TORTS EXAM - FALL 2012 - Prof. George W. Conk - Fordham Law School Source: https://www.scribd.com/document/120114219/Torts-a-exams-fall-2012-Conk-1 Note: This is a student exam answer (38 pages). Extracted from Scribd viewer (partial - pages 1-4 of 13 visible without subscription) Document title: "Torts.a.exams.fall.2012.Conk (1)" This appears to be a student's exam submission, not the exam questions themselves. ================================================================================ Institution: Fordham University School of Law Course / Session: 13932 TORTS8 Conk Exam Mode: Closed Exam ID: E38285474 Total: 3230 Words / 15740 Characters ================================================================================ QUESTION 1 - Hurricane Sandy Claims The business and residential tenants of 10 South End Ave. have come to us seeking remedy for various damages sustained during recent hurricane that hit the tri-state area. The tower in question is located in Battery Park City in Manhattan and was flooded due to the storm surge. Like nearly all of lower Manhattan below Canal street, the tower lost power for 96 hours during the storm and businesses were shut down for the entire week. Residential tenants were forced to relocate and business tenants sustained significant economic losses as a result of the loss of power and subsequent inability to operate. The duration of the power outage and business shutdown was extended by the inability of workers to commute to work because the tunnels and bridges into Manhattan were shutdown for some time. The potential negligence claims against the various entities involved are discussed below, in turn. Claims Against Government Entities (MTA, PANY-NJ, State of NY, the Bridge and Tunnel Authority) The first legal question which must be researched is the impact Flood Control Act on claims against the governmental entities here. That statute limits the categories of damages available to the putative plaintiffs here, the tenants. Assuming that all claims are not barred, our clients face additional legal hurdles in prosecuting an action against the government entities. At common law the doctrine of sovereign immunity barred suits against the state and its various agencies arising in tort. Kawanakoa v. Polybank (Holmes, J.). However, all states have since consented to tort liability in one degree or another. New York has consented to liability via its tort claims act. Like many other states, while the government of NY still enjoys immunity for discretionary decisions which implicated public policy concerns, it can be held liable for negligent acts that involve obedience to instructions or laws (so-called "ministerial decisions.") Lauer v. NYC. The critical issue for our client's potential case against the government entities here will be how the court characterizes the government's various failures to act: were these failures ministerial in nature or did they implicate public policy. We must soberly advise our clients that a suit against the various governmental entities here is likely to be rejected. The failures by the Bridge and Tunnel Authority (no flood gates were ever built) and the MTA and PANY-NJ (failure to develop and install state-of-the-art balloon to seal off tunnels from flood water) clearly fall within the category discretionary public policy decision which still enjoy immunity. Moreover, it is not clear that some more ministerial-like decisions (when to reopen the tunnels and restart the trains) were negligent anyhow. The state and agencies in question were dealing with a massively impactful storm and were likely concerned with insuring the safety of commuters in traveling through the recently flooded tunnels -- taking the extra to check everything was certainly not negligent. Claims against Con Ed The claims of negligence against Con Ed are more plausible, but since we are in New York we face difficult binding precedent on the duty element of the tenants negligence claim. In the seminal case Strauss v. Belle Reality and Con Ed, the plaintiff brought an action against Con Ed for injuries sustained as a result of the recent city-wide black-out. The plaintiff in that case had sustained injuries when he fell in a darkened common space in his apartment building that did not have power because of Con Ed's "gross negligence", as described by an earlier court. Nonetheless, the NY Court of Appeals denied the plaintiff's claim and ruled that Con Ed owed no duty to Strauss with regard to the lighting in the common space because the building owner, not the plaintiff was the contractual customer for that area of the building. The court declared in denying the plaintiff's claim, that it was its "responsibility to define an orbit of duty that places controllable limits on liability" so as to avoid crushing liability against Con Ed. Our clients claims are at risk of such a broad duty determination in New York. Still, if we are able to escape a broad no-duty determination, our clients may have a good claim against Con Ed for the economic losses sustained as a result of the loss of power because many if not all of them were in privity of contract with Con Ed, one of the primary hurdles faced by Strauss in that case. By agreeing to supply the tenants power Con Ed incurred a duty to maintain and modernize its electrical grid and power substations to protect against the kind of foreseeable storm surges that occurred during the hurricane as predicted by NYSERDA. The ASEED+ grade of the Manhattan electrical grid is further proof of Con Ed's failure in this duty. There are other tricky elements of the tenants claims against Con Ed. Firstly, they are not likely to be the only putative plaintiffs with this kind of action against the power company. Such actions are likely to be consolidated before a judge and may be subject to "creative" judicial solutions to this city-wide issue like those recently reached in the World Trade Center, BP Oil Spill and Katrina Canal Breaches actions. Claims against Lefrak and Cooper Square and the owners of 10 S. End Ave. The tenants have good negligence claims against the management companies and the premise owner. At common law a person or entity in control of a premises owed a duty to business invitees... [NOTE: Remaining pages (5-13) were behind Scribd's paywall and could not be extracted.]