Torts.a.exams.fall.2012.Conk (1)

E38285474 *E38285474-1.-13-1* E38285474Institution Fordham University School of Law Course / Session 13932 TORTS8 ConkExam Mode Closed NAExtegrity Exam4 > 12.9.16.0 E38285474-1.-13-1 Section All of 13

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Institution Fordham University School of LawCourse 13932 TORTS8 Conk

Instructor NA

Exam Mode Closed

Exam ID E38285474

Count(s) Word(s) Char(s) Char(s) (WS)

Section 1 3230 15740 19071 Total 3230 15740 19071


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1.

The business and residential tenants of 10 South En d Ave. have

come to us

seeking remedy for various damages sustained during recent

hurricane that hit the tri-state area. The tower i n question is

located in Battery Park City in Manhattan and was f looded due to

the storm surge. Like nearly all of lower Manhatta n below Canal

street, the tower lost power for 96 hours during th e storm and

businesses were shut down for the entire week. Res idential

tenants were forced to relocate and business tenant s sustained

significant economic losses as a result of the loss of power and

subsequent inability to operate. The duration of t he power

outage and business shutdown was extended by the in ability of

workers to commute to work because the tunnels and bridges into

Manhattan were shut down for some time. The potent ial negligence

claims against the various entities involved are di scussed below,

in turn.

Claims Against Government Entities (MTA, PANY-NJ, State of NY,

the Bridge and Tunnel Authority.

The first legal question which must be researched i s the impact

Flood Control Act on claims against the governmenta l entities

here. That statute limits the categories of damage s available to

the putative plaintiffs here, the tenants. Assumin g that all

claims are not barred, our clients face additional legal hurdles

in prosecuting an action against the government ent ities.

At common law the doctrine of sovereign immunity ba rred suits

agains the state and its various agencies arising i n tort.

Kawanakoa v. Polybank (Holmes, J.). However, all states have

since consented to tort liability in one degree or another. New

York has consented to liability via its tort claims act. Like

many other states, while the government of NY still enjoys

immunity for descretionary decisions which implicat ed public


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policy concerns, it can be held liable for neglient acts that

involve obedience to instructions or laws (so-calle d "ministerial

decisions.") Lauer v. NYC . The critical issue for our client's

potential case against the government entities here will be how

the court characterizes the government's various fa ilures to act:

were these failures ministerial in nature or did th ey implicate

public policy.

We must soberly advise our clients that a suit agai nst the

various governmental entities here is likely to be rejected. The

failures by the Bridge and Tunnel Authority (no flo od gates were

ever built) and the MTA and PANY-NJ (failure to dev elop and

install state-of-the-art balloon to seal off tunnel s from flood

water) clearly fall within the category descretiona ry public

policy decision which still enjoy immunity. Moreov er, it is not

clear that some more minsterial-like decisions (whe n to reopen

the tunnels and restart the trains) were negligent anyhow. The

state and agencies in question were dealing with a massively

impactful storm and were likely concerned with insu ring the

safety of commuters in traveling through the recent ly flooded

tunnels--taking the extra to check everything was c ertainly not

negligent.

Claims againt Con Ed

The claims of negligence against Con Ed are more pl ausible, but

since we are in New York we face difficult binding precedent on

the duty element of the tenants negligence claim. In the seminal

case Strauss v. Belle Reality and Con Ed , the plaintiff brought

an action against Con Ed for injuries sustained as a result of

the recent city-wide black-out. The plaintiff in t hat case had

sustained injuries when he fell in a darkened commo n space in his

apartment building that did not have power because of Con Ed's

"gross negligence", as decribed by an earlier court .

Nonetheless, the NY Court of Appeals denied the pla intiff's claim


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and ruled that Con Ed owed no duty to Strauss with regard to the

lighting in the common space because the building o wner, not the

plaintiff was the contractual customer for that are a of the

building. The court declared in denying the plaint iff's claim,

that it was its "responsibility to define an orbit of duty that

places controllable limits on liability" so as to a void crushing

liability against Con Ed. Id. Our clients claims are at risk of

such a broad duty determination in New York.

Still, if we are able to escape a broad no-duty det ermination,

our clients may have a good claim against Con Ed fo r the economic

losses sustained as a result of the loss of power b ecause many if

not all of them were in privity of contract with Co n Ed, one of

the primary hurdles face by Strauss in that case. By agreeing to

supply the tenants power Con Ed incurred a duty to maintain and

modernize its electrical grid and power substations to protect

against the kind of foreseeable storm surges that o ccured during

the hurricane as predicted by NYSERDA. The ASEE D+ grade of the

Manhattan electrical grid is further proof of Con E d's failure in

this duty.

There are other tricky elements of the tenants clai ms against Con

Ed. Firstly, they are not likely to be the only pu tative

plaintiffs with this kind of action against the pow er company.

Such actions are likely to be consolidated before a judge and may

be subject to "creative" judicial solutions to this city-wide

issue like those recently reached in the World Trad e Center, BP

Oil Spill and Katrin Canal Breaches actions.

Claims against Lefrak and Cooper Square and the own ers of 10 S.

End Ave.

The tenants have good negligence claims against the management

companies and the premise owner. At common law a p erson or

entity in control of a premises owed a duty to busi ness invitees


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to exercise ordinary care. This duty was clearly b reached by the

management companies and property owners here when they failed to

waterproof basement electrical rooms and back-up ge nerators and

failed to put up a sand bag barrier to protect agai nst flooding

of the basement garage and subsequent damages to te nant cars.

Such flood was foreseeable as BPC is at or below se a level; thus

they had a duty to take measure to mitigate the dam ages that

could be caused by a flood. They should be held li able for the

damages to the cars and tenants should receive a re nt abatement

because they were not able to benefit from the gene rators due to

the premises owner and operator negligence.

2.

TO: Boss

From: Associate

McKown v. Simon Prop. d/b/a Northfield Mall

McKown was shot and badly injured in a mass shootin g at the

Northfield mall. He was employed by one of the sto res at the

mall when Maldonado, the shooter, entered with an a rsenal of guns

and ammo and began shooting. McKown was shot while attempting to

intervene. He was legally armed with a handgun and was shot when

he confronted Maldonado. Between 2000 and 2009, nu merous gun

crimes, including shootings occured in or around th e Northfield

Mall premises. McKown has filed a notice of intent to sue the

Town of Northfield and appears to intend to also br ing suit

against the property owners (Simon) who are insured by our client

Traveler's. The merits of the legal foundation of McKown's

varios claims are evaluated below.

