esq wrote: Legallywoke wrote: InterAlia1961 wrote: ManoftheHour wrote: InterAlia1961 wrote:
ManoftheHour wrote:I could be wrong here, but to me that was totally a negligence question. Lots of proximate cause to discuss. The stuff about the alternative product was used to talk extensively about breach/duty/standard of care (B<LP shit). Custom and alt product are factors but not determinant. Idk like I said I could be wrong...
Edit: Aight I'm gonna stop reading this stuff. I left the exam feeling pretty good and now I'm starting to have doubts. Need to focus on the MBE tomorrow.
I discussed proximate cause at length. Is is foreseeable that a downed power line would ignite a piece of paper that would then be carried by the wind and burn someone's house down? Yes. I also argued SPL. It was obvious that was what the numbers were for. In order to prevail on a defective design claim, P must show there are no other economically feasible alternatives and the current design is favored by the risk/utility test. I can see where a brief discussion of ADA might have been beneficial, though.
I definitely agree that I should have addressed SL but then dismiss quickly in a small paragraph or two. The problem with a SPL claim is that it seems way too far of a stretch. In order for there to be a SPL claim, there needs to be a proper defendant (manufacturer, wholesaler, distributor, someone in the business of selling the product). Here, Defendant (the utilities company) is not a manufacturer, wholesaler, distributor, or even someone remotely in the business of selling the product. This is a pretty crucial element. What exactly was being injected into the stream of commerce? Nothing here is being sold or injected in the stream of commerce.
You would not sue a guy who used a product that injured someone under a strict liability claim. This dude had nothing to do with the design and did not inject it in the stream of commerce. This is basically the same thing. Alternative design here is irrelevant for the guy because he was not involved in the stream of commerce (didn't sell it, didn't design it, didn't distribute it). You could go after the company that produced it though. You could also sue the user under a negligence theory.
Furthermore, on the defective design claim, defendant (the utilities company) had nothing to do with the design. The numbers were used to show whether there was a breach of duty under the negligence claim. The utilities company had a duty to provide safe power lines to the residential community (RPP standard). Now whether that duty is breached or not is up for argument. The key question here is knowing that there is a safer wiring system existing and available, would a reasonable utilities company have used the new wiring system instead? This is ripe for a B>LP analysis. On one hand, there is this new safer alternative product that is out. The numbers from the research and studies shows that the new wiring system is definitely safer and would have probably prevented the fire. On the other hand, the new wires are expensive. Furthermore in D's favor, the facts indicate that most utility companies in the country still use the old ones. While "custom" isn't binding, it does show that the fact that most utility companies still use the old wiring system is favorable to D because it shows that perhaps D exercised a reasonable duty of care in implementing the old wiring system.
If I recall correctly, Plaintiff, the driver, sued both the Electric Co. and the Manufacturer of the pole. Wasn't there a third question about joint and several liability? Anyway, I'm through worrying or predicting. There's nothing to do but wait now.
I think the question had two parts, where Plaintiff (homeowner) sued (1) the driver who ran into the pole (under negligence), and (2) the utility co (under some strict liability analysis--either ultra hazardous activity, or SPL, or both).
I don't remember a 3rd part calling for joint and several liability (my memory is fuzzy and I could be wrong). However, i think Jt/several liability was a big party of the analysis anyway. I think the question asked for homeowner's causes of action against each defendant, each D's defenses to homeowner, and the likely outcome.
Usually there is a question about how the P can expect to recover. The CA Bar Exam asks us to assume pure comparative negligence, on a joint and several liability basis (i.e., the D can claim the full amount against either D, or jointly if they choose to, but if the P claims the full amount against one D separately it is the Ds problem to later seek contribution from the other tortfeasor--this policy is to ensure that the P is able fully recover and not worry about who was more or less liable).
Also, was this utility company selling some product (the pole) to the public for commercial use? And did this product then harm someone because of a defect? If not, how the hell does strict products liability apply?
Here's how I remember the questions (paraphrased):
1) What are P's reasonable claims against the driver and what are driver's reasonable defenses?
2) What are P's reasonable claims against the utility company and what are the utility company's reasonable defenses?
3) Assuming the jury/court finds in favor of P, how should the damages be allocated (it did not specify what type of comparative negligence was in effect and I don't remember the questions stating that the events happened in CA, but I could be wrong)?
My response to no. 1 discussed negligence, including a short discussion and dismissal of negligence per se because the statute did not intend to prevent the harm that occurred and P was not included in class of persons intended to be protected.
My response to no. 2 discussed and dismissed both SPL and ultra-hazardous activity because the utility company was not a merchant of the electrical system and did not place it into the commerce stream and the activity was not ultra-hazardous (not uncommon in the geographic area, social utility not outweighed by inherent danger, etc.). I ended up analyzing from an ordinary negligence perspective same as no. 1. For both 1 and 2, I said no proximate causation unless court adopted the "zone of danger" doctrine (I blacked out and did not remember which one was Andrews and which one was Cardozo).
My response to no. 3 assumed a pure comparative negligence jurisdiction and discussed joint tortfeasor/j&s liability with right to contribution. On hindsight, I probably should have discussed allocation assuming a partial comparative negligence jurisdiction as well.