University of Missouri - Columbia

School of Law

Torts § I - Mitchell

 

Final Examination

Wednesday, December 6, 2006

1:00 p.m. - 5:00 p.m.

 

UNIVERSITY OF MISSOURI‑COLUMBIA

SCHOOL OF LAW

TORTS ' 1

 

Final Examination

 

Part I - ESSAY

 

 

 

Mr. Mitchell
December 6, 2006

1:00 p.m. - 5:00 p.m.

 

 

Part I of the final exam consists of three fact patterns. Each fact pattern has a different amount of time allotted to it, and will be weighted accordingly. Please write a coherent, well-thought and well analyzed essay that demonstrates your knowledge of the legal issues.


Essay I - 55 minutes

 

Jacob Johnson ("JJ"), a one year old boy in good health who weighed approximately 33 pounds, lived with his biological father, Peter, and his father's girlfriend Dana in Augusta, Maine.

Peter purchased a used Baby Care SIGHTSEER booster seat on September 26, 2006, a type of child safety seat known as a "booster with shield," for JJ at a yard sale. The original owner purchased the seat in 1990. Peter purchased the seat because one of his relatives had a similar seat for their child. When Peter purchased the booster, he did not receive an instruction booklet or owner's manual. He did, however, read the labels on the booster seat that stated only how to install the booster seat. After having read the labels on the seat, Peter not only showed Dana how to correctly install and use the SIGHTSEER, wrapping the automobile's seat belt tightly around the SIGHTSEER's shield, but also witnessed Dana properly using the seat with JJ on numerous occasions.

On November 26, 2006, Dana placed JJ in the SIGHTSEER. While driving on the highway in Augusta, Dana lost control of her car, leaving the road and striking a tree. While Dana suffered a broken ankle, JJ suffered a closed head injury, rib fractures, a lacerated appendix, a collapsed lung, and most seriously a spinal cord injury, that has left him with paraplegia.

Maine State Highway Patrol Trooper Robinson arrived on the scene soon after the wreck and asked Dana about how JJ was restrained at the time of the wreck. Dana told Sergeant Robinson that she properly restrained JJ in the SIGHTSEER, with the vehicle's seat belt wrapped around the SIGHTSEER's shield. Trooper Robinson inspected the car and found the SIGHTSEER where it should have been had it been properly restrained by the vehicle's seat belt.

According to the Federal Motor Vehicle Safety Standard 213 ("FMVSS 213"), "child safety seats are to be permanently labeled with a label that tells users the weight limits for which that seat can safely be used. The ‘booster with shield' model seats have a minimum weight requirement of 40 pounds." In addition, the National Highway Traffic Safety Administration ("NHTSA"), the body that promulgated FMVSS 213, has defined "permanent" to mean the label cannot be "removed without destroying it when torn away or peeled away."

At Trial:

 

  1. Child safety seat expert for Peter offered forensic evidence confirming that the SIGHTSEER had been properly installed at the time of the wreck and JJ's injuries were consistent with the SIGHTSEER having been properly installed.

 

  1. Baby Care's expert stated:

 

(a)    The 1990 SIGHTSEER model was not originally designed for children who weighed less than the 40 pound minimum, but there had been numerous tests in which the NHTSA tested the booster seat using a dummy weighing 33 pounds.

 

(b)   The SIGHTSEER complied with industry standards and with the regulatory system specifically enacted to enhance motor vehicle and child restraint system safety mandated by Congress.

 

(c)    The NHTSA amended FMVSS 213 in 1994 setting the minimum weight limit for this type of product at 30 pounds.

 

  1. November 26, 2006 Road Conditions: High Visibility, Clear and Dry

 

  1. Damages: $500,000 past medical; $1 million future medical; $2 million lost earnings and wages

 

Question: What are the causes of action that lie for Peter Johnson? What will be the outcome?


Essay II - 40 minutes

 

Danielle Davidson was an architect who owned a two-story building. Paula Parker was a restaurateur who had discussed a possible lease of the first floor of Danielle's building to be used for Paula's restaurant business. No lease had been signed before July 17, 2006, but Danielle permitted Paula to move some fixtures into the space with the understanding that if a lease agreement was not decided, a daily rental would be charged for actual occupancy.

On July 17, Paula and Danielle met to negotiate the terms of the lease and to discuss remodeling plans in which Danielle was to provide architectural assistance. Paula and Danielle entered the building together with the intention of going to Danielle's office on the second floor to discuss the lese and review plans. Paula proceeded first along the first floor corridor toward the rear of the building where a freight elevator was located. At the first floor entrance to the elevator, a wooden slat gate protected the open elevator shaft when the elevator was not there. The gate was equipped with an interlock device designed to prevent the gate from operating unless the elevator was at that floor level. Paula had previously been instructed by Danielle on the proper operation of the elevator.

The actual elevator car had no doors or gate and could therefore be entered once the wooden floor gate was raised. The lighting in the corridor next to the elevator was dim and the elevator cab was lighted by a fixture which was normally turned off when the elevator was not in use. Paula approached and raised the wooden gate intending to step into the car and turn on the light, but the elevator was actually on the second floor level. Paula fell into the elevator pit twenty-five feet below, breaking her right leg and suffering a concussion. The interlock device on the wooden gate failed to permit the gate to be raised even though the car was not at the first floor level.

 

Question: What are the causes of action and the likelihood of success?


 

 


Essay III - 25 minutes

 

Pat had appendicitis. She authorized her surgeon, Dr. Diane, to remove her appendix after Dr. Diane fully explained all the risks of and alternatives to the surgery. Pat agreed to the operation only on the condition that no male doctors or nurses would be present in the operating room during the operation. Pat explained that she relies on the advice of a fortune teller who warned her that she would die if any male touched her during any surgical procedure. Dr. Diane assured Pat that her restriction would be respected, and that no males would participate in the operation. Dr. Diane assigned only female medical personnel to participate in the surgery.

Shortly before the operation, the female surgical nurse assigned to the operation reported she was ill. A hospital administrator assigned a male nurse (Ralph) to assist with Pat=s operation. In the course of the operation Ralph touched Pat several times. Ralph's conduct in this regard was of a kind entirely in keeping with standard surgical procedures. Neither Ralph nor the hospital administrator knew about Pat's prohibition against male participation in the operation. The administrator would have assigned a female substitute if she had known about the restriction. Ralph would not have participated if he had known. Ralph has AIDS, and is aware of his condition, but concealed his condition from his employer and the public. Because he was wearing a surgical mask and gloves during the operation, the risk of his transmitting the disease to Pat was very small, and Pat did not contract the disease.

The operation was completely successful, and Pat has fully recovered from the surgery. Pat subsequently learned about Ralph's participation in the operation and of his AIDS diagnosis. Pat sues Ralph for battery based on being touched by Ralph during the operation. She claims she would never have consented to be touched by Ralph both because of his gender and of his illness.

 

Question: How do you think the case will be resolved? Fully discuss the reasons for your conclusions.