Professor R. Brill
December 12, 1994
CLOSED BOOK -- FOUR HOUR EXAMINATION
Fill in the information called for on the front covers of the Blue Books. Do not write your name anywhere in the examination booklets. However, please write on the cover of the first booklet, in large letters, whether you are a Day Division or Evening Division student.
Write legibly, in ink (preferably blue or black). Start the answer to each major question (I, II, etc.) on a separate page, and write only on one side of each page so the ink does not show through. Your answers should appear in the book in the order in which they appear on the examination. Do not use a separate Blue Book for each answer; try to keep the total number of books to a reasonable minimum. If you use more than one book, number each on the outside (e.g., "1 of 3"; "3 of 3"; "Scratch"). Take and Use no more than one book at a time for scratch; since all of them must be turned in with the answers, I'd prefer not to have three or four extra books per student, since that heightens the chances of misplacing an answer or an exam.
This examination is designed to test you on (1) your ability to analyze -- i.e., recognizing the important legal issues raised by the facts given; (2) your understanding of the principles of law applicable; and (3) your ability to reason -- i.e., applying the principles of law to the facts to reach logical legal conclusions. Do not merely state legal conclusions; show your full deductive process, emphasizing what facts or factors you find relevant in applying a rule, and explaining why the facts or factors are relevant. On the other hand, do not "shot-gun" -- confine your answer to a discussion of the particular issues and principles of law raised by the question, and don't write a general treatise on the subject of Tort law, or some aspect of it.
There are Three (3) Questions. However, you will find two (2) questions numbered as Question II. Evening Division Students should answer Question II (A); Day Division Students should answer Question II (B). Do not answer the question assigned to the other division.
QUESTION I (40 Points).
(All students are to answer this question).
Turner Forge & Steel Co. of Illinois is in the business of manufacturing various metal products, from pipes to cabinets to truck components. Its main plant is located in Industry, Illinois, 200 miles southwest of Chicago; 750 people are employed in this facility.
On July 12, 1994, Bill Irwin, a safety inspector for I.S.H.A., the state agency charged with insuring safe working conditions for employees in Illinois industries, made an unannounced visit to inspect Turner's plant. His purpose was to check on Turner Company's compliance with a previous citation for several dangerous conditions found to exist in the plant. Irwin met Jane Wilson, Turner's Vice-President and Director of Safety, to make arrangements to tour the areas of the plant previously found to have safety problems and to inspect the measures Turner had taken to alleviate the problems. Ms. Wilson accompanied him on the inspection.
About an hour into the inspection, Irwin and Wilson entered the Treatment Department. In that department stood two cauldrons, or baths, 4 ft., 10 inches high and 4 ft., 4 inches square. Each cauldron had thick walls designed to resist great heat, with the internal area of each cauldron 24 by 38 inches. Into each cauldron workers carefully placed sodium cyanide powder. Two upright electrodes were then lowered by chains into the cauldron, and when a switch was turned, the electrodes passed an electric current through the powder. Through this method the powder became a molten liquid, attaining a temperature of nearly 1700 degrees Fahrenheit, eight times the heat of boiling water. Metal parts would then be forged by immersing them in this boiling liquid.
To maintain the high heat in the cauldrons when they were not being used for forging, employees lowered two covers over the cauldron by means of another set of chains. These covers were made of a compressed compound of cement and a non-carcinogenic asbestos-like substance called Sindanyo. This compound had been used throughout the United States and England for over twenty years as a safe and suitable material for containment of very high heat. It has been used in hundreds of factories, as a heat containment device, without incident.
As Irwin and Wilson stood four feet away from one of the cauldrons, a Turner employee climbed a ladder to change one of the electrodes. The employee bumped into the set of chains holding one of the Sindanyo/cement covers; one end of the cover came loose from the chains on which it sat, and the cover dropped seven feet into the cauldron of molten liquid below. When the cover hit the liquid, it caused a splash of the liquid to a height of four feet, and some of the molten liquid spilled over the sides of the cauldron. However, none of the liquid hit Irwin or Wilson or anyone else. The cover slid into the molten liquid and disappeared, and no further splashing occurred.
