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Institution Fordham University School of Law Course 13932 TORTS8 Conk Instructor NA Exam Mode Closed

Exam ID E38285474

Count(s) Section 1 Total

Word(s) 3230 3230

Char(s) 15740 15740

Char(s) (WS) 19071 19071

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1. The business and residential tenants of 10 South End Ave. have come to us seeking remedy for various damages sustained during recent hurricane that hit the tri-state area. The tower in question is located in Battery Park City in Manhattan and was flooded due to the storm surge. Like nearly all of lower Manhattan below Canal street, the tower lost power for 96 hours during the storm and businesses were shut down for the entire week. Residential tenants were forced to relocate and business tenants sustained significant economic losses as a result of the loss of power and subsequent inability to operate. The duration of the power outage and business shutdown was extended by the inability of workers to commute to work because the tunnels and bridges into Manhattan were shut down for some time. The potential negligence claims against the various entities involved are discussed below, in turn. Claims Against Government Entities (MTA, PANY-NJ, State of NY, the Bridge and Tunnel Authority. The first legal question which must be researched is the impact Flood Control Act on claims against the governmental entities here. That statute limits the categories of damages available to the putative plaintiffs here, the tenants. Assuming that all claims are not barred, our clients face additional legal hurdles in prosecuting an action against the government entities. At common law the doctrine of sovereign immunity barred suits agains the state and its various agencies arising in tort. Kawanakoa v. Polybank (Holmes, J.). However, all states have since consented to tort liability in one degree or another. New York has consented to liability via its tort claims act. Like many other states, while the government of NY still enjoys immunity for descretionary decisions which implicated public

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policy concerns, it can be held liable for neglient acts that involve obedience to instructions or laws (so-called "ministerial decisions.") Lauer v. NYC. The critical issue for our client's potential case against the government entities here will be how the court characterizes the government's various failures to act: were these failures ministerial in nature or did they implicate public policy. We must soberly advise our clients that a suit against the various governmental entities here is likely to be rejected. The failures by the Bridge and Tunnel Authority (no flood gates were ever built) and the MTA and PANY-NJ (failure to develop and install state-of-the-art balloon to seal off tunnels from flood water) clearly fall within the category descretionary public policy decision which still enjoy immunity. Moreover, it is not clear that some more minsterial-like decisions (when to reopen the tunnels and restart the trains) were negligent anyhow. The state and agencies in question were dealing with a massively impactful storm and were likely concerned with insuring the safety of commuters in traveling through the recently flooded tunnels--taking the extra to check everything was certainly not negligent. Claims againt Con Ed The claims of negligence against Con Ed are more plausible, but since we are in New York we face difficult binding precedent on the duty element of the tenants negligence claim. In the seminal case Strauss v. Belle Reality and Con Ed, the plaintiff brought an action against Con Ed for injuries sustained as a result of the recent city-wide black-out. The plaintiff in that case had sustained injuries when he fell in a darkened common space in his apartment building that did not have power because of Con Ed's "gross negligence", as decribed by an earlier court. Nonetheless, the NY Court of Appeals denied the plaintiff's claim

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and ruled that Con Ed owed no duty to Strauss with regard to the lighting in the common space because the building owner, not the plaintiff was the contractual customer for that area of the building. The court declared in denying the plaintiff's claim, that it was its "responsibility to define an orbit of duty that places controllable limits on liability" so as to avoid crushing liability against Con Ed. Id. Our clients claims are at risk of such a broad duty determination in New York. Still, if we are able to escape a broad no-duty determination, our clients may have a good claim against Con Ed for the economic losses sustained as a result of the loss of power because many if not all of them were in privity of contract with Con Ed, one of the primary hurdles face by Strauss in that case. By agreeing to supply the tenants power Con Ed incurred a duty to maintain and modernize its electrical grid and power substations to protect against the kind of foreseeable storm surges that occured during the hurricane as predicted by NYSERDA. The ASEE D+ grade of the Manhattan electrical grid is further proof of Con Ed's failure in this duty. There are other tricky elements of the tenants claims against Con Ed. Firstly, they are not likely to be the only putative plaintiffs with this kind of action against the power company. Such actions are likely to be consolidated before a judge and may be subject to "creative" judicial solutions to this city-wide issue like those recently reached in the World Trade Center, BP Oil Spill and Katrin Canal Breaches actions. Claims against Lefrak and Cooper Square and the owners of 10 S. End Ave. The tenants have good negligence claims against the management companies and the premise owner. At common law a person or entity in control of a premises owed a duty to business invitees

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to exercise ordinary care. This duty was clearly breached by the management companies and property owners here when they failed to waterproof basement electrical rooms and back-up generators and failed to put up a sand bag barrier to protect against flooding of the basement garage and subsequent damages to tenant cars. Such flood was foreseeable as BPC is at or below sea level; thus they had a duty to take measure to mitigate the damages that could be caused by a flood. They should be held liable for the damages to the cars and tenants should receive a rent abatement because they were not able to benefit from the generators due to the premises owner and operator negligence. 2. TO: Boss From: Associate McKown v. Simon Prop. d/b/a Northfield Mall McKown was shot and badly injured in a mass shooting at the Northfield mall. He was employed by one of the stores at the mall when Maldonado, the shooter, entered with an arsenal of guns and ammo and began shooting. McKown was shot while attempting to intervene. He was legally armed with a handgun and was shot when he confronted Maldonado. Between 2000 and 2009, numerous gun crimes, including shootings occured in or around the Northfield Mall premises. McKown has filed a notice of intent to sue the Town of Northfield and appears to intend to also bring suit against the property owners (Simon) who are insured by our client Traveler's. The merits of the legal foundation of McKown's varios claims are evaluated below. Claim Against the Township This claim is dead in the water. Even assuming the government has consented to suit in tort, it remains immune for failures to

