Conflict of Laws M.H. Hoffheimer

Final Exam University of Mississippi

Law School

Summer 2008

General instructions

This is a closed book exam. Do not speak with any person other than the faculty member who is administering this exam until you have turned in your exam. Do not remove any exam materials, questions, or blue books from the room during the exam. After you complete the exam and turn in your blue books, you may take the questions with you when you exit the room.

The exam consists of two parts. You will have two and one-half hours to complete the exam, and recommended times are indicated for each part. Answer all questions.

Identify yourself on your blue books only by your exam number. By placing the exam number on your blue book and by submitting your blue book for credit, you are agreeing to the following pledge (as required by law school policy):

"On my honor I have neither given nor received improper assistance. And I will report any improper assistance that I am made aware of."

Definitions, terms and conditions

Reference to the first Restatement means the Restatement [first] of the Law of Conflict of Laws (1934). The term "state" means a state of the United States. The term "country" means a sovereign power that is neither a state of the United States nor the government of the United States.

No effort has been made to achieve legal verisimilitude, and laws that are included in questions should be considered accurate only hypothetically and for purposes of answering the questions on this exam. Do not assume any additional fact or law, except those laws studied in the course, without stating explicitly your assumption and explaining why such additional information is necessary for your answer.
PART I. SHORT ANSWERS (90 minutes for this part--or an average of ten minutes for each question)

Instructions. Write a coherent literate response to each of the following problems. Each problem in this part can be answered adequately with a response that is no longer than one paragraph.

1. Pat, a citizen of Oregon, was injured in a car accident in California, by a car negligently operated by Denis, a citizen of California. Assume the relevant California statute of limitations is one year. Two years after the accident, Pat commences a civil action against Denis in federal court in the Northern District of Mississippi. Pat obtains personal service of process on Denis while Denis is attending the Faulkner Conference.

The action is subsequently transferred pursuant to section 1404(a) to the federal court for the district of California where the accident occurred and where the defendant resides. The defendant moves to dismiss the action under the California statute of limitations. The three-year Mississippi statute of limitations has not run. Rule on the motion and explain fully.

2. Tin Tin, a citizen of the country of Waloonia, went on vacation to the country of Mordor, taking his pet dog Snowy (who was born and raised in Waloonia). Tin Tin was enjoying a beverage at a bar in Mordor City when Zargon began to insult his dog. Zargon said all dogs should be killed. Zargon then kicked Snowy who squealed with pain. Zargon was arrested for disorderly conduct.

Zargon is also a citizen of Waloonia. After Tin Tin and Zargon return to their homes, Tin Tin sues Zargon in Waloonia courts for intentional infliction of emotional distress and for pain and suffering suffered by Snowy. Under these facts, Waloonia does not recognize a claim for intentional infliction of emotional distress but Mordor does. Waloonia does not permit damages for pain and suffering by animals and limits damages to animals to the fair market value of the animal. Mordor permits recovery of damages for pain suffered by animals.

Waloonia follows the First Restatement. Zargon moves for summary judgment arguing that the court should apply Waloonia law. Who wins and why?

3. What is the status of the reciprocity requirement for foreign country money judgments?

4. Pierre, a citizen of Louisiana, was injured in Jackson, Mississippi when David, also a citizen of Louisiana, failed to stop at a stop sign. At the time of the accident, David was insured by Bayou Bond Insurance Co., a Louisiana corporation. Louisiana has a direct action statute that creates a cause of action in behalf of an injured person against a tortfeasor’s insurance company. Pierre has commenced a civil action in Mississippi Circuit Court in Hinds County stating a claim under the Louisiana statute against the Louisiana insurance company. The insurance company has consulted you for legal advice and asks whether Mississippi courts will recognize the claim under the Louisiana statute. Please advise.

5. Pam P. was born and raised in the state of West Texas. As a teenager, Pam was assaulted in the state of West Texas by a teacher employed at the West Texas Academy, a private nonprofit educational institution. After the assault, Pam’s family moved to the state of North Oregon. Pam has commenced a civil action against the West Texas Academy in North Oregon state court.

The defendant responded to the lawsuit by filing a motion to dismiss, arguing that the claim is barred under a West Texas statute that provides that nonprofit eductional institutions are immune to all tort claims. North Oregon tort law does not recognize the defense of charitable immunity.

West Texas follows the traditional territorial approach in torts cases. North Oregon follows interest analysis. What law will the North Oregon court apply and why?

6. Louise Lamort died in her sleep at her apartment in the country of Refugia. At the time of her death Lamort owned real property in the country of Gluckland and a diamond ring that she had left for safe keeping with her daughter who lives in the country of Ringland. The daughter stored the ring in a safe deposit box located at a bank in Ringland for fifteen years. The ring was in the box at the time of Lamort’s death.

Lamort left a handwritten note in her Bible, “I leave everything to my church.” She signed and dated the note.

Lamort regularly attended the Refugia Reform Church in Refugia. The Church claims that the note is a valid will. But Lamort’s daughter, her only surviving relative, claims that the note is not a valid will and that she is entitled to all the property as heir and next of kin.

Under the law of Gluckland and Ringland, a handwritten will is valid if it is signed and dated. Under the law of Refugia, a handwritten will is not valid unless signed by two witnesses. Under the law of Refugia, a devise of real property to a church is prohibited. Under the law of Gluckland and Ringland, parties may devise and bequeath property to a church.

All the countries apply the First Restatement. None have will borrowing statutes. Who gets what and why?

7. Phyllis, a citizen of East Carolina, travels with her horse trainer Debbie, also a resident of East Carolina, to participate in the Equine Sport Fair in New York City. At the show Phyllis fell off her horse and suffered serious injuries when Debbie forget to secure the saddle properly.

