William Mitchell College of Law
Final Examination
Torts II § 2
Professor Phebe Saunders Haugen
Friday, May 9, 1997 1:00 PM to 4:00 PM
Rooms 301 and 305
Student Test No.
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2. Put your test number on this page and on all bluebooks.
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4. If you do not use your test number, you will be deemed to have waived your privilege of anonymous grading.
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It is a violation of the Code:
1. To use any sources which are forbidden by the instructor to complete an exam.
2. To submit as one's own work the work of another.
3. To engage in any conduct which tends to give an unfair advantage to any student in any academic matter.
Knowledge of any violation should be promptly reported.
Violation of the Student Conduct Code may result in expulsion or suspension
from the college or dismissal from the class.
Graduating Seniors If you are a graduating senior, note this fact conspicuously on all bluebooks and this exam paper.
Typing Area: If you are going to type your examination, the typing area is located in Room 107. You must return the exam to this room at the conclusion of the exam period.
Special Instructions
This is a closed-book exam. You may not use any materials or consult with anyone during the exam.
Always discuss all reasonable tort claims and defenses that any party may raise unless the instructions with the question limit your discussion to certain issues. You should not discuss intentional torts.
If you believe that you need more facts, you may make any reasonable assumptions consistent with the given facts, but be sure to state your assumptions as such and say why they are important to the resolution of the problem. If you discuss an issue and you believe that the same issue appears in another place in the exam, you need not repeat your discussion of the basic aspects of that issue, but you may instead refer to your earlier discussion and explain how it applies to the facts in the later problem.
This exam is graded as a whole. The questions are not necessarily of equal weight, and you must decide on the relative effort to devote to each. It is not possible to test you, even in 3 hours, on everything we studied this year. Do not expect to see issues on everything you know about torts raised in this fact scenario.
This is a 3 hour exam. You must therefore turn in your blue book(s), and this exam, tucked inside the blue book(s), at the end of 3 hours, whether you have finished the test or not.
And Finally, A Note to Section 2:
I have very much enjoyed having you all in class this year, and I will always be grateful for all your kindness and support this last December. Have a great summer and best of luck to all of you in your law school careers, and as lawyers! P.S. The torte was wonderful. Thank you all so much.
General Facts:
It was a bright, bitterly cold day on January 27, in the year 1888,(1) when Merville L. Saunders, set out after having lunch at home, to board the cable car on the brand new Selby Avenue line, that would take him back downtown to his job at the Northwestern Fuel Company. Mr. Saunders lived at 258 Dayton in St. Paul, with his wife, Phebe, and their children, Cornelia (Nellie), age 22, and Arthur, who was 7. At about 1:30 p.m., Mr. Saunders stepped outside and walked over to the stop nearest his house, at the top of the hill at Selby and Nina. Within minutes, the two-car cable train arrived, and Mr. Saunders boarded, stepping through the enclosed, crowded passenger car, to the open platform at the rear.
The St. Paul City Railway Company (the Company), only days earlier, had completed construction of its Selby Avenue line, which ran East into downtown, from about St. Albans, down the long steep hill where the street car tunnel was later built, below the site where the St. Paul Cathedral now stands. At the base of the hill, the line made a rather sharp right-hand turn onto what was then Third Street, and then continued into the center of town.
The cable train that ran on the new line consisted of a front "gripper" car, and a rear passenger car, which was pulled by the gripper. The two cars moved by means of a grip mechanism located in the middle of the gripper car. The gripman who operated the mechanism would clamp it onto a moving cable, located in a slot just below the surface of the street, and the two cars would be pulled along at a constant speed. When the grip was fully engaged, the cars would be kept moving at perhaps 7 miles per hour, whether on level ground, up or down hills. When the gripman wanted to stop the train, he simply released the grip mechanism from the moving cable, and the cars would slow to a stop.(2) The gripper car was also equipped with a brake, located at the back of the car, which served to help stop the cars on level ground, after the cable grip was released, or to assist the grip at maintaining a constant speed, when the cars were traveling down hills. The brake could not, and was not intended to, stop a train moving at more than about 10 miles per hour.
