1. You have three (3) hours for the exam.
2. This is a closed book exam.
3. There are 2 sections: the first section is an essay, worth 40% of the grade, and the second section is multiple-choice, worth 60% of the grade.
4. You must begin with the essay section of the exam, and remove that section only from your packet. When you have completed it, please return the essay section of the exam, including the question, your answer and your notes, to the envelope, and only then may you remove the multiple choice section and commence working on it. Once you have placed the essay section in the envelope, you may not go back to it.
5. You have up to 75 minutes to complete the essay section. Please answer these questions in the blue books provided to you. Write only on the right hand side of the page (skipping a page each time) and double-space your work. Please write legibly. Typists please leave wide margins. Succinctness, organization and clarity will count significantly towards the grade as to the essay.
6. Correct multiple-choice answers are to be marked on the ParScore answer sheet form provided. I will NOT look at your exam questions for answers to those questions. Correct multiple choice answers are to be marked on the separate “ParSCORE 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.
7. Write your exam number on your exam envelope. Put your student exam # and correct class section at the top of this page, each page of questions, each blue book and your ParScore answer form. Do not use your name, student ID number or Social Security Number on any exam materials.
8. 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. Students who do not return all exam materials at the end of the exam may not be graded.
GOOD LUCK!
ESSAY
FACTS:
In the Summer of 2002, at about 11:30 pm, while driving his new 2002 Yoyo 8 cylinder convertible on a well-maintained road in the State of Vasu, Peter, a twenty three year old recent graduate of Vasu State University, experienced an unfortunate event. The road he was driving on was a two-lane highway (that is, one lane in each direction), Vasu State Highway Four, with a series of hairpin turns for a stretch of about ten miles. The speed limit in this area was well marked as being twenty-five miles an hour, although in other areas on the highway the marked speed was fifty-five miles an hour. Peter, while driving in this hairpin turn area was doing about thirty five miles an hour, and had just come from an evening of fun with some of his friends at the Four-Flusher Tavern, and all, including Peter, had been drinking beer during the evening. In Peter’s car, in the passenger seat, was his old friend Mary. Driving in the other direction, and coming towards Peter, was Doc, a pre-med student at Vasu State, who was driving her rather old Plymouth at the time. Doc had just received her grades, and not having done as well as she would have liked, was in deep concentration as to her future, and whether or not she would ever get into medical school. As a result, Doc was not paying particular attention to the road, and kept crossing the median line, which was a double yellow line, meaning drivers were not to cross that line. Doc was alone in her car.
At about 11:30 pm, while Peter was going about 35 miles per hour, and Doc was swinging back and forth as she was driving, the two cars impacted, causing considerable damage to both cars, and injuries to all occupants. Again unfortunately, this was virtually predictable for two reasons. The first concerned the road. The State of Vasu had had many accidents on Highway Four in that area and had often been warned by the Vasu State Automobile Association that the road required a physical barrier to prevent accidents. The second was that Yoyo had essentially manufactured, in 2002, an unsafe car: when in a fast turn, the brakes had a tendency to catch resulting in a loss of driver control, as a result of a new computer device on the car. Yoyo, at the time of the Peter-Doc accident, had already had, and knew of over a hundred other similar accidents, and was considering that it might recall the cars, although it had informed the media that the cars were perfectly safe.
It turned out that Peter’s car was damaged to the extent of $10,000.00, and Doc’s car, to the extent of $1,000.00. At that time there was no telling what the injuries would cost to compensate each, but undoubtedly it would be more than the amount of the damages to Peter’s car.
At the time of the accident, Peter was insured by the Lumberjack Insurance Co., and Doc by the Heavensent Insurance Co. Peter took his car into a repair shop, still not knowing about the defect, and had it repaired, and sent the bill to Lumberjack, which paid it. Lumberjack was aware of the defect as it had paid several similar claims, and the problem was the talk of the insurance industry. Lumberjack then commenced a lawsuit, in the Superior Court of the State of Vasu, against Yoyo, based on negligence, and seeking two outcomes. First, Lumberjack sought the $10,000.00 it had paid to Peter, but as well it sought a declaratory judgment that the 2002 Yoyo was unsafe and should be recalled. Lumberjack sought a jury trial. Yoyo’s response was two-fold: first, it said that the suit could not go on without Peter, Doc, the State of Vasu, and Mary as parties; second, it said that Lumberjack was not entitled to a jury trial, since Vasu followed federal jury law which, Yoyo said, did not entitle the parties to a jury in that situation. The trial court ruled against Yoyo on both points.
At trial, Lumberjack presented evidence as to the lack of safety of the 2002 Yoyo, and that it had paid Peter the $10,000.00 damages. Regarding the question of whether the defects, if any, in the Yoyo resulted in the accident, Lumberjack put Mary on the stand. Mary, although she really didn’t remember the incident because she was somewhat inebriated at the time, nevertheless testified that the Yoyo had veered suddenly in the turn preceeding the accident. On cross, the judge stated in a side bar conference that she thought Mary was being quite evasive in her answers, but nevertheless permitted her testimony. The jury came back with a verdict for Lumberjack, in the amount of $100,000.00 being $10,000 for compensation and $90,000 for punitives, at which time Yoyo moved for judgment or, in the alternative, for a new trial. The judge denied both motions, and issued a declaratory judgment as requested as well as a damages judgment in the amount of $100,000. Yoyo appealed but lost on appeal.
Thereafter, Peter brought his own suit against Yoyo for his injuries arising out of the accident. The suit was brought in the Superior Court of the State of Vasu, based on negligence, and claiming that Yoyo was precluded from denying that it was negligent. Yoyo made a number of defenses and motions, including that Mary was a necessary party and as well it impleaded the State of Vasu, saying that if it, Yoyu, was liable to Peter, then Vasu was liable to it. Vasu then defended by saying the intersection was safe. In the long run, Yoyo’s primary defense was saying that Peter and Lumberjack were really one and the same, and therefore Peter was precluded from bringing the suit at all. Alternatively, one of Peter’s main claims was to say that there was no need for a trial on liability as to Yoyo since that was already determined. The trial court decided to deal with these two issues first.
QUESTIONS AND INSTRUCTIONS:
There are four questions presented on this exam. Two questions pertain to the first case, and two questions pertain to the second. Each of the questions is worth ten points. The first case totals twenty points. The second case totals twenty points. Your answers are to be constructed as follows: first, as to each issue, state and explain the law; second, as to each issue, state and explain the application of the law to the facts herein; third, state your conclusion as to each issue. Keep in mind that for your answer to be outstanding, it must be clear, succinct and well organized. Failure to follow the format set forth herein will reduce your grade as to that issue by at least three points.
As to the first case, discuss and analyze:
As to the second case, discuss and analyze: