FLORIDA ESSAY WRITING WORKSHOP PROFESSOR CHARLTON COPELAND UNIVERSITY OF MIAMI SCHOOL OF LAW

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1 FLORIDA ESSAY WRITING WORKSHOP PROFESSOR CHARLTON COPELAND UNIVERSITY OF MIAMI SCHOOL OF LAW CHAPTER 1: HOW TO WRITE A SUPERIOR FLORIDA ESSAY ANSWER A. GENERALLY There are a ttal f raw pints n the essay prtin f the Flrida day prtin. Yu can gain tremendus grund by ding well n the essays. The examiners are nt attempting t trick yu with questins as yu might have encuntered in law schl. If yu are using a laptp fr the essay prtin f the exam, practice all yur essay questins with yur laptp. If yu handwrite yur essays, make sure it is. Yu start at zer pints and gain pints fr crrect respnses; yu are nt penalized fr incrrect answers, s write t the end and never leave early. Essays are ut f 100 pints, and a passing scre nrmally ranges frm pints depending n the subject. The vast majrity f pints are cming frm crrect rule statements, issue identificatin and the crrelating analysis. B. HOW TO SUCCESSFULLY READ EACH QUESTION Read the Fact Pattern first! Reading the fact pattern allws yu t determine what subject(s) is being tested, and specifically what yu are called t d. The questin is exactly what the examiners want yu t answer. Read the fact pattern. Read first t get the verall picture f the fact pattern. On the secnd reading, take ntes n specific issue r facts, rules f law and their exceptins, and pssible cunter-arguments. C. GENERAL TIPS FOR GETTING READY FOR ESSAY PORTION OF EXAM T prepare, cndense yur subject utlines t pages r fewer. Fur stages t Exam Success: Stage 1. Tell Stries. Review Practice Essay Questins t see hw issues arise. Begin t tell stries in yur wn wrds that give rise t the legal issues. Vary the fact pattern in ways that alter the utcme.

2 Stage 2. Answer a Practice Essay Questin with an bk and time limit. Practice utlining yur answer, and test yur utline against yur ntes and sample answers fr its thrughness and cverage f the material. Stage 3. Answer a Practice Essay Questin with an pen bk and a time limit. Stage 4. Answer the Graded Essay Questin (hmewrk) under bar exam cnditins: bk and time limit. When ding practice essays, understand that these are learning devices fr yur graded essays. Yu want t g thrugh the stages f issue sptting and spend 15 minutes n that, while leaving the remaining 45 minutes t review the sample answer and learn frm it. D. READ, OUTLINE, THEN WRITE READ Read the facts first fr cmprehensin t identify each subject that is being tested ( the big picture ). Read it again and underline r circle key facts t understand: What has happened factually? Wh are the parties? What is the legal prblem? OUTLINE D nt begin writing immediately. Instead, yur answer. Yur utline is yur radmap fr yur essay questin. Yur utline allws yu t rganize yur time and thughts. Yur utline shuld match facts t legal issues. Yur utline will help yu t identify fact gaps. WRITE Structuring yur essay answer get yu pints: fllw the call f the questin (e.g. prepare a memrandum), and use sectin r ther rganizatinal tls. Write paragraphs; this makes it easier t read and grade. Remember t use crrect legal terminlgy, and all legal terms used. The Flrida bar examiners are testing yur ability t: Crrectly identify the f law presented; Demnstrate yur substantive knwledge f the legal and principles; and Crrectly analyze and the facts in the questin t the apprpriate rule f law. Make a succinct pint, cunter-pint analysis Themis Bar Review, LLC Flrida Essay Wrkshp

3 Use IRAC: I-Issue Statement: "The issue is whether " R-Rule statement- "In Flrida, frmatin f a cntract requires " A- Analysis sectin- "Here, there was an ffer because " C-Cnclusin- "Therefre, there was a valid cntract." Taken tgether these instructins, and thse taken frm the Flrida Bar essay questins, are cnsistent with the rules that yu already knw. Make sure that yur analysis cnsistently includes the facts f the fact pattern. They must be included in the essay answer and restated in yur wn wrds. We recmmend a separate paragraph fr each f these IRAC sectins, even when the sectin nly requires ne sentence. Fr analysis, make causal cnnectin between the rule and the fact in the fact pattern. Yu need t restate the fact in a way that links it t the rule. "Here, [rule] was met because [statement f facts]." Clser t the exam, practice several f the same subject essays tgether; yu will see the same legal cncepts applied t different facts. Create fr yurself Canned Answers fr the rule statements. Try t plan ut what yu are ging t say fr sme f the bigger subtpics in the essay befre yu even walk int the exam rm Themis Bar Review, LLC Flrida Essay Wrkshp

