Page 1 of 14 Exam No._________________ PEPPERDINE UNIVERSITY SCHOOL OF LAW MIDTERM EXAMINATION: Torts II, Multiple Choice Total No. of Questions: 20 SPRING SEMESTER 2005 Total No. of Pages: 14 PROFESSOR: Gash Time: Forty Minutes INSTRUCTIONS 1. Each of the questions in this part of the exam is followed by five suggested answers. You are to choose the best of the stated alternatives. There is only one correct answer per question. 2. Unless otherwise indicated, apply the majority rule. END OF INSTRUCTIONS Page 2 of 14 Fact Pattern for Questions 1, 2 and 3 Steve and Stefanie have ants invading their home. Being environmentally conscious, they have tried only home remedies to rid themselves of the ants, but to no avail. They finally gave up on the salt and turnip juice concoction they had been using and Steve went to the local Ace Hardware store to find some chemical ant killer. Having never been to a hardware store, Steve asked Dude, a seventeen year-old surfer who was working behind the counter what he recommended to kill ants. Dude responded that he just started working at the hardware store that morning and hadn’t a clue. Dude also said that the last customer in the store bought some RATAWAY rat poison and Dude assumed that anything strong enough to kill a rat ought to be able to kill an ant. Concluding that Dude was a moron and of no use, Steve nevertheless decided to buy some rat poison to kill the ants. As he was placing the rat poison in the bag, Dude decided he liked the cool design on the label so much that he peeled the entire label (including all the warnings) off. The label easily came off and remained in one piece. Upon returning home, Steve spread the rat poison pellets around the kitchen floor where the ants had been coming into the house. Steve did not even notice that there was no label or warnings on the bottle of rat poison. Unfortunately, Steve and Stefanie’s two year-old daughter Rachel found the rat poison pellets, ate three of them, and became very ill. When the RATAWAY bottle left the manufacturer, its label contained bright and large warnings to “keep out of the reach of children” and “danger, consult a physician immediately if ingested.” 3. Which of the following is true with respect to Steve’s suit against Ace Hardware: a. Steve will likely prevail on his breach of implied warranty of merchantability claim against Ace because the rat poison was not fit for the ordinary purposes of killing ants. b. Steve will likely prevail on his breach of implied warranty of fitness for a particular purpose claim because he relied upon Dude’s recommendation of rat poison to kill the ants. c. Steve will likely prevail on his breach of express warranty because Dude recommended using rat poison to kill ants. d. Both (a) and (b) are correct. e. None of the above is correct. Page 3 of 14 4. In Steve’s suit against the manufacturer of RATAWAY, which of the following is Steve’s best argument: a. RATAWAY is defectively designed because it injures children if ingested. b. RATAWAY is defectively manufactured because it injures children if ingested. c. RATAWAY’s warnings are defective because its label peels off too easily. d. RATAWAY is defective because it does not warn the user not to place the pellets on floors. e. RATAWAY is unmerchantable because it injures children if ingested. 5. Which of the following is the manufacturer likely to argue in response to Steve’s claim: I. Ace Hardware and/or Dude should bear some of the fault due to the negligence of Dude in peeling off the warning label. II. Steve is comparatively negligent for placing the poison on the floor without reading the label. III. The manufacturer is entitled to a presumption that Steve would have followed the directions had he read the label. a. I only. b. II only. c. I and II only. d. I and III only. e. I, II, and III. Page 4 of 14 4. Which of the following is true? I. Because the common law requirement of horizontal privity has been completely abolished for breach of warranty actions, the plaintiff need not have purchased the product directly from the defendant to maintain a valid cause of action. II. It is no longer necessary for plaintiffs suing for breach of warranty to provide notice of the claim to defendants. III. There is no notice or privity requirements for claims in strict products liability. a. I only. b. II only. c. III only. d. I and III only. e. II and III only. Page 5 of 14 Fact Pattern for Questions 5 and 6 Colgate has been manufacturing and selling toothpaste for 70 years and has never had a complaint about its toothpaste. One of its toothpaste products (“peppermint toothpaste”) contains peppermint oil to give it flavor and provide users with fresh breath. Earlier this year, Colgate received seven complaints (two of which have resulted in lawsuits) that its peppermint toothpaste has badly