Mr. Fischer October 18, 2004
10:00 a.m.-12:00 noon
1. This portion of the examination consists of 2 essay questions and 3 pages (pages 1 through 3). Before you begin, check to see that you have all pages and that they are in the correct order.
2. You have 1 hours and 20 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. Very Important. 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 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.
A professional insect exterminator dropped a one gallon jug of extremely toxic pesticide on the street curb in front of Dilbert's house. The jug broke and created a sizeable pool of pesticide on the street. The exterminator left the area without cleaning up the spill. Dilbert discovered the spill, read the label on the broken jug, and realized that the spill was a hazard to the environment. Dilbert knew that there was no governmental agency in his community that he could call on to clean up the spill. Therefore, he decided to clean it up himself. He did this by soaking up the pesticide with rags. He then put the rags and broken glass in a plastic garbage bag. He planned to take the waste to the city's toxic waste disposal facility in two weeks, which was the next date that the city had scheduled for receipt of toxic waste from citizens.
Dilbert knew about spontaneous combustion, and was concerned that the damp rags might combust if kept in a closed plastic bag. He poked holes in the bag to reduce the risk of spontaneous combustion. In addition, he stored the bag in an open barbeque pit in his backyard, rather than in his home. He believed that if a fire did occur, it would do no harm because it would be contained in the barbeque pit.
Ten days later the rags did catch on fire. Sparks from the fire drifted a considerable distance into a neighboring yard owned by Perkins. Perkins' yard was overgrown by very tall weeds. Because it was dry season, the weeds easily caught fire from the spark. The fire quickly spread and damaged Perkins house.
Dilbert and Perkins live in a city that has an ordinance requiring that homeowners keep weeds cut to a height of no more than four inches. If Perkins had cut her weeds down to four inches, they would not have caught fire. Perkins refused to cut her weeds because she strongly believes that a natural yard is better for the environment because it provides food and shelter for animals, and because lawn mowing causes pollution.
Perkins sues Dilbert seeking damages for harm caused by the fire. Perkins has an expert who will testify that environmental cleanup professionals store rags damp with pesticide in sealed metal containers in order to completely eliminate the risk of spontaneous combustion fires. How do you think Perkins' lawsuit will be decided? Fully discuss the reasons for your conclusions.
Patient contracted AIDS from a blood transfusion administered by Doctor in the course of a surgical operation. Patient sues Doctor for battery seeking compensation for all resulting damages.
At the time of this surgery no test was available to determine whether blood was contaminated with the Human Immuno-deficiency Virus (HIV), the cause of AIDS. When Patient and Doctor first discussed the surgery, Doctor said that she would recycle Patient's blood, and that some additional blood might also be required. Patient told Doctor that he wanted "only family blood used for any transfusion that might be required." Doctor responded that Patient should contact officials at the hospital where the operation would be performed to arrange for family donated blood. Patient subsequently made the arrangements with the hospital. Several of Patient's relatives went to the hospital and gave blood before the operation.
During the operation Doctor realized that a transfusion was necessary. She asked the hospital staff to provide her with one unit of blood provided by Patient's family members. The staff informed Doctor that it had inadvertently contaminated the family blood, and that this blood was not safe for transfusion. Doctor realized that a transfusion was necessary to save Patient's life, and that it was impossible to revive Patient to get permission. Also, Doctor would not have been able to contact any of Patient's family members during the operation. Doctor transfused blood from the general supplies, rather family blood, into Patient. Patient survived, and the operation was successful.
After the operation Patient contracted AIDS. Patient can establish that the blood he received was contaminated by HIV, and this caused his AIDS.
How do you think Patient's battery action will be decided? Fully discuss the reasons for your conclusions.
Mr. Fischer November 1, 2004
Dilbert is probably not liable for negligently damaging Perkins' house. The first question is whether the court would hold Dilbert to the standard of care of an ordinary reasonable person or to the standard of an environmental cleanup professional. Since Dilbert does not hold himself out as a professional, he would be held to the professional standard only if a reasonable person would recognize that storing damp rags safely requires the skill of a professional. I don't believe that this is the case because it is very common for non-professionals to store damp rags. Therefore, Dilbert would be held to the ordinary person standard, and Perkins evidence of professional custom (to store damp rags in a sealed metal container) would not be relevant for determining whether Dilbert was negligent. If I am incorrect, and Dilbert is held to the professional standard, then Perkins' custom evidence would be admissible. The jury could consider Dilbert's failure to follow the custom (by storing the rags in a barbeque pit rather than in a sealed container) as some evidence of negligence. The jury would not be bound to find that the violation of custom was negligent, but I believe they would find him negligent for not following the custom.
Under the reasonable person standard, I believe that the jury would find that Dilbert was not negligent. Dilbert did foresee the risk of fire, but the risk of harm to Perkins was apparently low because of the "considerable distance" that the sparks had to travel to Perkins' yard. Of course, if Perkins' yard did catch on fire, substantial damage was likely to result because of the tall dry weeds in his yard. I believe that this risk was justified. By storing the rags Dilbert was protecting the environment from damage by the toxic pesticide. He properly took action himself because he could not call on a government agency to do the cleanup. By poking holes in the bag, and storing the bag in the barbeque, Dilbert took precautions that appeared prudent. Dilbert could have taken more stringent precautions, such as storing the rags in a fireproof container, but obtaining such a container is probably too expensive and too inconvenient in this case because Dilbert would most likely never have to use the container again.
