PROF. JAMES BOYLE TORTS FINAL EXAM FALL 1997

You are bound by the Honor Code not to discuss this exam with any other person.

This is an open book, take-home exam. You may use any material you wish -- provided you do not discuss the exam with anyone. however I would strongly urge you to confine yourself to the casebook, (and White's History of American Tort law, if you wish) any Xeroxed materials that I distributed to you, your class-notes, and any student-generated outline that you participated in creating. Commercial outlines, nutshells, commercial case-briefs or treatises are likely to be misleading and to miss many of the issues we have focused on in this course. If you quote directly from any article or book in or out of the materials, you must identify the source. Blue-booking is not required, just acknowledgement.

THE WORD LIMIT IS 3500 WORDS. WHEN YOU FINISH YOUR EXAM, COUNT THE WORDS AND WRITE THE TOTAL NUMBER OF WORDS AFTER THE LAST QUESTION, SIGNING YOUR BLIND GRADE NUMBER UNDERNEATH. THE METHOD OF ENFORCEMENT IS A RANDOM SPOT CHECK WITH A STRICT LIABILITY PENALTY FOR PAPERS THAT VIOLATE THE WORD LIMITS. THE EXAM CAN BE COMPLETED IN FEWER WORDS YOU MUST HAND YOUR EXAM IN -- BETWEEN 8:45 AND 9 AM IN ROOM 602 ON FRIDAY December 12TH. TRAFFIC JAMS AND PRINTER FAILURES ARE NOT ACCEPTABLE EXCUSES. PRINT OUT YOUR EXAM AS YOU GO. KEEP A COPY. COMPUTER DISKS WILL NOT BE ACCEPTED.

I DON'T ANSWER QUESTIONS ABOUT THE EXAM. IF YOU FEEL THE NEED TO ASSUME SOMETHING EXPLAIN WHAT AND WHY. KEEP YOUR ASSUMPTIONS WITHIN THE SPIRIT OF THE QUESTION.

QUESTIONS ARE FOLLOWED BY A SUGGESTED NUMBER OF WORDS. THE POINTS FOR THAT QUESTION WILL BE PROPORTIONAL TO THE NUMBER OF WORDS ALLOCATED. YOU MUST ANSWER ALL OF QUESTION 1 & 2 AND EITHER QUESTION 3. A.) OR QUESTION 3. B.)

USE YOUR BLIND GRADING NUMBER, NOT YOUR NAME OR SOCIAL SECURITY NUMBER. PUT THE BLIND GRADING NUMBER ON EACH PAGE OF THE EXAM.

Good Luck!

You must Answer all of Question 1.), all of Question 2.). and either question 3.a)

or question 3.b).

1.) Vitriol, Inc. is a company that specializes in the development of extremely potent acids for a variety of industrial uses. Their best known product, "Melt," is capable of eating its way through almost any substance -- steel, titanium, stone -- in a matter of minutes. Melt has a number of uses but it is best known as a safer alternative to explosives in demolition. Because it adheres "stickily" to any surface to which it is applied, Melt can literally be painted on, enabling it to do its work with incredible precision. Because it is so corrosive, Melt can only be stored in bottles made of a special plastic called Hexene that Vitriol developed through a closely guarded and highly secret research program. Unwilling to allow its competitors an opportunity to examine the empty Hexene bottles, and thereby to gain an insight into the chemical composition of Hexene, Vitriol insists that all of its customers must return the bottles after all of the Melt has been consumed, charges them a monthly fee for the use of the bottles and stipulates, among the many disclaimers in the Melt sales contract, that failure to return the empty bottles will result in a substantial financial penalty. As an acid, Melt is covered by the Federal Acid Regulation Act (FARA). FARA provides, in part: "FARA supercedes all Federal or state regulation of the labelling, composition, safety and storage of acids. Manufacturers complying with FARA's requirements on labelling shall not be required to include any other labelling information with respect to product safety." Melt is correctly labelled under the FARA, with a warning that includes the following injunction "Acids are dangerous. They should be handled with care and kept in their original containers; attempts to transfer them from one container to another can easily result in splashes or spills."

