Deck 7: Business Torts and Product Liability

Question 1

Given these disturbing, but not fully resolved allegations about Merck and the subsequent settlement, would an ethical, socially responsible investor continue to buy shares in Merck Explain.

Answer 1

The Domini 400 Social Index, created and managed by KLD Research and Analytics, excludes tobacco companies, arms markets, casino operatiosn, and others from its portfolio, but the Index retained its interest in Merck, as reported prior to the settlement: "There's no such thing as a perfect company…Socially responsible investors are willing to deal in grays" said the president of KLD.  Source: Daniel Akst, "The Give and Take of 'Socially Responsible'," The New York Times , October 8, 2006, Section 3,Merck has also been applauded for is unyielding strategy in addressing and settling the Vioxx situation.  On the other hand, critics believe Merck, was not full forthcoming in revealing what it knew about the alleged risks of Vioxx, and could have acted more swiftly in removing Vioxx from the market to avoid the serious health problems suffered by many as a result.

Question 2

What classes of people other than intruders are of concern to the courts in cases like Katko

Answer 2

Firefighters, children, etc.

Question 3

Rattigan and Horvitz owned a house and prime ocean front lot in Beverley Farms, Massachusetts. The house was rented during the summer months. Wile owned an adjacent undeveloped ocean front lot. The only land access to Wile's lot was through the Rattigan/Horvitz lot. Rattigan and Horvitz successfully challenged Wile's application for a building permit and thereafter Wile began a series of retaliatory acts, including putting several portable toilets o his lot immediately adjacent to the Horvitz swimming pool, landing his helicopter on his vacant lot, placing debris such as a rusted crane bucket, broken cement, and the bed of a pickup truck on his property, and holding parties (not attended by Wile) for 150-200 guests from the local youth shelter. Some of these tactics by Wile were sporadic rather than persistent. Were Rattigan and Horvitz the victims of a nuisance Explain. See Rattigan v. Wile, 841 N.E.2d 680 (Mass. S. Judicial Ct. 2006).

Answer 3

Rattigan won on nuisance grounds.  The court found that the community was intolerance of activities like those of Wile, that those activities harmed Rattigan's rental prospects, that the activities apparently constituted retaliation, that Wile could have used other portions of the lot for some of his activities, and that the interferences continued for a number of years. Damages were awarded for reduction in rental value based upon an expert appraiser's testimony along with the cost of building a fence that Horvitz had erected to shield his lot from Wile's activities.

Question 4

In an attempt to commit suicide, Connie Daniell locked herself in the trunk of her 1973 Ford LTD automobile, where she remained for nine days before being freed. During the nine days, Daniell changed her mind and sought to escape, but she was unable to do so. She sued the Ford Motor Company for the injuries she sustained from her entrapment.
a. What claims would she bring
b. Decide those claims. Explain. See Daniell v. Ford Motor Company, 581 F. Supp. 728 (N.Mex. 1984).

Question 5

Who won this case and why
b. Did the court adopt the foreign-natural test or the reasonable expectations test Explain
c. Is a walnut shell "natural" to, for example, maple nut ice cream What about a cherry pit in a cherry pie Explain.

Question 6

In buying a new motor home, Leavitt told the dealer that he wanted to have plenty of power and braking capacity for driving in the mountains. He was assured by the dealer on both counts. He brought the motor home and found it unsatisfactory for mountain use. After many warranty repairs, he sued for breach of warranty.
a. What warranty was breached, according to Leavitt
b. Decide the case. Explain. See Leavitt v. Monaco Coach , 616 N.W.2d 175 (Mich. Ct. App. 2000).

Question 7

In a similar case [ Griggs v. Bic Corp., 981 F.2d 1429 (3rd Cir. 1992)] the court, employing a negligence analysis, found that the central question was whether the foreseeable risk was unreasonable. The court noted that residential fires started by children playing with lighters are estimated to take an average of 120 lives each year, and total damages amount to $300-$375 million or 60-75 cents per lighter sold.
a. Is the foreseeable risk unreasonable, in your judgment
b. How did you reach your conclusion
c. In your view, are the parents the responsible parties in these episodes Explain.

