Torts I (Haugen) (Fall '97)

Facts:

One late Saturday afternoon in December, Bud was on his way back to his apartment after cleaning out his storage area in the basement of the building. He looked as though he had been through a dust storm: he was covered with dirt and grime, and his old clothes looked as if he had slept outdoors in them for a week. As he passed by the apartment of his neighbor Genevieve, he heard what sounded like a muffled scream. He drew closer to the door, and just then, he heard what sounded like a man's angry voice, and a woman's shriek. Fearful that Genevieve was being attacked, Bud rapped sharply on the door, then backed up and took a run at it, intending to break it down. Just as he made contact with the door with his full weight, it was opened by Alfred, who was knocked flat as Bud flew into the room, upsetting a valuable bust of Wagner, which crashed to the floor. As Bud careened over Alfred's prostrate form, Yvette, fearful of being similarly run down by this filthy man, backed up quickly to get out of his way, and fell down the two steps into the sunken living room of the apartment, striking her head on a bust of Mozart.

Just then, Winthrop, who had gone briefly to the kitchen to refill his champagne glass, emerged to the commotion, and spotted Bud, an obvious intruder. Fearing that this vile, dirty man was about to murder them all, Winthrop, a large and portly gentleman (dressed like Genevieve's other male guests, in a tuxedo), threw Bud to the floor, breaking Bud's collarbone, and pinned him there, while Bud yelped in pain.

While these events were taking place, 14 year old Woody, on his way down the hall to his mother's apartment at the other end of the building, passed by Genevieve's open door. When he saw the obvious chaos going on inside her apartment, he seized the opportunity, dashed in, snatched up a "precious moments" figurine his mother had always admired, and ran out down the hall.

Wilford, another guest, was the only one who saw the theft, and he took off after Woody, chasing him down the hall and out the front door. Catching up to him on the front lawn, Wilford struck Woody and threw him very roughly to the ground, breaking Woody's arm. Wilford picked up the figurine, muttered something about "'rotten kids," and returned to Genevieve's apartment.

As he entered the foyer to the building, Wilford slipped on the tile, which was wet from rain that had been tracked in by other tenants during the afternoon. He suffered a bad fall, struck his head, and required several stitches. The "precious moments" figurine was smashed to bits.

Additional Facts:

1. In fact, what Bud had heard coming from Genevieve's apartment was Genevieve and Oscar engaged in an a capella rendition of a particularly vigorous duet from a new opera, The Barber of Woodbury, which Alfred had written. (In fact, neither Genevieve nor Oscar was quite up to it, vocally, and their singing had had a rather strangled quality to it, especially Genevieve's high C, which she had choked out just before Bud burst into the room). She had invited Oscar and the others to a "salon" gathering, ("black tie optional') for champagne and a bit of a preview of Alfred's new work.

2. When the commotion was all over, everyone noticed that Alfred was still lying inside the front door, where Bud had run over him. He had suffered a bad concussion, and required a hospital stay of several days.

3. Yvette, too, had injuries from her encounter with the Mozart bust, and required a hospital visit and minor treatment. She was a person of delicate sensibilities anyway, and she was thoroughly traumatized by the whole event. She will no longer attend any soirées at Genevieve's or anyone else's, and is afraid to leave her house for any reason. She has developed an intense fear of dirt.

4. Genevieve is extremely miffed. Not only was her lovely event ruined, but her Wagner bust was smashed, her apartment trashed, and she is out her most treasured possession, the "precious moments" figurine. (It was, in fact, quite a special collectible, depicting a small boy relieving himself on a rose. It had been "retired" and was therefore worth, as Genevieve puts it, "a small fortune.")

5. Woody's parents are incensed at his "beating" at the hands of Wilford.

6. Raymond, the landlord of the apartment building, maintained quite beautiful premises. He knew the terrazzo tile in the foyer was treacherous when it was wet, but it was very beautiful and quite expensive, and he knew it would be difficult to find something to replace it that looked as good without costing a fortune. He had elected instead to post a tasteful sign, "This tile may become slippery when wet " in the entryway.

Naturally, everyone wants to sue.

Questions:

1. What intentional torts, if any, have been visited on Bud? Whom may he sue, if anyone, for his broken collarbone, and who should win?