burned the inside of users’ mouths causing severe blistering. Colgate is mystified because it has used the same manufacturing techniques and formula for the peppermint toothpaste over the past twenty years without a single complaint. All seven tubes of peppermint toothpaste about which complaints were received were tested by Colgate scientists and found to contain levels of peppermint oil twenty times higher than intended. An internal investigation conducted by Colgate revealed nothing out of the ordinary in the manufacturing process. Likewise, discovery conducted by plaintiffs failed to determine the cause of high levels of peppermint oil. At trial, there is no dispute that Colgate burned the mouths of the plaintiffs. 5. In a lawsuit by one of the injured users of the toothpaste based upon a strict liability for design defect theory, Colgate will likely: a. Lose, because the manufacturing process must have been defectively designed for the levels of peppermint to come out so high. b. Prevail, because there is no evidence that the peppermint toothpaste was defectively designed. c. Prevail, but only if the imputed knowledge risk/utility test is applied. d. Lose, but only if the imputed knowledge risk/utility test is applied. e. Lose, because under either the risk/utility test or the imputed knowledge risk/utility test the risk of burning users’ mouths created by adding peppermint oil to the toothpaste outweighed the utility of having toothpaste that tasted good and freshened the breath of the users. Page 6 of 14 6. In a lawsuit by one of the injured users of the toothpaste based upon a strict liability for manufacturing defect theory, plaintiff will likely: a. Lose, because plaintiff was unable to prove the cause of the high levels of peppermint oil. b. Prevail, because the tubes of peppermint toothpaste at issue failed to meet the expectations of ordinary consumers. c. Lose, but only if the risk/utility test is applied. d. Lose, but only if the imputed knowledge risk/utility test is applied. e. Prevail, unless the manufacturer proves that the tubes contained a warning cautioning that the toothpaste may contain high levels of peppermint oil that could burn the user. Page 7 of 14 Fact Pattern for Question 7 Dorian likes to live on the edge. He drives a fast car, enjoys “extreme” sports such as skydiving and street luge, and drinks heavily. He also enjoys exotic animals and is raising a leopard in his back yard. Dorian has fed the baby leopard by bottle and given it plenty of tender loving care since it was one week old when Dorian bought it from an underground animal trader. The leopard is now three years old and has accompanied Dorian to elementary schools all over the county and has interacted with children at each school, always without incident. While Dorian is at work, he locks the leopard in a plexiglass cage in the backyard. The leopard is addicted to daytime soap operas, so Dorian leaves a 32" television set in the cage. The leopard has never escaped and cannot escape unless the latch on the outside of cage is not closed. Last Wednesday, when Dorian was at work, a burglar came to Dorian’s house and robbed the place. As he was leaving, the burglar saw the television set in the cage and decided to steal it as well. Having read about Dorian and his leopard in the newspaper, the burglar was unafraid of the leopard and stole the television without being harmed. The burglar neglected, however, to close the latch on the cage as he left. Ten minutes later, the leopard pushed open the door and went exploring in the neighborhood. Tiffany was on the way to her school play dressed up as a bunny when she was attacked by the leopard from behind, who thought Tiffany actually was a rabbit. Tiffany suffered severe scratches and cuts to most of her body. 7. In a suit by Tiffany against Dorian, which of the following is the most accurate: a. Tiffany will win only if she can prove that the leopard had bitten someone before and that Dorian was aware of that fact. b. Tiffany will win only if she can prove that Dorian was negligent in keeping the leopard in his backyard. c. Tiffany will win regardless of whether she proves Dorian was negligent or was on notice of any prior violence by the leopard. d. Tiffany will lose if Dorian is able to identify who the burglar was and prove that he was negligent. e. Tiffany will lose if Dorian can prove that the cage complied with the state of the art in cage design and construction at the time. Page 8 of 14 Fact Pattern for Questions 8, 9, 10, and 11 Dusters ‘R Us (“Dusters”) operates in rural Iowa as an aerial crop dusting service for much of the western half of the state’s corn farmers. Dusters has been spraying Chemical X over corn fields for the past twenty years and has never received a complaint. Chemical X kills bacteria that might otherwise