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E58233665 *E58233665-2.-27-1* E58233665Institution Fordham University School of Law Course / Session 20138 TORTS12 -ConkExam Mode Closed NAExtegrity Exam4 > 13.4.29.0 E58233665-2.-27-1 Section All Page 1 of 27

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Institution Fordham University School of Law

Course 20138 TORTS12 -Conk

Instructor NA

Exam Mode Closed

Exam ID E58233665

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

Section 1 2075 10201 12252

Section 2 1863 9220 11062

Section 3 1081 4945 6017

Section 4 584 2647 3222

Total 5603 27013 32553


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Answer-to-Question-_1_

Summary of Facts

Ameila Reardon of Brookline Massachusetts underwent a hip

replacement and recieved a ASR Metallic Hip, which was made by

Depuy Orthopedics. The ASR Metallic Hip was designed with a metal

femoral ball that was in direct contact with the metal acetabular

cup. The theory in this design was that it would reduce wear and

allow the "total hip replacement system" to last longer than 15

years. In fact, the new design was substantial worse than the old

- in that it had a 5 year revison rate of 12-13% rather than the

typical 5%.

Ms. Reardon's hip replacement caused pain due to uneven and

excessive wear and had to be replaced in by November 2011. As a

result of the replacement surgury she missed 9 months of work.

Claims we will Assert on Behalf of Ms. Reardon

On behalf of Ms. Reardon we will bring breach of implied

warranty of merchantability claims against Depuy. We can assert

those claims on both a (1) a design defect theory and (2) a

failure to warn theory. These claims will be brought in

Massachusetts ("Mass.") state court, but Depuy will likely remove

to federal court, but the applicable law is Mass. law. I will

analyse each theory now in turn.

Massachusetts Product Liability Law


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The cause of action in Mass. for what in most jurisdiction

would be called a "product liability action" is a breach of

implied warranty action. Mass Gen Laws 2-314(2)(c). The implied

warranty is "intended to be as comprehensive as the strict

liability theory of other jurisdictions" See Osorio (citing

Back). Massacusetts law is "crugent in nearly all respects with

the Restatement (Second) of Torts 402A/

Design Defect Claim

Under Mass. implied warranty law, products must be designed

so that they are fit for the ordinary purposes for which such

goods are used. A product is reasonably fit for its purposes if

the design prevents the reasonably foreseeable risks attending

the product's use in the setting. In this case, the ASR Metallic

Hip must be reasonably safe to be used in individuals bodies.

To determine if a product meets the standard of "reasonably

safe," two approaches can be used (1) a consumer expectations

test or (2) a risk-utility analysis. Both are appropriate under

Mass. law, but a consumper expectation test is only employed when

it is within the provine of the the jury to understand the

defect. If expert testimony is needed, a risk-utility analysis is

favored. Overall, the majority of cases in Mass., are tried on a

risk-utility analysis. See e.g., Osorio.

Consumer Expectations Test


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This may be a case where Ms. Reardon could assert her claim

on a consumer expectations theory. Under the consumer

expectations test, a product is defective if it has failed to

perform as safely as an ordinary consumer would expect when used

in an intended and foreseeable way. See Barker; Restatement (2nd)

402A cmt. G.

Here the jury could likely determine that the ASR Metallic

Hip replacement was not designed in a way that the ordinary

consumer would expect. It would be astonishing, to the ordinary

consumer that the ASR Metallic hip, which was designed after

research by Depuy to increase its longivity, we exist in a

condition that result in an 8% increase in the chance that it

would fail. Despite this, we must anticipate that Depuy may

persuade the court to analyse this problem under a risk utility

analysis (many defendant's lawyers have seen the risk-utility

test as a victory for the defense bar, although some Plaintiff's

lawyers prefer a risk-utility analysis also). I think that Ms.

Reardon stands a good chance at recovery if the court employs a

consumer expectations test.

