JOSEPH E. DWORAK
SECOND MID TERM EXAMINATION
This examination is a fillin examination. You are required to read the Factual Pattern. After you read the Factual Pattern, proceed to the second section of the Examination. The second section of the Examination contains a report. You will note that there are numbers throughout the report. A word or phrase has to be associated with each number to make the sentence substantively or meaningfully correct. Utilizing the words listed on the Answer Sheet at the end of the Examination, choose the word or phrase that best fits. Write the number next to the corresponding word or phrase on the list at the end of the Examination. YOU MUST PRINT THE ANSWERS CLEARLY. THE BLANKS CORRESPOND TO THE NUMBER IN THE NARRATIVE.
You are the Vice President of Risk Management at Donald Development (“DD”). Each quarter you are required to report on claims made against DD, and provide your analysis for DD’s Chief Executive Officer. The CEO has asked you to render a report because you are the only one in the company who has taken a business law course. The CEO wants your assessment and recommendations about issues he needs to be aware of before doing anything further.
This Report addresses the legal issues and claims against DD for the first quarter ending March 31, 2019. In this report I will address the claims made. On most of the claims we are covered by insurance. The policy is generally referred to as a (1) policy. I will address the procedures we need to follow to preserve the (2) of these claims by our insurance company. There are other claims which dealt with areas which DD decided not buy insurance to cover and for these claims DD will be (3).
The protection of coverage DD has is determined by the (4) which is a dollar amount. If a claim exceeds this dollar amount the (5) will be the responsibility of DD subject to caveats discussed below. I have looked at some of the claims made, and in a couple of the lawsuits multiple theories of recovery are included. In other words, in one case the plaintiff has sued DD for the unintentional tort of (6), which is a (7), but has also included an intentional tort claim. The later claim typically is not covered by our insurance because of the (8) of not wanting to directly or indirectly encourage the commission of intentional wrongful act.
I will quickly review what we should expect once we present or (9) to our insurance company a lawsuit which has both covered and uncovered claims or legal theories of recovery which in California are referred to as (10). One presented the insurance company will review the policy and first examine the (11) of the policy to determine the scope of coverage. However, that provision is not dispositive and the section of the policy which outlines (12) will also be reviewed. Those sections need to be reviewed in conjunction with each other to determine if (13) will be extended. Sometimes the insurance company is not prepared to make a definitive statement on whether the protection DD paid for by making its annual (14) will be granted. It is unlikely that coverage will be denied simply because the insurance company is uncertain of coverage because typically insurance companies do not want to be sued for (15). Denial of claims can render the insurance company liable to its insured which in our case is DD not only for damages to make the insured whole or (16), but also for additional damages to deter such conduct which damages are typically called (17) damages.
Therefore, rather the receiving a denial of coverage, DD should expect to receive a (18). The significance of this missive is that the insurance company is not prepared to extend full coverage and is not yet prepared to recognize its (19), but will recognize its (20). If this happens then the insurance company will find DD a lawyer who typically is referred to as (21), and will be paid by the insurance company in an amount generally referred to as (22). The insurance company will handle the litigation, but we should monitor what is occurring because the claim may or may not be covered. The interest of DD is to have the claim covered. However, it is in the insurance company’s pecuniary interest not to have the claim covered. Although the lawyer hired for DD by the insurance company has a (23) to DD, sometimes the lawyer may have a conflict and DD may become concerned that DD’s interests are not being protected. If this occurs, DD should be prepared to make an application to the California court where the action is pending for the appointment of (24).
Now that I have covered insurance issue I will address each of the claims. The first claim deals with a hotel DD built in San Francisco which needed to be demolished. The industry standard is to locate explosive in the abandoned building and ignite them in a predetermined sequence. The result is that the building falls onto itself or “pancakes,” and the ruble is then removed. DD has done this many times before and has always followed industry standard. Unfortunately, after the explosives where ignited the building fell to the side causing considerable property damage and personal injury. DD did everything possible and all the experts and governmental regulators can find no fault with what DD did. Since we followed the requisite standard of care, I thought that no (25) claim could be successfully be brought, and I still believe that to be true. However, that unintentional tort is not the standard which will be applied. Instead the claim will be under the theory of (26) because DD was completing an (27) activity.
The next claim deals with our construction development site of our new commercial project in San Diego. A pit was dug and rebar installed to allow for the pouring of a concrete foundation. Typically, the pit is fenced off, but the night before the pour the construction supervisor followed the practice of not reinstalling the fence to save time in pouring the concrete. If the fence had to be taken down the morning of the pour sometimes the concrete will dry in the concrete trucks while the trucks wait. Unfortunately, several intruders entered the construction site during the night to steal copper for DD’s storage. One of the persons fell into the pit and was impaled on the steel rods or rebar. The question raised is whether DD has liability to this person. Looking at the issue from a negligence perspective the question is whether we can defend the case because the injured person was a criminal (28). In many jurisdictions a person who has been injured on another’s real property and brings a personal injury claim typically referred to as a (29) claim has to establish their lawful presence on the property either as one who has a contractual right to be there as a (30) or one who is legally on the property without a contractual right and is considered to be an (31). However, California does follow this approach and the (32) of the injured person is not determinative. Rather, the courts examine the reasonableness of our conduct and the condition of the property. If the property is found to have an (33) dangerous condition then DD will be liable to the injured person even though at the time of the injury they had no legal right to be on the property.
