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法学coursework代写:US legal system 考试(2)

时间:2019-04-22 14:27来源:未知 作者:anne 点击:
If I were representing the defendant Tim Jones in New Hazard trial court, i will use reasons in the following to support my clients position. First, the 1987 Volkswagen Beetle has extraordinary qualit
  If I were representing the defendant Tim Jones in New Hazard trial court, i will use reasons in the following to support my client’s position.
  First, the 1987 Volkswagen Beetle has extraordinary quality. During the usage of this care for so many years, there was not any record that the car had lost control before. It can be concluded that if driving the car normally, the car cannot be more dangerous  than the horse and buggy.
  Second, even the State law forbids issuing the driver’s license to person whose age is under 18 years old, in Smith v. Johns case, Jack is 17 years old, the car owner cannot tell the difference of 17 years old and 18 years old just from Jack’s appearance. If Jack did not told Tim Johns his real age, Tim Johns might not be able to know it.
  Third, if the driver who have injured the pedestrian is Tim Johns’ spouse or child, there’s no doubt Tim Johns will be reliable because of their family relationship. But from this case, Jack is only a neighbor’s son of the client, the client no need to take the responsibility in that case.
(3) If you were representing Mary Smith, how would you use thiscase to support your client’s position?
      If I were representing the plaintiff Mary Smith in New Hazard trial court, i will use reasons in the following to support my client’s position.
      First, the 1987 Volkswagen Beetle is quite old. From the year this car had produced, roughly twenty years has passed. This car is quite old, which might have some mechanical problems. We have the reason to believe that a twenty years old car cannot be as safe as horse or buggy. 
      Second, the State law forbids issuing the driver’s license to person whose age is under 18 years old. Jack is 17 years old, the defendant should know that the young driver is under the age of 18 years old. 
      Third, in case RADIN v. ELLIS, it is clear that a registered car owner should be responsible for injuries caused to pedestrians by the negligent driving of the car owner’s spouse or child. Jack is not the son of Tim Jones, who is only the neighbor’s son. Tim Johns does not have to be reliable for negligent driving of Jack.
Question 3:
What is the most plausible basis for a dissenting opinion, given the New York precedents that the majority has cited?
      In Howell v. New York Post Co. case, the facts of this case can be simply stated. Howell was a patient at Four Winds Hospital, whose disease was confidential to all except the immediate family of Howell. Hedda Nussbaum was also a patient at Four Winds whose child abuse generated intense public interest. When photographer of New York Post Co. took pictures to Nussabaum, it includes Howell by accident. The news was published next day, which have attracted intense public attentions and interests.
      Since it was imperative to Howell’s recovery that the hospitalization must be a secret to all but her immediate family. Howell, as the plaintiff, sued New York Post Co., 1) claiming multimillion dollar damages for alleged violations of Civil Rights Law, 2) claiming the defendant intentionally and negligently inflict emotional distress, trespass, harassment and tort. 
      For the first cause of action the plaintiff has alleged, refers to Mitchell v. Rochester case, Finger v. Omni Publs, Dallesandro v. Holt & Co., and Arrington v. New York Times Co., the cause of action cannot be supported because of reasons in the following: 1) pictures published in the New York Post Co. was for public interests only, rather than for advertising or trade purpose without prior written consent; 2) pictures illustrating the article actually has a real relationship to the article, also the article cannot be an advertisement in disguise because it has reported child abuse which have generated intense public interest. Since the plaintiff has met these above burdens, this claim for violations of Civil Rights Law cannot be supported. 