Question 8

Plaintiff James L. Maguire was seriously injured when the motor vehicle in which he was a passenger was struck by another motor vehicle. Plaintiff alleges that Vikki Paulson, the driver of the other vehicle, was intoxicated at the time of the accident. Following the accident, Paulson entered guilty pleas to (1) operating a motor vehicle while under the influence of alcohol, (2) involuntary manslaughter as a consequence of the death of another passenger riding with Maguire, and (3) failure to stop at a stop sign. During the time in question in the case, Pabst Brewing Company had engaged in an advertising campaign promoting the sale of its products. Plaintiff claims the defendant Pabst was liable for his injuries because (among other claims) its advertising promoting the consumption of alcohol by those who drove to tavern constituted a danger to highway safety and because the brewer had failed to warn consumers of the dangers of alcohol consumption. Decide. Explain. See Maguire v. Pabst Brewing Company, 387 N.W.2d 565 (Iowa 1986).

Question 9

Would the dissent's reasoning in the Whitlock court of appeals decision apply to the trampo-line in your amusement park business Explain.

Question 10

Would a warning and close supervision protect you from liability under the court of appeals decision Explain.

Question 11

Jerry Colaitis, 47, went with his family to a Benihana steakhouse in Munsey Park, New York. The Benihana chain is well-known for hibachi-style cooking with diners gathered around a rectangular wooden table with a hot grill in the middle from which the chef, as a form of entertainment, often casually tosses pieces of cooked food at the diners. Mrs. Colaitis claimed that the chef struck and burned some family members with pieces of tossed food. Mr. Colaitis asked the chef to stop, but as he was speaking a piece of shrimp was tossed his way causing Mr. Colaitis to jerk away from it resulting in two wrenched vertebrae in his neck. Mr. Colaitis underwent a corrective operation then suffered a post-operative complication that resulted in a blood-borne infection that caused Mr. Colaitis' death. The Colaitis family sued Benihana for negligence causing the death. At trial, the head chef at the Munsey Park restaurant conceded that the food tossing practice could be dangerous. The restaurant discontinued the practice. During the last year of his life, Mr. Colaitis had suffered from fevers that were not associated with his surgery. How would you rule on the Colaitis' negligence claim Explain. See Estate of Colaitis v. Benihana, Inc., 015439-2002 (Nassau County Supreme Court, 2006) and Andrew Harris, "Jury: Flying Shrimp... Kill Diner," http://www.law.com/jsp/article. jspid _ 1139479516332.

Question 12

Twenty-year-old Stephen Pavlik died from inhaling Zeus-brand butane while trying to "get high.'' His estate sued the Zeus maker, Lane. The fuel came in a small can with a printed warning reading, "DO NOT BREATHE SPRAY.'' The plaintiff argued that the can was defective because the warning inadequately expressed the hazard. A federal district court ruled that Pavlik was aware of the danger so the warning was adequate, and in any case, a warning would have had no effect so proximate cause could not exist. That decision was appealed. How would you rule on that appeal Explain. See Pavlik v. Lane Limited, 135 F.3d 876 (3d Cir. 1998).

Question 13

What defense(s) would you offer on behalf of Muldovan Explain.

Question 14

Decide the case. Explain. See Muldovan v. McEachern, 523 S.E.2d 566 (Ga. S.Ct. 1999).

Question 15

A businessman in Cordele, Georgia, troubled by small thefts from a cigarette machine in front of his store, allegedly booby-trapped the machine after hours with dynamite. A teenager then died when tampering with the machine. What legal action should be taken Resolve.

