Steenson, Torts Section II Spring 1988

INSTRUCTIONS

1. The examination is open-book. It is three hours (180 minutes) long. The weight that will be given to each answer and the suggested time allowance is stated for each question.

2. Please place your exam number only on each bluebook. Do not write your name on the bluebooks.

3. Number each bluebook, e.g., 1 of 3, 2 of 3, 3 of 3.

4. Write on only one side of each bluebook page.

5: Be sure to give the reasons for your answers.

I.

(35% - 60 minutes)

BI Home Escort, Inc., designed and marketed the BI Home Escort System (the System). The System, described on the last page of the examination, is intended to permit the monitoring of persons who are convicted of crimes and not imprisoned, but rather are to be under house arrest.

Mitchell County was a heavily populated county which had in its boundaries a large metropolitan area. The Mitchell County Board of Supervisors was experiencing serious problems with overcrowding of its jail, so it decided to use the System to take some of the pressure off the criminal justice system. They wanted to use the System because the only other alternative was to build an addition on the county jail, an alternative they decided was too expensive. The Board of Supervisors decided to lease the transmitters from BI Home Escort.

The Mitchell county police were charged with the responsibility for implementing the System. The police department personnel responsible for the System were trained in the use of the System by BI Home Escort. The county parole board was instructed by the Mitchell County Board of Supervisors to release 50 inmates from the jail. These 50 inmates were to be fitted with the System ankle transmitter and placed under house arrest for the remainder of their sentences. This alternative was specifically sanctioned by state statute.

The System worked through telephone monitoring. The ankle transmitter was fitted on the offenders and a receiver attached to the telephone. Any tampering with the ankle transmitter or the telephone receiver would result in a telephone signal to the police department. Under the procedures established by the County Board, the signal would require the police to investigate immediately to determine if the offender had broken house arrest.

One of the 50 offenders selected to be fitted with the ankle transmitter for house arrest was Dale Dun. Dun had recently been convicted of sexual assault. He was a repeat offender. He had served 30 days of a nine-month jail sentence. Dun was assigned to house arrest at his mother's house, with her permission. He was fitted with the ankle transmitter and the receiver was attached to his telephone. He was warned by the county judge before being released that he was under house arrest and under no circumstances was he to leave the house. The house arrest was to last for the remaining eight months of his sentence.

For the first six months of his house arrest there was no problem. Then, one morning, the police dispatcher received a signal indicating that the ankle transmitter was no longer working. The dispatcher delayed sending a squad car to Dun's

address until early afternoon. That morning Dun walked away from his house and sexually assaulted and beat a woman, Paula, who lived two houses away. At the time of the assault and beating Paula was six months pregnant. Her child, Rachel, was born with birth defects as a result. Her spouse, Peter, rushed to the hospital emergency room after he was notified of her injuries. He suffered serious emotional distress as a result. Since the accident, Paula has been withdrawn. Her relationships with her ten-year-old son, Dave and her husband have suffered as a result.

The ankle transmitter failed to work because of battery failure. BI Home Escort had placed powerful batteries in its transmitters. The batteries were intended to work for a year without changing. Two months after Dun committed his crime, BI Home Escort realized that the batteries it used in its ankle transmitters had a shorter life than they thought. Some of the batteries lasted only six months. The problem with the batteries was due to a flaw in the design of the batteries that caused them to lose their energy more quickly than expected. The problem was not known by BI Home Escort at the time the ankle transmitters were leased to Mitchell County, nor could it have been discovered.

Paula, Rachel, Peter, and Dave brought suit against Mitchell County and BI Home Escort Systems. The judge in the case anticipates that several legal questions will arise in the case. She has asked you as her law clerk to give her your opinion on the issues.

1. She wants to know whether Mitchell County will be immune from liability for deciding to use the BI Home Escort ankle transmitters, the actions of the police dispatcher in failing to dispatch a car, and for the failure of the county parole board to warn neighbors that a repeat sex offender was being released in the neighborhood.

