University of Arizona

James E. Rogers College of Law

Midterm Examination – Torts – Fall 2020
Professor Bublick

PLEASE READ THE INSTRUCTIONS CAREFULLY

Professor Bublick’s Torts midterm will be available from Friday, Oct. 2 at 12:00 PM
until Sunday, Oct. 4 at 5:00 PM (Arizona MST). Your answer file must be uploaded
within 1 hour and 10 minutes of downloading the exam. The latest time for turning in
answers is at 6:10 PM (PST) on Sunday, October 4th.

Honor Code Instructions:

1. The Honor Code and all exam regulations apply. The Honor Code prohibits you
from giving or receiving assistance with this examination or working on your
answers for more than the 1-hour examination period. You may use an additional
10 minutes to download and print the exam, and upload your answers.

2. The Honor Code prohibits the following during exams:

• communicating with others, including fellow students, lawyers, or professors
in person, or by email, phone or text;
• taking the exam in the presence of another student;
• making a reproduction or copy, in any form, of the exam, other than a
printout for use during the exam, which must be destroyed immediately upon
completion.

3. Because the examination will be taken at different times by different students,

students who have written the examination should use extra care to avoid
discussing it with or in the presence of those students who have not done so.

4. Your conduct during the exam must comply with the Honor Code, and if you
witness any activity with respect to this exam that you believe violates the Honor
Code, you must report it immediately following this exam to either the Dean of
Students or the Associate Dean of Academic Affairs.

5. You may not speak with or in any manner communicate with your professor
about the exam until after grades for the exam have been posted.

6. Should you feel ill during the exam or encounter any other unexpected difficulty
that prevents you from completing the exam, please contact Dr. Jordan-Curtis,
Dean of Students at (520) 621-8602.

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 7. Should you encounter a technical issue related to Exam4, contact law-
[email protected].

Exam4 Essay Take-Home Instructions:

When you are ready to begin the exam, follow the steps below:

1. Go to www.exam4.com.

2. Select “Law Schools.”

3. Select “A” for Arizona.

4. Select “University of Arizona College of Law” from the list.

5. At the top right-hand side of the next page, select the BLUE template from the list.
(You will not see the link before the scheduled date and time of your exam.)

6. You will be prompted to enter your midterm exam number and “continue” to go to the
next screen. (Exam numbers are located in UAccess, Student Center, My Academics.)

7. Follow the instructions for downloading the exam.

Note: Do NOT click the “Start Exam” button on the next screen until you are ready
to begin the exam. Once you click “Start Exam” your start time is recorded and the
clock will begin to run.

8. Type and save your answers in Microsoft Word. You do not need to stay logged in to
the Exam4 webpage, but you will need to return to it and log back in (again, using your
midterm exam number) in order to upload your completed exam.

Name your file with your midterm exam number followed by the instructor’s last name.
Do not include your name in either the text of the exam or in the file name.

9. It’s strongly recommended that you enable “auto-save” in Word, to avoid losing any
work.

10. When you are finished, upload your answer file in Word or PDF format before the
deadline via the “Choose File” link, in the section labeled “Submit Your Answer.” It’s
recommended that you use either Chrome or Firefox browser to upload your document
(not Explorer or Safari).

If you have any problems uploading your answer file, email it to Faculty Support at
[email protected] before the deadline. Please allow sufficient
time in order to submit the exam before the deadline.

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 Professor Bublick’s Additional Instructions

1. Please check to see that you have all 5 pages of the instructions and examination.

2. This is an open book examination. You may use your textbook, your notes and
handouts, your outline, the concise restatement book, or any other materials.

3. This examination has two questions. Please answer both questions. For grading
purposes, the first problem is worth 16 points and the second problem is worth 10
points.

4. Think through and organize your answers before you begin to write. Careful
analysis of the questions asked and specific reference to problem facts, textbook
cases, and class discussion will be valued.

5. If it is necessary to make assumptions of law or fact, please state those

assumptions explicitly. If the outcome of a problem depends upon the legal rule in
the particular jurisdiction, please describe the different legal rules that might apply
and the result that would obtain under each rule.

