Torts Evening - Fall 2007
Professor Ralph Brill


TORTS FALL 1995-96

First, to remind everyone of the technique used for grading exams, after reading approximately ten answers to each question without grading, I make a grade sheet allocating a certain number of points for each of the issues the question raises. The number of points for each issue that is then awarded is dependent on how well the student analyzes and discusses the issue and relevant factors, including how complete and accurate is the student's discussion of the relevant law related to the issue, and how logical is the student's application of the principles of law to the facts...which involves as well whether the student perceives the importance of certain facts or reasonable inferences from the facts given. Since there are lots of possible issues on each question, the relative number of points for each is small, in most cases 5 or 6 points per issue, many times less. In addition, I have rather high standards for awarding the full amount of points per issue, so seldom do students get all of the points per issue unless their answer to that specific issue is very complete and truly superior. Since grades are on a mandatory curve and I maintain the same standard throughout the grading process, that should not work to anyone's disadvantage.

Another preliminary comment. A number of you have difficulties following directions. For example, the instructions emphasized writing on one side of a page only, and starting the answers to each question on a separate page. (These two were violated to a great extent). I also instructed (in fact put it in bold print, and underlined) to not take extra blue books, which did not get used; at least six students violated this instruction. These aren't empty instructions; they were given for an important purpose, based on my previous experience, and to avoid problems that might be harmful to you, such as losing an answer, or being subjectively influenced in grading one answer by how you had done on a previous answer.

In the same vein, while not formally in the instructions, I had spent some time in class talking about exam taking, and giving some do's and don'ts. Some of you either weren't at that class, or simply chose to ignore the suggestions. For example, I said "don't abbreviate, other than for P and D". But there were all kinds of strange abbreviations used, which I had to try to figure out, and which you risked my misunderstanding. I said not to use slogans, but to explain or define your terms....many simply talked of the "foreseeable plaintiff test" or said something was "negligence per se" but did not explain what those terms meant. I strongly urged you to write a detailed outline of each answer, rather than spending time writing and thinking about what you were going to write at the same time; I looked at the scratch books pretty carefully. Only a very small handful of students wrote anything approaching an extensive outline of their planned answer -- most scratch books contained no more than one or two pages of scribbles. I suggested that you allocate your time wisely, but to my shock, probably ten students ran out of time and didn't finish the last (or in some cases, all three) question(s). With four hours for three questions, this is hard to imagine.

Question I. (30 Points). The most important issues here were (1) did D commit an assault against P by shooting the pistol, intending to scare P?, (2) did D commit a battery by shooting the pistol intending to scare P, but indirectly causing the bullet to strike him? (3) was officer Tolan negligent in issuing a permit to D without waiting three days, as required by the statute (which in turn presented an issue of whether the portion of the statute requiring the three day waiting period and the sheriff to search the applicant's background established the standard of care for negligence, and whether the sheriff's violation was negligence per se, or evidence of negligence, or irrelevant); (4) if the violation was negligence (or there was other negligence by the sheriff), whether it was the cause in fact of the ensuing injury to P; (5) whether it was the proximate cause of P's injuries; (6) whether the sheriff (and his employer, the county, were immune from liability under governmental immunity. Less important issues (i.e., those I didn't foresee many students discussing in the time allotted, nor issues that deserved as much time or attention as the above) were whether D or P committed assaults and/or batteries in the shoving match, whether, if D's shooting the pistol at P's bottle was not a battery, it nevertheless was negligent to do so, and whether the owner of the bar could be found negligent in not throwing the two out after the initial fracas. As you can see, that's quite a bit to possibly cover.

As to assault, the most prevalent problem was for students to use the word scare or frighten as synonymous with create apprehension. The issue is whether by pointing or by pointing and shooting D created an awareness in P that he was about to be struck by a bullet, and whether D intended to create that awareness of an imminent battery. Shouting "boo" behind someone's back might scare them, but it isn't an assault. Here, the answer appears clear. At least if P saw the gun pointed at him, or heard the shot fired, he could reasonably believe he was about to be struck, and D acted for the purpose of creating that knowledge or awareness.

