S:\Townsend\Jones\Torts

2. Three-hour time limit. Spend your time wisely. Do not spend time reciting the facts except to support an argument or conclusion, and even then refer briefly to the telling details. Do not spend time discussing rules unnecessary to the answers to the questions asked. If you wish to repeat a point you made in response to a prior question, do not spend time repeating it all again; rather, simply incorporate the prior point in your later discussion with a brief reference back to it. Do take time to ensure that your writing is legible.

3. Count the pages of this pamphlet. There should be 9 pages, including this page of INSTRUCTIONS. Make sure that you received them all.

5. Assumptions about the law. Assume that all events took place in Southwest, a state of the United States. Assume further that the Supreme Court of Southwest agrees with those portions of the material assigned in the course and our discussion of those materials at least to the extent they will become generally recognized as the law in the United States in the years to come.

6. Criteria employed in grading Your grade will depend on the extent to which you express plainly your mastery of that portion of the assigned materials that bear on the questions asked.

7. Identification of answers. Put your exam number and "X-1" on the cover of each of your blue books, or your typed answers. Do not put your name anywhere.

A tragic collision on old Highway 13 triggered the legal equivalent of war between North and South. A wrongful death claim was brought by North for the death of Dr. Noah North against Mrs. Sue South. Claims by Pik South for personal injury were brought against North and Max Mover. Claims for property damage and personal injury were brought by Mrs. South against North. Claims by Mrs. Sue South and her husband, Hugh South, were brought against North for their "non-economic" damages for their extreme mental anguish over their son's permanent injuries and for the impairment of their personal relationships with him. No other claims were made.

The claim against Max Mover was settled out of court when his insurance company paid $1,000,000 into a fund for Pik South for which Mr. Mover was released from all further liability to Pik. Accordingly, the claim against him was dismissed.

The claims by Mr. and Mrs. South against North for their "noneconomic" damages based on their extreme mental anguish over their son's permanent injuries and for the impairment of their relationships with him were dismissed before trial. These rulings were based on the fact that the only precedents of Southwest, all over fifty years old, refused to recognize such claims, as a matter of law.

The remaining claims by North for wrongful death against Mrs. South for negligent driving, and by Pik South and his mother against North for damages for Dr. North's negligent driving were consolidated for trial before a single jury.

A fair summary of the trial transcript reveals the following story. On the dry, sunny afternoon of the accident, Mrs. Sue South picked up her infant son, Pik, who had been staying with her mother-in-law in City. With her healthy infant strapped properly into his new infant car seat secured in the back seat of her new Lincoln Continental, she drove south on Highway 13, heading for her home in Suburb where her husband, Hugh, was working on their joint income tax return. The Lincoln was followed by a huge truck owned and operated by Max Mover. A car driven by Carol Commuter followed the huge truck.

Highway 13 came to be called "Death Alley" in City newspaper stories calling on the State Department of Highways to add various safety features to the old two-lane highway.

Suddenly and without warning, a bright red VW Bug which had been travelling north veered into the southbound lane. Mrs. South testified that the moment she saw the VW coming into her lane, she slammed on her brakes, but she remembers nothing thereafter. Max Mover testified that he slammed on his brakes the same moment as the Lincoln did.

The front of the big Lincoln crashed into the side of the small VW. A very short time thereafter, Max Mover's huge truck slammed into the rear of the Lincoln. Carol Commuter was able to brake to a stop without touching the truck ahead of her.

The driver of the VW, Dr. Noah North, was found dead. Mrs. Sue South was found injured and unconscious and was taken to the hospital. Pik was critically injured and was taken to the same hospital where his life was saved. The VW and Lincoln, each less than a year old, were damaged so extensively that neither is worth repairing.

The afternoon commute had been well underway. Thousands of vehicles were moving south, single file. Most of them most of the time were going over the posted 50 mile-per-hour speed limit. A valid statute made exceeding the posted speed limit a "traffic infraction" subject to a fine not to exceed $350 payable to a government office of the county where the crime occurred. Carol Commuter testified that Max Mover was driving about 55 miles per hour just before he put on his brakes.

