Torts II Exam Answers: Comparative Fault, Medical Malpractice, Damages, Exams of Law of Torts

Download Torts II Exam Answers: Comparative Fault, Medical Malpractice, Damages and more Exams Law of Torts in PDF only on Docsity! The facts for this case are a combination of Sabich v. Outboard Marine Corp. , 131 Cal.Rptr. 703 (1976), which upheld a judgment against the manufacturer, and Mercer v. State, 242 Cal.Rptr. 701 (1987), which upheld a dismissal based on sovereign immunity. TORTS II PROFESSOR DEWOLF SUMMER 2004 August 12, 2004 FINAL EXAM SAMPLE ANSWER QUESTION 1 On behalf of Michael Jorgenson ("MJ") I would consider suing both the State of Evergreen as well as the manufacturer of the ATV. Even if liability could be established, I would need to consider comparative fault and multiple tortfeasor issues. Suit v. State of Evergreen MJ could allege that the State of Evergreen was negligent in failing to warn him about the dangers posed by the dunes. However, his claim would be subject to the principles of sovereign immunity as outlined in the statutes. Sovereign Immunity. No state can be sued without its consent. THe state of Evergreen has waived its sovereign immunity in a way parallel to the Federal Tort Claims Act. That is, if a private person could be sued for the same conduct, the state permits itself to be held liable (§ 815.2), subject to certain exceptions. One of the important exceptions is § 831.2, which retains immunity for injuries "caused by a natural condition of any unimproved public property." It sounds like the sand dunes at Prism State Park are a natural condition, and therefore immunity appears to be retained. However, it is possible that the statute could be interpreted in such a way as to permit a recovery in this case based upon the argument that it wasn' t the natural condition (alone) that caused the injury, but a failure to warn about the natural condition, or in setting up a "Vehicular Recreation Area" without providing any warning about the conditions that would be found there. It doesn' t seem likely that such an interpretation would overcome the relatively clear text of the statute, but if so, (or if there is some other exception to the statutory immunity), let us examine the likelihood that liability could be imposed. Before doing so, it is worth noting that a typical reservation of immunity for discretionary functions (§ 820.2) wouldn' t help the state; this doesn' t appear to be a policymaking function. Premises Liability. Since MJ was injured by a condition of the property, the case is governed by premises liability principles. The first step is to determine MJ' s status. He appears to be a public invitee, since he is on public property pursuant to the purpose for which the public property is held open to the public. It' s unclear whether any admission was being charged, but even if there is no charge for use of the ATV park, it would be similar to a patron' s use of the public library. Even if, for some reason, MJ was considered a licensee rather than an invitee, he would still be owed a duty to be warned of hidden perils. He would claim that the steep drop-off was a hidden peril of which the owner was aware and failed to warn. If he is an invitee, the owner has a duty to use reasonable care to avoid injury to the visitor from the condition of the premises, and MJ could argue that a reasonable person would have posted a warning sign about the layout of the dunes. Suit v. Outboard Marine Even if the sovereign immunity statute barred a claim against the State of Evergreen, MJ might be able to recover from Outboard Marine ("OM"). They manufactured a product which caused him to be injured. Product liability applies when an injury is caused by a defect in the product, and it would be MJ' s burden to establish that the Trackster was defective. DeWolf, Torts II, Summer 2004, Sample Answer Page 2 It doesn' t appear that there was any manufacturing defect in the Trackster. It appears to have conformed to its design specifications. On the other hand, MJ might allege that the Trackster was defective in design or by way of warning. To establish a design defect claim, MJ would have to show that a reasonable person would not have designed the Trackster to have its center of gravity forward. We have an expert (Moon) who appears ready to testify to that the Trackster contains a design that a reasonable person would not have used. If the jury finds his testimony credible, they can find that the design of the Trackster was unreasonably dangerous, and therefore defective. I don' t believe there would be any effect in this case of the jurisdictional differences between strict liability and negligence, but it is possible that the incorporation of a consumer expectations test might bolster MJ' s claim that the design was not one that a reasonable designer would have used. On the other hand, there might be testimony that the advantages of putting the center of gravity forward provided benefits that outweighed the potential risks, and therefore the design, though dangerous, was not unreasonably dangerous. Thus, MJ might have more success arguing that the Trackster was defective because it lacked adequate warnings. In a manner similar to the analysis of the allegation of a design defect, the trier of fact would consider whether or not the warnings were inadequate, judged by what a reasonable person