Best Student Paper - Torts Exam

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Course / Session 20138 TORTS12 -Conk NA Section All Page 1 of 27
Institution Fordham University School of Law Exam Mode Closed Extegrity Exam4 > 13.4.29.0
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Institution Fordham University School of Law Course 20138 TORTS12 -Conk Instructor NA Exam Mode Closed
Exam ID E58233665
Count(s) Section Section Section Section Total 1 2 3 4
Word(s) 2075 1863 1081 584 5603
Char(s) 10201 9220 4945 2647 27013
Char(s) (WS) 12252 11062 6017 3222 32553
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Answer-to-Question-_1_
Summary of Facts Ameila Reardon of Brookline Massachusetts underwent a hip replacement and recieved a ASR Metallic Hip, which was made by Depuy Orthopedics. The ASR Metallic Hip was designed with a metal femoral ball that was in direct contact with the metal acetabular cup. The theory in this design was that it would reduce wear and allow the "total hip replacement system" to last longer than 15 years. In fact, the new design was substantial worse than the old - in that it had a 5 year revison rate of 12-13% rather than the typical 5%. Ms. Reardon's hip replacement caused pain due to uneven and excessive wear and had to be replaced in by November 2011. As a result of the replacement surgury she missed 9 months of work.
Claims we will Assert on Behalf of Ms. Reardon On behalf of Ms. Reardon we will bring breach of implied warranty of merchantability claims against Depuy. We can assert those claims on both a (1) a design defect theory and (2) a failure to warn theory. These claims will be brought in Massachusetts ("Mass.") state court, but Depuy will likely remove to federal court, but the applicable law is Mass. law. I will analyse each theory now in turn.
Massachusetts Product Liability Law
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The cause of action in Mass. for what in most jurisdiction would be called a "product liability action" is a breach of implied warranty action. Mass Gen Laws 2-314(2)(c). The implied warranty is "intended to be as comprehensive as the strict liability theory of other jurisdictions" See Osorio (citing Back). Massacusetts law is "crugent in nearly all respects with the Restatement (Second) of Torts 402A/
Design Defect Claim Under Mass. implied warranty law, products must be designed so that they are fit for the ordinary purposes for which such goods are used. A product is reasonably fit for its purposes if the design prevents the reasonably foreseeable risks attending the product's use in the setting. In this case, the ASR Metallic Hip must be reasonably safe to be used in individuals bodies. To determine if a product meets the standard of "reasonably safe," two approaches can be used (1) a consumer expectations test or (2) a risk-utility analysis. Both are appropriate under Mass. law, but a consumper expectation test is only employed when it is within the provine of the the jury to understand the defect. If expert testimony is needed, a risk-utility analysis is favored. Overall, the majority of cases in Mass., are tried on a risk-utility analysis. See e.g., Osorio.
Consumer Expectations Test
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This may be a case where Ms. Reardon could assert her claim on a consumer expectations theory. Under the consumer expectations test, a product is defective if it has failed to perform as safely as an ordinary consumer would expect when used in an intended and foreseeable way. See Barker; Restatement (2nd) 402A cmt. G. Here the jury could likely determine that the ASR Metallic Hip replacement was not designed in a way that the ordinary consumer would expect. It would be astonishing, to the ordinary consumer that the ASR Metallic hip, which was designed after research by Depuy to increase its longivity, we exist in a condition that result in an 8% increase in the chance that it would fail. Despite this, we must anticipate that Depuy may persuade the court to analyse this problem under a risk utility analysis (many defendant's lawyers have seen the risk-utility test as a victory for the defense bar, although some Plaintiff's lawyers prefer a risk-utility analysis also). I think that Ms. Reardon stands a good chance at recovery if the court employs a consumer expectations test.
