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It is understood by the student whose Student Number is entered below that this examination is given and the student's response is made and submitted pursuant to the conditions of the Honor Code.


Student Exam No. ______________





Law #512C                                                                                      Professor Levit

Torts II                                                                                              Winter Semester, 1998


     (3 hours)   


Materials that may be used during examination: You may use your casebook, any supplementary materials handed out for class, and any outlines or notes you yourself have prepared, in whole or in part.  You may not use commercially prepared outlines or hornbooks. 




1.  Read each question carefully and pay close attention to the facts and to what the question is asking you to do.  Discuss all issues presented by a question. Remember to argue issues both ways.  Do not engage in a discussion of issues not raised.


2.  I have included all of the facts I think you will need to answer the questions.  If a necessary fact is missing, please identify it in your answer and explain how it affects your conclusion.


3.  Nothing is intentionally ambiguous.  If anything about a question appears to be ambiguous, decide what you think is meant, tell me what you think is meant, and answer the question accordingly.  No reasonable resolution of an ambiguity will be penalized.


4.  Please write legibly, because I can only give credit if I understand what you write.

I can also only give credit for answers that are written in the bluebook.


5. Think before you write.  Organize your answer.  You get extra points for clarity and succinctness.  You are penalized for an answer which is disorganized and confusing.


6. Unless otherwise specified, the applicable law is the law of this State, the State of Oz, which consists of all cases in your casebook and any cases discussed in class.


7. This exam consists of 11 pages.  TURN IN THIS EXAMINATION WITH YOUR BLUE BOOKS.  It is an Honor Code Violation to fail to turn in the examination itself. Good luck!


Multiple Choice



Question 2



Boris Beneficiary was a close friend of Terence Testator.  Testator decided that he would recognize his friend’s devotion to him by making him the beneficiary of a trust created by his will, with the residue of the trust to be distributed to Boris when the company that Testator built “ceases to use the Testator Towers building for business purposes.”  The will was drafted by Peter Practitioner, a local attorney in the State of Oz, where both Boris and Terence lived.  Peter is a sole practitioner, in his second year of practice.  In order to stay afloat as a sole practitioner, Peter has handled principally domestic, traffic, and minor criminal cases.  This is his first estates case. In preparing Terence’s will, Peter copied a form will that he found in a book called “Successful Estate Planning,” written by Arnold Author, a noted law professor and expert in the law of trusts and estates.  The treatise was published by Legal Publications, Inc., an organization that publishes learned treatises on subjects of nationwide legal interest.  The section containing the form will was entitled “How to leave property in trust with subsequent distribution of trust residue.”


Shortly after Terence died, Peter informed Boris that he was named in Terence’s will.  Boris asked Peter how soon he would get a distribution from the estate, since he was short on cash and was unable to make his house payments.  A month later Peter informed Boris of an awful piece of news -- the probate court had declared that the trust provisions of the will violated the Rule Against Perpetuities.  Because of this, and because there was no savings clause in the will, the entire will was void under the law of Oz.  Therefore, under the Oz state intestacy statute, all of Terence’s money went to his sister, whom Terence had especially disliked.  “I don’t understand it,” said Peter.  “I used a form drafted by an expert in the field.  If you can’t rely on an expert, who can you rely on?  You’d think that Legal Publications would’ve checked these thing out before they publish them in the treatises.”


Boris has discovered evidence showing that Arnold had employed law student research assistants to do most of the work on his book, and that Legal Publications’ editors had checked the book for style and grammar, but not for legal errors.  In his holiday newsletter to family and friends, Boris wrote: “Who knows how many innocent people may be injured in the future by Author’s incompetence?  I hope every beneficiary in the country sues the pants off him and his publishing house.  Maybe that way publishers will know better than to publish such garbage.”


DIRECTIONS: Assume that the court’s legal rulings about the trust provisions and the will are correct under the laws of Oz. Using the tort principles we discussed this semester, please evaluate (give both plaintiff’s and defendant’s arguments) for all possible torts and defenses for named parties or entities only. Please do not address the liability of any person or entity who has not been named. Also do not raise any causes of action by or against Testator or his estate.



Question 3



The State Department of Research (DOR) acquired 242 acres of rural land in the State of Oz.  The DOR used the site as a landfill for by‑products from the production of certain chemicals from nerve gas it was making.  Between 1984 and 1995, the DOR deposited a total of 100,000 55‑gallon steel drums containing ultrahazardous liquid chemical waste, including the known carcinogen (cancer-causing agent), methyl cyanide.  The DOR understood that these wastes were toxic, and assumed that ultimately the barrels would break down, but it thought the chemicals were something that break down before they can get into the water supply.  Some of the drums did break down and leaked their contents into the soil.


Methyl cyanide can be expected to break down in the ground water, and over time, become harmless.  The specific land on which the landfill is located, however, is a sandy aquifer and it percolated fast enough for some of the methyl cyanide to get into well water.  The DOR did not check the percolation rate, but assumed it was the same as surrounding clay areas that perk very slowly.   In making these assumptions, the DOR relied on regional geographical reports by the U.S. Geographical Survey, but did not test the specific location of its landfill because that geological testing would have cost a tenth of the DOR’s annual budget.


Groundwater surveys revealed that these chemicals contaminated the water table of the local aquifer.  The surveys identified one drinking water well, adjacent to the landfill site, as contaminated with high levels of methyl cyanide.  The user of this well, Jeremiah Sterling, and all wells within a 5 mile radius around the landfill site, was notified by the DOR and advised to stop using well water for any purpose.


Sterling himself, something of a purist, never drank water from the well or brushed his teeth with well water.  He used only bottled water for consumption and cooking.  His son, 42 year old Jerry Junior, claimed to have drunk between eight and ten glasses of the well water each day until he was notified to stop.  Jerry Junior never noticed a bad taste in the well water, nor has he suffered any physical symptoms.  However, after the DOR notification, Sterling Senior says that he (Sterling) has suffered from headaches, nervousness, stomach and chest pains, shortness of breath, fatigue, loss of appetite and weight, all due to Sterling’s fear that his son may develop cancer from drinking the well water.  Jerry keeps telling his dad that he (Jerry) feels great, but is worried about developing cancer.


Sterling Senior and Jerry Junior both have sued the DOR for negligent infliction of emotional distress, alleging  that the defendant negligently disposed of toxic chemical wastes. They have presented expert testimony that the carcinogens in the well created an increased risk  for susceptibility to cancer and other diseases of  twenty‑five to thirty  percent. The evidence is specific that the chemicals and the duration of the Jerry Junior’s exposure to them were capable of causing cancer in the future. Sterling Senior has offered testimony from his treating family physician and his clinical psychologist that his physical symptoms are due to his concerns about Jerry’s exposure to the carcinogens in the well water.  The DOR has filed a motion for summary judgment, claiming that (1) it is immune from suit, and (2) Sterling Senior’s and Jerry Junior’s negligent infliction claims should be dismissed as undeserving of recovery. 


DIRECTIONS: You are a law clerk for the judge deciding the class.  Draft an opinion for her signature resolving only the negligent infliction issues and the immunity issues.  You may assume that Oz does not have a well developed body of law regarding the negligent infliction of emotional distress.   Oz does have a statute in the enabling act for the agency, Oz Rev. Stat. § 60.55 that says, “The DOR will assure that its activities pose no threats to the public health.”  The statute has not been construed in any decisions, nor are there any state regulations interpreting the statute. Since you are drafting a judicial opinion, you may wish to consider any policy issues that should impact the decision.


THE END                                


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