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Question 1: A Bad Luck Tale.

It was winter and Yolanda Yellin, aged 38, was sledding with her young children (Uma and Victor) on a snowy hill in their suburban neighborhood. The hill was part of the property of a private club (The Paradise) to which Yolanda and her family did not belong. Like many of those enjoying some winter fun that day, Yolanda and her children were simply using this hill, just as many other neighbors had done so over the years. In earlier years, the club’s management had made some feeble efforts to keep non-members out. This winter, it simply posted a sign saying “Sled at your own risk.”

A teenager, Zoe Zimmer, was sliding down the hill through some snow that no one else had yet used (perhaps because it was very close to a tree), and at a speed that was faster than that of the others, when her sled (bought from L.L. Bean) got caught on a length of metal chain that was hidden just beneath the snow. The chain had been tightly strung across an area of the club’s property earlier that fall by the club’s landscape contractor (George’s Gardening Inc.) in an effort to protect some new plantings next to the tree. Neither George nor any club employee had paid any attention to whether the snow had hidden the chain.

The combination of Zoe’s speed and the metal chain tossed Zoe and her sled into the air and, alas, they smashed into Yolanda from the side. The force of the collision knocked Yolanda over and cut her on the face and neck. Unfortunately, previously unknown to her, Yolanda had an unusually vulnerable blood vessel right where she was cut and she began to bleed badly. Zoe immediately pulled off her own scarf and applied pressure to where Yolanda was cut as best she could, as she had been taught in a high school Red Cross class. An ambulance (Emergency Services) was called, it arrived, and the emergency medical technician, Linda Liu, took over caring for Yolanda. The ambulance then rushed Yolanda to the local hospital (Suburban Hospital). Because she had lost so much blood, Yolanda needed a blood transfusion, which was given to her by Dr. Hilary Hart (an employee of the hospital) in the hospital’s emergency room. Had Yolanda not needed a transfusion, she probably would have been patched up in the emergency room, sent home, and back to her regular life in a few days (albeit with a 3 permanent scar on her neck and face). Having the transfusion meant that Yolanda had to stay longer in the hospital. Alas, the blood Yolanda received in the transfusion was tainted, and as a result it was discovered (while she was in the hospital) that Yolanda contracted the disease hepatitis C from it. The disease was quickly diagnosed by Dr. Alice Adam, a hospital staff physician, who then began treating Yolanda’s hepatitis. After a week more in the hospital, Yolanda’s condition seemed substantially improved, and Dr. Alice and her staff were confident that Yolanda was on the road to recovery. Yolanda’s regular daytime nurse, Tommy Townsend, told her that she would probably be released to recuperate at home in a few days. Unfortunately, later that day it seems pretty clear that Yolanda was given a double dose of one of her medicines. It is still unclear whether nurse Townsend misread Yolanda’s chart, Dr. Alice’s instructions were written illegibly or erroneously, or at the shift change a second nurse, Ursula Underhill, mistakenly repeated the medicine that Yolanda had just been given. In any event, that evening Yolanda began suffering from lung damage that required her to stay two weeks more in the hospital. The senior expert at the hospital concerning Yolanda’s medication, Dr. Fred French, later told Yolanda, and noted on her chart, that while the lung damage might have been brought on by the original sled crash, there was at least a 33% chance that it was due to the excessive dose of her medicine. Eventually Yolanda was released from the hospital and after a week at home resting, she returned to the hospital, as directed, to have some further tests to see how her body was coping with the hepatitis C, as well as to see whether she was otherwise continuing to heal as hoped (i.e. her lungs, her cuts). She arrived at the hospital at 2:45 p.m. for her 3:00 p.m. appointment with Dr. Alice, but at 3:15 p.m. she was still in the waiting room as Dr. Alice had taken an extra long lunch hour that day to be with her lover and was running late with her appointments. At 3:15 p.m., a deranged person, Charlie Cook, burst into the waiting room carrying an assault weapon made by Big Boy Weapons that he had recently bought and modified. Incoherently shouting something about America’s new health care law being a crime and Suburban Hospital having deprived him of 4 his medication, he started firing his weapon, rapidly discharging bullets around the room. Yolanda was immediately hit twice in the leg and knocked over onto the floor. The other patient in the room was killed. Charlie then barged through the door where the doctors and other staff were, shouting for Dr. Nell Nixon, a staff psychiatrist. Police rushed to the scene, and in the course of a blazing gun battle with Charlie, they killed him. Luckily, no other hospital staff or patients were shot, and Dr. Nell was actually unexpectedly away from the hospital that day at a conference. In Charlie’s pockets they found some news letters claiming that the recently implemented Obama health care law would ruin America. Investigators