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 25, 2024

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 17, 2024

My Notes on Assault and Battery (Spitting)

Battery

Rule: Battery if D takes intentional action that results in offensive or harmful contact to plaintiff.

Issues

Intentional act?

Intent rule: desire/purpose or knowledge w/ substantial certainty

— Based on facts, hard to argue that she had desire/purpose to spit

— BUT “flecks of spit kept landing on his face” which means that this was ongoing. Maybe first time was a mistake, but if she’s being beligerrent and just spitting all over his face, then she has knowledge that if she keeps doing it, she’ll keep spitting on him.

Causation?

— No issue there.

Harmful touching?

— No physical harm reported.

Offensive touching?

— Rule: Contact must be offensive to a reasonable sense of personal dignity.

— Spit can count. But does it always? Must be related to personal dignity. Spitting is often a humiliation / demeaning thing. Goal of intentional tort is to prevent revenge / blood feuds / violence over honor. Seems like a different kind of spitting. But mixed with her demeaning words…

Defenses?

Consent?

— Not explicit.

— Maybe implicit? At a protest. People are going to be chanting and yelling. You’re assuming the risk of getting some spittle on you, right? Seems to come back to this issue of whether this is a humiliating spit on someone or incidental spit. Maybe could go to the jury? Seems like a longshot.

Self defense? No.

Defense of property? No.

Necessity? No.

Assault

Rule: Assault if D takes intentional action that results in P’s reasonable apprehension of imminent harmful or offensive contact.

Very similar issues!

Intentional act? Repeat of battery analysis

P’s reasonable apprehension?

— Apprehension - yes, because he told her to stop spitting on him

— Apprehension reasonable? - yes, reasonable person would apprehend someone spitting on them

Imminent harmful or offensive contact?

— Imminence? Non-issue here

— Harmful or offensive contact? Repeat of battery analysis.

Defenses? Same as battery.

First Draft of part of an Answer to Bob

You can sue Annie for the intentional torts of assault and battery, but I can’t predict a win with any strong degree of certainty because the court may dismiss those claims either because we cannot meet our burden of proving a prima facie case of assault and battery or because Annie has an affirmative defense of consent. As both of these claims succeed or fail for the same reasons, I will address them together. A defendant commits battery when they take intentional action that results in offensive or harmful contact to the plaintiff. A defendant commits assault when they take intentional action that results in the plaintiff’s reasonable apprehension of imminent harmful or offensive contact. We may have difficult proving that Annie’s spitting was intentional and that the spit constituted an offensive touching. Annie may prove that you consented to the touching by being at a public protest.

It’s not crystal clear that Annie had the legal intent to spit on you. For the intentional act requirement of both assault and battery, the defendant must have acted with the desire to cause this bodily contact or acted with knowledge of the substantial certainty that this contact would happen. Based on the facts, her spitting seems incidental to her yelling at you, unlike a more clearcut case in which she would have hocked a loogie at you. We may have a chance to win this because flecks of spit kept landing on your face. Maybe she didn’t have knowledge with substantial certainty that she would spit on you when she began yelling, but after the spit droplets began to fall, she gained the knowledge that if she kept yelling, she’d continue to spit on you.

As you weren’t physically harmed by the spitting, our assault and battery claims will have to rest on the argument that her spitting on you constituted offensive touching. A touch is offensive if it would offend a reasonable person’s sense of personal dignity. The good news is that courts have found spitting to constitute offensive touch before. But those circumstances were also when the spitting was an explicit action design to attack, humiliate, and demean someone. There’s a question of whether this more incidental spitting also counts as being offensive since it was not as direct of an attack on your dignity. But the spitting was coupled with her saying some very demeaning things, so that should work in our favor. I’ll have to dig into the caselaw here and get back to you.

Annie may also raise an affirmative defense of consent. The defense of consent can be summed up as: to one who is willing, no harm is done. Although you never explicitly agreed to be spat upon, you did attend a protest where people would be chanting and cheering. Annie can argue that you implicitly agreed to risk getting sprayed by some incidental spittle by attending the protest. Her success with this defense is going to depend on the particular facts of this spitting. Was it the kind of incidental contact in a crowded world that the courts don’t want to be in the business of mediating? Or did it exceed the kind of contact that one should expect at a protest? I think she’s likely to prevail on this defense, but the court may allow the jury to decide the issue since it is so fact dependent.

