Product Liability and Governmental Liability: A Case Study, Exams of Law of Torts

Download Product Liability and Governmental Liability: A Case Study and more Exams Law of Torts in PDF only on Docsity! TORTS II PROFESSOR DEWOLF SPRING 2004 June 1, 2004 FINAL EXAM SAMPLE ANSWER MULTIPLE CHOICE 1. (a) is correct. Samantha clearly suffered apprehension, and if June was substantially certain that this would occur, it satisfies the intent requirement. (b) is incorrect; it is not enough that the victim reasonably suffer apprehension; there has to be either an intent to cause such apprehension, or the defendant just be substantially certain that it would occur. (c) is incorrect. It is enough if the plaintiff experiences apprehension; the level of emotional trauma need not be "substantial." (d) is incorrect; motive is not the same as intent. One can have a good motive but still incur liability if the intent element is met. 2. (a) is incorrect; there needs to be a showing that the defendant intended to confine the plaintiff(s), and that such confinement did occur. (b) is incorrect; the intent element is present, but there was never any confinement. (c) is correct; unless Mike and Tom were confined within limited boundaries, there is no false imprisonment (d) is incorrect; as long as the plaintiffs are aware of their imprisonment, they do not have to establish a particular quantum of damages. 3. (a) is correct; all the driver wanted to do was get his driver's license back, but if that resulted in an offensive contact--and if the driver knew it was substantially certain to occur--then that satisfies the intent requirement. (b) is incorrect; one needn't establish harm in order to show a battery, if the battery consists of offensive contact. (c) is incorrect for the reasons stated in the explanation of answer (a). (d) is incorrect; Bill's awareness that his behavior is annoying doesn't affect whether or not the driver's conduct constitutes a battery. 4. (a) is incorrect; there must be all three elements of the tort of outrage (b) is incorrect; he must suffer severe emotional distress; (c) is incorrect; the conduct must also be outrageous (d) is correct; George and Jill clearly intended to cause emotional distress, so if the other two elements are met, the tort of outrage is made out. DeWolf, Torts II, Spring 2004, Sample Answer Page 2 The facts for this question are based on Goolsby v. Family Foods, Inc., 2004 WL 253493, 2004- Ohio-631, (Ohio App. 8 Dist., Feb 12, 2004), in which the court granted summary judgment to the defendants based on the plaintiff's failure to supply evidence of a defect in the lighter. 5. (a) is correct. The facts state the Bill was trying to scare Jill and George, but if the driver was scared, that would be a case of "transferred intent." (b) is incorrect; unless the driver actually thought it was a gun, he wouldn't experience apprehension. (c) is incorrect; one can assault another even if the threat turns out to be illusory. (d) is incorrect; see answer (a) with respect to transferred intent QUESTION 1 Goolsby ("G") has a potential product liability claim against Pushlite, but she has several difficulties in establishing her case. One problem is that we don't really know what caused the lighter to spray butane. It could be that the lighter had been damaged by mistreatment, either before or after purchase. On the other hand, the lighter could have been damaged because it was mismanufactured. It will be very helpful if we are able to obtain the actual lighter and can have it evaluated to be prepared to justify whatever claim we are making. Claim v. Pushlite In order to recover from Pushlite, G would have to establish that the lighter was defective, and that this defect was present when it left the manufacturer's hands. There are three basic types of defects: manufacturing, design, and warning. The easiest case to prove (from a legal standpoint) would be a manufacturing defect. That is, that the lighter failed to conform to the specifications. For example, perhaps a piece of the mechanism was missing, or the plastic was insufficiently fused together, causing the butane to leak out. All jurisdictions recognize that a manufacturing defect generates strict liability; that is, G would not have to show that Pushlite was negligent, only that it was in fact "out of spec." Perhaps the lighter did conform to the manufacturer's specifications; it still might have a design defect; one of our arguments would be that, even if the lighter was damaged through normal wear and tear (including getting stuck in a car door or underneath a chair leg), the danger of spraying butane makes this design unreasonably dangerous. To determine whether the product has a design defect, most jurisdictions use some form of a risk-utility test. (We would prefer a consumer expectations test, under which we could simply say that a lighter that sprays butane into someone's face is not in accord with the consumer's expectations, but the consumer expectations test is in disfavor these days.) In order to show that the product does not meet a risk-utility test, we would compare the product to some better design. For example, perhaps the plastic components could be made to withstand more abuse, or there would be some safety mechanism that would prevent the butane from spraying in this way. On the other hand, disposable lighters are supposed to be cheap, and decreasing the risk might substantially decrease the utility of the product. In our favor, however, it is worth mentioning that if the butane had caught fire (instead