new cause of action on a new sheet of paper. identify the

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Exam No.

WASHINGTON UNIVERSITYSCHOOL OF LAW

TORTS SECTIONFALL 20033 HOURS

PROFESSOR NORWOODDECEMBER 18, 2003

CLOSED BOOK

4)

FINAL EXAMINATION

I. GENERALINFORMATION:

1) Your exam number must appear in the spaces provided on this page and page10. Please fill in your exam number now.

2) This examination consists of 25 pages. Make sure you have all pages now.Additional pages will NOT be given out after the exam begins under ANYcircumstances.

II. INSTRUCTIONS:

PART I-ESSAY

1) Part I consists of one essay question. You MUST take twenty minutes toread the fact pattern and get your thoughts together. You will then have aMAXIMUM of sixty minutes to work on Part I.

2) If you are writing this exam PLEASE start each new cause of action on anew sheet of paper. If you are typing this exam, you need simply to skip aspace or two between causes of action.

3) You must identifythe plaintiff(s)and defendant(s) for each cause ofaction discussed. If I cannotidentifyyourparties,you will NOTreceivecreditfor youranswer.

Please make sure your answer is as reader-friendly as possible: using afont size larger than 8 or writing on every other line in a legible handwritingare "reader-friendly" examples.

PART II-SHORT ANSWER QUESTIONS

Part II of this exam consists of six short answer questions. You are to spend tenminutes reading through the six questions and choosing two of the six topics todiscuss. You are to spend a MAXIMUM of thirty minutes answering your twoquestions. As it is my intention to weigh the two equally--with a maximum amount

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Torts Final ExaminationProfessor NorwoodDecember 1812003

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of points obtainable--you should consider splittingyour time between the twoquestions equally.

PART III-MULTIPLECHOICE

1) Part IIIconsists of thirty-fourmultiple-choicequestions. You have amaximum of sixty minutes to complete Part III.

2)

3)

Use a number two pencil.

Completely fillin the slot of your choice.

4)

5)

Choose the best answer available.

You are to assume that the question calls for resolution by a jurisdictionfollowing the "majority rule" UNLESS the question specifies otherwise.

6) If you do not know the answer or are running out of time, GUESS! Nopoints are deducted for choosing the wrong answer.

7) You MUST turn in BOTH the actual multiple choice questions AND youranswer sheet in to the Proctor.

Any references to "§" are to sections of the Restatement (Second) of Torts.

III. VIOLATION OF THESE INSTRUCTIONS:

Please be advised that any violation of these instructions can, in my discretion,result in a total inability of you to receive credit for this course. The violation alsocan, at my discretion, be reported by me to the Honor Code Council.

Take a breath. GOOD LUCK!

Torts Final ExaminationProfessor NorwoodDecember 18. 2003 of 25

Part I - Exam No.

PART 1- ESSAY(TIME:20 MINUTESTO READ/GOMINUTESTO WRITE)

Beloware excerpts of an article that appeared in the New York Times onNovember 20, 2003:

Basic Failures by Ohio Utility Set Off Blackout, Report Finds

The largest blackout in North American history was set off by a series of human and computer failures atan Ohio power company, where workers could not act to halt an escalating crisis because they did not evenknow it existed, a panel of government and industry officials reported on Wednesday.

The report says that, even some 20 minutes before the lights went out from Detroit to New York City onAug. 14,the blackout could have been safely contained if not for the utility's malfunctioning computersandinadequately trained control room workers.

The report found that the utility, FirstEnergy,and the regionalagency that was supposed to be overseeingit, the Midwest Independent Transmission System Operator, also failed to contact neighboring powercompanies as the system unraveled, a violation of one of the essential rules governing the operation of theNation's power grid.! And the government officials who released the report charged that the worseningseries of transmission line failures that drove the wider collapse of power were the result in part of a failureby FirstEnergy to do the most basic maintenance of the company's transmission lines -- namely thetrimming of trees underneath and alongside the lines.

"This blackout was largely preventable," said Energy Secretary Spencer Abraham. . . .

FirstEnergy insisted that much of the reportwas factually wrong or questionable, and said the panel hadchosen to ignore underlying problems that many experts have pointed to, including the rise of long-distancetransmission of electricity and instability in the system brought on by deregulation.

"If we don't deal with the systematic issues that are affecting the power grid, we're not going to make anyheadwayhere," Anthony J. Alexander, president of FirstEnergy,said in a telephone interview. "The systemwas not designed to do what it's being asked to do on a daily basis."