If the jury did find Dilbert negligent, he would still have a chance of escaping liability by arguing that Perkins was barred by contributory negligence because she permitted her weeds to grow too tall. There are two theories. The first is negligence per se for violating the city ordinance. Dilbert would have to persuade the court that the ordinance was a safety measure designed to protect the class of persons to which Perkins belongs (homeowners) from the type of harm that Perkins suffered (fire damage). Without more information (such as the title of the ordinance or the location of the ordinance within the structure of the city's code) it is impossible to determine whether fire prevention was the purpose. It may be, for example, that the purpose was beautification, in which case negligence per se would not apply. Assuming Dilbert could show that the ordinance was designed to prevent Perkins' harm, Perkins would be barred by contributory negligence per se.
Even if negligence per se does not apply, Dilbert could still argue that Perkins was contributorily negligent. The risk of fire was clearly foreseeable to Perkins because the weeds were very tall, very dry, and the season was dry. Such a fire was likely to cause serious damage to Perkins. The risk Perkins took was probably not reasonable because her weeds probably did very little to enhance the environment (her reason for growing the weeds). Therefore, I think that the utility of her conduct was outweighed by the risk of fire damage. Causation is present. If Perkins had cut her weeds, the fire would not have occurred.
I think that Dilbert was not negligent. But if he was, Perkins action would be barred by her contributory negligence.
Did Doctor commit a battery? By transfusing the HIV contaminated blood she clearly acted, and this act caused a harmful contact because the HIV virus in the blood caused AIDS, a deadly disease. But Doctor is not liable for battery unless she intended to cause either a harmful or an offensive touching (or imminent apprehension thereof). Doctor clearly did not intend to cause AIDS because she did not know that the blood was contaminated. The facts do not make clear whether Doctor injected an IV needle into Patient's vein in order to transfuse the blood. Another possibility is that Doctor transfused the blood by using an IV that had previously been put in Patient's vein for general purpose use (to put all medicines or liquids into Patient's body). If Doctor did transfuse the blood by injecting a needle, she would have intended to cause harm. This is because the needle would have damaged Patient's tissue when it pierced the vein, and Doctor would have purposefully caused this damage. The intent to cause the harmful touching (the needle stick), combined with the harmful touching (the needle stick and the AIDS), make Doctor liable for battery and all resulting damage. Patient's consent to a blood transfusion would be no defense because Patient restricted his consent to a transfusion of "family-blood" only, and Doctor exceeded this restriction by transfusion non-family blood.
The case for battery is much more difficult if Doctor did not stick Patient with a needle, but rather transfused the blood through a preexisting IV. In this case, Doctor would not have intended to cause a harmful touching because adding healthy blood to Patient's bloodstream (as was her purpose) is not harmful. Patient could argue that Doctor intended an offensive touching because transfusing Patient with non-family blood was offensive, and Doctor intended this offensive touching. It is not clear that this is a valid argument. The test for offensiveness is objective. Would a reasonable sense of personal dignity be impaired by a transfusion of blood from the general supplies of blood? Maybe not. People do it all the time. Also, we don't even know whether it was offensive to Patient. He may have prohibited the transfusion of non-family blood because of fear of disease, not because of dignitary concerns. Of course it might have been offensive to Patient. If he objected for religious reasons, for example, then the use of non-family blood would be offensive to him. It would also be offensive to a reasonable person who shared Patient's religious convictions. Assuming that the transfusion was offensive to a reasonable person who shared Patient's values, then Doctor would be liable for battery because she intended an offensive touching and both an offensive touching (non-family blood) and a harmful touching (AIDS) resulted.
Even if Doctor committed a battery, she can argue that she was privileged (consent was implied) because of the emergency. The facts establish that a transfusion was necessary to save Patient's life, and there was no time to revive Patient to obtain his consent. Clearly, a reasonable person would consent to the transfusion to save her life because the chance that the blood was contaminated was small. The major problem is that, notwithstanding the above, an emergency will not imply consent if the doctor knows that the patient would not consent. Here Patient expressly prohibited the use of non-family blood. Nevertheless, I believe that Doctor will prevail under the emergency doctrine. At the time of the emergency, circumstances had changed drastically. The Patient's only choice was between a transfusion of non-family blood and death. Under these circumstances Doctor can assume that if Patient had been conscious, he would indeed have authorized the transfusion. Therefore, I believe that Doctor will not be liable for battery.
ASL abstract statement of law unrelated to facts
DF doesn't follow
EA erroneous analysis
FA failure to answer question
FC failure to state a conclusion
GA good analysis
IA incomplete analysis
ID incomplete definition
MA misapplication of rule
MQ misread question
MR misstatement of rule
RF repeating facts unnecessarily