There had been numerous delays in the opening of the Selby Avenue line, and considerable controversy as well. While St. Paul residents were eager for the new, convenient transportation to and from downtown, many wise voices had cautioned against running a cable car down such a steep grade as the Selby Avenue hill, especially in the winter time. The St. Paul Daily Pioneer Press and Dispatch had run editorials and commentaries, pro and con, for weeks. For years, similar cars had been pulled up and down the hills by horses, carrying passengers to and from downtown, every day, without mishap. In fact, even after the Selby line was completed, the Company kept its horse car line, a few blocks over on Summit, to transport the more timid. Still, most St. Paulites favored the "progress" they saw in the new, "modern" cable cars.
On January 27, a Friday, the man in charge of the grip was a new Company employee called Johnson, who was being overseen and trained by a very experienced grip operator named Caldwell. Johnson had been hired at a very low rate of pay, as he had had no experience with cable cars at all before coming to the Company. Caldwell, on the other hand, had worked on the San Francisco cable line for a number of years before coming to St. Paul, and his starting pay with the Company had been nearly twice the hourly rate the Company was paying Johnson. Other experienced cable car gripmen had applied for Johnson's position, but the Company had decided to pay less and train the new man itself.
Johnson had never before managed a grip on a cable train going down a hill, much less such a long, steep grade as the Selby Avenue hill. He was visibly nervous as the train approached the brow of the hill, and he started to release the grip. Caldwell encouraged him to go on, and keep the train moving. Johnson engaged the grip, just as the train started down the steep incline. Within moments, it became clear that the cars were moving faster than they had on the level ground, and Johnson attempted to grip the cable more tightly to slow the train, while Caldwell tried to apply the brake, both to no avail. The passengers began to panic, and a number of them jumped from the hurtling train, midway down the hill. At the bottom of the hill, as the train hit the curve onto Third Street, the rear passenger car was thrown from the track and turned over. The force twisted the grip car off the rails, but it somehow stayed upright, and most of its passengers were only jostled about a bit.
The passengers in the rear car, however, were thrown about violently when the car turned on its side. The coal that provided the fuel for the stove that heated the passenger car was scattered as well, and a number of passengers sustained severe bums in addition to their other injuries. Mr. Saunders, who had been standing on the open rear platform of the passenger car, was thrown off the train, and against a tree. He was unconscious, bleeding profusely, and he had suffered a broken neck. His were the most serious injuries, but some 20 other people sustained a variety of injuries including burns, broken bones and concussions. One young man suffered a severed hand.
Subsequent investigation of the accident revealed a number of facts: The Company had given explicit orders to gripmen on this new line to check the grip and the brakes on level ground, before reaching the Selby Avenue hill, on each run. On the day in question, Caldwell and Johnson had performed the check, as ordered, and both the grip and brakes were found to be operating perfectly. Nevertheless, the cable grip in the gripper car had not been able to lock securely enough around the cable to slow the cars, once they had started down the hill. The grip mechanism in the Company's cable cars was manufactured by Grip Soo Ltd. and sold to the St. Paul City Railway Company, which then assembled the cars and installed the mechanism, thoroughly and carefully testing each car before it was put into use.
The Company had done extensive study of cable cars in other cities, and of the then-current design of grip mechanisms, virtually all of which were manufactured either by Grip Soo or by one other company, both of which used the same design. The St. Paul City Railway Company and Grip Soo both knew that it was a well-recognized problem with these mechanisms, whether made by Grip Soo or the other manufacturer, that very cold weather made it difficult for them to close securely enough to maintain a tight grasp of the cable. This weather-related problem with the grip device only caused difficulty on steep hills. The Company had one other cable line in operation in another, more level part of St. Paul, and the grip mechanism on the cars on that line had functioned without incident for several months. Still, the San Francisco authorities had told the St. Paul City Railway Company authorities that they were foolish even to contemplate a cable system in St. Paul, where winter temperatures would virtually guarantee at least an occasional malfunction of the grip device on steep hills. At the time, there was no known way to design the device to work better in cold weather.
The Company also knew, however, (and the San Francisco experts agreed), that the skill of the gripman handling the device has much to do with controlling its action, even on hills, in cold temperatures. The Company had several very well-qualified gripmen, such as Caldwell, and were training others, like Johnson, to ensure the safe operation of their new Selby Avenue line. Had Caldwell, rather than Johnson, been at the grip that day, the train very likely could have been better controlled before it started down the hill, so that the grip mechanism would not have had to work against the accelerating speed of the train, on such a cold day, when the grip was not functioning at its best. The weather, the problem with the gripping mechanism, the long, steep grade of the Selby Avenue hill, and Johnson's inexperience all contributed to the disaster's occurrence.
