Question I.

(50% - 90 minutes)

Don operated the Comfort Campground, a large camping site in northern Minnesota, near Littletown, a small town. The campground contained one hundred camping sites. There were electrical hookups provided for campers, as well as showers and bathrooms.

The campground also contained a swimming pool. The swimming pool was an above-ground swimming pool. It was twenty-feet by twenty-four feet. It had four-foot walls. A vinyl liner fit within the outer structure of the pool. It was filled with water to a depth of approximately three and one-half feet. The deck of the pool contained the statement "DO NOT DIVE" in red letters six inches high. The warning was repeated on all sides of the deck. The pool was located in the middle of the campground. There was no fence around the pool, nor was one required. There was a sign at the entrance of the campground that stated that a pool was available, but that it was reserved solely for the use of campers at the campground. The sign also stated that only campers were allowed in the campground.

One day in July of 1984, Able and several of his friends, all residents of Littletown, drove into the campground to look around. Although the campground was restricted to campers, teenagers from the town periodically drove through the campground during the summer to lock around. Don, the owner, always chased them out.

On the day in question, it was the middle of the week, and the campground was not crowded. No one was around the pool, so Able told the driver to stop the car. Able, who was fifteen, ran over the pool, up the steps, and, ignoring the lettering on the deck of the pool, dove into the pool at a forty-five degree angle. His hands separated on the liner and he struck his head on the bottom of the pool. As a result, he was rendered unconscious.

One of Able's friends pulled him from the pool. None of Able's friends had first aid training, so they were unable to revive him. When Able was pulled out, another friend asked Don, the owner of Comfort Campground, to assist. Don refused, although he was trained in CPR and could have revived Able. Another of Able=s friends called the Littletown Police Department for assistance. The police dispatcher took the call, but was also talking on another line to a friend. As a result. he delayed notifying a Littletown police officer in a squad car that was very near the Comfort Campground. That police officer could have responded to the call in time to render aid to Able. By the time the squad car arrived at the campground. Able had died.

Minutes after the accident, Able's parents were notified of Able's death by telephone. They drove to the campground, where they saw Able's body. Both parents suffered severe emotional reactions as a result. Both were hospitalized and sedated for several days.

A week later one of the campers, Baker, suffered a similar injury from diving into the pool. Baker suffered a broken neck and was rendered permanently quadriplegic as a result. Baker saw the warning about diving on the deck of the pool, but ignored it.

The pool was manufactured by Pool, Inc., and installed by Local Sports, a contractor that specialized in installation of pools of all types. There are two types of pool linings used in swimming pools. Rubber latex is used to line in-ground pools. Vinyl is used primarily in above-ground pools. Rubber latex is inappropriate for use in above-ground pools because it is too rigid. No substance other than vinyl is feasible for use in above-ground pools. However, vinyl is slippery when wet. If the dive is shallow it permits the diver's arms to glide when hitting the bottom of the pool, preventing head contact. If the dive is straight, however, or at too steep of an angle, the diver's arms spread, permitting head contact. The above-ground pool was of a common design, duplicated by several manufacturers, all of whom used vinyl liners for the pools. The danger created by the use of vinyl liners was known by both Pool, Inc., and Local Pools.

Based upon the above facts, the trial judge made the following rulings. You are to determine whether the trial judge was correct in those rulings.

1. The trial judge held that Able's parents are not entitled to pursue a wrongful death action against Don, the owner of Comfort Campground. The reason for the trial judge's holding was that Don owed no duty to Able because Able was a trespasser.

2. The trial judge held that Able's parents are not entitled to pursue a wrongful death action against Don because Don refused to assist in reviving Able after he was knocked unconscious in the swimming pool. The trial judge held that Don owed no duty to Able to revive him.

3. The trial judge held that even if Able's parents were entitle to pursue a wrongful death claim against Don, in no event would the parents be entitled to recover punitive damages against Don for his failure to rescue Able, even if Don acted in willful indifference, to Able's rights.

4. The trial judge held that Able's parents could pursue wrongful death claim against the Littletown Police Department for their failure to respond to the call for help.

5. The trial judge held that Able's parents are not entitled to pursue their own claims for emotional distress because they are bystanders, and were not in the zone of danger.

6. Baker asserted a claim for strict liability against Don, doing business as Comfort Campground, alleging that the swimming pool was in a defective condition unreasonably dangerous to pool users. The trial judge held that Baker's claim for strict liability could be asserted against Don.

7. The trial judge ruled that Baker's strict liability claim against Pool, Inc., and Local Sports cculd be asserted because the pool was in a defective condition unreasonably dangerous to pool users.

8. The trial judge ruled that Baker's contributory negligence could not be asserted as a defense because the danger presented by the pool was not known by Baker.

Question II.

