TORTS EXAM - FORDHAM 2011 - Prof. George W. Conk Source: https://www.scribd.com/document/78358126/Torts-Exam-Conk-Fordham-2011 Note: Extracted from Scribd viewer (partial - pages 1-4 of 9 visible without subscription) ================================================================================ FORDHAM UNIVERSITY SCHOOL OF LAW FINAL EXAMINATION IN TORTS (Sections 1 & 2) DATE: DECEMBER 19, 2011 TIME: 1:30 PM - 4:30 PM THIS EXAMINATION IS 9 PAGES THIS IS A 3 HOUR EXAMINATION PROFESSOR GEORGE W. CONK ________________________________________________________________________________ INSTRUCTIONS You have three hours to complete this exam. You must answer all four questions. I will grade each question but the final grade is an overall assessment of your exam paper, as compared to others in the class. I suggest that you first read through the complete exam. (Take a deep breath to shake off the sticker shock, then get back to work.) While you are answering one question thoughts on the others will simmer on the back burner. Before you start writing I suggest you make an outline - or sketch out the issues you want to touch. Each question gives you an opportunity to discuss and apply key concepts in the law of torts and to analyze facts and apply the law to them. These are essay questions. Therefore good sentence structure, sensible paragraphs, and readability are important. BE SURE TO ANSWER EACH ELEMENT OF THE QUESTION ASKED. None of the questions specifies a jurisdiction. You can use all available authority to support the result you think that law and justice demand. Concrete reference to the cases, Restatements, statutes, and other authorities is valuable to clarity of thought and explanation. But a reference to a rule number or a case by itself is not explanatory. The key is to state the principle and explain the logic of the position you urge. The number of the rule or name of the case just shows where you found the idea, or how you know it expresses the law. The essay should be understandable even without the numbers or case names. Limited Open Book The exam is limited open book. You should bring the Franklin, Rabin, Green casebook. You may also bring the outline form slides I have posted. If you choose to do that I would print them in outline format. It will enable a quick search for authorities. The cases assigned and notes following cases in the casebook may be of important assistance in forming and structuring your essays. And you should also have available the text of cases assigned by me. You may bring your own notes or outlines. You may not bring any commercial outlines or other texts or treatises. You may use Exam 4 or may handwrite your answers. If your exam is handwritten it MUST be double-spaced. If it is typed I prefer 1.5 line spacing if that option is available. Use of Authorities Do Not cite any authorities other than what has been assigned, recommended, cited in class, or posted on the Lexis Blackboard by me. Brief identifying citations are all that is needed, e.g. Rest. § 402A, Greenman v. Yuba Power, Palsgraf, etc. are acceptable forms of citation. But the Rule number and the case name are not a substitute for stating the proposition you are asserting. E.G. "There is a product liability claim under 402A." is opaque. But "§ 402A has been interpreted to encompass manufacturing, design, and inadequate instruction or warning claims. Only a design defect claim appears here." is instructive and is helpful to the reader. Rhetoric - the Art of Persuasion Your object is to reason to a conclusion. State your opinions and defend them. A well organized argument, buttressed by reference to authority, which discusses the issues in an informed, critical way, is your goal. Be careful to draw only reasonable inferences from the facts presented. If answering a question requires assuming or even adding facts to those provided, be sure to state your additional assumptions. I am looking for an essay characterized by persuasive legal argument (with appropriate authorities noted), for accurate statement of the facts, avoidance of rhetorical hyperbole, and for succinct explanations and use of the logic of the law. Please place your self in the position contemplated by the question and address the intended recipient (e.g. judge, senior partner, insurance claims manager). Think of the reader. That is who you seek to persuade. Sentences must end - preferably sooner rather than later. Paragraphs should be short. Dense blocks of type are unwelcome. Verbs should have objects - mostly. Good luck. Have a great holiday. I hope to see each of you in my classroom again before you graduate from Fordham. - GWC ================================================================================ Q. 1 - Torres v. Biro, et al. Amador Torres was severely injured at his job in a supermarket when his hand was mangled in a meat grinder from which the employer had removed protective devices. He was a twenty-two year old employee of the Tropical Sun Supermarket in East Orange, New Jersey. Amador was operating a meat grinder machine while standing on a milk crate. The crate slid, causing plaintiff's hand to enter the opening of the grinder. Because of the injuries, three fingers of his right hand had to be surgically amputated. He still has the thumb and forefinger. Torres testified he had arrived from Mexico about six months before the accident. He had a sixth-grade education and spoke virtually no English. He began working immediately at Tropical Sun, where his father Jose Torres Pena was already employed. The younger Torres had used the meat grinder about four or five times in the three months before the accident, and it never had a guard in place during that time. Several Tropical Sun employees testified at deposition that they had worked at the supermarket for a number of years or months and had never seen guards protecting the feed opening on the grinder until they were installed shortly after plaintiff's accident. Your firm filed a complaint for Torres against Biro Manufacturing Co. ("Biro") (the manufacturer of the machine), Siegmeister Sales & Service, Inc. (which periodically serviced the grinder and replaced worn blades with new), and Tropical Sun, Inc. Discovery revealed that the manufacturer, Biro, had taken several steps to address the longstanding problem of purchasers removing protective devices from its grinders to increase productivity. The owner of Biro testified that "bowl guards" are affixed with steel fasteners and then welded permanently to the tray in which meat is placed for grinding. He explained how a magnetically activated interlock system prevents use of the machine when the tray and attached guards are removed for cleaning or otherwise. He testified that the only way to separate the guards from the tray is to saw them off. For twenty years Biro has instructed its distributors about the dangers of operating a machine without guards. Biro has provided financial incentives to distributors since 1995 to report removal of guards and to assist owners in correcting the deficiency. It has also instructed distributors not to service machines from which guards have been removed. If it learns that the owner of a machine does not cooperate in rectifying the safety risk, Biro files a report with the federal Occupational Safety and Health Administration (OSHA) which has authority to fine companies for unsafe practices, or to enjoin violations. Biro provided in its distributor agreements, including the one entered into with Siegmeister, that distributors must assure that all warning labels are in place and that purchase orders must instruct purchasers "not [to] remove, bypass or alter any safety guards, interlocks, devices or warnings." The distributor agreement between Siegmeister and Biro also contained a provision under the heading "SAFETY" stating: (v) If Distributor is requested to service or maintain any BIRO product, Distributor will insure that: (a) all safety, guards, interlocks, devices and warnings, are on the BIRO Products and functional; (b) that all BIRO instructional materials are available with the BIRO Products; and [NOTE: Remaining pages (5-9) of the exam were behind Scribd's paywall and could not be extracted. The exam contains 4 questions total across 9 pages. Questions 2-4 are not available in this extraction.]