TORTS

FALL 1999

SECTION FOUR--KNAPP
FINAL EXAM: ANSWER KEY

There were several good ways to organize this answer. One was to look at each event as it took place; another was to examine each party's different causes of action; a third, to analyze each tort.

Trespass to Land

1. The balloon broke the close of the ranch when it first flew over. Since the balloon was low enough to be hit with a rock, so it is unlikely that Forson can claim he was just using open airspace. Another issue here is intent to enter. Forson's threat is evidence of that intent.

2. Forson's landing is also a trespass to land. Here, the issue that merits further discussion is the defense of necessity.

3. Forson's refusal to remove the wrecked balloon also may constitute trespass.

Trespass to Chattels

1. Forson threw rocks at the ostriches and this may constitute a trespass to chattels, depending on the damage done. Forson's crash into the shed may also be a trespass chattels, or perhaps, a conversion (though a shed might be thought of to be an appurtenance to real property rather than personal property).

2. Minge's rock-tossing resulted in a trespass to the balloon. While he had no intent to damage the balloon, he did intend to strike Forson, so intent may transfer. Another possible issue is defense of property and whether Minge's response was reasonable.

Batteries and Assaults

2. Forson's ostrich-pelting is also not an assault.

3. When Minge threw the rock at Forson's balloon, he intended to commit a battery (he hoped it would hit whoever was in the balloon). This intent, of course, transfers, but whether an assault occurred depends on whether Forson apprehended what had happened.

4. A credible argument can be made that Minge committed battery when the rock hit and disabled the balloon in which Forson was riding (since it was closely connected with Forson). Whether Minge may claim defense of property depends on whether his response was reasonable.

When Minge rushes toward Forson, pistol in hand, he did not intend to cause apprehension, though he did actually frighten Forson. Forson commits an assault and a battery when he hits Minge with the rocks. He may be successful with an argument of self-defense, since he could reasonably have believed that Minge was trying to shoot him.

Minge commits an assault and then a battery when he opens fire. His argument of self-defense (or defense of property) is less likely to be successful, because firing at Forson is probably an unreasonable use of deadly force.

False Imprisonment

Minge confines Forson, but Forson is apparently unaware that he has been locked in an ostrich pen. In addition, Minge may be able to assert some type of privilege akin to the shopkeeper's privilege.

QUESTION TWO:

There were several possible approaches to this question. One of the most common was to adopt Wright v. Brown as the new law of the jurisdiction and then analyze whether the statute was applicable using the "class of persons/type of harm" test. Here, the statute seems intended to prevent injury arising from balloon accidents, though it is unlikely that the legislature contemplated the specific harms Minge suffered. The statute also seems designed to protect balloon passengers, though it may be possible to argue that balloon accidents pose a real threat to those on the ground, as well. Why then is the statute limited to balloons used to transport passengers?

One of the most profitable areas of discussion was the rationale for adopting Wright. Possible issues included reasonable deference to the legislature and striking an appropriate balance between adjudicative and rule-based decision making. Reference to the Restatement list of excuses for violation (found in Impson) is appropriate, though there is little to say about those excuses in this case because they do not appear to be applicable. (Forson is confronted with an emergency, it is true, but it is of his own making and is not an excuse for his original violation--failing to install multiple burners.)