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Torts II 1998 Answer Key

Question 2

___  5 BB v. PP prof. malpractice (will writing: RAP, no savings clause) DBCD

___  5 is P a professional (educ, degree, license, certif, JD & bar)

___  5 std of care (custom std. practice attny same or sim. or nat’l; specialist in estates std. v. gen. licensure); needs expert testimony re estate practice Walski

___  5 no attorney-client relationship – Testator was client

___10 breach? (2 yrs, no estate cases, followed forms of credible source, noted law prof v. RAP & savings clauses 1st year; reas range judgment; simple legal research to check)

___  5 causation (but for negl., will wd  have followed T’s intent); damages (no $ under will; house payment a pre-existing difficulty)

___ 10 negl. w/o A-C rel.: duty to warn of inexperience (Tarasoff analogy, informed consent analogy, Arato, Truman; 3rd party liability; no reliance, Kircher)

___ 10 duty to BB in K from PP’s promise to TT ( third party ben. of K no enf. rts. Moch; BB no consideration Thorne, no reliance; pure econ. K, no physical risks SW Bell v. Delanney); lack of privity bars this C/A


___ 5 PP v. AA malpractice (but no A-C relationship)

___ 5 BB v. AA malp./negl.:  no reliance (didn’t read or use book), but for. victim Molien

___ 5 is a writer a professional? or is profession “law prof”? std of care probably national  Vergara or reas. author of treatise

___ 5 PP v. AA negl. authorship (faulty forms, responsible for RAs; reliance Florence)

___ 5 breach? (was it faulty nationally or only in Oz? is using RAs bad practice?); argues nonfeasance (omission), but tied to aff act of writing

___ 5 PP contributory negl. (failure to research specific state law, reliance on forms)

___ 5 first amendment defense Olivia v. NBC (needs to rise to level of incitement) v. prescription for practice of law (“forms” imply fill in the blank)


___ 5 BB/PP v. LP vicarious liab. (within scope of emp. as author, serves LP’s purposes)

___ 5 apparent/ostensible agency (relied on holding out author of “learned treatises”; purchasing LP book, instead of AA Jackson v. Power)

___ 5 AA an IC (contract for a single book; pub. business v. writing; no control over use

of students; extent of editorial control – grammar or content?) Leaf River

___ 5 BB/PP v. LP negl hiring of intellectually irresponsible author (but no facts; prob. ltd duty to investigate given AA’s credentials in specific area)

___ 5 BB/PP v. LP malpractice

___ 5 BB/PP v. LP negl. editing (failure to check content) duty of reas. pub.

___ 5 duty to check law bk publishes nat’l legal treatises = reliance foreseeable Florence v. relied on AA and no reason to expect content problems from expert; LP argues nonfeasance v. edit = aff act Farwell; must pub. investigate accuracy?  negl. std. wd require pubs to prune all content

___ 5 LP v. AA indemnity (publishing contract or negligence)


___ 5 AA/LP v. PP slander (statement to BB)

___ 10 is AA private or public figure? prob ltd purpose (nat’l expert in estates area, invites pub. scrutiny, vol. publication, access media?) or private; std. negl. or  prob. reckless New York Times; LP nat’l publisher = ltd public; statements issues for which AA/LP are ltd pub. figures

___ 5 is statement (“if you can’t rely on an expert, who can you rely on”) defamatory?

___ 5 colloquium problematic (did BB know to whom PP was referring? will have to show “expert” meant AA) Bindrim

___ 5 need to show actual damages? Dun & Bradstreet; Gertz prof. embarrassment

___ 5 truth of statement


___ 5 AA/LP v. BB libel (publishing newsletter)

___ 5 “incompetence” will damage reputation; form in book is inaccurate = truth

___ 5 opinion or name-calling defense Moldea but “incompetence” + “garbage” re prof. conduct look like factual  assertions

___ 5 newsletter only distributed to family & friends, no actual damages Gertz v. bus. or prof. reputation

___ 5 LP must prove colloquium (“his publishing house” can be connected via AA); corps. can sue, but may not want the broadcast effect

___ 5 pub. interest privilege? fair comment?(“garbage” leans toward malice, but truthful since bad legal advice; sent only to circle of family and friends)


___ 5 AA/LP v. BB false light

___ 5 is dissemination in holiday newsletter putting before “public”?

___ 5 organization

___ 10 innovative arguments/thorough analysis




Question 3


NIED – Jerry Junior


___ 5 elements (negl., for. risk  injury through impact or threat of impact, causing SED, resulting in phys. consequences, many jurisdictions)

___ 5 only 25-30% risk is not “more likely than not” Potter v. Firestone, but was exposure intentional, since DOR assumed barrels would break down? (no, thought chemicals would dissipate)

___ 5 actual exposure, no need for “reas. medical probability of later developing” Marchica (swallowing carcinogenic H²O like a needle stick); are phys. symptoms req’d?

___ 5 allowing claims for “exposure” to info plus ED, Sacco & Camper, indicates trend

___ 5 no SED: Jerry “feels great,” only has worries

___ 5 must ED be medically diagnosable, med. significant?  Ford v. Aldi (not good rule for latent toxic harms); allow claims for medical monitoring


NIED – Sterling Senior


___ 5 bystander claim

___ 5 zone of danger (maj.): since he used bottled H²O, was he in fear for his own physical peril? only  physical symptoms result from concern for his son  Grube 

___ 5 physical symptoms only after DOR notification; no actual exposure K.A.C.

___ 5 Dillon (at scene, son, continually observing, but seeing what – possible effects? Hasselhorst)

___ 5 Thing (no awareness of injury at time of impact, only at notification, since no impact has occurred)




___ 10 statute requires DOR to “assure its activities pose no threat to public health” (does statute eliminate discretion? is DOR limited to operational implementation – failed to follow mandatory req. in statute not to harm? v. mandate too general, no specific rules for handling toxic wastes, thus statute still allows range of discretionary decisions) Loge

___ 5 decision to bury toxic wastes is policy-making or planning, thus discretionary, bk weighed risks and alternatives re public health hazard  Lockett v. nondiscretionary, like Harry Stoller (water pressure in sprinkler)

___ 5 decision not to test perk rates a discretionary resource allocation (1/10 budget) Lockett

___ 5 Ps may argue decision was chemical, Griffin, but is this a policy choice of what to do with toxins or a mistake about decomp. of chemicals in partic. geological regions?

___ 5 if DOR didn’t check perk rates, no conscious choice re toxicity Dube

___ 5 DOR defends: pub duty doctrine (§ 60.55 says “public health”) and nonfeasance; no special rel. betw DOR and Ps DeLong; took aff action to bury toxins, duty to class in contaminated area


___10 resolution of S.J. motion? (grant on immunity grounds); drafting opinion; which test of bystander liability selected?; policy arguments

___ 5 organization

___ 5 innovative arguments/thorough analysis






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