In-Class Scratchpad
This page serves as a kind of blackboard/whiteboard for in-class instruction. I will use this page when it would be helpful for students to have text available outside of the slides that I am presenting.
April 17, 2023
Compensation Fund Exercise
You are a wise federal trial judge with experience managing multidistrict litigation for toxic harms. Policymakers are considering establishing a compensation fund for victims of toxic harms. You have been asked to advise the group that is drafting the proposal.
Here are some features of the current plan. To receive compensation, the plaintiff must prove that she was sufficiently exposed to a toxic substance such that the toxic substance could have caused her injury. If there are multiple possible defendants, the plaintiff is not required to prove which defendants are responsible for her injuries. The plaintiff is not required to prove that the defendant was at fault. The plaintiff can receive unlimited compensaton for medical expenses (including medical monitoring) in installments over time, but the plaintiff cannot be compensated for other losses. If the plaintiff receives compensation from this fund, the plaintiff is barred from pursuing any common law tort action related to the injury.
What are the strengths and weaknesses of this plan? What are your suggestions for revision?
April 3, 2023
Intentional Torts Exercise
You are a personal injury attorney in the state of Loyola. In Loyola, a protest and counter-protest over gun regulations began to get out of hand. Annie stood at the front lines of the protest arguing for assault weapon regulation, and Bob stood at the front lines of the counter-protest arguing for free assault weapons for public school teachers. The two protests began on opposite sides of city park but grew closer together over the course of the day and were now squaring off face-to-face. Annie started addressing Bob directly. “You think it’s worth it for kids to die so you can pretend you’re a real man? What are you compensating for, buddy? Huh? Wife left you? Maybe instead of buying so many guns, you should buy a gym membership, you fat piece of shit!” As she screamed at him, flecks of spit kept landing on Bob’s face. She pointed her index finger right between his eyes, inches from his face as she said, “No one is ever going to love you.”
Bob drew his SIG Sauer P365 pistol from its holster on his hip and pointed it at the ground by his feet. “Back up. Stop spitting on my face. And stop being so mean to me.” “Are you going to shoot me?” Annie asked. “If I have to.” Bob responded. “I’m calling the cops,” Annie said, and retreated back into the crowd.
Annie did not call the cops. But she did sue Bob for assault. Bob has now hired you as his attorney. Having never been sued before, Bob wants you to advise him on his legal options. Please consider any defenses Bob might raise, any intentional tort claims he might have against Annie, and any defenses she might be able to raise. As you advise Bob, be sure to inform him of how strong or weak these claims or defenses are and why. For the purposes of this question, do not consider any negligence or strict liability claims.
March 16, 2023
Products Liability Exercise Part 1
You are a junior associate at a plaintiff-side firm. A partner at the firm has brought you in to work on an interesting new case. The potential plaintiff, a nine-year-old boy named Augustus Gloop, choked on a hot dog during lunch in his elementary school cafeteria. The child survived — thanks to a gym teacher’s training in first aid and CPR — but suffered serious injuries. His family is now interested in suing Oscar Mayer Weiner, the company that produced this hot dog.
The partner at your firm doesn’t typically litigate products liability cases, so she wants you to catch her up to speed. She’d like you to sketch out arguments supporting a failure to warn claim, a design defect claim, and a manufacturing defect claim. For each claim, provide an example of a piece of evidence that would help our client win. And let her know which claims have the best chance of success. On the failure to warn claim, you should know that Oscar Mayer Weiner will seek protection from the “learned intermediary” doctrine as the company does inform elementary schools that hot dogs are a choking hazard.
Products Liability Exercise Part 2
You are a junior associate at a firm representing Oscar Mayer Weiner.
Same set of facts. A potential plaintiff, a nine-year-old boy named Augustus Gloop, choked on a hot dog during lunch in his elementary school cafeteria. The child survived — thanks to a gym teacher’s training in first aid and CPR — but suffered serious injuries. His family is now interested in suing Oscar Mayer Weiner, the company that produced this hot dog.
