A DAY AT THE BEACH
Prepared for Ms. Nicole Hahn, Legal Counsel
Prepared by Team #1, The United Nation of Northridge Consulting Firm
Date: October 3, 2009
To: Ms. Nicole Hahn, Legal Counsel
From: United Nations of Northridge, Consulting Firm
Subject: Legal Analysis and Recommendations
The attached report contains the legal analysis and recommendations prepared by United Nation of Northridge (UNN) regarding Ms. Nicole Hahn’s proposal of simplifying the strengths and weaknesses in any lawsuit that might be filed on behalf of Patrick McDuff, and the relevance of the information regarding Government Survey Data and Year End Consumer Price Index for the Years 1999 to 2008 and the Newspeak Magazine article, “The Flip-Flop Craze”. UNN is confident that you will find the results and analysis of this study to be constructive in building a claim of negligence and strict liability. If you are in need of further support or information, please contact us.
UNN, Consulting Firm
TABLE OF CONTENTS
MEMO OF TRANSMITTAL………………………………………………………………………………………. ii
EXECUTIVE SUMMARY………………………………………………………………………………………….. 1
PROBLEM……………………………………………………………………………………………………………… 2
FACTS…………………………………………………………………………………………………………………… 2
FINDINGS……………………………………………………………………………………………………………… 3
LEGAL ANALYSIS…………………………………………………………………………………………………… 3
Negligence……………………………………………………………………………………………………………… 3
Strict Liability………………………………………………………………………………………………………….………7
Ethical Responsibility to Consumer…………………………………………………………………………….. 8
CONCLUSION AND RECOMMENDATIONS…………………………………………………………………….. 9
APPENDIX……………………………………………………………………………………………………………… 10
Government Survey Data………………………………………………………………………………………….. 11
Year End Consumer Price Index…………………………………………………………………………………. 12
WORKS CITED………………………………………………………………………………………………………….. 14
EXECUTIVE SUMMARY
The following report was constructed to assist Ms. Nicole Hahn in determining the legal liability on behalf of the plaintiff, Mr. Patrick McDuff, regarding negligence on the part of the defendant, Ms. Jitsy Jetson, and the strict liability of Sandpiper Footwear. Recommendations are also given to provide support to the findings.
To establish whether or not Ms. Jetson was liable of negligence, four elements are discussed and analyzed: (1) that the defendant owed a duty of care to the plaintiff; (2) that the defendant breached that duty; (3) that the defendant’s breach caused the plaintiff’s injury, and finally (4) that the plaintiff suffered a legally recognizable injury/damage. After discussion of these elements it is found that Ms. Jetson is liable for negligence.
The next portion of analysis is the strict liability of Sandpiper Footwear. Under strict liability Sandpiper Footwear must warn consumers of the potential risk of danger that is not reasonably considered by the “ordinary” consumer. Due to the increased popularity and the high risk of danger associated with their product, Sandpiper Footwear must take action to warn all their customers. Because they failed to do so, it’s concluded that, Sandpiper Footwear is strictly liable.
After analyzing the two major issues of this case it is recommended, Sandpiper Footwear provide a warning about the defectiveness of their product so future customers will be aware of the possible dangers, preventing harm to the public and they will avoid future law suits. Ms. Jetson is liable for breach of duty and should refrain from any behavior that could cause harm to those she owes duty of care.
PROBLEM
As a result of an unfortunate accident the plaintiff, Patrick McDuff (Mr. McDuff) suffered serious injuries, paralyzing him from the neck down. The following report was constructed to give legal analysis and answer questions as to whether or not to pursue tort claims:
- Is the evidence sufficient to prove a claim of liability for negligence?
- Does the Government Survey Data support Ms. Hahn’s position that accident rates among drivers wearing flip-flops are higher than the accident rates along drivers wearing other types of footwear?
- Is there enough evidence to maintain that Sandpiper Footwear is strictly liable?
- What kinds of damages Mr. McDuff can recover?
FACTS
After a day at the beach, Jitsy Jetson (Ms. Jetson) was driving home in her new Nimbus 2009 WMB-X4 convertible sports car at normal speed. Ms. Jetson was wearing a new pair of Sandpiper designer flip-flops. While being stopped at a red light, Ms. Jetson noticed stares coming from the other drivers awaiting the light. Hoping to impress all others around her, Ms. Jetson stepped on the accelerator. However, one of her flip-flops slipped off her foot and became lodged under the gas pedal causing the car to accelerate at a very rapid rate. Ms. Jetson lost control of the vehicle which led her to cross the double yellow line into oncoming traffic. Instantly, Ms. Jetson’s X4 collided head-on into Mr. McDuff’s car. As a result of the accident Mr. McDuff suffered a serious spinal cord injury, leaving him paralyzed from the neck down and unable to work ever again.
