Exam No.

____________ Session ______

Professor Garrison Room _______

BROOKLYN LAW SCHOOL

TORTS FINAL EXAMINATION
Fall, 2016
Time Allowed: Three Hours

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INSTRUCTIONS:

1. In taking the examination, you may refer to notes (one page only no larger than 8 1/2"
by 14") you have prepared. No other materials are permitted in the examination room.

2. If you write your answer in an exam booklet, please write in ink, double-spaced, on
one side of the page only.

3. The exam involves several questions that arise from one fact pattern. Assume that the
facts given are correct and that they are the only facts now available. Do not assume any additional
facts, even if you have relevant experience.

4. Read carefully and organize your answer before you begin to write; organization,
clarity, and accuracy are more important than answer length.

GOOD LUCK!
 In July, 2016, Niantic (N), released Pokémon Go (PG), a mobile app that superimposes a
game environment on GPS-based locations. PG players use smartphones to “catch” more than a
hundred species of virtual creatures called Pokémon: After the PG app is launched, the player’s
smartphone vibrates when a Pokémon is close by; after the player, using the PG app, locates the
Pokémon, he or she captures it by aiming, via the smartphone’s touch screen, a “Poké ball” at the
desired creature and hitting it. More Poké balls (and other items useful in the game) may be
obtained from a “PokéStop.” Pokémon may appear anywhere, but players may induce them to
turn up at PokéStops by using a “lure.” Once captured, Pokémon may be “trained” at a “gym.”
Gyms are also sites of PG battles, important to advancing in the game. Both gyms and PokéStops
are typically located outdoors in public spaces and cultural or historical monuments, but there are
numerous exceptions. (For example, the BLS Library apparently houses a PokéStop.)

In late summer (the last date for which estimates are available), 20 million U.S. users
played PG daily. More than three-quarters of PG players are young adults (18-34), but the game
also appeals to older children and teens. For players under age 13, N requires parental consent to
creation of a user account. PG is designed to be played while walking, and it has been credited
with increasing the activity level of users.

The screen that opens when PG is played warns users that they should “remember to be
alert at all times” and “stay aware of their surroundings.” Another warning screen alerts players
that they “should not enter dangerous areas.” Nonetheless, PG’s introduction was rapidly followed
by a wave of reports detailing player accidents and victimizations that resulted from focusing
exclusively on phones.

In addition to these player incidents, PG’s introduction also produced a wave of bystander
injuries. Most of these were the product of PG users playing the game while driving. Indeed,
researchers who used social media and news reports to estimate report that more than 100,000
distracted-driving incidents associated with PG playing occurred during a single 10-day period in
August, 2016.

N responded to reports of distracted driving by making it harder to discover Pokémon when

moving at higher-than-walking speed. N also added a dialog box that both warns PG “should not
be played while driving” and requires a player to specify that he/she is not driving before
continuing the game. More recently, N has altered the game’s search function so that it shuts down
when the player’s smartphone is traveling at a speed of more than 25 mph.

PG players have not been pleased with the new speed restriction. However, the U.S. Dept.
of Transportation Secretary has urged that “no one should be driving and using a smartphone.”
The National Highway Safety & Transportation Administration (NHSTA) has gone further and,
in November, 2016, released “voluntary guidelines” designed to curb risky vehicular smartphone
use. The guidelines are responsive to rising deaths and injuries related to smartphone use while
driving. According to NHSTA, in 2015, about 10% of 35,092 U.S. traffic fatalities involved one
or more distracted drivers, an 8.8% over 2014; during the same year, 424,000 injuries resulted
from distraction-related crashes.

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 The new NHSTA guidelines suggest, but do not require, manufacturers to design
smartphones with an automatic “Driver Mode” (DM). DM would cut off all manual text entry and
displays of images unrelated to driving but permit voice commands for some features such as
messaging and maps. NHSTA has also urged manufacturers to create a downloadable DM that
would impose the same limitations on existing smartphones. Under the NHSTA guidelines, a
smartphone’s DM would automatically activate if: 1) it is “not paired with an in-vehicle [DM]
system” (which produces roughly the same use restrictions as phone-based DM); and 2) “the
device . . . distinguishes that it is being used by a driver who is driving.” Under the guidelines,
DM would not activate when a smartphone was used by a passenger.

Current smartphones can detect that they are in a moving vehicle, but the technology to
distinguish between a driver and a passenger is not currently available; NHSTA says that this
technology is “being refined.” No current smartphones automatically shut down when a driver
uses them, although most newer models are compatible with in-vehicle DM and most also have
preloaded “driver” or “car” modes. Like the DM proposed by NHSTA, all existing DM systems
prevent PG use by drivers. However, all existing smartphone “driver” and “car” modes can be
turned off; indeed, many must be turned on or “enabled” to function.

