TORT/RISK MANAGEMENT/AGENCY

“HYPO” ASSIGNMENT
TORT/RISK MANAGEMENT/AGENCY
Due 11:59 p.m., Sunday, October 9, 2022
It’s been the lifelong dream of LC to open his own combination man-made wakesurf lake
and artisan grocery, and when he moves from San Antonio to the landlocked Dallas area,
he decides he’s in the perfect market and the time is right. He decides that, to set his place
apart from all the other lake-and-grocery-store businesses in the country, he’s actually
going to situate the store on a makeshift island, surrounding it with a circular lake that not
only features prime wakesurfing but also a vibrant ecosystem featuring an eclectic mix of
coral reef and marine life.
After being talked out of calling his business “Man-Made Wakesurf Lake & Artisan
Grocery,” LC decides to call it “WakeLake & Corn Flakes” (though he plans to shorthand
it “The Flake” on social media and hopes that catches on).
Although there are some finishing touches to be made before construction is complete,
LC can’t wait any longer and makes plans to hold a Grand Opening for the Flake. He
chooses the date. He alerts the local media. He lines up a dude in a sushi costume named
PM to throw out a ceremonial first pitch to kick off the day’s festivities.
But that’s not enough. LC feels he needs a bigger draw that day. Something to pull
people in, to make headlines and trend on TikTok. To put the Flake on the map from the
jump.
After slightly less than a minute and a half of deep thought, LC decides to put on a
combination wakesurf/“Supermarket Sweep”-type exhibition — a dual-sport event of
sorts that he’ll call The 360 — and that will, unsurprisingly, be the first of its kind. In it,
contestants will complete a handful of wakesurfing tricks and then, once inside the
grocery store, race to fill a shopping cart with an item from each of the five food groups.
The winner, aside from an inevitable star turn on social media, will get a $1,000 shopping
spree at the Flake and a wakesurfing vest that says “Get Flaky!” on it.
Overwhelmed with excitement for the potential of his new business and his invented
sport, LC decides he’ll need a grandstand for the Grand Opening so the hundreds of guests
sure to attend will have a place to comfortably watch The 360 from the island-side shore
of the lake just outside the grocery store structure. Figuring he won’t need the rows of
bleachers for everyday operations once the Flake is fully open for business, though, he
doesn’t want to invest heavily in the setup.
So to help cover the cost for the temporary seating, LC negotiates a contract with a local
fly fishing business called “Fly Fishing AF” to be the title sponsor of The 360. The owner
of Fly Fishing AF, a college football player named MBaer, asks if he can perform at
halftime of the event in some undetermined way. At first, LC balks at the idea because
he’s not really sure yet whether The 360 will even have a halftime — but when MBaer
offers to add an extra $1,000 to his sponsorship fee, LC agrees . . . on one condition. He
adds an indemnification clause in the contract that says if anyone is injured as a result of
MBaer’s halftime performance, MBaer will indemnify LC and the Flake for any resulting
damages — meaning MBaer will be solely responsible for those damages and LC and
The Flake will not be responsible at all.
“What could go wrong??” MBaer thinks to himself. He’s fine with the indemnification
clause and signs the sponsorship contract. LC promptly sends out a press release
announcing the Grand Opening of WakeLake & Corn Flakes, highlighted by the world
premiere introduction of what is sure to be the next big sport in America: The 360,
presented by Fly Fishing AF. Various news and social media outlets report it right away.
RR sees the social media posts and — after her first thought: “I sure loves me a good
grocery store!” — she remembers that her friends were trying to get her to learn how to
wakesurf not long ago (she’s already an accomplished rower). Seduced by visions of that
shopping spree at the Flake, RR checks the makeshift WakeLake & Corn Flakes website
(tagline: “Wakey, wakey, eggs and bakey! The Flake — Your number one surfin’ turf!!”)
and finds out tickets to the Grand Opening are already on sale. RR takes advantage of the
“Hang 5” promotion — the tickets are buy-four-get-one-free if you agree to compete in
The 360, which for RR is an easy sell — and she buys a ticket for herself as well as her
rowing buddies SA, EL, and CMur, as well as their pal JSm, who loves to shop.
(EL quietly reaches out to WakeLake & Corn Flakes to see if they’re planning to perform
the National Anthem at the Grand Opening, because she’d like to offer her services if so.
“We are now!” LC happily tells her.)
When the day arrives, RR, SA, EL, CMur, and JSm load up in RR’s car (along with a
wakesurfing skim board that JSm found online and bought for RR), and the five of them
hit the road. Although the Grand Opening is scheduled for 1:00, RR insists they get there
early so she can get a sneak peek at the grocery store before reporting for The 360. They
pull into the parking lot just outside the man-made lake at about 10 a.m., only to find that
they’re far from the only people who couldn’t wait to get to the Flake that morning. The
tailgating scene is overwhelming.
As RR, SA, EL, CMur, and JSm get out of the car, they see two beverage stands. One is
a permanent structure with both the Flake and Fly Fishing AF logos, situated on a grassy
median between parking aisles. It gives every appearance that it is part of the WakeLake
& Corn Flakes operation.
The other beverage stand, which (improperly) occupies a handicapped parking space,
looks like it was set up that day out of plywood and duct tape and has a poster in front
that says, in scribbled marker: “COVID-Proof Drunk Tank.” Leaning against the
makeshift beer stand is another poster board, this one bearing the photo of a local college
football player named CCam along with the following handwritten ad copy:
When CCam snares a one-handed grab over the middle, it’s scoreboard time.
