December 17, 1998
Torts, Sections X2 and Y2
Final Exam
Professor Jones

 

INSTRUCTIONS

This is a closed book exam. You must abide by all that this implies.

 Budget your time prudently; there are two problems of unequal weight to be answered in three hours. Problem One counts 33% of your grade; Two, 67%. If you begin this exam at 2:00 and allocate your time in rough proportion to these percentages, you would conclude Problem One some time around 3:00.

 If you type, double-space and staple your pages. If you write, write legibly, write on each line, but on only one side of each page. Be sure to put your exam number on each blue book submitted.

 Read, think, analyze and organize. An answer should demonstrate your ability to analyze the facts presented by the question, to select the material from the immaterial facts and to discern the issues upon which the question turns. It should show your knowledge and understanding of the pertinent principles and theories of law, their relationship to each other and their qualifications and limitations. It should evidence your ability to apply the law to the facts given and to reason logically to a sound conclusion from the premises adopted. While all issues should be thoroughly discussed and resolved, you should not repeat yourself or discuss rules unnecessary to the resolution of the question asked.

 Assume that all the events described herein occurred in North, a state of the United States. In the few appellate opinions rendered in North, its courts have cited with approval the cases and Restatement sections assigned in the course.

 

1. Petra v. Don (33%)

Petra sued Don for damages and demanded a jury trial. The complaint adequately alleged all the elements of a tort and that Don's "negligence caused Petra to trip and fall in Don's back yard."

 At the trial, testimony established the following undisputed facts. Forty years ago, Don purchased his home. Thirty years before the accident, Don and Petra became close friends and next-door neighbors. Petra often walked over to Don's back yard without being invited. Don never objected and usually would join her. They would admire Don's rose garden near Don's driveway, and recall old times.

 Long ago, Don's driveway began breaking up. Grass and weeds grew in the cracks. As Don knows, one crack went the entire width of the driveway. On one side of this long crack, the pavement slowly subsided so that now there is an abrupt change in the surface: it is about two inches lower on one side of the crack than the other.

 On the evening of the accident, Don didn't know that Petra, who is now seventy years old, was in his back yard until, after dark, he came upon Petra's crumpled body on the driveway just above the long crack. He didn't know whether she had fainted, as she had before that year, or had tripped. He simply found her on the pavement, unconscious. Don had no idea how long she had been there.

 Don promptly called for an ambulance, which arrived soon after. The ambulance people revived Petra, and took her safely to a hospital. Competent hospital personnel discovered that Petra had a severely broken hip, superficial bruises on her head and arm, and a substantial loss of memory. In preparation for trial, she examined the driveway to help her recall how the accident happened.

This concludes a description of the undisputed facts.

At the jury trial, Don's attorney asked Petra on cross-examination, "Isn't it true that on the evening you broke your hip, you really didn't trip and fall, as your attorney alleges, but rather that you lost consciousness again and that is why you crumpled to the pavement?" Petra replied, "I don't think so. I think that I caught my foot on that little ledge on the driveway and knocked myself out upon hitting my head on the pavement, but that is all I am able to say on that. 1 don't recall anything else."

 Neither party offered any other evidence other than that relating to the extent of Petra's injuries. Don's attorney moved for a directed verdict at the close of evidence, but the trial judge denied the motion, wanting to get the jury's verdict. The jury was given clear and adequate instructions and eventually awarded a large verdict in favor of Petra.

 Don's attorney then moved for judgment in favor of Don notwithstanding the verdict (JNOV). Should the trial judge grant this last (JNOV) motion? Discuss only the issues involved in this single question.

 

 

II. Hot Stuff (67%)

Additional Instructions

This problem has four subdivisions: 

A. Nu v. DPVB,
B. Po v. Gasco,
C. Po v. Nu,
D. Affirmative Defenses. 

While I have not assigned any particular weight to any subdivision, it is recommended that you begin subdivision "C" on or before 4:00.


 Assume that the highest court in North, in the important case of Bad v. Good (1998), adopted "pure comparative responsibility" and cited in support the Third Restatement of Torts (1998) and the Uniform Comparative Fault Act, a statute quoted in the assigned pages of our casebook.

 

 

One area of North is potato country. The bigger farms make larger profit margins and reduce the price of food by replacing much human labor with machines. Potato farmers dig their potatoes from the earth with modern digging machines. However, vines from the potato plants above the ground can clog the digging machines and put them out of operation for long periods of time. Accordingly, it has become customary to burn the plants and vines to the ground before using the digging machines. Most of the potato farmers of North use potato vine burners (PVBs) for this purpose. 

Tort actions against the various manufacturers of PVBs for wrongful death, personal injury and loss of property from explosions, burns and fires have put all of them out of business except for DPVB. For several decades and continuing to this day, DPVB has made the safest PVBs. But they still are dangerous.

