Using the Sample Case Briefs provided and Appendix A of the textbook, submit a Case Brief on one of the following cases from Chapter 7:

Case 7.1 Schwarck v. Arctic Cat, Inc. page 136 of the textbook.

Case 7.2 Bruesewitz v. Wyeth, LLC. page 138 of the textbook.

Case 7.3 VeRost v. Mitsubishi Caterpillar Forklift America, Inc. page 144 of the textbook.

Rael v. Cadena, 93 N.M. 684, 604 P.2d 822 (Ct. App. 1979) Parties Eddie Rael, Plaintiff-Appellee Emilio Cadena and Manuel Cadena, Defendants-Appellants Prior Proceedings: Eddie Rael sued Emilio and Manuel Cadena for civil battery. The trial court, sitting without a jury (bench trial), found Emilio jointly liable with Manuel for the battery. Emilio appealed the judgment of the trial court Facts While visiting Emilio Cadena's home, Eddie Rael was beaten by Emilio's nephew, Manuel Cadena. After the attack began, Emilio yelled to Manuel "kill him!" and "hit him more!" Emilio never actually struck Rael nor physically participated in the battery. Rael was hospitalized as a result of the beating. Issue Under New Mexico tort law, does liability for battery arise when an individual, present during the battery, encourages the perpetrator of the battery by yelling "kill him" and "hit him more" thus inciting the perpetration of the battery though he takes no actual part in the physical beating? Rule Yes. An individual may be liable for battery by encouraging or inciting the perpetrator by words or acts. Analysis/Reasoning The rule of law in the United States is: Civil liability for assault and battery is not limited to the direct perpetrator, but extends to any person who, by any means, aids or encourages the act. The act of verbal encouragement at the scene may give rise to liability because the perpetrator is goaded and encouraged at the behest of the person encouraging the battery. Here, Emilio encouraged Manuel to beat Rael and to continue to beat him The battery may not have occurred or continued but for Emilio 's encouragement. Therefore, Emilio had some part in the beating even though he never physically contacted Rael. Thus, Emilio is liable for the battery for aiding in its commission and encouraging the act Conclusion (holding/disposition) The judgment against Emilio Cadena is affirmed observations, de a practice and re the sounding o that she was in Case Analysis 7.1 Schwarck v.Arctic Cat, Inc. Court of Appeals of Michigan, 2016 WL 191992 (2016) Frackelton's tes that despite ma lever, the lever the forward po snowmobile fa (Emphasis ads In the Language of the Court PER CURIAM. [By the Whole Court or K-turn dent Schwarck had to turn left to face north, stop, reverse south, stop, and then complete the turn to drive east. Plaintiffs argue that after decedent Schwarck reversed, she stopped a second time and shifted forward, and not hear- ing the reverse alarm, believed she was in To make the turn dece- and pressed against the reverse buffer switch, the switch sounded a chime and the snowmobile was in full reverse mode. Frackelton experimented with the lever, shifting it up toward forward gear, an inch at a time. For the next two inches of shif travel forward, the reverse alarm did por sound, but the snowmobile was still in reverse. Frackelton observed that it was only in the last or fourth inch of shift travel that the snowmobile was in full Karen Schwarck was oper- Reasonabl ating an Arctic Cat [660 snowmobile near Mackinac Island's Grand Hotel lin Michigan] with her sister, Edith Bonno, as passenger. The sisters met their demise when the Arctic Cat went, in reverse, backward through a wooden fence and over the West Bluff of the Island. (Donald Schwarck and Joshua Bonno] the spouses of decedents, as their personal representatives, filed this action [in a Michigan state court) against defendant Arctic Cat [the manufacturer of the 660). Plaintiffs alleged that the Arctic Cat 660 was negligently designed without a backup alarm that oper- ated throughout all the reverse travel positions and as a result proximately caused decedents' injuries. Defendant filed a motion for sum- mary judgment]. Defendant denied the existence of a "silent reverse zone," but argued that even if such a zone existed, it was not a cause of the accident because the alarm was intended as a warning to bystanders and not as an indicator of shift position for operators. whether a rev sound throug or only opera defective. forward, and accelerated. As a result, the craft went in reverse through the fence and off the bluff The trial court determined that there were no material questions of fact on the operability of the reverse alarm. It was undisputed that an inspec- tion of the Arctic Cat post-accident showed the reverse alarm to be operable. Legal ca after cause i To estas Legal Rea forward. 