Liability of a Pub in Tort Claims for Intoxicated Patron's Accident, Exams of Law of Torts

Download Liability of a Pub in Tort Claims for Intoxicated Patron's Accident and more Exams Law of Torts in PDF only on Docsity! TORTS I PROFESSOR DEWOLF FALL 2004 December 16, 2004 FALL EXAM Instructions DO NOT GO BEYOND THIS PAGE UNTIL THE EXAM ACTUALLY BEGINS. THIS IS A CLOSED BOOK EXAM! While you are waiting for the exam to begin, be sure that you have written your EXAM NUMBER on EACH bluebook, that you have read these instructions, and that you are otherwise ready to begin. IMPORTANT: This exam will last THREE HOURS. You should plan on spending AT LEAST 20 minutes reading the questions carefully and outlining your answers on a separate sheet of paper. Before writing your answers, REREAD each question to be sure you haven't missed anything. DOUBLE-SPACE your answers in the bluebook. Use SEPARATE BLUEBOOKS for EACH QUESTION. Label each bluebook according to each question and, if necessary, book number, e.g., "Question 1, Book 1"; "Question 1, Book 2"; "Question 2"; etc. When you are finished, turn to the back cover of the first bluebook, and place the second, third, fourth, etc. bluebook in order inside the end of the first bluebook, so the whole makes a single package and can be read from front to back. Then put it in the box at the front. You are welcome to use abbreviations, but indicate what they are, e.g., ̀ Andropov ("A") would be sued by Brezhnev ("B"), alleging that A would be liable to B ... .' Plan on spending at least 15 minutes at the end PROOFREADING your answers. You may not write ANOTHER WORD after time is called. The exam covers the subjects covered in Chapters 1-3 of the casebook. Do not address any issues beyond that point, such as contributory fault, governmental liability, the liability of defendants to one another, or other issues. A STATUTORY APPENDIX is provided that gives the law of this jurisdiction, the State of Linden, on some issues. If no law is specified on the point you are interested in, please comment on the possible alternatives. Each question has been assigned a point total, and the exam as a whole has a point total of 135. Spend the amount of time on each question reflecting its relative worth. You may KEEP your copy of the exam questions if you wish. REMEMBER THE HONOR CODE! Don't identify yourself. DOUBLE SPACE! DOUBLE SPACE! DOUBLE SPACE! GOOD LUCK!!! TORTS I (DeWolf), FALL 2004 EXAM Page 2 of 6 QUESTION 1 (80 points) On the evening of May 21, 2004, Steven Driscoll, aged 34, began drinking at a bar known as the Shadows, where he consumed six mixed drinks over a period of four hours, and ate a hamburger, potato chips and popcorn. Sometime between 10:00 pm and 10:30 pm Driscoll received a call from a business acquaintance, Charlie Green, who asked to meet him at the Pub. Green (aged 45) was the sales manager of a printing company, and Driscoll was employed by a municipal bond issuer that occasionally utilized the services of Green's employer. At the time he arrived at the Pub, Green had not had anything to drink. Green ordered a pitcher of beer, and drank most of the beer, although Driscoll had between one and two glasses. On the night of May 21, the Pub was almost full, and the normal crew of three waitresses was on hand. The Pub checked ID of anyone who appeared thirty or younger. None of the waitresses has any recollection of serving Green or Driscoll, but Green has stated that Driscoll did not appear intoxicated at the time he drank the beer. At about midnight Driscoll left the Pub and began driving south Route 44. At the same time, Sarah Craig was a pedestrian on the west shoulder of Route 272 near its intersection with Route 44 in Norfolk, Linden. Driscoll's vehicle drifted from the roadway to the shoulder, and before he could correct it, his vehicle struck Sarah Craig. Within a few minutes of the collision, Valerie P. Craig, the mother of Sarah Craig, and Samuel Craig, the brother of Sarah Craig, arrived at the scene of the accident and observed Sarah Craig lying unconscious at the side of the road, bleeding from a head wound. Valerie Craig called 911 and paramedics arrived on the scene within 10 minutes. While she was waiting, Valerie held a folded handkerchief to the temple of Sarah to prevent further blood loss. As soon as the paramedics arrived they placed Sarah on a gurney and placed her in the ambulance for transport to the Good Samaritan Hospital. En route to the hospital, Craig's pulse was no longer detectable, and by the time she arrived at the hospital she was pronounced dead. Following the accident, a breathalyzer test was administered and Driscoll's blood alcohol content was determined to be .11%, which is .03% above the legal limit. Driscoll had previously lost his license to drive as a result of a conviction for driving under the influence, and he was uninsured at the time of the accident. You work for a law firm that represents the Pub. Another associate in the office has been assigned the task of assessing the potential damages from the wrongful death case brought on behalf of Sarah Craig. Your assignment is to analyze the liability that the Pub could might face for tort claims, aside from wrongful death, that could be brought by Valerie Craig and/or Samuel Craig. QUESTION 2 (55 points) On July 18, 2003, Dwayne Nelson was released from prison. On July 24, 2003, after ingesting a large amount of cocaine, Dwayne stood in the middle of a busy intersection in Springfield, Linden, and fired a loaded gun into the air and at passing motorists. Security officers from the Xomox Corporation, located nearby, were alerted by employees who could observe Nelson from the Xomox building, and after calling 911 the security officers headed toward the intersection to see what they could do about Nelson. One of the security officers was able to approach Dwayne and was able to subdue him. Dwayne was handcuffed with his hands behind his back and placed on the ground. He then began thrashing about, and the security officers laid the still-handcuffed Dwayne face-down on the ground, and executed a TORTS I (DeWolf), FALL 2004 EXAM Page 5 of 6 § 377.34. Damages recoverable In an action or proceeding by a decedent's personal representative or successor in interest on the decedent's cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement. CHAPTER 4. EFFECT OF DEATH ARTICLE 6. WRONGFUL DEATH § 377.60. Persons with standing A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf: (a) The decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the parents of the decedent. (b) Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, or parents. As used in this subdivision, "putative spouse" means the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid. (c) A minor, whether or not qualified under subdivision (a) or (b), if, at the time of the decedent's death, the minor resided for the previous 180 days in the decedent's household and was dependent on the decedent for one-half or more of the minor's support. (d) This section applies to any cause of action arising on or after January 1, 1993. (e) The addition of this section by Chapter 178 of the Statutes of 1992 was not intended to adversely affect the standing of any party having standing under prior law, and the standing of parties governed by that version of this section as added by Chapter 178 of the Statutes of 1992 shall be the same as specified herein as amended by Chapter 563 of the Statutes of 1996. (f) For the purpose of this section, "domestic partners" has the meaning provided in § 297 of the Family Code. § 377.61. Damages recoverable In an action under this article, damages may be awarded that, under all the circumstances of the case, may be just, but may not include damages recoverable under § 377.34. The court shall determine the respective rights in an award of the persons entitled to assert the cause of action. TORTS I (DeWolf), FALL 2004 EXAM Page 6 of 6 ANNOTATED LINDEN CODES TITLE 30. INTOXICATING LIQUORS CHAPTER 545. LIQUOR CONTROL ACT ARTICLE 7. PROHIBITED ACTS, PENALTIES AND PROCEDURE § 30.102. Dram Shop Act; liquor seller liable for damage by intoxicated person If any person, by such person or such person's agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of two hundred fifty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of two hundred fifty thousand dollars, to be recovered in an action under this section.