William Mitchell College of Law

Final Examination

Torts I Section 2

Professor Phebe Saunders Haugen

Saturday, December 21, 1996 1:00pm

Rooms 201 and 225

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Final Examination

Torts I § 2 Professor Haugen

Fall, 1996

Special Instructions

This is a closed-book exam. You may not use any material or consult anyone during the exam. Its subject matter is intentional torts and the beginning of negligence law. You should not spend time discussing anything we have not yet covered, such as damages.

Always discuss all reasonable tort claims and privileges or defenses that either party may raise unless the instructions with the question limit your discussion to certain issues. If you believe that you need more facts, you may make any reasonable assumptions consistent with the given facts, but you must state your assumptions as such and say why they are important to the resolution of the problem. If you discuss an issue and you believe that the same issue appears in another place in the exam, you need not repeat your discussion of the basic aspects of that issue, but you may instead refer to your earlier discussion and explain how it applies in the later problem.

This exam is graded as a whole, with issues of different weight. You must decide on the relative effort and time to devote to each issue you identify.

It is not possible to test you in two hours on everything we studied to this point. Do not expect to see issues on everything you know about tort law raised in this fact scenario.

This is a 2 hour exam. You must turn in your blue book(s), and this exam, tucked inside the blue book(s), at the end of 2 hours, whether you have finished the test or not. Good luck, and have a great holiday and vacation.

The Facts:

Bud and his French wife Marie ~ Christine (MC) and their two teen-age sons Brian and Oliver, left their home in Geneva, Switzerland, bound for a week-long Christmas reunion with Bud's family in Minneapolis, and lots of shopping at the Mall of America (or the "Hall of the World" as the very French Marie-Christine called it.) Once in Minnesota, and after getting settled at Bud's mother's house, they set out on the Saturday before Christmas, in their rented car, for the Mall. It was, of course, a mob scene. After quite a lengthy drive through the ramp in search of a parking space, they got into the Mall and began to make their way along the shops on the second level. They agreed to split up and meet in an hour at Snoopy's water bowl. Brian and his Dad went off together, MC and Ollie went off separately.

One of the chief attractions of many that day was a boomerang demonstration being given in the rotunda by Walt, the Australian owner of "Walt's Down Under," a first-floor specialty shop (which featured such Australian goods as of course, boomerangs, but also billabongs, swagmen and Paul Hogan). Walt was throwing a large and fairly heavy boomerang up and out about 30 feet into the air towards the second level of the mall, where it would suddenly slow down, curve around and swoop back to Walt, who would catch it neatly every time. The crowd loved it, even though the pedestrians on the second level above the rotunda would duck every time the boomerang approached, certain that it would never turn around in time, though it always did.

As Brian and Bud strolled along the second level, Walt yelled up from the rotunda below, "Hey mate, how about this!" in his foghorn voice with its distinctively Australian tang. Suddenly a smaller boy named Lawrence, who was standing near Brian, and next to the railing overlooking the rotunda, ducked just in time to avoid the boomerang, which sailed right at him, and for the first time that day, did not swoop safely back down to Walt in the rotunda below. The crowd roared, and Brian, whose attention had been drawn to a computerized robot in a nearby shop, turned toward the rotunda. Just at that moment, the boomerang sailed over the frightened, crouching Lawrence and struck Brian on the head, knocking him down. Brian hadn't seen the boomerang coming, and at first had no idea what had hit him. Lawrence started to cry, and his mother ran to comfort him. Brian was dazed, but did not appear seriously hurt, and he and his Dad went to get a soft drink and sit down for a few minutes.

