SAMPLE STUDEI\T ANS\ryER _

ESSAY OI{E
I\OTE: This is a sample student

ans\ryer.

It is far from

perfect and you will notice several mistakes and/or areas

that could have been addressed but were not. However,
overall this is an excellent essay that earned a very high
grade, and it is being provided as an example of excellent
student work.

1)

======== Staft Of AnSWef #1 (3124 WOrdS) ========

V/ilma v. Carter

Since Wilma contracted herpes, this could be a harmful or offensive contact that was caused her

by Carter and she will most likely bring this as a cause of action

lst issue: Battery

An Act
Hete, Carter did a manifestation of will because pursued Wilma and asked her to have sex

with him
V/ith intent to cause harmful or offensive contact OR with the intent to cause imminent
apprehension of such contact
Here, Carter had a desire/substantial certainty that harmful contact would exist, as he

knew that he had genital herpes and that herpes is harmful, especially when a sexual partner is
not told about.
Causing
Cause in Fact: But

for Carter's actions, Wilma would not have contracted herpes is

correct.
Proximate Cause: Carter is liable for the harmful contact if his misconduct is the direct
cause of Wilma's contraction of herpes. This is correct. He may try to argue that Carter is an

intervening cause, however we know that Biff does not have STDs. and Wilma has only ever
slept with Carter or

Biff

Page 1 of 16

(Question 1 continued)

Causation element is met

harmful or offensive contact

Harmful contact is the contraction of herpes by Wilma

Affirmative Defense:
Consent
Carter

will

use the affirmative defense to say that

Wilma expressly consented to having

sex with him, and thus, her claim of battery is void against him. However, Wilma

will

say that

because he fraudulently gained her consent by lying to her, consent is negated. Therefore, the
cause of battery against Carter

will

stand

2nd Issue:
Negligence for HERPES, NIED of Herpes

Duty to act with reasonable due care

Here, duty is enacted because the relationship between Carter and V/ilma as sexual
partners makes V/ilma a foreseeable plaintiff because Carter knew of his STD and the chance
that Wilma may contract it.
Carter may claim that he does not have duty to Wilma because he
thus was not functioning with intelligence. However, drunkeness is not a

intoxicated

that

can

skirt around his duty to act with reasonable due care. He must act with the average intelligence of
a reasonable person.

Also, due to Notice Inquiry, if

a reasonable person knows that he/she should

Page 2 of 16

know

(Quesfion 1 continued)

something and doesn't try to get in the know by inquirying about it (ex. purple stop lights - you
have a duty to pull over and inquire about it), then as a reasonable person you have a duty to find
out. Here, Carter had reason to know that before contracting in sexual relations with V/ilma, he
should have found out whether Wilma could have been infected. Here, he had a duty of inquiry
notice and breached it. Knowledge that you can give herpes is knowledge that more than not,
most people know and Carter will be held to that standard.

Also, here, we can look at Carter's duty to V/

Landowner Duty to Trespassers: Here,

a landowner

Wilma is

as a landowner, Carter

has no duty to Wilma except in the active operation of his being once her presence is known.

Here, his active operation of having unprotected sex with her, while knowing that he could be

givining her herpes is an exception, that in a traditional jurisdiction will give a limited duty.
Which he breached by implying that he did not have STDs.
V/hat if Wilma is a licensee?

If Wilma is a licensee, she has come into his home as a social

(ie. not getting arrested). Here,

if

guest, for her own benefit

she is even considered a licensee (questionable as to trespass to

land (see above)), then the landlord has a duty to protect her from active operations AND a duty

to warn her of any unforeseeable danger. Here, Carter did not warn her of the danger of the STD

in unprotected sex. He has a limited duty to her that he has breached.