Risk-Utility Analysis with the Barker FactorsU Ms. Reardon still has a strong chance at recovery if the court employs a risk-utility analysis. Mass. has adopted the factors used in Barker v. Lull Engineering, which were model on Professor Wade's famous "Wade Factors" The factors are (1) the gravity of the danger posed by the challenged design, (2) the
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likelihood that such danger would occur, (3) the mechanical feasibilty of a safter alternative design, (4) the financial cost of an improved design, and (5) the adverse consequences to the product and to the consumer that would result from an alternative design. Under these factors, Ms. Reardon stands a strong chance at recovery because the utility of the ASR Metallic Hip is quite low compared with a standard hip replacement.
1. Gravity of the Danger The gravity of the danger of the ASR Hip Replacement is quite high. The hip, which has an 12-13% high revision rate, must be be replaced otherwise a patient implanted with it will experience a life of pain and caused by foreign body inflammation. The patient would also experience reduced movement. To fix the problem, the patient must undergo another hip replacement surgury - which carries all the risks that a patient has going under surgury including the risk of going under general anthesia.
The gravity of the danger is high.
2. Liklihood Such Danger Would Occur Although the revision rate is only about 8% higher than that of a standard hip replacement, that is a signifigant risk that
many patients will experience the need to undergo a dangerous replacement surgury. Many patients recieve hip replacements each year so the likelihood that many patients will experience the
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impact of the defective ASR Metallic Hip is high. Indeed, a signifigant number of patients have reported trouble with the hip, as reported in the UK Natoinal Registry.
The likelihood of the danger, considering the number of people who recieve hip replacements, is also high.
3. Mechancial Feasibility of an Alternative Design Under Mass. implied warranty law, a plaintiffs case is not automatically defeated merely because they cannot prove the existence of an alterntive design. See Osorio. This is distinguishable from other jurisdictions like New Jersey, and the Third Restatement which require that the plaintiff prove the existent of a reasonable alternative design. See Hinjo v. NJM. However, in this case Ms. Reardon can strenghen her case because she can show a reasonably safer alternative design, the typical total hip replacement system, which has only a 5% revision rate compared with a the ASR revision rate of 12-13%. Depuy may argue that if the ASR Hip does not fail, it does in fact last longer than the typical hip replacement. However, this argument will not pose must of a challenge to us asserting a design defect claim because such an increased revision rate does not balance against increase longivitity. Additionally, there is nothing presenting in the facts to indicate that the Depuy hip even achieves this goal.
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4. The Financial Cost of an Improved Design More reasearch must be conducted to determine if the ASR Metallic Hip is more expensive or less expensive than the typical total hip replacement. It is not likely that this factor will present any signifigant problems for Ms. Reardon asserting her claim.
5. The Adverse Consequences to the Product This is also a strong point for Mrs. Reardon, the only basis that DePuy can assert as adverse is the argument that perhaps, if the hip does not fail, it lasts longer than the typical hip replacement. There is no evidence that has been provided, that shows that the hip replacement achieves this goal. Even if it did, it is hard to imagine a jury, whose province it is to weigh these factor (See Osorio), would determine in light of the increased failure that an "alternative" design, such as the typical hip replacement, really poses any adverse consequences to the consumer.
Through the Barker factors, Ms. Reardon has a strong claim for showing that the ASR Metallic Hip was defect in design.
Failure to Warn
The Product was defective because it did not have adequate warnings.
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Ms. Reardon can also assert a breach of implied warranty on a theory of failure to warn claim. Many product liability cases (and presumably implied warranty cases) are originally setup to be tried as designd defect claims and are then tried as warning claims. Commercial product sellers must provide sellers with warnings about the risks of injury posed by products. 402A cmt. I. Under Mass. law, a seller is required to give a warning against danger, if he has knowledge, or by the application of reasonable developed human skill and foresight should have knowledge of the danger. See Vassalo v. Baxter. A product manufacturer his held to a standard of expert knowledge and remains subject to a continuing duty to warn of risks discovered following the sale of a product. Id. The ASR Hip that Mrs. Reardon recieved did come with a few warnings including, importantly a warning that that the hip might fail because of of excessive physical activity, trauma, obesity, or excessive patient weight. The hip did include that there were potentional long term effects of metal wear and debris and metal
ion production. A failure in less than 3 years does not speak to this warning - especially because the traditional hip replacement has a life span of 15 years. Astonishingly, none of these warnings included that the hip could prematuraly fail as compared with the traditional hip. Depuy was aware of an increased failure rate as early as 2005,
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and Depuy scientists reported that the "ASR did not meet the set acceptance criteria" in 2007. Mrs. Reardon recived her ASR Metallic Hip Replacement in 2008, well after Depuy was aware of the problems with the ASR implant. Warnings must be designed in a fashion that allows the consumer to have a fair indication of the specific risks involved with the product. See Lewis V. Sea Ray Boats. Here Depuy was aware of the specific risk that the hip could fail earlier and they did not provide this information to Mrs. Reardon.
