Question
1. During the course of performing a root canal on Dawn, Dr. Touth, an oral surgeon, gets an implement stuck in Dawn’s tooth and it breaks. Dr. Touth cannot extract the broken piece of the implement from Dawn’s tooth, so he leaves it there. He completes the root canal, and does not tell Dawn that he left part of a dental implement imbedded in her tooth. He then completes Dawn’s other dental work, including the placement of a crown on the tooth with the implement in it. Two years later, Dawn begins to have significant problems with the tooth on which Dr. Touth performed the root canal. She has a serious infection that requires the removal of not only the tooth that Dr. Touth performed the surgery on, but also the teeth on either side of it. She misses a significant amount of work to have more dental work performed and suffers a considerable amount of pain.
Does Dr. Touth’s conduct support a prima facie case of the tort of negligence? Explain why or why not. A complete response will address each element of negligence, using the IRAC method as explained in class.
2.Kim went to a Walmart store at 7:30pm to purchase some diapers for her baby. She also needed some detergent. She took her infant with her, carrying her in an infant seat, which she had purchased at Walmart a few weeks earlier. A large Walmart price tag was still attached to the back of the seat. Kim bought the diapers and the detergent, and then a candy bar for herself. She was in a hurry to leave, because it was now 8:00pm, and it was feeding time for the baby. She rushed through the checkout lane, paying for the candy, diapers and detergent. Just after leaving the register, as she was walking toward the door, she heard someone ask her to stop. She turned around and saw a Walmart security guard, who asked her to please come with him. Martha asked, “What for?,” and the guard pulled his badge out, showed it to her, and told her that if she would just come with him, he would talk to her about it in private. Kim hesitated, so the security guard grabbed her arm, and forcefully lead her to the side of the store, by customer service, into a room. He passed several patrons along the way as he escorted her along in a hurried manner. Upon entering the room, he asked Kim to sit down. Kim did, and she placed the baby in the infant seat next to her, on the floor. The guard then told her that one of the Walmart employees saw Kim steal the car seat. Kim denied that she stole anything and explained that she had purchased it earlier in the month and had yet to take the price tag off. She demanded to see the employee, to clear things up. The guard said it would take a while to find him because he was on break. After 15 minutes of waiting, the employee was found. He came into the room and said that he saw Kim steal the infant seat by taking it off a table and putting her baby in it. Kim pointed out to the guard that she had taken her baby out of the seat earlier to change the baby’s diaper, and that she was putting the baby back in when the guard saw her. Additionally, she pointed out that her seat had milk stains on it, crumbs in the corner and cat hair on it. The guard then said, “I am really sorry; there’s been a terrible mistake. You are free to leave.” Kim looked at her watch as she walked out the door, aggravated. It was 8:30pm-- well past feeding time.
Kim is going to sue Walmart for what torts? Explain your answer by showing facts for each element of the tort. Use IRAC for each tort. Include any valid defens(s). NOTICE THERE IS MORE THAN ONE TORT IN THIS HYPO!
3.Sleeping Beauty lies sound asleep in the thorn-enmeshed castle in the woods. Prince Charming enters the castle and sees her sleeping. He does not know her- she is a beautiful stranger to him, but he decides to kiss her anyway because her beauty is breathtaking. As he leans over to kiss her, he touches her ruby red lips, and she begins to stir. She awakens to his kiss and jumps out of bed.
(a) Does Charming’s conduct support a prima facie case for the tort of battery? Explain why or why not. Use IRAC.
(b) Does his conduct support a prima facie case for the tort of assault? Explain why or why not. Use IRAC.
4.Curt Cranky is jealous of Nick Smart’s academic achievements. Nick has been given a $10,000 college scholarship that Curt believes he was more qualified to receive. The scholarship was awarded by a local business owner, Doris DoGood, and is based on the student’s demonstration of good citizenship and role modeling for younger students. Curt sends a letter to Doris DoGood, informing her of the fact that before Nick Smart moved to the area, Nick had been arrested in another city numerous times for gang-related activities involving violence and sale of drugs. Curt is sending the information to her so she can realize the type of person Nick truly is and perhaps revoke the award and give it to someone more deserving. Based on the letter, Doris withdraws the scholarship award to Nick (which she has a legal right to do!). Nick sues Curt after finding out that Curt sent the letter. Although the allegations in the letter are not completely accurate, it is true that Nick had previously suffered a substance abuse addiction and had been arrested several times in relation to his addiction prior to receiving treatment. He did buy his drugs from a dangerous gang, but he is now clean and sober.
What tort is Nick going to sue Curtis for? Does Curtis have a defense? Explain your answer. Use IRAC.
5. Harry, Ron and Hermione decide to go trick or treating on Halloween night. They all decided to shun their wizard costumes and instead, dress up in fatigues as soldiers. They each also brought along plastic, realistic looking sub-machine guns and covered their faces with bandanas, as if they were in the desert, blocking sand from the noses and mouths. They stepped up to Mr. Wimpy’s house and rang the bell, with guns drawn and bandanas up. Mr. Wimpy opened the door and immediately slammed it shut. He pulled his .357 magum pistol from the side drawer and armed himself. He opened the door again, right as Harry was taking a picture of Hermione posing at the door. Mr. Wimpy saw the flash from the camera and discharged his pistol, striking Hermione and maiming her.
Mr. Wimpy wants to sue all three kids for assault, as well as negligence. Will he win in court? IRAC each tort and come to a conclusion.
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