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act or provide services which implicate policy concerns. The decision to provide public protection to a private mall and install a substation at the mall clearly fraught with policy considerations. Cope v. Scott. The court will quicly dismiss McKown's claim against the Township. Claim Against the Property Owner The dismissal of the case against the township will present a problem for out clients because McKown is likely to come after Simon next. Whether the MN courts follow old common law distictions between the duty of care owed to invitees, licensees and trepassers or follow the more modern 3d restatement approach declaring that a premise owner has a duty of ordinary care to all of lawful entrants onto the property, does not matter because McKown was clearly a business invitee--he was there for work and the Mall benefits from having tenant-stores and their employees at the mall. The key question in McKwon's action against Simon will be: did that duty of ordinary care include a duty to protect McKown against Maldonado's criminal acts? Key to this dispute will be where the MN courts place the concept of foreseeability in negligence cases; but our client will likely prevail in any event. Two cases are illustrative. The first, AW v. Lancaster says that "an actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm" and places the question of forseeability in the context of the breach determination. Thus, if a particular harm is not foreseeable it would not be a breach of the duty of ordinary care to fail to protect against it. This means that it is up to the jury to decide if Maldonado's criminal conduct and McKown's injury were foreseeable such that Simon's failure to prevent them was a breach of the duty of care owed to a business invitee. We would likely still win this case even if it went to the jury: a criminal mad man entering a mall with an arsenal of guns and a vigilante salesman with a pistol of his own

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confronting him is probably not sufficiently foreseeable that a jury would find against Simon. The alternative approach and the approach we should advocate is that stated in Posecai v. Wal-Mart. That case is very much on point and states that "the forseeability of the crime risk on the defendant's properyt and the gravity of the risk determine the existence and the extent of the defendant's duty." Id. The greater the foreseebility and the graver the harm the more likely there is to be a duty to guard against it. Id. Relying on Posecai we will argue that, notwithstanding the history of gun crimes on the premises (the majority of which were in the parking lot), the specific risk of a mass shooting was not foreseeable and thus Simon had no duty to protect against it. Should the court accept our reasoning we will get out on summary judgment and avoid an expensive trial. Claim against the Security Company McKown's claim that the security company was negligent because it failed to install metal detectors and monitor video cameras will probably be rejected by the court. The claim concerning metal detectors does even pass a basic Hand formula analysis. Us v. Carroll Towing. The burden upon the shopping mall and its customers of having to pass metal dectors to get into the mall would be massive and far outweigh any risk avoided. We all know what a pain it is to get through airport and courthouse security--can you imagine if a mall had that? Noone would ever shop there. The negligent failure to monitor the video cameras is more credible, but still weak. The security company and mall probably could have installed these and had them monitored at comparatively little cost and would have incurred the theftdeterent benefit as well. However, it is not clear how this

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breach led to the harm here--there is just no proximate cause. The injury sustained by McKown was just not within the scope of risk/liability of failing to install and monitor security cameras. 3. Choate v. Inner Harbor Belt Railway Co. Billy Choate, a nearly 13 year old boy, lost his left leg below the knee in a train accident on the IHB RR. Entering a partially fenced off area around the tracks through a long torn open and rolled back area of the fence (which people walk through to cross the tracks) Billy approached a slow moving train and in attempt to show off to his friends, tried to grab a ladder on one of the train cars, slipped and had his leg caught underneath the train. I have been asked to assess the prospects of a claim against IHB. The damages sustained by Billy are severe and he will diabled for the rest of his life and probably suffer economically as a result. He also likely has a large claim for pain and suffering as well as embarassment for having to live with an amputated limb for the rest of his life. The most difficult elements of Billy's claim against IHB will be the duty element of the negligence claim and a likely contributory or comparative negligence defense on the part of IHB. At common law a premise owner owed a trepasser only a duty to refrain from inflicting willful and wanton injuries or setting a trap. Rest. 2d 333. Here, Billy is clearly a trepasser because he entered on the RR property without privilege. Rest. 2d. 329. This would seem to foreclose any claim he might have against the RR. However, the 2d Restatemen recognizes a child trespasser Doe v. Manheimer.

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exception. Under that exception a premise owner is liable for injuries caused to the child trepasser if he maintains an attractive nuisance, knows children are likely to trespass, there is a condition on the premises that presents unreasonable risk of death or serious harm to children and children would not realize the danger. Id. Billy probably satisfies most of the elements of the child trespasser exception. He is not yet 13, so probaby still considered a child--he is definitely a "minor" in legal parlence. Also, the slow moving train is likely to qualify as an "attractive nuisance." Everyone knows that small boys love trains and are fascinated by large industrial equipment like train engines, cranes, etc. and the easily accessible train ertain presented a unreasonable risk of eath or serious harm to such a boy. Billy runs into trouble on the last element. Reasonble people are likely to disagree as to whether a child would realize the danger of a slow moving train. The fact that Billy's friends were yelling at him to stop will not be good testimony for us. Still, Billy will only be held to the standard of a reasonable 12 year old and people are likely to disagree as to whether such 12 year old should have realized the danger of a very slow moving train and his statement to the police seems to support the claim that he did not appreciate the danger of the train. IBH's other defense will be that Billy was negligent himself in trying to jump onto a moving train. Billy tried twice, unsuccessfully, to jump onto the train before injuring himself on the third try. He seemed determined to put himself at risk. We run real danger here of having the jury assess great than 50% of fault to Billy which would foreclose his collection of any damages against IHB if Illinois follows the modified comparative negligence principle the way NY and NJ do. Depending on how Illinois handles "collateral sources", Billy's

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recovery for medical expensesmay be limited to those expenses not covered by his father's health and welfare fund pay out. If Illinois follows a NJ or NY like approach his damages claim is likely to be reduced by the amount covered by the collateral sources to approximately $20,000. As alluded to above, Billy probably has a large claim for future economic losses--he will not be able to perform many physical tasks which will limit the jobs available to him. He also sustained siginficant non-pecuniary harms like pain and suffering and loss of enjoyment of life. While we will probably get past summary judgment due to the factual dispute involving duty and the child trespasser exception, we should be willing to take a deep settlement discount to account for Billy's negligence.

