Torts I EXAM
Fall 2002
Professor Flatt Your
Exam # ______
IMPORTANT
NOTICES:
1)
SIGN
IN on the attendance sheet by initials, not exam number.
2)
Write
your exam number on the indicated space
and on all blue books. TURN IN THE EXAM
QUESTION WITH BLUEBOOK
3)
If
you are not using examsoft, please UTILIZE BLUEBOOKS
4)
SIGN
THE HONOR CODE PLEDGE WHICH APPEARS ON THIS SHEET.
5)
Exam
Soft instructions are available from the Dean’s office. THOSE USING EXAMSOFT will be responsible for
turning in their discs (WITH THE EXAM) in the room where the exam is
distributed by the ending time of the exam.
6)
Some
class members may be taking the exam at a different time. In ORDER TO COMPLY WITH THE HONOR CODE, you
must refrain from discussing the exam with those who have not completed it or
in a way that could be overheard by others.
Trust me. It is no fun to discuss the exam afterward
anyway!
7)
You
have three (3) hours to complete the exam.
8)
This
is an OPEN BOOK exam. You may use
materials but not other people.
PLEASE SIGN THIS
HONOR CODE PLEDGE BY EXAM # ONLY:
“I have neither
given nor received aid on this examination nor have I seen others do so.”
_______________________________________________________________________
Remember,
organization, clarity and analysis are important. You do not have to cite to any case or
doctrine by name, but remember to explain a concept when you first introduce it
before making any shorthand reference to it.
If you feel that additional facts are needed to answer the question,
make sure you identify them clearly and the basis for your assumption.
Exams will not
be returned (they and your grades will be completely anonymous to me), but
after you have received your grades, you are more than welcome to make an appt.
to come and see me to talk about them if you have any questions. Hopefully, this can be a helpful exercise
which can assist you in torts and other exams for next semester. Remember your exam number if you plan to do
so.
The exam consists of one question. You have three hours to complete the exam.
Sun 99's Aoccupy it and own it@ contest was very popular. Three contestants had lived in a car
at the Galeria Mall for thirty days with only five minutes every four hours for exercise and bathroom breaks. Each contestant had been selected by an application process in which he or she explained why he or she wanted to win the car, and why they would be Afun.@
The idea for this event came from Sun 99's programming director, Felicia Byers, and was discussed among the programming director and the owner of the station, Mark Hernandez. Hernandez was a little worried that the event seemed too harsh and he noted that it had never been tried before. He was specifically concerned about the bad publicity if someone were to get ill or violent. He preferred that the people only stay in the vehicle for eight hours a day and be allowed to go home at night. He knew contests were getting more wacky but traditionally radio stations had never held contests which could endanger someone=s health. However, Felicia convinced him that this would not make the event exciting enough and that there had to be some risk in order to pique listener interest. Hernandez finally relented, but only after extracting a promise from Byers that she would at least screen the contestants to reduce any chances of problems. Though she promised to do so, she ran out of time before the event, and worried about the Fall arbitron ratings, she simply picked the contestants, including Jason Ring, and got them in the car as soon as possible.
The radio station scored very high ratings with the contest. It would often feature Astunts@ involving waking the contestants up or scaring them while they were sleeping. Four days after the end of the contest, Jason, one of the Asurvivors,@ begin to develop pain and lethargy. He went to a doctor and learned that both of his kidneys were failing. Jason was young, only thirty, but his family did have a history of kidney disease. When his doctor, Keisha Sutherland, found out that he had been involved in this contest, she told him that such regimented bathroom breaks, as well as general stress and discomfort, could have been the reason for the failure at this particular moment. She stated that someone with his family history should never have entered this contest, and that had he visited any doctor, that doctor would have recommended against his participation.
Sutherland was an excellent doctor and a well respected
professor at the
Though Jason questioned her about simply using dialysis and perhaps waiting for a transplant of a human kidney, she told him that she believed that this device was better than a human kidney, and that since he did not have medical insurance, this might be the only way to get a substitute at all, as Merck would pay for the operation and all follow-ups.
Everything went very smoothly during surgery. All of the observers were very impressed., and congratulated Sutherland on her amazing accomplishment. Unfortunately, Jason died the next day of apparent heart failure. There had been no evidence of heart problems and all the procedures in the surgery were determined to have been performed correctly.
Additional facts: Before the contest, Jason had signed a waiver form indicating that Sun 99 was not responsible for any injuries that might result from his participation in the event. Other than that Sun 99, had required nothing from the contestants.
Please determine and analyze how Sun 99, and Dr. Sutherland might be liable to Jason=s estate in tort for his death.
__________________________________________________________________________________________________________________________
Torts I EXAM
Fall 2003
Professor Flatt Your
Exam # ______
IMPORTANT
NOTICES:
9)
SIGN
IN on the attendance sheet by initials, not exam number.