4 CHAPTER 2: ESSAY QUESTION #1 Driver s car cllided with Victr s car in Beach Cunty, Flrida, and Victr was killed. Driver is President and Chief Executive Officer f Leasc, a private crpratin that leases and perates a hspital wned by Beach Cunty. The lease prvides that Leasc will pay a certain dllar amunt t the cunty each year, indemnify it frm liability arising frm peratin f the hspital, and ne member f the cunty cmmissin shall serve as a member f the seven-member bard f directrs f Leasc. One mnth prir t the Driver/Victr cllisin, Leasc s bard f directrs, in respnse t cmplaints, held a meeting t discuss Driver s erratic behavir and pssible substance abuse prblems. At that time, the bard decided t take a wait-and-see apprach t Driver s behavir. The Beach Cunty Sheriff is investigating the cllisin and asks a circuit curt judge t issue a subpena t btain Driver s medical recrds frm his family dctr. Driver is given ntice f the subpena request as required by law and, speaking thrugh his attrney, bjects t the subpena. The persnal representative f Victr s estate is cnsidering filing a wrngful death actin against Driver, Leasc, r bth. The persnal representative makes a public recrds request t Leasc, seeking cpies f any minutes f meetings f the bard f directrs where Driver s emplyment status was discussed and a cpy f Driver s persnnel file. Leasc refuses t prvide the dcuments. The persnal representative seeks a curt rder t direct Leasc t prduce the dcuments. Driver intervenes. Driver argues that releasing his persnnel file wuld be bth uncnstitutinal and in vilatin f a law recently passed by the Flrida Legislature. The recent law exempts persnnel files frm the disclsure as public recrds and the legislature made a finding that such exemptin is necessary t prtect the public health, safety, and welfare. Discuss the issues relating t the availability f the medical recrds, bard minutes, and persnnel file arising under the Flrida Cnstitutin. Als, discuss the cnstitutinality f the law recently passed by the Flrida Legislature Themis Bar Review, LLC Flrida Essay Wrkshp

5 Sample utline f Answer #1 A. MEDICAL RECORDS Determining whether Driver has any arguments against the disclsure f medical recrds Flrida Rules f Civil Prcedure subpena may be issued fr prductin f evidence, where the request is nt unreasnable r ppressive. If n criminal r civil actin has cmmenced, then subpena request may be inapprpriate. Flrida Rule f Civil Prcedure recgnizes the cmmn-law patient-physician privilege. Hwever, a physician must cmply with a valid subpena. Flrida Cnstitutinal Law the Flrida Cnstitutin cntains a right t privacy, which prtects individuals frm gvernment intrusins. The subpena request by the sheriff cnstitutes gvernment actin. The standard fr invading an individual s right t privacy is a cmpelling gvernment interest that is narrwly tailred. Is the criminal investigatin a cmpelling gvernment interest? Is it narrwly tailred? B. BOARD MINUTES Determining whether the Driver has arguments against the disclsure f the Bard minutes Flrida Cnstitutinal Law citizens have a right t access public recrds made in cnjunctin with the fficial business f the public bdy, fficer, r emplyee f the state. Is Leasc a public bdy fr purpses f the Flrida Cnstitutin? What is the effect f Leasc s peratin f the cunty-wned hspital? Des the service f the cunty cmmissiner (an fficer f the state) transfrm the Leasc meetings int public meetings under the Flrida Cnstitutin? The cunty cmmissiner serves in his/her fficial capacity. Was the Leasc meeting regarding Driver s alleged erratic behavir utside the realm f fficial business fr purpses f the Flrida Cnstitutin? C. PERSONNEL FILE Is Driver s file a public recrd fr purpses f the Flrida Cnstitutin? If Leasc is a public bdy, then any act related t its fficial business is a public recrd whse disclsure is apprpriate. Even if the file must be disclsed pursuant t the Flrida Cnstitutin s grant f the right f access t public recrds, des such a disclsure vilate Driver s right t privacy? This is identical t the analysis fr Driver s medical recrds, requiring a narrwly-tailred apprach t meet a cmpelling gvernment interest. D. CONSTITUTIONALITY OF THE FLORIDA STATUTE Flrida Cnstitutinal Law: A statute must (1) embrace nly ne subject; (2) have language that is nt vague r verbrad; and (3) be reasnably related t the public welfare. Des the statute cmprt with these criteria? Themis Bar Review, LLC Flrida Essay Wrkshp

6 T the extent that the Flrida Cnstitutin allws exceptins frm its disclsure requirements, the exceptins must be in the service f the public interest. Des the statute s justificatin f public health, safety and welfare cmprt with the requirement that the public necessity fr the exceptin be stated specifically? Des a statute that exempts all persnnel recrd frm disclsure sweep t bradly? Themis Bar Review, LLC Flrida Essay Wrkshp