2. What intentional torts, if any, has Yvette suffered? May she sue anyone? Who should win?

3. What about poor Alfred, the hapless composer? What intentional tort actions might he have? Who should win?

4. Has Woody been the victim of any intentional torts? What are his chances of recovery?

5. What intentional tort actions might Genevieve bring? Who should win?

6. Finally, does Wilford have any cause of action available to him for his injuries in the foyer of the building?

Be sure to discuss all privileges or other defenses that might be raised to any torts that you identify here. In some cases, the person suing might him or herself be the wrongdoer. How would you work out those conflicts? Consider the elements of each tort or defense that you raise and be sure to discuss them.

Torts I §2A Fall, 1997 - Final Exam Comments:

In General:

Your exams were about what I would have expected for first semester. The range was just about as it has been in the past. Some papers were excellent. A few were missing some very important features, and most were just fine, but could have been improved in various more or less important ways.

Organization should have been fairly easy, as the questions set out the format of the discussion for you. If you read the questions carefully and answered them by number, you would have had much of your organization in place, and you might have avoided discussion that I was not asking for. For instance, a number of people discussed negligence in places where it wasn't raised, and at the very least, wasted time that could have been spent on the proper issues. In fact, negligence was only to be discussed in the last question regarding Wilford's injury in the foyer of the apartment building. All the other questions dealt with intentional torts and related privileges.

A number of you had some difficulty with your written expression. While I was not looking for elegance, clarity was important. I do not assign specific points to written expression (or to anything else, for that matter), but it will affect the overall quality of your exam if your answers are not clear and reasonably well written. If I made notations about your writing on your exam, you might consider talking with Sally Zusman or your legal writing instructor for some help with this, as it will affect all your courses in law school.

The Questions:

(1) Here the question was what intentional torts Bud had been subjected to and whom he might sue for his injuries. Most of you correctly identified the torts of battery and false imprisonment as being primarily at issue here, and recognized that assault, while probably not present, should be mentioned. Since it should have been clear that these torts were also going to be at issue in the later questions, you should have set out a clear statement of the elements of each in question one and then referred back to those elements in the later answers. A full statement of the elements from the restatement for each of these torts as well as definitions of important concepts like intent should have been the first order of the day. The best papers did this well, just as in the practice exam.

Bud's lawsuit would of course be brought against Winthrop for the injuries Bud suffered when Winthrop threw him to the floor (battery) and for keeping him pinned there (false imprisonment). Since the facts seem to indicate that Winthrop emerged from the kitchen unobserved by Bud, the imminent apprehension of harmful or offensive contact (battery) that would constitute assault was probably not present. Most of you assumed that Bud did not see Winthrop coming, and thus could not sue for assault. Others assumed he did and concluded accordingly that assault as well as battery was present. It did not matter to me how you resolved that question, so long as you discussed what is necessary for a good assault claim, and how it differs from battery.

Many of you rather loosely referred to intentional "harm" or the apprehension of "harm," technically not correct, since what assault and battery refer to is contact that is either harmful or offensive, and the intent to make that contact or cause apprehension of it. Clearly, however, this was a harmful, rather than an offensive act, as it turned out.

Winthrop's defense here is to claim the privilege of defense of others and self-defense (not "self-defense of others" as a number of you called it). Winthrop, reasonably or otherwise, believed that Bud was a threat to the safety of all the guests, and that tackling and restraining him was a necessary act to protect them all. Since Winthrop was mistaken about this, you should have discussed the effect of such a mistake. Was Winthrop's perception of the situation a reasonable one under the circumstances? Was his act a reasonable one in light of what he perceived, and will that reasonableness protect him from liability to Bud for his mistake? Most of you correctly concluded that his act is privileged, even though mistaken, if his belief about the situation and the necessity for acting as he did were reasonable. Otherwise, he would be liable for battery, false imprisonment and perhaps assault on Bud.

You should have clearly discussed the elements of the privilege of self defense, and how it also applies to the actor who acts to protect another from a threat from which the other would be privileged to defend him or herself. Probably Winthrop's act was privileged as a reasonable response to the perceived threat, and probably the force used was not excessive. Again, your full discussion of self/other defense should have addressed the need for force that is proportionate to the threat, and your conclusions about that in this instance were less important than your recognition of the balancing that must be done. This was not the place to discuss whether Bud should be liable for anything, as that question is asked later. Here the concern was only with Bud as a possible plaintiff.

