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FORDHAM UNIVERSITY SCHOOL OF LAW FINAL EXAMINATION IN TORTS (Sections 1 & 2)

DATE: DECEMBER 19, 2011


THIS EXAMINATION IS 9 PAGES THIS IS A 3 HOUR EXAMINATION

TIME: 1:30 PM - 4:30 PM

PROFESSOR GEORGE W. CONK

_____________________________________________________________________________ INSTRUCTIONS You have three hours to complete this exam. You must answer all four questions. I will grade each question but the final grade is an overall assessment of your exam paper, as compared to others in the class. I suggest that you first read through the complete exam. (Take a deep breath to shake off the sticker shock, then get back to work.) While you are answering one question thoughts on the others will simmer on the back burner. Before you start writing I suggest you make an outline or sketch out the issues you want to touch. Each question gives you an opportunity to discuss and apply key concepts in the law of torts and to analyze facts and apply the law to them. These are essay questions. Therefore good sentence structure, sensible paragraphs, and readability are important. BE SURE TO ANSWER EACH ELEMENT OF THE QUESTION ASKED. None of the questions specifies a jurisdiction. You can use all available authority to support the result you think that law and justice demand. Concrete reference to the cases, Restatements, statutes, and other authorities is valuable to clarity of thought and explanation. But a reference to a rule number or a case by itself is not explanatory. The key is to state the principle and explain the logic of the position you urge. The number of the rule or name of the case just shows where you found the idea, or how you know it expresses the law. The essay should be understandable even without the numbers or case names. Limited Open Book Page 1 of 9

The exam is limited open book. You should bring the Franklin, Rabin, Green casebook. You may also bring the outline form slides I have posted. If you choose to do that I would print them in outline format. It will enable a quick search for authorities. The cases assigned and notes following cases in the casebook may be of important assistance in forming and structuring your essays. And you should also have available the text of cases assigned by me. You may bring your own notes or outlines. You may not bring any commercial outlines or other texts or treatises. You may use Exam 4 or may handwrite your answers. If your exam is handwritten it MUST be double-spaced. If it is typed I prefer 1.5 line spacing if that option is available. Use of Authorities Do Not cite any authorities other than what has been assigned, recommended, cited in class, or posted on the Lexis Blackboard by me. Brief identifying citations are all that is needed, e.g. Rest. 402A, Greenman v. Yuba Power, Palsgraf, etc. are acceptable forms of citation. But the Rule number and the case name are not a substitute for stating the proposition you are asserting. E.G. `There is a product liability claim under 402A. is opaque. But 402A has been interpreted to encompass manufacturing, design, and inadequate instruction or warning claims. Only a design defect claim appears here. is instructive and is helpful to the reader.

Rhetoric - the Art of Persuasion Your object is to reason to a conclusion. State your opinions and defend them. A well organized argument, buttressed by reference to authority, which discusses the issues in an informed, critical way, is your goal. Be careful to draw only reasonable inferences from the facts presented. If answering a question requires assuming or even adding facts to those provided, be sure to state your additional assumptions. I am looking for an essay characterized by persuasive legal argument (with appropriate authorities noted), for accurate statement of the facts, avoidance of rhetorical hyperbole, and for succinct explanations and use of the logic of the law. Please place your self in the position contemplated by the question and address the intended Page 2 of 9

recipient (e.g. judge, senior partner, insurance claims manager). Think of the reader. That is who you seek to persuade. Sentences must end - preferably sooner rather than later. Paragraphs should be short. Dense blocks of type are unwelcome. Verbs should have objects - mostly. Good luck. Have a great holiday. I hope to see each of you in my classroom again before you graduate from Fordham. - GWC

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Q. 1 - Torres v. Biro, et al.


