Tort Law

Past exams are at the Library.

Following are sample answers for the Fall 2000, Fall 2001, Fall 2002, Spring 2004, Fall 2004 Torts, and Fall 2005 exams.  Included with the 2004 and 2005 sample answers are the memos written to provide general feedback to the students who took the exams.  Keep in mind that these are "sample," not "model," answers.  They are actual answers written by students, edited only slightly for clarity, spelling, and grammar.

MEMO TO STUDENTS IN TORTS, FALL 2005

The questions in this exam were somewhat more diverse than usual (which was my plan), and there was evidence in individual performance that some students were more successful conveying their legal knowledge in one rather than another format.

Of Question I's four short questions, two turned out to be quite easy, one more challenging, and one quite difficult. Most astonishing to me was that 11 of you paid essentially no attention to the word limit, exceeding it significantly. The word limit was in the instruction page e-mailed and posted before the exam and of course provided in the exam; it was repeated at the top of Question I and again, in bold-face, at the top of each sub-question ("15 minutes, 100-word limit"). As provided in the instructions atop Question I, "no more will be read." Out of fairness to those who did follow the word limit, I did not read beyond an "eyeballed" 100 words (10 lines of type; about 120 words for writers, who overall - without any electronic aids - were entirely compliant). I would appreciate some feedback from the 11 as to how this happened: inattention? assumption that I wouldn't enforce the limitation? Other?

Question II was a standard-format exam question; Question III diverged from standard in asking not some version of "what torts and why?" but rather "take the settlement or not?" Even though it clearly asked you to provide an analysis of the plaintiff's lawsuit, some of you failed to provide an organized legal analysis to inform your conclusion whether or not to accept the settlement. In part that might be attributable to the question's underlying strict products liability material, with which you were obviously far less comfortable than with negligence.

Achieved scores on each question are noted below. Your score for each question is at the end of the question or on the page prior to the end (if you didn't start the next question on a new page). Scores for the four parts of Question I are listed as x/x/x/x. The grade distribution with respect to point totals was as follows: A (85-79), A- (77-72), B+ (71-67), B (65-59), B- (58-53), C+ (52-50), C (49-41); C- and below (39 and below).

What should you be doing now? While torts (and criminal law) are off your plate (perhaps until the bar exam), it will definitely improve your future performance on all law school exams (and the Bar, which is just a giant version of first-year exams) if you "close the circle" on each of your first-semester exams by re-reading the questions, reading your answers, and reading any memos and sample answers that are provided for you. (Torts sample answers should be available on my web site and the library's web site by the end of January; I have asked nine students for permission to use answers as samples. In addition, I am scheduling an exam review session; the date, time, and place will be e-mailed to you and announced in one of your classes. At that session I will go over the substance of the questions; after it, I will set up office hours specifically for the purpose of reviewing exams with you.) Everyone has doctrines that didn't resonate with them (and that landed up as major parts of questions). Reviewing and closing these substantive "holes" in your knowledge can't hurt. But more important than the substance is to try to figure out whether there is any pattern from question to question and from exam to exam that suggests a flaw in your approach, or your answer technique, that you could usefully modify for the next go-round (and the four more after that, and the One You Want to Take Only Once If Possible, the bar exam). Exam skills are learnable - and worth the investment of time and energy to learn them. After reviewing your exams, visit with your professors to go over all or parts of the exams. In addition, the professional staff in the Academic Support and LEOP offices can help you analyze your work and suggest ways to improve your approach. You are paying dearly for your education; take advantage of all the staff whose salaries you support!

Question I. Question A involved the encounter between the headscarf-wearing woman and the security guard. Some papers too-easily dismissed intent by the guard by saying he didn't intend to harm - but did he intend a touching that would be offensive? The "subjective/objective" conundrum in assault and battery then recurs in respect to Mrs. P, who would have found the touching offensive because of her religious beliefs. The Restatement (in its "the actor's surprising success" section) seems to judge assault from the subjective perspective of the victim, but ... will courts buy that? (There were a number of citations to Cohen v. Smith; that was a battery case, and there plaintiff had said no one male is to see me unclothed, and yet the defendants failed to take that into account.) The false imprisonment piece of the question was very straightforward - she was able to leave (plus they didn't intend to confine her). (Highest attained score: 8; lowest score, 2).