4. McGarrigle v. Mercury McGarrigle, an 18 year old man sustained serious head and neck injuries in a boating accident when he pitched overboard a few hundred feet from the boat dock. When he fell from the boat, the outboard motor did not stop running, the boat circled around and the propeller from the engine struck him in the face and neck. He died shortly thereafter. I think we should take the McGarrigle case on contingent fee. He has a strong products liability claim against the manufacturer of the outboard motor, Mercury. A product liability claim can be brought against a manufacturer of a product who is engaged in the business of selling such

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product if the product was sold in a defective condition which rendered it not reasonably safe. Rest. 2d 402A; Cronin v. JBE Olson. Rest. 2d 402A recognizes three types of product liability claims: manufacturing defect, warning or instruction defect and design defect. McGarrigle's claim will be a design defect claim. First, Mercury is cleary a manufacturer who is engaged in selling the prodcuct at issue here, the outboard motor. Following the Prods. Liability Restatement for design defects we will allege that Mercury is liable because they omitted an alternative safer design, the omission of which created the "excessive preventable danger" of the deadly injury sustained by McGarrigle. We will allege that the omission here was a design which would have prevented operation of the outboard motor without a lanyard kill switch. The plaintiff has the burden of proving a reasonable alternative design. In assessing the proposed alternative courts engage in a risk-utility analysis. Whether the court here adopts the California Barker factors or the NY, NJ Wade factors, we are likely to prevail. The gravity and likelihood of the danger proposed by the current design of the motor is massive. The Coast Guard alone has recorded 50 to 100 death per year from "death spiral propeller strikes" like the one at issue in this case. The mechanical feasibility of the alternative design we will propose (that one should not be able to start or operate the motor without the kill switch in place) is proven by other products manufacture by Mercury and its peers. In fact, Mercury's peers aleady use the lanyard A design on all of their outboard motors. Additionally there is no indication that the alternative design would add significantly to the cost of the product or negatively impact the product or consumer--it is already used on

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smaller outboard motors manufactured by Mercury without issue. We will need to be prepared for a couple of defenses from Mercury. First, Mercury is likely to assert that McGarrigle's father was negligent in failing to read the manual which advised him to use a lanyard kill switch. This is a weak defense. Courts have long recognized that a manufacturer cannot warn its way out of a defective design. We will also point to the fact that the manual would have required McGarrigle to purchase a lanyard kill switch--it did not come with the motor. Mercury is also likely to point to the "excessive speed" McGarrigle was driving the boat at and the fact that he was very possibly intoxicated. This defense is also week. It would well known to Mercury and contemplated as a foreseeable manner in which their motor would be operated, that a boater may operate his boat at a high rate of speed while intoxicated. Anyone who has ever been on a crowded lake or inlet on the fourth of July knows this. In sum, I think this is a slam dunk case and we should take it. The damages will be large as McGarrigle was young and had his whole life ahead of him and the reasonable alternative safer design is proven by Mercury's own products.

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Institution Fordham University School of Law Course 13932 TORTS8 Conk Instructor NA Exam Mode Closed

Exam ID E27435941

Count(s) Section 1 Total

Word(s) 3862 3862

Char(s) 19213 19213

Char(s) (WS) 23061 23061

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Question 1. Governmental Defendants At common law, governmental actors have sovereign immunity from civil suits. If New York has a statute allowing citizens to sue the government, it will most likely resemble the Federal Tort Claims Act, giving the government qualified immunity. Under this kind of statute, the sole defendant would be the State of New York, the City of New York, or the United States (for interstate actors such as the Port Authority). Under qualified immunity, government actors' conduct is exempted from suit if it falls within the "discretionary function exemption." First, to determine if the conduct was a "discretionary function" we can use the two prong test outlined in Robinson v. USA: (1) Is there an element of judgment or choice? / Is there a prescribed/statutory course of action?; if yes, then (2) was the decision susceptible to policy analysis? Thus, our clients would only be able to recover for negligent "ministerial" conduct, where there is a prescribed course of action that was not followed or completed adequately. Second, New York may have a statute similar to the federal Flood Control Act, which makes the government immune from liability for any undertaking to control floods and any resulting damage. Under the Flood Control Act, damage that was caused by "flood waters" as a result of negligently maintained or designed flood control devices would be exempt from lawsuits. Our clients have identified several points of negligence on the part of governmental actors: (1) the state, Triboro Bridge Authority (TBA), or the Port Authority (PA)'s failure to construct flood gates at the entrance to the East River or the Narrow/Verrazzano Bridge; (2) the state, TBA, PA's failure to seal tunnels prior to the storm; and (3) the MTA's failure to protect subway tunnels from street-level entrance and storm grate flooding. If New York has a Flood Control Act, our clients will

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most likely not have a claim for their damage against governmental actors, since it is clear that flood control devices (or the lack thereof) were the cause of the injuries. If there is no such statute, we can argue that the NYSERDA's report constitutes a finding of substantial risk of not properly taking these precautions to prevent damage from occurring. In this way, the report constitutes a "prescribed course of action" under a qualified immunity statute, and the government's failure to follow this course of action would be a negligent ministerial conduct. More likely, however, the government will argue that the NYSERDA's report did not prescribe a course of action, but was a mere recommendation by experts. The decisions not to construct flood gates, not to seal tunnels prior to the storm, and not to protect storm grates and street-level entrances would all fall under the discretionary function exemption. The government will probably argue successfully that these decisions were susceptible to the policy analysis concerning the allocation of limited state and city resources. Similarly, any argument that our clients lost profits due to the shutdown of the public transit system will be unsuccessful. Similar to the BP Gulf Coast framework where private actors could not recover for lost profits because of the Coast Guard's shutdown of nearby waterways, our clients will probably not be able to recover for harm caused by the shutdown of public transit. Thus, our clients claims against governmental actors will probably not survive motions for summary judgment. Private Defendants A). Con-Ed, Inc. Con-Ed's failure to construct flood walls to protect their power substations and the failure to construct flood walls around major building electrical systems caused serious physical and economic harm to our clients. As our clients are likely in direct