Claim Against the Township

This claim is dead in the water. Even assuming the government

has consented to suit in tort, it remains immune fo r failures to


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act or provide services which implicate policy conc erns. The

decision to provide public protection to a private mall and

install a substation at the mall clearly fraught wi th policy

considerations. Cope v. Scott . The court will quicly dismiss

McKown's claim against the Township.

Claim Against the Property Owner

The dismissal of the case against the township will present a

problem for out clients because McKown is likely to come after

Simon next. Whether the MN courts follow old commo n law

distictions between the duty of care owed to invite es, licensees

and trepassers or follow the more modern 3d restate ment approach

declaring that a premise owner has a duty of ordina ry care to all

of lawful entrants onto the property, does not matt er because

McKown was clearly a business invitee--he was there for work and

the Mall benefits from having tenant-stores and the ir employees

at the mall. The key question in McKwon's action a gainst Simon

will be: did that duty of ordinary care include a d uty to protect

McKown against Maldonado's criminal acts?

Key to this dispute will be where the MN courts pla ce the concept

of foreseeability in negligence cases; but our clie nt will likely

prevail in any event. Two cases are illustrative. The first, AW

v. Lancaster says that "an actor ordinarily has a duty to

exercise reasonable care when the actor's conduct c reates a risk

of physical harm" and places the question of forsee ability in the

context of the breach determination. Thus, if a pa rticular harm

is not foreseeable it would not be a breach of the duty of

ordinary care to fail to protect against it. This means that it

is up to the jury to decide if Maldonado's criminal conduct and

McKown's injury were foreseeable such that Simon's failure to

prevent them was a breach of the duty of care owed to a business

invitee. We would likely still win this case even if it went to

the jury: a criminal mad man entering a mall with a n arsenal of

guns and a vigilante salesman with a pistol of his own


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confronting him is probably not sufficiently forese eable that a

jury would find against Simon.

The alternative approach and the approach we should advocate is

that stated in Posecai v. Wal-Mart . That case is very much on

point and states that "the forseeability of the cri me risk on the

defendant's properyt and the gravity of the risk de termine the

existence and the extent of the defendant's duty." Id. The

greater the foreseebility and the graver the harm t he more likely

there is to be a duty to guard against it. Id. Re lying on

Posecai we will argue that, notwithstanding the his tory of gun

crimes on the premises (the majority of which were in the parking

lot), the specific risk of a mass shooting was not foreseeable

and thus Simon had no duty to protect against it. Should the

court accept our reasoning we will get out on summa ry judgment

and avoid an expensive trial.

Claim against the Security Company

McKown's claim that the security company was neglig ent because it

failed to install metal detectors and monitor vide o cameras will

probably be rejected by the court.

The claim concerning metal detectors does even pass a basic Hand

formula analysis. Us v. Carroll Towing . The burden upon the

shopping mall and its customers of having to pass m etal dectors

to get into the mall would be massive and far outwe igh any risk

avoided. We all know what a pain it is to get thro ugh airport

and courthouse security--can you imagine if a mall had that?

Noone would ever shop there.

The negligent failure to monitor the video cameras is more

credible, but still weak. The security company and mall probably

could have installed these and had them monitored a t

comparatively little cost and would have incurred t he theft-

deterent benefit as well. However, it is not clear how this


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breach led to the harm here--there is just no proxi mate cause.

The injury sustained by McKown was just not within the scope of

risk/liability of failing to install and monitor se curity

cameras. Doe v. Manheimer.

3.

Choate v. Inner Harbor Belt Railway Co.

Billy Choate, a nearly 13 year old boy, lost his le ft leg below

the knee in a train accident on the IHB RR. Enteri ng a partially

fenced off area around the tracks through a long to rn open and

rolled back area of the fence (which people walk th rough to cross

the tracks) Billy approached a slow moving train an d in attempt

to show off to his friends, tried to grab a ladder on one of the

train cars, slipped and had his leg caught undernea th the train.

I have been asked to assess the prospects of a clai m against IHB.

The damages sustained by Billy are severe and he wi ll diabled for

the rest of his life and probably suffer economical ly as a

result. He also likely has a large claim for pain and suffering

as well as embarassment for having to live with an amputated limb

for the rest of his life.

The most difficult elements of Billy's claim agains t IHB will be

the duty element of the negligence claim and a like ly

contributory or comparative negligence defense on t he part of

IHB.

At common law a premise owner owed a trepasser only a duty to

refrain from inflicting willful and wanton injuries or setting a

trap. Rest. 2d 333. Here, Billy is clearly a trep asser because

he entered on the RR property without privilege. R est. 2d. 329.

This would seem to foreclose any claim he might hav e against the

RR. However, the 2d Restatemen recognizes a child trespasser


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exception. Under that exception a premise owner is liable for

injuries caused to the child trepasser if he mainta ins an

attractive nuisance, knows children are likely to t respass, there

is a condition on the premises that presents unreas onable risk of

death or serious harm to children and children woul d not realize

the danger. Id.

Billy probably satisfies most of the elements of th e child

trespasser exception. He is not yet 13, so probaby still

considered a child--he is definitely a "minor" in l egal parlence.

Also, the slow moving train is likely to qualify as an

"attractive nuisance." Everyone knows that small b oys love

trains and are fascinated by large industrial equip ment like

train engines, cranes, etc. and the easily accessib le train

ertain presented a unreasonable risk of eath or ser ious harm to

such a boy. Billy runs into trouble on the last el ement.

Reasonble people are likely to disagree as to wheth er a child

would realize the danger of a slow moving train. T he fact that

Billy's friends were yelling at him to stop will no t be good

testimony for us. Still, Billy will only be held t o the standard

of a reasonable 12 year old and people are likely t o disagree as

to whether such 12 year old should have realized th e danger of a

very slow moving train and his statement to the pol ice seems to

support the claim that he did not appreciate the da nger of the

train.

IBH's other defense will be that Billy was negligen t himself in

trying to jump onto a moving train. Billy tried tw ice,

unsuccessfully, to jump onto the train before injur ing himself on

the third try. He seemed determined to put himself at risk. We

run real danger here of having the jury assess grea t than 50% of

fault to Billy which would foreclose his collection of any

damages against IHB if Illinois follows the modifie d comparative

negligence principle the way NY and NJ do.