A partner at your firm would like you to sketch out arguments defending Oscar Mayer Weiner the plaintiff’s potential failure to warn claim, design defect claim, and manufacturing defect claim.
February 21, 2023
Defenses exercise
In the Vargas family’s home, a power strip manufactured by the Unreliable Breaker Company failed to go off during a temporary short circuit, starting a fire. The only person at home at the time was a napping one-year-old, Emily Vargas. Her babysitter had briefly left the home to take the family dog for a walk. Emily’s fifteen-year-old sister, Lynn Vargas, returned home from school to find a fire consuming the home. Seeing that Jennifer was down the street with the dog, Lynn raced inside, grabbed Emily and managed to get her out safely, but Lynn was burned in the process. Lynn and Emily’s father, Tito Vargas, then arrived home, saw that his daughters were safe, and ran into the house to try to save his pet parrot. He succeeded but also suffered burns in the process. Moments later Tatiana Vargas, Tito’s spouse, arrived home. Tatiana is your typical absentminded law professor. Deep in thought about the viability of assumption of risk as an absolute defense in a comparative negligence world, she didn’t notice the fire, walked in the front door, and was burned. At this point, the firefighters arrived on scene. A firefighter, Pat Murphy, ran into the house and rescued Tatiana, but he was also burned.
If Lynn, Tito, Tatiana, and Pat each sue the Unreliable Breaker Company for negligence, would there be any affirmative defenses that the company could assert? What would be the differences in the analysis of the applicability of those defenses to each plaintiff?
Version #1
You are an associate working at a firm that represents the Unreliable Breaker Company.
The state of Loyola (where this case takes place) takes a common law approach to tort defenses. Unlike most jurisdictions in the United States, Loyola is still a contributory negligence regime with joint-and-several liability. Assumption of risk is a complete defense.
Lynn, Tito, Tatiana, and Pat are each suing the Unreliable Breaker Company for negligence. A senior associate has asked you to write an email detailing any affirmative defenses that the company could assert against each plaintiff’s claim. The senior associate has specifically asked you to only address affirmative defenses at this time, so there’s no need to address whether the plaintiffs can prove the elements of duty, breach, causation, and a harm.
Version #2
You are an associate working at a plaintiff-side firm.
The state of Loyola (where this case takes place) takes a modern approach to tort defenses. Loyola is a “not as great as” comparative negligence regime with several liability. Assumption of risk is a complete defense for explicit and primary assumption of risk but not for secondary assumption of risk, where comparative fault suffices.
Your firm is considering representing Lynn, Tito, Tatiana, and Pat, who each want to sue the Unreliable Breaker Company for negligence. As the firm works on a contingency fee basis, we want to take on cases that are the easiest to win and we don’t want to take on cases that would cost the firm money. A senior associate has asked you to write an email detailing any affirmative defenses that the company could assert against each plaintiff’s claim. In your analysis, please describe which cases you think our firm should prioritize and which plaintiffs, if any, our firm should decline to represent based upon possible affirmative defenses. The senior associate has specifically asked you to only address affirmative defenses at this time, so there’s no need to address whether the plaintiffs can prove the elements of duty, breach, causation, and a harm.
February 2, 2023
In both exercises for today, you are a trial court judge in the state of Loyola.
Exercise #1
A chestnut tree from Tortfeasor Farms, the defendant in this case, fell over during a violent windstorm, crushing the roof of a car driving on the road beside the farm and injuring a passenger in the car, the plaintiff in this case. On this particular country road, the speed limit is thirty miles per hour. The driver of the car had been driving fifty miles per hour. If the driver had not been driving in excess of the speed limit, the car would not have been under the chestnut tree at the moment that it fell, and the plaintiff would not have been injured.
Tortfeasor farms seeks to dismiss the negligence case against it because the driver’s excessive speed was an intervening cause of the injury. How do you rule and why?