As to battery from being hit by the bullet, the major issue is whether D intended the battery. Some said the intent was there by firing the gun....NOT..... Merely doing a voluntary act (stepping on the gas, throwing a ball, etc.) doesn't make the act intentional. It is acting with a desire to accomplish the consequence or knowledge to a substantial certainty that it will occur (not just, as some said, that it created the possibility or likelihood that it might occur), that makes the act intentional. Here, D did not act for the purpose of striking P nor did he know to a substantial certainty that P would be struck. He acted for the purpose of striking the bottle. Now some argued that the bottle was an extension of P's persona; but the facts aren't given that he was holding it in his hand, or that it was otherwise that closely in contact or association with P's person, though if he were holding it, that would be a reasonable argument. At the least, this had to be worded conditionally...."if P were holding the bottle in his hand at the time, then...." If that were true, D acted for the purpose of causing contact to an extension of P's person. The easier answer was to use our old friend the doctrine of transferred intent. If, as was stated above, D acted with the purpose to cause an assault (note correct spelling, those who spelled it assult), then that intent would be transferred to the completion of the battery. You should explain the doctrine and the common law limitation to the five torts growing out of trespass. Another possibility would be to say the intent was transferred from the intent to commit a trespass to chattels (the bottle).

An alternate theory might have been negligence in shooting the gun so close to P, where it was foreseeable he might miss the bottle and strike P directly. But it couldn't be both battery and negligence.

One might spend a few lines talking about lack of any defense, such as self-defense, and lack of provocation from the words alone, though not much time on these points with all the remaining issues to go.

A major part of both (a) and (b) was the possible action of negligence against the sheriff (and thus the county, through the doctrine of respondeat superior, though one shouldn't have spent a great deal of time explaining that doctrine). Surprisingly, lots of people did not discuss a potential action for negligence against the sheriff in part (a). The analysis should have raised the possibility of the court adopting the statute as the standard of care for the sheriff, which in most states would be negligence per se, or, in other words, establish the duty to P and its breach. Some people got miscarried away with the overall purpose of the allow people to carry guns to defend themselves. You should have focused on the part of the statute dealing with the sheriff's duties under the statute to investigate before issuing permits for people to carry weapons. What was the purpose of that provision? Was it safety? To prevent what kind of harm? And to protect what class of persons from harm? Here, lots of students mistook the statements of some legislators as limiting whom the statute sought to protect.....while some may have raised the assassinations of some famous people as demonstrating the need for limiting who could carry guns, it surely wasn't limited to protecting famous people only from "misuse".

However, what was the statute trying to prevent? Not just the misuse of guns by anyone who had one. It was trying to deny the right to carry a weapon to those whom the legislature thought might be dangerous....criminals, mentally ill, children, and foreigners (about whom there was little likelihood of learning things about their dangers). It wasn't designed to prevent issuance of permits to people like D, and D would have obtained the permit a few days later. So the probable answer is that the statute would not be applicable in (a) because it was not designed to protect P or others like P from the danger of firearms misuse by someone who was entitled to obtain a permit. On the other hand, in the (b) portion, D was the very kind of person the statute sought to prevent from obtaining a permit....the danger to be guarded against by the requirement of doing a background check during a three day period. The likely answer is that the statute could be used in (b) to establish the standard of care and the breach of the duty.

Assuming the statute were usable to establish duty and breach, it would still have to be shown that the sheriff's failure to check was the cause in fact of the ensuing injury to P. To be sure, if he had to wait three days for the permit, D might not have been carrying the gun two days later....a seeming but for analysis. But that must be established as more likely true than not, and it could be argued that D might have carried the gun anyhow, especially in the (b) part, in view of his prior record.

Then, one must find that the violation of the standard was the proximate or legal cause of the injury. As you know, there are two views on the proper test. But under either, one must contend with the normal rule that the intervening criminal act of a third person normally constitutes a superseding cause, and relieves the original negligent defendant of responsibility. Here, D's use of the gun certainly was criminal in nature. However, one of the exceptions to this view is if the criminal act is foreseeable, especially if the foreseeability of it occurring is what makes the D's act negligent in the first place by not preventing it or lessening the possibility of it occurring, the criminal act does not supersede. Here, if the sheriff is negligent at all it is for failing to prevent D from getting a permit and thus being able to freely carry a gun, which he was likely to misuse in a criminal manner, at least in the (b) part; in (a), even if the sheriff could be found negligent, was it foreseeable that D would misuse the weapon by getting an early permit????

