Exam number: ______________

University of California Los Angeles School of Law Professor Hoffman Law 140 Torts 3,4 Final Examination 4 hours Fall 2011

INSTRUCTIONS Be sure to avoid making any remarks that will jeopardize your (or anyone elses) anonymity either on the exam or in any other context, before the exam grades are posted. Any questions during or after the exam should be addressed to the Records Office or Dean Cheadle. 1. This exam has 5 pages (incl. this cover sheet). Please make sure you have all of the pages before you begin the exam. 2. Question Format and Point Totals. Part 1 is a fact-pattern with three questions. Part 2 is a series of 5 short answer questions. You should answer all questions. Note the suggested times below 120 minutes for Part 1 and 90 minutes for Part 2 (allocated among each question as indicated below). Suggested times reflect points available for each question. In addition, you have 30 minutes for reading, outlining, thinking, organizing, etc. Your grade will be based both on the content and on the organization and clarity of your answers. 3. Ambiguity. If you believe a question is ambiguous or that you are missing information you need to answer the question, state the ambiguity or missing information and how it would affect your answer. Some aspects of a question may be deliberately ambiguous to test your ability to deal with ambiguity and to raise relevant facts. 4. Formatting. Please begin each Part of the exam on a new page. (You do not need to start a new page for each of the 5 sub-questions of Part 2.) 5. Word Limit. Your exam (all answers together) may not contain more than 5,000 words. You must provide a word count at the end of the exam. Answers over the stipulated word limits will be penalized proportionately to the overage. This is a maximum, not a recommended, length (i.e., a great exam might be well under 5,000 words). 6. Materials Permitted. The exam is open book. You may refer to the casebook and other assigned class materials (including Torts Stories and ERes materials), outlines to which you have contributed, and your notes. You may not, however, consult commercial outlines, online resources, or any other person. 7. Jurisdiction. Part I takes place in New State, which looks to all cases and materials in your textbook as potentially persuasive authority. Assume New State has adopted California law on comparative negligence and joint and several liability. Good luck!

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Prof. Hoffman

Law 140 - Torts

Part 1. (120 minutes)

Fall 2011

Barb and Carl Anthony, who have been married for 20 years, have been breeding and showing dogs for years. Their dogs are like children to them. Their favorite breed of dog is the Komodor, which is often referred to as a mop dog (see picture below). The Anthonys currently have two prize show dogs Ziggy and Marley. While Barb is the registered owner of the dogs, they both travel with them to competitions all around the country. Carl even manages to take time off from his busy schedule as a brain surgeon. Marley is a top contender this year for best in show at the famous Eastminster dog show.

The Anthony family is particularly fond of Komodors because they are healthy and dont suffer hereditary problems, as many other purebred dogs do. However, as is the case with many large dogs, Komodors do occasionally have problems with hip dysplasia, a hip joint dysfunction that can lead to severe arthritis and crippling lameness. Fortunately, three dog food companies (Xiams, Yukanuba, and Zurina) recently started to sell a new dog food formula with what they claim is a breakthrough joint supplement that will almost completely eliminate the risk of hip dysplasia. All three companies use an identical joint supplement additive, called HipFlex. Barb has fed the dogs all three brands new formula over the past two months, choosing whichever brand was cheapest at the store. It seems, however, that some dogs have had problems with HipFlex when it starts to accumulate in their bodies. Stories have been circulating at shows that after eating formulas with HipFlex over time, some dogs have had a severe allergic reaction to it, including dry skin, excessive shedding, seizures, and in some cases, it appears, sudden death. Barb was a bit concerned to hear these stories, and she did notice a warning label on the back of all three companies bags that said: Warning: Some dogs have adverse reactions to HipFlex, an ingredient in this dog food. Use this product at your own risk. Fortunately, neither Ziggy nor Marley had experienced any problem with the food so she continued to feed it to them. They took the dogs to the New State show, which was the last show before Eastminster. At the registration booth, Barb and Carl signed an agreement saying they would release New State Dog Show Association (NSDSA) from liability for all harms related to its management of the dog show, negligent or not. They also noted a sign reporting that New State law requires all
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Prof. Hoffman

