University of Missouri - Columbia
School of Law
Torts § I - Mitchell
Tuesday, December 11, 2007
1:30 p.m. - 5:00 p.m.
1. You have 3 ½ hours to complete the examination.
Part I - Essay (3 hours). The suggested time for each question indicates the weight each question will be given.
Part II - Objective (30 minutes)
2. Read the questions carefully. Think before you write. Assume that the events took place in an unidentified American jurisdiction. Answer the questions based on the majority rules.
3. Do not add facts to create issues not already raised by the facts given. Do not make implicit assumptions. Address all issues raised by the facts in answering the question.
4. Citing cases indicating the rule and in your analysis is not required but may be helpful.
1. The final exam is a closed-book exam. You may use an outline that you prepared in whole or in part on both the essay and objective portions. The use of commercial outlines, hornbooks, and any other material is prohibited.
2. You may NOT consult anyone during the exam.
3. You must turn in all parts of the exam at the end of the allotted time whether you have finished or not.
Hand Written Exams
Please use a blue or black ink pen. Please write legibly and on only one side of a bluebook page. Please number your pages and, if you use more than one blue book, please number your bluebooks. If you forget something, you can insert it on the opposing blank page.
UNIVERSITY OF MISSOURI‑COLUMBIA
SCHOOL OF LAW
TORTS ' 1
Part I - ESSAY
December 11, 2007
1:30 p.m. - 5:00 p.m.
Part I of the final exam consists of ONE (1) FACT PATTERN. There are THREE (3) questions relating to the fact pattern. Please write a coherent, well-thought and well analyzed essay that demonstrates your knowledge of the legal issues.
Happy Fourth of July! It started as a joyous celebration; unfortunately, it did not end that way. Dana and Frank West were twins whose 21st birthday was July 4, 2007. Dana and Frank decided to co-host a party at the house their parents left them in their will. While Dana, who was studying to be a structural engineer, agreed to orchestrate the fireworks show, Frank was in charge of the food and alcohol.The day before the big bash, Dana visited "Eddie's Explosives Emporium" to purchase all the explosives for the big celebration. Dana told Eddie that she was putting on a fireworks exhibition at her house the next day and wanted some "good ones," but unfamiliar with the various types of fireworks. Eddie said "I've got just the things you need," and proceeded to take her around the store pointing out the different types of fireworks and explaining how to use them. Dana purchased several thousand dollars worth of fireworks, and told Eddie that she would stop by the next morning to pick them up because her mini-cooper was too small to take all of them today.
The morning of the party arrived and Dana and Frank were excited. Dana, realizing that she needed a pick-up truck, asked her best friend Paula, who had been invited to the party, if she would go with her to Eddie's. Paula agreed and off they went to Eddie's. Paula called Eddie and told him that she was on her way. As usual, this was the busiest time of the year for Eddie who had completely forgotten to pack up Dana's order. Eddie rushed around the store picking out fireworks and mortars. He made sure that each firework had a warning label and directions for how to use on it. For some reason, the last batch of fireworks from Fireworks Fiesta Ltd., his overseas manufacturer, had been packed with too much gunpowder, causing louder than expected bangs and some minor fire damage from the fallout of sparks. The manufacturer however had assured Eddie that the problem had been corrected but also said that the packing of the powder is done by machine and sometimes there are glitches.
Rather than go home, Paula decided to stay at Dana's house and help her and Frank set up for the party. Paula and Frank began the celebration early, and began drinking around 4 p.m. Dana put out two 30-gallon barrels filled up two-thirds of the way with dirt. She then had Paula bury the mortar tubes (paper and PVC plastic), two apiece, in each of the barrels. The barrels were set up approximately 30 yards from the house and about 15 yards apart, and were surrounded by sand. Dana also had a fire extinguisher nearby just in case. At 9 p.m., Dana started the show. She operated one barrel, and Paula operated the other. Dana also made sure that all of the guests stood about 25 yards away.
Paula had assisted in lighting fireworks during the 90-minute fireworks show without incident. Dana then said, "Stop, everybody stop," in anticipation of preparing a "cake" or special firework display that would serve as the grand finale. Six to 10 seconds later, Dana heard a firework go off, and her head felt hot. Frank rushed to put out the sparks that had singed her hair. As he did this, Dana turned to see Paula on the ground about a foot from the 30-gallon barrel that she was using to fire off the mortars. Paula was rushed to the hospital. She was scared and maybe in a state of shock from the explosion, but she was conscious. She signed the necessary forms and was taken into surgery. The Fourth of July always produces more accidents than the emergency room can handle, so the hospital often has residents perform operations. The law states that a resident is not to perform an operation without a senior physician present. But Paula arrived during a busy time. The senior surgeon was already operating on another patient. So, Dr. Black operated on Paula. The problem was that the chart had been mislabeled and Dr. Black operated on her left eye, not the right. He eventually corrected the mistake, but Paula lost sight in her right eye. In fact, she would have lost her sight even if he did not initially operate on the wrong eye. Paula was blinded in one eye, suffered nerve damage, memory loss, and required steel plates to be inserted in her head. Paula spent two months in the hospital, four months in rehabilitation. Her medical bills totaled $75,000. When she returned to her job as a construction worker a year later she had to take a job that paid half her $50,000 annual salary. Paula went from being physically fit and upbeat to dejected and despondent. She soon became a recluse.
1. Paula stated that:
(a) Dana instructed her to verify that the firework was sitting firmly in the mortar tube, to twist the fuses together when lighting more than one firework at a time, and to back off about 10 to 15 feet from the barrel after lighting the fuses.
(b) Dana provided her with a cigar to light the fuses, but did not provide any safety equipment to use during the show.
2. Dana stated that
(a) She told Paula not to drink while shooting off fireworks.
(b) She examined the launching tubes in Paula's barrel and noted that they were a little deformed or melted at the very top, but the tubes were not blown out so as to cause misfire.
(c) Each of the mortar tubes were used for about 75 to 100 launchings the evening of the fireworks show.
3. Other Witnesses
(a) Toxicology Expert: Paula estimated that he had consumed 6 to 8 beers and half of a pina colada during the course of the party. Following her injury, Paula's blood alcohol level was found to be .144, which according to her own toxicology expert would be more consistent with the consumption of 12 to 16 beers.
Midwest State Fireworks Statute
320.106 - Definitions
Licensed Operator: any person who supervises, manages, or directs the discharge of outdoor display fireworks; who has successfully completed a fireworks training course approved by the state fire marshal and been granted a permit.
320.107 - Fireworks
(2) Every show shall be supervised or directed by a licensed operator;
(3) Use of fireworks shall be limited to a holder of a fireworks permit issued by the authority having jurisdiction where the fireworks is proposed to be held; and
(4) All fireworks shows should adhere to the following safety measures:
(i) Any launching pad should be at least 25 yards away from any structure;
(ii) A fire extinguishing device should be readily accessible;
(iii)The area surrounding the launching pad should be free of any combustible debris.
320.108 - Possession and Use of Certain Fireworks prohibited
Any person violating any provision of 320.107 - 320.108 is guilty of a Class A criminal misdemeanor and will be imprisoned for 6 months, fine $20,000 or both.
Midwest State Recognizes
I. Under what theories of recovery will Paula seek to recover for her injuries from Dana? What is the likelihood of her success? What damages, if any, would she be entitled too? (90 minutes)
II. Under what theories of recovery will Dana seek to recover for her injuries from Eddie? What is the likelihood of her success? Do NOT address any potential damages (60 minutes)
III. Under what theories of recovery will Paula seek to recover for her injuries from Dr. Black? What is the likelihood of success? (30 minutes)