TORT EXAM SAMPLE QUESTION

On Mar. 10, 1997, Jenny Jones was supposed to be taking care of Alvin Ames, a 10 1/2-year-old who was known to slip out of the house and get into trouble unless the person taking care of him was careful. Jenny was a substitute babysitter. Although Mr. and Mrs. Ames knew that she was not very responsible, they didn't really have a choice, since their list of possible sitters had been exhausted and there was no one else for them to call. 

Jenny agreed to babysit. She said that she understood that she would have to be very careful and that Alvin would try to slip out of the house unless watched. Unfortunately, there was a fascinating segment on the Vicki Lake show that day -- Miss Manners would talk about the proper etiquette at holiday family dinners where the ex-husband was now married to his former mother-in-law. Jenny didn't notice when Alvin walked by her and then out the door.

Alvin walked down the street, crossed a few streets with heavy traffic, boarded a bus, and went downtown. He went into the famous Uplifter building, the corporate headquarters of Uplifter Corp., the nation's largest manufacturer of elevators and the nation's second largest elevator service corporation. Alvin wanted to go to the top floor and look out over the city. He knew that the Observation Deck was open to the public from 10:00 a.m. to 7:00 p.m. Monday through Friday.

Alvin got into one of the elevators. He noticed a sign saying:

Pursuant to Capitania Health and Safety Code 198.06, THESE ELEVATORS MAY NOT BE OPERATED BY CHILDREN UNLESS ACCOMPANIED BY AN ADULT. CAUTION: DANGER!

He also saw the yearly inspection certificate which certified that the elevator had passed inspection. The certificate was dated March 3, 1997.

Alvin pushed the button to go to the top floor. He went straight to the top and walked out to look at the City of Capitania. He had a wonderful view. He could see large ships unloading cargo at the Port of Capitania, business people scurrying along the sidewalk to catch a bus or the subway, etc. He must have spent at least an hour looking over the city. Finally, he had had enough. He was starting to get hungry and thought that it must be time to go home for dinner.

Alvin entered one of the elevator cars and pushed the button for the ground floor. Somehow, the car got stuck between the eleventh and the tenth floors. Alvin panicked. He pushed the alarm button, but the car did not move. He tried to open up the door. He was able to open it a little, enough to get his arm through the door. Suddenly, the car started moving again. Alvin, who had been unable to withdraw his arm back into the car in time, was fortunate -- although his arm was broken in three places, he might have suffered much worse injuries. When the car eventually took him to the ground floor, security guards were waiting there for him, having noted that the alarm bell had been pressed. When they heard Alvin's screams and saw his arm, they called an ambulance, which arrived shortly. 

After Miss Manners had finished discussing who should sit next to whom at the family table and whether the children of the first marriage should call their grandmother's husband, "Dad," "Granddad," or "Hey," Jenny decided to see how Alvin was doing. She panicked when she couldn't find him. She got in her car and drove down various neighborhood streets. When she couldn't find him anywhere, she decided to go have a drink to figure out how to tell Alvin's parents that she had lost him.

Jenny went to Bob's Bar. It was Happy Hour and she hadn't eaten since breakfast. However, she wasn't particularly hungry and thought that a scotch on the rocks might clear her head. Bob served her a large drink, explaining that during Happy Hour all drinks were doubles. After finishing the first, Jenny started slurring her words. After her second, she knocked a bowl of peanuts off the bar and nearly feel off the stool. After she had finished her third, she suddenly remembered that Alvin had just been discussing how much fun it would be to go up to the top of the Uplifter Building. She got in her car and hurriedly drove in that direction. 

She was quite near the building. Cars had been giving her a lot of room, since she was swerving all over the road. As she approached the Uplifter Building, she crossed a double yellow line and hit an ambulance which was approaching in the opposite direction. Fortunately, no one died in the crash. However, the ambulance driver and the patient (who happened to be Alvin) suffered serious although not permanent injuries. Jenny had a variety of broken bones and internal injuries.

When Mr. and Mrs. Ames arrived home from work at 7:00, there was a message awaiting them on their answering machine. They were informed that Alvin had suffered serious but not life-threatening injuries and that he could be found in Children's Hospital. They rushed to the Hospital where they were greatly distressed to see their child in such pain.

A detective hired by Mr. and Mrs. Ames has discovered that Uplifter both made and serviced the elevator in which the accident had taken place. The detective further discovered that, contrary to city policy, the inspection certificate had been issued without an inspector's ever having looked at the elevator. 

Discuss all relevant issues. Capitania is a comparative negligence state in which the plaintiff will be awarded damages only if plaintiff's fault does not exceed the aggregation of the faults of the defendants. Capitania has completely abolished the defense of assumption of risk.