University of Missouri-Columbia

School of Law

Torts 1

Analysis of Mid-Term Examination

October 15, 2003 Mr. Fischer

Please use the attached items as an aid in analyzing your performance on the torts examination question: 

Essay question

Sample answer for essay question

Explanation of grading marks

Common Errors

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 expressly state or fairly imply, 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. 

Essay Question

On a Friday morning Joe Owner left his car and ignition key with Acme Auto Company so that it could perform some free servicing under the car's warranty. The service manager told Joe that the car would be ready to be picked up late that afternoon.

Joe had previously accepted an invitation to a costume party to be held that Friday evening. Joe decided to put on his disguise for the party late in the afternoon, take a cab to Acme to pick up the car, and drive directly to the party from the dealership. That afternoon Joe prepared himself for the costume party by disguising himself to look like Bugsy Jones, an amusing local citizen who was well known in the community as a petty thief. Joe got the idea for the disguise because he had recently seen Bugsy's picture in the local newspaper as part of a story about Bugsy's recent release from the county jail.

Upon arriving at Acme Auto in his disguise, Joe told the repair department clerk that he was Joe Owner, and that he wanted to pick up his car. He asked the clerk to give him the ignition key and inform him of the location of the car on Acme's parking lot. The clerk, having also recently seen Bugsy's picture in the paper, believed that the customer she was talking to was really Bugsy and not Joe. The clerk suspected that the customer (who she believed to be Bugsy) was claiming to be Joe Owner in order to obtain the ignition key so that he could steal Joe's car.

Unsure of what to do, the clerk decided to stall for time so that she could consult with Acme's manager. She falsely told the customer that the key was missing and that she would have to locate it. She invited the customer to wait in the customer waiting room while she searched for the key. The clerk showed the customer to the room and opened the door for him. After Joe entered the room, the clerk closed the door, locked it quietly from the outside, and hurried off to find the manager. The clerk thought that locking the door would prevent the customer from leaving the room because it was the only door to the room. She knew that the room had several windows, but the room was on the second floor of the building. The clerk believed that the customer could not leave the room through a window because the windows were too high off the ground to permit a person to safely jump to the ground. The clerk intended to keep the customer in the room for only the short time that it would take for her to consult with the manager and decide on a course of action such as letting him go or holding him for the police, etc. Because she locked the door quietly, she believed that she and the manager would return and unlock the door before the customer even discovered that he was locked in.

While the clerk was consulting with the manager, Joe tried to open the door and discovered that he was locked in. He also tried to open the windows, but found that they were nailed shut. Realizing that he was trapped in the room, and having no way to communicate with the outside world, he used a chair to break out one of the windows in order to escape. He saw a car, owned by Cathy Car, parked next to the building below the window. Joe jumped out of the window onto the roof of the car, rather than onto the pavement on the other side of the car, because he knew that the car roof would partially collapse and this would help break his fall. The force of the impact damaged the roof of the car, and also injured Joe's ankle.

When the manager and clerk arrived on the scene, Joe persuaded them of his true identity by removing his disguise and producing identification.

What are Joe's rights and liabilities, with respect to both Acme and Cathy Car, arising out of this incident? Fully discuss the reasons for your conclusions. You may assume that Acme is responsible for the actions of all of its employees, including the repair department clerk.

Sample Answer

Joe can claim that Acme converted his car when the clerk refused to give Joe the keys after Joe asked for them. Joe consented to Acme's possession of the car so that Acme could repair it. Once Acme completed the repair, and Joe asked for the car back, Joe's consent terminated. Acme had no right to withhold possession from Joe. By refusing to give Joe the car keys, the clerk intentionally exercised dominion over the car in a way that interfered with Joe's right to control the car. Acme is liable for conversion if its interference with Joe's rights was so serious as to justify the extreme remedy of requiring Acme to buy the car by paying Joe the full value of the car. Joe will argue that a conversion occurred because the clerk's refusal to return the car led to Joe's confinement and escape, and this caused him considerable inconvenience and expense. Furthermore, a good faith mistake as to Joe's identity is not a defense.

Acme will argue that it should not be liable for conversion because the clerk had a good faith belief that the person demanding possession was a thief who intended to steal the car form Joe. Thus, she did not intend to act in a way that was inconsistent with Joe's rights. Rather, she was trying to protect Joe's rights. Furthermore, the car was not damaged, and it was withheld from Joe for only a short time. Also, while mistake is usually no defense, it ought to be in this case because Joe negligently induced the mistake by disguising himself as a well-known thief and failing to explain his disguise to the clerk. In light of the recent newspaper article and photo, Joe could anticipate that the clerk would believe that she was dealing with Bugsy. I believe that a court will find Acme's arguments most persuasive, and find that there was no conversion.

The clerk clearly falsely imprisoned Joe. She locked the door for the purpose of confining him to the room. She knew that he would be confined because the only way out of the room was through windows that were too high off the ground to permit a reasonable escape. Joe learned of his confinement when he tried to open the door and found it to be locked.

