Product Liability and Sovereign Immunity: A Case Study on Suzuki and EE, Exams of Law of Torts

Download Product Liability and Sovereign Immunity: A Case Study on Suzuki and EE and more Exams Law of Torts in PDF only on Docsity! Professor DeWolf Fall 2011 Torts January 5, 2012 SAMPLE ANSWER TO FINAL EXAM MULTIPLE CHOICE 1. (a) is incorrect, because battery requires that the defendant intend to cause either harmful or offensive contact with the person of the other, or to cause apprehension of such contact. Since Martha did not intend to cause either (she only intended to play a practical joke). (b) is incorrect for the same reason. Thus, (d) is the correct answer. 2. (a) is correct, because false imprisonment requires that the defendant intend to cause confinement. (b) is incorrect, because awareness of confinement is sufficient to create liability. Thus, (c) and (d) are both incorrect. 3. (a) is correct, because even if the contact is offensive because of abnormal sensitivity on the part of the plaintiff, there is liability if the defendant knew of such heightened sensitivity and intended for the contact to occur. (b) is incorrect, because it is the opposite of (a). Thus, (c) and (d) are also incorrect. ESSAY QUESTION 1 Edwards ("EE") could recover if the state's waiver of sovereign immunity permits liability for cases like this, and would be reduced by the degree of fault attributed to EE. Before addressing the merits of the claim, there is the possibility that because this case occurred more than two years (but less than three years) since the injury occurred, it is possible that the statute of limitations has run on a claim against the state. It is stated that EE has filed a tort claim, but it doesn't say when. I'd look into the possibility that her claim is time-barred. I.Sovereign Immunity States can be held liable for tortious conduct only to the extent that they have waived their sovereign immunity. In Evergreen the state has adopted a statute that contains significant limitations on liability, identified as follows: Narrow waiver. Evergreen's waiver of sovereign immunity is relatively narrow. It only applies to specified "acts which may impose liability." ERS § 8522(b). The good news is that "potholes and other dangerous conditions" is listed as one of the acts that can result in liability. ERS § 8522(b)(5). However, in order to establish liability, the claimant must establish that the dangerous This question is based upon the facts in Walthour v. Com., Dept. of Transp., 2011 WL 5573934, which reversed a dismissal by the trial court of the plaintiff's claims. DeWolf, Sample Answer to Fall 2011 Final Exam Page 2 condition "created a reasonably foreseeable risk of the kind of injury which was incurred" and "that the state had actual written notice of the dangerous condition of the highway." Id. In EE's case there appears to have been written notice of the poor condition of Route 837, but the primary thrust of the letter concerns property damage such as chipped paint or broken windshields. We would argue on behalf of the state that it was not notice of the risk of potholes or personal injury. EE of course would argue that the description of the road was adequate to alert the State to the fact that the road was in "disrepair," and that patchwork had caused additional problems. Anyone familiar with highway repair would recognize that this would likely create potholes. 1 Need to Show Negligence. The plaintiff would still have to prove that a reasonable person would have repaired the road. Even though ERS § 8522(b)(5) doesn't use the word negligence, the previous language in the statute permits the state to be held liable only "for damages arising out of a negligent act where the damages would be recoverable under the common law or . . . if the injury were caused by a person not having available the defense of sovereign immunity." We would argue that the manner in which the previous repairs were conducted, and the decision to postpone additional repairs, were reasonable. Discretionary function. The exercise (or failure to exercise) a discretionary function is excluded from liability (ERS § 8522(b)). We would argue on behalf of the state that the decision to repair Route 837 was dependent upon the availability of "necessary funding." Just as the 2nd Circuit found in Brown v. U.S. that the decision not to replace a weather buoy because of funding limitations was shielded from liability by the discretionary function exemption, we could argue that the decision not to undertake the repairs was an exercise of the "discretionary function" that exempts the state from liability. Damage limitation. Even if EE can establish liability, the maximum she would be permitted to recover is $250,000 (ERS § 8528(b)). II. Contributory Fault / Damages Even if Evergreen were found liable under ERS § 8522, the State could assert the defense of contributory negligence. 2 In Evergreen the plaintiff is not barred by contributory negligence, but is permitted to recover so long as the plaintiff's negligence is "not greater than" the negligence of the defendant(s). In other words, in this case if EE were found more than 50% at fault, relative to the State, she would be barred from recover. Otherwise, her damages would simply be reduced proportionate to her fault. Since in this case her damages are projected to be in the $2 million range, a finding of contributory fault of 50% or less would have no practical effect, since the maximum she can recover is $250,000. ESSAY QUESTION 2 1. In the Walthour case the state argued that the notice requirement would be satisfied only if the specific pothole had been identified. This doesn't seem like a very plausible argument. 2. I don't think that any form of assumption of risk would apply in this case, since operating a motorcycle is not in itself an activity that is so dangerous that the operator assumes the risk of injury.