II (Final Exam) Ventura Spring Term 2005 Prof. Dora Gonzalez

Question #1

Chemco., Inc., owned and operated a warehouse where non-explosive, non-toxic chemicals were stored overnight in trucks in route to various locations of distribution. Chemco uses a high-tech premium security system. Sometime during the night, a raging explosion and fire destroyed a substantial portion of Chemco’s warehouse and damaged the immediately adjacent building owned by ACME. Pops, the night watchman at ACME suffered smoke inhalation at the scene.

Pops was transported to Angels of Mercy Hospital lapsing in and out of consciousness. The hospital had contracted with Dr. I.M. Stoned, M.D., a famous Beverly Hills plastic surgeon, to independently provide physician services in the emergency room. Earlier that year, Dr. Stoned was implicated in selling narcotics (he never uses them personally) and for performing multiple rhinoplasties (nose jobs) on a famous Santa Barbara celebrity in a highly publicized scandal. The next morning, Pops awoke in recovery with a new very petite nose. Dr. Stoned negligently performed the operation but he is not concerned as in the file is a document signed by Pops, releasing the hospital and its employees from liability for any injury resulting from their .

The National Inquisition sent their roving reporter to the hospital to interview Pops, but Pops refused. As he was leaving, the reporter heard Pops quietly moan, “That Dr. Stoned is on drugs!” Later, the reporter snuck into Pops’ room and snapped his picture. The picture with Pops’ verbatim quote appeared in the next issue. The National Inquisition had been fighting a vicious lawsuit initiated by Dr. Stoned regarding the Santa Barbara celebrity stories.

The arson investigation at Chemco revealed that the explosion and fire was a result of an overloaded electrical panel that ignited gasoline in a stored truck. Despite warnings from an electrician, Chemco decided not to replace the old electrical panel to save money when installing the new security system. The report also stated that half of the $50,000 damage to the ACME building could have been avoided if ACME had properly maintained its fire sprinklers.

Apply all relevant defenses. This is a pure jurisdiction.

1. What cause[s] of action if any can be brought against Chemco by ACME? By Pops?

2. What cause[s] of action if any may Pops bring against Angels of Mercy Hospital? Against the National Inquisition?

3. What cause[s] of action if any may Dr. Stoned bring against the National Inquisition?

ISSUE SHEET

1. ACME v. Chemco.

Negligence Conduct falling below the standard of care by law or society for the protection of others against unreasonable risks of harm

Duty of Care : Duty to exercise reasonable care by landowner Chemco to keep ACME building immediately adjacent to Chemco from unreasonable harm. Breach of Duty: Carelessly refused to replace electrical panel to save money. Cause in Fact: But-For the fire, no damage to ACME building : Majority rule limits liability to reasonably foreseeable plaintiff –foreseeable that building next door will be damage by Chemco fire. : Fire damage to ACME building

Defenses: Comparative Negligence Discussion on will bar all recovery. Here, Pure Comparative Negligence jurisdiction. Discussion on Pure v. Modified. Failure to maintain sprinklers (50% apportionment of liability.)

Pops v. Chemco

Negligence Conduct falling below the standard of care by law or society for the protection of others against unreasonable risks of harm

Duty of Care: Pops is a remote plaintiff. Under Cardozo majority view was Pops within “zone of danger” such that Chemco owed him a duty. Under Andrews minority, duty to all. Night watchman is foreseeable plaintiff Breach of Duty: Carelessly refused to replace electrical panel to save money. Cause in Fact: But-For the fire, no injury to Pops. Proximate Cause : Generally, medical negligence is a foreseeable intervening act and not superseding so as to limit liability by Chemco. Unless, rhinoplasty was not ordinary negligence, but , wanton conduct or intentional , that is deemed unforeseeable and superseding and limits Chemco’s liability. Damages: Physical Injury

Defenses: None

Pops v. Angel of Mercy Hospital

Vicarious Liability Under doctrine of Mercy Hospital is responsible for negligence of its employees, however, no liability for independent contractors.

Independent Contractor The principle does not apply for tortuous acts of an independent contractor. Dr. Stoned was on thus no attaches. The exception is negligent selection. Negligent Selection Here Mercy Hospital may be liable for their own negligence in contracting with a physician that they should have known had a questionable background and qualifications.

Defenses: : To have assumed the risk plaintiff must know of the risk and voluntarily assume it. At issue here is Express Assumption of Risk. Exculpatory document must (1) clearly describe conduct and (2) is not against public policy (effects public health and safety). Discussion that hospital release is public policy exception (Tunkl) and thus no defense.