Risk-Utility Analysis with the Barker FactorsU

Ms. Reardon still has a strong chance at recovery if the

court employs a risk-utility analysis. Mass. has adopted the

factors used in Barker v. Lull Engineering, which were model on

Professor Wade's famous "Wade Factors" The factors are (1) the

gravity of the danger posed by the challenged design, (2) the


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likelihood that such danger would occur, (3) the mechanical

feasibilty of a safter alternative design, (4) the financial cost

of an improved design, and (5) the adverse consequences to the

product and to the consumer that would result from an alternative

design. Under these factors, Ms. Reardon stands a strong chance

at recovery because the utility of the ASR Metallic Hip is quite

low compared with a standard hip replacement.

1. Gravity of the Danger

The gravity of the danger of the ASR Hip Replacement is quite

high. The hip, which has an 12-13% high revision rate, must be be

replaced otherwise a patient implanted with it will experience a

life of pain and caused by foreign body inflammation. The patient

would also experience reduced movement. To fix the problem, the

patient must undergo another hip replacement surgury - which

carries all the risks that a patient has going under surgury

including the risk of going under general anthesia.

The gravity of the danger is high.

2. Liklihood Such Danger Would Occur

Although the revision rate is only about 8% higher than that

of a standard hip replacement, that is a signifigant risk that

many patients will experience the need to undergo a dangerous

replacement surgury. Many patients recieve hip replacements each

year so the likelihood that many patients will experience the


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impact of the defective ASR Metallic Hip is high. Indeed, a

signifigant number of patients have reported trouble with the

hip, as reported in the UK Natoinal Registry.

The likelihood of the danger, considering the number of people

who recieve hip replacements, is also high.

3. Mechancial Feasibility of an Alternative Design

Under Mass. implied warranty law, a plaintiffs case is not

automatically defeated merely because they cannot prove the

existence of an alterntive design. See Osorio. This is

distinguishable from other jurisdictions like New Jersey, and the

Third Restatement which require that the plaintiff prove the

existent of a reasonable alternative design. See Hinjo v. NJM.

However, in this case Ms. Reardon can strenghen her case

because she can show a reasonably safer alternative design, the

typical total hip replacement system, which has only a 5%

revision rate compared with a the ASR revision rate of 12-13%.

Depuy may argue that if the ASR Hip does not fail, it does in

fact last longer than the typical hip replacement. However, this

argument will not pose must of a challenge to us asserting a

design defect claim because such an increased revision rate does

not balance against increase longivitity. Additionally, there is

nothing presenting in the facts to indicate that the Depuy hip

even achieves this goal.


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4.The Financial Cost of an Improved Design

More reasearch must be conducted to determine if the ASR

Metallic Hip is more expensive or less expensive than the typical

total hip replacement. It is not likely that this factor will

present any signifigant problems for Ms. Reardon asserting her

claim.

5. The Adverse Consequences to the Product

This is also a strong point for Mrs. Reardon, the only basis

that DePuy can assert as adverse is the argument that perhaps, if

the hip does not fail, it lasts longer than the typical hip

replacement. There is no evidence that has been provided, that

shows that the hip replacement achieves this goal. Even if it

did, it is hard to imagine a jury, whose province it is to weigh

these factor (See Osorio), would determine in light of the

increased failure that an "alternative" design, such as the

typical hip replacement, really poses any adverse consequences to

the consumer.

Through the Barker factors, Ms. Reardon has a strong claim

for showing that the ASR Metallic Hip was defect in design.

Failure to Warn

The Product was defective because it did not have adequate

warnings.


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Ms. Reardon can also assert a breach of implied warranty on a

theory of failure to warn claim. Many product liability cases

(and presumably implied warranty cases) are originally setup to

be tried as designd defect claims and are then tried as warning

claims.

Commercial product sellers must provide sellers with warnings

about the risks of injury posed by products. 402A cmt. I. Under

Mass. law, a seller is required to give a warning against danger,

if he has knowledge, or by the application of reasonable

developed human skill and foresight should have knowledge of the

danger. See Vassalo v. Baxter. A product manufacturer his held to

a standard of expert knowledge and remains subject to a

continuing duty to warn of risks discovered following the sale of

a product. Id.

