Ohner owned a thirty story office building in downtown Houston. During the late 1980's, Ohner had a difficult time renting space in the building, and economized by eliminating maintenance and security. Although the building is now fully occupied, much of the space was rented at such low rates in order to attract tenants that Ohner still does not find it possible to spend much on maintenance or security, although a guard is posted at a lobby desk from 8:00 a.m. to 6:00 p.m. Early one morning, before the guard arrived but after the doors were unlocked, Climer entered the building. Climer enjoyed climbing up and down the sides of buildings, although he was careful to protect himself with a rope in case of falls. His plan today was to sneak up the stairs to the roof, secure his rope, and then lower it down the side of the building. He would then return to the ground, tie himself to the rope, and proceed to scale the outside of the building. By the time the guard arrived, Climer figured to be halfway up the building.
All went according to plan, at first. Climer tied his rope to an iron ring originally intended to support a window washing scaffold. He began his climb, and soon enjoyed the sight of a large crowd below that had gathered to watch. When Climer was about twelve stories up, a piece of the building facade that he was holding onto came loose and Climer fell. He dropped only about three feet before the rope stopped him. Unfortunately, the ring to which he had tied his rope, due to long neglect, was no longer securely attached to the building. It pulled out as soon as weight was put on it, and Climer fell to the street below.
Climer fell away from the building and landed on the roof of a car that had stopped at the curb to let off a passenger. Climer was killed at once. The car was driven by Wife, who was, of course, shocked by the crash of Climer's body onto the roof of her car. Wife jumped out of her car and was immediately hit by Motorist, who was driving past in the next lane. Wife suffered several broken bones. Husband, who had just gotten out of the car, heard the impact of Climer's body on the roof and turned just in time to see his wife get hit by Motorist. As Husband rushed to Wife's aid, he was struck on the head by the metal ring to which the rope had been tied, and which had taken this long to fall from the roof of the building. As a result of the blow, Husband was left in an irreversible coma.
Many of the bystanders who saw Climer fall to his death were,
quite naturally, extremely upset. Disgusting as it is to contemplate,
some were actually spattered by Climer's blood. Another injury
occurred to Rescuer, who watched Climer from the other side of
the street. When Climer began to fall, Rescuer yelled "I'll
catch him" and darted across the street, where he was hit
by a Metro bus, suffering severe injuries.
DISCUSS ALL TORT CAUSES OF ACTION OF ARISING OUT OF THE FOREGOING
FACT SITUATION.
Ohner was the operator of a warehouse used for the storage of barrels of flammable liquid. Ohner imposed strict safety rules for his employees, including a prohibition against smoking inside or outside the warehouse. One day Employee was using a fork-lift to unload a truck containing pallets of containers of flammable liquid. The floor of the truck was higher than the level of the loading dock, so Employee used some wooden boards provided by Ohner for this purpose to make a ramp. The boards were rotten, however, and one broke while the fork-lift was on it. The forklift tipped over and spilled its load, causing the containers to break and spill their flammable contents over the loading dock. Employee was not injured, but was soaked with the flammable liquid. Trucker, the truck driver, had been smoking in the cab of the truck and climbed out to see what happened. With cigarette in mouth, Trucker walked up some stairs to the loading dock and tried to help Employee out of the tipped-over fork-lift. Employee got out of the cab of the fork-lift only to realize that Trucker's cigarette could ignite the flammable liquid. "Get that thing away from me," screamed Employee, backing away rapidly. Employee then fell backward off the loading dock, suffering severe injuries.
Ohner saw to it that Trucker's cigarette was put out and that
the spilled liquid was carefully mopped up with rags. An environmentally
careful operator, Ohner put the soaked rags in sealed bags and
placed them in a dumpster located on one side of the warehouse.
Ohner then called up Toxidump, a company that legally and properly
disposed of such toxic waste. Toxidump promised to have a truck
pick up the rags that evening. Ohner then went to the hospital
to visit Employee. Unfortunately, the dispatcher at Toxidump
misplaced Ohner's pickup request and no truck was sent. During
the night, spontaneous combustion caused the rags to burst into
flames. The fire spread to the side of the warehouse and was
out of control before the fire alarm rang. However, the fire
trucks could not reach the warehouse immediately because, in violation
of a municipal ordinance, the R.R. Railroad company had left a
train blocking the service road to the warehouse. By the time
R.R. moved the train and the fire trucks arrived, the flammable
liquid stored in the warehouse was burning and the fire had spread
to the neighboring warehouse, owned by the Neighborhood Grocery
Company, totally destroying it as well. When the debris of the
Neighborhood Grocery warehouse was inspected, investigators discovered
the body of Guard, the nighttime security guard. An autopsy revealed
that Guard had probably passed out from drinking alcoholic beverages
and died of smoke inhalation without regaining consciousness.
DISCUSS ALL TORT CAUSES OF ACTION OF ARISING OUT OF THE FOREGOING
FACT SITUATION.
