TORTS

SECTION FOUR

SPRING 2000

FINAL EXAM

1. This is an open-book exam. You may use any materials you wish.

2. The exam will last three hours. It consists of three questions. Answer all parts of all three questions.

3. Please write in pen, and please write on only one side of each page of the bluebook.

4. Put your exam number on each bluebook. Do not put your name on the exam or on the bluebooks.

5. When you finish, turn in your bluebooks and the exam itself.

QUESTION ONE: Fox v. Kravitz and Cooper

Emma Fox is a 68-year old woman who lives in a ground-floor apartment in a large apartment building. Ms. Fox has lived in the building for nearly twenty-two years. During the last five years, Augie Cooper has been the superintendent in the building. About eight months ago, Nicholas Kravitz moved into the apartment just above Ms. Fox. From the very start, the relationship between Mr. Kravitz and Ms. Fox was strained.

A fan of techno-punk thrash music, Mr. Kravitz frequently played tunes on his CD player at loud volume. In addition, Mr. Kravitz would often practice playing his bass guitar at odd times of the day, such as 2:00 a.m. or 5:30 a.m. Ms. Fox complained to Mr. Cooper, and Mr. Cooper warned Mr. Kravitz to play his music more quietly. Mr. Kravitz did lower the volume on his CD player and confined his guitar practice to daytime hours. Realizing that her complaints were having the desired effect, Ms. Fox continued to complain. Eventually, Ms. Fox complained to the building owner, Philip Durlauf. Mr. Durlauf decided not to renew Mr. Kravitz's lease at the end of its six-month term.

Incensed, Mr. Kravitz plotted revenge. The day he was moving out, Mr. Kravitz asked to borrow some empty cardboard boxes and a length of rope from Mr. Cooper. Mr. Cooper asked what Mr. Kravitz planned to do with the boxes, and Kravitz said "I'm going to give that old lady the fright of her life. You can have the boxes when I'm done." Cooper asked what Kravitz planned. Kravitz told him that he was going to strap the rope around the empty boxes and lower them out his window. When Ms. Fox came out of her apartment, he was going to shout at her and pretend that he was going to drop the boxes. Cooper told him he could go ahead, as long as no one got hurt.

Unfortunately, Mr. Kravitz's plan went awry. When Ms. Fox walked out of her apartment, Mr. Kravitz yelled "Look up here you old bag!" Startled, Ms. Fox looked up and saw the boxes. Mr. Kravitz lost his grip on the rope and the boxes dropped to the ground. Unaware that the boxes were empty and afraid she was about to be crushed, Ms. Fox fainted. Though the boxes didn't hit her, Ms. Fox was very badly frightened. To this day, Ms. Fox claims she can't walk out of her apartment without remembering the incident and trembling uncontrollably. Additionally, she claims that since the incident she has suffered from terrible nightmares. She would like to sue Kravitz for the trick he played on her. She would like to sue Cooper for failing to stop Kravitz or, at least, failing to warn her what Kravitz was planning to do.

Assess the strengths and weaknesses of Ms. Fox's claims against Mr. Kravitz and against Mr. Cooper.

QUESTION TWO: Chavez v. Tremain Industries

Tremain Industries manufactures a variety of metal products, including brackets that are used to hold window-unit air conditioners in place. Ramon Chavez owns an apartment building that does not have central air conditioning. Each spring, usually around the middle of May, Mr. Chavez installs window-unit air conditioners in each of the ten apartments in the building. Mr. Chavez typically does this installation himself.

Last spring, when he prepared to install the air conditioners, he noticed that one of the brackets for the unit seemed to be badly rusted. Mr. Chavez went to the hardware store and tried to find a bracket identical to the ones he had been using. Unable to find an identical bracket, he bought a Tremain Industries bracket. The packaging on the bracket indicated that it was appropriate for the type and size of air conditioner that Mr. Chavez was installing. Mr. Chavez went to the apartment building, installed the other nine air conditioners, and then began to install the unit with the new Tremain bracket.

This unit was on a second floor apartment. In order to install the Tremain bracket, Mr. Chavez climbed a ladder to the second-floor window, drilled holes for mounting screws, and then screwed the bracket into place. The instructions that came with the mounting screws emphasized that it was important to make sure the bracket was installed securely before putting the air conditioner in place. Mr. Chavez tested the bracket by pressing on it firmly and to his horror one end of the bracket gave way. Mr. Chavez lost his balance, slipped from the ladder, and grabbed for the bracket. Unfortunately, the bracket could not support Mr. Chavez and came completely loose. Mr. Chavez fell to the ground and broke his leg. The bracket fell on his head, injuring him severely.