Exercise #2
While driving down a residential street, Sidney Greene looked down at her car’s display to skip forward on a podcast that she was listening to. When Greene’s attention returned to the road, she saw a pedestrian, Lamar Boyd, crossing a crosswalk about twenty feet ahead. Greene slammed on the brakes and swerved to the right side of the road where her car collided with a set of garbage cans that a local homeowner, Wilma Cooper, had set out for trash collection. As it turns out, there was no trash collection scheduled for that day. Cooper was tired of wheeling her trash can back and forth from the street each week, so she had decided to keep the trashcan at the curb. A local ordinance only allowed people to leave their trashcans in the street on trash collection day.
As a result of Greene’s collision with the trashcan, trash and debris flew across the road, including a banana peel, which landed in the crosswalk. Not seeing the banana peel, Lamar Boyd stepped on it, slipped, and broke his leg.
Boyd is now suing both Greene and Cooper.
Greene seeks to dismiss the case against her for two independent reasons:
- The trashcans that Cooper put out were an intervening cause of Boyd’s injuries
- Greene did not proximately cause Boyd’s injuries
Cooper seeks to dismiss the case against her for two independent reasons:
- Cooper did not breach a duty of care to Boyd
- Cooper did not proximately cause Boyd’s injuries
How do you rule and why?
January 24, 2023
Exercise #1
You are an attorney at a plaintiff’s side firm in the state of Loyola.
Luna Waters was driving her car and rolled to a stop at a red light. Just behind her on the road, Joseph Meyer was texting while driving and negligently rear-ended Waters’s car. Minutes later, another driver, Myla Morales, was lost in thought, awestruck by the idea that causation can never be directly observed but is always an inference vulnerable in some way to post hoc ergo propter hoc “since Y followed X, X must have caused Y,” and negligently rear-ended Meyer’s car, which struck Waters’s car a second time.
In one collision or the other, Waters sustained an injury to her neck. She doesn’t know which of the two accidents caused the injury. The doctors that treated her injury cannot determine whether it was the first or second impact that caused it.
Waters visits your office as a prospective client. She wants to know if she has a viable negligence claim against Meyer or Morales, who she should sue, and if she will win. Please advise her.
Exercise 2
Same initial fact pattern as the first exercise. Except now, in addition to being hit by Meyer and Morales, Waters was also hit by two other drivers who fled the scene.
In one of the four collisions, Waters sustained an injury to her neck. She doesn’t know which of the four accidents caused the injury. The doctors that treated her injury cannot determine which of the four impacts caused it.
Waters visits your office as a prospective client. She wants to know if she has a viable negligence claim against Meyer or Morales, who she should sue, and if she will win. Please advise her.
Exercise 3
You are an attorney at a plaintiff’s side firm in the state of Loyola.
A labor activist, Ayla Ross, comes to visit you in your office. She has been organizing workers at a slaughterhouse in the region. She’s learned that the slaughterhouse had been euthanizing chickens with a particular gas, BirdBeGone, for the many years. but stopped using the gas when it was taken off the market six months ago. The gas was banned by state authorities after emerging research indicated that human beings exposed to the gas could develop skin cancer and that the gas could induce miscarriages and result in severe birth defects.
Ross wants to talk with these workers about the possibility of suing the slaughterhouse for negligence. She is particularly interested in the possibility of a class action lawsuit so that the workers don’t need to litigate individual cases, but she knows that issues of causation can be challenging in toxic harm lawsuits.
For this question, assume that duty and breach can be proven. Please advise her on the most pertinent remaining issues.
Class 23 - November 10, 2022
Sample Exam Question
You are an appellate court panel in the state of Loyola. The facts of a case on appeal before you are as follows.
A patient had been diagnosed as legally blind and had stopped driving as a result. At a routine eye appointment, the patient’s optometrist told him that his vision had improved enough for him to drive again. The patient resumed driving and six weeks later crashed into a horse-drawn hay trailer, killing one passenger and injuring the other four.
The passengers have sued the optometrist, claiming medical malpractice.