1. Accordir a defecth Frackelton observed that the transition from full reverse to full for- ward was smooth and accomplished with little pressure. He opined that an opera- tor could "become accustomed to the highly repeatable return performance. On two occasions, however, Frackelton pushed the gearshift forward and the Arctic Cat did not return to forward gear 2. How die [But) the cOurt's conclusion that the reverse alarm was working the time of the accident does not deter- mine whether its operational process constituted a product defect. Plaintiff claim was that the reverse alarm was defective because it did not sound dur- ing the entire time the vehicle was in reverse. Plaintiffs causation theory was that the Arctic Cat's reverse alarm caused decedent Schwarck to be confused about whether she was in forward or reverse gear and that the confusion led to the accident that caused decedents' deaths. [Plaintiffs' expert John Frackelton, an accident reconstructionist and snow- mobile mechanic,] observed that the shift lever traveled from full reverse to full forward in a distance of four inches Frackelton's testing revealed that when the lever was shifted all the way down 3. Why di- ar as expected. 7-2b M Frackleton's opinion ates a material question of fact as to whether the alarm failed to sound at all times when the gear was in reverse. Defendant argues that the alarm served its intended purpose which is to notify bystanders and not operators that the snowmobile is in reverse and that it was unreasonable for decedent Schwarck to rely on the alarm to determine the gear of the snowmobile. The fact that the manufacturer ' intended purpase for the alarm was to warn thind-parties is tdispositive of the isue of whether decedent Schwarck relied on the alarm to When a ufacture basis of the mis or with mislabe intentic constit In a rial fac buyer's The court issued its decision and order in favor of defendant. [The plain- tiffs appealed. There is no of the accident decedent Schwarck was driving the Arctic Cat 660 she attempted to execute a three-point dispute that on the day and that not tion o intent on act Case 7.1 Continued on- determine her gear or whether that reli- ance was reasonable or a of the alarm and snow mobile. Decedent Schwarck is assumed to have acted with due care for her own safety. Her widower averred that, based upon his observations, decedent Schwarck had a practice and routine of relying upon the sounding of the alarm as a signal that she was in reverse. Evidence from Frackelton's test runs also demonstrate that despite manual control of the shift lever, the lever could stop just short of the forward position and prevent the snowmobile from going into drive. [Emphasis added.] Reasonable minds could differ as to whether a reverse alarm that does not sound throughout the reverse trajectory or only operates in a partial manner is defective. must show that it was foreseeable that the defendant's conduct may create a risk of harm to the victim, and that the result of that conduct and intervening causes were foreseeable. It is foresee- able that an operator of the Arctic Cat may rely on the sound of the reverse alarm to indicate when the snownmobile is no longer in reverse and experience unexpected travel backward because the alarm does not sound during the entire reverse gear. It is further foreseeable that unanticipated reverse travel may cause a risk of harm to the operator. Frack- regarding speed velocity without aggressive throttle demonstrate how the Arctic Cat can travel almost thirty feet in just 5.4 seconds. Not only can an operator of the Arctic Cat find him or herself unexpectedly travelling in reverse, but also doing so quickly. Plaintiffs' other expert [Lila Laux, a psychologist and engineer] testified * that time is * required for the opera- tor to determine how to respond to the w. unexpected stimuli, to engage the brake, and for the brake to activate. [Emphasis added.] A jury could infer that traveling backward when one thought he or she would go forward is an unexpected stimulus. It is also a reasonable inference, from the opinions of both plaintiffs experts, that it was foreseeable that the operator would be surprised by the rear- ward motion. Given the evidence, rea- sonable minds may differ as to whether decedent Schwarck did not or could not correct the snowmobile's rearward direc- tion in the time allotted. Based on the whole record, there is evidence that warrants submission of this foreseeable misuse ase elton's tests case to a jury to determine whether the reverse alarm was defective and whether that defect caused decedent Schwarck and Bonno's deaths. [The trial court's judgment is vacated and remanded for proceedings consistent with this opinion. Legal cause becomes a relevant issue after cause in fact has been established. To establish legal cause, the plaintiff Legal Reasoning OQuestions was this not 1. According to the plaintiffs, what was the product defect at the center a defect? of this case? According to the defendant, why use evidence to support their claim? 