Name________________________
VERSION B
THIRD EXAMINATION
LAW 3800
Dr. Edmonds
Spring Semester, 2012
This is a closed book examination. Any conversation or communication between students during
the Examination will be considered prima facie evidence of academic dishonesty.
Questions 1 and 2 are based upon the following facts. Ms. Palsgraf was waiting on a subway
platform. As a train began to leave the station a man carrying a package ran to catch it. Two
railroad employees attempted to pull and push the passenger onto the train. The passenger
dropped his package which contained illegal explosives and when the package hit the rails it
exploded. The force of the explosion knocked over some scales at the end of the platform where
Palsgraf was standing, injuring her. Palsgraf sued. Palsgraf v The Long Island Railroad Co, 248
N.Y. 339 (1928)
1.. Was the railroad held liable for the injuries to Ms. Palsgraf and why or why not?
a. No. Judge Cardozo ruled that the railroad employees were not negligent in the way
they handled the man with the package.
b. Yes. Judge Cardozo ruled that “but for” the railroad employees’ negligence, Plasgraf
would not have been hurt.
c. No, Judge Cardozo ruled that although the railroad employees were negligent, the
harm suffered by Palsgraf was not a foreseeable harm that would flow from the type of
negligence the railroad employees engaged in.
d. Yes, Judge Cardozo ruled that running a railroad was an ultra-hazardous activity.
2. In Palsgraf, Judge Cardozo established the two part test for causation in negligent tort that we
use today. The test is best described by which of the following?
a. A subjective test that turns on actual fact and is called “causation in fact”, and an
objective test called foreseeable harm that takes into account whether it was foreseeable
to the negligent party that this type of injury might result from their particular negligent
conduct.
b. An objective test that turns on actual fact and is called “causation in fact”, and a
subjective test called foreseeable harm that takes into account whether it was foreseeable
to the negligent party that this type of injury might result from their particular negligent
conduct.
c. Simple negligence and gross negligence.
d. Intentional negligence versus accidental negligence.
Questions 3 – 8 are based upon the following facts. J.C. Reed was arrested and lodged in a jail
cell. The police were aware that he was potentially suicidal and so they took away his street
clothes and dressed him in a paper suicide prevention gown. Reed successfully used the paper
gown to hang himself and his mother sued the police department for allegedly failing to monitor
J.C. while he was in his cell. She also sued the manufacturer of the gown claiming a breach of
warranty with regard to the suicide prevention gown alleging that the gown was defective
because it wasn’t made of a material that would tear if someone attempted to hang himself with
it.
3. Assume for this question only, that the state in which the jail was located had a statute that
required that potentially suicidal inmates be checked in their cells every 30 minutes for the
inmate’s safety. The jail records clearly showed that J.C. had gone one hour and 55 minutes
without being checked immediately before he was discovered to have hung himself. Which of
the following legal doctrines could J.C.’s mother best base her civil suit against the police?
a. Product liability based upon contract.
b. Tort liability based upon res ipsa locquitur.
c. Breach of contract based upon negligence per se.
d. Tort liability based upon negligence per se
e. Intentional tort.
4. Based upon your answer to the previous question, what would J.C.’s mother have to prove to
win her lawsuit against the police?
a. Duty, Breach, Causation and Injury.
b. Breach and Injury.
c. Causation and Injury.
d. That the conduct of the police was intentional.
5. Assume for this question only, the trial court determined that the running of a jail was a
traditional ultra- hazardous activity. Which of the following negligence standards would the
court then be obligated to apply to the determination of the case?
a. Traditional Strict Liability.
b. Consumer Product Strict Liability.
c. Gross Negligence.
d. Simple Negligence
e. None of the above.
J.C’s mother’s lawsuit against the manufacturer of the suicide gown is based upon her argument
that it was defective because it wasn’t made of a material that would tear if someone attempted
to hang himself with it.
6. Which of the following theories of negligent tort liability would best support her claim?
a. That a defect occurred in the manufacturing of the gown.
b. That there was a defect in labeling or warnings with regard to the gown.
c. That there was a defect in the design of the gown.
d. That the police intentionally put J.C. at risk.