FINDINGS
The defendant, Mr. McDuff, 53 years old at the time of the accident, had a life expectancy of 77 years. He would have retired at age 65 (12 years from the day of accident). Mr. McDuff was an employee of the United States Postal Service where he had a union contract coverage which was projecting his wages to go up by 3 % per year in real terms plus an annual Cost of Living Adjustment (COLA) equal to the rate of inflation, which is shown in table 2 of the appendix. Mr. McDuff’s current annual gross salary at the time was $48,000.
In order to build a strong case against Ms. Jetson and Sandpiper Footwear, a government survey was obtained by Ms. Hahn, showing data of non-fatal motor vehicle accidents and the footwear being worn by the drivers at the time of the accidents, which is shown in table 1 of the appendix. The data shows the difference in accident rates between drivers wearing flip-flops and those wearing other types of footwear. Also valuable to this case, the article “The Flip-Flop Craze”, in Newspeak Magazine, which illustrates the health risks and safety hazards associated with wearing flip-flops.
LEGAL ANALYSIS
The case on behalf of Mr. Patrick Mr. McDuff involves Tort law which is designed to compensate persons who have endured a loss or injury due to another party’s wrongful act.
Negligence
The tort of negligence involves acts that depart from a reasonable standard of care and therefore creates an unreasonable risk of harm to others. In order to attest that Mr. McDuff’s injuries were due to Ms. Jetson’s negligence the plaintiff must prove the following elements: (1) that the defendant owed a duty of care to the plaintiff; (2) that the defendant breached that duty; (3) that the defendant’s breach caused the plaintiff’s injury, and finally (4) that the plaintiff suffered a legally recognizable injury/damage.
Duty of Care:
The first element of tort of negligence is the duty of care. The core principle for duty of care is that all people are free to do as they please as long as their actions do not violate the interest of others. In order for the courts to establish a duty of responsibility, the following must be analyzed: (1) the relationship between parties, (2) the reasonable foreseeability of harm to the person injured and (3) public policy concerns. Proving any one of these three issues is enough for a court to impose duty.
- I. The Relationship Between the Plaintiff and Defendant
Duty arises out of the relationship between the parties. In this case, Ms. Jetson owes a duty of reasonable care to all whom she shares the road. An indirect relationship exists between all drivers on the road regardless of the circumstances, which proves that duty of care is owed between Ms. Jetson and Mr. McDuff.
- II. The Foreseeability of Harm to the Plaintiff
Foreseeability of harm is the most important condition in establishing a duty of care. Ms. Jetson owes a duty of care to all persons on the road, including Mr. McDuff, because they are all foreseeably endangered by her conduct. To determine level that Ms. Ms. Jetson should conduct herself the “reasonable person standard” is applied. Meaning she has a duty to act “like a reasonable person of ordinary prudence in similar circumstances”. Individuals have a duty to act sensibly regardless of their “subjective mental state”. Even though Ms. Ms. Jetson was conscious of the attention she was receiving from the other drivers awaiting the light, she had a duty to act reasonably. By not focusing on the road and wearing inappropriate footwear, Ms. Ms. Jetson’s conduct did not meet this standard making her unreasonably dangerous to other drivers.
Breach of Duty
Even in proving that there was a duty owed to Mr. McDuff by Ms. Jetson, it still must be established whether or not Ms. Jetson breached that duty by causing injury to Mr. McDuff. In order to create a strong case against Ms. Jetson’s breach of duty, some important elements must be proved: (1) the probability of the accidents occurring, (2) the magnitude of the injury suffered by the plaintiff, (3) the burden placed on the defendant to take adequate precautions to avert the accident, and (4) causal relationship between breach and injury.
- I. The Probability of the Accidents Occurring
According to Regression Analysis, the probability of having a car accident while wearing flip-flops is getting higher throughout the years as shown in Table 1 is ŷ = 2.5 + 0.6X.
ŷ = b0+b1x is the linear regression. The results from the regression analysis supports Ms. Hahn’s position that drivers who wear flip-flops have higher accident rates than drivers who do not wear flip flops.The plaintiff failed to exercise ordinary care and breached a duty.
- I. The Magnitude of Injury
Drivers are always expected to use all possible precaution because they are sharing the road with others. Since Ms. Jetson behaved in a careless manner by deciding to wear flip flops while driving, and as a result of her action she caused harm and injury to Mr. McDuff. The magnitude of injury suffered by Mr. McDuff was a severe spinal cord injury which made him paralyzed from the neck down leaving him unable to ever work again.
