability to enjoy life.

II. GINA V. ULS.

NEGLIGENCE.

DUTY. Gina was probably outside the zone of danger created by ULS for their negligent hiring and supervision of Professor, but under Andrews a duty is owed to all.

STANDARD OF CARE.

REASONABLE PROFESSIONALADMINISTRATION. ULS will be held to the standard of a reasonable law school, with a relatively high level of professional responsibility.

BREACH OF DUTY.

HAND FORMULA. BPL. ULS did not appear to have review procedures for Professors in situations where a student was potentially dangerous. Here, Professor was consulting with a potentially dangerous student, and ULS should have had better supervision of Professor. For instance, it would have been reasonable for ULS to require that no recommendations could be given for Dave until after the conclusion of the investigation of Dave by ULS. Since there were no procedures in place to make sure inappropriate recommendations were not given, ULS breached their duty of reasonable care.

ACTUAL CAUSE.

BUT FOR TEST. But for ULS allowing a rogue professor to highly recommend a potentially dangerous student, Gina would have not been hurt. There were other factors present in the injury here, but the lack of professional oversight was a substantial factor in causing Gina’s injury.

PROXIMATE CAUSE.

FORESEEABILITY. ULS was aware of Dave’s potential criminal activity. They were also aware of the lack of administrative regulations to protect against faulty recommendations. It was therefore foreseeable to ULS that harm could be caused to a number of different plaintiffs, due to their negligence. However, their best argument, is that the Office of Youth Assistance may not have relied on the recommendation.

EGGSHELL SKULL PLAINTIFF. Gina’s had a heart attack, and was not even touched. However, under the eggshell skull plaintiff rule, you take the plaintiff as you find them, and ULS will be responsible for Gina’s injuries.

INTERVENING EVENTS. Dave was engaged in criminal or tortious behavior, at the time of Gina’s injury. However, ULS was aware that Dave was a possible child molester, and thus the criminal activity was foreseeable, and no intervening events would break the causal chain.

DAMAGES. Gina suffered a heart attack due to the negligence of ULS, and will be entitled to remedies.

DEFENSES. SUPRA.

REMEDIES. SUPRA.

VICARIOUS LIABILITY / Respondeat Superior. An employer is jointly responsible for the actions of their employees, while the employees were acting within the scope of their employment duties.

EMPLOYEE. Employees are those that work directly under the supervision of their employer. Here, Professor is a professor of torts and commercial law at ULS. Therefore, Professor is an employee of ULS and not an independent contractor.

SCOPE OF EMPLOYMENT. The employee must be enacting the furtherance of the business interests of employer at time of the negligent act. The scope of Professor’s job duties are to teach a certain number of hours, conduct research, publish scholarly works, be available for consultation with his students, and engage in community service. There is no statement that Professor’s have a job duty to write recommendations for students, and therefore, Professor may have been acting outside the scope of his employment duties when he wrote a letter of recommendation for Dave, under the frolic and detour doctrine. However, it is likely that writing recommendations would be subsumed under the job duty to consult with students. Consultation of students may take a number of different manifestations, including consultation of courses, internships and job possibilities. One of the major purposes of a professional degree program, is to qualify students to secure future employment. Therefore, it would have been within the job duties of Professor to write recommendations for students.

JOINT AND SEVERAL LIABILITY. For multiple defendants who are liable for the same indivisible harm, each defendant may be jointly and severally liable to plaintiff, and both defendants may be jointly and severally liable.

CONTRIBUTION. Where one defendant pays more than their percentage of damages, they may secure reimbursement from another defendant. Here, whichever defendant is required to pay first, may seek contribution from the other defendant.