2. This is a closed book exam. No written materials are permitted in the examination room.
3. There are 2 parts to this exam. There is a separate time limit for each part.
4. Write your exam number on your exam envelope. Put your correct class section and student exam # at the top of this page, each page of questions, each blue book, and the “Par SCORE TEST FORM.” Do not use your name, student ID number, Social Security Number, or in any other way identify yourself on any exam materials.
5. Write on every other line and every other page to permit instructor comments.
6. If the answer to the question depends upon the determination of facts not given, state such facts and point out why they are material. Do not make implicit assumptions.
7. Assume that the events take place in California. If you are not aware of controlling California law on point, work within the framework of other traditionally accepted positions we have studied. If an issue is open and subject to differing views, state the choices, and analyze the facts accordingly.
8. Be concise, organized and clear. In grading the essay, I will award points for organization and clarity so I would advise that, before you start writing, you take sufficient time to read the question, decide how to allocate your time, and organize a succinct but comprehensive response.
9. At the conclusion of the exam, return all exam materials to the exam envelope and submit it to the proctor. Do not seal the envelope. Failure to return all exam materials at the end of the exam may result in a failing grade. (PART I of the exam and your bluebooks will be available for your review after grading.)
Essay Questions (Seventy-five minutes)
One Fact Pattern (2 questions, with suggested time allocation)
Sammy Senior is 83 years old. He is blind, and has dementia, so he cannot remember things from one moment to the next. Sammy spends most of his free time listening to the television in his apartment. His niece, Nettie, knows that one thing that makes him happy is to smoke a small cigar, so usually she brings a few when she comes to visit, as a treat. Sammy claims that smoking the cigars helps him relax. In fact, on more than one occasion, Nettie found that he had dozed off while smoking and quickly put out the cigar.
One evening in February 2004, Nettie brought Sammy some cigars. After she left, Sammy fell asleep while smoking and the cigar fell onto the carpet. While he slept, the cigar smoldered for several hours before starting a carpet fire. Sammy was saved by a neighbor when the fire began to spread. Although Sammy suffered no burns, he inhaled a lot of smoke. Because of a pre-existing lung condition, his lungs became infected. When the hospital personnel first explained his prognosis to him and told him that he would have to spend the rest of his life in a hospital bed, he refused to eat. Against his will, they began providing nutrition and hydration through a tube. Now he is alive, but will be unable to leave the hospital. He is in pain and is confused and depressed and angry about his condition.
Sammy has retained a young lawyer who has brought a strict products liability claim against CIGARCO, the manufacturer of the cigar that started the fire. During discovery, Sammy’s lawyer learned that cigars and cigarettes are the major cause of fire fatalities each year in the U.S. (about 1,200 per year, resulting in about 40 million dollars in damages and that about a third of the fatalities are children who live with smokers.)
During depositions, Sammy’s lawyer was able to establish that if the cigars used less of the additive that makes them burn “slowly and evenly,” and were rolled more loosely, they would be no more expensive to produce, would burn at a safer temperature, and would “burn out” more quickly, all without increasing tar and nicotine levels. Studies suggest that had Sammy been smoking a more “fire-safe” cigar, it would have extinguished itself before igniting the carpet.
Phil Morris, CIGARCO’s CEO, testified that it is not feasible to produce a fire-safe cigar. As evidence of that fact, he pointed out that, to date, no cigar manufacturer currently markets a more fire-safe cigar.
Morris claimed that internal company focus group testing shows that cigar smokers do not like having to suck harder on cigars or to have to re-light them more frequently and that sales could drop precipitously if CIGARCO made the changes necessary for greater fire safety. Morris argued that any reduction in sales would jeopardize CIGARCO’s phenomenal current growth in cigar sales (doubling each year) hurting shareholders, poor tobacco growers, and CIGARCO employees.
Later, at a televised news conference, Morris argued that Sammy’s suit was an example of tort litigation out of control. Morris also made the point that no government fire safety standards have been established for cigars and that the government-required warning on packages is limited to potential health hazards- cigar smokers are up to 10 times more likely to die of cancer of the larynx, mouth, and esophagus than are nonsmokers-and not to questions of fire safety.
Nettie watched Morris’ news conference on television. The longer Morris spoke, the angrier Nettie became. Morris was unapologetic. Even though he acknowledged that CIGARCO had done studies “since the late 1980’s” on fires that had started after their cigars smoldered for an hour or more, he minimized the findings by saying that cigars account for less than five percent of fires caused by smokers. Morris also said, “In this case, the problem would have been avoided if relatives had just been more careful.” He laughed, “Cigars don’t cause fire damage, stupid people do!”
In a rage, Nettie went unannounced to CIGARCO headquarters in San Francisco
and waited for Morris on the sidewalk outside the building. As Morris approached
her, she yelled,
“Hey Morris! You’ve got some f------- nerve!!”
“Who the hell are you?” yelled Morris, trying to go around her.
In the process, he stumbled into her shopping bag. Nettie lost her balance,
twisting her ankle as she fell.
Morris kept walking.
“Come back here, you little chicken! I’ll kick your butt!”
she yelled, trying to get to her feet, and shaking her fist at him. “I’ll
hunt you down. I’ll find you and your arson-loving family!!! You’d
better keep a fire extinguisher on hand!”
Morris stopped and looked back, then walked around the corner. He has not seen
Nettie since then, but she has left several irate and threatening messages on
his home telephone answering machine. Because of his concern about his personal
safety, CIGARCO has provided him with round-the-clock protection.
1. A California Superior Court Judge has asked you, her clerk, to analyze
whether CIGARCO should be liable to Sammy under strict products liability theory,
and what, if any, compensatory damages might be recovered if liability is established.
(60 minutes.)
2. The Judge has just received word that Nettie and Morris are considering intentional
tort claims against one another, and asks you to advise her about the viability
of any such claims they may assert. (15 minutes.)
End of Essay Portion of Exam
Additional Instructions
Part II
1. You have 45 minutes for this portion of the exam. DIRECTIONS: For each of the following questions, choose the best answer to the question or the best completion of the sentence and mark your choice in the appropriate bubble on the answer sheet. Be sure the number of the question corresponds with the number on the answer sheet. There is no penalty for wrong answers.
2. Part II consists of 28 multiple choice questions and 5 true-false questions. There is no penalty for wrong answers. The questions are not meant to be tricky. Do not look for trouble, and don’t be surprised if a few look familiar. You may mark up this question packet as you wish, but you MUST return this packet with your answer sheet.
3. Enter your exam number in the space provided above on this sheet.
4. Correct multiple choice answers are to be marked on the separate “Par SCORE TEST FORM ” using pen or pencil and following the instructions on that form. If you change your answer, place a clear X through the wrong answer and mark the correct answer. A machine will score the exam and any ambiguities will be counted as a wrong answer.
5. FAILURE TO FOLLOW THESE INSTRUCTIONS MAY RESULT IN NO CREDIT FOR THE ANSWERS.
In addition, as a precaution, please also mark your answers on this question packet by encircling the letter of the correct answer to each question. You must return this question packet to the proctor with your answer sheet.
UNCLEAR QUESTIONS OR ANSWER CHOICES:
If you think a question or an answer choice is unclear, try your best to answer the question. Then jot the number of the question down below and explain your answer on the next page.
Maximum number of explanations per person is 3. No credit absent rational explanation.
Question No. Your Answer Explanation