tort law group 7

TABLE OF CONTENTS Issue 2: Whether Momtouchs’ Chicken is liable for harm that is the foreseeable consequence of Issue 3: Whether Sheila is entitled to sue Momtouch’s Chicken ‘n’ Chips

HO CHI MINH CITY UNIVERSITY OF LAW COMMERCIAL

LAW FACULTY s -

7315

1996 TRƯỜNG DẠI HỌC LUẬT

TP HỒ CHÍ MINH

CLASS 97 — CLC (43B) GROUP 7

TORT LAW

Instructor: Assoc Prof Ha Thi Thanh Binh

LIST OF MEMBERS

1 Nguyéén Ph m Myé Ngoc 1853801013128 Leader 2 Võ Trí Thông 1853801014158 Member 3 Trương Kim Ngương 1853801014114 Member 4 Lưu Huỳnh Hoàng Yên 1853801013226 Member

Ho Chi Minh City, December 13 2021

TABLE OF CONTENTS

Issue 2: Whether Momtouchs’ Chicken is liable for harm that is the foreseeable consequence of

Issue 3: Whether Sheila is entitled to sue Momtouch’s Chicken ‘n’ Chips for suffering panic

CASE LAW

Peter, a university student, is driving home from lectures one evening and stops at Momtouch’s Chicken ‘n’ Chips for some food to take home He buys a “Quik-Pack” of chicken which he starts to eat as he drives along the freeway One piece of chicken has a peculiar flavour, so Peter turns on the car light, takes a quick glance and sees that he has been eating a crumbed fried mouse He immediately feels ill, and loses control of the car which crashes into a car in the next lane driven by David Both Peter and David suffer injuries in the accident, and are taken to hospital Peter’s mother, Sheila, visits him that night in the casualty department of the hospital and is so distressed by his sad tale about the mouse that she subsequently develops suffers a psychological trauma, so she suffers panic attacks and shakes to chicken and mousetraps Peter, David and Sheila are all keen to sue Momtouch’s Chicken & Chips Advise each of them under U.S Law Would your answer be different if Vietnamese law applies? Fully discuss

TABLE OF REFERENCE 1) US tort law

2) Vietnamese Civil Code 2015 3) Law on Protection of Consumer Rights 2010 4) Law on Food Safety 2010

5) Virginia E Nolan and Edmund Ursin (1982), Negligent Infliction of Emotional Distress: Coherence Emerging from Chaos, (33), Issue 3, Hastings Law Journal 6 ` Donna L Shumate (1992), Tort Law: The Negligent Infliction of Emotional

Distress - Reopening Pandora 's Box - Johnson v Ruark Obstetrics, (14), Issue 2, Campbell Law Review

7) John J Kircher (2007), The Four Faces of Tort Law: Liability for Emotional Harm, —

(90), Issue 4, Marquette Law Review 8 — Tort law: Negligence infliction of emotional distress Torts, Lawself educational

media, National Paralegal College 9) Case-law references list: ¢ Palsgraf v Long Island Railroad Co., 248 N.Y 339, 162_N.E 99 (1928) * Dillon v Legg, 441 P.2d 912 (Cal 1968)

* Yandrich vs Radic, 433 A.2d 459 (Supreme Ct 1981) * Com v Love, 957 A.2d 765 (Pa Super Ct 2008) ¢ Haynes v Coca-Cola Bottling Co of Chicago * Thing v La Chusa (1989) 48 Cal.3d 644, 257 Cal Rptr 865; 771 P.2d 814 ¢ Arauz v Gerhardt (1977) 68 Cal App.3d 937 [137 Cal Rptr 619] * Krouse v Graham, 19 Cal.3d 59 (1977)

¢ The case law Molien v Kaiser Foundation Hospitals, 616 P.2d 813 (Cal 1980) ¢ W Page Keeton et al., Prosser & Keeton on the Law of Torts § 54, at 364 (5th ed

1984)

Summary: Peter buys chicken at Momtouch’s Chicken and Chips He starts to eat as he drives along the freeway While eating, Peter finds a piece of fried mouse, so he feels ill and loses control, which leads to crashing into David's car Then both of them had to be hospitalized Peter’s mother, Sheila suffers panic attacks and shakes uncontrollably every time she sees a chicken or a mouse after hearing Peter’s story All of them are keen to sue Momtouch’s Chicken and Chips.

