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					                                                                                          Grade: A
                                                                 Torts 5 – Prof. Silbaugh – 5/14/07
1.     Frog will sue CGC for negligent design. CGC will emphasize (in SJ and before a jury)

that Frog’s employer removed the guard, and thus, under the substantial modification doctrine

(Jones v. Ryobi), CGC is not liable. Frog will respond that the guard invites removal because the

machine does not function effectively with it, resulting in $325,000 in lost profits every year.

Frog will emphasize that this is a large percentage of EJ’s profits in an effort to make this case

look like the plastic bottle “drool” case: the machine cannot function effectively with the guard.

By contrast, CGC will emphasize that the error rate does not cause Eleven Jeans any actual loss

and will liken its machine to the printer in Jones v. Ryobi, where the machine functioned fine

with the guard (though removal did boost efficiency). In addition, Frog may argue that the

machine was designed to be used without the guard. If there are facts suggesting that removal

was easy, she will point to them. Whether this guard thus invited removal will probably be a

jury question. If the guard did invite removal, Meadow should hold CGC liable. Otherwise, they

would be able to freeride on the workers compensation system by producing products best used

without safety features and then hide behind the employer’s modification to avoid liability. The

employers will have no incentive not to make such modifications because worker’s

compensation insulates them from tort liability.

       Even if the guard doesn’t invite removal, Frog could claim that CGC had a duty to warn

about the danger of modification, per Liriano. CGC will contest cause-in-fact, rebutting the

heeding presumption. They will point to the fact that Frog was aware of the hazard – he saw the

machine with the guard in place and was thus aware when it was removed. They will also say

the danger is open and obvious. A jury will have to decide this.

       Finally, CGC will defend that Frog voluntarily assumed the risk. She chose to use the

guard-less product, and she was not required to encounter the risk as part of her job duties.

                                                                                          Grade: A
                                                                 Torts 5 – Prof. Silbaugh – 5/14/07
Further, they will say, she gets a compensatory wage premium for undergoing this risk – $8 per

hour and full health benefits. Frog will contest this, saying she would be fired if she refused to

use the modified machine and that she received those benefits before she used the dangerous

machine. The voluntariness of Frog’s use of the modified machine will present a jury question.

       Frog will claim damages for her lost hand, rehab, and loss of her job. CGC will

challenge that its product’s defect (if any) was the proximate cause of the rehab and loss of job:

rehab was not foreseeable (to which Frog will raise the eggshell plaintiff rule) and the loss of job

was not a direct cause. The court will likely find a genuine issue of material fact here and will

submit the question to the jury. Then, Frog will emphasize the harm to her hand, and CGC will

emphasize Frog’s decision to binge drink.

2.     Frog will claim that Eleven was negligent in removing the guard. CGC will defend that

the worker’s compensation bars negligence claims against employers. Frog will point to some

states that apportion the burden of harm among all negligent actors if an employer and

manufacturer are jointly liable. CGC will argue against adopting this approach because it

undermines the trade-off underlying the worker’s compensation system. This will likely get

dismissed at SJ. Frog may also claim that Eleven is vicariously liable, under respondeat

superior, for Bug’s intentional tort against her (if a battery can be proven) – and that worker’s

compensation can’t absolve employers of liability for intentional torts. However, CGC will

respond that intentional torts aren’t within the scope of employment as a matter of law. While

some states say that intentional torts can sometimes be within the scope (e.g. daycare case), Frog

doesn’t have a strong argument here. Accordingly, this claim will also be dismissed in SJ.

3.     First, Frog will sue Bug for battery in slipping alcohol into her drink. She will show that

Bug purposefully intended to cause an unconsented touching of Frog’s body. Though Bug did