Irwin and Wilson moved closer to the cauldron to peer into the liquid and to watch the cover disappear. About two minutes later, as they were discussing what had occurred, the molten liquid erupted. Intensely hot liquid was thrown from the cauldron, splashing Irwin, who suffered very serious burns.
Subsequent investigation was carried out by Imperial Chemical Industries, which had recommended and sold the covers to Turner. It conducted many tests and determined that whenever any cover made of the Sindanyo compound was immersed in molten liquid of a temperature of over 1500 degrees an eruption of the liquid occurred. THe company determined that the compound, which contains hydrogen and oxygen, undergoes a chemical change at 1500 degrees which either creates or releases water. This water turns to steam and produces an explosion or eruption, which forces some of the molten liquid out of the cauldron. Imperial's report noted that there had never been any similar test conducted before by anyone in the industry, and no one had heretofore suspected that intense heat would cause such a chemical change in covers made of the compound. The report emphasized that the cement/Sindanyo covers were used by forging plants throughout the U.S. and England for heat control of molten liquids, and there never was a reported incident similar to the one in question.
Irwin has filed Negligence actions against Turner Forge & Steel Co. and Imperial Chemical Industries, alleging the above facts. The defendants have moved for summary judgments in their favor. What decision should be reached? Discuss fully all issues. (Do not discuss privity or other product liability concepts. Confine your discussion to relevant concepts of negligence).
QUESTION II (A) (20 Points)
This question should be answered only by Evening Division Students.
Paul Parker has hired our firm to sue Darwin and Tallinger for damages. Investigation has shown that the following facts took place on August 19, 1994.
Dan Darwin and Tom Tallinger are teen-aged friends. At the time in question, Darwin was 15, 5 feet, 6 inches, and weighed 145 lbs; Tallinger was 16, 5 feet, 8 inches, and 160 lbs. That night, as they were roaming the streets on the west side, they were approached by Parker, who attended the same high school they did. Parker was 18, 6 feet, two inches, and weighed 200 lbs. Parker started shouting at Tallinger, accusing him of having beat up a friend of his, Rodney Roaf, the night before. As Parker advanced towards Tallinger, the frightened Darwin ran into an alley to hide. He stayed nearby, however, and soon heard shouting by both Tallinger and Parker, and then scuffling sounds. Parker claims that Tallinger hit him with a judo blow and knocked him to the ground, and that his watch fell off his hand.
At that point, summoning up his bravery, Darwin came out of the alley to see Parker rising from the ground, with an object in his hand, and advancing towards Tallinger. Darwin claims that in the dim light the object appeared to be a knife; in fact, according to Parker, he was holding his wrist watch, which he had picked up as he started to rise. Darwin claims that he thought Parker was going to stab his friend, so Darwin picked up a brick lying in the alley and smashed it into Parker's head from the rear.
Tallinger immediately ran away, as Parker tried to rise up from the ground. Darwin, now afraid that Parker would attack him, pushed the groggy Parker into an open shed in the alley, in back of an abandoned building. He found a piece of wood, which he used to bar the door to the shed, and he also pushed an abandoned refrigerator in front of the door to the shed. He then ran off to find Tallinger.
The next day, Darwin returned to the scene to see if Parker had broken out of the shed. He found the shed in the same condition he had left it, with the wood and the refrigerator still blocking the door. He heard faint moans inside, and when he asked Parker if he was o.k., Parker started swearing at him, and demanded to be let out. Darwin claims he was too afraid to let him out, and ran off again. Darwin waited two more days and then called a friend of Parker's to tell him where Parker was. When the friend got there, he found Parker alive, but suffering from exhaustion, shock, malnutrition and other serious effects. He was hospitalized for over 60 days.
Evaluate any possible claims by Parker and any reasonably possible defenses by Darwin and Tallinger.