Further Facts:
Mr. Saunders was rendered quadriplegic and severely brain-damaged as a result of the accident, and required full-time nursing care at home for the rest of his life. A further complication occurred immediately after the crash, however. A man named Briggs, who lived in the house on Third Street nearest the tree against which Mr. Saunders was thrown, attempted to bring him inside, where he would be warmer, to await medical attention. In doing so, Briggs moved Mr. Saunders in such a way that his neck fracture was greatly aggravated, perhaps, in fact, causing the irreparable spinal cord damage which destroyed Mr. Saunders' chances of recovering the use of his limbs. The young man who lost his hand, one Louis Roberts, had boarded the train at the Nina-Selby stop, along with Mr. Saunders, but only after Roberts had had a spirited conversation with his friend Stevens, in which the two had discussed the potential danger of a ride down the steep hill on the new cable car. Stevens was rather inclined, despite the cold, to walk five blocks over to Summit Avenue, and take a horse car downtown. "Louis," said Stevens, "You're out of your mind to get on that thing! Look at that hill. You'll be lucky to get to the bottom of it in one piece!" (Little did he know how prophetic his words would become). "Stevens, you have no sense of adventure!" responded Roberts. "I'll be back at work a half hour before you will, you coward!"
After doctors arrived at the scene, and Mr. Saunders' condition was stabilized at the Briggs home, a sleigh was summoned to take Mr. Saunders home. Mrs. Saunders, who had been brought to the scene by the same sleigh, had to await other transportation back to the house, and the sleigh bearing the horribly injured Mr. Saunders arrived first at 258 Dayton. The only person at home at the time was the Saunders' daughter Nellie. The little boy Arthur was at a friend's house. When Nellie saw her unconscious, disfigured and bloody father and learned of his terrible accident, she was beside herself. Only an hour or two earlier, she had been enjoying lunch with him and her mother at the house. Nellie was a school teacher, of a rather fragile emotional disposition. She was so thoroughly undone by the shocking sight of her father, that she suffered a complete breakdown, and was never able to work at her chosen profession again.
One of the other, less severely injured passengers that day, a man named Parker, was dazed and disoriented from a mild concussion, as he staggered off the overturned passenger car. In the confusion, he wandered into the Briggs house, not knowing where he was, and staggered into a small room, in which Briggs did experiments with various chemicals. On a counter, there was a large unmarked beaker containing a light amber liquid. Suddenly overcome with dizziness, Parker lurched into the counter, overturning the beaker, and spilling the contents on his forearm, immediately causing an excruciating burn. (The substance proved to be sulfuric acid). Briggs, it seems, was an amateur inventor(3) , who had been working on a formula for the perfect mouse poison, and the room was loaded with toxic chemicals, which he had been mixing in various lethal combinations.
Questions:
1. Consider and discuss all causes of action that Mr. Saunders might have against any other party in this fact scenario. (Disregard the fact that any lawsuit would probably have to be brought on his behalf by his family).
2. Does Nellie have any cause of action here? Discuss.
3. What about Roberts, the young man who lost his hand? Does be have a cause of action against anyone here? Discuss.
4. And what of poor Parker? Can he recover from anyone?
5. What, if anything, would change about your answer(s), if it turned out that Grip Soo Ltd. was bankrupt?
Be sure to discuss all the claims and theories that might reasonably be asserted by each plaintiff, and consider the difficulties that would be encountered, defenses that would be raised, and so forth. Again, assume today's law is applicable.
Torts II (Haugen) Exam Comments, Spring '97
General Comments:
This proved to be a very good set of exams. I was extremely pleased that most of you did as well or better than you had first semester. I was especially happy about this since after the test, I received an unsigned note from some of you (I don't know how many), expressing concerns with the length of the exam, and fears that you had not done your best because of it. I'm sorry for the anxiety you felt. I did worry that the "set up" for the questions was a bit longer than usual, and the extra half-hour for reading was intended to deal with that. It's pretty clear from the results, though, that your worries were unfounded, for the most part, since all but a handful of you finished the test, and most did so quite thoroughly.
On that subject generally, though, you should know a couple of things: First, we (your profs) all recognize that we do make mistakes sometimes in estimating the length or complexity of a test we've written, and since there is no dry run, we don't know until we see the papers, what it was that might have given the students problems we didn't intend to cause. Second, when a significant number of you do not finish an exam, or do not see an issue we thought was there, or in some other way surprise us, we all take that into account in grading, sometimes totally disregarding the missed issue or unfinished last question, as the case may be. In this test, however, even those of you who apparently felt rushed probably did a better job than you thought you had done.
