Professor Franks

Final Examination, Summer 1996

1. Carefully analyze the facts and grasp the issues in each question before beginning to write. Spend time reading the question slowly and carefully.

2. State the issues and answers to each question concisely. Lengthy answers are not necessary.

3. Do not repeat questions in your answers. Write neatly and legibly on only one side of each page.

4. Number your answers to correspond with the question, e.g., "I-E."

5. If you feel it necessary to assume additional facts in any of the questions, give the facts that must be added and state why.

6. Do not write in the margin of the book.

7. All major questions are equally weighted unless otherwise indicated. Subparts are approximately equal but may be weighted slightly differently according to the number of issues involved in that subpart.

8. Write your pin number and the name and section number of the course on which you are being examined on the cover of each examination book.

9. If you use more than one book, indicate "Book One," "Book Two" and so forth on the cover of each book and write your fictitious name and number and the name and section number of the course on the cover of each examination book.

10. A GOOD ANSWER IS NOT NECESSARILY A LONG ANSWER.

Upon graduation from Southern University Law Center, you pass the bar on your first attempt and immediately accept an offer of employment as an associate in the law firm of Dewey Billum & Howe. Shortly before you went to work for the firm, a ValueAir flight from Houston to Baton Rouge crashed into Lower Mud Lake in Cameron Parish, Louisiana, killing all aboard, including the pilot, co-pilot, flight attendant and all thirty-nine passengers.

An airplane's cockpit voice recorder contains the last conversations between the pilot and the air traffic controller. This one went as follows:

In addition to a cockpit voice recorder, every large airplane has a flight data recorder that contains the airplane's last instrument readings. Flight 982's flight data recorder reveals that everything was working fine, then the cabin pressurization system failed, and shortly thereafter the aircraft simply spun out of control and lost altitude rapidly, hitting the ground at high speed with great force and destroying all but the flight data recorder and cockpit voice recorder.

Following the accident, the Federal Aviation Administration (FAA) conducted an extensive investigation, not so much of the accident as of the airline itself. In the course of this investigation, the FAA learned that the aircraft's cargo had included a shipment of pressurized gas cylinders, and that the airline's flight dispatcher at Houston, Harvey Dittswit, had falsely certified on the airline's cargo manifests that he had personally inspected the cylinders and found them properly capped. The FAA also found the airline's records were inaccurate or outright falsified in other particulars: logs of a dozen other ValueAir airplanes (not involved in the crash) falsely showed federally required maintenance to have been performed on numerous occasions when in fact it was not.

A separate federal agency, the National Transportation Safety Board (NTSB), investigated the crash itself. The NTSB took extensive testimony under oath, limited to the cause of the accident in question. The NTSB has now issued findings, and finds that the accident was the fault of gas leaks in the cargo compartment from gas cylinders not properly capped as required by federal safety regulations.

ValueAir's theory of the case is that the fire started when a passenger went to the lavatory to smoke a cigarette illegally, and the passenger's butane lighter ruptured, spewing flaming butane liquid and burning gas all over the lavatory.

In his deposition taken last month, Harvey Dittswit swore he personally inspected the gas cylinders in question and that they had the required safety caps. However, just two weeks after the crash, Harvey admitted to his neighbor, Nick Nabor, at a barbecue: "It's all my fault. I never really looked at those cylinders. We sign off on these things all the time there just isn't enough time in the day to personally inspect everything. I feel so guilty I confessed this to my parish priest, Father Peter Priestly."

Kim Campbell is an aviation accident investigator for the Canadian Ministry of Transport. She was on loan to the United States National Transportation Safety Board at the time of the accident, and participated in the investigation of the crash. She has her own theories of how the accident happened, and her theories are helpful to the defendant's case. Unfortunately, they are based on techniques of aviation accident investigation developed in Canada and not yet used in the United States.

Your employer, Dewey Billum & Howe, has filed suit against ValueAir in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, alleging negligence of the airline in carrying hazardous cargo without complying with the applicable federal regulations, and negligence of the airline's flight dispatcher, Harvey Dittswit, in failing to properly inspect the gas cylinders before loading them onto the airplane.

Your client is Susan McPlaintiff, and she has filed a wrongful death and a survival claim. Her late husband, a passenger on the doomed flight, was Mitchell McPlaintiff, a prominent Baton Rouge real estate developer. Unfortunately, he had served on the board of directors of Whitewash Savings & Loan in Little Rock. Just prior to his demise, Mitchell McPlaintiff was indicted by a federal grand jury in Little Rock for taking kickbacks from bank customers on whose behalf he had used his influence to obtain approval of large bank loans. Before his death, McPlaintiff confided to an associate, Percival Partner, "I've been taking kickbacks from bank customers. They've found me out. My career is over. I think I'm going to be convicted and go to prison."

Two weeks before the accident, Susan told her best friend, Bertha Bestfriend, "Mitchell is a no-good bum. I'm afraid with his sexual habits he's going to give me AIDS. I'm divorcing the bum as soon as I can scrape up my lawyer's retainer."

I-A. How do you intend to prove the negligence of ValueAir? How exactly do you intend to prove the gas cylinders had no caps? Discuss in detail.

I-B. May you use the NTSB report and the FAA report to prove the airline's negligence? How if at all may you use those documents? Assuming a transcript exists of all testimony taken before the NTSB, how if at all may you use such testimony at the trial of your client's civil suit? Discuss.

I-C. May you call as a witness the FAA inspector who found numerous other safety violations by the airline and have him testify as to those other violations? Discuss.

I-D. The defense wants to admit into evidence Harvey Dittswit's cargo manifests as evidence that the cylinders were properly capped. May they? How? Discuss.

I-E. If the airline succeeds in getting the cargo manifests admitted into evidence as proof that the cylinders were properly capped, what will you do? Discuss.

I-F. The defense wants to call Kim Campbell to testify that in her opinion it is as likely that the fire originated in the lavatory as in the baggage compartment. May she so testify as an expert witness? Discuss.

I-G. The defense wants to use Mitchell McPlaintiff's arrest and indictment, and his statement to Percival Partner. Will they succeed? Discuss.

I-H. The defense wants to use Susan McPlaintiff's statement to Bertha Bestfriend. Will they succeed? Discuss.

II-A. Explain the difference between present memory refreshed and prior recollection recorded.

II-B. Discuss whether a prior inconsistent statement is hearsay.

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