When he’s off the gridiron, he double-fists sweet brewski’s from COVID-Proof
Drunk Tank! Roll your coverage on over here for today’s WakeLake & Corn
Flakes “Kickoff” specials:
• “Cover 2” (buy one of anything, get two free)
• “Extra Point” (buy three of anything and I’ll throw in a day-old chocolate donut)
• “Fourth and Long” (buy four beers and get a day-old éclair with a day-old and
probably used toothpick in it)
• “Pick Six” (when five beers just isn’t enough!)
• “Eight in the Box” (who can resist box wine?? comes with eight beer floaters)
• “The Iron Skillet” (week-old chocolate donut brought back to life by heating in
a cast iron skillet; comes with four beers)
• “Single High” (our most poorly brewed stout)
• “Three and Out” (three of our most poorly brewed stouts)
• “The WakeBoard” (get your morning started right with the perfect wake-me-up
— a Bellini along with a charcuterie board heavy on allegedly cured meats and
beer nut remnants; I would absolutely discourage anyone from buying this, even
if you buy enough beer to wash it down)
• “Surf & Turf” (my experimental IPA pairs nicely with a mess of U-12 scallops
and a 16-ounce ribeye [*scallops and ribeye not included])
• “Collapse the Pocket” (not sure if the Flake will let you bring beer in? no sweat,
Boss — I’ll pour it in your jeans!)
• “Illegal Bock in the Back” (I can’t put these on display but if you want a Shiner
that the FDA won’t approve for public consumption, I got you!)
• “Trips Right” (buy three Illegal Bocks and you’re guaranteed to lose your
footing!)
• “Turnover Drill” (my favorite loss of possession! help me get rid of these last
two week-old apple pastry thingies)
• “Run Support” (a dozen week-old donuts, and a trash bag)
• “Offensive Pass Interference” (gluten-heavy IPA infused with chewing gum; I
don’t recommend this but, hey, you do you)
• “Nickel Back” (buy 11 beers and I’ll take five cents off [limited time only])
• “40-Second Play Clock” (down a 40 in 40 seconds and get 40 refills free [*or
until you pass out])
• “Ice the Kicker” (sorry, never mind, I forgot to bring ice)
• “Free Safety” (don’t have contact info for Uber or Lyft? you’ve come to the right
place!)
• “Late Hit” (come see me as you’re leaving today and I’ll beer you)
• “Frosted Flakes” (I stole some corn flakes from inside the store and dumped
them into a frosted mug but couldn’t finish them; want some?)
• “Corona Virus” (4-for-1 Corona’s)
It’s time to get “blitzed,” thirsty wakesurfing grocery store people! Don’t
get your day off to a “false start”! Come “flip a coin” at COVID-Proof
Drunk Tank, get yourself flagged for “intentional pounding,” and sack the
competition, Broseph!! (And hey, be sure to make me your “comeback
route” all day!!! Make this a Grand Opening extravaganza you’ll quickly
forget!!!!)
There is one man, who calls himself “Tank,” working at the COVID-Proof Drunk Tank
beer stand. He wears a dad hat that says “Tank” and a jelly-donut-stained tank top marked
with a “CPDT” logo in sloppy chicken scratch.
CCam — who does not drink — previously told his agent HZ (who signed a
representation agreement with CCam without warning CCam that it could void his
eligibility to continue playing football collegiately) that HZ was explicitly not permitted
to make deals on CCam’s behalf with any business involved in the sale of alcohol. When
CCam learned months ago that HZ was nonetheless negotiating a sponsorship with
COVID-Proof Drunk Tank, CCam fired HZ. After that, HZ struck a deal with COVIDProof Drunk Tank anyway, authorizing Tank to include CCam on his marketing signage.
(COVID-Proof Drunk Tank did not secure permission independently from CCam to use
his name or image on its signs.)
As RR, SA, EL, CMur, and JSm approach the two beverage stands, a man named 7&7
stumbles up to the Flake/Fly Fishing AF beverage stand and asks for a Tequila Sunrise.
The bartender, EM, tells 7&7 that he doesn’t have any orange juice. 7&7 looks up at the
menu and mumbles, “OK, let’s see, what can I get to help me keep up this buzz . . . ”
EM — who has already sold 7&7 three Bailey’s coffees throughout the morning and
knows he’s been buying drinks at COVID-Proof Drunk Tank as well — hears him and
says: “Sir, you’ve been drinking since 8:00 this morning. No more.” A Flake security
guard/lifeguard named TS escorts 7&7 about 10 feet away. 7&7 then walks over to
COVID-Proof Drunk Tank and asks for a beer.
Tank says: “Sir, you’ve been drinking since 8:00 this morning. How about two spiked
juice boxes for the price of one?”
7&7 buys four spiked juice boxes for the price of two and shotguns a couple while still at
the stand. Then, as he turns to walk away, his feet get tangled together and he starts to
fall right in SA’s path. She trips over 7&7 and lands hard on the pavement and, it appears,
she loses consciousness. TS — even though he’s certified as a lifeguard in CPR and first
aid — sees all of this but turns back to watch an SMU football hype video playing on a
loop on a TV screen inside the Flake/Fly Fishing AF beverage stand.
A throng of tailgaters rushes to gather around SA, and someone asks if there’s a doctor in
the crowd. “I’m not,” shout SB, EH, and ES in unison.
“But I’m studying to be a pediatrician,” SB proclaims.