                                                                                            Grade: A
                                                                   Torts 5 – Prof. Silbaugh – 5/14/07
not touch Frog directly, she launched an instrument (alcohol) that did touch her. Frog will

emphasize that Bug knew about her alcoholism. Frog will claim that all her losses – hospital

expenses that night, the loss of her hand (and accompanying medical costs), need for rehab, and

loss of job – were caused by this battery. Unlikely to be able to disprove intent or touching, Bug

will challenge causation. First, she will argue that the alcohol was only intended to make Frog

drunk so Spider wouldn’t like her anymore. (She may emphasize this before the jury to

influence them to feel less sympathy for Frog.) However, she didn’t need to intend the injury,

just the touching. She is liable for any injury that results, like the trip to the hospital. She will

argue that Frog’s rehab and loss of job were not proximately caused by the battery. She won’t be

able to argue foreseeability (falling off the wagon is certainly a foreseeable result of sneaking an

alcoholic alcohol), but she may argue directness. She’ll say that an intervening cause – the loss

of the hand – pushed Frog over the edge. However, since proximate cause is ultimately a policy

consideration (and since a (likely unsympathetic) jury will decide it), she will likely lose. She

increased the chances of this happening. Bug will also argue that the battery was not a but-for

cause of the loss of Frog’s job. Frog may still have fallen off the wagon had she lost her hand.

However, Bug’s battery was still a substantial factor. (Moreover, since Bug was behind the two

(possibly) sufficient causes, a jury is unlikely to find this convincing.) Because this is an

intentional tort, Bug will not be able to claim contributory negligence in the loss of hand and job.

Frog may seek to pursue punitive damages, emphasizing the malicious nature of Bug’s actions.

        Next, Frog will pose in-the-alternative liability claims against Bug for her hand injury.

First, she will claim that it was a battery. Intent will be a question of fact that a jury will have to

decide. Because this will ultimately turn on the credibility of Bug, Frog will emphasize Bug’s

other shady acts – looking at her employment file and slipping her alcohol. Bug will explain that

                                                                                          Grade: A
                                                                 Torts 5 – Prof. Silbaugh – 5/14/07
she got her boyfriend back and thus had no more vendetta against Frog.

       Second, Frog will claim that Bug was negligent in turning the machine on while her hand

was in it. Bug had a duty to operate the machine with reasonable care, and Frog will claim she

breached that duty. She will claim that because Bug saw her drop the jeans (maybe) and because

she knew that Frog was hung-over, she failed to exercise reasonable care by not checking that

Frog had cleared her hands out of the way. At the SJ stage, Frog will emphasize that a

reasonable jury could conclude this, while Bug will emphasize that this is the same thing she had

been doing every day for some time. This will likely get sent to a jury. In addition to contesting

breach of duty, Bug will challenge that her (possible) negligence in operating the machine

caused Frog’s falling off the wagon and loss of job. She will argue that the hand injury was not a

but-for cause, claiming that she would have fallen off the wagon and subsequently lost her job

anyway. (However, since she is the cause of the other possibly sufficient cause, this won’t

insulate her from liability.) Bug may argue that negligence in causing the hand injury was not

the proximate cause of the rehab and subsequent job loss because they were not foreseeable.

However, Bug must take the victim as she finds her (eggshell plaintiff), including preexisting

conditions like alcoholism. The intervening act of Frog falling off the wagon doesn’t sever the

chain of causation because it is foreseeable. Accordingly, a jury will likely find for Frog.

       Finally, Bug will raise a comparative negligence defense, saying Frog was negligent in

doing dangerous work hung-over, dropping the jeans, and then saying a word that sounds so

similar to “On.” She will emphasize to the jury their established protocol and harp on how

similar “darn” and “on” sound. Depending on the jury’s finding and on the comparative

negligence regime Meadow chooses to adopt, Frog could escape some liability this way. If the

jury finds Frog negligent and Meadow adopts a contributory negligence approach, Frog will not

                                                                                          Grade: A
                                                                 Torts 5 – Prof. Silbaugh – 5/14/07
be able to recover. If Meadow adopts comparative negligence, Frog may be able to recover the

portion of her damages attributable to Bug’s negligence, regardless of the apportionment of fault

(pure system) – or may not if the jury apportions her 50% of more of the fault and Meadow

adopts a modified comparative fault system.

4.     Bug will counterclaim against Frog for alienation of affection and IIED. She will claim

that she and Spider were happily married, and that Frog maliciously caused the affection

between them to be alienated and destroyed. Frog will not be able to contest that she

purposefully flirted with Spider and sought to gain his affections, given that Bug asked her not to

and she escalated the flirting. Given her purposeful intent and her flaunting of the relationship in

the break room, she could also be liable for punitive damages, even under the dissenting judge’s

view in Hutelmyer. However, Meadow may choose not to recognize this cause of action and

may dismiss in SJ. Only 10 states retain it, and it is an antiquated doctrine based on morality that

goes against modern conceptions of personal responsibility in a marriage.

