TORTS I

FINAL EXAMINATION

FALL 1990

PROFESSOR GARCIA

 

TIME LIMIT: 3 & 1/2 HOURS

The times assigned to the questions indicate the approximate weight I will give to each in the grading process, so you should allocate your time accordingly. Note that there is more time allotted for the examination than the total times allocated to the questions. There are five questions to this examination; be sure that you have and answer them all.

If you need additional facts to answer any question, assume the reasonable alternatives consistent with the facts given, and indicate why you need those facts.

 

I. (50 minutes)

 

A partner in the firm you have just joined as an associate has asked for help in a case she is handling for a friend. The partner handles primarily tax matters, and she is turning to you for help in this torts case, having heard that you had a great torts course in law school- taught, of course, by the one and only Captain Torts!

 

The client is Walter Sheppard, who was severely beaten while he was staying in a Sleep Rite Motel six months ago. The attack occurred at about three in the morning, and the attacker had gotten into Sheppard's second-floor room through a sliding-glass door that opened to a balcony overlooking the parking lot at the back of the motel. An hour or so before the attack, Sheppard had gone out to the balcony for some fresh air, and had not attempted to lock the door when he returned to his room. As it turns out, unknown to Sheppard, the lock was broken, and he could not have locked it had he tried.

 

Sheppard's most serious injury was to his left arm. The report of Sheppard's doctor states that there is some chance that his use of his left arm will be permanently impaired. The doctor's best estimate is that if the arm does not completely heal, Sheppard will lose about 60% of the use of his arm.

 

In the course of your discussion of the case with the partner, she made the following statements:

 

A. I think we have a pretty good argument that the motel was negligent. They should have checked the locks on the door to make sure they were in good condition.

 

B. I'm not concerned about Walt's failure to try to lock the door when he came back into the room. Even if he had tried to lock the door, it wouldn't have worked, so the defective lock was responsible for Walt's injuries.

 

C. I've checked out the six other motels in the town where Walt was staying, and none of them have security guards, so it will be pretty hard to argue that Sleep Rite was negligent in failing to have a guard.

 

State whether you agree or disagree with each of the partner's statements, giving your reasons.

 

 

II. (50 minutes)

 

The defendant in Underwood v. Larue has moved for a summary judgment. According to the pleadings and affidavits, the defendant Larue is the owner of a service station. On July 3 two years ago, one of the defendant's employees sold a gallon of gasoline to Robert Ogden. The employee pumped the gasoline into a one-gallon plastic milk container, in violation of a state statute that prohibits the sale of gasoline in other than motor vehicles and approved metal containers. Conviction of a violation of the statute carries with it a fine of up to $1000.

 

Ogden told the employee that he had run out of gasoline about a mile from the station, and needed the gasoline to get his pregnant wife to the hospital. The employee was reluctant to put the gasoline into the plastic container, but finally relented after Ogden persuaded him that he had to get his wife to the hospital immediately. In fact, unknown to the employee, Ogden had been hired to by the owner of an apartment building to burn the building so that the owner could collect on an insurance policy he had on the building. Ogden used the gasoline to start the fire.

 

This is an action for personal injuries by Underwood, who was in the building at the time of the fire. Should the defendant's motion for summary judgment be granted? Explain.

 

III. (30 minutes)

 

The main partner in your firm has requested a memorandum of law on the following case:

 

Our client, Mary O'Connor, went on a fifteen-day Adriatic and Mediterranean cruise with her husband, Kevin on the S.S. Victoria, a sea-going cruise ship owned by Chandris Line Inc. The cruise was of special significance to Mr. and Mrs. O'Connor because it included visits to holy places in the Holy Land.

 

Mr. and Mrs. O'Connor were assigned to Cabin E-57. The cabin was equipped with two bunk beds, one situated on top of the other. From the time the bunks were first used on the night of May 27, until the time of the accident, shortly after midnight on May 30, Mr. O'Connor slept in the upper bunk and Mary slept in the lower one. Mr. O'Connor weighs approximately 210 to 215 pounds. They were the only occupants of cabin E-57. Access to the upper bunk was provided by a ladder situated on the side of the bunk opposite the bulkhead to which the bunks were affixed and was so designed that the occupant would simply roll onto the bunk from the ladder. The frames of the bunk were made of wood.

 

On May 29, Mary and her husband returned to their cabin at about 11:00 p.m. and went to bed. Shortly after midnight, May 30, while they were both asleep in their respective bunks, the upper bunk with the husband lying in it suddenly, without warning, broke from the mounting and fell directly on top of Mary O'Connor as she lay sleeping in her bunk below. The falling bunk struck Mary on the head, chest, arm and leg. She sustained serious injuries as a result of this accident.

 

Write the memorandum the partner requested in order to assess Mrs. O'Connor's case.

 

IV. (30 minutes)

 

You are the appellate judge in the case of Day v. Waffle House, Inc. The appellant, Susan Day, seeks review of the trial court's award of summary judgment for the appellee, Waffle House, Inc. The facts of the case are as follows:

 

Appellant Susan Day (Day) and her friend, Freddie Farriss, went to Appellee's Waffle House Restaurant (restaurant) for a meal. Freddie went into the restaurant and ordered his meal, while Day went across the street to a convenience store to make a telephone call. While eating, Freddie discovered broken glass in his food, and began spitting out food, broken glass and blood.

 

At this time, Day entered the restaurant, discovered Freddie in distress, and observed a bloody napkin with food and broken glass. She then requested that restaurant employees summon an ambulance. Apparently, the only out-going telephone line was behind locked doors, and, professing their inability to telephone for assistance, the restaurant demanded payment for Freddie's meal. Payment was made, and Day placed Freddie in her automobile with the intention to take Freddie to the nearest hospital.

 

En route to the hospital and as Day entered an intersection adjacent to the restaurant on a green light, another automobile collided with Day, causing Day and Freddie injury. Day and Freddie then filed suit against the restaurant for their injuries.

 

Write an opinion in this case.

 

V. (20 minutes)

 

The evidence has been completed in the case of Morrow v. Marine Services, Inc., and the defendant has moved for a directed verdict. A fair summary of the evidence is:

 

Two years ago, one of the defendant's oil tankers collided with another boat. As a result, the side of the tanker was torn open, and a considerable amount of oil spilled into the river on which the tanker was traveling. The oil moved downstream at about a mile an hour, and a day later, oil reached a barge on which the plaintiff was working. Some of the oil washed up on the deck of the barge, and two days later- which was three days after the initial oil spill- the plaintiff slipped on the oil soaked deck while trying to clean it. He fell to the deck and was seriously injured. The evidence was that the pilot of the tanker was intoxicated at the time of the collision, and that the intoxication was the cause of the collision.

 

This is an action by the plaintiff for the injuries he received as a result of his fall. State how you would decide the motion for a directed verdict, giving your reasons.