“And I’m going to be an orthopedic Physician Assistant,” EH announces.
“I’m going to be a better Physician Assistant than you!” ES insists.
All three, once again in unison: “Please make some room.”
(Even though she’s planning on medical school herself, RR is callously unaffected by her
friend’s plight, busy instead dreaming about fresh herbs and the pasta aisle.)
As EH and ES continue to argue about their P.A. potential, SB rushes up and kneels next
to SA, who is not responsive. SB turns back to the crowd assembled around them. “Does
anyone have any water?!” she yells. Nobody responds. She sees one bystander holding
an open Ozarka bottle that looks to be nearly full. SB grabs the water bottle, props SA
into a sitting position, and pours several ounces into her mouth.
Only it isn’t water. The bystander, slurring his words, mumbles: “Dude, that was straight
vodka.”
SA snaps into consciousness and, perhaps shocked by the alcohol that she just guzzled,
whips her head out of SB’s hands and slams her own body back against the pavement.
SA suffers a broken left wrist and a gash on her face. SB goes to her car to grab a Velcro
splint for SA (and she quickly writes up a bill for her services to give to SA).
Still immersed in a gourmet-cheese-and-pumpkin-pita reverie, RR continues to walk
away from SA and her other friends. As she does so, she notices a dark storm cloud
gathering. But she doesn’t give it a second thought, since she’d seen a weather forecast
that predicted a threat of severe thunderstorms in the area but not until the evening, by
which time she imagines the festivities will be over and she’ll be back home.
There is nobody manning the ferry boats in place to transport guests to the island this
early, so RR whips out her skim board and, having no idea how to wakesurf, sits on the
board (careful to avoid the fins) and rows across the lake with her arms. Dreaming about
espresso beans and sourdough, she hardly notices that she skins up both of her hands on
coral reef during her row to the shore.
Once RR lands on the island, she notices that one of the grocery store’s front doors is
cracked open. She peeks in and sees several workers carrying boxes toward the front.
RR slowly pulls the door open, just enough for her to slip inside. An event usher named
BS sees her and looks startled, as it’s only 10:30 and the doors aren’t supposed to open
until 1:00. BS (who is wearing a cap that says “The Flake” on it) looks around and sees
that there are still boxes strewn all over the place, extension cords across the floor that are
plugged into lanterns that were positioned all over the facility as the setup crews worked
overnight (LC didn’t want to go to the considerable expense of keeping all the grocery
store lights on all night), and a huge spill of something in the corner that folks will have
to pass to get to the area where The 360 race will finish.
After surveying the shaky state of preparations, BS tiptoes up to RR and says, “Hey there!
Come on in!”
BS reaches down into one of the boxes stacked near the front of the store and pulls out
the promotional giveaway for the day’s festivities: a miniature wakesurf board with a
deck made of titanium steel and fins coated in chrome. The board says “The Flake!”
across the deck, with a “Skinner F.C.” logo underneath it.
The mini-surfboards are a big draw. SS, a potato skin tycoon (“Skinner’s Skins”) who is
in the process of purchasing a D-3 English football club and is looking for opportunities
to market his brand, learned recently of a product recall on the boards due to a
manufacturing defect that caused them to catch on fire at speeds of more than 2 mph, not
to mention a design defect: the nose of the board was, for some reason, serrated and sharp
to the touch. He reached out to “Board Silly,” the company that manufactured the
defective surfboards, and asked if he could buy what he assumed was worthless inventory
from the recall, thinking they would give him a cool and unique way to advertise his
football club as a giveaway. Board Silly saw an opportunity to salvage its junk stash (and
market its own brand at the same time) but, in a moment of clarity and conscientiousness,
decided to sell them to SS only after he assured them that his plan was to market the
boards strictly as souvenirs. Satisfied that the boards would do no more harm, Board Silly
sold thousands of the recalled products to SS.
But once SS figured out after handing the Skinner F.C. boards out at several potato skin
conventions as well as his new fleet of food trucks that they were in high demand, he
began selling them. Sales of the boards now finance Skinner’s Skins’ food truck
operations. When LC approached SS with the idea of funding a surfboard giveaway for
the Flake Grand Opening, SS jumped at the opportunity since it would mean the Skinner
F.C. logo would end up on bookshelves all over the Dallas area (but hopefully not in kids’
playrooms) and all over Instagram.
RR happily takes a mini-surfboard from BS and asks where she should go to register for
The 360. BS shrugs his shoulders but points RR toward the frozen section.
Just then, the front doors fly open and hundreds of people start flooding
into the grocery store. Many ambush BS and other ushers near the
entrance to get their giveaway surfboards. Others (at least those who
avoid wiping out on the mystery spill) zip toward the 360 finish line to
get a good spot. Some are instead drawn to the Ancho Pesto Salted
Mozzarella (APSM) samples. A few are forced to duck as PM, the sushisuited guy, winds up and aimlessly fires the ceremonial first pitch to no
one in particular.
As a swarm of people rush past RR (who had stopped on her way to the
frozen aisle to admire the oat, coconut, and almond milk offerings in the
refrigerated section), several of them trip over an extension cord and
knock her to the ground. As she stretches an arm out to break her fall, one of the lanterns
is kicked toward her and she manages to avoid it with that hand — but the titanium board
in her other hand strikes the lantern and shatters it and the bulb inside it into a thousand
pieces. One thick shard of glass lodges just above RR’s heel. She’s pretty sure she’s
ruptured her Achilles tendon and is crushed that she’s not going to be able to wakesurf
today — or lovingly race through the grocery store to 360 glory.
