Advanced Torts - Spring 2007
Professor Ralph Brill
Exams

 

ADVANCED TORTS

SPRING TERM 2005

THREE HOUR EXAM - CLOSED BOOK

PROF. BRILL

INSTRUCTIONS

This is intended to be a short answer exam. Please confine your answer to the page or word limits specified for each question, or parts thereof. There are five (5) questions, on 5 pages. All questions are equally weighted, 40 points each.

WARNING: I would remind you that the exam is being given at 1:15p.m. and also at 6 p.m. It will be a serious violation of school rules if anyone taking the earlier exam discusses the exam or its content with anyone taking it at 6 p.m. Do not risk your future careers by committing a violation of this warning.

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1. (Page limit: no more than four written pages == approximately 7200 characters in type)

Each week, the Sunday Chicago Tribune publishes lists of the Chicago-area’s top 10 best selling hard cover and paperback books, fiction and non-fiction. The data for measuring weekly book sales is supplied to the paper every Friday by The Chicago Association of Book Sellers. Inclusion on the list has a major impact on book sales. Many booksellers give large discounts to customers for books listed, thereby stimulating increased sales of such books. Inclusion on the list also creates an increased demand for the book as readers try to keep up with what everyone else is reading. At any one time, there are over 1,000 new non-fiction paperback books eligible for consideration for the best seller list.

For several months in 2005, Riccardo Kling’s book, “Famous Cases I Have Lost,” has been left off the non-fiction paperback list by the Tribune, even though it has been continually listed as a best seller by the Chicago Association of Book Sellers. Kling is a well-known lawyer in Chicago, famous for undertaking highly controversial cases. While Kling repeatedly has notified the Tribune of its omissions, the Tribune has refused to make any corrections or add Kling’s book to subsequent lists. Kling believes the Tribune’s actions are done as retribution because he has filed several suits against the Tribune and its reporters over the years.

A. Kling sues the Tribune for defamation. What will he have to prove to state a cause of action? What will be the major issue(s) he will face?

B. What will be the major argument)s) by defendant newspaper? And what result would you expect?

C. Are there any other causes of action reasonably possible to Kling? Explain.

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2. (maximum of four written pages; for computer exams, 1800 characters = one page, thus a maximum of 7200 characters for the question)

Berasoni (P) is a professional animal trainer, and has a vaudeville act, “The Great Berasoni and His Pals.” The “pals” are 5 Orangutans. In June, 2005, P was hired to perform his act at the Stardust Hotel in Las Vegas. A condition in his contract required the Stardust to provide, for fifteen minutes before P went on stage, an area backstage near the entrance to the stage for P to prepare the animals. Since the Stardust did not have any office or other enclosed room near enough to the stage for this purpose, P agreed to use an otherwise open area just off the stage, partially shielded by a drape. The drape is kept open half-way. The Stardust agreed that no one would enter this area, or disturb P, while he was warming up the animals. However, P and the Orangutans are in fact viewable to anyone backstage who wants to look in.

Within a few weeks of P’s opening, stage hands and other performers occasionally heard slapping noises, and cries from the Orangutans, as well as P shouting at them. Tim, one of the dancers in the chorus, is a member of PETA (People For The Ethical Treatment of Animals). He has heard P apparently slapping some of the animals and their cries of apparent pain. One evening, he brought a video camera and, through the partially open curtain, taped P’s activity in “getting the animals ready.” His purpose was to show the tape to PETA officers, who likely would then demand P stop mistreating the animals, or demand the Stardust to terminate his contract if he continued to do so. P saw Tim taping, and angrily ordered Tim to give him the tape. Tim refused.

A. If P sues Tim for invasion of privacy – intrusion – for an injunction, or, alternatively, for damages. What result and why?

