All academic endeavors of the students of the University of Kentucky College of Law are governed by the Honor Code. The Honor Code prohibits lying, cheating, stealing, and interference with academic pursuits. Additionally, the Honor Code places on all law students an affirmative duty to report a breach of the Code. A failure to report is itself a violation of the Honor Code. In turning in this exam, I hereby pledge on my honor as a student that I have neither given nor received any unauthorized aid on this exam.
Assume a jurisdiction in which a judgment against one tort defendant will not necessarily reduce the amount of judgment that can be obtained against another defendant for the same injury. Otherwise, if your answer to a question depends on which rule to apply when there is a division among U.S. jurisdictions, explain the difference in your answer.
If you have ever been told that your handwriting is difficult to read, please double-space. Read the questions carefully and answer what is asked as thoroughly as possible, but only what is asked. Learned discussion of irrelevant issues will not improve your grade. Of course if your resolution of one issue disposes of a question presented, this should not preclude alternative discussion of other issues presented by the question.
Be sure your response to each question contains an answer to the question asked.
Do the best you can within the time allotted, and try not to get behind.
This is a closed book exam.
Tom Ancy (A) is a famous novelist who wrote a best-selling Cold War action novel called, The Stunt for Red December. The book was made into a movie, starring--among others--Cat as the Russian spy, Dab as an American politician, and Evi as Dab's unfaithful spouse. In one scene both the Russian spy (played by Cat) and the unfaithful spouse (played by Evi) are each supposed to put poison in a cup of coffee prepared for the American politician (played by Dab). The politician then "dies" instantly from the double dose. Of course something harmless like powdered cream is supposed to be used on the movie set instead of poison.
Fob, the prop man on the set, carelessly filled the movie set "poison" bottles with--instead of powdered cream--a strong cleanser used to clean movie equipment. The cleanser had been stored carefully on the set.
Cat by chance saw Fob make the mistake, but decided to act dumb, "in order to see how Dab would react." Cat thought that at most the cleanser would cause Dab to choke, cough, and sputter a little. Cat also thought that Evi's bottle still had powdered cream in it. Evi reasonably assumed that Evi's bottle was filled with powdered cream.
When the filming of the scene started, Cat spooned the "poison" into the coffee (and exited to the left). Evi did the same thing with Evi's "poison" and handed the cup to Dab, who smiled and drank some. Instead of falling over dramatically, Dab choked and spat the coffee out all over the set. The director said, "Cut!"
Unknown to anyone, Dab has a very sensitive stomach. As a result of drinking the polluted coffee, Dab had to be operated upon, and can now only eat baby food. Either of the two doses of the cleanser would alone have been sufficient to cause the same result.
For each of the following cases, should Dab recover? Explain, and deal with likely counter arguments.
Geri and Geri's children lived in a nice home in a dangerous neighborhood. All the downstairs windows had bars on them. The house fronted on a city street.
Geri decided to go to France on vacation for two weeks while the children were visiting Geri's ex-spouse. Geri gave the house key to Geri's neighbor, Hari, to pick up the newspapers delivered each morning and put them in Geri's house, and to make sure that the front door was locked. Geri also gave a key to Ian, a teenager who lived down the street, so that Ian could come and feed Geri's cat. Geri told Hari that Ian had a key to feed the cat, and Geri told Ian that Hari had a key to bring in the newspapers. Geri did not know that during the last Halloween Hari had seen Ian destroy Hari's outdoor pumpkin jack-o-lanterns.
For a few days the newspapers were taken in and the cat was fed with no problem. On the fourth morning Ian took his younger (8-year-old) friend Jym along with him to Geri's house to feed the cat before going to school. Ian left the key in the unlocked front door while feeding the cat. Just then Hari arrived to bring in the newspapers. Seeing the key left by Ian, Hari realized that Ian was in the house feeding the cat. "I'll teach that vandal Ian a lesson," thought Hari, who first put the morning papers in the door, then locked the front door deadbolt lock in a way that the door could not be opened from the inside without a key. Hari left with both keys.
Ian spent two hours trying to figure out how to get out. The telephone had been disconnected. In trying to get out, Ian broke several windows, causing $1000 worth of damage to Geri's home. Jym decided to relax and watch a video. In doing so Jym managed accidentally to break the video machine, which was expensive, in a way that rendered it irreparable. Ian and Jym both missed their school bus. The school principal called Jym's parent Kel and asked why Jym had not shown up for the field trip that day. When Kel heard that Jym had not arrived safely at school, Kel's fragile nervous state was shattered with fear for the child's safety. Kel had seizures and required hospitalization.
After two hours, Hari returned to open the front door. Ian and Jym went home and were soon able to get rides to school.
For each of the following separate suits, what are the most likely cause or causes of action to be asserted? Are there grounds for recovery? What are the arguments pro and con?
Mac was a licensed medical doctor. He prescribed a prescription drug, Morewx, to Newt. Newt had asked for medicine for his back pain. As the pharmacist had later carefully explained to Newt, Morewx causes hallucinations in one out of 50,000 people, but it can relieve certain kinds of back pain. In a second-floor hotel room nearby, Newt took the medicine. Because of the medicine, Newt soon had a hallucination that the hotel room was entirely on fire. (The room was not on fire.) Newt ran to an open window and jumped out. In the garden below Obi was showing a valuable diamond to his fiancée. Newt fell right between the two lovers, and the diamond was irretrievably lost. The diamond was worth $80,000.
Assume that the highest court in the jurisdiction decided the case of M v. A twenty years ago. The case is reproduced below.