The ASR Hip that Mrs. Reardon recieved did come with a few

warnings including, importantly a warning that that the hip might

fail because of of excessive physical activity, trauma, obesity,

or excessive patient weight. The hip did include that there were

potentional long term effects of metal wear and debris and metal

ion production. A failure in less than 3 years does not speak to

this warning - especially because the traditional hip replacement

has a life span of 15 years.

Astonishingly, none of these warnings included that the hip

could prematuraly fail as compared with the traditional hip.

Depuy was aware of an increased failure rate as early as 2005,


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and Depuy scientists reported that the "ASR did not meet the set

acceptance criteria" in 2007. Mrs. Reardon recived her ASR

Metallic Hip Replacement in 2008, well after Depuy was aware of

the problems with the ASR implant.

Warnings must be designed in a fashion that allows the

consumer to have a fair indication of the specific risks involved

with the product. See Lewis V. Sea Ray Boats. Here Depuy was

aware of the specific risk that the hip could fail earlier and

they did not provide this information to Mrs. Reardon.

Causation

Depuy could assert that Mrs. Reardon still would have had the

ASR hip implant even if Depuy had noted the increased risk.

However, this argument is of no consequence to our claim. A

plaintiff may rely on the presumption to establish that an

adequate warning would have been heeded. See McDarby v. Merck.

The burden shifts to the defendant to show that the plaintiff

would not have heeded such a warning.

With the facts that are available now, there is no evidence

that Depuy can point to that would indicate that Mrs. Reardon

would have undergone the hip replacement surgury with an ASR

metallic hip had she been aware of the increased revision rate.

Ms. Reardon has a strong breach of implied warranty claim on

both a design defect and a failure to warn theory. Provide below

is a synopsis of some of the weaknesses of the claim and how we


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can counter those weaknesses.

Weaknesses

1. Learned Intermediary Doctrine

Depuy may assert that they should not be liable on a failure

to warn theory because Mrs. Reardon's doctor, as a learned

intermediary should have communicated to her the risks of the new

design. This is not a strong defense. For one, the learned

intermediary doctrine has recieved considerable critism in a

market where companies advertise directly to consumers. See

Perez v. Werth Labs (NJ). Additionally, there is no evidence

provided to us right now that indicates that Mrs. Reardon

physican recieved any warning from Depuy about the hip.

2. Depuy's argument that the failure of the hip was not because

of its design, but because of some comparative fault of Ms.

Reardon.

On this point, first, Mass. does not reduce damage awards in

implied warranty cases for comparative fault. See Osorio.

3. The warnings were adequate and Mrs. Reardon's hip failed

becuase of her weight/or activity.

Considering Mass. law's position on comparative fault this is

not the strongest argument for Depuy. In addition, we do not

currently have any information about Mrs. Reardon in terms of her

weight or any activity that she may have done while she had the

ASR Hip.


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Conclusion

Mrs. Reardon has a strong breach of implied warranty claim.

Depuy produced an inferior product, was aware the product was

inferior, fail to warn about the risks of the product compared to

others, and as a result Mrs Reardon had to undergo another hip

replacement surgury and missed nine months of work. On balance, I

recommend that we assert this claim as a design defect claim - as

the risk-utility factors from Barker are clearly in Mrs.

Reardon's favor.

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Answer-to-Question-_2__

The accident that caused the death of John Force occured when

Noah Pierre was attempting to make a turn and his view was

obstructed by bushes on a property by owned by Garland and leased

to Sunset Dental. We are anticipating summary judgment motions

from Garland, Sunset Dental, and Pierre - I will analyse the

defendant's arguments. I think it is unlikely that Sunset or

Pierre will get summary judgment, but depending on the law in the


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jurisdiction Garland may recieve summary judgment.

In order to prevail on a motion for summary judgment in a

Negligence case, the defendant could either show (1) lack of a

duty (which is a determination of law, or (2) that no reasonable

juror could find that they were negligent.

Garland

Garland's best possible argument for summary judgment will be

that the ceeded control of the property to Sunset Dental and

thus, they cannot be held liable. This would depend on the law in

the jurisdiction. If Garland does not recieve summary judgment on

this point than their arguments will be largely indentical to

Sunset Dentals.

Sunset Dental (and Garland)

Sunset will not get summary judgment by showing they did not owe

a duty.