B. If P sues Tim for invasion of privacy – appropriation – what result and why?

C. If P sues Tim for invasion of privacy – disclosure – what result and why?

D. If P were fired by the Stardust because of Tim’s complaint, could P successfully sue Tim for interference with contract?
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3. (two written pages; approximately 3600 characters)

D initiates prosecution against P for a serious crime, but based on erroneous information. D sincerely believed the information was correct. P is indicted and held without bond. Weeks later, D discovers the truth, that P had nothing to do with the crime charged, and that the information on which he based the complaint was incorrect. But D does not inform the prosecuting attorney of the new information. When, shortly before P’s trial 3 months after indictment, the prosecutor calls D to make sure he will testify, D reluctantly says he will do so. At the trial, on cross-examination of D by P’s attorney, the above facts are revealed, and the case is voluntarily dismissed, with prejudice, by the prosecutor. Does P have an action against D for malicious prosecution? For abuse of process?

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4. (Total: 100 words per question).

Brownie was the sole proprietor of a gallery in North River, State of Kent. In early March, 2005, he hired an accountant, Howard S. Chapstick, C.P.A., to prepare a draft of his annual tax return for 2004. He supplied Chapstick with all of his records for the year in question. Chapstick prepared drafts of the appropriate forms for filing with the IRS and the State of Kent. On these, he listed Brownie’s net profit from the gallery as $144,000.

When he received the drafts, Brownie recognized that Chapstick had made a mistake, and had neglected to include in Accounts Payable over $100,000 due to several artists, whose paintings Brownie had sold during 2004. Actual profit, therefore, should have been about $40,000. Brownie intended to notify Chapstick and have him redo the taxes, when Andrews approached him with an inquiry about purchasing the gallery. Andrews offered $200,000 for the business, including assets and good will. Brownie rejected the offer. Brownie told Andrews that his accountant, Chapstick, had indicated on the tax forms he had prepared that the gallery made a $144,000 profit for the year. Andrews asked to see the tax forms Chapstick had prepared. Brownie showed Andrews the drafts of the income tax forms Chapstick had prepared. Brownie then made a counter-offer to Andrews for $600,000. Andrews agreed to pay the $600,00, and the deal was closed within a week. While Brownie remained responsible under the contract for paying existing debts and taxes, when Andrews later discovered Brownie’s true profits for 2004 he realized that the business was really only worth about $200,000. He therefore sued Brownie for fraud/deceit. In a separate count, he sued Chapstick for negligent misrepresentation.

True or false: (give a one paragraph, one hundred words or less, explanation for your answer to each question):

A. Brownie would not be liable for fraud/deceit because his statement was literally true.

B. Brownie would not be liable because he had no duty to disclose his own belief that the tax form Chapstick had prepared was erroneous.

C. Andrews had a duty to investigate further before relying on the tax form, under the doctrine of caveat emptor.

D. Chapstick could be held liable to Andrews for negligent misrepresentation because he could foresee that Brownie might sell the business and could foresee the use of the tax forms as an indication of the business’ worth.

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5. (four written pages, or 5400 characters).

Joan was a nun, a member of the Sisters of Mercy. She had taken a perpetual vow of poverty upon entering the Order. She lived in the Order’s convent. The convent supplied all food and shelter for her. She did not receive any salary or other monetary payments for her services. These included visits to the sick at hospitals and in their homes, disaster aid, assisting local priests with events at their churches, etc. While she was walking near a park, Joan was injured by a car recklessly driven by Stang. She died of her injuries 30 days later. Joan was survived by a sister, Margaret, her sole natural heir. Margaret, as administratrix of her “estate”, filed suit against Stang under the wrongful death and survival statutes. She sought compensatory damages of $100,000 for herself, $100,000 compensatory damages for the Sisters of Mercy, and $300,000 punitive damages for herself.

A. What damages, if any, will Margaret, as next-of-kin, likely receive from Stang for wrongfully causing Joan’s death? (The actual dollar amount is not important – describe the kinds of damage awardable, if any.)

B. Can the jury grant punitive damages to Margaret under the wrongful death act? Under the survival statute?

C. What damages, if any, will the Sisters of Mercy receive from
Stang for wrongfully causing Joan’s death? Under the survival statute?

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