A statute in East Carolina provides a complete defense to claims for personal injuries based on the alleged negligence for persons who provide horse riding and training services. New York tort law recognizes no comparable defense.

East Carolina applies the First Restatement. Phyllis’s lawyer has come to your for expert advise and wants to know what law will be applied by the courts of New York and East Carolina if Phyllis commences a civil action in those states. Please advise and explain.

8. Fred and Wilma, citizens of the country of Polygaland, got married in a traditional ceremony in the country of Polygaland. At the time of the marriage, Fred was already married to Winky. But his second marriage to Wilma was also valid under the law of Polygaland.

While Fred and Wilma were vacationing in the state of Confusion, Fred drove a rental car into a streetcar, causing injuries to Wilma. Wilma commences a civil action against Fred in Confusion state court.

Under the law of Polygaland, spouses are immune to claims for personal injury asserted by their spouses. The purpose of the immunity, as explained by the Polygaland courts, is to promote marital harmony.

Confusion law does not recognize either polygamous marriages or the defense of spousal immunity. Confusion follows the comparative impairment approach to conflicts cases. Polygaland follows the First Restatement.

Fred asks your legal advice about what law the Confusion courts will apply in the case. Please advise.

9. Bob Bayard, a resident of the state of East Carolina,a bought a new computer at the Big Mart store in his neighborhood. He also bought an extended warranty to cover the computer from Big Mart. The warranty agreement provided that the warranty “would be construed and all claims under the warranty governed by the law of the country of Bazukaland.” Big Mart is incorporated under the laws of the country of Bazukaland.

One year after buying the computer, the computer’s hard drive crashed. Bayard contacted Big Mart and was informed that he was required to ship the computer to the Big Mart repair center in Georgia.

A dispute has arisen over who must pay for the costs of shipping the computer to the repair center. Under the law of East Carolina, costs of shipping required for repair are incidental damages. Moreover, under East Carolina law, parties in consumer sales and in warranties for consumer purchases are prohibited from waiving the right to recover incidental damages. Accordingly, under East Carolina law, Bayard is entitled to recover the costs of shipping the computer to Georgia. In contrast, Bazukaland, provides that shipping costs are not recoverable items of damages. Accordingly, under the law of Bazukaland, Bayard is not entitled to the shipping costs.

East Carolina follows the Second Restatement. What law will it apply and why?
PART II. ANALYTIC ESSAY (60 minutes total)

Instructions. Write a coherent, literate essay in the Blue Book that responds to the following problem.

The Case of the Drinking Driving Dilemma (60 minutes)

Debbie Duck, a nineteen-year-old citizen of the state of Intoxication, went out on a date with Paul Pato. Pato picked her up at her parents house in the state of Intoxication and drove her out to Sunset Lake. There Pato produced a bottle of wine and encouraged Duck to drink. Duck had two glasses of wine. She then watched in horror as Pato finished off the bottle and then drank two more bottles of wine.

As a result, Pato became ill and lost consciousness. “Thanks for the swell date, Lover Boy,” Duck murmured as she pushed Pato into the back seat.

Duck then took the car keys from Pato’s pocket and drove back towards her house. Unfortunately, Duck got lost. Without realizing it, she followed the county road into the adjacent state of Confusion.

After entering Confusion, it grew dark. Duck pulled off the road into a convenience store in order to ask for directions. As she entered the parking lot, she collided with a car driven by Preston Peabody. Peabody suffered injuries as a result of the collision. Pato struck his head in the back seat and was injured during the collision.

Confusion State Police arrived at the accident scene, administered a portable breath alcohol test and determined that Duck’s blood alcohol level was .022%. The police charged her with violating Confusion Criminal Code section 911, which makes it a criminal offense for a person under 21 years of age to operate a motor vehicle with a blood alcohol level of more than .02%.

Duck did not realize that she was driving in the state of Confusion. In her home state of intoxication, it is a criminal offense for a nineteen-year-old to operate a motor vehicle only when her blood alcohol level exceeds .08% or when there is other evidence of intoxication. There is no other evidence of intoxication in this case.

Pato and Peabody commence civil actions in the state of Intoxication courts. They allege that Duck was negligent per se because she was driving in violation of the Confusion Criminal Code section 911. Duck denies liability and argues that Intoxication law should apply.

In addition, Peabody has joined Mrs. Pato, the owner of the car that Duck was driving at the time of the collision. Peabody alleges that Mrs. Pato is liable under the Sate of Intoxication Car Owner Liability Act. The Act provides that car owners are jointly and severally liable for any personal injuries caused by persons driving their car with their permission. According to cases decided by the Intoxication courts, Duck was a permissive driver under these facts. The state of Confusion has no similar provision imposing vicarious liability on car owners. Mrs. Pato argues that the statute does not apply and that she is not liable under Confusion law.

Duck also raises the defense of contributory negligence in response to Pato’s claims. Under the law of Confusion, a plaintiff’s voluntary intoxication that contributes to his or her injuries constitutes a complete bar to a tort claim, while the state of Intoxication follows a form of comparative negligence under which a plaintiff’s fault may reduce the amount of recovery but does not constitute a complete bar.

Finally, the defendants raise defenses under the statute of limitations. The plaintiffs commenced their actions after the two years prescribed by the Intoxication statute of limitations but within the three years prescribed by the Confusion statute of limitations.

The state of Intoxication follows the Second Restatement approach to conflicts. The state of Confusion follows the Better Rule of Law approach. Please explain what law the Intoxication court will apply to 1) the issue of whether Duck is negligent per se under the conflicting blood alcohol standards, 2) the issue of whether Mrs. Pato is vicariously liable under the Car Owner Liability Act, 3) the issue of whether Pato’s claim is barred by contributory negligence, and 4) the issue of whether the actions are time barred under the statute of limitations.