A US LAW Issue 1: Whether Peter can sue Momtouch’s Chicken & Chips for the damage he has suffered under Strict liability?

Issue 2: Whether Momtouchs’ Chicken is liable for harm that is the foreseeable consequence of their action under the tort of negligence for Davids’ injuries?

Issue 3: Whether Sheila is entitled to sue Momtouch’s Chicken ‘n’ Chips for suffering panic attacks and shaking uncontrollably under Negligence Infliction of Emotional

Distress?

Issue 1: Whether Peter can sue Momtouch’s Chicken & Chips for the damage he has suffered under Strict liability?

Rule: Strict liability- Product liability Types: Defective Product: Defect in Manufacture Strict liability means liability without fault Strict liability means: A participant in a covered activity will be held lable for any injuries caused by the activity, whether or not he or she was negligent Where applicable, the defendant is liable for harm that his actions caused even though there may have been no misconduct at all by the defendant

In strict liability situations, although the plaintiff does not have to prove fault, the defendant can raise a defense of absence of fault, especially in cases of product liability, where the defense may argue that the defect was the result of the plaintiff's actions and not of the product, that 1s, no inference of defect should be drawn solely because an accident occurs If the plaintiff can prove that the injuries caused by the defective products, additional punitive damages can be awarded to the victim in some jurisdictions

Analysis:

In this present case, here, Momtouch’s Chicken & Chips and Peter engaged in the business of selling products Peter bought “Quik-Pack” of chicken at Momtouch’s Chicken & Chips

In this case, the kind of liability applied is product one The liability of manufacturers, sellers, and others for the injuries caused by defective products Where the manufacturer or seller of a product guarantees that a product will behave in a certain manner, and it fails to do so, the manufacturer or seller will be held strictly liable for any resulting injuries, regardless of any fault In this case, the product which was sold by

Momtouch’s Chicken and Chips was defective in manufacture due to the following

reasons

(1) The product was completely defective in the manufacturer Although Peter ordered a chicken from Momtouch’s Chicken and Chips, the restaurant sold him a crumbed fried mouse which is considered as a harmful food for consumer’s health The defective products as a result of the Montouch’s Chicken and Chips’s fault Moreover, the product contains toxic material which would be harmful to consumers’ health when eating it Here, a fried mouse is considered unsanitary because the mouse is the vector animal that transmits disease to humans Hence, for Peter’s case, strict liability applies to the manufacturer - Momtouch’s Chicken and Chips

(2) Momtouch’s Chicken & Chips failed to adequately check the quality of their own product before selling to Peter Momtouch is the commercial seller of such a product from which Peter suffered the injury When Momtouch sold their food, it was defective The defect was an actual and proximate cause of Peter's injury Therefore, Momtouch’s Chicken and Chips has to be liable for making or selling: “A defective product is unreasonably dangerous to the user or consumer” It is considered as the product liability - liability of the sellers for the injury caused by defective products

In this present case, here, pursuant to strict liability damages, Momtouch’s chicken and chips is liable for the illness of Peter and the loss from the car accident

It is obvious that Peter felt ill and caused the car accident as a consequence of the defective product which was sold by Momtouch’s Chicken and Chips

Even though the defective product in this case - a piece of fried mouse was not considered as a direct cause which led to Peter’s car accident, the discovery of a piece of mouse instead of a pack of chicken had a detrimental effect on Petel’s mental health at that time Hence, Peter was completely taken aback by a mouse If Momtouch’s Chicken and Chips had not sold the defective product for Peter, Peter would not have felt ill and caused the car accident

In conclusion: Following the strict liability, Peter can sue Momtouch’s Chicken and Chips The liability of the restaurant for the injuries of Peter caused by defective products, specially, defect in manufacture

Issue 2: Whether Momtouchs’ Chicken is liable for harm that is the foreseeable consequence of their action under the tort of negligence for Davids’ injuries Rule:

