Essay ExamTorts

Hay, That’s Not Safe!

EXAM ARCHIVE

Suggested Constraints and Time Limits

This question was used for a real exam. [Note 1]

For a time limit, I suggest 2.0 hours total. And I suggest you not begin writing immediately but rather limit yourself for some period of time – as much as 30 minutes – to reading, analyzing, issue spotting, and scratching out a rough outline of what you will cover.

Facts

It was the final final exam of the first semester of law school! Very soon, nervous 1Ls would be released from the sources of their stress and would be ready to do some serious partying.

Before everyone had to take their seats for the last exam, Wade Wainwright was talking to his longtime friend, fellow 1L Vicki Vinsler.

“Where are we gonna party?” Wade asked Vicki. “I thought my parents were going to be out of town and we could have the party at their house. But they cancelled their trip, and I don’t know what we can do.”

“Well, I’m getting on a plane as soon as the exam is done, so I won’t be partying with you tonight. But I do have a place you can go. You remember Orin Ohashi’s farm? Where we did some work for extra money over the summer?”

“Oh yeah – I mean, I was high a lot of the time, but I remember!” Wade said.

“Orin said if we ever wanted to hold a dance or a party, we could use his barn – anytime we want,” Vicki said. “I mean, I was high too, but I remember him saying that. I thought it might come in handy.”

In fact, Vicki was misremembering this. Orin had only told Vicki to let him know if she ever needed a place for an event – because Orin was considering some modifications to the barn that would make it fit to rent out for weddings and events. Orin never gave an open invitation for Vicki or others to go on his land, much less to use his barn for a party.

“Also,” Vicki added, “I saw on his Instagram feed that he’s on vacation in Austria. So you won’t even see him.”

“Awesome!” Wade responded. In just seconds, Wade had messaged the 1L class about the after-finals party to be held later that day in the barn on Orin Ohashi’s farm.

Eight or nine hours later at Orin Ohashi’s Farm, the beer was flowing and the music was cranked up loud. Wade and fellow 1L partier Nelly Nealson were playing “barn golf,” a game that Wade had just invented that was a cross between beer pong and cornhole.

While hard to explain in the details, the game involved throwing ping pong balls into red disposable plastic cups placed on either side of the head of Rushil Ravindra, a fellow 1L who was passed out on his back, breathing through his mouth and snoring because of a stuffed-up nose.

A number of safety-minded 1Ls asked the barn golf players to cut it out. But Wade was having none of it.

“What’s the worst that could happen? A ball lands in his mouth and blocks his breathing?” Wade asked.

“Yeah, that would be pretty bad,” a fellow 1L said.

“We have just way too much hand-eye coordination for that to happen,” Wade explained, honestly believing it.

And yet, within a couple of minutes, a ball landed plop into Rushil’s mouth. No one knew whose ball it was – Nelly and Wade had thrown identical balls at the exact same time.

“Oh crap!” they yelled in unison.

Suddenly Rushil woke up. His eyes went wide, and he leapt to his feet. He stumbled around, choking on the ball and unable to breathe. Looking like he was about to pass out, Rushil suddenly fell belly-first into a row of beer kegs. In an incredible stroke of luck, the rim of the nearest beer keg worked a kind of Heimlich maneuver on Rushil – effecting an abdominal thrust that dislodged the ball out of his mouth in a spectacular fashion.

Everyone in the barn stared in stunned silence. Rushil then dizzily got back on his feet, bleeding profusely from a gash in his forehead caused by the metal parts of one of the kegs he fell into. Wobbling, Rushil raised his fist in a kind of victory gesture and shouted, “Let the party continue!”

Everyone cheered, and someone quickly cranked up the music.

Shifting gears, Wade looked around for another game to invent. Soon he and Freesia Freeman had climbed a ladder to the barn’s loft – a wooden platform, which was part of the barn itself, built about 25 feet off the ground.

Carefully holding his full cup of beer, Wade approached the edge. Below him was a large pile of unbaled hay reaching up about 18 feet off the ground. “I worked here over the summer creating this pile of hay,” Wade explained to Freesia. “It’s totally safe to jump into. And fun! Here, hold my beer.”

Wade put his toes over the edge. He paused thoughtfully. Then he turned back to Freesia.

“Be really careful with my beer,” Wade said. “It’s my first beer, it’s super full, and I haven’t had a sip yet.” With that, Wade turned around and launched himself into the air with a cheerful whoop. He landed softly, butt-first, in the hay pile.

The assembled crowd cheered.