Depending on how Illinois handles "collateral sourc es", Billy's


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recovery for medical expensesmay be limited to thos e expenses not

covered by his father's health and welfare fund pay out. If

Illinois follows a NJ or NY like approach his damag es claim is

likely to be reduced by the amount covered by the c ollateral

sources to approximately $20,000.

As alluded to above, Billy probably has a large cla im for future

economic losses--he will not be able to perform man y physical

tasks which will limit the jobs available to him. He also

sustained siginficant non-pecuniary harms like pain and suffering

and loss of enjoyment of life.

While we will probably get past summary judgment du e to the

factual dispute involving duty and the child trespa sser

exception, we should be willing to take a deep sett lement

discount to account for Billy's negligence.

4.

McGarrigle v. Mercury

McGarrigle, an 18 year old man sustained serious he ad and neck

injuries in a boating accident when he pitched over board a few

hundred feet from the boat dock. When he fell from the boat, the

outboard motor did not stop running, the boat circl ed around and

the propeller from the engine struck him in the fac e and neck.

He died shortly thereafter.

I think we should take the McGarrigle case on conti ngent fee. He

has a strong products liability claim against the m anufacturer of

the outboard motor, Mercury.

A product liability claim can be brought against a manufacturer

of a product who is engaged in the business of sell ing such


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product if the product was sold in a defective cond ition which

rendered it not reasonably safe. Rest. 2d 402A; Cro nin v. JBE

Olson. Rest. 2d 402A recognizes three types of pro duct liability

claims: manufacturing defect, warning or instructio n defect and

design defect. McGarrigle's claim will be a design defect claim.

First, Mercury is cleary a manufacturer who is enga ged in selling

the prodcuct at issue here, the outboard motor.

Following the Prods. Liability Restatement for desi gn defects we

will allege that Mercury is liable because they omi tted an

alternative safer design, the omission of which cre ated the

"excessive preventable danger" of the deadly injury sustained by

McGarrigle. We will allege that the omission here was a design

which would have prevented operation of the outboar d motor

without a lanyard kill switch.

The plaintiff has the burden of proving a reasonabl e alternative

design. In assessing the proposed alternative cour ts engage in a

risk-utility analysis. Whether the court here adop ts the

California Barker factors or the NY, NJ Wade factor s, we are

likely to prevail. The gravity and likelihood of t he danger

proposed by the current design of the motor is mass ive. The

Coast Guard alone has recorded 50 to 100 death per year from

"death spiral propeller strikes" like the one at is sue in this

case.

The mechanical feasibility of the alternative desig n we will

propose (that one should not be able to start or op erate the

motor without the kill switch in place) is proven b y other

products manufacture by Mercury and its peers. In f act, Mercury's

peers aleady use the lanyard A design on all of the ir outboard

motors. Additionally there is no indication that t he alternative

design would add significantly to the cost of the p roduct or

negatively impact the product or consumer--it is al ready used on


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smaller outboard motors manufactured by Mercury wit hout issue.

We will need to be prepared for a couple of defense s from

Mercury. First, Mercury is likely to assert that M cGarrigle's

father was negligent in failing to read the manual which advised

him to use a lanyard kill switch. This is a weak d efense.

Courts have long recognized that a manufacturer can not warn its

way out of a defective design. We will also point to the fact

that the manual would have required McGarrigle to p urchase a

lanyard kill switch--it did not come with the motor .

Mercury is also likely to point to the "excessive s peed"

McGarrigle was driving the boat at and the fact tha t he was very

possibly intoxicated. This defense is also week. It would well

known to Mercury and contemplated as a foreseeable manner in

which their motor would be operated, that a boater may operate

his boat at a high rate of speed while intoxicated. Anyone who

has ever been on a crowded lake or inlet on the fou rth of July

knows this.

In sum, I think this is a slam dunk case and we sho uld take it.

The damages will be large as McGarrigle was young a nd had his

whole life ahead of him and the reasonable alternat ive safer

design is proven by Mercury's own products.


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E27435941 *E27435941-1.-14-1* E27435941Institution Fordham University School of Law Course / Session 13932 TORTS8 ConkExam Mode Closed NAExtegrity Exam4 > 12.9.16.0 E27435941-1.-14-1 Section All Page 1 of 14

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Instructor NA

Exam Mode Closed

Exam ID E27435941


Section 1 3862 19213 23061 Total 3862 19213 23061


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Question 1.

Governmental Defendants

At common law, governmental actors have sovereign i mmunity

from civil suits. If New York has a statute allowin g citizens to

sue the government, it will most likely resemble th e Federal Tort

Claims Act, giving the government qualified immunit y. Under this

kind of statute, the sole defendant would be the St ate of New

York, the City of New York, or the United States (f or interstate

actors such as the Port Authority). Under qualified immunity,

government actors' conduct is exempted from suit if it falls

within the "discretionary function exemption." Firs t, to

determine if the conduct was a "discretionary funct ion" we can

use the two prong test outlined in Robinson v. USA : (1) Is there

an element of judgment or choice? / Is there a

prescribed/statutory course of action?; if yes, the n (2) was the

decision susceptible to policy analysis? Thus, our clients would

only be able to recover for negligent "ministerial" conduct,

where there is a prescribed course of action that w as not

followed or completed adequately. Second, New York may have a

statute similar to the federal Flood Control Act, w hich makes the

government immune from liability for any undertakin g to control

floods and any resulting damage. Under the Flood Co ntrol Act,

damage that was caused by "flood waters" as a resul t of

negligently maintained or designed flood control de vices would be

exempt from lawsuits.

Our clients have identified several points of negli gence on

the part of governmental actors: (1) the state, Tri boro Bridge

Authority (TBA), or the Port Authority (PA)'s failu re to

construct flood gates at the entrance to the East R iver or the

Narrow/Verrazzano Bridge; (2) the state, TBA, PA's failure to

seal tunnels prior to the storm; and (3) the MTA's failure to

protect subway tunnels from street-level entrance a nd storm grate

flooding. If New York has a Flood Control Act, our clients will


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most likely not have a claim for their damage again st

governmental actors, since it is clear that flood c ontrol devices

(or the lack thereof) were the cause of the injurie s. If there is

no such statute, we can argue that the NYSERDA's re port

constitutes a finding of substantial risk of not pr operly taking

these precautions to prevent damage from occurring. In this way,

the report constitutes a "prescribed course of acti on" under a

qualified immunity statute, and the government's fa ilure to

follow this course of action would be a negligent m inisterial

conduct.