A potential defense of sovereign immunity might prevent liability of the county and sheriff. Many students, however, did not review the history of this doctrine, which, as applied to municipalities, has been on the wane since the 1970's, with many states throwing the doctrine out, not just for proprietary functions, but all activity. To be sure, the legislatures have lately been restoring some aspects of immunity or partial immunity, but the common law would seem not to grant it anymore in most states.

Only if one had plenty of time left at this stage would it be advisable to discuss the other possible issues.... assault and battery in the shoving match, and negligence by the barowner in not preventing the shooting.

For the assault, battery, transferred intent, provocation, self-defense, etc. issues, one could receive a maximum of 9 points, (6 and 3 "other" - see end of paragraph for further explanation). For the violation of statute issues, the maximum was 6. For cause in fact and proximate cause, the maximum was 6 each. For sovereign immunity, it was 3. There is another category called "other", which allowed for points for the secondary issues of assault and battery, the negligence of the bar, etc.



The question asks you to advise the family about any potential causes of action. There is a potential negligence claim against Delbert's Playhouse and a potential negligence claim (medical malpractice) against Dr. Boone.

The first question the arises in a possible suit against Delbert's is the duty owed to Paul. Some argued that daycare was a special relationship, requiring the utmost due an innkeeper or common carrier. While an interesting argument, there is no basis in any of the materials studied this semester for such an argument. Even schools, which occupy a position of parens patriae, or parents (where parental immunity is abolished) do not owe such a high duty to children in their care. Here, however, Paul is an invitee. The school is undoubtedly charging his parents for taking care of him, and thus he is on their property for a business benefit. That would create a duty to him to inspect the premises and discover defects and take steps to make them safe, by fixing, blocking them, or somehow warning him, as well as a duty of ordinary care from activities conducted on the premises.

The facts are insufficient to show that the Delberts or their staff breached this duty. There is some slim evidence that the boy was injured in a fall from a collapsed chair, but the age of the children who claim this, plus the passage of time, render this evidence pretty weak as in any way tending to show that the defendants did anything carelessly to cause the chair to collapse or failed to discover any defect in it, or that the injury even happened that way. This is a classic case for attempting to use res ipsa loquitur....where the plaintiff does not know what caused an injury. Res ipsa loquitur would afford, in most jurisdictions, an inference that the defendant did something careless to cause plaintiff's injuries. Three things are needed: (1) the ordinary or usual explanation for a three year old suffering a broken arm while at a day care center is that someone has been careless (not, as a number of students wrote, that the only explanation for it occurring is that someone has been negligent, or that the normal explanation for a chair collapsing is that someone has been negligent); (2) that the defendant had control (many courts say "exclusive" control) over the instrumentalities that apparently caused the injury; and (3) the plaintiff did not cause the injury to himself.

The key question in part (a) is whether negligence is the usual explanation to for a three year old breaking an arm. This is a fact, and thus must be shown by a preponderance standard.... i.e., more likely than not is the ordinary explanation for this event that someone has been careless? It can be argued that three year olds are very active, and that it is at least just as likely if not more likely that the arm was broken without any negligence by anyone else. In part (b), however, where the child is only 4 months old, clearly one can take judicial notice that the ordinary explanation for an infant suffering a broken arm would be carelessness, since they are pretty much immobile and unlikely to injure themselves. If we assume that evidence of the chair collapsing were admissible, however, one could probably say that the most likely explanation for such an event is that someone has been careless (in building it, maintaining it, or failing to inspect it). Element (2), control over the "instrumentality", would have to be broadly construed to cover the entire day care center and all of its facilities and activities, one of which likely caused the broken arm. This could be accepted by the court, especially under liberalized decisions like Ybarra. If the inquiry focused on the possible collapsed chair, one could say that at the time of the injury, the Delberts and their employees (for whose negligence they are responsible) had control over the chair, although some older cases, which give a literal meaning to "exclusive" would hold that it couldn't be exclusive since someone else was sitting in it at the time, not the owner. Element (3) raises an issue similar to (1) of whether it more likely than not that Paul himself contributed to causing his own injury, but there are no facts given on that issue. By analogy, one could argue that children aged three are in most states deemed incapable of negligence, so perhaps their actions should not be found to be a cause of their injuries (however, there is a difference between being negligent and being a contributing cause).

