Tort Exams

TORTS EXAMS AND

MODEL ANSWERS

Fall 2005

PART TWO

(SPRING 1996 - FALL 1996 MODEL)









Deborah W. Denno

Professor, Fordham University School of Law









Torts Exams and Model Answers can be found in

http://www.fordham.edu/law/faculty/denno

under Torts

TABLE OF CONTENTS

PART TWO







Spring 1996 Torts Final Exam ............................................................................. 30

Model Answer for Spring 1996 Torts Final Exam ................................................ 34

Fall 1996 Torts Midterm Exam ............................................................................ 45

Model Answer for Fall 1996 Torts Midterm Exam ............................................... 46

Fall 1996 Torts Final Exam .................................................................................. 54

Model Answer for Fall 1996 Torts Final Exam ..................................................... 57





Please Note: Unless otherwise indicated, model answers consist of typed, and slightly edited,

versions of actual student answers. (The Spring ‘95 Model Answer for the Torts Final Exam

includes added explanations.)

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FORDHAM UNIVERSITY SCHOOL OF LAW

Examination in Torts

May 6, 1996

Professor Denno







PLEASE NOTE:



1. This is a three-hour, three-question, four-page, closed-book, examination. No materials may be

used. Times are suggested for each question.



2. Write your identification number, class section, and my name on each bluebook.



3. Write legibly and use every other line.



4. If you think it is necessary, state assumptions or additional assumptions of fact not contained in

the questions or facts but which you think are appropriate to answer the questions more fully.



Good luck!

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QUESTION I - 90 minutes



Mr. and Mrs. Ames were delighted that Jamie Plots, age 72, could babysit their three

children, Gertrude, age 15, Weisel, age 10, and Dodie, age 5, so that Mr. and Mrs. Ames could go

out and watch their favorite movie, "Bacon," starring a little pig who successfully avoids the hazards

of big city life. Because the night was so special, Mr. and Mrs. Ames giddily told Jamie to "feed the

kids anything that they wanted from the fridge" and to "do anything that the kids wanted to do, just

so they don't get killed." They also said that they would be "back late, although we are not sure

when," leaving Jamie to think that she might be staying over that night as she had in the past.



Given the Ames' statements, Jamie let the kids make their own dinner from the fridge, which

included hot fudge sundays and left-over pizza. Then Dodie suggested that they all go over to ZZZ's

Amusement Park to visit "Car Wreck for Less," a new mini-car game in which drivers in battery-

operated mini-cars, padded by rubber, rode about in a curb-inclosed ring. Everyone thought Dodie

had a great idea. When the group arrived at "Car Wreck for Less," the operators explained to a

concerned Gertrude that their cars could travel no faster than 15 m.p.h., in accordance with federal

regulations. They also stated that Miniature Inc., the makers of the mini-cars, also complied in every

way with federal regulations.



Convinced that everything was safe, Gertrude encouraged everyone to pile into the cars.

Whereas Gertrude and Weisel had their own cars, Jamie and Dodie shared one together. Yet all did

not go well. After several minutes of riding, Dodie, an affectionate child, was so delighted that she

stood up to hug Jamie tightly in a moment of appreciation. Jamie yelled, "No, no, not now." Dodie's

hug, however, caused Jamie to step on the "go" pedal. Peaking at the top speed of 15 m.p.h, Jamie's

car sped over the curb and into Sally, who was waiting in line to purchase a ticket. Both Jamie and

Dodie hit their heads on the steering wheel, and Sally fell, hurting her leg. Distraught at seeing her

sister and babysitter's situation, Gertrude stopped her car in the middle of the ring and jumped out

to hasten her way over to the curb to help out. In the process, however, Gertrude was hit by Jim,

who was veering to the side in an effort to avoid her. Gertrude's leg was injured and Jim suffered

a serious head wound when his head hit the steering wheel. In the meantime, the excitement caused

Weisel to become ill from the rich dinner that he had eaten. In an effort to move quickly to the side

of the ring so that he could ease his upset stomach, he ran into Sally who, from all accounts, was not

doing anything wrong. The jolt seriously sprained Sally's neck, and injured Weisel's hand, which

bent back in an effort to shield his head from the steering wheel.



These turbulent events paled in comparison to the litigious tenure of the parties involved.

Everyone wanted to sue at least one other party for their injuries. Assume that the Ames live in the

state of Y, which can follow any state's tort law.



Question A: Please respond to the above fact pattern by identifying and discussing the

arguments for and against all the relevant tort law issues that a thorough attorney would

consider for all parties involved.

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Question B: How would the outcome that you discussed in Question A differ, if at all,

if the state of Y adopted Indiana's recent Tort Reform Package for Product Liability which:



1) abolishes joint liability in product liability actions;

2) provides a rebuttable presumption that the product was not

defective if: a) the manufacturer of the product was in

conformity with recognized "state of the art" safety

guidelines; or b) the manufacturer of the product

complied with government standards (i.e., approved

by FDA, FAA etc.); and

3) restricts strict liability actions to the manufacturer

of the product.



QUESTION II - 60 minutes



Rick Altman, who is African American, worked at Barnumum Brothers, a men's clothing

store in the state of Y, the same state discussed in Question I of this exam. Frequently during the

course of the year one of his co-workers, Fred Stone, who is Caucasian, made remarks to Rick

indicating Fred's desire that he and Rick engage in a sexual relationship. Fred would include with

his remarks insinuations that Rick's "dark, exotic" looks were particularly appealing to him. Rick

found these remarks offensive, and spurned Fred's advances. He also explained to Fred that he was

engaged in a long term relationship with Howard Sughes. Other than that, however, he said nothing,

for fear of losing his job. Moreover, Fred never touched Rick physically.



A few months passed at which time Fred stopped by Rick's home after work. Fred said that

he recalled Rick saying that Howard was looking for yard work and that Fred needed someone to

mow his lawn. Fred also made some more suggestive remarks to Rick, again alluding to Rick's

"dark, exotic" looks. Rick later testified that at this point, Fred's comments spurred him to create a

plan. Before Fred left his porch, Rick invited him to come back to his house the following night

after dinner when Howard would be away.



When Fred arrived at 8:00 the next night, Rick informed him that Howard was out and would

not be back until midnight. Fred then told Rick that he would like to see the rest of his house and

put his arm around Rick's shoulder. As soon as Fred placed his arm, however, Rick called for

Howard who, unknown to Fred, had been hiding in a nearby closet. Howard raced out of the closet,

grabbed and severely beat Fred, and forcibly threw him out of the house.



The noise and commotion created such a furor in the neighborhood that one of the neighbors,

Sally Young, ran out and took a picture of Fred sprawled in the front lawn and Howard and Rick

yelling at him. The picture ended up on the front page of the Y Gazette, a local newspaper. As a

result of the attention the picture received, several neighbors investigated the backgrounds of Rick,

Fred, and Howard, and found that Rick had gone for AIDS testing six months before. This

information was discovered when they questioned Sally Young who, with little to do during the day,

had followed Rick one morning in her car because he had left earlier than usual and she wanted to

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see if he might be cheating on Howard.



Rick sued Fred for a number of torts, including battery, claiming that Fred's placement of his

arm on Rick's shoulder, as well as his related conduct, caused Rick's latent tuberculosis to flare up.





Question A: Please respond to the above fact pattern by identifying and discussing the

arguments for and against all the relevant tort law issues that a thorough attorney would

consider for all parties involved.



Question B: How would the outcome that you discussed in Question A differ, if at all,

if the state of Y adopted New Jersey's proposed Tort Reform Package for Punitive Damages

Reform which:



limits punitive damage awards to five times compensatory

damages or $350,000, whichever is greater. Several

exemptions are included in this provision, such as

discrimination and AIDS testing disclosure.



Question C: How would the outcome that you discussed in Questions A and B differ,

if at all, if facts later revealed that Howard was a police officer on duty at the time of this

incident?



QUESTION III - 30 minutes



One of the most perplexing issues in breast implant litigation concerns the nature and extent

of the causal relationship between the implants and subsequent injury. Please compare the causation

standard(s) currently used in breast implant litigation with those causation standards set forth in the

major causation cases that we studied. Include in your comparison the causation problems

encountered with the Gulf War Syndrome. In light of this comparison, what are the problems and

prospects with future breast implant litigation?

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POSSIBLE MODEL ANSWER





QUESTION I (A)



For the purposes of all negligence suits in this exam, it is accorded in the law that a child

under 7 years old is presumed incapable of negligence. A child aged 7-14 is presumed incapable but

this presumption can be rebutted and a child over 14 is presumed capable of negligence but that

presumption can be rebutted.



All Actors v. Miniature, Inc. the Manufacturer of the Car



This is a products liability claim. There are three theories under which plaintiff could sue

the manufacturer, Miniature Inc. for the defect in the car, if there is a defect at all:



The first theory is under negligence. A manufacturer has a duty to any and all foreseeable

plaintiffs. Here, it is foreseeable that the Ames’ family and Sally and Jim would ride in these cars

at an amusement park. This duty is breached by looking at the conduct of the defendants. Also one

might argue that the manufacturer should have used Hand’s B
a breach of duty. Was the burden of avoiding the harmful defect less than the probability of harms

multiplied by the magnitude of the loss. If yes, then Hand would say there was negligence.



There are three types of product liability defects:



(1) Manufacturer’s Defect - where the product left the manufacturer not in the condition

that was intended.



