Torts I §2 Final Exam - Fall, 1998: (Professor Phebe Haugen)

It was Friday night, and the Sumo Bullfrog Center ("The Bullfrog") had scheduled the biggest pro wrestling match of the entire season. The featured wrestlers, far and away the most popular with the fans, were the stupendous Bud "The Bod" Hewgensky and his fiercest rival, the awesome Stan "All-Man" Chamberlin. The seats had gone on sale some three months earlier, and the event was completely sold out in less than an hour. The lines outside the Bullfrog had snaked around 3 downtown blocks, as hard-core body-builders, interestingly tattooed teen-age girls, mothers of 12 year old boys, and senior citizen bikers all waited patiently, chain-smoking, hoping to secure ringside seats. (Most of them wound up in the nosebleed sections.) Needless to say, it was the pro wrestling event of the year.

After a few rather lackluster matches between such lesser lights as Tommy "The Equalizer" More and Harry "King of the Ring" Aetth, the two real stars emerged, Bud dressed is his customary pink spandex with glitter boa, and Stan in his usual black and white polka dot unitard. (Both were buff beyond belief.) The crowd went wild. The two men squared off and began to go into the routine they had rehearsed and choreographed earlier in the week. Many of the moves, the "pile driver" especially, were real crowd-pleasers, and the two wrestlers went at them with relish.

Con, who had been listening to rap music on his Discman while watching the match, had "zoned out" with his eyes closed for a few seconds, and just as he opened them, he saw Spike land on Tim. Being naturally protective of his younger brother, and believing that Tim was being attacked by Spike, Con, who was 6 feet tall, jerked the startled Spike to his feet by the collar and said, "Who do you think you are, pipsqueak? That’s my little brother!" Whereupon, Con tossed Spike up and over the second row (amid wild cheering by the crowd). Spike landed in a heap in an empty seat in the third row. An enormous Bullfrog security officer immediately grabbed Con and, over his and his mom’s protests, took him to the office for questioning.

While all this excitement was going on, Myra, another huge wrestling fan, had gone to the women’s room to answer an ill-timed call of nature. As she emerged from the stall and approached the sinks, she slipped on a puddle of dirty water in front of the sink, and crashed to the floor, landing painfully on her arm. Frieda, a Bullfrog employee serving as custodian of the ladies room for the event, was outside on a break, having a cigarette and talking on a cell phone at the time.

1. Stan readily admits he had agreed with Bud that neither of them would use a power bomb on the other, but says he "really wanted to win" the match. The power bomb considerably aggravated Bud’s back injury; he is now sporting a cumbersome back brace and must stay out of the ring for 6 weeks. He wants to sue Stan ("that %$#") for his injuries. (Bud is also royally ticked off because it was his turn to win.)

2. The boys’ mom is very angry at the Bullfrog, and wants to sue the Center on behalf of both her sons. Her son Tim suffered contusions when Spike landed on him, and Con was held by the security officer and grilled for about a half hour regarding his subsequent altercation with Spike. (Con’s mom was heard to yell at the immense security officer, "Fat boy, you’re gonna pay!" when he finally allowed her to take her son home.)

3. Spike wants to sue both Bud (for hitting him) and Con (for throwing him over the row of screaming fans). Spike has no serious physical injuries, but he is now terrified of wrestling matches, and, as a result, has had to quit working for the Bullfrog Center.

4. Myra, the unfortunate restroom casualty, has a broken arm from her fall on the wet floor. She wants to sue the Bullfrog for its failure to maintain the area in a safe condition. A city ordinance applicable to the Bullfrog states:

It is well known that the ordinance was passed because the Bullfrog, in particular, was known for sports events in which the fans were often rowdy and engaged in fights in the restrooms.

1. Discuss all intentional tort claims that might be raised in these lawsuits:

Bud v. Stan

Spike v. Bud

Tim v. Spike

Spike v. Con

Con v. the Bullfrog Center

What defenses, or privileges, if any, would the defendants in these actions raise? Who should win in each case?