would have done in warning about the risks. It appears that there were quite a few warnings in the owner' s manual and on the windshield, but the specific risk of tipping over may not have been clear enough. Still, the plaintiff would have the burden of showing that a different warning would have made a difference in MJ' s behavior. It would be tough to show that it would have. Contributory Fault If MJ was at fault in causing his own injury, that will reduce his recovery. The defendant(s) would certainly argue that a reasonable person would not have been driving the Trackster at night on terrain with which MJ was apparently unfamiliar. The good news is that Evergreen uses a pure, rather than modified, approach to contributory negligence (§ 1430), and thus any finding of negligence on MJ' s part would only reduce recovery to that extent. Moreover, the statutory definition of "fault" seems to include not only contributory negligence, but doctrines which "constituted a defense" under prior law. I would argue that this definition includes assumption of risk short of an affirmative preference of a risk. Since MJ didn' t know of the particular risks that caused his injury, I doubt that he engaged in any assumption of risk that would bar his recovery. Multiple Tortfeasors If MJ were able to establish liability against one or the other of the defendants, we would need to consider the effect of multiple tortfeasors in this jurisdiction. It appears that Evergreen has adopted joint liability for economic damages (§ 1431) but several liability for non-economic damages (§ 1431.2). Thus, if it should turn out that, for example, both Evergreen and OM were found to be liable for MJ' s injuries, each would be liable for his economic losses (medical expense and wage loss) but only severally liable for is non-economic damages (pain and suffering). Miscellaneous The facts don' t mention a spouse, but if MJ has a spouse she might be eligible for loss of consortium damages. The statute of limitations will run in April 2005 if there is a 3-year statute; it has already run if Evergreen has a 2-year statute for either of these claims. I would also be concerned about a statute of repose applying to the product liability claim, since the product had been in use for 21 years at the time the injury occurred. If Evergreen places a "useful safe life" on the product and it turns out to be less than 21 years, that would bar recovery. DeWolf, Torts II, Summer 2004, Sample Answer Page 5 costs for the child' s impairment, but exclude any non-economic damages based on the incompetence of a court in comparing life with non-life. Miscellaneous The statute of limitations does not appear to be a factor in this case. While the child was apparently conceived more than two years ago (and some jurisdictions have only a 2-year statute of limitations), it seems doubtful that the cause of action was ripe (certainly for the claims involving the failure to provide adequate prenatal care and options) until some time after August 2002. I don' t think we would succeed in raising the statute of limitations, but we should certainly explore this further. Summer 2004 Final Exam Checklist QUESTION 1 G Overview G Claim v. State of Evergreen G Sovereign Immunity G General Waiver G No issue of discretionary function G Immune: natural cond. on unimpr. prop. G Was rec. vehicle park "natural"? G G Premises Liability Claim G MJ a public invitee G Invitee owed a duty of reasonable care G MJ might be a licensee G Licensee must be warned of hidden perils G "drop-off" known to State, not to MJ G G Product liability claim G Liability based on proof of defect G No evidence of a manufacturing defect G Design seems to have enhanced the risk G Would reasonable designer accept risk? G Was warning inadequate? G Would warning have made a difference? G Contributory fault G Was MJ contributorily negligent? G Pure comparative fault in Linden G Assumption of risk? G § 1430 seems to include AoR as "fault" G No bar to recovery is likely G G Multiple Tortfeasor issues G § 1431: joint liability for economic damages G Several liability for non-economic damages G State (if immune) not assigned a share of fault G G Loss of consortium/bystander G Statute of Limitations: okay if 3 yrs or more G Statute of Repose for ATV? G Useful safe life < 21 years? G G G G QUESTION 2 G Overview G Claim br ought by Sherrie G G Medical malpractice claim G Duty of care G Failure to meet standard of care G Expert testimony regarding standard G Better segregation/supervision? G G Informed consent to risky environment? G Should Ferrigan have been consulted? G G Better pregnancy detection G Claim v. Slade/Diebel G Policy question re abortion remedy G G Contributory fault? G Assumption of Risk not applicable G §1430: Contrib. fault can' t bar G G G Damages G Damages from sexual contact G G Wrongful Birth issues G Was JM healthy ? G (Was SM' s disability inherited?) G If JM healthy, jur isdictions split G G If JM disabled, recover y for W. Birth G Also, JM could claim wrongful life G Damages reduced by offsetting benefits G No recovery for non-econ damgs re Wr Life G G Joint liability for economic harm G Several liability for non-economic harm G Availability of contribution from MDs G What is their share of fault? G Watch for settlement reduction by $ amount G Statute of Limitations G G Exam # __________________________