10)
Write
your exam number on the indicated space and on all blue books. TURN IN THE EXAM QUESTION WITH BLUEBOOK
11)
If
you are not using examsoft, please UTILIZE BLUEBOOKS
12)
SIGN
THE HONOR CODE PLEDGE WHICH APPEARS ON THIS SHEET.
13)
Exam
Soft instructions are available from the Dean’s office. THOSE USING EXAMSOFT will be responsible for
turning in their discs (WITH THE EXAM) in the room where the exam is
distributed by the ending time of the exam.
14)
Some
class members may be taking the exam at a different time. In ORDER TO COMPLY WITH THE HONOR CODE, you
must refrain from discussing the exam with those who have not completed it or
in a way that could be overheard by others.
Trust me. It is no fun to discuss the exam afterward
anyway!
15)
You
have four (4) hours to complete the exam.
There are three pages.
16)
This
is an OPEN BOOK exam. You may use
materials but not other people.
PLEASE SIGN
THIS HONOR CODE PLEDGE BY EXAM # ONLY:
“I have neither
given nor received aid on this examination nor have I seen others do so.”
_______________________________________________________________________
Remember,
organization, clarity and analysis are important. You do not have to cite to any case or
doctrine by name, but remember to explain a concept when you first introduce it
before making any shorthand reference to it.
If you feel that additional facts are needed to answer the question,
make sure you identify them clearly and the basis for your assumption.
Exams will not
be returned (they and your grades will be completely anonymous to me), but
after you have received your grades, you are more than welcome to make an appt.
to come and see me. Hopefully, this can
be a helpful exercise which can assist you in torts and other exams for next
semester. Remember your exam number if
you plan to do so.
DO NOT TURN THIS PAGE UNTIL TIME
BEGINS!!!!!!!
The exam
consists of two questions regarding the following fact pattern:
Jason Zbur was determined to get into shape. He decided that he was at least thirty percent overweight, and at age 45, he was beginning to worry about his health. He had seen the signs around campus urging all students, staff and faculty to work out in the UH gym. He went to the gym sign-up desk, where he paid his membership fee, signed a waiver form (saying that Athe gym was not responsible for injuries@), rented a locker, and was given a combination to the men=s locker room. No other orientation was given; nor were there any signs directing the correct use of the equipment at the front desk or in the gym itself. There is a small sign behind a desk in the workout area (which one need not approach to work out) which says that men over forty should check with their doctor before exercising.
Jason decided that he would begin his workout on the elliptical cardio trainer (like a stairmaster) because it looked like it could burn a lot of calories. The elliptical trainer allowed him to begin moving and exercising without the functions being explained. He saw a button marked resistance, set the setting for high and began running on the ellipse. In no time, he was feeling exhausted and was sick to his stomach, but he looked at the sign on the other side of the wall which said Ano pain, no gain@ and that gave him some energy to continue. Finally he could go on no longer. He felt nauseated, and his shoulders and legs were hurting. It felt like his lungs were on fire. He hobbled out of the gym to the men=s locker room to shower. He was sweating profusely and now he felt cold and clammy. He showered for just a moment, turned off the water and staggered to his locker. After putting on his clothes, he drug himself out to the front desk, when he felt a very sharp pain in his chest and shoulder. He then passed out in a heap on the floor in front of the desk.
Sharon Johnson, who was working the front desk, yelled for help, and jumped over the desk to see what was wrong. She reached back and called the university operator for help. She did not think to call 911. Seeing that Jason was unconscious and starting to turn blue, she decided that he must be having a heart attack. Although she had never been trained in CPR, she began to push hard on his chest as she had seen people do on ARescue 911" on TV. She heard a hard crack, but she continued. Within five minutes ambulance personnel arrived. Apparently, Jason=s heart had begun beating again, and the ambulance personnel got him ready for transport. As they were loading him on the stretcher to take down the stairs to the door, his color started to change again. Even though his heart was beating his pulse began to get weaker. The skin under his trunk began to swell and turn purple. The ambulance personnel suspected internal bleeding and then one noticed his med-alert bracelet which alerted the fact that he was a hemophiliac, and to avoid unnecessary treatment which could cause trauma or bleeding. Though this confirmed the suspicion of internal bleeding, the ambulance personnel were not equipped to treat internal bleeding which needed to be cauterized, and Jason bled to death on the way to the hospital. At autopsy, it was determined that the CPR broke one of his ribs which began the internal bleeding which could then not clot.
Additional Facts:
A recent study in the New England Journal of Medicine stated
that overweight men (defined as more than 25% over ideal weight), who were over
40, and who did not normally exercise, should not begin an exercise program
strenuously (or indeed engage in any severely strenuous activity). The study revealed that the risk of a heart
attack from such activity in such a person is 50 times greater than for a
person who is a regular exerciser of ideal weight. The state of
2. (20%) Determine and analyze whether the manufacturer of the ellipse machine could be liable in tort to Jason’s estate.