In-Class Exercises Anonymous
Based on the facts reported in the following newspaper story, do you believe that Rev. John Bertolucci could be held liable for intentional infliction of emotional distress? Man, Parents Sue Two Area Priests; Albany Lawsuit Alleges A Conspiracy To Intimidate Victim Of Sexual Abuse, Andrew Tilghman; Staff WriterA Capital Region man and his parents have filed a $450,000 lawsuit against two Roman Catholic priests in the Albany Diocese, accusing them of conspiring to intimidate a victim of sexual abuse and discourage him from coming forward with a formal complaint.According to the lawsuit, the Rev. John Bertolucci placed a phone call to the parents of the man, whom he sexually abused more than 20 years ago. The priest tried to intimidate the parents and get them to discourage their son from coming forward and filing a complaint, the lawsuit said. All three family members withheld their names from the lawsuit, filed this week in state Supreme Court. The lawsuit names Bertolucci, a former pastor at the St. Ambrose parish in Latham, and the Rev. Kenneth Doyle, the diocese's chancellor and director of public information.Doyle, who is also a lawyer, responded to the lawsuit with a terse public statement, calling the lawsuit "pure fiction." Bertolucci, who lives in Catskill and was a prominent figure in the national Catholic charismatic movement, did not return a call for comment.The victim had decided to come forward about his abuse and set up a meeting for Sept. 12 to formally register his allegations with Doyle and the diocese's attorney, Michael Costello, according to the lawsuit.But on Sept. 11, Bertolucci allegedly called the parents, saying it was 3 p.m., the time Jesus is considered to have died on the cross and known to many Roman Catholics as the "Hour of Mercy.""My lawyer tells me I could not call your son directly, so I am calling both of you," Bertolucci said, according to the lawsuit."I did not have sexual intercourse with your son, I only fondled him," Bertolucci allegedly said. "I was very proud of your son the way he repeatedly fought off my sexual advances most of the time. I want you to know that I still love your son after all these years."The man, who is now in his late 30s and works locally as a police officer, had told his parents about the abuse many years ago, the family's attorney, John Aretakis, said.The lawsuit does not seek damages for the sexual abuse, which allegedly took place in the 1970s and is out of reach under the state's three-year statute of limitations.Instead, the lawsuit focuses on the alleged call last month. Bertolucci is accused of harassing and intentionally inflicting emotional harm on the family.
IIED no self A
Pedro and Penelope Prince were the parents of a three-month-old infant, Victor. On Monday, the Princes became alarmed when Victor became ill with symptoms of vomiting, lethargy, and a fever of 104 degrees. The Princes took Victor to their pediatrician, Dr. Denning, who examined Victor, ordered a blood test to check for a bacterial infection, and prescribed Tylenol and Motrin. The Princes returned home, where Victor's symptoms continued. On Tuesday, the blood test results were sent to Dr. Denning's office. The results indicated bacteria in Victor's blood. Nurse Dolan, who worked as Dr. Denning's assistant, read the results but failed to pass the information to Dr. Denning. On Wednesday, Victor's condition became worse, and the Princes called Dr. Denning again. Dr. Denning suggested that they bring Victor to his clinic again. When Victor arrived, Dr. Denning found the blood test results in Victor's medical file and noted that the results showed bacteria in Victor's blood. Dr. Denning told the Princes to take Victor immediately to the local hospital for a lumbar puncture. Dr. Denning indicated that the lumbar puncture would tell them whether the bacteria had entered Victor's spinal fluid. The Princes then drove Victor to the local hospital about five-to-ten minutes away. Upon arriving at the hospital, Pedro dropped Penelope and Victor off at the front door and Penelope took Victor up the elevator to the pediatric ward. Victor stopped breathing on the elevator. When Penelope entered the pediatric ward, she immediately called for the nurse's attention and the nurse motioned for her to take Victor into a room. Noting that Victor was not breathing, the nurse called a "code blue" and several hospital staff members rushed to help. Penelope remained with Victor throughout and was asked to leave the room only when Dr. Denning arrived to do the lumbar puncture. After performing the procedure, Dr. Denning came out to Penelope and informed her that Victor's spinal fluid was cloudy and that a helicopter transport was on its way from a large regional medical center seventy miles away. When the helicopter arrived, Victor was stabilized and prepared for the flight to the regional medical center. The Princes followed the helicopter by car. By the time Victor got to the regional medical center, however, his infection had progressed too far, and the doctors were unable to save his life. Victor died at the medical center later that day. Penelope has filed a lawsuit against Dr. Denning for negligent infliction of emotional distress alleging the facts stated above. The defense has moved to dismiss. Assuming that your jurisdiction follows the rule stated in Dillon v. Legg, how is a trial judge likely to rule on the motion to dismiss? Discuss.
NIED #1 mod 20
Paula's mother was taken to an operating room for insertion of a chemotherapy catheter, a procedure expected to take about 20 minutes. Paula was present in the waiting room. After an hour, Paula heard an emergency page for a thoracic surgeon, which she assumed was for her mother. Over an hour later, a doctor came to report on her mother's condition; he stated that the doctors had "more trouble" than anticipated, and may have "got a bubble" in a vein, and he thought the mother might have suffered a stroke. Then, about three hours after the procedure had begun, Paula saw her mother, accompanied by doctors and nurses, being rushed down the hallway toward the critical care unit with her feet elevated and head almost touching the floor. Another doctor advised that "they nicked an artery or a vein, and it looks like all the blood went into her chest." He added they were trying to pump out the blood and keep her alive until a vascular surgeon arrived. A few minutes later, Paula saw the same doctor running down the hall with multiple units of blood. Three minutes later, Paula saw her mother being rushed down the hallway to surgery, accompanied by about 10 doctors and nurses. Her color was "bright blue." Paula sued the Doctors for negligence, seeking to recover for her emotional distress. She filed suit in California and cited Thing v. La Chusa in support of her claim alleging the facts above. The Doctors filed a motion to dismiss. You are Paula's attorney. Draft an argument in opposition to the motion to dismiss.
NIED #2 mod 20
Priscilla and Pepe were engaged to be married. They drove together to a local shopping mall to pick up previously ordered rings at a jewelry store for their upcoming wedding, scheduled for the following week. The parking lot at the shopping mall was crowded, and many patrons were driving through the parking lot seeking vacant parking spaces. Pepe dropped Priscilla off at the curb and then proceeded to park the car in a vacant parking space a few hundred yards away. After Pepe had parked his car, he walked through the parking lot to join Priscilla. Donald backed his car out of a parking space as Pepe was walking past. Donald's car knocked Pepe to the ground and ran over him. Pepe's jacket got caught on the underside of the car, and as Donald drove out of the parking lot, Pepe's body was dragged under the car, leaving a trail of blood. Priscilla witnessed these events from twenty feet away and yelled for Donald to stop, but he did not hear her cries. She chased Donald's car as he pulled out of the parking lot, but she was unable to catch up to it until Donald stopped at a traffic light. Once Donald had turned off his car, she attempted to extract Pepe from under the car and saw his badly battered and bloody body. Pepe was still conscious and reached out to her, but he died before she could pull him out from under the car. A police report indicated that Donald was heavily intoxicated at the time of the accident and that he admitted not looking behind his car as he pulled out of the parking space. Priscilla sued Donald for negligent infliction of emotional distress. The trial court granted Donald's motion to dismiss. In a written opinion, the trial judge explained that the case was governed by the zone of danger rule, adopted by the State Supreme Court (the highest appellate court in the state) in 1935. Priscilla appealed, and the intermediate appellate court affirmed. Priscilla appealed again to the State Supreme Court, arguing that the Court should overturn the zone of danger rule and adopt a more liberal rule that would allow her to recover. You are a clerk for a judge on the State Supreme Court, and the judge has asked you to draft a memorandum analyzing the primary reasons for and against overturning the zone of danger rule.
