Best Exam Answers # 2 Fall 2013 Section 9 Torts E86989925 - 131212 - 13932

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Course / Session 13932-TORTS-9 Conk NA Section All Page 1 of 12
Institution Fordham University School of Law Exam Mode Closed Extegrity Exam4 > 13.11.8.0
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Institution Fordham University School of Law Course 13932-TORTS-9 Conk Instructor NA Exam Mode Closed
Exam ID E86989925
Count(s) Section 1 Total
Word(s) 3253 3253
Char(s) 15659 15659
Char(s) (WS) 18906 18906
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Answer-to-Question-_1_ Joseph Smith is a mechanic that was injured on the job when a bale of paper weighing nearly one ton fell from a stack and caused very serious injuries. We should file a personal injury action. There are three parties who have a role in this case. Josephs Smiths employer (Coughlin and Sons), Metro Waste (who contracted Coughlin) and County of Clare. Smith is barred from suing his employer under the Workers compensation act. Under different circumstances, we could file suit against Metro Waste, since they were in control of the property and would likely to be found liable for negligence. However, Metro Waste filed for bankrupcy, and we will not be able to recover any damages from them. Instead, we should focus our attention on Clare County. We have been informed that there are several claims against the county and their insurance coverage may be insufficient to fully compensate Smith. However, we may still be able to recover in a jurisdiction like New York where Workers compenstion law section eleven bars a third party action for contribution or indemenification against an employeer when its employee is injured in a work related accident unless the employee has sustained a grave injury. The facts state that Smith suffered very serious injuries. Thus, even if Clare County cannot cover the damages by their insurance, they will be able to seek indemnity from the employer, Coughlin and Sons. To establish the elements of the case we need to establish duty, breach, causation and damages. We are assuming that the state allows an action against Clare County as if it were a private person. Typically, control of the land is the key determinant of who has a duty of care, not
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possession or ownership. The Third Restatment states that a posessor of land is a person who occupies the land and controls it... (ROT 3rd 49). Note however, that statutes may modify the duty of care. For example, in New York, a landowner is responsible for dangerous conditions on the land, even ifhe is not in control (with the exception of one and two family homes, not applicable here)(NY Labor Law 241). Thus, if we are in a jurisdiction like New York, we can claim that Clare County owes a duty of care as a landowner. If we are in a different jursdiction that doesnt have such a statute, we just show that Clare County retained control of the property. We should be able to prove this by referring to the contract which specificed that Count has the right of access to the Facility in order to determine complaince by the Contractor ...and the right...to take visitors and grouop tours...through the facility. This suggests that although Clare allowed Metro Waste to control day to day operations, they still retained a level of control over the premises. Thus, Clare County owes a duty of reasonable care to the plaintiff. We must now determine how we can prove a breach of that duty of care. The standard of care is proscribed by the OSHA federal regulation which provides that storage of material shall not create a hazard...bags...shall be stacked...so that they are stable and secure against sliding or collapse. In this case, we may not be able to identify exactly what precuation was not taken that caused the bale of paper to fall onto Smith. However, in this case we may be able to invoke res ipsa loquitur, like in Byrne v Boadle. To prove Res Ipsa under the Third Restatment we just show tha the accident that caused the plaintiffs harm is the type of accident that ordinarily happens as a result of negligence of the class of actors of which the defendant is a relevant member- which is the case here. McDougald v Perry stated that it must be caused by an instrumentality within the exclusive control of the defendant. Here the materials were in the exclusive control fo Metro Waste, and since County Controlled
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Metro waste, we could argue they were also in control of the bale of paper. The element of causation is established by the fact that but-for the bale falling on Smiths head he would not have been injured. His injuries were extensive- leading to damages. A defense that we may encounter is that we cannot prove who was actually negligent in this situation. However, under res ipsa we are not required to prove exactly who was negligent (Ybarra v Spangard). It is enough that the injury would not have occurred without someones negligence. This is a good case for us as long as we can make sure that Clare County will be able to seek contribution from Coughlin and Sons. Otherwise, we may not be able to recover the damages, in which case we should not take Smiths case.
Answer to Question 2 Our clients are the Sheltons. Wilma Shelton was tending to her husband in a rehabilitation hospital when she became entangled in monitoring equipment wires and fell, fracturing her leg. I would recommend our firm take on the Sheltons case. This is a personal injury action against Cardinal Hill Hospital, and we will have to prove negligence. I think there is good evidence that each element of negligence- duty, breach, causation and damages can be proved. The hospital is a landowner in this case and under the common law, duties of landowners are established by relying on rigid categories of entrants. In this case, Wilma Shelton would likely be considered an invitee since she is a member of the public,