Amador Torres was severely injured at his job in a supermarket when his hand was mangled in a meat grinder from which the employer had removed protective devices. He was a twenty-two year old employee of the Tropical Sun Supermarket in East Orange, New Jersey. Amador was operating a meat grinder machine while standing on a milk crate. The crate slid, causing plaintiff's hand to enter the opening of the grinder. Because of the injuries, three fingers of his right hand had to be surgically amputated. He still has the thumb and forefinger. Torres testified he had arrived from Mexico about six months before the accident. He had a sixth-grade education and spoke virtually no English. He began working immediately at Tropical Sun, where his father Jose Torres Pena was already employed. The younger Torres had used the meat grinder about four or five times in the three months before the accident, and it never had a guard in place during that time. Several Tropical Sun employees testified at deposition that they had worked at the supermarket for a number of years or months and had never seen guards protecting the feed opening on the grinder until they were installed shortly after plaintiff's accident. Your firm filed a complaint for Torres against Biro Manufacturing Co. ("Biro") (the manufacturer of the machine), Siegmeister Sales & Service, Inc.(which periodically serviced the grinder and replaced worn blades with new), and Tropical Sun, Inc.. Discovery revealed that the manufacturer, Biro, had taken several steps to address the longstanding problem of purchasers removing protective devices from its grinders to increase productivity. The owner of Biro testified that "bowl guards" are affixed with steel fasteners and then welded permanently to the tray in which meat is placed for grinding. He explained how a magnetically activated interlock system prevents use of the machine when the tray and attached guards are removed for cleaning or otherwise. He testified that the only way to separate the guards from the tray is to saw them off. For twenty years Biro has instructed its distributors about the dangers of operating a machine without guards. Biro has provided financial incentives to distributors since 1995 to report removal of guards and to assist owners in correcting the deficiency. It has also instructed distributors not to service machines from which guards have been removed. If it learns that the owner of a machine does not cooperate in rectifying the safety risk, Biro files a report with the federal Occupational Safety and Health Administration (OSHA) which has authority to fine companies for unsafe practices, or to enjoin violations. Biro provided in its distributor agreements, including the one entered into with Siegmeister, that distributors must assure that all warning labels are in place and that purchase orders must instruct purchasers "not [to] remove, bypass or alter any safety guards, interlocks, devices or warnings." The distributor agreement between Siegmeister and Biro also contained a provision under the heading "SAFETY" stating: (v) If Distributor is requested to service or maintain any BIRO product, Distributor will insure that: (a) all safety, guards, interlocks, devices and warnings, are on the BIRO Products and functional; (b) that all BIRO instructional materials are available with the BIRO Products; and Page 4 of 9

(c) that the purchaser has been properly instructed with regard to the safe use of the BIRO Product; (d) servicer shall inform BIRO of any use of its machines without the supplied guards. The owner of Tropical Sun, Chong Shin, testified in deposition that the meat grinder was purchased new from Siegmeister in 2001. A technician for Siegmeister, Karl Irvin, confirmed that the machine at Tropical Sun had guards in place when he installed it in 2001. He also testified that he has made "numerous" machine service calls with the guards having been removed, and that he would not service machines in those circumstances. A vice-president of Siegmeister, Ira Task, testified that Siegmeister is the exclusive dealer of Biro food processing machinery in New York and New Jersey. Employees of Siegmeister were instructed that if a guard was missing from a machine, they were to note that fact on the work order and report it to the office at Siegmeister, at which time Siegmeister would undertake to explain to the owner the danger of operating the machine without protective devices. After Tropical Sun's purchase of the meat grinder, Siegmeister continued to service the machine by replacing the "knives and plates" approximately every four months, charging a fee to Tropical Sun for its services. Paul Smith, a technician for Siegmeister testified he personally replaced the knives and plates on January 27, 2004, about five months before plaintiff's accident. His service protocol included assuring that guards and safety devices were in place. If he had observed that a guard had been removed, he would have unplugged the grinder and informed the owner. Smith testified he never went to a facility to exchange knives and plates and found the feed guards to have been removed. There is no record at Siegmeister of a no guard report having been filed regarding Tropical Sun. You are an associate at Tulipan & Conk, P.C. who represent Torres. Discovery is complete. Non-binding mediation will soon be scheduled by the court. Now is the time to assess the strengths and weaknesses of your case. To do that you need to assess how the jury will be instructed regarding each of the elements of the case. And you expect that after mediation there will be motions filed for summary judgment by each of the defendants. Prepare a memo for George Conk - the partner for whom you work - addressing the strengths and weaknesses of each element of the possible claims against manufacturer, servicer, and employer. Face up to our weaknesses - if we cant win on a claim, lets cut our losses. Keep the wheat, discard the chaff. Damages Torres is entitled to workers compensation benefits in New Jersey where he was injured. The medicals bills are about $40,000. His English is limited - though he graduated from high school in Mexico and is literate in Spanish. He reads a Spanish-language newspaper daily online and knows how to use a computer keyboard - though with only one hand that is going to present problems. He is now receiving 70% of his former pay from workers compensation. He is now temporarily totally disabled but temporary disability pay will end when medical treatment concludes. He can then expect from workers comp a lump sum permanent disability payment for the lost fingers of about $30,000. All reasonable medical bills related to the accident will be or have been paid by the workers compensation insurer. Page 5 of 9