Assuming for the sake of argument that there was negligence, was it the proximate cause of the ultimate injury? The broken arm is the immediate result; would they also be responsible for the ultimate shortening of the arm, due in part to the doctor's operation, and the ensuing mental distress. By analogy, most cases have found under either test of proximate cause that it is foreseeable that the victim of one's negligence will be treated by a doctor, who may even treat the injury in a negligent fashion, and the original actor become responsible for the ultimate consequences, even if they happen much later. The negligence of the doctor would not be a superseding cause. As to the mental distress, the answer should have gone through the history of recovery for negligent infliction of mental distress. This one is easy, since it is parasitic to the physical injury, and grows out of its treatment; but the same result could occur by use of the impact test, and by the requirement of a there being a physical manifestation of the mental the shortness of the arm.

There is, however, the next hurdle, the statute of limitations. Usually, personal injury limitations periods are short, one or two years. They begin to run from the time the action accrues....the old rule was from the time of injury, even if unknown, and the later, liberalized view started it running from the time the injury was discovered. Both of these, if applied, would bar Plaintiff, since it is now two years from the time the initial injury was suffered (the shortened arm and mental distress are not separate injuries, but merely proximate consequences of the original negligence, so there would be no separate accrual for them). Some courts liberalize further by starting the statute from the time the plaintiff discovers that his injury was caused by defendant's wrongful conduct, but that would not help the plaintiff very much here. The thing that would help the plaintiff is that, in most states, the statute of limitations is "tolled"....stopped....during the period of minority, and would not begin to run against a three year old until he/she reached majority.

Was the doctor negligent? One should explain the standard of care for doctors, the need to establish it by expert testimony, and the old and new rules on locality. More importantly, the student should explain potential negligence liability for failure to obtain "informed consent", and whether the doctor's explanation of the potential shortening to two inches, but qualified by not guaranteeing it would not be greater, was a sufficient explanation. One should also explain that the plaintiffs would still not win, unless they can show that had they known the complete truth they would have chosen not to let the doctor perform the surgery, used an alternative method of treatment, and what the effects on plaintiff would have been had this alternative method been chosen. It would seem like there isn't much chance of success against Dr. Boone. There also would be the statute of limitations question if he was negligent.

If somehow, both the Delberts and Dr. Boone were found negligent, the Delberts would be solely liable for causing the initial broken arm, and, unless changed by statute in this jurisdiction, the doctor and the Delberts would be jointly and severally liable for the further damage caused by shortening of the arm and mental distress therefrom. As to that aspect of damages, their negligence would have concurred to cause a single, inseparable injury.

A few students discussed a possible action for strict products liability against the manufacturer of the chair. But the difficulties of proof would be immense....the testimony of two three year olds and the fact that the chair probably no longer can be inspected to determine what, if any, defect was in it, assuming that it is what caused his broken arm in the first place.

For this question, the major issue was the uses of res ipsa loquitur, and the maximum points were 8. Invitee status and duty was worth up to 4 points. The statute of limitations was assigned up to 8 points. Medical malpractice against Dr. Boone and Mental Distress issues were each worth 4 points, and 2 points were left for "other", including Joint and several liability or anything else that was somewhat logical, such as whether there was a special relationship between the D daycare center and P, or product liability).



lots of issues here, and it was important to try to organize the answer logically. It also was surprising to see so many students run out of time on this one, and so many fail to discuss possible strict liability for an ultrahazardous or abnormally dangerous activity.

Actions against Dunbar for using the Vikane: Possible negligence in using the substance at all, which mainly involved an assessment of the risks against the benefits (the Hand formula); possible negligence in inspection or in failing to take other precautions (such as evacuating the Majestic or running a test through the wall first); possible strict liability for using an ultrahazardous or abnormally dangerous substance; duty to each of the victims (including an analysis of the two views from Palsgraf, and its application, especially to the fireman, coming to rescue; proximate cause of the injuries of each of the three (including foreseeability of one trying to escape and injuring himself in the attempt); contributory or comparative negligence by the man who jumped and by the fireman; assumption of risk by the fireman; Majestic's duty to its residents to warn them of what was going on next door or to evacuate them; Majestic's duty to the fireman, or alternatively the assumption of risk defense. One could also have discussed Ritz' duties (although by hiring an independent contractor, they couldn't be liable for its acts; they might have had an independent duty to advise Majestic to evacuate)

Facts are given in these problems for a reason. It was assumed students would analyze whether Dunbar's decision to use Vikane was negligent or not by weighing its danger against its utility, and by comparing it to the other possible ways of cleaning out termites, all of which had deficiencies or dangers. In addition, while it would seem that Dunbar's agent did all she could in checking the wall, and it would have been too burdensome to tear up the floor, she still could have prevented the injuries by asking Majestic to evacuate its building or by running a test.

