Torts Evening - Fall 2007
Professor Ralph Brill


Final Examination
Professor R. Brill
December 21, 1995



Write on the cover of the first booklet, in large letters, whether you are a Day Division or Evening Division student.

Fill in the information called for on the front covers of the Blue Books. Do not write your name anywhere in the examination booklets. However, please write on theWrite legibly, in ink (preferably blue or black). Start the answer to each major question (I, II, etc.) on a separate page, and write only on one side of each page so the ink does not show through. Your answers should appear in the book in the order in which they appear on the examination. Do not use a separate Blue Book for each answer; try to keep the total number of books to a reasonable minimum. If you use more than one book, number each on the outside (e.g., "1 of 3"; "3 of 3"; "Scratch"). Take and use no more than one book at a time for scratch; since all of them must be turned in with the answers, I'd prefer not to have three or four extra books per student, since that heightens the chances of misplacing an answer or an exam.

This examination is designed to test you on (1) your ability to analyze -- i.e., recognizing the important legal issues raised by the facts given; (2) your understanding of the principles of law applicable; and (3) your ability to reason -- i.e., applying the principles of law to the facts to reach logical legal conclusions. Do not merely state legal conclusions; show your full deductive process, emphasizing what facts or factors you find relevant in applying a rule, and explaining why the facts or factors are relevant. On the other hand, do not "shot-gun" -- confine your answer to a discussion of the particular issues and principles of law raised by the question, and don't write a general treatise on the subject of Tort law, or some aspect of it.

Question 1 (30 Points)

A State of Colorado statute allows handgun owners to carry their handguns, concealed on their persons, if they first obtain a permit from the County Sheriff. (The Concealed Weapons Law, 32 Colo. Stat. sec. 353 (1993)). The statute bars sheriffs from issuing such permits to minors under 19, applicants who have criminal records in any state, anyone who has been hospitalized or treated for mental illness, and people who are not American citizens. The statute requires a waiting period of three business days for obtaining the permit, during which time the County Sheriff is required to consult various computer data bases or call other possible sources of information to assure that the applicant is qualified for the concealed carry permit. (For example, if an applicant has answered one of the questions on the questionnaire that he/she has been treated by a psychotherapist, the sheriff would be required to contact the psychotherapist and try to determine the nature of the treatment, and whether the applicant might be dangerous).

The Concealed Weapons Law was passed after substantial lobbying efforts by the National Rifle Association and other groups, who argued that such a right was needed to allow law-abiding citizens to protect themselves from criminal attacks. However, the permit and waiting period restrictions were added due to the efforts of legislators who were concerned about the high-profile assassinations of or attempts on Bobby Kennedy, John Lennon, Presidents Reagan and Ford, and who argued that the restrictions were needed to lessen the chances of firearms misuse.

(A) Harry Angel, aged 25, an American citizen with no prior criminal record nor any previous mental illness, applied for a permit from Sheriff Tolan, of Meridian County, Colorado, to carry a .32 calibre pistol. Sheriff Tolan had known Harry and his family for twenty years; he therefore issued the permit immediately, without waiting the three days or making any background check, as required by the statute. Two days later, Harry Angel got into a barroom argument with Pat Piper, age 23. After the two had engaged in some pushing and shoving, Piper sat down at a table, but continued to swear at Angel. Angel pulled out his handgun and fired at Piper's beer bottle, intending to shatter it and frighten Piper. Unfortunately, his aim was bad; the bullet ricocheted off the floor and struck and seriously injured Piper. Discuss and evaluate Piper's potential tort action(s), if any.

(B) Assume the same facts, except that, unknown to Sheriff Tolan, Harry in fact had a criminal record, involving several arrests for armed robbery and one conviction for criminal assault, which would have barred him from obtaining the concealed weapon permit. How, if at all, would these facts affect the possible actions? Explain fully.

Question 2. (30 Points)

(a) Paul Hicks is a typical, active three year old boy, the son of Paula and Peter Hicks. Since both parents work, Paul is enrolled at Delbert's Playhouse, a pre-school day care center. On December 21, 1993, when Paul was picked up from the day care center, he complained that his arm was hurting. Later that evening, Paul was taken to a hospital emergency room, where he was diagnosed as having a severely broken arm.

The Hicks contacted Mr. and Mrs. Delbert and their staff, and they all stated that they had no knowledge as to anything that might have caused the injury, and they denied that Paul made any complaints to them while at the day care center that day. Paul's arm was set and placed in a cast by Dr. Boone.

About a year later, complications developed in Paul's arm, which necessitated a serious corrective operation. Prior to the surgery, Dr. Boone told Mr. and Mrs. Hicks that, as a result of the corrective surgery, Paul possibly would suffer permanent shortness of the arm compared to his other arm, since some of the bone in the arm had to be removed. Dr. Boone thought that the shortness would not be substantial, in all likelihood no more than two inches. However, he said, he could not guarantee this outcome, since each human being develops at a different rate, and if Paul had a sudden spurt of physical growth at some later age, the differential in his two arms could be more substantial.