2. She wants to know whether BI Home Escort is subject to liability under a strict liability theory.

3. She wants to know whether Rachel, Peter, and Dave will be entitled to recover damages for their claims.

II.

(25% - 45 minutes)

John Smith owned and operated a restaurant. He learned from the state health inspector that he had a serious problem with cockroach infestation. Facing the possibility of being closed down, Smith hired an exterminator, Pest Eliminators, to get rid of the cockroaches. Smith's restaurant was open every day of the week except Sunday, so Pest Eliminators came in early Sunday morning to fumigate. They used extremely strong chemicals in fumigating, and sealed all doors and windows so that the chemicals would work properly. They were to return early Monday morning and ventilate the restaurant so it could be opened later in the day. On Sunday, Pest Eliminators posted large signs on the entrances to the restaurant stating "DANGER: FUMIGATION IN PROGRESS. DO NOT ENTER."

On Monday morning, Lars Nelson, an employee of the Barker Cleaning Service, which did Smith's weekly cleaning, came to the restaurant to clean. He cleaned the restaurant every Monday morning. He saw the notices on the doorway, but wasn't sure what they meant. Unaware that Smith had decided to fumigate, he opened the door and was immediately overcome by the chemical fumes. As a result he suffered severe and permanent lung damage.

A passerby, Dale Deever, saw that Nelson was going to enter the restaurant. He saw the sign stating that the restaurant was being fumigated. He saw Nelson go into the restaurant but made no attempt to warn him about the fumigation. He also saw Nelson collapse, but he made no attempt to render assistance of any sort. Nelson's lung damage would have been lessened had he been removed from the restaurant immediately after his collapse.

Nelson brought suit against John Smith and Pest Eliminators under a strict liability theory, and against Dale Deever for negligence. Should Nelson be entitled to recover? In answering, be sure to consider any applicable defenses. YOU are to assume that the Minnesota Comparative Fault Statute applies in the case.

III.

(30% - 55 minutes)

1. Pibble was crossing the street when she was hit and injured by a motorcycle driven by Duff. Pibble owned her own motor vehicle, which was insured as required by the Minnesota No-Fault

Automobile Insurance Act. Is Pibble entitled to recover medical expenses for the losses she sustained because of her injuries? If so, from what source?

2. Parker owned his own motor vehicle, which was insured as required by the No-Fault Act. One evening in January Parker had been out drinking. On his way home he became drowsy and pulled off onto a side road to rest. He turned off the engine and went to sleep. When he awoke he found that his feet were frozen. One of his feet had to be amputated. Is Parker entitled to recover

basic economic loss benefits for his medical expenses?

3. Cline was injured when her motor vehicle was hit by a motor vehicle driven by Duke when Duke negligently lost control of his vehicle. Her vehicle was insured as required by the No-Fault

Act. Because of her injuries she was out of work for six weeks. Her gross wage loss for that time period was $600 per week. She also had medical expenses of $4,100, including $200 in x-rays that were taken at the emergency room shortly after the accident. Although Cline was not hospitalized, she had to hire a housekeeper the day after the accident. She kept the housekeeper for the entire six-week period of her disability, paying the housekeeper $300 per week. What basic economic loss benefits is Cline entitled to recover and in what amount?

4. Assume the same facts as in Number 3, and assume that Duke is insured as required by the No-Fault Act. What damages, if any, will Cline be entitled to recover in a negligence suit against

Duke?

5. Assume the same facts as in Number 4, except that you are to assume that Duke did not have the insurance coverage required by the No-Fault Act. Does Cline have any other insurance coverage

available to cover her losses? If so, what insurance coverage, and in what amount?