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contract with Con-Ed to provide them with electricity, Con-Ed has a duty to take reasonable care to prevent harm stemming from the foreseeable risk of flooding. We will argue that this risk was certainly foreseeable, especially given the NYSERDA's report specifically outlining how a 100-year storm would affect the city's power grid. We will use Cardozo's framework from Palsgraf v. LIRR for duty here, where an actor has a duty to take reasonable care to prevent harm from risks "reasonably to be perceived," within "the range of reasonable apprehension." Here, we will argue that Con-Ed should have reasonably apprehended the risks of not installing sufficient flood walls around power substations or 10 South End Ave., and that the customers in 10 South End Ave. would be likely victims of these risks. Thus, their failure to take these precautions will constitute a breach of their duty. Con-Ed will likely argue that to allow customers to sue a utility provider would create "crushing liability," which would go against public policy and unfairly burden the utility company. If our individual clients were not in direct contract with Con-Ed and it was the building instead that was party to the contract, the court may be reluctant to extend liability to noncustomers as in Moch v. Rensselaer or Strauss v. Belle Realty Co. Even where plaintiffs can prove privity of contract with the utility provider, courts are reluctant to assign liability for injuries from such a great disaster to a utility company, regardless of their negligence. We will respond to the "crushing liability" argument by showing that plaintiffs able to recover (including our clients) are members of a limited group (commercial and private residents below Canal st.), thus limiting Con-Ed's liability to a group of foreseeable victims. B). Lefrak (Building owner) & Cooper Square Realty (Property manager)

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We can identify the following negligent acts as substantial factors in bringing about our clients' injuries: (1) failure to construct waterproof basement electrical rooms; (2) failure to have back-up generators; and (3) failure to place sandbags around the underground garage and stairways. At common law, Lefrak may be able to be excused from the lawsuit if they were not in control of the premises at the time of the accidents, as they are not vicariously liable for the actions of an independent contractor (Cooper Square Realty). Even if Lefrak assumed no control over the premises, New York law is reluctant to excuse property owners from liability, as evidenced by the New York Labor Law 240,241 where landowners are strictly liable for failure to provide adequate safety devices for workers on elevated work sites. Our clients will be able to recover both for property damage they sustained and for economic losses caused by the defendants' negligence. We will argue that because the businesses sustained physical damage, they will be able to recover for pecuniary losses, as in 532 Madison Gourmet Foods v. Finlandia Center. For our clients whose property did not sustain physical damage, we will argue that their pure pecuniary harm was a "particularly foreseeable" consequence of the property manager's and owner's failure to adequately prepare for a storm like this, taking the New Jersey approach in People Express Airlines.

Question 2. 1). Mall Owners & Operators Duty to Customers - McKown alleges that Simon Property and IPC International both owe a duty to mall customers to protect them from third party criminal acts. This duty can be analyzed in two ways. First, we can take the 3d Restatement approach to recognizing the general duty of land

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possessors to take reasonable care to entrants to prevent harm to them. Generally, an actor does not have a duty to protect others from the harmful conduct of a third party. Such a duty may arise, however, from the relationship between the plaintiff and the defendant, as in A.W. v. Lancaster County School District 0001 where the school owed a duty to protect its children. Here, McKown will argue that as an invitee (at common law), he was owed a duty by Simon and by IPC to take reasonable precautions to prevent harm to him from the foreseeable risk of violent third party conduct. As in A.W. v. Lancaster, the question of the foreseeability of the particular injury is one for the jury rather than for the judge. A judge using this approach will likely acknowledge the general duty that Simon and IPC owed to McKown as an entrant to the mall. To prove that this duty was breached, McKown will point to the five past incidents of gun violence on the property to show that the risk of gun violence perpetrated by third parties was certainly a foreseeable risk. Then, McKown will point to IPC's failure to install metal detectors and video cameras as falling below the standard of reasonable care in preventing these particularly foreseeable risks. If the court takes this approach, it is unlikely that we will be able to argue that our clients did not owe a duty of reasonable care to McKown. Instead, we will argue that this duty was not breached, since the particular injury was not a foreseeable risk that could have been prevented. We will argue that 4 out of 5 of the past incidents of gun violence occurred in the parking lot, and only 1 out of 5 of the incidents resulted in a physical injury. Thus, we will argue that our clients' failure to provide metal detectors and video surveillance was justified because relatively minor gun violence was foreseeable only in the parking lot. Second, the court may take an approach closer to that in Posecai v. Wal-Mart, where the court balanced several factors in determining whether a land possessor has a duty to protect entrants (customers) from criminal acts of third parties. There,

