PL 301--Torts
In class tonight, Monday 12/9, I first distributed the take-home final that is due a week from tonight, and which is reproduced below. We then went over some aspects of the Maine Tort Claims Act, which was distributed last week. Finally, we began our discussion of product liability and Chapter 12. I went over one Maine case, Stanley v. Schiavi, 462 A.2d 1144 (Me., 1983). We discussed the St Germain case assigned for tonight. The assignment for next class, Wednesday 12/9 is to begin work on the final, and also to read the case of Walker v. GE, 968 F.2d 116 (1st Cir, 1992).
TAKE-HOME FINAL EXAM
Sol Goldman
INSTRUCTIONS: This exam is due by Monday, December 14, 2009 (11:59 pm). You should e-mail your exam to me at goldmans@husson.edu; you may attach it if you use a .doc format, but not if you use .docx or other formats. If in doubt, just copy and paste it into the e-mail. The exam should be written by yourself (no collaborative writing). You may, however, discuss ideas with other students prior to writing your individual answer (you can talk together, but don’t write together). There’s no need to repeat the questions in your exam-- just show me the answers.
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 and statutes that we have already discussed in class. The cases may include both the cases that were assigned for your reading, and cases that I went over 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, not a dropped-in collection of long quotations from court opinions and statutes. If you need more information in order to answer a question, state specifically what information is necessary, and precisely how it would impact your answer. (Do not worry about engaging in the unauthorized practice of law--that’sa problem for a different semester.)
If you have questions about what I am asking, you can e-mail me. Remember that you can consult the blog (www.goldmanhusson.blogspot.com) for the rundown of all the cases discussed in class.
SAMPLE QUESTION:
Bart and Lisa are brother and sister. One day, the two of them are leaving school together when the groundskeeper in the school, Willie, gets in his sports car and intentionally runs over Bart, killing him. Willie mistakenly thought that Bart was stealing toilet paper from the school supplies, and this was Willie’s way of teaching thieves a lesson. Although Lisa was standing right next to Bart when Willie ran Bart over, Lisa is hurt at all, except that she is terribly traumatized by the sight of Bart’s tragic death. The damage is all “inside” though, as r Lisa has not developed any nervous tics, loss of sleep, or other outward signs of the trauma. Lisa wants to know if she can successfully sue Willie for negligent infliction of emotional distress. Analyze her chances of success for this tort of negligent infliction of emotional distress.
SAMPLE ANSWER:
Under Ryder v. USAA General Indemnity Company, 2007 ME 146, 938 A.2d 4, Lisa would be able to recover for negligent infliction of emotional distress. Even though she has not developed objective symptomatology of the distress, as long as she suffered severe trauma, she meets the elements for bystander status under this tort. Ryder at ¶21.
1. You are quite happy to have landed your first interview for a paralegal job with a prominent law firm. During the interview, one of the people on the interview panel notes that you took a torts class in college, and asks who your teacher was. When you answer with the name of your teacher, you are shocked when the person says, “So, you got the stupid one. If ever there was a trashy torts class, it was his.” When you later relate this incident to your teacher, he smiles and, ever the teacher, asks you “So, how would you analyze whether there’s a good defamation case for me here?” What’s your answer?
2. You are pleasantly surprised to land that job, and you start right away. In light of your background in the law of torts, you are assigned to the civil litigation section. The first client that comes in the door is interested in suing a doctor for medical malpractice. She is quite sure that she will be able to show that her doctor was careless in treating her ailment, but she has fears that she will not be able to demonstrate that the doctor’s failings actually were the proximate cause of her injury, and she is worried that her own failure to follow the treatment plan may injure her lawsuit. The lawyers know that the client will need an explanation of the whole medical malpractice screening panel, and specifically its effect on the court trial, but they are reluctant to invest the time in giving that explanation to the client. Also they know that there’s a statute and a bunch of court cases, but they have trouble themselves keeping up with the statutory changes and the Law Court interpretations. So you are assigned to write out an explanation (with both statutory and case citations, of course) of what will happen if the Prelitigation Panel finds as the client expects: that her doctor was careless in treating her ailment, but that the doctor’s failing actually was not the proximate cause of her injury, and that the client was equally at fault as the doctor in causing the injury. When this case goes to an actual court trial, what will the trial jury be told about these findings of the medical malpractice screening panel?