The other elements of the claims are non-issues. There’s no question that her actions caused the spit to land on you or that the contact of the spit with your body was imminent. And the defenses of self defense, defense of property, and necessity are not applicable.

April 10, 2024

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 22, 2024

Products Liability Exercise

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 Meyer 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 Meyer Weiner does not have any warning labels on its packaging. The partner would also like you to evaluate any affirmative defenses that Oscar Meyer Weiner might raise.

March 15, 2024

Reasonable Alternative Design Challenges

Cigarette Case You are the lawyer for the plaintiff in a case where the plaintiff has smoked cigarettes since she was 16 years old. She’s now in her 50s and she has terminal lung cancer, and she is suing the cigarette manufacturers for products liability under a design-defect theory. What do you propose as a reasonable alternative design?

Pool Case You are the lawyer for the plaintiff in a case where the plaintiff dove into a 3.5 foot, above-ground pool and broke their spine. What do you propose as a reasonable alternative design?

Beyond just proposing a reasonable alternative design, I’d like you to think through the merits of the plaintiff’s argument. Should the plaintiff succeed on this theory? Should the plaintiff succeed on the merits of the case but for different reasons? Should the plaintiff not prevail at all?

Feb. 23, 2024

The Vargas family hired the Unreliable Construction Company to renovate their home. One day, after performing some repair work in the home, workers from the Unreliable Construction Company left to work at a different job site. The workers left some equipment plugged in through a series of extension cords. The extension cords overheated and caused an electrical fire.

The only person at home at the time was a napping one-year-old, Emily Vargas. Her babysitter, Mary Sue Morton, 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 Mary Sue 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.

As a condition of hiring the Unreliable Construction Company, the company has all potential clients sign a waiver of liability. Before beginning the renovation, workers had each member of the Vargas family sign the contract on an iPad they had onsite.

The waiver reads:

RELEASE FROM LIABILITY PLEASE READ CAREFULLY BEFORE SIGNING I understand that there are inherent and other risks involved in home renovation projects. These risks include roofs caving in, floors collapsing, windows shattering, electrical fires, water damage, and stepping on nails. I agree to hold harmless and indemnify the Unreliable Construction Company and/or any employee of the aforementioned for loss or damage, even if due to the NEGLIGENCE of the Unreliable Construction Company or its workers. That’s right. We’re talking about NEGLIGENCE. I am relieving them of liability for NEGLIGENCE.

Exercise Version #1

You are an associate working at a firm that represents the Unreliable Construction Company. Emily, Lynn, Tito, and Tatiana have each sued the Unreliable Construction Company for negligence in the State of Loyola.

The state of Loyola 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. In determining whether prospective releases of liability violate public policy, Loyola uses a totality of the circumstances test but uses the Tunkl factors as persuasive authority.

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. Your firm is considering representing Emily, Lynn, Tito, and Tatiana, who each want to sue the Unreliable Construction Company for negligence.

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. The Loyola Supreme Court has ruled that all exculpatory agreements purporting to release tortfeasors from future liability for personal injuries are unenforceable.

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.

Feb. 9, 2024

Review Exercise: Causation & Vicarious Liability

You are a trial court judge in the state of Loyola. The facts of the case before you are as follows:

Sidney Greene works as an engineer at the ACME dynamite company. As a salaried employee, Greene does not clock in or clock out for work or for lunch breaks, but it is customary for ACME engineers to take up to one hour for a lunch break each day. On this particular day, Greene planned to use her lunch break to stop by McDonald’s to try out the Deluxe McCrispy sandwich. She asked her coworkers if anyone wanted her to pick them up something from McDonald’s for lunch. A coworker, Abigail Vargas, asked Greene if she would stop by the grocery store down the street from the McDonald’s to pick up a birthday cake she had ordered for another one of Greene’s coworkers whose birthday was today. They planned to celebrate the coworker’s birthday in a shared break room upon Greene’s return.