(2) Design Defect - where the product was in the condition intended but there was a flaw

in the design causing the risk when used in a normal fashion.



(3) Inadequate Warning - there is an inherent danger that would not be obvious to the

reasonable consumer.



Here, the plaintiffs’ claim that the manufacturer did not provide an adequate warning on the

car telling of the danger of going fast. There should be a warning on the car telling of all dangers.

Also, they will argue that when Dodie stood up, the car was only going at 15 mph at its peak,

suggesting that maybe there was a design or manufacturer defect in that particular car. The

manufacturer will argue that they complied with all federal regulations so that should be enough.

They argue that custom and compliance would relieve them of liability. But custom is not

dispositive of the standard of care, it can be accepted or rejected by the jury to use as evidence of the

standard of care (e.g., Andrews case where the airline was held liable even though it complied with

federal regulations and the custom of all airlines). Here, the jury can reject federal regulations as not

good enough.

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The manufacturer argues that the operators were an intervening force because they warned

the Ames of the speed limit. They have a defense that even if the warning was put on the car, it

would not have changed anything because the Ames family was warned by the operators. Also, the

manufacturer still says there is no causation because the failure to warn did not lead to the injury.

But Jaime argues that the car should not have jumped off the curb since she never went over 15 mph.

Thus, this suggests a possible manufacturer or design defect either in this particular car or all cars

made by them. She argues res ipsa loquitur. That this accident is of a kind that does not happen

without someone’s negligence.



(2) That defendant had the right of control over the car and (J) that P did not contribute to

the fault. P says she did not contribute to the fault because she only hit the pedal to 18 mph which

was what the car is supposed to be able to handle. Manufacturer argues that hitting the pedal so hard

and so fast was contributory fault on part of plaintiff. Also, the manufacturer argues that this

accident could have occurred not because of their negligence but because of the negligence of the

ZZZ’s for not using a curb that was high enough or strong enough to stop the car from going over

the side. They argue this was a supervening cause that relieves them of liability.



Jamie next argues that there was causation because “but for” the defect in the car, the injury

would not have occurred. This is the actual cause or cause-in-fact. Even if manufacturer argues that

this does not satisfy the actual cause, Jaime argues that the defect in design could be a substantial

factor in the accident. Under proximate causation or legal cause, Jaime argues that it was foreseeable

that someone would go 15 mph which was the top speed. So this was foreseeable.



Manufacturer argues that Dodie’s standing up was an intervening cause and it is not

foreseeable. But Jamie has a good argument because as long as the car can go 15 mph and did, then

the car should not have sped over the curb. Manufacturer may also argue that the curb was

inadequate. But this is not Jamie’s fault. The manufacture uses the defense of contributory

negligence of the little girl, Dodie.



In a contributory negligence state, the plaintiff’s contribution to her injury would be a

complete bar but in a comparative negligence state, it will only reduce her recovery by her

proportionate fault. Because Dodie is under age 7 she may be presumed incapable of negligence.



They could try to argue assumption of the risk that plaintiff knew of the risk and voluntarily

chose to expose herself to it. But plaintiff only followed the warning not to exceed 15 mph which

she did not.



Note: The reason why all the plaintiffs sue the manufacturer is because all other plaintiffs

will also argue that manufacturer was responsible for their injuries which stemmed from this original

accident (which they claim was the manufacturer's fault) and that the only difference is the proximate

causation analysis. Was it foreseeable that Jaime would hit Sally and Gert would get out of her car

and Jim would hit her and Weisel would become ill and run into Sally?

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In Palsgraf, Cardozo would argue that these future incidents were not within the foreseeable

zone of danger and they could not recover against the manufacturer. But Andrews would argue that

the manufacturer has a duty to the world and is responsible for all of the consequential injuries.



Under Wagon Mound I only foreseeable injury would be recoverable not unforeseeable

injury. But under Wagon Mound II and the Polemis Direct Consequences Test, if any damage is

foreseeable then defendant is responsible for all damages. So whichever view the court chooses to

use will determine if the other plaintiffs could recover.



They could also try to recover under a strict liability theory. There needs to be a defect which

is defined by Restatement 2d. as “unreasonably dangerous”. This looks like a negligence theory

which is why other courts propose alternative tests of risk/benefits and consumer contemplative test

to determine if there was a defect. Plaintiff will argue risk benefit (that the danger outweighs the

utility) or will argue under consumer contemplative test which states that the product is dangerous

if its dangerousness is not contemplated by the reasonable consumer familiar with the product.

Defendants will argue the Second Restatement definition because it is easier not to find something

unreasonably dangerous (too vague). Also, in order to prove an absolute duty under strict liability

the plaintiff must prove that the defect was present which left defendant’s control and no substantial

changes were made to it. Also, that the manufacturer was in the business of selling. Plus, must show

causation but it is the same as in negligence theory.



Finally there is no privity requirement (McPherson) so the plaintiff can sue the manufacture.

In strict liability negligence can be imputed as opposed to negligence theory. So here the

manufacturer and the operators and the amusement park can all be held liable. If the above criteria

were all met.



Damages - All plaintiffs will argue compensatory damages in the form of medical bills, and

lost income if any and pain and suffering which is measured by what "shocks the conscience" fueled

by passion and prejudice. Also, may try to argue punitive damages if they can prove gross

negligence on the part of manufacturer. Punitive damages used to be confined to acts of willful or

intentional negligence but have been awarded in cases of gross negligence too.



Manufacturer again argues in his defense contributory negligence. This argument is different

with different plaintiffs. For Dodie, she is may not be presumed capable of negligence (because of

her age) as stated before. Weisel probably wouldn’t be able to prove proximate causation and Gert

would probably be found contributory negligent because she got out of the car, and because she is

15, she will be found capable of negligence.



All Plaintiffs vs. Amusement Park



The operators were following their orders and probably don’t have a lot of money so

plaintiffs will choose to sue ZZZ’s amusement park instead as respondeat superior. Amusement park

will argue that they were only following federal guidelines but as stated before, under Andrews, this

is not a sufficient defense because a jury can find that the federal guidelines were not sufficient.

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ZZZ’s have a higher duty to their patrons as invitees, they have a duty to warn of unknown dangers

and must inspect for these dangers. Plaintiffs argue that they breached this duty when they did not

use a curb that was sufficient to stop the car traveling 15 mph. ZZZ’s claim the curb was sufficient

but that the manufacturer's car was defective. Under negligence theory, negligence cannot be

imputed but under strict liability, the ZZZ’s would be found liable. ZZZ’s also will use the same

defenses that there was contributory negligence by Gert and also may argue Jim too.



But Gertrude’s contributory negligence would be a total bar to her recovery if we were in a

contributory negligence state and only be a decrease in her recovery if we were in a comparative

negligence state. Same damages as before.



Also, they would argue under negligence theory and the argument would be the same as the

manufacturer’s. As long as they could prove that there was a defect when it left their control with

no substantial changes, and they were in the business of selling it - this is where the plaintiffs would

probably fail in their argument since they must be in the business of selling - but plaintiff will argue

this is their business to have these cars available to the public. This might be a good argument.

Either way, strict liability is imputed on all defendants. Plaintiffs could get the defendants under this

theory.



Sally v. Jaime



Claim for negligence. Sally might try to use Andrew’s duty to the world or reasonable person

standard to establish a duty and standard owed by Jaime. This is direct and proximate causation.

But Jaime will argue there was no proximate causation because it was not foreseeable that going 15

mph would let the car jump the curb. Also, Jaime will try to claim that Dodie was an intervening

force. But Sally, will argue that but for Jaime’s negligence she would not have been injured. Jaime

might prove she was not responsible because of the defective product. Jaime argues that the

defective product is a superceding cause that will relieve her of liability. This argument may succeed

because without the defect this may not have occurred. Sally will try to get damages for pain and

suffering and medical expenses and lost income if any. But she wouldn’t be able to get punitive

damages. Jaime may try to argue that because of her age she should get a capacity based standard

but this is only for mentally disturbed people, not based on age or intelligence.



Sally v. Weisel



She claims negligence and the duty argument is that he owes the care of a reasonable person.

But for this impact she would not have been harmed. She may also sue him for the intentional tort

of battery. That is a volitional act by defendant to cause a harmful or offensive contact with

plaintiff’s person. As long as the causation is proven as directly or indirectly setting in motion the

thing that caused the harm. Here, Weisel might claim he had no motive but motive is not a necessary

component of the tort. His defense could be private necessity but he would have to prove that the

interest he was protecting outweighed the harm done. His interest was in getting to the side so he

could be rich but this doesn’t outweigh hitting Sally.

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Gertrude v. Jim



She claims that he negligently hit her with his car. Causation is direct but Jim will argue

contributory negligence and assumption of the risk. Gertrude knew that getting out of her car was

a risk and she would be totally barred from recovery in a state of contributory negligence.



Jim v. Gertrude



He sues her for his injuries. Again the duty is based on Cardozo or Andrews position and

the required standard of care is necessary. Here she was the direct cause of his injuries. Although

she argues that Jaime’s accident was an intervening cause. This does not eliminate her liability. Her

getting out of her car was negligence because a reasonable person wouldn’t do it. But she may argue

the emergency doctrine, that because she saw Jaime & Dodie in an accident, she jumped out of her

car to help them. This may serve to lower her standard of care that she owed to Jim. Jim also claims

compensatory damages which in tort law is to restore the plaintiff to his condition before the

accident.