After shimmying down to the barn floor, he called up to Freesia: “Go for it, Freesia! It’s totally safe! You got this!”

Wade’s saying this gave Freesia the confidence to give it a go. She launched herself off the platform.

THWAP! Her body struck something in the hay, making a sharp cracking sound. After Freesia was gingerly helped down from the hay pile, it was clear that she had fractured her hip very badly. The injury was really gross to look at, and a few people retched. Someone turned down the music, leaving a burbling whisper of exclamations and cursing as the dominant noise.

“I’m so sorry,” Wade said to Freesia. “I realize now I should have been concerned about that movable shelving structure hidden under the hay. I actually know about it from when I worked here. As supports for the shelving there are a bunch of vertical 2-by-4s.”

By speaking of “2-by-4s,” Wade was referencing pieces of lumber of a certain standard dimension, where the cross-section is 3.5 inches wide and 1.5 inches thick. (It’s probably the most well-known standard lumber size.)

“Many of these 2-by-4s stick up over the shelves but under the surface of the hay,” Wade explained. “I feel really bad.” Turning away from Freesia and toward the crowd, Wade raised his voice and announced, “Hey everybody, don’t jump off the loft into the hay – that’s not safe, okay guys? There’re vertical pieces of 2-by-4 lumber in there!”

Someone cranked the music back up to full volume while Wade and others helped Freesia to Wade’s late-model pickup truck with spacious seating. Wade knew he should drive Freesia to the hospital. It was, frankly, a custom in the local area that if someone you were with was hurt, then you drove them to the hospital. Especially if you had a nice, spacious truck. And Wade knew he would actually do a good job driving because, as he realized, he was probably the only person at the party who was sober at that point. But he didn’t want to leave yet. With a flash of insight, Wade turned to a nearby table and grabbed three shots of hard liquor. He quickly downed them, soothing the burn with a full beer.

There. Now he would be too drunk to drive – well over the legal limit of alcohol for operating a motor vehicle.

Turning back to Freesia, Wade said, “Oh crap! I should have offered to drive you to the hospital before drinking all of that! I was just so stressed out on account of you being injured. My bad, completely.”

Freesia, trying to hold it together while in incredible pain, turned to her friend Carla Campbell. “Carla, will you drive me?” Freesia asked.

Carla considered the situation. She had had quite a bit of alcohol at that point and was unsteady on her feet. Indeed, she knew she was over the legal limit of alcohol for operating a motor vehicle. Not that Freesia was likely to notice, being that her painful condition made it hard for her to pay attention to what was going on around her. But Carla knew it would substantially affect her ability to drive. On the other hand, she didn’t want to be a lousy friend and say no. “Okay,” Carla said. “I’ll take you in my new car. It’s a Type T from the tech start-up car company Marvel Motors.”

“That’s fine, great,” Freesia winced, delicately starting to extricate herself from Carla’s car.

The Type T moved smoothly down Route 33, which is a two-lane road with one lane of traffic moving in each direction. As Carla drove, she worried about how intoxicated she was. She realized it had been a risky decision to drive while drunk, and she found herself saying a silent prayer that she would make it to the hospital without an accident.

Suddenly an SUV coming in the opposite direction swerved over the double yellow line, crossing part-way into Carla’s lane. Carla slammed on the brakes and swerved off the road to avoid the SUV. Carla’s instincts as a driver were good ones. She did all the right things to avoid a collision, and thanks to her maneuver, her car avoided contact with the SUV. Unfortunately, however, Carla’s reaction time was slowed by the alcohol. Also, her brakes only applied 70% of their total possible stopping force.

As a consequence of Carla’s delayed reaction and the reduction in the brakes’ applied power, the Type T ceased forward motion at a point where it was perched precariously upon the edge of a concrete viaduct. Perfectly balanced – for the moment – on the brink. The Type T teetered over the open void of a concrete-lined irrigation and drainage channel.

As luck would have it, there was a slight gust of wind. It was enough to send the car over the edge, causing it to drop front-first into the concrete floor of the channel. The resulting force of the impact caused Freesia’s head to whip forward, giving Freesia a sprain of the cervical spine – a neck injury known as a “cervical sprain.”