2. How did the plaintiffs 3. Why did the court conclude that this case should be submitted to a jury? Explain. 57.377 P2d 897, 27 Cal.Rptr. 697 (1962). Spotlight on Injuries from Vaccines Case 7.2 Bruesewitz v. Wyeth, LLC Supreme Court of the United States, 562 U.S. 223, 131 S.Ct. 1068, 179 LEd.2d 1 (2011) Company Profile Wyeth, LLC-a subsidiary of Pfizer, Inc.-is an international pharmaceutical and health-care company with its corporate headquarters in Madison, New Jersey. Wyeth develops, makes, and markets medical therapies, clinical programs, nutritional supplements, prescription drugs, and other health- care products, including over-the-counter medications. Wyeth was incorporated in 1926. In 1994, the company bought Lederle Laboratories. Since 1948, Lederle had been making the diphtheria, tetanus, and pertussis (DTP) vaccine for children. Background and Facts When Hannah Bruesewitz was six months old, her pediatrician adminis- tered a dose of the DTP vaccine according to the Centers for Disease Control's recommended child- hood immunization schedule. Within twenty-four hours, Hannah began to experience seizures. She suffered more than one hundred seizures during the next month. Her doctors diagnosed her with "residual seizure disorder" and "developmental delay." Hannah's parents, Russell and Robalee Bruesewitz, filed a claim for relief in the U.S. Court of Fed- eral Claims under the National Childhood Vaccine Injury Act (NCVIA). The NCVIA had set up a no- fault compensation program for persons injured by vaccines. The claim was denied. The Bruesewitzes then filed a suit in a state court against Wyeth, LLC, the maker of the vaccine, alleging strict product liability. The suit was moved to a federal district court. The court held that the claim was preempted by the NCVIA, which includes provisions protecting manufacturers from liability for "a vaccine's unavoidable, adverse side effects." The U.S. Court of Appeals for the Third Circuit affirmed the district court's judgment. The Bruesewitzes appealed to the United States Supreme Court. the be defective ba Power Products out the reason for w (including law g consumers who Case 7.2 Continued In the Language of the Court Jstice SCALIA delivered the opinion of the Court In the 1970's and 1980's vaccines became, one might say, victims of their own success. They had been so effective in preventing infectious diseases that the public became much less alarmed at the threat of those discases, and much more concerned with the risk of injury from the vaccines themselves. Much of the concern centered around vaccines against DTP, which were blamed for children's disabilities .This led to a massive increase in vaccine-related tort litigation. "This destabilized the DTP vaccine market, causing two of the three domestic manufacturers to withdraw. t, the "purpose costs of injuries ne by the manu- persons who ae lay, the majority , although some ations involving amage). To stabilize the vaccine market and facilitate compensation, Congress enacted the NCVIA in 1986. The Act establishes a no-fault compensation program designed to work faster and with greater case than the civil tort system. A person injured by a vaccine, or his legal guardian, may file a petition for compen- sation in the United States Court of Federal Claims Successful claimants receive compensation for medical, rehabilitation, counseling, special education, and vocational training expenses; diminished earning capacity: pain and suffering and $250,000 for vaccine-related deaths. Attorney's fees are provided a tax on each vaccine dose. The quid pro quo [something done in exchange] for this, designed to stabilize the vaccine market, was the provision of significant tort-liability protections for vaccine manufacturers. Manufacturers are genenally immunized from liability if they have complied with all regulatory requirements And most relevant to the present case, the Act expressly eliminates liability for a vaccines unavoidable, advene side effects. [Emphasis added.] ay be expressed mes, public pol- on of a statute .These awards are paid out of a fund created by The Act's structural quid pro quo leads to the their sales an informal, efficient compensation program for vaccine injuries; in exchange they avoid costly tort litigation. conclusion: The vaccine manufacturers fund from Decision and Remedy The United States Supreme Court affirmed the lower