Torts Evening - Fall 2007
Professor Ralph Brill



Final Examination

Professor R. Brill

December 11, 1997





Write on the cover of the first booklet, or, if typed, on the first page of your answer, 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, i.e. your examination number, the date, the course. Do not write your name anywhere in the examination booklets or on your answer pages. However, if you are writing the exam, please write your exam number on each cover. Write legibly, in ink (preferably blue or black). For both written and computer exams, 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 the blue books must be turned in with the answers, I will not tolerate having extra books, 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.

All questions are equally weighted.

1. Rich Sayre and Lee Bell were playing golf at the Marovitz Golf Course, a Chicago Park District course in Chicago's Lincoln Park, in July 1997. The two men were good friends, who played golf together an average of two times a week during the summer months. Both men had really gotten into the game that summer and each had purchased a new set of Calloway golf clubs. While Rich was the better golfer, Lee occasionally outscored him. They often increased their interest by betting small amounts of money on specific holes of golf, such as on who could land closest to the hole, or who could hit the longest drive, or who could make a par or birdie. They also consumed several beers apiece while playing on warm days.

The day was quite warm. By the time they reached the 16th tee, each had consumed four beers. The hole was a 165 yard, par three hole, so they agreed to bet five dollars on who could land on the green closest to the hole. Lee teed off first and hit a solid five iron shot that came to rest four feet from the hole, and he sarcastically told Rich "let's see you top that!" Rich hit a five iron also, but sliced it a bit to the right of the green; however, the ball hit a tree and bounced at a sharp angle onto the green and rolled to within five inches of the hole. Rich then smugly announced, "that's just the way I planned it. Now, pay up!"

The exasperated Bell yelled "$#@$%!" and playfully swung his golf club at normal speed towards Rich's head, from a distance of four feet away. He fully intended to miss Rich by several feet and then say something like "I can't even hit a target as big as your fat head." However, unknown to Bell, the rivet holding the club head on the shaft had a microscopic crack, not discoverable by a reasonable inspection. When Bell tried to stop his swing, inertia or centrifugal force caused the club head to continue to move forward, and the club head broke off and flew at Rich, hitting him in the face and breaking his nose and cheek bone. Angered and hurt, Rich started chasing Lee, trying to hit him with his own club, while Lee tried to explain that "it was an accident." Before he calmed down, Rich did hit Lee hard on the left arm, causing it to break.

The incident has left hard feelings between the two, as well as some fairly serious injuries. Discuss and evaluate all actions reasonably possible for each, including defenses, if any.

2. About 100 miles north of Las Vegas, Nevada, is a 60 square mile area near a dry lake bed called Groom Lake; the area is known popularly as "Area 51." It is owned by the United States Government. Located on the site are several warehouse type buildings, airplane hangars, and a landing strip. While the U.S. Government has long denied the existence of the site and its use, it is generally known that the site has been used by the government for the development of secret military aircraft, including the Stealth, the A12 and the original U2 spy plane.

However, the main fame for the area is derived from the belief, shared by many people, that Area 51 is the site where research has been conducted on alien beings and alien spacecraft which have crashed in the United States. Specifically, a widespread theory has circulated, in books, in movies, in documentaries, that an alien spacecraft crashed in Roswell, New Mexico in the 1950's, that one or more aliens survived the crash, that the spacecraft and the aliens were eventually taken to Area 51 for study, and that based on the information gathered in that fashion, the government has since been building and testing spacecraft and weapons modeled on those of the aliens.

The U.S. government has given some credence to the UFO theorists by making everything about Area 51 top secret, based on "national security." Workers at the site are flown in and out from McCarren Airport near Las Vegas, and are sworn to secrecy on threat of criminal prosecution, with a penalty of ten years in jail. All attempts to obtain information about the site have been thwarted based on the claims of national security. Signs are posted all around the perimeter of the area, stating in big red letters: "RESTRICTED AREA. Anyone intruding shall immediately become subject to the jurisdiction of military law. Intruders will be subject to lethal force, without warning, and on sight. USE OF DEADLY FORCE IS AUTHORIZED under the Internal Security Act of 1950." Not advertised on these signs but known to UFO buffs to be at the site are other sophisticated systems, including solar-powered robotic video cameras used to observe anyone approaching the perimeter, parabolic microphones used to pick up conversations anywhere along the perimeter and on the grounds, motion sensors buried in the dusty soil, as well as crews of security men in jeeps, known to the buffs as "Cammo dudes." Over the years, hundreds of trespassers have been stopped within yards of the perimeter and questioned at gunpoint and turned back.

Many have told stories of seeing "flying saucer" type aircraft hovering in the hills surrounding the site, making zig zag maneuvers. Long range pictures and videos have been made showing what appear to be UFO-type aircraft, with multi-colored lights and apparently capable of making incredible maneuvers. Some have claimed to have seen some of these UFO's crash into the hills.

Nearby towns have become tourist attractions for UFO buffs or others intrigued by Area 51. The nearby town of Rachel houses a UFO museum. So-called experts offer guided tours up to the hills outside the perimeters of Area 51 to attempt to view with long range telescopes UFO maneuvers and other activities. The highway leading up to Area 51 has been nick-named the Extraterrestrial Highway.