In the subsequent year, Paul, now five years old, has developed fairly serious depression because of his arm. Other children tend to tease him because his right arm is approximately four inches shorter than the left, and is slightly deformed. Dr. Boone reiterates that this condition may be temporary, and likely will change as he grows. Nevertheless, the boy does not have the spirit and verve of a typical five year old; he is withdrawn, afraid of social situations, and his parents had to remove him from a pre-kindergarten class in which he was enrolled. The family is greatly concerned about how Paul will react when he starts his kindergarten classes in several months, and the future depression and effects of his injury.

The family now consults you about possible actions. Interviews with the Delberts and their staff produce the same responses as at the time of the injury, and no written reports or memoranda are discovered indicating anything to the contrary. Two other children who were in the class tell you that they saw Paul fall on his arm due to the collapse of a chair, but the other children do not remember anything unusual, and there are the obvious doubts about the validity or admissibility in evidence of the recollections of children who were three years old at the time of the injury. Advise the Hicks family about any potential action or actions.

(b) Would your answer be altered if Paul Hicks were only four months old at the time of the first injury? (and, of course, we wouldn't even have the statements of two other children as to the cause). Why or why not? (Caution-- Don't automatically assume it would be different because I asked; think it through).

Question 3. (40 Points)

Dunbar Pest Control Co. is called in to fumigate The Ritz Apartment House, which has developed a termite problem. The Ritz is located in an old part of Metro, the largest city in the common law state of Kent. The building next door to the Ritz is the Majestic Apartments, and the two building share a common wall.

Dunbar recommended spraying the premises at the Ritz with Vikane (sufuryl flouride), the most effective poison used to kill termites. Unfortunately, Vikane also causes death or serious injuries in humans if inhaled. Vikane is the most widely used termite exterminating product in the exterminating industry. It is spread in gas form, by workers protected by special suits, after the entire premises are vacated by all humans and animals. The gas disperses thoroughly in about eight hours and leaves no residue. Workers use a simple and highly reliable detecting device to determine when it is safe for humans and animals to reenter the premises.

There are other products available for termite extermination, but each has some of its own problems. Liquid nitrogen is not as lethal to humans or termites, but requires that holes be drilled into the walls and often warps drywall, resulting in expensive repairs. Microwave energy may be used without much known danger to humans (though there is a view, taken by a small group of scientists, that exposure to microwaves over time may cause cancer in humans); however, microwaves are known to be only 85% efficient in killing all the termites in an infested facility. Electric shock administered by electrogun poses virtually no environmental or physical danger, but is only effective on 50-70% of the termite population and also requires that the walls be punctured. The only other treatment, extreme heat, raising the temperature of the infested wood to 120 degrees Fahrenheit and the air temperature to 187 degrees Fahrenheit, kills about 99% of the termites, but harms furniture and walls. If no treatment is used, the termites will destroy a wooden building within months.

Prior to spraying the building, Elmore, an employee of Dunbar, spent a full day at the Ritz investigating to see if the chemical fumes generated by Vikane could spread through the party wall into the adjacent Majestic Apartments. The wall was a thick fire wall, about two feet thick. Ms. Elmore applied various electronic devices to the wall to test its thickness, its solidness, and its condition, applying the apparatus along the wall, every six inches, for the entire height of the wall. She also asked Ajax, the owner of the Majestic Apartments, to inspect the blueprints for that building. Ajax assured her that the party wall was an impenetrable fire wall, and the architectural blueprints confirmed that fact. Several experienced workers physically examined the wall, looking for cracks; they found none.

After taking steps to make sure that the Ritz Apartments were completely vacant, Elmore and her crew began the fumigation process. Unfortunately, unknown to anyone, over time a crack had developed in the wall. The crack was at most one-quarter inch wide, and located about two inches below the wooden floor on the first floor; in that position, Elmore would have had to tear up the floor to discover the crack. The crack had, over time, penetrated completely through the fire wall to the corresponding place on the other side, two inches beneath the first floor of the Majestic. This crack was impossible for Dunbar's workers to detect using the state-of-the-art equipment it had used. The small crack enabled the dangerous fumes to escape into the adjoining lobby of the Majestic.

One tenant, Monica Prager, who was walking through the lobby, was overcome by the fumes and went into convulsions. The desk clerk at the Majestic, smelling the dangerous gas, alerted the Dunbar crew. After calling the fire department and telling them of the exact nature of the danger, she quickly called all the remaining tenants at the Majestic and alerted them of danger of the gas. Unfortunately, a third floor tenant, Morris Safir, aged 53, attempted to flee by jumping from his third floor window into the street. He was very seriously injured in the fall. Fifteen minutes later, firefighter Jose Felardo was overcome by the fumes when he rushed into the Majestic after the fire department answered the desk clerk's frantic call; Felardo had not yet donned his gas mask, which his supervisor had instructed all of the firefighters to put on before they entered the building. Felardo too was seriously harmed.

Discuss and evaluate any actions the injured victims might bring, and against whom. Discuss fully all issues raised.

The End