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Course / Session 13932-TORTS-9 Conk NA Section All Page 1 of 11

Institution Fordham University School of Law Exam Mode Closed Extegrity Exam4 > 13.11.8.0

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Institution Fordham University School of Law Course 13932-TORTS-9 Conk Instructor NA Exam Mode Closed

Exam ID E62127688

Count(s) Section 1 Section 2 Section 3 Total

Word(s) 836 1016 1041 2893

Char(s) 4083 4916 5005 14004

Char(s) (WS) 4921 5931 6051 16903

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Course / Session 13932-TORTS-9 Conk NA Section All Page 2 of 11

Institution Fordham University School of Law Exam Mode Closed Extegrity Exam4 > 13.11.8.0

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Answer-to-Question-_1_ Joseph Smith, a mechanic employed by Coughlin & Sons, Inc., suffered very serious injuries when a bale of paper weighing nearly one ton fell from a stack of other bales and landed on him. Smiths company is under contract to provide mechanical services to Metro Waste at a recycling center owned by the County of Clare. Metro filed a bankruptcy petition shortly after the accident and the aggregate liability insurance is limited. However, our state law allows an action against the county of Clare as if it were a private person. We will want to double check the source of Smiths workers compensation to verify that it comes from Coughlin & Sons, Inc., but it looks like we may have a negligence claim against both the County of Clare and Metro Waste - but we must act quickly. The contract between the County and Metro Waste effectively makes Metro Waste the possessor the land and gives all control of the facility owned by the County of Clare to Metro waste. The contract specifies that the County still maintains the right of access to the facility in order to determine compliance by the contractor (Metro Waste) with the terms of agreement. Under the 3rd Restatement, a land possessor owes a duty of reasonable care to entrants on the land with regard to artificial conditions on the land that pose risks to entrants on the land (R.3d). This would require, in accordance with the OSHA regulation, that the storage of material be done in a way so as to ensure that it is stable and secure to prevent against sliding or collapsing. Since Metro Waste is the land possessor in this situation, they owe the duty of care to all entrants on the land, including Joseph Smith, who was under contract to provide mechanical maintenance services. Public landlords like Clare County may owe the same duty as private landlords and must act as a reasonable person in

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Course / Session 13932-TORTS-9 Conk NA Section All Page 3 of 11

Institution Fordham University School of Law Exam Mode Closed Extegrity Exam4 > 13.11.8.0

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maintaining the property in a reasonably safe condition in view of all the circumstances. (See Basso v. Miller). While the County did give most of the control to Metro Waste, they were still under contract to determine compliance. However, negligence on the Countys part may be difficult to establish in this particular situation, since the conditions of the facility and the way materials are stacked likely changes on a regular basis. The County would probably argue that they did not have constructive notice of the dangerous condition and therefore did not have adequate time to remedy the situation (see Negri v. Stop & Shop, Gordon v. Museum of Natural History). This is a fairly strong argument given the nature of their contract and the relatively lax inspection requirements. The stronger nelgigence claim will be against Metro North, since their agreement with the County specified that they operate the facility in a safe and efficient manner. Metro North had the duty to provide a safe place to work for the mechanic and this duty was clearly breached. Negligence in this case can be presumed even without direct evidence of the defendants conduct through res ipsa loquitur. In other words, the circumstances in which this accident occured gives rise to the presumption of negligence, which must be rebutted by the defendant. (See Byrne v. Boadle, McDougald v. Perry). While we can not point to a particular action that caused the paper to fall, we can presume that it was stacked in a negligent manner since it did fall. Metro Waste may also point to a lack of constructive notice, but this is likely to be unsuccessful given their control and operation of the facility. Even though injury may result from a negligence act, liaiblity for that injury is limited to the risk reasonably to be foreseen (See Wagon Mound). However, Metro North does not have any good arguments with regard to foreseeability and/or proximate cause, since the harm of stacked materials was clearly forseeable. Further, there was no unforeseeable

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Course / Session 13932-TORTS-9 Conk NA Section All Page 4 of 11

Institution Fordham University School of Law Exam Mode Closed Extegrity Exam4 > 13.11.8.0

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superseding cause that contributed to the negligence in producing the result. Also, the harm was of the same general type as that which makes the defendants conduct nelgigent in the first place. Depending on the allocation of liability in this jurisdiction, we may want to bring a suit against the County since the recovery against Metro Waste may be limited. The state allows an action against a county as if it were a private person and there do not seem to be any strong policy reasons for invoking no duty in this type of situation, especially since the County had partial control over the facilty. There is a stronger negligence claim against Metro Waste since they had greater and direct control over the premises. However, if the defendants can be found joint and severally liable we may want to collect from the County instead for a greater level of recovery given Metro Wastes financial situation. I am more confident with regard to a nelgigence claim against Metro Waste, but we should persue both avenues.