Parents v. Jaime



They may sue Jaime for negligence in allowing all this to happen. Jaime may argue she was

given the ability to do anything but get the kids killed. But she may still be found liable for putting

the children at an unreasonable risk. She again argues the defective product as superceding in her

negligence. She also uses the defense of contributory negligence since the parents gave her full right

to do anything that didn’t result in death.





QUESTION I (B)



1. If joint liability were abolished then the plaintiffs could not hold that manufacturer,

operators and ZZZ’s were jointly and severally liable.



Joint and several liability says that one defendant can pay the entire amount and if he does

then he can try to get contribution from the other defendant. But plaintiff doesn’t have to worry

about it because she can collect from whoever she wants. Without joint liability each defendant has

a proportionate share of fault and is liable only for that percentage of fault. So the difference comes

up with insolvency. If one joint defendant is insolvent then the other joint defendant must pay his

share. This was abolished by many states but is still viable in some states.



If this state gets rid of joint and several liability then if a defendant is insolvent, the plaintiff

must bear the cost. But under the Uniform Act (which abolished joint liability) if a defendant is

insolvent the other defendants and plaintiff all must increase their share of damages in proportion

to their percentage of fault. If there was a rebuttable presumption if manufacturer can claim that he

was in accordance with the the federal guidelines then this means the jury will presume the product

was not defective and the plaintiff will have to prove that the product was in fact defective. If it was

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a permissible inference then the jury would only accept or reject this inference and the burden would

be lower on the plaintiff (in this case) -- normally the plaintiff is helped by rebuttable presumption.

In this case, the burden would be greater since Miniature Inc. was in compliance with federal

guidelines.



If it restricted strict liability to the manufacturer then the plaintiffs could not recover from

the operators or the amusement park. This would make it harder for the plaintiffs to recover because

they would not be able to just infer that because all negligence is imputed then all defendants are

liable. The amusement park is going to claim that they were only following the federal guidelines

so they can’t be held strictly liable.





QUESTION II (A)



Rick v. Fred



Rick might sue for sexual harassment. He must prove that the conduct was gender-based and

that it was offensive and severe to the reasonable person. But his sexual harassment argument would

be difficult to prove. First, the courts have not been favorable in sexual harassment actions with men

and men. One case was very extreme and very offensive and yet the court found it did not warrant

harassment. Also, Fred is not in a position to intimidate or threaten him. He is not his boss (though

that is not necessary). Also, it is obvious that Rick was not threatened because he felt comfortable

in retaliating. But the EEOC says that sexual harassment can be constituted by creating an

uncomfortable work environment. Because they work together, this is what Fred may have done.



Also, Rick may sue for racial harassment but this is a hard argument also. In Delgado’s

article, words that may wound suggest making racial harassment a tort. He offers elements that

should be proven. First, that the conduct was intended to demean. Second, that the plaintiff knew

they were intended to demean, and third, that a reasonable person may be offended. But it can be

argued that Fred’s comments were not intended to demean so under Delgado’s criteria, there would

not be racial harassment.



But under Title VII, protection is given on the basis of race and sex so the EEOC's definition

of "causing an uncomfortable work environment" also applies to racial harassment. Also, on sexual

harassment the acts were continuous (happened twice) so this might add to the argument.



Fred v. Rick



Negligence. Rick invited Fred to his house so Fred was a licensee (if in a state that does not

use Rowland to get rid of distinctions). So he had a duty to warn him of any unknown risks. Well,

Howard hiding in the closet was certainly an unknown danger. This is a stretch because it was

obviously planned and thus there was an obvious breach of this duty which led to damages.

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Fred v. Howard



Claim for Assault and Battery. Battery is a volitional act which is intended to cause a

harmful or offensive contact with plaintiff’s person. Here, Howard severely beating Fred was

certainly harmful and offensive to the reasonable person. He had the desire to cause the

consequences of his act and was substantially certain that such would occur. It might also be an

assault if Fred had an imminent apprehension of the attack before it occurred. This means he must

have awareness so as Howard jumped out of the closet, there was little, if no, awareness so probably

no assault here. No defenses for Howard because he is not allowed to use the defense of others

unless it is imminently after the attack. (If he tried to plead that he was defending Rick from Fred’s

abusive actions.)



Rick v. Fred



For battery. Same definition. To this Fred will argue consent as a defense since Rick’s words

and actions implied consent to his harmful or offensive acts. Which by the way would probably not

be harmful or offensive to the reasonable person. Rick may also sue Fred for intentional infliction

of emotional distress for his actions at work. But it must be extreme and severe and with intent to

cause mental suffering which was not Fred’s intent.



Rick v. Newspaper



Claim for defamation. Elements of defamation are a defamatory statement, of and

concerning the plaintiff, harm to reputation, publication to at least one third person and with at least

negligence. Here, there was no defamatory statement because it was just a picture. The difference

between libel and slander is not just based on written or spoken language but on the degree of

permanence. See this may fall into a libel category because it was printed and thus permanent and

publicized to a large group of people (in a newspaper = extensive circulation). It is not defamatory

on its face but would be libel per quod and could use extrinsic evidence (inducement by innuendo)

to determine if it is in fact defamatory. Neither of the parties is a public figure so they would only

have to prove negligence to recover. Although the courts are split as to whether proof of special

damages is necessary with a libel per quod action. The newspaper will argue truth as a defense since

the picture is accurate. This is why the claim is not very good.



Rick v. Sally



Claim for invasion of privacy. The subtest of public disclosure of private facts. Three

elements must be proven. Sally did disclose private facts to the neighbors. These facts would be

highly offensive to the reasonable person. Finally, there is a question as to whether this is a matter

of public concern. This is not newsworthy (that he was tested for AIDS). Sally does not have this

defense.

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Slander



He will also sue Sally for slander. The same elements of defamation as were mentioned

before. This was of and concerning the plaintiff and was publicized to a least one third person.

Also, it will cause harm to his reputation and it is a defamatory statement. So Rick says he only

needs to prove negligence. Also, it might fall into a slander per se category. The 4 categories are

plaintiff committed a crime, had a loathsome disease, harm to his business or trade, or imputing

unchastity. Sally did not say that he had AIDS but that he was tested for AIDS. She did not say he

had a disease. But this might imply that he was “unchaste” so he might be able to get slander per

se and not have to prove special damages. But if not, he would have to prove economic loss which

is very difficult to prove.



Also, Sally might argue that he is a limited public figure so he must prove actual malice to

recover. The definition of actual malice comes from the NYT v. Sullivan case, as defined as

knowledge that the statement is false or with reckless disregard as to the truth. But there are

requirements for a limited public figure. There must be a controversy. Plaintiff must have thrust

himself into the spotlight (voluntarily or involuntarily) and plaintiff’s involvement in the controversy

must be germane to the defamatory statement. She argues that because of the picture in the paper,

he was involuntarily thrust into the limelight. But he argues that the disclosure of his AIDS testing

is not germane to the picture that makes him a limited public figure so he only has to prove

negligence.



Rick might sue Sally for special damages if he can prove it could have an effect on his job,

etc. He could be fired if they thought he had AIDS. He could sue her for punitive damages if she

acted with malice. Sally has the defense of truth. She can argue that it was true so it is not

defamatory. Therefore, he would probably be better arguing that she invaded his privacy.

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Question II (B)



In discussing the suit of Fred against Howard, Fred would sue for compensatory damages for

any medical bills, lost income on pain and suffering. Also, because the attack was willful he could

sue for punitive damages.



The Contract for America has proposed to limit punitive damages to 3x the compensatory

damages or $250,000 whichever is greater. This cap on punitive damages has many supporters and

many are against it (personal injury lawyers) If this state adopted the proposed cap (which is similar

to Contract for America but greater in amount) then in all the suits, the punitive damages would be

decreased to meet this cap. But because of the AIDS testing disclosure exemption, Rick would still

be allowed to recover as much as the jury will award him without any cap. As long as he can prove

Sally’s malice he could recover.





Question II (C)





If Howard was a police officer on duty he would still be charged with battery because he was

using excessive force. He may claim governmental immunity because he was acting in furtherance

of an official duty. The Federal Tort Claims Act waives governmental immunity for negligence.

§1983 of the Civil Rights Act says that you cannot deprive one of their civil right. Although, this

is illustrated in terms of prison cases, here the police officer is using excessive force by severely

beating Fred and forcibly throwing him out of the house. This is a violation of the 8th amendment

of cruel and unusual punishment. Howard would only have authority to hurt Fred if Fred was

engaging in a crime but putting your arm on someone’s shoulder is not a crime (to the reasonable

person).



Also, he might sue Sally for intentional infliction of emotional distress resulting from the

disclosure of these facts. But he must prove she acted with intent to cause mental suffering or with

reckless disregard that such suffering would occur. The causation must be shown between the injury

and the conduct. And the harm must be severe. If plaintiff can prove this he can recover. Also

Howard may be able to recover for loss of consortium if he is unable to relate to Rick because his

distress is so severe.





Question III



Breast implant litigation is one of the biggest tort issues confronted today. Everyone in the

field has an opinion on this issue. Lawyers such as John O’Quinn in Texas are making big bucks

on causing juries to hand over all of the money from Dow Corning which has since become

bankrupt, and now the new target is Dow Chemical, the parent company, which they have found a

connection with because evidence suggests that Dow Chemical tested certain substances that has

gone into the breast implant. Yet, O’Quinn and others are making tons of money in settlements

43



(some articles suggest that it is around $125,000 and others say it is at 250,000). Yet no causation

is proved between the injury and the implant. Actual cause and proximate cause cannot be proven

with any accuracy. In fact, a 1995 Harvard study suggests there is no causation between the implants

and the original symptom and now suggests that there might be causation with auto-immune disease.