Meanwhile, Marie-Christine, off on her own, was in search of a gift for Bud's mother. Hoping to avoid the crowds on the escalator, she headed for the glass elevator, intending to go up to the top level, where she thought there was a quilt exhibit. Unbeknownst to her, a guard for the Mall had received reports of teenagers tampering with the elevator, jumping on and off and pushing the stop button just after doing so, so the elevator would not respond to the call buttons, but would sound a loud alarm with no one on it. It was most annoying to the Mall patrons trying to use the elevator, and many had resorted to using the escalators after complaining about the problem. Just at the moment MC stepped onto the lift, the guard was rounding the corner, on his way to the elevator. He failed to see her get on, and as the elevator rose toward the third floor, while it was midway between the two floors, the guard stopped it and shut it down with his key, intending to keep it out of service for a little while, so the kids would leave it alone. He then walked away.

Poor MC found herself hanging between the second and third levels, unable to move up or down, unable to activate an alarm. or to call anyone for help. There was so much noise and commotion in the Mall it took a full 20 minutes before anyone noticed her there in the elevator, and heard her Frantic French cries for help. ("Merde alors! Qu`est-ce qui ce passe??" ) Of course the guard was summoned immediately, and he lowered the elevator to the second level again, where he escorted the badly shaken MC to the same nearby café where Bud and Brian were having a coke.

Ollie, meanwhile, unaware of his family's difficulties, was happily strolling around on the third level, enjoying the sights and sounds of stressed-out American shoppers dashing madly about. As he stepped onto the down escalator, to begin making his way towards the designated meeting place in Camp Snoopy, a loud voice behind him said, "Get out of the Way!" Ollie turned and froze as a uniformed Mall guard came rushing at him. The guard was in hot pursuit of a thief who had just snatched $200 in cash out of the hands of a Mall patron at an ATM machine. When Ollie did not move over quickly enough, the guard shoved him against the side of the escalator and ran past him onto the descending escalator. Ollie's shoulder dislocated painfully, as it had on a number of previous occasions, due to earlier athletic injuries. He staggered over to the same café where the rest of his hapless family were "recovering."

As the guard got to the bottom of the escalator, Milhouse was crossing his path, on his way to the sounds of camp Snoopy. Milhouse was blind, and, unlike all the other Mall patrons in the vicinity, who gave the rushing guard a wide berth, Milhouse of course did not see the guard tearing down the escalator towards him. Suddenly the guard and Milhouse collided, and the two men fell in a heap. Milhouse's white cane went flying

The trip to the Mall has been a disaster for Bud's family. Brian has had bouts of double vision ever since being struck with the boomerang, and he has experienced some worrisome short-term memory loss. Ollie of course has had to undergo the painful relocation of his shoulder, and Marie Christine, who has a long history of serious claustrophobia (and only stepped into the Mall elevator because it was made of glass on three sides), has had recurrent nightmares about being enclosed in a small space and has suffered from continual exhaustion as a result.

The day did not go well for young Lawrence or for Milhouse either. Lawrence is a nervous boy anyway, and he has been terrified to go out in public ever since his near miss with the boomerang. Milhouse suffered a broken tailbone and feels he cannot safely walk in the Mall anymore.

Questions:

1. Consider all the causes of action in tort law which might reasonably be raised by Bud's family against Walt, and against the Mall for the acts of its employees. (You may assume that the Mall is responsible if the guards have any tort liability here.) Evaluate each claim thoroughly, discuss any challenges that might be raised to it, and assess each claim's chances of success.

2. Consider any claims the other injured persons in this fact situation might have against either Walt or the Mall. Again, evaluate all aspects of each claim fully, and assess its likelihood of success.

Torts I, §2 Exam Comments: Fall ' 96

This exam was, as law school exams go, fairly easy and straight-forward. Since the subject of intentional torts is quite well-defined, I took it as pretty much of a given that you were all fairly familiar with the torts, and could recognize them when you saw them. As a result, the standards for discussion of those torts were fairly high. The best papers were those which carefully and accurately set out the elements of each tort under discussion, and then went on to analyze them to a reasonable conclusion based on the facts of the problem.