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invited to enter or remain on property which is held open to the public (ROT 2nd 332). Invitees are owed the highest duty of care of the common law entrant categories, which includes the duty keep the property in reasonably safe condition. (ROT 2nd 342A, 343, 343A). I think we have a good case that the property was not kept in reasonably safe condition- there were wires strewn around and the only way Wilma could approach the bed was to walk where the cords were located. If this jurisdiction follows the Third Restatment, we also have a good case. The Third Restatment abandoned the rigid common law categories and created a flexible approach. The Third Restatment states that a a land possessor owes a duty of reasonable care to entrants on the land regardless of category. (ROT 3rd 51). The only exception is for flagrant trespassers, and Wilma is not a trespasser. The next element to examine is that of breach. First, we must identify the precuation not taken, since there is no liability for unavoidable accidents (Adams v Bullock). The precuation not taken here is not moving the cords to a different location. There are several ways to determine if there was breach of duty. One of these is the Learned Hand B<PL test where in order to constitute breach, the measurement of the precautionary burden must be less thant the associated risk that would be eliminated by the precaution. Here, the burden of precaution (B) would only be someone moving the cords to a different location. The defendants may argue that would be burdensome because of the layout of the hospital, but when you compare that to the risk, the probability of the harm (P) was quite great, since walking by the cords was the only way to access the bed, and the gravity of the loss (L) was also great-not only did Wilma require surgery but she is expected to lose several months from her job. Another test for determining breach-the substantial harm rule in Bolton v Stone is also satisfied here. There is a duty to avoid imposing
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substantial risk to ones neighbor. A jury could very likely conclude that there was a substantial risk posed by the cords obstructing access to the bed. It should also be mentioned that the defendants had constructive notice of the condition- they had been informed by Mary- so they will not be able to claim they were not aware of it like the defendants in the Natural History Museum slip and fall case. Factual causation is established using the but-for test. But for the cords being placed next to the bed, Wilma would not have tripped on the cords. The cords were also a substantial factor in causing the harm, establishing proximate cause (ROT 2nd 431). Or under the Third Restatment, the plaintiffs tortious conduct included the general sort of harm suffered by Wilma. (ROT 3rd 29). Damage is established by the fracture to Wilmas leg and her inability to work. Damages will be discussed more specifically below. We can hire an engineer or architect as an expert to come in and convince the jury that could have been arranged differently- and that it would have been easy. We can probably find someone who designs hospitals who would be able to opine on these issues. We could also hire an economist as an expert on damages to discuss the kind of compensation that would be appropriate for the case. One defense that the defendants will likely raise is that of comparative negligence. Defendants will argue that Wilma herself was negligent. She should have seen the wires and been more careful while walking over them. However, Wilma has testified that she tried to avoid and be careful of the cords. The jury is unlikely to find that Wilmas negligence was a major contribution. Although almost all states have abolished contributory negligence, if we happen to be in Alabama, this is a
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factor we should consider since any negligence on the plaintiffs part would completely bar her claim. Defendants will also argue assumption of risk. in Davenport v Cotton, the court held that there were four requirements to establish defense of assumption fo risk. First, Knowledge of the condition (which Wilma had according to the facts which state that she was aware fo the monitoring equipment wires). Second, knowledge of the danger, which was also the case here since she testified she tried to avoid the wires. Third, she would have to appreciate the nature and extent of the risk (which the defense would argue is established because of the Sheltons complaints about the cords). Lastly, voluntary exposure to the danger. In this case, it is clear that Wilma exposed herself to the danger by walking over the cords. Thus, the defendants may have some success with an implied assumption of risk defense. However, the reason the Davenport court ruled as they did is because of the adoption of comparative negligence- thus even if the jury assigns some of the fault to Wilma- we can still recover a large portion of the damages. If this case is allowed to proceed beyond summary judgement, defendants will be able to claim medical bills (although this amount will likely go to the health and welfare fund that has paid the hospital and surgical bills, except for 3000$ in deducitbles and copays- which Wilma could recover). They medical bills will be easy to prove since there is paperwork. They could also recover the lost income during the time that Wilma is not able to work. It may be helpful to get an economist to discuss the amount that Wilma should recover- although these calculations could also be done by us. The biggest recovery will be for noneconomic damages which include the pain and suffering that the injury caused Linda including the pain of the accident as well as the pain of recovering from surgery. We could have a doctor testify as to the amount of pain someone with Lindas condition
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(including the fact that she has to walk with a cane) would cause. The Sheltons may also be able to recover from the suffering caused by being worried sick about not being able to work. We could have a psychologist testify about Mrs. Sheltons anxiety.
Answer to Question 3 We represent Bard in a product liability action where it is not yet decided whether New Jersey or Massachusettes law will apply. Bard makes a surgical mesh that has caused foreign body tissue reactions in certain patients that are now sueing Bard. The patients likely have both design and failure to warn claims. We should now make a motion for summary judgement. The design defect and warning defect claims will be examined in turn to determine whether our motion is likely to be successful. Design defect Massachusettes allows to distinct theories of recovery. One is negligence and the other is implied warranty of merchantability (IW). For the negligence claim, the plaintiffs would have to show that Bard failed to exercise reasonable care in designing the product. The plaintiffs have disocovered a letter from a researcher at Bard that indicates Bard was aware of the fact that the mesh was associated with adverse events. However, Bards bio engineering chief rejected the report saying that no product is perfect. It is possible that a jury could decide that Bard had a duty to investigate the issues raised by the reasearcher and breached that duty. We have on our side the fact that the FDA had approved the mesh (creating a presumption that the drug is reasonably safe), and that the chiefs decision not to change the design may
