UNIVERSITY OF MISSOURI-COLUMBIA

School of Law

Torts II §§ 1 & 2

Final Examination

PART II

ESSAY QUESTIONS

Mr. Fischer May 17, 2002

1:00 p.m.--4:00 p.m.

Instructions for Essay Questions

1. This portion of the examination consists of 2 essay questions and 4 pages (pages 1 through 4). You should spend 105 minutes on this part of the examination. The time suggested for each question indicates its approximate weight.

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.

4. You are to assume that there is no comparative negligence act unless the specific question informs you to the contrary.

Essay I

[55 minutes]

Miranda and Rose were injured in an automobile accident and were transported to a nearby hospital. Fortunately, Rose was not seriously injured. Because she was three months pregnant, however, she asked her doctor, Dr. Elders, to perform a battery of tests on her fetus to assess whether the accident had caused the fetus any harm. Dr. Elders performed the tests negligently and erroneously informed Rose that the fetus was unaffected by the accident and would be born healthy. In fact, however, the fetus, John, was born six months later with severe physical and mental disabilities caused by the accident. Had Rose's doctor not committed negligence in testing the fetus, the test would have revealed the defects and Rose, a single mother, would have aborted.

Miranda's injuries were serious and she was suffering from severe internal bleeding. Her condition required a blood transfusion, but Miranda had an extremely rare blood type. For a variety of reasons (none of which are relevant here), the hospital was running low on blood products, particularly for rare blood types. Fortunately, one unit of blood that matched Miranda's type remained in stock. A nurse rushed to bring the blood to the emergency room bay where the physicians were working to save Miranda.

Two workmen, Larry and Moe - employees of A to Z Construction, were doing some renovation work inside the hospital. Larry became diverted from his assigned tasks when he saw some sophisticated medical monitoring equipment on a hospital cart in a room near the work area. Larry moved the cart to the work area and began carelessly operating the delicate and easily breakable equipment. Moe was on a nearby step ladder working on a ceiling fixture. He carelessly lost his balance and fell off the unstable step ladder onto the cart of monitoring equipment that Larry was playing with. Moe's fall on the cart full of equipment made a very loud crashing noise, which in turn startled the nurse who was carrying the bag of blood for Miranda. The nurse dropped the bag which landed on an unidentified object, breaking it, and spilling the life-saving fluid on the floor. Unable to receive a transfusion, Miranda died from her injuries.

1. A negligence/malpractice suit against Dr. Elders was filed on John's behalf. Dr. Elders has filed a motion to dismiss on the ground that she did not owe John a duty. Assess this motion to dismiss.

2. Miranda's executor brought a wrongful death action against Larry and Moe for negligence leading to Miranda's death. Larry and Moe have filed motions to dismiss on the ground that their actions were not either the factual cause or the proximate cause of Miranda's death. Assess these motions to dismiss.

3. Miranda's executor also brought a wrongful death action against A to Z Construction, alleging that A to Z is liable for the negligence of Larry and Moe leading to Miranda's death. Both parties have stipulated that A to Z instructed Larry to never play with hospital equipment, and it instructed Moe to always use a scaffold rather than a step ladder when working on ceiling fixtures because a scaffold is much more stable than a step ladder. A to Z Construction has filed a motion to dismiss on the ground that the actions of their workmen were not within the scope of employment. Assess this motion to dismiss.

Essay II

[50 minutes]

Pat, an Acme storm window sales person called Diane, a homeowner, but did not find her at home. She left the following message on Diane's answering machine, "Sorry I missed you. We are installing storm windows in your neighborhood. Unless you call to cancel, I will stop by your house tomorrow afternoon to give you a free estimate. If you want to reschedule this appointment, or cancel it, please call me at 445-1212." Diane hates telemarketers. She got the message and immediately erased it. Knowing that she would not be at home the following afternoon, she declined to return the call to cancel the appointment.

The next afternoon, Pat went to Diane's house and parked her pickup truck in Diane's driveway. Pat rang Diane's doorbell, but found no one home. She decided to measure the windows from the exterior of the house while waiting for Diane to return home. Pat went around to the back of the house and began measuring the window frames. She heard a loud crashing noise in the front of the house and went to see what happened. She discovered that a large tree in Diane's front yard had fallen on her truck. The impact smashed a two gallon gasoline container sitting in the back of the truck. The gasoline was ignited by a spark caused by the tree hitting the truck, and the fire seriously damaged the truck.

Pat sues Diane for damage to the truck. Pat can prove that Diane knew that the trunk of her tree was rotted and the tree was at risk of falling. How do you think the case will be decided?