Sunset may attempt to argue that they did not have a duty to

maintain the bushes, and this cannot be held liable against

Pierre's estate in a wrongful death or survival action.

It is unlikely that Sunset will that they did not have a

duty. An actor ordinarily has a duty to exercise reasonable care

when the actor's conduct creates a risk of physical harm. When an

actors conduct creates a risk of harm- a duty is found unless


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their is an articulated countervailing policy consideration that

warrants denying or limiting liability. See Restatement (3rd)

7.

Sunset (and Garland) created a dangerous condition on their

propery by failing to trim the bushes. This conduct created a

risk that motorists would not see cars while making turns in the

intersectionof Levitt Parkway and Garfield Drive.

There is no countervailing policy consideration like (1)

insurer like liability or (2) claims that the judical system

could not administer. There is nothing about this case that would

create what the New York Court of Appeals describes as "crushing

liability." Strauss v. Belle Realty.

Sunset (and Garland's) conduct of failing to maintain the

bushes created a risk of reasonable harm and thus a duty of

reasonable care was owed.

There is a material dispute of fact about Sunset (and

Garland's)negligent and whether they were both the but-for and

proximate cause of the harm such that summary judgment is not

appropriate.

The determination of whether a party is negligent, that is

that they breached their duty, is ordinarly one for the jury. See

Pokora v. Wabash Ry.. However, in circumstances where no

reasonable juror could differ, the court can decide as a matter

of law that the defendant was not negligent.

There is signifigant evidence both through statute and custom


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that that Sunset and Garland were negligent, so it is unlikely

that they will assert a theory of summary judgment predicated on

their lack of negligence.

What is more likely is that they will argue that they were

not the but-for cause of the harm. A defendant's conduct is the

but-for cause of the harm if the harm would not have occured

absent the conduct. See Restatement (3rd) Physical and Emotional

Harm 26.

Sunset and Garland will argue that the accident would have

occured even if the bushes hadn't obstructed the Pierre's view of

the road. The will use testimony from Noel, a passanger in the

front seat, to who stated that the bushes did not obstruct her

view and that she saw the motorcycle coming. At trial, this

testimony would be juxaposed against the Plaintiff's engineering

liability expert who has reported that the bushes did obstruct

Pierre's view of eastbound traffic. Pierre would also testify at

trial that the bushes obstructed her view.

This conflicting testimony certainly creates a material

dispute of fact about whether or not Sunset and Garlands

untrimmed hedges contributed to the accident which killed Force.

Summary judgment in such a case would be inappropriate, it is

province of the jury to determine breach if their is dispute in

the facts. See Andrews v. United Airlines.

Summary Judgment for Pierre


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Pierre will not argue that he did not owe a duty - all

motorist owe their fellow motorists a duty of reasonable care

under the circumstances.

Negligence

Pierre may argue that he was not negligent, meaning that

under the circumstances (with the bushes) he showed reasonable

care and that in a sense, the accident was unavoidable. Our

plaintiff's liability experts testimony lends credibility to this

testimony. However, Noel's testimony indicates that she looked to

her left at the same time that Pierre was making his decison to

turn and saw the motor cycle.

On negligence, there is a material dispute about the facts

such that summary judgment would not be appropriate. See Andrews

v. United Airlines.

Causation

Pierre's best argument for summary judgment is that she was

not the proximate cause of the harm. An actors liability is

limited to those physical harms that result from the risks that

made the actor's conduct tortious. Restatement (3rd) 29;

Palsgraf v. LIRR (Cardozo uses this "risk-rule" test to answer a

scope of duty question). Pierre will use Bellizzi's testimony,

which indicates that the overgrowth of the bushes "proximately

caused" the harm. This argument does not warrant summary


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judgment. First, a conduct has to be a proximate cause of the

harm not the proximate cause, thus multiple causes are possible

and liability can still be upheld.

Pierre may also argue that the overgrowth of the bushes is a

superceeding cause. See Doe v. Manheimer, however A negligent

defendant, whose conduct creates or increass the risk of

particular harm and is a substantial factor in causing the harm,

is not relieved of liability by the intervetion of another

person, expert where the harm is intentionally caused by the

third person and is not within the scope of the risk created by

defendant's conduct. See Restatement (2nd) 442. Gardner and

Sunsets negligent will not likely act as a superceeding cause

under this rule.