While driving down a residential street on her way to the McDonald’s, Sidney Greene looked down at her car’s display to add the grocery store as a second destination on Googlemaps. 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 Cooper and Greene for negligence. Boyd has also named the ACME dynamite company as a defendant, claiming that ACME is vicariously liable for Greene’s negligence.

Cooper seeks to dismiss the case against her for two independent reasons:

1. Cooper did not breach a duty of care to Boyd.
2. Cooper did not proximately cause Boyd’s injuries.

Greene seeks to dismiss the case against her for two independent reasons:

1. Cooper putting out the trashcans was an intervening cause of Boyd’s injuries.
2. Even if Cooper’s actions were not an intervening cause, Greene still did not proximately cause Boyd’s injuries.

ACME seeks to dismiss the negligence case against it for two reasons:

1. ACME is not liable for Greene’s tortious acts because she was acting outside the scope of her employment.
2. ACME is not liable because asking Greene to pick up a birthday cake was not a factual cause of Boyd’s injuries.

How do you rule and why?

Jan. 26, 2024

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.

Jan. 24, 2024

Donald Dawson was murdered in his hotel room while on a business trip to Loyola City. Dawson had eaten breakfast with a business associate, Anastasia Kent, in a coffee shop next to the hotel. Following breakfast, Dawson returned to his room on the eighth floor of the hotel to use the bathroom before beginning his business day. When Dawson did not meet Kent shortly thereafter as arranged and did not answer his phone or door, Kent became concerned and asked a hotel maid to open the door to Dawson’s room. Kent and the maid found Dawson lying face down on the floor, dead. He had been shot twice in the back of the head with a .22 caliber weapon.

Both Dawson’s luggage and Kent’s, which had been left in Dawson’s room because Kent was checking out, had been rifled. Dawson’s wallet was lying on one of the suitcases with the cash missing. Neither Dawson’s Rolex watch nor his credit cards were taken. There was no sign of forced entry into the room and no sign of a struggle other than scratches on Dawson’s arm in the area of his watch. Dawson’s room key was found lying in front of the bathroom door. The murderer was never apprehended.

At the time of the murder, the hotel had no security cameras or alarms at any of the entrances, in the stairwells, or on any of the guest floors. The hotel only employed a security guard at night, so there was no guard on duty at the time.

Question to Answer:

You are a district court judge ruling on a defendant’s motion for summary judgment. Assuming the plaintiff can prove duty and breach, was the hotel’s negligence a factual cause of the plaintiff’s injuries?

If the plaintiff has not made out a prima facie case, then the motion should be granted.

If the plaintiff has made out a prima facie case, then the question should go to the jury, and the motion for summary judgment should not be granted.

Nov. 14, 2023

Exercise 1

You are a Justice in the Supreme Court of Nebraska who was part of the majority in Heins v. Webster County. You receive a letter from a colleague, Dale Fahrnbruch, who was part of the dissenting opinion in Heins (which we did not read for class). The letter describes a case that is now being litigated in the wake of the Heins opinion.

A plaintiff was playing on an outdoor asphalt YMCA basketball court, fell, and was injured. The plaintiff was not a member of the YMCA and did not pay dues to the YMCA. The plaintiff sued the YMCA. The YMCA motioned for summary judgment, contending that the YMCA did not owe the plaintiff a duty of care. Prior to the Heins ruling, the trial court would have followed the traditional rule, found the plaintiff to be a licensee, and granted the defendant’s motion for summary judgment. Instead, the trial court followed the Heins ruling, found that the YMCA owed the plaintiff a duty of reasonable care, and denied the defendant’s motion for summary judgment.

Your colleague, Dale, has written you this letter to remind you that the Heins opinion now subjects the YMCA to lawsuits holding them to a duty to treat uninvited users of their facilities with the same standard of care as the paying members of their institutions. He tells you that this case is “more than enough proof that the Heins opinion was wrongly decided and has had the expected effect of socializing the use of privately owned property. As a result, public and private institutions, as well as residential homeowners, must be especially aware of unknown, uninvited individuals who take advantage of their land and facilities.” Dale implores you to reconsider your position in Heins and to cast your vote the other way if the issue comes before the court again.