PVBs began as cheap and simple machines. Each one consists of an open trailer frame on wheels that can be pulled by a farm tractor. Mounted on the rear of the metal frame are two burner units. Each burner unit is like a blow torch which forcefully directs an open flame at the potato plants, close to the ground. The burner units burn propane fed to them by lines leading from a propane tank attached to the center of the trailer. On the top of each propane tank is a pressure release valve. The valve opens when the propane is expanded by heat to a level determined to be dangerous. When the valve opens, unburned propane vapor is released into the air until the pressure inside the tank is reduced to a safe level, at which point the valve springs shut and reestablishes the pressure necessary to propel a steady flow of propane through the lines to the burner units. Heat shields made of galvanized steel sheets have been added at locations that minimize heat transfer. Other safety improvements have been made as advancing technology permits. However, every safety improvement increases the cost and complexity of PVBs.

DPVB sells new PVBs to all the farm equipment dealers that supply potato farmers. In addition, two years ago, DPVB sold one to Gasco. Gasco, motivated by a desire to increase its sales of propane, its primary source of revenue, loans this PVB to potato farmers for a few days at a time, free of charge.

Propane is in demand as a valuable fuel for home, recreational, farm and industrial purposes. When burned, it yields much heat. If left out in the open, propane is a clear gas. It is heavier than the air we breathe, so if there is no wind to keep it aloft, it will sink to the ground. When forced under pressure into an enclosed tank, it becomes a liquid. In this form, propane is conveniently transported and handled.

Last year, Nan Nu moved from San Francisco to North and purchased a potato farm next to Pete Po's farm. Recently, Nu drove her farm tractor to Gasco to buy more propane for her tractor. After a friendly conversation, the manager of Gasco let her borrow Gasco's PBV free of charge. The manager also loaned her the owner's manual that DPVB supplies with each PVB it sells. The manual describes with clarity how to operate the PVB and how to do so as safely as possible. Dozens of sentences begin, "Caution: It is extremely dangerous to ...." One sentence states: "Caution: It is extremely dangerous to put an open flame near propane." Another states: "Caution: It is extremely dangerous to operate your PVB on a hot, dry windy day because a fire could grow out of control."

But neither the manual nor the manager of Gasco said anything about the danger of operating a PVB in windy weather when, as is typical for this area, the ground is moist and the air humid. Absent a long dry spell, both the manager of Gasco and Nu believed that a wind does not increase the danger of operating a PVB. The accident in this case proves that their belief is false. But on almost all other occasions, the belief would be true because the wind would carry any released unburned propane vapor away and disperse it widely in a form too thin to ignite.

The next morning was typical: cool, moist and with little wind. Nu hitched the PVB to her tractor, drove it to her potato fields, got the burners going by following the plain instructions in the owner's manual, and proceeded to burn the potato vines quickly to the ground. As the day grew warmer, Nu began to perspire. She removed her jacket and draped it over the tractor seat. By late afternoon, a strong wind was blowing as she turned into her final row of potatoes near to Pete Po's farm and buildings. She drove directly toward Po's property in the precise direction that the wind was blowing in strong gusts. She was approaching the last potato plants on her land when disaster struck.

The wind had blown the air heated by the flames from the burner units at the rear of the PVB to a location near and under the propane tank. The heat shields failed to keep the tank from heating up. Therefore, the safety valve released unusually large amounts of unburned propane vapor into the air. Then another gust of wind carried the vapor in a stream towards the tractor. The entire column of propane vapor suddenly ignited. Nu's clothes caught on fire. She yanked on the brakes of the tractor and ran for a large metal tub of water on Po's property meant for his animals. The water saved Nu's life, but she suffered horrible burns.

But that is not all. The jacket that Nu had removed and draped over the tractor seat also caught fire. The wind picked it up and blew it the few feet to Po's wooden farm buildings. Although Po immediately saw his buildings catch on fire, he did nothing for twenty minutes because he simply panicked. When he finally called the fire department and began using his own fire extinguishing equipment, it was too late. All of his farm buildings and their contents were destroyed by fire. The fire chief estimates that if Po had acted promptly, about half of the destroyed property would have been saved.

 

 

A. Nu v. DPVB

Nan Nu sued DPVB for compensatory damages. She alleged that (1) the PVB was more dangerous than she reasonably expected, (2) the heat shields should have been made larger and thicker to prevent the propane in the tank from heating and expanding, and (3) DPVB should have advised her of the danger of operating the PVB in windy weather even when the ground is moist.  Could she prevail without calling an expert witness to testify at the trial? Discuss the relevance of her three allegations and the issues involved in this question.

 

B. Po v. Gasco

C. Po v. Nu

If Pete Po were to sue Gasco and Nu for compensatory damages, what would be the best tort theories that he could advance against each of these two defendants, and what outcomes would you predict? Discuss the issues involved. Postpone a discussion of the impact of defenses on this question to the next item.

 

D. Defenses

What affirmative defenses, if any, would be raised in the three actions (A, B and C) discussed above, and what impact would you expect these defenses to have on the results? Discuss the issues involved.