Assume that after the fire described in the previous Question,,
Ohner comes to your law office to discuss filing suit against
the Acme Alarm Co., which manufactured and installed the fire
alarm at the warehouse. Ohner is convinced that the alarm system
was improperly manufactured or installed, and should have sounded
much earlier before the fire was so advanced. The contract between
Ohner and Acme for the installation of the alarm system, however,
has the following provision:
LIMITATION OF LIABILITY:
It is understood between the parties that Acme, by installing
this alarm system, does not become an insurer of the contents
of the warehouse, and that the price paid for this system is solely
for the components and services specified. Therefore, Acme shall
not be liable for any damages to the warehouse or its contents,
or for personal injury to any person, even if such damage or injury
is directly or indirectly caused by the performance or non-performance
of this alarm system, or by the negligence of Acme, its agents
or employees.
Ohner would like to know whether this clause will be effective
to shield Acme from liability for the damage to the warehouse.
Explain to Ohner when such clauses are effective, and discuss
the arguments that could be made on both sides regarding the enforceability
of this particular clause.
Highway 55 is a divided four lane highway with wide shoulders
that runs through gently rolling farm country. The maximum speed
limit is 55 miles per hour; there is no minimum speed and the
highway is not a "controlled access" road that limits
the types of motor vehicles that may use it. One clear summer
day Asa, a farmer, drove his farm tractor onto Highway 55, intending
to use it to reach one of his fields that could be entered from
the highway approximately two miles from his house. The maximum
speed of his farm tractor was 20 miles per hour, and Asa drove
at this speed in the right hand or "slow" lane.
Because of the noise of the tractor at this speed, Asa could
not hear a large tank truck approaching from behind. The tanker
rig consisted of a tank trailer owned by the Digger Oil Co. and
filled with gasoline, and a tractor owned and driven by Bert,
an independent trucker. Digger Oil Co. had hired Bert and his
truck to haul the gasoline to one of the company's service stations.
Bert was going 55 miles per hour and was therefore rapidly overtaking
Asa. Bert saw Asa's tractor disappear over the crest of a hill,
but he did not slow down. When Bert came over the crest of the
hill, he realized that Asa was going very slowly in the lane directly
ahead. Bert looked quickly in his mirror to change lanes and
go around Asa, but saw a small white car was beside him, trying
to pass. Tina was the driver of this car, and she had accelerated
to about 70 miles per hour in order to pass Bert's truck as quickly
as possible. Because Bert's rig blocked her view, she was not
aware of Asa's tractor up ahead. Bert, blocked from changing
lanes, hit his brakes. Tina shot ahead out of harm's way, but
the brakes on the tank trailer failed due to a poorly maintained
hose. The brakes on Bert's tractor worked just fine, however,
with the result that the rig jackknifed and skidded into Asa's
tractor. Asa was thrown from his seat onto the shoulder of the
road and knocked unconscious. The tank trailer tipped over and
burst open, spilling gasoline over the highway.
At this point, several things happened more or less simultaneously.
Tina, aware of the accident behind her, pulled her car over about
half a mile down the road, got out, and began running back to
the scene. Bert, badly shaken up, crawled out of the cab of his
truck with one thought: warning other traffic that might come
over the hill. Grabbing a flare, he staggered up the hill, lighting
the flare as he went. Bert had thought that he was clear of the
spilled gasoline, but the accumulation of gasoline vapor ignited
and caused several large explosions. Bert was badly burned, as
was Asa as he lay unconscious by the side of the road. The final
explosion, when the tank went up, knocked down Tina many yards
away, causing her a concussion. The burning debris spread to
the other side of the highway where Cal was driving his car in
the opposite direction. Terrified, Cal drove off the road and
his car turned over, injuring him and his passenger, Diane.
DISCUSS ALL TORT CAUSES OF ACTION ARISING OUT OF THE FOREGOING
FACT SITUATION.
While visiting a friend in the hospital, Alice was overcome with
the need to sneeze. Passing one of those carts full of medical
supplies of various sorts that clutter hospital corridors, Alice
noticed an unmarked plastic box that resembled a tissue dispenser.
Thinking she would quickly grab a tissue to cover her sneeze,
Alice stuck her fingers in the box. Her fingers were pricked
by several sharp needles. Alice yelled "OW" loud enough
to attract the attention of an orderly, who told her that the
box held used hypodermic needles until disposal. When Alice realized
that she had poked her fingers with used needles, her first thought
was that she might contract AIDS.
Five years have passed since Alice suffered her contact with
the needles. During those years, Alice has repeatedly been tested
for AIDS, but the results have always been negative. Nevertheless,
she has lived in constant fear of contracting the disease, and
not a day goes by but she worries about it. Fear and uncertaintly
have in fact nearly disabled her, and she has been unable to hold
a job or maintain any close relationships.
Alice sues the hospital for negligently inflicting this emotional
distress upon her. The jurisdiction where the suit is filed has
no controlling precedent on allowing emotional distress in this
situation. Research reveals that other jurisdictions are split
on whether to allow recovery for causing fear of harm, where the
physical harm has not and may not ever actually occur.
Write an essay discussing whether or not emotional distress damages should be allowed in these circumstances. Choose whichever side on this controversy you wish, but support your position with good policy and conceptual arguments, rather than simply citing what other jurisdictions have done.