B was much trickier. There were three types of problems that could have been raised here. The least evident was whether the interpreter, hired by the family's lawyers, had a duty to husband; since we had barely touched this kind of problem (which often plays out when the lawyer who writes X's will, in which X intends to leave his fortune to Y, is sued by Y when, because of the lawyer's incompetence, the fortune goes to Z), I had not expected it to be discussed. The glaring problem was that husband was claiming only emotional distress because of the alleged mistranslation. Would any court (other than Montana, home of Sacco) allow this suit? In addition, there was a major cause-in-fact problem lurking here. The family had presented this agreement (which husband now claims he didn't understand because of mistranslation) as "take it or leave it" - if he had understood it, would he have rejected it (and thus perhaps accelerated his own emotional distress in leaving the country without wife or wealth)? (Highest attained score: 8; lowest score, 0.)

C was easy (perhaps because I'd discussed Katrina hypotheticals in class - I was/am angry at the media portrayal of hungry food-takers as looters/criminals). Nevertheless, not everyone correctly named the appropriate defense as private necessity (failing to distinguish it from public necessity), and some neglected to point out that they would need to pay for their use of the land/goods they took (albeit food would have had little ultimate financial value). [Note to civil authorities after major disasters: people are hungry and thirsty. Food in stores won't be salvageable later. Order retailers to open their doors and distribute food and drink, and necessary toiletries, free. A bagful a person? Maximum one six-pack or other alcoholic beverage? Use the public necessity doctrine ...] (Highest attained score: 8; lowest score, 2.)

D was the head-scratcher. Experts will all say Dee did, in their view, an extraordinary job - but the mummy was damaged anyway. What can P's lawyer argue? This may well just be a loser. However, P's lawyer has two potentially useful arguments. First, Dee breached her duty to tell P that "her best" might not be good enough; she should just buy the mummy a seat on the airplane. (P couldn't have done that and gotten to her new job on time - there were no available airplane seats. But that isn't Dee's concern.) Second, Dee, as apparently the singular expert in this type of shipping, should be held to a higher standard - her duty should be to use her unusual skills; doing the packing and shipping when "quite tired" could be alleged as the breach. (I probably should've said she was hung over to make this fact more extreme.) There's no precedent for applying strict liability to this type of service provision, and res ipsa doesn't do anything for you either (in fact the evidence is strong that this kind of damage could well happen in the absence of negligence). Most creative suggestion (humor value only): if the mummy were some kind of relative of P, wouldn't you have mishandling of a corpse to rely upon? (Highest attained score: 7; lowest score, 0.)

The highest attained total score on Question I was 28; the lowest, 6.

Question II was a typical law school exam question. (I didn't know, when I included a violation of the teen driving statute, that it was about to be amended to forbid teenagers from driving between 11 p.m. and 5 p.m., for a full year; perhaps younger siblings have complained about this to you! Nor had I known there would be many flooded roads just precisely when I was grading this.) There were a large number of issues to be spotted and covered (each worth up to three points), and then I included an overall quality rating (worth up to seven points). I was quite liberal in distributing the full three points for issues - the raw scores in this question landed up as the highest of all three questions.

In the lawsuits against Donna for her driving (in which she would be held to the adult standard), a surprising number of you wanted Penny to have assumed the risk of her friend's driving choices. If the passenger had climbed into a clearly-drunk friend's car - well, that's more extreme and perhaps should be taken into account; but are we each assuming the risk when we fail to be the back-seat driver? It would have rather wide-ranging consequences were passengers responsible for driver error. (Some went so far as to call this "informed consent.") In part this instinct arose because Penny was also chatting with the boys when they should have been on the road home - but did she have any duty to watch the time (to avoid violating the statute)? Otherwise the issues were straightforward. There was a statute violated, but was it relevant? (They were hit when Donna was not in fact driving; she could have gotten stuck as easily at 11:30 p.m. as at 12:15 a.m., and might still have been there when the pickup drove by.) Similarly, her perhaps-negligent (and perhaps wise) choice to take the muddy road might simply have left them "in the way" of the probably-drunk, negligent pickup truck driver. (This could lead to "condition-not-cause" arguments - whether or not valid or useful - although few went down that road.) The proximate cause issue concerning the driver who struck their car was important to analyze.

