Final Examination

Mr. Fischer

December 5, 2000

8:30 a.m.-10:30 a.m.

Instructions

1. This examination consists of 3 essay questions and 4 pages (pages 1 through 4). The time suggested for each question indicates its approximate weight.

2. Please use a pen, write legibly, and write on only one side of a bluebook page.

3. Each answer should be self-contained. Thus, you should not "incorporate by reference" anything from one answer to another.

Essay I

[45 Minutes]

Jane purchased a new technology hybrid car manufactured by CarCo. This vehicle was powered part of the time by a small gasoline engine and part of the time by an electric motor. Because the gasoline engine was small, it vibrated more while running than a standard automobile engine. Eventually these vibrations caused the copper fuel line between the engine and the gasoline tank to crack because of metal fatigue. Gasoline leaked from the cracked fuel line onto Jane's garage floor. Fumes from the gasoline on the floor came into contact with a pilot light in an appliance and caught fire. The fire destroyed Jane's car and damaged her garage.

The CarCo engineers that designed Jane's car did not anticipate the metal fatigue that lead to the fire in question. The problem, if known, was easily correctable with existing technology by simply using a plastic fuel line rather than a copper one. CarCo has sufficient evidence to justify a jury finding that a reasonable automobile designer, at the time Jane's car was designed,would not have anticipated the metal fatigue problem. Jane has no evidence to rebut this.

CarCo. purchased the fuel line from TubeCo, a manufacturer of a wide variety of general purpose tubing made from a variety of materials including plastic as well as copper. Jane purchased her car directly from CarCo.

Jane brings a products liability action against CarCo and TubeCo seeking compensation for her damages. How do you think the case will be resolved? Fully discuss the reasons for your conclusions.

Essay II

[35 Minutes]

Pat, a dog owner, suffered a severe allergic reaction after using flea control shampoo on his dog, and this reaction has caused him substantial harm. The shampoo, manufactured by PetCorp came with a label listing d-Limonene as its active ingredient. The directions on the label stated that people with sensitive skin should use protective gloves when applying the product to their pets. Pat read the label before using the shampoo, but did not use protective gloves because he did not regard his skin as being sensitive.

Pat brought a products liability failure to warn action against PetCorp. Pat asserts that PetCorp should have warned on its label that d-Limonene is a sensitizer to which some people are allergic, and that all persons who use the product should wear protective gloves unless they know that they are not allergic to d-Limonene.

Pat's father is allergic to d-Limonene. Pat will testify that at the time he used the shampoo, he recalled only that his father was allergic to a pesticide, but that he could not remember which one. Pat believes that allergies run in families. He also believes that if the suggested warning had been on the label he would have done one of two things. First, he might have used the product and worn gloves. Alternatively, he might have checked with his father and learned that his father was allergic to d-Limonene. Upon learning this, he would have declined to use the product.

PetCorp has evidence that only approximately one person in 100,000 develops an allergy to d-Limonene. It also has evidence that Pat uses a variety of pesticides in his garden, and that Pat has never checked with his father to see if his father is allergic to any of them.

How do you expect the case to be resolved? Fully discuss the reasons for your conclusions. For purposes of this question you may assume that all of the evidence discussed above is admissible.

Essay III

[40 Minutes]

In January, 2000 Sanders was injured in a rollover accident that occurred while she was driving her 1998 Power Four, a sport utility vehicle manufactured by AutoCo. The term "sport utility vehicle" (SUV) is used to describe multipurpose vehicles with four-wheel drive or other features, such as high clearance, for off-road use.

Sanders was traveling south at approximately 55 miles per hour on a portion of State Highway 39, a two-lane highway with wide, paved shoulders. The speed limit on that highway is 55 miles per hour. Sanders rounded a corner, and she saw a car stalled in her lane of traffic. To avoid a collision with the stalled car, Sanders sharply steered her vehicle to the right on to the paved shoulder and passed the stopped car. To prevent the Power Four from going off the pavement on the right side of the highway, Sanders countersteered quickly to the left, sending the vehicle across both her lane of travel and the northbound lane. She then countersteered again, back to the right, to avoid leaving the road on the left side. After that third steering input, the Power Four began to roll. It rolled over twice and then came to rest fully upright in the center of the highway, without ever having left the pavement. In the course of the rollover, the roof over the front driver seat was crushed, and Sanders suffered physical injuries.

Sanders brought a tort action against AutoCo seeking actual damages. She claims that AutoCo's design for the Power Four was defective and unreasonably dangerous in that it made the car unstable and prone to rollover.

Sanders has admissible expert testimony establishing that the rollover was caused by the vehicle's tendency to roll because of the height of its center of gravity. The testimony will also establish that one of AutoCo's competitors sold a 1998 model SUV which was lighter, had a wider track width, and a lower center of gravity than the 1998 Power Four. This competing vehicle achieved a substantially increased degree of stability on paved roads. Because of its lower center of gravity and wider wheel track, it is very unlikely that a vehicle with the competing design would have rolled over in the circumstances in which Sanders was injured. Sanders claims that the Power Four was defective because it did not use the competitor's design.

AutoCo has admissible evidence that will establish that the alternative design would have made the Power Four less well suited for off the road use. A lighter vehicle would have less traction in extremely muddy conditions. Because the chassis is closer to the ground, the vehicle would be less able to pass over large obstacles often found in four-wheel-drive roads. AutoCo's evidence also shows that at the time of the accident Sanders was illegally using the vehicle to smuggle illicit drugs into the state. The drugs were hidden inside the vehicle's spare tire.

Admissible evidence shows that SUV's with high centers of gravity are involved in 15% more rollover accidents than standard passenger cars. Rollover accidents often cause serious injuries to passengers. An admissible survey shows that on average fewer than three percent of Power Four buyers ever use their Power Fours for the off-road purposes for which they were designed. They are used primarily by wealthy, older drivers who use SUVs primarily as commuting and passenger cars.

How do you think Sanders' claim against AutoCo will be resolved? Fully discuss the reasons for your conclusions.