Torts I
Fall 1998
Prof. Edmundson Your exam number: ___
FINAL EXAMINATION
INSTRUCTIONS – PLEASE READ CAREFULLY
1. This is a closed-book, closed-notebook examination. Remember the Honor Code.
2. The examination is to be answered in the blue books provided for you. What is not in the blue book, or not expressed in a complete sentence, cannot be credited.
3. Put your EXAMINATION NUMBER ONLY in the space provided at the top of this sheet and on each blue book. DO NOT PUT YOUR NAME ON YOUR EXAM PAPERS.
4. When you have finished the examination, number your blue books to show how many you used and in which order (e.g. “1 of 2” and then “2 of 2”). Then please put the examination questions inside your first blue book, put any additional blue books inside the first, and then put the exam and blue books, so arranged, on the table at the front of the room. You must return the exam.
5. You will have three hours to work on the examination. Refrain from writing anything in the blue books during the first hour of this period; spend that first hour re-reading and analyzing the question(s) and outlining your answer(s). Organization will be counted in determining your grade, so think BEFORE you begin to write. Concise answers are welcomed.
6. If more facts are needed to answer any part of a question, state what they are and why they are needed. Illegible responses cannot be credited.
EXAMINATION
QUESTION I (50% of total credit)
Peter, seventeen years old, has obtained an automobile learner’s permit under a statute that required him first to pass a written test. The statute authorizes a learner to drive only “under the supervision of a licensed driver over the age of 25.” Violation of the statute exposes one to a fine of up to $5,000 and to as much as six months in prison. The statute contains no exception for emergencies. As with all criminal statutes, prosecutors have discretion as to when to bring criminal charges.
Peter’s father was giving him his fifth driving lesson on a winter Sunday afternoon. Both wore seatbelts, although no statute in the jurisdiction required them to. Peter was behind the wheel when his father, a doctor with a history of heart disease, recognized symptoms indicating that he was having a massive heart attack. He unfastened his seatbelt to help relieve the pressure on his chest, then collapsed in his seat. Gasping for breath and in evident pain, he told his son to get him to the local hospital “fast” and then fell silent.
Peter drove the car skillfully but far in excess of speed limits until he was on the straight access road leading to the hospital. Arriving at an intersection with a clear view of the crossroad in both directions and no traffic, he saw the light was red and decided to run it. He was going seventy five miles an hour in a marked forty-five mile an hour zone. The traffic statutes make violation of a speed limit and running a red light crimes subject to the penalties of fine or imprisonment. They contain no exceptions either for learners or for emergencies.
Just short of the light there was a patch of ice on the road. When he hit this patch, Peter made a beginning driver’s mistake that was described and warned against in the learner’s manual and was the basis for a question on the written test he had passed. When the car veered slightly to the right on the ice, he abruptly turned the steering wheel all the way to the left, and the car skidded out of control. It ran off the road into a mailbox belonging to Cockerill. The mailbox was encased in brickwork that Cockerill had recently erected to protect it from damage by ambulances swerving as they turned at the intersection, as had happened on numerous occasions in the past. Peter and his father (who turned out to have been suffering from indigestion rather than a coronary) were seriously injured in the collision, and the mailbox was destroyed.
Assume that in this jurisdiction the traditional rule of contributory negligence applies and that the doctrine of vicarious liability has been extended by a “family purpose” statute. What claims may be brought by or against Peter, Peter’s father, and Cockerill (ignore all other possible defendants)? Who should prevail, and why?
QUESTION II (50% of total credit)
Annually the faculty of the Urban State College of Law gathers for a potluck supper. “Potluck” means that guests are expected to bring one dish for all to share. The gathering has traditionally been held off-campus (state law forbids alcoholic beverages to be served on state university campuses), and this year it was held at the home of Prof. Furbish, who lived alone. Nine guests attended, including Dean Smith, who was new to Urban State, and her spouse (the only spouse in attendance). All except the Smiths knew that this was to be a potluck dinner. A sign-up sheet had been posted in the faculty lounge which, when completed, looked like this:
Prof. Crombie egg salad
Prof. Tumbo oyster dip
Prof. O’Toole tamales
Prof. Bisbee meat loaf tartare
Prof. Meriwether Buffalo wings with mayonnaise
Prof. Ratburn egg custard with cream
Prof. van Gulick [nothing]
Each of those who signed up personally prepared the dish that he or she signed up to bring. Prof. van Gulick brought nothing, as was his custom.
The dinner was a success, but Furbish and five of the guests–Crombie, O’Toole, van Gulick, Tumbo, and Dean Smith– became ill soon afterwards with food-poisoning. Each suffered nausea, vomiting, diarrhea, cramps, and malaise for as long as forty-eight hours after first falling ill, and each sought emergency medical treatment. Subsequent investigation revealed that each of the stricken guests could recall having eaten at least some of each of the dishes, with the exception of Tumbo, who said he had none of the oyster dip. Three of the four who were not taken ill–Ratburn, Bisbee, Mr. Smith, and Meriwether–had eaten nothing but the oyster dip and the tamales, but one, Bisbee, thought he had tasted everything that was served.
Assume that expert medical testimony would establish that: 1) the illnesses of each of the stricken guests was almost certainly due to having eaten one, but only one, of the dishes served at the potluck; 2) each of the dishes was capable of being prepared in a way that would cause symptoms like those complained of; 3) it is unlikely, but nonetheless possible, that a culprit dish was eaten by a guest who did not subsequently become ill; 4) finally, the oyster dip and tamales should be ruled out as culprits.
Assume also that in this jurisdiction: negligence must be shown to recover damages for nonintentional torts (in other words, strict liability for foodstuffs does not apply here); the traditional rule of contributory negligence has been preserved; the “fellow servant” doctrine has been abrogated; and the worker’s compensation statute does not purport to provide the injured employee’s exclusive remedy against the employer.
The faculty at Urban State is a litigious and not very loyal or collegial group; discuss possible tort liability. Be clear about whose liability you are discussing, to whom, and on what grounds. Pay careful attention to proof problems and ways of surmounting them.