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the court recognized a business's duty to implement reasonable measures to protect their patrons from criminal acts only when those acts were foreseeable. McKown will argue that 5 similar instances of gun violence in the past 9 years are evidence of the foreseeability of this kind of 3rd party violence and should give rise to Simon and IPC's duty to use reasonable care to protect customers. Here, we can separate the 5 instances and show that 4 of them were committed in the mall's parking lot. Thus, while gun violence may have been foreseeable in the parking lot, a shooting spree inside the mall was not a foreseeable risk based on prior similar incidents. We can also argue that the burden imposing a duty of reasonable care would be too costly for Simon and IPC. Metal detectors at the doors of the mall would make the mall much less attractive for customers and may significantly reduce customer traffic by intimidating potential customers from entering. Under both of these approaches, we can also argue that our clients' failure to provide metal detectors and video surveillance was not a proximate cause of the shooting. We can argue that these omissions of safety precautions would not have prevented a shooting of this kind. Maldonado's shooting was most likely premeditated and he likely took into account the security measures the mall had put into place. Thus, even if IPC had installed video cameras and metal detectors, Maldonado would have found a way to circumvent these measures and carry out his violent act anyway. 2). Town of Northfield's Liability for Inadequate Police Presence - Here we will likely be able to dismiss McKown's claims on summary judgment. At common law, the sovereign (in this case the town) is immune from private civil suits. Even if the town has a statute outlining qualified immunity, failure to provide police protection is usually immune from liability. This may be approached in two ways. First, the police do not owe a duty to protect directly to a private citizen (McKown). Rather they owe a

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general duty to the public. Absent the kind of special relationship defined by Cuffy v. City of New York (which is absent here because there was no direct contact between McKown and the municipalitie's agents), McKown will not be able to show that the police owed him a duty of care beyond that owed to the general public. Second, even if McKown could show a duty owed directly to him, the town's allocation of limited police resources would certainly fall under a discretionary function exemption. As in Riss v. City of New York, courts are reluctant to determine how a municipality's limited resources be allocated. The decision not to build a substation at the mall and the lack of a police presence there is definitely susceptible to policy considerations of the allocation of limited resources, and thus would be immune under a discretionary function exemption.

Question 3. IHB RR's duty to prevent children from accessing trains or crossing tracks Choate will be able to bring a negligence claim against IHB RR on the basis of the railroad's duty to protect from foreseeable harms resulting from their conduct. Under the 3d Restatement, an actor has a duty to exercise reasonable care when that actor's conduct poses a foreseeable risk of physical harm. Here, the operation of a railroad line has a well established a foreseeable risk of injury to those that come into contact with a moving train. Thus, it is generally within the standard of reasonable care for a railroad operator to properly fence in tracks in areas of high traffic to prevent children from crossing or getting near the tracks. Here we will point to the fact that

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on the north side of the parking lot it was common practice for pedestrians to step through a torn and rolled back portion of fencing to access a convenience store across the tracks. This fact is evidence as to the negligent maintenance of the fencing around the tracks. This fact is also sufficient to show that IHB RR had constructive notice of this risk and failed to correct it before the injury occurred. As in Negri v. Stop & Shop, evidence that the hole in the fence had existed for a substantial period of time was sufficient to establish the defendant's constructive notice of the risk posed by the hole in the fence. Because the hole in the fencing was typically used by the public to cross the tracks (rather than walk a distance to the official crossings), the risk that children would also use this makeshift crossing and be able to access the train tracks is certainly foreseeable. It will be relatively straightforward for Choate to show that the failure to prevent this extremely foreseeable harm from occuring was a breach of the railroad's duty to the children as foreseeable victims of harm. IHB RR will likely use Choate's assumption of the risk as a defense to this negligence claim. They will argue that the danger of moving trains is common knowledge, and that Choate's decision to try to jump aboard constituted an assumption of the associated risks enough that IHB RR should not be held liable for his injuries. The defense may use the logic of GM v. Sanchez in pointing to Choate's duty to take reasonable precautions to prevent harm from an open and obvious danger. By attempting to jump onto a moving train, Choate breached this duty and thus cannot recover from IHB RR. Here, we will use Choate's statement to the policeman as evidence that Choate was not aware of the dangers associated with this stunt, and thus had not assumed the risk. We can alternatively argue in line with the dissent in GM v. Sanchez, where the un-fenced train tracks posed an unreasonably dangerous risk to children despite the open and obvious risk present.

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IHB RR's duty to adequately warn pedestrians of the danger of trains Here IHB RR's argument of assumption of risk has more traction. Generally, an actor is not under a duty to warn of apparent and obvious dangers associated with his conduct. The danger of a moving train is well established, and even a 12 year old should know of the dangers associated with coming into contact with a fast-moving train. IHB RR may also argue that their failure to adequately warn did not cause Choate's injury -- that even had they provided adequate warnings of the train's danger, Choate would have attempted to jump on the train anyway. Here the defense will bring into evidence the fact that Choate was trying to impress his female friends with the stunt and so would have attempted it regardless of any warning signs posted on the fence. We are not likely to prevail on this theory. Remedies If we prevail on the negligence claims, we will be able to seek compensation for the remaining balance of Choate's medical bill ($20,000) as past pecuniary losses. We will also be able to recover for future pecuniary losses, taking into account that Choate's future earning potential will be substantially reduced by his amputation. Choate will also be able to recover for harm & suffering (non-pecuniary losses), including the loss of the ability to enjoy sports and physical activities requiring two healthy legs. If the jurisdiction has a collateral source rule, Choate may also be able to recover for the $80,000 in medical bills paid for by his father's union health and welfare fund. More likely, though, a statute will provide that either the health and welfare fund can put a lien on this recovery to get paid back, or Choate will not be able to recover at all for costs paid for by the health and welfare fund.