Your firm has been approached by several individuals, all California residents, about
bringing lawsuits related to PG-related injuries. You have been asked to draft a memorandum
analyzing the tort-law issues that would arise in the cases below. In writing the memorandum,
please evaluate all relevant tort claims against all listed defendants. Identify avenues for further
factual inquiry, if more facts are needed, and make sure that you explain your reasoning fully.
PLEASE RESPOND TO EACH CASE IN THE ORDER GIVEN.

Case 1 (40 Points – Suggested time: 1 hour 10 minutes)

In November, 2016, Ann was riding a bicycle home from work on a two-lane road with a
designated bike path between the traffic and parking lanes when she came up to a car traveling
very slowly (Ann estimates 10 mph) in the lane closest to the bike path. As Ann was about to pass
the car, driven by Driver, it swerved suddenly into the bike path and stopped. Ann could not stop
in time to avoid hitting the car, and she could not get out of the way because of parked cars. Ann
was thrown from her bike and sustained both internal injuries and multiple fractures.

Driver, age 17, admitted to the investigating police officer that he had been playing PG
when the accident occurred. “I didn’t see any way I could cause an accident going 10 miles per
hour!” Driver said to the officer. Driver’s cellphone, an iPhone 6 made by Apple and less than a
year old, is compatible with vehicular DM, but Driver’s 2006 (pre-smartphone) car is not equipped
with a DM system. Apps that add DM are available for the iPhone 6, but it does not have any type
of pre-installed driver or car mode, nor does the newer iPhone 7.

Driver’s insurer has already offered to settle for the policy limits, but this sum is inadequate
to pay for more than a small fraction of Ann’s injury-related losses. Please evaluate the likelihood
of success in tort claims by Ann against: a) N; b) Apple; and c) the NHTSA.

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Case 2 (60 Points – Suggested time 1 hour 50 minutes):

Ben, age 13, and his brother Calvin, age 11, had been using PG for about a week when they
went on a night search together in August, 2016. Some types of Pokémon are more likely to be
found at night; some online player reports also claim that rare Pokémon are most likely to be found
between midnight and 5 a.m. Hoping to catch something special, Ben and Calvin sneaked out of
their home after their parents were in bed and began to search around midnight. Ben’s and Calvin’s
parents knew that the boys had started playing PG, but did not know that they played after dark or
even that the game could be played at night. Because both boys used Ben’s smartphone (a three-
year-old iPhone 5), the parents did not sign a PG parental-consent form.

After about half an hour of looking in a neighborhood park, Ben and Calvin spotted a rare
PG “Pikachu” in a nearby alley. They raced down the alley; because the lighting was poor, they
knocked into a group of garbage cans and made quite a lot of noise. The noise awakened several
residents. One (Resident) looked out her window, saw dark figures standing by her back door, and
thereafter heard Ben say to Calvin, “let’s get it fast and get out of here.” Resident responded by
getting a handgun and firing it out the window, yelling “you thieves better get out of here.”
Although Resident later told the police that she had intended only to “scare away the burglars who
were about to enter my house,” a bullet from the gun ricocheted off a wall and struck Ben in the
abdomen. Ben screamed, fell, and began sobbing. Calvin screamed, too. Many people called
911. A police car and ambulance arrived promptly and took the boys to Hospital.

Ben was hospitalized for four weeks; during his first week of hospitalization, Ben
developed a central-line-associated bloodstream infection (CLABSI). CLABSIs are life-
threatening. According to the U.S. Centers for Disease Control (CDC), hospital-based CLABSIs
declined 46% from 2008 to 2013, but about 30,000 still occur in U.S. hospitals each year, and 12%
to 25% of patients who contract CLABSIs die. The decline in CLABSIs has been linked to the
introduction of mandatory checklists designed to ensure rigorous compliance with CLABSI-
prevention procedures such as thorough hand washing; in a pioneering study, a hospital that
introduced a mandatory checklist saw its CLABSI rate fall from 11 to 0 per thousand patient-days.
CDC says that mandatory checklists can “reduce CLABSIs by more than 70%.” Hospital
introduced a mandatory CLABSI-prevention checklist in 2011 and saw its infection rate fall from
15 to 1 per thousand patient days. Hospital personnel have said that the source of Ben’s CLABSI
is “unknown.” Both boys continue to suffer from nightmares about their experience.

Please evaluate the likelihood of success in tort claims by Ben and Calvin against: a) N;
b) Apple; and c) Resident; and by Ben against Hospital. Please also determine if Ben’s and
Calvin’s parents could be successfully impleaded as third-party defendants.

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