PL 301--Torts
In class today, Wednesday 10/21, I first distributed the take-home exam, which is given below. We spent the rest of the class going over the Carter v. Williams case, and its many issues. We did not get to the previously assigned case of Ryder v. USAA General Indemnity, so we will discuss that case next Monday. The correct citation to the Ryder case is 2007 ME 146. The assignment for Monday 10/26 is to review the Ryder case, and to begin work on the exam.
PL 301 TAKE-HOME EXAM #1 OCTOBER 21, 2009 Sol Goldman
THIS EXAM IS DUE AT THE BEGINNING OF CLASS ON WEDNESDAY, OCTOBER 28
You have enjoyed your torts class thus far, and the part of it that you enjoy the most has been thinking about how to avoid problems. You have decided to set yourself up in a small business, “AVOIDANCE-R-US”, in which you give advice to clients about how to avoid common (or sometimes, not-so-common) problems that they encounter. (One problem that you don’t have to worry about is the prohibition against engaging in the unauthorized practice of law, because I say so.)
Anyway, people start coming in your door, and it’s your job to give them advice about their situation. All of the situations are governed by Maine law. You do not have to do any research for these questions--they are to be answered in accordance with the principles and cases that we have discussed in class. You need to cite the appropriate authority, to write good English, and to get to the point in answering the question. Use quotations only as necessary, and only in snippets--the writing is your own. (Speaking of which, work on your own.)
SAMPLE QUESTION:
Homer the Plow King has come to you with a question about how to limit his liability. Homer has just contracted with a Maine town to plow their road (a state aid highway). He knows (although of course he didn’t tell them) that he isn’t planning on doing much of a job--he’s a drunk, and drinking comes first. Anyway, he’s worried that he might get sued by a member of the traveling public if someone has an accident on the road that he’s failed to plow. (And he isn’t interested in advice that tells him to just do his job--that’s not the advice that he’s asking you for). What he wants to know is:
1) whether he might be liable to a member of the public who has an accident on a road that he was supposed to plow, but didn’t, and
2) whether it makes any difference to his potential liability whether he’s just contracted to do a single road, versus whether he had undertaken to plow all of the town’s roads. What’s your advice?
SAMPLE ANSWER:
1) Homer is probably is not liable in either case (one road or many). Alexander v. Mitchell, 2007 ME 108, 930 A2d. 1016, if read broadly, establishes that there is no liability on the snowplow contractor in this situation.
2) Part of the Alexander case, however, did leave a basis under which that case could be distinguished. The Law Court distinguished the previous case of Budzko v. One City Center, 2001 ME 37, 767 A2d. 310, in which there was liability for a property owner who failed to clear the snow. One thing that distinguished that case, according to the Alexander Court, was that there the responsibility for snow removal was “small and manageable”, in contrast to a snowplower “who is responsible for many such roads.” Alexander at ¶24. So Homer has less chance of liability if he is responsible for “many such roads” instead of just one.
1) Homer the Plow King has come to you with a question about his potential liability. Homer has just contracted with a Maine town to plow their road (a state aid highway). He knows (although of course he didn’t tell them) that he isn’t planning on doing much of a job--he’s a drunk, and drinking comes first. Anyway, he’s worried that he might get sued by a member of the traveling public if someone has an accident on the road that he’s failed to plow. Specifically, Homer is worried that he might end up getting into a situation like he did a few years ago. A homeowner had used a pickup plow to plow his driveway, and had pushed some snow from the driveway back into the road that Homer had cleared. Boy, didn’t that get Homer some mad. Homer was so mad, and so drunk, that he plowed the guy right in, including leaving a big pile of snow out into the road that Homer was responsible for. That guy didn’t drive out until Spring. But Homer is worried that he might get sued by a member of the traveling public if someone has an accident where he’s left a big pile of snow out into the road. What’s your advice?
2) Lionel Hutz has come to you with a question about his potential legal malpractice in a case in which he was representing a woman named Marge. Marge had hired Hutz to pursue a case against her doctor, Dr. Hibert . Marge sought Hibert’s help because she was experiencing severe neck pain. Hibert, without conducting any tests, diagnosed a neck strain brought about by too much hair, and he told Marge to go home and take some aspirin. As it turned out, though, Marge was experiencing a burst aneurysm which caused bleeding in her brain, and which almost killed her. Hutz was representing her in her medical malpractice lawsuit against Hibert. At trial, Hutz came up with a medical expert, who, in response to Hutz’s prepared questions, testified that it was negligent ( a breach of the standard of care) for Hibert to fail to do any tests on Marge, and that severe consequences were foreseeable if this problem is not properly diagnosed. Hutz thought that everything was going fine, until the judge decided that the case should not go to the jury, and that Marge loses. When Marge asked Hutz what had happened, he just shrugged his shoulders. Hutz can’t figure out what went wrong, and what he should do differently if he gets another client someday. What’s your advice?
3) Mr. Burns, the owner of a big company, is having a party for his workers. He is worried, though, that one of his (often drunk) workers might cause a car accident driving on the way to or from the party. Burns has enough worries about liability charged to him vicariously when the workers are on the job, and doesn’t want to be on the hook for their bad driving when they come to a party. So he has a number of questions about how to make sure that he is not on the hook for their bad driving:
a) Does it make any difference whether the party is at the plant, versus at a different place (more party-like)?
b) Does it make any difference whether the party is on a regular workday, as opposed to a non-workday?
c) Does it make any difference whether he pays the workers to show up? (He’s afraid that without some incentive, no one will show--unless...)
d) How about if he makes attendance mandatory, as opposed to voluntary?
e) What if he has them all use company vehicles to drive to and from the party?
4) An insurance company is having troubles and needs your help with some language in their policy. They put out an automobile insurance policy in which they cover “bodily injury”. The policy then defines “bodily injury” as “bodily harm, sickness, disease or death”. Naturally, like any insurance company, they want to take in money, but not pay claims. They have heard that their defining language may not be the best, though, and so they have come to you for an explanation of what might be wrong with their language (what might cause them to actually pay a claim), and how they might improve their language. They are looking for several language options to choose from. What proposals can you give them?