It seems that Dow was just scared by the numbers and couldn’t deal with only one class action since

many of the women have opted to go after the deep pockets on their own. But because of the large

numbers and slick lawyers the big corporations give in without even substantial causation.

Causation had led to problems before and some case specific solutions.



In DES cases, the court came up with the market share theory with held that since the

plaintiff could not identify which manufacturer actually manufactured her drug they were all

responsible for their proportionate fault in the natural market. This way the only defense the

manufacturer has was that he didn’t produce the drug at all, even if he was not negligent.





In asbestos cases, there was a problem of causation between the actual exposure and the

resulting harm of getting cancer. So courts come up with the enhanced risk approach. The standard

was that a relative increase was necessary and also needed to prove reasonable probability. There

was also a case where a third generation victim sued in a DES case. Here, the victim was denied

recovery. This only alludes to breast implant cases of the next generation where a child sues because

she drank the breast milk of a mother with implants. It is too soon to tell the outcome of those cases

but if it follows the DES cases then it will surely fail.



There is also a problem with Gulf War Syndrome and causation. Gulf War Syndrome as well

as Gulf War babies provide a similar problem as breast implants with one difference. The implant

victims can sue Dow but the Gulf war victims are battling against the government. This creates more

complications because the government is not likely to be intimidated as Dow when looking at the

sea of numbers. So though causation is not proven with great accuracy there either, the recovery is

less because of the size and the power of the defendant.



Therefore, the future of breast implant litigation depends on how long and how deep Dow

Chemicals pockets run. And if the government should step in to save a corporation that does have

a function in a society. Otherwise, these mass tort cases can just one by one destroy all of the major

corporations in America. But on the other side, we need to encourage deterrence and testing.

Doctors are still telling women to use silicone and those that do not are using other substitute

methods that may prove to be dangerous in the future.



Do we use an ex ante approach or an ex poste approach? Modern courts favor an ex poste

approach and will not hold manufacturers liable if the danger surfaces later. Factors to look at are

loss spreading, fairness, administrative costs, and deterrence. These factors may suggest holding

manufacturers strictly liable but causation must still be proven. This is the hard part in these cases.

Maybe some scientist will find the link and be able to definitely show the cause. For now, it doesn’t

seem to matter because the women are being paid without the proof.

44



One last thing. This looks like a comparison to the Falcon Memorial case where the majority

said that only loss of opportunity had to be proven. Any fault of the doctor would establish

causation. But the dissent said that it had to be more likely than not because otherwise it would

undermine traditional but-for causation. It seems that with breast implants, traditional, but-for

causation is undermined -- any slight degree of harm will be attributed to the deepest pockets. This

is a stretch but that’s the problem with this litigation. Nothing seems to be definitive except the

horrible stories we read about the suffering women.



If the Contract for America goes through then these women who have been absolutely

destroyed by their pain and suffering will be capped at their losses. This is another thing to think

about in considering the future of litigation.

45



FORDHAM UNIVERSITY SCHOOL OF LAW

Examination in Torts

December 2, 1996

Professor Denno





PLEASE NOTE:



1. This is a one-hour, one-question, one-page, closed book, examination that tests material covered

preceding the topic of defamation. Please write on every other line in your bluebook. Exams are due

no later than Tuesday afternoon, December 3, at the end of class that day. Please do not put any

identification on your exams - either your name or your social security number - as I will be

discussing the exams as a group.



2. If you think it is necessary, state assumptions or additional assumptions of fact not contained in

the questions or facts but which you think are appropriate to answer the question more fully.



QUESTION



Olga Barr, a law student, purchased a cosmetic skin creme called "Smooth and Then Some,"

manufactured by Smooth City Products Inc. The label on the bottle, which she read, warned that

"persons suffering from Monoclic syndrome may experience an adverse reaction" if they used the

product.



Because she did not know whether she had Monoclic syndrome, Olga asked her physician,

Dr. Snuff, to explain what the syndrome was and test whether she had it. Dr. Snuff stated that

Monoclic syndrome was typically a benign blood condition and that Olga's blood tests failed to

indicate that she had it. Dr. Snuff then proceeded to tell Olga a few lawyer jokes but she got bored

and left.



Based on this information, Olga used the skin creme daily. Within two months, she became

extremely ill. Moreover, deep sores developed on her skin. Later testimony revealed that Olga

actually did have Monoclic syndrome. However, her particular case of the syndrome was extremely

rare and detectable only by expensive diagnostic tests conducted in hospitals. Moreover, only two

research studies had ever been conducted on Olga's particular case, and both indicated the possibility

of an adverse reaction to certain types of skin cremes. Evidence also indicated that Olga's illness was

indeed an adverse reaction to "Smooth and Then Some."



Olga has brought suit against Smooth City in products liability. Please respond to this fact

pattern by identifying and discussing the arguments for and against all the relevant tort law

issues that a thorough attorney would consider with regard to the parties mentioned. Make

certain that you discuss any applicable defenses.

46



OUTLINE ANSWER TO THE MIDTERM

Professor Denno



(includes verbatim excerpts from the "products liability" chapter of UNDERSTANDING TORTS)



I. Products Liability Claim



A. Three major theories or causes of action*



1. Negligence

2. Warranty (mostly a contracts issue - we didn't emphasize this)

3. Strict liability in tort

(*Misrepresentation is a fourth, but we didn't focus on this)



B. Three major types of product liability defects



1. Manufacturing defect (where the product left the manufacturer in a

condition that was not intended)

2. Design defect (where the product was in the condition intended but there

was a flaw in the design causing the risk when used in a normal fashion)

3. Inadequate warning (where there is an inherent danger that would not be

obvious to the reasonable consumer)



C. Negligence cause of action (a "product seller is liable in negligence if she acts or

fails to act in such a way as to create an unreasonable risk of harm or loss to the user

of the product or to another who might foreseeably be injured")



1. Manufacturing defect

2. Design defect

a. The law of most jurisdictions requires that the plaintiff show that

there was a safer alternative to the challenged design, and that this alternative was

both technologically and economically feasible (issues of reasonable cost, technology

existing at the time of sale).

b. B
3. Inadequate Warning

a. A seller's responsibility for providing adequate warnings may be

found under principles of strict liability, negligence, and warranty. A generally

acceptable standard is that a dangerously defective article is one "which a reasonable

man would not put into the stream of commerce if he had knowledge of its harmful

character." Thus, in the context of failure to warn jurisprudence, the duties to warn

strict liability and negligence theories are almost indistinguishable. The comments

to Restatement sec. 402A provide guidance both as to the distinctions and similarities

between negligence and strict liability (p. 346). In strict liability and negligence

alike, the absence or inadequacy of warnings or instructions must be of such a nature

47



as to render the product unreasonably dangerous (Comment i).

b. Under negligence principles, a supplier may be liable for injury or

damage incident to a failure to warn adequately when it knows or should know that

the product is likely to impose an unreasonable risk without warnings.

c. To be adequate under any theory of liability, a warning by its size,

location, and intensity of language or symbol, must be calculated to impress upon a

reasonably prudent user of the product the nature and extent of the hazard. The

language used must be direct and should, where appropriate, describe methods of

safe use. An adequate warning should also advise of significant hazards from

reasonably foreseeble misuse of the product and, where appropriate, antidotes for

misuse.

d. B
balancing of the seriousness of the harm, the probability that the harm will occur if

appropriate steps are not taken, against the cost or burden of taking precautions.

e. Warnings vs. instructions. Warnings call attention to a danger,

while instructions are intended to describe procedures for effective and reasonably

safe product use. Thus, a warning may be adequate, while its instructions are

deficient.

f. In the failure to warn claim, the plaintiff's proof must establish

causation. In its most elementary form, such proof will show that, had the seller

supplies an adequate warning, the injured claimant would have altered his or her

behavior to avoid injury. Pivotal to the successful maintenance of plaintiff's claim

of actionable failure to warn adequately of the hazard was the cause-in-fact and the

proximate cause of the injury. (see page 351). The manufacturer may attempt to

overcome the plaintiff's proof of causation by showing that the act of a third party,

such as a physician, operated as the "efficient" intervening cause of injury, breaking

the causal chain. Where the intervening conduct of a third party is implicated in the

defense of an allegation of failure to warn, the defendant is required to show that the

act or omission to act was not foreseeable. It is generally agreed, therefore, that even

when the product's original defect, by warning, design or otherwise, is not the sole

cause of the accident, but remains a substantial cause of the injury along with the

subsequent conduct of the purchaser, the manufacturer will be liable. Thus,

convincing authority holds that, absent the manufacturer's showing of an intervening

superceding cause, the simple showing that the purchaser "failed to take reasonable

steps" to protect against the risk created by the manufacturer should not permit a jury

finding that the purchaser's conduct was the proximate cause of the injury. (p. 351-

52).

g. The Allergic or Idiosyncratic User. Where a manufacturer's

product is safe for use by most persons likely to come in contact with it, but is likely

to create an allergic or highly unusual reaction in only a small proportion of the

population, special issues arise. One potential guideline is Restatement sec. 402A

comment j, which provides that the manufacturer should provide a warning where

"the produce contains an ingredient to which a substantial number of the population

are allergic and the ingredient is one whose danger is not generally known."

