8:30 a.m.-10:30 a.m.
1. This portion of the examination consists of 3 essay questions and 4 pages (pages 1 through 4). Before you begin, check to see that
you have all pages and that they are in the correct order.
2. You have 2 hours for this examination. You may allocate your time in any way you choose, but the time suggested for each
question indicates its approximate weight.
3. Please use a pen, write legibly, and write on only one side of a bluebook page. Please number your pages and, if you use more than
one bluebook, please number your bluebooks.
4. Read each question carefully. Assume that the events at issue took place in an unidentified American state. If you believe you need to know more information about the question in order to resolve an issue raised by the facts given, tell me what you need to know and how it would affect your analysis. Answer the questions based on majority, and if applicable, minority rules. Do not add facts to create issues not already raised by the facts given. Do not make implicit assumptions. Be sure to address all issues raised by the facts even if you think a single issue is dispositive.
5. Each answer should be self-contained. Thus, you should not "incorporate by reference" anything from one answer to another.
Parker was the shift leader of the University Park Mall custodial crew. Last July, Young, one of the employees under Parker's supervision, was using a street sweeper, manufactured by SweeperCo, to sweep the mall parking lot. Young noticed a pool of fluid accumulating underneath the sweeper, and shortly thereafter, the sweeper's broom (which swept up debris) stopped operating. Young reported the problem to Parker who proceeded to inspect the sweeper for the source of the problem. Deducing that the pool of fluid was hydraulic fluid, Parker obtained a can of hydraulic fluid manufactured by FluidCo. Parker added this can of hydraulic fluid to the reservoir and took the sweeper into the maintenance bay for a more thorough inspection.
Once in the maintenance area, Parker continued in his attempt to locate the source of the leak. With the sweeper turned off, Parker removed the exterior and interior steel panels in order to access the hydraulic hoses. Parker next ran his hand along the hoses to detect any worn spots. Finding what he believed to be the source of the leak, Parker, with his finger over the hole, instructed Young to turn on the sweeper's engine. Nothing happened. Next, Parker, with his finger still over the hole, told Young to pressurize the hydraulic line. Immediately, high-pressure hydraulic fluid was injected into Parker's hand, causing him permanent injuries.
Parker brings suit based on failure to warn against SweeperCo, the maker of the sweeper, and against FluidCo, the maker of the hydraulic fluid used in the sweeper. Parker contends that the sweeper is defective because SweeperCo failed to post warnings on its sweeper concerning the risk of injuries from hydraulic fluid leaks. Parker also contends that the hydraulic fluid is defective because FluidCo failed to post warnings on its can concerning the risk of injuries from hydraulic fluid leaks. How do you think the case will be decided?
In 1998 Pamela Porter underwent arthroscopic knee surgery at Mercy Hospital. During the surgical procedure, an arthroscopic scissor blade broke off inside the knee joint and "floated away". It became imperative to open up the entire knee joint to find the blade. As a result of the failure of the scissors during surgery, and the subsequent surgery to retrieve the broken blade, Porter developed sympathetic dystrophy. Her condition will continue to deteriorate and she will probably require a future total knee replacement.
Prior to 1996 arthroscopic scissor blades broke with some frequency, and this breakage problem was generally known within the medical and scientific communities. In 1996 Duncan Medical Instruments Corporation ("Duncan") introduced a new model of arthroscopic scissors made out of martensitic stainless steel, a new stronger material developed by Duncan to make the scissor blades more resistant to breaking than blades made prior to 1996. In fact, the new scissors represented an improvement in technology because they broke much less frequently than earlier models. The scissors used in Porter's operation were the new model manufactured by Duncan in 1996. Duncan sold them to Mercy Hospital.
Porter has experts who will testify that the scissors used in her operation broke due to a condition known as stress corrosion cracking. This cracking resulted because martensitic stainless steel is susceptible to stress corrosion cracking, and arthroscopic scissor blades are exposed to chloride ions or salts which cause this material to corrode after they are put in use. Earlier scissor models were made of materials that were not susceptible to stress corrosion cracking. Yet, they broke more frequently than scissors made out of martensitic stainless steel because they were generally not as strong.
Porter's operation was the first known instance where an arthroscopic scissor blade broke because of stress corrosion cracking. Prior to Porter's operation the medical and scientific communities was unaware of the risk that an arthroscopic scissor blade would break for this reason. After this discovery, Duncan spent eighteen months developing an improved material that is as strong as martensitic stainless steel, but is not subject to stress corrosion cracking. Duncan first marketed arthroscopic scissors made out of this new material in 2000.
Porter sues Duncan on a strict products liability theory claiming that the 1996 scissor was defectively designed. She brings suit in a jurisdiction that determines whether a product is defective in design by applying the rule in Barker v. Lull Engineering Co (this is the case that applies the two major tests of defect in the disjunctive). How do you think the case will be decided?
Prentis was seriously injured when he choked on a salmon bone in a can of salmon canned and sold by CanCo. Prentis sues CanCo for his damages. How will Prentis' case be resolved under the approaches we studied in class. Which resolution represents the best public policy? In answering this question, you need not discuss liability based on a failure to warn theory.