Causation Depuy could assert that Mrs. Reardon still would have had the ASR hip implant even if Depuy had noted the increased risk. However, this argument is of no consequence to our claim. A plaintiff may rely on the presumption to establish that an adequate warning would have been heeded. See McDarby v. Merck. The burden shifts to the defendant to show that the plaintiff would not have heeded such a warning. With the facts that are available now, there is no evidence that Depuy can point to that would indicate that Mrs. Reardon would have undergone the hip replacement surgury with an ASR metallic hip had she been aware of the increased revision rate.
Ms. Reardon has a strong breach of implied warranty claim on both a design defect and a failure to warn theory. Provide below is a synopsis of some of the weaknesses of the claim and how we
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can counter those weaknesses.
Weaknesses 1. Learned Intermediary Doctrine Depuy may assert that they should not be liable on a failure to warn theory because Mrs. Reardon's doctor, as a learned intermediary should have communicated to her the risks of the new design. This is not a strong defense. For one, the learned intermediary doctrine has recieved considerable critism in a market where companies advertise directly to consumers. See Perez v. Werth Labs (NJ). Additionally, there is no evidence provided to us right now that indicates that Mrs. Reardon physican recieved any warning from Depuy about the hip. 2. Depuy's argument that the failure of the hip was not because of its design, but because of some comparative fault of Ms. Reardon. On this point, first, Mass. does not reduce damage awards in implied warranty cases for comparative fault. See Osorio.
3. The warnings were adequate and Mrs. Reardon's hip failed becuase of her weight/or activity. Considering Mass. law's position on comparative fault this is not the strongest argument for Depuy. In addition, we do not currently have any information about Mrs. Reardon in terms of her weight or any activity that she may have done while she had the ASR Hip.
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Conclusion
Mrs. Reardon has a strong breach of implied warranty claim. Depuy produced an inferior product, was aware the product was inferior, fail to warn about the risks of the product compared to others, and as a result Mrs Reardon had to undergo another hip replacement surgury and missed nine months of work. On balance, I recommend that we assert this claim as a design defect claim - as the risk-utility factors from Barker are clearly in Mrs. Reardon's favor.
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Answer-to-Question-_2__
The accident that caused the death of John Force occured when Noah Pierre was attempting to make a turn and his view was obstructed by bushes on a property by owned by Garland and leased to Sunset Dental. We are anticipating summary judgment motions from Garland, Sunset Dental, and Pierre - I will analyse the defendant's arguments. I think it is unlikely that Sunset or Pierre will get summary judgment, but depending on the law in the
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jurisdiction Garland may recieve summary judgment. In order to prevail on a motion for summary judgment in a Negligence case, the defendant could either show (1) lack of a duty (which is a determination of law, or (2) that no reasonable juror could find that they were negligent.
Garland Garland's best possible argument for summary judgment will be that the ceeded control of the property to Sunset Dental and thus, they cannot be held liable. This would depend on the law in the jurisdiction. If Garland does not recieve summary judgment on this point than their arguments will be largely indentical to Sunset Dentals.
Sunset Dental (and Garland)
Sunset will not get summary judgment by showing they did not owe a duty.