QUESTION II (B) (20 Points)
This question should be answered only by Day Division Students.
Kathi Wong, recently widowed at the age of 34, has come to you to see if she has a claim for recovery in connection with her husband's death. She explains that her husband, Matthew, worked for a news agency for nearly six years prior to his death two and one-half years ago in an airliner bombing incident. He frequently had been called upon in connection with his job to travel to countries in the Middle East. It was on one such assignment that a terrorist group blew up the airliner on which he was traveling, killing Matthew and everyone else on board. Coverage of the incident in the media made it fairly clear to Mrs. Wong that a tort action against the airline company would be unlikely to succeed. The airline company was foreign-based; and the circumstances of the crash (the terrorists fired a surface-to-air missile in commonly used airspace) would make negligence very difficult to establish against the airline.
Recently, however, Mrs. Wong received a letter from her husband's supervisor at the news agency that has her wondering if she may have a tort claim against the supervisor. The handwritten letter came from Joan Griffith, who had been Matthew Wong's supervisor until his untimely death. Ms. Griffith explains in the letter that she wants to clear her conscience of something she feels she did to contribute to Matthew Wong's demise. She explains that she has just been diagnosed as suffering from terminal bone cancer and wants to ask Kathi Wong's forgiveness before she dies. She goes on to confess that approximately four years ago, she recognized that Matthew Wong had a rare gift for his work and that Matthew would advance rapidly in the ranks of the company if given the right opportunities. Ms. Griffith also believed that Matthew Wong represented a threat to her personally, as a possible replacement for Ms. Griffith. So Joan Griffith resolved to do everything she could to hinder Wong's progress in the company.
Part of Griffith's plan involved sending Mr. Wong on an excessive (from the company's standpoint) number of trips to the Middle East. She knew these trips were dangerous, because there were continuous threats from terrorist groups to bomb planes carrying business representatives who carried on business with Israel and several other nations. In fact, there had been at least three attempted attacks on commercial airliners in the past six months, one of them resulting in a plane being shot down. Ms. Griffith knew that these were risks that could not be justified on the basis of significant business to the company, though his visits did generate some additional revenue for the company. "I hoped and prayed that your husband would be killed in an incident every time I sent him off on a fool's errand," Ms. Griffith confessed. "I quietly rejoiced, while outwardly grieving, when we heard he was the victim of a terrorist attack."
Discrete inquiry has disclosed that we can establish (a) if anyone else had been supervising Mr. Wong at the relevant time, Matthew would not have been sent to the Middle East and would not have been aboard the doomed airplane; (b) Ms. Griffith had the discretion within the company to make the decisions on where and when to send Mr. Wong; but (c) Ms. Griffith had nothing whatsoever to do with causing the terrorists to attack the airliner in which her husband was a passenger.
Assume the common law, such as in Illinois, applies. Does Mrs. Wong have any reasonable chance at recovery? What possible actions would she have? What defenses or problems would she face? Discuss fully all issues.
QUESTION III (40 Points)
This question is to be answered by all students.
At 6:15 p.m. on September 3, 1994, as dusk approached, Derrick Drews, aged 34, was driving a McLean County Highway Department tractor-trailer in the north-bound lane on State Highway 14 in a rural area of the State of Kent, a common law jurisdiction. The Highway is two-lane, 24 feet wide. The tractor portion was similar to the cab portion of a truck, approximately 8 feet long. It was pulling a 24 foot long trailer. On the trailer was loaded a huge, heavy road grader, a machine used in building roads. The grader was very tall, very long and very wide, occupying all of the space on the trailer. In fact, the grader was exceptionally wide, and stuck out over the edges of the 11 foot wide trailer by over 8 inches on each side. That meant that the total width of the load was 12 feet, 4 inches, which exceeded the width of the north-bound half of the highway by 4 inches. Depending on where Drew centered the wheels on the tractor, the grader extended either over the center line of the highway into the south-bound lane by 2-4 inches, or extended over the shoulder by the same amount. And, of course, it was impossible for the driver to keep the wheels steady at the exact same place on the highway at all times, so sometimes the extension of the grader was over the oncoming lane, and sometimes it was over the shoulder, and sometimes the extension was more than 4 inches. Drews attempted to keep the tractor-trailer to the shoulder side as much as possible, to avoid extending over the center line.