NIED #3 mod 20
While drinking in a bar, Dan got into an argument with Andy, another patron who was sitting near him. When Andy insulted Dan, Dan grabbed a beer bottle and threw it at Andy. Andy ducked, and the bottle flew passed him and struck Bob, the bartender, in the head. Caroline, the owner of the bar who was standing a few feet away from Dan, ordered Dan to leave and moved towards him. Dan grabbed another bottle, broke off the end, and waved it in front of himself as he backed out of the bar toward the exit yelling at Caroline, "don't come any closer!" Dan is a client of your firm, and he provided the above information in an initial interview. Write a brief memo to the senior partner of the firm assessing Dan's liability for any intentional torts to Andy, Bob, and Caroline.
assault mod 5
While participating in a spinning class at Dave's Fitness Club, the handlebars on Patty Prince's spin bike dislodged from the bike, causing her to fall and suffer injuries. Prior to the accident, Patty had entered into an agreement with Dave's for membership. She signed and dated a "Waiver & Release Form," a standard pre-printed form drafted exclusively for Dave's, which provided as follows: You (each member, guest, and all participating family members) agree that if you engage in any physical exercise or activity, or use any club amenity on the premises or off premises including any sponsored club event, you do so entirely at your own risk. You agree that you are voluntarily participating in these activities and use of these facilities and premises and assume all risks of injury, illness, or death. We are also not responsible for any loss of your personal property. This waiver and release of liability includes, without limitation, all injuries which may occur as a result of, (a) your use of all amenities and equipment in the facility and your participation in any activity, class, program, personal training or instruction, (b) the sudden and unforeseen malfunctioning of any equipment, (c) our instruction, training, supervision, or dietary recommendations, and (d) your slipping and/or falling while in the club, or on the club premises, including adjacent sidewalks and parking areas. You acknowledge that you have carefully read this "waiver and release" and fully understand that it is a release of liability. You expressly agree to release and discharge the health club, and all affiliates, employees, agents, representatives, successors, or assigns, from any and all claims or causes of action and you agree to voluntarily give up or waive any right that you may otherwise have to bring a legal action against the club for personal injury or property damage. To the extent that statute or case law does not prohibit releases for negligence, this release is also for negligence on the part of the Club, its agents, and employees. By signing this release, I acknowledge that I understand its content and that this release cannot be modified orally. Any patron who declined to sign the waiver was not permitted to use Dave's Fitness Club. Patty's injury occurred at the club the day that she joined. After reading and signing the requisite paperwork to become a member, she went to participate in a spinning class. She advised the instructor of her inexperience and the instructor helped her to adjust the bike seat for height and showed her how to strap her feet to the pedals. The instructor then told Patty to watch and imitate her during the class. As the class began, the participants started out pedaling in a seated position. Shortly afterward, the instructor told the participants to change from a seated to a standing position on their bikes. When Patty rose to a standing position, the handlebars dislodged from the bike. As a result, Patty fell forward while her feet remained strapped to the pedals. With assistance, she succeeded in detaching herself from the bike. When she tried to resume participation after resting for fifteen minutes, she soon had to quit, finding herself in too much pain to continue. Patty's injuries included pain in her neck and shoulders, soreness in her thighs and back, a cracked tooth, and bruises on her legs. Several months after the accident, Patty suffers from chronic pain. Patty has retained your firm to represent her in a negligence action against Dave's Fitness Club. A preliminary investigation has revealed that Patty sustained her injuries as a result of the handlebar stem becoming dislodged from the locked position. The only way the handlebars could have become dislodged would be if the lock pin had not been engaged and, instead, the stem had been resting on the lock pin. When in that position, the stem would recede only one inch into the vertical support member, thus creating an unstable position for the handlebars. Therefore, when Patty raised herself from a seated position, and leaned forward and downward on the handlebars, the handlebars and post would separate from the frame. Before filing a complaint, the senior partner handling the case has asked you to draft a memo assessing whether the Waiver & Release Form that Patty signed would bar her from recovery.
assumption of risk #1 mod 22
Paula Peters was sixty-five years old when a doctor diagnosed her as having cancer. She initially sought the advice of conventional cancer specialists, each of whom advised her to undergo surgery to resect her tumor. Although, as doctors testified, early surgery would have given her a very good chance at recovery, she did not heed the doctors' advice, instead seeking first to explore noninvasive alternatives. Peters consulted with Dr. Donald Davis at the Institute of Applied Biology. Davis's treatments consist of urine monitoring, urinalyses and the ingestion of various mineral compounds that Dr. Davis claims retard and reduce the size of cancerous tumors. Davis told Peters at this meeting that he thought she would respond to his treatment and that he thought that he could cure her. Davis alerted her, however, that his medications were not FDA approved as safe and effective and that he could offer no guarantees. Despite being so informed, Peters entered Davis's care. Within a year, Peters's condition had deteriorated greatly and she died. Peters' husband sued Davis for negligence. You work for a firm representing Davis. Outline an argument for summary judgement based on secondary assumption of risk.
assumption of risk #2 mod 22
Paul Presser was struck in the face by a hockey puck while watching a hockey game at a rink owned by Davis Sports. The rink was enclosed with a dasher board three and one-half feet high with a three-foot section of plexiglass mounted above the boards at both ends. The plexiglass extended from the blue line on one side around the ends of the rink, behind the goals, to the blue line on the other side. There was no plexiglass on the sides of the rink between the blue lines. Bleachers for spectators were located all around the rink, and Presser was struck while seated in the bleachers on the side of the rink behind a section of the dasher boards that did not have the plexiglass above it. Presser filed suit against Davis for negligence. You represent Davis. Prepare an argument for a motion to dismiss based on primary assumption of risk.
assumption of risk #3 mod 22
George Field filed a claim for battery against the Philadelphia Electric Company. The complaint alleged the following facts. George Field was employed by Bartlett Nuclear, Inc. and hired as an independent contractor by the Philadelphia Electric Co. ("PECO") to work at its Peach Bottom Nuclear Plant as health physics technicians. Bartlett is a corporation that provides personnel to manage operational problems at utilities which own and operate nuclear power plants. On February 6, as a result of a plant shutdown, George Field was directed by PECO personnel to enter an off-gas pipe tunnel in unit three of Peach Bottom. He observed standing water on the floor of the tunnel and radioed to PECO personnel that he thought it unsafe to remain in the water. In response, he was ordered to test for radiation, which he did. After performing the tests, he returned from the tunnel and advised PECO personnel that the standing-water problem should not be resolved while the plant was being operated since it would be dangerous to work in the tunnel while the plant was operational. Despite these warnings from Field, who was trained and hired in the area of safety control and cleanup, on March 1, while Peach Bottom was operating, PECO ordered Field and other personnel into the tunnel to resolve the standing-water situation. While Field was in the tunnel, PECO personnel deliberately vented radioactive gases into the tunnel where they knew Field was working. This action was taken in order to keep the reactor operating. The highly radioactive steam triggered a survey meter, a device in Field's possession that measures radiation levels. Field's survey meter went off-scale in the tunnel. Field left the tunnel immediately. In the weeks following this incident, Field has suffered from symptoms of radiation sickness. PECO filed a demurrer to Field's claim, and the trial judge granted the demurrer. Field appeals from the trial judge's granting of PECO's demurrer. You are an appellate judge. How would you decide the appeal?
battery mod 2
Mr. Fatos is a new immigrant from small-town Eastern Europe. He obtained a job as a doorman at a fancy New York City apartment building shortly after his arrival, working the midnight to 8:00 a.m. shift. On his third night on the job, at 3 a.m., two men in trench coats and fedora hats come into the apartment building. They explain hurredly to Mr. Fatos that they are undercover police officers and that they need immediate access to the apartment of Mr. Big, a wealthy resident, for the investigation of a serious crime. They flash shiny badges at Mr. Fatos to reassure him. They demand the key which is in a special key drawer in the doorman's desk. Mr. Fatos buzzes Mr. Big's apartment, but there is no answer. The two men are insistent, and one threatens Mr. Fatos that failure to cooperate in a police investigation is a serious crime in America, for which one could be jailed or even deported. Somewhat intimidated, and not wanting any trouble, Mr. Fatos gives them the key. Mr. Big arrives home at 6:00 a.m. to find $100,000 of jewelry stolen. He sues the apartment building owners for the negligence of Mr. Fatos the doorman. At trial, the lawyer for the apartment building presents evidence that in Mr. Fatos's country of origin, disobedience to police orders regularly resulted in arrest, loss of one's job, and sometimes even disappearance. At the close of evidence, the defendant proposes a jury instruction that reads in part, "in evaluating the reasonableness of the defendant-doorman's behavior, you may take into account the fact that he was a recent immigrant from a foreign country in which circumstances and attitudes toward authority were considerably different than they are in the U.S." Mr. Big's lawyer objects. As a judge, would you accept the instruction? Discuss. Note: Assume that the building management was not negligent in hiring Mr. Fatos who had proper certification from the state to be a doorman following his completion of a course for security guards.