stunt the growth of the corn. Dusters’ clients are large farm owners who typically have hundreds of acres of farmland with no surrounding residences other than their own farm houses. Chemical X is manufactured and sold by CornWest International. Chemical X is only available to crop dusters who are certified in crop dusting for corn. Up until 1999, all studies performed on Chemical X have indicated no harmful effects on humans when inhaled or ingested. Last month, the New England Journal of Medicine published a study conclusively proving that inhalation of Chemical X by pregnant women causes birth defects in half of the children who are in the first trimester at the time of their mothers’ inhalation. Farmer Jones and his wife have employed the services of Dusters for the last nine years. Their house is located directly in the center of their 500 acre corn farm. Twice per year, Dusters dusted their farm with Chemical X. Once, in 1993, Mrs. Jones was seven weeks pregnant when Dusters dusted the corn, which happened while Mrs. Jones was outside hanging clothes, covering Mrs. Jones with Chemical X. Johnny Jones, who was in utero at the time, was subsequently born with only one arm. 8. In an action for strict liability for abnormally dangerous activities by Johnny Jones against Dusters, which of the following arguments will not likely be made by Dusters: a. Dusters is a sophisticated user of Chemical X because Chemical X is only sold to certified crop dusters. b. Crop dusting with Chemical X was a common activity in Iowa during the relevant period. c. Dusters was not aware of the high degree of risk of harm associated with dusting with Chemical X at the time the dusting occurred. d. Dusters was not aware that Chemical X could cause birth defects at the time the dusting occurred. e. Had Dusters known that dusting with Chemical X could cause genetic defects, it could have eliminated the risk of harm by exercising reasonable care through warning pregnant women to stay inside during dusting activities. Page 9 of 14 9. In an action by Johnny Jones against CornWest International for strict liability for failure to warn, Johnny is most likely to prevail in a jurisdiction applying which of the following tests: a. Negligence b. Risk/Utility c. Barker Hybrid test d. Imputed Knowledge Risk/Utility e. Johnny will prevail under each of the above tests. 10. Which of the following is the most likely to order a recall of all Chemical X currently in distribution? a. A jury following a trial on the merits. b. A federal judge following a trial on the merits. c. A federal judge following a preliminary injunction hearing. d. The United States Environmental Protection Agency following a hearing. e. All of the above are possibilities. Assume for purposes of Question 11 only that Chemical X does not cause birth defects, that Johnny was born with two arms, and that Johnny was killed when a plane flown by a Duster employee landed on top of Johnny when the crop dusting plane’s engine failed. Assume also that the engine was severely damaged in the crash, making the cause of the engine failure somewhat uncertain. 11. Which of the following causes of action are likely to be applicable? a. Strict liability for abnormally dangerous activities against Dusters. b. Strict products liability against Dusters for failure to warn. c. Strict products liability for design defect against Dusters. d. Strict products liability for manufacturing and/or design defect against the manufacturer of the plane. e. Both (a) and (d). Page 10 of 14 12. To which of the following causes of action is the state of the art defense wholly inapplicable? I. Breach of Express Warranty II. Strict Liability for Manufacturing Defect III. Strict Liability for Warning Defect a. I only. b. II only. c. III only. d. I and II only. e. II and III only. 13. Which of the following is not an element of strict liability for abnormally dangerous activities under Restatement (Second) of Torts? a. The degree of risk of harm created to person or property by the activity. b. The level of toxicity of the substance used in the activity. c. The extent to which the activity engaged in is common in the locale. d. A balancing of the relative risks of harm posed by the activity and the value of the activity to the community. e. All of the above are elements. 14. In which of the following scenarios does comparative fault apply? a. Plaintiff is negligent; Defendant is strictly liable. b. Plaintiff is faultless; Defendant 1 is strictly liable and Defendant 2 is negligent. c. Plaintiff is negligent; Defendant 1 is negligent and Defendant 2 is strictly liable. d. Comparative fault applies in (a), (b), and (c). e. Comparative fault applies only in (a) and (c). 