- I. The Burden of Adequate Precautions
As the probability of an accident occurring while wearing flip-flops is high, and the seriousness of the injury suffered by Mr. McDuff, in comparison to inexpensive alternative footwear that Ms. Jetson could have worn in order to prevent the accident. So, the burden of adequate precaution falls on Ms. Jetson to dress appropriately while driving.
Causal Relationship Between Breach and Injury
Although Ms. Jetson breached a duty of care, to prove that she is liable for negligence her breach of duty must have caused the actual injury to Mr. McDuff. In order to determine this relationship, the court applies the “but for” test, saying Mr. McDuff’s injury would not have occurred “but for” Ms. Jetson’s breach of duty. So, if the jury can conclude that Mr. McDuff would not have suffered injury “but for” Ms. Jetson’s neglect to wear appropriate footwear while driving, causing the accident, then Ms. Jetson is liable for negligence. So her breach caused the plaintiff’s injury.
Damages
Damages owed to the plaintiff are compensatory damages aimed to compensate Mr. McDuff for all he has lost as a result of his injury. Due to the fact that Mr. McDuff’s health can never be recovered, the damages are repaid through monetary means.
Given that Mr. McDuff’s Consumer Price Index (CPI) for the last 10 years is 3.33% and his union contract, with the U.S. Postal Service, projected his wages to increase by 3% each year in real terms plus the annual Cost of Living Adjustment (COLA), for the next 12 years he would have worked, puts him at a 6.33% increase from each previous year. At the time of the accident, Mr. McDuff had an annual gross income of $48,000. With this information it is calculated that if Mr. McDuff would have continued working up until his retirement at age 65, he would have earned $925,787.67. He will not receive any government aid due to his condition. Instead, 25% of Mr. McDuff’s income will be paid in state and federal income taxes leaving him with $694,340.75. If Mr. McDuff takes the $694,340.75 today he will endure an 8% present value loss leaving him with the present value $255,307.65.
Strict Liability
Sandpiper Footwear will be now be examined to determine whether they are strictly liable to Mr. McDuff for their failure to warn of the dangers in wearing their flip-flops while driving. Strict liability is “liability without fault”, meaning that the Sandpiper Footwear is liable even though they did not intend to cause harm and did not bring about injury through their recklessness or negligence by failing to apply reasonable care.
The product (flip-flops) failed to warn of any potential danger correlated with this product. The manufacture (Sandpiper Footwear) failed to warn the consumer (Ms. Jetson) of any potential risk, where the danger is not reasonably seen and extends beyond the consideration of the ordinary consumer. The purpose of such a warning is to inform the reasonably sensible person of the potential danger and how it can be avoided. In the recent article “The Flip-Flop Craze”, in Viewspeak Magazine podiatrists confront the risks of flip-flops by saying, “from a health prospective podiatrists are concerned because of the lack of support to the bottom of the feet when wearing flip-flops. Because of the absence of support the foot lacks stability, leading to sprains, breaks and fall. In addition, the thin soles provide no shock-absorbing qualities to feet and legs placing strain on the arch, ankles, hips, and lower back… Automobile safety experts warn that driving in loose-fitting footwear is dangerous because the sole can easily get caught under the break, clutch or accelerator pedal resulting in a fatal accident”. Due to Sandpiper Footwear’s failure to address these dangers of wearing flip-flops and take action to warn its customers of the risk involved with wearing and driving in flip-flops, Sandpiper Footwear is found to be strictly liable.
Ethical Responsibility to Consumer
Not only is Sandpiper Footwear strictly liable for their product but the company has an ethical responsibility to warn all their customers of the high risk of danger associated with their flip-flops. As with every company who provides a product to the public, their main concern should be their customer’s safety and provide warning of any possible risks involved with their product.
CONCLUSIONS AND RECOMMENDATIONS
In conclusion it is found that there was substantial evidence to prove that Ms. Jetson is liable to Mr. McDuff for negligence due to breach of duty. Ms. Jetson is found to be negligent due to her conduct of wearing flip-flops and not adhering to the “reasonable person standard” while driving and avoiding the reasonably foreseeable risk of harm to herself and all others on the road, leading to the severe accident with Mr. McDuff. It is recommended that the manufacture, Sandpiper Footwear should provide a warning about the defectiveness of their product so future customers will be aware of the possible dangers, preventing harm to the public and they will avoid future law suits. Ms. Jetson should refrain from any behavior that could cause harm to those she owes duty of care.
APPENDIX
TABLE 1: Government Survey Data
| Year
|
Difference in Accident Rates = Flip-Flops – Other Footwear
|
| 1 | 4% |
| 2 | 5% |
| 3 | 3% |
| 4 | 4% |
| 5 | 6% |
| 6 | 5% |
| 7 | 7% |
| 8 | 8% |
| 9 | 7% |
| 10 | 9% |
- This government data survey looks at the difference between two types of non-fatal accidents over ten years.