The first question asked for all reasonable causes of action that might be raised by Bud's family against Walt the boomerang launcher and the Mall for any misdeeds of the guards. The second asked for torts others might claim--others being Lawrence and Milhouse here. The better organization was probably to consider the torts plaintiff by plaintiff, but that was not the only way to do it.

Brian may well have had a cause of action for battery, but not for assault, though both should have been discussed. Battery of course is defined as a harmful or offensive contact with the person of the plaintiff that is intended by the actor, or the apprehension of which is intended by the actor. Intent should have been defined carefully as existing when the actor either "has a purpose to" bring about the result (here the contact or the apprehension of such contact) or knows that the contact or apprehension of it is substantially certain to occur. A number of you failed to talk about intent except to say that the actor (here Walt) intended to cause the boomerang to hit someone, which fails to take into account the possibility that he might be liable if he knew there was a substantial certainty that someone would be apprehensive of being hit. If that was the case, and someone (here Brian) was in fact hit, then Walt would be liable for battery, even though he meant no harm to anyone at all. A full discussion of battery requires consideration of these possibilities.

Transferred intent should have been discussed, since Walt called out "Hey, Mate, .... " indicating that he may have been intending to cause the apprehension of contact in Lawrence or anyone standing near the railing. If so, that intent would transfer to the tort of battery, when the boomerang did then hit Brian. Of course intent does not transfer for all torts, but only those arising out of the original writ of trespass, which includes, among others, assault and battery (but not the intentional infliction of emotional distress, as some of you erroneously argued). Assault is the imminent apprehension of a harmful or offensive contact, so since Brian was unaware of the boomerang heading for him, he has no assault action here. If Walt intended to cause the apprehension of contact in Lawrence, however (a reasonable conclusion from the facts), then he would be liable because that intent would transfer to the battery of Brian, when the boomerang actually hit him. Apprehension does not require fear, as many of you correctly noted, but only the unpleasant awareness that the contact is about to occur...

Lawrence of course would have an action for assault on this reading of the facts, since he clearly feared the harmful contact with the boomerang, which led him to duck just in time. It is highly unlikely that he has a cause of action for intentional infliction of emotional or mental distress, though many of you concluded that he did. This tort should have been discussed and rejected in connection with anyone in this fact situation. It requires extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress to another. It is difficult to see how this boomerang demonstration, however ill advised it might have been in a crowded shopping mall, was extreme and outrageous enough to subject Walt to liability for this tort. In any event, damages for emotional distress are part of the recovery for any of the other torts that are found present here. These damages are considered parasitic to those for battery, assault, etc. A number of you did identify this issue here, as you should have, since a couple of people in the fact situation did suffer "emotional" damages. It should also have been noted here, that if Lawrence suffered more than most because of his nervous nature, then so be it. The tortfeasor is bound to take the plaintiff as he finds him, and if damages are worse than expected, according to the "eggshell skull" rule, the defendant must pay them.

Negligence should have been introduced here, to cover the situation in case the sufficient intent for assault or battery is determined to be lacking. Many of you made convincing arguments that Walt (or the Mall for allowing this demo) was negligent in conducting this demonstration in a crowded shopping center. You should have set out the four elements of a cause of action in negligence, and then proceeded to discuss the standard of care: that of a reasonable person, ie the ordinary, prudent person in like circumstances. Here it was at least arguable that Walt was an expert at boomerang throwing or held himself out as such, and would therefore be held to the standard of one with superior knowledge of the craft. In either event, it may well have constituted a breach of the standard of care for him to be hurling this heavy object around in such a place.