More likely, however, the government will argue tha t the

NYSERDA's report did not prescribe a course of acti on, but was a

mere recommendation by experts. The decisions not t o construct

flood gates, not to seal tunnels prior to the storm , and not to

protect storm grates and street-level entrances wou ld all fall

under the discretionary function exemption. The gov ernment will

probably argue successfully that these decisions we re susceptible

to the policy analysis concerning the allocation of limited state

and city resources. Similarly, any argument that ou r clients lost

profits due to the shutdown of the public transit s ystem will be

unsuccessful. Similar to the BP Gulf Coast framewor k where

private actors could not recover for lost profits b ecause of the

Coast Guard's shutdown of nearby waterways, our cli ents will

probably not be able to recover for harm caused by the shutdown

of public transit. Thus, our clients claims against governmental

actors will probably not survive motions for summar y judgment.

Private Defendants

A). Con-Ed, Inc.

Con-Ed's failure to construct flood walls to protec t their

power substations and the failure to construct floo d walls around

major building electrical systems caused serious ph ysical and

economic harm to our clients. As our clients are li kely in direct


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contract with Con-Ed to provide them with electrici ty, Con-Ed has

a duty to take reasonable care to prevent harm stem ming from the

foreseeable risk of flooding. We will argue that th is risk was

certainly foreseeable, especially given the NYSERDA 's report

specifically outlining how a 100-year storm would a ffect the

city's power grid. We will use Cardozo's framework from Palsgraf

v. LIRR for duty here, where an actor has a duty to take

reasonable care to prevent harm from risks "reasona bly to be

perceived," within "the range of reasonable apprehe nsion." Here,

we will argue that Con-Ed should have reasonably ap prehended the

risks of not installing sufficient flood walls arou nd power

substations or 10 South End Ave., and that the cust omers in 10

South End Ave. would be likely victims of these ris ks. Thus,

their failure to take these precautions will consti tute a breach

of their duty.

Con-Ed will likely argue that to allow customers to sue a

utility provider would create "crushing liability," which would

go against public policy and unfairly burden the ut ility company.

If our individual clients were not in direct contra ct with Con-Ed

and it was the building instead that was party to t he contract,

the court may be reluctant to extend liability to n oncustomers as

in Moch v. Rensselaer or Strauss v. Belle Realty Co. Even where

plaintiffs can prove privity of contract with the u tility

provider, courts are reluctant to assign liability for injuries

from such a great disaster to a utility company, re gardless of

their negligence.

We will respond to the "crushing liability" argumen t by

showing that plaintiffs able to recover (including our clients)

are members of a limited group (commercial and priv ate residents

below Canal st.), thus limiting Con-Ed's liability to a group of

foreseeable victims.

B). Lefrak (Building owner) & Cooper Square Realty (Property

manager)


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We can identify the following negligent acts as sub stantial

factors in bringing about our clients' injuries: (1 ) failure to

construct waterproof basement electrical rooms; (2) failure to

have back-up generators; and (3) failure to place s andbags around

the underground garage and stairways. At common law , Lefrak may

be able to be excused from the lawsuit if they were not in

control of the premises at the time of the accident s, as they are

not vicariously liable for the actions of an indepe ndent

contractor (Cooper Square Realty). Even if Lefrak a ssumed no

control over the premises, New York law is reluctan t to excuse

property owners from liability, as evidenced by the New York

Labor Law §§240,241 where land owners are strictly liable for

failure to provide adequate safety devices for work ers on

elevated work sites.

Our clients will be able to recover both for proper ty damage

they sustained and for economic losses caused by th e defendants'

negligence. We will argue that because the business es sustained

physical damage, they will be able to recover for p ecuniary

losses, as in 532 Madison Gourmet Foods v. Finlandi a Center . For

our clients whose property did not sustain physical damage, we

will argue that their pure pecuniary harm was a "pa rticularly

foreseeable" consequence of the property manager's and owner's

failure to adequately prepare for a storm like this , taking the

New Jersey approach in People Express Airlines .

Question 2.

1). Mall Owners & Operators Duty to Customers - McKown alleges

that Simon Property and IPC International both owe a duty to mall

customers to protect them from third party criminal acts. This

duty can be analyzed in two ways. First, we can tak e the 3d

Restatement approach to recognizing the general dut y of land


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possessors to take reasonable care to entrants to p revent harm to

them. Generally, an actor does not have a duty to p rotect others

from the harmful conduct of a third party. Such a d uty may arise,

however, from the relationship between the plaintif f and the

defendant, as in A.W. v. Lancaster County School Di strict 0001

where the school owed a duty to protect its childre n. Here,

McKown will argue that as an invitee (at common law ), he was owed

a duty by Simon and by IPC to take reasonable preca utions to

prevent harm to him from the foreseeable risk of vi olent third

party conduct. As in A.W. v. Lancaster , the question of the

foreseeability of the particular injury is one for the jury

rather than for the judge. A judge using this appro ach will

likely acknowledge the general duty that Simon and IPC owed to

McKown as an entrant to the mall. To prove that thi s duty was

breached, McKown will point to the five past incide nts of gun

violence on the property to show that the risk of g un violence

perpetrated by third parties was certainly a forese eable risk.

Then, McKown will point to IPC's failure to install metal

detectors and video cameras as falling below the st andard of

reasonable care in preventing these particularly fo reseeable

risks. If the court takes this approach, it is unli kely that we

will be able to argue that our clients did not owe a duty of

reasonable care to McKown. Instead, we will argue t hat this duty

was not breached, since the particular injury was n ot a

foreseeable risk that could have been prevented. We will argue

that 4 out of 5 of the past incidents of gun violen ce occurred in

the parking lot, and only 1 out of 5 of the inciden ts resulted in

a physical injury. Thus, we will argue that our cli ents' failure

to provide metal detectors and video surveillance w as justified

because relatively minor gun violence was foreseeab le only in the

parking lot.

Second, the court may take an approach closer to th at in

Posecai v. Wal-Mart , where the court balanced several factors in

determining whether a land possessor has a duty to protect

entrants (customers) from criminal acts of third pa rties. There,


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the court recognized a business's duty to implement reasonable

measures to protect their patrons from criminal act s only when

those acts were foreseeable. McKown will argue that 5 similar

instances of gun violence in the past 9 years are e vidence of the

foreseeability of this kind of 3rd party violence a nd should give

rise to Simon and IPC's duty to use reasonable care to protect

customers. Here, we can separate the 5 instances an d show that 4

of them were committed in the mall's parking lot. T hus, while gun

violence may have been foreseeable in the parking l ot, a shooting

spree inside the mall was not a foreseeable risk based on prior

similar incidents. We can also argue that the burde n imposing a

duty of reasonable care would be too costly for Sim on and IPC.