48



Particularly when only a very small proportion of the population is put at risk, the

severity of the illness or injury to which the warning would be directed is properly

a factor in determining whether the manufacturer has a duty to warn. Yet, even if the

risk is very slight, when the consequences of an injury are very grave, the

manufacturer may in some circumstances have a duty to warn "those few persons

who it knows cannot apply its product without serious injury."

h. Evaluation of the adequacy of a warning (p. 359): Requires a

balancing of considerations that include at least: (1) the dangerous of the product;

(2) the form in which the product is used; (3) the intensity and form of the warnings

given; (4) the burdens to be imposed by requiring warnings; and (5) the likelihood

that the particular warning will be adequately communicated to those who will

foreseeably use the product.

i. Warning language that is ambiguous will be found to be inadequate

to communicate the extent and the seriousness of the harm.



D. Elements of a negligence claim



1. Duty

2. Breach of duty

3. Causation (direct and proximate)

4. Damages

5. Reasonable risk vs. unreasonable risk

a. B
6. There are probably very few cases in which a plaintiff would be entitled

to recover on strict tort liability principles in which he would not also have been able

to recover on negligence principles, particularly if he is aided by the doctrine of res

ipsa loquitur. It would seem therefore that the same test for defectiveness that is

applied in a negligence case could therefore be applied in a strict liability case,

omitting only the duty of reasonable care.



E. Strict liability cause of action



1. Manufacturing defect

a. (Greenman v. Yuba Power Products)

b. Restatement sec. 402A (strict liability in tort for any person "who

sells a product in a defective condition unreasonably dangerousto the user or

consumer of his property")

i. Comment i to sec. 402A suggests a "consumer expectations"

standard for what represents an unreasonably dangerous condition. Evaluation of

what is unreasonably dangerous should be had by reference to whether the article

sold is "dangerous to an extent beyond that which could be contemplated by the

ordinary consumer who purchases it, with the ordinary knowlege common to the

community as to its characteristics."

ii. "Risk-utility" evaluations

49



c. A product seller has a duty to warn of product risks that, if not the

subject of timely and adequate notice, expose the purchaser, user, or a bystander to

a risk of unreasonable harm.

i. Exception: Prescription drugs and other prescription

products, including medical devices and other biological products. Courts permit a

drug company to satisfy its duty to warn by giving the necessary product, risk, and

side effect information to the prescribing physician. This exception is described as

the "learned intermediary rule," with the prescribing physician assuming the role of

the informed intermediary between the manufacturer and the patient.

2. Design defect

a. The law of most jurisdictions requires that the plaintiff show that

there was a safer alternative to the challenged design, and that this alternative was

both technologically and economically feasible.

b. A design or formulation defect will support a claim in strict

liability where the design flaw results in a defective condition unreasonably

dangerous to the user or consumer.

c. Restatement sec. 402A

i. Comment i to sec. 402A suggests a "consumer expectations

standard" that states that a defect will be considered to create an unreasonably

dangerous condition where it is dangerous to an extent "beyond that which would be

contemplated by the ordinary consumer who purchases it." Comment g to sec. 402A

states that "only where the product is, at the time it leaves the seller's hands, in a

condition not contemplated by the ultimate consumer, which will be unreasonably

dangerous to him." This "consumer expectations" test of defectiveness focuses on

the reasonable expectations of the user and the surprise element of the danger

involved.

ii. "Risk-utility" evaluations. Under the risk-utility test, the

product is defective as designed only where the magnitude of the hazards outweigh

the individual utility or broader social benefits of the product. The risk-utility test

posits, in effect, that only reasonably safe products should be marketed, and defines

reasonably safe products as those whose utility outweighs the inherent risk, "provided

that risk has been reduced to the greatest extent possible consistent with the product's

continued utility." (Wade's seven factor test). In Barker v. Lull Engineering Co., the

court created a hybrid test consisting of the consumer expectation test and the risk-

utility test (p. 333). The risk-utility considerations suggested by Barker authorized

a finder offact to consider the following competing factors: "the gravity of the danger

posed by the challenged design, the likelihood that such danger would occur, the

mechanical feasibility of a safer alternative design, the financial cost of an improved

design, and the adverse consequences to the product and to the consumer that would

result from an alternative design." (p. 334)

iii. Unreasonable Danger. Restatement 402Acomments g and

i establish together that for strict liability to attach, the product must be "dangerous

to an extent beyond that which would be contemplated by the ordinary consumer who

purchases it, with the ordinary knowledge common to the community as to its

50



characteristics." The requirement of unreasonable danger has been interpreted to

mean that the product must be more dangerous than an ordinary consumer would

expect when the product is used in its intended or reasonably foreseeable manner."

A failure to provide adequate warnings or instructions may leave a product

unreasonably dangerous to the user or to others. A manufacturer is not required to

warn of every conceivable danger that may result from a use or misuse of her

product, however. The comments to the Restatement state that the seller may

reasonably assume that those with common allergies, will be aware of them, and the

seller is not required to warn against them. Thus, it is clear that the product that is

defective because it contains inadequate directions or warnings is similar to the

product that is defective because of its design, in that the defect can only be defined

in terms of the unreasonable danger it presents to the user or consumer

d. The plaintiff must establish that the product was defective, and that

the defect was a substantial factor in bringing about plaintiff's harm.

e. Unavoidably Unsafe Products. There are some products which, in

the present state of human knowledge, are incapable of being made completely safe

for their intended and ordinary use. This is especially true in the field of drugs (e.g.,

rabies vaccine). "Such a product, properly prepared, and accompanied by proper

directions and warnings, is not defective, nor is it unreasonably dangerous."

i. Designation of a product as "unavoidably unsafe" is not a

complete defense, for it only permits the manufacturer to avoid strict liability.

Plaintiff may still prove liability in negligence upon showing that the product -

usually a pharmaceutical - was marketed without due care in preparation, or in its

warnings or instructions. Courts have generally followed the Restatement view, and

have held that if it is shown that the product is unavoidably unsafe, there is no

liability, provided the product has an extraordinarily high utility that outweighs the

dangers incident to the use, and provided appropriate directions or warnings of the

danger are given to the consumer. Comment k has described it as essentially

applying negligence principles, with the rationale that application of strict liability

to pharmaceuticals "would chill, if not smother, the research, development,

productions, and marketing of new or experimental drugs necessary to alleviate or

kill the ills to which we are all subject."

3. Inadequate warning

a. Although a product is unerringly designed, manufactured, and

assembled, a seller may not be liable if the product has a potential for injury that is

not readily apparent to the user and carries no warnings of the risks or, where

appropriate, instructions about how to use the product safely.

b. A seller's responsibility for providing adequate warnings may be

found under principles of strict liability, negligence, and warranty.

c. Under strict liability, a seller's failure to warn (provide adequate

warnings or instructions) may leave a product unreasonably dangerous to the user or

to others.

d. A manufacturer is not required to warn of every conceivable

danger that may result from a use or misuse of her product, however. The comments

51



to the Restatement state that the seller may reasonably assume that those with

common allergies, will be aware of them, and the seller is not required to warn

against them.

e. Thus, it is clear that the product that is defective because it contains

inadequate directions or warnings is similar to the product that is defective because

of its design, in that the defect can only be defined in terms of the unreasonable

danger it presents to the user or consumer.

f. While in strict liability, the manufacturer will be presumed to have

a knowledge of any hazardous propensities of the product sold, the general rule is

that this imputed knowledge extends only to what is scientifically knowable at the

time of manufacture. This conclusion is reached with both explicit and implicit

reference to the language of comment k.

g. In Beshada, the court held that a manufacturer might still be strictly

liable for failure to warn even if the risk was scientifically unknowable at the time of

manufacture. Not been widely followed.

i. ex post (Beshada) - holding a manufacturer liable

irrespective of foreseeability.

ii. ex ante - holding defendants liable only when they knew

or should have known of the health risks and technology.

4. Rationale (the rationale for strict liability includes reference to the

manufacturer's ability to foresee some hazards and to guard against their occurrence,

the ability of the manufacturer to insure against the risk of injury and thereby to

spread the cost of risk avoidance among its customers, and the difficulty, born of the

complexities of modern manufacture, of the consumer in identifying and proving

negligent conduct on the part of the manufacturer or others in the chain of

distribution).



F. Defenses



1. Contributory negligence (still exists although most common prior to the

adoption of comparative fault) (failure to exercise due care to protect herself from an

unreasonable risk of harm)

2. Assumption of risk (requires a higher showing, consisting of plaintiff's

actual subjective knowledge of the hazard and subsequent voluntary encounter with

it)

3. To the plaintiff's strict liability claim, a defendant may defend by showing

the plaintiff's assumption of risk, but not contributory negligence. The notes to

Restatement sec. 402A suggest that "where plaintiff's incautious conduct was of a

fairly passive nature, such as the failure to discover the defective condition, this

behavior will not create a defense to a claim in strict liability. Where, on the other

hand, plaintiff's risk-taking is of a more aggravated nature, such as voluntarily,

knowingly, and unreasonably confronting the hazard, this assumption of the risk can

bar plaintiff's strict liability claim."

4. Misuse of a substantial and nonforeseeable nature may be a defense

52



against plaintiff's claims in negligence, warranty, and strict liability. Such misuse

itself will become the proximate cause of the loss or injury, precluding any claim

against the seller.