FirstEnergywas hobbled by the failure of a computer programthat was supposed to set off alarms in thecompany's main control room when power lines failed or were stressed beyond their limits. That, in turn,caused the computer system itself to fail, and then a backup system, as well. It meant that operators in thecontrol room were getting delayed, incomplete information about the failures of transmission lines and power

1 Energy Secretary Spencer Abraham said the following of the Nation's electrical powergrid: It "is a complex and sensitive infrastructure that can only work properly when a delicatebalance of electric supply and demand is maintained across the system. To accomplish thisconstant balancing act, hundreds of people are at work 24 hours a day all across North Americato keep the grid operating." Regulators say ignorance, when dealing with the grid, threatens thestability of the entire system and thus, simply is unacceptable.

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Torts Final ExaminationProfessor NorwoodDecember.JJL. 2003 of 25

plants in their region.

When the Midwest I.S.O. had trouble with its "state estimator," a computer tool for determining whether thegrid was in trouble, a technician turned it off, tried to repair it, then forgot to turn it back on and went to lunch,the report says.

The reportalso says that three major FirstEnergy transmission lines shut down because they sagged intotrees -- not the one line officials had previously reported --and that those failures helped vault the Ohioproblems into a meltdown. Mr. Abraham said those failures were born of insufficient attention "to simple tree-trimming."

FirstEnergyofficials insisted that they abided by all tree-trimming rules and that the lines sagged becauseof aberrant conditions on the grid. . . .

[With its evidence of neglectful tree-trimming and main and back-up computer alarm failures, the reportlays the bulk of responsibility at FirstEnergy's dooL]

Chart: "Leading Up to the Blackout"

["Three high-voltagetransmission lines operated by FirstEnergyshort-circuited and went out of service whenthey came into contact with trees that were too close to the lines."]

12:15 P.M. -- The "state estimator," a program used by the Midwest I.S.O. to determine if the grid is introuble, stops producing accurate results.

1:07 P.M. -- A technician attempts to fix the state estimator, but forgets to turn it back on after his repairsand goes to lunch. It continues to malfunction for the rest of the afternoon.

2:14 P.M. -- [Totally independent from what was going on at Midwest I.S.O.,]FirstEnergy's alarm system,which notifies control room operators of line failures, freezes up and stops issuing warnings.

2:41 P.M.-- The computer running the alarm system fails, and a backup takes over.

2:54 P.M. to 3:08 P.M. -- The backup computer fails. While technicians are fixing it, control room operators'terminals slow down, causing operations that normally take seconds to take up to a minute.

3:05 P.M.-- [Another] FirstEnergy . . .line fails. Since the alarm system is not working, operators do notknow of the failure, and do not perform an analysis to determine if further failures would cause problems.The Midwest I.S.O. is also unaware of the failure [so it does not account for it in a program used to monitorpower flow] . . . .

3:08 P.M. -- FirstEnergy technicians finish restarting the failed computer, but do not check with the controlroom to make sure the alarm system works. It is still frozen.

3:32 P.M. -- [Another] FirstEnergy . . . line fails. The alarm system does not notify the operators.

3:45 P.M.-- After receiving phone calls from other power companies, FirstEnergy operators first begin tobecome aware of the severity of the situation. Additional lines begin to fail.

3:46 P.M. to 3:59 P.M. -- As technicians again try to fix the computers running the alarm system, theoperators' terminals slow down.

EXAMINATIONCONTINUESONNEXTPAGE


4:10 P.M. -- The line failures cascade into a blackout across the Northeast and parts of Canada.

As you might realize, blackouts occur every day somewhere in the United States.They are not, then, terribly unforeseeable. This particular one, the largest of its kind,resulted in the disruption of millions of lives and billions in economic losses. Seriouspersonal injuries also were felt. For purposes of this examination I have taken examplesof some of the kinds of personal injury losses sustained and adapted same for use as oureducational tool. Please, then, consider the following:

Swimmers at a local lake in Detroit that day were literally covered with some of themillions of gallons of raw sewage that found its way into the water as a result of theblackout. The water company at issue-CleanWaterAlways, Inc.-did have not back-upgenerators for emergency use in the event of a shut-down of the electrically operatedwater pumps. CleanWaterAlways had lost power in the past and had experienced thenasty effects of bacteria filled drinking water, raw sewage back-ups in basements, and thelike. It was expensive to buy such a generator though. Indeed, expense alone keptvirtually all of the water companies in the state from purchasing them. Generators,however, had been available for years and water companies in almost all of the morepopulated states utilized them. Had one of these generators been in use on August 14,2003, the raw sewage would not have found its way into nearby city waters.

One Detroit swimmer, Jane Doe, suffered severe emotional distress when shefound herself covered in human excrement, some of which made its way into her mouth,nostrils, and other areas. She ran from the water screaming uncontrollably. She sufferedviolent and continued vomiting. The stress of the event caused an aneurism in Jane'sbrain to rupture. This condition was previously unknown to Jane and it is unknown howlong Jane would have gone on with her daily life without ever triggering the aneurism.The aneurism threw Jane into a coma. After three months of living in a persistentvegetative state, the hospital recommended that her feeding tubes be removed. Jane'slive-in lover of ten years (and only thing Jane had to a relative) was a woman by the nameof Betty. Betty ultimately was asked for permission to remove the tubes. Although Janewould have wanted to stay connected, Betty allowed the hospital to remove the tubes.With Betty by her side, Jane died a week later.

