UNIVERSITY OF KENTUCKY

COLLEGE OF LAW

TORTS I (805-01) Professor M.J. Davis

FINAL EXAMINATION

December 16, 1991

Instructions - Please Read Carefully

1. Do not turn to the next page until you are permitted to begin writing your answers.

2. This closed-book examination consists of five (5) short answer questions and two essay questions. The examination is worth a total of 100 points.

3. You will have three and one-half hours to finish this examination. In preparing your responses, you should budget your time based on the point value of each question. The questions are not equally weighted. I have indicated the potential points for each question and a suggested time (based on the point value) to allow for completion of the examination in three and one-half hours.

4. Write all your answers in blue books. You must write your examination number on the front of each blue book that you use and on this question sheet as well. Number sequentially the blue books that you use, and identify the question(s) being answered in each. Turn in all materials, including scrap paper and this examination packet.

5. Write legibly and in ink. Write only on every other line and only on one side of the blue book page. NOTE: Your answers to the Short Answer questions are limited to two blue book pages per question.

6. Please read each question completely before beginning to outline or write your answer. Answer the questions asked; do not waste your time with wild speculations for which neither the question nor the answer calls. Points will be deducted for irrelevant discussion. ORGANIZE YOUR ANSWER BEFORE WRITING.

7. Unless stated otherwise in the questions, you may assume the common law rules apply as they exist in a majority of jurisdictions. Make such use of the Restatement as you deem necessary. There is no need to discuss Kentucky law.

8. If you have any questions, ask.

GOOD LUCK!

1

SHORT ANSWER QUESTIONS

(7 points each, 35 total points -- 60 minutes)

Answer each of the following questions on two pages of a blue book only, remembering you may only write on every other line and on one side of a page:

1. Josephine Braxton recently sued your client, Dr. Golden, for injuries she sustained as a result of the stillbirth of her first child. During the pregnancy Dr. Golden diagnosed Josephine as 5~suffering from toxemia, a condition that entailed serious risk to mother and child. Dr. Golden did not provide Josephine with adequate treatment of her condition. A pregnant woman with toxemia has a 40 percent chance of delivering a normal baby if she has adequate care. Without adequate care, the chance of delivering a normal baby is reduced to 15 percent. Advise Dr. Golden of Mrs. Braxton's chances of recovering from him and the extent of his potential liability.

2. Explain the following quotation. Discuss whether you agree with it and why:

" Neither blanket permission nor blanket prohibition of deadly force to protect property interests is likely to be the rule of liability that minimizes the relevant costs. What is needed is a standard of reasonableness that permits the courts to weigh such considerations as the value of the property at stake, its location (which bears not only on the diff iculty of protecting it by other means but also on the likelihood of innocent trespass), what kind of warning was given, the deadliness of the device (there is no reason to recognize a privilege to kill when adequate protection can be assured by a device that only wounds), the character of the conflicting activities, the trespasser's care or negligence, and the cost of avoiding interference by other means (including storing the property elsewhere)."

3. Plaintiff met Defendant at a party hosted by mutual acquaintances. On their third date they went out for dinner and drinks; afterwards, they returned to Defendant's apartment where they had unprotected sex. Some weeks thereafter, Plaintiff was diagnosed as having genital herpes. Enraged, he went to Defendant's place and confronted her. She admitted that she had known that she had herpes but that she had been in remission for several months so that she thought that she presented no real risk to him. Assuming you can prove that Plaintiff contracted the herpes from Defendant, how would you evaluate his chances of recovering damages from Defendant?

4. Two 13-year old girls consummated an apparent suicide pact. Mr. Payne, the father of one of the girls, has come to you to pursue an action against the local Board of Education for the negligence of two school counselors. According to Mr. Payne, the counselors failed to inform the parents of suicidal statements attributed to the girls by fellow students. Advise Mr. Payne whether in your considered opinion there are any theories of liability on behalf of the estate which may be successful.

5. The Frankfort Mint has retained you to defend it's employee, Lucas Large, in a suit recently brought against him by another employee, Stanley Slacker. Large is a shift supervisor and Slacker is an assembly worker on Large's shift. Large, after repeated efforts to motivate Slacker to be more productive, approached Slacker, from behind, one afternoon as Slacker was nodding of f on the line. Large, who is in fact quite large, tapped Slacker on the shoulder, vigorously and repeatedly, telling him to wake up and get busy. Slacker crumbled to the floor in apparent pain. Large pulled Slacker up off the floor, dragged him by the arm to the stock room, and told him to quit complaining and get to work stacking the crates of Persion Gulf War Chess sets ready for shipment. Upon leaving the stock room, Large inadvertently locked the door behind him. The day concluded without incident. Thereafter, Slacker brought suit for his injuries. Advise the Mint of the bases for Slacker's suit and if it (the Mint) has potential liability.

