The University of Florida College of Law

Civil Procedure Spring 1998

Prof. Pedro A. Malavet

Practical Project

As I anticipated in the Syllabus, each student will be responsible for drafting a simple pleading. This practical project will account for 10% of your testing score and will be graded on a pass/fail basis. You will work in small work-groups designated in the chart attached hereto. Each member of the work-group will be responsible for one document only, as indicated in the attached chart, and shall be graded accordingly. However, group members must coordinate to produce the pertinent documents: the answer produced by the group member designated to write that document, must be an answer to the complaint drafted by the group member assigned to write the complaint; the counterclaim and third-party complaint must be tailored to that complaint as well.

All the documents will be due on or before 5:00 pm, Friday, April 3, 1998. You may turn them in to me after class or in my office any day prior to the deadline, or you may turn them in to my secretary, Ms. Betty Donaldson in the secretarial pool office.

Facts Relevant to the Drafting of the Complaint:

On Saturday, January 18, 1997, at approximately 2:10 am, Mr. Albert Anderson, a citizen of Georgia, was driving his Nissan 300 ZX automobile traveling North on NW 34th Street in Gainesville, Florida. At approximately the same time, Ms. Betty Bowers, a citizen of Florida, was driving her Dodge Minivan in the same direction. Mr. Chester Charles, a citizen of Georgia, was following in his Ford Taurus. As the three cars approached the intersection of 34th Street and NW 16th Avenue there was three car collision involving all three of the above-described persons and their vehicles. The only witnesses to the collision that have been found and interviewed are the drivers involved. The police were unable to find anyone else driving in that area at the time of the accident, or any other independent witness.

As a result of the accident, Mr. Anderson's automobile, which cost $45,000.00 was a total loss. Mr. Anderson suffered serious bodily injuries and has incurred medical expenses in excess of $100,000.00 and it is estimated that he will need further medical care in the amount of $65,000.00.

You are a lawyer. Mr. Anderson has asked you to represent him. He has informed you of the above facts and has asked you to draft a complaint to be filed in the U.S. District court for the Northern District of Florida. He has indicated that he was not at fault for the accident, that he intended to make a turn to the right from 34th Street into 16th avenue, he signaled and reduced speed as he approached the intersection, and he made a stop to allow a cyclist to cross by, when his car was hit from behind by Ms. Bowers. He also knows that Mr. Charles' car rear-ended Ms. Bowers' car. However, he does not know if Ms. Bowers hit his Nissan first and was then rear ended by Charles, of if Ms. Bowers was rear-ended by Charles and then impacted his 300 ZX.

While conducting your own investigation of the case, you obtain a copy of a one page police report. The police report, dated January 18, 1997, is attached hereto. The police charged Mr. Anderson with reckless driving arguing that he had been traveling at an excessive rate of speed when he approached the intersection and came to too sudden a stop. They also charged Ms. Bowers and Mr. Charles with misdemeanor reckless driving for traveling at an excessive rate of speed and for failing to keep proper distance from the ongoing traffic. The police chose not to charge anyone in this accident with felony reckless driving resulting in serious injury. All three persons pleaded "no contest" to the charges and each paid the corresponding $400.00 fine. (You may assume that there is no res judicata or issue preclusion resulting from the criminal proceedings.)

You also go the intersection and observe that the traffic light goes to green for those traveling South on 34th Street, the green turn arrow for those waiting to turn left onto NW 16th goes to green at the same time, the North-bound lane has a red light; after 120 seconds, the red light goes on for all South-bound traffic on 34th, simultaneously, the green light turns on for North-bound traffic and the left-turn signal turns green for cars making a left turn from 34th onto 23rd. Blvd. You also observe many tire marks on the pavement, but are unable to distinguish any that might be related to this accident.

After interviewing your client and conducting your own investigation, you believe most of Mr. Anderson's version of events and agree to represent him. You may assume that allegations of liability can be made against both Ms. Bowers and Mr. Chestnut consistent with your obligations under Rule 11. You may assume further that joint and several liability is the law of the state of Florida. Draft the complaint.

