Examination Number ________________





Civil Procedure II, 5015L, Section 1



Professor Carl H. Esbeck Winter Semester 2005




Directions to Part II - Essay

(60 minutes)


If you have elected to use your laptop computer, the instructions below concerning bluebooks do not apply.


Write your answer in the bluebook provided. Use a pen with blue or black ink.

Write on only one side of each page. Do not write in the left-hand margin. Do not tear pages out of the bluebook.


Arrange your answers in sequential order. That is, put Question 1 first, then Question 2, and etc. If you want to skip over a question and come back to it later, leave a page or two blank and begin the next question.


Place your examination number in the upper right-hand corner of this examination.

When finished, return both your bluebook and these examination questions.


You may bring with you to the examination only your casebook, federal rules supplement, and your own classroom notes. You may also bring a course outline if it is entirely your own work product.


* * * Part II Begins on the Next Page * * *








PART II (60 minutes)



Question One (45 minutes):


Taylor is a bricklayer employed by Alfa Company, a commercial building contractor. Alfa Co. had been awarded a contract to put a brick facing on a six-story building going up in downtown Kansas City, Missouri. Although the regular working day had finished at 5 p.m., Taylor was still on the job site. Taylor was showing Jane, his girlfriend there to pick him up from work, the third story of the new building. Jane stumbled over some bricks, Taylor reached out to grab her, and both fell 22 feet and sent a pile of bricks down on their heads. Jane had a broken leg and collar bone; Taylor has since been in a coma.


Jane sued Alfa Co. in U.S. District Court for the Western District of Missouri alleging Taylor's negligence. [Under respondeat superior, an employer is vicariously liable for the torts of employees when acting in the scope of their employment.] Alfa denied Taylor was negligent and denied that Taylor was within the scope of his employment. Alfa also maintained that Jane was contributory negligent when she entered a dangerous construction site and then was careless where she stepped. Following a three-day bench trial, the judge found that Taylor was not negligent, that Taylor was not within the scope of his employment, and that Jane was 100% negligent. Judgment was entered for Alfa Company and Jane appealed. The opinion by the court of appeals affirmed the finding with respect to Taylor not acting within the scope of employment. However, the appeals court reversed the determination as to Jane and instead found her 50% negligent.

In the same federal court, Jane now sues Taylor alleging his negligence. Jane also joins Alfa Co. alleging the company was negligent in having a policy allowing visitors to a dangerous job site.


(A)    How might Alfa Company respond? Explain.


(B)    Should Jane raise issue preclusion against Taylor? Explain.


(C)    Should Taylor raise issue preclusion against Jane? Explain.


(D)    If the court had no compulsory counterclaim rule, should Taylor nonetheless bring a counterclaim for his injuries? Explain.



Question Two (15 minutes):


Assume a federal court lawsuit where the plaintiff's prima facie case is rather weak, such as Laveder v. Kurn. Further assume that defendant moves for a judgment as a matter of law at the close of all the evidence and it is denied. The jury retires and soon returns with a verdict for plaintiff in the amount of $500,000. A week later a judgment is entered on the verdict. Five more days pass and defendant moves for a judgment m.o.l. and in the alternative for a new trial. The trial court grants the judgment m.o.l.


(A) Must the trial court rule on the new trial motion? Explain.


(B) Assuming the trial court wants to rule on the new trial motion, out of shear logic must it also grant a new trial because the verdict is against the weight of the evidence? Explain.






Return both your bluebook and these examination questions.