Mr. Fischer November 8, 2001
1. This portion of the examination consists of 1 essay question and 3 pages (pages 1 through 3).
2. Please use a pen, write legibly, and write on only one side of a bluebook page.
4. This question is designed to be a 60 minute question. You will be given 60 minutes to write your answer. You will, however, be given an additional 30 minutes to organize your answer prior to the time when you may begin writing your answer. During this 30 minutes, you may write an outline of your answer on scratch paper.
Acme Distributors is a company owned and managed by Joe Owner. Acme has a national sales force that meets annually at Acme's headquarters for a three-day sales meeting. Some Acme salespeople smoke, but Acme no longer allows smoking in its building because of the objections of a number of its employees. Bert, a salesperson, was one of the most vocal anti-smoking objectors advocating the smoking ban within the headquarters building. In order to accommodate smokers at its annual meeting, Acme holds some of its sessions in an outdoor pavilion on its property where it permits smoking.
Three Acme salespeople traveled to Acme headquarters for the annual sales meeting on the same commercial airline flight. One of them, Cal, overheard a conversation between the other two, Diane and Elaine, discussing a plan to annoy Bert during the meeting. The two were smokers who were angry with Bert for spearheading the smoking ban at Acme headquarters. Diane told Elaine that she had some cigars in her suitcase. Diane and Elaine agreed to each smoke one during the first session in the outdoor pavilion and repeatedly blow smoke in Bert's face during the session. Diane would keep her suitcase in the Acme cloakroom. She would retrieve the cigars prior to the session, and bring them to the session.
Cal wanted to prevent Diane and Elaine from executing their plan. He reported the plan to Joe Owner, and asked him to intervene. Owner refused, saying that all parties concerned were adults. As far as Owner was concerned, Diane and Elaine could blow smoke anywhere they wanted as long as they were not inside the Acme building.
Cal decided to take matters into his own hands. He knew that Diane's suitcase would be in the Acme cloakroom during the meeting. Just prior to the session in the pavilion, Cal tampered with the latch of the cloakroom door so that the door would open from the outside but not from the inside. Thus, Diane would be able to enter the cloakroom to get the cigars our of her suitcase, but because she would shut the door after entering the cloakroom, she would not be able to open the door from the inside to get out of the cloakroom. Since there was no other exit from the cloakroom, Diane and her cigars would be trapped in the room during the outdoor session, and she and Elaine would not be able to use them to blow smoke in Bert's face. Cal also knew that the cloakroom was in an isolated part of the building, and it was unlikely that another Acme employee would hear Diane if she called for help. Cal intended to release Diane from the cloakroom after the session.
Diane (and her cigars) were indeed trapped in the cloakroom during the session just as Cal planned. Therefore, neither she nor Elaine were able to blow cigar smoke in Bert's face. Diane did call for help after she discovered that she could not get out of the cloakroom, but no one heard her calls. Cal released Diane immediately after the session. Acme had to spend $50.00 to repair the latch on the cloakroom door.
Discuss Cal's potential liability arising out of these events. Assume that all of these facts are now fully disclosed and can be proven. Assume also that proof is available showing that tobacco smoke can interfere with respiratory and optical functions because it contains particulate matter including nicotine, benzo a prene, polonium- 210, phenol, and vaporous substances such as carbon monoxide, ammonia, pyridine, and hydrogen cyanide.
November 28, 2001 Mr. Fischer
Please use the attached items as an aid in analyzing your performance on the torts examination question:
Sample answer for essay question
Explanation of grading marks
Raw point distribution
Remember that I must evaluate an answer on the basis of what you expressly state or imply. In many cases I cannot know your unstated assumptions. When language is ambiguous, I may not know your intended meaning. I can give credit only for what you write, and not for thoughts that you would have added to your answer if someone had prompted you to consider other issues. You must prompt yourself to consider all aspects of the problem before reaching your conclusion.
After reviewing your materials, reread your answer very carefully and consider how it could be improved.
Cal falsely imprisoned Diane. His act of tampering with the latch caused Diane to be confined in the Acme cloakroom from the time she entered the room until Cal released her. According to the facts, Diane had no means of escaping from the room. The description of Cal's plan makes it clear that his purpose was to confine Diane, and Diane's cries for help show that she was aware of her confinement.
Cal could assert defense of others as a defense to the false imprisonment claim. Cal could claim that he was acting to protect Bert from a battery by Diane and Elaine. Defense of others gives Cal the privilege to use the same reasonable force to protect Bert from an impending battery that Bert would be able to use to protect himself.
Cal would claim that Diane and Elaine intended to commit a battery against Bert by blowing cigar smoke in Bert's face for the purpose of causing a contact that was both harmful and offensive. Smoke contains numerous noxious particles and vapors (described in the question). By blowing smoke in Bert's face, Diane and Elaine would be deliberately causing those particles and vapors to come into contact with Bert's face, eyes, and lungs. Cal would argue that this is a sufficient contact for a battery. Even though the particles and vapors are invisible, they do interfere with sight and respiration. Such contact would be offensive to a reasonable person, especially when the smoke is deliberately blown into that person's face to cause annoyance. The contact could also be considered harmful because smoke can create a painful reaction, such as burning eyes.