From 45 meters away, another usher named MK sees RR crumpled to the floor and begins
to triple-jump her way toward RR . . . hopping over a pile of empty boxes that once
contained titanium mini-surfboards . . . skipping over a huddled-up group of shoppers
mesmerized by the hummus selection . . . and jumping over waves of customers running
and skidding throughout the store . . . until she reaches RR.
“Hi, there,” she says to an embarrassed RR. “You OK?”
“Not really,” RR replies, noticing MK’s “The Flake” cap and quickly drying her eyes.
“Just a little clumsy, I guess. I didn’t notice all the people running because I was
captivated by all your non-dairy options. I sure loves me a good grocery store, you know.”
MK politely nods and offers to take RR in a golf cart to the lakeshore so she can take her
seat in the grandstand bleachers for the wakesurfing portion of The 360. After they get
outside and to the bleachers, MK checks RR’s ticket and eases her to her seat, which is
fortunately on the bottom row of the grandstand. CMur and JSm are already in their seats,
telling RR that SA suggested they go ahead while she got her wrist and the gash on her
face bandaged up. But they don’t know where EL is. RR leaves a couple empty seats
between her and CMur and JSm, and she texts SA and EL to see where they are. Neither
responds.
As she looks up from her phone, RR notices DMo, a woman down the row from her,
wearing a Houston Astros cap. RR has an urge to hassle DMo about how the Astros
disgraced the game of baseball by using video cameras to steal catchers’ signs, but then a
better idea occurs to her. Just feet away from the corner of the grandstand where she’s
seated, RR sees a large metal trash can. On the trash can is the “Flake” logo and the words
“DO NOT REMOVE.”
RR ignores her pain and reaches her mini-surfboard toward the trash can and lugs it back
toward her, placing it in SA’s still-empty seat next to her — and then starts banging on
the trash can with the giveaway board, hoping DMo will turn toward her and catch the
full brunt of her stepped-up heckle game.
Because the doors opened much sooner than planned and customers are now milling all
throughout the grocery store and have filled up the grandstand at the lake, LC decides to
start The 360 early. A local sports reporter named LMc has brought a camera crew with
her to file a story on the unveiling of this brand new watersport. With the accelerated
start announced, LMc’s crew (all of whom are UFC fighters) scrambles to get set up along
the lakeshore.
Everyone is asked to stand for the National Anthem, but RR doesn’t hear the
announcement over her trash can cacophony and, sitting in the front row, doesn’t notice
people behind her rising to their feet. Meanwhile, as RR keeps her little percussion
concert going, a duo walks out onto a slender but lengthy platform that extends from the
shore into the lake: it’s her friend EL along with a guy named MS. To CMur’s and JSm’s
surprise (but not RR’s, as she doesn’t even realize what’s happening), EL is there to sing
the Anthem — which she leads into with her trusty rendition of “Ice Ice Baby” —
accompanied by MS dropping hip-hop and dance beats, a performance made even more
unique by the fact that LC insisted that MS drop his beats while balancing on one of the
promotional wakesurf boards. He begrudgingly agreed to do it to get the viral social
media exposure that this extraordinary opportunity is sure to provide.
SA, with her left wrist splinted from the parking lot incident, finally reaches the bleachers
and looks confused when she spots RR — because there seems to be a trash can in what
she assumes is supposed to be her seat. RR, who doesn’t notice that SA is ambling
towards her, continues to gleefully bang on the trash can, fully oblivious to what’s going
on around her or on the platform. Fans all around RR are whisper-shouting at her to stop
but she doesn’t hear them.
It’s too much to take for EN, a professional soccer player seated 50 feet away. Enraged
that RR is disrespecting the National Anthem, he takes the soccer ball that he carries
around with him and bicycle-kicks it toward RR, who is still locked in on her sweet trash
can music and doesn’t see the ball bearing in on her.
The ball narrowly misses RR but grazes a nearby fan named MBish in the shoulder, not
injuring MBish but startling him so much that he impulsively hurls his own promotional
board into the air. It strikes SA as she’s shuffling toward her seat, reopening the gash on
her face and sending her tumbling into another attendee, ZP, which causes SA to fall to
the ground and break her right wrist — the one she didn’t break in the parking lot minutes
earlier. RR is startled out of her trance by SA’s groans and she spins around, reflexively
wedging the serrated nose of her giveaway surfboard into the trash can. The loud piercing
of metal through metal gives way to MS’s fadeout beat as he and EL finish the memorable
Anthem.
SA looks to RR for help, but all RR can think to say is, “Two wrist injuries, huh? Dude,
that sucks! Want me to go inside and buy you a matcha green tea? I sure loves me a good
grocery store!”
Disgusted by RR’s insensitivity and still in pain, SA staggers away from the grandstand
to find some medical help and mimics her friend’s ode to supermarkets with the little
French that she knows: “Je m’aime bien une bonne épicerie . . .” There’s no Flake
personnel in sight, nor anyone who appears to be acting in a security or paramedic
capacity, but another attendee, JK, perks up when he hears his native French language
and offers to help. He fashions a tourniquet out of his giveaway surfboard and a plastic
grocery bag in an attempt to stabilize SA’s right wrist, but in doing so he accidentally
stabs SA’s right knee with the serrated edge of the board.