How do you respond?

Please note that your response here is a letter to a colleague. You are not writing a legal opinion. You are writing a response to a colleague who is concerned about the social consequences of the Heins opinion. Assume that your letter will be preserved and may be made public at some point in the future.

Exercise 2

You are a trial court judge in the state of Loyola. The facts of a case 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 shortly thereafter crashed into a horse-drawn hay trailer, killing one passenger and injuring the other four.

The passengers have sued the optometrist for negligence. The optometrist has moved for summary judgment on the grounds that she had no duty to the plaintiffs.

How would you rule on the motion? Include your reasoning. You should be aware that the Supreme Court of Loyola recently adopted the holding and reasoning of the Tarasoff opinion regarding a psychiatrist’s duty to third parties. Loyola has likewise adopted the Rowland factors for determining whether an affirmative duty exists beyond the traditional common law exceptions.

Oct. 25, 2023

Ross v. Benson

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 plaintiff, a nine-year-old named Ronnie Ross, was injured when an SUV belonging to the defendant, Idris Benson, ran him over, causing serious physical injury. The Benson family — Idris, his husband, and their twin nine-year-old children — was visiting the Ross family — Ronnie and his parents — at their home for lunch. Both families planned to attend a children’s birthday party at another family’s home later that afternoon. After eating lunch, the Bensons offered to drive Ronnie to the birthday party so that Ronnie’s parents could take their time cleaning up from lunch and could join them later. The Ross family agreed and told Ronnie to behave himself.

As the Benson family and Ronnie left the house, Idris Benson remotely unlocked his car, a 4-door SUV, that was parked in the Ross’s driveway, directly behind the Ross’s car. The driveway is on a moderate incline, and there was about five feet of space between the back of Benson’s car and a residential street. As the adults gathered birthday presents from the Ross’s house, the three children ran ahead and hopped in the backseat of the car. At trial, the children each testified that none of them got in the front seat, 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 the street. One of the Benson children opened the door and told the others to jump out. All three of the children jumped out. When Ronnie jumped out, he fell, and the front wheel of the SUV ran over him, causing serious injury.

At trial, the plaintiff introduced no evidence as to the condition of the brakes, whether the handbrake had been set, or what gear the car was in. 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 finding that res ipsa loquitur does not apply and that the plaintiff failed to present a prima facie case of negligence. The plaintiff now appeals.

How do you rule and why? Organize your notes according to the CREAC method:

• Conclusion
• Rule
• Explanation
• Application
• Conclusion

Oct. 17, 2023

Noriega v. Loyola State Fair

Every year, the Loyola State Fair includes a dunk tank as one of the fair activities. The governor of the state and other high officials take turns sitting in the dunk tank while fairgoers pay money to throw baseballs to try to dunk the government official. The dunk tank consists of a seat suspended over a large tank of water. This seat is connected to a target mechanism, which is connected to a bullseye target beside the dunk tank. If a fairgoer hits the target with a baseball, a mechanism releases the seat and the person sitting is dropped into the water below. There’s a metal and wire cage to protect the person in the dunk tank from any stray baseballs. There is also a large net behind the dunk tank to catch any balls that are thrown.

At this year’s state fair, the dunk tank proved to be a popular attraction. When the governor took a turn on the seat and risked being dunked in the water, a sizable crowd gathered around the dunk tank. State Fair employees roped off an area keeping all fairgoers twenty feet away from the dunk tank and five feet behind where the participants threw balls at the target.

A participant’s errant throw missed the target, ricocheted off of the metal bar at the top of the cage protecting the governor, and rebounded back into the crowd of people watching the dunk tank spectacle. The baseball hit the plaintiff, Matthew Noriega, in the face, causing physical injuries.