2. Does Myra have a cause of action against The Bullfrog Center? Discuss how she might prove such a claim. How would the Bullfrog respond? Who should win?

Note: You may assume that the Bullfrog Center is responsible for any torts of its employees here. Disregard the fact that the boys’ suits may actually be brought by their mom on their behalf, rather than by either of them as the named plaintiff. (Actually, their mom is here just for color….)

Comments on Torts I §2 Exam - Fall, 1998

This exam dealt mainly with various aspects of three of the intentional torts we studied and a few of the privileges relating to them. The second question, of course, was a negligence question, designed to elicit discussion of the standard of care, how negligent conduct is proved, the possible application of a statute as negligence per se and some discussion of circumstantial evidence including res ipsa loquitur.

The first question sets out for you the parties to each of the lawsuits you were to discuss. The question called for discussion of intentional torts only. If you began with the first one (a logical place to start), Bud v. Stan, you should have recognized that Bud is suing Stan for battery, for the power bomb. Your first task should have been to set out clearly the definition or elements of battery, using good, accurate, clear terminology and full sentences. As the Restatement says, battery is an act, intentionally done, to cause a harmful or offensive contact, directly or indirectly with another. Each of the major terms should also have been defined, if they are in any way words of art. For instance, the contact in battery must be the result of a voluntary act (which will become relevant in Tim’s suit against Spike later, and could be saved for that discussion, if you like), and intent includes not only having a purpose or desire to bring about the harmful or offensive contact, but also the knowledge to a substantial certainly that one’s act will lead to such a contact.

Once you had thoroughly set out those elements, you did not need to do so again, in any of the other lawsuits where battery was in issue. (The same is true of the other torts, of course.) Here, clearly, Stan did "touch" or make contact with Bud in a harmful or offensive way, when he engaged in the unauthorized move -- the "power bomb" -- and thus aggravated Bud’s back injury. The problem here, of course, is that the situation generally, that is, a pro wrestling match, is one of privileged touching, isn’t it? For all the other moves, even if they caused harm or offense, Stan would have had a very good defense in his claim of the privilege of consent. The answer to that claim here, however, would be that he and Bud had previously agreed to a very clear and specific prohibition of the power bomb. A good discussion here would have mentioned that while consent may be implicitly given in some situations (say, for instance, if Bud had himself done a power bomb or some other unapproved move), there is nothing like that here, from which Stan might have inferred that Bud had changed his mind sometime during the match and been willing to have it include moves that had not been choreographed and rehearsed earlier. Thus it would seem that Stan’s claim of the privilege of consent fails, and Bud’s battery claim is a good one.

You should also have raised assault here, and defined it fully, as including the apprehension (not necessarily fear) of an imminent battery (previously defined). Once Bud became aware that Stan was about to do the forbidden move, Bud may have had an action for assault as well. A glance at the diagram probably tells us that at about # 4, Bud saw the move coming. If you concluded he did not see it coming, however, then there would be no assault. Apprehension of the imminent battery is of course the key to assault.

Spike v. Bud is the next lawsuit to consider. Here the tort is again battery, most prominently. Most of you rather quickly dispatched the tort of assault by noting that Spike only got hit because Stan suddenly ducked, suggesting strongly that Spike never saw the blow coming. (No apprehension, no assault. Some of you made a different factual inference. It didn’t really matter.) If Spike does have a battery claim, it is because of the principle of transferred intent, a pretty easy call here, if the original attempted blow was a tortious one. (Note that you were not asked to discuss a lawsuit by Stan against Bud, and should not have wasted time doing so.)

There were some wrinkles in this transferred intent issue, however, and you first had to explain how the doctrine works: If the blow that Bud aimed at Stan is tortious (the facts say "a real swing," i.e. not a pro wrestling fake swing), then when Stan ducks and the blow connects with another victim, the intent to batter the first victim is said to transfer to the second. Note that transfer of intent, when it applies (and you should have talked about when it applies, and to which torts), may involve a transfer both between torts and between victims.