SA hobbles away, and passes two hockey players, CMa and JV, who are limbering up
and trash-talking as they get ready for the wakesurfing portion of The 360. Neither has
ever wakesurfed, but all their years on skates have them convinced they can handle the
water on boards — plus they’re both huge fans of “Supermarket Sweep” and can’t wait
to rifle carts full of pulled pork, brown rice, and cheddar jack through the grocery store
aisles to victory.
It’s clear that CMa and JV don’t like each other, and shortly after SA walks by, she sees
CMa body-check JV into the ground and break JV’s collarbone. ZP, who’s trying to
chase SA down to see if she’s OK after the chain of events that EN’s soccer ball set off
had knocked SA into him, is in no mood to see any more nonsense. He sees CMa level
JV, too, and has had enough. ZP runs up behind CMa and bulldozes him, causing CMa
to tear a meniscus and ACL (and costing him a lucrative endorsement deal with MBaer’s
Fly Fishing AF business).
As EL and MS walk off the lake platform at the conclusion of the Anthem, a talent agent
named CD decides to approach the pair and explain how he can help their careers explode
if they’ll just hire him to represent them.
As he heads in EL and MS’s direction, CD is distracted by a banner hung on a couple
poles alongside the lake that once read:
BE COGNIZANT OF CHILLY OR INCLEMENT WEATHER,
WATCH FOR POISONOUS PUFFER FISH
. . . AND BEWARE OF SURFBOARD WRECKS!
LC had the banner made when he first came up with the idea for The Flake, but the sign
was exposed daily to sun and rain for weeks. By time the Grand Opening arrives, unless
you are close up, the weather-beaten banner can only be read to say:
BE COGNIZANT OF CHILLY OR INCLEMENT WEATHER,
WATCH FOR POISONOUS PUFFER FISH
. . . AND BEWARE OF SURFBOARD WRECKS!
It gives CD an idea — to tell EL and MS he can land them acting gigs in the next Nacho
Fries movie trailer . . . even though CD and his agency have absolutely no connections
with Taco Bell or the marketing firm that produces and casts its commercials.
As CD rehearses the pitch in his head while walking toward EL and MS, he fails to notice
a UFC duffel bag that LMc’s crew left on the ground in their haste to set things up for her
stand-up. CD trips over the bag and wipes out, spraining his left ankle. Spotting the easy
prey, one of the UFC fighters runs up to CD with visions of a lethal stomp kick, but CD
manages to roll over just in time to avoid disaster.
Full of fight-or-flight adrenaline and determined to land the new clients he has his eyes
set on, CD scrambles to his feet and keeps hustling toward EL and MS, ignoring the pain
in his ankle. He catches up with them, hands them a business card, and says he can get
them cast in a Taco Bell ad. They both look at CD like he’s crazy, so he shifts gears.
“How about if can get you two booked as the opening act on Adele’s next North American
tour?” This may or may not be possible, as CD has tried recruiting Adele for years as a
potential client but without success. Still, CD believes that if he can land rising stars like
EL and MS to support Adele on tour, he might be able to get a job with her boyfriend
Rich Paul’s agency Klutch Sports (he wants to pitch the addition of starting up both
musical talent and pickleball branches at the agency).
MS is very interested once CD brings up the Adele possibility (mainly for the Klutch
Sports connection, as MS is an aspiring agent himself), but EL humbly declines the
proposal, suggesting she doesn’t think she’s ready at this stage of her career to be on the
same bill as an act as distinguished as Adele. (Vanilla Ice? Different story.) CD, who is
only interested in MS as a client if he can sign EL up as well, pivots again and tells EL
and MS he has another high-profile opportunity that’s sure to boost their career just as
much, if not more so: CD says he can get EL and MS guest spots on “The Masked IceIce-Baby-Vocalist-Accompanied-by-Hip-Hop-Beatmaker-on-a-Wakesurf-Board,” a new
reality series in development that will challenge celebrity panelists to guess which fully
disguised “Ice Ice Baby” vocalist accompanied by a hip-hop beatmaker performing on a
wakesurf board is playing for them on live TV.
EL, not interested in the gimmick idea, rejects this idea as well. CD, knowing it would
boost his career significantly to be able to say that he got EL and MS a gig on “The
Masked Ice-Ice-Baby-Vocalist-Accompanied-by-Hip-Hop-Beatmaker-on-a-WakesurfBoard,” ignores EL’s snub and starts to text the casting director for the show, assuring
her that he has lined EL and MS up to perform.
LC can feel the energy in the crowd as The 360 is about to get underway. The venue is
packed; his dream has become an instant sensation. Just then, the foreman of the Flake
set-up crew walks over to LC and tells him his guys got a couple jobs mixed up and
accidentally stocked the man-made wakesurf lake with several species of shark that were
instead supposed to be delivered to a local aquarium. The foreman offers to undo his
error but says it would take him up to four hours.
LC knows he can’t announce a four-hour delay and expect to keep all these potential new
customers around, plus he knows the postponement is what would end up going viral.
But the wakesurfers aren’t ready to go. He shoves the foreman into the shark-filled lake
and grabs a microphone.
“Welcome to WakeLake & Corn Flakes!” The crowd (much of which had been
extensively fueled up at COVID-Proof Drunk Tank before the Flake opened that day)
responds with frenzied cheers, many waving their promotional surfboards overhead.
