FACT PATTERNSarah (a Texas resident) was driving home from class (in Champaign, Illinois) in her new car, which was insured by Allstate. Sarah received a text message from her roommate and Sarah looked down to type a response. At the same time Sarah starting looking down at her phone, Andy (a Wisconsin resident) was jogging into the poorly lit street without looking for oncoming traffic. Tragically, Sarah hit Andy, severely injuring his leg. Sarah, after making contact, immediately swerved and hit a light post, causing $10,000 of damage to her new car. At the time of impact, Sarah was driving 25 m.p.h. in a 30 m.p.h. zone. Additionally, it was clear that Andy was not in a crosswalk at the time impact was made.

While Andy was being transported to the hospital, the Ambulance had to make a sudden stop to avoid an accident and Andy fell off the gurney. As a result of his fall, Andy also broke his arm. Although Andy eventually fully recovers, he incurs medical expenses of $35,000 to treat his broken leg and $15,000 to treat his broken arm.

Andy files a lawsuit against Allstate and Sarah seeking $100,000 to cover his medical expenses and pain and suffering.INSTRUCTIONSPlease draft a memorandum to a claims manager at Allstate examining Sarah's potential liability for Andy's injuries (Allstate, as Sarah's insurer, will be liable for this amount on her behalf). Please focus your memorandum on answering the following questions:1. Can Andy file the lawsuit in federal and/or state court?2. Which courts would have personal jurisdiction over Sarah?3. Assuming that the lawsuit is filed in Wisconsin federal court, what substantive and procedural law will the court apply?4. Will Andy be able to recover damages for the tort of negligence?5. If Andy is able to prove all the elements of negligence, would Sarah have any defenses to the negligence claim?6. What injuries would Sarah be liable for if Andy establishes liability for the tort of negligence?Your memorandum should be between 350 and 900 words and should be posted to the Civil Dispute Resolution Problem Forum.

TO:Allstate Claims ManagerFROM: Yun FuDATE:May 30, 2015SUBJECT:Civil Dispute Resolution INTRODUCTIONThis Memorandum examines the recent lawsuit between Andy (Plaintiff) and Sarah (Defendant) who is insured by Allstate. Please refer to paragraphs below for responses to your questions:RESPONSESI. Andys Eligibility to File in State/Federal CourtIn order for State Trial Courts to hear Andys case, therefore have original jurisdiction, the courts are required to have subject matter jurisdiction and personal jurisdiction. In this case, Andy can file his case in all three courts of Texas, Wisconsin, and Illinois while filing in Wisconsin will require Sarah consent and Illinois will require Sarah to pass the minimum contacts test. It is recommended, however, that Andy file his suit in the Federal State Court because of the diversity of citizenship involved. II. Courts Personal Jurisdiction over SarahAs stated above, both State and Federal Courts have personal jurisdiction over Sarah under different circumstances. It is clear that the Texas State Court have personal jurisdiction over Sarah since a state court has personal jurisdiction over all personals who reside in the state (Legal Environment of Business, page 35). Similarly, the Illinois Court has personal jurisdiction over Sarah because the accident occurred within Illinois, thus passing the minimum contacts test. Finally, the Wisconsin State Court will have personal jurisdiction over Sarah if she consents to the courts personal jurisdiction, thereby waiving the right to challenge the authority of the court to issue a judgement binding on [her] (Legal Environment of Business, page 35).III. Substantive and Procedural Law in Wisconsin Federal CourtIf the lawsuit was filed in the Wisconsin Federal Court, the federal court must apply the substantive common law of the state of Wisconsin based on the holding of Erie Railroad vs. Tompkins. This eliminates the chance for forum shopping and establishes that federal courts should not have substantive common law. On the other hand, the Wisconsin Federal Court will apply the Federal Procedural Law to the case because all courts follow their own procedural law with no exceptions. The procedural laws for which federal courts use include Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, and Local Rules in Wisconsin. In this case, the Federal Rules of Criminal Procedure will not be applied because it is assumed that the tort was not intentional. IV. Eligibility of Andy to Recover for the Tort of NegligenceIn order for Andy to recover damages for the tort of negligence, he will need to first prove that1) The defendant owed the plaintiff a legal duty not to be negligent2) The defendant breached that duty by failing to act as a reasonable person would act under the circumstances,3) The defendants negligence was the proximate or legal cause of an injury suffered by the plaintiff, and4) The plaintiff suffered actual loss, damage, or injury as a result of the defendants conductUnder the first required element, Sarah is expected to conform her conduct to that of a reasonable person as an able and educated individual. As this duty is present at all times, this element does not require proof and cannot be disputed.The second element requires proof that the duty to be reasonable is breached. As a driver, Sarah is required by law to be attentive and refrain from usage of mobile devices. Since the regulation on phone usage is violated, the unexcused violation of the regulation is negligence in itself.