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Institution Fordham University School of Law
Course 20138 TORTS12 -Conk
Instructor NA
Exam Mode Closed
Exam ID E58233665
Count(s) Word(s) Char(s) Char(s) (WS)
Section 1 2075 10201 12252
Section 2 1863 9220 11062
Section 3 1081 4945 6017
Section 4 584 2647 3222
Total 5603 27013 32553
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Answer-to-Question-_1_
Summary of Facts
Ameila Reardon of Brookline Massachusetts underwent a hip
replacement and recieved a ASR Metallic Hip, which was made by
Depuy Orthopedics. The ASR Metallic Hip was designed with a metal
femoral ball that was in direct contact with the metal acetabular
cup. The theory in this design was that it would reduce wear and
allow the "total hip replacement system" to last longer than 15
years. In fact, the new design was substantial worse than the old
- in that it had a 5 year revison rate of 12-13% rather than the
typical 5%.
Ms. Reardon's hip replacement caused pain due to uneven and
excessive wear and had to be replaced in by November 2011. As a
result of the replacement surgury she missed 9 months of work.
Claims we will Assert on Behalf of Ms. Reardon
On behalf of Ms. Reardon we will bring breach of implied
warranty of merchantability claims against Depuy. We can assert
those claims on both a (1) a design defect theory and (2) a
failure to warn theory. These claims will be brought in
Massachusetts ("Mass.") state court, but Depuy will likely remove
to federal court, but the applicable law is Mass. law. I will
analyse each theory now in turn.
Massachusetts Product Liability Law
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The cause of action in Mass. for what in most jurisdiction
would be called a "product liability action" is a breach of
implied warranty action. Mass Gen Laws 2-314(2)(c). The implied
warranty is "intended to be as comprehensive as the strict
liability theory of other jurisdictions" See Osorio (citing
Back). Massacusetts law is "crugent in nearly all respects with
the Restatement (Second) of Torts 402A/
Design Defect Claim
Under Mass. implied warranty law, products must be designed
so that they are fit for the ordinary purposes for which such
goods are used. A product is reasonably fit for its purposes if
the design prevents the reasonably foreseeable risks attending
the product's use in the setting. In this case, the ASR Metallic
Hip must be reasonably safe to be used in individuals bodies.
To determine if a product meets the standard of "reasonably
safe," two approaches can be used (1) a consumer expectations
test or (2) a risk-utility analysis. Both are appropriate under
Mass. law, but a consumper expectation test is only employed when
it is within the provine of the the jury to understand the
defect. If expert testimony is needed, a risk-utility analysis is
favored. Overall, the majority of cases in Mass., are tried on a
risk-utility analysis. See e.g., Osorio.
Consumer Expectations Test
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This may be a case where Ms. Reardon could assert her claim
on a consumer expectations theory. Under the consumer
expectations test, a product is defective if it has failed to
perform as safely as an ordinary consumer would expect when used
in an intended and foreseeable way. See Barker; Restatement (2nd)
402A cmt. G.
Here the jury could likely determine that the ASR Metallic
Hip replacement was not designed in a way that the ordinary
consumer would expect. It would be astonishing, to the ordinary
consumer that the ASR Metallic hip, which was designed after
research by Depuy to increase its longivity, we exist in a
condition that result in an 8% increase in the chance that it
would fail. Despite this, we must anticipate that Depuy may
persuade the court to analyse this problem under a risk utility
analysis (many defendant's lawyers have seen the risk-utility
test as a victory for the defense bar, although some Plaintiff's
lawyers prefer a risk-utility analysis also). I think that Ms.
Reardon stands a good chance at recovery if the court employs a
consumer expectations test.
Risk-Utility Analysis with the Barker FactorsU
Ms. Reardon still has a strong chance at recovery if the
court employs a risk-utility analysis. Mass. has adopted the
factors used in Barker v. Lull Engineering, which were model on
Professor Wade's famous "Wade Factors" The factors are (1) the
gravity of the danger posed by the challenged design, (2) the
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likelihood that such danger would occur, (3) the mechanical
feasibilty of a safter alternative design, (4) the financial cost
of an improved design, and (5) the adverse consequences to the
product and to the consumer that would result from an alternative
design. Under these factors, Ms. Reardon stands a strong chance
at recovery because the utility of the ASR Metallic Hip is quite
low compared with a standard hip replacement.