---------------------------------------------------DO-NOT-EDIT-THIS-DIVIDER---------------------------------------------------Answer-to-Question-_2__ Shelton v. Cardinal Hill Rehabilitation Hospital Wilma Jean Shelton suffered a severe fracture of her left ankle when she became entangled in monitoring equipment wires that were strung on the floor at Cardinal Hill Rehabilitation Hospital, where she was visiting her husband. As a result of the injury she requires surgery and is expected to lose several months of work. Her husband, who is paralyzed on the left side, is also reliant

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Institution Fordham University School of Law Exam Mode Closed Extegrity Exam4 > 13.11.8.0

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on her for bathing and mobility and she can no longer provide these services for him. Shelton has a fairly strong case against the hospital for nelgigence in their failure to exercise reasonable care over the conditions of the premises. I think we should take this case as there is evidence that the hospital owed a duty to Shelton and breached that duty, which resulted in the aforementioned damages. The traditional common law categories which help define duties based on the relationship between the parties have fallen out of favor in recent years. Instead, courts are more apt to apply a broader duty of reasonable care to the hospital to identify risks and dangers and to repair the dangers. As the possessor of the land, the hospital owed Mrs. Shelton a duty of reasonable care with regard to either risk-creating conduct or artificial conditions that pose a risk to entrants (R.3d). The risk posed by the wires was clearly foreseeable, and the fact that Mrs. Sheltons daughter Mary mentioned the condition to the nurse helps establish this claim. In determining whether the imposition of duty on the possessor of land would be fair and just in a given situation, courts tend to look at the totality of the circumstances and weigh four factors: (1) the relationship of the parties, (2) the nature of the attendant risk, (3) the opportunity and ability to exercise reasonable care, and (4) public interest in the proposed solution. In this case the relationship of the parties clearly designates a duty for the hospital to exercise reasonable care. The nature of the attendant risk in this situation was foreseeable and significant, as hospitals are places where guests frequently travel and equipment wires should be maintained so guests do not trip. There seemed to a good opportunity and ability to exercise reasonable care in this situation, especially since the daughter

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Course / Session 13932-TORTS-9 Conk NA Section All Page 6 of 11

Institution Fordham University School of Law Exam Mode Closed Extegrity Exam4 > 13.11.8.0

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mentioned the condition of the wires to the nurse. We may seek the expert testimony of a medical technician or someone with expertise who can talk about the standard to which monitoring equipment should be maintained. They should be able to show that when properly maintained, the wires would not present a hazard. We could also bring in hospital staff to speak on the care of said wires and the reasonable placement of medical equipment so as to minimize the risk of tripping incidents like that suffered by Mrs. Shelton. The hospital may try to argue that the consequences were avoidable and that Mrs. Shelton failed to exercise due care to mitigate the harm done to herself. They will point to the fact that she was well aware of the monitoring equipment wires, cables, and cords that extended out from the right side of her husbands bed to the wall. Mrs. Shelton had visited her husband at the hospital a number of times and had even testified that she tried to avoid and be careful of the cords, so it was a risk of which she was clearly aware. Further, the accident happened after she kissed her husband and turned to leave, which may provide evidence that she was not excercising a great amount of care. Under Davenport v. Cotton the hospital may argue that she assumed the risk and provide evidence that Mrs. Shelton knew of the condition, knew of the danger, appreciated the nature and extent of the danger, and voluntarily exposed herself to the danger. However, I do not believe the evidence suggests Mrs. Shelton is entirely to blame for the incident, and while her own negligence may have contributed, the hospital is still probably at least partially at fault. If this case is allowed to proceed beyond a motion for summary judgment the plaintiffs can expect to recover a number of damages, although depending on the jurisdiction these may be

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Institution Fordham University School of Law Exam Mode Closed Extegrity Exam4 > 13.11.8.0

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limited if the plaintiff is determined to be compartively negligent. Once a physical harm has been proven, a variety of damages may be recovered and in Sheltons case they seem to be numerous. For one, we can expect to recover for special damages (economic) for hospital and surgical bills, which amounted to $25,000. Even though her husbands unions helth and welfare fund covered all of the expenses except for the deductables and co-pays, under the collateral source rule the plaintiff is entitled to recover out of pocket expenses even if the plaintiff was reimbursed by some third party. However, most jurisdictions have a modified collateral source rule and this amount would be deducted from the costs (the union would have a lein on that part of the recovery). Regardless, she would still be able to recover special damages for the $3,000 in deductables and co-pays. These damages will be easy to prove and she can bring in medical bills, etc. She may also be able to recover for lost wages since she is expected to lose several months from her job as a home health aide. This should not be too difficult to calculate, however, if she is unable to return to work we may want to bring in an economist to determine lost income/profit. There were also non-economic damages and spousal damages. We may be able to point to pain and suffering since she now walks with a cane and is unable to help her husband, which causes her to worry quite a bit. Some courts may allow for hedonistic damages or a loss of enjoyment of life in this situation, but many courts include this in pain and suffering (see McDougald v. Garber). These types of damages are harder to prove, however, Mrs. Shelton has a fairly strong case given her husbands dependence on her.