“The 360 exhibition, presented by Fly Fishing AF — the first-ever wakesurfing/grocery
store race event of its kind — will get going shortly. But first, we have a super-special
treat for you all. Please welcome MBaer, founder of Fly Fishing AF, who will electrify
us with . . . ”
LC looks around for MBaer, to try and make eye contact and quickly figure out what
MBaer had planned for the halftime performance they’d agreed to. LC doesn’t see him
anywhere.
“ . . . something so cool that it can’t even be put into words. Sit tight and prepare to have
your minds blown!”
The crowd is fired up.
LC scampers away, desperate to find MBaer and tell him that his halftime act — whatever
that’s going to be — has been accelerated. It’s showtime.
He finally spots MBaer inside the grocery store, perusing the seafood counter for anything
he can use as live bait (a highly unconventional move for a fly fisher) for the jaw-dropping
exhibition he has planned for his halftime act. LC whisks MBaer away and explains that
the plan has changed: he needs MBaer to entertain the crowd right away. “Cool,” MBaer
says, as the seafood specialist hands him a bag of baby shrimp. “Here’s what I thought I
would do—”
LC interrupts him. “It doesn’t matter, man. Just go!”
MBaer heads outside to the lake, lugging his fly fishing gear (and bag of shrimp) over one
shoulder and a promotional wakesurf board over the other. As he walks out onto the
platform that extends over the water, the increasingly restless crowd cheers.
“Hey, y’all!” he shouts, immersed in the vibe. “I’m MBaer, of Fly Fishing AF, where we
don’t need no goofy little fly lures. We use the real thing! Ready to see me and these
little shrimp dudes fire off a steeple cast?”
There are question marks silently hanging over the hundreds in the crowd, none of whom
have ever heard of a steeple cast. Or of fly fishing.
MBaer is undeterred. “Let’s GOOOOOOOO!!” he roars, reenergizing the crowd.
He bends down to rest his giveaway board on the ground, but when he does, a few of the
shrimp he’d bought inside the store trickle out of the bag and into the lake — where a
hungry tiger shark and bull shark instantly converge. When the bull shark wins the race
to the appetizer, the tiger shark smells the remaining contents of the bag in MBaer’s hand
and soars out of the water in MBaer’s direction.
Thinking quickly, three people in the crowd — RH, CCah, and KA — reach back with
their wakesurf boards to launch them toward the flying shark. Unfortunately, the serrated
edge of RH’s board catches CCah on the shoulder and tears CCah’s rotator cuff. KA
manages to heave his board at the shark — but the board combusts in flight, having
eclipsed the velocity that had caused Board Silly to take the defective boards off the
market. The fiery projectile strikes the tiger shark in mid-air, not injuring the snackseeking fish but effectively steering it off course and away from MBaer. Some in the
crowd hop to their feet and start to scurry off the grandstand.
Unfortunately, several of them also instinctively toss their mini-boards into the air once
they see KA’s catch on fire, with enough force that theirs catch fire as well. Suddenly
there are smoldering mini-surfboard missiles raining throughout the grandstand.
BM, a college football player and anime aficionado, springs to action. He unleashes a
Spirit Bomb to annihilate two of the burning boards. He deploys a Shining Finger Sword
to wipe out another. He then Fire Fists one more board into
oblivion, and for good measure, he modifies his own version
of the Full Counter by going all defensive back on the last
hurtling wakesurf board and decleating the promotional
giveaway. It shatters into a hundred titanium shards.
The good news is that BM manages to douse the flames on
all of the airborne boards; the bad news is the surfboard
shrapnel from the last one cuts LMc’s chin as she’s filing a
report from the scene . . . covers the grandstand and the floor
beneath it, causing several people running from the scene to lose their footing (including
CD, who was already hobbling on a sprained left ankle from his failed Nacho Fries pitch,
and then skids on a pile of titanium scraps and sprains his right ankle) . . . and angering
the tiger shark and bull shark further.
SF, seeing that the sharks have been dangerously riled up, dives into the lake. Among his
hobbies is swimming in shark-infested waters, but until now there’s never been much
benefit to it. SF manages to scare the sharks off, but in the process swallows enough toxic
lake sludge to send him into shock.
The aspiring Physician Assistants, EH and ES, both jump into the lake to rescue SF. (The
Flake security guard/lifeguard TS hears the commotion from the parking lot but remains
glued to the SMU hype video, which he’s watching for the 30th time.) EH and ES each
grab one of SF’s arms to pull him to shore, but they turn in different directions and, in
doing so, they pop both of SF’s shoulders out of socket.
In the meantime, SO, an agent in the crowd, can’t believe her eyes. Aside from
representing football players, SO also happens to be an investor in a start-up professional
anime-style-surfboard-obliteration league called the Professional Anime-Style Surfboard
Obliteration League. SO starts running toward BM to try and convince him to sign a
representation agreement and give the fledgling PASSOL a try. SO is still holding the
serrated surfboard she was given when she arrived at the Grand Opening as she waves her
arms wildly to get BM’s attention. BM notices SO sprinting toward him and waving the
razor-sharp titanium board over her head, and he assumes SO is trying to attack him. SO
sees the panicked look in BM’s eyes and quickly assures him that she’s only there to talk
about a possible anime-style-surfboard-obliteration career and means no harm. SO tosses
the board down but the serrated nose harpoons her own left foot, causing her to crumple
to the ground.
Meanwhile, CD notices that MBaer is standing alone on the platform, shocked at how
badly his fly fishing exhibition has gone. MBaer is CD’s target now. He doesn’t care
that MBaer is not a singer or beatmaker or that CD knows nothing about fly fishing or
football. All CD knows is that MBaer is about to be a social media phenomenon because
of what just happened and he wants to ride the wave.