Part A)
The optometrist motioned for summary judgment on the grounds that she had no duty to the plaintiffs. The trial judge denied the motion, and the optometrist now appeals the denial of the motion.
Write a majority opinion that affirms the lower court’s ruling and a dissenting opinion that would have overturned the lower court’s ruling.
It may be helpful to know that the Supreme Court of Loyola recently adopted both the holding and reasoning of the Tarasoff opinion regarding a psychiatrist’s duty to third parties.
Note: For the actual exam, you will have an appendix of legal rules that you are not expected to have memorized. Included in that appendix will be the Rowland factors, listed here:
Rowland v. Christian Factors:
(1) the foreseeability of harm to the injured party;
(2) the degree of certainty that the injured party suffered harm;
(3) the closeness of the connection between the defendant’s conduct and the injury suffered;
(4) the moral blame attached to the defendant’s conduct;
(5) the policy of preventing future harm;
(6) the extent of the burden to the defendant;
(7) the consequences to the community of imposing a duty to exercise care, with resulting potential liability.
Part B)
On remand, the case went to trial and expert witnesses testified for both the plaintiff and the defendant.
The plaintiff’s witness testified that the optometrist used a standard eye test and that the patient’s score on the test “barely” crossed the threshold into the range of scores that would permit someone to drive. The witness also testified that under similar circumstances she would “never” tell a patient that they could drive without performing more tests because it was “such a close call” and because the defendant had performed poorly on previous tests. On cross-examination, the witness conceded that no statutes or regulations required further tests and that her judgment was based on professional experience and not a particular medical text or guidebook that she could share with the court.
The defendant’s witness testified that, according to the test, the patient’s score was in the range of scores that would permit someone to drive. On cross-examination, the witness conceded that his sole income was providing expert witness testimony and that he had not practiced optometry or seen patients in over a decade.
The trial court judge instructed the jury that, “negligence is about fault” and that “the question is not whether the doctor’s judgment proved to be incorrect but whether the doctor made that judgment based on faulty reasons or practices.”
At the close of trial, the defendant motioned for a directed verdict. The motion was denied, and the jury returned a verdict for the defendant.
On appeal, the plaintiffs contend that the judge’s instructions to the jury were improper and that a new trial should be granted. The defendant contends that the judge’s instructions were proper and that even if the instructions were improper that the judge should have entered a directed verdict for the defendant.
Write a majority opinion that addresses both issues.
Class 18 - October 24, 2022
You are the law clerk to a Supreme Court justice in the state of Loyola. The justice wants to discuss with you a new case coming up on appeal. She shares with you the following history of the case so far:
The plaintiff, Adrianna Blackwell, sued the defendant, Dominic Pope, for negligence. Blackwell alleges that Pope negligently allowed gasoline to leak from an underground gasoline tank, contaminating the plaintiff’s well, which the plaintiff relied upon for drinking water and other household purposes.
The plaintiff’s home borders Dominic Pope’s property to the North and a state highway to the East. The well on the plaintiff’s property was equidistant to the site of the gasoline tank on Pope’s property and the state highway.
About ten years ago, Pope installed an underground gasoline tank and pump on his property. The tank was installed about one foot under the surface of the ground and was connected with the pump by pipes. Two months after the tank was installed, the plaintiff began to smell and taste gasoline in her drinking water. At trial, a number of witnesses testified that the water from the plaintiff’s well tasted of gasoline and could be lit on fire with a match. Prior to the gasoline tank being installed, no gasoline had ever been detected in the plaintiff’s well.
The defendant, Pope, had paid Andrew Huber, a professional gasoline tank installer, to install the tank for him. Evidence was introduced at trial to show that the tank was a new tank stamped with an inspection sticker (as required by law for quality control). The plumbing was completed by professional plumbers; the fittings were examined after being installed; and the pipes were checked each time that the tank was filled to ensure that no gasoline was leaking out through any fixtures on the tank or through the pump itself.