Pops v. National Inquisition

Invasion of Privacy (a.) Intrusion on Seclusion: Intrusion- By reporter sneaking into room without permission Private Seclusion- Hospital Room-reasonable in hospital room? Objectionable to - Most likely, post surgery invasion objectionable.

(b) Public Disclosure of Private Facts Publication of Private Information -Pops surgery & recovery private matter in national paper. Reasonable Person would object- Pops denied interview much less picture. Facts true- yes Public Interest Privilege- Time, Inc. v. Hill, Pops surgery not public interest, arguably Dr. Stoned’s career is, or medical in hospitals – but most likely no privilege.

Defenses: None – No

Dr. Stoned v. National Inquisition

Defamation Publication of a false defamatory statement causing harm to an individual’s reputation. False Defamatory Statement: Discussion on defamatory statement. No Dr. on drugs- But what about Dr’s already soiled reputation? Arguably false & defamatory. Publication: Only needed third party. Here printed in national publication. Damages: Ordinarily need not be proven if libel or slander per se. Here libel.

Media Defendant – Public Figure/Public Concern must prove malice. Malice: N. Y. Times v. Sullivan Test for . Knowledge or reckless disregard for the truth. Discussion that National Inquisition was at least reckless, motivated by pending lawsuit.

Defenses None (unless truth to drug use proven)

Torts II (Final Exam) Ventura Spring Term 2005 Prof. Dora Gonzalez

Question #2

Windy owned and operated a strawberry field in Oxnard which had been on the family farm for decades. She regularly uses Magic Grow, an organic fertilizer on her fields because of its great results and she enjoys the thrill of swooping down the hillside onto her fields to dust the crops in her airplane.

Magic Grow, Inc. is the manufacturer and distributor of Magic Grow Fertilizer. State-of- the-art research and development by Magic Grow, Inc., resulted in a product highly effective at doubling fruit crops when aerially sprayed, without any toxicity to humans. Rigorous quality control is employed in manufacturing the fertilizer. Magic Grow, Inc. sold Windy a container of Magic Grow that was contaminated with a chemical solvent making the contents toxic to humans when airborne. There was no evidence as to how the container was contaminated.

Windy non-negligently sprayed the contents of the contaminated Magic Grow container over her fields. The new house on French Hill requires that she get close to the rooftop, but she doesn’t care, even if that homeowner complains, as she is an experienced pilot. Unexpected Santa Ana winds carried the contaminated Magic Grow onto the downwind property of Martinez who became severely ill while repairing a broken fence. Martinez is an asthmatic with an unusual sensitivity to inhaled chemical products. While most individuals would have fully recovered within days, Martinez was permanently disabled by this injury.

Developer loved the peaceful view from the back yard of his Luxury French Hill hilltop home overlooking Windy’s strawberry fields and the 101 freeway. He was exasperated that every weekend Windy would fly frighteningly low and directly over his home. He has complained numerous times and now he just leaves his home. Not only is the noise of the airplane unbearable, he remains worried that she will crash into his property or accidentally release her spray over his home.

Discuss the Rights and Liabilities of all parties. Discuss all applicable defenses.

ISSUE SHEET (Question #2)

1. Martinez v. Magic Grow, Inc.

Products Liability

Two theories of recovery available to Marinez:

Negligence Duty: Manufacturer owes a duty to all persons foreseeably damaged by negligent manufacture of a product.

Breach: Will have to raise Inference of Negligence- Res Ipsa Loquitor (1) Injury not normally occurring unless someone negligent, (2) Instrumentality causing injury in Control of Defendant, and (3) Plaintiff in no way contributed to injury. Here all elements are satisfied to raise inference of negligence, as Martinez would not have fallen ill without Magic Grow’s negligence, Magic Grow controlled manufacturing and Martinez did nothing to contribute to his illness.

Causation: But for contaminated spray, Martinez would not be ill.

Proximate Cause: Was Santa Ana wind intervening? Wind in aerial spraying is foreseeable. Was abnormal sensitivity intervening superseding act? Discussion on Doctrine of Eggshell Plaintiff, i.e. defendant must, “take victim as he finds them.” Under this doctrine Martinez’s injuries are foreseeable.

Damages: Injury from inhaling contaminant

Defenses: None

Strict Liability Eliminates the need to prove negligence. in tort for damages resulting from defective product. Manufacturer is strictly liable in tort when he places a defective product on the market (Greenman v. Yuba Power Product, Inc.)