In New York City, another woman, let's call her Kim, died in route to the hospital.Kim, a fifty year old overweight pack-a-day smoker with a history of heart problems, wassitting at her desk on the 38thfloor of her employer's office building when the blackoutoccurred. Terribly afraid of being trapped Kim grabbed one of her co-workers--and alsoher best friend-Ron, and started frantically trying to get to the stairs. It was about 6 p.m.Although the pair normally got off at 4, they decided to work overtime this particularevening. Unknown to them the building's public announcement ("PA") system told of theemergency and directed listeners to specified elevators, on a back-up generator system,then still functioning. Kim's employer was responsible for maintaining the.building's PAsystem and undisputably neglected to do that. As a result, no one could understand the

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Torts Final ExaminationProfessor NorwoodDecember 18~ 2003 of 25

words the garbled message intended to convey.

Kimfound the stairs and started running, frantically,down them. Ron yelled andpleaded with her to slow down and reminded her of her heart problems. By the time Kimheeded Ron's warning, she had made it to 18thfloorbut was then gasping for breath andturning pale. It was clear to Ron that she was having a heart attack. Withinseconds Rontried to call an ambulance. The phones worked sporadically for one or two seconds at atime. Ron tried over and over to access service. Apparently the phone carrier had failed,in clear violationof FCC regulations to the contrary, to back up its central hubs in theevent of a blackout. This failure caused the 911 system to overload and it paralyzedthousandsof phonelines in the city. The phonecarriersimplywasunable,then,tohandlethe almost200% surgein phonecallsduringthe blackout.

After nearly thirty minutes of trying Ron finally was able to connect with an EMS.An ambulance was dispatched. Although priority one calls like Kim's normally areresponded to in about six minutes, traffic gridlock and early chaos prevented the EMSfrom reaching Kim for an hour. For identical reasons it took yet another hour to get to thehospital. Kim died of heart failure the moment the ambulance pulled into the hospital'sdriveway, almost three hours after the heart attack began. She died in her best friend'sarms. It was a harrowing and deeply depressing experience for Ron. As Kim had nospouse or other identifiable family Ron was appointed as the personal representative ofKim's estate.

ASSIGNMENT:

While the list of potential plaintiffs is great, we only have one hour. Let's focus,then, on Jane, Betty, Kim, and Ron. Might any of them assert causes of action? Againstwhom? For what? With what results? Midwest I.S.O is immune from civil liability forpurposes of this exam. No other immunities apply. See the following page for the text ofthe state's applicable survival and wrongful death statutes.

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Torts Final ExaminationProfessor NorwoodDecember 1812003 of 25

TEXTOF APPLICABLE SURVIVALANDWRONGFULDEATHSTATUTES:

411.130 Action (or wroqfal datil; persoaaI represeat:a-dye to prosecute; disaibution oCalDoaat reco,ered

(1) Whenever the death of a person results from aninjury inflicted by the negligence or wrongful act ofanother. damages may be recovered for the death from theperson who caused it. or whose agent or servant caused iL Ifthe act was willful or tbe negligence gross. punitive damagesmay be recovered. The action shall be prosecuted by thepersonal representative of the deceased.

(2) The amount recovered. less funero expenses and thecost of administration and costs of recovery including attor-ney fees. not included in the recovery from the defendant.shall be for the benefit of and go to the kindred of thedecC3Sed in the following order:

* * 7'-

(d) If the dCCC3Sedleaves no widow,husband or child.then the recoveryshall pass to the mother and father of thedeceased. one (I) moicry each. if both are living; if themother is dead and the father is living, the whole thereofshall pass to the father: and if the father is dead and themother living, the wholethereof shall go to the mother. Inthe event the deceased was an adopted person. "mother"

and "father" shall mean the adoptive parents of thedeceased.

(e) If the deceased leaves no widow,husband or child.and if botb father and mother are dead, then the whole ofthe recovery shall become a part of the personalestate oftbe deceased. and after tbe payment of his debts tberemainder. if any, shall pass to his kindred more remotethan those above named. according to the law of descentand distribution.

411.133 Joinder oCWTODgfuldeath IUIdpersoaal injuryadioDS .

It shaJJ be lawful for the personal representative of adecedent who was injured by reason of the tonious acts ofanother. and later dies from such injuries. to recoverin tbesame action for both the wrongful death of the decedentand for the personal injuries from which the decedentsuf.feted prior to death, includinga recoveryfor allelementsofdamages in both a wrongful death action and a personalinjury action.