What elements of damages is Torres entitled to seek? What defenses will be raised? What evidence do we need to develop to maximize his recovery? What problems are presented by the workers compensation benefits received?

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Q. 2 - Ryals v. U.S. Steel


Wilson and David Ryals (and their two bird dogs) went hunting for quail in a state forest which allowed hunting in southwestern Pennsylvania. They reached an old fence which had a sign that said No Trespassing - Posted - U.S. Steel - Muscoda Mines. On the other side of the fence was a field with just the kind of terrain where quail are likely to roost. There were several lengthy breaks in the wire-mesh fence - which made it easy to cross onto the U.S. Steel property as they - and, they knew, others had often done in the past. They crossed over the property line in quest of quail. The field turned out not to yield any quail. As they turned back their attention was drawn an electrical structure of some kind - a transformer with power lines leading to it. Curious, they walked over. Wilson Ryals testified at his deposition that, when they arrived at the site, they found the base of the structure to be deteriorated. There were a bunch of four to six foot lengths pieces of copper pipe. David said - I have some work to do in my basement. That stuff could be handy. There was a rusty warning sign that said Danger - high voltage. But the open gate of the fence around the facility, the detached metals lying on the ground, dangling wires, garbage in and around the fenced area and wild vegetation growing in the fenced-in area led David to conclude that it was no longer hot. He walked through the gate leading into the switch rack. David Ryals contacted a 44,000-volt copper electrical line; suffered second and third degree burns over 95% of his body and died two weeks later as a result. Assume regarding the death case that David was the 45 year old father of two teenage children, and that he worked as a school teacher. His salary was now $75,000/ year plus about 15% in benefits which covered health insurance for his family and a 5% matching pension contribution. David Ryals widow Barbara has consulted your firm. She wants to know if there is any case that can be brought against U.S. Steel for the fatal injuries suffered by her late husband. Your boss asks you to prepare a memorandum assessing the strengths and weaknesses of her potential claims for her husbands injuries and death, including both liability and damages. Assume that the jurisdictions courts have not considered but would be open minded about the Third Restatements approach to premises liability claims against owners and occupiers of land.

