FACT PATTERN

Sarah (a Texas resident) was driving home from class (in Champaign, Illinois) in her new car,
which was insured by Allstate. Sarah received a text message from her roommate and Sarah
looked down to type a response. At the same time Sarah starting looking down at her phone,
Andy (a Wisconsin resident) was jogging into the poorly lit street without looking for oncoming
traffic. Tragically, Sarah hit Andy, severely injuring his leg. Sarah, after making contact,
immediately swerved and hit a light post, causing $10,000 of damage to her new car. At the time
of impact, Sarah was driving 25 m.p.h. in a 30 m.p.h. zone. Additionally, it was clear that Andy
was not in a crosswalk at the time impact was made.
While Andy was being transported to the hospital, the Ambulance had to make a sudden stop to
avoid an accident and Andy fell off the gurney. As a result of his fall, Andy also broke his arm.
Although Andy eventually fully recovers, he incurs medical expenses of $35,000 to treat his
broken leg and $15,000 to treat his broken arm.
Andy files a lawsuit against Allstate and Sarah seeking $100,000 to cover his medical expenses
and pain and suffering.
INSTRUCTIONS
Please draft a memorandum to a claims manager at Allstate examining Sarah's potential liability
for Andy's injuries (Allstate, as Sarah's insurer, will be liable for this amount on her behalf).
Please focus your memorandum on answering the following questions:
1.
2.
3.

Can Andy file the lawsuit in federal and/or state court?

Which courts would have personal jurisdiction over Sarah?
Assuming that the lawsuit is filed in Wisconsin federal court, what substantive and
procedural law will the court apply?
4.
Will Andy be able to recover damages for the tort of negligence?
5.
If Andy is able to prove all the elements of negligence, would Sarah have any defenses to
the negligence claim?
6.
What injuries would Sarah be liable for if Andy establishes liability for the tort of
negligence?
Your memorandum should be between 350 and 900 words and should be posted to the Civil
Dispute Resolution Problem Forum.

TO:

Allstate Claims Manager

FROM:

Yun Fu

DATE:

May 30, 2015

SUBJECT:

Civil Dispute Resolution

INTRODUCTION
This Memorandum examines the recent lawsuit between Andy (Plaintiff) and Sarah
(Defendant) who is insured by Allstate. Please refer to paragraphs below for responses to your
questions:
RESPONSES
I. Andys Eligibility to File in State/Federal Court
In order for State Trial Courts to hear Andys case, therefore have original jurisdiction,
the courts are required to have subject matter jurisdiction and personal jurisdiction. In this case,
Andy can file his case in all three courts of Texas, Wisconsin, and Illinois while filing in
Wisconsin will require Sarah consent and Illinois will require Sarah to pass the minimum
contacts test. It is recommended, however, that Andy file his suit in the Federal State Court
because of the diversity of citizenship involved.
II. Courts Personal Jurisdiction over Sarah
As stated above, both State and Federal Courts have personal jurisdiction over Sarah
under different circumstances. It is clear that the Texas State Court have personal jurisdiction
over Sarah since a state court has personal jurisdiction over all personals who reside in the
state (Legal Environment of Business, page 35). Similarly, the Illinois Court has personal
jurisdiction over Sarah because the accident occurred within Illinois, thus passing the minimum
contacts test. Finally, the Wisconsin State Court will have personal jurisdiction over Sarah if she
consents to the courts personal jurisdiction, thereby waiving the right to challenge the authority
of the court to issue a judgement binding on [her] (Legal Environment of Business, page 35).
III. Substantive and Procedural Law in Wisconsin Federal Court
If the lawsuit was filed in the Wisconsin Federal Court, the federal court must apply the
substantive common law of the state of Wisconsin based on the holding of Erie Railroad vs.
Tompkins. This eliminates the chance for forum shopping and establishes that federal courts
should not have substantive common law.
On the other hand, the Wisconsin Federal Court will apply the Federal Procedural Law to
the case because all courts follow their own procedural law with no exceptions. The procedural
laws for which federal courts use include Federal Rules of Civil Procedure, Federal Rules of
Criminal Procedure, and Local Rules in Wisconsin. In this case, the Federal Rules of Criminal
Procedure will not be applied because it is assumed that the tort was not intentional.
IV. Eligibility of Andy to Recover for the Tort of Negligence

In order for Andy to recover damages for the tort of negligence, he will need to first
prove that
1) The defendant owed the plaintiff a legal duty not to be negligent
2) The defendant breached that duty by failing to act as a reasonable person would act under
the circumstances,
3) The defendants negligence was the proximate or legal cause of an injury suffered by
the plaintiff, and
4) The plaintiff suffered actual loss, damage, or injury as a result of the defendants conduct
Under the first required element, Sarah is expected to conform her conduct to that of a
reasonable person as an able and educated individual. As this duty is present at all times, this
element does not require proof and cannot be disputed.
The second element requires proof that the duty to be reasonable is breached. As a driver,
Sarah is required by law to be attentive and refrain from usage of mobile devices. Since the
regulation on phone usage is violated, the unexcused violation of the regulation is negligence in
itself.