UNIVERSITY OF KENTUCKY
COLLEGE OF LAW

Examination No.

TORTS I (805-02) Prof. M.P. Healy
December 5, 1990 Room 21

FINAL EXAMINATION

INSTRUCTIONS

This closed-book examination consists of three essay
questions, one of which is in two parts. The three questions
are worth a total of 200 points. You will have four hours to
prepare answers to these questions. In answering the questions,
you should budget your time based on the point value of each
question, because the questions are not equally weighted. For
each question, I have indicated the potential points and a
suggested time (based on the point value) to allow for
completion of the examination in four hours.

You must write your examination number on the front of each
blue book that you use. Please write your examination number on
this question sheet as well. Number sequentially the blue books
that you use. Turn in all materials -- this examination packet
and all blue books, including blue books used for scrap paper ---
at the end of the examination period or when you have completed
the examination, whichever is earlier.

PLEASE READ EACH QUESTION COMPLETELY BEFORE BEGINNING T0
OUTLINE OR WRITE YOUR ANSWER. ANSWER THE PARTICULAR QUESTION
THAT IS ASKED. WRITE YOUR ANSWERS LEGIBLY: WRITE ONLY ON EVERY
OTHER LINE AND WRITE ONLY ON ONE SIDE OF THE BLUE BOOK PAGE.
There is no need to discuss Kentucky law in response to any
question. Unless otherwise stated, assume that the common law
rules apply. DO NOT WASTE YOUR TIME WITH WILD SPECULATIONS FOR
WHICH NEITHER THE QUESTION NOR THE ANSWER CALLS.

If you have any questions, ask me.

DO NOT TURN THIS PAGE
OR BEGIN THIS EXAMINATION
UNTIL YOU ARE TOLD YOU MAY DO SO

GOOD LUCK!

- 1 -

QUESTION I (100 points -- 120 minutes)

Audrey was enjoying a delightful walk on a beautiful, clear
spring day in a residential area of a large city, when suddenly
everything changed. At about 3:00 pm, Audrey was walking along
the sidewalk and was struck by a bullet, which wounded her
shoulder The bullet had been fired by Cynthia in the direction
of Zack.

Cynthia, an elderly woman homeowner, lived alone in her home
and was aware of an increase in crime in the city. She also
knew that elderly people living alone were often subject to
violent crime. Indeed, she was told this specifically when
several friends gave her a hand gun for protection. Zack was a
middle-aged, homeless man, who had been going door to door
soliciting handouts. Zack had knocked on Cynthia's door twice
earlier that day; each time, Cynthia had refused Zack's requests
for money. On the second visit at about noon, Zack had told
Cynthia that he would return again later in the day and that he
expected Cynthia to give him enough money to make his return
trip worth while. Zack returned that third time at about 3:00
pm and, as he was walking toward Cynthia's door, Cynthia
appeared with a gun in hand. Cynthia stated that she had
nothing for him and that he should leave. She said she was
serious and pointed and shot the gun in Zack's general direction
as a warning. At that point, Audrey was walking some distance
away down the sidewalk on the other side of the street. Audrey
heard what she thought was a loud backfire, and then felt the
pain of the gun shot wound to her shoulder. She fell to the
ground.

David, who was returning in his car from an organizational
meeting for a local chapter of Greenpeace, saw Audrey lying
injured on the sidewalk. David pulled over the car and ran over
to Audrey, who asked him to call an ambulance. David said there
was no public phone nearby and told Audrey he knew the way to
the hospital. Despite another request by Audrey to call an
ambulance, David picked Audrey up; Audrey then lost
consciousness as a result of the shock of the wound. David, who
had no training or experience in emergency medical techniques,
carried Audrey to his car, placed her in it, and proceeded in
the direction of the hospital.

Although David was driving within the city's geographic
limits, he drove the car at 45 miles per hour down Main Street
with his bright lights on. State law prescribed a 35 mile per
hour speed limit for driving within city limits and a city
ordinance prohibited driving with bright lights within the
city. David was approaching the intersection of Main Street and
First Street where the traffic signal was a flashing yellow
light (i.e.; exercise caution). The traffic signal for vehicles
on First Street was a flashing red light (i.e., full stop).

- 2 -

Betty had just alighted at the corner of Main and First from
a bus, which was travelling down Main in the same direction as
David. Betty wanted to cross Main Street and so, after exiting, -
she walked the few steps to the crosswalk at the corner. -She
made certain that the bus was not moving forward and proceeded
into the crosswalk. Betty became visible to David just as David
was coming alongside the bus.

