I. (40%)

(70 minutes)

Dan Davis was ten years old, and large for his age. He was the neighborhood bully. One of his targets for harassment was Paul Presley. Paul was nine years old. Dan was three inches taller than Paul and outweighed him by thirty pounds.

On school days Dan would get off at Paul=s bus stop, even though Dan=s stop was a block away. He would follow Paul home, calling him names and threatening him. Paul began complaining about going to school, and asked his parents if they would give him a ride home from school so he didn=t have to take the bus. He started losing sleep at night, and became somewhat withdrawn.

His mother decided to stay home from work one day to meet the bus. She saw Paul get off the bus, and Dan following him. Dan started taunting Paul, and rushing at him. Paul=s mother, Helen, ran up to the boys and told Dan to stop harassing her son. Dan turned to go home, but Helen blocked his path, shaking her finger at him, saying, ADon=t you ever bother my son again. If you do, I=ll spank yo so hard you won=t be able to sit down for a month.@ Dan made an obscene gesture at her and ran away. Helen chased him, but Dan was easily able to outdistance her and get into his house before she could catch him.

Paul and Helen went home. Helen told Paul that if Dan bothered him again he should defend himself. Thinking that Dan would not bother him again, Paul went out to play. Paul was in his front yard when he saw Dan running at him yelling, AI=ll get you, you jerk.@ Dan was too close for Paul to get inside the house. Remembering his mother=s words, he picked up a rock and threw it at Dan. The rock just missed Dan=s head as he ducked, and broke a window in the house of Paul=s neighbor, Mr. Rogers. Paul went inside and Dan retreated again.

A few minutes later the doorbell rang. Helen answered the door, opening the screen door a crack. Dan=s father, Darth, was at the door. He asked her if she had threatened his son. Helen told him that Dan had been harassing Paul, but Darth didn=t believe her. He snatched the door out of her hand, jerking it open. He walked into the house and started yelling at her for abusing his son. Helen told him to get out of the house, but he just kept on yelling at her. Helen ran to the kitchen, picked up one of Paul=s toy guns designed to look like a .38 caliber pistol and came back into the hallway. Darth was still standing in the hallway. Helen pointed the gun toward the ceiling so Darth could see it and said, AIf you don=t get out of here now I=ll shoot.@ Darth turned and ran out the door immediately.

Based on the above facts, analyze the causes of action that the parties might have against each other. Include in your analysis any defenses that you feel are applicable. Take specific positions on the causes of action and defenses you raise.

II. (30%)

(55 minutes)

Able was a passenger on a Nationwide Airlines flight going from California to Minnesota. As the airplane, a Boeing 727, was in western Minnesota, flying at an altitude of 39,000 feet, it suddenly rolled over and plunged downward. The tailspin continued for the next 40 seconds at speeds just below the speed of sound, causing the airplane to shake violently. At 5,000 feet, about 5 seconds before the airplane would have hit the ground, the pilot regained control of the airplane. The force exerted on the passengers, crew, and airplane was 6 Gs. The force wrinkled the fuselage skin of the airplane and bent its wings.

An examination of the airplane after the incident did not reveal the reason for the sudden drop. After litigation had been instituted, an aeronautical engineer retained by the plaintiffs examined the airplane but was unable to determine the reason for the drop. An experienced pilot of similar aircrafts was able to state that in his opinion the drop was due to pilot error in permitting the airplane to rollover in the first place.

Able, one of the plaintiffs, was one of fifty passengers on the airplane. Able was injured when she was thrown out of her seat when the airplane dropped. The ASeat Belt@ sign was on, and the pilot had warned the passengers of the possibility that mild turbulence would be encountered. Able disregarded the sign and the warning. As a result of the drop, Able sustained serious physical injuries.

Baker, a second plaintiff, buckled his seat belt. He did not sustain physical injuries as a result of the drop. However, the fear and emotional impact of the 40 second drop to what Baker thought was certain death caused him various psychological problems. Baker=s business required him to take about twenty business trips a year. Following the incident, Baker was extremely afraid of flying, He would become physically upset following any flights he had to take, and had to take a day off work following each flight in order to calm his nerves.

Nationwide had a clause in bold-face type in its tickets stating that passengers assumed any risk of injury from flights, including risks of injury caused by the negligence of Nationwide.

Able and Baker are the plaintiffs in this negligence action against Nationwide Airlines. Should they be entitled to recover? In answering you should consider all issues raised by the facts, including any defenses that Nationwide might raise. Be sure to take a specific position on the issues you raise.

III. (30%)

(55 minutes)

Dannon was the new owner of an old farm. Dannon bought the farm, knowing that she would have to restore the house. One of the first things she did was to remodel the kitchen of the house. She took out the appliances, including an old latch-type refrigerator with a door that fastened automatically when closed. Because she lived in the country, Dannon did not anticipate that there would be any problems with kids playing around the refrigerator. She placed the refrigerator outside, next to her garage, with the door facing out. The garage was located several hundred feet from the road abutting her farm. Neither the garage nor the refrigerator were visible from the road.

One day during the summer, shortly after Dannon had moved in, two seven year-old kids, from neighboring farms were riding their bikes down the country road past Dannon=s place. The boys frequently played on the farm. On this day they still thought that the farm had not been purchased when they initially went up the driveway. Wen they saw evidence of ownership they decided to stay and play, anyway. The boys decided to play hide-and-seek. Paul hid and John was supposed to find him. John saw that Paul was hiding in the refrigeration, with door open just a crack. John decided to play a joke, on Paul, so he slammed the door shut, latching it. Paul panicked, and started pushing on the door with his hands and feet. His oxygen supply was being rapidly depleted when the latch, which was loose, popped open. Paul was able to get out, but he fractured his right arm in the process.

Paul managed to get home. His parents immediately took him to Dr. Doolittle, the local family practitioner, who set the fracture and put a cast on his arm. A few days later Paul began complaining of pain in his right arm. His parents told him that the pain was due to the fracture, and that it would be all right. They gave him aspirin to dull the pain, but the problem persisted. They took Paul back to Dr. Doolittle, who examined Paul=s arm and determined that the cast had been put on too tightly, cutting down on the blood supply to Paul=s arm. He removed the cast, and found that some of the tissued in the arm was dead. This necessitated hospitalization and further surgery on Paul=s arm to correct the problems. After several months the fracture finally healed and Paul=s arm returned to normal.

Based on the above facts, what claims might Paul assert against Dannon, John and Dr. Doolittle? In analyzing the question be sure to raise any applicable defenses. Be sure to take a specific position on the issues you raise.