(2) The second question asked what intentional torts Yvette had suffered. This question raised several issues. Yvette was afraid Bud would run her down (as he had Alfred) when he came careening into the room. As she moved out of his way, she fell and hit a bust of Mozart and was injured. Subsequently, she suffered some emotional fallout, became irrationally fearful and was unable to leave her house. These facts raise the issues of assault, battery with a transfer of intent and intentional infliction of emotional or mental distress.

As to assault and battery, it would seem quite straightforward, with Yvette apprehending an imminent harmful or offensive contact with Bud as he careened into the room, and backing up right into a harmful contact with the Mozart bust.

A discussion of how the intent to cause apprehension can lead to contact and vice versa, and how intent in such instances is said to "transfer" from one tort to the other (with a few of the torts under the old "trespass" writ), was an important component of your answer to question (2). The main problem here, however, was with Bud's intent.

The facts indicate that Bud ran at the door to force it open and gain entry to the apartment where he thought his neighbor was being attacked. It seems highly unlikely that he intended to assault or batter anyone with this act of ramming the door. What he wanted to do was to get the locked door open. Of course intent also includes knowledge that the harmful or offensive contact or apprehension thereof were "substantially certain" to occur. Again it seems unlikely that Bud could be said to have had this knowledge. In fact, even the volitional act of making contact with anyone, or causing apprehension of such a contact were questionable here, since what caused Bud to come flying into the room was Alfred's sudden and unexpected opening of the door. (You may recall Inspector Clouseau's entry to the music room where singing was going on in "A Shot in the Dark.")

The point here was that Bud probably did not intend to careen into the room at all, since he expected to meet the resistance of a locked door. For intent to be proved, the act itself must at the very least be intended, and the consequences substantially certain. Thus, it would seem that Yvette would have a hard time proving that Bud intended to rush at her at all. If she can get by this hurdle, however, the fact that she side-stepped him and crashed into an object "indirectly" and suffered a harmful contact that way, rather than with Bud directly, would be a battery, with intent having transferred from Bud's intent to assault or batter her directly. Again, however, I think the facts do not support a finding of the requisite intent, transferred or otherwise, from Bud's act.

As to the intentional infliction of emotional or mental distress, there are also several problems. Proof of this tort requires that the act be one that is intentional or "reckless" and that it cause extreme distress. The fact that the act itself must be truly outrageous and the distress that follows highly predictable and severe make this a tort of limited availability. Most of you agreed that even though Bud was mistaken in his belief about the need to act as he did here, the act of breaking a lock to gain entry to a room, even if "reckless," was probably not sufficiently outrageous to justify liability for this tort. A further problem is that the outrageousness is measured according to the "person of ordinary sensibilities which Yvette, the facts tell us, was not. She was a person of "delicate sensibilities" and presumably much more easily upset that the ordinary person. Clearly, her reaction was unusual. Unlike other torts, where the defendant must "take the plaintiff as [he] finds [her]," this tort requires, in a sense, the ordinary plaintiff with an average sort of emotional response to things. For all these reasons, the best conclusion here is that Yvette has no good claim for intentional infliction of emotional distress. You should not have discussed this tort in connection to any other potential plaintiff here, as there was no evidence in the facts of extreme distress as to anyone but Yvette.

As to his being there at all, Bud would of course raise the privilege of defense of another, with discussion similar to that in question (1). Several of you discussed the privilege of "necessity" to justify Bud's entry of the apartment. This was ok too, especially as to Genevieve's suit against Bud (later), but the emphasis here should have been on his belief that there was an emergency and his neighbor was being physically attacked and needed his immediate action.

