July 2023 Second Example Ten-point Answers to Virginia Essay Questions
July 2023 - QUESTION 9 – VIRGINIA BAR EXAMINATION
9. Paige was helping her sister, Ashley, clear small trees from Ashley’s yard in Craig County, Virginia. Paige borrowed Ashley’s chainsaw to do the work. The instructions for using the chainsaw had been discarded so Paige never read them. She climbed on a stepladder and removed the tip guard from the chainsaw so that she could use it to cut the small trees. Paige was injured when the chainsaw kicked back and struck her left shoulder, causing her to fall off the ladder and resulting in serious and permanent injuries.
Paige retained an experienced product liability attorney to represent her. Having met all requirements for personal and subject matter jurisdiction, Paige timely filed a personal injury suit against the manufacturer of the chainsaw, CS Corporation (CSC), in the United States District Court for the Western District of Virginia – Roanoke Division. The Complaint alleged that the CSC chainsaw was negligently designed and manufactured and CSC breached express and implied warranties. CSC, through counsel, filed an Answer admitting it designed and manufactured the chainsaw in question, and denying all allegations of negligence or breach of any warranties.
CSC took a discovery deposition of Paige. Paige testified to the following: i) she was given the lightly used chainsaw by her sister, Ashley, and had used it a few times before the date of the accident; ii) the warning label on the chainsaw was peeling off, so Paige removed it without reading it; iii) she removed the tip guard after the first use because it got in the way of her cutting down small trees, the whole reason she wanted to use the chainsaw; and iv) she was standing on a stepladder when the accident happened.
Just prior to the close of discovery, CSC filed a Motion to Amend its Answer to add the affirmative defenses of contributory negligence and assumption of the risk based upon unforeseeable misuse (using the chainsaw on a ladder in violation of the warning label) and modification/alteration of the product (the tip guard and warning label were removed).
CSC also filed a Motion for Summary Judgment claiming the deposition testimony of Paige sufficiently established its affirmative defenses to warrant judgment in CSC’s favor.
Paige objects to both of CSC’s motions.
|(a)||What arguments should CSC make in support of its Motion to Amend its Answer to add the affirmative defenses? What arguments should Paige make in opposition to the Motion to Amend? How should the District Court rule? Explain fully.|
|(b)||What arguments should CSC make in support of its Motion for Summary Judgment? What arguments should Paige make in opposition to the Motion for Summary Judgment? How should the District Court rule? Explain fully.|
July 2023 - QUESTION 9 – EXAMPLE ANSWER #1
(a) A defendant may amend their answer with leave of court if it is in the interests of justice and would not result in undue hardship, prejudice, or delay. Here, CSC should argue that it is in the interests of justice to allow it leave to amend because the information on which it is basing the amendments could not have been discovered without the discovery process allowed only after it had filed its original answer. The helpful statements made by Paige were elicited through a deposition. A deposition does not occur until the discovery phase, which occurs after the Rule 26(f) meeting after parties filed their pleadings. Those statements, and the defenses based thereon, could potentially end the case for CSC and they had no access to them before, so it is in the interest of justice to allow them to amend their answer. Further, it would not cause undue delay to allow CSC to amend its pleadings. CSC is making this motion while discovery is still in progress. It is not waiting until just before trial, thereby wasting the court and everyone’s time. This is still early in the process, so the delay is rather minimal.
Paige should argue that allowing CSC to amend the pleadings will cause her unfair prejudice and will cause undue delay because CSC made the motion too late into the discovery phase. Paige should argue that the defenses that CSC is raising will require additional discovery so that Paige has time to rebut the allegations that removing the tip guard and using it on a latter were unforseeable misuses. Paige will need time to collect additional evidence, mostly witnesses who will testify as to the normal operation of a chainsaw. The collection of this evidence could cause great delay in the discovery process. Or, if the deadline is too tight, she would be extremely prejudiced by the inability to adequately collect witnesses and prosecute her claim in the face of the defendant’s defenses.
Ultimately, the District Court should rule for CSG. CSG could not have discovered evidence potentially dispositive to the case without getting past initial pleadings. The additional time required to allow Paige to collect more evidence does not outweigh the injustice that would occur by not allowing the defendant to defend itself.
