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 ............................................................................. Model Answer for Spring 1996 Torts Final Exam ................................................ Fall 1996 Torts Midterm Exam ............................................................................ Model Answer for Fall 1996 Torts Midterm Exam ............................................... Fall 1996 Torts Final Exam .................................................................................. Model Answer for Fall 1996 Torts Final Exam .....................................................
30 34 45 46 54 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.)
30 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!
31 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 batteryoperated 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.
32 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
33 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?
34 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