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Question 4. Under the 3d Restatement, a plaintiff can proceed on 3 types of product defect claims: a manufacturing defect, a design defect, or inadequate warnings or instructions. Here, we can bring assert both a design defect claim and an inadequate warning claim. A manufacturing defect is not present, since there is no evidence that the engine failed to meet the manufacturer's specifications. Design Defect Under the 3d Restatement, a product's design is defective when the foreseeable risks of harm posed by the product could have been reduced or avoided by adoption of a "reasonable alternative design" (RAD) by the manufacturer, and that the omission of this RAD rendered the product unreasonably unsafe. The "consumer expectations" approach under the 2d Restatement 402A does not fit the facts of the case, since the alleged defect (lack of an effective kill switch) in the product in question (an outboard motor) is too complex for a consumer to have a clear expectation either way. As the court in Barker v. Lull Engineering holds, as a product gets more and more complex, juries should apply a risk-utility test rather than a consumer expectations test. Depending on the jurisdiction, we will proceed on either a RAD claim or on a risk-utility analysis claim. Under both of these theories, we will show that Mercury Marine's failure to adopt the wireless technology of the MariTech Virtual Lifeline kill switch rendered the outboard motor sold to McGarrigle unreasonably unsafe. Under a risk-utility analysis the court will likely instruct the jury to consider factors similar to the California Jury Instructions to determine whether the product poses unreasonable danger: (1) the gravity of danger posed by the

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motor that can operate without the lanyard kill switch in place; (2) the likelihood of injury to a boat operator as a result; (3) the mechanical feasability of adopting the wireless kill switch; (4) the financial cost of a motor with a wireless kill switch; and (5) any adverse consequences of adopting the wireless kill switch. A RAD claim will look at similar factors, but the jury question will be focused specifically on whether the omission of the wireless kill switch rendered the outboard motor unreasonably unsafe. The existence of a lanyard kill switch in the boat is not enough to relieve Mercury Marine of liability, because as the Coast Guard recognizes, it is foreseeable that many boat users will choose to operate the motor without the lanyard kill switch. As in Osorio v. One World Technologies, where it is foreseeable that the ultimate user will operate the product after removing a safety device the manufacturer can still be found liable for injuries resulting from a defective design. It is the fact that the product can be operated without the lanyard kill switch renders the product unreasonably unsafe. Because of the relative mechanical ease with which a wireless kill switch could be installed on outboard motors, the defense will only likely be able to point to increased costs as a reason for not adopting the wireless kill switch. There, the question will go to a jury, but I would advise our firm to take the case on a contingent fee basis because the harm of not having the wireless kill switch is both grave and likely, and a relatively small increase in cost would probably not sway the jury that it was not feasible for Mercury Marine to adopt the wireless kill switch instead.

Failure to Warn Adequately Under the Products Restatement 2( c), a product is defective because of inadequate warnings when the foreseeable risks of harm

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posed by the product could have been reduced or avoided by the provision of reasonable warnings, and the omission of these warnings rendered the product unreasonably unsafe. First we will argue that there should have been a warning on the motor itself as to the dangers of operating the motor without the lanyard kill switch. The existence of an owners' manual will not be enough to relieve Mercury Marine from liability because it is foreseeable that an experienced boat operator will not read the manual. Further, it is foreseeable that the manual will not be stored on the boat (because it would get wet and deteriorate), so an incidental user of the boat would not be reached by warnings contained in the manual. As in the design defect claim, we will argue that it was established and foreseeable that many users would choose to operate the engine without the lanyard kill switch, so it was unreasonable that Mercury Marine failed to warn of the risks associated with this common practice. As in Hood v. Ryobi, a manufacturer need not warn of all the consequences of every possible action by a user of the product. Here, though, the foreseeability of use without the lanyard kill switch and the severity and high likelihood of an injury resulting from such use will most likely convince a jury that the failure to warn of such a danger rendered the motor unreasonably unsafe. We do not face a potential problem as there was in Hood that too many warnings could "pollute" the instructions and make them less effective. There were no warnings on the engine of the dangers of operating the motor without the lanyard kill switch and no warnings to read the manual before operation. We can use the heeding principle to establish that the inadequate warnings provided on the motor were a proximate cause of McGarrigle's death: had McGarrigle been adequately warned of the dangers of operating the motor without the lanyard kill switch, he would not have operated it without the lanyard kill switch, and thus would not have been injured. It is unlikely that the defense would be able to rebut this presumption by showing

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that McGarrigle habitually ignored warniings. I would also advise our firm to assert an inadequate warnings claim on contingent fee, since there is a clearly foreseeable risk and a relatively low-cost warning could have reduced this risk.

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Institution Fordham University School of Law Course 13932 TORTS8 Conk Instructor NA Exam Mode Closed

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Count(s) Section 1 Total

Word(s) 3000 3000

Char(s) 14718 14718

Char(s) (WS) 17671 17671

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Question 1 The business and residential tenants of 10 South End Avenue have suffered unfortunate losses, including loss of their homes, their cars, and valuable business days. The question presented here is whether our prospective clients will be able to file suit against the putative defendants listed below. The tenants will probably be successful if we bring suit against Cooper Square Realty and Lefrak. We can sue the owners of 10 South End Avenue on the grounds that they were negligent in their construction of the buildings. Negligence is failure to take ordinary care and not doing, in this case, what a reasonable landowner should have done. The four elements to prove negligence is (1) duty to the tenants, (2) breach of that duty, (3) causation of the harm suffered, and (4) actual injury to the interests of our prospective clients. We will be able to prove these elements. 1. Duty to tenants The owners of 10 South End Avenue had a duty to their tenants to provide a reasonably safe environment in which to live. They will probably not contest that. 2. Breach of that duty The owners of 10 South End Avenue did not meet the ordinary standard of care that a reasonable landowner should have practiced. Even in the face of the evidence from NYSERDA, which has authoritatively predicted that 100-year storms will occur more often, they took no steps to waterproof their basements' electrical rooms, where the back-up generators are stored. A reasonable landowner is not expected to guard against every single harm known to man. However, if the harm is reasonably foreseeable, then it is the responsibility of the landowner to provide reasonable protection against such harm. They did not