3. The next case to which you are assigned puts a cage around your feelings of holiday cheer. It was not cheer that your client was feeling after her experience at the local Big Box store. Your client was peacefully shopping for gifts when a “Loss Prevention” employee of the store came up to her and said “Please come with me.” Your client was confused and embarrassed, and asked what she had done. The employee said that he wished to speak to her about an item that he had seen her put into her purse. She asked if she had to go with him and he replied that it would be the “right thing to do”. Afraid of more embarrassment, and wanting to do the right thing, she went with the employee to a room, where he asked her to wait while he got a second person to be present at the questioning. She asked if she could just leave and never come back, but the employee told her that waiting would be “the right thing” to do. So she waited. About 30 minutes later, the two employees came into the room, and then asked your client what she had put into her bag. She assured them that the only thing that she had put into her bag were the gloves that she was wearing when she entered the store. They asked her for permission to search her bag, which she gave. They found the gloves, but nothing suspicious. They apologized, and she left. Her first reaction was relief, but after getting home and thinking about what happened, she was angry at the way she had been treated; other shoppers had seen her being led off, and she was humiliated at being put in that situation. She wants to sue for the false imprisonment to which she feels that she was subjected. Advise her about what she needs to show, what the Big Box will probably argue in defense, and how you assess whether the case is a lock.
4. Next you are assigned a case which does little to restore your faith. The client is an adult woman who was recently sexually assaulted by a Roman Catholic Priest. She was alone with him in the confessional when he opened the door, reached out and touched her breasts. She wants to sue not only the Priest, but also the Bishop. This is because the Bishop had been previously informed that this Priest had engaged in this kind of behavior in the past, and the Bishop had simply moved the Priest around from diocese to diocese. Your client wants to know specifically whether the Bishop will be protected because of the separation of church and state, and (assuming that she can get past the church-state hurdle) what causes of action might work against the Bishop, and what causes of action might be barred.
5. You’re wondering if the tales of trouble will ever let you raise a toast to the holiday. The final case raises that question in one sense. It involves a consideration of whether a client’s previous lawyer may have committed malpractice in your new client’s products liability and negligence case. She is interested in suing her lawyer in an unsuccessful product liability and negligence lawsuit that she brought and lost against a toaster manufacturer.
Your client had had for a toaster for almost two years. The toaster was supposed to pop the toast up when it was done, and to turn its heating elements off when that happened. One day, your client was in a hurry, and forgot about the toast that she had put into the toaster. This would not have been a big problem (just cold toast when she got home), if the toaster had worked as it was supposed to. But the toaster did not work as it was supposed to. It did not shut off, the toast caught on fire, and the fire spread and burnt the client’s house down. She then sued the manufacturer for putting an unreasonably dangerous, defective toaster on the market, as well as for a traditional negligence cause of action. The manufacturer, though, brought in an expert who testified that the toaster shut-off mechanism had simply worn out. “Things wear out”, he testified. The trial attorney failed to ask the expert any questions about how long the shut-off mechanism should have lasted, whether there were better mechanisms on the market, or how expensive they would have been. The lawyer also did not bring in his own expert, since his theory was that any toaster that burns a house down is unreasonably dangerous.
The lawyer also went along with the judge when the judge said that he was just going to instruct the jury once that the plaintiff must prove that the toaster was defectively designed, exposing the user to an unreasonable risk of harm. That instruction, explained the judge, should cover both the negligence and the product liability claims, and thus the single instruction would reduce juror confusion. The jury ruled against your client on both claims.
Your client says that she knows about product liability, and that she doesn’t need to prove, for the product liability case, that the manufacturer was negligent in designing or manufacturing the toaster--only that the product was unreasonably dangerous. She therefore thinks that the simplified jury instruction should have been objected to. And she thinks that the lawyer should have asked those questions of the manufacturer’s expert, because they go to whether the toster was defective and unreasonably dangerous. She thinks that her lawyer screwed up the case big time, and that now he is toast. Did the client’s trial lawyer commit malpractice by failing to ask those questions of the expert, and by failing to object to the jury instruction given?
