ASSIGNMENT COVER SHEET

STUDENT DETAILS

Student name: Hồ Đắc Minh Quốc Student ID number: 22002863

UNIT AND TUTORIAL DETAILS

Unit name: Business Law Unit number: BL-T22324PWB-1

Tutorial/Lecture: Lecture Class day and time: Saturday, 8:00 – 12:00
Lecturer or Tutor name: Dr. Bryan Wicks

ASSIGNMENT DETAILS

Title: Essay: Problem Question

Length: 1648 words Due date: March 8th, 2024 Date submitted: March 8th, 2024

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Essay: Problem Questions
Hồ Đắc Minh Quốc
BL-T22324PWB-1 – Dr. Bryan Wicks

March 8th, 2024

Table of Content
s

Issue...............................................................................................................4
Rule................................................................................................................4
Tort Law.....................................................................................................4
Negligence..................................................................................................4
Battery.........................................................................................................5
Application....................................................................................................5
Argument against Defendant......................................................................5
Agrument for Defendant.............................................................................6
Conclusion.....................................................................................................7
References.....................................................................................................8
Appendix.......................................................................................................9
Appendix A: Defendant driving under influence of alcohol......................9
Appendix B: Plantiff crossing the street illegally.......................................9
Appendix C: Defendant stopped at the crosswalk, but Plantiff slipped and
falled in front of the car............................................................................10
 Issue
The issue in this case is whether Bao committed a tort of negligence (unintentional) or battery
(intentional) when he was speeding and driving with distractions by using his cell phone and eating a
sandwich while driving. The consequence of his acts was the injury of Ms Anh when she was
crossing the crosswalk and hit by Mr Bao’s vehicle, which resulted in Ms Anh suffering a broken leg
and a concussion with internal bleeding. Furthermore, Ms Anh faced economic losses due to the
inability to work and lost a significant portion of her income by having to undergo surgery, recovery,
and physical therapy in the span of several weeks. Therefore, the ruling of this case will determine
the compensation for the damages sustained by Ms Anh.

Rule
Tort Law
Tort law, by definition, is the body of rules concerning the legal remedies for harms caused by
wrongful and injurious actions of a person (Kuersten, 2023). Therefore, the two primary purposes of
deterring any person from committing injuries or wrongful acts to others through punishment and
compensating the sufferings of the affected ones. However, tort law has been a matter of common
law, which varies by state and precedent judgements, meaning that the outcome of an identical court
case may be distinct across the national justice system. Therefore, the case will hypothetically use
California’s laws and cases to ensure a standardized and unified ruling of this incident, except for
certain parts to compare or elaborate further.

Negligence
The definition of negligence is the failure to exercise the standard of care that a reasonably prudent
person would have exercised in a similar situation (Boehm, 2003, as cited in Black, 1968). Clarkson
& Miller (2019) summarized the four fundamental and required elements to accuse the tort of
negligence as duty (the defendant owed the plaintiff a duty of care), breach (the defendant has
breached that duty), causation (the defendant caused the plaintiff’s injury), and damages (the plaintiff
suffered a legally recognizable injury). However, the number of elements and their aspects can vary
among courts and commentators, which ranged from two to five counts, according to Owen (2007).
Therefore, despite the universal application of the four elements doctrine, the outcome may differ
between courts and jurisdictions with different approaches to the trial of negligence tort.
Battery
Clarkson & Miller (2019) defined battery and assault as unexcused and intentional harmful or
offensive acts, with the only distinction being that battery requires physical contact, while assault can
occur simply with words or intimidation. Despite this difference, it is relatively common that battery
and assault are used interchangeably or simultaneously among courts, which is a limitation in
identification. As its definition suggested, battery required offensive and harmful touching on
another person, resulting in the defendant voluntarily causing direct and indirect impacts on the
plaintiff (Rollison, 1941) or defined as contact, harm, and intent elements. However, another
limitation in identifying the tort of battery is the intent, which Simons (2006) pointed out that the
court has separated on the issue of dual and single intent, meaning both an intent to contact and harm
or only the intent to contact is required, and therefore, the ruling of this case may deviate among
courts.