Sunset may attempt to argue that they did not have a duty to maintain the bushes, and this cannot be held liable against Pierre's estate in a wrongful death or survival action. It is unlikely that Sunset will that they did not have a duty. An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm. When an actors conduct creates a risk of harm- a duty is found unless
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their is an articulated countervailing policy consideration that warrants denying or limiting liability. See Restatement (3rd) 7. Sunset (and Garland) created a dangerous condition on their propery by failing to trim the bushes. This conduct created a risk that motorists would not see cars while making turns in the intersectionof Levitt Parkway and Garfield Drive. There is no countervailing policy consideration like (1) insurer like liability or (2) claims that the judical system could not administer. There is nothing about this case that would create what the New York Court of Appeals describes as "crushing liability." Strauss v. Belle Realty. Sunset (and Garland's) conduct of failing to maintain the bushes created a risk of reasonable harm and thus a duty of reasonable care was owed.
There is a material dispute of fact about Sunset (and Garland's)negligent and whether they were both the but-for and proximate cause of the harm such that summary judgment is not appropriate. The determination of whether a party is negligent, that is that they breached their duty, is ordinarly one for the jury. See Pokora v. Wabash Ry.. However, in circumstances where no reasonable juror could differ, the court can decide as a matter of law that the defendant was not negligent. There is signifigant evidence both through statute and custom
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that that Sunset and Garland were negligent, so it is unlikely that they will assert a theory of summary judgment predicated on their lack of negligence. What is more likely is that they will argue that they were not the but-for cause of the harm. A defendant's conduct is the but-for cause of the harm if the harm would not have occured absent the conduct. See Restatement (3rd) Physical and Emotional Harm 26. Sunset and Garland will argue that the accident would have occured even if the bushes hadn't obstructed the Pierre's view of the road. The will use testimony from Noel, a passanger in the front seat, to who stated that the bushes did not obstruct her view and that she saw the motorcycle coming. At trial, this testimony would be juxaposed against the Plaintiff's engineering liability expert who has reported that the bushes did obstruct Pierre's view of eastbound traffic. Pierre would also testify at trial that the bushes obstructed her view. This conflicting testimony certainly creates a material dispute of fact about whether or not Sunset and Garlands untrimmed hedges contributed to the accident which killed Force. Summary judgment in such a case would be inappropriate, it is province of the jury to determine breach if their is dispute in the facts. See Andrews v. United Airlines.
Summary Judgment for Pierre
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Pierre will not argue that he did not owe a duty - all motorist owe their fellow motorists a duty of reasonable care under the circumstances. Negligence Pierre may argue that he was not negligent, meaning that under the circumstances (with the bushes) he showed reasonable care and that in a sense, the accident was unavoidable. Our plaintiff's liability experts testimony lends credibility to this testimony. However, Noel's testimony indicates that she looked to her left at the same time that Pierre was making his decison to turn and saw the motor cycle. On negligence, there is a material dispute about the facts such that summary judgment would not be appropriate. See Andrews v. United Airlines.
Causation Pierre's best argument for summary judgment is that she was not the proximate cause of the harm. An actors liability is limited to those physical harms that result from the risks that made the actor's conduct tortious. Restatement (3rd) 29; Palsgraf v. LIRR (Cardozo uses this "risk-rule" test to answer a scope of duty question). Pierre will use Bellizzi's testimony, which indicates that the overgrowth of the bushes "proximately caused" the harm. This argument does not warrant summary
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judgment. First, a conduct has to be a proximate cause of the harm not the proximate cause, thus multiple causes are possible and liability can still be upheld. Pierre may also argue that the overgrowth of the bushes is a superceeding cause. See Doe v. Manheimer, however A negligent defendant, whose conduct creates or increass the risk of particular harm and is a substantial factor in causing the harm, is not relieved of liability by the intervetion of another person, expert where the harm is intentionally caused by the third person and is not within the scope of the risk created by defendant's conduct. See Restatement (2nd) 442. Gardner and Sunsets negligent will not likely act as a superceeding cause under this rule. Summary judgment is not appropriate here, as their are material disputes of fact considering Pierre's negligent and his negligence causal relasionship to the harm that Force suffered.