15. Under which Alternative listed in UCC section 2-318 is recovery most favorable for Page 11 of 14 potential plaintiffs? a. Alternative A b. Alternative B c. Alternative C d. Alternative Q e. None of the above because 2-318 does not concern the recovery of potential plaintiffs. 16. In which of the following scenarios is Section 402A of the Restatement (Second) of Torts unlikely to apply? a. A child loses sight in one eye when shot with a high-powered water gun manufactured by Hasbro and purchased at Toys R Us. b. A child cuts his lip on a Coke can that has a spur on the top rim of the can. c. A child suffers a severe head wound when a replacement roof shingle that was inadequately secured by a repairman falls on his head. d. A child is suffers lead poisoning as a result of sucking on a Hot Wheel painted with a lead-based paint. e. Section 402A will likely apply in each of the above scenarios. Page 12 of 14 17. To which of the following defendants would Section 402A of the Restatement (Second) probably apply. a. Jennifer Jones, who sold a cake she baked at home for a Rotary Club auction. Unfortunately, the cake was undercooked, causing food poisoning from the raw eggs used in the recipe. b. Steven Solden, who broke a neighbor’s window when a rock flew from underneath the lawnmower Steven used in his landscaping business. c. Helen Hunt, who sold her brand new and unused washing machine to Brian Bowman because she preferred a different color for her kitchen. d. 402A will probably apply to all of the above. e. 402A will probably not apply to (a), (b), or (c). 18. Which of the following are not recognized goals of Section 402A of the Restatement (Second) of Torts. a. Requiring sellers of products to bear losses caused by products as well as reap the profits from their sale. b. Encouraging innovation and bringing new products to market without oppressive and stifling liability faced by manufacturers at common law. c. Encouraging safer designs of products. d. Minimizing the difficulty often faced by plaintiffs in proving the cause of their injuries by products. e. Spreading the costs associated with plaintiffs’ injuries among the numerous purchasers of the manufacturers’ products. Page 13 of 14 19. Which of the following best describes the Barker hybrid test? a. The plaintiff has the burden of proving both the consumer expectation test and the risk utility test. But, under the risk utility test, once the plaintiff makes a prima facie showing that the injury was proximately caused by the product’s design, the burden shifts to the defendant to prove that the product is not defective. b. The plaintiff has the burden of proving both the consumer expectation test and the risk utility test. But, under the consumer expectation test, once the plaintiff makes a prima facie showing that the injury was proximately caused by the product’s design, the burden shifts to the defendant to prove that the product is not defective. c. The plaintiff has the burden of proving either the consumer expectation test or the imputed knowledge risk utility test. But, under the imputed knowledge risk utility test, once the plaintiff makes a prima facie showing that the injury was proximately caused by the product’s design, the burden shifts to the defendant to prove that the product is not defective. d. The plaintiff has the burden of proving either the consumer expectation test or the risk utility test. But, under the risk utility test, once the plaintiff makes a prima facie showing that the injury was proximately caused by the product’s design, the burden shifts to the defendant to prove that the product is not defective. e. The plaintiff has the burden of proving either the consumer expectation test or the risk utility test. But, under the consumer expectation test, once the plaintiff makes a prima facie showing that the injury was proximately caused by the product’s design, the burden shifts to the defendant to prove that the product is not defective. Page 14 of 14 20. Which of the following is true with respect to the requirement of proving a reasonable alternative design in a design defect case? a. California requires plaintiffs to prove a reasonable alternative design, but most jurisdictions and the Restatement (Third) of Torts do not so require. b. California requires plaintiffs to prove a reasonable alternative design, as does the Restatement (Third) of Torts, but most jurisdictions do not so require. c. California does not require plaintiffs to prove a reasonable alternative design, but the Restatement (Third) of Torts and most jurisdictions do require such proof. d. California, like most other jurisdictions, does not require plaintiffs to prove a reasonable alternative design, but the Restatement (Third) of Torts does require such proof. e. California, like the Restatement (Third) of Torts, does not require plaintiffs to prove a reasonable alternative design, but most jurisdictions do require such proof.