Russell Bollinger, the plaintiff’s mailperson, testified for the plaintiff that he had seen the tank being installed when out on his mail route. He testified, “It looked like an old outfit, rusty, had dirt on it, looked like they had taken it out of some place and installed it there without making changes on the fittings or retreading the pipes.” On cross-examination, he stated that “I was there just a few minutes. The tank was laying on top of the ground. I made no particular examination of that tank. When I went to the post office I glanced over and saw they were installing something. I saw the tank, looked at it a few seconds, I never went on the property. I don’t think I was there over a minute.”
Before intitiating the lawsuit, Blackwell brought up the issue with the defendant, Pope. He drank some water from her well and told her that it did not taste or smell of gasoline. To reassure her about the gasoline tank, he pointed to a meter on the tank and told Blackwell that the readings on the meter showed that no gasoline was leaking out. At trial, Pope admitted that the meter on the tank did no such thing. After meeting with the plaintiff, Pope called Huber, the tank installer, to ask about a potential leak. Huber assured the defendant that the tank had been installed properly and that there was nothing to worry about. The defendant asked Huber if they could dig around the tank to discover if there were any holes on the bottom but Huber told him that “no one does that for a small tank like this,” that the operation would risk creating an actual gasoline leak, and that it would cost Pope less to get water coolers delivered to the plaintiff’s house.
The plaintiff sought to prove the defendant’s negligence according to two different legal theories. The first theory was res ipsa loquitur. The second theory was that the defendant had not exercised reasonable care when installing the gasoline tank and when addressing the problem of the gasoline leak after the plaintiff alerted the defendant to the problem.
Over the plaintiff’s objection, the trial judge did not instruct the jury on res ipsa loquitur. Following controlling precedent from our court, the trial judge ruled that the plaintiff had an opportunity either to prove negligence through specific acts or to prove negligence through res ipsa loquitur, but the plaintiff was not allowed to present both grounds for liability to the jury. In the jurisdiction of Loyola, res ipsa loquitur does not create a rebuttable presumption of negligence, but a jury may rely upon res ipsa loquitur to infer that a defendant was negligent.
Before you dig into the briefs that the parties have filed and the details of the record below, the justice would like to know your initial answers to three questions:
- Was the defendant negligent?
- If you were the attorney for the plaintiff, and you had the opportunity to prove negligence relying upon either res ipsa or specific acts but not both, which would you choose? Why?
- With this case, our court will have an opportunity to revisit our rule requiring plaintiffs to choose between relying on res ipsa or relying on specific acts to prove negligence. Should we change this rule? What difference would it make?
Class 15 - October 12, 2022
In-Class Exercise for Res Ipsa Loquitur:
You are an appellate court judge in the state of Loyola. The following case comes to you on appeal from a trial court. You should take notes on the opinion that you would write in this case and be prepared to share your thoughts with the class.
The defendant parked his car on an incline. Three children sat in the rear seat of the car; it was a 4-door sedan, and none of them got in the front seat. The children testified that none of them touched any of the control mechanisms of the car and that “something clicked in the front and the car started rolling” backwards in the direction of a large ditch. One of the children opened the door and told the others to jump out. All of the children jumped out. When the plaintiff jumped out, he fell, and the front wheel ran over him, causing serious injury. There is no evidence as to the condition of the brakes, whether the handbrake had been set, or whether the car was in gear.
At trial, the plaintiff alleged that the defendant was negligent and that the doctrine of res ipsa loquitur applies. At the close of the plaintiff’s case, the trial court ordered a directed verdict for the defendant. The plaintiff now appeals.
How do you rule and why?
Organize your notes according to the IRAC method:
- Issue
- Rule
- Application
- Conclusion
Class 13 - October 3, 2022
In-Class Exercise: Moore v. Myers
Prompt
You are an appellate court judge in the state of Loyola. The following case comes to you on appeal from a trial court.
In the first part of this exercise, you should take notes on the opinion that you would write in this case.
In the second part of this exercise, you will confer with the other judges on this appellate panel and decide the case together. After conferring with colleagues, it may be that you arrive at one unanimous opinion. Or it may be that some members of the panel concur or dissent. As a reminder: concurrences arrive at the same holding as the majority opinion but for different reasons, and dissents arrive at a different holding than the majority opinion.