Claims and Damages should we Survive Summary Judgment We can assert both a survival action and a wrongful death action in this case. A survial action provides for the recovery of damages by the deeased estate that the deceased could have obtained before death. This includes medical expenses, funeral costs, and in the majority of states pain and suffering can also be recovered. A wrongful death action requires (1) a death, (2) caused by wrongful conduct, (3) giving rise to a cause of action which
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could have been maintained at the moment of the death, by the decedent if death had not ensued, (4) survical by distibutes who have suffered pecuniary loss by reason of the death, and (5) appointment of a personal representative of the decedent. A wrongful death action is for the recovery of pecunary (economic) harm as a result of a wrongful death.
Negligence Claim Both the survival action and the wrongful death claim will require that the Force's prevail on a claim that one or all of Garland, Sunset Dentistry, and Pierre were Negligent. That is that they (1) owed a duty, (2) breached that duty, (3) the breach of that duty was both the but-for and proximate cause of the harm, (4) damages.
Duty
In analysing the prospective motions for summary judgment it is clear that Sunset and Pierre both owed duties of reasonable care to Force. Negligence for Sunset (and Garland if that do not recieve summary judgment)
At trial, we can advance evidence of Sunset and Garland negligence by appealing to but statutory and custom arguments. An action is negligent per se, an actor, without excuse, violates a
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statute designed to protect against the type of accident the actor caused and the accident victim is within the class of persons the statute is designed to protect. See Restatement (3rd) 14. Sunset and Garland violated the Townships Property Maintence Code, so this should establish negligence or serve as evidence of negligence. The determination of whether it will serve as negligence will depend on the law in the jurisdiction. In NY, the violation of a state statue is negligent per se, while a violation of a municipal ordinace constitutes evidence of negligence. See Elliot v. City of New York. (2001). Even if we are unable to establish negligence per se, this would be strong evidence of Garland and Sunset Dental's negligence. Sunset and Garland also breached the custom in theby violateed the AASHTO intersection design standards. Failure to comply with a custom, while not dispostive of negligence is evidence of negligence. See Trimarco v. Klien. There may be an argument that Garland or Sunset should not be charged with this custom as it comes from intersection design rather than the expertise of either plaintiff. However, Garland as a lessor of land should be charged with knowledge of how to maintain a property near a intersection
Neglience of Pierre The neglience of Pierre will be established in that he did
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not show reasonable care under the circumstances in executing the term. The testimony of Noah will serve as strong evidence of this. Whether this negligence was a proximate cause of the harm, discussed above, will be question for the jury to decide.
Damages Calculation
Under the survival action, the damages for the medical expenses and funeral expenses ($140,000) will easily be established as expenses between the time of injury and the time of death. The Ironworkers Local 48 welfare fund will have a lein on the recovery for the $20,000 in funeral expenses. Force's estate should also recovery for the pain and suffering of spending 10 days in the hospital on a morphine drip because of the results of the accident. We should consult databases to determine what similar juries have awarded in these cases. In the wrongful death action, Marilyn, Sean, and Mary should recover the amount of Force's lost wages with a substraction for what he would have spent on his own personal expenditures. To determine this figure, we should consult with a forensic economist to determine what possible salary increases Force would have been likely to recieve and to adjust these numbers to present value.
Comparative Fault The damages aware recieved will likely be reduced to a degree
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by John's negligence as a result of violating the posted speed of 25 MPH. Joh was traveling at a speed of 35 MPH. The jury will make a determation of John's fault the damage award will be reduced, assuming this a pure comparative fault state. If this a modified comparative fault state, recovery could be precluded if the jury determined that John was 50 (or in some jurisdictions 51% at faullt). It is unlikely that the jury would determine that John was more than 49% at fault.