Application
Argument against Defendant
In this incident, Mr Bao must focus on the surrounding circumstances with strict compliance with
traffic laws and regulations for the safety of himself and others. By law, the driver shall yield the
right-of-way to a pedestrian crossing within any marked or unmarked crosswalk at an intersection,
according to the Subdivision (a) of California Vehicle Code § 21950, which has established that Mr
Bao (a driver) has a duty of care to Ms Anh (a pedestrian crossing on the crosswalk) and satisfy the
first element of negligence. However, with the duty assigned, Mr Bao’s action is breaching that
responsibility because he was driving while using a cell phone, as most states have laws and
regulations prohibiting or limiting the use of cell phones while driving, excluding some limited
exceptions (McCartt et al., 2014), as pointed out by the Subdivision (a) of California Vehicle Code
§ 23123 that a person shall not drive a motor vehicle while using a wireless telephone. In addition, as
the California Vehicle Code § 22350 states that no person shall drive at a speed faster than is
reasonable or prudent with due regard for weather, visibility, and traffic, it means that speeding is a
restrictive motion in driving. Meanwhile, despite no specific law prohibiting eating while driving, the
ban on the hand-held cellphone can be interpreted as not letting the hand distracted while driving.
Therefore, all his actions are considerable breaches of his duty and prove the second element of
negligence. In terms of the contact of his vehicle causing Ms Anh’s injury, this applies to both
negligence and battery elements. In terms of negligence, this can be identified as a causation and
damages element because he has driven the vehicle and hit Ms Anh, causing her stated injury, which
is legally recognizable through visual identification, medical records and accident reports. In terms
of battery, both the contact and harm elements are regconized as Mr Bao operating the vehicle and
hitting directly (meaning having indirect and physical contact with) Ms Anh, resulting in her injury
(meaning causing harm to her health and body). However, intent is the decisive factor that separates
the tort of negligence and battery. The CACI No. 1320 (California Civil Jury Instructions) stated
that the defendant having an intent must be substantially confident that the battery would result from
the conduct. However, there is no clear evidence that Mr Bao confidently drove to hit Ms Anh, as
everything started from his negligence on the road and irresponsible driver duty. The only possible
assumption is that Mr Bao intends to act negligently to cover his true intent of harming Ms Anh,
which is only provable through Mr Bao’s testimony or further evidence to prove the vengeance,
motive and planning of Mr Bao. However, both of these are bold statements as they required
voluntary disclosure based on his morality as he was protecting against self-incrimination using the
Fifth Amendment or intensive investigation of crime, which exceeds the limitation of tort laws. For
this tortious act against the plaintiff, Ms Anh has the entitlement to compensatory damages (or
monetary compensation) for specific and general damages, which include quantifiable economic
losses, e.g. medical bills, recovery expenses, and lost wages, to ensure putting her back to the
identical position before this incident. For general damages, as an individual, she can receive
unquantifiable expenses, e.g. mental distress, emotional instability or suffering pain. It is a legitimate
claim, as Kovacevic et al. (2020) pointed out in their research of 155 people after RTA (road traffic
accident) that 32.3% suffer PTSD (post-traumatic stress disorder), 17.4% suffer depression
symptoms, and 5.8% have low rates of anxiety. Another form of damages is punitive, which the
court may award to punish and deter the wrongdoers, which also may be considered in this case.

Agrument for Defendant

However, the plaintiff still faces the opposing party, who also has equal rights and treatment in court.
Mr Bao and his lawyer can raise the question of negligence by Ms Anh to reduce or even dismiss his
liability to her. The concept of plaintiff’s negligence varied by state with three common approaches:
either pure contributory (meaning even an insignificant negligence of the defendant can dismiss the
charge), pure comparative (meaning the plaintiff can claim a computed portion of the defendant’s
tort with the exclusion of their negligence) or adoption of both doctrines. For instance, California is a
pure comparative state, as Li v. Yellow Cab Co. (1975) held that a comparative negligence system
that assigns liability for damage in direct proportion to the fault of each party superseded an “all-or-
nothing” proposition or contributory doctrine. In this case, if Mr Bao and his lawyer could prove that
Ms Anh was crossing hazardously close to the vehicle while crossing as she saw the vehicle but
assumed it would stop for her, he can relieved his liability through comparative negligence
as Subdivision (a) of California Vehicle Code § 21954 stated that the pedestrian should yield the
right-of-way to vehicles that are too near to constitute an immediate hazard or if Ms Anh was
crossing the road while using obstructive or distractive electronics devices, she would be partially
liable or proximately contribute to the accident as she could have made a careful observation,
according to the interpretation of Chase v. Thomas (1935) ruling. Therefore, the court may reduce
her damages based on her blunder significance. However, if assuming that this case happened in
North Carolina – a pure contributory state (Gardner, 1996), it would be devastating for her if the
court found one of these claims to be valid or considered her as acting negligently, which would not
result in any claims for Ms Anh. Moreover, punitive damage is not probable, as Clarkson & Miller
(2019) concluded that punitive damage is only available in intentional (in this case battery) tort, with
rare cases for negligence. The state of California even restricted its jury not to award punitive as it is
out of their verdict, according to CACI No. 3924.

