Rule Paragraphs 2009 NYS Bar Essay Two

Question 1

How to write up the “I” in IRAC when there is a cause of action issue dealing with a strict liability claim against a manufacturer

Answer 1

The issue is whether the [Plaintiff] has a cause of action for strict liability against the manufacturer of [product x] which caused the injury.

Question 2

How to write up the “I” in IRAC when there is a cause of action issue dealing with a strict liability claim against a manufacturer when the product was altered after leaving the manufacturer

Answer 2

The issue is whether the [Plaintiff] has a cause of action for strict liability against the manufacturer of [product x] which caused the injury even when the product has been altered since it left the manufacturer’s control

Question 3

A plaintiff providing strict liability of a manufacturer must show four things, First

Answer 3

A plaintiff providing strict liability of a manufacturer must show four things. First, that the manufacturer made the product in question

Question 4

A plaintiff providing strict liability of a manufacturer must show four things, Second

Answer 4

A plaintiff providing strict liability of a manufacturer must show four things. Second, that the product was defective and was therefore unreasonably dangerous

Question 5

A plaintiff providing strict liability of a manufacturer must show four things, Third

Answer 5

A plaintiff providing strict liability of a manufacturer must show four things. Third, that the product was defective when it left the manufacturer’s control

Question 6

A plaintiff providing strict liability of a manufacturer must show four things, Fourth

Answer 6

A plaintiff providing strict liability of a manufacturer must show four things. Fourth, that the plaintiff was using it in a way reasonably foreseeable to the manufacturer.

Question 7

To recover for strict liability, the product must NOT

Answer 7

To recover for strict liability, the product must NOT have been altered since it left the manufacturer’s possession.

Question 8

Strict Liability claim against a retailer means that (or based on what theory)

Answer 8

It is important to note that a plaintiff may also recover for strict liability against a retailer even though the retailer did not manufacturer the product–simply on the basis that the retailer is putting unreasonably dangerous products into the stream of commerce

Question 9

What is NOT applicable when a purchaser deals directly with a manufacturer

Answer 9

That the retailer of a product would not liable or able to be brought into a suit since the purchaser dealt directly with the manufacturer

Question 10

A subsequent modification to a product by the purchaser can have what effect on a claim

Answer 10

A subsequent modification may cut off a manufacturer’s liability to a plaintiff in strict liability because the product was not unreasonably dangerous when it left the manufacturer’s control, and was modified thereafter.

Question 11

What actions buy a purchaser can prevent a claim for strict liability against a manufacturer?

Answer 11

Removal of a “safety” part is a sufficient modification to show that the product was not defective when it left the manufacturer’s control.

Question 12

The events prior to or the actual cause of injury to a plaintiff, require the plaintiff to show

Answer 12

that the event was caused by a defect in the product that was unreasonably dangerous and existed when it left the manufacturer’s control, then the plaintiff may be able to recover from the manufacturer, then the plaintiff may be able to recover from the

Question 13

When you have a strict liability fact pattern, you must determine

Answer 13

If the modification causes liability for the manufacturer or if there was another defect that caused the injury.

Question 14

The question is whether a modification causes liability for the manufacturer or if there was another reason (defect) that caused the injury to the plaintiff, the issue remains that

Answer 14

There will still be a question of whether the subsequent safety modification rids the manufacturer of liability because of the injury sustained occurred from another possible defect or reason

Question 15

When dealing with a strict liability claim against a manufacturer, you need to determine if the product’s modification

Answer 15

if the product’s modification was reasonably foreseeable by the manufacturer because a manufacturer will be liable even if they are not uses the product was intended for.

Question 16

Foreseeable uses of a product, that was not the intended use of the product WILL NOT extend liability as far as foreseeable as

Answer 16

Subsequent modifications of the product

Question 17

If you have a strict liability claim, but the product was modified after leaving the manufacturer, and the manufacturer was aware of the modifications, the plaintiff should bring a claim under what theory?