(3) Alfred's case is much like Yvette's in that it hinges on Bud's intent. Alfred would want to sue Bud for battery, of course, but the problem is whether Bud intended to strike him at all. Bud certainly didn't expect anyone to be opening the door on the other side, or he would not have felt it necessary to ram it to get it open. Whether he knew with substantial certainty that he would cause a harmful or offensive contact with someone on the other side when he tried to break the lock is the chief hurdle here. Clearly, he did not intend even the act of flying into the room, much less running over Alfred as he did so. He was propelled into the room when he met no resistance at the door; intent to batter or assault Alfred were arguably not present here at all. A number of you argued that Bud's intent to trespass on land, that is, to enter the apt without permission "transferred" to the intent to batter or assault Alfred or Yvette. This extension is very unlikely. A court is most likely not going to say that the intent to commit a largely technical and dignitary tort - going onto someone's land without permission -would transfer to the intent to commit a personal tort like assault or battery. It was an interesting argument, however.

(4) Woody's claim would arise out of his being chased and tackled by Wilford, after Woody stole the figurine from the apartment during the mélée. While we did not spend much time on trespass to chattels or conversion (both being torts that our editor leaves to property law, apparently), it was obvious that Woody was not entitled either to trespass in the apartment or to take something from it that belonged to Genevieve. (This was the place to mention that Woody, though underage, is still liable for his intentional torts.) I was not concerned with discussion about the tort-liability specifics of Woody's theft of the figurine, but rather with your recognition that Wilford was attempting to "recapture a chattel" in "hot pursuit" on Genevieve's behalf.

If the act was unprivileged, of course, Wilford would face liability for assault and for battery of Woody (for the apprehension of contact and the actual harmful contact that followed). If Wilford was privileged to try to recapture the stolen figurine, however, which I think he was, then the question was whether he used excessive force in that effort. Most of you saw this as the central issue in this question, and you reached the correct conclusion that if the force was excessive, then recapture, even in hot pursuit, was not privileged. I think the right result here was that while Wilford was privileged to act quickly on Genevieve's behalf in these circumstances, recapture of chattels is limited to essentially peaceable recoveries made in fresh pursuit of the purloined goods. Nothing justified Wilford's hitting Woody or throwing him roughly to the ground, as Wilford apparently did. Excessive force is of course not privileged, and Wilford will likely be liable to Woody for the injuries.

(5) Genevieve's cause of action for intentional torts would be against Bud for trespass to land and the harms that caused - particularly the broken Wagner bust. The peculiar causation problems from all the consequences of Bud's entry to the apartment were beyond the scope of the issues we studied this semester, so I was primarily concerned with trespass to land and Bud's claim of privilege. He would of course argue privilege to defend her from what he believed was the attack on her by someone unknown to him inside the apartment. Some of you argued necessity, which is ok, but doesn't trigger the necessary discussion of what the limits are to self/other defense - ie that the force used must be proportionate, that deadly force is limited to certain situations, etc. In any case, it was not a "public" necessity, as a few of you said. If you had not already done so with one of the other questions you should have discussed the various limits to self/other defense here. Like Winthrop in the first question, Bud was mistaken about his need to act as he did, but if his understanding of the situation was reasonable, the entry will be privileged.

As to the damage to the bust of Wagner, the same intent issue arises as in Yvette's question. Arguably, Bud didn't even intend the physical act of careening into the room, knocking over the bust, as he did so. His purpose was to break the lock by hitting the door with his body, not to fly through a suddenly opened door.

(6) The last question raised only the issue of negligence on the part of Raymond, for maintaining this dangerous-when-wet tile in the foyer of the apartment building, apparently only because it looked so good. Although we have not yet studied all the elements of negligence, you were familiar with the standard of the reasonable person, and some of the factors that go into the reasonable person's assessment of risk in a given situation, eg. The likelihood of harm, the gravity of harm and the burden of taking precautions of some sort.

Here I was looking for a discussion of what might be required of Raymond to meet the standard of the reasonable person. Most of you made a decent pass at this issue, but could have discussed it more thoughtfully. For instance few people mentioned that the reasonable landlord would not place the appearance of the tile above the safety of the tenants and their guests. Although the cost of similarly beautiful but safer tile was perhaps prohibitive, replacement of the tile was not the only option available. Raymond could have taken other precautions to make the entryway safer - eg the placement of rubber-backed mats. Some of you did suggest other ways Raymond could behave as a reasonably prudent landlord besides posting a sign, which may not have been enough.

A few people argued that Raymond could face liability for some intentional tort like battery here. There is nothing in the facts to warrant that conclusion.