6. Peter contracted asbestosis from years of exposure to asbestos. He brought suit against three asbestos suppliers, Able, Baker, and Charlie. Peter settled his claim against Able for $50,000, pursuant to a Pierringer release. Peter proceeded to trial against Baker and Charlie. The jury assigned fault in the following percentages: Able (25%); Baker (25%); and Charlie (50%). The jury assessed Baker's damages at $100,000. Charlie was unable to pay his share of the judgment because he was

insolvent. What damages is Peter entitled to recover from Baker?

7. Assume that Paul is injured in a construction accident in August of 1988 because of the negligence of two subcontractors. At trial it is determined that the first subcontractor, William,

is 5 percent at fault and the second, Mitchell, 95 percent at fault. Mitchell is unable to pay its share of the judgment. What damages will Paul be entitled to recover against William?

8. Joan gave birth to a child who had serious birth defects. Concerned that the problem would arise again, she sought genetic counseling. Her physician negligently assured her that there would not be a problem with future children she might have. She gave birth to another child with the same serious birth defects. Is the second child entitled to recover any damages from the physician for the physician's negligence? What if suit is brought in Minnesota?

9. Able had been drinking heavily one evening at the Bar Bar. After he got home he fell asleep while smoking. As a result, his house burned down. Both Able and his wife were injured. Able's

wife brought suit against the Bar Bar under the Civil Damages Act for her own injuries and for loss of the means of her husband's support. The Bar Bar sought contribution from Able for his proportionate share of the damages. Is the Bar Bar entitled to contribution?

10. The Drego Company wanted to have some work done on a highway paving project. Drego did not generally do its own rolling, relying instead on other companies to do the work. Drego made arrangements with Flattop Company for one of Flattop's employees, Gordon, to do the work. Gordon arrived at the paving site with a large roller to do the rolling work. He was a skilled driver of the roller with several years of experience. Gordon was trained by Flattop and given general instructions about how to perform work when doing subcontracting jobs. Gordon was given directions at the job site by Dregro's project manager. One of Flattop's forepersons periodically stopped by the job site to observe Gordon's work, giving him general directions about job performance. Gordon was paid by Flattop for his work, while Drego paid Flattop for the rental of the roller and employee. On the third day of the job, Gordon negligently drove his roller over Peter, one of Drego's employees. Peter collected workers' compensation benefits from his employer, Drego. He then sought to recover from Flattop for Gordon's negligence. Is he entitled to recover?

I V.

(5% - 10 minutes)

Preston was a new associate at the Dark law firm. After having worked at the firm for one year, Preston decided that he would like to do volunteer work in Jesse Jackson's political campaign. He applied to Jackson's state headquarters to be a campaign worker. One of Jackson's staff workers knew one of the partners at the law firm, so he called him to ask whether Preston would be a good addition to the campaign staff. The partner, Denbo, said that Preston did a good job at the law firm, but he said that there had been rumors at the law firm concerning Preston's sexual preferences. Denbo said that he didn't think Jackson's campaign needed somebody like that in the state. Based upon that conversation, Preston was not asked to work in the campaign. Denbo had heard rumors to that affect, but he did not know whether they were true or false. Based on the above facts, should Preston be entitled to recover from Denbo in a defamation action? Explain.

V .

(5% - 10 minutes)

Daisy Airlines bought a new jet airplane from the McDowell Corporation. After the plane had been in service only a short period of time, the nose gear collapsed when the plane was making a landing. There was substantial damage to the plane. Neither the passengers nor crew were hurt, although they could have been. The purchase contract signed by Daisy and McDowell provided that Daisy was solely responsible for any damage to the plane, and that McDowell could not be held liable under either a negligence or strict liability theory. Should Daisy be entitled to recover from McDowell for the damage to the plane and the economic loss they sustained while the plane was out of service? Explain.

All precedent and accounted for.

The BI Home Escort™ System is the sure way to alleviate prison and ail overcrowding quickly, economically, and humanely. It was the first and is demonstrably the best system of electronically-monitored house arrest.