circumstances #1 mod 9
Penelope was severely injured while crossing the street when she was struck by a car driven by Denise. Denise had failed to brake in time after she saw Penelope step off the curb into the street. Penelope filed a negligence claim against Denise. At trial, Denise offered evidence that her failure to brake in time was caused by her anti-depression medication, Wowzack. Six months prior to the accident, Denise had sought medical treatment for severe depression. The doctor prescribed Wowzack and informed her that one side effect of the medication was that it would slow down her reaction time. Wowzack subsequently eliminated Denise's depression. At the close of evidence, Denise requested a jury instruction that read in part: You should find the defendant at fault if you determine that she failed to exercise the care of an ordinary prudent person being treated for depression with Wowzack. Penelope requested a different jury instruction that read in part: You should find the defendant at fault if you determine that she failed to exercise the care of an ordinary prudent person. As trial judge in the case, which of these two instructions would you accept? Discuss.
circumstances #2 mod 9
Cassandra and Warren Miller have come to you to determine whether they have a viable tort claim against Kingston County Hospital. The Millers own a funeral home and work together as morticians. In addition to providing private embalming and funeral services, the Millers are under contract with Kingston County Hospital to embalm and bury unidentified persons, usually homeless alcoholics, who die at the hospital. Several months ago, the Millers received a call from the hospital to pick up the body of a "John Doe" who had died after being brought into the emergency room unconscious. When Warren Miller picked up the body at the hospital morgue, hospital personnel told him to wear protective clothing when handling the body. Although he found this admonition a bit unusual, the notation of "heart failure" on the death certificate and toe tag tempered his concern that the deceased had died of a contagious disease. Because the hospital had performed an autopsy to determine the cause of death, the body was quite bloody. Prior to beginning the embalming process, the Millers donned protective gloves, masks, aprons, hats, and booties. During the embalming process, both the Millers were necessarily exposed to the blood, bodily fluids, and tissues of the corpse. Some thirty minutes into the procedure, Cassandra Miller discovered needle marks on the arm that indicated probable intravenous drug use. At this point, Warren relayed the hospital's unusual emphasis on protective clothing, and both Millers became concerned that the corpse might have been infected with the AIDS virus. The Millers finished the procedure in an abbreviated fashion, removed and discarded their protective garments, and washed with a strong disinfectant. One day later, the hospital called to inform the Millers that John Doe had been infected with the HIV virus. Since that day, the Millers have suffered greatly. Although both continue to test negatively for the HIV virus, the fear that they might have been infected with the virus has colored their lives and their relationship. Both have suffered from depression, extreme anxiety, and panic attacks. Their sexual relationship has been significantly impaired, and both have sought psychiatric help. The Millers point out that, had they known the full story, they would have insisted on cremating rather than embalming John Doe. Unfortunately, your jurisdiction generally does not allow recovery for the kinds of emotional harm the Millers have suffered absent some concurrent physical injury. The primary exception to this limitation is when the emotional harm occurs because of an intentional tort such as a battery. Hearing this, the Millers seek your opinion on whether they might successfully pursue a battery claim against Kingston County Hospital. How do you respond?
contact #1 mod 4
Dede Dunway is a high school student at Johnson High School, where Penelope Powelson is the principal. As a joke on April Fools' Day, Dede sent an envelope to Penelope filled with harmless white talcum powder. A letter, included in the envelope read: "This envelope is filled with Anthrax spores in powdered form. When you open it and breathe them in, you will die a horrible death." The letter was signed, "Students for a New Principal." Penelope received the letter, opened it, was covered in the white powder, and read the enclosed letter. Panicked, she fainted in her office and struck her head on the corner of the desk, suffering a severe concussion. The police launched an investigation. Frightened, Dede came forward to admit that she had sent the envelope to Penelope. Penelope sued Dede for battery, alleging these facts. Dede moved to dismiss the complaint, arguing that the powder was in fact quite harmless and that she never intended to harm Penelope. As trial judge in the case, how would you rule on Dede's motion to dismiss?
contact #2 mod 4
Deborah Denning is an elderly woman who lives alone with her dog Fido in a small house. One Sunday in February, she called her neighbor, Paul Peterson, to invite him over for coffee. Peterson, a single man in his 30s often visited Denning to "check up on her periodically and make sure she was okay," and, during his visits, he frequently performed odd jobs for her. On the day in question, Peterson came over for coffee. The two sat in Denning's kitchen for an hour drinking coffee and eating homemade cookies. As Peterson got up to leave, Denning asked him if he would be willing to bring in a heavy package on the front porch that had been delivered on Saturday but that was too heavy for Denning to lift. Peterson went out to get the package, picked it up, slipped on some ice in front of the doorway, fell, and seriously injured himself. As a result of the fall, Peterson is unable to work and may suffer long-term disability. It turns out that the ice on the front porch was frozen dog urine from Fido. In the cold winter months, instead of walking Fido, Denning often merely opens the door and has the dog relieve himself on the front porch. Denning remembers telling Peterson, when he went out to lift the package, "be careful, don't fall or hurt yourself." Peterson has hired an attorney and filed suit against Denning. An initial client interview and preliminary investigation has revealed the facts stated above. As the lawyer for Denning's homeowner's insurance company, write a brief memo outlining Denning's potential liability and your recommendation as to how to proceed with the case. Assume your jurisdiction relies on the Restatement Second of Torts rules governing the responsibility of possessors of land for the safety of entrants. How would your analysis change if the accident occurred in Georgia?
duties of landowners #1 mod 14
The presentation of the evidence has been completed in the case of Toth v. Livingston, a case tried to a jury in the superior court. The defendant has filed a motion for a directed verdict. There is little dispute as to the facts, and a fair summary of the evidence as it relates to liability is: The plaintiff, Allen Toth, was injured when he fell through a dock belonging to the defendant, Barry Livingston. The dock extends into Loon Lake from the defendant's property on Snake Island, where the defendant has a summer home. The plaintiff testified that at the time of the accident he was ten years old, and that he went onto the dock, without permission of the defendant, at about 8:30 p.m. on June 16, two and a half years ago, to fish from its end. The plaintiff was large for his age and when he got about 15 feet from the end, a plank gave way under his weight and he fell through and was injured. The defendant testified that he had built the dock 11 years before the accident. It extended into the lake about 45 feet and was 8 feet wide. The pine planks forming the top of the dock ran the width of the dock and were 9¾ inches wide and 1¾ inches thick. The broken plank was admitted into evidence. The plaintiff's expert testified that it had rotted from underneath in the area of two knots in the plank. The plank had become sufficiently dry so that the knots would contribute to the weakness caused by the rot. The expert also testified that an inspection of the underside of the dock in the spring before the accident, and probably the previous fall as well, would have revealed the deterioration of the plank. On cross-examination the expert testified that viewed from above the plank would have appeared normal. The defendant testified that he casually inspected the topside of the dock from time to time and that he had replaced two planks two or three years before the accident. He could not recall if he had made any inspection since then. He knew that he had not looked the dock over during the spring just prior to the accident. He had opened the house around the first of June and had moved his family to the lake the weekend before the accident. He testified that he did not know that this particular plank was in any way defective. He further testified that he was aware that youngsters used his dock for fishing from time to time, that he chased them off whenever this happened, and that he did not see the plaintiff go onto the dock on the evening of June 16. The plaintiff was spending the summer with his family at the lake and did not know that other people had been chased from the dock. Assume that your state follows the Restatement Second of Torts rules governing the responsibility of possessors of land for the safety of entrants. You are the attorney for the plaintiff. Outline an argument against the motion for directed verdict. If time permits, switch sides and argue in favor of the motion. Adapted from Problem 18 in Henderson, Kysar, and Pearson, The Torts Process, pp. 257-258.