1. Gravity of the Danger
The gravity of the danger of the ASR Hip Replacement is quite
high. The hip, which has an 12-13% high revision rate, must be be
replaced otherwise a patient implanted with it will experience a
life of pain and caused by foreign body inflammation. The patient
would also experience reduced movement. To fix the problem, the
patient must undergo another hip replacement surgury - which
carries all the risks that a patient has going under surgury
including the risk of going under general anthesia.
The gravity of the danger is high.
2. Liklihood Such Danger Would Occur
Although the revision rate is only about 8% higher than that
of a standard hip replacement, that is a signifigant risk that
many patients will experience the need to undergo a dangerous
replacement surgury. Many patients recieve hip replacements each
year so the likelihood that many patients will experience the
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impact of the defective ASR Metallic Hip is high. Indeed, a
signifigant number of patients have reported trouble with the
hip, as reported in the UK Natoinal Registry.
The likelihood of the danger, considering the number of people
who recieve hip replacements, is also high.
3. Mechancial Feasibility of an Alternative Design
Under Mass. implied warranty law, a plaintiffs case is not
automatically defeated merely because they cannot prove the
existence of an alterntive design. See Osorio. This is
distinguishable from other jurisdictions like New Jersey, and the
Third Restatement which require that the plaintiff prove the
existent of a reasonable alternative design. See Hinjo v. NJM.
However, in this case Ms. Reardon can strenghen her case
because she can show a reasonably safer alternative design, the
typical total hip replacement system, which has only a 5%
revision rate compared with a the ASR revision rate of 12-13%.
Depuy may argue that if the ASR Hip does not fail, it does in
fact last longer than the typical hip replacement. However, this
argument will not pose must of a challenge to us asserting a
design defect claim because such an increased revision rate does
not balance against increase longivitity. Additionally, there is
nothing presenting in the facts to indicate that the Depuy hip
even achieves this goal.
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4.The Financial Cost of an Improved Design
More reasearch must be conducted to determine if the ASR
Metallic Hip is more expensive or less expensive than the typical
total hip replacement. It is not likely that this factor will
present any signifigant problems for Ms. Reardon asserting her
claim.
5. The Adverse Consequences to the Product
This is also a strong point for Mrs. Reardon, the only basis
that DePuy can assert as adverse is the argument that perhaps, if
the hip does not fail, it lasts longer than the typical hip
replacement. There is no evidence that has been provided, that
shows that the hip replacement achieves this goal. Even if it
did, it is hard to imagine a jury, whose province it is to weigh
these factor (See Osorio), would determine in light of the
increased failure that an "alternative" design, such as the
typical hip replacement, really poses any adverse consequences to
the consumer.
Through the Barker factors, Ms. Reardon has a strong claim
for showing that the ASR Metallic Hip was defect in design.
Failure to Warn
The Product was defective because it did not have adequate
warnings.
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Ms. Reardon can also assert a breach of implied warranty on a
theory of failure to warn claim. Many product liability cases
(and presumably implied warranty cases) are originally setup to
be tried as designd defect claims and are then tried as warning
claims.
Commercial product sellers must provide sellers with warnings
about the risks of injury posed by products. 402A cmt. I. Under
Mass. law, a seller is required to give a warning against danger,
if he has knowledge, or by the application of reasonable
developed human skill and foresight should have knowledge of the
danger. See Vassalo v. Baxter. A product manufacturer his held to
a standard of expert knowledge and remains subject to a
continuing duty to warn of risks discovered following the sale of
a product. Id.
The ASR Hip that Mrs. Reardon recieved did come with a few
warnings including, importantly a warning that that the hip might
fail because of of excessive physical activity, trauma, obesity,
or excessive patient weight. The hip did include that there were
potentional long term effects of metal wear and debris and metal
ion production. A failure in less than 3 years does not speak to
this warning - especially because the traditional hip replacement
has a life span of 15 years.