END OF PART I

411.140 WIw actio. sJaaJlsamye

No right of action for personal injury or for injury toreal or personal property shall CC3Sear die with the personinjuring or injured. except actions for slander, libel. crimi.naI conversation. and so mucb of the action for maliciousprosecution as is intended to recover for the personalinjury. For any other injury an action may be brought orrevived by the personal representative. or against the per-sonal representative.heir or devisee.in the same manner ascauses of action founded on contract.


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PART II-SHORT ANSWER QUESTIONS(10 MINUTESTO READ/30 MINUTESTO ANSWER)

Below are six topics for discussion. Select and discuss--from a policyperspective-two of the six items. Discuss not only public policy issues, but tort-lawconcerns relevant to your analysis. Hopefully you trust by now that I value and aminterested in diverse viewpoints. Argue your belief and support it with policy and law (orhoped-for law):

1) Below is a reproduction of an article that appeared in the Post Dispatch onSunday, November 28, 2003. Read it. Should Wal-Mart owe a duty of care to thiscustomer? Why? Under what circumstances should a duty be imposed? If noduty should be imposed, why not?

tm\TODHYrom.,r$I: UJUn WSt snrr

[Print) [Close)

Mob tramples woman to get to DVD sale at Wal-MartTHE ASSOCIATED PRESSPublished: Sunday, Nov. 302003

She Is knockedunconscious, hospitalized

ORANGE CITY, Fla. - A mob of shoppers rushing for a sale on DVD playerstrampled the first woman In line and knocked her unconscious as they scrambledfor tne shelves at a Wal-Mart Supercenter.

Patricia Van Lester had planned to buy a $29 DVD player, but when the sirenblared at 6 a.m. Friday announcing the start to the post-Thanksgiving sale, the41-year-old was knocked to the ground by the frenzy of shoppers behind her.

"She got pushed down, and they walked over her like a herd of elephants." saidVanLester's sister, Linda Ellzey. .1 told them, 'Stop stepping on my slsterlShe's on the ground".

Ellzey said some shoppers tried to help VanLester, and one employee helpedEllzey r~ach her sister, but most people just continued their rush for deals.

"All they cared about was a stupid DVD player," she said Saturday.

Paramedics called to the store found VanLester unconscious on top ofa DVD player, surrounded by shoppers seemingly oblivious to her, said MarkO'Keefe, a spokesman for EVAC Ambulance.

VanLester was flown to Halifax Medical Center In Daytona Beach, where doctorstold the family VanLester had a seizure after she was knocked down and wouldlikely remain hospitalized through the weekend, Ellzey said. Hospital officialssaid Saturday they did not have any Information on her condition.

"She's all black and blue," Ellzey said. "Patty doesn't remember anything. Shestill can't believe It all happened."

Ellzey said Wal-Mart officials called later Friday to ask about her sister, andthe store apologized a.nd offered to put a DVD player on hold for her.

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2) Should state high courts abolish the general rule of "no duty to rescue" (and itsnumerous exceptions) and substitute in its place a duty of reasonable care underthe circumstances? Yes? What restrictions, if any, should be placed on the newrule? If not, why not?

3) In the absence of controlling legislation, should state high courts adopt a rule of"social host liability," under which one who serves alcohol to a guest is held liablein negligence for those injuries caused by and which foreseeably result from theguest's intoxication? What limits, if any, should be placed on the rule?

4) Should hate speech become a tort in its own right (separate from the tort ofoutrage, for example)? So far, the term hate speech includes racial slurs, epithets,and other forms of "racist speech," gay bashing, and sexual/sexual preference/andgender-related harassment. Should such a cause of action be created? Underwhat circumstances? If not, why not?

5) Recently a 45-year-old hospital patient suffered a heart attack and was rushed tothe hospital. He was given electric shock treatment. The shock was administeredby a hospital nurse who was unaware that the patient had signed documentsforbidding resuscitation. There was no evidence that the treatment was renderednegligently. The "do not resuscitate" order had been negligently misplaced byanother hospital employee. The man survived, recovered, and was discharged.He filed what he calls a "wrongful life" claim against the hospital. He claims thatthe hospital wrongfully saved his life. The suit is the first of its kind in the stateinvolved. Should the state high court recognize such a cause of action? Why?How should damages be determined? If not, why not and are there anycircumstances when such a cause of action should be allowed?

6) Should the parents, relatives, and/or close friends of "X" be liable in negligence to"Y" for failure to warn "Y" of the danger posed by "X" if the otherwise HIV positive"X" engages in unprotected sex with the unsuspecting "Y"? Assume for purposesof this question that the parents/relatives/closefriends of "X" know that "X" is HIVpositive and know that "X " has not shared this information with "Y". Liability?Why? If not, why not?

END OF PART II


new cause of action on a new sheet of paper. identify the

Documents