Exam Question: Dorchester City's Tort Reform Proposals and Related Cases, Exams of Law of Torts

Download Exam Question: Dorchester City's Tort Reform Proposals and Related Cases and more Exams Law of Torts in PDF only on Docsity! TORTS FINAL EXAM TAKE-HOME QUESTION Professor Simon Fall 200 INSTRUCTIONS General 1 . This question will constitute 1/3 of your final exam grade . Be sure your exam contains all three pages. 2. You must bring your answer with you to the in-class portion of the final exam and turn it in with your bluebook . B . Format 1 . Your answer must be typed. "Type on only one side of a page . 2 . You are limited to a total of 900 words (roughly three pages). You will be penalized if you exceed this limit so please be sure to use the "word count" feature of your word processing program . 3 . With these word limitations, you must take time to organize your answer" On the take-home portion of the examination, I am expecting higher quality answers than I would expect on an in-class examination . I am looking to see how well you organize and analyze the issues raised in the questions . You will get little credit for simply stating conclusions . 4. Your answer should be double-spaced . Use 8 x 11 paper. Use 1 .5 inch left margins. All other margins should be 1 inch . Use 12-point Times New Roman, Courier, or Century font . 5 . Put your exam number on the top of each typewritten page you turn in . Place a page number on the bottom of each page you turn in . C . Honor Code Issues 1 . The Pierce Law School Honor Code applies to this examination . You are to work alone and may not to talk to or work with anyone else . If you compose your exam in the library or computer center, please do not put drafts of your answers in the recycle boxes . 1 2 . You are to rely solely on the materials you used for the course and are not to do any additional legal research on the question once the question has been made available. 3 . I believe there are important educational benefits to using a take-home for this type of question . I know this can increase the temptation to improperly collaborate, especially with students under the stress of the exam period . Please do not jeopardize your future by violating the Honor Code on this exam . 4. Your submission of an answer will be deemed to certify your compliance with sections B (2), C (1) . and C (2) above . D . Question (75 Points) Assume the Mayor of the City of Dorchester is advocating several changes to the state's tort system. He instructed the City Attorney to submit an article supporting his proposals to the City's largest newspaper, the Dorchester Union Leader. Her article is below. The paper will publish the article along with an article by the State Trial Lawyers Association, which opposes the law . In order to provide a less partisan point of view, the editors have asked a local law professor to write an' op ed ." piece. This type of article can be found on the editorial pages of most newspapers and expresses the views of commentators on issues of the day . Specifically, the editors want the professor to comment on whether the city has a valid case for tort reform and whether the proposals are sound. Since you are clearly the best student in his current Torts class, the professor has asked you to draft this article . These types of articles are designed to communicate clearly to the general public, rather than to other lawyers . Though they are opinion pieces, you will need to do more than just express conclusions . To get exam credit, you must describe the basis for each of your conclusions. Credit will be given for reasoned reflection based on the concepts we have discussed in class . THE TAXPAYER NEEDS TORT REFORM NOW People sue the City of Dorchester for just about any injury sustained on City property or incurred during involvement with a City employee . Because of sympathetic and generous juries, and laws that do not create an even playing field, they often recover in full, even when the City is just the innocent or slightly responsible deep-pocket defendant . In recent years, plaintiffs have been obtaining astronomical awards from juries . The result has been a frightening spike in the City's tort payouts over the past 23 years . There has been a 25- 2 dealings with buffalo . Buffalo, unlike cattle, are difficult to train, extremely powerful, and not docile . One dark, stormy evening in August 2005 a clash of thunder frightened the four buffalo and they began to charge around the pasture . One headed straight for the electrical fence, and the others followed . The first buffalo to hit the fence and was electrocuted, but the mass of his body caused the fence to collapse, and the other three buffalo escaped onto the interstate highway . Mary Roberts was driving down the highway at 75 miles an hour, twenty miles over the speed limit, when her car smashed into one of the buffalo . The impact caused the car to go off the road and strike a tree ; Mary was instantly killed . Moments later, a second buffalo was struck by a school bus carrying high school students to a concert . The school bus was driving 60 miles an hour, five miles over the speed limit . The driver managed to maintain control of the bus and drove off the road close to the area where the buffalo had crossed through the fence . The students exited the bus, and several saw the electrocuted buffalo as it lay on a live wire, its body steaming and glowing from the electricity . Several of the students were severely traumatized by the incident . Several other students, dazed by the accident, wandered around near where the bus had gone off the road . Sarah Jenkins, a physician and trauma specialist, was on her way to a meeting when she noticed the accident . Eager to render assistance, she pulled off the road in front of the bus. Dr. Jenkins jumped out of her car and began to render assistance to dazed and injured students . Moments after Dr . Jenkins left her car, her car phone rang . She was being called by a patient, Margaret Jones, who lived in a rural area only a few miles away from where the buffalo accident had occurred and who was experiencing extreme chest