Astonishingly, none of these warnings included that the hip
could prematuraly fail as compared with the traditional hip.
Depuy was aware of an increased failure rate as early as 2005,
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and Depuy scientists reported that the "ASR did not meet the set
acceptance criteria" in 2007. Mrs. Reardon recived her ASR
Metallic Hip Replacement in 2008, well after Depuy was aware of
the problems with the ASR implant.
Warnings must be designed in a fashion that allows the
consumer to have a fair indication of the specific risks involved
with the product. See Lewis V. Sea Ray Boats. Here Depuy was
aware of the specific risk that the hip could fail earlier and
they did not provide this information to Mrs. Reardon.
Causation
Depuy could assert that Mrs. Reardon still would have had the
ASR hip implant even if Depuy had noted the increased risk.
However, this argument is of no consequence to our claim. A
plaintiff may rely on the presumption to establish that an
adequate warning would have been heeded. See McDarby v. Merck.
The burden shifts to the defendant to show that the plaintiff
would not have heeded such a warning.
With the facts that are available now, there is no evidence
that Depuy can point to that would indicate that Mrs. Reardon
would have undergone the hip replacement surgury with an ASR
metallic hip had she been aware of the increased revision rate.
Ms. Reardon has a strong breach of implied warranty claim on
both a design defect and a failure to warn theory. Provide below
is a synopsis of some of the weaknesses of the claim and how we
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can counter those weaknesses.
Weaknesses
1. Learned Intermediary Doctrine
Depuy may assert that they should not be liable on a failure
to warn theory because Mrs. Reardon's doctor, as a learned
intermediary should have communicated to her the risks of the new
design. This is not a strong defense. For one, the learned
intermediary doctrine has recieved considerable critism in a
market where companies advertise directly to consumers. See
Perez v. Werth Labs (NJ). Additionally, there is no evidence
provided to us right now that indicates that Mrs. Reardon
physican recieved any warning from Depuy about the hip.
2. Depuy's argument that the failure of the hip was not because
of its design, but because of some comparative fault of Ms.
Reardon.
On this point, first, Mass. does not reduce damage awards in
implied warranty cases for comparative fault. See Osorio.
3. The warnings were adequate and Mrs. Reardon's hip failed
becuase of her weight/or activity.
Considering Mass. law's position on comparative fault this is
not the strongest argument for Depuy. In addition, we do not
currently have any information about Mrs. Reardon in terms of her
weight or any activity that she may have done while she had the
ASR Hip.
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Conclusion
Mrs. Reardon has a strong breach of implied warranty claim.
Depuy produced an inferior product, was aware the product was
inferior, fail to warn about the risks of the product compared to
others, and as a result Mrs Reardon had to undergo another hip
replacement surgury and missed nine months of work. On balance, I
recommend that we assert this claim as a design defect claim - as
the risk-utility factors from Barker are clearly in Mrs.
Reardon's favor.
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Answer-to-Question-_2__
The accident that caused the death of John Force occured when
Noah Pierre was attempting to make a turn and his view was
obstructed by bushes on a property by owned by Garland and leased
to Sunset Dental. We are anticipating summary judgment motions
from Garland, Sunset Dental, and Pierre - I will analyse the
defendant's arguments. I think it is unlikely that Sunset or
Pierre will get summary judgment, but depending on the law in the
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jurisdiction Garland may recieve summary judgment.
In order to prevail on a motion for summary judgment in a
Negligence case, the defendant could either show (1) lack of a
duty (which is a determination of law, or (2) that no reasonable
juror could find that they were negligent.
Garland
Garland's best possible argument for summary judgment will be
that the ceeded control of the property to Sunset Dental and
thus, they cannot be held liable. This would depend on the law in
the jurisdiction. If Garland does not recieve summary judgment on
this point than their arguments will be largely indentical to
Sunset Dentals.
Sunset Dental (and Garland)
Sunset will not get summary judgment by showing they did not owe
a duty.
Sunset may attempt to argue that they did not have a duty to
maintain the bushes, and this cannot be held liable against
Pierre's estate in a wrongful death or survival action.
