William Mitchell College of Law
Final Examination
Torts II §2A
Professor Phebe Saunders Haugen
Friday, May 1,1998 1:00PM - 4:30PM
Room 125
Student Test No.
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Torts §2A
Professor Haugen
Spring, 1998
Special Instructions
This is a closed-book, three-hour exam. There is an additional 1/2hour for you to read and organize your thoughts. You may not use any material or consult anyone during the exam.
Always discuss all reasonable tort law claims and defenses that either party may raise unless the instructions with the question limit your discussion to certain issues. Be sure to state reasons for all your conclusions.
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 in the later problem.
This exam is graded as a whole, with issues of different weight. You must decide on the relative effort and time to devote to each issue you identify.
It is not possible to test you in three hours on everything we studied during the second semester. Do not expect to see issues on everything you know about tort law raised in this fact scenario.
This is a timed exam. You must turn in your blue book(s), and this exam, tucked inside the blue book(s), at the end of the three and 1/2hours, whether you have finished the test or not. Good luck, and have a great summer. I'll look forward to seeing you all next fall.
Facts:
Bud, a trader in soybean meal and other commodities, recently moved back to St. Paul where he'd grown up, from Geneva, Switzerland, where he'd lived for many years. One Saturday, soon after his arrival here, he went to an upscale Grand Avenue gourmet kitchen shop owned and run by his old boyhood friend Stanley, to purchase an espresso machine for his home. His years in Geneva had made him long for a really good cup of espresso that he could make at home, the proximity of Starbucks and Caribou notwithstanding.
"Stanley," Bud said, "I need to make a good cup of espresso, and I left my old machine in Geneva. What have you got for me?"
"You're in luck, Bud, " said Stanley. "My brother Richie has just begun manufacturing an excellent home espresso machine that I sell here. He calls it the Vite Café. I've actually modified Richie's design on a few of his machines myself, to make them heat faster and produce more pressure quickly. With Richie's approval, I've called my modified machine the "à la Stanley" model. Richie is interested in my modification--he may begin to add it as a regular feature to all his machines--and wants some feedback on how it's working, so maybe you'd like to buy one of them. Or, you can have one of his regular machines. The price is the same, for now, at least until Richie decides to incorporate my modification in his design."
Always interested in things that worked faster and thus saved time (His motto was "If you're not doing at least two things at once, you're wasting time."), Bud decided that one of Richie's machines with Stanley's modification would be the way to go. He handed over $250 to his friend and left with the compact and elegant "Vite Café à la Stanley"
***
Just as Bud was leaving Stanley's shop, he heard a terrific bang coming from the direction of his car, which was parked half a block down the street in front of Murray's Bowling Supply. Bud ran down to his car and saw, to his horror, that the hood of his classic silver 1967 Porsche 912 coupe had an enormous depression in it, as if it had been struck by ... you guessed it... a bowling ball. Just then, he spotted a luminescent neon green bowling ball rolling gently over to the curb just in front of his car. He ran over and picked it up. (It was a Brunswick model 2000, a twenty- pounder, truly an awesome ball.) Bud stormed into Murray's, demanding to know who had dropped the ball out of the upstairs window, where Murray had a 6-lane bowling alley. Murray claimed he knew nothing about it, as he was downstairs in the retail store at the time. He and Bud went upstairs to the alleys, where all six lanes were occupied by rather elderly gentlemen, half of whom were employees of Murray's, and the others, the employees' friends. Bud ran to the window overlooking his car and could see that the ball had obviously been rolled or dropped from that window. There was only a very narrow sidewalk below, so the car's hood was almost directly beneath the window. Furious, Bud demanded of the six men, which one had dropped the ball from the window. Of course all of them denied having anything to do with such an act of near-criminal stupidity. Bud stormed out, telling Murray he was going to sue. To make matters worse, when he got to his damaged car, Bud saw a ticket on the windshield. He had parked in a posted no-parking loading zone for the store.
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Incredulous at his bad luck, Bud discovered that, amazingly enough, the Porsche was still driveable, despite how pathetic it looked with its smashed hood. Bud set off toward home, traveling west on Grand, at a cautious speed, when he spotted his neighbor, Pupkin, in his new Volvo convertible, pulling out of the driveway of a dry-cleaning establishment on the north side of Grand Avenue, making a left turn onto Grand, in front of Bud. At the same time, a blue sport utility vehicle (SUV) was traveling east on Grand, approaching Pupkin's vehicle. Pupkin saw Bud and waved. The driver of the SUV, who had been speeding and talking on his cellular phone, failed to see Pupkin till it was too late. The SUV rammed into the rear passenger side of Pupkin's car, throwing him out of the open convertible onto the street.