5. Comparative fault. Under comparative fault, the trier of fact compares

the proportionate contribution the product defect made to the injury with the causal

contribution of plaintiff's conduct in apportioning damages.



II. Medical Malpractice Claim



III. Damages

53



FORDHAM UNIVERSITY SCHOOL OF LAW

Examination in Torts

December 20, 1996

Professor Denno







PLEASE NOTE:



1. This is a three-hour, three-question, five-page, closed-book, examination. No materials may be

used. Times are suggested for each question. Times reflect the apportioned weight accorded to each

question for grading.



2. Write your identification number, your class section, and my name on each bluebook. Please

number your bluebooks, e.g., 1 of 3, 2 of 3, 3 of 3.



3. Write legibly and use every other line.



4. If you think it is necessary, state assumptions or additional assumptions of fact not contained in

the questions or facts but which you think are appropriate to answer the questions more fully.



Good luck!

54



QUESTION I - 70 minutes



Adults Olga, Igor, Boris, and Natasha decided to play volleyball one beautiful spring day in

a local park run by "Park, Inc." Boris, who was visiting from another country, had never played

volleyball before but the others encouraged him to join along explaining that they would show him

everything he needed to know. Olga and Igor were on one side of the net and Boris and Natasha

were on the other.



The first few rounds occurred without incident. Yet, as the game progressed, it became

increasingly clear to Natasha that she and Boris were not going to win unless Natasha became more

aggressive. The next time a ball was hit over to Boris, Natasha hurriedly and aggressively ran over

to hit it along with him to ensure that it would be a strong shot. Unfortunately, the shot was too

strong. It flew over the wall surrounding the volleyball yard and into the street. Boris was annoyed

with Natasha, claiming that the shot would have been perfectly fine had he hit it himself.



In the meantime, Natasha got a new ball out of the Park's volleyball box. Natasha served the

ball to Olga who missed in her attempt to hit it back. Concerned that they might run out of balls,

Igor ran after the bouncing ball that Olga had missed. In an attempt to stop the ball before it rolled

onto someone's property, however, Igor inadvertently ran into Mrs. X, and the two tumbled onto

Mrs. X's front lawn, ruining her recently planted tulips. Furious, Mrs. X slapped Igor on the face,

claiming that he had injured both her and her tulips. Igor flipped his hand in Mrs. X's direction,

called her a sissy (because he felt that she had not been injured), and ran off doing the tango with a

crushed tulip between his teeth. Evidence later showed that Mrs. X did not suffer any injuries.



It was also later discovered that the ball Boris and Natasha had hit simultaneously over the

wall had struck Mr. X directly on the head. Although volleyballs are relatively soft and bouncy, the

ball's speed and direction knocked Mr. X unconscious, causing mild but permanent brain damage.

Evidence showed that Mr. and Mrs. X had purchased their home close to the Park because they were

enthusiastic volleyball players and enjoyed the convenience to, and view of, the Park. Prior to being

injured, Mr. X was spraying his front lawn with a powerful insecticide (in violation of a city

ordinance forbidding residents from using lawn chemicals and threatening violators with a fine of

up to $1,000). Mr. X was bending down to pick up one of several volleyballs that had accumulated

on his lawn that week, when Boris' and Natasha's ball knocked him out.



Please respond to the above fact pattern by identifying and discussing the arguments

for and against all the relevant tort law issues and defenses that a thorough attorney would

consider for all parties involved.

55



QUESTION II - 70 minutes



In examining the fact pattern presented below, consider the following information gathered

from various published sources and studies, including The Journal of the American Medical

Association:



The United States maintains one of the most egregious fire loss statistics in the

industrialized world. Each year, 4,700 civilians and 100 fire fighters die from fire, whereas

29,000 civilians and 100,000 firefighters receive injuries from fires. Annually, fires also

result in billions of dollars of economic losses.



Fires ignited by cigarettes are the leading cause of fire fatalities. For example, in

1990, cigarette-ignited fires caused 1,200 civilian-only deaths and 3,360 civilian-only

injuries. Such fires also caused $400 million in property damages.



Altogether, 78% of cigarette-related fire deaths are due to cigarettes that have ignited

upholstered furniture or mattresses.



About 25% of deaths caused by fire occur between 6:00 p.m. and Midnight. About

50% of deaths caused by fire occur between Midnight and 6:00 a.m. About 60% of these

deaths are caused from smoke inhalation rather than burns. A substantial number of victims

die from inhaling toxic gases emitted from ignited materials.



In about 35% of the deaths caused by fire, victims' blood alcohol levels exceed 0.10%

(the legal level for intoxication).



The victims of fire are more likely to be young, old, and from lower socioeconomic

classes.



Beginning in 1983, major tobacco companies and the Fire Science Division of the

National Institute of Standards and Technology (NIST) began creating a "fire-safe" cigarette.

The NIST now claims that tobacco companies can produce such a cigarette and that this

cigarette is substantially less likely to start a fire if dropped onto furniture or material. Yet,

evidence shows that even "fire-safe" cigarettes cannot totally prevent fires from being

ignited.



Although tobacco companies, such as Philip Morris, concede that "fire-safe"

cigarettes can be manufactured, they have not marketed the cigarettes because their consumer

tests show that "fire-safe" cigarettes are not as tasty and they are more difficult to inhale.



***

Last year, an intoxicated Thad Sitt left a lit Marlboro Light cigarette on a couch made with

flammable cotton padding. The time was 3:00 a.m. Thad, who was only able to work part-time,

resided in a lower socioeconomic neighborhood. The resulting fire destroyed Thad's house and

56



caused him to have severe respiratory damage due to smoke inhalation. Although Thad made a

valiant attempt to save his elderly mother, who was sleeping in the room next to his, his efforts failed

and his mother burned to death before his very eyes. To this day, Thad experiences recurring

nightmares about the incident in which he relives his mother's death. Also as a result of the incident,

his business and personal relationships have suffered. Thelma Star, a fire fighter, was severely

burned in her attempt to save Thad and his mother.



Two days after the fire, a local NBC news reporter, Bunky Burlson, discussed the incident

in his weekly series, "My Opinion." Burlson commented about the "fire hazards" that such "low

class drunks" as Thad Sitt pose for the community in light of the recent fire loss statistics. As an

aside, Burlson also questioned the real purpose of Sitt's need to visit his mother's bedroom in the

middle of the night, a comment that some viewers thought was meant to be sexually suggestive.



Thad now claims that Philip Morris, which manufactures Marlboro Light cigarettes, could

have prevented the fire had Philip Morris marketed its "fire-safe" cigarette. Thad further claims that

Philip Morris has a duty to design its product with a reduced propensity to ignite upholstered

furniture.



Please respond to the above fact pattern by identifying and discussing the arguments for and

against all the relevant tort law issues and defenses that a thorough attorney would consider

for all parties involved.

QUESTION III - 40 minutes



The following is a (nearly) verbatim abstract from United States Law Week (June 4, 1996)

concerning a recent case:



Firearms. A case brought under a collective liability theory against 49

firearms manufacturers on behalf of two persons killed by handguns was allowed to

proceed by a May 2 ruling of [a] U.S. District Court. Plaintiffs assert a negligent

marketing claim, contending that defendants have "flooded" the market with

handguns that become a general hazard to the community because of the probability

that the guns will fall into the hands of criminals or minors. The court characterized

the action as a "mass tort theory, analogizing handguns and their ammunition to a

pathogen leading to latent injuries and the deaths of many thousands of people, much

like claims associated with asbestos, Agent Orange . . . and silicone gel breast

implants." The court stressed, however, that "further factual development is required

before a court can decide whether plaintiffs may maintain an action predicated on

collective liability" for negligent marketing.



(a) What kind of "further factual development" do you think is necessary before a court can

decide whether plaintiffs may maintain an action? (b) Based on the information you have so

far, what would be plaintiffs' strongest arguments for winning such an action? (c) How would

defendants attempt to counter such an action?

POSSIBLE MODEL ANSWER

57





Question I



Mr. and Mrs. X have several suits in battery and negligence among others against the

volleyball players. They also have a suit in negligence against the Park. The individual players may

also bring in the Park as a third party in their suits. In order to spread any damages the X’s would

want this too to recover.



Mrs. X v. Igor

Battery



Mrs. X will claim that Igor committed a harmful and offensive unwanted touching of her

when he ran into her inadvertently. Even though Igor did not mean to (motive is irrelevant), Mrs.

X will try to show that he knew with substantial certainty that his actions would lead to Mrs. X

tumbling over. Mrs. X will have to show that this touching would be offensive to the reasonable

person. Mrs. X may also have an assault claim if she saw Igor coming and apprehended the

imminent contact.



Igor may claim a defense of private necessity. He may show that interfering with Mrs. X’s

property was less of a sacrifice than losing the volleyball would have been for the team. This is a

stretch of an argument, however.



Mrs. X may claim pain and suffering and punitive damages (often awarded in intentional

torts). Medical expenses are awarded for injuries.



Negligent Emotional Distress



Should Mrs. X be unable to prove that Igor knew with substantial certainty that he would hit

her (which is difficult to prove on these facts since Igor did not even see her), she may sue in

negligence if she can show duty, breach, causation, damage.



Mrs. X may argue Igor had a duty to exercise reasonable care in the following ways:

Andrews’s type duty to the word, or Cardozo’s duty defined by perceived risk or to act as a

reasonable person would in the circumstances.