Answer 17

The plaintiff would have a better chance of recovering from the manufacturer on a theory of negligence–and that the manufacturer owed a duty to the plaintiff and that the manufacturer breached that duty by NOT manufacturing a product that would be safe and useful. The plaintiff could then show that because the manufacturer knew the product was not being used appropriately, it owed a duty to determine a better way of manufacturing the product in keeping with the way the product was being used. The manufacturer’s failure to determine a way or manufacture the product in a way would be a breach, and the plaintiff would then need to show the manufacturer’s breach was the proximate/legal cause of the injuries

Question 18

If you have a strict liability claim, but the product was modified after leaving the manufacturer, and the manufacturer was aware of the modifications, determine if the plaintiff was a class of persons protected by a statute, and if so then

Answer 18

If there was a statutory claim, then plaintiff could argue negligence per se, and that the plaintiff was a class of persons protected under the statute, and that the activity was in the class of activities protected, then the plaintiff would have established a negligence per se claim against the manufacturer, and the plaintiff would only have to show causation and damages

Question 19

When you have a fact pattern in which one company acquires all of the assets of another, you have to determine what important element

Answer 19

You have to determine if the company that did the acquiring of the assets, also ASSUMED the liabilities by the purchase of all the assets

Question 20

What is the general rule when a company sells all or substantially all of its assets to another company and the agreement is silent as to the assumption of liabilities

Answer 20

NO liabilities are assumed by the purchasing corporation, unless otherwise agreed to in the purchasing agreement.

Question 21

What is the exception to the general rule that when an acquirer buys all the assets of another company but does not include an assumption of liability

Answer 21

The exception for when the purchasing company operates as “merely an extension” of the company acquired. When the acquirer operates as an extension of the acquired company it purchased, the purchasing company is treated as having assumed the purchased company’s liabilities

Question 22

What is the analysis if a acquirer continued to run and operate as the purchased company then you would state that

Answer 22

In this case, however, the [name of acquirer] “continued to manufacture [name the product] using the same manufacturing plant, the same employees and the same trade names for its products as the acquired company did [put in name of acquired company], and therefore, the buyer can be held liable to the same extent as the purchased company would have been.

Question 23

How is the issue drafted for claim against a landlord for failure to provide a safe environment

Answer 23

The claim will be brought under a theory of negligence

Question 24

In order for a plaintiff to prevail on a claim against a landlord for a negligence claim for failure to provide a safe environment, the plaintiff will have to prove

Answer 24

To prevail on such a claim, Plaintiff would have to show that the Landlord owed a duty of care and that he breached that duty and the breach of it was the actual and proximate/legal cause of the plaintiff’s injuries, and that Plaintiff suffered damages to himself or his property.

Question 25

What is the rule when a landlord uses a independent contractor to keep his premises safe

Answer 25

The rules is that a party injured on the landlord's property may hold the landlord liable if the landlord was using an independent contractor to perform work on areas of the premises under his control and the person was injured in performing that work

Question 26

A landlord has a duty to tenants and invitees and licensees

Answer 26

A landlord has a duty to make the common areas of his property reasonably safe for those who come to the premises.

Question 27

If there is a strict product liability claim, you must first determine that

Answer 27

A manufacturer may be strictly liable to a plaintiff who suffered personal injuries under either a theory of (1) design defect or (2) a manufacturing defect, or (3) failure to warn

Question 28

In order to prevail on a design defect strict liability suit, the plaintiff bears the burden to showing that:

Answer 28

1) the defendant owed a strict duty of care because they sold or manufactured the faulty product, 2) that the defendant breached its duty of care because the product was unreasonably dangerous for its ordinary use because a) a safer design was available and feasible, or b) the plaintiff was not warned of the risks not obvious to the ordinary user but known to the designer, and 3) that the faulty design was the cause of the injury because the plaintiff did not "alter" the product from the form it was in when it left the defendant's custody.

