FACT PATTERN

A potential client has come to your office with the following story. You have been asked to start working on a complaint. You will be suing a manufacturer and retailer for a defective product. You have been told the following:

A mother (Maude) contacted your firm about her injured daughter. The daughter (Diana) is in the hospital, recovering from a concussion she received while playing lacrosse. Diana is 15 years old. Diana plays multiple sports, including soccer, tennis, and competitive diving. This was Diana’s first season playing lacrosse.

Diana was asked to try-out for the lacrosse team because the lacrosse coach heard that she was a good goalkeeper. It turns out that lacrosse goalkeepers are few and far between, largely due to the injury rate. This fact was not shared with Diana, but the coach assumed that “everyone knew that; it’s lacrosse, after all.”

In Diana’s first full game, she left the crease, and was immediately struck by a player from the other team, and thrown, hard, into one of her team’s defenders. Her helmet came off at some point in the two-part collision, and fell to the ground, as did Diana. Diana’s head certainly hit the ground hard; much more difficult to discern is whether or not her head struck her teammate’s helmet, but we believe it did. We will ask parents for videos from the sidelines.

Diana was knocked unconscious by the blow, and has limited recall about the moments preceding the accident, and almost no memory of the collision itself. The helmet was immediately picked-up from the field. Upon lay inspection, the helmet does not appear to have been damaged, and seems to be in tact; however, the chin-strap popped off from both sides: it was connected with snaps on the outside of the helmet. When compared with her teammates’ helmets, it seems to be exactly the same, with no apparent flaws unique to that particular helmet. Diana was being considered for a soccer scholarship to Stanford; she may lose her shot at a soccer scholarship as a result of the concussion.

Diana never saw the helmet new; it was given to her by her team’s coach – she never saw the packaging. We understand that the helmet came with standard warnings about the dangers of engaging in contact sports, and that a helmet, while providing some protection, cannot possibly eliminate the risks inherent in a dangerous activity.

Diana attends Palo Alto High School; the game in question was against Gunn High School, on the Gunn High School campus. Maude is very hesitant to sue Palo Alto or Gunn High Schools; she is concerned that word will ‘get out’ that she is a vexatious litigant salivating at the opportunity to sue a school, and Stanford will then want nothing to do with her and her family. To the end, and only for the time being, we will only be naming Brine (the manufacturer) and Palo Alto Sport Shop and Toy World (the retailer).

Write a complaint using two of the Causes of Action below (3 of the 4 below are in detail at the bottom of this document:

1. Manufacturing defect

2. Design defect3. Inadequate warnings4. Strict liability in tort (products liability)5. Merchantability

The complaint must include:

1. The caption: choose the proper court, etc.2. General allegations3. A statement of fact 4. Two causes of action5. A prayer for relief

The first sentence of your body will be: PLEASE TAKE NOTE THAT PLAINTIFF, DIANE LINDLEY, DOES STATE AND ALLEGE THE FOLLOWING:

First heading: GENERAL ALLEGATIONS. Under this heading, establish where the accident occurred, where the plaintiff lives, and where the helmet was purchased. Your numbering will start here.

Second heading: STATEMENT OF FACT. Here, you will tell the story; make sure that your telling covers the elements that are needed for the causes of action you have chosen.

Third heading: FIRST CAUSE OF ACTION: (whatever you have chosen). Under this heading, you start with a statement that you are incorporating all previous paragraphs: like: “As a First Cause of Action Plaintiffs re-allege and reincorporate each and every allegation contained in the General Allegations and all previous paragraphs of all previous sections and Causes of Action in this Complaint, inclusive, as though fully set forth herein”

Your prayer for relief is the last paragraph. It is proper to begin the numbering again with the prayer. The best way I have found to do this, is to indent the numbering a second time – this seems to facilitate the new numbering with less time spent trying to tell Word that it must re-number what it wants to keep consecutive.

Prima Facie Case:

Manufacturing Defect:

To Make a prima facie case, the plaintiff has the initial burden of producing evidence that he or she was injured while the product was being used in an intended or reasonably foreseeable manner. If this prima facie burden is met, the burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted from a misuse of the product.

.

Strict Liability—Manufacturing Defect—Essential Factual Elements:

[Name of plaintiff] claims that the [product] contained a manufacturing defect. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] [manufactured/distributed/sold] the [product];

2. That the [product] contained a manufacturing defect when it left [name of defendant]’s possession;

3. That [name of plaintiff] was harmed; and

4. That the [product]’s defect was a substantial factor in causing [name of plaintiff]’s harm.

DESIGN DEFECT:

[Name of plaintiff] claims the [product]’s design was defective because the [product] did

not perform as safely as an ordinary consumer would have expected it to perform. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] [manufactured/distributed/sold] the [Product ];

2. That the [product] did not perform as safely as an ordinary consumer would have expected it to perform when used or misused in an intended or reasonably foreseeable way;

3. That [name of plaintiff] was harmed; and

4. That the [product]’s failure to perform safely was a substantial factor in causing [name of plaintiff]’s harm.

INADEQUATE WARNINGS:

Name of plaintiff] claims that the [product] lacked sufficient [instructions] [or] [warning of potential [risks/side effects/allergic reactions]]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] [manufactured/distributed/sold] the [product];

2. That the [product] had potential [risks/side effects/allergic reactions] that were [known/ [or] knowable in light of the [scientific/ [and] medical] knowledge that was generally accepted in the scientific community] at the time of [manufacture/distribution/sale];

3. That the potential [risks/side effects/allergic reactions] presented a substantial danger when the [product] is used or misused in an intended or reasonably foreseeable way;

4. That ordinary consumers would not have recognized the potential [risks/side effects/allergic reactions];

5. That [name of defendant] failed to adequately warn [or instruct] of the potential [risks/side effects/allergic reactions];

6. That [name of plaintiff] was harmed; and

7. That the lack of sufficient [instructions] [or] [warnings] was a substantial factor in causing [

name of plaintiff]’s harm

IMPLIED WARRANTY OF MERCHANTABILITY

Name of plaintiff] [also] claims that [he/she/it] was harmed by the[ product]that [he/she/it] bought from [name of defendant] because the [product] did not have the quality that a buyer would expect. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] bought the [product] from [name of defendant];

2. That, at the time of purchase, [name of defendant] was in the business of selling these goods [or by [his/her/its] occupation held [himself/herself/itself] out as having special knowledge or skill regarding these goods];

3. That the [product] [insert one or more of the following:]

4. [was not of the same quality as those generally acceptable in the trade;]

5. [was not fit for the ordinary purposes for which such goods are used;]

6. [did not conform to the quality established by the parties’ prior dealings or by usage of trade;]

7. That the failure of the [product] to have the expected quality was a substantial factor in causing [name of plaintiff]’s harm