Pupkin had not been wearing a seat belt. To make a bad situation even worse, Pupkin was thrown against a 4~foot wooden barrier, which St. Paul city street workers had left in the middle of Grand Avenue, after replacing a manhole cover located there.
Bud pulled over to the curb on the north side of Grand and ran towards Pupkin, who was lying in the middle of the street, bleeding profusely from a deep gash above his eye, where he had struck the barrier. Bud pulled Pupkin over to the side of the street, out of harm's way, but in doing so, Bud suffered an excruciating pain in his lower back, completely immobilizing him. Someone on the scene called an ambulance, and both Bud and Pupkin were taken to the hospital.
Pupkin had a serious head wound, which required delicate and expensive plastic surgery to repair, and numerous abrasions on his body, though fortunately, no injuries that would not heal. Bud wound up spending two weeks in the hospital, completely bedridden with a severely damaged disc in his back, before he could move enough to be released from the hospital. Nick, the driver of the SUV, was uninjured.
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Finally, Bud was home and had a chance to use his new Vite Café à la Stanley. He poured water into the reservoir, filled the small basket with freshly ground espresso roast from Caribou, tamped it gently, and locked the basket into the machine. Within about a minute, the machine began to emit a strange whistling sound. As Bud leaned over it to try to see what was happening, the basket suddenly flew out of the machine, propelled by steam under terrific pressure, and knocked him flat. Scalding water and steam shot out of the machine and ran onto the floor, where it badly burned Bud's hand. Needless to say, he wound up back in the hospital, royally ticked off at his friend Stanley.
Additional Facts:
The Vite Café as designed and manufactured by Richie is a perfectly good and safe home espresso machine. The modification by Stanley also would have been safe unless the user failed to securely lock the basket into the machine before turning it on. Unfortunately, Bud was in a hurry when he made his first disastrous attempt to use the machine, and he had failed to carefully lock the basket fully into position. The extra heat and pressure the machine generated, due to Stanley's modification, had forced the basket assembly to disengage violently from the machine, causing Bud's injuries. Both Richie and Stanley knew this was a risk of the "enhanced" machine as Stanley had modified it, but both of them assumed Bud would never make such an obvious mistake as to incorrectly attach the basket mechanism. He had been drinking espresso, and brewing it himself, for years, after all.
Richie had designed the Vite Café and had been manufacturing it for only a few months. He also designed and manufactured a few other products, unrelated to kitchenware, and was quite successful. The Vite Café was something of a lark for Richie, and his brother Stanley's store was the only outlet for the machines. Stanley got 30% of the price of each unmodified machine he sold for Richie, and 40% of the price of each of those he had modified. There were instructions with the machines, the same for both types, which read, in part: "Be sure to securely attach the basket assembly to the machine before brewing ." This was the only underlined sentence in the instructions. Both Richie and Stanley had used the machine with Stanley's modification, and both had found that it worked perfectly, and considerably more quickly than the machine as Richie originally had designed it.
[Note:- Attached to this exam are the Minnesota Comparative Fault Act and some selected sections of the Restatement 3d of Products Liability, which may be relevant to your discussions.]
Questions:
1. The Porsche and the Brunswick 2000:
Bud wants someone to pay for the crater in the hood of his classic car. Consider and discuss his reasonable tort claims arising out of the mishap in front of Murray's Bowling Supply, and how Bud might assert those claims. What hurdles would he face? What defenses would likely be raised? Who should prevail and why? Explain your theories thoroughly.
2. Le Vite Café and the Swiss Soybean-Meal Salesman:
A. Consider Bad's claims for the physical injuries he suffered from his use of the espresso machine. Discuss all reasonable tort claims Bud might have against Richie and/or Stanley in connection with the machine. What hurdles would he encounter and what defenses would he have to face? Who should prevail on each claim and why?
B. (for this question only): Assume that shortly after Bud used the machines Stanley's store completely failed, and Stanley is bankrupt. If, in Bud's suit against Richie and Stanley, a jury were to find that Bad was 40% at fault, and--Richie and Stanley each 30% at fault, what would be the result for Bud under Minnesota Statutes 604.01 and .02 ? Explain your answer thoroughly.
3. Pupkin, Bud and a Monster SUV on Grand Avenue:
A. Consider and discuss all of Pupkin's reasonable tort claims against anyone arising from the accident on Grand Avenue. Whom might he sue and on what basis? What defenses might the opposing parties raise? Who should prevail in each case and why?
B. What about Bud's injury to his back? Can he look to anyone to compensate him for that? If so, to whom, and on what basis? Defenses? Discuss thoroughly.
Torts II §2A Spring 1998 Exam Comments:
Question 1: Brunswick 2000 - 1; Classic 912 - 0.
