TORTS ESSAY EXAMINATION #1

Question #1

Paul, aged three years, was badly injured when he fell from a third-floor balcony at the apartment block where he lived with his mother, Deirdre. At the time, Deirdre was semi-conscious as a result of drinking heavily and taking heroin. Before shooting up with heroin, Deirdre opened the sliding door to the balcony of her apartment, so that Paul could play outside in the sunshine. She then left him outside alone. The railing around the balcony did not reach all the way to the floor of the balcony; there was enough space for a child as small as Paul to pass beneath the railing. It is not clear how Paul came to fall. He does not remember exactly what happened, and no-one saw the incident.

The State family services agency had previously taken custody of Paul after neighbors had informed it that he was being neglected and abused by Deirdre. The agency placed Paul with foster parents for six months while Deirdre underwent a substance abuse and detoxification program. After reviewing her case, the agency returned Paul to Deirdre. At that time, it was satisfied that Deirdre’s addictions were under control and that she was capable of looking after her son, something she was passionately keen to do. Paul fell from the balcony one month later. In the period between Paul’s return and the accident, one of Deirdre’s neighbors had contacted the agency, saying, “She’s shooting up again – nothing good is going to come of it”. The agency took no steps to respond, as it only has the resources to respond to reports of actual neglect or abuse.

Deirdre rented the apartment from Downside Apartments, Inc., which owned the whole apartment block. Downside’s agent knew that Deirdre had a three-year old son when she rented the apartment. No warning about the safety of the balcony was given, either by the agent in person, or by signs in the apartment.

After the fall, Paul was taken to the local hospital by a neighbor. Unfortunately, he was not treated immediately, despite the neighbor’s heated requests for action, because the neighbor was not one of Paul’s parents and had no idea about Paul’s medical insurance arrangements. (Deirdre and Paul have no private medical insurance.) The evidence suggests that the delay in treatment at the hospital worsened Paul’s condition.

An action has been brought on Paul’s behalf against the state family services agency, alleging that his injuries were caused by its negligence. No other actions have yet been brought. Advise the agency. (Assume the incident occurred in a state that has not modified the rules of joint and several liability, and which has abandoned the traditional rules of occupier’s liability in favor of a unitary Rowland v. Christian test.)

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I. Paul v. State family services agency
1. Standard of care
Paul could allege that the State family services agency was negligent in two different ways: first, by returning him to his mother’s care before she was able to look after him properly; secondly, by failing to intervene to take him back into State care after receiving the neighbor’s telephone call.
The question of whether the State family services agency acted negligently would depend upon an evaluation of what a reasonable agency in the same position would have done, which would be a mixed question of fact and law for the jury to decide. It is not clear what kind of a review the agency undertook before returning Paul to Deirdre’s care, but it did take some steps to satisfy itself “that Deirdre’s addictions were under control and that she was capable of looking after her son”. If it acted with reasonable care in making that assessment, then obviously it will not be held liable because it was not negligent at all.

2. Proximate cause
If the agency failed to take reasonable care in the assessment and return of Paul, an issue of proximate cause arises. The agency’s negligence did not directly cause the harm that befell Paul. The immediate cause was Deirdre’s failure to look after him. Nevertheless, it is unlikely that Deirdre’s actions (or inaction) would be regarded as the sole cause of Paul’s harm, so as to relieve the agency of liability. The possibility that Deirdre might not be able to look after Paul because of substance abuse was the very risk that the agency should have guarded against when considering whether to return Paul to Deirdre. If the agency was negligent in returning Paul to Deirdre’s care, an injury to Paul because of Deirdre’s inability to care for him was clearly a foreseeable consequence of that negligence.
The fact that Paul’s injuries were made worse as a result of the initial inactivity at the hospital should also not relieve the agency of liability. Having caused the initial harm to Paul, the agency is held responsible for any worsening of Paul’s condition as a result of “ordinary” medical negligence, which is reasonably foreseeable. The hospital did not harm Paul in some way that was completely different from the injuries he had sustained when falling from the balcony. It worsened the injuries that Paul had sustained because of the agency’s fault. That should not relieve the agency of liability for those injuries.
3. Qualified immunity
State governments and their agencies enjoy a limited or qualified immunity from liability in negligence, a remnant of their former sovereign immunity. Most states hold state government agencies immune from liability for discretionary or policy decisions. The rationale underlying that immunity derives ultimately from the doctrine of separation of powers. Courts are reluctant to intervene in decisions that are made by governments for political, social or economic reasons. In the present case, the agency did not take action when it received the neighbor’s warning that Deirdre had begun to take drugs again, because it has a policy to respond only to reports of actual neglect or abuse. That policy may well derive from the agency’s scarce resources. If the policy had no rational basis, the court might yet intervene to review it, but if it is based on a consideration of economic and social factors, the courts of most states would hold the agency immune from liability. Decisions about the al
location of limited sums of tax dollars are the very stuff of government, and their wisdom cannot be challenged in a tort action.
For example, in Riss v. New York (N.Y. 1968), it was held that the New York Police Department was immune from liability for failing to respond to a telephone call describing a threat of violence to the plaintiff. The police department had not assumed a duty to the plaintiff by giving her the reasonable impression that it would respond to her call for help. Similarly, the agency in the present case has not taken any steps that would suggest to Paul that it would intervene for his safety the moment it received any indication of a relapse on his mother’s part. The agency’s nonfeasance had a policy basis and so should probably not attract liability.
II. State agency vs. Third Party defendants
1. Joint and several liability