Conclusion
Based on the obtained information, current standing rules and their interpretation, it is reasonable to
accuse Mr Bao – the defendant, of committing the tort of negligence with the satisfaction of all four
elements instead of a battery, where the character of intent has insufficient evidence to convince. The
action of speeding, driving while eating and using a mobile phone can be considered as dangerous
and harmful actions, but not enough to determine intent to harm Ms Anh.. On the other side, Ms Anh
– the plaintiff, has the entitlement to compensatory damages, including both specific and general
aspects, as her injury, loss of economic benefit, and mental distress are legally recognizable, which
depends on states, may or may not be limited by a legislative cap. However, the only issue is that
based on factual evidence and accident reports, it is probable to assume that Ms Anh has a
considerable degree of negligence and contributed around 5 – 25% of the accident based on the brief
estimate and depending on the burden of proof. Therefore, the actual claim may be reduced
according to the percentage of fault if under the comparative negligence or outright deny any claims
under the contributory doctrine.
 References
Boehm, T. R. (2003). A Tangled Webb - Reexamining the Role of Duty in Indiana Negligence
Actions. Indiana Law Review, 37(1), 1–20. https://doi.org/10.18060/3628
Chase v. Thomas, 7 Cal.App.2d 440 (Court of Appeal of California, Second District, Division One
1935).
Clarkson, K. W., & Miller, R. L. (2019). Business Law: Text and Cases (15th ed., pp. 112–133).
Cengage Learning.
Gardner, S. (1996). Contributory Negligence, Comparative Negligence, and Stare Decisis in North
Carolina. Campbell Law Review, 18(1). 1-73.
Kovacevic, J., Miskulin, M., Degmecic, D., Vcev, A., Leovic, D., Sisljagic, V., Simic, I., Palenkic,
H., Vcev, I., & Miskulin, I. (2020). Predictors of Mental Health Outcomes in Road Traffic
Accident Survivors. Journal of Clinical Medicine, 9(2), 309–324.
https://doi.org/10.3390/jcm9020309
Kuersten, A. (2023). Introduction to Tort Law. Congressional Research Service (CRS).
Li v. Yellow Cab Co., 13 Cal.3d 804 (Supreme Court of California 1975).
Lundmark, T. (1996). Surgery by an Unauthorized Surgeon as a Battery . Journal of Law and
Health, 10(2), 287–296.
McCartt, A. T., Kidd, D. G., & Teoh, E. R. (2014). Driver Cellphone and Texting Bans in the United
States: Evidence of Effectiveness. Annals of Advances in Automotive Medicine, 58, 99–114.
Owen, D. G. (2007). The Five Elements of Negligence. Hofstra Law Review, 35(4), 1671–1686.
Rollison, W. D. (1941). Torts: Assault, Battery. Notre Dame Law Review, 17(1), 1–21.
Simons, K. W. (2006). A Restatement (Third) of Intentional Torts? Arizona Law Review, 48(4),
1061–1102.
 Appendix
Appendix A: Defendant driving under influence of alcohol
In this hypothetical scenario, assuming that all the previous rulings remain the same, the court will
only consider the decisive factor as the action of driving while intoxicated (DWI or some states
would list it as driving under the influence or DUI). Both Section (b) of California Vehicle Code §
23152 & § 23153 consider it unlawful for a person having 0.08% or more alcohol in his or her blood
(by weight) to drive and concurrently neglect the duty or conduct any act forbidden by law while
driving and causing injury to any other person than the driver. As stated, DWI is considered unlawful
and not subjective to tort law but to criminal proceedings. Not only in California, most US states
consider DWI or DUI depends on departments and courts, ranging from minor to serious criminal
offence, and therefore, the act of DWI causing injury is a crime, which turns the incident into a
criminal case, where tort laws are no longer appliable. Therefore, in this incident, the trial between
Mr Bao and Ms Anh would have changed, with Mr Bao facing fines, revocation of driving license or
even prison time along with compensation for Ms Anh.

Appendix B: Plantiff crossing the street illegally

In this court case, the significance of fault has shifted to Ms Anh. The California Vehicle Code §
21955 dictated that unless the presence of traffic control signal devices or police officers, pedestrians
must not cross the road at any place except in a crosswalk. With the available information, the illegal
crossing of the street or jaywalking is the wrong conduct of the plaintiff and her negligence.
However, it does not exclude Mr Bao's duty as the driver must pay attention and react whenever an
emergency emerges. Regarding driving operations, the vehicle's frontal part belongs to the driver's
responsibility, where they have absolute control over speed and position. Therefore, if the frontal
part contacts anything regarding the significant fault of that individual, the driver still has limited
responsibility. In this case, based on the degree of negligence, e.g. whether Ms Anh is distracted by
electronic devices or rushing to cross, and the impact point, whether it is frontal or sideway, Mr Bao
can have limited liability if he successfully showcases the sudden and negligent movement of Ms
Anh onto his vehicle at an illegal part of the street, but can not disregard it due to his distracted
actions while driving.
Appendix C: Defendant stopped at the crosswalk, but Plantiff slipped
and falled in front of the car
The situation in this case is not as paradoxical as the two previous scenarios, as it is within Ms Anh’s
actions. Assuming this incident occurred at a crosswalk similar to the original case, but in this
situation, Mr Bao has stopped his vehicle completely before the point of contact. Therefore, the only
reasonable claim by Ms Anh is that Mr Bao has brought the automobile too close to her comfort,
causing her a fear of harm and resulting in the slippery fall in front of the car. At this stage,
depending on the contact between her and his vehicle, there would be variations in the ruling. In the
first case, if she merely fell and had not contacted the car, which may not have caused serious injury,
it would be likely that the court case wouldn’t have happened as there is not enough burden of proof
to accuse Mr Bao of negligence. However, with the second alternative, in the case of hitting the
vehicle by slippery and falling, it would be reasonable to assume a similar trial like the original
scenario, with the focus on clarifying the indirect contact caused by who, and would likely result in a
less significant liability for Mr Bao, or even none if it was absolutely by Ms Anh’s faults.