Since Igor did not bother to look around him, Mrs. X will argue that he breached his duty to

exercise care that a reasonable person would.



She will argue that Igor’s negligence was the but for and the proximate cause of her

emotional distress. She will also have to show that she was either in the Zone of Danger (she was)

or that she was impacted (she was) to prove this emotional distress claim.



Igor may argue last clear chance as a defense, since Mrs. X may have seen him coming and

could have avoided the accident. Further he could argue contributory negligence or assumption of

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the risk since Mrs. X lived near the park and was subjectively aware of the volleyballs coming over.



Mrs. X can collect pain and suffering, but depending on the jurisdiction she may be harmed

by contributory negligence or assumption of the risk. In a comparative fault jurisdiction, her

recovery would be lessened by her fault. Igor may also argue avoidable consequences to mitigate

the damages, since Mrs. X could gave gotten out of the way.



Intentional Emotional Distress



As to Igor’s slip comment, Mrs. X may show that he intended to or acted with reckless

disregard that his conduct would cause her severe emotional distress.



She will have to show that her distress was severe. Igor has a viable defense against this

claim, really.



Mrs. X may also collect punitive damages in addition to those already discussed



As for the negligence claim, Igor may claim Olga was an intervening factor since she missed

the ball and so he was not the proximate cause. However, since it is foreseeable for people to miss

a ball in volleyball this will likely fail.



Igor v. Mrs. X



Igor will claim battery by Mrs. X and show that she caused a harmful, unwanted touching

of his person by her slap.



Mrs. X may claim self-defense, although this is not a strong defense since her anger about

the tulips led to the slap.



Igor may claim punitive damages and any pain and suffering, medical expenses, lost wages,

and loss of enjoyment of life that results.



Mr. X v. Borris and Natasha



Mr. X may sue Borris and Natasha for battery since they put into motion the act (the ball) that

caused a harmful touching to him (being hit). Since he did not see the ball coming, he does not have

an action for assault.



Borris and Natasha will argue that they did not know with substantial certainty that this harm

would result. If they prevail on this argument, Mr. X may sue in negligence.



Negligence



Mr. X may argue that Borris and Natasha had a duty to the world, did not act as a reasonable

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person would by being overly aggressive, this caused his injury (actually and proximately) and that

he sustained injuries.



Borris will claim that he should be exempted from the reasonable person standard since he

was a foreigner and could not perceive the risk. However, the incident occurred long after he could

have --- of the risk. Further, he will argue that Natasha’s act of gross negligence (jury would have

to determine if it was gross) superceded his responsibility so he was not the proximate cause. This

is a strong argument.



Mr. X will argue (at least as to Natasha) that this sort of injury was foreseeable and that she

is responsible for any resulting injury under the foreseeable or direct consequence proximate cause

test. Further, the thin skulled rule applies since a tortfeasor must take Mr. X as they find him.



Borris and Natasha may argue that Mr. X assumed the risk of being hit by balls when he

decided to move so close to the park. He loved the game so he knew how it was played. Further,

there were balls lying around his yard all the time, so he knew of the danger subjectively.



Mr. X’s damages may included pain and suffering, lost wages, loss of consortium, medical

expenses and punitive damages. In a contributory negligence or assumption of the risk jurisdiction

his recovery may be barred , but in a comparative fault his recovery may be reduced by his fault/risk.



All parties may also choose to sue Park, Inc.



Mr. and Mrs. X v. Park, Inc.



Mr. and Mrs. X will claim that Park, Inc. has a duty to them under an Andrew’s like analysis

(duty to world) or Cardozo (risk perceived defines the duty).



They may use a BPL analysis to show that the risks of having the volleyball court so near a

residence outweighed the benefit.



The Park will argue that they need not eliminate all risks and that the probability of harm and

extent of harm is so low that they were not negligent.



Assuming the Xs show that the park was negligent, they will have to show that the park was

the actual (but for or substantial factor) and proximate cause (the injury was foreseeable) of his

injury.



The Park will argue that the intentional acts of the players were intervening causes that broke

the chain of their liability.



Further, the Park will argue (as above) that the Xs assumed the risk and were aware of it.

Since the Park was not negligent this may bar recovery or reduce recovery.

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The X’s would try to show pain and suffering, medical expenses, loss of consortium, loss of

enjoyment of life, wages and punitive damages.





All players v. Park



All players may bring the park into their suit or sue them separately for negligence.



They will argue that the park owed them a duty as invitees to warn of any latent dangers and

make the premises safe. Further, they can argue under Rowlands, that the park owed them a duty

to warn of any danger they were aware of. Rowlands rejects the traditional tripartite distinction and

instead uses an Andrews-like duty approach.



They may also argue BPL as did the Xs.



They will argue that the park breached its duty by not preventing balls from escaping or

putting the court elsewhere.



They may use this negligence as a supervening causation argument in their individual claims.



They will have to show that the park was a but for cause (it was since without it none of this

would happen) or substantial factor and the proximate cause of their injuries. Under a foreseeability

or direct consequence approach, these kinds of injuries are expected to result from volleyball



The Park will argue that the players were each supervening factors. If any player is held for

an intentional tort, this would be a strong argument.



The players will ask for compensatory and punitive damages. Note: damages may be

affected by tort reforms occurring today. If the X’s sued all the players together (joint and severally),

then damages for non-economic injuries may be collected only severally. Further any medical pain

and suffering awards may be capped at $250,000 and any punitive damage awards would have to be

supported by clear and convincing evidence and may be capped at three times the actual damages

or $250,000. Or, a percentage of the punitive damages may go to a state fund.



Further, if any player is held liable for an intentional tort and cannot pay, victim’s

compensation statutes may provide the Xs with recovery.





All players and the Park v. Mr. X



All players and Park employees may be able to sue Mr. X for some sort of illness they can

create and blame on his insecticide. Given the threat of toxic tort litigation, they may succeed

without answering the two fundamental questions:

1) can this substance cause an illness and 2) did it cause this person’s illness.

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Further, as the chemical aids suit shows, they may not even have to prove that they were

actually sick, just that the toxin put them in fear of being sick or enhanced their risk of getting

disease.



Mr. X would surely bring in the manufacturer of the toxin who would claim that no scientific

link has been discovered.



Under the Daubert test, the players may find a doctor who would be able to say there was a

link, even though such a study had not been published anywhere (as the Frye test required).



Breast implant litigation is the prime example of the kind of claim that the players, the Park

and maybe the Xs themselves may gave against the manufacturer.



Further, the players would at least sue Mr. X alone in negligence since he violated a city

ordinance. Violation of ordinances are not negligence per se in the way violation statutes are.

Nonetheless, they may infer a standard of care. The players would have to show that the purpose of

the ordinance was to protect them from being exposed.



Again, they would have to show causation (difficult since it is a toxin - see above) and

damages.





Question II



Thad v. Philip Morris



1. Products Liability



There are 3 causes of action in a products liability suit that Thad can choose: negligence,

strict liability, or warranty.



There are 3 types of defective products:



1) manufacturing defects: when the product leaves the manufacturer in a different

condition than intended (there is no evidence of such a defect on these facts)



2) Design defects: when the product leaves the manufacturer in the intended

condition, but there is a flaw that makes it unreasonably dangerous to the foreseeable

user.



3) Inadequate warning: when there is an inherent danger that is not obvious to the

reasonable consumer & is not adequately warned against.



Thad will have to show that there was a defect, that there was an injury and the defect was

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the proximate cause of the injury.



Thad may try and show that there was a design defect in the cigarettes. Under a negligence

theory, he would have to show (by BPL test) that the risks of these cigarettes outweighed their

benefits and that there was an alternative, safer way to make the cigarettes.



He may introduce the NIST study and expert witnesses to show this. However, all of these

statistics are deceiving and may not in fact indicate that the alternative way renders the product safer

under a BPL analysis.



To avoid this confusion and uncertainty, Thad may prefer to try to argue under strict liability.

The Restatement 2nd applies strict liability if a product is unreasonably dangerous. This is a vague

description and courts have adopted a consumer expectation and risk utility (or a hybrid: Barker says

the burden is on the defendant) to prove that a product is unreasonably dangerous. Under a risk

utility test, Thad will not have to prove negligence, but that the product’s social utility did not

outweigh its risks. Again, the statistics are deceiving so Thad’s best bet may be to prove inadequacy

of warning.



Strict liability and negligence theories are about identical in inadequate warning. Thad will

have to show that the deficiency of warning made the product unreasonably dangerous. He will

indicate that there was no warning about the fire hazards on the box, or that it was not large or severe

enough. Further, he will have to show that Philip Morris knew or should have known of the danger

(as supported by these statistics).



Again, Thad can indicate that the benefits did not outweigh the dangers.



Further, he would have to show that were there a warning of the fire danger, he would have

altered his behavior. Nonetheless, even if there were intervening factors, the warning would only

have to be a substantial factor in causing the damage.



Philip Morris has several defenses:



First, that the stats are deceiving and under a risk/utility test, the risks were outweighed by

the benefits. I.E. the risks were not sufficiently proven by these studies. Further, they will argue that

Thad assumed the risk by deciding to smoke, was contributorily negligent by becoming intoxicated

and therefore recovery should be barred or at least reduced in a comparative fault jurisdiction.



Further, they may argue that Thad misused the product since it was meant to be smoked, not

put in a sofa (this is a weak since dropping a cigarette is foreseeable misuse and only non-foreseeable

misuses are defenses).



