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Torts

Diamond Jack Jack owned the world’s largest uncut diamond, the “Star,” worth $1 million uncut, but $3 million if cut into finished gems. Of the 20 master diamond cutters in the world, 19 declined to undertake the task because of the degree of difficulty. One mistake would shatter the Star into worthless fragments. One master diamond cutter, Chip, studied the Star and agreed with Jack in writing to cut the Star for $100,000, payable upon successful completion. As Chip was crossing the street to enter Jack’s premises to cut the Star, Chip was knocked down by a slow moving car driven by Wilbur. Wilbur had driven through a red light and did not see Chip, who was crossing with the light. Chip suffered a gash on his leg, which bled profusely. Though an ordinary person would have recovered easily, Chip was a hemophiliac (uncontrollable bleeder) and died as a result of the injury. Chip left a widow, Melinda. Jack, who still has the uncut Star, engaged Lawyer to sue Wilbur in negligence for the $2 million difference between the value of the diamond as cut and as uncut. Lawyer allowed the applicable statute of limitations to expire without filing suit. 1. What claims, if any, may Melinda assert against Wilbur, and what damages, if any, may she recover? Discuss. 2. What claims, if any, may Jack assert against Lawyer, and what damages, if any, may he recover? Discuss.


Answer 6

This answer provided by Emerson’s Tutorial Bar Review, 415-864-4122, www.emersonstutorialbarreview.com. MELINDA V. WILBUR Melinda will claim damages for the wrongful death of her husband Chip. At common law, she would receive no damages. The cause of action which Chip had against Wilbur, just prior to his death, would not have survived him. At common law, it was cheaper to kill than to injure. Nowadays, by statute, all jurisdictions allow recovery for wrongful death. There are two types of wrongful death statutes: (1) Survival statutes, and (2) “True” wrongful death statutes. SURVIVAL WRONGFUL DEATH STATUTES Survival statutes provide that the causes of action that the decedent had before death survive the decedent. Here, Chip had a cause of action against Wilbur for negligence, and then died. Under the survival statutes, Melinda could become Chips personal representative, and sue Wilbur for the harm caused by Wilbur’s negligence. Negligence — Wilbur was surely negligent. Driving through a red traffic signal is negligence per se. It is an unexcused violation of an applicable criminal statute. The statute which prohibits driving through a red traffic signal is a criminal statute. It is applicable to our facts because it was intended to protect this type of plaintiff, a pedestrian, against this type of injury, being hit by a car. Actual Cause — Wilbur’s negligence is the actual cause of Chip’s injuries, since but for Wilbur driving negligently Chip would not have been injured. Proximate Cause — Wilbur’s negligence is also the proximate cause of Chip’s death. Wilbur would not expect that Chip would bleed to death, since, according to the facts, a normal person would have easily recovered from the injury. However, for personal injuries, the defendant’s liability is not terminated by the unexpected severe consequences of the injury. The defendant takes his plaintiff as he finds him, including having a bleeding disorder which led to Chip’s death. Thus, since Chip’s cause of action survived him in the survival jurisdictions, and Chip would have won the cause of action against Wilbur (based on negligence per se), Chip’s estate is entitled to the damages Chip would have received from this cause of action, had he lived. Damages — The damages to Chip’s estate include Chip’s medical expenses and loss of wages which occurred during Chip’s lifetime. Some jurisdictions also allow Chip’s estate to recovery for Chip’s pain and suffering during his lifetime. Here, Chip “suffered a gash and bled profusely,” which probably constitutes pain and suffering. In addition to the causes of action which survived Chip, Chip’s personal representative is permitted to sue for future harm to Chip’s estate. These include Chip’s loss of future earnings, less his living expenses. Since the cause of action belongs to Chip’s estate, the damages recovered will belong to Chip’s estate, not to Melinda personally. The damages are then distributed from the Chip’s estate to the beneficiaries of his estate. Melinda would most likely be one of the beneficiaries of her late husband’s estate. “TRUE” WRONGFUL DEATH STATUTES “True” wrongful death statutes create a new cause of action in favor of specific relatives such as surviving spouse, child, parent, etc. Here, the plaintiff Melinda is a surviving spouse, and therefore has a right to recover under the “true” wrongful death statutes. The plaintiff must prove the wrongfulness of the decedent’s death, and then may collect all pecuniary damages. Death was wrongful — Chip’s death was wrongful because it was caused by Wilbur’s negligence per se as discussed above. Pecuniary DamagesPecuniary damages are those which can be reduced to a monetary amount. These include loss of companionship, support, services and contributions. Loss of companionship and services is measured by the cost of purchasing replacements, for life. Loss of support is loss of future earnings by Chip, less his living expenses, for his expected lifetime. Loss of contribution is loss of expected gifts. For example, property which Chip would have inherited and might have devised to Melinda may be a loss gift to Melinda if Chip will no longer inherit because he is deceased. All these pecuniary damages are reduced to present value, and paid directly to Melinda. The cause of action belongs to the surviving spouse, not to the estate of Chip. In addition to Melinda’s statutory right to recover under the “true” wrongful death statutes, Chip’s estate was damaged. The damages include medical expenses and loss of income which occurred during Chip’s lifetime. Pain and suffering is recoverable in some jurisdictions. These damages to Chip’s estate are paid to his estate and then distributed from his estate according to his will, or intestate. Melinda would most likely be one of the beneficiaries. JACK VS. LAWYER Jack might sue Lawyer for malpractice; i.e., for professional negligence. However, Jack would lose. Requirements for malpractice suit — In Jack’s malpractice suit against a lawyer, the plaintiff, Jack, must prove (1) Lawyer was negligent, (2) But for the negligence of the lawyer, Jack more likely than not would have won a judgment against Wilbur, and (3) The judgment would have been collectable. Lawyer was negligent — Here, Lawyer’s negligence is not disputable. He let the statute of limitations run on the claim. Jack would not have won against Wilbur — However, Lawyer could not have won a judgment against Wilbur, as a matter of law. Wilbur owed no duty to Jack — Jack’s cause of action against Wilbur would have been for negligent interference with contract. There is no such cause of action, therefore Lawyer would have lost, as a matter of law. The public policy regarding this type of law suit is that Wilbur, the negligent actor, does not owe Jack, the victim of the non- performance of the contract, a duty to not negligently interfere with Jack’s contract. The damages would be too speculative, causation would be unclear, and insurance against negligence would skyrocket. Damages too speculative — Even if there were such a cause of action, Jack’s damages must be actual in amount, and these are too speculative. Clip might have shattered the Star diamond into worthless fragments. Nineteen other diamond cutters had refused to cut the Star because of this concern. Damages not foreseeable — Damages must also be proximately caused by the negligence. Negligent interference with contracts with a third party are considered unforeseeable, as a matter of law, and therefore not recoverable. Unjust enrichment — Finally, Jack seeks $2M in damages, without taking the risk of cutting the diamond. This would constitute unjust enrichment of Jack. Jack will recover nothing from Lawyer.

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