David slammed on his brakes and turned sharply left to avoid
striking Betty. His car just missed Betty, but skidded and
collided with a vehicle making a full stop on First Street. The
impact of this collision broke Audrey's back and Audrey lost the
use of her limbs.

Four years previously, Betty had been quite traumatized when
her child was killed in a car accident. As a result of her near
accident with David, Betty suffered emotionally. She was often
unable to sleep, was often nauseous, and, when she was able to
sleep, had vivid nightmares involving ghastly auto accidents.

PART A (85 points): Audrey brings an action against Betty,
Cynthia, and David, asserting negligence and intentional tort
theories in support of her claim for damages.

Betty brings an action against David, asserting a claim of
negligence.

Discuss the specific claims that Audrey and Betty will make
in their lawsuits, the defenses available to the claims that
will be raised, and the likely scope of each defendant's
liability, if liability is imposed. REMEMBER THAT FOR THIS PART
OF THE QUESTION ALL COMMON LAW DOCTRINES APPLY.

PART B (15 points): Assume that the supreme court of the
state in which these events occurred has adopted a pure
comparative negligence system. What effect, if any, will
application of this comparative negligence scheme have on the
likelihood that Audrey and Betty will be able to recover, as
well as on the amount that each may recover from each defendant.
- 3 -

QUESTION II (70 points -- 80 minutes)

Martha Jordan, a partner in the firm where you work, tells
you that the firm has agreed to represent James Patterson'on a
matter that is summarized below.

Acme, Inc., is a firm involved in the transportation of
hazardous wastes. As part of this business, Acme, Inc., has
specially equipped the standard-sized trucks it uses to
transport large canisters filled with hazardous materials.
Bruce is a driver employed and trained by Acme, Inc., to
transport the wastes. MS. JORDAN WANTS YOU TO TAKE NOTE THAT,
UNDER WELL ACCEPTED PRECEDENT OF THIS HYPOTHETICAL STATE'S
SUPREME COURT, TRANSPORTATION OF HAZARDOUS WASTE IS NOT AN
ULTRAHAZARDOUS ACTIVITY REQUIRING THE IMPOSITION OF STRICT
LIABILITY . SHE TELLS YOU THAT YOU ARE TO IGNORE THE ISSUE OF
STRICT LIABILITY IN COMPLETING YOUR ASSIGNMENT. YOU ARE ALSO TO
ASSUME THAT BRUCE IS INSOLVENT, THAT ACME, INC., IS LIABLE FOR
ALL OF THE DAMAGES FOR WHICH BRUCE MAY BE RESPONSIBLE IN THIS
CASE, AND THAT A CLAIM AGAINST BRUCE IS NOT TO BE CONSIDERED OR
DISCUSSED IN YOUR ASSIGNMENT.

Throughout the day of June 16, 1988, there had been warnings
of tornado activity near the facility to which Acme, Inc., was
transporting hazardous wastes in a truck driven by Bruce. As
evening approached and Bruce came closer to the destination,
tornado warnings increased and there were reports of tornados
touching down and causing substantial damage throughout the
area. Bruce immediately contacted his home office, which
informed him that there was tornado activity in his immediate
vicinity. The office further instructed him to park the truck
at the earliest possible moment and wait out the storm. By this
time darkness had descended.

Bruce turned into the first available large driveway.
Although the driveway was large enough to accommodate the truck,
the truck did destroy the overhanging limbs of several rare
trees as it drove up the driveway to a clearing away from the
threat of flying debris. The trees, valued at $50,000,
subsequently died as a result of this damage to them. The
driveway, trees, and adjoining property were owned by James
Patterson (your client), who was away from his property
vacationing in the Florida keys.

Bruce stayed in the clearing all night and, by morning, the

threat of tornados had passed. He then checked the condition of
his truck, noticed nothing unusual, and prepared to depart. As
he was starting the engine, he heard a crashing sound, and saw
out of his sideview mirror that several large canisters of
hazardous wastes had fallen from the truck and were rolling

- 4 -

downhill in the direction of Patterson's house. Lying in the
path of the four imposing canisters that had fallen were several
modern sculptures owned by Patterson, who was an avid art
collector. By the time the canisters had come to a rest, they
had destroyed three works of art, for which Patterson had paid a
total of $1.2 million. Fortunately, the canisters did not leak,
60 that the damage they caused was limited to the art works that
were destroyed.