7 Sample Answer I. Medical Recrds Driver has three pssible arguments under the Flrida Cnstitutin as t why his medical recrds shuld nt be made available t the Beach Cunty Sheriff: (i) imprper subpena, (ii) physician-patient privilege, and (iii) right t privacy. A. Imprper Subpena In Flrida, a subpena may be issued fr the prductin f tangible evidence and may be issued by the clerk f the curt r any attrney n recrd in an actin, s lng as the request is nt unreasnable r ppressive. Nrmally, a subpena is issued as a discvery tl. Here, a criminal r civil case has yet t be filed in cnjunctin with the accident. Driver may argue that, because n charges have been brught against him fr the accident, the Beach Cunty Sheriff is nt entitled t any discvery. Therefre, the subpena may nt be prper, and Driver and his physician may nt be cmpelled t turn ver the medical recrds. B. Physician-Patient Privilege Driver may als argue that his medical recrds are prtected by the physician-patient privilege. Flrida fllws the cmmn law and has nt cdified a specific evidentiary physician-patient privilege. Instead, Flrida prhibits a physician frm discussing a patient s medical issues withut the cnsent f the patient. Hwever, this is nt an evidentiary privilege, and if a curt gives ntice t the patient and cmpels the physician t prvide medical recrds, the physician must cmply. Here, if the subpena is valid, Driver s family physician must release his medical recrds despite Driver s bjectins. C. Right t Privacy Finally, Driver may argue that the subpena vilates his right t privacy. The Flrida Cnstitutin cntains a right t privacy that prvides each citizen with the right t be left alne frm gvernment intrusin. Driver may argue that the subpena requested by the Beach Cunty Sheriff and issued by the curt is gvernmental actin that infringes upn this right. All challenges t an individual s right t privacy are subject t a strict-scrutiny test. Thus, the gvernment must have a cmpelling interest, and the actin must be narrwly tailred. Here, althugh the Beach Cunty Sheriff has a cmpelling interest as a public fficial investigating a crime, his investigative means may nt qualify as narrwly tailred. The sheriff may be required t first use traditinal investigatin techniques t gather enugh evidence t charge Driver with a crime. Only after Driver is charged with a crime may the curt issue a subpena fr the medical recrds t prtect Driver s right t privacy. II. Bard Minutes Every persn has a right t access public recrds and meetings under the Flrida Cnstitutin. This right includes the right t inspect r cpy any public recrd made r received in cnnectin with the fficial business f any public bdy, fficer, r emplyee f the state Themis Bar Review, LLC Flrida Essay Wrkshp

8 Victr s persnal representative has tw arguments that he has a right t cpies f the bard meeting minutes. First, he can argue that Leasc is a public bdy within the meaning f the Flrida Cnstitutin. Althugh Leasc is a private crpratin, it des business with Beach Cunty. The cmpany leases and perates a hspital that the cunty wns. Victr s persnal representative can argue that Leasc makes decisins in bard meetings that affect the cunty because f the cunty s wnership interest. Therefre, he can argue, Leasc is, at least in part, a public bdy. In respnse, Leasc can argue that it is nt a public bdy because it merely leases the space frm the cunty t run the hspital, and the cunty retains n rights in the lease t cntrl r perate the hspital. As such, Leasc is purely a private business venture and nt subject t a public recrds request. Secnd, Victr s persnal representative can argue that he has a right t access Leasc s bard meeting minutes because a member f the cunty cmmissin was present at the meeting. The Flrida Cnstitutin allws access t any recrd made r received in cnnectin with the fficial business f any fficer f the state. He can argue that the cunty cmmissiner is an fficer f the state and that part f his fficial business as a cunty cmmissiner is t sit n Leasc s bard f directrs. Leasc, n the ther hand, is likely t argue that the cunty cmmissiner was nt ffered a spt n the bard in his fficial capacity as cmmissiner and that the meeting did nt invlve any f his fficial business as cmmissiner. The curt will have t decide this fact. Hwever, the lease prvisin that requires a cunty cmmissiner t sit n Leasc s bard f directrs aids the persnal representative s argument that being at the meeting was part f the cmmissiner s fficial business. Ntwithstanding these arguments, Leasc is likely t ffer the defense that the bard f directrs meeting was utside the realm f fficial business. Leasc is in the business f running a hspital. In cntrast, the meeting in questin cncerned Driver s erratic behavir and pssible substance abuse prblem. Althugh Driver is the president and chief executive fficer f Leasc, there is nthing in the facts t indicate that the bard f directrs discussed Driver in any fficial capacity r discussed hw his persnal prblems affected the business. The persnal representative may cunter by ffering the argument that the erratic behavir and pssible substance-abuse prblem f the president f a crpratin affects the crpratin and was the tpic f the meeting. III. Persnnel File Driver has tw pssible arguments against the release f his persnnel file. First, it is nt a public recrd, and therefre the curt cannt rder its release. As was discussed in the previus sectin, this argument turns n whether Leasc is cnsidered a public bdy. If Leasc is cnsidered a public bdy, then any persnnel recrd, because it relates t fficial business, culd be btained with a publicrecrds request. Secnd, Driver can argue that release f his persnnel file is an invasin f his privacy, vilating the Flrida Cnstitutin, as it cnstitutes unnecessary gvernment intrusin. Because Victr s persnal representative has nt yet filed suit against Driver, this argument has merit. There appears t be n justificatin n these facts that Victr s persnal representative be given access t Driver s persnnel file Themis Bar Review, LLC Flrida Essay Wrkshp