The question of privilege was important here, too, and a bit more complicated than it looks at first reading. There were two important ones to deal with. First, was there is a kind of implied consent in Spike’s doing a job that required him to get into the ring with the wrestlers? God knows what can happen to the poor fool who does that…. Still, it seems pretty clear that even if the answer is yes, Spike, like Stan (the intended victim), never "consented" to Bud’s taking an intentionally harmful swing. The second, and more subtle privilege question is whether Spike is out of luck because Bud’s "real swing" was privileged on some other ground. If Bud acted in legitimate self-defense, then that privilege will protect him from liability for battery against Spike, just as it would have if the blow had connected with Stan. Most of you concluded that Bud was not privileged by self-defense to take a real swing here. He was "enraged" and he retaliated. Retaliation is not permitted in a claim of the privilege of self-defense, of course. So if you concluded that Bud was not privileged to hit Stan, then Spike has a good battery claim. If Bud was privileged to do so, then probably Spike is out of luck as far as intentional torts go.

When Spike lands on Tim, we get to consider Tim v. Spike. While battery and perhaps assault seem relevant here, they are knocked out pretty quickly by the important element of intent, and even earlier when we realize that the "act" itself was not a voluntary movement. The actor (Spike) must intend the act that results in the contact. That is, he must make a voluntary movement of some kind that produces the contact. Here Spike was hurled over the ropes by the force of the blow, not by his own voluntary act. Thus, no intentional tort by Spike against Tim is present here, just the bad luck one risks at the ringside. It is possible, of course, that Tim would be another victim of an indirect battery by Bud, just as he would be if Bud had thrown something at him, instead of launching Spike over the ropes to the same end. The questions did not call for a discussion of this action, Tim v. Bud, but in fact, that’s probably the only way Tim could prevail here. A few of you mentioned false imprisonment as a tort available to Tim. That really was not raised here.

What about Spike v. Con? Here we really have two separate contacts(batteries). First Con picked up the little guy by his collar (offensive, and probably assaultive), a battery under the extended personality rule. Then, after making a rude comment to him, Con threw Spike over a row of fans (not harmful, apparently, but offensive, surely). The main question here was whether either or both of these offensive contacts were privileged. One is privileged to defend another, just as he is to defend himself, provided his actions are reasonable. Con could claim he was acting in defense of his brother. Remember that self/other defense requires that one reasonably believed there was a threat that called for a certain level of response. The actor (Con) can be mistaken about the actual need for that response on his part, but if that factual mistake is reasonable, he may well be privileged to commit an act that would otherwise be a battery.

The amount of force permitted in self/other defense is also what is reasonably perceived to be necessary in the situation. Here you may well have concluded that while Con was privileged to yank Spike by the collar to remove him from Tim, Con’s further act of launching Spike over a couple of rows of seats was excessive, and not privileged, given that Spike was a little dweeb and Con was a six foot tall teenager. On the other hand, you may have admired his concern for his brother, and thought he was doing the right and noble thing here, even in the second "touching". Although I think the first conclusion is better, it doesn’t really matter, so long as you saw the problems with the self/other defense privilege.

Finally, we come to Con v. the Bullfrog Center. Here the tort for discussion is false imprisonment. The elements of course are the total confinement of the plaintiff, against his will, within limits set by the actor (the security guard here). You should have discussed these and the ½ hour period in which Con was kept in the office, despite his and his mom’s protests, but then should have considered the privilege to detain for a reasonable period, in some situations for protection of persons or property. This isn’t the merchant’s privilege here, but rather the kind of justification we talked about in the case or problem (I can’t remember which) where the bus driver kept the rowdy kids on the bus and took them back to the terminal to keep them from damaging the bus property or hurting themselves. It is also a kind of legal authority, given the quasi- law enforcement status of the security guards. It seems to me this ½ hour questioning period was probably not an unreasonable detention (and thus not a false imprisonment) here, but again the conclusion was less important than your discussion of what is involved for a good false imprisonment claim and the corresponding privilege.