It was possible to argue Dunbar should be liable even if it used due care because the chemical it was using was abnormally dangerous or ultrahazardous. The factors of the Restatement could have been listed, including whether it was so dangerous that it was still likely to do injury even if proper precautions were taken, whether used in a location that increased its danger, etc. It also might have been possible to argue that the manufacturer or seller of Vikane would be strictly liable for a defective product unreasonably dangerous, although there doesn't appear to be anything "wrong" with the product, other than its innate danger.....maybe it should have had a warning to evacuate anyone within a reasonable distance for a period of hours.

Going back to negligence, and assuming a possible action, it was necessary to decide Dunbar's duty to the various injured parties, which involved an analysis of the Cardozo (note correct spelling) and Andrews views of duty. Were any or all of the victims foreseeably threatened with harm (remember, under both views of duty, it isn't necessary to foresee any specific kind or manner of injury, only that they would be injured; thus the one victim's jumping off the balcony would be irrelevant for this issue; the fireman would have to be foreseeable as a rescuer). Then, if there was a duty and breach (such as by not evacuating the building or warning the residents or running a test), was the breach the proximate cause of their injuries. Once again, this required a short explanation of the two views of duty. One victim clearly was foreseeably injured by the kind of injury that was foreseeable. Was the one who jumped from the balcony? Most courts, even those applying the foreseeable consequences test, have held that it is foreseeable that one threatened with a danger of physical harm or death, will attempt to escape the danger, and so long as the person does not act in an utterly foolish manner in doing so, their injury in trying to escape is a foreseeable consequence. The fireman's kind of injury was surely foreseeable...the issue of his not using the gas mask was one of a defense of contributory negligence or assumption of risk, not proximate cause.

Majestic likewise could be found negligent to these people. As the owner of the hotel, it was an innkeeper, and owed a very high standard of care to its guests. Once alerted to the danger of what was going on next door, perhaps it should have evacuated the building or at least warned its residents of the potential danger. As to the fireman, most jurisdictions would find him a licensee, to whom there was only a duty to warn of hidden dangers; he already knew the obvious danger, so there would not likely be liability to him. And of course there are the possible defenses of assumption of risk and contributory negligence again. If Majestic were also responsible, there could be a brief discussion of joint and several liability.

As to defenses, the jumper could allegedly be contributorily negligent if his act was foolish under the circumstances, and the fireman might be contributorily negligent for failing to don his mask. This would require an elaboration that contributory is no longer a complete bar in most jurisdictions, but been replaced by one of three versions of comparative fault, which would ordinarily reduce the plaintiff's recovery but not bar him, unless under two of the versions plaintiff's negligence was equal to or greater than the defendant's fault. Also, one might argue assumption of risk by the fireman, in facing a known danger as part of his job, and by facing it without the benefit of the gas mask.

Points were awarded as follows: Basic negligence in using Vikane (including balancing) 5, negligence in inspection or warning or not evacuating 5, strict liability for abnormally dangerous or ultrahazardous activity 5, product liability 5, duty concepts 5, proximate cause concepts 5, assumption or risk/contributory/licensee/majestic 8/ Other (misc., including jt and several) 2. Not very many students in the day class got any points for strict liability, and product liability was basically a complete washout, so the maximum points for the test became 95. That is I recognized after beginning to grade that no one was going to talk about that, so I dropped it, and just gave extra credit to anyone who brought it up.

PROCEDURE: Please return the exam answers within one week to my secretary. Don't keep them any longer. You may keep the questions and this analysis, and may make a copy of your exam answers. Our rules require the exams to be kept by the instructor for one year.

If you wish to see me to discuss further your exam, please remember that this will only be for the purpose of explanation and not for the potential purpose of a grade change. If I reread your exam now, I might find that I would now award 5 points for an answer instead of 3, but I would also have to go back and reread everyone else's answer to see how I graded them, and I can't do that. Please believe me that I tried as hard as humanly possible to maintain consistency throughout...that may mean that I was too conservative in grading some issues, but I did the same for everyone, so with a mandatory curve, that would not have made much difference. At any rate, e mail me your request, and we can set up a time.

Good luck in your work this semester. I hope this analysis will help you in preparing for this semester's study and exams.