+ Negligence under tort law + Caselaw: Palsgraf v Long Railroad Co

In US Law, negligence means a person is liable only for the foreseeable consequences of his or her negligent act That doctrine points to omission to do something which a reasonable person would do, or doing something which a prudent and reasonable person would not do

To be successful in a negligence lawsuit, the plaintiff must prove that (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached the duty of care; (3) the plaintiff suffered injury/damage; (4) the defendant’s negligent act caused the plaintiff’s injury/damage

Analysis: Under this case, the court must bring a test of negligence And in this test, the court is about planning to ask 04 questions which are:

(i) Does Momtouchs’ Chicken owe David a duty of care? (ii) Did Momtouchs’ Chicken breach a duty of care? (iii) Is there any injury, loss or damage that David has to suffer? (iv) Is there a causal link between Momtouchs’ Chickens’ and the injury that

David has suffered?

Firstly, for the first element of negligence which is a duty of care At the time, Momtouchs’ Chicken sold out the “Quik-Pack” to Peter which means Momtouchs’ Chicken incurred an obligation duty of care only to the Peters’ chicken food and there is

no evidence supported for a reasonable foreseeable that the act of selling by Momtouchs’ Chicken or their omission to act could cause harm to David Therefore, Momtouchs’ Chicken did not owe a duty of care to David

Secondly, whether Momtouchs’ Chicken breached the duty of care Based on the previous point, Momtouchs’ Chicken did not owe a duty of care to David According to Palsgraf v Long Railroad Co (1928) case law, what the plaintiff must show is “a wrong” to herself; 1.c., a violation of her own right, and not merely a wrong to someone else The risk reasonably to be perceived defines the duty to be obeyed’ In Helens’ case, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiffs safety, so far as appearances could warn him His conduct would not have involved, even then, an unreasonable probability of invasion of her bodily security Liability can be no greater where the act is inadvertent Likewise, in the present case, there was nothing in the situation to suggest to the most cautious mind that the act of selling by Momtouchs’ Chicken could lead to Davids’ injuries Furthermore, there is nothing that could warm David that if Momtouchs’ Chicken had sold the crumbed fried mouse knowingly and willfully, they would have threatened the plaintiff's (herein David) safety Their conduct would not have involved, even then, an unreasonable probability of injury to David by the unexpected car crash on the freeway Therefore, Momtouchs’ Chicken could not breach the duty of care to David

Thirdly, Momtouch’s Chicken ‘n’ Chips products were not the direct cause of David’s accident In fact, David has to suffer damage but only due to the actual cause of Peters’ car crash which is not coming from Momtouchs’ Chicken liability Although the Quik Pack- a product of Momtouchs’ Chicken did not provide chicken, they are not liable for the injuries of David due to lack of cause-and-effect relationship between them Regarding Davids’ injury, according to the fact, the causal link chain began from the moment Peter started to eat as he drove along the freeway which distracted

1 Palsgraf v Long Island Railroad Co., 248 N.Y 339, 162_N.E 99 (1928) at 344 by CaRDOZO, C.J [Chief Justice]

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him, and could not fully pay attention to the traffic on the road And then due to a peculiar flavour in food, he turned on the car light which greatly make a contribution for his distracting and harder to carefully observe traffic on freeways Peter felt ill, and lost control of the car which crashed into a car in the next lane driven by David Thus, Momtouchs’ Chicken is unable to cause Davids’ injury in this scenario

Lastly, Momtouchs’ Chicken did not owe a duty of care to David nor breach the duty of care to David and his injuries caused by Peters’ car crash due to his loss of control Therefore, there is no causal link between Momtouchs’ Chicken and the injury that David has suffered Moreover, under the law, a negligent party is not necessarily liable for all damages set in motion by their act but only liability to proximate cause of its foreseeability As it can be seen that, without Momtouchs’ Chicken act or if Momtouchs’ Chicken had acted without fault, the damage still occurs by Peter due to his lack of focus on driving which can be seen that he started to eat as he drove along the freeway causing him to hardly pay attention to the traffic or using both hands to control the steering wheel safely

Conclusion: Momtouchs’ Chicken is not liable for Davids’ injuries due to lack of duty to care for David in the tort of negligence; therefore, David is unable to sue Momtouchs’ Chicken

Issue 3: Whether Sheila is entitled to sue Momtouch’s Chicken ‘n’ Chips for suffering panic attacks and shaking uncontrollably under Negligence Infliction of Emotional Distress?