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have merit. One problem that we have facing us is the fact that Bard used a polypropylene material that they had been warned should not be used in medical applications. Bard may have some good arguments as to why the bulk supplier does not have the appropriate knowledge to make this kind of claim, however, it may be difficult to convince a jury of this. The plaintiff may be able to prove design defect under IW. The court in Osorio stated that Massachusettes law is congruent in nearly all respects with the principles expressed [in the Second Restatment section 402A]. Section 402A places strict liability on a seller of a product that is unreasonably dangerous. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it. In this case, the consumer expectations test would likely not be deemed appropriate since the medical device is complex. However, like in California, a product in Massachusettes may also be found defective in design if it embodies excessive rpeventabel danger, or where the risk of danger inherent in the design outweighst the benefits of the design. The risk utility analys si done using the Barker factors. (Osorio) If the plaintiffs try to prove design defect using the Barker factors, the jury will examine (1) the gravity of the danger posed by the challenged design, which is fairly high (pain and persistent abdominal infections. (2) The likelihood that the danger would occcur- we will have to get statistics on that. (3) the mechanical feasibility of a safer alternative design. This one could be a problem for us, since the Plaintiffs have brought on an expert, Dr. Kloster, who has opined that making the pore size of the mesh smaller would help prevent this type of harm. In addition, our own scientists at Bard have identified this as a possible solution. On the other hand, we could argue that the alternative design is not necessarily safer, and that there are other factors to take into account and that this theory is not
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generally accepted in the scientific community. (4) the jury will take into account is the financial cost of an improved design, which may not be great given that we would only need to change the pore size. And (5) the adverse consequences to the product and to the consumer that would result from an alternative design. For design defect, Bard may be better off under Massachusettes law. In New Jersey, the suit would come under the New Jersey Product Liability Act. Under the Act, a design defect exists if the foreseeable risks fo harm posed by the product could have been reduced or avoided by the adoption of a reasonable safer design and the ommission of the alternative design renders the product not reasonably safe (Hinojo, NJ MJC 5.40D). So if we brought the suit in New Jersey, the jury would be asked this focused question, rather than only considering an alternative design as one of the factors in the risk-utility analysis. There is some concern here for our client, since the Plaintiffs expert will likely stand up and say all they need to do is change the pore size in the mesh- problem solved. It is likely the jury would conclude that this is a reasonably safer design and the alternative design was unreasonably omitted. If we bring the design suit in Massachusettes, we can stress other factors to the jury. Perhaps we could argue that the cost of making the change is quite substantial- especially if there are any patents that will need to be licenced to make the change. If we can dig up more facts for the jury to weigh under the Barker factors, we should be better off than leaving the jury to conclude that we should have just made a smaller mesh. Failure to warn We may actually have a better chance at getting summary judgement on the failure to warn claim. Under the Products liability Restatment section 2(c), a product is defective because of
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inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been redued or avoided by the provision of reasonable instructions or warnings. In this case, Linda Rizzo was a foreseeable user and she did not misuse the product. However, what we have working for us is Lindas deposition testimony. Linda testified that she had not been warned of the symptoms that that can result from the mesh surgery but she stated that if she had been told she would have consted, Im sure, anyway. Thus, we can argue here that the plaintiffs have not proved the element of causation. Even though Dr. Kaminski stated that it would be nice to have the information about the mesh size and propylene issues, he did not state conclusively that he would not have changed his decision about treatment. But most importantly, in order to prove causation the plaintiffs need to show that Linda would not have consented to the mesh- and she clearly stated in her deposition that she would have. In the New Jersey Vioxx trial, the plaintiffs had the benefit of the heeding presumption, which allows the preseumption that the plaintiff would have heeded the warning. Here, we have direct testimony otherwise, which would overcome the heeding presumption. If we bring this suit in Massachusettes we will also be able to argue that there is no causal link between failure to warn and the injury. In Massachusettes a Defendant is not held liable under an implied warranty of merchantability for failure to warn or provide instructions about risks that were not reasonably foreseeable at the time of sale or could not have been discovered by way of reasonable testing prior to marketing the product. (Vasallo v Baxter). Conclusion On our motion for summary judgement, the court is likely to rule
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in our favor on the warning claim. However, we should not expect to get around the design defect claim- although we would likely have an easier time if we brought the suit in Massachusettes. If these claims were brought in New York, we could claim both strict liability and IW since new York considers these claims to be slightly different, with IW having a more contractual basis.

Best Exam Answers # 2 Fall 2013 Section 9 Torts E86989925 - 131212 - 13932

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Best Exam Answers # 2 Fall 2013 Section 9 Torts E86989925 - 131212 - 13932

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E86989925

Count(s) Section 1 Total

Word(s) 3253 3253

Char(s) 15659 15659

Char(s) (WS) 18906 18906

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