- The difference is between the accident rates that involved people wearing flip-flops and the accident rates that involved people wearing other types of footwear.
In year 1, the difference in accident rates was 4%.
- This means that the rate of accidents that involve the wearing of flip-flops was 4% higher, than that of the other footwear.
And now if the rate of the other footwear was subtracted from the rate of the flip-flop, the difference would be 4%.
- This government survey data shows that in a 10 year period, the percentage rates of accidents involving flip-flops is always higher than the rates of accidents involving other footwear.
The results from the regression analysis supports Ms. Hahn’s position that drivers who wear flip-flops have higher accident rates than drivers who do not wear flip flops.
However, there are limitations that exist regarding the methods of analyzing data from this government survey.
- For instance, it would not be fair to compare 100 people who wear flip-flops while driving to 10,000 people who wear the other footwear while driving
- Another issue identified is that, even though the rates of flip-flops were consistently higher than the rates of the other footwear, the survey data does not show whether or not the accident rates involving flip-flops had either decreased or increased from year to year.
In order to overcome these limitations, more information is needed to make comparisons between the accident rates involving people who wear flip-flops while driving to people who operate vehicles while wearing the other footwear.
| X | Y | ||
| 1 | 4 | X = Year | |
| 2 | 5 | ||
| 3 | 3 | Y = Rate | |
| 4 | 4 | ||
| 5 | 6 | ||
| 6 | 5 | ||
| 7 | 7 | ||
| 8 | 8 | ||
| 9 | 7 | ||
| 10 | 9 |
- This government survey data shows that in a 10 year period, the percentage rates of accidents involving flip-flops are always higher than the rates of accidents involving other footwear.
Mean of x = 5.5%
Mean of y = 5.8%
Linear Regression is ŷ = b0+b1x which is 2.5 + 0.6x
Mean of ŷ = 5.8%
Standard Error of Estimate
The actual differences of rates of accidents are typically 1% away from the expected difference of rates of accidents.
Sє ≈ 1%
TABLE # 2: Year End Consumer Price Index (CPI) for the Years 1999 to 2008
|
Year |
Year End CPI Value |
Average Annual percentage change in the CPI
|
| 1999 | 148.20 | |
| 2000 | 152.40 | 0.03 |
| 2001 | 156.60 | 0.03 |
| 2002 | 162.50 | 0.04 |
| 2003 | 166.20 | 0.02 |
| 2004 | 169.80 | 0.02 |
| 2005 | 176.00 | 0.04 |
| 2006 | 183.10 | 0.04 |
| 2007 | 192.60 | 0.05 |
| 2008 | 199.00 | 0.03 |
| Average CPI | 3.33 |
Average CPI =High CPI – Low CPI / =
| Average CPI = | High CPI – Low CPI |
| Low CPI | |
| = | 0.30/9 |
| = | 0.0333*100 |
| = | 3.33% |
| Wages Increase + Cola = | 3.0%(given) + 3.33% |
| = | 6.33% |
| Wages Less Taxes = | Wages * 0.75 |
| Wages = | (Previous Year Wages * 6.33%) + Previous Year Wages |
Definitions
Tort: A breach of a legal duty, a civil wrong arising from breaching a legal duty that proximately causes harm or injury to another. The word tort is French for “wrong” (Clarkson 120)
Compensatory damage: A money award equivalent to the actual value of injuries or damages sustained by the aggrieved party (Clarkson G-7).
Consumer Price Index (CPI): An inflationary indicator that measures the change in the cost of a fixed basket of products and services, including housing, electricity, food, and transportation. The CPI is published monthly. Also called cost-of-living index(Investor).
In real terms: Growth, income, value, wage, yield, etc., expressed as a quantity from which unreal (apparent or nominal) increase caused by inflation has been subtracted.
WORKS CITED
Allan G. Bluman “Elementary Statistics” A Step by Step Approach (2008):
Business Gateway Lab Review Material (April 25, 2009). Business Law. Retrieved
September 8, 2009, from http://www.csun.edu/~bz51361/gateway/
Clarkson K., Miller R., Jentz G., Cross F. “West’s Business Law” Text and Cases (2006): 140-49
CSUN College of Business and Economics. The Gateway Experience. Mason, Ohio: Cengage Learning, 2007, 2009.
The ‘Lectric Law Library’s Lexicon On. Retrieved September 13, 2009, from
<http://www.lectlaw.com/def/d004.htm>
Investor Words.com: <http://www.investorwords.com/1187/CPI.html>