School of Law

Torts I §§ 1 & 2

Final Examination



Mr. Fischer December 5, 2001

1:00 p.m.--4:00 p.m.

General Instructions For Both Parts of Exam

This examination is in two parts. Part I consists of 3 essay questions. Part II consists of 35 multiple choice questions and an ANSWER SHEET. You should spend 110 minutes on Part I and 70 minutes on Part II.

The multiple choice questions must be returned along with the answer sheets prior to picking up the essay questions.

Instructions for Essay Questions

1. This portion of the 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

[35 Minutes]

Potts, a 67-year-old male, went to Dobbs, a physician, in regard to a hernia condition. Dobbs examined Potts, and decided that the best course was to surgically repair the condition. Dobbs decided to use a spinal anesthesia for the operation because this would put less stress on Potts' heart than general anesthesia. She was concerned about Potts' heart because of his age, not because of his physical condition (which was excellent). Potts consented to the operation after Dobbs fully explained the procedure and her reasons for preferring spinal anesthesia over general anesthesia.

When Dobbs administered the spinal anesthesia Potts felt an extremely intense pain in his back. After the operation, and at the time of trial, Potts had no sensory feeling from his navel to his knees, and he was unable to urinate without the use of tranquilizers. Dobbs states that she administered the anesthesia in the normal way. She cannot explain what caused the pain or loss of feeling.

Potts is considering a malpractice lawsuit against Dobbs. Potts has four medical experts who would testify on his behalf. They all agree on the following: 1) that the loss of sensory feeling is permanent; and 2) that the loss of sensory feeling is unusual in that it happens very seldom, i.e., one would not ordinarily expect a permanent sensory loss from a spinal anesthesia.

Two of these experts would also testify that they would personally have used general anesthesia in Potts' case in order to avoid the small risk of nerve damage posed by spinal anesthesia. They would state that because of Potts' excellent physical condition the stress on Potts' heart caused by general anesthesia is not a significant concern.

Discuss Potts' chances of maintaining a successful malpractice suit against Dobbs. Explain the basis for your conclusions.

Essay II

[45 Minutes]

On a very hot sunny summer day Maria put her three-year-old child in his car seat and drove with him to a shopping center. She parked in a parking lot near near a lawn and garden store owned by Dan. A section of the garden center was partly outside the building, and was surrounded by a chain link fence. This area was accessible through a gate that was open during business hours.

Maria got out of the car. Prior to removing her child from the car, she accidentally locked her keys, her purse, and her child in the car. Maria became very alarmed because she knew that heat from the sun could heat the interior of the car to dangerous levels very quickly, and the heat would pose a grave danger to her child. She realized that she did not have time to call a locksmith to open her door. She decided to locate a tool and break the car door window so that she could unlock the door herself.

Finding no tool, Maria ran into the garden center through the gate and located a hammer that was for sale in the center. She grabbed the hammer and started to leave the center. Dan saw Maria about to leave the store without paying for the hammer and asked her to stop. Maria stopped to explain her situation. She told Dan that she needed the hammer to rescue her child from the rapidly heating car, and that she could not pay for it now because her money was locked in the car with the child. She promised to pay for the hammer as soon as she got her child out of the car. Dan refused to believe Maria because a thief used a similar story to steal a hammer the week before. Dan insisted that Maria leave the hammer in the store. Being desperate, Maria ran out of the garden center with the hammer. Dan followed and grabbed her. He then began wresting with her for the hammer. Because Maria fought very hard, the struggle lasted for several minutes. A passing police office observed the fight and intervened to break it up. Upon learning the facts, the officer returned the hammer to Dan and opened Maria's car door so that she could remove the child.

Maria suffered physical injuries, but only minor mental distress, as a result of her fight with Dan. Dan was also moderately injured in the fight.

What are the rights and liabilities of Maria and Dan arising out of this incident?

Essay III

[30 Minutes]

Diane lived in a residential area on Smith Street near the intersection of Smith Street and Main Street. A city ordinance prohibits drivers heading west on Main Street from turning left from Main Street onto Smith Street. Almost all residents living off of Smith Street, however, routinely violate this ordinance when driving west on Main Street because the alternative routes from Main Street to Smith Street are much longer and less convenient.

Diane was driving home on Main Street and made an illegal left turn onto Smith Street. As she completed her turn, her car hit a patch of ice and slid sideways into Paul's yard. Diane's car knocked down a portion of Paul's fence, and Paul's pet goat escaped. The goat ran into the street and was hit by a car and killed. Paul kept the goat in violation of a state statute that prohibits keeping livestock (including goats) within the limits of a city.

Paul sues Diane for causing the death of the goat. How do you think the case will be decided? Fully discuss the reasons for your conclusion.