Rule: Negligence Infliction of Emotional Distress doctrine In US law, Negligence Emotional Distress doctrine means a tort that permits a person to recover for emotional distress caused by the defendant’s negligent conduct

Based on case “Dillion v Legg” The California Supreme Court suggested the following “guidelines” as aids in resolution of bystander claims:

(1) Whether the plaintiff and the victim were close related, as contrasted with an absence of any relationship or the presence of only a distant relationship

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(2) Whether the shock resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; (3) Whether the plaintiff was located near the scene of the accident as contrasted

with one who was a distant away from it Under this tort, many states require that the following elements are proved in Negligence infliction of Emotional Distress doctrine cases:

1 Aclose relative was killed or injured by the defendant 2 The plaintiff suffered severe emotional distress 3 The plaintiffs mental distress resulted from a sensory and contemporaneous

observance of the accident Caselaw:

Dillon v Legg, 441 P.2d 912 (Cal 1968) Yandrich vs Radic, 433 A.2d 459 (Supreme Ct 1981) Com v Love, 957 A.2d 765 (Pa Super Ct 2008)

Haynes v Coca-Cola Bottling Co of Chicago Thing v La Chusa (1989) 48 Cal.3d 644, 257 Cal Rptr 865; 771 P.2d 814 Arauz v Gerhardt (1977) 68 Cal App.3d 937 [137 Cal.Rptr 619] Krouse v Graham, 19 Cal.3d 59 (1977)

Analysis: If Sheila wants to recover mental damages, she must prove three elements of this doctrine: (1) a close relative was killed or injured by the defendant; (2) Sheila suffered severe emotional distress, and (3) Sheila’s mental distress resulted from a sensory and contemporaneous observance of the accident

Firstly, Sheila is Peter’s close relative According to Dillon, the court states that it must be a close relative, for example, a family or marriage relationship The first factor that needs to be analyzed is the relationship between the plaintiff and the victim Courts in

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all jurisdictions recognize that the relationships between immediate family (1.c parent, child, sibling or spouse) satisfy the close related prong.’

In this case, due to the fact that Peter is Sheila’s son, the mother-child relationship satisfies the first elements of the negligent infliction of emotional distress doctrine Moreover, Peter who has suffered injuries in the accident as a consequence of the negligent conduct of Mom’s Touch Chicken and Chips Therefore, Sheila has a close relationship with the one who was injured by the defendant

Secondly, Sheila suffered severe emotional distress According to Com v Love, the court defines emotional distress as an extreme mental and emotional anguish and distress, causing severe depression, nightmares, stress, and anxiety, requiring psychological treatment A brief period of unhappiness or humiliation is not sufficient Since claims of psychological injury can be subjective, many jurisdictions require that the mental harm be accompanied by physical symptoms, such as nausea, headache, or any other physical manifestation of the mental trauma.* However, the modern trend is to permit recovery even without physical symptoms The most widely accepted standard is conduct that is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” In this present case, after visiting Peter that night in the casualty department of the hospital, Sheila suffers severe psychological trauma (panic attacks and shakes uncontrollably every time she sees a chicken or a mouse) as a result of knowing about her son's sad tale This means that Sheila satisfies the “severe emotional distress” element of the doctrine

Finally, the mental distress resulted from a sensory and contemporaneous observance of the accident

Prior to Dillon, American courts had uniformly required that recovery for emotional distress be based on a fear for the plaintiff's own safety because of his or her presence within the zone of physical injury Breaking from this traditional stance, Dillon

2 Andy Clark (2001), “Interested Adults” with Conflicts of Interest at Juvenile Interrogations: Applying the Close Relationship Standard of Emotional Distress, 68 U CHI L REV 903, 920

3 W Page Keeton et al., Prosser & Keeton on the Law of Torts § 54, at 364 (Sth ed 1984)

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