Free Fully Explain What Torts, If Any, John, Gerry AND Heidi Have Against Manny. Essay Example

QUESTION ONE

John may have a tort action against Manny for Assault. The elements of assault include: intent, apprehension of an offensive or harmful contact and causation. Manny had intent as indicated by this words “here’s something for you guys, you jerks”. The cleat thrown by Manny toward John created apprehension of harmful contact on the part of John, knowing that if a cleat struck him, especially in the face, injury would result. Causation is present because Manny threw the cleat in a rage and spoke words indicating he intended to cause harm. Therefore, John would succeed on a claim against Manny for assault. John would not have a claim for battery because there was actually no contact upon him by the cleat.
Gerry may consider filing a tort action for assault. However, the second element required for assault, that is apprehension, is not present because he did not see Manny throw the cleat, and words alone are not enough to meet this element.
Heidi may consider filing a claim for assault against Manny. She did see the cleat flying towards her which created apprehension of harm. Heidi may also consider filing a battery claim against Manny. The elements of battery are: an act, the intent to cause harm and offensive or harmful contact occurs as a result. Manny threw the cleat, it struck Heidi and it caused her injury. The only questionable element for each of these torts is that of intent. Manny intended to cause apprehension and contact to John and Gerry. However, transferred intent occurred when Manny intended to strike Gerry and John but struck Heidi. Thus, intent is present and Heidi would likely succeed on tort claims of assault and battery against Manny.

Does Manny have any possible legal action against John and Gerry? Would it be successful?

Manny may wish to file a civil action for defamation against John and Gerry. Defamation occurs when a person makes a statement that harms another’s reputation. Slander is spoken defamation. The elements necessary to prove in slander consist of: a false statement alleging to be a fact, communication of the statement to a third person, fault, and damages. The statements made by John and Gerry were simply statements and opinions. “Good riddance”, “who needs him” and “he’s a lousy player” are really just opinions. The statements were communicated to others when John and Gerry stated them on their radio talk show. The actions of John and Gerry could be considered reckless. And, Manny did not suffer and damages as result of the statements. Two elements required for the cause of action are not met and thus, Manny would not succeed on his claim.

QUESTION TWO

Evaluate any legal claims that Larry may have against OTWM
Negligence is the failure to use proper care which results in injury to another. The elements include: duty, breach of duty, cause in fact, proximate cause and damages. As a business, the duty of care for OTWM toward Larry would be that of a public invitee which places the duty on OTWM and Mike as an employee, to protect Larry from dangerous conditions that they should have known of. Mike breached this duty when he failed to place a sign warning Larry of the slippery floor. Mike’s failure to place the sign resulted in Larry slip and injury. Proximate cause existed because the slip and fall was a foreseeable risk with no sign present to warn Larry. And, Larry suffered damages as he broke his leg. Therefore, all elements of negligence are present and Larry would have a successful action against OTWM for its employee’s negligent act.

Evaluate any legal claims that Moe may have against OTWM

Moe would not have any successful legal claims against OTWM. The elements of negligence are not met. Duty on the part of OTWN is because a duty of care is not owed to trespassers other than to not cause willful, wanton or gross negligence toward them. Therefore, there was no breach of duty, no cause in fact or proximate cause.

Evaluate any claim that Janet may have against Mike

Negligence is the failure to use proper care which results in injury to another. The elements include: duty, breach of duty, cause in fact, proximate cause and damages. As a property owner, the duty of care for Mike toward Janet would be that of an invitee. Within this duty, Mike was to warn Janet of any dangerous conditions present on his property. Mike breached this duty when he forgot to tell Janet about the broken stairs. Mike’s failure to warn Janet resulted in her tumbling and breaking her leg. Proximate cause existed because failing and tumbling as the result of broken stairs and failing to warn Janet. It was a foreseeable risk that without warning Janet of the danger, she could be injured. Finally, Janet did suffer damages as she broke her leg. Therefore, all elements of negligence are present and Janet would have a successful action against Mike for negligence.