Jack and Jill met in their Torts class during their first week at Big University School of Law. Big University is located in Anywhere, which is the capital of the state of Euphoria. Jack and Jill became friends and would often go to dinner, movies, and nightclubs together. Jack lived off campus and would usually drive when he and Jill went out. In addition, Jill would sometimes buy liquor for Jack, who, at 20 years of age, was under the legal drinking age in Euphoria.
On the eve of Jack’s 21st birthday in mid-January, Jill threw him a party and invited other members of their Torts class. Because Jill lived on campus in a small dorm room, a friend offered her house for the party. Jill planned a special celebration and purchased two large kegs of beer and some other items from Anywhere Liquor Store at about 8 p.m. When Jack arrived at 10 p.m., the party was well underway. Jack paid the $5 “cover charge” and walked into the house. It was packed with students and their guests, and Jill was busy serving beer from a keg. At other times, however, the party guests served themselves.
At midnight, Jill popped the cork of a bottle of champagne and playfully “forced” Jack to drink about one third of the bottle in “chug-a-lug” style. She then drank about one third and proceeded to pour the rest over Jack’s head while singing “Jack is finally legal.”
Jack and Jill returned to drinking beer for the remainder of the evening. They spoke three or four more times that night before Jack left the party at about 1 a.m.
Meanwhile, at about 1 a.m., John Wilkes was using one of several phone booths located at the corner of 1st Street, which runs in an east-west direction, and West Avenue, which runs in a north-south direction. This intersection is one of the busiest in Anywhere and annually places in the top 10 locations for the most car accidents in the city. The phone booths were installed by the Euphoria Telephone Company (ETC) on the west sidewalk of West Avenue, beginning approximately 15 feet south of 1st Street and set back from West Avenue approximately 4 feet. The phone booths are located in front of the Anywhere Liquor Store, where John works.
After his shift ended at 10 p.m. and the store closed, John went to his car, parked in the lot just south of the store, and discovered that his car battery was dead. He then went to the pay phones to call the Euphoria Automobile Association (EAA) for assistance. His minor problem soon turned into a major hassle. Time passed and John waited in his car because of the bitter mid-January cold, but no EAA truck came. John made four follow-up calls, and each time EAA operators apologized for the delay, promising that a truck would arrive within 30 minutes. Each time the EAA operator told John to remain with his car. Finally, at 1 a.m., John called again and demanded to speak to a supervisor.
By the time the supervisor was on the line talking with John, Jack had begun his journey home which took him southbound on West Avenue. At the intersection of 1st Street, Jack lost control of his car.
In the phone booth, John was talking to the EAA supervisor and looked up to see Jack’s car headed for the phone booth. John attempted to flee, but the phone booth door jammed, trapping him inside. John was severely injured when Jack’s car struck the phone booth.
At the scene of the accident, police tested Jack’s blood alcohol level and discovered that it was almost twice the legal limit for Euphoria.
When John regained consciousness, he told police that the phone booths had been struck twice in the past 18 months, both times by drunk drivers, though the booths fortunately had been vacant at the time of those accidents. John said that he did not like using the phone booths because of their dangerous location, but he felt that he had little choice given the weather that night.
An investigator later discovered that the door of the phone booth jammed because it had not been lubricated in over a year. Customarily, ETC lubricates the doors of their phone booths about every 3 months.
You are an associate at Whizbang, Gottum & Cochran. John has come to your firm to handle his case, and you have been assigned to determine whether John has an action in tort against any of the following possible defendants: Jack, Jill, Jill’s friend who owned the house, EAA, ETC, and the owner of Anywhere Liquor Store.
You discovered in your research that the applicable standard of liability is negligence and that Euphoria courts apply the “foreseeability test” when determining proximate cause. Although the Euphoria legislature has been unwilling to enact a dram shop statute, it long ago enacted a criminal statute with the following provisions: “Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.”
Write a memo to your supervising attorney discussing whether actions in tort should be brought against the possible defendants, and discuss whether any of them might have defenses because of John’s actions.