It is unlikely that Sunset will that they did not have a
duty. An actor ordinarily has a duty to exercise reasonable care
when the actor's conduct creates a risk of physical harm. When an
actors conduct creates a risk of harm- a duty is found unless
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their is an articulated countervailing policy consideration that
warrants denying or limiting liability. See Restatement (3rd)
7.
Sunset (and Garland) created a dangerous condition on their
propery by failing to trim the bushes. This conduct created a
risk that motorists would not see cars while making turns in the
intersectionof Levitt Parkway and Garfield Drive.
There is no countervailing policy consideration like (1)
insurer like liability or (2) claims that the judical system
could not administer. There is nothing about this case that would
create what the New York Court of Appeals describes as "crushing
liability." Strauss v. Belle Realty.
Sunset (and Garland's) conduct of failing to maintain the
bushes created a risk of reasonable harm and thus a duty of
reasonable care was owed.
There is a material dispute of fact about Sunset (and
Garland's)negligent and whether they were both the but-for and
proximate cause of the harm such that summary judgment is not
appropriate.
The determination of whether a party is negligent, that is
that they breached their duty, is ordinarly one for the jury. See
Pokora v. Wabash Ry.. However, in circumstances where no
reasonable juror could differ, the court can decide as a matter
of law that the defendant was not negligent.
There is signifigant evidence both through statute and custom
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that that Sunset and Garland were negligent, so it is unlikely
that they will assert a theory of summary judgment predicated on
their lack of negligence.
What is more likely is that they will argue that they were
not the but-for cause of the harm. A defendant's conduct is the
but-for cause of the harm if the harm would not have occured
absent the conduct. See Restatement (3rd) Physical and Emotional
Harm 26.
Sunset and Garland will argue that the accident would have
occured even if the bushes hadn't obstructed the Pierre's view of
the road. The will use testimony from Noel, a passanger in the
front seat, to who stated that the bushes did not obstruct her
view and that she saw the motorcycle coming. At trial, this
testimony would be juxaposed against the Plaintiff's engineering
liability expert who has reported that the bushes did obstruct
Pierre's view of eastbound traffic. Pierre would also testify at
trial that the bushes obstructed her view.
This conflicting testimony certainly creates a material
dispute of fact about whether or not Sunset and Garlands
untrimmed hedges contributed to the accident which killed Force.
Summary judgment in such a case would be inappropriate, it is
province of the jury to determine breach if their is dispute in
the facts. See Andrews v. United Airlines.
Summary Judgment for Pierre
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Pierre will not argue that he did not owe a duty - all
motorist owe their fellow motorists a duty of reasonable care
under the circumstances.
Negligence
Pierre may argue that he was not negligent, meaning that
under the circumstances (with the bushes) he showed reasonable
care and that in a sense, the accident was unavoidable. Our
plaintiff's liability experts testimony lends credibility to this
testimony. However, Noel's testimony indicates that she looked to
her left at the same time that Pierre was making his decison to
turn and saw the motor cycle.
On negligence, there is a material dispute about the facts
such that summary judgment would not be appropriate. See Andrews
v. United Airlines.
Causation
Pierre's best argument for summary judgment is that she was
not the proximate cause of the harm. An actors liability is
limited to those physical harms that result from the risks that
made the actor's conduct tortious. Restatement (3rd) 29;
Palsgraf v. LIRR (Cardozo uses this "risk-rule" test to answer a
scope of duty question). Pierre will use Bellizzi's testimony,
which indicates that the overgrowth of the bushes "proximately
caused" the harm. This argument does not warrant summary
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judgment. First, a conduct has to be a proximate cause of the
harm not the proximate cause, thus multiple causes are possible
and liability can still be upheld.
Pierre may also argue that the overgrowth of the bushes is a
superceeding cause. See Doe v. Manheimer, however A negligent
defendant, whose conduct creates or increass the risk of
particular harm and is a substantial factor in causing the harm,
is not relieved of liability by the intervetion of another
person, expert where the harm is intentionally caused by the
third person and is not within the scope of the risk created by
defendant's conduct. See Restatement (2nd) 442. Gardner and
Sunsets negligent will not likely act as a superceeding cause
under this rule.