(b) Summary judgment is a dispostive motion that disposes a case, or a portion of a case, on the merits. According to FRCP 56, summary judgement should be granted if, based on the pleadings, depositions, and sworn documents in the record, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Here, CSG should make several arguments to which Paige will reply:
(i) Contributory Negligence: CSG should argue that, based on Paige’s deposition testimony to these uncontested facts, there is no question that Paige was negligent by using a chainsaw that she modified, against the warning label, while standing on a ladder, also against the warning label. CSG should argue that no reasonable fact finder would find she did not use the care required by a reasonable prudent person who was operating a chainsaw. The reasonable prudent person would have read the warning and would not have modified the chainsaw. Further, because she was prima facie negligent, under Virginia law she it totally barred from recovery because of the doctrine of contributory negligence. Because this defense is based on the plaintiff’s own deposition testimony, and no reasonable jury could find otherwise, CSG is entitled to summary judgment.
(ii) Assumption of the Risk: CSG should argue that, again based on Paige’s deposition testimony, that no reasonable jury would find that she did not assume the risk by using the chainsaw in an unforseeable manner. Assumption of the risk is a doctrine that absolves a defendant of liablity in tort if the plaintiff knowingly undertakes, fully aware of the attendant danger, the activity which harms her. Paige here should have known that climbing a ladder with a chainsaw was dangerous because it was on the label and should have known she was running a risk by removing the guard. Further, it was patently unforseeable to CSG that this would occur because of the warning labels placed on the chainsaw. Finally, because Paige modified the chainsaw by removing the guard, she disqualified herself from collecting on any warranties. Thus, CSG is entitled to summary judgement.
Paige should argue that every single point raised here requires a determination of fact, and in a summary judgement motion that is dispostive in her favor. First, whether Paige fell below her standard of care when operating the chainsaw is patently a jury triable issue because it is questionable whether one should or should not remove the guard. Further,it is questionable whether it is negligent to use a chainsaw on a ladder. A jury could find chainsaws are often used on ladders to get to tall branches. Further, it is again questionable whether it is unforseeable that someone would peel off a peeling warning label or remove the guard. It is also questionable whether CSG could forsee this bahavior, and on this more evidence is needed. Therefore, there are many factual issues that caution against the granting of summary judgement.
The District Court should rule in favor of Paige. CSG’s defenses raise too many questions of fact, thus CSG is not entitled to summary judgement.
July 2023 - QUESTION 9 – EXAMPLE ANSWER #2
CSC should point out that leave to amend is to be liberally granted. CSC will argue that it did not delay in adding these two arguments because they were impossible to have been known before the deposition was taken. There are no facts indicating that any of Paige's actions were set forth in the complaint and, therefore, CSC should argue that it could not have known of the potential defenses at the time it filed its answer. CSC will note how the entire point of discovery is to define the case and narrow or enlarge claims. Permitting amendment during discovery is the best way to accomplish this purpose and permit justice.
CSC should address why it waited so long to bring the new defenses and state that should have foreseen that such defenses would be filed. Her attorney is purportedly an experienced products liability attorney and should have known immediately which defenses CSC would raise. Therefore, Paige would not be prejudiced by the late amendment. Moreover, CSC should note how Paige controls the evidence that would exculpate her and thus the lack of discovery time would not be burdensome. For instance, Paige knows exactly what actions she took and what to point to in defending against her own negligence. Accordingly, CSC should argue, Paige would not be prejudiced.
Paige should argue that CSC did not set forth these arguments in its answer and CSC should not be permitted to add them now. Paige should, more persuasively, argue that CSC nevertheless waited too long to add the affirmative defenses because it waited until near the end of discovery to bring them. Assuming the deposition was taken far earlier than the close of the discovery, waiting so long would prejudice Paige in cobbling together facts to negate these newfound defenses so late in the discovery process.
Paige should also allege that CSC acted in bad faith in doing so. CSC should have known just after the deposition was taken that it would seek these two, common defenses. But by waiting until the close of discovery, CSC likely seeks to prejudice Paige in her defenses by limiting the amount of time she has to seek exculpatory evidence.
The court should permit the amendment to be made despite it being made so close to the end of discovery because the defenses were obvious, and should have ben obvious to Paige's experienced counsel, and Paige is in control of the evidence needed to exculpate herself. SHe will therefore not need to make time consuming document requests or anything of the kind. Essentially, Paige would not be prejudiced by the late amendment.
