May 5, 2008: Exam Week

Welcome to Exam Week here at Donutbuzz™! And what better way to begin than with the delightful combination of torts and ice cream:

Brandon worked as an employee of a Frozen Custard Store (“FCS”) in North Carolina. One day, while operating his store’s custard mixing machine, Brandon severed part of his right index finger. The General Manager of FCS shut down the mixing machine, begin sanitizing procedures, and removed the affected bucket of custard. In the few moments between the time Brandon’s finger was severed and the General Manager's response, however, a drive-thru employee who was unaware of the accident, packed the only custard served from the mixing machine after Brandon’s injury into a pint container and sold it to a customer named Clarence.

Brandon’s coworkers rushed him to Cape Fear Hospital (“CFH”) while Clarence returned home to eat his gourmet ice cream. Clarence discovered the piece of Brandon’s missing index finger within 30 (thirty) minutes after the mixing machine had severed it. Clarence returned to the store where he displayed Brandon’s missing finger to the General Manager. When the General Manager requested Clarence to return Brandon’s missing finger to her, Clarence refused. He claimed he wanted to keep the missing finger to test it for diseases.

Neither CFH nor Brandon’s General Manager were able to retrieve the missing piece of Brandon’s index finger from Clarence immediately after the accident. Several days later, however, Clarence had a change of heart and decided that he would give Brandon’s finger back if it could be reattached.

Assume for the purposes of this exam that medical experts will testify that an attempt to reattach a severed finger can generally be made within six hours. Assume further that Brandon’s fingertip amputation was the second time in less than a year that a worker lost a finger on the same frozen custard machine. The worker was found by investigators to have been negligent in a recent incident, and the state Labor Department cleared FCS of wrongdoing.

Question 1: You have been retained by Clarence to protect and advance his interests. Advise Clarence as to all theories upon which he can recover from any other party and explain to him all defenses that are available to each party.

Question 2: Assume you have been retained by Brandon to protect and advance his interests. Advise him as to all theories upon which he can recover from any other party and explain to him all defenses that are available to each party.

Question 3: Now assume that you have been retained by the manufacturer of the frozen custard mixing machine. Also assume that you can bill the client at the rate of $300 an hour. How do you advise the manufacturer? Please remember to provide all your billing codes and time spent on each aspect of your advice.

Question 4: This is a three-hour exam, and we’re going for the blisters on your fingers. Let’s change the facts. The custard shop is in West Virginia, an employee named Nick was operating the mixing machine, and a drive-thru customer named Biff received the frozen custard treat, took it home, and discovered Nick’s missing finger. Further assume that the drive-thru employee of the custard shop (Buster) held a grudge against Nick (because Nick stole his girlfriend and this was Buster’s first real girlfriend). After Buster heard Nick’s screams and watched the General Manager of the custard shop shut down the custard machine, Buster continued taking Biff’s order and procured a frozen chocolate custard for him. While several of Nick’s coworkers (except Buster) arranged for Nick’s transport to Overlook Hospital, Biff returned to the frozen custard store and presented Nick’s missing finger to the General Manager. And in this hypothetical, when Biff refused to return Nick’s missing finger, the General Manager (whose name is Randy) grabbed Biff, wrestled him to the ground, and retrieved the finger from him, which Biff will later claim caused him physical and mental injuries. The General Manager then took the finger to Overlook Hospital where doctors performed the reattachment procedure on Nick. It failed.

Assume you now work for a large, heartless, nasty, and, of course, fictitious law firm in Chicago that has been consulted by an unnamed, imaginary West Virginia law firm that lacks the ability and talent to maintain the business of large, multi-million dollar clients. You also work for an imaginary, despicable senior partner who delights in abusing his staff, including you, a junior associate who receives $175,000 a year for billing hours drafting memos in response to questions like this. The senior partner, who is married, has a hot and heavy affair with another junior partner, and he’s too cool to waste his time on you or on drafting memos, plus he derives great satisfaction from tormenting everyone because his mommy never gave him the love he so craved. This senior partner asks you to advise him as to all theories upon which any of the parties can recover from any other party and explain to him all defenses that are available to each party. And he wants it done yesterday. Don’t leave the office until you’re finished drafting his memo. And, by the way, don’t forget to arrange for a sitter for his kids, either.

Question 5: You’re still not done. Don’t forget to address proximate cause in your response to Question 4 because this senior partner’s clueless and thinks Palsgraf is a type of dinnerware.

Bonus opportunity: Work him into your answer.

Tomorrow: Employment Law!