Many people who commute to and from City on Highway 13 on a daily basis testified at the trial. These drivers, including Carol Commuter, Max Mover and Sue South, testified with surprising uniformity that they had learned from experience to drive at the speed of the vehicle ahead and to keep the gap ahead of them somewhat shorter than during non-commuting hours. They testified that when a substantial gap between any two vehicles opened up, sooner or later some impatient driver, willing to risk pulling out into the northbound lane, would pass one or more vehicles. Sometimes they would keep passing until an oncoming vehicle would force southbound drivers to create a gap for them.

Max Mover testified that this practice of passing someone who was going the same speed as the vehicle ahead was unsafe and made him angry. He was quick to explain, however, that no such risky passing had occurred on the afternoon in question even though he left considerably more space between his truck and the Lincoln ahead of him than would a typical commuter by car.

There is no statute in Southwest that makes it a traffic infraction or otherwise condemns the crossing of the center of a two-lane highway.

It is unknown why the VW suddenly veered across the center line and directly in the path of the oncoming Lincoln. The accident destroyed any evidence that the VW might have been defective. No alcohol or other substances that might have impaired his driving ability was found in Dr. North's dead body. No specific evidence was introduced that he fell asleep at the wheel and there is little reason to suspect it.

The highway was cut into a hill for a considerable stretch both north and south of the point of the accident. Retaining walls prevented rocks from falling onto the pavement. No one introduced any evidence of any rock or other object in the northbound lane. There was no place one would want to steer for in the direction that the VW suddenly took.

Evidence was introduced that Dr. North lived alone and was eccentric, but there was no specific evidence introduced at trial that he was depressed. There is little reason to suspect that he was suicidal.

As frequently happens, traffic heading north was much lighter than the traffic heading south that afternoon. There was no car ahead of the VW to pass. However, there was one car following it, driven by Frank Follower, who testified that he had been following the red VW Bug for several miles. As far as he could tell, Dr. North was driving at a reasonable speed and in a reasonable manner.

Frank Follower was not far behind the red VW when he saw it suddenly swerve in front of the Lincoln. He expressed his gratitude that Sue South and Max Mover did not swerve into the northbound lane because then he "would have been the dead one." Sue South had testified earlier that there was not enough time or space to consider swerving into the northbound lane.

Frank Follower did notice that Dr. North used his cell phone once for a brief period at least ten minutes before the accident. Frank conceded that it was possible that the cell phone had been used at other times, but he refused to say one way or the other because he was not watching the VW very much of the time and did not notice any other such use.

A brief telephone call by Dr. North to Biotex, a firm that Dr. North had founded in City fifteen years ago, was confirmed by a recorded voice mail message which was played to the jury:

South could not find any evidence that Dr. North had used his cell phone at any other time on this drive, though it was conceded that he used it frequently while playing golf.

Substantial but conflicting evidence on damages was heard by the jury. To summarize it, the evidence of North's death damages ranged from a high of $20,000,000 to a low of $100,000. Expert opinion of just the so-called "economic damages" for Pik's permanent disabilities ranged from $39,000,000 to $6,000,000. A properly functioning seat belt and air bag limited Mrs. South's "economic damages" for her medical expenses and car replacement to no more than $70,000.

There was substantial testimony about the pain and suffering endured by Pik, and the extreme anguish suffered by each of his parents in sympathy for his suffering. And they testified about the deep sense of loss they are experiencing for having lost the opportunity to see their son grow up with full physical and mental ability, to feel his excitement upon learning the secrets of science, and to run and play basketball with him. Sue and Hugh South had met at a basketball game and still like to run fast, something that Pik's disabilities will prevent him from doing.

At the close of all the evidence, the experienced trial judge denied Mrs. South's motion for a directed verdict of no liability for North's wrongful death claim. But she granted North's motion for a directed verdict of no liability to any of the Souths on the ground that there was insufficient evidence that Dr. North was negligent.