One interesting issue is whether Donna could defend herself (or at least reduce her liability) because Penny's injuries occurred because she was not wearing her seatbelt at the time. You may recall that the "seatbelt defense" has been troubling to the courts (because the failure to wear a seatbelt is generally not a cause of the accident). Further confusing the issue on our facts is whether you are required to wear your seatbelt when the car you are in cannot move. I just looked up the relevant California statute. California Vehicle Code section 27315 provides, in pertinent part:

(d) (1) A person may not operate a motor vehicle on a highway unless that person and all passengers 16 years of age or over are properly restrained by a safety belt. * * * (e) A person 16 years of age or over may not be a passenger in a motor vehicle on a highway unless that person is properly restrained by a safety belt. * * *

As your statutory classes will soon convince you - the fact that our question is not specifically answered is unsurprising! Donna was not operating her motor vehicle when the accident happened - or was she? Was Penny a passenger "in a motor vehicle on a highway" at the time?

The lawsuit against Donna's parents would have to be for their own negligent supervision, since parents are (thank goodness!) generally not responsible for their children's torts. Letting them go out probably wasn't negligent; was it negligent to realize they might take a more-dangerous rather than less-dangerous route home but simply forget to make a phone call? Proximate cause would be a barrier to winning against them too, of course. If Penny did contract giardiasis from the Dodge hot tub, it would be necessary to consider the scope of the Dodges' duty as landholders. The more significant barrier would be demonstrating the source of her injury, considering that the parasite has been isolated both in the hot tub and in a restaurant where they had all eaten. People grasped at res ipsa - but if the parasite is in your food or water we probably can prove breach of the duty to keep out such parasites. The problem is: whose parasite caused Penny's harm? What do you do when there are two potential causes of a single harm? (Will Summers v. Tice help you?) Some of you realized that there could even have been other exposures. (In the real world - food and waterborne illnesses are traced to their exact source only rarely, and mostly when there has been an "outbreak" affecting more than a single person. There is amazing science these days, though, that can "match up" pathogens affecting sick individuals with pathogens found in specific places; a genetic fingerprint match would help prove causation. None of you was expected to have any idea of any of this!)

If Penny can win - should she recover for the athletic scholarship that she had not yet actually obtained? Isn't that too speculative at this point?

The highest attained score on this question was 33; the lowest score was 10.

I learned a lot of random ski lore while reading Question III. None of it was at all necessary for doing a great job on this question (I'm not a skier - I had to run this by a skier before finalizing it so I wouldn't include any totally-ridiculous facts). This question rewarded those who took an organized, step-by-step approach to it, first considering whether Peak's lawsuit would succeed on various theories, and then deciding whether the settlement offer should or should not be accepted.

Some of you considered negligence theories; most appropriately dismissed them as unlikely to succeed in the absence of any evidence of manufacturing or design conditions below the standard of care and in the absence of the failed equipment. (Once again, some of you reached for res ipsa to help you - although those who worked through the conditions for res ipsa recognized that there could have been explanations other than the company's negligence for the ski binding's failure to release.) Strict liability would be far more likely to succeed. Most of you realized that since Peak doesn't have the ski binding, it would be tough to determine whether, if there were a defect, it was a manufacturing defect (with this one binding diverging from the intended design). Since Best had not reported any other similar injuries, some of you dismissed out of hand the possibility of a design defect - although others properly considered it (this was a product new in 2005; there always is a "first case" of failure). To prove there was a manufacturing defect, Peak would encounter the problem of not having the failed product. Many of you, discussing strict liability, said he would need to rely on res ipsa. That was close but not exact; the cases talk of allowing the jury to make a res ipsa-like inference of defect in circumstances of this sort.