Albert Hall is an eleven year old boy, who lived with his parents in Sioux City, Iowa. His parents were ardent UFO believers, and Albert himself avidly read Science Fiction comic books, watched movies like "Independence Day," and attended UFO believer meetings with his parents. In July, 1997, Albert's parents decided to visit Roswell, New Mexico, the alleged site of the alien spacecraft crash in the 50's, and to stop at Rachel, Nevada on the way back. They arrived in Rachel on July 17, staying in their motor van. During the next few days, Albert joined a group of other children of similar age to swap stories, attend lectures, and visit the museums. On the third evening, they, together with many of the parents, took a bus ride to Viewpoint Hill, about 100 yards from the perimeter of the Area 51 site. The adults congregated in one group, listening to the tour guide. The children went off by themselves, to look through their telescopes and binoculars. Suddenly, as they watched, intently, they saw an object in the distance take off vertically from the runway in Area 51 and zoom off in a northerly direction. The object changed colors several times, and made several incredible maneuvers. Entranced, Albert moved forward towards the object (of course, it was many miles away). He wandered off from the other children towards the object, down the hill, across the desert, moving faster and faster. He failed to see any of the posted signs. There were no fences. No one stopped him.

Suddenly, Albert saw bright lights flashing all around him. Panic-stricken, he forgot from which way he had come, and started running. Several jeeps, driven at very high speeds, circled through the area, obviously looking for the intruder. Albert hid behind a large rock, trying to get his bearings. The group on the hill saw the commotion and started yelling for Albert to come back. At this time, he was approximately 300 yards (three football fields) onto the site. He ran from behind the rock, but directly into the path of an oncoming jeep, driven at a speed of 75 miles per hour by Forrest Burgess, a civilian security officer employed by the C.I.A.. Albert was hurled through the air, and landed on his head. Unfortunately, he suffered permanent paralysis from the episode.

Discuss and fully evaluate any claims Albert might have against the U.S. and Burgess.

3. Tim Tucker, aged 47, lived with his wife and family on Harris Road in Sliver Lake, Illinois, located near the Wisconsin border. Sliver Lake is a small town, population 3231. Tucker is a salesperson for the Mosby Toyota dealership, located in Paddle Lake, four miles from Sliver Lake on Illinois Highway 71. Tucker also is chief of the Sliver Lake Volunteer Fire Department; fifteen other Sliver Lake residents comprise the rest of the volunteer staff of the department.

Since it has no full-time fire department, emergency calls (including 911) in Sliver Lake are processed as follows: for police calls, the caller is asked to press button 1; for fires, number 2, for paramedic calls, number 3, etc. When a call about a fire comes in, it is automatically routed, during daytime hours, first to Tucker's business phone at Mosby, and after hours to his residence phone in Sliver Lake; a backup number is programmed in case Tucker does not answer within four rings. When Tucker gets an emergency call, he immediately drives to the Sliver Lake fire station, located three blocks from his home in Sliver Lake, and activates a siren alerting other volunteer firefighters to race to the station, change clothes and drive the fire trucks to the scene of the fire. The siren system is programmed to advise volunteers of the seriousness of the fire -- one alarm, two alarm, etc. In 1995, the volunteers were called out to fight fires a total of 16 times, only two of which were of a serious nature; in the first half of 1996, there were a total of 12 emergency calls to the volunteer fire department, and two of these were for serious fires.

A Sliver Lake ordinance prohibits blocking private driveways, with a possible fine of $35; a state statute prohibits blocking driveways of locations with emergency vehicles, such as fire trucks, police cars, ambulances, etc. Two feet from the curb, and alongside his driveway, Tucker had posted a sign, three feet by five feet, and lighted by an attached flood light, stating: "Sliver Lake Volunteer Fire Department -- DO NOT BLOCK THIS DRIVEWAY -- EMERGENCY VEHICLES."

On Tuesday, July 2, 1996, Carl Cash, aged 15, while skate boarding down Harris Road, lost control and crashed into the sign on Tucker's property. He was not seriously hurt, but the sign was knocked over and the flood light broken. He informed Mr. Tucker of what had happened. Tucker ordered a new flood light from the local hardware store, which he was told would arrive on July 5th, and he planned on repositioning the sign at that time.

On the evening of July 4th, Dan Dobbs, aged 37, a stretch limousine driver for Luxury Travel, Inc., picked up several people in Elk Lake, ten miles from Sliver Lake, and brought them to Sliver Lake to have dinner and then to watch the fireworks display over the lake. Because of the large crowds, Dobbs had difficulty finding a parking place near the lake site set aside for the crowds to watch the display. He found a spot in front of Tucker's house, but because the black limo was very long, the limo blocked about one-half of the driveway.

At 10:25 p.m., towards the end of the fireworks show, Tucker received an emergency call that there was a serious grease fire at the Italian House Restaurant, in the business section of Sliver Lake. He had been watching the fireworks from his rooftop. He immediately jumped into his car, speedily backed down his driveway, and collided with the limo that Dobbs had left parked partially in front of the driveway. The impact knocked Tucker unconscious. He remained unconscious for twenty minutes, during which time no alarm was given to the volunteers. Tucker's wife finally realized what happened when she came outside the house to throw out some garbage and saw the wrecked car smoking. She called another volunteer, who raced to the firehouse and gave the alarm. However, the delay proved fatal -- not only did the Italian House Restaurant burn to the ground, but its owner, Pat Porelli, died of burns suffered in trying to fight the fire.

Assume that the evidence shows that had Tucker arrived at the fire station within minutes after receiving the call, the volunteers would more likely than not have been successful in fighting the fire and preventing Porelli's death.

Wrongful death suits are filed on behalf of Porelli's next-of-kin against Luxury Travel, Inc., Dobbs and Cash, charging Dobbs and Cash with negligently causing Porelli's death. What results? Discuss fully all issues.