The trial judge read several standard instructions to the jury on the law of negligence, proximate cause (using the language of "but for" and "fore "foreseeability" at appropriate places), and damages for wrongful death, all without objection. There was one ruling on jury instructions that will be described in question one, however, that was objected to by South.

In due course, the jury returned a general verdict in favor of North for $100,000. Post-trial motions by both sides for a new trial were denied. The trial court rendered judgments for $100,000 in favor of North against Mrs. South, and of no liability of North to any of the South.

Appeal

Recently, the Supreme Court of Southwest granted the Souths' petitions to review the decisions of the trial court. That is where you come in. You were chosen as a law clerk to Justice Rivera of this Supreme Court. After a long and distinguished career as a lawyer and professor in a completely unrelated field, Justice Rivera desperately needed someone who had recently studied tort law. He candidly explained that he recalls nothing of modern tort law and fervently requests that you answer his questions in very plain language. He recently sent you the following memo:

Memo

To: [You]
From: Justice Rivera
Please answer as plainly as possible all four of the questions that I have underlined.

I. North v. Mrs. South

The trial judge instructed the jury as follows:

"If Mrs. South exceeded the posted speed limit, then you must find that she was negligent and a proximate cause of Dr. North's death."

Did the trial judge err in reading this instruction to the jury

II. Pik South v. North

There is no statute in Southwest that makes it a traffic infraction or otherwise condemns the crossing of the center line. Accordingly, the trial judge granted North's motion for a directed verdict, explaining that there was insufficient evidence that Dr. North was negligent toward any of the Souths. Keep in mind the rule of appellate procedure to which we on the Supreme Court of Southwest adhere: If a ruling of the trial judge is correct, then the ruling should not be disturbed on appeal even if the reason given by the trial judge is incorrect.

Did the trial judge err in granting North's motion for a directed verdict?

For purposes of the remaining two questions, assume that a majority of the Supreme Court of Southwest will hold that the trial judge did err in instructing the jury as described in question one, and in granting North's motion for a directed verdict. I don't know whether this will happen, and I don't want you to let the possibility that it will happen affect your analysis of questions one or two. But from now on, assume that this Court will order that North's wrongful death claim and at least the claims of Pik South and his mother should have been submitted to the jury. Such a ruling will have important implications for how the resulting new trial to a new jury should be administered. I want you to explore a few of them for me.

III. Mr. and Mrs. South v. North

The trial judge granted North's pre-trial motion for summary judgments of no liability to either Mr. or Mrs. South for their "noneconomic" damages based on their alleged extreme emotional anguish over their son's permanent injuries and for the impairment of the parents' personal relationships with their son. "left">

The trial judge was correct in believing that our own precedents generally support her rulings. But a majority of the Supreme Court of Southwest now believes that those precedents are out of step with modern American tort law. But I am unclear on which, if any, of these claims our law should recognize.

Which, if any, of the claims by Mr. and Mrs. South against North for their "non-economic" damages should be reinstated for trial to a new jury? If you could suggest a principled basis for a clarified body of tort law that will be-sound as a matter of public policy and the administration of the court system of Southwest, I would be extremely grateful.

IV. Defenses

A majority of this Court is committed to the general principles of comparative negligence. It is impressed by the provisions of the Uniform Comparative Fault Act. However, the last official opinion by this Court on the matter, in Pi v. Delta, written in 1963, adhered to the traditional "all-or-nothing" rule of contributory negligence.

Accordingly, what guidance should this Court give to the trial court on this topic in any new trial of the Souths' claims against North, and North against Mrs. South?

Suppose, for example, that a new jury finds on remand that North's death damages are $1,000,000, Pik South's damages for personal injury are $10,000,000, and Mrs. South's total personal and property damages are $100,000. Ignore Mr. South's rights in this hypothetical. Suppose, furthermore, that the jury thinks that each driver was equally negligent. What judgments should the trial judge render? If you could walk me through this hypothetical, I would be very grateful. If you identify any particular issues on which you have a considered position, I would appreciate having your views. I want to learn from you.