Question 16

Why did the California Supreme Court rule in favor of Navegar in this case
b. Explain the plaintiffs' cause of action.
c. Explain the dissenting opinion.
d. Argue that the plaintiffs' claim did not involve a risk-benefit analysis of the kind forbidden by the California statute.

Question 17

In your opinion, should gun manufacturers be liable for the criminal use of their products Explain.

Question 18

Douglas Kolarik alleged that he used several imported, pimento-stuffed green olives in a salad. In eating the salad, he bit down on an olive pit and fractured a tooth. The olive jar label included the words "minced pimento stuffed." The defendants are importers and wholesalers of Spanish olives that reach the defendants in barrels and are then inspected for general appearance, pH and acid level and then washed and placed in glass jars suitable for distribution for the purpose of retail sales.
a. What legal claim would be expected from the plaintiff based on the "minced pimento stuffed" language
b. Decide that claim. Explain. See Kolarik v. Cory International, 721 N.W.2d 159 (Ia. S.Ct. 2006).

Question 19

Lydia, an adult, was intoxicated when Horton allowed Lydia to borrow his car. Lydia lost control of the car, crashed, and was rendered a quadriplegic. Lydia sued Horton for first-party negligent entrustment, claiming that Horton should have recognized that Lydia was too drunk to be entrusted with the car.
a. Are both Lydia and Horton negligent Explain.
b. Who wins Explain. See Lydia v. Horton, 583 S. E. 2d 750 (S. C. S. Ct. 2003).

Question 20

Stopczynski, age 17, had used her neighbor's pool "hundreds of times." Stopczynski and her neighbor's nephew, a 34-year-old male, went to the pool. Stopczynski was noticed floating face down in the pool. She had broken her neck, apparently from diving into the four-foot deep, above-ground pool. She died a few hours later. The pool originally had stickers around the edge that said "no diving," but that edge had been replaced and the stickers were gone. Stopczynski's mother sued the property owner, Woodcox, for negligence. Decide the case. Explain. See Stopczynski v. Woodcox, 258 Mich. App. 226 (2003).

Question 21

Hollister was badly burned when her shirt came into contact with a burner as she leaned over her electric stove. She sued the store where she bought the shirt, claiming that it was defectively designed. What proof will Hollister need to provide to win her defective design claim See Hollister v. Dayton-Hudson, 188 F.3d 414 (6 th Cir. 1999).

Question 22

Sometimes things happen that businesses can neither prevent noreven explain and yet liability may attach. For example, imagine you are operating a clothing store. A customer enters and decides to try on a pair of slacks. You show her to the dressing room. Soon after, you hear a scream from the room. As it turns out, your customer has been bitten by a spider. Not surprisingly, she thinks the blame lies with your store. She sues, but her negligence and breach of warranty claims are rejected by the court. (Can you explain why she loses) Finally, she raises a strict liability in tort argument, but the court denies that claim also. Read the overview of strict liability that follows and think about why the court denied her claim. See Flippo v. Mode O'Day Frock Shops of Hollywood, 449 S.W.2d 692 (Ark. S. Ct. 1970).

Question 23

Had the Biglanes hired away the Under the Hill manager and several employees and started their own nearby saloon, would the Biglanes' action constitute tortious interference with business relations Explain.

Question 24

Thomas Woeste died as a result of contracting a bacteria after eating about one dozen raw oysters at the Washington Platform Saloon Restaurant. The bacteria, vibrio vulnificus, is naturally occurring in oysters harvested in warm waters. Most people are unaffected by the bacteria, but those with weakened immune systems like Woeste can be susceptible to illness or death. Washington Platform's menu contained the following warning:
There may be risks associated when consuming shell fish.…
If you suffer from chronic illness of the liver, stomach or blood…
or if you have other immune disorders, you should eat these products fully cooked.
Woeste ordered and ate the oysters without opening the menu and reading the warning. A civil lawsuit was filed against Washington Platform alleging that the restaurant was both negligent and strictly liable for failure to adequately warn. Decide that case. Explain. See Woeste v. Washington Platform Saloon Restaurant, 836 N.E.2d 52 (Ohio Ct. App., First App. Dist. 2005).