      For the second cause of action the defendant intentionally and negligently inflict emotional distress, trespass, harassment and tort, this cause of action can be supported because of reasons in the following: 
      First, the conduct of the photographer of New York Post Co. is not within the scope of the “privileged-conduct”. As stated in the Restatement of Tort in 1948, “one who, without a privilege to do so, intentionally causes severe emotional distress to another is liable for such emotional distress”. We agree that taking pictures of Nussabaum who has involved in child abuse and published these pictures illustrating the news is a privilege-conduct, and the photographer has done no more than to insist upon his legal rights in a permissible way. However, the plaintiff Howell is not relevant to the public-interested news. Taking pictures of Howell is not within the scope of “privileged-conduct”. Hospitalization of Howell was confidential and only known by her immediate family, but after publishing the picture and the news report in New York Post Co., her hospitalization was known by public. This is no good to Howell’s recovery and will definitely have emotional impact. What’s worse, after publishing the picture and the news report to public, it  might be misunderstood that Howell has certain relationships with this six-year-old Lisa Steinberg child abuse case. This kind of misunderstanding will result in emotional distress, trespass, and harassment.
      Second, the conduct of New York Post Co. constitutes a tort. As sated by Gary J. in Shuyler v. Curtis, “that the individual has a right to privacy, is a proposition which is not opposed by any decision in this court and which is within the field of accepted legal principles”. In Howell v. New York Post Co., the hospitalization of Howell is a secret which is also Howell’s right to privacy, which cannot be disclosed without the consent of Howell. Besides, according to the elements of torts, conduct of New York Post Co. also constitute a tort: 1) even the conduct of New York Post Co. is not extreme and outrageous, the intention of publishing the pictures is to report the news of child abuse, therefore the photographer has taken pictures of Nussabaum. When they have noticed someone else was included in the pictures, they should not use the pictures. Therefore even the conduct of defendant is not extreme or outrageous, it is no doubt that the conduct is inappropriate. 2) The defendant does not intend to cause severe emotional distress of plaintiff. However when finding the problems of the pictures, they did not take any measures. This kind of conduct have disregarded a substantial probability of causing severe emotional distress. 3) Because of the misconduct of the defendant, the right of privacy of Howell was invaded, and what’s worse she was most likely to connect with a disgraceful child abuse news. The casual connection exists between the conduct and the injury. 4) Because it was imperative to Howell’s recovery that her hospitalization remain a secret form, the disclose of this information will have bad impact on her recovery and have caused severe emotional distress. 
      Because of all the reasons mentioned above, there is no doubt the defendant intentionally and negligently inflict emotional distress, trespass, harassment of Howell, and constitutes a tort as well, this cause of this action is most likely to be supported by the court.
Question 4:
Is it likely that a California court would find Dr. Smith liable underSection (a) of the California Duty to Protect statute?
      Facts: 
      1) Plaintiff, Steven Rits’ brother (hereinafter “Brother”) has filed a lawsuit to defendant Dr. Smith under Section (a) of the California Duty to Protect statute, for failing to warn his mother (the victim) who has been murdered by Steven Rits in advance. 
      2) Dr. Smith is a successful psychiatrist in Los Angels, California, Steven Rits is a patient of Dr. Smith. During their psychotherapy sessions, Dr. Smith has known how much Steven hated his mother because i) most of their sessions concerned Steven’s hatred, ii) Steven was once dangled by his mother from the Golden Gate bridge just for fun; iii) Steven stayed away from San Francisco (where his mother was living) because he was afraid that he would kill his mother if he ever went there. 
      3) Dr. Smith and Steven Rits are Facebook friends. When Steven went to San Francisco and posted a picture of the Golden Gate bridge, it concerned Dr. Smith by reminding him the Golden Gate bridge story from Steven’s childhood.
      4) Dr. Smith did nothing and finally Steven murdered his mother. 
      Issue: 
      whether there is any evidence that the plaintiff has violated the California Duty to Protect statute, which stipulates: (a) There shall be no monetary liability on the part of, and no cause of action shall arise against, any person who is a psychotherapist as defined in Section 1010 of the Evidence Code in failing to protect from a patient’s threatened violent behavior or failing to predict and protect from a patient’s violent behavior except if the patient has communicated to the
psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.
 Holding: NO (The defendant cannot be able to predict a threat of physical violence from a patient against a identifiable victim)


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