Bud(1) would like to sue Murray's Bowling Supply (Murray) or someone employed by or bowling at Murray's for the Brunswick 2000 incident, the details of which are completely unknown to him. All Bud knows is that a bowling ball apparently fell on his car from the upstairs window, where the bowling alleys are located. Perhaps some less than stellar bowler launched it out the window on a back swing. Who knows. He must try to prove negligence, and his best shot is of course res ipsa loquitur. Pretty obviously, this sort of thing rarely happens without someone's having screwed up.
This should involve a discussion of what elements of proof negligence requires, and how res ipsa can result in the court's instructing the jury that they may infer negligence from unexplained facts: that is, they may infer the breach-of-duty element of the cause of action, as well as the defendant's responsibility, from his having had control over the instrumentality that caused the harm.
Of course the most difficult element of proof here is demonstrating just who had control of the instrumentality before it flew out the window. Res ipsa of course requires that the plaintiff pretty much eliminate other reasonable causes. Since the facts tell us that there were 6 elderly men bowling, half of them employees and half guests of the employees, most of you proceeded logically to a discussion of Murray's vicarious liability for those men. Master/servant doctrine requires that the employees be acting in the master's interests, within the scope of their employment, in order for the master to be held vicariously liable for their torts. Presumably, employees of a bowling supply store with a small alley on the premises would be expected and perhaps encouraged to bowl with or for customers, or at least for their own entertainment during slow periods. If they were all employees, the problem would be easier. Because some of them are guests, one might say that it is just as likely that one of the non-employees launched the ball as one of Murray's salesmen, and that the plaintiff cannot therefore eliminate sufficiently other causes.
Some of you thought Murray might be liable for direct negligence in failing to control conditions /bowlers (whether employees or not) in the alley or for not having screens on the windows upstairs so that it would not be possible for this kind of thing to happen by accident. While this makes some sense, it seems quite speculative and perhaps unfair to hold Murray responsible to be watching everyone every minute in anticipation of a fairly bizarre event such as this one. The case of the hotel's responsibility for injury caused by a drunk guest throwing a chair out a window comes to mind.
Some of you noted that, as in Ybarra, Bud might sue all of the bowlers directly on the theory that there is a permissible inference of negligence against one of them, and only they know which one is the culprit. The burden of proving his way out would then fall on each of the defendants, and those who could not do so would be held jointly and severally liable for the damage to Bud's car. It is likely that the others know who did it, and they are all covering up, in which case perhaps they should all be held liable. While this is always a very appealing theory, Ybarra is not widely followed. Still, I think it was important to raise that approach here.
A number of you erroneously suggested that Bud should be held to have assumed the risk when he parked his car in violation of the loading zone restriction in front of Murray's store. While I think this was not reasonable enough even to raise, if you did suggest it, you should immediately have eliminated it. Assumption of risk requires a knowing acceptance of some specific risk, which Bud certainly did not have here. A slightly more reasonable possibility to raise was that Bud may have been contributorily negligent for parking where he did. Clearly, there was no causal connection between this act and the damage to his car. He did not in any way contribute to causing the event, even if his parking were in violation of statute. Some of you said this was negligence per se. Even if it were, it would still not be relevant to the harm for which he is suing. If the damage had come from a delivery truck backing over his Porsche, this might have been a better argument.
Question 2: The Swiss Soybean-Meal Salesman(2) and his Doppio:
The facts regarding the espresso machine raised questions of products liability, of course. There was a product that was perfectly fine until it was modified to get hotter and work faster, and then it had a dangerous propensity if the user weren't careful in setting it up to brew. Failure to attach the basket securely may well have been a foreseeable misuse, and the manufacturer should have corrected the problem or warned more intensely and pointedly than he did.
You should have discussed the three ways in which a product may be "not reasonably safe," under the Third Restatement: manufacturing defect, design defect and warning or instruction inadequacy. Virtually everyone recognized that this espresso machine as modified or "enhanced" by Stanley had no manufacturing defect - the unit conformed to Stanley's design but--there certainly seemed to be a design defect and very likely an inadequate warning of the danger as well, since all there was was an underlined instruction that the user should be sure to lock the basket securely into the machine before brewing.
It was important to discuss how Bud would have to show that there was a feasible alternative design that would have been safer. A discussion of the risk/utility factors would be important to decide if an alternative should have taken the place of this modified design, and whether this one should have been marketed at all. Some of you suggested that it would not have been difficult to provide a more idiot~proof locking mechanism for the basket; that may be. Certainly, however, the original unmodified design was a vastly preferable alternative. Any other "enhanced" design would have had to pass the risk/utility test to be preferable.
Discussion of the inadequacy of the instruction as a warning of the specific danger of the enhanced model was important. This should have involved a description of what qualities make for a good and sufficient warning: ie, sufficiency of detail, intensity and so forth. You should have recognized and discussed the fact that product liability, with the exception of manufacturing defect, is not strict liability anymore, if it ever was. It is strongly negligence -grounded. It was erroneous to refer to this subject as a form of strict liability, as some of you did.