When an engineer examined the bracket, she determined that the mounting screws were not equipped with the appropriate washers--washers normally supplied with other Tremain brackets. When Mr. Chavez tested the bracket, one of the screws simply slipped loose from the bracket. Mr. Chavez does not remember seeing any washers in the box with the bracket. The assembly instructions do have a diagram picture of screws with washers, but there is nothing in the written instructions specifically mentioning washers. There are no other warnings in the instructions or on the box. According to the expert, the problem of the missing washers could easily have been avoided had Tremain used a different, slightly more expensive type of mounting screw.

a. Evaluate the strengths and weaknesses of any strict liability claims Mr. Chavez may have against Tremain Industries.

As a result of the accident, Mr. Chavez suffered a broken leg and the head injury. Because of the head injury, Mr. Chavez could not drive for four weeks. During that time, he used public transportation, but had to walk--on crutches--several blocks to and from the nearest bus stop. Eventually, because of his extensive use of the crutches, Mr. Chavez developed bursitis in his shoulder. Because of the shoulder injury, Mr. Chavez had even greater trouble going up and down stairs. Three weeks after the accident, he slipped and fell on a flight of stairs, breaking his other leg. Incidentally, the tenant in the tenth apartment never did get an air conditioner installed. Tragically, during the first week of June, there was an extraordinary heat wave, and that tenant, an elderly man, died of heat prostration.

b. Assuming Tremain Industry is strictly liable for some defect in its product, was that defect the proximate cause of Mr. Chavez's head injury? His first broken leg? His shoulder injury? His second broken leg? The death of the elderly tenant? Should a court rule, as a matter of law, that the product defect is not the proximate cause of any of these injuries? Why or why not?

QUESTION THREE: Pargman v. County General Hospital, Humana Medical Organization, and Dr. Norma Sherling

While walking home one day this past winter, Lynn Pargman slipped and fell on some ice on the sidewalk. Mr. Pargman hurt his back and as time went by his aches and pains got worse and worse. Realizing he needed to see a doctor, Mr. Pargman asked several knowledgeable friends their advice about which doctor could best treat his back. Based on these recommendations, Mr. Pargman sought treatment from Dr. Norma Sherling.

Dr. Sherling advised Mr. Pargman to have corrective surgery. She told Pargman that she would perform the surgery and that she would schedule it. During their discussion, Dr. Sherling informed Mr. Pargman that there were risks associated with anesthesia and that, after the surgery, he might still have back pain and possibly some paralysis. Mr. Pargman decided to have the surgery.

On April 18, Mr. Pargman entered County General Hospital for surgery. While he was getting ready for the surgery, a nurse handed Mr. Pargman a form called "Consent to Operation, Anesthetics, and Special Procedures." The nurse told Pargman to sign the form so that Dr. Sherling could perform the operation. He did.

After the operation, Mr. Pargman had no more back problems but he did notice that his left foot would drag whenever he walked. Dr. Sherling told him he developed a "drop foot" as a result of the surgery and that an additional operation might be necessary. Mr. Pargman decided to get a second opinion and asked for his medical records. When a second surgeon reviewed the records, Mr. Pargman first learned that Dr. Sherling had performed only a small portion of the end of the operation. Apparently after Mr. Pargman received the anesthesia and was asleep, it was discovered that Dr. Sherling was not in the hospital. When the hospital was finally able to contact Dr. Sherling, she told the hospital to have one of her colleagues from Humana Medical Organization start the operation, and she would get there as quickly as possible.

Mr. Pargman sued Dr. Sherling for failing to inform him that someone else might operate on him and for failing to inform him of the specific risk of a "drop foot." He sued Humana Medical Organization for failing to obtain his consent before operating on him. He sued County Hospital for disregarding its own policy requiring the operating surgeon's presence in the hospital prior to the administration of anesthesia. In her defense, Dr. Sherling contends that Pargman was advised of the general risk of paralysis and, at the hospital, signed a form consenting to treatment by Sherling and "other physicians, as may be necessary." Humana claims this same form absolves it of liability. County General claims it is protected by governmental immunity.

a. Evaluate the strengths and weaknesses of Pargman's claims against Sherling, Humana, and County General.

Assume that the jury returns a verdict against all three defendants, awarding Mr. Pargman $100,000 in damages, and apportioning liability as follows:

Pargman 0 %

Sherling 40 %

Humana 40 %

County General 20 %

b. If Humana Medical Organization has stopped doing business in the jurisdiction and the judgment against them cannot be collected, what amount of damages will Pargman receive from Sherling and County General? Why?