Summary judgment is not appropriate here, as their are

material disputes of fact considering Pierre's negligent and his

negligence causal relasionship to the harm that Force suffered.

Claims and Damages should we Survive Summary Judgment

We can assert both a survival action and a wrongful death

action in this case.

A survial action provides for the recovery of damages by the

deeased estate that the deceased could have obtained before

death. This includes medical expenses, funeral costs, and in the

majority of states pain and suffering can also be recovered.

A wrongful death action requires (1) a death, (2) caused by

wrongful conduct, (3) giving rise to a cause of action which


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could have been maintained at the moment of the death, by the

decedent if death had not ensued, (4) survical by distibutes who

have suffered pecuniary loss by reason of the death, and (5)

appointment of a personal representative of the decedent. A

wrongful death action is for the recovery ofpecunary(economic)

harm as a result of a wrongful death.

Negligence Claim

Both the survival action and the wrongful death claim will

require that the Force's prevail on a claim that one or all of

Garland, Sunset Dentistry, and Pierre were Negligent. That is

that they (1) owed a duty, (2) breached that duty, (3) the breach

of that duty was both the but-for and proximate cause of the

harm, (4) damages.

Duty

In analysing the prospective motions for summary judgment it

is clear that Sunset and Pierre both owed duties of reasonable

care to Force.

Negligence for Sunset (and Garland if that do not recieve summary

judgment)

At trial, we can advance evidence of Sunset and Garland

negligence by appealing to but statutory and custom arguments. An

action is negligent per se, an actor, without excuse, violates a


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statute designed to protect against the type of accident the

actor caused and the accident victim is within the class of

persons the statute is designed to protect. See Restatement (3rd)

14. Sunset and Garland violated the Townships Property

Maintence Code, so this should establish negligence or serve as

evidence of negligence.

The determination of whether it will serve as negligence will

depend on the law in the jurisdiction. In NY, the violation of a

state statue is negligent per se, while a violation of a

municipal ordinace constitutes evidence of negligence. See Elliot

v. City of New York. (2001).

Even if we are unable to establish negligence per se, this

would be strong evidence of Garland and Sunset Dental's

negligence.

Sunset and Garland also breached the custom in theby

violateed the AASHTO intersection design standards. Failure to

comply with a custom, while not dispostive of negligence is

evidence of negligence. See Trimarco v. Klien. There may be an

argument that Garland or Sunset should not be charged with this

custom as it comes from intersection design rather than the

expertise of either plaintiff. However, Garland as a lessor of

land should be charged with knowledge of how to maintain a

property near a intersection

Neglience of Pierre

The neglience of Pierre will be established in that he did


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not show reasonable care under the circumstances in executing the

term. The testimony of Noah will serve as strong evidence of

this. Whether this negligence was a proximate cause of the harm,

discussed above, will be question for the jury to decide.

Damages Calculation

Under the survival action, the damages for the medical

expenses and funeral expenses ($140,000) will easily be

established as expenses between the time of injury and the time

of death. The Ironworkers Local 48 welfare fund will have a lein

on the recovery for the $20,000 in funeral expenses. Force's

estate should also recovery for the pain and suffering of

spending 10 days in the hospital on a morphine drip because of

the results of the accident. We should consult databases to

determine what similar juries have awarded in these cases.

In the wrongful death action, Marilyn, Sean, and Mary should

recover the amount of Force's lost wages with a substraction for

what he would have spent on his own personal expenditures. To

determine this figure, we should consult with a forensic

economist to determine what possible salary increases Force would

have been likely to recieve and to adjust these numbers to

present value.

Comparative Fault

The damages aware recieved will likely be reduced to a degree


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by John's negligence as a result of violating the posted speed of

25 MPH. Joh was traveling at a speed of 35 MPH. The jury will

make a determation of John's fault the damage award will be

reduced, assuming this a pure comparative fault state. If this a

modified comparative fault state, recovery could be precluded if

the jury determined that John was 50 (or in some jurisdictions

51% at faullt). It is unlikely that the jury would determine that

John was more than 49% at fault.