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Course / Session 13932-TORTS-9 Conk NA Section All Page 8 of 11

Institution Fordham University School of Law Exam Mode Closed Extegrity Exam4 > 13.11.8.0

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---------------------------------------------------DO-NOT-EDIT-THIS-DIVIDER---------------------------------------------------Answer-to-Question-_3__ Rizzo, et al. v. C.R. Bard Linda Rizzo suffered a foreign body tissue reaction which clogged up the gaps in the surgical mesh, which was used to support and protect the vaginal wall and prevent the prolapsed, weakened bladder from pressing on it. This caused recurrent painful abdominal infections that were recalcitrant to antibiotic treatment. We have concluded discovery in this case and may make a motion for summary judgment with regard to the product defect claim that has been brought against us. We will have a better chance in this case if New Jersey product liablity law applies. Although we may not survive a motion for summary judgment in either jurisdiction, however, we do have some evidence that may help us in trial. In Massachusetts product liablility law derives from the implied doctrine of fitness for use, which is essentially a strict liability claim that is considered to be the same as R.2d 402A. MA uses both the consumer expectations test and a risk utility test (Barker factors), the latter of which will be used in this situation since complex factors are at play. In MA we may expect two causes of action, including a negligence cause of action for the failure to warn of the danger posed by this product as well as a breach of implied warranty. When considering whether there was an excessive preventable danger and whether the risks outweighed the benfits of the design, the Barker factors, adopted by MA and CA, look at the gravity of the danger posed by the challenged design, the

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Institution Fordham University School of Law Exam Mode Closed Extegrity Exam4 > 13.11.8.0

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likelihood that such a danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design. In our case the gravity of the danger can be considered fairly high, since the damage resulted in recurrent painful abdominal infections for which antibiotic treatment is ineffective. The likelihood of the harm seems to be fairly significant, especially given the statement by the bulk supplier Phillips Sumika on the MSDS. While Bard may consider this to be an excessive warning, it does not bode well for our side. The mechanical feasibility of a safer alternative design is also a factor to consider, as there seems to be some evidence to suggest a more light weight open pore mesh is needed. Although this is a relatively new theory and no alternative designs exists at this point, it seems fairly feasible to develop such a product at a reasonable cost to the manufacturer. We can expect medical expert testimony as to the development of such a alternative design and its cost. There may be an adverse consequence to the product if this lighter design is developed, since strength is the most important factor with this product. The Products Liaiblity Act eliminated all common law actions in New Jersey, including implied warranty. We can expect a products liablity personal injury action for a defective design. Since Hinojo, New Jersey moved away from more diffuse set of riskanalysis factors (Wade factors) to simply look at the question of reasonable alternative design. NJ seems to like the specificity of the fact finding that the jury must make under RAD. The plaintiffs dont have to show that anyone else is doing it this way, nor do they have to show that it exists on the market. This may present some problems for us, even given the statement of the bio-engineering chief. The jury will focus on the question of the

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Course / Session 13932-TORTS-9 Conk NA Section All Page 10 of 11

Institution Fordham University School of Law Exam Mode Closed Extegrity Exam4 > 13.11.8.0

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availability of another design that was omitted, not a diffuse set of factors as in NY or NJ. The NJ court will ask whether a reasonable person would have put the product on the market in the way it was put on the market. Manufacturers have a post sale duty to warn when a defect was discovered (see R.3d, McDarby v. Merck). We will not be held liable if we can establish that the risks were not reasonably foreseeable at the time of the sale or could not have been discovered by way of reasonable testing (see Vassallo v. Baxter). We should not assert a learned intermediary claim, since we will not be excused from warning the patient who receives the product when relying on doctors to deliver the warnings for them (see State v. Karl). The plaintiffs discovery of the researcher at Bard who pointed to the adverse events associated with the mesh implants and the statement of need acknowledges the need for a more light weight open pore mesh. However, the question remains as to whether this alternative design was practical and feasible. In NJ, the jury must find as a fact that there was a practical and feasible alternative design that was safer and was unreasonably omitted, which omission rendered the product unreasonably safe. In New York we can also expect both an implied warranty of fitness for use and a strict liability claim under R.2d 402A, which New York considers distinct from an implied warranty of fitness for use. In New York it is important to note that you can have a non-defective product that breaches the implied warranty of fitness for use. For risk-utility analysis New York uses the Wade factors, which are similar to the Barker factors although they address the issue of social need. It is likely that the plaintiffs claim will survive summary judgment and our best argument will be that because strength is

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Course / Session 13932-TORTS-9 Conk NA Section All Page 11 of 11

Institution Fordham University School of Law Exam Mode Closed Extegrity Exam4 > 13.11.8.0

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needed in this particular product, an alternative design (such as that suggested by the researcher), would not be feasible. This argument is more likely to be successful in New Jersey, which focuses more on reasonable alternative design. We might also point to the testimony of Ms. Rizzo with regard to the complication rates and risks of the use of the mesh. When asked if there had been a discussion about pain with intercourse as a possible risk factor, Rizzo indicated that she may have still consented to the surgery. One line of defense in New Jersey may be to establish that the plaintiff knew of the danger presented by the design defect and unreasonably proceeded in the face of danger.

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