duties of landowners #2 mod 14
You are a judge on the California Supreme Court. The case of Merrill v. Navegar has just come before you. The Merrill case arose out of a multiple shooting in an office building carried out by an assailant, Luigi Ferri, armed with two semi-automatic TEC-DC9 assault pistols. During the the shooting, Ferri killed eight people and wounded six others before killing himself. Representatives of those killed along with the survivors sued Navegar, the manufacturer of the TEC-DC9. The plaintiffs claimed that Navegar was negligent in marketing the TEC-DC9 to the general public. In support of this claim, they alleged that the TEC-DC9 was designed as a military-style assault weapon. They produced deposition testimony from a firearms expert that includes the following statements. The Tec-DC9 differs from conventional handguns in several ways. A large capacity detachable magazine, "designed to deliver maximum firepower by storing the largest number of cartridges in the smallest. ..space," provides a level of firepower "associated with military or police, not civilian, shooting requirements." The TEC-DC9 has a "barrel shroud," also peculiar to military weapons, which disperses the heat generated by the rapid firing of numerous rounds of ammunition and allows the user to grasp the barrel and hold the weapon with two hands, which facilitates spray-firing. The barrel is threaded, allowing the attachment of silencers and flash suppressors, which are restricted under federal law ... and are primarily of interest to criminals. ...The weapon comes with a "sling swivel" that permits it to be hung from a shoulder harness, known as a "combat sling," when firing rapidly from the hip. The sling device also "permits the rapid firing of two weapons simultaneously. ... The relatively compact size of the TEC-DC9 allows a shooter to transport maximum firepower with relative ease, and with far greater concealability than any other weapon having similar firepower." The TEC-DC9 is also compatible with the "Hell- Fire" trigger system, which, when properly installed, permits the weapon to be fired virtually at full automatic rate—300 to 500 rounds per minute. The expert further stated that the TEC-DC9 is "completely useless" for hunting, target shooting or self-defense, concluding that weapons like the TEC-DC9 "were designed for rapid fire, close quarter shooting at human beings." The plaintiffs further alleged that Navegar deliberately targeted the marketing of the TEC-DC9 to persons with a high risk of criminal misuse. They produced deposition testimony from a former Navegar sales and marketing director who stated that the "target market" for the TEC-DC9 was "militaristic people," including the "survivalist community," and individuals who "play military." The plaintiffs cited advertisements for the TEC-DC9 that emphasized the "paramilitary" appearance of the weapon and promotional materials aimed at dealers boasting that the TEC-DC9 was as "tough as your toughest customer," and pointing out that its special surface finish provided "excellent resistance to fingerprints." In addition, the plaintiffs pointed out that the California Assault Weapons Control Act (AWCA) of 1989 specifically prohibited the advertising and sale of the TEC-9, an earlier and substantially similar version of the TEC-DC9. Indeed, the TEC-DC9 was designed with modifications to overcome a ban on the TEC-9 in Washington D. C. In response, the defendant, Navegar, pointed out that Ferris purchased the TEC-DC9s in Nevada, where the weapon is legal, and that the plaintiffs could not prove that any of the company's ads or promotional materials influenced Ferri's actions. Prior to trial, Navegar moved for summary judgment, arguing that it owed the plaintiffs no duty to refrain from legally marketing and selling the TEC-DC9 outside of California. The trial court granted Navegar's motion, holding that a gun manufacturer owes no duty to refrain from legally marketing and selling weapons merely because of the potential for misuse by a third party. The appellate division reversed, holding that Navegar owed the plaintiffs a duty to limit marketing and sale of the TEC-DC9 to the military and law enforcement. Following oral arguments in the Supreme Court, four views have emerged among your fellow judges. 1. The appellate division should be reversed, and the summary judgment affirmed because Navegar owed the plaintiffs no duty to refrain from legally marketing and selling the TEC-DC9 outside of California. 2. The appellate division should be affirmed, the summary judgment vacated, and the case sent back for trial since Navegar owed the plaintiffs a duty to limit the marketing and sale of the TEC-DC9 to the military and law enforcement. 3. The appellate division should be affirmed, the summary judgment vacated, and the case sent back for trial since Navegar owed the plaintiffs a duty to use reasonable care to protect them from criminal misuse of the weapon. 4. The appellate division should be affirmed, the summary judgment vacated, and the case sent back for trial since Navegar owed the plaintiff a duty to exercise reasonable care in the marketing and sale of its products. Explain the different implications of each view. With which one do you agree? Why?
duty and breach #1 mod 16
Paula Peters bought a general admission ticket for a rock concert at Dudley's Café. On the night of the concert, she showed up outside Dudley's a half hour early to get a good seat. She stood in a crowd of people waiting to get in. Dudley's did not station security guards outside the Café. An hour later, a half hour after the concert was scheduled to begin, Dudley's had still not opened its doors, and the crowd began to become unruly. When Dudley's finally did open its doors, pushing and fighting broke out as people in the crowd surged forward to try to be the first into Dudley's to get good seats. Paula fell, and was trampled in the confusion, suffering severe injuries. She sued the Dudley's for negligence, alleging that it should have posted security guards on the sidewalk outside of Dudley's to keep order and control the crowd. Dudley's moved to dismiss the Paula's claim, arguing that it owed Paula no duty to post guards on the sidewalk. As trial judge, how would you rule on the motion? Discuss.
duty and breach #2 mod 16
Lemon, Inc., provides electric scooters available to the public in Anytown. Last week, Patrick tripped over a Lemon scooter that was left lying on the sidewalk just outside the entrance to the building where he works, as a result of which he suffered serious injury, including a concussion and a broken shoulder. He filed a negligence suit against Lemon. In response, Lemon filed a motion to dismiss, arguing that it owed Patrick no duty of care. You are trial judge in the case. How would you rule on the motion to dismiss? Justify your ruling using the duty factors in the Rowland case.
duty factors mod 14
Paula is a third-year medical student at Dempsey Medical School which is part of Dempsey Medical Center. To get back and forth to the medical school from her home, Paula takes the city bus. The bus stop is on the public sidewalk right in front of the medical school. Paula is often required to work late at the medical center as part of her clinical training, and she often takes the bus home after midnight. One night at 2:00 a.m., after finishing her work at the clinic, while waiting alone at the bus stop in front of the medical school, Paula was attacked and seriously injured. Paula sued Dempsey Medical School for negligence, alleging that the school's failure to properly illuminate the bus stop or to place a security guard on duty at night in front of the building left her vulnerable to attack. Dempsey filed a motion to dismiss, arguing that it owed Paula no duty to protect her from the attacker in this case. If your last name begins with A-L, make an argument on behalf of Dempsey's motion to dismiss. If your last name begins with M-Z, make an argument on behalf of Paula against the motion.