Metal detectors at the doors of the mall would make the mall much

less attractive for customers and may significantly reduce

customer traffic by intimidating potential customer s from

entering.

Under both of these approaches, we can also argue t hat our

clients' failure to provide metal detectors and vid eo

surveillance was not a proximate cause of the shoot ing. We can

argue that these omissions of safety precautions wo uld not have

prevented a shooting of this kind. Maldonado's shoo ting was most

likely premeditated and he likely took into account the security

measures the mall had put into place. Thus, even if IPC had

installed video cameras and metal detectors, Maldon ado would have

found a way to circumvent these measures and carry out his

violent act anyway.

2). Town of Northfield's Liability for Inadequate P olice Presence

- Here we will likely be able to dismiss McKown's c laims on

summary judgment. At common law, the sovereign (in this case the

town) is immune from private civil suits. Even if t he town has a

statute outlining qualified immunity, failure to pr ovide police

protection is usually immune from liability. This m ay be

approached in two ways. First, the police do not ow e a duty to

protect directly to a private citizen (McKown). Rat her they owe a


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general duty to the public. Absent the kind of spec ial

relationship defined by Cuffy v. City of New York (which is

absent here because there was no direct contact bet ween McKown

and the municipalitie's agents), McKown will not be able to show

that the police owed him a duty of care beyond that owed to the

general public.

Second, even if McKown could show a duty owed direc tly to

him, the town's allocation of limited police resour ces would

certainly fall under a discretionary function exemp tion. As in

Riss v. City of New York , courts are reluctant to determine how a

municipality's limited resources be allocated. The decision not

to build a substation at the mall and the lack of a police

presence there is definitely susceptible to policy considerations

of the allocation of limited resources, and thus wo uld be immune

under a discretionary function exemption.

Question 3.

IHB RR's duty to prevent children from accessing tr ains or

crossing tracks

Choate will be able to bring a negligence claim aga inst IHB

RR on the basis of the railroad's duty to protect f rom

foreseeable harms resulting from their conduct. Und er the 3d

Restatement, an actor has a duty to exercise reason able care when

that actor's conduct poses a foreseeable risk of ph ysical harm.

Here, the operation of a railroad line has a well e stablished a

foreseeable risk of injury to those that come into contact with a

moving train. Thus, it is generally within the stan dard of

reasonable care for a railroad operator to properly fence in

tracks in areas of high traffic to prevent children from crossing

or getting near the tracks. Here we will point to t he fact that


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on the north side of the parking lot it was common practice for

pedestrians to step through a torn and rolled back portion of

fencing to access a convenience store across the tr acks. This

fact is evidence as to the negligent maintenance of the fencing

around the tracks. This fact is also sufficient to show that IHB

RR had constructive notice of this risk and failed to correct it

before the injury occurred. As in Negri v. Stop & S hop , evidence

that the hole in the fence had existed for a substa ntial period

of time was sufficient to establish the defendant's constructive

notice of the risk posed by the hole in the fence.

Because the hole in the fencing was typically used by the

public to cross the tracks (rather than walk a dist ance to the

official crossings), the risk that children would a lso use this

makeshift crossing and be able to access the train tracks is

certainly foreseeable. It will be relatively straig htforward for

Choate to show that the failure to prevent this ext remely

foreseeable harm from occuring was a breach of the railroad's

duty to the children as foreseeable victims of harm .

IHB RR will likely use Choate's assumption of the r isk as a

defense to this negligence claim. They will argue t hat the danger

of moving trains is common knowledge, and that Choa te's decision

to try to jump aboard constituted an assumption of the associated

risks enough that IHB RR should not be held liable for his

injuries. The defense may use the logic of GM v. Sa nchez in

pointing to Choate's duty to take reasonable precau tions to

prevent harm from an open and obvious danger. By at tempting to

jump onto a moving train, Choate breached this duty and thus

cannot recover from IHB RR. Here, we will use Choat e's statement

to the policeman as evidence that Choate was not aw are of the

dangers associated with this stunt, and thus had no t assumed the

risk. We can alternatively argue in line with the d issent in GM

v. Sanchez , where the un-fenced train tracks posed an

unreasonably dangerous risk to children despite the open and

obvious risk present.


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IHB RR's duty to adequately warn pedestrians of the danger of

trains

Here IHB RR's argument of assumption of risk has mo re

traction. Generally, an actor is not under a duty t o warn of

apparent and obvious dangers associated with his co nduct. The

danger of a moving train is well established, and e ven a 12 year

old should know of the dangers associated with comi ng into

contact with a fast-moving train.

IHB RR may also argue that their failure to adequat ely warn

did not cause Choate's injury -- that even had they provided

adequate warnings of the train's danger, Choate wou ld have

attempted to jump on the train anyway. Here the def ense will

bring into evidence the fact that Choate was trying to impress

his female friends with the stunt and so would have attempted it

regardless of any warning signs posted on the fence .

We are not likely to prevail on this theory.

Remedies

If we prevail on the negligence claims, we will be able to

seek compensation for the remaining balance of Choa te's medical

bill ($20,000) as past pecuniary losses. We will al so be able to

recover for future pecuniary losses, taking into ac count that

Choate's future earning potential will be substanti ally reduced

by his amputation. Choate will also be able to reco ver for harm &

suffering (non-pecuniary losses), including the los s of the

ability to enjoy sports and physical activities req uiring two

healthy legs.

If the jurisdiction has a collateral source rule, C hoate may

also be able to recover for the $80,000 in medical bills paid for

by his father's union health and welfare fund. More likely,

though, a statute will provide that either the heal th and welfare

fund can put a lien on this recovery to get paid ba ck, or Choate

will not be able to recover at all for costs paid f or by the

health and welfare fund.


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Question 4.

Under the 3d Restatement, a plaintiff can proceed o n 3 types of

product defect claims: a manufacturing defect, a de sign defect,

or inadequate warnings or instructions. Here, we ca n bring assert

both a design defect claim and an inadequate warnin g claim. A

manufacturing defect is not present, since there is no evidence

that the engine failed to meet the manufacturer's s pecifications.

Design Defect

Under the 3d Restatement, a product's design is def ective

when the foreseeable risks of harm posed by the pro duct could

have been reduced or avoided by adoption of a "reas onable

alternative design" (RAD) by the manufacturer, and that the

omission of this RAD rendered the product unreasona bly unsafe.