Question 25

Aggressive public safety programs and the threat of lawsuits have made playground swings, particularly the tall 16 footers, a vanishing delight. Tall swings and slides along with sliding poles are rapidly being replaced by safer but less thrilling playground devices. U.S. playground safety standards, widely adopted in the 1990s, called for new safety surface to cushion falls with the result that the swings became very costly. A swing set once costing $800 now costs $4,000. Thus, government rules and the threat of lawsuits have made playgrounds safer while reshaping childhood fun and virtually eliminating the challenge of overcoming the terror of big swings and slides. Are we better off

Question 26

Is the sale of liquor a moral wrong
b. Did Kline commit a moral wrong simply by working in a bar Explain.

Question 27

Alison Nowak, a 14-year-old girl, tried to spray her hair with Aqua Net. Because the spray valve on the recently purchased aerosol can would not work properly, she punctured the can with an opener. She was standing in her kitchen near a gas stove at the time, and the cloud of spray that gushed from the can ignited. She was severely burned. Nowak sued Faberge, the maker of the spray, on strict liability grounds. Although the back of the can contained the warnings, "Do not puncture," and "Do not use near fire or flame," the jury determined that Faberge had not adequately warned of the fire hazard and awarded her $1.5 million. Faberge appealed. Decide. Explain. See Nowak v. Faberge USA Inc., 32 F.3d 755 (3d Cir. 1994).

Question 28

In 1996, Mark Merrill entered a clinic for compulsive gamblers and wrote to Trump Indiana, a casino in Gary, Indiana asking that he be evicted if he ever entered to gamble. Merrill's name appeared on Trump Indiana's eviction list. Nonetheless, Merrill later gambled at the casino suffering substantial losses. In December 1998 and January 1999, Merrill robbed banks, apparently to cover his gambling losses. He was convicted of bank robbery, but while in prison he filed suit claiming Trump Indiana was negligent in failing to keep him from gambling at the casino. Rule on Merrill's negligence claim. Explain. The fourpart negligence test that follows will help you resolve Merrill's claim.

Question 29

Is the manufacturer excused from liability if the product's danger is obvious or if the product is used in an unintended but foreseeable fashion

Question 30

Sandage loaded a car on a transport trailer. The car door could not be fully opened because of a support bar on the trailer. He suffered a back injury when he squeezed out of the car. The trailer had been modified to add several feet to its length, and support poles, including the one in question, had been added. Sandage sued the company that modified the trailer. Sandage sued in strict liability and negligence. Decide the case. Explain. See Sandage v. Bankhead Enterprises, Inc., 177 F.3d 670 (8th Cir. 1999).

Question 31

List the two causes of action in this case, and explain who brought each and upon what factual foundation.

Question 32

Michael Carneal, a 14-year-old high school freshman in Paducah, Kentucky, brought a.22- calibre pistol and five shotguns to Heath High School on December 1, 1997, where he shot and killed three students and wounded a number of others. Carneal regularly played violent video games such as "Doom and Quake" and viewed violent Internet sites. He also watched violent movies including The Basketball Diaries, in which a high school student dreams of killing his teacher and other students. The parents of the dead children sued several video game, movie production, and Internet content providers raising negligence and strict liability claims. Who should win that case Explain.

Question 33

Why would we want to reduce our reliance on tort law

Question 34

In 1995 a young Oklahoma couple shot and paralyzed a store clerk, Patsy Byers. The young couple had repeatedly viewed Oliver Stone's 1994 movie Natural Born Killers, which is about a young couple who go on a killing spree. The Byers family sued Stone and Warner Brothers movie studio, the film distributor. Should a film-maker and studio be liable for the alleged copycat behavior of those viewing a movie Explain.

