I almost witnessed a 1L Torts final question today

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Dr Fear

500+ Posts
So today I am on my porch installing my new Sportster 5 Sirius unit when I notice a lady walking her dog down the street. My neighbors have apparently left their front gate open and their huge dog runs out into the sidewalk when she approaches. She is obviously scared and backs into the middle of the street with her dog. Meanwhile a car is coming down the street at about 45 mph. The car has a good 4-5 seconds to see that there is a woman block the road but makes no attempt to slow down. The woman is forced to head back towards the loose dog in order to avoid being hit. The car passes and I can clearly see the driver was wholly unconcerned that they almost hit someone. The woman then crosses the street and heads on.

What if she had been hit by the car? Is the loose dog owner liable? Does the driver who hit the dogwalker have a case against the homeowner for damage to their car? What is you assume that the driver of the vehicle was negligent for not paying attention?
 
I can tell you that based on your fact pattern, that in a real world litigation scenario, the driver of the car would certainly be considered the most negligent in this scenario as he had ample time to recognize and prevent an accident (4-5 seconds). A reasonably prudent operator of a motor vehicle always keeps a proper lookout for hazards and with the time available to the driver from recognition to impact, if such lookout was kept, then the vehicle would have stopped in time. Moreover, a driver has an affirmative duty to prevent accidents and it does not appear that this driver took any evasive measures or even applied his brakes in an effort to prevent this one (had it occurred).

However, under Texas' scheme of proportionate responsiblity, the driver of the car could likely include the homeowner in the litigation as a designated responsible 3rd party/3rd party defendant. This would allow him to defray some of his liability by whatever % the finder of fact determined the homeowner to be in bringing about the proximate cause of the accident.

Last, the dogwalker is likely contributorily negligent herself. A reasonably prudent person, even when confronted with a large dog, is unlikely to choose to run out in front of traffic and just stop in the road. If she had 4-5 seconds before the care hit her (as the fact pattern suggests) then she also had ample time to actually get across the street. Thus, I assumed that she just slowly backed into the roadway, which is of course stupid. Thus, she would likely be considered negligent in her own right. Driver's % of liability will be reduced by dogwalker's % of liability. If the finder of fact determined that dogwalker was 51% negligent in her own right, then that would constitute an absolute bar to her recovery in this action.

Did I pass?
 
I first read this as "I almost witnessed a 1L Jorts final question today".

I thought it was going to about a dignitary trespass vi et armis involving an Okie coming across our borders to our state fair and forcing you to look at his jean shorts.
 
What if this incident happened on a carnival cruise ship with a restrictive forum selection clause printed on the back of the ticket?
 
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