On two sprained ankles, CD staggers over to MBaer and takes his shot, asking if MBaer
would be interested in getting a training camp shot with an NFL team and, if so, whether
he’d like an agent. MBaer said he’s plenty happy playing college ball and running Fly
Fishing AF, but he’d be open to the pro opportunity if (and only if) it were with his
beloved Denver Broncos (the fly fishing in Colorado is fire). He’d have no interest
otherwise.
At this point, CD leans forward and whispers: “Hey, man, what year are you in school?”
MBaer responds that he’s a freshman. “Cool — I can make sure the Broncos draft you
this spring,” says CD, who doesn’t understand NFL draft eligibility rules. “I represent
both their General Manager and their Director of Player Personnel in their not widely
known singing and beatboxing careers.”
MBaer is skeptical of CD’s proposal but says: “Sure, as long as you can get me a shot
with the Broncos, you can represent me.” CD reaches out to shake hands, but both his
sprained left ankle and sprained right ankle give out and he falls to the ground, badly
twisting his left knee.
Another agent in the crowd, DMc, overhears the conversation. He picks up his phone and
starts to dial up the GM for the Arizona Cardinals, whom he owes a favor. DMc plans to
tell the GM he will deliver MBaer, a defensive end, to the struggling Cardinals defense.
But before DMc finishes dialing the Arizona GM’s number, a flash of lightning appears
in the distance, 10 seconds after which there is an audible rumble of thunder. LC grabs
the microphone again and announces: “Yo yo, my people, under NATA guidelines, we
are now under a weather delay. Please evacuate your seats and move either under the
metal grandstand or into the grocery store. Stay tuned for further announcements on when
The 360 will get underway.”
The few members of the crowd that hadn’t already evacuated after the blazing surfboard
fiasco begin to retreat to the grocery store — including RR, who hops on her one good
Achilles tendon all the way into the building — while others camp out under the
bleachers.
Fifteen minutes after the lightning-and-thunder strike that prompted the evacuation, LC
announces: “You may now return to your seats. The 360 will start shortly! In the
meantime, check out our — ”
Before LC can finish the sentence, WF — who has a start-up side business called “Mostly
Hollow Potato Skins & Mediocre Outdated Clothing” and knows that SS, who provided
the giveaway wakesurf boards, is the biggest obstacle to him surviving in the lucrative
appetizer market — grabs the microphone from LC and shouts to the crowd: “Skinner’s
Skins sells nothing but fake, imitation potatoes that attract mosquitos and tiger sharks!!
SS also owns COVID-Proof Drunk Tank!!! Come get your grub on at WF’s Mostly
Hollow Potato Skins & Mediocre Outdated Clothing instead and score yourself a greasy
bag of indigestible spuds and a pair of slightly used NBA-length cargo shorts!!”
Neither of WF’s statements is true. SS does not sell any fake products, and SS has no
affiliation with COVID-Proof Drunk Tank. Nonetheless, Skinner’s Skins will see its sales
plummet in the weeks following WF’s tirade.
WF drops the mic and runs away, tripping over a cable from LMc’s camera crew and
lands on his tailbone. He is not injured.
Meanwhile, inside the grocery store, RR is captivated by the Flake’s canned goods variety
but is stirred from her reverie as she notices the Flake/Fly Fishing AF bartender EM and
sushi-costume-guy PM reenacting the first scene from “Breaking Bad” (although she’s
pretty sure only Walter was in tighty whities in that scene, not Jesse too) as they careen
down the aisle in an imaginary RV. RR wonders if she’s really just dreaming — rows
and rows of Rotel, ravioli, and fruit cocktail tend to have that effect on her — but when
she thinks she sees a woman named MC barrel-racing through the fresh produce displays
on a horse (and trucking PM), she’s pretty sure she might have slammed too many of
those CBD-infused hard seltzers they were handing out in the next aisle. Sometimes RR
loves her a good grocery store a little too enthusiastically.
RR limps outside and arrives back at the grandstand. She starts to lift the trash can out of
the seat next to her so that SA, who’d been escorted back to the grandstand by JK after
the lightning delay, can sit. Just then, another flash of lightning illuminates the sky over
the Flake, rips down over the lake, and strikes the promotional mini-surfboard that
remains lodged in the trash can. The electricity from the strike courses through the
wakesurf board’s titanium deck and chrome fins and penetrates the trash can, and the
shock knocks RR out cold.
WakeLake & Corn Flakes security guard JSkid rushes over to RR but freezes. He has
never been trained by LC on how to respond to medical emergencies and has no idea what
to do or who to contact first.
Just outside the Flake is Matt McConaughey, who had driven to the Flake in a motorized
wheelchair that he uses because he likes how it looks (he has no physical need for the
wheelchair). Matt arrives at the ferry dock but a security guard named MH refuses to let
him into the event, explaining that Flake policies prohibit people in wheelchairs from
entering the premises. Matt starts to motor toward the entrance anyway, at which point
MH grabs hold of the wheelchair with one hand and holds Matt down with the other.
As Matt struggles to pry himself free, he is struck by lightning.
