TORTS

SECTION FOUR

FALL 1999
FINAL EXAM



INSTRUCTIONS

1. This is an open-book exam. You may use any materials you wish.

2. The exam will last two hours. It consists of two questions. Answer both.

3. Please write in pen, and please write on only one side of each page of the bluebook.

4. Put your exam number on each bluebook. Do not put your name on the exam or on the bluebooks.

5. When you finish, turn in your bluebooks and the exam itself.

 

CASE FILE

Minge Ostrich Ranch v. The Balloon Experience: The Saga Continue

Unfortunately, the problems we talked about in class between these two neighboring businesses have grown worse. Paul Minge, owner and operator of the ostrich ranch, demanded that David Forson, owner of The Balloon Experience, stop flying near the ranch. Forson told him, "Just you wait, Minge, you and your birds are going to get it."


That night, Paul Minge decided to keep watch over the ostriches. Minge loaded a pistol and hid near the side of a small storage shed just outside the ostrich pen. Sure enough, shortly after midnight, he saw a hot-air balloon launched from The Balloon Experience. The balloon began to drift closer to the ostrich ranch. As it floated over the ranch, the one person in the balloon began to throw rocks at the sleeping ostriches. Minge jumped up, grabbed a rock, and threw it at the person in the balloon. Minge later admitted that he hoped he would hit whoever it was who was throwing rocks at his ostriches. The balloon was far enough away, however, that he didn't think that the rock he threw would hurt whoever was in the balloon.

As it turned out, the rock that Minge threw didn't hit Forson, the person in the balloon. Instead, the rock hit the balloon burner, jamming the gas valve and causing the flame to go out. The balloon immediately began to float toward the ground, and eventually fell to the ground on Minge's ranch, landing on and damaging the storage shed just outside the ostrich pen.

Once the balloon hit the ground, Minge ran over to the balloon, worried that Forson might be badly injured. Forson saw Minge running toward him, carrying what appeared to be a pistol. Afraid that Minge was going to shoot him, Forson began pelting Minge with rocks. He hit Minge twice, badly bruising Minge's arms and legs. Minge yelled at him several times to stop, but Forson kept throwing the rocks. Minge fired what he claimed was a warning shot; Forson later told police that he "heard a bullet whiz past his head." In any event, Forson kept throwing rocks and Minge fired a second shot, which hit Forson in the leg.

Forson passed out from the pain, and Minge dragged his body over to the ostrich pen and locked Forson into the pen. Minge then went into his house and called the police and an ambulance. The ambulance arrived and Minge opened the gate to the ostrich pen to let in the ambulance attendants just as Forson was regaining consciousness. Forson was treated for the gunshot wound at the hospital and released the next morning. Minge telephoned Forson that day and demanded that he come and retrieve the wreckage of the hot air balloon. Forson refused.

Question 1: (Two-thirds) What claims for intentional torts do Minge and Forson have? What defenses could they assert? What is the likelihood of success for these claims and defenses? Please do not write about possible negligence claims or criminal charges.

Question 2: (One-third) The state legislature recently passed a law requiring that all hot air balloons used to transport passengers be equipped with dual or triple burners. The legislature required multiple burners because of a concern that single burners might fail resulting in ballooning accidents. In violation of the statute, Forson's balloon, which was used to transport passengers in his business, was equipped with a single burner. Minge claims that the violation of this statute is negligence per se. Assume that you are sitting as an appellate judge in a jurisdiction that has no governing caselaw about whether statutory violations constitute negligence per se. What rule should apply to statutory violations in negligence actions? How should the trial court treat this violation of the statute in Minge's action against Forson? What is the basis for your decision?