also found that Charlie had previously been an out-patient at Suburban Hospital, where he was treated with medications for serious mental illness by Dr. Nell. More recently, Charlie had been under the care of psychiatrists, Elena Everett and Jay Jones, at the local county hospital that caters to indigents without health insurance. Dr. Jay’s notes of a recent session with Charlie show that Charlie had threatened to kill a doctor at Suburban Hospital if he did not continue to get his medicine. Dr. Jay did not take this threat seriously, however, because Charlie was continuing to receive his medicine from the county hospital. Dr. Elena’s notes from Charlie’s latest session (which was with her) show that she was concerned about Charlie not taking the right amount of his medicine at the right times and so she prescribed half as much as usual as a way to get him to return to see her more often and to allow her thereby to monitor him more closely. The police investigation has further determined that, ten days earlier Charlie bought the weapon he used at a gun show from a private seller named William Wilson. Following directions which Charlie found in Private Soldier magazine, and using parts made by Big Boy Weapons that Charlie also bought from William, he modified the weapon to allow it to fire repeated rounds of bullets by merely holding the trigger back. If the gun had been sold to Charlie in this modified form, it would have been an illegal sale. Both the gun maker and the gun show seller know that many buyers modify the weapon in this way. This particular model of Big Boy Weapons has been involved in a disproportionate share of gang shootings (as compared with its market share). Although it was illegal for someone with Charlie’s mental health history to possess a firearm, there was no register at the gun show for William to consult in order to determine whether Charlie was a legal buyer. At the gun show, Charlie told William that he wanted the 5 gun in order to go “plinking” (i.e., to go out into the country and shoot at some metal targets like beer cans that he would put up and blast away at). Logs from Suburban Hospital’s telephone operators show that an incomprehensible person had phoned the hospital twice during the week before the shooting, ranting and shouting, but not making any threats and not leaving a name or phone number. Police later traced two calls to the hospital from a pre-paid cell phone found on Charlie’s body. As is typical for most hospitals, the public has easy access to nearly all of the facility, including waiting rooms, guest rooms, etc. Irene Isaacs, an unarmed security guard employed by Safety Sells, was routinely on duty in the hospital lobby at the time of the shooting. She did not notice Charlie at all when he entered. She did hear the noise from Charlie’s gun, however, and she was the one who first called for police help. Yolanda had been an executive employed by Home Depot for the past two years, and she was earning $120,000 a year at the time of the sled accident. If asked, Dr. Ken Kelly (the family practitioner who normally treated Yolanda and her children) would testify that Yolanda’s parents both died young from leukemia and that cancer was very common in Yolanda’s family. Assume that blood used in transfusions at Suburban Hospital is routinely screened for the hepatitis C virus (among other things) by the exclusive blood supplier in their county, Community Blood Bank, and that such screening successfully discovers the virus at least 95% of the time. Assume that, while in the emergency room, Yolanda signed a consent form (provided by the hospital) that made clear to her that, although blood transfusions are normally quite safe, there is an unavoidably small risk of serious harm from the procedure. Assume further that Community Blood Bank, like a substantial number of other blood banks nationwide, pays donors for providing blood, and, in turn, sells the blood it obtains to the hospitals that use it to treat patients. Other blood banks only accept blood donations from volunteers, and the rate of hepatitis C tainted blood they obtain is considerably less than that bought by suppliers like Community Blood Bank. Regardless of their suppliers, hospitals these days charge patients for the blood transfusions they receive. Yolanda has finally substantially recovered from her injuries, although she limps from the bullets that hit her and, as noted, has a permanent face and 6 neck scar. Moreover, while her hepatitis C is currently under control, unless new and more effective treatments are developed, then in due course she may well need a liver transplant. Yolanda and her spouse Mel have come to your law firm to discuss possible litigation arising from Yolanda’s injury, treatment, and shooting, and your senior partner has asked you to prepare a memo analyzing the prospects for any legal claims that Yolanda might make. (Please ignore any loss of consortium claim that Mel might have, as well as any emotional distress claims that might be brought by Yolanda’s family.) If additional facts are needed, explain what they are and why they would make a difference. Assume that there are no statutes that are relevant to possible tort liability in this case, and put aside any civil procedure issues (including statute of limitations issues). (P.S. as you do not know what jurisdiction is involved in this case, prepare your memo accordingly.)

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