9 IV. The Cnstitutinality f the Statute The persnal representative can successfully challenge the cnstitutinality f the new statute that exempts persnnel files frm disclsure as public recrds. In Flrida, a statute must: (i) nly embrace ne subject, which must be briefly expressed in the statute title; (ii) have language that is nt vague r verbrad; and (iii) must be reasnably related t the public welfare. Here, the statute seems t meet all f these requirements because it is related t ne subject, des nt seem t be verbrad, and seems reasnably related t the public welfare. The law is missing a title, hwever, which may be prblematic. Additinally, the Flrida Cnstitutin prvides that the legislature may enact a statute that exempts certain items frm disclsure as a public recrd, s lng as the law states with specificity the public necessity justifying the exemptin and is n brader than necessary t accmplish the stated purpse f the law. The statute in questin des nt seem t meet these criteria. First, the statute des nt specifically state the public necessity, but instead generally states that the exemptin is necessary t prtect the public health, safety, and welfare. Secnd, the statute des nt seem t be sufficiently narrwly tailred t meet cnstitutinal requirements. The statute exempts all persnnel files frm being disclsed as public recrds, and it fails t take int accunt pssible lawsuits against public fficials in which their jb perfrmance is at issue. Therefre, the statute is likely uncnstitutinal. Themis Bar Review. All rights reserved Themis Bar Review, LLC Flrida Essay Wrkshp

10 CHAPTER 3: ESSAY QUESTION #2 Acme Prducts, Inc. (Acme), a Flrida crpratin, manufactures small pwer tls. One f its prducts is an electric-pwered nail gun. Acme s reginal sales manager calls n Basic Rentals (Rentals), anther Flrida crpratin which perates several utlets in Flrida. Acme s sales manager tells Rental s president that Acme s nail gun is safe, dependable, affrdable, durable, and can be used fr nailing all types f wd and wd prducts. Rentals buys 50 f Acme s nail guns at $200 each and sends them t its utlets fr rental. Penny wants t make a piece f furniture frm Brazilian walnut, a very hard wd. She ges t the nearby Tampa, Flrida, stre f Rentals and she rents a nail gun manufactured by Acme. The nail gun sat n tp f Acme s riginal shipping cartn. The fllwing statement was printed n the utside f the cartn: Suitable fr nailing all types f wd and wd prducts. When Penny attempts t nail tw pieces f wd tgether, the ejected nail frm the nail gun fails t penetrate the wd, bunces backward, and strikes Penny in the left eye, resulting in a ttal, permanent lss f visin in that eye and partial, permanent brain damage. Penny retains an attrney and the attrney hires an expert. The expert expresses his pinin that the nail gun has a design defect that caused the nail t bunce ff the hard wd. During discvery, it is revealed that the nail gun, when delivered t Rentals by Acme, had a warning label that stated, DANGER: DO NOT OPERATE UNLESS WEARING PROTECTIVE EYEWEAR. Hwever, the nail gun used by Penny had been cleaned with a heavy-duty slvent designed fr remving grease frm restaurant equipment by an emplyee f Rentals after a prir rental. As a result f this cleaning, the adhesive which attached the label t the nail gun disslved, the warning label fell ff, and was nt replaced r reattached. During discvery it is further revealed that several mnths befre Penny s rental f the nail gun, Acme discvered that its nail gun wuld misfire when wrking with very hard wd resulting in the nail buncing ff the wd. Acme cncluded that the risk t the public was small if the user f the nail gun wre prtective eyewear. Acme further cncluded that the cst f recalling all f its nail guns r ntifying purchasers abut the misfiring r warning the public abut the misfiring wuld have a majr financial impact n Acme s prfitability. Acme, therefre, tk n actin. Yu are the law clerk fr the trial judge assigned t Penny s cmplaint. Prepare a mem fr yur judge that discusses the claims that Penny may bring against Acme and Rentals, defenses which may be advanced by Acme and Rentals, and the likely utcme under Flrida law. Include in yur discussin the types f damages that Penny culd seek Themis Bar Review, LLC Flrida Essay Wrkshp

