Mr. Fischer December 10, 2002
8:30 a.m.-11:30 a.m.
1. This portion of the examination consists of 2 essay questions and 4 pages (pages 1 through 4). Before you begin, check to see that you have all pages and that they are in the correct order.
2. You have1 hour and 45 minutes for this part of the examination. You may allocate your time in any way you choose, but the time suggested for each question indicates its approximate weight.
3. Please use a pen, write legibly, and write on only one side of a bluebook page. Please number your pages and, if you use more than one bluebook, please number your bluebooks.
4. Read each question carefully. Assume that the events at issue took place in an unidentified American state. If you believe you need to know more information about the question in order to resolve an issue raised by the facts given, tell me what you need to know and how it would affect your analysis. Answer the questions based on majority, and if applicable, minority rules. Do not add facts to create issues not already raised by the facts given. Do not make implicit assumptions. Be sure to address all issues raised by the facts even if you think a single issue is dispositive. You are to assume that there is no comparative negligence act unless the specific question informs you to the contrary.
5. Each answer should be self-contained. Thus, you should not "incorporate by reference" anything from one answer to another.
You are a new associate with a law firm. A partner calls you into her office to give you your first assignment, and tells you the following. I have just visited with a potential client, Penn, whose truck was damaged in an accident. He wants me to pursue a tort action on his behalf against his neighbor Danby, and I must decide whether to take the case. I would like your advice.
The damage occurred in this way. Danby purchased some antique furniture from a dealer. Danby asked to borrow Penn's truck last Friday to move the furniture from the dealer's store to Danby's house. Penn agreed, telling Danby that the truck would be parked in Penn's driveway. He gave Danby the keys to the truck, and told him that he could take it anytime on Friday.
Danby took the truck to the dealer's store late Friday afternoon, and loaded the furniture on the truck. As Danby headed back to his home, he decided to go by his Aunt Emmy's house to show her the furniture. Aunt Emmy lived on the other side of town from Danby. Thus, Danby had to drive approximately ten miles out of his way to visit his aunt. The most direct route to her house was over Rolling Hills Road. Danby turned onto Rolling Hills Road and saw a barricade across the road with a large sign on the barricade that said in big letters, "Road Closed." Danby knew that the road was closed because the city was spraying for mosquitoes in that area. He also knew that the work crew finished spraying that day since it was now almost completely dark. Danby decided to drive around the barricade and take Rolling Hills Road to his aunt's house. As Danby drove down Rolling Hills Road at a speed of 45 miles per hour he temporarily took his eyes off the road to check his map for the location of the turnoff to his aunt's house. At that moment a deer leaped onto the road about 20 feet in front of the truck. Danby hit the deer with the truck. He did not see the deer until the collision occurred, and he took no evasive action prior to the collision. The collision caused very extensive damage to the truck.
The speed limit on Rolling Hills road is 50 miles per hour. There is a state statute that makes driving on an officially closed road a criminal offense punishable by a fine and by imprisonment. The statue authorizes municipalities to close roads for "maintenance, repair, and where otherwise necessary to carry out legitimate governmental functions." The city properly closed Rolling Hills Road pursuant to the statute.
Please advise me as to any theories of recovery that Penn may have against Danby. Please evaluate the theories in terms of Penn's chances of success. I would like your recommendation on whether I should pursue the case, and on what theories I should use.
Another partner calls you into his office and tells you the following. I represent Pat Potts. The grass and shrubs in his yard have all died, and he wants me to pursue an action against the Dobbs Lawn Care Service for applying a chemical pesticide that Potts believes killed the plants. Potts has never done business with this service, which is owned and operated by Dorothy Dobbs. The evidence will show that Dobbs received an order from Pat Jones for an application of pesticide at Jones' residence at 1100 Oak Side Drive. Dobbs misread the address on the order form, and went instead to Potts' residence at 1100 Oak Cliff Drive. Potts' street address was on his mailbox, but his name was not. Pursuant to a lawn care industry custom, Dobbs routinely checked with the homeowner before applying a pesticide to a lawn. This custom guards against accidental application of pesticide to the wrong lawn. Dobbs applied the pesticide on Potts' lawn, however, without first checking with the owner because she found the following note taped on Potts' front door:
Dear lawn care person,
Baby is sleeping! PLEASE to not ring door bell. Proceed with application, and I will send your payment in the mail.
Potts actually left the note for the Acme Lawn Care Service. Potts ordered a chemical fertilizer application from Acme, and he put the note on the door because he expected Acme to apply the fertilizer that day. Actually, Acme applied the fertilizer on the following day to the same area where Dobbs applied the pesticide.
Within two days after the application of the pesticide (one day after the application of the fertilizer), all the grass and shrubbery in the area of the application began to show signs of stress. All of these plants died within the following two weeks. We have no direct evidence as to why they died. No vegetation in the other yards in Potts' neighborhood suffered noticeable damage or stress. Lawn care experts will testify that both chemical pesticides and chemical fertilizers are harmless to plants as long as they are carefully mixed and properly applied. Either a chemical pesticide or a chemical fertilizer can be harmful, however, if it is improperly mixed or improperly applied. Dobbs will testify that she mixed the pesticide as a single batch for one application only, and that she did carefully mix and properly apply that batch of pesticide to Potts' lawn. Acme's employee will also testify that he carefully mixed and properly applied the fertilizer. The employee will further testify that he applied fertilizer from the same batch to several other lawns that day with no adverse results.
Do you think that Potts has a valid tort claim against Dobbs? If so, on what theory, and for what damages? Fully discuss the reasons for your conclusions.