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

2. This is a closed book exam.

3. This exam contains two parts:

· Part I consists of 25 multiple-choice questions. You have one (1) hour to complete Part I. 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. The questions for Part I, and the ParSCORE form must be returned to the exam envelope at the end of one hour. If you finish Part I early, you may move on to Part II. Once you have moved onto Part II you may no longer access Part I.

· Part II consists of two (2) essay questions. The recommended time for each essay question is one (1) hour. You may begin the essay portion as soon as you have returned Part I to your exam envelope.

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

5. The multiple-choice section is worth 75 points. The essay questions are worth approximately 80 points each, with the potential for up to 10 discretionary bonus points per question. This exam counts for approximately 75% of the final grade.

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

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

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

9. 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. 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. We had a great class. Happy Holidays and enjoy your Winter Break!

Question Two
(Suggested time: one hour)

Maggie Fan has attended every home game of the Smalltime University (SU) Tigers for two years. SU is located in the state of Nirvana. In the last five minutes of every game, the team announcer declares “It’s Crunch Time!” and members of the cheerleading squad throw Bestlee’s Crunch candy bars into the stands for fans to catch. Bestlee’s Inc., the maker of Crunch bars, furnishes the candy as a sponsor of the Tigers.

During SU’s home game against its biggest rival, members of the baseball team participated with the cheerleading squad in the “Crunch Time” promotion. The star pitcher, who could throw a baseball at 85 miles per hour, was one of the participants. When he threw his first Crunch bar into the stands, the candy bar hit Fan in the forehead with great velocity. Fan doubled over in pain. Later, when she unwrapped the Crunch bar, Fan would discover that the candy bar actually was a rock covered with chocolate.

Shortly after the incident, Fan decided to go home. Her friends offered to drive her, but she declined their offer. Fan thought she would be all right, even though she had a painful headache and felt a bit dizzy. As Fan drove out of the parking garage, she negligently collided with a car driven by Krista Rain. The evidence establishes that Fan’s negligence caused the collision, which severely injured Rain. However, Rain, who was daydreaming about her upcoming wedding at the time, could have avoided the collision if she had been paying attention.

At this time, the state of Nirvana has not adopted comparative negligence.

1. Fan sues SU, alleging negligence in the manner that SU carries out the “Crunch Time!” promotion. You represent SU. How might the doctrine of assumption of risk apply to this case? Discuss.

2. Fan has come to you for representation, arguing that the Crunch bar was defective. To decide whether you will take the case, evaluate whether she can establish a prima facie case against Bestlee’s Inc. using a theory of strict tort liability.

3. In Rain’s negligence case against Fan, Fan asserts Rain was negligent. You are a law clerk to a justice of the state supreme court. The justice has asked you to (a) analyze how modified comparative negligence would apply in this case compared to existing law; and (b) recommend whether the court should retain the existing law, or whether it should adopt pure or modified comparative negligence. Support your recommendation with two tort law policy principles that you believe will be served if the Nirvana Supreme Court adopts your recommendation.

END OF EXAM