STUDENT ANSWER 1: 1. No viable tort claim for battery, but viable claim for negligence against Dennis Penny does not have a viable tort claim for battery against Dennis. A battery is committed when the defendant intentionally causes harmful or offensive bodily contract with the plaintiff. Dennis had no intent to cause harm to Penny or to purposefully hit her with a baseball. Dennis’s baseball may be negligence but it is not a battery. Penny does have a viable tort claim against Dennis for negligence. To recover in tort Penny must plead and prove that Dennis owed a duty of reasonable care to her, that he breached the duty owed, and the breach proximately caused her physical injury. Dennis owed a duty to use reasonable care and not hit people with baseballs that were foreseeably walking outside the stadium. It was foreseeable that someone could be hit because it had previously happened and the zone of danger was Oak Street where the baseballs had previously been hit. Dennis breached that duty when he hit a ball out of the park, which proximately caused Penny’s injuries. However, under the doctrine of respondeat superior Fernbury Flies will be liable for Dennis tort. Torts of employees may be vicariously imputed to the employer if the tort was committed within the scope of an in furtherance of the employers business. The tort must be closely connected with what the employee was employed to do, substantially within the authorized time and space limits, and motivated in part by a purpose to serve the employer. Here, Dennis was playing baseball on behalf of the Fernbury flies and was employed to play the sport. He was authorized to play in the game and the objective was to win and serve the baseball team. 2. Penny does have a viable tort claim against the Fernbury Flies The Fernbury Flies owned the baseball stadium and owed a duty of care to avoid endangering others on a public way or on adjoining property. The baseball games subjected pedestrians to an unreasonable risk of harm of being struck by a baseball. It was foreseeable that a baseball could be hit over the fence that surrounded the Park because there were prior incidences of such injuries. Although though Fernbury had a 10-foot fence surrounding the park that was similar in type and identical in height to other stadiums this fact is not dispositive especially if there is way to make the premises safer at a modest cost. Penny also has a tort claim of negligence against Fernbury. Penny must plead and prove by a preponderance of the evidence that Fernbury owed a duty to exercise reasonable care to the plaintiff and breached that duty, that she suffered a physical injury to person, and her injury was proximately caused by Fernbury’s breach of duty. Fernbury owed a duty of reasonable care to those who foreseeably could be injured by their conduct and were within the zone of danger. Fernbury owed a duty of reasonable care to prevent pedestrians walking on Oak Street from being struck with baseballs coming from inside their stadium. It was foreseeable that pedestrians such as Penny could be struck and injured by a baseball because there is evidence that baseballs have been hit over the fence before. Fernbury’s conduct of hosting baseball games for the public and having their players engage in hitting baseballs proximately caused Penny’s injury. Although Fernbury Flies did not physically hit the baseball that injured Penny the team is liable for its players conduct under the doctrine of respondeat superior. Penny must show that the tort was committed within the scope of and in furtherance of the employers business. Fernbury is liable for Penny’s physical injuries and for any preexisting conditions that may have been aggravated by their conduct under the Egg-Shell plaintiff rule. Penny suffered the physical injury of a concussion and due to an adverse reaction to medication suffered neurological damage. Fernbury is liable for the proximate injury they caused, which is Penny’s concussion. Original tortfeasors are also liable for all subsequent foreseeable injuries arising from the initial tort. Here, there are successive proximate causes to Penny’s injury (1) being struck in the head by a ball and (2) having an adverse reaction to the medication. Subsequent medical malpractice is foreseeable and was proximately caused by Fernbury’s original breach of duty. Penny has a viable tort claim to recover damages for her concussion and the neurological damage she suffered. STUDENT ANSWER 2: 1. Penny v. Dennis The first issue is whether Penny has a viable Battery or Tort claim against Dennis Battery: In order for a battery claim to be viable the plaintiff must show by a preponderance of the evidence that the defendant intended to cause contact and the contact was harmful or offensive in nature, and that contact did in fact occur. Here, although Penny was contacted by the ball, it is unlikely that Dennis intended to cause any contact with Penny. Although Dennis intended the bat to hit the ball in order for him to play baseball, he did not intent a harmful or offensive touching to occur on Penny. Although the injury that arose was harmful, because the intent element cannot be met, Penny does not have a viable battery claim. Negligence: In order to bring a valid negligence claim, the plaintiff must prove that the defendant had a duty to act as a reasonably prudent person, that the defendant breached that duty and that such breach actually and proximately caused the plaintiff an physical injury (injury to her person or property). The duty one has is to act as a reasonably prudent person to those foreseeable people within the zone of danger. A person does not have a duty that extends to all people because that would create endless liability. Instead, the court, as explained in Palsgraf has limited a defendants duty to those who are within the zone of danger, or those who could reasonably and foreseeably be impacted by the defendants actions. Although additional duties may sometimes arise, the general rule is that one must act reasonably prudent. This test is an objective test and a question of law for the judge to decide. A breach occurs when the defendant does not act in accordance with their requisite duty. Additionally, the plaintiff must show actual cause: that “but for” the defendants breach the plaintiff would not have been injured. And proximate cause, which is whether the defendants breach foreseeably would cause injury to the plaintiff. Although injury to the plaintiff must be foreseeable, the extent of that injury need not be foreseeable and a defendant takes his plaintiff as she finds him. Additionally, if the defendant is found to be negligent, he may also be liable for any additional injuries that occur to the plaintiff due to his acts, such as medical malpractice or negligence that occurred within a rescue of the plaintiff. Here, Dennis had a duty, as a baseball player to hit the ball when it was thrown to him, and to act reasonably in doing so. It is unlikely that he breached this duty, because he did exactly what he was hired to do, which was to hit a baseball. Additionally, although it may be foreseeable that people outside of the baseball park may be hit by a baseball, there is a question of whether Penny was outside of the zone of danger. People in the park who are hit by a flying ball are foreseeably within the zone of danger because most balls are hit within the park. Although Penny may be able to argue that because balls have been hit over the park fence onto Oak Street that it was foreseeable that this could happen again and that Dennis is liable for her injury. However, it still does not seem that Dennis breached his duty of care. Therefore, even though Penny was injured, and her injury was the but for cause of Dennis’s action, and that it is foreseeable that someone may be hit by the ball, Dennis likely did not breach any duty. 2. Penny v. Fernbury Flies Battery: An employer may be held vicariously liable for the torts of their employees under the doctrine of respondeat superior. Under this doctrine, an employer is liable for any injury caused by their employees negligence that occurs out of the scope of their employment. Although intentional torts are usually not included, if an employee commits an intentional tort that is furthering an interest of the employer the employer may nevertheless be held liable. Here, although the doctrine of respondeat superior would be applicable, because Dennis did not have the requisite intent to commit a battery, the Fernbury flies cannot be vicariously liable for the injuries caused by Dennis. Negligence: As explained above, in order for a negligence claim to be present all elements must be present. Additionally, certain duties arise on landowners based on those who enter their land. Generally, a landowner has no duty to trespassers, but a heightened duty of care to licensees and Invitees who are on their land. Landowners however do no have a duty to people off their land that may be injured by items on the land. That being said. The duty the park had is likely different then the duty Dennis. The park was on notice that balls had been leaving the park and even though the custom was to use a 10 foot high fence, they were likely negligent in not using a different type of fence such as the ones used in japan.