ESSAY QUESTION ONE -- 50 POINTS

(1 and 3/4 hours)

On a Sunday morning in June, Sherry Franklin was on her way to visit her family in Oakton, Nirvana. Sherry is a licensed pilot, owns her own twin-engine plane and was flying to visit her family. Sherry only recently received her license, having failed the test twice. This will be the first time she has flown to visit her family.

Sherry properly inspected the plane before take-off, as required by Federal Aviation Regulations (FARs)1 and found no maintenance or repair needs. Sherry's plane is only a little over one year old and in good shape. It needs to be inspected by the federal authorities, however. Sherry plans to get around to that soon.

Before taking off, Sherry obtained a preflight weather briefing (also required by the FARS) which indicated a line of thunderstorms moving rapidly from the northwest to the southeast. It appeared that the storms were going to pass slightly north of the flight path Sherry had to take to get to Oakton. Sherry knows how unpredictable thunderstorms can be but Oakton is only one hour by air from Pleasantville (where Sherry lives) and the storm system was about one and one-half hours distant. Sherry decided to make the trip in spite of the possibility of bad weather.

As Sherry approached the halfway point to Oakton, she encountered heavy rain and moderate turbulence, leading her to believe the weather report she had obtained was not quite accurate. She could have obtained another weather brief mg at this point from nearby podunk Airport but did not. Her colleagues at the State pilots Association had told her that weather brief ings from podunk were generally unreliable and no one uses them. Had she contacted podunk, she would have been advised that the storm system had changed course and was moving directly into her flight path to Oakton. Sherry did not know that podunk had recently acquired a state~of~the~art weather tracking system.

The rain and turbulence continued unchanged until Sherry reached Oakton. As Sherry began her approach to the Oakton airport, the turbulence became severe and the rain intense. Sherry tried to control the plane during the landing as best she could but was unnerved by the lightening and thunder. The plane ran off the end of the runway, crashing into an embankment.

The plane slammed into the embankment with such force that it jarred a nearby utility pole sufficiently to cause the high voltage wires to break free, throwing sparks and live wires everywhere. The utility pole was close enough to the airport terminal building, and the wind velocity was 50 strong, that Mrs. Wilkins, who was at the airport to pick up her husband, was 5seriously burned by the loose wires as she ~ exiting the terminal building. In addition to her burns, Mrs. Wilkins has been diagnosed as having a rare form of skin cancer, generally thought to result from electric shock burns.

As it happens, the airport terminal operator, Mr. Lorenzo, had failed to maintain the utility pole. Its foundation was decaying and the power line connections needed repair. The airport had been operating at a loss for some time and Lorenzo had decided to forego the repairs until he had some extra cash.

Several hours later that afternoon, young (13 years old) Putney and some friends were looking for something to do when they heard about the airplane wreck at the Oakton airport. Putney and the others rushed over to the airport, climbed through a hole in the fence near the wreckage, and proceeded to scavenge around the airplane. All of a sudden, the weakened utility pole came crashing down upon young Putney, causing permanent disabling injuries.

Please evaluate all the possible negligence theories of recovery available to Mrs. Wilkins and Putney. Please also consider the applicability, if any, of the following Federal Aviation Regulations (FARs) and Nirvana statutes:

FAR 91.3: Air~lane Registration--Private Airplanes:

No privately-owned airplane shall be flown without a valid inspection certificate. A violation of this Regulation shall be punishable by (a) a fine of not more than $1000; and (b) immediate suspension of the operators license of the owner of such airplane.

Nir.Rev.Stat. 25-688: Operation of Airport Terminals:

It shall be a misdemeanor, punishable by a fine of not more than $2000, to fail to adequately maintain, inspect, and repair all power generating and transmission equipment in and around Airport Terminals in this State, to insure the safe transportation of the flying public.

ESSAY QUESTION THREE --15 POINTS

(45 minutes)

Oliver Wendell Holmes, in The Common Law~ said:

. . [A)ny legal standard must, in theory, be capable of being known. When a man has to pay damages, he is supposed to have broken the law, and he is further supposed to have known what the law was.

If, now the ordinary liabilities in tort arise from failure to comply with fixed and uniform standards of external conduct, which every man is presumed and required to know, it is obvious that it ought to be possible, sooner or later, to formulate these standards at least to some extent, and that to do so must at last be the business of the court. It is equally clear that the featureless generality, that the defendant was bound to use such care as a prudent man would do under the circumstances, ought to be continually giving place to the specific one, that he was bound to use this or that precaution under these or those circumstances.

We have considered throughout this course the functions of judge and jury. Is it possible to devise criteria that would translate Holmes's position into manageable guidelines for the court and thus re-allocate those functions? Evaluate this possibility, drawing upon examples from our study of the operation of the tort liability system. Include in your response an analysis of the advisability of such a reallocation and whether it is compatible with the goals of the law of torts.