Torts - Exams
Professor Ralph Brill

TORTS 1997


I hope I don't sound like that crotchety old third grade teacher you had, harping on mistakes you made. I spent a good deal of time this semester trying to prepare you for taking exams. I gave a couple of practice exams, passed out old ones and analyses sheets and suggested you practice on them, talked for about an hour on how to take exams, etc. I stressed to you how subjective grading essay exams is for most teachers and how important it was for you to follow instructions, answer only the questions asked and no others, organize answers, try to spell legal words and phrases correctly, etc., etc. A lot of you didn't pay any attention to those attempts. Thus, Cardozo was still spelled as Cardoza or Cordozo, and superseding was still spelled with a c, and defendant was spelled defendent, and assault as assult, etc. You already know about not designating on the covers whether you were day or evening students, but an equal number didn't begin the answers on separate pages, some wrote on both sides of the pages, some wrote in pencil. At least ten took one or more extra blue books. At least ten included answers about defendants who weren't being sued, or plaintiffs who didn't bring suits (those portions of the answers took up valuable time, but weren't read). I looked in the "scratch" books to see if people were outlining their answers; a very few made anything more than perfunctory outlines. I had tried to explain to you that these kinds of errors have at least a subjective effect on the reader and can so easily be avoided. I hope in the future you will carefully read and follow all instructions on your exams.

Method of grading: I simply threw them down a, I read them all carefully. Each question had multiple issues. I allocated 50 points per question (total 150 possible, therefore), and then allocated anywhere from 4-10 points for issues which could reasonably have been discussed. I didn't anticipate that anyone would receive anything close to 50 points on any question; that is, I anticipated that all of you would miss certain issues or not fully discuss certain issues-a few actually came close on one or two questions. Nearly everyone missed two possible issues I had anticipated would be discussed on question two - possible strict liability for abnormally dangerous activity, so in effect that question became worth only 40 points for all but two or three students, but that had no effect on final outcomes, except for those three, since so many didn't discuss it. The exact number of points given for any one issue depended on how well it was discussed and applied to the facts, or how accurately the rules involved were described.

QUESTION ONE: 10 points was allocated for a discussion of Rich Sayre's possible Assault and Battery actions against Bell. Assault was fairly clear, with the only major issue whether Bell's motive to play a trick or prank negated any intent. It didn't. He was four feet away and acted for the purpose of creating a belief in Sayre that he was about to be struck. Even though he "intended" in lay terms to stop it short and not strike Bell, he "intended" in legal terms to create an awareness or belief in an imminent battery....he acted for that purpose. He did not intend, in legal terms, to commit a battery on Sayre. He didn't act for the purpose of striking him, nor did he know to a substantial certainty that he would strike him. Intent cannot be shown, as some said, by the intent to swing a golf club! However, there were two alternative ways he could be liable for striking Sayre. One would be to find that the injury was suffered as a proximate result of the Assault....remember how broad proximate cause is for intentional torts, creating liability for all direct results of an intentional tort. Very few analyzed it that way. The more prevalent (and correct) analysis was to discuss transferred intent......with the intent to commit an assault being transferred to the completed battery.

Alternatively, Bell could be liable to Sayre for negligence. He surely could foresee that swinging a club towards Sayre's head could result in Sayre being struck with it, as, for example, by it slipping or Sayre moving his head into its path. Under the Hand formula, resulting injuries could be serious, and there was no social utility nor physical or financial burden in not performing the dangerous prank, A reasonable prudent person surely would not have done so. So, Bell breached a duty to a foreseeable victim, Sayre. The main issue here would be proximate cause. Did Bell have to foresee the club head falling off? Of course not. While he could not foresee the manner in which the event happened, the kind of injury.....being hit with the golf club's head....was foreseeable, so even under foreseeable consequences test of legal cause, there would be liability. So, the main thing I was looking for was the foreseeable consequence/unforeseeable manner analysis. This issue too was worth ten points.

Sayre also committed an Assault and a Battery on Bell. As to the Assault, the main thing looked for was what constituted the overt act. Many said it was the chasing, but didn't mention the actual swinging of the golf club, which, at least if it was seen by Bell, created the belief of an imminent battery. The battery then took place when he struck Bell with the club. The main issue then was whether Sayre was protected by self-defense. He was not, of course, since that is only available for defense and not retaliation. Here, the danger, if any, from Bell was over, and Sayre now became the aggressor. Technically, this would not be "excessive force" as many said; Sayre wouldn't be entitled to use any force at that time, since he was no longer defending himself, but attacking or retaliating. This was worth another ten points.

Then there was a possible product liability claim against Calloway (and perhaps an unnamed retailer). Here, some students discussed negligence....but the facts showed that the crack was microscopic and could not have been discovered by a reasonable inspection. No facts were given about anything wrong done during the manufacturing process. So there wasn't much basis for negligence, unless one used Res Ipsa Loquitur (note the spelling). Others only discussed warranty. This is a viable remedy, but I said in class it was mainly a contract remedy, so I wondered why these students discussed it and not a tort remedy on a Torts final? The main thing I was looking for was just a plain old recital of 402A of the Restatement, strict liability in tort, which creates liability if the product is defective and unreasonably dangerous. Here, there was a manufacturing defect. Strict liability is not based on fault; just on the presence of a defect which causes injury. Another ten.

Finally, ten points were reserved for other less possible theories or relevant rules, such as joint and several liability of Calloway and Bell, possible but improbable negligence by the Marovitz golf club and park district (much too great a burden to prevent) and whether it would be able to raise governmental immunity, plus some points awarded for especially good discussions of the other issues....the remaining ten points.