However, as the court, I would also permit a slight extension of the discovery period to assuage any prejudice that may have arisen.
A motion for summary judgment may only be granted when there is no genuine issue of material fact. The facts should be viewed in the light most favorable to the nonmoving party. Here, the facts should be viewed in the light most favorable to Paige.
CSC should argue that Paige was contributorily negligent and assumed the risk of her injuries.
First, contributory negligence is a complete bar to recovery if the plaintiff was even 1% negligent in her actions.
CSC should point to the fact that Paige was negligent every step of the way. CSC should point out that Paige removed the warning label without reading it. There is no claim that the warning was inconspicuous; rather, Paige simply saw it and consciously chose not to read it. And to the extent it was peeling, CSC should say that Paige should have preserved it rather than rip it off and throw it away.
Moreover, Paige removed the tip guard that was designed to prevent against injuries like the one sustained on this occasion. By doing so, she was negligent and greatly increased the risk of her own injuries.
Also, she was standing on a stepladder while using the chainsaw in violation of the warning label. Standing on a stepladder while using a chainsaw increases the risk of danger, especially when doing so when specifically told not to and without the tip guard in place. Taken together, Paige was substantially at fault for her own injuries.
Second, assumption of the risk is also a complete bar to recovery. One may be found to implicitly assume the risk of a dangerous activity if they know of the risk and choose to confront that risk.
CSC should argue that the specific type of misuse here was not foreseeable. CSC should address the main problem with its argument, that use contrary to the intended purpose may still be foreseeable, by narrowing the subset of misuse to the specific act done in this instance. Thus, CSC should say that it was not foreseeable that a person would rip the warning label off without reading it, remove a safety device, and stand on a ladder in violation of the warnings. This combination, CSC should say, was not foreseeable.
Moreover, CSC should argue, the product was modified after leaving its hands because the warning labels and the tip guard were removed. CSC should note how it cannot be held liable when its product is substantially altered after leaving its hands, and that the chainsaw was substantially altered when its safety device and instructions were removed. Otherwise, CSC should argue, the product would not have been dangerous and Paige would not have been injured. Furthermore, the removal of the label without reading the label could be seen as voluntarily assuming the risk of whatever the labels contained.
Paige's general argument should be that this is a question of fact for the jury to decide. She should note that regardless of what the court may think is true, the jury should be the one to decide ultimately whether the product was unreasonably dangerous and negligently designed. She should often stress in this motion also that the facts are to be viewed in the light most favorable to her.
First, Paige should argue that she was not contributorily negligent because her misuse of the product was foreseeable. It can be foreseen that a person would remove a safety device that impairs its use. Moreover, it can be foreseen that instructions placed on a piece of machinery will not be read. Further, Paige should argue that using the chainsaw while on a stepladder is also foreseeable because it is common, and people often cut branches with chainsaws while on a ladder of some sort. Paige may also wish to argue that the warnings were inadequate because they were peeling off, and that CSC negligently made the label such that the warnings began peeling after only light usage.
Second, Paige should further contend that her removal of the tip guard is not relevant because that is not the reason that the chainsaw kicked back. She should further argue that complying with the instructions would have still resulted in the chainsaw kicking back. In tandem, she should emphasize that it is foreseeable that a person would use a chainsaw on a ladder to cut branches and that the kicking back of the chainsaw was from CSC's negligence and caused a foreseeable injury.
Finally, Paige should argue that she did not assume the risk because she did not actually know of the risk and choose to confront it.
The district court should overrule the motion for summary judgment and submit the case to the jury. All inferences are to be made in favor of the nonmoving party, Paige. Thus, the court should consider that a reasonable jury could find that it is foreseeable that a person would use a chainsaw on a ladder to cut branches, even if the warning label says not to. The jury may also find that the safety device had no impact on the chainsaw kicking back and causing Paige to fall off of the ladder. With these inferences, the court should submit the case to a jury. Even though a reasonably jury would likely find that Paige was at least somewhat responsible for her own injuries, that is not the standard for granting summary judgment; rather, the court must find that no reasonable jury could find for Paige when viewing the evidence in the light most favorable to her.
Further, a reasonable jury could find that did not assume the risk because she did not know of the risk of the chainsaw kicking back. There is also no indication that the warning label contained anything regarding the risk of the chainsaw kicking back.
For these reasons, the court should submit this case to the jury.