Answers to Summer 2014
California Bar Exam Questions

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Summer 2014 Bar Question 6



Owner owned and operated a small diner where Cook and Waiter worked. After closing one day, Cook called in sick for the following day. Owner knew that an acquaintance, Caterer, owned and operated a catering business. Owner asked Caterer to fill in for Cook. Owner told Caterer: “I want you to run the kitchen for one day. I will pay you your standard catering fee. I just need somebody who knows what he’s doing.” Caterer agreed, telling Owner, “I’ll bring my own knife set, but I assume the kitchen is fully equipped.”

Owner did not check Caterer’s references. If he had, he would have learned that Caterer’s business had once been shut down by the health department.

Caterer went to Owner’s diner and started to cook. Patron, a customer, ordered chicken wings from Waiter. Waiter gave the order to Caterer.

A notice posted on the kitchen wall, entitled “Health and Safety Code Section 300 Notification,” stated: “To avoid food poisoning, all poultry products must be cooked at a minimum temperature of 350 degrees.” Upon observing that the oven was set at 250 degrees, Waiter informed Caterer that the oven should be set at 350 degrees. Caterer responded: “Just worry about waiting tables, and leave the cooking to me.” Caterer did not raise the temperature of the oven, and removed the chicken wings shortly thereafter.

Waiter served Patron the chicken wings. Patron ate the chicken wings and suffered food poisoning as a result.

Under what theory or theories, if any, might Patron bring an action for negligence against Caterer, Waiter, and/or Owner, and what is the likely outcome? Discuss.

All questions © 2014 California State Bar Exam. All rights reserved


Question 6, Summer 2014

Patron v. Caterer—negligence
                        Foreseeable plaintiff
                        Standard of care
            Actual cause
            Proximate cause

Patron v. Waiter—negligence
            No duty, therefore no liability.

Patron v. Owner—
negligent entrustment
                        did not check C’s references
                        C was once shut down by health dept.
            Actual cause
            Proximate cause
                        Caterer’s negligence
negligent supervision
            O operated diner
            Wanted someone who knew what he was doing
            Posted Health and Safety sign, but O was not in kitchen
vicarious liability for Caterer
                        Standing in for Cook, employee
                        Run kitchen for one day, not a project that C controlled
                        All other kitchen equipment supplied by O
            Independent contractor?
                        --standard catering fee
                        --brought knives


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