Noriega is considering suing the Loyola State Fair for negligence. You’re a junior attorney working at a plaintiff-side firm that is evaluating the merits of Noriega’s case agains the state fair. A partner at the firm would like you to deliver a memo detailing potential theories of negligence that could be argued in this case. For each argument, you should include:

• what constituted reasonable care under the circumstances, and why, and how the defendant failed to exercise that duty of reasonable care
• what the defense’s best counterarguments would be
• in your estimation, how strong of a theory of negligence this is

Here is some additional information that may help you as you develop your arguments:

• A statute requires all dunk tanks to have a safety cage surrounding the person sitting on the seat suspended over the tank of water.
• State fair employees positioned the dunk tank in an area of the fair without any activities or people behind the dunk tank so that balls thrown past the target would be safely caught by the net and balls thrown outside of the net would be unlikely to hit anyone.
• Rather than use baseballs, a small number of carnival proprietors use softer balls made of poly-plastic material. These balls are less popular for dunk tanks because fairgoers prefer to throw baseballs. The poly-plastic balls cannot be thrown with the same force and sometimes do not trigger the seat-release mechanism even after hitting the target.
• Dunk tanks have resulted in injuries in the past, including at the Loyola State Fair. These injuries were due to the release mechanism injuring the person sitting in the dunk tank, the thrower injuring themselves while throwing the baseball, the thrower accidentally hitting a fairgoer with the baseball when a fairgoer wandered between the thrower and the target, and fairgoers slipping and falling in the pools of water that tend to accumulate on the ground beside the dunk tank.
• A recent regulation requires all recreational baseball fields in the state to put up netting between the baseball field and any places where spectators typically gather.

Do not research additional facts or laws when writing this memo. In your memo, you may include information that would be helpful for your firm to learn for developing any of your arguments.

Oct. 4, 2023

May v. Wrecking Crew Co.

You are a Supreme Court Justice in the State of Loyola Supreme Court, hearing a case on appeal. Your small group represents the entire Loyola Supreme Court.

Bowlmoreandup is a three-story bowling alley. At the time of the accident that prompted this litigation, Bowlmoreandup was under renovation. As part of the construction project, there was an open shaft in the center of the building for work crews to ferry supplies and debris throughout the building. A bowling ball placed a foot from the edge of the top of the shaft on the third floor fell into the shaft and landed on the building’s owner, Anita May, causing serious physical injuries.

May sued two sets of contractors and the construction company, Wrecking Crew Co., for negligence. She claim that the first set of contractors negligently pushed the bowling ball causing it to roll into the open shaft, that the second set of contractors negligently placed the bowling ball too close to the open shaft, and that Wrecking Crew Co. negligently failed to fence around the shaft as required by law. The trial court granted summary judgment in favor of the plaintiffs, finding all of the defendants negligent. The Loyola Court of Appeals affirmed the trial court’s ruling.

The only issue on appeal to this court is whether the trial court correctly found that one of the defendants, Wrecking Crew Co., was negligent as matter of law for violating a statute. The possibility of Anita May’s negligence in standing beneath an open shaft of a construction site is not an issue on this appeal.

Section 241, subdivision 5, of the Loyola Labor Law (as it stood at the time of the accident) contained the following provisions: “If elevators, elevating machines or hod-hoisting apparatus are used within a building in the course of construction, for the purpose of lifting materials to be used, the shafts or openings in each floor shall be inclosed or fenced in on all sides by a barrier of suitable height, except on two sides which may be used for taking off and putting on materials, and those sides shall be guarded by an adjustable barrier not less than three nor more than four feet from the floor and not less than two feet from the edges of such shafts or openings.”

The undisputed facts are that the openings in each floor were protected by a fence consisting of four vertical metal rods of four feet in height placed at the edges of the opening and three horizontal plastic rings wrapped around the rods and placed one foot apart vertically starting one foot from the ground. From the trial court proceedings, it is unclear whether the rings were actual hula hoops purchased from a children’s toy store or whether the rings only resembled hula hoops.

In contesting the plaintiff’s motion for summary judgment, Wrecking Crew Co. argued that the legislative history of Section 241 is dispositive. In recommending the enactment of Section 241, the Joint Legislative Committee on Labor Safety stated that the proposed law “should be called ‘Doyle’s Law’ and receive universal approval from the legislature following the unfortunate incident in which a law professor wandering around a construction site lost in thought about the relationship between statutes and reasonable care fell into an unprotected floor opening and died of his injuries.”

