Professional Documents
Culture Documents
ESSAY OI{E
I\OTE: This is a sample student
ans\ryer.
It is far from
1)
Since Wilma contracted herpes, this could be a harmful or offensive contact that was caused her
by Carter and she will most likely bring this as a cause of action
with him
V/ith intent to cause harmful or offensive contact OR with the intent to cause imminent
apprehension of such contact
Here, Carter had a desire/substantial certainty that harmful contact would exist, as he
knew that he had genital herpes and that herpes is harmful, especially when a sexual partner is
not told about.
Causing
Cause in Fact: But
correct.
Proximate Cause: Carter is liable for the harmful contact if his misconduct is the direct
cause of Wilma's contraction of herpes. This is correct. He may try to argue that Carter is an
intervening cause, however we know that Biff does not have STDs. and Wilma has only ever
slept with Carter or
Biff
Page 1 of 16
(Question 1 continued)
Affirmative Defense:
Consent
Carter
will
sex with him, and thus, her claim of battery is void against him. However, Wilma
will
say that
because he fraudulently gained her consent by lying to her, consent is negated. Therefore, the
cause of battery against Carter
will
stand
2nd Issue:
Negligence for HERPES, NIED of Herpes
intoxicated
that
can
skirt around his duty to act with reasonable due care. He must act with the average intelligence of
a reasonable person.
Page 2 of 16
know
(Quesfion 1 continued)
something and doesn't try to get in the know by inquirying about it (ex. purple stop lights - you
have a duty to pull over and inquire about it), then as a reasonable person you have a duty to find
out. Here, Carter had reason to know that before contracting in sexual relations with V/ilma, he
should have found out whether Wilma could have been infected. Here, he had a duty of inquiry
notice and breached it. Knowledge that you can give herpes is knowledge that more than not,
most people know and Carter will be held to that standard.
a landowner
Wilma is
as a landowner, Carter
has no duty to Wilma except in the active operation of his being once her presence is known.
Here, his active operation of having unprotected sex with her, while knowing that he could be
givining her herpes is an exception, that in a traditional jurisdiction will give a limited duty.
Which he breached by implying that he did not have STDs.
V/hat if Wilma is a licensee?
if
land (see above)), then the landlord has a duty to protect her from active operations AND a duty
to warn her of any unforeseeable danger. Here, Carter did not warn her of the danger of the STD
If Wilma is an invitee?
An invitee is invited onto the land for business pu{poses or if the land is public land here, this would not apply. However,
Page 3 of 16
(Question
continued)
this is a stretch because she was participating as a flirtatious, consenting partner and did not come
as a prostitute (ie. for business purposes).
breach of duty
There has been a breach of duty
if we examine Carter
is no need to discuss Res lpsa because we have plenty of proof and no need to discuss
Negligence Per Se because we have not statutory information.
as a sexual partner, we
will
It
burden of preventing harm. Here, the foreseeability of harm was great, as they had unprotected
sex. Degree of danger is great because herpes is a lifelong illness
(?)
physical body and the brnden of preventing harm is relatively low because it would just take the
protection of a condom OR letting the other partner know of the risk.
Cause in fact
'Wilma
Page 4 of 16
of
(Quesflon 1 continued)
This holds true because his negligence in not telling her and not entering into protected sex is the
direct cause of her contracting herpes. There are no intervening causes that may have caused her
herpes. (because
as her
cause is met.
Damages
Compensatory - she will probably recover special, out of pocket damages of her doctor's
fees and her medicine fees for the duration of the illness. General damages for emotional
distress? perhaps but not really.
If battery
Affirmative Defense: Carter will come against the claim with affirmative defense that Wilma was
contributory negligence in consenting to unprotected sex because she knew risks involved,
because he did not really
jurisdiction, if he was able to prove her contributory negligence, her claim would be invalid. If in
comparative, then she can recover whatever percentage the jury finds him at fault (in pure), or
if
less than/not more than, whatever percentage as long as her fault is less than his (or equal to only
Page 5 of 16
(Question 1 continued)
3rd Issue:
False Imprisonment
An Act
He had manfiestion of will to ask her in
for the jury based off of his 'smile'to mask his true thoughts
Causing
P's awareness of the boundaries [or P's harm from such confinement]
She was aware of her confinement because she was there
Page 6 of 16
(Queslion 1 continued)
by entering his house voluntarily. However, she may counterargue saying that he coerced her
consent.
Carter v. V/ilma
Issue: Wilma \ /as a trespasser onto Carter's Land
An Act
An act is a manifestation of will. Here, Wilma manifested her will to enter Carter's
property and steal a poinsetta. The fact that she does not know who's land it is is irrelevant.
But for Wilma's walking on the land, she would not have trespassed on Carter's land and
proximate cause, that her stepping on land was the direct cause of trespass are both met here.
The entry or remaining on land of which plaintiff has a possessory interest by defendant
This element is met for entering the land on which Carter owns (as possessory interest)
Affrrmative Defense:
entering), V/ilma has the affirmative defense of CONSENT. Here, Carter consented to her
trespassing on land by saying "he would not try to prevent her from coming inside
Page 7 of 16
if that
was
(Question 1 continued)
what she was planning to do." Here, Wilma may say that Carter consented to her remaining on
his property
Duty:
Here, Dee had a limited duty under NIED for misdiagnosing Wilma for AIDS because
under Direct Action, limited duty is applied in special relationships - ie, when a doctor
negligently misdiagnoses
the doctor. Here, this will prboably apply to Biff, even though he and Wilma are not married.
They ahve been their only sexual partners for life (except with Carter) and thus, would have
emotional distress from contracting a life-damaging cause of AIDS. NIED will probably apply
here because
Biff
of
harm resulting from misdiagnosis. Here, too, the doctor has a duty as a professional to act under a
standard of care that doctors must. She has breached this standard of care through misdiagnosis.
Page 8 of 16
(Question 1 continued)
cause in fact:
Here, but for the doctor's misdiagnosis, Biff would not experience NIED is correct. And
'Wilma,
proximate cause
Dee is liable for the foreseeable reasonable consequences of her negligence and the
Biffs
will
Estate v. Carter
Duty
Breach of Duty
Here,
Biff
a foreseeable
plaintiff
foreseeably
of his knowledge/intoxication, see above. Under leaerned hand, negligence is present here
becuase the foreseeability
of danger is pretty high and the burden of preventing it is low because he just had to tell wilma or
have protected sex.
Page 9 of 16
lQuesflon 1 continued)
Cause in Fact
But for Carter's negligence, Biff would not have had committed suicide is correct. Carter's
negligence is a cause in fact of
Biffs suicide.
Proximate Cause
Carter
will
any reasonably foreseeable intervening causes, under the Reasoably Foreseeable Approach. Here,
there are two main intervening causes between the link of Carter's negligence and and
Biffs
wrongful death.
One intervening cause is V/ilma's having sex with
Biffs suicide.
Page 10 of 16
it
and he is not