Law 140 - Torts

Fall 2011

dogs in public to be on leash. Since the show was in a public arena, they put both the dogs on their leashes. As their class approached, Barb noticed that Ziggy was scratching at his skin. Komodors shed very little so Barb grew concerned as she saw that he had pulled out some small clumps of hair as he scratched. But the show must go on. Barb left Ziggy with Carl by the side of the show ring and pranced into the competition with Marley. As Barb and Marley were called up for inspection by the judge, Marley started to convulse and fell to the ground. Carl, shocked by Marleys fall, ran into the show ring to help. Seeing him run, several dogs started to bark, and three dogs ran after Carl. Slipping on a pool of dog saliva in the show ring (the bulldog class was just prior to Marleys class), Carl fell and the three dogs jumped on top of him. When Giant, a huge Pyrenean Mastiff who was competing against Marley in the class, first jumped on top of Carl, Carl felt a crunch in his chest. Giants owner was an elderly man, Gary Gray, who has been a fixture at the shows for years. He had taken Giants leash off while they were standing on the show podium for Giants safety; Gary had seen many dogs leap from the podium and get choked or injured when the dogs leash got caught on something. The second dog was a pug, Hugs, whose owner, Heddy Hilton, had left his leash loosely tied to a table next to the show ring when she went to borrow some grooming cream. It was common practice at this show to tie the dogs up to the side table, rather than to take them back into the grooming area, which was so crowded that dogs would get stressed out before their classes. Heddy was not skilled at tying knots, and Hugs had easily pulled the leash free. No one knew the third dog, but from the looks of his mangy fur, he wasnt a show dog and he didnt seem to have an owner in the area. When Heddy saw the commotion and Hugs in the mix, she ran over to try to pry Hugs away. As she got close, however, the swirling dogs triggered in Heddy a post-traumatic stress disorder response from a traumatic dog attack from her childhood. She stood paralyzed and watched as the dogs attacked Carl. As Carl tried to push the dogs away, one bit through his hand, severing a tendon in his thumb. In writhing pain, he realized that his successful career as a brain surgeon was most certainly over. While both Carl and Marley lived, Carl was on bed rest for a month to heal his broken rib and lost dexterity in his hand. He will never perform surgery again and has been diagnosed with clinical depression. Marley was paralyzed on her left side, ending her dog show career. Barb and Carl have retained you as their attorney. Please write the Anthony family a memo and describe all causes of action that Barb or Carl might have against: 1. Xiams, Yukanuba, and Zurina (the dog food companies); 2. New State Dog Show Association (NSDSA); and 3. any of the owners of the dogs that attacked Carl. Make sure you assess the strengths and weaknesses of each of the claims, based on the facts above. Please address potential damages only with respect to Question 3, causes of action against any of the owners of the dogs. Do not spend the time to discuss damages in the causes of action against the dog food companies and NSDSA.

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Prof. Hoffman

Law 140 - Torts

Fall 2011

Part 2. (90 minutes, 5 questions) INSTRUCTIONS: For each of the following, state whether you agree or disagree with the statement given and explain your answer. Be sure to refer to class materials and cases, as appropriate, to support your answer. 1. (20 minutes) Human papillomavirus (also called HPV) is the most common sexually transmitted infection (STI), and it can lead to cancer. In fact, it is the cause of most cases of cervical cancer. When a doctor diagnoses HPV in a male patient, he has a duty to warn his patients wife of the risk to her. 2. (15 minutes) X has sued A, B, and C in court for negligent harms from plastic surgery gone wrong. Assume total economic damages of $100,000. Assume no non-economic or punitive damages. Use the following percentages of fault for the following questions: Plaintiff X 20% Defendant A 50% Defendant B 10% Defendant C 20%

While the jury is out deliberating, A offers X a settlement of $40,000. A. Under the Uniform Comparative Fault Act (UCFA), X should not accept the settlement offer by A. B. Under California law, X should not accept the settlement offer by A. 3. (15 minutes) Over time, courts have increasingly shied away from allowing recovery for pure emotional harms because they are difficult to measure. 4. (25 minutes) Courts are currently being asked to determine whether hydraulic fracturing (aka hydrofracking) should be subject to strict liability or negligence. Hydrofracking is the injection of a pressurized fluid (water, sand, and other chemicals) into shale gas deposits in order to free the natural gas or other substances for extraction that are trapped deep underground in the shale rock. The energy from the injection of the fluid creates new channels in the rock which can increase extraction rates and recovery of fossil fuels. Hydrofracking has come under scrutiny because of environmental and health concerns associated with the practice. It has been banned in some countries, including France, and some U.S. states, including New York and New Jersey, are considering moratoria on the practice. Yet, hydrofracking is still widely used across the U.S. Considering the development of strict liability in U.S. law, it is probable that courts will subject harms from hydrofracking to strict liability.

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Prof. Hoffman

Law 140 - Torts

Fall 2011

5. (15 minutes) McDonalds has lowered the recommended holding temperature on its coffee and put warnings on all of its coffee cups and drive though windows at all restaurants since the Liebeck case. Assume that all franchises have followed the recommendation and lowered the coffee temperature. McDonalds would be found not liable as a matter of law in the case of future claims by customers of hot coffee burns.

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Good luck on your last exam and have a great holiday break!

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