Obi sues Newt for the value of the diamond. Newt moves to dismiss the case on the grounds that the facts as alleged in the first paragraph of this question do not support liability on the part of Newt. (1) What result? Explain. How should each side argue? Your discussion should include each side's treatment of M v. A.
Now assume instead that Obi sues Mac for the value of the diamond. Obi's lawyer has presented evidence to show all of the facts in the first paragraph of this problem. Assume there is no available witness who will contradict, question, or deny any of those facts.
(2) Would you nonetheless advise Obi's lawyer that it is necessary to put another witness on the stand? What question should that witness be asked? Explain.
(3) Assume that any needed additional witness testifies (but not contrary to the facts in the first paragraph). Can Mac still argue that the jury should be directed to find for defendant? Explain. Deal with counter arguments.
This is an action of tort for assault and battery. The only question of law reported is whether the judge should have directed a verdict for the defendant.
The following facts are established by the plaintiff's own evidence: In August, 1930, the plaintiff was employed to take care of the defendant. The plaintiff was a registered nurse and was a graduate of a training school for nurses. The defendant was an insane person. Before the plaintiff was hired she learned that the defendant was a 'mental case and was in good physical condition,' and that for some time two nurses had been taking care of her. The plaintiff was on '24 hour duty.' The plaintiff slept in the room next to the defendant's room. Except when the plaintiff was with the defendant, the plaintiff kept the defendant locked in the defendant's room.
On April 19, 1932, the defendant, while locked in her room, had a violent attack. The plaintiff heard a crashing of furniture and then knew that the defendant was ugly, violent and dangerous. The defendant told the plaintiff and a Miss Maroney, 'the maid,' who was with the plaintiff in the adjoining room, that if they came into the defendant's room, she would kill them. The plaintiff and Miss Maroney looked into the defendant's room, 'saw what the defendant had done,' and 'thought it best to take the broken stuff away before she did any harm to herself with it.' They sent for a Mr. Emerton, the defendant's brother-in-law. When he arrived the defendant was in the middle of her room about ten feet from the door, holding upraised the leg of a low-boy as if she were going to strike. The plaintiff stepped into the room and walked toward the defendant, while Mr. Emerton and Miss Maroney remained in the doorway. As the plaintiff approached the defendant and tried to take hold of the defendant's hand which held the leg, the defendant struck the plaintiff's head with it, causing the injuries for which the action was brought.
The extent to which an insane person is liable for torts has not been fully defined in Tortucky. Turning to authorities elsewhere, we find that courts in this country almost invariably say in the broadest terms that an insane person is liable for his torts. As a rule no distinction is made between those torts which would ordinarily be classed as intentional and those which would ordinarily be classed as negligent, nor do the courts discuss the effect of different kinds of insanity or of varying degrees of capacity as bearing upon the ability of the defendant to understand the particular act in question or to make a reasoned decision with respect to it, although it is sometimes said that an insane person is not liable for torts requiring malice of which he is incapable. Defamation and malicious prosecution are the torts more commonly mentioned in this connection. These decisions are rested more upon grounds of public policy and upon what might be called a popular view of the requirements of essential justice than upon any attempt to apply logically the underlying principles of civil liability to the special instance of the mentally deranged. Thus it is said that a rule imposing liability tends to make more watchful those persons who have charge of the defendant and who may be supposed to have some interest in preserving his property; that as an insane person must pay for his support, if he is financially able, so he ought also to pay for the damage which he does; that an insane person with abundant wealth ought not to continue in unimpaired enjoyment of the comfort which it brings while his victim bears the burden unaided; and there is also a suggestion that courts are loath to introduce into the great body of civil litigation the difficulties in determining mental capacity which it has been found impossible to avoid in the criminal field.
The rule established in these cases has been criticized severely by certain eminent text writers both in this country and in England, principally on the ground that it is an archaic survival of the rigid and formal mediaeval conception of liability for acts done, without regard to fault, as opposed to what is said to be the general modern theory that liability in tort should rest upon fault. Notwithstanding these criticisms, we think that as a practical matter, there is strong force in the reasons underlying these decisions. They are consistent with the general statements found in the cases dealing with the liability of infants for torts, including a few cases in which the child was so young as to render his capacity for fault comparable to that of many insane persons. Fault is by no means at the present day a universal prerequisite to liability, and the theory that it should be such has been obliged very recently to yield at several points to what have been thought to be paramount considerations of public good. Finally, it would be difficult not to recognize the persuasive weight of so much authority so widely extended.
But the present occasion does not require us either to accept or to reject the prevailing doctrine in its entirety. For this case it is enough to say that where an insane person by his act does intentional damage to the person or property of another he is liable for that damage in the same circumstances in which a normal person would be liable. This means that in so far as a particular intent would be necessary in order to render a normal person liable, the insane person, in order to be liable, must have been capable of entertaining that same intent and must have entertained it in fact. But the law will not inquire further into his peculiar mental condition with a view to excusing him if it should appear that delusion or other consequence of his affliction has caused him to entertain that intent or that a normal person would not have entertained it.
We do not suggest that this is necessarily a logical stopping point. If public policy demands that a mentally affected person be subjected to the external standard for intentional wrongs, it may well be that public policy also demands that he should be subjected to the external standard for wrongs which are commonly classified as negligent, in accordance with what now seems to be the prevailing view. We stop here for the present, because we are not required to go further in order to decide this case. Coming now to the application of the rule to the facts of this case, it is apparent that the jury could find that the defendant was capable of entertaining and that she did entertain an intent to strike and to injure the plaintiff and that she acted upon that intent. We think this was enough. Judgment for the plaintiff on the verdict.