Question 29

What is the statute of limitations for a strict products liability claim

Answer 29

The SOL for a strict products liability action is three years from the date of injury and each seller in the chain of custody may be held strictly liable

Question 30

In design defect strict liability claim, under the element that the product was unreasonably dangerous for its intended use, the plaintiff will argue that

Answer 30

The seller was aware that people (generally owners) frequently removed the safety (or another portion) of the product (for easier use to make the workers more productive buy increasing risk of harm), and the seller's awareness that people (generally owners) were habitually removing the safety precautions means that the plaintiff would have to show a safer model was available and feasible, and the seller had a duty to manufacturer the safer model, which did not change the stated purpose of the product, and the safety design was more difficult to remove.

Question 31

In a strict product liability claim, not brought under a manufacturer or design defect, the plaintiff would argue

Answer 31

That the manufacturer failed to "warn," and the manufacturer had a duty to include a warning about the risks and potential consequences of the non-obvious risks of removing the safety device

Question 32

The issue is whether successor liability exists when the original manufacturing company has all of its assets acquired by another company in the same line of business

Answer 32

The general rule is that transfer or sale of all or substantially all of a company's assets does not carry successor liability for tort claims against the subsumed company. This is in contrast to a merger of two companies where successor liability does attached to the newly formed company for both of the previous companies.

Question 33

What is the exception to successor liability if there is no liability clause in the acquisition documents

Answer 33

One exception to this rule however is that when a company transfers all or substantially all of its assets to another company who essentially continues the same business as the original company, successor liability may nonetheless attach to the purchasing company for the subsumed companies tort liabilities. The rational for this exception is that transfer of a company's assets should not be used as an end run around of a company's tort liability.

Question 34

The doctrine of caveat lessee says that a tenant

Answer 34

takes the premises as he finds them, and is liable for personal injuries suffered on his property.

Question 35

In a commercial building, a landlord is responsible for

Answer 35

repairs and maintenance to common areas like the exterior of buildings. However, a landlord is still not responsible for personal injuries suffered in the common areas of buildings when the danger was created by his tenant and not by his failure to repair

Question 36

Agency liability will exist when a principal has

Answer 36

Assent, benefit, and control over their agent's actions. In order to have given assent, the principal must have been given the agent explicit written or oral authority to do something, or the agent simply assumes that they have the authority due to it being part of the nature of their fulfilling an assigned task. A principal must also benefit from an agent's actions, or be intended to benefit, and a principal must exercise some control over the nature in which the agent performs the actions.

Question 37

When you have a tenant / landlord fact pattern, once of the issues is the theory of

Answer 37

Principal / Agent

Question 38

When you have an employee hurt on the job, the issue is

Answer 38

The issue is whether the workers compensation statutes bar an employer from being liable to his employee for negligence in New York

Question 39

What is the rule of law in NY in regard to an employee hurt on the job due to the negligence of his/her employer

Answer 39

The rule in New York is that employers cannot be sued for negligence by their employees. The New York Workers Compensation Statute prevents employer liability to their employees unless the employee suffered a "grave injury".

Question 40

What is defined as a grave injury in New York for the purpose of Workers Compensation

Answer 40

The case law in New York holds that a grave injury is an extra ordinarily high bar and in order for a worker to be able to recover from their employers they must be permanently disfigured, or in pain, or disabled as a result of their employer's negligence. Notably, workers compensation laws do not bar an injured employee from suing a third party for products liability or negligence.

Question 41

An employee in New York, that is injured on the job can sue the employer for a negligence claim when

Answer 41

The employer is a NON-New York Company, and the employee will be able to maintain a cause of action for negligence against the employer if the employee shows (1) the employer owed a duty of care; (2) the employer breached that duty, (3) the breach was the actual and proximate (legal) cause of the employee's injuries, and (4) the employee sustained actual physical injuries.