Facts Relevant to the Drafting of the answer:

Ms. Bowers comes to you after being served with a copy of the complaint and asks you to represent her and file an answer and counterclaim against Mr. Anderson. She says that Mr. Anderson, slammed on this breaks when he approached the intersection, apparently because he decided to make a right-hand turn. The traffic light for people traveling in her direction was green. Mr. Anderson had not made a turn signal, but he suddenly stopped because a person in a bicycle was crossing the street as he attempted to make his turn. She says that she did not have enough time to stop her car, which was traveling at a normal rate of speed, within the posted speed limit. She adds further that she managed to stop before hitting Mr. Anderson but that Mr. Charles rear-ended her van and pushed it into the rear of Mr. Anderson's car.

You also have the police report that was described in the previous section and are aware of the result of the criminal cases. You believe that it is reasonable to believe that Mr. Anderson was the proximate cause of the accident because he slammed on his breaks when he should have kept going, rather than attempting to make a turn. You have serious doubts, however, about your client's statement that she was traveling within the posted speed limit. You are unable clearly to establish the order in which the cars collided, but it is reasonable to argue that the order was as Ms. Bowers suggests.

You agree to undertake Ms. Bowers' representation. You believe that you can draft an answer to this complaint, based on the information available to you, which is consistent with your obligations to represent your client within the limits of Rule 11. Draft the answer to the complaint.

Facts relevant to drafting of the counterclaim:

You are co-counsel for Ms. Bowers, you have been asked by your co-counsel to prepare a counterclaim against Mr. Anderson. In addition to the facts relevant to the answer, you are aware of the following facts: Ms. Bowers minivan, which cost $32,500.00, was a total loss. She suffered many serious bodily injuries, and remained in the hospital for six weeks following the accident. She will not be able to work again for at least six months. Her medical treatment has cost $106,800.86 so far. Her doctors anticipate that she will have to spend another $150,000.00 for treatment of physical injuries. Ms. Bowers is an attorney with her own practice and earns, on average, $105,000.00 per year, net of expenses.

Draft a counterclaim against Mr. Anderson. Although counterclaims are usually included with the answer to the complaint, you should draft this as a separate document.

Third Party Complaint:

You are co-counsel for Ms. Bowers. She wishes to implead Mr. Charles. You are aware of all facts relevant to the Answer and to the Counterclaim. Draft the third-party complaint. You have chosen to raise as many claims in this third-party complaint as would be allowed by the Federal Rules of Civil Procedure.

PARAMETERS:

Assume that in drafting your pleadings you must please a federal judge who thinks like judge Keeton (see, Cash Energy, Inc. v. Weiner, casebook page 157). Make both jurisdictional and venue allegations. (See 28 USC §§ 1332, 1391).

Assume that the applicable substantive law will be that of Florida. The laws of Florida make damages allegations in tort cases generally, and in automobile accidents specifically, somewhat difficult. Florida generally subscribes to the "Impact Rule," i.e., no claim for emotional trauma may be pursued unless it is related to physical injury. There are few exceptions to the general rule. For a good discussion of the matter, see R.J. and P.J., v. Humana Of Florida, Inc., 652 So. 2d 360 (1995). In automobile cases, the law is also quite strict. See Fla. Stat § 627.737. Take this into account when drafting your complaint.

[Students were organized into groups of four people for this project. I have removed the name chart].

The State of Florida County of Alachua
City of Gainesville Police Report of Motor Vehicle Accident with Injuries

DATE: 18 January 1997
REPORT NO.: 97-00351

INVESTIGATING OFFICER(s):

Brian Jones, Patrol Officer,
BADGE # 098686
Jennifer Williams, SGT,
BADGE # 097123

CHARGES:

(1) Misdemeanor Reckless Driving, sudden stop and speeding
(2) Misd. Reckless Driving, Following too close and speeding
(3)Misd. Reckless Driving, Following too close and speeding

PERSONS CHARGED:

(1) Anderson, Albert
SS # 123-56-1987
1122 Looney Toone Lane
Albany, Georgia
(404) 123-9876
ALCOHOL SCREENING: NEGATIVE.