pains . Dr. Jenkins had advised this patient to call her should such pains occur, since Dr . Jen kins suspected the patient had some form of heart disease . The phone rang and rang, but in the commotion Dr . Jenkins never heard it ringing, and the patient died of a heart attack while waiting for Dr. Jenkins to answer the phone . Had Dr . Jenkins come to the phone, she could have advised the patient to take a nitroglycerine pill, which Dr . Jenkins knew the patient had in the patient's medicine cabinet in the patient's home . Dr. Jenkins observed one of the students, Becky Smith, who appeared to have been severely traumatized by seeing the fried buffalo . In order to avoid more serious shock, she administered an experimental drug, Glazeline, a powerful sedative designed to calm people who are experiencing extreme shock . Dr. Jenkins secured no consent to administer the drug but felt the administration of the drug was essential to saving the patient's sanity . Tragically, the student had an allergic reaction to the drug and died . Page 2 of 4 There is a reasonable basis to believe that had there not been heavy rain, lightning, and fog on the night of the accident, none of the above events would have occurred . The fence that Abbott had selected to contain the buffalo was considered sufficient for the control of bovine livestock such as cattle . Fence makers have the technical capacity to make more powerful fences, although a fence sufficient to withstand a charging buffalo would cost a tremendous amount of money . Question 1 (70 points ; recommended time- 80 minutes) The family of Margaret Jones wants to file a wrongful death suit against Dr . Jenkins for her medical malpractice. They come to your firm . The senior partner with whom you have been working invites you to sit in on the interview . After the interview, he asks you to write a detailed memo analyzing the case . Be sure to include an analysis of the prima facia case, the likely defenses (either to the prima facia case or affirmative defenses) and other necessary defendants, if any . If your assessment of the case depends on facts not provided, please identify those facts and how you might discover them, and explain the impact of those facts on the chances of success . The partner also wants you to conclude your memo with your recommendation as to whether the firm should take this case . Explain in detail your reasoning for your choice . Question 2 (30 points ; recommended time-36 minutes) Assume for purposes of this question only that the accident happened on August 25 . 2003 (rather than 2005) . The family of Becky Smith has filed a wrongful death action based on battery against Doctor Jenkins . The plaintiff alleges that Dr . Jenkins caused a harmful and offensive touching by injecting Becky with the drug . You are now in the firm representing Dr . Jenkins (ignore the obvious ethical violation for simultaneously representing Dr . Jenkins in Question 2 and suing her on behalf of a patient in Question 1) . The senior partner has asked you to read the following statutes and to draft a Motion to Dismiss the claim based on the below statutes only . You are to identify and analyze the theories you would use in your motion . § 508 :4 Personal Actions . I. Except as otherwise provided by law, all personal actions, except actions for slander or libel, may be brought only within 3 years of the act or omission complained of, except that when the injury and its causal relationship to the act or omission were not discovered and could not reasonably have been discovered at the time of the act or omission, the action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of. Page 3 of 4 11 . Personal actions for slander or libel, unless otherwise provided by law, may be brought only within 3 years of the time the cause of action accrued . § 507-C: 4 Statute of Limitations . Notwithstanding any other provision of law, all actions for medical injury shall be commenced within 2 years of the act, omission or failure complained of, except that where the action is based upon discovery of a foreign object in the body of the injured person which is not discovered and could not reasonably have been discovered within such 2-year period, the action may be commenced within 2 years of the date of discovery or of the date of discovery of facts which would reasonably lead to discovery, whichever is earlier . This section applies to all persons regardless of minority or other legal disability, except that a minor under the age of 8 years at the time of the act, omission or failure complained of shall in any event have until his tenth birthday in which to commence an action . § 507-C : 2 Burden of Proof . I . Where the plaintiff claims that a medical care provider failed to supply adequate information to obtain the informed consent of the injured person the plaintiff shall have the burden of proving by affirmative evidence, consisting of expert testimony of a competent witness or witnesses that the medical care provider did not supply that type of information regarding the treatment, procedure or surgery as would customarily have been given to a patient in the position of the injured person or other persons authorized to give consent for such a patient by other medical care providers with similar training and experience at the time of the treatment, procedure or surgery . II . In any action for medical injury, the doctrine of res ipsa loquitur shall not apply . Question 3 (50 points ; recommended time- 64 minutes) The family of Mary Roberts has brought a wrongful death action against Fence Manufacturer based on faulty design of the fence . A recent case from the Supreme Court of Any state has adopted the 3` s Restatement of Torts for all design and warning cases and has retained § 402A of the Second Restatement for manufacturing defects . You represent the defendant. Identify and analyze fully those elements of plaintiff's claim that you believe are the weak and on which we should focus our defense . Discuss also any possible affirmative defenses. Confine your analysis to these parties and do not discuss any joinder or intervention issues . Page 4 of 4