Answer-to-Question-__3_
This is a case in which Samuel Gray, who was assisting his wife in preparing for a engagement party. Mary Gray is a florist and Samuel often helps out his wife, but he is not an employee of the florist. Mark, a professional caterer, was carrying a vase. The way that he was holding the vase was contested at trial with varing testimony. Mark testified that Sameul Gray was putting pressure on the vase, while Gray testified that he was holding the vase by the bottom. We represent Once Upon a Rose, Mary Gray, and Samuel Gray. On behalf of our clients, we will bring a motion for a directed
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verdict. Arguing, that no reasonable juror could find that Once Up a Rose or Samuel Gray were negligent. The grounds that we will make the motion for direct verdict on are that Mr. Gray's negligence did not cause the harm to Martin Mark. It is the province of the jury to determine whether or not a party is negligent. See Pokora v. Wabash Ry, however, when no reasonable jury could reach a different verdict it is appropriate for the court to rule as a matter of law.
Negligence for Holding the Vase
We will assert in our motion for directed verdict, that regardless of how the jury would find on who to believe in regard to how Mr. Gray was holding the vase, the jury could not find that this negligence was the legal cause of the harm that Mark suffered from the broken vase. An actors liability is limited to those physical harms that result from the risks that made the actor's conduct tortious. Restatement (3rd) 29. We will assert that the risk here was only to Mr. Gray in that he would hurt himself. In fact, Mark even said "you're going to hurt yourself." The reason Mark was injured was because he intervened to help Samuel Gray. However the jury would determine that Samuel was holding the vase is of no consequence. The harm would not have occured if Mark had not intervened, and Mark intervening was not with the scope of risk that would result from negligently holding a vase. See Palsgraf
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v. LIRR (determing that an actor is only responsible for harm within the scope of the risk of their conduct.
Negligence for Failing to Properly Inspect the Vase We will also bring a motion for directed verdict on the claims against Once Upon a Rose and Mary in relation to Mrs. Gray's failure to ensure that the vases used did not have chips and scratches. An actors conduct is negligent if the risk is of such a magnitude as to outweigh what the law regards as the utility of the act or the particular manner in which it is done. Restatement (2nd) Torts 282. A helpful formula from Learned Hand states that, if the Burden of taking the precaution is less than the combination of the probablity and gravity of the harm an act is negligent. See US v. Caroll Towing. Actors are under a duty of reasonable care, that is to take reasonable precautions "to minimize resulting perils." Adams v. Bullock. No jury could find that Mrs. Gray was not reasonably careful, she stored the vases in individual boxes, she testified that she checked all the vases for cracks and found none, and that she would have removed an vase that had been found chipped or cracked. No testimony was presented at trial to the contrary on this evidence. Under these, circumstances we will argue that no jury could have found that Mrs. Gray failed to exercise reasonable care.
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How the Judge should Rule?
Mr. Gray's Negligence On the motion for directed verdict for Mr. Gray's negligence in holding the judge, the judge should deny the motion for a directed verdict. Conflicting testimony was presented at trial in terms of how Mr. Gray was holding the vase. Actors are under a duty of reasonable care to protect others from their conduct, which causes a risk. The jury should be free to determine whether or not Mr. Gray's conduct was that which could cause a risk to others and whether or not he used reasonable care in carrying the vase.
Mrs. Gray's Negligence A directed verdict is probably approrpiate for the negligence claims against Mrs. Gray and for failure to properly store/inspect the vases prior to using them for the engagement party. It is a bed rock principle of negligence, that individuals are only responsible for their unreasonable behavior. Adams v. Bullock. The law of Negligence balances between liberty and security. From the testimony presented at trial, there is no evidence that Mrs. Gray behaved negligently (that is unreasonable) in anyway, shape, or form.
