External or Advocacy Written Memorandum - Term Paper Example

BARRISTER COUNTY COURT OF COMMON PLEAS CIVIL DIVISION __________________________________________ DOMINIQUE DAY,  Plaintiff   V  No. 1000 CV 2002  KERRY KNIGHT,  Defendant.  __________________________________________ MEMORANDUM OF ADVOCACY IN SUPPORT OF PLAINTIFF DOMINIQUE DAY Pursuant to the Order of Magistrate __________, dated __________, the United States respectfully submits this Memorandum of Advocacy on behalf of the herein plaintiff for the assistance of the Court. FACTS On March 2, 2002, the Lyndon B. Johnson High School basketball teams, boys and girls, had a party at Devin Richards’ house and had an opportunity to meet the 1997 girls and boys basketball teams. The plaintiff Dominique Day, a junior, and his friends Devin Richards and Montgomery Taylor, both likewise minors at that time, were also present along with some thirty other guests at one time or another. The plaintiff, who played for the school’s varsity team, was an ace player who broke the then existing record and was set to receive the Division I scholarship. Later in the night, the defendant Kerry Knight, the varsity basketball coach arrived bringing with him a keg of beer. Although there was a note which said “Do not drink if under 21” on the keg, most of the guests, 21 or not, drank anyway and the defendant did not stop any of them. The plaintiff was initially offered a cup of beer by his friend Richards and later went to the keg himself for a refill. The defendant left the party at one time leaving the guests drinking and finishing up the keg. The plaintiff had several more cups and when the keg was almost empty was about to leave Devin’s house when the defendant reappeared. He asked the plaintiff if he had drunk beer and the latter said he had a cup. The plaintiff then got his jeep key from near the TV where the coach kept all car keys and took off with his friend Taylor who asked for a ride home. The defendant did not at any time stop the plaintiff from leaving with his jeep key. On the way home, the defendant hit a tree and broke a leg. He spent the entire summer in cast and missed the next basketball season. As a consequence, his team lost that season and so did the plaintiff’s hope for a Division scholarship. The plaintiff is frustrated over the fact that although he can eventually still play basketball, he can never be as brilliant as it used to be in playing basketball. LEGAL ANALYSIS The issue at stake in this case is: (1) Whether or not the defendant is liable for the plaintiff’s injuries. To decide whether or not the defendant is liable for the plaintiff’s injuries, it is necessary to prove that the defendant was negligent and that if so found, it was this same negligence that was the proximate cause of the plaintiff’s injuries. Negligence is defined in the case of Manning v. Andy 454 Pa. 237, 310 A. 2d 75 (1973) as “the want of due care which a reasonable man would apply under the circumstances. Conduct is negligent only if the harmful consequences thereof could reasonably be foreseen and prevented by the exercise of reasonable care.” Moreover, the elements of cause of action for negligence had been laid down in several cases, one of which is the case of Macina v McAdams, 280 Pa. Super, 115, 421 A. 2d 432 (1980) and again in the case of Orner v Malick, 512 Pa. 132; 527 A.2d 521; (1987 Pa). In those cases, the actor is deemed liable for negligence if the following elements are present: “(1) a duty or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unconscionable risks; (2) a failure on his part to conform to the standard required; (3) a reasonably causal connection between the conduct and resulting injury, and (4) actual loss or damage resulting to the interests of another.” In a long line of cases starting that of Congini v Portersville Valve Company 470 A.2d 515, 518 (Pa 1983), the Court acknowledged that notwithstanding the precise wording of the law under the Pennsylvania Liquor Code which prohibits the serving of alcohol to minors by a licensee or his agents, social hosts could nevertheless be made liable for serving alcoholic beverages to minors. This is because a reasonable man, a term definable by courts under the Restatement of Torts § 286 (1965), as one having met the requirements of a legislative enactment “to protect a class of persons, to protect the particular interest which is invaded, to protect that interest against the kind of harm which has resulted.” Applying this principle, the Court then referred to Section 6308 of the Crimes Code, 18 Pa. C.S. § 6308, a Pennsylvanian legislative judgment which declared those under 21 years of age as incompetent to handle alcohol. This legislative judgment and the consequent explicit prohibition to purchase and consume alcohol by those below 21 years old are therefore conclusive proof that such a class of persons is intended by law to be protected from the dangerous effects of alcohol. There is therefore a resulting duty on the part of adults to exercise a care of duty to their minor guests with respect to alcoholic beverages. Thus, the principle of the social host liability was acknowledged by the Court declaring that adults who do so are liable per se. By implication, the social host doctrine liability extends as well to all adults who knowingly serve alcohol to minors as evident from the Restatement of Torts. In the case at bar, the plaintiff has sustained damages arising from the injury he got in the