As Carla and Freesia would later find out, the brakes in Type T cars were limited to 70% of their total stopping force because of a design feature that Marvel Motors called the “Supramax System.” The Supramax System offered “extra braking power” if the driver turned the Supramax System on – something that required going through various menus in the car’s electronic display system. In fact, sales associates at dealerships and the executives at Marvel Motors in charge of marketing and advertising didn’t consider the Supramax System to be much of a selling point. So when the car was debuted, the Supramax System wasn’t touted by salespersons or in advertising. Indeed, no one mentioned it to Carla when she was buying the Type T. And although the Supramax System was explained on page 107 of the Type T owner’s manual – and that explanation included instructions on how to turn the Supramax System on – Carla hadn’t read the owner’s manual. In fact, Carla had never heard of the Supramax System before her mechanic explained its existence and function after the accident.

At any rate, the shame of it was that if the brakes had been at 100% of stopping capacity or if Carla hadn’t had her reaction time slowed by the quantity of alcohol she had drunk, then Carla’s car wouldn’t have gone over the edge of the viaduct into the channel. That is to say, it took both the lack of 100% braking capacity and Carla’s alcohol-slowed reaction time to put the Type T teetering on the precipice so that it ended up plunging front-first into the concrete.

Meanwhile, back at Orin Ohashi’s farm, Wade was dancing to the music with wild abandon. Blowing the minds of his classmates, Wade had moved out from the main crowd and had begun using the whole of the barn for his freeform dancing – using moves like running leaps, arching his back while throwing jazz hands in the air, and breathtaking athletic maneuvers that used suspended steel piping as a gymnastics apparatus. Clearly, Wade was cutting loose in a big way.

At one point in his ebullient travels around the barn, Wade stepped on a pressure-activated switch hidden in the barn’s floor. He didn’t even notice it, but it caused electrical current to begin flowing through uninsulated (i.e., bare) wires installed along the base of a wall. Those wires had been newly buried by dry hay scattered around in the course of the party.

As it turns out, the pressure switch and wiring had been installed by Orin as part of an experiment to see what he might do to improve the barn so that it would work as a venue for weddings and events. (He had some vague ideas about building a dance floor with lights that reacted to people’s steps.) Unfortunately, when the electrical current began flowing, the bare wires ignited the dry hay, starting a fire.

In Austria, where it was the middle of the night, Orin Ohashi was fast asleep in his rented chalet under the towering Tyrolean mountains. He had no idea – and no reason to suspect – that anyone was on his farm, much less that his barn was burning down because of a fire ignited by his wiring project.

Abbreviations

Here are some suggested abbreviations for your answer:

CC
Carla Campbell
FF
Freesia Freeman
MM
Marvel Motors
NN
Nelly Nealson
OO
Orin Ohashi
RR
Rushil Ravindra
SS
Supramax System
TT
Type T
VV
Vicki Vinsler
WW
Wade Wainwright

Questions

Provide analysis for the following. For all questions: Omit analysis and discussion of vicarious liability, including for reason of respondeat superior or acting in concert. Omit all discussion of affirmative defenses based on the plaintiff’s negligence (contributory negligence or comparative negligence) or assumption of the risk. Omit all discussion of remedies except as indicated. Heed the call of each question and don’t provide discussion of parties or causes of action not within the question’s scope.

  1. Discuss prospects for liability of Wade Wainwright to Rushil Ravindra for negligence and the intentional tort of battery.
  2. Discuss prospects for liability of Wade Wainwright to Freesia Freeman for negligence; please include in your discussion whether she could recover from Wade for her hip fracture, her cervical sprain, neither, or both.
  3. Discuss prospects for liability of Carla Campbell to Freesia Freeman for negligence; please include in your discussion whether Freesia could recover from Carla for her hip fracture, her cervical sprain, neither, or both. Please do not repeat analysis from the preceding question.
  4. Discuss prospects for liability of Marvel Motors to Freesia Freeman for strict products liability; please include in your discussion whether it makes a difference that the Type T wouldn’t have been where it was on the edge so as to plunge into the concrete channel if it hadn’t been for both Carla’s intoxication as well as for the brakes not being at 100% stopping capacity.
  5. Discuss prospects for liability of Wade Wainwright to Orin Ohashi; include in your discussion what damages Orin could receive for any given cause of action.

Important: Limit your discussion to the questions posed. Also: Please do not repeat the exact same analysis when discussing a different party or answering a different question. Instead, I strongly encourage you to incorporate previously stated analysis by reference. If analysis of an issue is similar to but not exactly the same as what you have written previously, then I suggest you refer to your prior analysis and go on to discuss any differences. Note that the questions are not separately weighted; instead, they will be lumped together for assessment. So divide your time among the questions according to what requires the most discussion and analysis. Plan ahead to put information where it belongs. And correspondingly: Do not expect that each question calls for an equal share of your time or words.

Note 1: This essay exam question was used for the Fall 2021 Torts course.