The manufacturer of the gown files a summary judgment motion asking the court to dismiss the
portion of J.C.’s mother’s lawsuit that is against the manufacturer, arguing that J.C.’s mother has
no cause of action against the manufacturer because the manufacture did not contract with J.C.
nor did it sell him the gown.
7. Would the sale of the gown by the manufacturer to to the agency that operated the jail be
covered by the Uniform Commercial Code?
a. Yes.
b. No.
8. What element is the manufacturer claiming is missing in J.C.’s mother’s suit against the
manufacturer?
a. Fact based injury as in Cole vs. Quick.
b. Causation in fact.
c. Proximate cause.
d. Privity.
Questions 9 and 10 are based upon the following facts. Hughes Aircraft Company sells an
aircraft repair facility a rebuilt aircraft part. The part has a tag affixed to it that says “tested and
passed in accordance with FAA Standard 2.7.113”. The contract for the sale of the part has a
clause that says “Seller makes no express or implied warranties with regard to the sale of this
used and rebuilt aircraft part”.
9. Are these two documents in conflict according to the UCC?
a. Yes.
b. No
10. Has Hughes Aircraft Company made any warranty with regard to the part?
a. No, their disclaimer in the contract for the sale controls.
b. Yes, an express warranty under UCC Section 2-313.
c. Yes, an implied warranty under UCC Section 2-207.
d. No, everybody knows rebuilt parts don’t come with a warranty.
Questions 11 and 12 are based upon the following facts. Barry D. Live is a salesperson for Acme
Wholesale Jewelry. Barry calls upon one of Acme’s customers, Helen Waite, a retail jeweler
whose slogan is “If you want good jewelry, go to Helen Waite”. Barry introduces Helen to a new
line of imported gold necklaces that Acme is now selling. Barry gives Helen a case containing
one of each of the six necklaces in the line. Based upon the apparent finish and quality of the
necklaces, Helen places an order for a sizeable quantity of the necklaces. The contract for the
sale makes no mention of any warranty.
11. when the necklaces arrive, the necklaces appear to be OK but not nearly as well finished as
the ones Barry gave Helen. Helen objects and attempts to return the necklaces for credit. Barry
points out that Acme made no warranties. Who wins and why?
a. Barry; no express warranties were made.
b. Helen on a theory of implied warranty.
c. Helen on a theory of express warranty.
d. Barry; warranties must be in writing.
12. For this question only, assume Helen decides to accept the necklaces and sells several. Her
customers promptly return the necklaces to Helen, complaining that the necklaces turn their skin
green when worn and the connecting links are so soft that the necklaces pull apart on the first
wearing. Helen now attempts to return the necklaces to Acme but Acme refuses to take them
back pointing out to Helen that the necklaces were very cheap, and came with no warranty. Can
Helen successfully claim that Acme has breached a warranty under the UCC?
a. Yes, Acme has breach an implied warranty arising under UCC Section 2 – 314.
b. No, Acme made no express warranties.
c. Yes, Acme has breached an implied warranty of title.
d. None of the above.
Questions 13 – 15 are based upon the following facts. Ham R. Thumb is a home builder. He is
constructing several new homes for sale. He has heard that there is a new line of plastic water
pipe on the market that is inexpensive and easier to install than conventional water pipe. Ham
goes to Pipes R. Us (Pipes), a wholesale plumbing supply business that sells exclusively to
builders. Ham tells the manager (Knot So. Smart) at Pipes that Ham has heard about this new
product but knows nothing about it and asks if it is suitable for hot and cold water plumbing in
new residential construction within the City of Kalamazoo. Knot tells Ham that the new product
called Pex would work great in the homes Ham is building. Knot sells Ham a quantity of the pipe
and fittings and Ham commences to plumb all of his new homes with the stuff. No warranties
were discussed and none were given in writing.