No doubt you will want to know what formula or written guidelines we can provide to the employees of DD regarding how to protect against liability for negligence. Unfortunately, there is no “magic” procedure, but we can insist that DD’s employees be vigilant and diligent, and constantly assess risk. The assessment they should always be aware of is the (34) that any condition may cause an injury and the (35) if the injury occurs. If both of these factors are at a high level, then the preventative actions DD must follow are greater. However, DD can take solace in knowing that even in California, DD is not the (36) of anyone’s safety. Rather DD’s liability for a negligence claim requires the plaintiff to show that DD (37) to that person because it was (38) that DD’s conduct would impact that person, and that DD (39) which as a proximate result (40) damages in the nature of (41). Unlike a claim for intentional tort, if as a result of DD’s negligence the only injury is for (42) no recovery will be allowed.
Even though DD can be sued by the criminal because the injury occurred on DD’s property, it does not mean that DD will necessarily be liable. DD might be able to assert defenses. If it can be shown that the plaintiff knew of the risk posed by the open foundation pit, and nevertheless decided to climb through it DD can assert the defense of (43). This defense differs for another common defense of (44) which requires DD to establish that the injury suffered by the plaintiff was, in part, caused by plaintiff’s failure to exercise due care. If this later defense is applicable, it will not be a complete defense because California adopts a standard of (45).
The most unusual case we have is the one involving our Sacramento hotel. A person entered the hotel and for reasons not one can detect including all experts and governmental official the chandelier simply fell from the ceiling. Since no one knows why, and I thought that DD could escape liability because one of the elements necessary for a negligence claim is absent. Simply put, DD did nothing wrong. The chandelier was properly installed at the time, and was not meant to be touched, and was not touched. However, although the plaintiff would have an impossible task in establishing any breach of due care on the part of DD, the plaintiff does not have to under the doctrine of (46). Since this happened and could happen again, DD should be more vigilant in doing inspections. In particular, DD should confirm it is in compliance with all local and state ordinances and statutes which are for public safety. The reason DD should is because if an injury occurs as a result of failing to comply with these statutes or ordinances DD may have liability under the doctrine of (47) even if DD has otherwise acted reasonably.
The last claim deals with alcohol. We have two claims. One of these involves a patron of one of DD’s restaurants. An adult who was obviously intoxicated was served by our bartender. She then left, and tried to drive home. She did not make it. She hit a telephone pole and a pedestrian who was seriously injured. The driver has no substantial assets, and the injured party is suing DD claiming that DD as the server of alcohol has liability to the injured person. This civil liability is referred to as (48) liability in California, and differs from (49) administrative law liability DD may have to California’s Alcohol Beverage and Control Board (“ABC”), or possible criminal liability.
Absent other factors which may be present which I will discuss below, DD’s civil liability is limited to the injuries caused by DD’s sale of alcohol to an (50). If the facts show that the person who caused the injury was an employee who was (51) then DD would have liability. Also, if the drunk driver was a regular, and DD’s bartender would normally call her an UBER ride, but did not get around to it this time then DD would have liability not because DD served her alcohol but because a (52) was created. However, I have learned that a friend of the drunk driver took the drunk driver’s car keys, and gave them to our bartender who gave them back to the driver after the driver had been drinking. If this did occur then DD may have legal liability to the injured person because a (53) can be shown unless we can prove DD’s bartender acted reasonably when returning the keys.
The other claim deals with an office party attended by both employees and quests of DD’s employees. DD was not selling alcohol, but was providing it as a (54). One of the guests drank too much and hit another guest. The injured guest is suing DD. Both the victim and perpetrator are adults. Normally, under California’s statute we would have no liability. However, it seems that we hired bouncer to protect those attending the party, and for whatever reason he was not doing his job. Hence, it is likely that DD will have liability not as a (55), but as (56). In all alcohol related cases which go to trial DD should be concerned about the jury’s award of (57). To protect DD our lawyer should do the best she can in screening potential jurors during (58). If DD loses at trial an the claim is not covered by insurance, and a judgment is entered against DD, DD’s property which is not exempt is subject to be seized by an duly issued and served (59).
BUS 80, SPRING 2019, FIRST MIDTERM
Action w/in the course and scope of her employment
Assumption of the risk
Breach of that duty
Cause of action
Duty to defend
Duty to indemnify
Excess above the limits
First party bad faith
Insurance defense counsel
Negligence per se
Obviously intoxicated minor
Owed a duty of care
Personal injury or property damage
Probability that a condition
Res ipsa loquitor
Reservation of rights
writs of execution