11 Sample Outline f Answer #2 A. BREACH OF WARRANTY Breach f express warranty the nail gun included n its packaging an express warranty that it was suitable fr nailing all types f wd. Because the Article 2 Unifrm Cmmercial Cde (UCC) applies t bth the rental and sale f gds, Penny can bring suit against the manufacturer (and Rentals) fr breach f its affirmatin that the nail gun wuld wrk n all types f wd. Breach f implied warranty f merchantability Because Rentals is a merchant with respect t gds such as nail guns. Because the nail gun malfunctined while Penny used it in the fashin in which it was intended t be used, she may have a claim against Rentals. B. MISREPRESENTATION Intentinal Misrepresentatin Penny may als have a claim against Acme based n intentinal misrepresentatin. Thugh Acme did nt knw f the nail gun s misfiring n certain hard wds at the time it sld the prduct t Rentals, it did knw this befre Penny s rental f the nail gun. Acme s failure t disclse this infrmatin may cnstitute a knwing falsehd n which Acme knew Rentals and Penny wuld rely. Negligent misrepresentatin Penny may have a claim against Acme based n negligent misrepresentatin. It must be established that Acme breached a duty f care t either/bth Penny and/r Rentals in its failure t disclse infrmatin abut the gun s misfiring n hard wds. The plaintiff must establish breach, duty, and causatin as in the rdinary negligence claim. Each must als establish that they relied upn Acme s misrepresentatin. C. NEGLIGENCE Penny may have a claim f negligence against bth Acme and Rentals. Penny wuld be required t establish that Acme breached a duty f care that caused her injury in manufacturing a prduct that misfired when used n certain hard wds. Penny wuld be required t establish that Acme departed frm an bjective, reasnably prudent standard in its manufacture f the nail gun. Acme might defend against this claim n the grund that Penny was cntributrily negligent because she failed t wear gggles. Hwever, Penny s failure t wear prtective gggles may be excused in light f its remval by a Rentals emplyee. Acme might als claim that Penny assumed the risk. Penny may als have a claim fr negligence against Rentals. Because the warning label came ff while a Rental s emplyee was cleaning it, the emplyee s failure t reattach the warning label may cnstitute a breach f duty that caused Penny s injury. Here, t, Penny must establish that Rentals, thrugh its emplyee, breached a duty f care that caused her injury Themis Bar Review, LLC Flrida Essay Wrkshp

12 D. STRICT PRODUCTS LIABILITY Penny has a strict liability claim against bth Acme and Rentals fr the nail gun s defective design. A defendant may be held liable fr selling r leasing a defectively designed prduct. Penny must establish that the prduct was (1) defectively designed; (2) that such defect existed at the time the prduct left the defendant s cntrl; (3) that the defect caused Penny s injury; and (4) that the prduct was used in the freseeable way. Penny must als establish that a less dangerus mdificatin f the prduct s design was ecnmically feasible. E. INTENTIONAL TORTS Battery: Penny may sue Acme fr battery based n its knwledge that the nail gun wuld misfire when used n hard wds. T the extent that Acme knew with substantial certainty the cnsequences f its defective prduct, a claim may be based n an intentinal trt. Because Penny was injured physically she must establish that her injury was caused by Acme s failure t disclse the infrmatin that the nail gun misfired n certain hardwds Themis Bar Review, LLC Flrida Essay Wrkshp

13 Sample Answer T: Judge Frm: Law Clerk Re: Penny s pssible claims, including the amunt f damages she culd seek, the crpratins pssible defenses, and the likely utcme f the case. I. Intrductin Penny has several pssible claims in bth cntract and trt against Acme and Rentals. This curt shuld have jurisdictin ver the matter because the accident ccurred in Flrida and bth Acme and Rentals are Flrida crpratins. Penny may chse t sue Acme and Rentals tgether r individually, hwever it wuld be helpful and judicius if bth were defendants in a single suit. It is imprtant t remember that Flrida has ablished jint and several liability. Instead, each trtfeasr is liable nly fr his cmparative share f the plaintiff s damages. If nly ne crpratin is a party t the suit, it may seek cntributin r indemnificatin, if it has paid mre than its pr rate share. This memrandum assumes that bth crpratins are a party t the lawsuit and analyzes Penny s pssible claims, including the amunt f damages she culd seek, the crpratins pssible defenses, and the likely utcme f the case. II. Breach f Warranty First, Penny may sue fr breach f the express warranty that was written n the nail gun s shipping cartn. The prduct is a nail gun, s it is a gd and falls within Flrida s adptin f the Unifrm Cmmercial Cde ( UCC ). Penny was renting the nail gun frm a merchant wh nrmally rents ut items, s the transactin falls within Article 2 f the UCC, which cvers leases. Under the UCC, an express warranty is created when a lessr makes any affirmatin f fact r any descriptin f the gds. Here, Penny can argue that the statement, suitable fr nailing all types f wd and wd prducts, created such a warranty because it was an affirmatin that the nail was suitable fr nailing wd and a descriptin f what the nail gun culd d. She can argue that because this statement was written n the riginal shipping cartn and the nail gun was displayed sitting n tp f this shipping cartn, the lessr, Rentals, was expressly making this warranty. Rentals, n the ther hand, will argue that it did nt make this warranty. Instead, it will say that Acme, by writing the statement and shipping the nail gun with this statement, shuld be respnsible fr making the warranty. Legally, bth Rentals and Acme can be fund t have made an express warranty: Acme because it wrte the statement and Rentals because it displayed the gun in its stre with the statement. Thus, Penny may be awarded actual and cnsequential damages fr the breach f an express warranty by Rentals and Acme. Cnsequential damages can be limited in sme breach f warranty cases, hwever, the limitatin f cnsequential damages fr injury t the persn in the case f cnsumer gds is prima facie uncnscinable. Any claim fr liquidated damages shuld be denied because it des nt appear they were prvided fr in the rental agreement between Penny and Rentals Themis Bar Review, LLC Flrida Essay Wrkshp