Question 2 was the only place for you to discuss negligence, and that of course was what the question was about. While you should have set out the elements of a cause of action in negligence, it was only the first two elements, duty and the breach of duty (the negligent act or omission), that were really in issue there. Damages and causation, of course, we have not studied yet, so should not have been considered in your answers.

Was the Bullfrog negligent in maintaining the women’s room, such that it should be liable when Myra slips on the puddle of dirty water in front of the sink? Here you should have explained that the problem had to do with the standard of care and whether the Bullfrog met it.

You should have discussed the reasonable or ordinarily prudent person standard, and what that might have required here. Myra needs to prove that the Center was negligent in maintaining a safe floor in the rest room, and, specifically, that Frieda should have noticed and cleaned up the water. The evidence of negligence is to some extent circumstantial. The attendant on duty (Frieda) is gone when the injury occurs. Since Myra needs to show that the duty of the Bullfrog, through Frieda, was to keep the restrooms clean and reasonably safe, what does that duty require? Certainly some degree of vigilance on Frieda’s part, but how do we know the water didn’t get there the minute after she left on her break, assuming it was ok for her to take a break? The fact that the water was dirty perhaps suggests that it had been there for awhile. You should have talked about how circumstantial evidence works in these cases.

Res ipsa loquitur, that special application of circumstantial evidence, might permit Myra to get an instruction permitting the jury to infer the Center’s negligence. As you remember, the doctrine permits an inference of negligence from unexplained facts. The doctrine requires an event that generally does not occur in the absence of negligence, and a conclusion that it is more probable than not that the defendant’s negligence, rather than some other event or condition, was the cause of the injury. Pretty clearly here, I think, there are other possible explanations, just as likely as the defendant’s negligence, to account for the water on the floor and for the plaintiff’s slipping in it. While you should have discussed the possibility that Myra could get the judge to give the res ipsa instruction, you should have concluded that the judge would refuse, putting Myra back in the position of having to prove the Center’s breach of the standard of the ordinarily prudent person.

The ordinance (which you could treat just like a statute) is here to provoke a discussion of negligence per se as a way to prove the standard of care in a negligence case. That is, if the ordinance was intended to protect a person in the plaintiff’s position from the kind of mishap that befell her, the plaintiff may prove the defendant’s violation of the statute as negligence per se. The plaintiff will then be relieved of the obligation of proving that the defendant breached any other standard of care, in order to prove the negligent act or omission (breach of duty) element of her lawsuit. After discussing how that works, you should probably have concluded that this ordinance was not enacted to cover the kind of situation we had here, and thus would not apply to serve as the standard of care. The plaintiff again would be returned to proving that the standard of the reasonably prudent person in like circumstances -- the usual standard -- was violated.

One conclusion that some of you very thoughtfully reached, one that I had not noticed, was that the ordinance was perhaps intended to cover broader safety concerns than those involving fighting in the restrooms, since the ordinance calls for the presence of security guards or custodians. Custodians, of course, are not there to keep order, but to clean. I thought that was a good observation and an interesting and justifiable reading of the ordinance. Again, it did not matter very much what you concluded here, so long as you correctly identified and discussed the issues raised by the facts.

On the whole, your exams were good, though some of you were no doubt very disappointed with your grade. I hope that my comments on your papers as well as these general comments will help you to understand what you can do better. The most consistently appearing problem was a failure to correctly and completely state the definitions and rules relating to these torts and privileges and to the various doctrines in the negligence question. I cannot stress strongly enough that a casual or sloppy statement of a rule or definition will often result in an inaccurate one, and that in turn will lead to faulty reasoning about whatever case scenario you are analyzing. That is the reason I gave you so many of the Restatement provisions. They are, in most cases, the clearest and most accurate statements of the law you need to know.

If, after reading this and looking over your paper, you still feel at a loss to explain an unsatisfactory grade, give me a call, and we can try to figure out what went wrong. I really want you all to do well.