Question 35

As nearly as you can deduce from this brief rendition of the facts, did the jury reach a correct decision Explain.
b. Was the decision "fair" Explain.

Question 36

Why did the Biglanes win their claim while Under the Hill lost its claim

Question 37

Why did the New Mexico Supreme Court find that the proximate cause element of negligence claims might be present in cases like Herrera

Question 38

Embs was shopping in a self-serve grocery store. A carton of 7UP was on the floor about one foot from where she was standing. She was unaware of the carton. Several of the bottles exploded, severely injuring Embs's leg. Embs brought a strict liability action against the bottler.
a. Raise a defense against the strict liability claim.
b. Decide. Explain. See Embs v. Pepsi-Cola Bottling Co. of Lexington, Kentucky, Inc., 528 S.W.2d 703 (Ky. Ct. App. 1975).

Question 39

Explain the plaintiff Calles' claim that the Aim N Flame lighter was defective and unreasonably dangerous.
b. Explain the court's resolution of Calles' claim.

Question 40

Was Kline's stunt a moral wrong Explain.
b. If a racing car caught on fire and crashed into the grandstand, killing spectators, did the driver or the owner commit a moral wrong

Question 41

Explain why the Iowa Supreme Court ruled against the plaintiff's failure to warn claim.

Question 42

Plaintiffs Dr. Arthur Weisz and David and Irene Schwartz bought two paintings at auctions conducted by Parke-Bernet Galleries, Inc. The paintings were listed in the auction catalog as those of Raoul Dufy. It was later discovered that the paintings were forgeries. The plaintiffs took legal action to recover their losses. Parke-Bernet defended itself by, among other arguments, asserting that the conditions of sale included a disclaimer providing that all properties were sold "as is." The conditions of sale were 15 numbered paragraphs embracing several pages in the auction catalog. The bulk of the auction catalog was devoted to descriptions of the works of art to be sold, including artists' names, dates of birth and death, and, in some instances, black-and-white reproductions of the paintings. It was established at trial that plaintiff Weisz had not previously entered bids at Parke-Bernet, and he had no awareness of the conditions of sale. Plaintiffs David and Irene Schwartz, however, were generally aware of the conditions of sale. Is the Parke-Bernet disclaimer legally binding on the plaintiffs Explain. See Weisz v. Parke-Bernet, 325 N.Y.S.2d 576 (Civ. Ct. N.Y.C. 1971), but see Schwartz v. Parke-Bernet, 351 N.Y.S. 2d 911 (1974).

Question 43

Explain Rubin's argument.

Question 44

What evidence must a plaintiff provide to maintain a successful defective design product liability claim

Question 45

Did the Iowa Supreme Court reach a just verdict Explain.

Question 46

The plaintiff, born and raised in New England, was eating fish chowder at a restaurant when a fish bone lodged in her throat. The bone was removed, and the plaintiff sued the restaurant, claiming a breach of implied warranty under the UCC. Evidence was offered at trial to show that fish chowder recipes commonly did not provide for removal of bones. Decide. Explain. See Webster v. Blue Ship Tea Room, 198 N.E.2d 309 (Mass. S. Jud. Ct. 1964).

Question 47

In the Herrera case, the New Mexico Supreme Court overruled its own precedent ( Bouldin). Explain the Bouldin reasoning, and explain why it was overruled in Herrera.

Question 48

Why have the courts, as in the Henningsen case, intervened to overturn privately contracted risk and remedy arrangements

Question 49

Priebe bought a used car without a warranty (sold as is). The seller, Autobarn, told Priebe that the car had not been in any accidents. After driving the car more than 30,000 miles, Priebe crashed the car. Priebe sued Autobarn claiming the car was dangerous to drive because of a previous, undisclosed accident. Priebe did not show that Autobarn had knowledge of the previous accident; nor did Priebe show that the value of the car was reduced by the previous accident. Priebe sued for breach of warranty. Decide. Explain. See Priebe v. Autobarn, 240 F.3d 584 (7 th Cir. 2001).