Defective Product: Must have Design, Manufacturing, or Warning Defect. Here, Manufacturing defect as nothing wrong with product design, but a contamination in manufacturing

Commercial Supplier: Magic Grow manufacturer and Distributor.

2. Martinez v. Windy Ultahazardous or Abnormally Dangerous Activity

Strict Liability in Tort Activity must involve a substantial risk of serious harm, cannot be performed without serious risk of harm, and NOT of common usage in the community.

Ultahazardous Activity: Aerial spraying usually considered ultrahazardous. Discussion here is whether aerial spraying is common in agricultural community, or since have hybrid of residential and agricultural, is not as common and risk is still substantial. Most likely considered ultahazardous activity and strict liability will be imposed.

Foreseeable Plaintiff: Injury to humans from aerial spraying foreseeable and from risk created.

Indemnity Windy could proceed on the theory of indemnity because the product was defective when it left the manufacturer. Magic Grow would incur the entire liability for any negligence or strict liability on Windy’s part, as the injury was a result of a defective product.

3. Developer v. Windy

Trespass to Land Physical Invasion: Courts generally construe plaintiff’s land to include air space above, but Windy is not interfering with Developer’s possession, but his use and enjoyment, more likely to treated as a Intent: Windy flew intentionally over property for thrill. Causation: Invasion directly by Windy’s airplane Damages: Not required. Need not wait for injury.

Private Nuisance Substantial Interference: Windy’s spraying requires that Developer leave his home out of fear, inconvenience to average person on an ongoing/continuing basis. Unreasonable Interference: Balance test. Injury must outweigh utility. Even though utility of spraying great, can Windy can spray in more reasonable manner. So as to not interfere with property owner’s right to enjoy home.

Damages: Injuntive Relief: Developer wants Windy to stop interfering with use and enjoyment. Damages will be inadequate. No balance of hardships because Windy’s conduct was willful.

Defenses: Coming to the Nuisance: Has Developer assumed the risk having built new home next to established farm land? Generally, purchaser is entitled to reasonable use and enjoyment of his land if purchase n good faith and doctrine will not bar relief.

EXAM STRATEGY

Question #1

This exam is designed to test the students’ knowledge in the Torts of Negligence, and Privacy.

ACME v. Chemco A few students may stumble on the red herring in the first paragraph and discuss ultra hazardous activity. All students should be able to spot the negligence issue against Chemco by ACME and the comparative negligence defense against ACME.

Pops v. Chemco All students should be able to correctly identify the negligence issue. Lesser level students my not discuss duty problem of the more remote plaintiff, or will discuss it under ACME v. Chemco or both. Most students should correctly identify and discuss the proximate cause problem raised by intervening medical negligence. Higher level students will identify the superseding act of gross negligence or intentional conduct by doctor to limit liability.

Pops v. Angel of Mercy Hospital All students should spot the vicarious liability issue. Most students will spot the independent negligence for negligent hire. All students will identify the Express Assumption of Risk defense. Higher level students will discuss the public policy exception.

Pops v. National Inquisition Invasion of Privacy issues should easily be spotted by all students. Higher level students will correctly single out elements requiring more discussion. Does hospital room have reasonable expectation of privacy for purposes of seclusion? Is there a public interest privilege? Is Pop’s surgery of public interest? What about Dr. Stoned and medical malpractice in hospitals?

Dr. Stoned v. National Inquisition All students should identify the defamation issue and correctly apply the actual malice standard to a media defendant. Higher level students will discuss the problem raised under element of false defamatory statement. Can Dr. Stoned’s reputation be damaged?. A few students will argue truth as a defense.

Question #2

This exam is designed to test the students’ knowledge in the areas of Products Liability and Untrahazardous or Abnormally dangerous Activity and the torts of Nuisance and .

Martinez v. Magic Grow, Inc. Most students should identify that recovery in Products liability in this case can be under two theories, negligence and strict liability. A few students may only write on strict liability, missing all negligence problems Most students will discuss the need to raise an inference of negligence through to establish breach. More students will discuss proximate cause issues raised by winds. Higher level will discuss eggshell plaintiff.

Martinez v. Windy All students should be able to identify the abnormally dangerous activity of aerial spraying leading to strict liability in tort. Higher level students will discuss the indemnity issue. Some students may miss fact that Windy non- negligently sprayed and may discuss negligence.

Developer v. Windy All students should identify the trespass and nuisance issues as well as the qualified defense of coming to the nuisance. Most will discuss injunctive relief as a remedy. Higher level students will discuss the distinction between trespass and nuisance.