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Best exam answers # 2 Fall 2013 Section 9 Torts E86989925_131212_13932

Best exam answers # 2 Fall 2013 Section 9 Torts E86989925_131212_13932

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Published by George Conk
One of the two strongest final exam papers on the Fall 2013 Torts class - Section 9 - Fordham law School - Prof. George Conk

The exam presents concise straightforward arguments in the main. There are significant errors (e.g. bankruptcy does not bar the action against metro Waste in question 2. There is insurance available. And if it were not the action would eventually be allowed to proceed to prove liability and the amount of the loss.)
- GWC
One of the two strongest final exam papers on the Fall 2013 Torts class - Section 9 - Fordham law School - Prof. George Conk

The exam presents concise straightforward arguments in the main. There are significant errors (e.g. bankruptcy does not bar the action against metro Waste in question 2. There is insurance available. And if it were not the action would eventually be allowed to proceed to prove liability and the amount of the loss.)
- GWC

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Categories:Types, Business/Law
Published by: George Conk on Jan 19, 2014
Copyright:Attribution Non-commercial

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01/27/2014

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E86989925
 󰀪󰁅󰀸󰀶󰀹󰀸󰀹󰀹󰀲󰀵󰀭󰀱󰀮󰀭󰀱󰀲󰀭󰀱󰀪
E86989925
Institution
Fordham University School of Law
Course / Session
13932-TORTS-9 Conk
Exam Mode
Closed
 
NA
Extegrity Exam4 > 13.11.8.0E86989925-1.-12-1Section
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Institution
Fordham University School of Law
Course
13932-TORTS-9 Conk
Instructor
NA
Exam Mode
Closed
Exam ID
E86989925
 
Count(s) Word(s) Char(s) Char(s) (WS) Section 1
3253 15659 18906
Total
3253 15659 18906
 
E86989925
 󰀪󰁅󰀸󰀶󰀹󰀸󰀹󰀹󰀲󰀵󰀭󰀱󰀮󰀭󰀱󰀲󰀭󰀲󰀪
E86989925
Institution
Fordham University School of Law
Course / Session
13932-TORTS-9 Conk
Exam Mode
Closed
 
NA
Extegrity Exam4 > 13.11.8.0E86989925-1.-12-2Section
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Answer-to-Question-_1_ Joseph Smith is a mechanic that was injured on the job when a bale of paper weighing nearly one ton fell from a stack and caused very serious injuries. We should file a personal injury action. There are three parties who have a role in this case. Joseph’s Smith’s employer (Coughlin and Sons), Metro Waste (who contracted Coughlin) and County of Clare.Smith is barred from suing his employer under the Worker’s compensation act. Under different circumstances, we could file suit against Metro Waste, since they were in control of the property and would likely to be found liable for negligence. However, Metro Waste filed for bankrupcy, and we will not be able to recover any damages from them. Instead, we should focus our attention on Clare County. We have been informed that there are several claims against the county and their insurance coverage may be insufficient to fully compensate Smith. However, we may still be able to recover in a jurisdiction like New York where Worker’s compenstion law section eleven bars a third party action for contribution or indemenification against an employeer when its employee is injured in a work related accident unless the employee has sustained a grave injury. The facts state that Smith “suffered very serious injuries”. Thus, even if Clare County cannot cover the damages by their insurance, they will be able to seek indemnity from the employer, Coughlin and Sons. To establish the elements of the case we need to establish duty, breach, causation and damages.We are assuming that the state allows an action against Clare County “as if it were a private person”. Typically, control of the land is the key determinant of who has a duty of care, not
 
E86989925
 󰀪󰁅󰀸󰀶󰀹󰀸󰀹󰀹󰀲󰀵󰀭󰀱󰀮󰀭󰀱󰀲󰀭󰀳󰀪
E86989925
Institution
Fordham University School of Law
Course / Session
13932-TORTS-9 Conk
Exam Mode
Closed
 
NA
Extegrity Exam4 > 13.11.8.0E86989925-1.-12-3Section
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Page
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possession or ownership. The Third Restatment states that a “posessor of land” is “a person who occupies the land and controls it...” (ROT 3rd §49). Note however, that statutes may modify the duty of care. For example, in New York, a landowner is responsible for dangerous conditions on the land, even ifhe is not in control (with the exception of one and two family homes, not applicable here)(NY Labor Law §241). Thus, if we are in a jurisdiction like New York, we can claim that Clare County owes a duty of care as a landowner. If we are in a different jursdiction that doesn’t have such a statute, we just show that Clare County retained control of the property. We should be able to prove this by referring to the contract which specificed that Count has “the right of access to the Facility in order to determine complaince by the Contractor ...and the right...to take visitors and grouop tours...through the facility.” This suggests that although Clare allowed Metro Waste to control day to day operations, they still retained a level of control over the premises. Thus, Clare County owes a duty of reasonable care to the plaintiff. We must now determine how we can prove a breach of that duty of care. The standard of care is proscribed by the OSHA federal regulation which provides that “storage of material shall not create a hazard...bags...shall be stacked...so that they are stable and secure against sliding or collapse.” In this case, we may not be able to identify exactly what precuation was not taken that caused the bale of paper to fall onto Smith. However, in this case we may be able to invoke res ipsa loquitur, like in Byrne v Boadle. To prove Res Ipsa under the Third Restatment we just show tha the accident that caused the plaintiff’s harm is the type of accident that ordinarily happens as a result of negligence of the class of actors of which the defendant is a relevant member- which is the case here. McDougald v Perry stated that it must be caused by an instrumentality within the exclusive control of the defendant. Here the materials were in the exclusive control fo Metro Waste, and since County Controlled

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