The second part of this question dealt with application of the Minnesota Comparative Fault Act in the product liability setting. You should have explained how our system of modified comparative fault works, and how it would work in this case to bar Bud's recovery, since he is less at fault than either of the two persons he is suing. Even with joint and several liability, Bud is out of luck because the objects of his lawsuit are less at fault than he. The only way he can recover is if he can somehow aggregate their shares of fault. As most of you knew, this requires a showing that Stanley and Richie are involved in a joint venture or enterprise. The fact that they were in a chain of manufacture and distribution is not enough. The facts gave you a fair amount to work with to make an argument of joint venture. The two men are brothers and they share the profits of the sales of these espresso machines. We know that Richie distributed the machines only through Stanley's store, and he fully supported the enhanced machine and participated in Stanley's marketing of it.
If you were convinced that those and perhaps other facts showed a joint venture, then you should have concluded that Bud will be able to aggregate their shares of fault to one larger share, against which he will compare his own. This will result in a 60% share being allocated to Stanley and Richie as a unit. The insolvency of Stanley does nothing to this situation. It does not result in a "reallocation" under 604.02, because the two men are considered as one. Richie will have to pay 60% of the judgment.
Question 3: Formula for Disaster: A Convertible, an SUV and a Cell Phone.
The third mess Bud got involved in here is a more standard, garden variety negligence-based motor vehicle accident. Essential to this scenario was the problem of multiple acts of negligence contributing to the injury, as is often the case. Pupkin(3), Bud's friend in the convertible, has a claim against Nick who, through speeding and inattention, has negligently run into Pupkin's car with the SUV. This seems obvious. Nick's statutory violation will surely be negligence per se, and as such, establishes the breach of the standard of care. This much is a slam dunk. Only causation is left to show. Since Pupkin was actually hurt physically because he was thrown from his car, his failure to wear a seat belt certainly played a big part in his injury. It is arguable he would not have been hurt at all if he had buckled up. While this is not helpful to Nick if Pupkin wants his car damage paid for, it will be an element of "fault" under the Minnesota statute, to be compared with Nick's, when Pupkin sues for his physical injuries.
The other involved party here is the city, whose employees negligently left the barrier out in the middle of the street after they had completed the work that required it. The main question here is not whether Pupkin can sue the city. Of course he can. It seems highly foreseeable that someone, even through negligence, could strike the barrier and be injured. Exactly how this might happen need not be foreseeable, so long as the end result is. (Remember the flaming rat). The question you need to ask after saying that much is whether the city 's negligence (vicarious, of course) is a superceding cause of Pupkin's injury, which will relieve Nick of responsibility. Here the rule is that a cause is not superceding--that is, it will not cut off the liability of the original negligent actor--if it is within the scope of the risk created by the original negligent act or omission. Surely it was within the scope of the risk Nick created that if Pupkin were ejected from the car after the collision, he would strike something in the road, whatever was there.
Some of you thought perhaps Pupkin was contributorily negligent when he waved to Bud and perhaps failed to look out for Nick. This was not so important to me. This whole situation of multiple causes should have provoked a discussion of the tests used for determining causation, the but-for test and the substantial factor test.
As to Bud's own injury, the rescue doctrine was the important thing. You should have recognized that this is yet another "foreseeable risk" sort of situation. The negligent actor, whether it is one or more defendants or the plaintiff himself, will be responsible for harm to the rescuer, who is virtually always considered to be a "foreseeable intervention."
The rescuer is entitled to protection for any injury he suffers while attempting a reasonable--or even a somewhat crazy--rescue. The fact that Bud's injury may well have been due to some preexisting weakness in his back is immaterial. The negligent actor, as we know, takes the plaintiff as he finds him, and is responsible for such injuries as he causes, even though they might be worse for one plaintiff than another.
All in all, you did quite well on this exam. A couple of you wrote genuinely spectacular papers. I was very pleased. The vast majority of you did at least as well, and most better, than you did first semester. You probably know more about tort law than you thought you did, as I have said all along. Best of luck to all of you, and I will look forward to seeing you next fall.
1. Bud is my older brother, whom I love dearly. He is the inspiration for most of my exam questions regarding someone screwing up, especially when the screw~up is at least partly funny. Poor Bud. He has performed this service for me for the last 20 years.
2. He really is a soybean-meal salesman, and he really does live in Switzerland.
3. Pupkin is Joel Pupkin, another commodities trader in Geneva, and a friend of my brother's for the past 25 years. For obvious reasons, no one has ever called him Joel. I do realize this is a whole lot more than you ever wanted to know.