The "consumer expectations" approach under the 2d R estatement

§402A does not fit the facts of the case, since the alleged

defect (lack of an effective kill switch) in the pr oduct in

question (an outboard motor) is too complex for a c onsumer to

have a clear expectation either way. As the court i n Barker v.

Lull Engineering holds, as a product gets more and more complex,

juries should apply a risk-utility test rather than a consumer

expectations test.

Depending on the jurisdiction, we will proceed on e ither a

RAD claim or on a risk-utility analysis claim. Unde r both of

these theories, we will show that Mercury Marine's failure to

adopt the wireless technology of the MariTech Virtu al Lifeline

kill switch rendered the outboard motor sold to McG arrigle

unreasonably unsafe. Under a risk-utility analysis the court will

likely instruct the jury to consider factors simila r to the

California Jury Instructions to determine whether t he product

poses unreasonable danger: (1) the gravity of dange r posed by the


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motor that can operate without the lanyard kill swi tch in place;

(2) the likelihood of injury to a boat operator as a result; (3)

the mechanical feasability of adopting the wireless kill switch;

(4) the financial cost of a motor with a wireless k ill switch;

and (5) any adverse consequences of adopting the wi reless kill

switch. A RAD claim will look at similar factors, b ut the jury

question will be focused specifically on whether th e omission of

the wireless kill switch rendered the outboard moto r unreasonably

unsafe.

The existence of a lanyard kill switch in the boat is not

enough to relieve Mercury Marine of liability, beca use as the

Coast Guard recognizes, it is foreseeable that many boat users

will choose to operate the motor without the lanyar d kill switch.

As in Osorio v. One World Technologies , where it is foreseeable

that the ultimate user will operate the product aft er removing a

safety device the manufacturer can still be found l iable for

injuries resulting from a defective design. It is t he fact that

the product can be operated without the lanyard kil l switch

renders the product unreasonably unsafe.

Because of the relative mechanical ease with which a wireless

kill switch could be installed on outboard motors, the defense

will only likely be able to point to increased cost s as a reason

for not adopting the wireless kill switch. There, t he question

will go to a jury, but I would advise our firm to t ake the case

on a contingent fee basis because the harm of not h aving the

wireless kill switch is both grave and likely, and a relatively

small increase in cost would probably not sway the jury that it

was not feasible for Mercury Marine to adopt the wi reless kill

switch instead.

Failure to Warn Adequately

Under the Products Restatement §2( c), a product is defective

because of inadequate warnings when the foreseeable risks of harm


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posed by the product could have been reduced or avo ided by the

provision of reasonable warnings, and the omission of these

warnings rendered the product unreasonably unsafe. First we will

argue that there should have been a warning on the motor itself

as to the dangers of operating the motor without th e lanyard kill

switch. The existence of an owners' manual will not be enough to

relieve Mercury Marine from liability because it is foreseeable

that an experienced boat operator will not read the manual.

Further, it is foreseeable that the manual will not be stored on

the boat (because it would get wet and deteriorate) , so an

incidental user of the boat would not be reached by warnings

contained in the manual.

As in the design defect claim, we will argue that i t was

established and foreseeable that many users would c hoose to

operate the engine without the lanyard kill switch, so it was

unreasonable that Mercury Marine failed to warn of the risks

associated with this common practice.

As in Hood v. Ryobi , a manufacturer need not warn of all the

consequences of every possible action by a user of the product.

Here, though, the foreseeability of use without the lanyard kill

switch and the severity and high likelihood of an i njury

resulting from such use will most likely convince a jury that the

failure to warn of such a danger rendered the motor unreasonably

unsafe. We do not face a potential problem as there was in Hood

that too many warnings could "pollute" the instruct ions and make

them less effective. There were no warnings on the engine of the

dangers of operating the motor without the lanyard kill switch

and no warnings to read the manual before operation .

We can use the heeding principle to establish that the

inadequate warnings provided on the motor were a pr oximate cause

of McGarrigle's death: had McGarrigle been adequate ly warned of

the dangers of operating the motor without the lany ard kill

switch, he would not have operated it without the l anyard kill

switch, and thus would not have been injured. It is unlikely that

the defense would be able to rebut this presumption by showing


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that McGarrigle habitually ignored warniings. I would also advise our firm to assert an inadequat e

warnings claim on contingent fee, since there is a clearly foreseeable risk and a relatively low-cost warning could have reduced this risk.


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Instructor NA

Exam Mode Closed

Exam ID E90154186


Section 1 3000 14718 17671 Total 3000 14718 17671


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Question 1

The business and residential tenants of 10 South En d Avenue have

suffered unfortunate losses, including loss of thei r homes, their

cars, and valuable business days. The question pres ented here is

whether our prospective clients will be able to fil e suit against

the putative defendants listed below.

The tenants will probably be successful if we bring suit against

Cooper Square Realty and Lefrak. We can sue the own ers of 10

South End Avenue on the grounds that they were negl igent in their

construction of the buildings. Negligence is failur e to take

ordinary care and not doing, in this case, what a r easonable

landowner should have done. The four elements to pr ove negligence

is (1) duty to the tenants, (2) breach of that duty , (3)

causation of the harm suffered, and (4) actual inju ry to the

interests of our prospective clients. We will be ab le to prove

these elements.

1. Duty to tenants

The owners of 10 South End Avenue had a duty to the ir tenants to

provide a reasonably safe environment in which to l ive. They will

probably not contest that.

2. Breach of that duty

The owners of 10 South End Avenue did not meet the ordinary

standard of care that a reasonable landowner should have

practiced. Even in the face of the evidence from NY SERDA, which

has authoritatively predicted that 100-year storms will occur

more often, they took no steps to waterproof their basements'

electrical rooms, where the back-up generators are stored. A

reasonable landowner is not expected to guard again st every

single harm known to man. However, if the harm is r easonably

foreseeable, then it is the responsibility of the l andowner to

provide reasonable protection against such harm. Th ey did not


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even put sandbags around the building.

The owners may claim that more frequent 100-year st orms are not

predictable enough to constitute a reasonable fores eeability.