If Wilma is an invitee?
An invitee is invited onto the land for business pu{poses or if the land is public land here, this would not apply. However,

if it's for Carter's SOLE BENEFIT, itmay appty. However,

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(Question

continued)

this is a stretch because she was participating as a flirtatious, consenting partner and did not come
as a prostitute (ie. for business purposes).

breach of duty
There has been a breach of duty

if we examine Carter

as a landowner (see above). There

is no need to discuss Res lpsa because we have plenty of proof and no need to discuss
Negligence Per Se because we have not statutory information.

If we forsake that duty and look only to Notice lNquiry and

as a sexual partner, we

will

use Leamed Hand and Reasonable approach

Learned Hand is the explanation of a laymen's decision of foreseeability in a split second.

It

says that negligence equals foreseeability of harm and degree of danger

if more than the

burden of preventing harm. Here, the foreseeability of harm was great, as they had unprotected
sex. Degree of danger is great because herpes is a lifelong illness

(?)

and has severe harm to

physical body and the brnden of preventing harm is relatively low because it would just take the
protection of a condom OR letting the other partner know of the risk.
Cause in fact

for contracting Herpes

Here, but for Carter's negligence in not telling V/ilma and not having protected
sex with her,

'Wilma

would not have contracted herpes. This meets cause in fact.

NIED of contracting herpes

Here, but for Carter's neglgience, Wilma would not have the emotional distress

contracting herpes. However, because htere is no physical manifestation of emotional distress,

Page 4 of 16

of

(Quesflon 1 continued)

this probably won't stand.

NIED of AIDS scare?

not applicalbe because no physical manifestion of emotional distress.
Proximate Cause
Under the Direct Causation Approach of Proximate Cause, Carter is liable if his
negligence is the direct cause of Wilma's injuries, without any independent intervening causes.

This holds true because his negligence in not telling her and not entering into protected sex is the
direct cause of her contracting herpes. There are no intervening causes that may have caused her
herpes. (because

Biff is proven to have no STD

as her

only other sexual partner). Proximate

cause is met.

Damages

Compensatory - she will probably recover special, out of pocket damages of her doctor's
fees and her medicine fees for the duration of the illness. General damages for emotional
distress? perhaps but not really.

If battery

is proven along with negligence, may be able to gain

punitive damages from his intentional torts.

Affirmative Defense: Carter will come against the claim with affirmative defense that Wilma was
contributory negligence in consenting to unprotected sex because she knew risks involved,
because he did not really

affirmatively say that he did not have an STD. If in a traditional

jurisdiction, if he was able to prove her contributory negligence, her claim would be invalid. If in
comparative, then she can recover whatever percentage the jury finds him at fault (in pure), or

if

less than/not more than, whatever percentage as long as her fault is less than his (or equal to only

Page 5 of 16

(Question 1 continued)

in not more than)

He may try to claim assumption of risk - in that she subjectively and voluntarily appreciated risk
by her consent. HOWEVER under subjective assumption, she may be able to counterclaim that
becuase he effectively lied to her through fraudulent misrepresentation, that she did not
subj

ectively appreciate it.

3rd Issue:
False Imprisonment

An Act
He had manfiestion of will to ask her in

With the Intent to Confine within boundaries

He had the desire/substantial certainty to confine her wihtin the house is a question of fact

for the jury based off of his 'smile'to mask his true thoughts
Causing

both cause in fact proximate cuase are met here

the confinement of boundaries
She thought that she had no choice but to go into his house.

P's awareness of the boundaries [or P's harm from such confinement]
She was aware of her confinement because she was there

flirting and realizing.

Affirmative defense: CONSENT

Here, Carter has a valid defense of CONSENT because she consented to the false imprisonment

Page 6 of 16

(Queslion 1 continued)

by entering his house voluntarily. However, she may counterargue saying that he coerced her
consent.

Carter v. V/ilma
Issue: Wilma \ /as a trespasser onto Carter's Land

Rule: Trespass to Land

An Act
An act is a manifestation of will. Here, Wilma manifested her will to enter Carter's
property and steal a poinsetta. The fact that she does not know who's land it is is irrelevant.