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Answer-to-Question-__3_

This is a case in which Samuel Gray, who was assisting his

wife in preparing for a engagement party. Mary Gray is a florist

and Samuel often helps out his wife, but he is not an employee of

the florist. Mark, a professional caterer, was carrying a vase.

The way that he was holding the vase was contested at trial with

varing testimony. Mark testified that Sameul Gray was putting

pressure on the vase, while Gray testified that he was holding

the vase by the bottom.

We represent Once Upon a Rose, Mary Gray, and Samuel Gray. On

behalf of our clients, we will bring a motion for a directed


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verdict. Arguing, that no reasonable juror could find that Once

Up a Rose or Samuel Gray were negligent.

The grounds that we will make the motion for direct verdict

on are that Mr. Gray's negligence did not cause the harm to

Martin Mark. It is the province of the jury to determine whether

or not a party is negligent. See Pokora v. Wabash Ry, however,

when no reasonable jury could reach a different verdict it is

appropriate for the court to rule as a matter of law.

Negligence for Holding the Vase

We will assert in our motion for directed verdict, that

regardless of how the jury would find on who to believe in regard

to how Mr. Gray was holding the vase, the jury could not find

that this negligence was the legal cause of the harm that Mark

suffered from the broken vase.

An actors liability is limited to those physical harms that

result from the risks that made the actor's conduct tortious.

Restatement (3rd) 29. We will assert that the risk here was

only to Mr. Gray in that he would hurt himself. In fact, Mark

even said "you're going to hurt yourself." The reason Mark was

injured was because he intervened to help Samuel Gray. However

the jury would determine that Samuel was holding the vase is of

no consequence. The harm would not have occured if Mark had not

intervened, and Mark intervening was not with the scope of risk

that would result from negligently holding a vase. See Palsgraf


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v. LIRR (determing that an actor is only responsible for harm

within the scope of the risk of their conduct.

Negligence for Failing to Properly Inspect the Vase

We will also bring a motion for directed verdict on the

claims against Once Upon a Rose and Mary in relation to Mrs.

Gray's failure to ensure that the vases used did not have chips

and scratches.

An actors conduct is negligent if the risk is of such a

magnitude as to outweigh what the law regards as the utility of

the act or the particular manner in which it is done. Restatement

(2nd) Torts 282. A helpful formula from Learned Hand states

that, if the Burden of taking the precaution is less than the

combination of the probablity and gravity of the harm an act is

negligent. See US v. Caroll Towing.

Actors are under a duty of reasonable care, that is to take

reasonable precautions "to minimize resulting perils." Adams v.

Bullock. No jury could find that Mrs. Gray was not reasonably

careful, she stored the vases in individual boxes, she testified

that she checked all the vases for cracks and found none, and

that she would have removed an vase that had been found chipped

or cracked. No testimony was presented at trial to the contrary

on this evidence. Under these, circumstances we will argue that

no jury could have found that Mrs. Gray failed to exercise

reasonable care.


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How the Judge should Rule?

Mr. Gray's Negligence

On the motion for directed verdict for Mr. Gray's negligence

in holding the judge, the judge should deny the motion for a

directed verdict. Conflicting testimony was presented at trial in

terms of how Mr. Gray was holding the vase. Actors are under a

duty of reasonable care to protect others from their conduct,

which causes a risk. The jury should be free to determine whether

or not Mr. Gray's conduct was that which could cause a risk to

others and whether or not he used reasonable care in carrying the

vase.

Mrs. Gray's Negligence

A directed verdict is probably approrpiate for the negligence

claims against Mrs. Gray and for failure to properly

store/inspect the vases prior to using them for the engagement

party. It is a bed rock principle of negligence, that individuals

are only responsible for their unreasonable behavior. Adams v.

Bullock. The law of Negligence balances between liberty and

security. From the testimony presented at trial, there is no

evidence that Mrs. Gray behaved negligently (that is

unreasonable) in anyway, shape, or form.