Instructions for the Jury The jury should be instructefd that their function is to
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decide what has or has not been proved and apply the rules of law that the judge gives to the facts as you find them to be. NJ PJI 1:6. Mr. Gray owed Mark a duty of reasonable care, because he was engaging in risky behavior carrying a vase. At trial, it you heard conflicting testimony on how Mr. Gray was holding the vase. It is your duty to weigh this testimony and determine who you find to be credible. If you find that Mr. Gray behaved in a way that was not reasonable under the circumstances, you should find that his conduct was negligent. You are the sole and exlcusive judges of that fact. You must also determine whether or not Mr. Gray's negligence was the but-for cause of the harm. A harm is the but-for cause if it would not have occured absent the conduct. Restatement (3rd) 26. If you find that Mark would not have been injured absent the conduct of Mr. Gray, then Mr. Gray's conduct was the but-for cause of the harm You most also determine whether or not Mr. Gray's negligence was a proximate cause of the harm. An act is the proximate cause of harm if it is a substantial factor in bringing about the resulting accident. NJ General Charge 6:11. What is meant by substantial, is that it is not remote, trivial, or inconsequential. Thus, if you find that Mr. Gray's behavior in carrying the vase was a substantial factor in causing the harm you should find that it was the proximate cause. Any negligence of Mark does not preclude a finding that Mr. Gray was negligent.
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Answer-to-Question-_4__
In this case Walter Holmes was injured when he slipped on the ice in a parking lot of Lowes, Bally Total Fitness, Matress Giant, and Staples. Lowes had shared right to use the parking lot for delivery, customer parking, and other uses on a thirty year lease. I recommend we decline this case unless the plaintiffs would be willing to proceed without a contigent fee structure. Lowes did not have control of the land, and therefore it is unlikly that it owned a duty to entrants on the land. 52. The court might find that Lowes was a land possessor though - which would make recovery likely.
Lessee with Duty of Care A lessor owes to the lesse and all other entrants a duty of reasonable care under 51 for those portions of the leased premises over wich the lessor retains control. The lease that Lowes had signed with Price Legacy and Kimco Realty Corpration provided that Lowe's had a shared right to use the parking lot for delivery, customer parking, and "other uses incidental to the operation of a home supply retail store.
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Section 8(I) of the lease specifically provided that the landlord was to maintain the snow removal. The court would likely interpret this to mean that Price Legacy and Kimco Realty Corporation had retained control of the parking area.
Possessor of Land Similarly, it is unlikely that the court would determine that Lowes was a possesor of the land. While a possessor of land does not have to own the land - under the 3rd Restatement, an individual occupies and controls the land if they are entitled to immediate occupation and control of the land. It is not entirely clear from the facts if Lowes was suffiently entiteld to immediate occupation of the land. They were certainly entitled to use the land as a parking area pursant to the lease. However, they shared the parking lot with the other individuals in the store and the landlor retained contorl of the lot for purposes of maintence. Howeever, it is possible that the court could determine that Lowes had a duty of reasonable care to maintain the land if it is seen as partially a possessor with the othe stores in the lot. If Found to be A Poessor or in Control of the Land. If Lowes is found to be a possessor they owed a duty of reasonable care to Walter Holmes. It is of no consequence whether the court follows the common law categories of distinctions or adopts the 3rd Restatement approach, which follows Rowland. Walter Homes was probably be a business invitee, assuming that
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his purposes for being in the lot was to purchasing something from Lowes. The court could deem him to be a licensee if he had merely parking in the parking lot and did not intend to patronize the stores.
Negligent However, this is still a week case even if the court establishes that Lowes owed Holmes a duty of care. A jury would be likely to find that Lowes was not negligent. The landlord had hired a company to handling the plowing and the company had both plowed and salted. This woudl require the jury to determine if Lowes had enough notice of the condition to either remedy it or warn about it. See Negri; Gordon v. American Musuem. If Lowes was found to owe land possesor duty and found to be negligent Holmes could prevail. This is unlikey.

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E58233665

Count(s) Section Section Section Section Total 1 2 3 4

Word(s) 2075 1863 1081 584 5603

Char(s) 10201 9220 4945 2647 27013

Char(s) (WS) 12252 11062 6017 3222 32553

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