"Who," they may ask, "could ever predict a supersto rm like

Sandy?" However, they will probably not be able to use this as a

defense. As stated before, courts do not ask landow ners to

protect against every thinkable harm, merely ones t hat are

foreseeable. Superstorm Sandy and its devastating c onsequences

was a foreseeable event. Global warming is a real p henomenon,

throwing weather patterns into disarray. In fact, i t was probably

a factual cause of Sandy. One does not need to be a climate

change scientist to be worried about potential floo ding in Lower

Manhattan. In this case, a reasonable landowner wou ld run a

simple cost-benefit analysis, such as the one propo sed by Learned

Hand in Carroll Towing . It may initially cost the landowner to

install these waterproof basements, but in the end, these

installations would be protecting against the very real threat of

flooding caused by storms.

3. Causation of the harm suffered

Here, the owners of 10 South End Avenue have a soli d defense.

They could point to the negligence of governmental entities and

say that the negligence of those entities are a sup erseding

cause, overpowering the owners' slight carelessness . They could

also say that the floodwaters themselves were a sup erseding

cause; "how could anyone protect against a flood of that

magnitude?" they may ask.

However, the owners will probably not be successful in their

defense. To prove causation, we must prove that the landowners'

negligence was a but-for cause as well as a proxima te cause. They

easily meet the but-for counterfactual hypothetical : had it not

been for the negligence of these landowners in inst alling

waterproof basements, the tenants would not have su ffered harm.


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They also meet the proximate cause bar. When assess ing whether

someone's negligence is a proximate cause of an inj ury, we see

whether it was a substantial factor such that a rea sonable person

would regard it as a cause of injury. In other word s, liability

extends only to those who suffer harm of the genera l type of

foreseeability of which made the actor's conduct to rtious. We can

extend liability to the owners; it was generally fo reseeable that

their building would be subject to flooding, supers torm or not. A

jury will therefore probably find that the negligen ce of the

owners was so closely connected to the damages incu rred as to be

the proximate cause of the tenants' suffering.

4. Actual injury to the interests of prospective clients

The business and residential tenants suffered econo mic and

property losses, so this will be easy to show.

Our prospective clients, however, will probably not be successful

if we bring suit against any of the governmental en tities.

As in the Katrina Canal cases, the State of New Yor k could point

to those decisions and claim that their decision wa s a

discretionary function, an allocation of resources to whichever

uses it saw fit. They do not meet the Cuffy factors , which

analyze the special relationship that may give rise to duty, nor

could we prove New York's negligence in not buildin g flood-gates

or sealing tunnels. The courts would probably inter pret these

inactions as discretionary measures taken by the st ate, so we

would be wise in advising our clients not to bring suit against

any of the governmental entities.

The tenants will also probably not be successful if we bring suit

against Con-Ed, Inc. New York courts are hesitant t o rule in

favor of cases where a public utility company could be endlessly

liable for all the damages incurred that is somehow related to


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their actions or inactions, as in Moch v. Renssalae r .

Question 2

It is unfortunate that Brendan McKown has been shot and injured

on the premises of the Northfield Mall. However, a court will

probably find in favor of Simon Property, if not fo r the Town of

Northfield. The question presented here whether Nor thfield Mall

was negligent in its duty to proect its invitees, a nd the obvious

answer is no.

It is true that Northfield Mall has a duty to all l awful

visitors, whether they be licensees or invitees. Mo dern rules

have abolished that distinction. The mall has a dut y of due care

to keep the property in a reasonably safe condition so that

invitees will not be unnecessarily be exposed to da nger (R 2d.

§332).

However, McKown will unlikely be able to prove that the mall fell

below that standard of care because it simply was n ot foreseeable

that a gunman would come in and shoot at shoppers. We can urge

the jury to consider Posecai v. Walmart, Inc. in their decision,

in which the plaintiff was robbed in defendant's pa rking lot.

However, the court ruled in favor of the defendant; the threat

was not foreseeable or imminent enough to say that Walmart had

acted negligently by not hiring more security guard s. The same

facts apply here: though there have been five incid ents over the

past nine years, Northfield police have responded t o those

events. That police presence is enough for the mall . Having a

sub-station at the mall may actually help deter cri minals, but

that is for the town of Northfield to decide, not f or the mall to

ask for.

Also, these events do not necessitate having to ins tall metal

detectors at the doors and video cameras throughout to be


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monitored live. Having all these security measures might prompt

an ordinary shopper to think, "Well, I don't want t o go through

metal detectors at Northfield, and be monitored; ev en if

Northfield is 1.4 million square feet, I could driv e 10 more

minutes and go to another mall that doesn't have th ese hassles."

A mall is not like an airport; there are options as to which mall

to go to. As such, they want to make themselves as attractive as

possible. All this is to say that there were good r easons for not

installing these security measures. They did not ex clude metal

detectors and cameras out of reckless wanton for th e shoppers'

safety; Northfield probably has not instituted thes e measures for

the simple reason that it would annoy shoppers and probably drive

business away. Therefore, Northfield was not neglig ent in not

installing them.

Northfield Mall is a place where people go to shop, not to be

patted down like criminal suspects and monitored li ke inmates.

With the kind of freedom Northfield affords comes r isk, and

shoppers take that risk every time they step onto t he mall's

premises. To blame Northfield Mall for not taking e xtraneous

security measures is unreasonable, and a jury will probably agree

with us.

Question 3

Twelve-year-old Billy Choate has suffered horrific losses as a

result of his accident on the IHB railroad tracks. The issue at

hand is whether IHB RR was negligent in their effor ts to keep

children out of their premises. We will probably be successful

under the claim of negligence.

In this case, negligence is not doing something tha t a reasonable

common carrier would have done in similar circumsta nces. (Bethel

v. NYCTA ). It is the failure to meet the ordinary standard of

care. The elements of the negligence tort are analy zed below.


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1. Duty

IHB RR has a duty to these children. According to t he Third

Restatement, an actor ordinarily has a duty to exer cise

reasonable care when the actor's conduct creates a risk of

physical harm. Trains create great risks of physica l harm

wherever they run, so we will not have many problem s defining

IHB's duty to Billy Choate.

IHB RR may attempt to say that they owed no duty to these

children and move for summary judgment based on tha t defense.

They may say that they could not have foreseen chil dren playing

by the railroad tracks at a particular point. Howev er, the court

will probably reject this notion. They will probabl y not make a

duty determination based on specific foreseeability of harm to

one person, but rather base their decision on a cat egorical

foreseeability; the court will determine whether th e category of

negligent conduct at issue is sufficiently likely t o result in

the kind of harm experienced that liability may be imposed on the

negligent party. Here, the negligent conduct at iss ue, which we

will discuss below, was sufficiently likely to resu lt in the

harms inflicted upon Billy Choate.

