TORTS § Z
FINAL EXAMINATION
PROFESSOR COOPER
FALL 2002
Thursday, December 19

General Instructions

1. This is a closed book exam.

2. You have three (3) hours to complete this exam.

3. This exam contains two parts:
4. Answer Part II (Essay) in blue books or type your answer. If writing in blue books, write on every other line and on one side of each page. If you are typing your exam, the exam administrators will double-space your exam for you when it is printed.

5. Please write legibly. I will not give you credit for words I cannot read.

6. The multiple-choice section, and each essay question are of approximately equal weight.

7. Unless the question indicates otherwise, answer using tort principles of general application, including discussion of any applicable split of authority.

8. A complete discussion of an essay question requires consideration of potentially applicable privileges or defenses, if any.

9. Write your exam number on your exam envelope, all used blue books, at the top of this page, at the top of Part 11, and on the Par SCORE test form. Do not use your name, student ID number, or Social Security Number on any exam materials.

10. At the conclusion of the exam, return all test materials, including blue books, scratch paper, the ParSCORE answer sheet and this exam packet to the envelope and submit it to the proctor.

11. Good luck. We had a great class. Enjoy your Winter Break!


TORTS §Z
PART II: ESSAY
Question One
(Suggested time: one hour)

Ace Driver has taught driver's education for 10 years. Ace owns Ace Driving School, located in Smalltown, Anystate. Nelly Jones is a woman in her forties who had previously lived her entire life in New York City and had not learned how to drive a car. After the disastrous break-up of a long-time love affair, Nelly left New York, took a new job, and moved to Smalltown. Shortly after arriving in Smalltown, Nelly enrolled in Ace Driving School. Ace was her instructor.

For driving lessons, Ace used a training car that was specially equipped with controls on the passenger side for the instructor. The instructor's controls could override the steering, brakes, and accelerator on the student driver's side of the car. During Nelly's first driving lesson, Ace noted that she was extremely nervous and on several occasions was confused about which pedal was the accelerator and which pedal was the brake. In addition, Nelly tended to accelerate much too quickly, causing the car to zoom forward, almost out of control. Ace frequently had to use the controls on the instructor's side of the car to override Nelly's unskilled maneuvers. Ten minutes into the lesson, Ace decided that Nelly was not ready for on-theroad training and that the day's lesson should end.

Ace was about to tell Nelly that he would take over the driving when his cell phone rang. The ringing phone startled Nelly, who hit the accelerator instead of the brake. The car careened out of control and hit Jay Walker, a law professor who had run into the street to escape a group of angry students who were chasing him. Walker suffered serious injuries as a result of being hit by the car. Ace also suffered injuries when he hit his head on the steering wheel during the accident.

Preliminary legal research reveals the following: Anystate has a statute which requires "every pedestrian" to cross streets only in crosswalks, and the jurisdiction has adopted negligence per se and pure comparative negligence.

1. Discuss Walker's negligence claim against Ace.

2. Ace has sued Nelly for negligence. Will Ace prevail? Discuss. You should anticipate Nelly will raise the issue of assumption of risk.


Question Two
(Suggested time: one hour)

Two 11 year-old boys, Moose and Archie, argued after school. Moose, the neighborhood bully, promised Archie he would beat him up at school the next day. Moose, who was large for his age, had a long history of taunting Archie. Archie decided to get Moose to leave him alone once and for all. Archie went home and took a handgun from an unlocked cabinet in his father's study. Archie did not plan to shoot the gun. He just figured Moose would never bother him again if he saw that Archie had a gun.

As Archie was on his way to school, he saw Moose running toward him, yelling that he was going to beat the pulp out of Archie. Archie pointed the gun at Moose, who fainted at the sight of the gun, fell to the ground and hit his head on the concrete sidewalk, bleeding profusely. Archie panicked and ran away. He did not notify school officials, the police, his parents, or anyone else about Moose's condition.

Moose suffered severe, permanent head injuries as a result of the fall. His injuries would not have been permanent had he received prompt medical attention. Unfortunately, emergency paramedics did not arrive for 40 minutes, after they received a call from another person who passed by and called 911.

Investigation reveals that Archie's father, Dale Rivers, had forbidden him from entering the study. Archie knew he was not permitted to be in his father's study. Archie rarely disobeyed his father. However, in this case he thought that if he borrowed the gun and returned it, his father would never know he had been in the study.

Discuss Moose's claims against Archie and Rivers.