1:00 p.m.--3:00 p.m.
1. This examination consists of 2 essay questions and 4 pages (pages 1 through 4). The time suggested for each question indicates its
2. Please use a pen, write legibly, and write on only one side of a bluebook page.
3. Each answer should be self-contained. Thus, you should not "incorporate by reference" anything from one answer to another.
Plaintiff brings a tort wrongful death action against Acme Arsenal. The decedent was a member of the Explosive Ordnance Disposal ("EOD") branch of the U.S. Army. He was killed in an explosion that occurred while he was attempting to disarm an M-739 fuse in an artillery round. The fuse contains a complex triggering mechanism for exploding the charge within the artillery round.
The fuse was manufactured for the Army by Acme Arsenal. Acme designed the fuse, and the Army approved the plans for the fuse as part of the procurement process. Acme designed the fuse to be disarmed by employing a four-step process that includes attaching a ground wire to the round in order to discharge static electricity. Acme did not place a label on the M-739 fuses setting out the four-step disarming process. Acme did not discuss with the Army procurement representatives the question of whether to place such a label on the fuses.
Acme had previously developed a fuse that could be disarmed in a three-step process because it could be disarmed without attaching the ground wire. Acme choose not to submit that design in its proposal to the Army, however, because the three-step fuse was less reliable, producing ½% more artillery rounds that failed to explode on impact. Acme did not inform the Army of the three-step design for the M-739 fuses.
The military training for EOD branch members is highly technical and very comprehensive. The Army gave every EOD branch member detailed training in disarming M-739 fuses. The Army also provided each EOD member an M-739 manual that clearly set out the four-step process for disarming the fuses.
At the time of the fatal explosion the decedent was alone in a bunker disarming the fuses in ten artillery rounds. Decedent was in possession of his M-739 manual, and was in constant radio contact with other members of his unit. He had successfully disarmed four rounds and was working on the fifth round when the explosion occurred. It appears from the radio transmission that the fifth round exploded because decedent neglected to connect the ground wire to the round while disarming its fuse. It is unclear why this happened. Decedent did report over the radio that he connected the ground wire to the first four rounds that he disarmed.
Evaluate plaintiff's chance of a successful tort recovery in the wrongful death action against Acme Arsenal.
Able and Baker sue Davis, as manufacturer of a chemical product called Fusarex, in strict tort liability for damage to their crops of Delcora potatoes. Fusarex is manufactured and sold by Davis as a potato sprout suppressant. The directions for use of Fusarex require dusting seed potatoes just before storage. The Fusarex is expected to keep the treated seed potatoes from sprouting until after they are taken from storage, aerated, and planted. The Fusarex bag label contained the following statement: "After planting there may be a slight delay in emergence depending on weather conditions and variety."
Able is a commercial seed potato grower. In the September 1996, she purchased Fusarex from a retail supplier who bought the Fusarex from Davis in May 1996. Able dusted a quantity of her newly-harvested Delcora seed potatoes with Fusarex immediately after purchasing it. The seed potatoes were then stored for the winter. In the spring of 1997, after inspecting the potatoes and keeping some for herself, Able sold substantial amounts of the certified seed to Baker.
In June 1997, Able and Baker began noticing problems with their potato crops. The seed potatoes treated with Fusarex showed delayed and erratic emergence, multiple sprouting, a heavy tuber set resulting in small potatoes, and reduced yield. They both suffered substantial loss of income because of the reduced yield.
In the suit expert testimony will establish the scientific literature which gave results of field tests of the chemicals in Fusarex on potatoes. Prior to July 1996, the literature showed virtually no adverse effects on potato yields. In July 1996 an article was published revealing that with respect to one variety of potato, the Delcora, the chemicals greatly increased the risk of multiple sprouting, delayed emergence, heavy tuber set, and reduced yield. The literature indicates that a small change in the chemical formula of Fusarex will make the product safe for use with Delcora potatoes. The modified formula, however, would be less effective with other varieties of potatoes.
How are the Able and Baker strict liability claims likely to be resolved? What damages will they likely recover in the event that the suits are successful?