Thursday, May 01, 2008

CC's exam preparation gets a little silly.

I'm still getting the hang of law school exam writing, so be nice. That said, I'm willing to take suggestions on improving my style. I know the analysis is a little spotty in places, but I gave myself a 90 minute deadline to write this as I felt that analyzing the movie should not be allowed to take longer than the movie itself.

An Analysis of tort law in The Omen

Soon after the movie begins, Ambassador Steven Harris suffers a fatal accident. A fuel truck driver who is driving negligently spills his cargo onto the Ambassador’s limousine. A homeless guy drops a match and Ambassador Harris and his driver are killed in the resulting explosion. Ambassador Harris’ family has quite a few avenues for recovering for negligence.

Firstly, if the driver of the oil truck were driving negligently, he may be held responsible for the entire accident. A driver of an oil truck through London has a duty to be aware of the traffic around him and drive carefully as a result. He breached that duty by driving negligently. Though the homeless man dropping a cigarette was also a cause of the accident, this action would have had not effect had the oil truck not spilled. The homeless man and the driver are in this sense jointly and severally liable for the Ambassador’s death. That said, a homeless man is often judgment-proof. In many states that would place the burden to be divided between the other parties.

Under vicarious liability, the oil company that owned the truck is responsible for the torts of its employee under respondaet superior since transporting oil is presumably within the scope of the deliveryman’s job duties. Even if the company has rules against negligent driving, the driving would still have been in furtherance of the driver’s employment and thus within the scope of vicarious liability.

The Ambassador and the oil truck driver might have a reasonable products liability claim against the maker of the oil truck if some material defect in the truck could be considered a cause of the accident. If the brakes were defective in some material way, strict liability would apply as an oil truck is not unavoidably unsafe. But there isn’t enough information to do much more than speculate as the particulars of the accident are not a focus of the movies.

The Ambassador’s family may go so far as to try to call driving an oil truck through the middle of the city an Ultrahazardous activity, but it is likely that the utility of oil deliveries would render that approach unworkable.
Wrongful death is the most obvious legal direction for the ambassador’s family to take. As the entire accident is over in a matter of seconds, it is unlikely that the Ambassador suffered any, but they could easily recover for the economic support and companionship they lost in his death.

Later in the movie, Damien’s nanny hangs herself as the attendees at his birthday party look on in horror. Any person who sees the hanging could indeed suffer distress great enough that they would need to seek medical treatment. But they would not have been afraid for their own safety, nor that of a member of their family, so the woman’s conduct is not tortious.

Years later, Katherine, who is pregnant, is standing on a stool watering a plant on the ledge of a mezzanine. Damien is riding his tricycle along and knocks her over the ledge. She hangs there for a moment begging Damien to help her. He doesn’t and she falls, breaking her collarbone and losing the baby when she hits the ground.
If Damien’s contact with his mother’s person was intentional, he could be held fully liable as battery is an intentional tort and children can be held responsible for intentional torts. Even if he only intended to scare her, the doctrine of transferred intent indicates that the intent will transfer to a battery claim. As Damien approaches Katherine, she screams and tells him to stop, meaning that she did have reasonable apprehension of what was to come, which adds an assault claim to the aforementioned.

Assuming, arguendo, that it was in fact an accident, Damien will be held to the “Reasonable child” standard, wherein the courts will ask themselves what a reasonable five-year-old would do in that situation. Anyone riding a tricycle has a duty not to hit people with it. This goes double for people who are riding tricycles on the second floor. His careless riding of the tricycle is a breach of this duty, and directly causes his mother’s fall. That her injuries put her in the hospital serves as ample evidence that she was harmed. A court would probably find that Damien was negligent as the reasonable six year old would know that both riding tricycles into people and riding them indoors are bad ideas.

Courts are split on whether Katherine would be able to recover for the death of her unborn child.

Keith and David, while in a cemetery at night, are chased by wild dogs. They had been directed to the cemetery by Father Spileto, meaning that they weren’t trespassers, so the licensee standard of care would apply. If Father Spileto keeps guard dogs, or if wild dogs have been roaming the area, then the priest had a duty to tell the father and Keith about the potential danger. The dogs do not bite Keith and David, but the priest could be liable for an emotional distress claim if they developed a physical manifestation of their distress.

Keith, however, has bigger problems than his emotional distress claim. While walking down a back alley, he is killed by a falling sign. Keith’s intestate would be able to sue under a negligence theory as the store owner is required to maintain his shop and keep such dangers in good repair.

In what was for my money the scariest scene in the movie, Damien’s nanny murders Katherine by injecting her IV with an air bubble while she is in the hospital. By the end of the scene, it’s clear that nobody in the hospital ever saw Damien or the nanny. Were Damien so inclined, he might well try a medical malpractice claim against the hospital. Though Damien would lack evidence that the hospital’s negligence caused his mother’s death, he could argue that embolisms caused by small punctures in an IV lines do not typically occur unless someone at the hospital has been negligent, and that the negligence was more likely than not that of the hospital staff. Thus, Damien has all of the elements of a res ipsa loquitor case of negligence.

Finally, Damien’s father dies when he is shot by an officer of the diplomatic protection group as he tries tries to stab Damien with a piece of the cross of Meggido. Stabbing someone is unprivileged contact with the plaintiff’s person, so that’s another battery claim. As outlined above, the factors for assualt and intentional infliction of emotional distress also apply.

However, the soldier shooting David is privileged as a defense of others claim. David was mere seconds away from stabbing Damien, thus satisfying the timeliness requirement. Even the officer’s use of deadly force is acceptable as it was reasonable force under the circumstances.


1 comment:

Joel Monka said...

One other thought about the gas truck: as this type of accident is common and foreseeable, the manufacturer of the truck is liable for not designing it such that it would not spill product in a foreseeable incident.