14 Penny may als have a claim fr the breach f the implied warranty f merchantability against Rentals. This warranty is implied in the lease cntract if the lessr is a merchant with respect t gds f that kind. Additinally, the merchantable gds must be fit fr the rdinary purpse fr which gds f that type are used. Here, Rentals was a merchant wh leased nail guns. Penny has a strng argument that Rentals breached this warranty because the nail gun malfunctined while she was nailing a piece f wd, an actin that was within the purpse fr which a nail gun is rdinarily used. Similar t abve, Penny may seek actual and cnsequential damages fr the breach f this warranty. III. Misrepresentatin Penny may als have a claim against Acme fr intentinal misrepresentatin. This trt ccurs when a defendant intentinally misrepresents a material fact that he knew was false, that justifiably induces a plaintiff t act, and that causes a plaintiff injury. Penny can argue that Acme cmmitted intentinal misrepresentatin when it failed t disclse that it knew the nail gun wuld misfire when wrking with hard wds. Acme will assert that it did nt knw f this defect when entering int the cntract with Rentals, therefre it cannt be held liable fr this trt. Hwever, the failure t disclse new infrmatin that makes a previus statement false is cnsidered an intentinal misrepresentatin. Penny will have t prve an actual ecnmic lss, which she shuld be able t d, in rder t cllect damages. Alternatively, Penny may als have a claim against Acme fr negligent misrepresentatin. Under the law f a majrity f jurisdictins, (i) the defendant, usually an accunting firm r anther supplier f cmmercial infrmatin, wh (ii) prvides false infrmatin t the plaintiff as a result f the defendant s negligence in preparatin f the infrmatin, (iii) is liable t the plaintiff fr pecuniary damages caused by the plaintiff s justifiable reliance n the infrmatin, prvided that (iv) the plaintiff is either in a cntractual relatinship with the defendant r is a third party knwn by the defendant t be a member f the limited grup fr whse benefit the infrmatin is supplied, and (v) the infrmatin must be relied upn in a transactin that the supplier f the infrmatin intends t influence r knws that the recipient f the infrmatin intends t influence. Under this rule, the accuntant wh regularly cnducts audits and furnishes financial statements and pinins rutinely required by lenders, investrs, purchasers r thers, is nt liable unless she is infrmed that an identified third party r third parties will be using the statement fr a particular purpse. Here, Acme s strngest defense is that it des nt we a duty t Penny. Hwever, in prmising that the nail gun was fit fr a particular purpse and entering int a cntract, Acme s argument will prbably fail. Penny may recver damages in the frm f reliance (ut-f-pcket damages) as well as cnsequential damages, if prved with sufficient certainty. IV. Negligence Penny may have tw separate claims f negligence. T prve negligence it must be prven that there was (1) a duty f care, (2) the duty f care was breached, (3) causatin, and (4) damages. Mst curts define the standard f care as what a reasnably prudent persn under the circumstances wuld r wuld nt d. Evidence f custm in a cmmunity r industry is admissible as evidence t establish the prper standard f care, but such evidence is nt cnclusive. Breach ccurs when the defendant s Themis Bar Review, LLC Flrida Essay Wrkshp