Diane and Elaine would argue that battery should not be extended to include contact with smoke. This extension would make all smokers liable for numerous batteries because it is often substantially certain that second hand smoke will contact, and even annoy, bystanders. When and where people may smoke is already heavily regulated, and adding tort actions to this mix of regulation would not be productive. When nonsmokers enter a smoking area they can avoid unwanted smoke by moving away from offending smokers. This is a better way to accommodate the conflicting interests than to give the nonsmokers a right to sue the smokers.
If Cal's battery theory does not succeed, he could argue that Diane and Elaine were planning to commit the intentional infliction of mental distress tort against Bert. Cal is not likely to succeed here. It is unlikely that a court would find that deliberately blowing smoke in Bert's face was extreme and outrageous conduct (utterly intolerable in a civilized society). This was a common prank; not the kind of conduct that the tort was designed to encompass. Furthermore, Cal would have a difficult time showing that Bert was likely to suffer "severe mental distress" because someone blew smoke in his face.
Even if Cal persuades the court that blowing smoke in Bert's face would have been a tort, Cal will probably not prevail on his defense of others defense. Use of force or confinement is not usually considered reasonable unless the threatened tort is imminent. This is because with future torts there is often time to try less drastic measures prior to resorting to more drastic measures, and it is not reasonable to use more force than necessary to prevent the threatened tort. Diane planned to commit a future tort, and Cal could have tried to change her mind. Even if this was unsuccessful, taking Diane's cigars away from her at the meeting would have been a lesser use of force than confining her in the cloakroom during the meeting. Confining Diane was an unreasonable use of force against a tort that was not yet imminent.
Cal committed a trespass to land by tampering with Acme's door latch. Cal intentionally entered Acme's building (it was his purpose to do so), but he was not initially liable for trespass because he had Acme's consent to enter. Acme's consent was restricted, however, to entering the building for the purpose of conducting normal business activities on the premises. By deliberately tampering with, and breaking, the latch, Cal exceeded the scope of that restricted consent and became a trespasser. Cal is liable to Acme for the damage he caused to the latch. [Note: I gave full credit to people who analyzed this issue as a trespass to chattels (the latch or door) or as a conversion of the latch or door.]
Cal could not assert defense of others in defense against Acme's claim of trespass. Acme was not threatening to commit any tort against Bert. Defense of others is only available against tortfeasors, not bystanders. When Acme learned of the plan to blow smoke in Bert's face, it failed to intervene. To commit the tort of battery or intentional infliction of mental distress, however, there must be an affirmative act.
Cal could assert the defense of private necessity against Acme, claiming that he damaged the latch in order to prevent greater harm to Bert. For reasons stated previously, this argument is not likely to prevail; it is probably not reasonable to use this much present force to prevent a threatened future battery. Even if Cal's argument prevails, the defense will do him no good. Private necessity would not exempt Cal from having to pay for the damage to the latch.
ASL abstract statement of law unrelated to facts
CR can't read (illegible)
DF doesn't follow
EA erroneous analysis
FA failure to answer question
FC failure to state a conclusion
GA good analysis
IA incomplete analysis
ID incomplete definition
IF inventing facts
MA misapplication of rule
MQ misread question
MR misstatement of rule
RF repeating facts unnecessarily
1) Conclusory statement that there is a contact (for purposes of finding a battery) without explaining what the contact was with.
2) Using the wrong remedy for the tort of conversion. (The correct remedy is a forced sale of the chattel. By the way, is this remedy beneficial to Acme?)
3) Defense of others is not available against Acme because it committed no tort against Bert.
4) Concluding that Cal knew with substantial certainty that Diane would be confined without considering the possible ways that Cal's plan could go wrong, e.g., Diane could fall ill or change her mind; Diane could find out about the defective door latch, and avoid the trap, because another employee entered the cloakroom and became trapped before Diane did.
5) Concluding that Cal's conduct was reasonable for purposes of one defense and unreasonable for the purposes of another defense without explaining why the analysis should not be the same for both.
6) Concluding that Cal trespassed to Diane's chattels (the cigars) because Diane could not use them while she was trapped in the cloakroom because of the Acme no smoking policy. There can be no trespass to chattels unless Cal intermeddled with (caused a contact with) the cigars or dispossessed Diane of the cigars.
7) Defense of others. Confusing the question of whether Cal made a mistake of fact (were Diane and Elaine about to batter Bert) with the question of whether Cal made a mistake of judgment (the reasonableness of using present confinement to prevent a future tort). The majority/minority rule split is about the former question, not the latter.
8) Offensive battery requires a touching that offends a reasonable person (as well as being offensive to Bert).