UNIVERSITY OF KENTUCKY COLLEGE OF LAW

SPRING 1992

TORTS II (806-01) Professor M.J. Davis

FINAL EXAMINATION

May 9, 1992

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 three parts. Part I contains ten (10) multiple choice questions worth three (3) points each for thirty (30) points. Part II consists of five (5) short answer questions worth five (5) points each for a total of twenty-five (25) points. Part III consists of one essay question worth thirty-five (35) points. The examination is worth a total of 90 points. Ten percent, or 10 points, of your final grade consists of points earned through a combination of class participation and the two graded assignments prepared during the semester.

3. You will have two 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.

4. Write your answers to Parts I and II on the examination booklet where indicated. For the short answer questions, write only in the space allotted. Write your answer to Part III in blue books. Write only on every other line and on one side of a blue book page. Number sequentially the blue books that you use for Part III. Turn in all materials, including scrap paper and this examination booklet. You must write your examination number on the front of each blue book that you use and on this examination booklet as well.

5. Write legibly and in ink.

6. Please read each question completely before beginning to outline or write your answer. Answer the questions asked. 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.'

PART II

Short Answer Questions

(Twenty-five points)

Below are five (5) short answer questions worth five (5) points each. Write your answer only 'in the space provided.

1. Peggy Marks went to Dr. Fields, a chiropractor, complaining of back pains. Dr. Fields gave her an x-ray before beginning treatment. He failed to ask Marks if she was pregnant. Unfortunately she was five (5) months pregnant and her child, Bobby, was born with serious birth defects as a result of exposure to the radiation. Can Bobby sue Dr. Fields for his injuries. Explain.

2. Robert Burns operates a sulphur mine on his land in the mountains of the state of Nirvana. It is the only sulphur mine in the area and employs over 100 people. The dust and odor from the mine are the heaviest in the summer, when nearby Mountain View Golf Resort is at its busiest. The Golf Resort only recently opened; it is the first of its kind in thispredominantly rural, economically depressed area. Explain the bases of liability on which the Golf Resort may pursue an action against Burns based on the annoying dust and odor and whether an injunction is likely.

3. A fire broke out on the fifth floor of the Ritz Hotel in Eastridge, Columbia, on March 10, 1992. It spread rapidly and 28 people were killed. Testimony at trial revealed the carpet had a tendency to ignite easily and did not self-extinguish, which contributed to the rapid spread of the fire. The Hotel purchased the carpet from The Carpet Mill ("The Mill") which in turn purchased the carpet fibers from Megacarpet Fiber Co. Megacarpet had advised The Mill of the characteristics of the fibers but the Hotel knew nothing about the flammability of the fibers. Megacarpet disclaimed all liability in its contract with The Mill except for liability to replace fibers which did not conform to strength or thickness specifications. Will Megacarpet be able to assert successfully the limitation of liability provision as a defense to the victims' families breach of warranty claims? Explain.

4. An article in the May 4, 1992 Lexington Herald-Leader described the current radio talk show host career of convicted Watergate burglar G. Gordon Liddy. Liddy apparently takes great delight in criticizing former White House counsel John Dean, calling him, among other things, "the weasel" and "that little canary stool pigeon." Liddy has stated in his talk show that Dean lied during the hearings and engineered the 1972 Watergate break-in for his own purposes. What standard of liability must Dean prove to succeed in his defamation action against Liddy? Explain.

5. A 43-year old executive of IBM is paralyzed from the waist down as a result of injuries sustained in a plane crash. The crash occurred as a result of the negligence of the airline. The executive was considered a "golden girl" and was believed to be an excellent candidate for the future CEO of IBM. Executives for computer companies are highly sought after and she could have gone anywhere. In fact, she was in the middle of negotiating a new compensation package and planning to leave if IBM did not make her an extremely lucrative offer to stay--of at least double her current annual salary. She is compensated partially with stock and bonuses based in part on the profitability of the company. In past years her stock options and bonuses have been worth about $150,000 per year. She makes $450,000 per year in salary. She had an expected working life of 40 years. Plaintiff is suing the airline seeking damages for, among other things, loss of future earning capacity and future income. Explain the method the jury will likely be instructed to use and the factors it will consider in calculating an award for the lost earning capacity and future income.

PART III

Essay Question

(Thirty-five points)

Answer the following essay question in blue books, on every other line and on one side of the page only. Please number the blue books in sequence.

Timmy Mitchell was two (2) years old at the time of his death by strangulation in a Bay-B-chair Model 105 on March 10, 1992. Timmy was at the baby sitter's, Monica Tucker's, seated in the high chair when he slipped underneath the tray table on the high chair and caught his head between the tray table and the seat back. Timmy strangled. At the time, Monica was tending to two other children in another part of the house.

Monica had purchased the Bay-B Chair Model 105 at a yard sale the month before. The high chair was manufactured in 1988 by Saturn Industries. The high chair came equipped with a restraint strap (seat belt) system that was difficult to operate and Monica cut the straps off after purchasing the chair. In addition, there was a one inch by two inch label on the back of the seat with the following language:

NEVER LEAVE CHILD UNATTENDED

ALWAYS USE RESTRAINT SYSTEM

SATURN PRODUCTS, ANYTOWN, USA

Monica, 35 years old, had been baby-sitting professionally for five (5) years and had used Saturn baby chairs before. She always used the tray table as the means of restraining children in the chairs. She complained that the children, as they ran or crawled by, would pull the straps when they were not in use, causing the chairs to tip over on top of the children, hurting them. Further, the straps were difficult to close.

The literature that accompanied new Bay-B-Chairs contained additional instructions, including a statement in the manual:

"Never leave child unattended--The tray is not to be used to restrain the child. Always use restraint straps." Monica did not have a copy of the manual because she bought the chair used."

Saturn Products had been aware since 1975 that at least 14 children had died the way Barry did. They had a name for this phenomenon: submarining. There was some debate among the manufacturers in the industry what caused submarining. Most in the industry claimed it was product misuse by the consumers. Saturn also knew that consumers were not using the restraint straps.

Additionally, there was an after-market product available called a Bronc-0-Saddle. This device, not sold by the manufacturers of high chairs, was placed on the seat of the high chair and tied to the back. It had a "horn" that protruded up between a child's legs much like the horn on the front of a horse saddle, preventing the child from sliding down. Baby chair manufacturers have been testing similar contoured seats to determine if one should be incorporated into the design of high chairs. They have been testing such seats since 1980. The Bronc-0-Saddle has been on the market since 1970. It costs $5.95.

Saturn Products began manufacturing a newer model high chair in 1990--the Snugmaster. The Snugmaster had a warning molded onto the top of the tray with language similar to that in the instruction manual. It also had a red "WARNING" notation at the top of the label on the back of the seat. The closure mechanism was also changed to operate easire but no contoured seat similar to the Bronc-0-Saddle was incorporated into the design.

John and Barbara Mitchell have filed suit against Saturn industries alleging wrongful death as a result of a defectively designed product. The Mitchell's have brought suit based on negligence and strict liability for defective design and inadequate warnings and/or instructions for use.

You are the clerk to Judge Davis who has asked for a bench memorandum addressing the following:

Explain the prima facie elements of plaintiff's case based on the theories of liability identified, the facts and expected testimony that will support those elements, and identify areas likely to be the subject of a motion for a directed verdict by the defendant at the close of all the evidence. (Remember: the standard on directed verdict is, after considering the evidence in the light most favorable to the plaintiffs, no reasonable jury could conclude the plaintiffs are entitled to recover and a verdict should be directed in favor of the defendant as a matter of law.)