When Patterson learned several days later about these
events, he contacted the law firm of Clay and Dunster -- another
law firm in your city. Clay and Dunster had brought an action
against Acme, Inc., in November 1989 and had claimed in that
action that, as a result of the negligence of the defendant and
its employee, James Patterson's trees and art works had been
destroyed and that he had suffered damages of $1.25 million.
The investigation conducted by Clay and Dunster into the facts
disclosed only what was described in the previous paragraphs,
without any additional details. There is no reason to believe
that this investigation was in any way deficient.

Late this fall, the case went to trial and at the close of
the plaintiff's case, which presented the facts detailed above,
Acme, Inc., moved for a directed verdict. On November 29, 1990,
the trial court granted that motion, holding that there was no
evidence that either the destruction of the trees or the art
work was the result of negligence.

During the course of the litigation, Patterson became
increasingly dismayed by the work of the firm of Clay and
Dunster and decided to retain new counsel. He has now retained
your firm. He wants to know whether the trial court's decision
should be appealed and whether he has any other options in terms
of recovering his losses.

Ms. Jordan has therefore come to you and requested that you
prepare a memorandum (which need not be formal) responding to
these inquiries by Mr. Patterson.

Specifically, she wants you to assess, first, whether the
trial court decision was correct and, in particular, the
likelihood of success if the decision were appealed. She wants
you to assume that Patterson has not waived any possible grounds
for appealing the directed verdict.

Second, she wants you to consider whether there are any
additional claims that Patterson may have raised or might yet
raise to seek recovery for his losses. For any such claim or
claims, Ms. Jordan asks that you assess the likelihood of
recovering damages.

- 5 -

QUESTION III (30 points -- 40 minutes)

In December 1984, Jeffrey's mother, who was then 23 years
old and married, underwent a legal abortion. During this
procedure, Doctor B. -- then Jeffrey's mother's physician --
negligently perforated Jeffrey's mother's uterus. In June 1986,
Jeffrey's mother brought a malpractice action against Doctor B.,
alleging negligence in the performance of the abortion. This
action was settled in February 1990 by the payment of a
substantial sum to Jeffrey's mother.

Jeffrey was conceived in September 1988 by his mother and
her husband. After what was apparently a normal term pregnancy,
Jeffrey was born in June 1989. Subsequently, however, it became
clear that Jeffrey had been born brain damaged. Jeffrey filed a
complaint in spring 1990, alleging that, as a result of Dr. B.'s-
negligence in the performance of the 1984 abortion on his
mother, Jeffrey's development in the uterus was adversely
affected and he suffered brain damaged. The complaint seeks
damages for that injury, including the costs of extraordinary
medical care and the pain and suffering related tp the effects
of a diminished childhood.

Dr. B. moved to dismiss Jeffrey's complaint, alleging that
it failed to state a cause of action. The trial court granted
that motion in August 1990, stating that the complaint fails to
state a valid cause of action. There is no legal authority for
holding defendant liable to the plaintiff based on injuries
sustained by his mother several years before his conception."
Jeffrey has now appealed this decision to the state supreme
court.

You are a law clerk for a state supreme court judge. That
judge has instructed you to assume both that Doctor B. failed to
conform to the applicable standard of care in performing the
operation on Jeffrey's mother and that this negligence was the
cause in fact of the brain damage. The judge wants to rule that
Jeffrey's claim states a legally cognizable cause of action.
She has therefore asked you to prepare a memorandum that
presents the best argument in favor of liability that conforms
to the basic principles of negligence liability. She also wants
you to state whether you think her view that Jeffrey has stated
a cause of action is correct based on your understanding of tort
law.

TORTS

Fall 1990 Mr. Healy

PROBLEM 4

A was flying a kite in a brisk wind at a park adjacent
to B's house. The kite was above B's property when it suddenly
plunged straight down toward the ground, impacting with
electrical wires insalled and maintained by the Electric Company.
The kite ignited when, as a result of the impact, two wires with
worn insulation touched together. The insulation was worn
because the wires tended to rub together when it was windy. The
Electric Company was aware of this problem, but did not take any
action to correct it.

The flaming kite fell from the wires onto B's house,
which was thereby ignited. The fire then spread to C's detached
garage, which was adjacent to B's property. D, a ten-year-old
boy, was visiting C's son. D had been badly burned several years
before and was very afraid of fire. When he saw the nearby
garage on fire, D became frightened and jumped from the
second story window of C's house. D suffered serious injuries.

B, C and D bring actions against A and the Electric
Company seeking recovery for their injuries. Discuss why each
plaintiff should or should not recover from each defendant.