car accident after the party at the Richards’ residence. His jeep was wrecked, a leg was broken which further resulted in his being sidelined from the next basketball season, the Division scholarship he was expecting did not materialize and he might never play as spectacularly again. In addition, it is not difficult to establish the connection between the beer drinking and the accident. Applying all the aforesaid principles discussed in the previous paragraphs, it is evident that the herein defendant is liable for the damages sustained by the plaintiff. He cannot feign ignorance of the plaintiff’s age because he knew him personally as he was the school’s varsity coach and the plaintiff one of his players. Despite this knowledge the defendant did not sincerely thwart the plaintiff and other minors like him to drink beer and worse allowed the plaintiff to leave the party with his jeep keys notwithstanding that he knew and saw for himself the latter’s intoxicated condition. The defendant was clearly negligent because he had a clear duty recognized by law and failed to observe it, and the negligence can be linked to the injury sustained by the plaintiff, an injury which resulted in actual loss and damages. The fact that the defendant did not officially host the party here is of no moment because what is compelling here is the fact that it was him who brought the keg to the party knowing that it was a gathering mostly of students in the junior and senior years of high school and therefore within the range of minority. He was an adult who breached the duty of care required of him as an adult to extend to a protected class of citizens which include the herein plaintiff by knowingly serving alcohol to minors extending therefore the social host doctrine to his case. Anent the negligence of the defendant as the proximate cause of the injuries sustained by the plaintiff causing the plaintiff not only his much anticipated Division scholarship and a bright future in professional basketball, the case at bar clearly shows that the acts of the defendant in implicitly allowing the plaintiff to imbibe alcoholic drinks was the proximate cause of the latter’s injury. In the case of Mussivand v. David, 544 N.E. 2d 265 (OH 1989), the Court had an opportunity to define and illustrate the meaning of proximate cause as one that “in order to establish proximate cause, foreseeability must be found. [...] If an injury is the natural and probable consequence of a negligent act and it is such as should have been foreseen in the light of all the attending circumstances, the injury is then the proximate result of the negligence. Thus, liability for negligence extends to those injuries that the defendant should have foreseen.” The very fact that the Pennsylvania legislative itself had declared those below 21 years of age as a class of citizens that are unable to handle the effects of alcohol is an implicit way proof that there is an official acknowledgment of the fatal effects that alcohol can do to individuals within this age bracket. A car accident by a drunken person below 21 years of age is therefore a reasonably foreseeable event. The implication to the case at bar is that the provision of alcohol by the herein defendant to the minors during the 2002 party which included the plaintiff and allowing the latter to drive under an intoxicated condition was the approximate cause of the injuries suffered by him during and after the car accident. In fine, the facts of the case and the relevant laws applicable in this jurisdiction all point to the fact that the Court must find the herein defendant liable for the injuries and damages sustained by the Plaintiff. The finding of liability of the defendant finds basis in the fact that the defendant acted negligently in allowing the Plaintiff, who was then a minor, to imbibe an alcoholic drink notwithstanding that he personally knew him to be a minor as well as allowing the Plaintiff to get his jeep keys and leave the party when he had personally and clearly saw that the Plaintiff was in a state of intoxication. It is the obligation of an adult not to serve or allow a minor to drink intoxicating liquor, an obligation borne from the duty of care owed towards a class of persons whom the law has a legislative intent to protect. That an adult, not necessarily a licensee to sell liquor, has a duty of care towards minors with respect to the service and provision of alcohol has long been determined in a long line of cases which has acknowledged the so-called social host liability beginning in the case of Congini v Portersville, Jefferis v Commonwealth, 371 Pa. Super. 12; 537 A. 2d 355 (1988 Pa.) and others. Conclusion For the reasons set forth above, this Court should find for the plaintiff Dominique Day and render a decision of negligence against herein defendant Kerry Knight for serving and/or providing alcohol to the plaintiff who is a minor, a negligence which was the proximate cause of the injuries sustained by the herein plaintiff and order him to pay appropriate compensatory damages to compensate the latter for the said injuries. References Congini v. Portersville Valve Company 312 Pa. Super. 461; 458 A.2d 1384; (1983) Jefferis v Commonwealth, 371 Pa. Super. 12; 537 A. 2d 355 (1988 Pa.) Orner v Malick, 512 Pa. 132; 527 A.2d 521; (1987 Pa) Macina v McAdams, 280 Pa. Super. 115, 421 A. 2d 432 (1980) Manning v. Andy 454 Pa. 237, 310 A. 2d 75 (1973) Mussivand v. David, 544 N.E. 2d 265 (OH 1989) Read More