duty to render assistance #1 mod 15
Yesterday, you received a telephone call from Elizabeth Green, one of your clients. Green runs Insu-Screen Associates, a company that conducts medical exams on individuals applying for life insurance offered by commercial insurance companies. Upon the request of an insurer, Insu-Screen conducts a full medical exam on applicants for insurance. These exams include a lengthy physical exam, comprehensive blood tests and a detailed medical and family history. Some insurance companies pay Insu-Screen for the testing; others require the applicant to cover the costs of the screening exam. Green is concerned because Insu-Screen is now finding that a small but growing number of applicants are testing positively for Zika—a virus that poses relatively mild health risks to affected individuals, but that can cause severe birth defects to the unborn children of pregnant women. Although mosquitoes are the primary transmitters of Zika, scientists have discovered that Zika also can be passed between sexual partners. In addition, an individual infected with Zika can transmit the virus to mosquitoes by being bitten, thereby expanding the virus's range of impact if, for instance, the individual has traveled from a Zika outbreak area to a previously unaffected area. Under current company policy, Insu-Screen does not inform prospective insurance applicants of the outcome of the tests that it runs. Applicants are provided with a written form which indicates that the results of the medical exam are confidential and are the property of the insurance company seeking the test. She notes that most insurers, confronted with a problematic medical report, simply deny the application for life insurance without informing the applicant of the reasons for the denial. Green is particularly concerned about the legal implications of her company's nondisclosure policy. She notes that such individuals, if female and uninformed of their Zika-positive status, may become pregnant or fail to seek early medical attention if they already are pregnant. Moreover, such individuals may continue to engage in sexual practices that expose others to Zika infection, including perhaps women who are pregnant or about to become pregnant. Indeed, because of the detailed family histories that constitute part of Insu-Screen's medical exam, Green notes that it is often possible to identify by name the third parties—typically spouses—that are at risk of being infected by the applicant. Even absent such specifically identifiable at-risk third parties, Green is worried that failure to inform Zika-positive individuals contributes to a public health disaster by possibly allowing the virus to continue to spread its range. Green has asked your advice concerning the outlines of an appropriate disclosure policy. Must she inform insurance applicants when they test positive for Zika? Must she inform known sexual partners of those individuals? Problem 21 in Henderson, Kysar, and Pearson, The Torts Process, pp. 288-289.
duty to render assistance #2 mod 15
Don and Pamela live in Albany. Don invited Pamela to join him on a weekend trip to his cabin in the Adirondack mountains three hours' drive north of Albany. Pamela declined, saying that she wanted to spend the weekend with her family in Saratoga Springs, about a half‑hour drive north of Albany. Don offered to drive Pamela to Saratoga Springs on the way to the Adirondacks, and she accepted. On the way to Saratoga Springs, Pamela fell asleep in the car. Instead of stopping in Saratoga Springs to let her out, Don kept driving to the Adirondacks. Pamela remained asleep during the trip. When they arrived at the cabin in the Adirondacks, Pamela woke up and was very distressed to learn that Don had driven her past Saratoga Springs to the cabin. She demanded that he drive her back, and he refused, instead instructing her where she could catch a bus traveling south. After walking to the bus stop, waiting several hours for the bus, and changing buses several times, she finally arrived in Saratoga Springs 20 hours later. She comes to you for legal advice. Outline the strongest case for false imprisonment that you could make based on these facts.
false imprisonment mod 5
Irwin was a regular patron of Dan's Bar. One night, Irwin arrived at the bar at 8:00 p.m. to pass the evening drinking and chatting with the bartender. At around 10:00 p.m., Irwin appeared visibly intoxicated and the bartender suggested that he stop drinking. Irwin requested "one more for the road, before I drive home," and the bartender filled his glass with scotch. Irwin finished his drink, paid the bartender and left. He got into his car and drove out of the parking lot. On his way home, he drove his car onto the sidewalk, killing Patricia, a teenage girl walking home from a friend's house. Patricia's parents sue Dan's Bar, alleging negligence on the part of the bartender (for which the bar, as his employer, is responsible under the doctrine of respondeat superior). At the close of evidence, Dan's Bar moves for a directed verdict, arguing that the bartender's conduct was not a proximate cause of Patricia's death because Irwin's conduct was a superseding cause. You are the trial judge in the case. How would you rule on the motion? Discuss.
in class exercise on intervening cause #1 mod 19
Federal law requires that those regularly in the business of selling guns obtain a federal firearms license, conduct background checks on all buyers, and restrict out-of-state sales to other federal firearms licensees In addition, the law requires that all guns carry a serial number on the frame or receiver of the gun in order to assist law enforcement in tracing the sales and ownership history of the gun if used in a crime. One strategy for evading these regulations is to sell guns disassembled in the form of parts kits, since the regulations apply to firearms but not to firearm parts. Dave's Survival Equipment (DSE), Inc. manufactures and sells semi-automatic pistols in the form of mail-order parts kits. While the statutory definition of a firearm includes "any combination of parts from which a firearm . . . can be assembled," DSE's gun kits include all the necessary parts except the frame. The kits do, however, include sheet-metal flats that, when folded, are designed to serve as frames. DSE sells its guns to out-of-state purchasers who are not federal firearms licensees, it takes phone orders, provides postal delivery, gives discounts for bulk purchases, makes no request for any information other than that required for payment and shipping, and fails to keep any sales records. Furthermore, DSE avoids having to place serial numbers on its guns since the unmarked sheet- metal flats do not constitute frames until folded. DSE did not conduct federally mandated background checks on the purchasers of firearms since it sold firearms parts, not firearms. A DSE semi-automatic pistol was used recently in a drive-by shooting by a gang member in Newburg, New York, resulting in the death of six-year-old Penny Peters, who was playing on the sidewalk outside her home. The police investigation revealed that the gun was purchased by phone order by a regular supplier of guns to gangs in New York State and then resold to the gang member who used the weapon. Paul Peters, Penny's father, filed a negligence lawsuit against DSE. At the close of evidence, DSE moved for a directed verdict, arguing that the criminal misuse of its semi-automatic pistol was a superseding cause that relieves DSE of liability for any possible negligence in the sale of the parts kit. You are the trial judge in the case. How would you rule on the motion? Discuss.
in class exercise on intervening causes #2 mod 19
Supervisor negligently failed to erect a barricade in the street at a work site where he was supervising a crew of workers installing a gas main. The usual and accepted method of safeguarding workers is to erect a barrier around the excavation, consisting of a truck, a piece of heavy equipment, or a pile of dirt, which would keep a car out of the excavation and protect workers from oncoming traffic. The barrier should cover the entire width of the excavation. Driver, who had negligently failed to take his epilepsy medication, suffered an epileptic seizure and careened through the excavation site, crashing though the lightweight wooden sawhorse placed there by Supervisor. Worker, a subcontractor's employee who was in the work area, was hit by the car and suffered serious injuries. Worker sued Supervisor for negligence. At the close of evidence, Supervisor moved for a directed verdict, arguing that Driver's negligence in failing to take his medication was a superseding cause of Worker's injuries, thereby insulating Supervisor from liability. You are the trial judge in the case. How would you rule on the motion? Discuss.
in class exercise on intervening causes #3 mod 19
Wilderness Homes Construction Company builds homes in the north Georgia mountains. Recently, the Georgia Department of Natural Resources issued a fire alert prohibiting the lighting of any fire outdoors in the north Georgia mountains. A Wilderness employee lit a fire at a construction site in the woods, and negligently left it burning at the end of the workday. A strong wind carried sparks from the fire to some trees, which caused a forest fire. Within an hour, Hiker, who was camping a quarter mile from the construction site was burned by flames. Within six hours, the fire spread and destroyed ten homes in Smalltown, which is located ten miles from the construction site. Due to severe drought conditions, the fire spread to 15,000 acres over the next week, which created a great deal of smoke. Strong winds blew the smoke 70 miles south to the city of Atlanta. The Georgia Department of Natural Resources declared the resulting air quality in Atlanta to be "Unhealthy" during four days, during which fifty individuals were admitted to hospitals for severe asthma, triggered by the smoke. Five of those individuals died as a result. You are an attorney in an insurance company that provides liability insurance to Wilderness. How is a court likely to treat the issue of proximate cause in potential tort claims against Wilderness brought by Hiker, Smalltown homeowners whose homes were destroyed, and Atlanta residents who suffered asthma-related illnesses caused by smoke from the fire?