Instructions for the Jury

The jury should be instructefd that their function is to


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decide what has or has not been proved and apply the rules of law

that the judge gives to the facts as you find them to be. NJ PJI

1:6. Mr. Gray owed Mark a duty of reasonable care, because he was

engaging in risky behavior carrying a vase. At trial, it you

heard conflicting testimony on how Mr. Gray was holding the vase.

It is your duty to weigh this testimony and determine who you

find to be credible. If you find that Mr. Gray behaved in a way

that was not reasonable under the circumstances, you should find

that his conduct was negligent. You are the sole and exlcusive

judges of that fact.

You must also determine whether or not Mr. Gray's negligence

was the but-for cause of the harm. A harm is the but-for cause if

it would not have occured absent the conduct. Restatement (3rd)

26. If you find that Mark would not have been injured absent the

conduct of Mr. Gray, then Mr. Gray's conduct was the but-for

cause of the harm

You most also determine whether or not Mr. Gray's negligence

was a proximate cause of the harm. An act is the proximate cause

of harm if it is a substantial factor in bringing about the

resulting accident. NJ General Charge 6:11. What is meant by

substantial, is that it is not remote, trivial, or

inconsequential. Thus, if you find that Mr. Gray's behavior in

carrying the vase was a substantial factor in causing the harm

you should find that it was the proximate cause. Any negligence

of Mark does not preclude a finding that Mr. Gray was negligent.


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Answer-to-Question-_4__

In this case Walter Holmes was injured when he slipped on the

ice in a parking lot of Lowes, Bally Total Fitness, Matress

Giant, and Staples. Lowes had shared right to use the parking lot

for delivery, customer parking, and other uses on a thirty year

lease. I recommend we decline this case unless the plaintiffs

would be willing to proceed without a contigent fee structure.

Lowes did not have control of the land, and therefore it is

unlikly that it owned a duty to entrants on the land. 52. The

court might find that Lowes was a land possessor though - which

would make recovery likely.

Lessee with Duty of Care

A lessor owes to the lesse and all other entrants a duty of

reasonable care under 51 for those portions of the leased

premises over wich the lessor retains control.

The lease that Lowes had signed with Price Legacy and Kimco

Realty Corpration provided that Lowe's had a shared right to use

the parking lot for delivery, customer parking, and "other uses

incidental to the operation of a home supply retail store.


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Section 8(I) of the lease specifically provided that the landlord

was to maintain the snow removal. The court would likely

interpret this to mean that Price Legacy and Kimco Realty

Corporation had retained control of the parking area.

Possessor of Land

Similarly, it is unlikely that the court would determine that

Lowes was a possesor of the land. While a possessor of land does

not have to own the land - under the 3rd Restatement, an

individual occupies and controls the land if they are entitled to

immediate occupation and control of the land.

It is not entirely clear from the facts if Lowes was

suffiently entiteld to immediate occupation of the land. They

were certainly entitled to use the land as a parking area pursant

to the lease. However, they shared the parking lot with the other

individuals in the store and the landlor retained contorl of the

lot for purposes of maintence.

Howeever, it is possible that the court could determine that

Lowes had a duty of reasonable care to maintain the land if it is

seen as partially a possessor with the othe stores in the lot.

If Found to be A Poessor or in Control of the Land.

If Lowes is found to be a possessor they owed a duty of

reasonable care to Walter Holmes. It is of no consequence whether

the court follows the common law categories of distinctions or

adopts the 3rd Restatement approach, which follows Rowland.

Walter Homes was probably be a business invitee, assuming that


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his purposes for being in the lot was to purchasing something

from Lowes. The court could deem him to be a licensee if he had

merely parking in the parking lot and did not intend to patronize

the stores.

Negligent

However, this is still a week case even if the court

establishes that Lowes owed Holmes a duty of care. A jury would

be likely to find that Lowes was not negligent. The landlord had

hired a company to handling the plowing and the company had both

plowed and salted. This woudl require the jury to determine if

Lowes had enough notice of the condition to either remedy it or

warn about it. See Negri; Gordon v. American Musuem.

If Lowes was found to owe land possesor duty and found to be

negligent Holmes could prevail. This is unlikey.

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