Anatomy homework help
For this assignment, answer each question as completely as possible. All work must be your
All papers must be double spaced, times new Roman, twelve point font, one inch margins.
Minus five points for failure to comply.
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Due April 5 at 10 pm
1. Simon was at the Oyster Restaurant and ordered 6 raw oysters. These were taken from a
refrigerated area, shucked in from of him, and placed on a tray with ice. Simon ate them all,
and thought they tasted good.
Note: the menu had a warning about the dangers of eating raw food.
Simon did not eat any additional shellfish for the next two days. On the second day, Simon
began to run a fever and had pain in his ankle. He went to the hospital, and a specialist in
infectious diseases diagnosed him as suffering rom vibrio vulnificus septicemia — an
infection from eating raw oysters containing the vibrio vulnificus bacteria. Eventually, both
of Simon’s legs had to be amputated due to the infection.
Undisputed evidence produced during discovery revealed that vibrio vulnificus bacteria is
naturally occurring, and that oysters, as filter feeders, often develop concentrations of the
bacteria. Appropriately 50 percent of oysters contain some amount of the bacteria. Proper
cooking will kill it, but there is no feasible way to detect whether raw oysters have the
bacteria in them before eating them.
For most people, vibrio vulnificus is not toxic and can be killed by stomach acids. People
with certain health problems have a higher risk of developing septicemia.
Simon has cirrhosis of the liver.
Simon, who acknowledges that it appears that the Oyster Restaurant did nothing wrong
when handling the oysters, nonetheless sues the Restaurant for strict product liability,
arguing that there is a “design defect” by including oysters on the menu at all.
Should the Oyster Restaurant be found liable in strict product liability for serving oysters
with this bacteria?
Utilize the “consumer expectation” test, not the “foreign-natural” test to determine whether
selling these oysters was a “design defect” that made them unreasonably dangerous.
You may also chose to examine any affirmative defenses, if you believe that the Oyster
Restaurant would otherwise be liable (remember you don’t reach affirmative defenses unless
all the elements of the tort are met).
2. Same facts as above with one exception. Assume there is no warning label on the menu
and that none if required by statute. Do you believe there is strict product liability by the
Restaurant’s failure to include a warning that “Consuming raw or undercooked meats,
poultry, seafood, shellfish, or eggs may increase your risk of foodborne illness”? Explain.
3. Change a couple of facts from above: Oyster Restaurant did not properly maintain its
oysters. Instead, witnesses will establish that they observed the oysters off ice earlier in the
day, sitting on the ground next to the raw bar for at least an hour. Furthermore, Simon’s
doctor noted that his blood had levels of vibrio vulnificus that were not naturally occurring;
the levels were greatly elevated over what a normal restaurant patron would expect.
Should Oyster Restaurant be found strictly liable (not negligent; this is a different tort) for a
manufacturing defect based on these facts? Again, you may address any affirmative
defenses you believe are relevant if you would find Oyster Restaurant liable under this
theory of strict product liability.
4. Frank ate a candy bar, and swallowed a 7/8 inch pin that he said was embedded in the bar.
The pin was removed surgically.
Frank sues the manufacturer of the candy bar, Kershy’s, for strict product liability
During discovery, Kershy’s presented undisputed testimony about its manufacturing process.
Its supervisor of quality control was deposed who explained that the type of pin found in
the candy bar was never used in the Kershy’s facility, and that all Kersy’s employees wore
smocks, had their hair covered, and were prohibited from wearing jewelry other than
wedding rings. Additionally, the raw materials used in the manufacturing process was
carefully tested and inspected for foreign matter. (The head of inspections for the batch of
candy bars that resulted in Frank’s bar also was deposed, and testified that he had
thoroughly inspected the batch and found nothing unusual). The ingredients were also
filtered in a way that pins could not pass through to the product. After the bars were
wrapped they were placed in sealed cartons and shipped to stores.
Would you allow summary judgment in Kershy’s favor? Why or why not?
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