in-class exercise on prox cause mod 18
Paula, a college sophomore, attended a fraternity party. At the party there were two bowls of punch, one of which was labeled "alcoholic" and the other of which was labeled "non-alcoholic." At one point during the party, David, a member of the fraternity, poured several bottles of vodka into the bowl labeled "non-alcoholic." No one observed him do this. Several minutes later, Paula, thirsty from dancing, served herself two drinks from this punch bowl. Not realizing that the punch had been spiked with vodka, she drank rapidly. Feeling dizzy from the alcohol, Paula tried to walk outside to get some air and tripped down the front steps of the fraternity house, breaking her hip and shoulder. After she found out what had happened, Paula sued David for battery. At trial, David testified that he had spiked the punch in order to play a practical joke, but that he didn't intend to injure anyone. He also testified that at the time he spiked the punch, he did not know Paula, had not seen her at the party, and therefore could not have intended for her to fall down the stairs. At the close of evidence, David moves for a directed verdict. As the trial judge in this case, would you grant David's motion? Discuss.
intent #1 mod 3
You are an appellate judge. The case of Villa v. Derouen has come before you on appeal.[1] The case arises out of an accident which occurred at M.A. Patout & Sons, Iberia Parish, Louisiana. The evidence is undisputed that Villa sustained burns to his crotch area and that these burns were caused by the actions of his co-employee, Michael Derouen. At the time of the accident, Villa was welding with a welding torch or welding whip. Derouen was standing to his left, using a cutting torch. Derouen turned toward Villa and discharged his torch. Under cross-examination, Derouen responded affirmatively when asked if he placed the torch between Villa's legs and also responded affirmatively when asked if he intended to spray Villa between the legs with oxygen when he placed the torch between Villa's legs. On direct examination, in response to questioning by his own attorney, Derouen qualified his previous answers, as follows: Mr. Lambert: ... you did not have it in close proximity to his crotch? Mr. Derouen: No. Mr. Lambert: In fact, you did not even have it inside his body? Mr. Derouen: No. *** Mr. Lambert: When you squirted that, did you intend that that air actually cause him any pain, even minor pain? Mr. Derouen: No. Mr. Lambert: Did you intend that he even feel anything from the little bit of air? Mr. Derouen: No. Mr. Lambert: Why did you do it? What was your intention of doing that? Mr. Derouen: To get his attention. Troy Mitchell, a co-employee, testified that a few minutes before the accident, he saw Derouen take his torch and blow pressurized oxygen behind Villa's neck into Villa's lowered face shield while Villa was welding. Mitchell testified that he told Derouen not to do that because it could ignite. Mitchell additionally testified that he thought Villa had also told Derouen to stop fooling around. Only a few minutes later, the accident which resulted in Villa's burns occurred. Mitchell did not witness the accident because his welding hood was down at the time. Marty Frederick, a co-employee of Villa's, and Lambert Buteau, their supervisor, both testified that although they did not witness the incident, and could not remember Derouen's exact words after the incident, both understood that Derouen, in relating what had happened, was playing around with the cutting torch and "goosing" or trying to scare Villa at the time of the accident. Derouen testified that he sprayed pressurized oxygen near plaintiff's face prior to the accident. Villa testified that he felt the oxygen that Derouen blew on his face or head, heard Troy Mitchell telling Derouen to stop because Villa could be hurt, and made a remark himself to Derouen about it. Villa testified that, a few minutes later as he was welding with his face covered by his welding hood, he felt something blowing between his legs. He held still for a second, so as to not interrupt his welding, until he felt the pain in his groin area. He stated that, "I just grabbed with both of my hands. When I grabbed, it was a torch." He continued by stating, "I grabbed in my private area where I feel the fire, and right there was the torch. I pushed it like that. It was Michael Derouen with the torch in his hand." The fact that Villa reached down to his groin at the time of the injury, and either grabbed the torch or pushed it away, was undisputed at trial. It was also undisputed that, at the time of the accident, Villa was crouched welding with his welding hood down. The evidence revealed that while he was welding, due to the noise caused by the welding, Villa would not have heard Derouen's torch aimed in his direction. At the close of evidence, the plaintiff moved for a directed verdict, which was denied by the trial judge. The jury returned a verdict in favor of the defendant, and the plaintiff now appeals the trial court's denial of his motion for directed verdict. How would you rule on the plaintiff's appeal? Discuss. NOTE: If the plaintiff cannot recover for an intentional battery in this case, the extent of his recovery will be greatly limited by the state's workers' compensation law. [1] This exercise is adapted from Villa v. Derouen, 614 So.2d 714 (La. App., 1993).
intent #2 mod 3
Cutting Edge Films produces a move called How to be a Hit Man: Getting Away with Murder, in which the main character provides detailed instructions on various techniques for killing and concealing evidence. Irene watched the film several times and murdered a neighbor using one of the techniques detailed in the movie. The survivors of the murder victim sue Cutting Edge Films for negligence. Cutting Edge Films moves to dismiss the complaint, arguing that it owed no duty to the plaintiffs to exercise reasonable care in the making or publication of the movie. You are the trial judge in the case. Leaving aside the question of how the First Amendment might protect the publication of this movie, how would you rule on the issue of duty raised by the motion to dismiss?
no self A
Snapchat is a smartphone app that allows users to send photos to other users of the app. Snapchat includes a feature called a "speed filter," that records the speed of the user at the time a photo is taken. While driving at 107 miles per hour on the highway, Isaac took a selfie of himself using Snapchat's speed filter. As he took the selfie, he took his eyes off the road and collided with a disabled car on the shoulder of the road, seriously injuring the occupants. The injury victims sued Snapchat for negligence. Snapchat moves to dismiss the complaint, arguing that it owned the plaintiffs no duty of care. As trial judge in the case, how would you rule on the motion to dismiss?
no self A
Pasquale was injured while driving at night along the highway. His car struck two Black Angus cows that had wandered onto the highway. One cow was owned by Albert and the other by Bonnie. A police report indicates that Pasquale was driving carefully and that both cows had escaped from the same cow pen at a local county fair. The report also indicates that either Albert or Bonnie left the gate to the pen open, but it cannot be determined which one did so. Under the county fair policies, all owners are responsible for closing the gate after taking care of their cows. Both Albert and Bonnie deny having left the gate open, and there is no way to prove which one did it. Can Pasquale assert liability against both defendants based upon the theory of alternative liability? Discuss
no self assessment
Patient suffered severe injuries due to negligent medical care for a routine procedure that was improperly done and resulted in a subsequent infection. Patient sued several hospital personnel and obtained a jury verdict for $100,000. The judgment declared the defendants joint and severally liable. The jury apportioned liability as follows. Primary Care Physician: 10% Surgeon: 40% Nurse Manager: 10% Nurse Practitioner: 5% Anesthetist: 30% Nurse: 5% Prior to the verdict, Patient settled with Primary Care Physician for $15,000. Following final judgment, Patient collected $60,000 from Surgeon and $25,000 from Nurse Manager. Assume that the Uniform Right to Contribution Among Tortfeasors Act is the law in the jurisdiction. 1. How much can Surgeon recover from other defendants under the act? From whom can Surgeon recover? 2. How much can Nurse Manager recover from other defendants under the act? From whom can Nurse Manager recover? 3. How would the plaintiff's and the defendants' rights change if Georgia Code Title 51 is the law in the jurisdiction?
no self assessment
Patty was recently diagnosed with a rare form of breast cancer associated with exposure to Bisphnol-A (BPA), an industrial chemical used in polycarbonate plastic bottles, especially baby formula bottles, food storage containers, and sports bottles, from 1957 until recently, when it was banned in baby formula bottles and discontinued by the manufacturers of food containers and sports bottles. Patty filed a lawsuit against six BPA manufacturers who supplied the chemical to bottle manufacturers throughout the United States between 1957 and 2015, alleging that they knew of the dangers of BPA migration from the bottles into the human body and that they negligently failed to warn consumers of the cancer risk associated with BPA. Although her complaint includes allegations of general causation (i.e. that BPA causes the form of cancer that she has), she is unable to identify the specific sources of the BPA that she alleges caused her cancer. Consequently, her claim relies on market share liability. The six BPA manufacturers have moved to dismiss her claim, arguing that market share liability does not apply to BPA manufacturers. The trial judge dismissed the claim, holding that market share liability has never been applied in the jurisdiction except in cases involving DES. Patty appealed the dismissal of her claim. As an appellate judge in the case, how would you rule on Patty's appeal? Discuss.
