Mr. Fischer May 9, 2001
8:30 a.m.-11:30 a.m..
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.
4. Turn in your papers promptly at 11:30 a.m.
5. The incidents described in these questions arise in a jurisdiction that recognizes contributory negligence as complete defense to a negligence action.
Customer was eating dinner at Restaurant when he looked out the window and saw a man beating up a woman in the restaurant's parking lot. He asked the Restaurant employees to assist her or to call the police. They refused to assist in any way. Immediately after this conversation Customer went outside to speak to the man. After speaking with him, however, the man, Ruffneck, attacked and beat him. The attack occurred within three minutes after Customer left the restaurant to talk to the man.
Customer has now sued Restaurant for his injuries. He alleges that Restaurant negligently failed: to provide adequate security in the parking lot; to warn customers of the danger on its premises; and to aid the woman during the attack. Customer points to a prior assault occurring on the premises 9 years earlier and more than 20 arrests in the parking lot over the past 5 years for possession of drugs, public drunkenness and resisting arrest.
Discuss the issues raised by his lawsuit.
Diane owns a large field in a rural area of rolling hills with few trees. She has planted the field in native prairie grasses in order to restore the field to its natural condition. The grass is about four feet tall in most of the field. Her field is bordered by county roads. Local residents living in a residential area on the south side of her field frequently use the field as a shortcut to access a road on the north side of the field. In fact, this shortcut has become a well worn path across the field. Most of these residents use the path for walking, but a few ride motorcycles and bicycles on it. Diane was aware of the pedestrian traffic but did not know about the bicycle or motorcycle traffic. She objects to the use of the path across her field and has posted no trespassing signs at both ends of the path. When she discovers a person using the path without permission, she asks that person to leave. She has had several repeat offenders prosecuted for trespass.
Every few years Diane has the field burned off to simulate prairie fires that occurred naturally before the area was settled. Last fall she hired a firm (FiresCorp) that specializes in conducting controlled burns to burn off her field. The firm's crew planned to conduct the burn beginning at noon from west to east. The crew used all available state of the art measures to supervise and control the fire. Diane informed the crew leader of the existence of the path across her field, and she instructed the crew to check out the path to insure that no one was on it at the time of the burn. The crew leader agreed to do this, but forgot his promise in the haste of the preparations for the fire. The crew lit the fire without checking the path.
At 10:00 a.m. on the day of the fire Pat (age 20) rode his motorcycle on the path across Diane's field. The motorcycle broke down in the middle of the field. Pat decided to conceal the motorcycle in the tall grass next to the path and walk to town to get the part he needed to fix the motorcycle. The motorcycle was destroyed by the fire before Pat returned to repair it.
Pat sues Diane, claiming that she is liable for the negligence of FiresCorp. Pat seeks compensation for the loss of the motorcycle. Discuss the merits of this claim against Diane. You need not discuss any affirmative defenses that Diane may raise in the action.
This question is based on the facts of Essay II.
After the fire destroyed Pat's motorcycle a sudden and completely unforeseeable change in wind direction caused the fire to abruptly change direction from east to north. The fire spread outside of Diane's field and caught a truck on fire that was parked near the county road north of Diane's field. The truck was owned by the county and loaded with oil that the county intended to spread on the gravel road to control dust. The truck fire caused a large amount of thick smoke that enveloped the road near the fire. A car driven by Paula entered the smokey area and crashed into a car parked on the side of the road. Paula hit the car because she could not see where she was driving due to the smoke. Paula was unable to avoid entering the smoke-covered area because she was driving at a greatly excessive speed. If she had been driving at an appropriate speed, she would have been able to stop before reaching the smoke.
Paula sues FiresCorp for the injuries sustained in the accident. She sues on both a negligence and a strict liability theory. Please evaluate her chances of recovery on the strict liability theory only. You need not discuss the negligence theory.