PRODUCTS LIABILITY
FINAL EXAMINATION
PROFESSOR JONES
FALL 2002
WEDNESDAY, DECEMBER 18

INSTRUCTIONS

1. This is a closed-book exam. No materials are allowed.

2. This exam consists of two (2) essay questions.

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


4. If you believe that an issue turns on unstated or ambiguously stated facts, be explicit in identifying such facts and proceed on the basis of what you believe to be the most plausible assumptions about them.

5. Write your exam number on your exam envelope, all used blue books, and at the top of this exam question packet. Do not use your name, student ID number, or Social Security Number on any exam materials.

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

I look forward to reading your essays with as much pleasure as I anticipated each of our lively class discussions. I hope you enjoy this particular learning experience as well.


QUESTION I

Petra v. Lite-n-EZ, Inc. and Hardco

Petra lives alone on a limited budget in a home in the suburbs with a big lawn. In 1971, she bought a copy of Suburban Life, a monthly magazine with many advertisements targeted at suburban homeowners. One such ad featured a full-page color photograph promoting a twowheel power lawn mower. Lite-n-EZ, the name of both the mower and its manufacturer, was put in large letters across the width of the page. The photograph showed an attractive young woman in shorts. She looked happy and relaxed as she walked barefoot behind the mower. She appeared to be reading a book held with one hand while the other held a grip at the other end of the bicycle-like handle bar.

The next day (in 1971), Petra purchased such a new Lite-n-EZ mower from Hardco, a local hardware store. It came with no instructions for use or warnings. It was the lightest and cheapest of the ten power mowers on display and simple to start, operate, and maintain.

The mower is the old-fashioned "reel" type. A set of curved blades rotate around a bar parallel to the ground, cutting grass while moving against a straight blade. It has an elongated bell-like cover over the blades. It is slanted so that the grass may fly forward but not back toward the operator. The cover also blocks the operator's foot or hand from reaching the blades if she were to slip while walking behind the machine. But the mower has no barrier, bell-like or otherwise, that would prevent a foot or hand from reaching the rotating blades from the front side where the grass was thrown forward.

The mower met the safety standards of the Federal Products Agency that were in place when it tested the Lite-n-EZ mower in 1970.The Agency has not tested it since that time, despite its receipt of many reports of accidents. Petra used the Lite-n-EZ with complete satisfaction for over thirty years. She appreciated its ease in handling.

The accident happened one Saturday morning last summer. It was hot, so Petra wore shorts and no shoes or socks. After ten minutes of mowing, she noticed a bottle in front of the mower. Using a lever, she quickly stopped the machine's forward progress, while the curved blades continued to rotate at their single set speed. The manufacturer made it this way to retain the mower's simplicity. As Petra walked around the mower to pick up the bottle, she slipped on the wet grass. One hand reached out to soften her fall, but instead it plunged into the front end of the mower. Parts of two fingers were cut off by the newly sharpened blades.

Petra sued Lite-n-EZ, Incorporated, and Hardco for damages for her permanent injuries. Discuss the liability, if any, of each of these two defendants.

QUESTION II

Paul v. Drydock, Inc. and M-Co

This is another slip and fall case. Paul sued Drydock and M-Co for damages. Drydock is the manufacturer of No-Slip Strips (hereafter Strips). M-Co is the corporate owner of a large chain of motels, including the local M Motel. The only question is whether the trial judge should grant Drydock's motion for a directed verdict, in light of the evidence described below all of which was introduced without objection. You should discuss MCo's liability only to the extent, if any, it is relevant to this motion by Drydock.

It is not disputed that Paul, age 65, took a room with a private bath at the expensive local M Motel last spring and that he slipped and fell in its bathtub and that he was knocked unconscious and broke his hip and that these are serious injuries.

In addition, Paul testified that before going to bed, he watched television and drank two alcoholic beverages he found in the refrigerator that the motel stocks every day. The next morning, he prepared for a shower by placing the bathroom's rubber mat just outside the bathtub to give himself a secure place to step. After stepping into the bathtub, he found there was nothing to hold on to as he stood below the showerhead. As the warm water came down on him, he was glad to find that he was standing on two Strips that gave him good traction. But while trying to wash his back, he suddenly slipped and fell. The next thing he knew, he was in a hospital in great pain.

On cross-examination, Paul conceded that it was "possible" that he had slipped on some soap, but that he "distinctly" recalled that a Strip he had been standing on "suddenly became detached from the hard surface of the bathtub causing the fall." However, he failed to remember many other things, including the features of his room and the place he had put the bottles of alcoholic beverage he had taken from the motel's refrigerator.

Maggie, the manager of the local M Motel, testified that her staff found Paul unconscious that morning as they made their rounds looking to clean up each room. He was rushed to the local hospital in an ambulance. Maggie told the jury that four, not two, alcoholic beverages had been removed from the refrigerator in Paul's room and none of the bottles were found. She also testified that she found two Strips in the bathtub and neither was loose or detached. In a triumphant voice, she concluded that she found a small piece of soap in that same bathtub where Paul was found.

On cross-examination, Maggie conceded that one week after the accident, the motel was closed for its regular five-year overhaul during which all Strips, along with all the carpets and many other fixtures were replaced with new ones. She explained that these replacements were required by MCo's business plan for each of its 120 motels. It required such a major overhaul every five years according to a fixed schedule.

Ed, an expert on adhesives, testified for Paul. He told the jury that he had purchased 10,000 new Strips directly from Drydock. Each was two feet long and one inch wide. They were the same type as M-Co used in all its motels. Ed found that 10% of these 10,000 Strips had significant gaps in the distribution of the glue-like substance that Drydock used to make one side of each Strip stick to the surface of a bathtub. Ed explained that if a Strip cannot adhere along its entire length, certain popular cleaning materials and practices he had observed being used at the local M Motel hastened the loosening process considerably. Ed gave as his expert opinion, expressly based on the accuracy of Paul's testimony that a Strip "suddenly became detached" from the tub, that that Strip "must have been one among the fraction of Strips with a significant gap" in the adhesive gluelike substance along one of its edges.

Dick, a private investigator hired by Drydock, testified that he had examined the new Strips that the local M Motel had laid down one week after Paul's accident as part of its five-year replacements. This job was done by the same team that put down the Strips at the local M Motel almost five years before Paul's accident. Dick told the jury that about one-fifth of the new Strips had not been stretched and laid down evenly, contrary to the instructions on each package. He concluded that Strips laid down in this sloppy manner are much less likely to remain attached for five years as those properly laid down.

Several representatives from Drydock testified and introduced many supporting documents. Together, they constituted substantial evidence in support of several conclusions. The first was that only 3%, not 10%, of Drydock's annual output of new Strips had gaps in the distribution of its adhesive substance. The second was that it would be prohibitively expensive for Drydock to invest in the technology and materials necessary to (a) reduce its 3% figure to 2%, or (b) lengthen the useful life of (i) these 3% for more than their recommended five years, or (ii) the "perfect 97V for more than ten years. The third was that their employees were highly trained, and exercised exceptional care and skill in making Strips.

At the close of all this evidence, Drydock moved for a directed verdict. Should the trial judge grant it? Discuss the issues involved in this question.

END OF EXAM