no self assessment
Penelope was severely injured when her car was struck in an intersection by an ambulance driven by Denise. At the time of the accident, Denise was transporting a patient suffering from acute heart failure to a local hospital. Penelope had entered the intersection when the traffic signal turned green. Denise entered the intersection simultaneously, running a red light while traveling 45 miles per hour, and struck Penelope's car. Penelope filed a negligence suit against Denise, alleging the foregoing facts and that, at the time of the accident, Denise was driving without the ambulance's flashing lights or siren. Denise moved to dismiss the complaint, arguing that her failure to turn on the flashing lights or siren was not a cause in fact of Penelope's injuries. As the trial judge in the case, how would you rule on Denise's motion to dismiss? Discuss.
no self assessment
Peter was injured when his girlfriend, Delores, backed over him with her pickup truck. At the time of the accident, Peter was squatting behind the pickup truck listening to music through headphones with his back to the truck. Peter and Delores had traveled in the truck to the house of one of Delores's friends. They parked in the friend's driveway. Delores entered the friend's house to visit, while Peter stayed behind in the truck. When Delores failed to come out of the house after 20 minutes, Peter decided not to wait in the truck, which was parked in the bright summer sun. Instead, he squatted behind the truck, which provided the only available shade, and he listened to music on his headphones while he waited for Delores to emerge. Delores exited the home 20 minutes later, saw the truck empty and assumed that Peter had walked home, since he lived only a ¼ mile away. She started the truck and backed up to pull out of the driveway, striking Peter and causing him severe injuries. Peter filed a negligence suit against Delores. Peter's complaint alleged that Delores failed to look in the rearview mirror or side mirrors before backing up, and she confirmed this in a deposition during discovery. Delores filed a motion for summary judgment, arguing that her negligence was not a cause in fact of Peter's injury. As trial judge in the case, how would you rule on Delores's motion for summary judgment? Discuss.
no self assessment
Recent flooding caused the manure lagoons of four concentrated animal feeding operations (CAFOs) to overflow, contaminating a local creek that provided irrigation water to Sunny View Farms. Health department authorities found that the contaminated creek water had infiltrated Sunny View Farms' lettuce fields. Sunny View Farms destroyed the crops and sued all four CAFOs, owned by Able, Baker, Carter, and Davis. At trial, each of the CAFO owners offered undisputed testimony that they contributed only a fraction—much less than half—of the total overflow and that, but for the overflow of their individual manure lagoon, the overflow from any one of the other lagoons would have been more than enough to contaminate the local creek. The trial judge directed verdicts against Sunny View Farms for failure to present sufficient evidence of cause-in-fact. As the attorney for Sunny View Farms, how would you argue on appeal that the trial judge erred in granting directed verdicts in favor of the CAFOs?
no self assessment
A Mr. Pike came to your law office yesterday. You and a senior partner interviewed him and collected the following information. Mr. Pike lives in a suburban neighborhood populated by many families with children. Several weeks ago, in July, a Happy Clown ice cream truck passed through the neighborhood selling ice cream to neighborhood children. The Happy Clown truck comes through the neighborhood every afternoon in the summer months when school is out. The truck is equipped with speakers which play the Happy Clown ice cream jingle, well known among the neighborhood residents. The truck driver also sounds his horn, which makes a Happy Clown laugh, another signal to residents that the ice cream truck has arrived in the neighborhood. On the day in question, the Happy Clown ice cream truck stopped across the street from Mr. Pike's house. His seven-year-old son, Tommy, signaled to the driver that he wished to purchase an ice cream cone. Tommy ran into the house, retrieved some money with which to purchase an ice cream cone and ran across the street without looking. While crossing the street, Tommy was struck by a car driving past the stationary ice cream truck. Tommy sustained serious injuries. Mr. Pike would like to sue the Happy Clown ice cream company to recover for Tommy's injuries. The senior partner wants you to draft a memorandum outlining possible theories of negligence that could serve as the basis for a lawsuit against the Happy Clown ice cream company. Be sure to indicate if there is any further factual information that would be helpful in developing the case.
reasonable care no self A
Polly chartered a small airplane with Dove Airways to fly her from Athens to Greensboro. En route, both engines on the plane failed, and the plane crashed, killing Polly and the pilot. Upon impact with the ground, the plane exploded, and a subsequent investigation was unable to determine the cause of the engine failure. Polly's survivors filed a lawsuit against Dove alleging negligence. At trial, the plaintiffs introduced evidence that Dove did all the maintenance on its airplanes but that it did not keep written maintenance records. The plaintiffs have requested that the jury be instructed on the doctrine of res ipsa loquitur. The defendants have objected to the application of res ipsa loquitur to the case. As trial judge in the case, would you accept the plaintiffs' request for a res ipsa loquitur instruction?
res ipsa #1 mod 12
While shopping in Dave's Depot, a giant retail store that sells construction products and housewares, Peter was struck on the head by a heavy bag and suffered severe injuries. Peter was shopping for bird seed in the garden department and was struck by a 15-pound bag of bird seed that fell off a high shelf above him. Peter sued Dave's for negligence, and at trial he requested a res ipsa loquitur instruction. The trial judge rejected Peter's request, and a jury rendered a verdict in favor of Dave's. Peter appealed the trial judge's refusal to provide a res ipsa loquitur instruction. You are Peter's lawyer. Draft a brief memorandum arguing that the trial judge erred in not granting the res ipsa loquitur instruction.
res ipsa #2 mod 12
You have just received the following memorandum from a senior partner in your firm: Earlier this summer, Vernon Peeler retained our law firm to represent him in his suit against PetroTex, a major oil company. Mr. Peeler has alleged that Jeff Sorvino, an operator of one of PetroTex's many service stations, negligently injured him in an accident last year. At this point I am satisfied that Sorvino was both negligent and acting within the scope of his employment. However, I am concerned that the court in our jurisdiction may find that Sorvino is an independent contractor. I would like you to develop any policy and legal arguments that may support the contention that Mr. Sorvino is a servant, and to assess the evidence gathered at this point to see if there is enough here to get to the jury on this issue. I will be relying heavily on your conclusions when I decide whether to proceed any further. I will return to the office early next week. Please be prepared to discuss the case when I return. Although pretrial discovery has not yet been completed, your preliminary investigations have revealed the following facts: Sorvino leased the premises from PetroTex, agreeing to pay $900 a month plus a percentage of the receipts from gasoline sold at the station. Sorvino paid all expenses of the operation; paid cash for all oil products purchased from PetroTex; sold those products at any price he determined; could hire and fire all employees; could sell his products on credit; and stood to gain or lose according to the profits or losses from the business. PetroTex had responsibility for making certain the building was properly maintained, and its representatives conducted inspections of the premises. Sorvino was encouraged to wear PetroTex uniforms and to identify with PetroTex products. The only pumps at the station bore the PetroTex trademark, and the sale of any products not bearing the PetroTex trademark was forbidden. The manner and nature of the delivery of PetroTex products to Sorvino was under PetroTex control, and it was customary for Sorvino to buy all items for sale from PetroTex. PetroTex had established criteria for obtaining operators for its stations; and the operators, including Sorvino, attended a school operated by PetroTex where they received instructions on marketing, operations, and safety. The accident in which Peeler was injured occurred at the service station operated by Sorvino. Peeler was helping Sorvino by pouring gasoline into the carburetor of a car Sorvino was trying to start. The car backfired, a flash fire broke out, and Peeler was badly burned. Since the accident, we have also learned that Sorvino and his operating company have filed for bankruptcy. Assume for the purposes of your assessment that the supreme court of your state generally follows the principles in Restatement (Second) Agency §§220, 228, and 229. Adapted from Problem 13 in Henderson, Kysar, and Pearson, The Torts Process (9th ed.), pp. 169-170.