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even put sandbags around the building. The owners may claim that more frequent 100-year storms are not predictable enough to constitute a reasonable foreseeability. "Who," they may ask, "could ever predict a superstorm like Sandy?" However, they will probably not be able to use this as a defense. As stated before, courts do not ask landowners to protect against every thinkable harm, merely ones that are foreseeable. Superstorm Sandy and its devastating consequences was a foreseeable event. Global warming is a real phenomenon, throwing weather patterns into disarray. In fact, it was probably a factual cause of Sandy. One does not need to be a climate change scientist to be worried about potential flooding in Lower Manhattan. In this case, a reasonable landowner would run a simple cost-benefit analysis, such as the one proposed by Learned Hand in Carroll Towing. It may initially cost the landowner to install these waterproof basements, but in the end, these installations would be protecting against the very real threat of flooding caused by storms. 3. Causation of the harm suffered Here, the owners of 10 South End Avenue have a solid defense. They could point to the negligence of governmental entities and say that the negligence of those entities are a superseding cause, overpowering the owners' slight carelessness. They could also say that the floodwaters themselves were a superseding cause; "how could anyone protect against a flood of that magnitude?" they may ask. However, the owners will probably not be successful in their defense. To prove causation, we must prove that the landowners' negligence was a but-for cause as well as a proximate cause. They easily meet the but-for counterfactual hypothetical: had it not been for the negligence of these landowners in installing waterproof basements, the tenants would not have suffered harm.

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They also meet the proximate cause bar. When assessing whether someone's negligence is a proximate cause of an injury, we see whether it was a substantial factor such that a reasonable person would regard it as a cause of injury. In other words, liability extends only to those who suffer harm of the general type of foreseeability of which made the actor's conduct tortious. We can extend liability to the owners; it was generally foreseeable that their building would be subject to flooding, superstorm or not. A jury will therefore probably find that the negligence of the owners was so closely connected to the damages incurred as to be the proximate cause of the tenants' suffering. 4. Actual injury to the interests of prospective clients The business and residential tenants suffered economic and property losses, so this will be easy to show. Our prospective clients, however, will probably not be successful if we bring suit against any of the governmental entities. As in the Katrina Canal cases, the State of New York could point to those decisions and claim that their decision was a discretionary function, an allocation of resources to whichever uses it saw fit. They do not meet the Cuffy factors, which analyze the special relationship that may give rise to duty, nor could we prove New York's negligence in not building flood-gates or sealing tunnels. The courts would probably interpret these inactions as discretionary measures taken by the state, so we would be wise in advising our clients not to bring suit against any of the governmental entities. The tenants will also probably not be successful if we bring suit against Con-Ed, Inc. New York courts are hesitant to rule in favor of cases where a public utility company could be endlessly liable for all the damages incurred that is somehow related to

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their actions or inactions, as in Moch v. Renssalaer. Question 2 It is unfortunate that Brendan McKown has been shot and injured on the premises of the Northfield Mall. However, a court will probably find in favor of Simon Property, if not for the Town of Northfield. The question presented here whether Northfield Mall was negligent in its duty to proect its invitees, and the obvious answer is no. It is true that Northfield Mall has a duty to all lawful visitors, whether they be licensees or invitees. Modern rules have abolished that distinction. The mall has a duty of due care to keep the property in a reasonably safe condition so that invitees will not be unnecessarily be exposed to danger (R 2d. 332). However, McKown will unlikely be able to prove that the mall fell below that standard of care because it simply was not foreseeable that a gunman would come in and shoot at shoppers. We can urge the jury to consider Posecai v. Walmart, Inc. in their decision, in which the plaintiff was robbed in defendant's parking lot. However, the court ruled in favor of the defendant; the threat was not foreseeable or imminent enough to say that Walmart had acted negligently by not hiring more security guards. The same facts apply here: though there have been five incidents over the past nine years, Northfield police have responded to those events. That police presence is enough for the mall. Having a sub-station at the mall may actually help deter criminals, but that is for the town of Northfield to decide, not for the mall to ask for. Also, these events do not necessitate having to install metal detectors at the doors and video cameras throughout to be

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monitored live. Having all these security measures might prompt an ordinary shopper to think, "Well, I don't want to go through metal detectors at Northfield, and be monitored; even if Northfield is 1.4 million square feet, I could drive 10 more minutes and go to another mall that doesn't have these hassles." A mall is not like an airport; there are options as to which mall to go to. As such, they want to make themselves as attractive as possible. All this is to say that there were good reasons for not installing these security measures. They did not exclude metal detectors and cameras out of reckless wanton for the shoppers' safety; Northfield probably has not instituted these measures for the simple reason that it would annoy shoppers and probably drive business away. Therefore, Northfield was not negligent in not installing them. Northfield Mall is a place where people go to shop, not to be patted down like criminal suspects and monitored like inmates. With the kind of freedom Northfield affords comes risk, and shoppers take that risk every time they step onto the mall's premises. To blame Northfield Mall for not taking extraneous security measures is unreasonable, and a jury will probably agree with us. Question 3 Twelve-year-old Billy Choate has suffered horrific losses as a result of his accident on the IHB railroad tracks. The issue at hand is whether IHB RR was negligent in their efforts to keep children out of their premises. We will probably be successful under the claim of negligence. In this case, negligence is not doing something that a reasonable common carrier would have done in similar circumstances. (Bethel v. NYCTA). It is the failure to meet the ordinary standard of care. The elements of the negligence tort are analyzed below.