of merely spraying her face), the damages would have been catastrophic. Thus, we might be able to show that this design rendered the product unreasonably dangerous. DeWolf, Torts II, Spring 2004, Sample Answer Page 5 drive out of the parking garage, but instead committed an intentional tort, indeed the most serious felony of aggravated murder. Unlike those cases (like Tarasoff) where the risk posed by the dangerous person was obvious to the defendant, here the risk posed by Mike Edwards was not only concealed, it was almost inconceivable. Moreover, in terms of "justifiable reliance," there might conceivably have been some reliance by Mike Edwards, but it would be next to impossible for Brenda Edwards' estate to claim that Brenda Edwards in some way relied upon hospital security in terms of their dealing with Mike Edwards. The second and more plausible argument as to why we owed Brenda a duty of care is that she was an invitee on our property. She was there taking a nursing class, and if she had slipped on the carpet there is no question that she would be considered an invitee. Visitors to land are classified according to their status at the time they are injured. Invitees are owed a duty of reasonable care, and I suspect a court would say that we owed a duty of reasonable care to Brenda. On the other hand, on behalf of the state I would argue that Brenda was not injured by a condition of the premises (e.g., a darkened stairway where she fell or was mugged.) The fact that Michael Andrews used the parking lot to track her down is a fortuity, and her injury had nothing to do with whether the premises were reasonably safe. Nonetheless, the court might say that lack of security is a condition of the premises analogous to poor lighting in a parking lot or carelessness in handling room keys at a motel, and that Brenda had a right to expect reasonable care. Whether we delivered it or not -- whether we acted reasonably -- would be a question of fact for the jury. If that happened, we could expect that the plaintiff would try to show we were negligent by using the standard of reasonable care, as informed by expert testimony, industry custom, internal policies. Comparative Fault / Joint and Several Liability The good news for us is in the allocation of fault among joint tortfeasors. Before getting to that, I should dispose of the question of whether we should assert contributory fault as a defense. In this jurisdiction the plaintiff's contributory fault operates as a damage-reducing factor, but I wouldn't even assert a contributory fault claim, because there is no conceivable set of facts suggesting that Brenda failed to use reasonable care to prevent her own murder. (Don't go there, girlfriend!) Turning to the joint and several liability. Linden for the most part uses several liability. The only time it imposes joint liability is for intentional torts (§ 2307.22(A)(3))and for economic losses caused by defendants more than 50% at fault (§ 2307.22(A)(1)). Neither would apply here. In any event, noneconomic damages are always subject to several liability only (§ 2307.22(C)). Moreover, the jury would be asked to compare the fault of Mike Andrews, the murderer, to the fault of security guards who, even if they didn't do as good a job in keeping track of a drunk visitor as they should have, will not look very culpable. I would be confident that our share of the economic nd noneconomic loss would be small and Mike Andrews' share of liability would be huge. (While some jurisdictions might reject a purported comparison of intentional torts and ordinary negligence, the statute in Linden seems to contemplate just such a thing.) I would thus take a very tough negotiating posture; not only is the prospect of our liability slim, but even if we were found liable, it would not be for a substantial portion of the total damages suffered by the plaintiff. Spring 2004 Checklist QUESTION 1 G Overview G Claim v. Pushlite G G Was the product defective? G Three different kinds of defects G Was there a manufacturing defect G Failure to conform to prod. spec's G If so, strict liability G Was there a design defect? G Design defect b/c susceptible to damage? G What about a warning defect G Were there warnings with the product? G Would warning have made a difference? G G Separate liability for Family Foods? G Did Family Foods commit independent negligence? G No liability for Snipes if she had no knowledge of defect G G G Potential defense: contributory fault G Separate rule for prod. liab. claims G Contributory negligence distinguished G Linden uses modified comparative fault (50%) G Express/ implied assumption of risk bars claim G Certainly no express A o R G Implied is different only in method of assent G Did G know of risk she supposedly assumed? G Assumption of risk that merely merges w/ CN G Bar seems unlikely G G Joint and several liability G Def' s severally liable for noneconomic harm G Joint liability for economic harm if > 50% G G G G G G G G QUESTION 2 G Overview G Governmental liability G Sovereign immunity G Statutory waiver: complete G Discretionary function? G No real policy-making involved G G Was a Duty Owed? G Did LSUH fail to rescue? G Premises Liability Theory? G If so, Brenda was an invitee G Therefore, owed duty of reas. care G Would a jury find LSUH negligent? G No basis for Contributory Fault G Joint and Several Liability Rules G Defendants severally liable for noneconomic harm G Joint liability for economic harm if > 50% G Mike's share of fault to be calculated G G G G G G Exam # ____________________