Summary judgment is not appropriate here, as their are
material disputes of fact considering Pierre's negligent and his
negligence causal relasionship to the harm that Force suffered.
Claims and Damages should we Survive Summary Judgment
We can assert both a survival action and a wrongful death
action in this case.
A survial action provides for the recovery of damages by the
deeased estate that the deceased could have obtained before
death. This includes medical expenses, funeral costs, and in the
majority of states pain and suffering can also be recovered.
A wrongful death action requires (1) a death, (2) caused by
wrongful conduct, (3) giving rise to a cause of action which
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could have been maintained at the moment of the death, by the
decedent if death had not ensued, (4) survical by distibutes who
have suffered pecuniary loss by reason of the death, and (5)
appointment of a personal representative of the decedent. A
wrongful death action is for the recovery ofpecunary(economic)
harm as a result of a wrongful death.
Negligence Claim
Both the survival action and the wrongful death claim will
require that the Force's prevail on a claim that one or all of
Garland, Sunset Dentistry, and Pierre were Negligent. That is
that they (1) owed a duty, (2) breached that duty, (3) the breach
of that duty was both the but-for and proximate cause of the
harm, (4) damages.
Duty
In analysing the prospective motions for summary judgment it
is clear that Sunset and Pierre both owed duties of reasonable
care to Force.
Negligence for Sunset (and Garland if that do not recieve summary
judgment)
At trial, we can advance evidence of Sunset and Garland
negligence by appealing to but statutory and custom arguments. An
action is negligent per se, an actor, without excuse, violates a
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statute designed to protect against the type of accident the
actor caused and the accident victim is within the class of
persons the statute is designed to protect. See Restatement (3rd)
14. Sunset and Garland violated the Townships Property
Maintence Code, so this should establish negligence or serve as
evidence of negligence.
The determination of whether it will serve as negligence will
depend on the law in the jurisdiction. In NY, the violation of a
state statue is negligent per se, while a violation of a
municipal ordinace constitutes evidence of negligence. See Elliot
v. City of New York. (2001).
Even if we are unable to establish negligence per se, this
would be strong evidence of Garland and Sunset Dental's
negligence.
Sunset and Garland also breached the custom in theby
violateed the AASHTO intersection design standards. Failure to
comply with a custom, while not dispostive of negligence is
evidence of negligence. See Trimarco v. Klien. There may be an
argument that Garland or Sunset should not be charged with this
custom as it comes from intersection design rather than the
expertise of either plaintiff. However, Garland as a lessor of
land should be charged with knowledge of how to maintain a
property near a intersection
Neglience of Pierre
The neglience of Pierre will be established in that he did
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not show reasonable care under the circumstances in executing the
term. The testimony of Noah will serve as strong evidence of
this. Whether this negligence was a proximate cause of the harm,
discussed above, will be question for the jury to decide.
Damages Calculation
Under the survival action, the damages for the medical
expenses and funeral expenses ($140,000) will easily be
established as expenses between the time of injury and the time
of death. The Ironworkers Local 48 welfare fund will have a lein
on the recovery for the $20,000 in funeral expenses. Force's
estate should also recovery for the pain and suffering of
spending 10 days in the hospital on a morphine drip because of
the results of the accident. We should consult databases to
determine what similar juries have awarded in these cases.
In the wrongful death action, Marilyn, Sean, and Mary should
recover the amount of Force's lost wages with a substraction for
what he would have spent on his own personal expenditures. To
determine this figure, we should consult with a forensic
economist to determine what possible salary increases Force would
have been likely to recieve and to adjust these numbers to
present value.
Comparative Fault
The damages aware recieved will likely be reduced to a degree
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by John's negligence as a result of violating the posted speed of
25 MPH. Joh was traveling at a speed of 35 MPH. The jury will
make a determation of John's fault the damage award will be
reduced, assuming this a pure comparative fault state. If this a
modified comparative fault state, recovery could be precluded if
the jury determined that John was 50 (or in some jurisdictions
51% at faullt). It is unlikely that the jury would determine that
John was more than 49% at fault.
