Final Examination

Torts II

Gallagher

Spring 2006

1. You have three (3) hours to complete this exam.

2. This is a closed book exam.

3. This exam consists of three parts, worth a total of 300 points.

Part I consists of two (2) essay questions. Essay Question #1 is worth 100 points. Essay Question #2 is worth 100 points. Please allocate your time accordingly. Please write your response in the blue books provided, or type your response. Please write clearly. Write on every other line and every other page to permit instructor comments, if you are handwriting your exam.

Part II consists of 25 multiple-choice questions. Part II is worth 100 points. Please allocate your time accordingly. Please mark your responses to the multiple choice questions on the separate “ParSCORE TEST FORM” using pen or pencil and following the instructions on that form. If you change your answer, place a clear X through the wrong answer and mark the correct answer. A machine will score the exam and any ambiguities will be counted as a wrong answer.

4. Write your exam number on your exam envelope. Put your correct class section and exam # at the top of this page, each page of questions, each blue book, and the “ParSCORE TEST FORM.” Do not use your name, student ID number or Social Security Number on any exam materials.

5. At the conclusion of the exam, return all test materials, including blue books, ParScore answer sheet, scratch paper, and this exam packet to the envelope and submit it to the proctor. DO NOT seal the envelope. Students who do not return all exam materials at the end of the exam may not be graded.

GOOD LUCK!

PART I

ESSAY #1

(Suggested time: One hour)

Alvin Dorsey rents a studio apartment at Creekside Arms, a large complex located in Junction City that is owned by Owen Paticon. Last week, Paticon changed the tenant parking rules to provide that spaces closest to the building would now be reserved for tenants of two-bedroom apartments. Greatly upset, Dorsey complained to Paticon that he would now have to park several hundred feet away, which was unfair and inconvenient. Paticon responded that tenants were only guaranteed a parking space, and that he could decide how these spaces were allocated. Paticon also told Dorsey that if he did not like the new arrangement he could either rent a more expensive two-bedroom apartment or move. Dorsey screamed at Paticon, “I’ll get you for this!” and left the office.

Furious, Dorsey went to City Hall and researched the records of the Junction City Housing Commission. He discovered that in the past two years the Commission had sent three warning notices to Paticon for Housing Code violations for (1) inadequate locks on the garbage facility, (2) dim lighting in one section of the parking lot, and (3) lack of adequate handrails for people with disabilities at a back entrance to the apartment building. Each time the Commission issued its warning notices, Paticon quickly made the necessary repairs and the matter went no further.

Leaving City Hall, Dorsey saw a large group of people picketing outside Mountain Estates, another large apartment building. The 100 or more people were carrying signs that read “Rent Strike against Unhealthy Conditions.” Several blocks away, another large group had gathered in front of Valley View Apartments. The crowd was chanting “Throw the Slum-Lord Out!!” Dorsey was pleased to see that tenant action was spreading across the Junction City tenant public.

Dorsey then went to a self-service copy and printing store and designed a one-page flier with the following text:

DON’T LET CRIMINALS ROAM FREE!!!

Do you think you’re safe in your apartment? Don’t bet on it!! None of us is safe if the building locks don’t work or if robbers, rapists and murderers stalk our darkened parking lot!

But let’s focus on the REAL CRIMINAL here!! It shouldn’t come as a surprise to you that the courts of justice have been after a PATICular OWNEr of our building for shameful acts concerning your safety. Refuse to pay your rent until the law has brought him to justice and punishes him. Power to the Tenants!

Dorsey made 300 copies of the flier and secured them with a thin rubber band. He intended to distribute the flyers to the other tenants at Creekside Arms. By total chance, on his way from the copy/printing store he met Paticon. Surprising Dorsey, Paticon stated, “I’ve been thinking about what you said, and it makes sense.” Paticon then agreed to cancel the new parking arrangement and Dorsey apologized for having threatened Paticon. The two men shook hands and parted. Dorsey felt embarrassed about the fliers, which he had purposely hidden from Paticon.

Dorsey intended to destroy the 300 fliers now that Paticon had relented on the parking policy. However, before he could do so, Dorsey was hit from behind by a teenager riding a skateboard. Dorsey was knocked to the ground and the fliers flew out of his hands as the thin rubber band broke. A gust of wind then scattered the fliers all over the grounds of Creekside Arms. