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Fordham Law School Torts (Section 1

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Final Examination Wednesday December 19, 2012 - Time 9:30 AM - 12:30 PM
Prof. George W. Conk Instructions

You have three hours to complete this exam. You must answer all four questions. I will grade each question but the final grade is an overall assessment of your exam paper, as compared to others in the class. I suggest that you first read through the complete exam. (Take a deep breath to shake off the sticker shock, then get back to work.) While you are answering one question thoughts on the others will simmer on the back burner. Before you start writing I suggest you make an outline or sketch out the issues you want to touch. Each question gives you an opportunity to discuss and apply key concepts in the law of torts and to analyze facts and apply the law to them. These are essay questions. Therefore good sentence structure, sensible paragraphs, and readability are important. BE SURE TO ANSWER EACH ELEMENT OF THE QUESTION ASKED. The cases are set in New York City, Chicago, Minnesota, and Maine. I did not draft them with the jurisdiction’s law in mind. If you happen to know the relevant law (as you might in the case of New York, fine. Cite it.) Otherwise you can use all available authority to support the result you think that law and justice demand. Concrete reference to the cases, Restatements, statutes, and other authorities is valuable to clarity of thought and explanation. But a reference to a rule number or a case by itself is not explanatory. The key is to state the principle and explain the logic of the position you urge. The number of the rule or name of the case just shows where you found the idea, or how you know it expresses the law. The essay should be understandable even without the numbers or case names. Limited Open Book The exam is limited open book. You should bring the Franklin, Rabin, Green casebook. You may also bring the outline form slides I have posted. If you choose to do that I would print them Page 1 of 12

in outline format. It will enable a quick search for authorities. The cases assigned and notes following cases in the casebook may be of important assistance in forming and structuring your essays. And you should also have available the text of cases assigned by me. You may bring your own notes or outlines. You may not bring any commercial outlines or other texts or treatises. You may use Exam 4 or may handwrite your answers. If your exam is handwritten it MUST be double-spaced. If it is typed I prefer 1.5 line spacing if that option is available.

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Use of Authorities Do Not cite any authorities other than what has been assigned, recommended, cited in class, or posted on the TWEN or on Torts Today by me. Brief identifying citations are all that is needed, e.g. Rest. § 402A, Greenman v. Yuba Power, Palsgraf, etc. are acceptable forms of citation. But the Rule number and the case name are not a substitute for stating the proposition you are asserting. E.G. `There is a 402A claim here’ is opaque. But “§ 402A has been interpreted to encompass manufacturing, design, and inadequate instruction or warning claims. Only a design defect claim appears here.” is instructive and is helpful to the reader. Rhetoric - the Art of Persuasion Your object is to reason to a conclusion. State your opinions and defend them. A well organized argument, buttressed by reference to authority, which discusses the issues in an informed, critical way, is your goal. Be careful to draw only reasonable inferences from the facts presented. If answering a question requires assuming or even adding facts to those provided, be sure to state your additional assumptions. I am looking for an essay characterized by persuasive legal argument (with appropriate authorities noted), for accurate statement of the facts, avoidance of rhetorical hyperbole, and for succinct explanations and use of the logic of the law. Please place your self in the position contemplated by the question and address the intended recipient (e.g. judge, senior partner, insurance claims manager). Think of the reader. That is who you seek to persuade. Sentences must end - preferably sooner rather than later. Paragraphs should be short. Dense blocks of type are unwelcome. Verbs should have objects - mostly.

Good luck. Have a great holiday. I hope to see each of you in my classroom again before you graduate from Fordham. - GWC

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Q. 1 10 SOUTH END AVENUE ( A MIXED USE OFFICE AND RESIDENTIAL TOWER IN `BATTERY PARK CITY’)
Frustrated business and residential tenants at 10 South End Avenue in Manhattan have come to your firm. As a result of Hurricane Sandy they have suffered losses like those described `Battery Park city’ below. The building is owned by Lefrak - a major New YorkNew Jersey commercial and residential real estate company, and managed by Cooper Square Realty under contract with Lefrak. 10 South End Avenue, like much of lower Manhattan, is built on landfill. The district below Canal lost all power for 96 hours due to flooding of a Con-Ed power sub-station when the storm surge (14 feet above normal at the Battery) rose several feet above the sea walls of downtown New York. 10 South End’s s electrical system - including its back-up emergency generator - and its HVAC system were severely damaged when sea water flooded the basement. The building will not be able to be occupied for several months, and all tenants will have to find other space to operate or live- at substantial cost. Many tenants’ cars were destroyed because they were parked in the underground garage when it flooded. The businesses operating at 10 South End were shut down entirely for a week, then slowly began to resume operations at other locations - a slow and costly process because work space, computers, phones, etc. had to be set up or replaced, etc. Residential tenants are in hotels, rented new apartments (their own furniture stranded at 10 South End Ave.), moved in with family or friends, etc. The businesses’ operations were also disrupted by workers’ inability to get to work because the Governor and the Mayor of New York ordered the MTA to suspended subway and commuter rail service in anticipation of the storm. And the MTA was delayed in restoring service because sea water flooded into tunnels from subway grates and street-level entrances. Other workers were unable to get to work because of flooding of road and rail tunnels operated by the Triboro Tunnel `plug’ design drawing Bridge and Tunnel Authority (Triboro) and the Port Authority of New York and New Jersey (PA). Why, your clients ask, did no one do anything? “Everyone knows that lower Manhattan is landfill subject to flooding in severe storms. The New York State Energy Research and Development Authority (NYSERDA) has authoritatively predicted that 100 year storms will occur more often, overwhelming sea walls, and severely damaging our electrical grid unless major infrastructure projects are implemented. The American Society of Electrical Engineers gives our grid a grade of “D +”, saying that even interim steps to secure power stations and to flood-proof electrical and HVAC systems are sorely lacking.

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But nobody does anything about it. Flood-gates like on the Thames down river from London? Not in New York. Such things could certainly be built at the Narrow/Verrazanno Bridge, and at Throgs Neck - the entrance to the East River. Sealing tunnels to prevent flooding (have you seen those balloons being developed to seal tunnels?) Not the Triboro or Port Authority. Flood walls to protect power substations and building electrical systems from storm surges? Not Con-Ed. Waterproof basement electrical rooms and back-up generators? Not the owners of 10 South End Avenue. And why not at least put sandbags around our building which flooded through the underground garage and the stairwells in the flooded lobby? Your prospective clients - the tenants - have pointed to the following potential parties: Governmental: the State of New York, the Triboro Bridge and Tunnel Authority (tunnels), Metropolitan Transportation Authority (subways and commuter rail), and the Port Authority of New York and New Jersey (tunnels and PATH train to New Jersey). Private: Con-Ed, Inc. (A privately- owned regulated public utility company), Lefrak, Cooper Square Realty. Prepare a memo for your clients stating your professional opinion regarding the merits of any potential claims, the likely defenses, and the elements of recoverable damages that the tenants (business and residential) may have against the putative defendants. Thames River flood gates - London

flood-proofing methods

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Q. 2 BRENDAN MCKOWN V. SIMON PROPERTY D/B/A NORTHFIELD MALL, ET AL.
Brendan McKown was shot and injured by Dominick S. Maldonado inside the 1.4 million s.f. Northfield Mall during Maldonado's eight-minute shooting rampage. At the time, McKown was working in one of the stores in the Mall. Simon Property owned the Mall, and IPC International contracted with Simon to provide security services at the Mall. On November 20, 2010 Maldonado walked into the Northfield Mall, in Northfield, Minnesota. Maldonado was wearing a trench coat and carrying a concealed MAK-90 rifle, a concealed Intertec Tec-9 pistol, and a guitar case containing ammunition. After entering the mall, Maldonado stopped near a soda machine, opened the guitar case, loaded his rifle, passed by a T-Mobile kiosk multiple times, and then began shooting. Over a period of approximately eight minutes, Maldonado injured seven people, the last of which was McKown. McKown was shot while attempting to intervene. He was legally armed with a handgun, and had been hiding in a store with several other people when he saw Maldonado. He aimed at Maldonado who shot first, striking McKown. Maldonado then took several people as hostages in a Sam Goody record store for several hours, but he was eventually taken into custody. McKown was left paralyzed. Maldonado was convicted of several crimes of violence and sentenced to 163 years in prison. Between 2000 and 2009, the Northfield Mall was the location of several eparate shootings: In October 2000, a gunman shot and wounded a man as he ran into the lobby of the movie theater at the Northfield Mall. The man did not know who shot him. In response to the shooting, the Northfield Mall's managers told the News Tribune that they had implemented a "crisis-management plan" and intended to hold a meeting with the Mall's owners "to review security measures to determine if they can be improved." o In March 2004, five youths were arrested after they fired shots in the Northfield Mall parking lot. o In November 2005, Northfield Police responded to a woman who was carjacked at gunpoint in the parking lot of the Northfield Mall. o In March 2007, Northfield Police responded to a man who was robbed at gunpoint in the Northfield Mall parking lot while waiting for his girlfriend. o In February 2008, Northfield Police responded to a man who had a gun pointed at him in the Northfield Mall parking lot.

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You are an associate at a law firm which has been retained by Simon Property’s liability insurer Travelers. Your boss says “Brendan McKown has filed a notice of intent to sue the Town of Northfield. That Notice telegraphs the claims against our client - Travelers’ insured. Please survey the law and give me the big picture. We have never seen a case like this here in Lake Wobegon country. McKown’s lawyer asserts the following theories of recovery: “The mall owners and operators owe a duty to customers and workers to protect them from criminal assaults like this. The security company should have installed metal detectors at the doors and had video cameras throughout being monitored live. There was no police presence at the time of the assault. The Town of Northfield which derives 20% of its tax revenues from the shopping mall should have a sub-station at the mall and provided an adequate police presence to deter or stop criminals like this.” Evaluate each of these claims as to their legal foundation.

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Q. 3 CHOATE V. INNER HARBOR BELT RAILWAY CO. In July 2003, Billy Choate was 12 years and 9 months old, and had finished the sixth grade. On July 30, 2003, he and two classmates, Steven Weyer and Charles Spindler, met up with three girls, Alisa Witzenburg, Brittany Edgar, and Jessica Gunderson in the parking lot of an apartment building in Chicago Ridge. The IHB RR railroad tracks lie adjacent to the north side of the parking lot. There was no railroad crossing at that location. The nearest crossings were at Ridgeland Avenue, approximately three-quarters of a mile northwest, and Central Avenue, approximately one quarter of a mile southeast. Only segments of this mile-long corridor were fenced. On the north side of the tracks at the parking lot, a chain link fence had long been torn open and rolled back, enabling people to walk through it to cross the tracks and go to a convenience store a block away. On the south side of the tracks, a chain link fence ended east of the parking lot. A sign posted on the west end of this fence read “No Trespassing” in English and Spanish. According to his testimony, Billy did not see this sign on July 30, 2009. Billy testified that while the kids were gathered in the parking lot, a freight train approached on the middle track. The 200 car freight train was moving eastbound at 5 miles per hour and never stopped. The kids originally intended to wait for the train to pass, and cross the tracks to reach Weyer's house. However, after a couple of minutes, plaintiff, Spindler, and Weyer began walking toward the tracks. They stepped onto the railroad right-of-way. Billy and Spindler decided on the spur-of-the-moment to jump onto the train. He was focused solely on trying to impress his friends, especially Van Witzenburg, his “girlfriend” at that time. Billy has given a statement to a policeman who came to the hospital: Q. Now, while you were standing there grabbing for these [boxcar] ladders, what was going through your mind? A. I thought that I was going to get on the train, ride it for a couple of feet, and then I was going to get off, and everything would be fine. Q. And as you stood there, did you have any thought that you might fall under the train and lose your leg as a result of grabbing on that ladder?" A. Not a thought whatsoever. Spindler attempted to jump onto the train first. He tried to grab a ladder on the side of a moving boxcar, but he was unsuccessful and stepped away from the train. Billy then attempted to “catch the train” three times. On his first attempt, he stood flat-footed on the ground and grabbed a ladder. At the time, he was only 5 feet tall. He was able to grab the Page 8 of 12

bottom rung of the ladder with his right hand. However, the ladder bent his fingers backwards and he pulled his hand back. On his second attempt, he ran alongside the train and grabbed a ladder. However, his shoes began to slip on the rocky roadbed, forcing him to let go. On his third attempt, Billy grabbed hold of a ladder with both hands and pulled his body up toward the train. He managed to put his right foot on the ladder. He does not recall what happened next while he was on the train. The girls were screaming at Billy to stop what he was doing and get away from the train. Gunderson and Van Witzenburg each testified that Billy slipped from the ladder and fell down. Billy remembered waking up on the ground and trying unsuccessfully to stand. His left foot had been severed above the toes. Dr. Andrea Kramer, Billy’s orthopedic surgeon, testified that plaintiff's injury necessitated an amputation below the knee, rather than closer to the ankle, because "there was no skin left on his heel or his foot, so it was the best option." The extensive medical bills were paid by Billy’s father’s union health and welfare fund which reimbursed 80% of the costs. There is a remaining balance of $20,000. Billy’s physical abilities are obviously limited by the below-knee amputation, which remains painful. Billy comes into the office of Debs and Altgeld with his father who suggests that IHB RR failed to: adequately fence the area; prevent minor children from accessing trains or the railroad tracks; post adequate warning signs, or otherwise warn of the danger of trains; and monitor the area in the vicinity of the train and railroad tracks to prevent children from crossing the tracks.

You are an associate in the law firm of Debs and Altgeld, which has been consulted by Choate’s family who ask if their son has a case against IHB RR, a division of the rail giant CSX. Prepare a memo assessing the prospects for a claim against IHB RR/CSX. Discuss the legal bases for a negligence claim, the defenses, and the nature of the remedies to be sought, assessing the strengths and weaknesses of each element you address.

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Q. 4 MCGARRIGLE VS. MERCURY

Duranautic 13 with 9.9 hp Mercury John McGarrigle, 18, was on Lake Sebago, on a summer day, operating his father's boat, a thirteen foot Duranautic aluminum fishing boat equipped with a 2007 9.9 horsepower Mercury Marine outboard engine, when he was pitched overboard a few hundred yards from a dock. As he fell into the water, his grasp on the tiller caused the boat to spin in a clockwise motion. The boat circled several times, coming closer to him with each rotation. At one point he tried to grab hold of the circling boat and climb on board, but the boat went over him and the propeller from the engine struck his face and neck causing severe injuries. He tried to swim to shore but could not. A strong swimmer, he was not wearing a life jacket. By the time a rescuer got to him John was unconscious. EMT efforts to revive him failed. Marine Patrol Officer William Panco investigated the accident concluding that the lake was fairly "choppy" on the day of the accident and that he was running about fifteen miles per hour when the boat hit a wave and John was ejected from the boat. A friend told Officer Panco that John "had a few beers earlier in the day" although he did not feel that intoxication contributed or caused this accident. Panco concluded that the accident was caused by "excessive speed" for the conditions.

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9.9 merc with red `kill switch’ lanyard

The Mercury Marine outboard engine was designed to be operated with a "lanyard" kill switch. The purpose of the lanyard is to provide a safety device to stop the engine in the event of the operator being thrown overboard. One end of the lanyard is inserted into the "run/off" switch while the other end is fastened to the operator. If the operator moves far enough away from the engine, or is thrown overboard, the lanyard will turn the engine off in order to prevent injury from a runaway boat. (See photo) The Coast Guard has been studying such problems for thirty years. There are 50 – 100 deaths per year from “propeller strike” injuries and the “death spiral” seen here is well known. When John’s father James McGarrigle purchased the used Mercury Marine engine in September 2007, he received an owner's manual which described the nature, function, and purpose of the lanyard and the dangers of failing to use it. Neither Mr. McGarrigle, nor his son – experienced operators of small boats - read the owner's manual. Mr. McGarrigle stated that had he read the manual, he would have bought a lanyard. Mr. McGarrigle admits that had a lanyard been used, the accident would not have happened. The lanyard attaches to a forked piece which holds a cut-off switch open. If one is wearing the lanyard and falls overboard the engine cuts off immediately. Mercury Marine has been designing, manufacturing and selling outboard engines for use on recreational boats since 1939. There is no evidence that any of Mercury Marine's engines are not in compliance with all applicable safety laws and regulations. On its 2.5 to 6 horsepower outboard engines, Mercury Marine uses a type A lanyard that prevents the operator from starting the engine without first inserting the engine end of the lanyard into the emergency stop switch on the engine. All other manufacturers of outboard engines also use the lanyard A. On its 8 to 25 Page 11 of 12

horsepower outboard engines, however, Mercury Marine uses a type B design that allows the operator to start the engine without having the lanyard stop switch connected to the). The lanyard B allows another boat passenger to restart the engine without a lanyard and navigate back to the person in the water. John was operating a Mercury Marine engine that relied on the lanyard B and, therefore, allowed him to start the engine without a lanyard stop switch. There were no warnings on the engine advising the operator to use a lanyard switch when alone or to read the owner's manual before operating. The Coast Guard has issued an Advance Notice of Proposed Rule-Making. It is considering requiring recreational vessel operators to attach an engine cut-off switch link for any installed engine cut-off switch to their person, clothing, or life jacket (if worn) when operating a recreational vessel less than 26 feet in length. The Coast Guard has long recognized that there is a low rate of use of the lanyards – because they get tangled, and prevent a single boat operator from moving about the boat without cutting off the engine.

There are now `after-market’ products now coming on the market which can be wired into an outboard motor. They rely on a number of techniques to operate the cut-off switch. For example one can put a unit in a pocket or on a life jacket. If the wireless connection is broken the engine is cut off. MariTech Virtual Lifeline allows the boat operator (and others on board if they so desire) to wear a small tag instead of a lanyard. If anybody wearing one of the tags falls overboard the tag is immersed, it sends a signal to the system, an alarm sounds, and the boat stops. A rescue mode button allows the system to be quickly reset and the motor to be restarted to retrieve the person in the water. You are an associate at Boies Schiller. The McGarrigle family has come to the firm and asked if they have any kind of case. Analyze the issues presented and prepare a memorandum to the managing partner regarding whether to take the case on a contingent fee basis. Your memo should cover the legal theories on which a case might be brought, the defenses you will encounter and state your opinion as to the strength and weaknesses of the McGarrigle claims.

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