respondeat superior #1 mod 21
Lemon, Inc. provides electric scooters that riders in the city of Metro can rent using a phone app. Elmer, a Metro resident, spends eight hours every day locating Lemon scooters with low batteries, transporting them in his van to his home to charge them, and putting them back on the street fully charged. He locates the scooters using a phone app provided by Lemon, which pays him between $5 and $15 per scooter, depending on the location of the scooter and how quickly Elmer returns it charged to the street. Lemon provided Elmer a hat with a company logo on it as a bonus for charging over 1000 scooters. Elmer wears the hat while he collects the scooters. Last year, Metro passed an ordinance requiring that all electric scooters not in use be placed in designated scooter parking areas marked by the city with pavement lines and signs. Most scooter chargers (called "juicers") return charged scooters to these designated areas. At the end of a day, Elmer discovered a charged Lemon scooter in the back of his van that he had forgotten to drop off in a designated area. In a rush to get home, he took it out of the van and deposited it upright on a sidewalk in the middle of a block. A few hours later, Peter, an elderly pedestrian with a walker, encountered this scooter on its side and blocking the sidewalk where Elmer had left it. Peter stepped off the curb into the street to walk around the scooter and was struck by a passing motorist who did not see him in the dark. Peter suffered severe injuries. Peter has approached your law firm to represent him in a possible tort claim against Lemon. The senior partner believes that there is insufficient evidence to prove that Lemon was itself negligent, so she has decided to pursue a claim based on vicarious liability. She has asked you to draft a memo outlining the strongest argument that respondeat superior applies to this case. Assume that your jurisdiction follows Restatement (Second) Agency §§220, 228, and 229.
respondeat superior #2 mod 21
Donald Dodge has come to you for legal advice. Dodge is seventy-five and lives in Wiota, Iowa, a small farming town. He tells you the following story. Three months ago, Dodge travelled to New York City on vacation, his first visit to the East Coast. During his visit, he went to see a Broadway show. After the show, he took the subway to get back to the budget hotel in Queens where he was staying. At some point during the subway ride, he found himself alone in the subway car. A few stops later, two teenage boys entered the car, Pablo Ponce and Peter Prager. The train doors closed and the train pulled out of the station. The two boys approached Dodge. Ponce asked Dodge in an aggressive tone of voice if he could "borrow fifty bucks." Prager stood a few feet behind Ponce and slowly pulled some type of shiny metal tool out of his pocket. Dodge pulled out a handgun and fired it eight times until the bullet magazine was empty. His memory about what exactly happened after he pulled out the gun is not clear. The next thing that he remembers is seeing the two boys lying on the floor of the subway car. He started yelling for help and, at the next stop, the train conductor came to the scene, followed shortly thereafter by the police. Police records show that Ponce was struck in the chest with one bullet and suffered serious injuries and that Prager was struck three times in the back, resulting in paralysis. Ponce told the police that he "was only joking around with the old man," and Prager said he was minding his own business scratching his name into the subway car with a blunt scraping tool. Prager said he started to run when Dodge pulled out the gun and was shot in the back while trying to escape. Ponce and Prager have both filed claims against Dodge for battery. Dodge wants to know if you think that there is any way he can avoid liability for one or both claims.
self defense mod 7
Davis Medical Labs conducts psychological research using cats. It subjects the cats to a high level of stress and then measures the impact of that stress on the cats' immunity to various diseases. As a result of a burglary at the lab, a cat escaped. It crawled into the neighboring office of a travel agency and bit Peter, a travel agent, at his desk, causing serious injury to Peter. Peter has retained your law firm to represent him. Evaluate the applicability of strict liability to Peter's case.
strict liability #1 mod 23
Patrick and Dorothy Langan, plaintiffs, own a small farm in the Yakima Valley. The Langans are organic farmers: that is, they use no nonorganic fertilizers, insecticides or herbicides to aid them in their farming but rely on natural fertilizers and natural pest control agents. They had planned to can and sell their produce to organic food buyers. Valicopters, Inc., defendant, is a Washington corporation which engages in the aerial application of agricultural pesticides. Gene Bepple, one of the owners of Valicopters, Inc., was the helicopter pilot at the time of the incident giving rise to this lawsuit. The Thalheimers, doing business as Thalheimer Farms, owned and farmed the land adjoining that of the respondents. It was their land that was being sprayed by Valicopters. Simplot Soilbuilders sold the agricultural chemical to Thalheimers for aerial application. Bepple sprayed for Colorado beetle infestation on the Thalheimer farm with a chemical pesticide known as Thiodan. A small patch of the farm was sprayed with the chemical Guthion. While applying the pesticide to Thalheimers' property, Bepple traveled approximately 45 miles per hour while 6 to 8 feet off the ground with a 42-foot application boom extending from the sides of the helicopter. Patrick Langan testified that, during one spraying pass, the helicopter began spraying while it was over his property. This testimony was disputed. He further testified that the spray settled on the entire length of their tomato, bean, garlic, cucumber and Jerusalem artichoke rows. The Langans and other organic farmers founded and are members of the Northwest Organic Food Producers' Association (NOFPA). The bylaws of NOFPA contain the following pertinent provisions: 7. No poisonous insecticides, repellents, herbicides, artificial fertilizers, stimulants or hormones may be used on food or in soil in which products are grown or animals are grazed. If any such item is applied by the grower to any committed acreage that has been previously committed and certified, the acreage will be withdrawn from certification and this farmer cannot be recertified without approval of the Executive Committee. 9. No member shall be allowed to market foods or advertise food as certified organically grown by NOFPA if laboratory tests on the finished crop indicate the presence of more than ten percent (10%) of the maximum pesticide residue tolerances allowable by the Food and Drug Administration. In the event the finished crop reflects a residue higher than the allowable tolerances set forth in this section, the member's seal for any such crop shall immediately be suspended and public notice made thereof. NOFPA Bylaws, art. 4, §§7, 9. A laboratory test conducted after the spraying indicated the presence of 1.4 parts per million by weight of Thiodan on the Langans' crop tissue. The United States Food and Drug Administration's tolerance for Thiodan on tomatoes and beans is 2.0 parts per million. Following the test results, the board of directors of NOFPA revoked the Langans' certification as organic food growers in conformance with bylaw No. 7. The Langans' entire property was decertified in conformance with the NOFPA rule which requires decertification when a portion of the land is contaminated. Due to the decertification, the Langans did not grow their tomatoes and beans to fruition. Instead, they pulled them from the ground to prevent further contamination of the soil. The Langans had no contract to sell the contaminated tomatoes and beans commercially. At trial, the judge ruled that the plaintiffs' claim should be decided under a strict liability rule. The jury found in favor of the plaintiff, and a judgment in the amount of $55,000 was entered against defendants. The defendants filed a motion for new trial, arguing that the trial judge's application of strict liability to the plaintiffs' claim was erroneous. The trial judge denied the defendants' motion for new trial. The defendants appealed. The jurisdiction has adopted the Restatement (Second) of Torts §§ 519 & 520 rules governing strict liability. Flip a coin to determine which party you represent in this case. If the coin lands on heads, you are an attorney for plaintiffs. If the coin lands on tails, you are an attorney for the defendants. Prepare arguments in favor or against the appeal of the trial judge's denial of the defendants' motion for new trial depending on which side you represent. (If you don't have a coin, you can flip a virtual coin here: https://justflipacoin.com/. If you don't know what a coin is, see here: https://en.wikipedia.org/wiki/Coin.)
strict liability #2 mod 23
Denton Hospital is a private facility that houses violent offenders adjudicated criminally insane under a contract with the state prison authority. Denton is located in a residential area in the city of Hometown, and it takes extensive security measures to make sure that its residents do not escape, including maintaining two 15-foot high electric fences topped with barbed wire surrounding its grounds, a dozen armed guards who patrol the facility day and night, and regular resident counts throughout the day. Despite these measures, a resident escaped from Denton and murdered ten-year-old Paul Peterson who lived near Denton. Peterson's parents have retained your law firm to file a lawsuit against Denton. A preliminary investigation has uncovered no evidence that Denton was in any way negligent. The senior partner of the firm has asked you to draft a memo making the strongest case for a claim against Denton based on strict liability.
strict liability #3 mod 23
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