With the intent to enter or remain on land

Here, V/ilma had both the desire to enter Carter's land and the substantial certainty to
enter Carter's land. The intent element is met.
Causing

But for Wilma's walking on the land, she would not have trespassed on Carter's land and
proximate cause, that her stepping on land was the direct cause of trespass are both met here.
The entry or remaining on land of which plaintiff has a possessory interest by defendant

This element is met for entering the land on which Carter owns (as possessory interest)

Affrrmative Defense:

If Carter says that

she was a trespasser to land by

REMAINING on the land (NOT

entering), V/ilma has the affirmative defense of CONSENT. Here, Carter consented to her
trespassing on land by saying "he would not try to prevent her from coming inside

Page 7 of 16

if that

was

(Question 1 continued)

what she was planning to do." Here, Wilma may say that Carter consented to her remaining on
his property

Biffs Estate v. Dee

Negligence for Suicide and Wrongful death

Duty:
Here, Dee had a limited duty under NIED for misdiagnosing Wilma for AIDS because
under Direct Action, limited duty is applied in special relationships - ie, when a doctor

negligently misdiagnoses

wife with an STD, the husband can bring

claim for NIED against

the doctor. Here, this will prboably apply to Biff, even though he and Wilma are not married.

They ahve been their only sexual partners for life (except with Carter) and thus, would have
emotional distress from contracting a life-damaging cause of AIDS. NIED will probably apply
here because

Biff

had the physical manifestations of emotional distress - including being

intensely upset and afraid

Breach of Duty:
Here, if the limited duty does apply even if Biff and V/ilma are not married, Dee breached
her duty to Biff because she misdiagnosed V/ilma. Under reasonablenss, negligence exists
becuase the burden of preventing NIED would be low considering the harm and foreseeability

of

harm resulting from misdiagnosis. Here, too, the doctor has a duty as a professional to act under a
standard of care that doctors must. She has breached this standard of care through misdiagnosis.

Page 8 of 16

(Question 1 continued)

cause in fact:

Here, but for the doctor's misdiagnosis, Biff would not experience NIED is correct. And

but for her misdiagnosis of

'Wilma,

Biff would not have therefore committed suicide.

proximate cause
Dee is liable for the foreseeable reasonable consequences of her negligence and the

reasonably foreseeable intervening causes therin. However, in a majority ofjurisdictions, suicide

is a superseding intervening cause. Thus, Dee will be negligent for Biffs suicide.
damages
dee

Biffs

will

have no damages to pay because no negligence for his suicide.

Estate v. Carter

Negligence for'Wrongful Death

Duty
Breach of Duty
Here,

Biff

a foreseeable

with one sexual

plaintiff

foreseeably

Carter should know that his interactions

future sexual partners of Wilma. For discussion

of his knowledge/intoxication, see above. Under leaerned hand, negligence is present here
becuase the foreseeability

of danger, although smaller than to V/ilma's danger, is present. Degree

of danger is pretty high and the burden of preventing it is low because he just had to tell wilma or
have protected sex.

Page 9 of 16

lQuesflon 1 continued)

Cause in Fact

But for Carter's negligence, Biff would not have had committed suicide is correct. Carter's
negligence is a cause in fact of

Biffs suicide.

Proximate Cause
Carter

will

be negligent for all foreseeably reasonable consequences of his negligence and

any reasonably foreseeable intervening causes, under the Reasoably Foreseeable Approach. Here,

there are two main intervening causes between the link of Carter's negligence and and

Biffs

wrongful death.
One intervening cause is V/ilma's having sex with

Biff. This is an intervening cause, but

it is reasonably foreseeable, especially in hindsight.

The other main intervening cause is

Biffs suicide leading to his wrongful death. Here,

suicide is considered by a majority of courts to be a superseding intervening cause, although

may be foreseeable. As a result,

Biff is negligence is superseded by Biffs suicide

liable to Biffs estate.

Damages

no damages because no negligence because

Biffs suicide.

Page 10 of 16

it

and he is not