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Torts I - Richards
Final Exam Fall 1999 - Key

Note - I have tried to use the exact language from the cases as sample answers when appropriate. You did not need to use the exact language, except in the questions where form is important. The points are points lost.

1. Name that case - for each case below, give the two parties, i.e., Smith v. Jones. You do not need, nor do you get extra credit for, adding the reporter cite. Partial credit will be awarded if you only get one of the parties.

a. This case involved a fight between shop clerks and their lawyers over intentional versus negligent torts.

Miller v. Kruetz, 643 S.W.2d 310 (Mo.App. E.D. 1982)

b. This case involved a self-defense shooting and the standards for partnership liability.

Martin v. Yeoham, 419 S.W.2d 937 (Mo.App. 1967)

c. This case dealt with false imprisonment and malicious prosecution.

Bramon v. U-Haul, Inc., 945 S.W.2d 676 (Mo.App. 1997)

d. This case involves a rock thrown by an unknown truck.

Hale v. American Family Mutual or American Family Insurance

e. This case involves informed consent for angioplasty.

Wilkerson v. Mid-America Cardiology, 908 S.W.2d 691 (Mo.App. W.D. Jul 25, 1995)

f. This case involved an oversize load.

King v. Morgan, 873 S.W.2d 272 (Mo.App. W.D. Mar 08, 1994)

g. This case involves a child who drowned in an icy pond.

Finn v. Newsam, 709 S.W.2d 889, 891+ (Mo.App. W.D. Mar 18, 1986)

h. This case involved defective spinach.

Ford v. Aldi, Inc., 832 S.W.2d 1 (Mo.App. W.D. Apr 21, 1992)

i. This electrifying case introduced product liability to Missouri.

Keener v. Dayton Elec. Mfg. Co., 445 S.W.2d 362 (Mo. Sep 08, 1969)

j. This case involved government standards for polio vaccines.

Berkovitz by Berkovitz v. U.S., 486 U.S. 531 (1988)

2. Getting picky - Answer each question concisely based on the info in the cases.

a. What are the six types of comparative fault in the Missouri Statute?

(Based on 537.765, discussed in Egelhoff v. Holt, para 24 et seq.)

3. For purposes of this section, "fault" is limited to:
(1) The failure to use the product as reasonably anticipated by the manufacturer;
(2) Use of the product for a purpose not intended by the manufacturer;
(3) Use of the product with knowledge of a danger involved in such use with reasonable appreciation of the consequences and the voluntary and unreasonable exposure to said danger;
(4) Unreasonable failure to appreciate the danger involved in use of the product or the consequences thereof and the unreasonable exposure to said danger;
(5) The failure to undertake the precautions a reasonably careful user of the product would take to protect himself against dangers which he would reasonably appreciate under the same or similar circumstances; or
(6) The failure to mitigate damages.
[33] The subdivisions of subsection 3 of this statute generally constitute the following defenses: *fn3 (1) unforeseeable misuse; (2) foreseeable misuse; (3) assumption of the risk; (4) negligent assumption of the risk; (5) contributory negligence; and, (6) failure to mitigate damages.

b. What are the title and the elements of Restatement (Second) of Torts, section 323(a), which was discussed as an alternative theory of recovery in Wollen?

323. Negligent Performance of Undertaking to Render Services
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking.
Therefore, if one renders services for the benefit of another, courts will impose a duty to exercise care apart from the defendant's actual or constructive knowledge.

c. What statute did the Wollen court say must be used for lost chance cases and why?

Survivorship - 537.020.1 RSMo 1986 Therefore, regardless of whether the lost chance of survival is greater than or less than 50%, it is impossible to prove that decedent's death resulted from the failure to properly diagnose and treat.

d. What is the test under the Frye rule and why did it not help the defendant in the Callahan case?

Frye held that for an expert witness' testimony to be admissible, the testimony must be based on scientific principles that are generally accepted in the relevant scientific community.
[40] The Frye rule clearly deals with admissibility rather than submissibility. Defendant SLU has cited no case, and we have found no case that permits a party to blissfully ignore the requirement to object to evidence based on the Frye doctrine and then "back-door" the Frye issues into the lawsuit under the guise of a sufficiency of evidence argument.

e. What did the plaintiffs want the FAA to do in Varig Airlines? What did the FAA do instead, and why was the FAA immune from suit for managing the problem in this way?

Inspect every aircraft, FAA did spot checks, and it was within the agency's discretionary authority so it had discretionary immunity.

f. What are the elements of prima facie tort and why does it fail in the Missouri "Tarasoff" case?