courts judgment. The NCVIA preempted the Bruesewitzes' claim against Wyeth for compensation for the injury to their daughter caused by the DTP vaccine's side effects. The Court found that the NCVIA's compensation program strikes a balance between paying victims harmed by vaccines and protecting the vaccine industry from collapsing under the costs of tort liability Critical Thinking Economic What is the public policy expressed by the provisions of the NCVIA? Political Ifthe public wants to change the policy outlined in this case, which branch of the government-and at what level-should be lobbied to make the change? Explain ical and makes and other health 94, the tanus, and Case 7.3 VeRost v. Mitsubishi Caterpillar Forklift America, Inc. New York Supreme Court, Appellate Division, Fourth Department, 124 AD.3d 1219, 1 N.Y.S.3d 589 (2015). 7-4a A defer in reces tions p Case 7 manuf Background and Facts Drew VeRost was employed at a manufacturing facility in Buffalo, New York, owned by Nuttall Gear, LLC. While operating a forklift at Nuttall's facility, VeRost climbed out of the seat and attempted to enqage a lever on the vehicle, As he stood on the front of the forklift and reached for the lever with his hand, he inadvertently stepped on the vehicle's qgearshift. The activated gears caused part of the forklift to move backward, injuring him. He filed a suit in a New York state court against the forklift's maker, Mitsubishi Caterpillar Forklift America, Inc., and others, asserting claims in product liability. The defendants established that the vehicle had been manufactured with a safety switch that would have prevented the accident had it not been disabled after delivery to Nuttall. The court issued a summary judgment in the defendants' favor. VeRost appealed compr to ext- oous Supre a mar In the Language of the Court (a bal. liabili MEMORANDUM a com The forklift in question was manufactured by defendant Mitsubishi Caterpillar Forklift America, Inc. (MCFA), and sold new to Nuttall Gear by defendants Buffalo Lift Trucks, Inc. (Buffalo Lift) and Mullen Industrial Handling Corp. (Mullen). The forklift as manufactured was equipped with a seat safery switch that would render the forklift inoperable if the operator was not in the driver's seat. At the time of the accident, however, someone had intentionally disabled the safety switch by installing a "jumper wire" under the seat of the forklift. As a result, the forklift still had power when the operator was not in the driver's seat. Of the 10 forklifts owned by Nuttall Gear, seven had "jumper wires installed that disabled the safety switches The complaint asserts causes of action against MCFA, Buffalo Lift and Mullen sounding in strict products liability, alleging, inter alia ["among other things"], that the forklift was defectively designed and that those defendants failed to provide adequate "warnings for the safe operation, maintenance repair and servicing of the forkldift." Following discovery, the *defendants cach moved for summary judgment dismissing the complaint against them, contending that the forklift was safe when it was manufactured and delivered to Nuttall Gear, and that it was thereafter rendered unsafe by a third party who deactivated the safety switch. [The] Supreme Court (of New York] granted the motions and dismissed the complaint in its entirety, and this appeal ensued. We conclude that the court properly granted the motions of the *" defendants turer, whe has designed and produced a safe product, will net be liable for injuries resulting from subtantial alterations or modifications of the product by a third party which render the product defective or ocherwise uafe. Here, the ** defendants established as a matter of law that the forklift was not defectively designed by establishing that, when it was manufactured and delivered to Nuttall Geat, it had a safery switch that would have prevented plaintiff's accident, and a third party thereafter made a substantial modification to the forklift by disabling the safety switch. [Emphasis added. medi- tion factu make mark com ness exte ity a inju mer the pree in c A manufac 16. 17. 18. CHAPTER 7 Strict Liability and Product Liability 145 Case 7.3 Continued Decision and Remedy The state intermediate appellate court affirmed the lower court's judgment in Mitsubishi's favor. To succeed in an action based on product liability, the goods at issue must not have been substantially changed from the time the product was sold to the time the injury was sustained. VeRost could not meet this requirement. Critical Thinking Legal Environment Could VeRost succeed in failure to maintain the forklift in a safe condition constituted negligence? Discus an action against Nuttall, alleging that the companys