Marie-Christine, who was trapped in the elevator, was the next logical plaintiff here. Her damages are exclusively emotional, though that does not mean she had any kind of action for IIED. You needn't even have mentioned that tort in connection with her, but if you did, and rejected it, that was fine. The primary tort that should be raised for her was false imprisonment. That tort of course requires that the actor, the guard here, intentionally and totally have confined her within boundaries which he determined, such that she could not reasonably escape, or was unaware that she had a means to escape. She was of course totally confined, but intent is pretty clearly lacking, since the guard did not realize she was there; nor could he have been "substantially certain" that someone was in the elevator and would be confined against her will. Again, negligence may be at issue, since the reasonably prudent person would probably check before closing down an elevator between floors. The Mall may have liability then for the negligent confinement of MC if she can show some injury from this 20 minute period. Again, the eggshell skull rule might be persuasive-- that is, that she in fact suffered more than most would from this kind of confinement. She might have enough to establish "injury," a requirement of a negligence action, but whether a jury would be persuaded that it's worth much, is another question.

Oliver has an interesting situation, since he appears to have been in the wrong place at the wrong time. Was he assaulted? Perhaps, since the guard warned him to get out of the way, with the implicit threat that the guard would push him out of the way if he failed to move. The contact that followed was certainly harmful as it turned out, again taking the plaintiff as he is -- with a dislocatable shoulder- - , and would qualify for battery, but the real question is whether the guard's conduct was privileged. You should have defined what a privilege is, and then gone on to talk about the various kinds of necessity that might have justified the guard's running through the crowded mall in hot pursuit of a thief. Many of you correctly noted that this theft was not the kind of serious public necessity that would absolve the mall of any liability for harm to such a bystander as Ollie, but in fact, the conduct was probably privileged as a legitimate recapture of chattel by a third person whose job it is to protect the person and property of mall patrons from just such events as theft at an ATM machine. Again the elements should be discussed - they all appear to be here, but the Mall could not escape paying for whatever damage they cause most likely, since this is more in the nature of a private necessity, if it is any kind of necessity at all.

Milhouse raises the issue of the standard of care owed toward (and by) blind patrons of the Mall. Again, the conduct of the guard is privileged, meaning that it is probably not battery here, but the recapture of chattels has to be done with some degree of care, and arguably the guard was negligent in the manner in which he pursued the criminal, given that the mall is available to persons who are blind as well as to others; the guard should have seen Milhouse and known from the white cane that Milhouse would not perceive him and get out of the way. The standard of care for contributory negligence is about the same, of course, and the issue should have been raised, whether Milhouse was acting as a reasonable blind person in even being at the mall on such a crowded day. Most of you who discussed this, correctly concluded that Milhouse's conduct was not unreasonable, despite his blindness, and in fact, the guard (doing a sort of public service job) had a higher duty to watch out for him, than any Milhouse may have had for himself. The point here was to discuss the fact that the standard of reasonable prudence will often include the attributes of the actor which are physical in nature, like blindness.

Many of you did a good job of setting out the elements of these torts and privileges, and of discussing their application to the facts of the problem. A number of you, however, gave only cursory definitions of the key torts and privileges, and did a rather conclusory analysis. If your grade was not what you had hoped for, it is likely that that was the problem. Again, since these are such straightforward torts, with clear elements, there were more or less right and wrong answers to some of the potential causes of action here, and thoroughness of discussion was important.

Organization was important here too. The better papers were clear, well organized and persuasive, and they reached reasonable conclusions. (Asserting that MC may have "consented" to be confined in the elevator for instance or that Brian consented to the battery, or Lawrence to the assault were not reasonable conclusions). As I stated in the general memo that I gave you about exam writing, I don't expect exams to have the elegance of research papers that you've had weeks to draft and redraft, but I do expect reasonably decent prose writing, and thoughtful organization. It would be helpful for all of you to underline or otherwise highlight key concepts, skip a line between paragraphs, and paragraph frequently, so that you (and the reader!) can keep track of what you are discussing and where. (You need not repeat the elements of a tort after stating them clearly once, but you do need to analyze the facts for the presence of each element, every time you consider the tort for a new plaintiff.) I was also a bit dismayed at the spelling in some of your papers. (My old English teacher, Mrs. Paetz, would roll over in her grave if she saw how many of you wrote "theif.") On the whole though, these were pretty good papers, and the vast majority of you are very much on the right track.