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 Facts for Questions 1 and 2
Question 1: 16 points (approximately 37 minutes)
Question 2: 10 points (approximately 23 minutes)
Please answer both questions

On August 4, 2017, Edward, an employee at Coffee Corner, a small coffee kiosk

in Ponderay, Idaho, served Pam a coffee cup filled with Urnex, a cleaning chemical.
Urnex is a blue liquid that is commonly used to clean coffee pots at commercial
establishments.

Exactly how the Urnex got in the coffee cup was unclear. Emma, an employee at
Coffee Corner who worked the same shift as Edward, cleaned a coffee pot with Urnex
that evening. However, Emma felt certain that she put the Urnex in the coffee pot,
cleaned it, thoroughly rinsed it two times, and then left the clean pot in the serving area
alongside other coffee pots that were filled with coffee. Edward did not clean any coffee
pots at all that evening. No other employees were present and no one else entered the
kiosk.

Edward poured liquid from one of the coffee pots into a cup, put a lid on the cup,
and handed it to Pam. Although Edward was paying attention to what he was doing, he is
color-blind, and did not notice that the liquid in the pot was blue. Pam could not see
inside the cup with the lid on. Believing the cup contained the coffee she had ordered,
Pam took a sip and ingested the chemical. She immediately felt ill. When she took the lid
off the coffee cup, she saw the blue liquid and showed it to Emma, who realized that the
liquid was Urnex rather than coffee. Both employees apologized profusely for the
mistake. Such a mistake had never happened before at Coffee Corner, even though the
coffee pots are cleaned with Urnex every day. However, there have been sporadic reports
of Urnex poisoning at other coffee shops around the country.

The Urnex container label clearly states that the product is “harmful if
swallowed” and that a person who ingests it should seek immediate medical attention,
which Pam did. Pam’s ingestion of the chemical caused her to suffer physical injury
including vomiting, mouth sores, stomach ulcers, and pain that lasted for months.

Pam is considering filing suit against Coffee Corner (which would be liable for
any workplace negligence by its employees). As a former Coffee Corner employee, Pam
knew that the company instructed employees never to leave coffee pots in the serving
area during cleaning. In addition, she knew that the company instructed employees to
visually inspect all food and beverages before serving them. Although Edward did
inspect the liquid as he poured it, he did not detect the blue coloring that would have been
obvious to almost anyone who looked at the liquid.

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 In looking at the many food safety rules that deal with chemicals, Pam found the
following section of the Idaho Food Code:

STORAGE
7-201.11 SEPARATION
POISONOUS OR TOXIC MATERIALS shall be stored so they cannot contaminate
FOOD, EQUIPMENT, UTENSILS, and LINENS by:
(A) Separating the POISONOUS OR TOXIC MATERIALS by spacing or partitioning;
and
(B) Locating the POISONOUS OR TOXIC MATERIALS in an area that is not above
FOOD, EQUIPMENT. UTENSILS, or LINENS.

While Pam found this section of the code concerning “storage” of poisonous
materials, she could not find any provisions concerning “use” of these materials in the
cleaning process. Some research showed that a number of coffee shops routinely clean
coffee pots with Urnex in the serving area. This is particularly true when the work area is
small—as Coffee Corner’s is, given the cost of its location in a high-traffic area.

1. Pam heard that you have been studying negligence law and has come to you for help.
Based on the cases and materials we have studied this term, please fairly and neutrally
evaluate the duty of care that Coffee Corner owed to Pam, and the arguments for and
against breach in this case.

2. For the purposes of problem 2, imagine the following additional facts: Emma
deliberately put the Urnex-filled coffee pot in the serving area, hoping that color-blind
Edward would serve the toxic substance to Tom—the customer in line for coffee behind
Pam. Under these additional facts, and the cases you have studied this term, please
address whether Pam might be able to state a claim against Emma or Edward for any
intentional tort causes of action.