When Ham asks the City of Kalamazoo Building Department for final approval of the
construction of his homes and permission to sell them to new home buyers the city refuses,
pointing out that Pex is not approved for use in residential construction under the Kalamazoo
City building code. Ham has no choice but to rip out the Pex and replace it with conventional
piping at considerable extra cost to Ham.
When Ham returns the Pex to Knot, Knot says he will refund Ham’s purchase money as a
goodwill gesture pointing out that Pipes made no warranty to Ham of any kind. Ham wants Pipes
to pay him the cost of tearing out the Pex and replacing it. Knot refuses.
13. Did Pipes actually make any warranty with regard to the sale of the Pex?
a. No, there was no mention of warranties.
b. Yes, an implied warranty under UCC Section 2 – 712.
c. Yes, an implied warranty under UCC Section 2 – 315.
14. If Ham sues Pipes for the costs Ham incurred in tearing out the Pex and replacing it how
should a court decide the issue of the extra costs and why?
a. Deny them; there is no legal basis for recovery unless they were addressed specifically
in a contract clause.
b. Award them as Incidental Damages related to a breach of an express warranty.
c. Award them as Consequential Damages arising from breach of an implied warranty.
d. Deny them as being punitive in nature.
15. What does the case of Hadley vs. Baxendale tell us about this situation?
a. That to be recoverable in this situation the additional costs of tearing out the Pex would
have to be foreseeable to Knot (and thus Pipes) when he sold the Pex for residential use.
b. That there is a two part test for causation in breach of warranty cases.
c. That an injury of this type must be based upon fact and not supposition as in this case.
d. None of the above.
Questions 16 and 17 are based upon the following facts. Ham R. Thumb is still building houses.
He has a house half completed. When he leaves for the night, he carefully locks up all the doors
to the new house under construction. Ham has yet to install the stairs that connect the first floor
with the basement. Kay Rear Felon (age 34) comes to the house at midnight and breaks into the
house by smashing a window and unlocking a door. While looking for tools and construction
material to steal, Kay falls into the open stairwell to the basement and is seriously injured. When
Kay is rescued from the basement, he retains an attorney and sues Ham accusing Ham of
negligence in not putting up a barricade around the open stairwell.
16. Does Ham owe a duty of care to Kay and why?
a. Yes, it is Ham’s duty to make the construction site safe at all times.
b. Yes, it was foreseeable that someone could fall into an open stairwell.
c. No, Kay is an adult trespasser.
d. Yes under the doctrine of caveat emptor.
e. Both a and d.
For this question only, assume that Ham gets into financial difficulty as the housing market goes
sour and abandons one of his houses under construction before it is half finished. Ham posts “No
Trespassing – Enter at Your Own Risk” signs on the property and on the half-finished house.
Niles Juve, a 13 year old boy who can read and write sees the signs but ignores them and goes
into the wide open unsecured house to explore. Niles falls down the same open stairwell and is
seriously injured. Niles parents sue Ham on Niles behalf alleging that Ham was negligent and
caused Niles injury.
17. How should the court rule and why?
a. For Niles; Ham has maintained an attractive nuisance.
b. For Ham; Niles is a trespasser.
c. For Ham; he put up the necessary signs.
d. Both b and c.
Questions 18 – 20 are based upon the following facts. Michelle, a sixteen year old girl and her
friend were out driving one evening. They came to a railroad crossing where the mechanical arm
had descended and the alarm bells and lights were operating. A Conrail train had broken down
200 feet from the crossing and close enough to cause the crossing gate, lights and bells to stay
activated. The Engineer and staff on the disabled train saw the problem and watched as a fast
passenger train going the other way roared through the crossing. They also saw that the heavy
traffic was beginning to ignore the signals and cross anyway. Instead of posting a flagman at the
crossing to warn motorists of oncoming trains, the Engineer and staff wander to the rear of their
train to attempt to fix the problem with the train. Michelle decided to do as the other drivers had
done, and drive around the crossing arm and across the tracks. Just as she did so, a freight train
entered the intersection and struck Michelle’s car. Both girls were killed. Michelle’s family sued
Conrail for negligently causing Michelle’s death. The Jury agreed. In addition, the Jury
concluded that Michelle was also negligent for driving around the gate and thus contributed to
her injuries.