Cleese's Solvent Demolition Inc. specialises in the demolition and removal of metal beams from within existing structures, using a variety of extremely potent acids. Cleese Inc. uses Melt in all of its trickiest demolition jobs, particularly those that would be even more dangerous if explosives were used. Mr. Cleese is a somewhat absent-minded fellow and after he finished his last order of Melt, he somehow mislaid the empty Hexene bottle. Wishing to avoid the substantial penalty that would result if he failed to return the empty bottle, Mr. Cleese simply poured his new consignment of Melt into an empty glass bottle of the type used to store other corrosive substances. He then returned the new Hexene bottle to Vitriol as if it were the old one. His plan is to keep doing this; providing he keeps ordering Melt, he imagines, the company need never know of the missing bottle. Mindful of the warning on the container, he was careful to wear protective clothes when decanting the acid from one bottle to another, and to use extraordinary care to avoid splashes or spills. The transfer went off without a hitch. Unknown to Mr. Cleese, however, the Melt began slowly to dissolve the walls of its bottle.

Mr. Cleese has been hired by Americard University, located in the State of Confusion, to supervise the destruction and removal of a series of steel girders inside its law school. Melt is ideal for this task. Because he is only licensed to act as a demolition supervisor in the State of Confusion, Mr. Cleese provides, for a flat fee, all of the necessary supplies to his clients and their own workers then perform the necessary work. Everything seemed to go smoothly. Mr. Cleese provided the glass bottle of Melt to Americard, the university's workers painted it on, the girders dissolved and Mr. Cleese supervised their removal. In a single day, the job was done. Unknown to all, however, the Melt had been contaminated by glass dissolving from the inside of the bottle in which it was stored. Because Melt was a relatively new product, no-one knew that Melt, when contaminated by glass residue, produces a highly corrosive, invisible gas. This gas had coated the inside of Americard Law's elevator shaft and -- little by little -- was eating away at the steel hawsers holding the elevator. Several years later, the hawsers gave way and the elevator plummeted six stories, killing all of the students inside -- and apparently sending AU Law application statistics into a slide from which they never recovered, to the great sadness of the Dean.

A.) You are Americard University Law School's lawyer and you have been asked to outline the possible causes of action that Americard would have. During your discussion, of course, you should explain who Americard might sue and for what, any facts that would be relevant, the likelihood and extent of a remedy and the arguments that you think would convince a court. In a noble gesture, Americard has offered to provide legal representation to the families of the deceased law students. In the course of your analysis, you should also indicate briefly the claims that the families of the law students might have, particularly if the possible causes of action or likelihood of success differs from that of Americard U. (You should assume for the purposes of the answer that there are no conflict of interest problems in advising both parties.) (50 points.) Suggested length about 1750 words

AND

B.) Assume that the Product Liability Reform Bill, S. 648, (distributed to you as a handout) is now law. Briefly lay out all of the significant ways in which this would change the analysis you gave in part A.) of this question. If the interpretation of the statute is in doubt, explain what facts would be relevant and what arguments you would make to a court.

(10 points) Suggested length about 350 words

60 points total -- Suggested total length for 1.a.) and b.) 2100 words

2.) As an area of legal doctrine, intentional torts depends for its coherence on the following components: there must be an "act," it must be "intentional" and it must infringe one of the plaintiff's "legally protected interests." Yet the law of intentional torts has no coherent conception of what counts as "an act," what makes it "intentional" and which interests are "legally protected."

Discuss with reference to Southern Counties vs. RKO, Moore v. Regents, I.N.S. vs. Associated Press, and any other cases you choose.

15 points -- suggested length about 525 words

OVER

3.) Answer either question a.) or question b.)

a.) Tort law frequently presents us with a choice between a negligence and a strict liability standard, both on the small scale of the individual case and the large scale of an entire area of doctrine or moment in legal history. It also presents us with a choice between an "offering price" and an "asking price" valuation. Select one example of a case, area of doctrine, or moment of history that presents the former choice and one example of a case or area of doctrine or moment of history, which presents the latter. What do you think is the best kind of explanation for the actual choices the courts made in each area? Is the explanation the same in both cases? If not, why not?

25 points total -- Suggested length about 875 words

or

3. b.) You are Oliver Wendell Holmes, recently found, miraculously preserved like Rip van Winkle, in Langdell law library. Awakening, you find that generations of eager law students have been reading your work. Give your opinion of the following two doctrines -- section 826 of the Restatement (Second) (Epstein page 688) and the incomplete privilege of necessity in intentional tort. In your answer, you must rely on your own past writings and decisions (as discussed in this course or its materials) to explain your reasoning. You may also refer to the writings of more recent scholars discussed in the course, either to support your opinions or to point out your reasons for disagreement..

25 points total -- Suggested length about 875 words

TOTAL POINTS FOR ALL QUESTIONS -- 100 POINTS

MAXIMUM TOTAL WORDS FOR ALL QUESTIONS -- 3500 WORDS

EXAMS OVER THE WORD LIMIT WILL HAVE THEIR GRADES REDUCED.

Good Luck!