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1. Duty IHB RR has a duty to these children. According to the Third Restatement, an actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm. Trains create great risks of physical harm wherever they run, so we will not have many problems defining IHB's duty to Billy Choate. IHB RR may attempt to say that they owed no duty to these children and move for summary judgment based on that defense. They may say that they could not have foreseen children playing by the railroad tracks at a particular point. However, the court will probably reject this notion. They will probably not make a duty determination based on specific foreseeability of harm to one person, but rather base their decision on a categorical foreseeability; the court will determine whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may be imposed on the negligent party. Here, the negligent conduct at issue, which we will discuss below, was sufficiently likely to result in the harms inflicted upon Billy Choate. 2. Breach of duty IHB RR breached its duty of care to Billy Choate, as well as to all his friends. It is fortunate that they did not get hurt, too. There was no railroad crossing sign at that location. A court would not expect a railroad company to plaster every inch of their tracks with railroad crossing signs, but it would expect railroad crossing signs spaced within a reasonable distance. When the closest signs are three-quarters of a mile and one-quarter of a mile away, how are people supposed to know or be warned that they are on railroad tracks for this mile-long stretch? A railroad crossing sign may also have helped Billy fully realize the dangers of his situation, considering he did not see the "No

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Trespassing" sign on the west end of the fence. The "No Trespassing" sign did not provide sufficient warning to the children. In the absence of railroad crossing signs, it is reasonable to expect that there would be more of these signs to warn people of the presence of tracks. However, for this stretch of tracks, there was only one posted, and Billy could not see it. Also, only segments of this mile-long corridor were fenced. The ease at which the children were able to go onto the tracks is disturbing. With the knowledge that children probably play on the tracks, such as in the case of Adams v. Bullock, a reasonable carrier should have made efforts to tighten up their measures to keep these children out. 3. Causation IHB's negligence was a but-for and proximate cause of Billy's loss. Had Billy and his friends been adequately warned, it is more likely than not they would have steered away from the railroad tracks. These children do not seem like they were on the tracks to break any sort of rule. A sufficient warning would have probably kept them off the tracks. As for proximate cause, it is foreseeable that children would play on the tracks if a railroad company puts them next to a parking lot, and decidees not to secure that stretch with adequate chain link fences or put sufficient warnings up. IHB's negligence to do so was therefore a proximate cause of the harm. They may claim that these children assumed the risk, being of an age where they knew the risks of being on railroad tracks. IHB could also say that these children were trespassers and therefore, they owed no other duty other than to abstain from wanton or intentional harm, which they did not engage in. However, we can point to the attractive nuisance doctrine: it was foreseeable that children would play on the tracks. It was

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foreseeable that they could get into this poorly-guarded area, where a "No Trespassing" sign was nowhere near to being sufficient enough to keep children out. Finally, it was foreseeable that these children would get injured as a result of IHB's negligence. Therefore, their defense will probably not be successful in the eyes of a jury. 4. Injury Billy's foot was severed by the passing train. As for remedies, the jury will not be told that Billy's father's union health and welfare fund, which reimbursed 80% of the cost, according to the collateral source rule. We may also seek a lump sum that covers future and current losses, such as sums for noneconomic damages (pain and suffering, disability, impairment) and special damages (medical bills, future employment opportunity diminishment, etc.). Question 4 The MacGarrigles have suffered the loss of their son, who was involved in a boating accident. The question presented here is whether they will be able to bring suit on the basis of product liability against Mercury Marine, the manufacturer of the engine. We will probably, however, not be successful in an action against Mercury Marine. Section 402A of the Second Restatement provides a basis for the liability of manufacturers. It says that one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to her property is subject to liability for physical harm thereby caused to the ultimate user or consumer or to her property. We need to prove that (1) the product was defective, (2) the defect was unreasonably dangerous, and (3) the dangers of this defect was a proximate cause of the harm.

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1. Product was defective We could probably say the design was defective. All other manufacturers of outboard engines use lanyard A, which prevents the operator from starting the engine without first inserting the engine end of the lanyard into the emergency stop switch on the engine. It does not make sense that Mercury Marine installs this feature on its lower horsepowered engines, but does not do it for the higher horse-powered ones. On its 8-25 horsepower outboard engines, Mercury Marine uses a type B design, which allows the operator to start the engine without having the lanyard stop switch connected to the engine. This is clearly defective; higher horse-powered engines are capable of going faster and therefore doing more damage. If Mercury Marine installed type A lanyards for its lower horsepower engines, it does not make sense that they would not install the safer alternative to the higher horsepowered models. There was a reasonable alternative design, and the omission of this design rendered the product unreasonably dangerous. We could also look to custom and see that most manufacturers of engines use lanyard A. This is the industry standard, and in not following the industry standard and making it easier for its users to turn on the engine, Mercury Marine rendered their product unsafe. Therefore, this renders the engine defective. 2. Defect unreasonably dangerous We can look at the Wade factors to see if this design was unreasonably dangerous. Having a type A lanyard impairs the user's ability to avoid danger; having the type B lanyard increases the likelihood that it will cause serious injury. There is a substitute product which would meet the same need and not be as unsafe: the type A lanyard. Our discovery has not produced any

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evidence that a type A lanyard would be more expensive, so Mercury Marine does not have a claim that it would be too costly to install this safer feature. There are more factors, but these are sufficient to prove that the defect of the engine's design was unreasonably dangerous. 3. Defect was a proximate cause of the harm We will probably fail on this element, but it is useful to analyze the material defect of the engine and its relation to the cause of John's death. The defect was a proximate and but-for cause of the harm. The but-for test is easy to fulfill: had the engine been equipped with a type A lanyard, John would not have suffered his injuries and would have probably swam safely to shore. The defect was also a proximate cause of John's death. It was a substantial cause and one that is likely to have been foreseeable by the manufacturers when they decided to equip the 9.9 horsepower motor with a type B lanyard. However, the MacGarrigle's negligence was an intervening cause of John's death, so much so that they will not be able to win this case. Neither the father nor the son read the owner's manual, and therefore did not buy a lanyard. Mr. MacGarrigle admits that had a lanyard been used, the accident would not have happened. The court will probably look at this and dismiss the claim against Mercury Motors. Even if the product was defective, the negligence of the owners subsumed the negligence of the manufacturers. The court in Texas ruled in favor of the defendant when the son did not read the owner's manual and crashed the car, even though the gearshift was poorly labeled (GM v. Sanchez). Similarly, no matter how badly the engine was produced in this case, the court will probably find that the negligence of the MacGarrigles did not give the engine a fair chance to work