SAVE THE WORD FILE AS YOURFIRSTNAMEANDLASTNAME SO IF MY NAME WAS ADAM SMITH IT WOULD BE ADAMSMITH.DOC

 

 

ESSAY #1: Negligence & Strict Product Liability

 

Analyze the following case and discuss possible theory and defenses for negligence and strict products liability. What does this mean… I mean look at the scenario presented below and tell me where you thought the company may have been negligent, show how, ie the four elements and discuss each, then pick a theory for strict product liability that applies to the situation and analyze that and discuss how the facts fit into the theory, then come up with defenses ie to protect the company for both negligence and strict products liability and explain them and how they apply. See slides.

 

On August 31, 2001, Justine, visiting from the Democratic Republic of the Congo, accompanied her brothers, aunt, and a family friend, Zemba Mekanisi, on an outing to Knott's Berry Farm amusement park. Justine's brothers translated the warning signs on the rides for her, as she was fluent in French and Lingala but not English. After the group warmed up on the "Jaguar" roller coaster, which one of the party described as "rather tame," Justine wanted "something more exciting," and led the way to Montezooma's Revenge, where the group waited approximately 15 minutes watching the ride go through several cycles.

 

As the group stood in line, Emmanuel read to his sister the posted ride instructions and warning, as follows: "No smoking, eating, or drinking. [P] No loose articles. [P] You must be in good health to take this high-speed roller coaster ride (free from heart & nervous disorders, weak back or neck, or other physical limitations). [P] No expectant mothers." The warning prompted no concerns in the group, except that Emmanuel advised Justine to discard her chewing gum.

Around 7:00 p.m., Emmanuel, Justine, their aunt, and Zemba boarded the roller coaster, and Enoch and Ofil awaited the next cycle, first in line. Justine laughed and screamed with excitement during the 36-second ride. Approximately six seconds before the ride ended, Justine turned back to Emmanuel, seated behind her, and yelled, "yes, yes" excitedly. But as the roller coaster pulled into the platform area, Ofil heard Justine mumbling, "Jesus, Jesus, Jesus!" Her family looked on helplessly as she began convulsing and lost consciousness. Another rider attempted mouth-to-mouth resuscitation, as did paramedics at the scene and  en route to the hospital, where Justine struggled back from cardiac arrest at least three times, but died at 1:35 a.m. the next morning.

According to one of the plaintiffs' experts, Dr. Claus P. Speth, Justine "had no known personal or family history of aneurysms, migraines, hypertension, alcoholism, cigarette smoking, contraceptives or known connective tissue diseases (these are some of the suspected risk factors for development and rupture of cerebral aneurysms). . . . Most notably, although she occasionally had transient headaches associated with menstrual periods, there was no history of an unusual, different headache at any time preceding August 31, 2001." Justine's mother described her as a "strong" person, who "could do anything" and "did everything," despite a sickle cell disease diagnosis, which generally posed "no problem." She had suffered a sickle crisis in January 2001, but "was otherwise in good health," requiring "no medications, and no medical restrictions had been placed upon her."

The coroner's autopsy determined Justine's cause of death to be "Anoxic encephalopathy" due to "Acute subarachnoid hemorrhage," in turn "DUE TO: Ruptured berry aneurysm, left middle cerebral [*6] artery." Based on his review of autopsy slide specimens, Speth described the aneurysm as "round, about 4 mm in diameter," having "a generally thin wall" and "arising in the asymmetric bifurcation of the involved arteries." Speth concluded the aneurysm was "preexistent" and found "no evidence of prior hemorrhage or leakage."

A safety engineer from the Department of Industrial Relations inspected the roller coaster after the accident, including the car in which Justine rode, and concluded the ride "was operating within the manufacturer's specifications."

 

The amusement park also has a "Steel Force" roller coaster that caused a woman to suffer "damaging pools of blood on both sides of her brain (multiple bilateral subdural hematoma) . . . ."  Plaintiff’s expert said that  the declaration of industrial engineer, David A. Thompson, who opined that a satisfactory, effective warning must caution riders that "even if they believe they are in good health, the ride can cause, and has caused in the past, serious injury including but not limited to: fractures, loss of consciousness, paralysis, brain bleeds and death, Ride at Your Own Risk!"  Justine's brothers declared that if there had been such a warning, they would not have permitted her to ride Montezooma's Revenge.

 

 

Essay #2 Contracts  

 

ESSAY TWO CONTRACTS:

 

 

Emily and Victoria are two female college roommates. They are also a romantic couple and have been dating off and on for about two years.  Victoria is graduating in May 2012 and she is troubled about her relationship and her future. She doesn’t want to leave the college town of Indiana until next year when her partner Emily will graduate. However, Victoria gets a great job offer in Florida and desires to take the job, but she wishes to maintain her relationship and love with Emily. Victoria asks Emily to a special dinner to give her some important news. At the dinner, Victoria tells Emily about the great job she has in Florida. At first, Emily is thrilled and hugs and kisses Victoria, but then her eyes start to tear up when she comes to the realization that her lover will not be around.  At this moment, Victoria pulls out a black velvet covered box from her pocket and gives it to Emily. When Emily between tearful sobs says, “what’s this?”… Victoria says, “it’s my promise to you.” Emily opens up the box and inside is a diamond ring. Emily says, “does this mean what I think it means.”  And Victoria says, “yes, it’s a promise ring” so we will always be together.

 

Several months pass and now it is December 2012 and Victoria sends Emily an airline ticket to come see her over Christmas. When Emily is in Florida she stays in the house that Victoria purchased. Apparently Victoria’s new job pays very well and she has a house and two cars. She lets Emily drive one of her cars and even lets her take it back to Indiana with her. However, Victoria maintains the title to the car. While celebrating New Years in Florida, Emily and Victoria  have  a couple of drinks, then Victoria tells Emily that “All of this, the house and the car will soon be yours if you graduate then move to Florida to be with me.”

 

Several more months pass with constant phone calls and frequent visits. However, in early May Victoria stops returning Emily’s phone calls.  After graduation, Emily moves to Florida and shows up at the house with a moving van and all of her belongings. 

 

When Emily rings the doorbell, a child of three years of age answers the door… and Emily takes a step backward, checks the number on the house and says, “Um, I was… um.. looking for Victoria… and then the Child says MOM… someone’s at the door for you…”  Emily is with mouth agape, stunned and speechless… Victoria comes to the door and says to Emily I thought graduation was next week. Then Victoria says to Emily, “look I didn’t plan for this to happen, but my ex and me got back together after many years of fighting… we want to raise a family, in fact we decided not to get a divorce after all and are finally going to go on our honeymoon”. Emily didn’t know any of this of course.  Victoria says, im sorry Emily I will pay to have you moved back to Indiana, no harm done right?”

 

Emily turns her head and leaves… She drives back to Indiana and then she consults you the test taker regarding her legal options and contracts.

 

 

Discuss below the legal issues involved in this problem. You should consult the contract chapters and any additional readings that you feel apply. Make sure to mention both claims and defenses.  Your points depends on the number of correct issues identified (issue), the identification of the proper legal rules (rule),  An analysis of how the legal rule fits into the situation (analysis), finally a conclusion on how the court should rule on that issue (conclusion)