In the third of this exercise, you will report back to the class.
Background
Twelve-year-old Monica Graham was struck by a car while fleeing a neighbor’s advancing pit bull. The dog was, at that time, both unleashed and unconfined, in violation of state law.
Seeking damages for her daughter’s injuries, Monica’s mother, appellant Mattie Moore, brought a negligence action on behalf of herself and her daughter against the owner of the dog, Michael Myers; his wife, Jeanne Griffin Myers; and her fifteen year-old son, Jaton Griffin.
At the conclusion of plaintiff’s case, the defense motioned for a directed verdict, and the trial court granted judgment in favor of the defendants as to all counts. The plaintiff now appeals that ruling.
Appellant’s Case
Monica Graham’s Testimony
Monica testified that on July 18, 1999, she and three friends were walking along Columbia Park Road, not far from her residence. As the girls approached the Myerses’ home, at 7104 Columbia Park Road, Monica saw Jaton and two other boys, Heath and Nathaniel, “standing by the steps [of the house] with a dog.” Monica knew all three boys either from school or from the neighborhood. The dog was a pit bull. It was unleashed and standing between Jaton and Heath, in an unenclosed front yard. In front of the Myerses’ house, Jaton and one of Monica’s friends, Showna, got into an argument. At that point, Jaton threatened to “sic his dog on” the girls. When he purportedly “said something to the dog to make the dog … aggressive,” the dog barked at the girls and started towards Monica, “like it was coming after” her. As it approached, Monica “got scared,” turned and ran into the path of Ms. Young’s oncoming car. The car hit Monica, leaving her with two broken arms, a broken leg, and a fractured jaw.
Michael Myers’s Deposition Testimony
Appellant read portions of Mr. Myers’s deposition testimony into the record. Myers deponed that he owned the pit bull. He insisted, however, that the dog had never bitten anyone, except during personal protection training when the dog bit a protective sleeve. He also stated that he regularly allowed Jaton to play with the pit bull in front of his house, and did not require Jaton to put the dog on a leash. On his way home on the date of the accident, he saw a group of girls walking along Columbia Park Road, headed in the direction of his house. He stated that, when he got home, “[he] walked past Jaton,” who was “by the steps with the dog.” As he entered his house, he heard the slamming of car brakes.
Mia Young’s Deposition Testimony
Excerpts from the deposition of Mia Young were read into the record. The excerpts disclosed that, as Ms. Young drove down Columbia Park Road towards the Myerses’ house, she observed three girls running in the street, with a dog in pursuit. She noted that the dog wore a leash, that it “was behind the children,” and that it looked like it was chasing them. Ms. Young testified that she only saw Monica for a second, before she struck Monica with her car.
Appellees’ Defense
For his convenience, Officer Stanley was permitted to testify during the presentation of appellant’s case, even though he was called by the defense. The officer testified that when he arrived at the scene of Monica’s accident, he was not told by anyone that a dog had been involved in the accident. Officer Stanley testified that, in investigating the accident, “there was no indication of any involvement of a pit bull and neither animal control nor any related agency was called to investigate any violation of the City Ordinance.”
Trial Court Ruling
At the conclusion of plaintiff’s case, the defense motioned for a directed verdict, and the trial court granted judgment in favor of the defendants as to all counts. The trial court found that, although there was sufficient evidence to prove that the defendants had violated the pitbull ordinance, the purpose of this ordinance was not to protect people from the kind of harm the plaintiff suffered (a car accident). Therefore, the trial court found that the defendants were not negligent as a matter of law.
The plaintiff now appeals the trial court’s ruling on the motion for a directed verdict. This court will review the trial court’s ruling de novo.
Text of Relevant Statute
[a]ny person owning a Pit Bull Terrier prior to November 1, 1996, may continue to harbor the animal on his premises under the following conditions:
….