So far, the only action to have been brought on Paul’s behalf is against the State family services agency. The state in question has not modified the rules of joint and several liability, which means that the agency will be liable in full for the whole of Paul’s loss, notwithstanding the fact that other actors may have contributed to that loss. If Paul makes no attempt to sue other defendants, the agency may make third party claims against other actors in an attempt to reduce its liability exposure.
For each third party claim by the agency, the key question will be whether the third party would have been liable to Paul if he had sued them directly. The following sections consider that key question as if were raised in a direct action by Paul against that person as defendant.
III. Paul v. Deirdre
1. Parental liability
Deirdre’s conduct was plainly negligent and it directly caused Paul’s injuries. However, many states have a rule of complete parental immunity from liability in negligence, with the result that a child like Paul could not sue his mother for any harm that befell him as a result of her negligence. If this incident occurred in such a state, Paul would not be able to recover from Deirdre, so the agency would not be able to recover a contribution from her, either.
Other states have modified the rule of complete parental immunity, retaining it for cases of negligent supervision but removing it in cases where the parent actively created the risk of injury to the child. See, for example, Goller v. White (Wis. 1963). This case would pose some difficulties in a state adhering to such a rule, as it could fall on either side of the line – or both. In a way, Deirdre’s negligent supervision of Paul actively created the risk that he might fall from the balcony. Either outcome would be defensible. The fact that the question would be raised in an action by the state agency for a contribution from Deirdre might make the court more likely to find her immune. The fact that Deirdre put Paul outside on the balcony and then left him there alone might prompt the conclusion that she actively created the risk of harm and so should be held liable.
Some states have abandoned the parental immunity rule altogether, applying instead the normal negligence standard of reasonableness but taking into account the distinctive features of the parental role. See, for example, Gibson v. Gibson (Cal. 1971). In such a state, Deirdre would plainly liable to Paul and so the agency would plainly be entitled to a contribution from her. Whatever modification of the standard of reasonable care might be necessary to take into account parental discretion about the provision of care, Deirdre plainly fell short of the standard of reasonable parent by rendering herself incapable of supervising the actions of her child.
IV. Paul v. Downside Apartments
1. Occupier’s liability

The state in question has abandoned the traditional rules of occupier’s liability in favor of the unitary Rowland v Christian standard, which holds an occupier of premises to the ordinary standard of reasonable care to all entrants, no matter what their status. Thus, it would not be necessary to determine what class of entrant Paul, the child of a tenant, would fall into. Downside Apartments owed Paul the ordinary duty of reasonable care. The unsafe design of the balcony and the failure to give any warning may amount to negligence according to that standard.
2. Proximate cause
As in the case of the agency’s own liability, there may be a proximate cause issue. The subsequent negligence of Deirdre would probably not amount to a supervening cause relieving Downside of liability and making her solely responsible. The possibility that a parent might negligently or inadvertently leave a small child alone on the balcony was the very reason why it was careless of Downside to leave such a large gap at the bottom of the railing. The subsequent events, although involving negligence on Deirdre’s part, were reasonably foreseeable and so should not relieve Downside of liability.
V. Paul v. hospital
1. Medical malpractice
There seems to be little doubt that the hospital was negligent in its treatment of Paul. A reasonable hospital faced with an emergency patient with traumatic injuries would have treated the child first and asked questions about insurance later. By doing the opposite, the hospital worsened Paul’s injuries and it should be held responsible for that worsening. The agency should be entitled to a contribution from the hospital.

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