Civil Procedure
LAW 5301 (4 credits)
Professor Pedro A. Malavet
The University of Florida
Fredric G. Levin College of Law
The University of Florida
Levin College of Law
Civil Procedure -- Spring 2007
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. Unlike other years, I will have you work alone this time.
The documents are due on or before Tuesday, March 27, 2007 at 5:00 p.m. 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 Tuesday, September 12, 2000, at approximately 8:10 AM, Ms. Suzanne Peters, a citizen of Louisiana, was driving her 1997 Honda automobile traveling South on NW 51st in Gainesville, Florida. At approximately the same time, Mr. David Davidson, a citizen of Florida, was driving his 1995 Mazda Pick-Up coupe in the same direction. Ms. Wendy Travis, a citizen of Louisiana, was following in her Chevrolet Suburban. As the three cars reached the intersection of NW 23rd Avenue and prepared to make a left turn onto the Eastbound lanes of NW 23rd, there was a collision involving the last two 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 or walking in that area at the time of the accident, or any other independent witness.
As a result of the accident, Ms. Peters suffered no physical injuries and her car was undamaged. Ms. Peters is a Physician who practices in New Orleans, Louisiana. She is an Ophthalmologist. Mr. Davidson's Mazda Pick-Up, which cost $16,500.00, was a total loss. He suffered many serious bodily injuries, and remained in the hospital for ten weeks following the accident. He will not be able to work again for at least six months (Mr. Davidson had a part-time position at a local accounting firm, which paid him about $400.00 per week). His medical treatment has cost $216,800.86 so far. His doctors anticipate that he will have to spend another $1,050,000.00 for treatment of physical injuries. Mr. Davidson is a student at the University of Florida. He is studying accounting. Ms. Travis's Suburban, suffered damages that cost $12,675.00 to repair. She also spent $71,500.00 in medical bills. Ms. Travis is a Contractor from Louisiana, she was unable to work for about four weeks following the accident and required physical therapy for about four months. Her doctors advice her that she has made a complete recovery and that they anticipate no further medical problems related to the accident.
You are a lawyer and Mr. Davidson 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 simply stopped when Ms. Peters came to a sudden stop in front of him, and that although he was travelling at high speed, he was able to make a controlled stop, as shown by the fact that he did not hit Ms. Peters. Then, the Suburban rear-ended his Mazda Pick-Up.
While conducting your own investigation of the case, you discover that the Louisiana residents were in Gainesville for a sporting event and had stayed a few extra days. You also obtain a copy of a one page police report. The police report, dated September 13, 2000, is attached hereto. The police filed no charges against Ms. Peters. Officers filed charges against Mr. Davidson and Ms. Travis. Both were charged with traffic violations. The police alleged that Mr. Davidson had been traveling at an excessive rate of speed at the time of the accident. They also charged Ms. Travis with reckless driving for traveling at an excessive rate of speed and for failing to keep proper distance from the traffic ahead of her. Both drivers pleaded "no contest" to the charges and each paid the corresponding $1000.00 fines. (You should assume that there is no res judicata or issue preclusion resulting from the criminal proceedings.) You did not represent Mr. Davidson in the traffic matter.
You also go the intersection and observe the layout of the intersection and the functioning of the traffic light.
After interviewing your client and conducting your own investigation, you believe most of Mr. Davidson's version of events and agree to represent him. Mr. Davidson wishes to sue only Ms. Travis, because she has better insurance coverage than Ms. Peters. Draft the complaint.
THE ANSWER:
Because this year I am having you work alone, after each and every paragraph in your complaint you will also include, within parenthesis, how you believe that the defense will answer each paragraph in your complaint.
PARAMETERS:
Law. Assume that you may make allegations regarding fault against any of the three persons involved in the accident, consistent with Rule 11 of the Federal Rules of Civil Procedure. Assume further, that there is joint and several tort liability in this case. Otherwise, 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.
THE RULES:
It will be helpful to review the Federal Rules of Civil Procedure, particularly those applicable to pleading. You may even want to cite them in footnotes in your respective documents, by way of review.
Police Report
-x-