1997 Spring Torts II Exam: Premises & Product Liability Sample Answers, Exams of Law of Torts

Download 1997 Spring Torts II Exam: Premises & Product Liability Sample Answers and more Exams Law of Torts in PDF only on Docsity! [This case is based upon Cochran v. Burger King, 937 S.W.2d 358 (Mo. 1997); in that case the supreme court reversed a jury verdict in favor of the plaintiff, holding that Burger King did not owe a duty.] TORTS II PROFESSOR DEWOLF SPRING 1997 May 1997 SAMPLE ANSWER TO FINAL EXAM Question 1 Burger King should expect a lawsuit from Cochran ("C"). Burger King will successfully claim that the case is governed by premises liability categories, since the injury arose from a condition on the premises. Premises Liability. Most jurisdictions classify visitors to an owner's premises according to their status: invitee, licensee, or trespasser. This status determines the duty that the owner owes. (Some jurisdictions have rejected the categories and instead require "reasonable care under all the circumstances." That would be greatly to C's advantage, since it would create a jury question even if they found C to be a trespasser.) An invitee is one who comes on the land for a business purpose of the owner. In this case C was only using the Burger King lot as a shortcut, and therefore would not be an invitee. A licensee is one who is on the owner's premises by permission; in this case C was probably a licensee when he was walking across the parking lot, since there could be an implied permission for this purpose. A licensee must be warned of hidden dangers. However, once he strayed into the dumpster, C went outside the scope of any implied permission and became a trespasser. As such he would be owed no duty of care. Contributory Negligence. Even if C were owed a duty of care, there would still be the defense of contributory negligence. C is under a duty to use reasonable care for his own safety, and his intoxicated rummaging through a dumpster was hardly consistent with reasonable care. Similarly, it might be alleged that he assumed the risk of injury, since he strayed into an area where he had no permission. However, in this jurisdiction it would simply be considered a percentage of fault and reduce his recovery accordingly. Joint Tortfeasors. Since the weakness in the wall was caused by the dump truck, BK should consider bringing the trash collection company in as a codefendant. In this jurisdiction joint tortfeasors are held jointly liable for economic harm, but are only severally liable for non-economic losses if their fault is less than 50%. If the fault of the codefendant, combined with contributory fault, brought BK's share below 50%, this could be an advantage. Damages. In the event that BK were found liable, the losses could be significant. In particular, the jury might consider the failure to repair the wall, despite clear evidence of its danger, to be a form of reckless disregard for public safety. If so, the jury could award punitive damages along with a sizeable award for the pain and suffering associated with losing a leg. [This case is based upon Nelson v. Speed Fastener, Inc., 428 N.E.2d 495 (Ill. 1981), which reversed a directed verdict for the defendant, finding that there was a jury question on whether the stud driver was defective.] Question 2 This case presents a potential product liability claim on behalf of Blackacre ("B") against the manufacturer of the stud gun. The key question would be whether or not the product was defective. Product Liability. A product manufacturer is liable for injuries caused by a product if the product proves to have a defect. In this case there doesn't appear to be a manufacturing defect, because nothing in the facts suggests a discrepancy between the product and its design specifications. On the other hand, it might be found to have a design defect, as suggested by our expert. Most jurisdictions use a test somewhat based on a negligence analysis of whether or not the risks posed by the product are greater than a reasonable person would permit, in view of the cost of preventing the risk (both in terms of raising the price of the product and in reducing its utility). Some jurisdictions have adopted a consumer expectations test, which is more of a subjective focus on the perception of the product. Others have used a risk-utility test which is basically the negligence test--although it may be turned into a strict liability standard if there is new knowledge about the product discovered since the time of manufacture, and if the jurisdiction believes that strict liability is good public policy. In our case the expert seems to think that under certain circumstances (and they appear to fit our facts, although the evidence is somewhat equivocal), the product has an unacceptably high risk of emitting debris. We would have to convince the jury that our expert knew what she was talking about, and that the risk indeed was unacceptably high. A final theory that we could use is that the product lacked an effective warning of danger. Unfortunately, we'd have to show that a more effective warning would have resulted in different behavior on the part of the coworker. Defenses. That in turn raises the question of what B already knew of the risk of splinters, and whether he was under an obligation to use some form of eye protection. If he negligently failed to protect himself, then his recovery could be reduced by the percentage that the jury found him to be at fault. Similarly, the jury might consider a knowing encounter of that danger to be assumption of risk, which would also result in a reduction on a percentage basis. Worker's Comp. Finally, the effect of worker's comp. needs to be assessed. Because the employer and his employees are immune from tort liability, any fault on the part of the coworkers cannot be the basis of tort liability. Also, they are exempted from inclusion in the computation of comparative fault; thus, if the product manufacturer is found liable for a defective product, no reduction will be made for the employer's fault (§ 16-02(4)).