15 cnduct falls shrt f the standard f care required. Actual causatin is the cause in fact using the but fr test. Prximate causatin is the legal cause; freseeability f the type f harm suffered is a key t making this determinatin. (a) Design Defect f Nail Gun Penny s first claim is against Acme as manufacturer f the gun. Here, there is n questin f duty, causatin, r damages. As a manufacturer, Acme had a duty t all freseeable peple wh wuld use its prduct. The nail gun that Acme manufactured had a design defect, which caused the nail t bunce ff the wd that Penny was nailing and hit her in the eye, causing her permanent lss f visin and partial brain damage. But fr the design defect the nail wuld nt have bunced ff the wd and hit Penny in the eye. It was freseeable that a nail gun that has a design defect culd injure an individual using the device. Finally, the design defect and the nail buncing ff the wd caused Penny t suffer permanent lss f visin and partial brain damages. The real issue is whether Acme breached the standard f care in manufacturing the gun. The actins f Acme will be measured by an bjective, reasnably prudent standard. If the cmpany acted within the standard, it will nt be held negligent. Acme may have tw defenses against Penny. The first is that Penny was cntributrily negligent because she did nt wear prtective eyewear while using the gun. Cntributry negligence ccurs when a plaintiff fails t exercise reasnable care fr her wn safety and thereby cntributes t her wn injury. Flrida is a pure cmparative fault state. The curt must enter judgment against each liable party based n a percentage f fault, nt n the basis f jint and several liability. Pure cmparative fault applies t negligence cases, prducts liability cases, and strict liability cases, but nt t intentinal trts. Here, Acme wuld have a hard case t make against Penny because the warning, thrugh n fault f her wn, was nt n the nail gun. As such, it is nt clear that she failed t act with reasnable care. The secnd defense is that Penny assumed the risk f getting hurt by a nail gun. In Flrida, a cmparative negligence jurisdictin, the plaintiff s implied assumptin f the risk is nt treated as a separate defense. Instead, the plaintiff s awareness f the risk is taken int accunt in determining the degree t which the plaintiff is at fault, but it als can be cnsidered in determining the reasnableness f the plaintiff s r the defendant s actins. Again, because Penny was nt aware that she shuld be wearing prtective eyewear when she was using the nail gun, she will prbably nt be fund at fault. (b) Negligent Handling f the Nail Gun Penny s secnd claim is against Rentals fr the negligent handling f the nail gun. When shipped t Rentals, the nail gun had a warning n it that advised users t wear prtective eyewear. Because the warning came ff while an emplyee was cleaning the gun and was never reaffixed, Rentals may be vicariusly liable. An emplyer is vicariusly liable fr an emplyee s negligent actins. An emplyer is held liable if the negligent actins ccurred during the scpe f emplyment. Cnduct within the scpe f emplyment includes that which the emplyee is emplyed t perfrm, is within the authrized limits f time and space, and is perfrmed fr the purpse f serving the emplyer. Here, the cleaning f the gun was within the scpe f the emplyee s emplyment as he was cleaning it after a rental. The real issue is whether the emplyee was negligent in nt reattaching the warning label. As was discussed Themis Bar Review, LLC Flrida Essay Wrkshp

16 abve, Penny must prve that Rentals and its emplyees had a duty, that they breached that duty, and that the breach caused her injury. She shuld be successful in prving all three. Rentals had a duty t its custmers, but fr the lack f warning, Penny wuld be wearing eyewear, and that eyewear wuld have prevented her injury r made it less severe. The curt wuld ask what a reasnably prudent emplyee wuld d in that circumstance. If a reasnably prudent emplyee wuld have reattached the warning, then Rentals will be liable fr negligence. Rentals may als use the assumptin f risk defense discussed abve, but prbably wuld nt be successful. Penny may seek bth actual and punitive damages against bth defendants. The typical categries f damages recverable in a persnal injury actin include (i) medical and rehabilitative, bth past and future; (ii) past and future pain and suffering; and (iii) lst incme and any reductin in future earnings capacity. Flrida als recgnizes punitive damages in negligence cases. These damages must be prven and the plaintiff must prve by clear and cnvincing evidence that the defendant was persnally guilty f intentinal miscnduct r grss negligence. V. Strict Prducts Liability Penny has a strict prducts liability claim against bth defendants fr the defective design f the nail gun. In rder t be subject t strict liability fr a defective prduct, the defendant must be in the business f selling r therwise distributing prducts f the type that harmed the plaintiff. Included as a seller are the manufacturer f the prducts, its distributr, and its retail seller. As lng as the seller is a cmmercial supplier f the prduct, the seller is subject t strict liability fr a defective prduct, even if the revenue frm sales f the prduct is nt a significant prtin f the seller s business. The seller is strictly liable even if the seller was respnsible fr the defect in any way and even when the prduct is nt purchased directly frm the seller. As such, Penny culd sue either Acme r Rentals under this thery. T prevail n a claim f design defect, Penny must prve that: (i) the prduct was defectively designed, (ii) the defect existed when the prduct left the defendant s cntrl, (iii) the defect caused the plaintiff s injury, and (iv) the plaintiff used the prduct in a reasnably freseeable way. Here, Penny can prve all fur. First, Penny has an expert that will testify that the nail gun was defectively designed. She can als use Acme s discvery that the nail gun misfired when nailing hardwd t blster her argument. Secnd, she can prve that the defect existed when the prduct left the defendant s cntrl with the evidence that Acme knew f the design defect several mnths befre Penny rented the nail gun. Third, Penny will argue that the misfiring f the gun caused her eye injury and brain damage. Acme, n the ther hand will argue that Penny was injured nt because f the design defect, but instead because f her failure t wear prtective eyewear. It will pint t the warning label n the gun and Penny s failure t heed that warning. Acme is nt likely t be successful n that argument because the design defect was the primary cause f the injury. Finally, Penny was using the prduct in a reasnably freseeable way because she was using the nail gun t nail wd, which is part f its wn prduct descriptin Themis Bar Review, LLC Flrida Essay Wrkshp