Because of the wide load, signs were placed on the front and rear of the tractor-trailer saying "Danger-Very Wide Load", spelled out in two foot high letters, and visible to oncoming and following traffic. In addition, reflectors were placed on the outside edges of the road grader at the back, so that following traffic might see where the grader protruded when their lights or the sunlight hit the reflectors. Drews had placed a revolving orange light on top of the tractor, and the tractor's headlights and trailer's tail lights were turned on, as were the vehicles' front and rear flashers. Finally, Drews drove at a speed of no greater than 15 miles an hour. From the construction site where he had loaded the grader, he had a total of fifteen miles to travel before leaving the highway.
Traffic on the highway was light, and Drews had covered 10 miles of the 15 mile trip without any trouble. A truck, owned by Chumely Chemical Co., carrying highly toxic chemicals, travelling north-bound, had just approached to approximately 200 feet behind Drews' vehicle, and slowed to 15 m.p.h. In the south-bound lane, a 1994 4 door Ford Taurus driven by Nancy Norman, aged 26, came over the crest of a hill ahead of the Highway Department tractor-trailer at a speed of 75 m.p.h., 20 miles above the speed limit. The Taurus was 10 feet, 4 inches at its widest points. The tractor-trailer was at the bottom of the hill, starting up the hill. Norman saw the flashers and revolving light on the tractor, but she did not read the sign on the front. She attempted to slow her vehicle, but still clipped the protruding road grader as she passed the trailer. There is no evidence that Ms. Norman had gone over the center line into the north-bound lane; the reconstruction experts agree that the grader probably was protruding by 4-6 inches into Ms. Norman's lane at the time she struck the grader.
Ms. Norman's car spun out of control, and plowed into the Chumely Chemical Co. truck. The truck overturned, severely injuring the driver, Alan Able. The truck's storage compartment ripped open and the liquid toxic chemical spilled from the truck. A large portion flowed into a stream which ran along the highway, and toxic material was carried downstream quickly with the rapid current. A mile away, Leona Leonard, aged 12, was wading in the brook attempting to catch frogs. Approximately forty minutes after the highway accident, some of the toxic chemicals borne by the stream came in contact with her and caused severe burns and other serious injuries.
The stream also fed several irrigation ditches on Leona's parents' farm. Some of the toxic materials flowed into the irrigation ditches, and, several weeks' later, resulted in the destruction of approximately one-half of the Leonard's corn crop, causing several hundred thousand dollars in economic loss.
As a result of her collisions with the grader and the chemical truck, Ms. Norman was seriously injured. Drews was not injured, and the trailer and the road grader sustained minor damages.
Please discuss and evaluate the rights and liabilities of the various parties. Discuss fully all issues.
(It will probably be useful to draw a diagram of the incident, at least in your scratch booklet. Also, it will be important to carefully and logically organize this answer, so take your time in planning the answer. Finally, if you believe your answer will depend on further facts, please answer in terms of "if it could be shown that... then....", but (1) you should be able to answer well enough without doing this, and (2) if you do use this technique, please make your assumptions reasonable inferences from the facts given. For example, try not to get into something like "if it could be shown that the chemical company did not know that the chemical could be harmful when mixed with water, then...." To give you all the facts and nuances you would really require to try this case would mean a transcript of over 100 pages).
P.S. I apologize for the bizarre nature of the facts given, but remember, this is an exam, designed on your abilities to spot issues and logically reason. If you compare Torts questions from other teachers or at other law schools, you will find they are quite similar. On the other hand, truth is stranger than fiction. With some minor variations, Question I is based on the facts in Doughty v. Turner Mfg. Co., 1 Q.B. 518 (1964).