(3) The owner shall maintain the dog within a building or a secure kennel at all times. Whenever the dog is removed from the building or kennel it shall be secured by an unbreakable or unseverable leash and maintained under the control of an adult.
Class Six - September 8, 2022
Hershovitz v. Speedy Pete Pizza Pies
The only issue on appeal to Loyola Supreme Court is whether the jury’s punitive damages award violates Speedy Pete’s constitutional right to due process.
Speedy Pete Pizza Pies is a national pizza chain that promises to deliver pizzas within fifteen minutes or it is free. As a result of this policy, their delivery drivers get in a lot of car accidents. The plaintiff, Scott Hershovitz, suffered minor injuries when a Speedy Pete delivery driver rear-ended him at a stop sign while out on delivery.
Hershovitz sued Speedy Pete for negligence. A jury found Speedy Pete liable and awarded Hershovitz both compensatory and punitive damages.
Compensatory damages: $15,000
Punitive damages: $314,159
For considering punitive damages, the jury heard testimony from Speedy Pete workers within the state of Loyola and within the state of Nebraska, where Speedy Pete is headquartered. The Loyola-located workers testified to management imposing strict rules about delivery drivers delivering on-time, including punishments like docked pay. The Nebraska-located workers testified to the Speedy Pete national office instructing managers across the country 1) to tell their delivery drivers to obey all traffic laws, and to follow up this instruction with a playful wink (or wink emoji if the instruction was communicated over text); and 2) to tell their delivery drivers that if they got in a car accident they should remove the Speedy Pete Pizza Pies decal from the side of their vehicle and tell any people they injured, “I’m so sorry. My blood sugar is running low, which is why I bought all of these pizzas that are in my car. I would love to give you a free slice if you could write your signature on this waiver of liability I just happen to have on me.”
The delivery driver who injured Hershovitz testified that she did remember receiving these instructions, but forgot to follow them exactly. After rear-ending Hershovitz, the driver removed the car decal, offered Hershovitze a slice of pizza but did not ask him to sign a waiver of liability. When he asked her why she hit him, she told him that she worked for Speedy Pete and had been rushing to deliver a pizza.
In the State of Loyola, Speedy Pete could face civil penalties of up to $100,000 for instructing employees to hide that they were working for their employer in the event of an accident. In other states like Nebraska, Speedy Pete would not face civil penalties.
Your Job
You have ten minutes to prepare for oral argument for both plaintiff and defendant.
Plaintiff goal: Convince the court that the award amount is constitutional.
Defendant goal: Convince the court that the award amount is unconstitutional.
Use the legal tests we just went over in class. Draw upon and analogize to the reasoning from today’s cases.
When we reconvene, I will cold call random students and we will workshop your arguments together.
Class Four - September 1, 2022
Jury Exercise
Form teams of six.
You are a jury, determining damages in the following case.
The giant donut at Randy’s Donuts fell down, crushing the plaintif, Cindy Estrada. You have already determined that the proprieters of Randy’s Donuts are liable for negligence and have calculated compensatory damages for expenses that Estrada has already incurred. But your role as factfinder is not over:
You must now determine the plaintiff’s compensatory damages for future economic loss and pain and suffering.
Jury Instructions
The judge has given you California’s standard jury instruction on damages for pain and suffering:
Reasonable compensation for any pain, discomfort, fears, anxiety and other mental and emotional distress suffered by the plaintiff and caused by the injury.
No definite standard is prescribed by law by which to fix reasonable compensation for pain and suffering. Nor is the opinion of any witness required as to the amount of such reasonable compensation. In making an award for pain and suffering you should exercise your authority with calm and reasonable judgment and the damages you fix must be just and reasonable in the light of the evidence.
The judge has also instructed you that under California law, a jury cannot reduce damages for lost future earnings for personal injury when those reductions are based on race, gender, or ethnicity.