       Since Meadow’s legislature has not expressly barred alienation of affection claims

(unlike the state in McDermott), Bug’s IIED claim should be allowed to go forward despite

similarities with that disfavored tort. In this claim, Bug may say that Frog acted with a purpose

of inflicting distress on her. Alternatively, she will argue that Frog knew that her actions would

distress a reasonable person, and that their special co-worker relationship required her not to take

actions known to be likely to produce such distress. Bug will be able to convince a jury that

Frog’s conduct was outrageous, emphasizing the dirty dancing and her earlier request that Frog

stop flirting. However, Bug may not be able to prove the final element of an IIED claim: severe

distress. Frog will say there is no evidence of severe distress and will emphasize the fact that

Bug ultimately won Spider back to diminish the chances that the jury will find such severity.

                                                                                          Grade: A
                                                                 Torts 5 – Prof. Silbaugh – 5/14/07
Question 2:

       Neena can bring an informed consent claim against Dr. Strangelove. As a doctor, he has

a duty not to implement treatments without obtaining her informed consent. To obtain her

informed consent, he would need to present to her material facts about the treatment, i.e. facts a

reasonable patient would have found material. A jury would have to determine what a

reasonable person would want to know. We can argue that a reasonable patient would want to

know that a drug was being implanted in them so that they could make the decision whether to

prolong their lives. However, it’s possible that this argument won’t convince a jury (after all,

80% of Strangelove’s test subjects are thankful for his secret treatment), so we should also

emphasize the risk Dr. Strangelove was putting Neena in: this drug was untested, and the side

effects could have been terrible! A reasonable patient would certainly want to know that.

       Next, we’ll have to deal with the problem of causation: we’ll have to prove that a prudent

patient in Neena’s position would have chosen not to undergo the treatment had Dr. Strangelove

informed her of it. Dr. Strangelove will say everyone wants to live longer, and he’ll point to the

80% of patients thanking him. Neena will point to the 18% of patients who are troubled as an

indication that reasonable patients could disagree. Who knows what these people would have

decided? She’ll also elucidate religious or other reasons why a person might not want to live

forever to lead the jury to conclude that reasonable patients could choose differently. If she gets

that far, she can introduce evidence demonstrating that she would have declined the drug.

Religious reasons or past statements reflecting the value she places on dying with dignity would

be useful here.

       Finally, we have a problem demonstrating damages. In usual informed consent cases,

even though the wrong is infringing on the patient’s autonomy, the patient is not compensated

                                                                                             Grade: A
                                                                    Torts 5 – Prof. Silbaugh – 5/14/07
for that imposition, but rather the harm that results from the treatment they would not have

chosen had they had the required information. Here, the injury is a prolonged life. Courts have

been reluctant to recognize life as an injury, e.g. in wrongful life claims, finding it impossible to

compare life with non-existence. However, in wrongful life claims, the disinclination to

recognize life as an injury stems from the policy judgment that we don’t want to undervalue the

lives of the handicapped. Society doesn’t have as much discomfort with the idea of dying with

dignity. Indeed, it may be highly valued, as evidenced by the political turmoil surrounding

FDA’s consideration of Everlastin and by the fact that the law allows a competent adult to refuse

life-saving treatment (Restatement §892).

        Not all courts recognize informed consent as a dignitary claim based in negligence, but

rather analyze it as a battery. Because Meadow may choose to adopt this (minority) approach,

we will have to bring a claim alleging battery as well. However, we could have trouble, as

Pennsylvania has found that injections don’t rise to the level of battery. We could point to

Restatement §19, defining an “offensive contact” as something that offends a reasonable sense of

personal dignity and again submit the question to the jury as to whether a reasonable person

would find it offensive to have a life-prolonging drug implanted subcutaneously.

        Finally, Neena could bring a claim for negligent infliction of emotional distress. There is

an impact, so she could recover under the impact rule. Dr. Strangelove may defend that her

distress is not the proximate cause of his actions because it was not foreseeable. We can argue

that distress was foreseeable – what if the drug had had horrible side effects? – and that the fact

that the distress resulted for a (possibly) less foreseeable reason is irrelevant. It is not clear

whether Neena suffers any physical symptoms of her emotional distress – or if her distress is

susceptible to any sort of medical diagnosis – so it is not clear if she will be able to recover.


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