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Answer-to-Question-__3_
This is a case in which Samuel Gray, who was assisting his
wife in preparing for a engagement party. Mary Gray is a florist
and Samuel often helps out his wife, but he is not an employee of
the florist. Mark, a professional caterer, was carrying a vase.
The way that he was holding the vase was contested at trial with
varing testimony. Mark testified that Sameul Gray was putting
pressure on the vase, while Gray testified that he was holding
the vase by the bottom.
We represent Once Upon a Rose, Mary Gray, and Samuel Gray. On
behalf of our clients, we will bring a motion for a directed
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verdict. Arguing, that no reasonable juror could find that Once
Up a Rose or Samuel Gray were negligent.
The grounds that we will make the motion for direct verdict
on are that Mr. Gray's negligence did not cause the harm to
Martin Mark. It is the province of the jury to determine whether
or not a party is negligent. See Pokora v. Wabash Ry, however,
when no reasonable jury could reach a different verdict it is
appropriate for the court to rule as a matter of law.
Negligence for Holding the Vase
We will assert in our motion for directed verdict, that
regardless of how the jury would find on who to believe in regard
to how Mr. Gray was holding the vase, the jury could not find
that this negligence was the legal cause of the harm that Mark
suffered from the broken vase.
An actors liability is limited to those physical harms that
result from the risks that made the actor's conduct tortious.
Restatement (3rd) 29. We will assert that the risk here was
only to Mr. Gray in that he would hurt himself. In fact, Mark
even said "you're going to hurt yourself." The reason Mark was
injured was because he intervened to help Samuel Gray. However
the jury would determine that Samuel was holding the vase is of
no consequence. The harm would not have occured if Mark had not
intervened, and Mark intervening was not with the scope of risk
that would result from negligently holding a vase. See Palsgraf
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v. LIRR (determing that an actor is only responsible for harm
within the scope of the risk of their conduct.
Negligence for Failing to Properly Inspect the Vase
We will also bring a motion for directed verdict on the
claims against Once Upon a Rose and Mary in relation to Mrs.
Gray's failure to ensure that the vases used did not have chips
and scratches.
An actors conduct is negligent if the risk is of such a
magnitude as to outweigh what the law regards as the utility of
the act or the particular manner in which it is done. Restatement
(2nd) Torts 282. A helpful formula from Learned Hand states
that, if the Burden of taking the precaution is less than the
combination of the probablity and gravity of the harm an act is
negligent. See US v. Caroll Towing.
Actors are under a duty of reasonable care, that is to take
reasonable precautions "to minimize resulting perils." Adams v.
Bullock. No jury could find that Mrs. Gray was not reasonably
careful, she stored the vases in individual boxes, she testified
that she checked all the vases for cracks and found none, and
that she would have removed an vase that had been found chipped
or cracked. No testimony was presented at trial to the contrary
on this evidence. Under these, circumstances we will argue that
no jury could have found that Mrs. Gray failed to exercise
reasonable care.
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How the Judge should Rule?
Mr. Gray's Negligence
On the motion for directed verdict for Mr. Gray's negligence
in holding the judge, the judge should deny the motion for a
directed verdict. Conflicting testimony was presented at trial in
terms of how Mr. Gray was holding the vase. Actors are under a
duty of reasonable care to protect others from their conduct,
which causes a risk. The jury should be free to determine whether
or not Mr. Gray's conduct was that which could cause a risk to
others and whether or not he used reasonable care in carrying the
vase.
Mrs. Gray's Negligence
A directed verdict is probably approrpiate for the negligence
claims against Mrs. Gray and for failure to properly
store/inspect the vases prior to using them for the engagement
party. It is a bed rock principle of negligence, that individuals
are only responsible for their unreasonable behavior. Adams v.
Bullock. The law of Negligence balances between liberty and
security. From the testimony presented at trial, there is no
evidence that Mrs. Gray behaved negligently (that is
unreasonable) in anyway, shape, or form.