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Q. 3 - MARSHA ANDERSON O'BRIEN V. CENTURY 21 REALTY OF TUCSON, INC., HOVNANIAN HOMES OF TUCSON, INC.; AND ABC CONSTRUCTION: GENERAL CONTRACTORS, INC., ET AL.
In January 2010, O'Brien and her daughter went to a residential housing development, Pantano Overlook, to shop for a new home. Hovnanian was the owner and developer of Pantano Overlook and when O'Brien arrived at the site, Jane Brewer an authorized sales agent working for Century 21 offered to show her homes under construction. While touring the development, O'Brien and the sales agent Brewer were engaged in the usual real-estate agentprospect chit chat about schools, home resale values, etc. As the trio approached a particular home they intended to view, Jane cut across a portion of the front yard where there were concrete forms [plywood boxes into which concrete will be poured for foundations, steps, footings, etc.], concrete-form steel stakes [aka `re-bars] , and yellow tape. O'Brien followed her and, as she stepped onto a curb, she slipped on gravel debris and fell forward, striking her chest on a steel re-bar and suffering injuries. At deposition O'Brien said " I was following closely behind [the sales agent], I did not see the debris on the curb nor the rebar sticking up" and "prior to my fall, I did not see nor appreciate that the condition of the area over which she led us was dangerous." Pressed by defense counsel she acknowledged that before falling, she had seen the debris on the curb, the yellow construction tape, the concrete forms, and the concrete-form stakes. You are an associate at Tulipan & Conk, attorneys for plaintiff. Your boss says to you that dep is going to give us some problems. We are going to get a motion for summary judgment from each defendant. Get going on that: identify the issues we are likely to confront and prepare our reply brief. In your memo make sure you to give the court a plain statement of the duties of occupiers of land and the questions that the jury should answer for any party that does not get summary judgment in its favor.

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Q. 4 - MARIA CABRAL v. RALPHS GROCERY COMPANY


On February 27, 2010, Herman Horn was employed by Ralphs Grocery Co. as a tractortrailer truck driver in the San Bernardino, California area. That evening while driving eastbound on Interstate 10 Horn stopped just beyond the Interstate 15 overpass to have a snack. To avoid the parking fees at truck stops he regularly made a brief stop at this location to eat part of the meal his wife had prepared for him. Horn stopped the tractor-trailer rig off the paved roadway, on what the investigating California Highway Patrol officer, Michael Migliacci, described as "the dirt portion of the shoulder." At the request of the California Highway Patrol, California's Department of Transportation (CalTrans) had placed an "Emergency Parking Only" sign in the area. Horn could see the sign from where he stopped at the edge of the roadway, about 10 feet from the right travel lane. Decedent Andres Cabral was driving home from work alone in his pickup truck, eastbound on Interstate 10. A witness - Juan Perez, driving on the freeway behind Cabral, saw decedent's pick-up truck, which was traveling around 75 miles per hour, swerve within its lane, then change lanes rapidly, abruptly crossing the outermost lane of traffic and leaving the freeway travel lanes. Decedent's vehicle then traveled parallel to the road along the adjacent dirt until it hit the rear of Horn's trailer. Perez saw no brake lights or other indications of an attempt to slow down before the collision. A toxicology report on Cabral, who died at the scene, was negative. In the absence of evidence of intoxication, suicide, mechanical defects or a medical condition, and considering how long Cabral had been awake on the day of the accident (which occurred in the evening), an expert traffic safety engineer retained by plaintiff has concluded Cabral had fallen asleep while driving with the cruise control on. A defense engineer expert, believing Cabral's reported lane changes were inconsistent with the results of fatigue, opined the accident probably resulted from an unknown medical condition or a suicide attempt. Andres Cabrals widow Maria has brought this wrongful death action against Ralphs and its driver. You are employed by Ralphs liability insurer. The managing attorney comes to you and says: This case is not as easy as it looks. Try to get us out of this on summary judgment. Its a first year torts problem, isnt it? Give it your best shot - write a draft brief in support of summary judgment. And tell our claims adjuster in a transmittal memo how you think our arguments will actually stand up on the motion. Risk-assessment - thats what this business is all about.

The balloon in the google map does not indicate the place of accident. That is on the right side of the main roadway between the overpass and an acceleration lane/on-ramp.

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