The following 45 people and entities come to your law office — some who believe they might have legal
claims to pursue, some who feel they need a lawyer to defend against possible claims, and some who are
in both categories (as well as a few who ultimately fit neither category) — looking for an attorney:
• LC Owner of WakeLake & Corn Flakes (The Flake)
• PM Guest throwing out ceremonial first pitch at The Flake
• MBaer Owner of Fly Fishing AF/college football player
• RR Customer attending The Flake Grand Opening
• SA Customer attending The Flake Grand Opening
• EL Customer attending The Flake Grand Opening/National Anthem vocalist
• CMur Customer attending The Flake Grand Opening
• JSm Customer attending The Flake Grand Opening
• Tank Sole proprietor of COVID-Proof Drunk Tank (“CPDT”)
• CCam College football player
• HZ Agent
• 7&7 Drunk tailgater
• EM Bartender at Flake/Fly Fishing AF beverage stand
• TS Flake/Fly Fishing AF security guard/lifeguard
• SB Future pediatrician
• EH Future Physician Assistant
• ES Future Physician Assistant
• BS The Flake usher
• SS Owner of Skinner’s Skins & Skinner F.C./supplier of giveaway wakesurf boards
• Board Silly Designer/manufacturer of defective wakesurf boards
• MK The Flake usher
• DMo Astros fan
• LMc Sports reporter
• MS National Anthem beatmaker
• EN Professional soccer player
• MBish Customer attending The Flake Grand Opening
• ZP Customer attending The Flake Grand Opening
• JK Customer attending The Flake Grand Opening
• CMa Hockey player/The 360 participant
• JV Hockey player/The 360 participant
• CD Agent
• Adele Touring vocalist
• Rich Paul Agent/Touring vocalist’s boyfriend
• RH Customer attending The Flake Grand Opening
• CCah Customer attending The Flake Grand Opening
• KA Customer attending The Flake Grand Opening
• BM College football player/anime fan
• SF Customer attending The Flake Grand Opening
• SO Agent
• DMc Agent
• WF Owner of “Mostly Hollow Potato Skins & Mediocre Outdated Clothing”
• MC Barrel racer
• JSkid WakeLake & Corn Flakes security guard
• MH WakeLake & Corn Flakes security guard
• Matt McConaughey
YOUR ASSIGNMENT:
FIRST: Identify any FOUR (4) tort or product liability claims that your potential
clients may have, as follows:
• TORT (OR PRODUCT LIABILITY) CLAIM #1:
A. The name of your client, the claimant (Plaintiff)
B. The type of claim
C. Whom the claim is against
D. Likelihood that the Plaintiff wins — and why — based on the facts
• TORT (OR PRODUCT LIABILITY) CLAIM #2:
A. The name of your client, the claimant (Plaintiff)
B. The type of claim
C. Whom the claim is against
D. Likelihood that the Plaintiff wins — and why — based on the facts
• TORT (OR PRODUCT LIABILITY) CLAIM #3:
A. The name of your client, the claimant (Plaintiff)
B. The type of claim
C. Whom the claim is against
D. Likelihood that the Plaintiff wins — and why — based on the facts
• TORT (OR PRODUCT LIABILITY) CLAIM #4:
A. The name of your client, the claimant (Plaintiff)
B. The type of claim
C. Whom the claim is against
D. Likelihood that the Plaintiff wins — and why — based on the facts
SECOND: Identify any TWO (2) defenses (to any tort or product liability claims)
that your potential clients may have, as follows:
• DEFENSE #1 TO TORT (OR PRODUCT LIABILITY) CLAIM:
A. The name of your client, the Defendant
B. The name of the Plaintiff whose claim you’re defending against
C. The type of claim you’re defending against
D. A defense that, if successful, would defeat that claim
E. Likelihood that the Defendant succeeds in defeating the Plaintiff’s claim
— and why — based on the facts
• DEFENSE #2 TO TORT (OR PRODUCT LIABILITY) CLAIM:
A. The name of your client, the Defendant
B. The name of the Plaintiff whose claim you’re defending against
C. The type of claim you’re defending against
D. A defense that, if successful, would defeat that claim
E. Likelihood that the Defendant succeeds in defeating the Plaintiff’s claim
— and why — based on the facts
THIRD: Identify any TWO (2) risk management issues that you would advise
your potential clients to address
• RISK MANAGEMENT ISSUE #1:
A. The issue
B. The name of your client whose responsibility it is to address the issue
• RISK MANAGEMENT ISSUE #2:
A. The issue
B. The name of your client whose responsibility it is to address the issue
FOURTH: Identify any TWO (2) potential legal or ethical issues with the
conduct of any of the five agents
• LEGAL OR ETHICAL ISSUE WITH AGENT’S CONDUCT #1:
A. The agent whose conduct is at issue
B. The issue
• LEGAL OR ETHICAL ISSUE WITH AGENT’S CONDUCT #2:
A. The agent whose conduct is at issue
B. The issue
You must complete each of the 10 categories as well as the subparts beneath each one. I
would ask that you structure your work as I have above, with numbered categories and
lettered subparts (that is, TORT CLAIM #1…A…B…C…D…TORT CLAIM
#2…A…B…C…D…and so on). Your answers should be in full-sentence form and
demonstrate your understanding of the concepts involved.
To be clear: You absolutely do not need to involve all 45 potential clients who come to
your office! You only need to identify and break down four total tort or product liability
claims, two total tort or product liability defenses, two total risk management issues, and
two total agent issues (all of which add up to the 10 parts). There are many possibilities
in each category — but all you need to come up with are the 4, 2, 2, and 2 as outlined
above.
Don’t hesitate to let me know if you have questions. Good luck!
Professor Newberg

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