Plaintiff Information
Occupation: Stay-at-home parent
Income: None. Prior to deciding to become a stay-at-home parent, Estrada earned $40,000 a year as an office coordinator. The plaintiff decided to stay at home to offset daycare expenses ($30,000 a year) while her children were little (currently ages two and four) and had planned to return to the workforce when children were in school fulltime. The plaintiff had aspirations of going to law school and had purchased a series of LSAT prepbooks.
Future medical expenses: The plaintiff will need ongoing treatment for back injuries. Expenses for the past year were $100,000. Treatment should be similar for the rest of plaintiff’s natural life (life expectancy of ~40 years).
Pain and suffering: The plaintiff suffers chronic pain daily, has endured multiple surgeries, and future surgery may be necessary.
Estrada cannot walk more than a few blocks at one time without stopping to rest. She must regularly adjust her sitting position to feel comfortable. The plaintiff feels deep shame and embarrassment for the injury that she sustained and now rarely goes out in public.
Estrada used to be a member of an indoor soccer team and will never play soccer again. She used to enjoy international travel but she does not feel capable of enduring the pain of sitting in an airplane seat for that stretch of time. Since her injury she has picked up crochet as a hobby, which she enjoys very much.
Class Three - August 30, 2022
You are a judge in the state of Loyola tasked with writing the opinion of the court in the following case. No precedent binds you on the legal issues here, but it is customary to reference the reasoning of decisions from other jurisdictions when deciding an issue of first impression. The facts of the case are as follows:
Luna Adams found that her car’s brakes were squeaking. She brought the car in to be seen by her mechanic, Naomi Donald. Donald replaced the brake pads. A week later, Adams was driving when the brakes on her car failed, causing her to run off the road and crash into a tree. Adams sued Donald for personal injuries and property damages. The case went to a jury trial. Adams motioned for summary judgment, under the legal theory that when a car mechanic fixes a part of a car, that mechanic is strictly liable for all injuries proximately caused by that part of the car failing. The trial judge denied the motion, ruling that negligence, not strict liability, governed. The plaintiff appeals the denial of that motion.
Class One - August 23, 2022
Group Divisions
- P - TJ
- P - Doc
- -P - GM
- D - TJ
- D - Doct
- D- GM
- P - TJ
- P - Doc
- P - Gm
- D - TJ
- D - Doc
- D- GM
- P- TJ
- -P - Doc
- P - GM
The Facts
On a Tuesday afternoon, Thomas Jenner lost control of the car he was driving and crashed into the side of a bicycle shop.
His car went through the wall of the bicycle shop, injuring the owner of the bicycle shop, Maxine Hammontree.
It turns out that Thomas Jenner had a history of epilepsy. On this day, he lost control of his car because he had an epileptic seizure and became unconscious. Jenner has no memory of the incident. He remembers driving, and then he remembers being pulled from the vehicle by EMT’s. Jenner reports that prior to the accident there were no warning signs that he was about to have a seizure.
Jenner first began receiving treatment for epilepsy fifteen years ago. He regularly takes anti-seizure medication and has done everything his doctors have advised him to do to address his epilepsy. As a result of his condition, he needs a doctor to sign off yearly with the DMV for him to have a license. His doctor has signed off with the DMV.
Many new cars have automatic collision avoidance systems that can help prevent these kinds of accidents from occurring. The car will automatically brake to prevent a forward collision from happening. Thomas Jenner was driving a 2020 GM Spark that did not have this anti-collision system as an available feature.
The Legal Questions
- Who — if anyone — should be held liable for these injuries to the plaintiff?
- What kind of remedy should the plaintiff receive?
Potential Defendants:
Thomas Jenner
Thomas Jenner’s Doctor
General Motors
The Lawyers for the Plaintiff
Why should this defendant be held liable for the injuries to Maxine Hammontree?
What remedy does the defendant owe Ms. Hammontree?
The Lawyers for the Defendants
Why should your client not be held liable for the injuries to Maxine Hammontree?
If your client is found liable, what remedy should they owe Ms. Hammontree?
Explain your reasoning
You must appeal to some kind of general rule or principle that would apply in similar cases.