University of Missouri - Columbia

School of Law

Torts § I - Mitchell

 

Mid-Term Examination

Friday, October 6, 2006

9:30 a.m. - 10:45 a.m.

Room 7

Instructions

 

1. You have one hour and fifteen minutes to complete the examination.

 

2. Read the question carefully. Think before you write. Assume that the events took place in an unidentified American state. If you believe that you need to know more information about the question in order to resolve an issue raised by the facts given, tell me what you need to know and how it would affect your analysis. Answer the questions based on the majority rules, and where appropriate the applicable minority rules.

 

3. Do not add facts to create issues not already raised by the facts given. Do not make implicit assumptions. Be sure to address all issues raised by the facts in accord with answering the question, even if you think a single issue is dispositive. Each answer should be self-contained. You should not "incorporate by reference" anything from one answer to another.

 

4. Citing a case that demonstrates the rule is expected. Citing the Restatement Second of Torts is not expected. If you provide an incorrect cite you will lose credit. You do not need to provide the entire citation (e.g. Fisher v. Carrousel Motor Hotel, Inc. can be cited as Fisher).

 

Special Instructions

The mid-term is a closed-book exam. You may use an outline that you prepared in whole or in part. The use of commercial outlines, hornbooks, and any other material is prohibited. You may not consult anyone during the exam. You must turn in the exam at the end of the allotted time whether you have finished it or not.

Hand Written Exams

 

You may use either a pen or a pencil. Please write legibly and on only one side of a bluebook page. Please number your pages and, if you use more than one blue book, please number your bluebooks.

 


Essay

The Facts:

"No more school, no more books, no more teachers, dirty looks!" Alfred and Barbara Smith, age 13 and 11, respectively, and brother and sister, shouted this refrain as they got out for summer vacation on Friday, June 15, 2006. The following day, as has been the routine for the past few summers, their parents packed them up and sent them off to rural Pennsylvania to spend time with their grandparents, Frank and Gertrude ("Gertie") Housman. Even though the farm was not a working farm, some old equipment - a thresher, a tractor, which Frank had sold to his new neighbor Lester Dingle, and a hay bailer - was lying around collecting dust and rusting.


Visiting their grandparents was the highlight of the summer for Alfred and Barbara who loved to fish and swim in the pond, or the "old swimming hole" as it was locally known, on Claus Kringle's ("Old Man Kringle") property, which was adjacent to their grandparents' farm. Sadly, Old Man Kringle died on May 23, 2006. At the funeral, Lester, Old Man Kringle's nephew, told Frank that he had inherited his uncle's property and agreed to buy Frank's tractor. Frank thought Lester was going to use the tractor to turn over the topsoil on his uncle's property, but Lester wanted to use the tractor to put in a Koi (expensive Japanese fish) pond. Three days later, Lester visited Frank, paid for the tractor, and told him that he would have it picked up in two weeks. During a routine inspection of the property, after leaving Frank and Gertie's home that day, Lester discovered the old swimming hole that his uncle had allowed the townsfolk to always use. Having found the swimming hole, Lester decided that he didn't need to make a new Koi pond, but could turn the old swimming hole into one. So, he pulled out his cell phone and ordered the Koi, which cost $50 - $100 each.


The day of the kids' arrival, Gertie made preparations to go into town to pick up her grandchildren from the bus station. On her way out the door at two o'clock, Gertie locked the basement door, believing that Frank was working in the barn, but he was actually asleep in the basement family room. After having picked the kids up, Gertie stopped at the general store on her way home, which also served as the town post office. When Gertie arrived at the store, Barbara immediately got out of the car and ran into the store, bumping into Lester, who was saying, to the folks in the store, "I just ordered some Koi and I'm turning the old swimming hole into a Koi pond. So, you know what that means? No Fishing! No Swimming!" Preoccupied with finding the candy aisle, Barbara didn't hear Lester or notice that he had spilled his coffee. Barbara slipped and fell, banging her head on the counter. Through the window, Alfred had spied Mark Brown, who was commonly known to be the town bully. Alfred decided to stay outside because Mark liked to pick on him and had fought with Alfred in the past. When Alfred saw Barbara fall, he assumed that Mark had pushed his sister down. Alfred ran inside, tackled Mark, and they began to wrestle in the store knocking over a display of drinking glasses near the front door. Mr. Nicholas, the store owner, who was in the rear, heard the commotion, and rushed to the front pushing past the other customers. He yelled at the boys to stop fighting, and told them that he was going to call the police, at which point, he locked the front door.


Grabbing Alfred and Mark by the arm, Mr. Nicholas eventually pulled the boys apart, and the other customers, most of whom had been shopping at the store for years, and shopped at the store on a regular basis, silently crept to the rear, moved the 70 lb. pickle barrel aside, and left through an old rarely used side door. Gertie, locked outside, banged on the door and screamed for Mr. Nicholas to let her in. Mr. Nicholas stood in front of the door and yelled over his shoulder to Gertie, "I'm not letting anyone in or out until the police arrive." Barbara, begging Mr. Nicholas to let her grandmother in, started to cry as Mr. Nicholas yelled at her, "No! Not until the police get here!" Fifteen minutes later, Barney Fife showed up and arrested Mark for destruction of property.


Lester, who luckily had retrieved his fish before the excitement, returned to the pond and put in the Koi that afternoon, erecting a sign that read "Koi Pond: No Fishing." When Alfred and Barbara finally got to their grandparents' house, they changed into their swim trunks and raced off to the pond, running past Lester's sign. They jumped on the old tire swing, and landed in the pond. Alfred called out to Barbara, "I bet I can catch one of those fish." Barbara responded, "I bet you can't." Alfred determined to prove his sister wrong, caught one of the Koi but squeezed a little too hard, killing the fish. Alfred threw the dead fish out of the pond, and continued to swim with his sister. An hour or so later, they got out of the pond and headed home. Upon arriving at their grandparents' house, their grandmother was asleep upstairs and they heard someone banging on the basement door. Much to their surprise, they opened the door to find their grandfather at the top of the basement stairs. The kids let him out, and Gertie, Frank, Alfred and Barbara all had a good laugh over dinner later that night about their grandfather being locked in the basement. As Alfred and Barbara drifted off to sleep, they could only hope that the rest of their summer break was as exciting as the first day.


Questions:

1. What are the causes of action that Alfred can bring and their likelihood of success?

 

2. What are the causes of action that can be brought against Alfred and their likelihood of success?