17 Depending n the jurisdictin, curts apply either the cnsumer-expectatin test r the risk-utility test t determine whether a design defect exists. Under the risk-utility test, in a majrity f jurisdictins and under the Third Restatement, the plaintiff must prve that a reasnable alternative design was available t the defendant and the failure t use that design has rendered the prduct nt reasnably safe. The alternative design must be ecnmically feasible. Penny has a strng argument that such a mdificatin r alternative was ecnmically feasible but Acme did nt even explre the ptin because it decided that the cst f recall r warning purchasers f the defect was t high. Acme may cunter that there was n ecnmically feasible, less dangerus mdificatin, hwever, its knwledge f the defect and its failure t d anything abut it may seriusly weaken the argument. Penny is entitled t recver damages fr any persnal injury. Here, Penny suffered permanent lss f visin in that eye and partial, permanent brain damage. Thus, Penny may recver damages. VI. Intentinal Trts In additin, Penny may sue Acme fr battery. If the defendant intended r knew with substantial certainty the cnsequences f the defect, then the cause f actin culd be based n an intentinal trt. Because Penny was hit in the eye with a nail frm the nail gun, she can sue Acme fr battery. A defendant is liable t the plaintiff fr batter when he causes a harmful r ffensive cntact with the persn f anther and acts with the intent t cause such cntact r with the apprehensin f such cntact. Here, the injury t Penny s eye was the harmful and ffensive cntact. She can argue that Acme intended this act because it knew that the nails wuld bunce ff hardwd and did nthing t warn the nail gun user f that defect. Penny has a strng argument because Acme did knw with a substantial certainty that the nails wuld bunce ff the wd in this fashin, thus it acted with the apprehensin f such cntact. As with any intentinal trt claim, punitive as well as cmpensatry damages are recverable. The same defenses germane t each type f trt are applicable. VII. Cnclusin In cnclusin, Penny has a strng case against bth Acme and Rentals. She has many claims based in cntract and trt law and will be successful n mst if nt all f these claims. Themis Bar Review. All rights reserved Themis Bar Review, LLC Flrida Essay Wrkshp

18 CHAPTER 4: THEMIS LUCKY 13 WRITING TIPS 1. OUTLINE!! Resist the urge t start writing frantically. Instead, spend minutes utlining yur answer. Yur utline will be brief but it will help yu rganize the issues and give yu an idea f hw t allcate yur time. Practice utlining. 2. Start with an Intrductin that tracks the call f the questin CALL OF THE QUESTION: What are Penny s claims against ACME and Rentals? INTRODUCTION: Penny can bring a claim based n against 3. Use Headings Example 1: Frm Essay #1: Persnal Medical Infrmatin, Public Recrds Request, Persnnel File, and Cnstitutinality Example 2: Frm Essay #2: Breach f Warranty, Misrepresentatin, Strict Liability, and Intentinal Trts 4. Use Shrt Paragraphs 5. Use Legal Terms and Wrds Example 3: terms. Say extreme recklessness NOT very careless. Define all legal 6. IRAC fr each issue and reach a cnclusin fr each issue Develp yur analysis by wearing different hats t argue the facts frm different perspectives. 7. Distinguish majrity and minrity psitins Crss-reference the Restatement r MPC, etc. 8. Cmpare and cntrast Similar t the majrity and minrity psitins If yu have the pprtunity t explain hw a particular rule is different frm a similar rule, d s. Example 4: Hw is accmplice liability different frm cnspiratrial liability? 9. All facts belng t an issue Use all f the facts prvided in the questin. Only rarely will the questin include facts that d nt raise an issue Themis Bar Review, LLC Flrida Essay Wrkshp

19 10. Write A LOT! The Flrida essay questins tend t test multiple subjects (up t 3 subjects and their equitable aspects) and cntain up t issues and sub-issues. A passing answer is thrugh and will generally cntain an average f wrds. 11. Practice in three stages Tell Stries: review practice essay exams t see hw the questins give rise t issues. Stage 1: Answer a prir essay questin pen bk, with yur utline and any ther materials, and withut any time limit. Test yur utline fr its detail and depth. Stage 2: Answer an essay questin pen bk but in an hur. Stage 3: Answer an essay questin under Bar cnditins: clsed bk and with a 1-hur time limit. D this fr each subject. Yur writing will becme easier and faster. Remember t practice utlining. 12. Have an apprach fr each subject Discussed in this lecture 13. Reduce and synthesize yur subject utlines t pages (r less!) The prcess f reducing yur utlines and synthesizing the material t 10 pages means that yu have retained that infrmatin in yur brain and n lnger need it t be n paper. Create a ne-page checklist fr each subject. GOOD LUCK ON THE FLORIDA BAR EXAM! [END OF HANDOUT] Themis Bar Review, LLC Flrida Essay Wrkshp