2. Breach of duty

IHB RR breached its duty of care to Billy Choate, a s well as to

all his friends. It is fortunate that they did not get hurt, too.

There was no railroad crossing sign at that locatio n. A court

would not expect a railroad company to plaster ever y inch of

their tracks with railroad crossing signs, but it w ould expect

railroad crossing signs spaced within a reasonable distance. When

the closest signs are three-quarters of a mile and one-quarter of

a mile away, how are people supposed to know or be warned that

they are on railroad tracks for this mile-long stre tch? A

railroad crossing sign may also have helped Billy f ully realize

the dangers of his situation, considering he did no t see the "No


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Trespassing" sign on the west end of the fence.

The "No Trespassing" sign did not provide sufficien t warning to

the children. In the absence of railroad crossing s igns, it is

reasonable to expect that there would be more of th ese signs to

warn people of the presence of tracks. However, for this stretch

of tracks, there was only one posted, and Billy cou ld not see it.

Also, only segments of this mile-long corridor were fenced. The

ease at which the children were able to go onto the tracks is

disturbing. With the knowledge that children probab ly play on the

tracks, such as in the case of Adams v. Bullock , a reasonable

carrier should have made efforts to tighten up thei r measures to

keep these children out.

3. Causation

IHB's negligence was a but-for and proximate cause of Billy's

loss. Had Billy and his friends been adequately war ned, it is

more likely than not they would have steered away f rom the

railroad tracks. These children do not seem like th ey were on the

tracks to break any sort of rule. A sufficient warn ing would have

probably kept them off the tracks. As for proximate cause, it is

foreseeable that children would play on the tracks if a railroad

company puts them next to a parking lot, and decide es not to

secure that stretch with adequate chain link fences or put

sufficient warnings up. IHB's negligence to do so w as therefore a

proximate cause of the harm.

They may claim that these children assumed the risk , being of an

age where they knew the risks of being on railroad tracks. IHB

could also say that these children were trespassers and

therefore, they owed no other duty other than to ab stain from

wanton or intentional harm, which they did not enga ge in.

However, we can point to the attractive nuisance do ctrine: it was

foreseeable that children would play on the tracks. It was


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foreseeable that they could get into this poorly-gu arded area,

where a "No Trespassing" sign was nowhere near to b eing

sufficient enough to keep children out. Finally, it was

foreseeable that these children would get injured a s a result of

IHB's negligence. Therefore, their defense will pro bably not be

successful in the eyes of a jury.

4. Injury

Billy's foot was severed by the passing train.

As for remedies, the jury will not be told that Bil ly's father's

union health and welfare fund, which reimbursed 80% of the cost,

according to the collateral source rule. We may als o seek a lump

sum that covers future and current losses, such as sums for non-

economic damages (pain and suffering, disability, i mpairment) and

special damages (medical bills, future employment o pportunity

diminishment, etc.).

Question 4

The MacGarrigles have suffered the loss of their so n, who was

involved in a boating accident. The question presen ted here is

whether they will be able to bring suit on the basi s of product

liability against Mercury Marine, the manufacturer of the engine.

We will probably, however, not be successful in an action against

Mercury Marine.

Section 402A of the Second Restatement provides a b asis for the

liability of manufacturers. It says that one who se lls any

product in a defective condition unreasonably dange rous to the

user or consumer or to her property is subject to l iability for

physical harm thereby caused to the ultimate user o r consumer or

to her property. We need to prove that (1) the prod uct was

defective, (2) the defect was unreasonably dangerou s, and (3) the

dangers of this defect was a proximate cause of the harm.


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1. Product was defective

We could probably say the design was defective. All other

manufacturers of outboard engines use lanyard A, wh ich prevents

the operator from starting the engine without first inserting the

engine end of the lanyard into the emergency stop s witch on the

engine. It does not make sense that Mercury Marine installs this

feature on its lower horsepowered engines, but does not do it for

the higher horse-powered ones. On its 8-25 horsepow er outboard

engines, Mercury Marine uses a type B design, which allows the

operator to start the engine without having the lan yard stop

switch connected to the engine.

This is clearly defective; higher horse-powered eng ines are

capable of going faster and therefore doing more da mage. If

Mercury Marine installed type A lanyards for its lo wer horsepower

engines, it does not make sense that they would not install the

safer alternative to the higher horsepowered models . There was a

reasonable alternative design, and the omission of this design

rendered the product unreasonably dangerous. We cou ld also look

to custom and see that most manufacturers of engine s use lanyard

A. This is the industry standard, and in not follow ing the

industry standard and making it easier for its user s to turn on

the engine, Mercury Marine rendered their product u nsafe.

Therefore, this renders the engine defective.

2. Defect unreasonably dangerous

We can look at the Wade factors to see if this design was

unreasonably dangerous. Having a type A lanyard imp airs the

user's ability to avoid danger; having the type B l anyard

increases the likelihood that it will cause serious injury. There

is a substitute product which would meet the same n eed and not be

as unsafe: the type A lanyard. Our discovery has no t produced any


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evidence that a type A lanyard would be more expens ive, so

Mercury Marine does not have a claim that it would be too costly

to install this safer feature.

There are more factors, but these are sufficient to prove that

the defect of the engine's design was unreasonably dangerous.

3. Defect was a proximate cause of the harm

We will probably fail on this element, but it is us eful to

analyze the material defect of the engine and its r elation to the

cause of John's death. The defect was a proximate a nd but-for

cause of the harm. The but-for test is easy to fulf ill: had the

engine been equipped with a type A lanyard, John wo uld not have

suffered his injuries and would have probably swam safely to

shore. The defect was also a proximate cause of Joh n's death. It

was a substantial cause and one that is likely to h ave been

foreseeable by the manufacturers when they decided to equip the

9.9 horsepower motor with a type B lanyard.

However, the MacGarrigle's negligence was an interv ening cause of

John's death, so much so that they will not be able to win this

case. Neither the father nor the son read the owner 's manual, and

therefore did not buy a lanyard. Mr. MacGarrigle ad mits that had

a lanyard been used, the accident would not have ha ppened. The

court will probably look at this and dismiss the cl aim against

Mercury Motors. Even if the product was defective, the negligence

of the owners subsumed the negligence of the manufa cturers. The

court in Texas ruled in favor of the defendant when the son did

not read the owner's manual and crashed the car, ev en though the

gearshift was poorly labeled (GM v. Sanchez ). Similarly, no

matter how badly the engine was produced in this ca se, the court

will probably find that the negligence of the MacGa rrigles did

not give the engine a fair chance to work

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