Question One was by far the easiest of the three questions.


This question was the result of my watching too many Sci-Fi, Discovery, and Learning Channel programs about UFO's.

The one issue I thought most people would start with would be a possible strict liability for abnormally dangerous activities claim. After all, experimental aircraft are one of the illustrations given in the book-see notes E (rockets) and 3 (early airplanes) on page 684. There then would have been an issue of whether the aircraft were the proximate cause of plaintiff's injuries.

Hall was a trespasser on area 51 land. Under those circumstances, the ordinary rules on duty do not apply; the limited duty of landowners or occupiers to various categories of people on the land then would arise: What are the duties owed to trespassers? Review pages 469-70. Most people knew it was less than the duty to an invitee, but didn't really discuss what it is. It was at common law not to wilfully or wantonly (recklessly) injure a trespasser, and to warn a discovered trespasser of a hidden danger. Many courts have now said there is a duty once discovered, or to foreseeable trespassers, or to tolerated intruders, to use ordinary care not to injure a trespasser by activities, and to warn of dangerous hidden conditions. I passed out the brief written in the Lee v. CTA case, which argued that the third rail was an activity, and not a passive condition, and the decision which found that for a foreseeable trespasser there was a duty to warn of a dangerous condition. But, in addition, Hall was a child trespasser. Here, most who saw that discussed the ancient attractive nuisance doctrine. But that doctrine has been replaced by some version of the Restatement view. The common law attractive nuisance doctrine would have required that Hall be injured by the thing that attracted him onto the the aircraft. The modern rules require only that it be foreseeable that a child will trespass on the land, and that there is then some condition that would be dangerous to children who would not appreciate the danger by reason of their immaturity, and the burden of making it safer would be slight or at least outweighed by the danger. See 482-85. 5 points were allocated for a discussion of the general duties owed to trespassers, and 5 for duties to child trespassers.

Burgess then drove at 75 miles an hour and struck Hall. Was that wiful and wanton (reckless)? What is the definition of that? (5 points for reckless). Was his driving a cause in fact of Hall's injury, since Hall jumped in front of the moving car? Would driving slower have prevented that? (5 points). Was the warning issued by the signs adequate? Would a child of 11 understand, even if he read it, what was meant by Restricted area...subject to the jurisdiction of the military law....subject to lethal force.....use of deadly force...."etc.???? Would a fence or other warning system have been too burdensome? (5 points). Was the government liable for Burgess' acts? And was he himself? (5) Government immunity? Here, nearly everyone said the government was immune, but few even mentioned the Federal Tort Claims Act, which waives immunity for negligence, except for discretionary acts....arguably national security would fall in that. (5 points). Finally, another five points was available for other reasonable discussions or rules.

The most common errors on this question were analyzing liability solely on the basis of the usual rules on duty, or Cardozo's and Andrews' views, and not on the limited duty to trespasser rules, or making mistakes on the duties owed to trespassers, discussing only the attractive nuisance exception, failure to discuss cause in fact with whatever was claimed to be the liability creating act (sometimes students said there was a duty to do one thing, but then discussed proximate cause from some other act?). Also, the negligence, if any, by Hall's parents would not be attributed to him, and in any case negligence by others is not, as many stated, "contributory negligence"--it might make them joint or other tortfeasors, but contributory negligence refers to negligence by the plaintiff.


First, as to Cash's liability: He was 15 years old. That should have told you to discuss the child standard of care, dependent on his age, intelligence, experience, maturity and training. Did he owe any duty to Porelli? Under Cardozo's view, he would have to foresee some harm to Porelli? Could he? He knew he had knocked down a sign announcing the presence of the fire chief and the need to keep the driveway clear, but he also informed the chief, who then undertook to repair it, but delayed doing so for several days. So even if negligent in knocking over the sign, didn't he satisfy any further duty in alerting the owner? Or was he the proximate cause of the subsequent events? Incidentally, Andrews' view of duty is not, as many said, a duty to anyone first requires that there be some injury foreseeable to someone, in which case it becomes a duty to everyone. For discussion of the children's standard and proximate cause from Cash's negligence, if any, there were 14 points allocated.

Then, for Dobbs, there were alleged violations of an ordinance and statute. Was the ordinance one that the court would adopt as a possible standard of care? Was it for safety? Was the state statute? What was the procedural effect of violation? Too many merely discussed negligence per se...this was an Illinois situation, so it would only be evidence of negligence. Was the state statute violated, since there was no sign announcing the driveway was the driveway of the fire chief and needed to be kept clear? (7 points each for violation of the ordinance and violation of the statute and the uses, if any, of each). Without the statute (if not violated, or if it is only evidence of negligence and not negligence per se), was Dobbs negligent in parking in front of the driveway? What could be foreseen happening and to whom? (If didn't know it was fire chief, how could he foresee any injury to Porelli?) Cardozo and Andrews again, plus Proximate cause analysis would then be required. (7 points for duty issues, 7 for other negligence issues).

Nearly everyone missed a possible statute of limitations issue. The injury occurred on July 4, 1996. The exam was on December 11, 1997, more than one year later. (4 points). And 4 points were for Respondeat Superior....Luxury's liability for Dobbs' acts, and any other relevant discussion....perhaps Joint and several liability, but not for contributory negligence or assumption of risk by Porelli, since no facts were given about what he did or didn't do in fighting the fire.