Question 50

A passenger ran after a train as it was leaving a station. Two railroad employees boosted the passenger aboard, but as they did so a package carried by the passenger fell beneath the wheels of the train and exploded. The package, unbeknownst to the employees, contained fireworks. The force of that explosion caused a scale many feet away to topple over, injuring the plaintiff, Palsgraf. Palsgraf sued the railroad on negligence grounds.
a. Defend the railroad.
b. Decide. Explain. See Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928).

Question 51

Explain the plaintiff's design defect argument.
b. Explain why that argument was rejected by the court.

Question 52

Why did the Herrera court find that the defendant, Quality Pontiac, had a duty to the plaintiffs

Question 53

Some observers argued that a decision for the plaintiffs in the Merrill/Navegar case would have led to a product liability "slippery slope." Explain that argument. Do you agree with it Explain.

Question 54

Pat Stalter was injured when a bottle fell through the bottom of a soft drink carton and broke while she was shopping at Food City, a Little Rock, Arkansas, grocery store. A piece of glass went through her slacks, cutting her. A store employee said the carton was "mushy" and appeared to have been wet for some time. The bottles were in a display maintained by Coca-Cola Bottling Company. Two or three times a week the company cleaned the shelves and rotated the stock. Coca-Cola said that this process ensures that only minimal moisture is on bottles when they are placed in cartons. Most cartons are reused only once. Stalter sued Food City and Coca-Cola Bottling Company for damages.
a. Explain the plaintiff's claims.
b. Decide. See Pat Stalter v. Coca-Cola Bottling Company of Arkansas and Geyer Springs Food City, Inc., 669 S.W.2d 460 (Ark. S. Ct. 1984).

Question 55

Why did the Iowa Supreme Court rule in favor of the criminal intruder, Katko

Question 56

According to the Restatement (Third) of Torts, when is a product design considered "manifestly unreasonable"
b. Explain the legal significance of a product design that is "manifestly unreasonable."

Question 57

Soon after Granny's Rocker Nite Club opened in the mid-1980s, it began having a weekly "fanny" contest, which involved male and female volunteer contestants competing for cash prizes by dancing. The audience judged the contest. While attending the fanny contest on April 4, 1990, plaintiff Jeffrey Loomis, got into a fight with another patron. Loomis's right ear was bitten and torn.
Loomis's claim against Granny's Rocker had two counts, one based on the Illinois Dramshop Act and one based on negligence. The jury found for the defendant on the dramshop count, but it found that Granny's Rocker was negligent in failing to have adequate security to stop a physical altercation on the nights of the fanny contests when it knew or should have known that such contests would result in a large and rowdy group of patrons. Granny's Rocker appealed. Decide the appeal, Explain, See Loomis v. Granny's Rocker Nite Club. 620 N.E.2d 664 (Ill. App. 1993).

Question 58

Diane Elsroth was visiting her boyfriend, Michael Notarnicola, in the home of his parents. Diane complained of a headache, and Michael provided a Tylenol that his mother had bought earlier that week. Michael noted nothing unusual about the Tylenol packaging. After consuming two Tylenol capsules, Diane went to bed. She died during the night. The medical examiner concluded that the Tylenol had been contaminated with potassium cyanide. The murder was not solved. The evidence established that the tampering with the Tylenol occurred after the product left the manufacturer's control. The packaging included a foil seal glued to the mouth of the container, a "shrink seal" around the neck and cap of the container, and a box with its ends glued shut. The manufacturer, McNeil, a wholly owned subsidiary of Johnson Johnson, knew through its research that a determined, sophisticated tamperer could breach the packaging and reseal it in a manner that would not be visible to the average consumer. John Elsroth sued McNeil on behalf of Diane's estate. Was the Tylenol packaging defective in design Explain. See Elsroth v. Johnson Johnson, 700 F. Supp. 151 (S.D.N.Y. 1988).