How do you rule? Your group is welcome to have a majority opinion, concurring opinons, and dissenting opinions.

Sep. 13, 2023

Oral argument: Appealing a Punitive Damages Award

Hershovitz v. Speedy Pete’s Pizza Pies

When we reconvene for class on Tuesday, we will moot oral arguments for a case on appeal before the Loyola Supreme Court.

Odd-numbered groups (1, 3, 5, 7, 9, 11) are attorneys for the plaintiff. Even-numbered groups (2, 4, 6, 8, 10, 12) are attorneys for the defendant.

On Tuesday, I will cold call students at random to present their arguments. I will ask follow-up questions, and I will call on students representing the opposing side to address the points that have been made.

The only legal issue on appeal in this case is whether the punitive damages award is excessive and would deprive the defendant of its property without due process of law.

Use the legal tests we just went over in class. Draw upon and analogize to the reasoning from these cases.

The facts of the case:

Speedy Pete’s 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’s delivery driver rear-ended him at a stop sign while out for delivery. The accident occurred in the state of Loyola.

Hershovitz sued Speedy Pete’s in Loyola state court for negligence. A jury found Speedy Pete’s 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’s workers within the state of Loyola and within the state of Nebraska, where Speedy Pete’s 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’s 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’s 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’s and had been rushing to deliver a pizza.

In the State of Loyola, Speedy Pete’s 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’s would not face civil penalties.

The State of Loyola permits a jury to award punitive damages if the defendant’s tortious conduct was “willful and wanton.”

Arguments from class:

Plaintiff Arguments

Willful & wanton - under Loyola State law necessary

• failure to instruct drivers / fraudulent
• ask drivers to break law / drive recklessly
• encourage employees to lie and misinform, avoid culpability

BMV v. Gore

Reprehensibility

​ Most important factor (BMW and State Farm (disanalogy from these two cases: details of reprehensibility analysis))

​ Deviation from normal / reasonable behavior

​ Company policy creates a huge public risk

​ Not purely economical

​ Optimal Deterrence

​ Evading review b/c it is a fraudulent

Ratio

​ Not a categorical brightline

​ Rely on Mathias, bring in concerns of deterrence (huge issue of public safety)

​ Below ratio in Mathias

Comparison

​ Civil penalties in State of Loyola demonstrate willful/wanton/reprehensible

Defense Arguments

BMW v. Gore

Reprehensibility

​ Repetition

​ No evidence of repetition

​ Company policy outside the scope

​ Should be focused on the harm to the plaintiff

​ DP violation to punish nationwide policy (State Farm)

​ Nexus of what is defined as reprehensible and the injury that the plaintiff suffered

​

Ratio

​ 21 : 1 far more than what is allowed in State Farm

​ Not one of the few that will exceed ratio and satisfy due process

​ Compensatory damages are big and suffice here

​ Hiding the logo not particularly egregious

​ Not a reasonable relationship between harm and punitive damages

​ Mathias is much closerr to intentional / willful harm

Comparison

​ $100,000 in sanctions - jury acted arbitrarily

​ Direct application

Sep. 5, 2023

Jury Exercise

You are a jury, determining damages in the following case.

The giant donut at Randy’s Donuts fell down, crushing the plaintiff, 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. Be prepared to explain the reasoning and calculations behind your damages award.

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. Outside of surgery, expenses for treatment in the past year were $10,000. Treatment should be similar for the rest of plaintiff’s natural life (life expectancy of ~40 years). Surgical expenses this year were $100,000. Expert witnesses testified that the plaintiff may not need surgery in the future or may need multiple rounds of surgery at different points in her life.

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.

Aug. 29, 2023

Sample Exam Question

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.

Aug. 22, 2023

Small group exercise: Litigating your first torts case

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

1. Who — if anyone — should be held liable for these injuries to the plaintiff?
2. What kind of remedy should the plaintiff receive?

Potential Defendants:

1. Thomas Jenner

2. Thomas Jenner’s Doctor

3. 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.