18. For this question only, assume that the state in which this crash took place has a law that
states that if a plaintiff such as Michelle was negligent and as a result contributed to her own
injuries the plaintiff is prohibited from recovering damages from the defendant. What does the
law call such a rule?
a. Contributory Negligence.
b. The Last Clear Chance Doctrine.
c. The 50% Rule.
d. none of the above.
19. For this question only, assume that the state in which this crash took place has a law that
states that if a plaintiff such as Michelle was negligent and as a result contributed to her own
injuries, the jury must reduce plaintiff’s award by the percentage of plaintiff’s total injuries
caused by plaintiff’s negligence regardless of the amount of the reduction. What does the law
call such a rule?
a. Pure Comparative Negligence.
b. Pure Contributory Negligence.
c. Partial Comparative Negligence.
d. Partial Contributory Negligence.
e. None of the above.
20 For this question only, assume that the state in which this crash took place has a law that
states that if a plaintiff such as Michelle was negligent and as a result contributed more than 50%
to her own injuries plaintiff cannot recover damages from defendant. What does the law call such
a rule?
a. Pure Comparative Negligence.
b. Comparative Negligence with a 50% rule.
c. Contributory Negligence with a 50% rule.
d. The “plaintiff is out of luck” rule.
Questions 21 and 22 are based upon these facts. Sara N. Dippity is out walking in her local
central park one fine fall afternoon. Herman Moron, a psychopath, has climbed a tree with his
high powered rifle and scope. He decides to kill people at random. Herman shoots at Sara with
the intent to kill her. Did I mention that Sara has ear buds in and is listening to heavy metal at
high volume? Herman’s bullet misses Sara and embeds in a nearby tree. Sara is totally unaware
of the incident until told about it by the police who happen to witness the entire episode.
21. May Herman be prosecuted for criminal conduct?
a. Yes, he attempted to kill her.
b. No, Sara was completely unaware of Herman’s actions and thus not put in reasonable
fear.
22. Does Sara have a valid tort claim against Herman?
a. No.
b. Yes, for the tort of assault.
c. Yes, for the tort of battery.
d. both b and c.
Questions 23 - 25 are based upon these facts. Babble On is a talk radio host. To say he is a
conservative would be a gross understatement. Babble decides to go on a crusade against Joe
Nice Guy, a wealthy business owner who contributes money to private foundations that Babble
considers “liberal” and dangerous. A foundation that works to help those infected with
HIV/AIDS is one of Nice Guy’s favorite charities. Babble On calls Joe Nice Guy on Joe’s
private home telephone and in a one on one private dconversation accuses Joe of being infected
with HIV-AIDS because Joes has engaged in illicit and indiscriminate sex. Babble’s accusations
are false and baseless.
23. Can Joe Nice Guy sue Babble On, and if so for what tort?
a. Yes, for the tort of slander.
b. Yes, for the tort of slander per se
c. Yes, for the tort of libel.
d. Yes, for the tort of libel per se.
e. No.
Babble speaks to conservative fund raising dinner parties for big bucks. He tells one of his dinner
audiences that the only reason Joe Nice Guy donates money to help those infected with
HIV/AIDS is because Joe Nice Guy is himself, infected with HIV/AIDS due to his illicit sex life.
The allegation is completely false. Babble later defends his actions on his radio talk show
repeating his accusations, but pointing out that he was only repeating what had already been
published in a reputable conservative newspaper. Joe files a tort suit against Babble.
24. Has Babble raised a valid defense to Joe’s tort suit?
a. No.
b. Yes, Babble only repeated what was already said.
c. Yes, Joe’s cause of action is against the newspaper; they started the false story.
d. Both b and c.
25. What if any torts has Babble committed?
a. The torts of slander and defamation.
.
b. The tort of slander per se.
c. The tort of libel.
d. The tort of libel per se.
e Both b and d.