The Exam's Coverage
This test had issues relating to negligence (both generally and with respect to products), product liability under Restatement §402A, assumption of risk, negligent infliction of emotional distress, the duties of landowners to trespassers and others, the rescue doctrine, vicarious liability, intervening causation and abnormally dangerous conditions or activities. There were a number of instances where the defenses or challenges to the available claims were of primary significance. Most of you did a very good job identifying the issues and in most cases the challenges that could be raised. As always, quality of discussion was important, and often the discussion was far more important than whatever conclusion you eventually reached.
The Questions:
1. Mr. Saunders v. The Company and its agents Johnson and Calwell, v. Grip Soo, and v. Briggs:
Here of course, as against the Company, the cause of action in negligence was primary, and after a brief discussion of the elements, duty, breach of duty, causation and damages, and identification of the breach of duty as being the most problematic element, the various, arguably negligent acts and omissions of the Company should have been looked at: using a gripman who was inexperienced, when more experienced ones were readily available for more money; allowing this rookie, Johnson, to control the train on this very steep run; using the Grip Soo-manufactured mechanism in the train, despite knowledge of its drawbacks; running a cable line at all down Selby hill in the winter, given the knowledge the Company had, of the risks, and perhaps failing to warn the riders of the particular risk of the hill in winter. Many of you correctly noted that the Company, as a common carrier has a higher duty of care towards its passengers.
In discussing negligence, the basic standard of reasonable care of course never leaves us. Would a reasonable company make the decision to do what it did at each stage? Evaluation involves balancing the benefits of each decision with its risks and drawbacks, and bringing in the important facts that support your contention.t is important to note that all of the factual elements were apparently required for disaster to follow here: the weather, Johnson's inexperience, the flawed gripping mechanism and the grade of the hill. Your discussion of causation should note that fact, and indicate that "but for" any of these elements, the accident probably could have been averted. Given the Company's full knowledge of this state of affairs, it seems pretty clear that they were negligent in a number of ways. When you came to product liability, you should of course have mentioned that negligence is still available against the Company, but it would relate specifically to their use of the Grip Soo device in their trains under these circumstances. Again, the surrounding facts are important in assessing reasonableness. Since the Company is not a seller of a product, and, more specifically, is not "engaged in the business of selling such a product," 402A does not apply to the Company, and it cannot be sued in strict product liability. Similarly, the Company is not "in a chain of manufacture and distribution" for purposes of Minn Stat. 604.02 subd 3 either. It is Grip Soo only, who may have to answer under 402A for their gripping mechanism.
Mr. Saunders v. Grip Soo. This discussion should have begun with a description of the various claims that can be made against a seller of a product in a defective, unreasonably dangerous condition: that is, mismanufacture, defective design and failure to warn. Here, defective design is clearly the best argument, as you all realized, and involves consideration of the consumer expectation test and the risk/utility test, with its seven or so factors to consider. Again, most of you had a pretty good grasp of that problem, and its heavily negligence -based considerations of balancing risks and benefits. Some of you concluded that factors like the temperature and the skill of the operator. The state of the art at the time, and the feasibility of alternatives were of course important to mention.
As for both Grip Soo and the Company: Each could have warned people boarding the train about the gripper mechanism's operation in such conditions, so that passengers would know that the grip was potentially defective when they boarded. Failure to so warn may have increased the likelihood of liability for negligence (the Company) and in negligence or under 402A (Grip Soo). With a warning, however, boarding passengers would have been making a conscious decision to ride knowing the risk - - like a ride at the amusement park - - a kind of primary implied assumption of the risk, where the P knows that there's a risk, even when the activity is conducted with all due care, and where the injuries must result from the inherent dangers of the activity, not from any negligence of the D. Or perhaps this is an implied secondary assumption of the risk (if you concluded the Company was negligent, especially given that it had the alternative of horse-drawn cars), where the P is made aware of the negligence of the D and chooses either reasonably or unreasonably to encounter it. This kind of negligence, if it is unreasonable, is now a kind of "fault" which the jury may consider to reduce P's damages. (Primary and express assumption of risk will still bar the P's recovery altogether).
Some of Mr. Saunders claims against the Company would also arise out of the conduct of the gripman and his supervisor, if they were negligent. Causes of action against these employees would be brought against the company in vicarious liability, or master/servant law, which should have been briefly discussed.