Instructions for the Jury
The jury should be instructefd that their function is to
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decide what has or has not been proved and apply the rules of law
that the judge gives to the facts as you find them to be. NJ PJI
1:6. Mr. Gray owed Mark a duty of reasonable care, because he was
engaging in risky behavior carrying a vase. At trial, it you
heard conflicting testimony on how Mr. Gray was holding the vase.
It is your duty to weigh this testimony and determine who you
find to be credible. If you find that Mr. Gray behaved in a way
that was not reasonable under the circumstances, you should find
that his conduct was negligent. You are the sole and exlcusive
judges of that fact.
You must also determine whether or not Mr. Gray's negligence
was the but-for cause of the harm. A harm is the but-for cause if
it would not have occured absent the conduct. Restatement (3rd)
26. If you find that Mark would not have been injured absent the
conduct of Mr. Gray, then Mr. Gray's conduct was the but-for
cause of the harm
You most also determine whether or not Mr. Gray's negligence
was a proximate cause of the harm. An act is the proximate cause
of harm if it is a substantial factor in bringing about the
resulting accident. NJ General Charge 6:11. What is meant by
substantial, is that it is not remote, trivial, or
inconsequential. Thus, if you find that Mr. Gray's behavior in
carrying the vase was a substantial factor in causing the harm
you should find that it was the proximate cause. Any negligence
of Mark does not preclude a finding that Mr. Gray was negligent.
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Answer-to-Question-_4__
In this case Walter Holmes was injured when he slipped on the
ice in a parking lot of Lowes, Bally Total Fitness, Matress
Giant, and Staples. Lowes had shared right to use the parking lot
for delivery, customer parking, and other uses on a thirty year
lease. I recommend we decline this case unless the plaintiffs
would be willing to proceed without a contigent fee structure.
Lowes did not have control of the land, and therefore it is
unlikly that it owned a duty to entrants on the land. 52. The
court might find that Lowes was a land possessor though - which
would make recovery likely.
Lessee with Duty of Care
A lessor owes to the lesse and all other entrants a duty of
reasonable care under 51 for those portions of the leased
premises over wich the lessor retains control.
The lease that Lowes had signed with Price Legacy and Kimco
Realty Corpration provided that Lowe's had a shared right to use
the parking lot for delivery, customer parking, and "other uses
incidental to the operation of a home supply retail store.
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Section 8(I) of the lease specifically provided that the landlord
was to maintain the snow removal. The court would likely
interpret this to mean that Price Legacy and Kimco Realty
Corporation had retained control of the parking area.
Possessor of Land
Similarly, it is unlikely that the court would determine that
Lowes was a possesor of the land. While a possessor of land does
not have to own the land - under the 3rd Restatement, an
individual occupies and controls the land if they are entitled to
immediate occupation and control of the land.
It is not entirely clear from the facts if Lowes was
suffiently entiteld to immediate occupation of the land. They
were certainly entitled to use the land as a parking area pursant
to the lease. However, they shared the parking lot with the other
individuals in the store and the landlor retained contorl of the
lot for purposes of maintence.
Howeever, it is possible that the court could determine that
Lowes had a duty of reasonable care to maintain the land if it is
seen as partially a possessor with the othe stores in the lot.
If Found to be A Poessor or in Control of the Land.
If Lowes is found to be a possessor they owed a duty of
reasonable care to Walter Holmes. It is of no consequence whether
the court follows the common law categories of distinctions or
adopts the 3rd Restatement approach, which follows Rowland.
Walter Homes was probably be a business invitee, assuming that
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his purposes for being in the lot was to purchasing something
from Lowes. The court could deem him to be a licensee if he had
merely parking in the parking lot and did not intend to patronize
the stores.
Negligent
However, this is still a week case even if the court
establishes that Lowes owed Holmes a duty of care. A jury would
be likely to find that Lowes was not negligent. The landlord had
hired a company to handling the plowing and the company had both
plowed and salted. This woudl require the jury to determine if
Lowes had enough notice of the condition to either remedy it or
warn about it. See Negri; Gordon v. American Musuem.
If Lowes was found to owe land possesor duty and found to be
negligent Holmes could prevail. This is unlikey.