Acme is liable to Joe for the false imprisonment because the clerk was not privileged to confine Joe. Acme could assert that the clerk was privileged to confine Joe in order to defend Joe's property because the clerk reasonably believed that Joe was the thief Bugsy. Acme would assert-as above-that the clerk's mistake was excused because Joe negligently induced the mistake. Acme would lose this argument. Even if the mistake is excused, the clerk used more force than was necessary. Rather than immediately confining the "customer", she could have simply asked for identification. Even if the customer turned out to be the real Bugsy, and refused to give identification, the clerk did not need to confine Bugsy to protect Joe's car. She could have protected the car by simply refusing to give the key to the Bugsy. The facts do not suggest any other basis for confining Joe. There is no indication that the clerk was acting in self-defense because she felt physically threatened by the customer.

Acme may be liable for Joe's broken ankle because this injury resulted from Joe's escape from confinement. Acme can avoid liability for the injury if it persuades the jury that Joe's escape attempt was unreasonable. Acme can argue that it was unreasonable for Joe to immediately break the window and jump out because the confinement did not pose an apparent risk of harm to Joe. For all Joe knew, he had simply been locked in the room by accident, and the clerk would let him out when she returned shortly. Joe could have simply waited until the clerk returned. He would then have discovered the clerk's mistake about Joe's identity, and Joe would have obtained his release by properly identifying himself.

Joe would argue he was reasonable in escaping immediately. He knew for certain that he was improperly confined, and he had no way of knowing whether the clerk would return. Because the business week was coming to a close, he was at risk of spending the weekend locked in the waiting room. He was justified in escaping immediately. If he waited any longer, Cathy might have moved her car, and this would have made the escape even more dangerous than it was.

I believe that a court would decide for Acme on this point, and deny recovery for Joe's broken ankle. Joe's drastic escape would have been justified only after a sufficient lapse of time to justify the belief that Joe was at risk of being locked in the room for a substantial time.

Joe will probably be liable to Acme for damaging its window. The building, including the window, is a fixture on Acme's land. Joe had Acme's consent to be in the building, but not to break the window. When Joe broke the window, he exceeded the scope of consent, and he became a trespasser to land. This makes him liable for the damage he caused in the course of his trespass. Alternatively, Joe is liable to Acme on a trespass to chattels theory. Joe deliberately intermeddled with (touched) the chair and caused harm to Acme's window (a thing in which Acme has a legally protected interest).

Joe will argue that he had a privilege to break the window because Acme had falsely imprisoned him, and he was entitled to use force against Acme, or Acme's property, to end this imprisonment. Clearly, if the clerk tried to physically force Joe to enter the room, Joe would have been privileged to use force in self-defense to prevent this. Joe will argue that the same policies underlying self-defense require that he be given a privilege to use reasonable force to break out of his prison once he discovered his confinement. Fairness requires that, unlike the defense of private necessity, this should be a complete privilege. Acme, rather than Joe, should bear reasonable escape costs necessitated by Acme's improper confinement of an innocent person. I believe that a court would recognize such a defense, but the defense will probably not help Joe. The validity of this defense would depend on the reasonableness of Joe's escape attempt. As discussed above, I believe that a court would rule that his precipitous use of force was unjustified in this case.

Joe is liable to Cathy Car for the damage to her chattel, the car. Joe deliberately jumped on (intermeddled with) the car, and his conduct damaged the car's roof. Joe must pay for this damage. Joe will argue that he had the privilege of private necessity to trespass to the car because damaging the car was reasonable. Joe's interest in freedom from confinement outweighed the harm done to Cathy's car. For the reasons discussed above, I believe that a court would rule that Joe's precipitous use of force was not reasonable in this case. Even if the court rules in Joe's favor, however, this defense will do him no good. Under the defense of private necessity, Joe would have to pay for Cathy's damages even if the privilege is valid.

Explanation of Grading Marks


ASL abstract statement of law unrelated to facts

CF confused

CN conclusory

CON contradictory

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

IR irrelevant

MA misapplication of rule

MQ misread question

MR misstatement of rule

RF repeating facts unnecessarily

Common Errors

1) Stating that Acme is Liable to Joe for False Imprisonment on a transferred intent theory, i.e., the intent to confine Bugsy transfers to Joe. Since Acme confined the person it intended to confine, it is liable without relying on the fiction of transferred intent. The law does not require Acme to know the identity of the person it confines.

2) Stating that Acme can use the Merchant's Privilege to detain Joe. Joe had not taken any property from Acme. Section 120A of the Second Restatement of Torts only confers a privilege when the merchant "reasonably believed that the plaintiff had unlawfully taken goods held for sale."

3) Stating that the clerk "intermeddled" with the car or the key by refusing to give the key to Joe. An intermeddling requires a touching.

4) The lack of a reasonable means of escape means that any escape attempt is unreasonable.

5) Asserting that Acme could confine Joe in defense of property (the car) without explaining why confinement was reasonably necessary to protect the car.

Raw Points