Mr. Saunders' potential action against Briggs raises the problem of the good Samaritan who made the situation worse. Discuss generally the absence of a duty to rescue at all, but the responsibility to use due care once you do act. Good Samaritan laws have made some situations easier for rescuers, and in Minnesota, the statute even requires some minimal action. Here, however, I was looking for discussion of the common law nonfeasance/misfeasance distinction. The Briggs facts also raised the question of intervening causation, and whether his acts superseded the negligence of the Company or Grip Soo. The foreseeability of a rescuer, even a negligent one, should have led you to answer no to that question.
Roberts v. Grip Soo and the Company: Here, of course, the same issues should have been raised as with Mr. Saunders, except that the facts indicate that Roberts seemed to know and accept the risk. If you had not discussed implied assumption of risk with Mr. Saunders, this lawsuit should have provoked such discussion. Again, some of you concluded that Roberts did assume the risk of a known dangerous situation, that was not necessarily the product of the Company's or Grip Soo's negligence. Others felt he did not assume the specific risk that the car would run away down the hill, and that it was not negligent or even unreasonable for him to expect that he would arrive in one piece, even though the ride might be a thrill.
Nellie v. the Company: Here the issue was the viability of her claim for her negligently inflicted emotional distress. Here the question is essentially one of duty or proximate cause. Was the company negligent to send Mr. Saunders home in this way, without anyone to help the emotionally fragile Nellie deal with the shock? Was it foreseeable that she would be so upset? Yes, but as a policy matter, should there be liability here, or will proximate cause limitations bar her recovery? That's the issue, when the emotional harm is not parasitic to some other physical harm. You should have mentioned the old parasitic damage/impact rule, and the zone of danger rule, and finally considered the Dillon v. Legg criteria.
Parker v. Briggs or the Company for injuries suffered from the sulfuric acid burns. What was Parker doing there? Was he an invitee or licensee or trespasser? His status on Briggs's property that day might determine whether Briggs had any duty to keep the place safe for him; on the other hand, were these substances of the sort that there would be strict liability for? Normally yes, but the duties of an owner of land to trespassers /licensees etc would affect the outcome, probably. You should have considered the various factors that have been applied to test the reasonableness of keeping dangerous chemicals, and whether there should be strict liability for their presence here.
This question also raised the issue of the Company's or Grip Soo's liability for such a bizarre injury, arising directly but probably not foreseeably from the Company's responsibility for the wreck. Was this burn injury too remote to be within the foreseeable scope of the risk the Company or Grip Soo created, and thus a superseding cause attributable to Briggs? Or was it sufficiently connected to the Company's or Grip Soo's responsibility that it should be borne by one or both of them? That was the issue.
The final question asked what you might do differently if Grip Soo were bankrupt. This question was designed to provoke a brief discussion of the concepts of joint and several liability in negligence law, and of reallocation principles when one of the joint/several defendants turns up with empty pockets. The subtlety here was that Grip Soo alone has liability as the seller of a defective product under 402A, if anyone has it. Only the negligence result is joint and several as to the Company.
Here I was not looking for a huge elaborate analysis of the statute, just a general discussion of how it applies in the case of multiple defendants, and of the specific differences when product liability is at issue. Many of you did not have time to do an elaborate discussion anyway, and did not do so.
Conclusion:
I hope this test was not too awful an experience for you to go through at the end of your first year in law school. I have concluded it had about the right number of issues and complexity to yield fruitful discussions from which I could evaluate your performance second semester. Again, I was very pleased with your responses for the most part, and felt that on the whole, you did a great job. I really enjoyed having you in class, and I'll look forward to seeing you as you continue on through law school. Best of everything to you all.
1. This is not a misprint. The facts of this problem are based on an actual event that occurred in St. Paul in the year 1888. You may assume, however, that the law governing this problem is the same as the law that would apply today. By the way, the names of the central characters have not been changed. M.L. Saunders was my great-grandfather.
2. For those of you young Minnesotans unfamiliar with cable cars, the principle is much like that of a rope tow you might find at a smaller ski area.
3. Briggs had recently had a rather disappointing experience trying to make a good emulsion for tape that could be used to repair old documents, without injuring their fragile paper. He concocted a formula, applied it to translucent paper, and called the resulting product "Irish Tape." The only problem was, it slid off the documents. Not long afterwards, his interest shifted to mouse poison.