[96] Plaintiff contends that Count V states an alternative cause of action for prima facie tort. The elements of prima facie tort are:
(1) an intentional lawful act by defendant;
(2) an intent to cause an injury to plaintiff;
(3) injury to the plaintiff; and
(4) an absence of any justification or an insufficient justification for the defendant's act.

Most significantly, while prima facie tort requires an intentional lawful act, plaintiff stated facts which show defendants committed an unlawful act.

g. What must the plaintiff show to recover for negligent infliction of emotional distress in Missouri?

(Ford v. Aldi)

[17] It is no longer necessary in Missouri that a plaintiff claiming negligent infliction of emotional distress prove a contemporaneous traumatic physical injury. Bass v. Nooney Co., 646 S.W.2d 765 (Mo. banc 1983). A plaintiff will be awarded damages for emotional distress if he or she can show: (1) that the defendant should have known that his conduct involved an unreasonable risk of causing emotional distress, and (2) that the emotional distress is "medically diagnosable" and is severe enough to be "medically significant."

3. Putting it all together - Write a jury instruction based on instructions used in the Missouri cases we studied for each of the following situations.

Note - As we discussed in class and was stressed in the cases, jury instructions have a very specific form. They are not the same as listing the elements of a tort.

a. An instruction against ACME for products liability for manufacturing an electric drill with defective insulation that electrocutes plaintiff. (not a design defect)

(Based on Keener v. Dayton, para 38, et seq.)

Your verdict must be for plaintiff if you believe:
First, plaintiff was statutorily qualified to bring wrongful death action, and
Second, defendant sold the electric drill, and
Third, the electric drill, as sold by defendant, was defective and therefore dangerous when put to a use reasonably anticipated, and
Fourth, when plaintiff used the electric drill it was in substantially the same condition as when sold by defendant, and
Fifth, plaintiff used the electric drill in a manner reasonably anticipated and, as a direct result of the electric drill being defective, died.

b. An instruction against Beta for manufacturing and selling a laser pointer with no instruction manual. Plaintiff is injured when he attempts to use the pointer to indicate a spot on a bathroom mirror what needs to be cleaned. The beam reflects back into his eye and injures that eye.

(Based on Nesselrode v. Executive Beechcraft, paragraphs 62 et seq.)

Your verdict must be for plaintiff if you believe:
First, that the defendant sold the product in the course of its business;
Second, the product was then unreasonably dangerous when put to a reasonable use without knowledge of its characteristics;
Third, the defendant did not give an adequate warning of the danger;
Fourth, the product was used in a manner reasonably anticipated; and
Fifth, the plaintiff was damaged as a direct result of the product being sold without an adequate warning;

c. An MAI res ipsa instruction against Gamma whose Xmas tree fell off the roof of his car when he was driving home from Santa's Cut Your Own Xmas Tree Farm. The tree went through plaintiff's windshield and injured plaintiff.

Based on 31.02(3) [1997 Revision] Verdict Directing -- Res Ipsa Loquitur -- General)

Your verdict must be for plaintiff if you believe:
First, defendant was solely responsible for affixing the Christmas tree to the roof of the car, and
Second, the Christmas tree fell off the car and went through plaintiff's windshield, injuring plaintiff, , and
Third, from the fact of such occurrence and the reasonable inferences therefrom, such occurrence was directly caused by defendant's negligence, and
Fourth, as a direct result of such negligence, plaintiff sustained damage.

d. Jane shoots Frank with her 45 automatic. She says it was self-defense. Write Frank's instruction for battery and Jane's instruction for self-defense.

Based on Martin v. Yeoham, 419 S.W.2d 937 (Mo.App. 1967), paragraphs 35 and 49, et seq.)

Your verdict must be for plaintiff if you believe:
First, defendant intentionally shot plaintiff with a 45 automatic pistol, and
Second, defendant thereby caused plaintiff bodily harm.
Third, such contact would be offensive to the sense of personal dignity of a reasonable person.

Note - some students got confused and used the MAI instruction for someone who is injured as part of an assault.

Your verdict must be for defendants if you believe:
First, defendant had reasonable cause to apprehend serious bodily harm to herself, and
Second, defendant did not create the situation which caused the apprehension of the defendant, and
Third, the act of the defendant in discharging a pistol at the plaintiff was in defense against this apprehended bodily harm, and
Fourth, that defendant used only such force as was reasonable and necessary.

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