(2) Bowers, Betty
SS # 123-45-1997
1900 Magic Blvd.
Orlando, Florida
(357) 567-9765
ALCOHOL SCREENING: NEGATIVE.

(3) Charles, Chester
SS # 123-98-1998
450 Peachtree Ind. Blvd.
Atlanta, GA
(770) 898-7654
ALCOHOL SCREENING: NEGATIVE.

WITNESSES (Include statements):

(1) Anderson, Albert
"I was going to make a right turn from 34th into 16th avenue, going East. A kid was riding his bike and he came fast, so I had to stop to let him go by or I would have killed him. He was right in front of me when I got hit from behind. I did not see it coming."

(2) Bowers, Betty
"I was traveling North on 34th, at a normal rate of speed, i.e., within the posted speed limit. The driver of the sportscar in front of me slammed on his brakes to make a right hand turn, right as he was about to miss the turn. I stopped, but the guy behind me, who was obviously speeding, hit me and slammed my car into the sportscar."

(3) Charles, Chester
I was traveling North on 34th street when the two people in front of me just stopped all of a sudden. The traffic light was green, so I was caught totally off guard. I tried to stop but I could not, and I hit the rear of the minivan.

No other witnesses were found.
POSSIBLE: There were other vehicles around, but noone has come forward. The child on the bicycle. White male, approx. 12-16 yrs. old, 5' 7", 160 lbs.

Site investigation report is attached.

Site investigation Report:

GENERAL STATEMENT:

When investigating officers arrived, vehicles 1, 2 and 3 were found at the intersection of NW 34th and NW 16th Avenue. All three drivers had suffered serious injuries. Interviews had to be conducted at the hospital emergency room after they had received treatment.

VEHICLES:

(1) NISSAN, 300 ZX, Model Year: 1995; COLOR: Black; License Plate: ADA-789

INSURANCE: Florida Automobile Insurance Identification Card No. 00123; Insurer: State Farm; POLICY No. AA-1998-12;Eff. Date: Jan. 1, 1997; Personal Injury: Yes, Bodily Injury: Yes.

(2) DODGE, CARAVAN, Model Year: 1997; COLOR: White; License Plate: BTW-123

INSURANCE: Georgia Automobile Insurance Identification Card No. 00567; Insurer: Peach state Insurance; POLICY No. BB-1996-32; Eff. Date: Jan. 13, 1997; Personal Injury: Yes, Bodily Injury: Yes.

(3) FORD, Taurus, Model Year: 1991; COLOR: Burgundy; License Plate: CCC-976

INSURANCE: Georgia Automobile Insurance Identification Card No. 00987; Insurer: Wausau, Inc.; POLICY No. CC-1999-42;Eff. Date: Jan. 09, 1997; Personal Injury: Yes, Bodily Injury: Yes.

INVESTIGATION (List Particulars)

The area was cordoned off and vehicle accident, with injuries, investigation protocol was followed.

Location of each vehicle was noted, debris from each vehicle was identified and tire marks on the pavement were matched to each vehicle.

Pictures were taken of the site and of the vehicles as well as of debris and important marks on the pavement.

Tire marks matched to vehicle no. 1 indicate probable speed into intersection of 60-70 miles per hour.

Tire marks matched to vehicle no. 2 indicate probable speed into intersection of 50-60 miles per hour.

Tire marks matched to vehicle no. 3 indicate probable speed into intersection of 55-65 miles per hour.

POSTED SPEED LIMIT: 40 mph.

CONCLUSION(s):

At the time of the accident all three vehicles were traveling at an excessive rate of speed, as shown by relevant tire marks on the pavement.

Order of Collision was impossible to establish. Witnesses gave conflicting accounts.

DISPOSITION:

Matter referred to State Attorney for follow-up. Recommend charges as indicated on Page 1: Police Report.