Thad will have to show that the failure to warn was a substantial factor of the resulting

injuries and damages.

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Negligence: emotional distress



Thad will argue that he suffered emotional distress as a result of Philip Morris’s activity.

This is a difficult argument since he will have to apply the zone of danger test, impact rule, or Dillon

test. If he can stretch the argument to say that Philip Morris caused the death of his mother and he

was in the zone of danger (the fire) and suffered mental disturbance that an ordinarily sensitive

person would by watching his mother die, then he may recover.



However, this is a stretch of these tests since it does not involve a sudden accident.



Further, Philip Morris will argue contributory negligence, assumption of the risk, and no duty

to bar this suit.



Damages



Thad will argue medical expenses (for his --- ), emotional distress, pain and suffering, the

wrongful death of his mother, loss of wages, loss of consortium (personal relationship hurt), property

damage (his apartment), and punitive damages (once awarded only for intentional torts, but now

awarded in many products liability actions). Recovery will depend on whether his contributory

negligence of drinking or consumption of risk bar recovery or if this is a comparative fault state then

such questions as if it is aggregate, or joint and severed, or if there is a settlement or insolvency

becomes issues.





Several Notes:



1) The Restatement 3d does not specify strict liability in a defective design action,

but is more feasible, allowing the plaintiff to choose since there is a lot of overlap.



2) Mr. Sugarman indicated that negligence is the most common action (which Thad

used in his failure to warn suit).



3) These use of statistics is similar to the problems in toxic tort cases where there

is no direct cause proven between the manufacturer and the injury. Nevertheless,

Philip Morris may choose to settle instead of incurring the cost of a trial.



Thelma v. Thad



As of 10/96, firefighters may sue people they rescue for negligence. Prior to this there was

a firefighter rule that precluded professional rescuers from suing since they assumed the risk of the

danger they would confront and were trained and compensated to do so. This eliminated a double

recovery from taxpayers who paid their salaries and now would have to pay damages.



Since Thad was negligent in becoming drunk and smoking in the house, Thelma may sue

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Thad for her damages. She will have to prove Thad was a but for or substantial factor cause as well

as a proximate cause. If it is shown he caused the fire and the court takes a direct foreseeability

approach (Polemis) she may recover.



However, the court often makes its proximate cause decisions based on policy choices of

fairness (Andrews words) and who can pay. Since Thad does not have a lot of money, they may

choose a foreseeability approach, and reign in Thad’s liability by claiming the extent of harm could

not be anticipated.



Assuming Thad is the cause, Thelma could recover for medical expenses, pain and suffering,

lost wages and maybe punitive (for Thad’s gross negligence). Note: Mr. Sugarman reminded us to

never leave out any possible damages.



Thad v. Bunky and NBC



Thad may bring NBC into this libel action (as respondent superior) to ensure recovery since

they probably have deeper pockets than Bunky alone.



Thad has a claim in libel. Although the words were spoken, today live and scripted TV and

radio shows are considered libel because of the masses they reach.



Thad will have to show that the words were published (they were since third parties watched

the show), that they were defamatory and harmed his reputation and that they were of and concerning

him (they were since they mentioned his name). As to whether the words were defamatory, Thad

will have to show that they meant what he said they meant and that the meaning was defamatory.

The low class drunk statement is probably libel per se since it is defamatory on its face and could

cause one’s reputation to be harmed. The talk about Thad’s visit to his mothers bedroom, however,

may not mean what Thad says it means. The court will have to decide this, using a community

standard. Further, if there is more than one possible meaning, the jury will have to decide. Thad

may offer extrinsic evidence (colloquium) or argue inducement and innuendo to show that these

words suggested some form of incest.



In order to recover for this part of the suit, Thad may have to prove special damages (actual

pecuniary loss) since the statement would be libel per quod. Courts are split on this requirement.

Bunky and NBC do not have the defense of truth since this is an opinion show. They may argue that

they have a conditional immunity since reporting on the danger of cigarettes causing fires is in the

public interest. Further, since this is an opinion show, they will argue a fair comment privilege that

allows people to speak their opinion on matters.



However, if constitutional issues apply to this case, Thad may argue that their opinion is not

protected by a privilege because given the context and verifiability of the words, the opinion was

sufficiently fact based to be defamatory/libelous (since Thad is not a public figure he will not have

to prove that NBC and Bunky acted with actual malice in publishing the statements). Further since

Thad is a private figure he need prove only that Bunky was negligent. He will also have to prove

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actual damages (such as harm to reputation - he should be able to do on these facts). this actual

damage requirement is a way of protecting the media since Thad need only prove they acted

negligently.



NBC and Bunky will argue that the words could not be taken to be verifiable. Alternately,

they could argue that the words were true (difficult defense, especially regarding the mother

comment).



Thad may also try to sue Bunky for sexual harassment, for the suggestive remark, though this

is not a strong argument since most harassment claims involve work environments.



As to damages, Thad may recover for harm to his reputation, lost wages that resulted, loss

of consortium (if the comments affected his personal relationships) and punitive damages (to deter

Bunkey and NBC from these comments and make them pay until it hurts).



A final comment: The concept of environmental racism also comes up on these facts with

regard to Philip Morris. They were aware of the danger (however convoluted the statistics are) of

their cigarettes causing fire damages. It could be argued (if a study shows) that lower socio-

economic classes are more likely to drink and smoke.



As such, this fact pattern illustrates how particular big businesses can profit from the

vulnerability of lower classes. If Philip Morris successfully argues that the risk does not outweigh

the benefit of making the other cigarette, then they are putting these people at risk even though they

probably could afford to change their ways (a good argument for punitive damages since they know

of the danger and didn’t do anything and caused many to suffer. Then they will argue serial claims

are not fair since they would have to pay many people. These are the issues). This thought is based

on our discussion of environmental racism and lead paint.





Question III



a) As analogized to a mass toxic tort theory, 2 questions need to be answered to establish

causation and subsequent liability:



1) can the guns cause the kind of injury claimed?



2) did the guns of these manufacturers cause this particular plaintiffs injury?



It is clear that guns can result in death, so the real question that needs to be addressed is #2



Mass tort claims are characterized by problems of identification, source - given other places

to get guns and boundaries. Given the number of potential sources of the fatal bullet in any

particular killing, and the problems of identifying the source, these types of situations challenge the

traditional two party adversarial system.

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Several different approaches have been established to answer the ambiguity that question #2

proposes. One approach is a substantial factor approach whereby it must only be determined that

each manufacturer was a substantial factor cause of the bigger problem that led to an individual’s

injury. alternatively, a court may adopt a market share theory (DES cases) that holds the

manufacturers liable for their share of the market even if it cannot be proven that their gun actually

did the killing.



Neither of these approaches however, answers the question whether the manufacturer’s

caused the deaths. This lack of evidence can be remedied by doing a study of the guns that are

recovered form minors and criminals to determine whether these manufacturers are, in fact, the cause

of these deaths. Further, the study may want to show that the manufacturers do not abide by

licensing guidelines in their sales and cause the guns to flood the market. The difficulty in

establishing that the manufacturers are responsible for letting the guns fall into the wrong hands.



Nevertheless, courts have adopted approaches such as the ones mentioned above, to get

around the difficult question #2 in mass tort cases.



b) The plaintiffs’ strongest argument may be based on a market share approach similar

to the DES cases. As such, a manufacturer may be held liable for their percent share of the market

even if it could not be proven that their gun did the killing. As I have stated before, causation often

becomes steamrolled in mass tort claims since our system favors two-party adversarial system.



Nonetheless, such an approach would reflect the policy statement that because the guns pose

a general, fatal hazard to the community each manufacturer should pay for their contribution to that

harm.



Because courts have adopted this approach in the past (for DES cases), this is a strong

argument for the plaintiff.



Alternatively, if the case becomes a class action suit (like Agent Orange), then a substantial

factor approach my also work (similar to asbestos). So long as each manufacturer’s gun was

responsible for some of the deaths, then the jury could decided how much each manufacturer

increased the risk for the members of the class.



c) Defendants may attempt to counter such an argument by insisting that they not be held

liable unless it can be proven that their manufacturing causes the guns to fall into the wrong hands

and creates a general hazard to the community. As I discussed in another question, however, this

is a weak argument today where causation no longer seems to be required in mass tort claims (e.g.

the chemical aids suit in Texas, breast implant litigation, electromagnetic fields). Further, defendants

may argue that the community assumes the risk by buying guns. Again this is weak, and the

government would probably step in and say that such a risk assumption is not allowed (acting

paternalistically as they do in not allowing a consent to ultimate fighting).



This discussion indicates that causation in mass torts claims is a real problem today. In

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Angel’s article, she describes how it leads to corruption of lawyers, experts, and the media. This

factual scenario is ripe for this kind of ethical/political struggles given the community risk and

political overtones.



Ironically, however when the government is the potential defendant, causation still does play

an important role in determining whether an action can lie. Specifically, the Gulf War Syndrome

illustrates how the government can avoid liability based on lack of causation. The big business

defendants mentioned before, however cannot. Further, this has led to huge settlements in

anticipation of losing cases even without a proven link and has therefore led to torts reform

movements.



As long as big businesses continue to have deep pockets, as the gun manufacturer probably

do, the fact that causation has not been proven is not a strong defense.



This court, however, appears to be doing the right thing by requiring causation.