(10% - 20 minutes)

Angela, in the early stages of her pregnancy, was ill with rubella. She visited her doctor, but her doctor negligently failed to diagnose her illness as rubella. As a result, her baby was born blind and deaf. Had Angela been informed about the consequences of the disease, she would have had an abortion. Are Angela, her husband, or child entitled to recover against the doctor for malpractice? If so, for what damages?

Question III.

(10% - 20 minutes)

Able had borrowed a friend's car, with the friend's permission, to go shopping. After he finished he went to the driver's side to get into the car. Just as he opened his car door, he was hit by a motorcycle driven by Baker. As a result of the minor injuries he sustained, Able was out of work for three weeks, although he did work one-quarter time at a substitute job during that time period. Able's regular wage was $600 per week, and his income from the substitute work was $200 per week. Able also had medical expenses totaling $300. His medical expenses were covered by his employer's group health policy.

Baker was also injured in the accident. His gross wage was $400 per week.

Able's friend's car was insured as required by the Minnesota No-Fault Automobile Insurance Act. Able owned his own motor vehicle, which was also insured as required by the Minnesota No-Fault Automobile Insurance Act. Baker's motorcycle was covered only by residual liability insurance.

Based on the above facts, answer the following questions:

1. Is Able entitled to recover basic economic loss benefits?

2. If Able is entitled to recover basic economic loss benefits, what would be the source for the payment of those benefits?

3. If Able is entitled to recover basic economic loss benefits, what benefits is he entitled to recover?

4. Is Baker entitled to recover basic economic loss benefits and if so, from what source?

5. If Baker was totally at fault in causing the accident, will Able be entitled to recover damages against Baker for pain and suffering?

Question IV.

(10% - 20 minutes)

Dave, a member of a local group that was against abortion, frequently picketed clinics where abortions were performed, One day, during a protest, a radio reporter interviewed Dave live on the radio. Dave mentioned the names of several people to the reporter. The people whose names he read were identified as volunteer workers at the clinic being picketed. One of those people, Paula Paul was not in fact a volunteer worker at the clinic. In fact, Paula did not believe in abortion.

The names Dave mentioned were given to Dave by a former clinic worker. There was a worker at the clinic named Paula Paulos, but the name was spelled wrong when the former clinic worker gave it to Dave.

Paula sustained no special damages as a result of Dave's statement. Is she entitled to recover from Dave for defamation?

Question V.

(20% - 30 minutes)

1. Paul brought a products liability suit against Retailer and Manufacturer based upon the sale of a lawnmower that was defective because it was not equipped with a safety device that would have prevented Paul's foot from slipping under the mower. The jury found, that Paul was 40% at fault, Retailer 20% at fault, and Manufacturer 40% at fault. Manufacturer is insolvent and unable to pay damages to Paul. Is Paul entitled to recover against Retailer?

2. Assume the same facts as in problem #1 above. If Manufacturer is not insolvent, and Paul's damages total $100,000, what damages will Paul be entitled to recover against Retailer? Against Manufacturer?

3. Dan and Dave were guilty of concurrently negligent acts that resulted in a single, indivisible injury to Paul. The jury found that Paul was 40% at fault, and that Dan and Dave were each 30% at fault. Paul's damages totaled $10,000. Is Paul entitled to recover against either Dan or Dave?

4. Paula, an architect, intended to submit a bid on a construction project. The bid had to be delivered on the day in question by five o'clock in the afternoon. Paula without disclosing the contents of the envelope, asked David, a friend to deliver the envelope with the bid to the owner of the construction project. David put the envelope in his pocket at noon, but forgot to deliver it by five o'clock. Had the envelope been delivered, Paula would have won the bid. As a result of David's negligent failure to deliver the envelope, Paula lost the $50,000 fee she would have earned for the work she would have performed on the project. Will Paula be entitled to recover in a negligent action against David?

5. Able was injured by a falling sign that had been suspended over the sidewalk along which he was walking. The sign collapsed because of a rusted bolt that anchored the sign to the building. The problem could have been discovered either by the owner of the building or the tenant who had the sign placed on the building. Able settled his case with the tenant, executing a Pierringer release with the tenant. Pursuant to the release, tenant paid Able $10,000. The tenant was dismissed from the suit and Able proceeded to trial against the owner. The jury found the tenant to be 60% at fault and the owner 40% at fault. The jury found Able's damages to be $100,000. What damages is Able entitled to recover against the owner?

6. Baker was the second owner of a ten-year-old, one-hundred-unit apartment building. Able, one of Baker's tenants, was injured when an improperly attached light fixture fell on Able's head. The defect in the light was attributable to the initial installation of the fixture. The defect in the fixture was not discoverable by reasonable inspection. Is Able entitled to recover against Baker for the injuries he sustained?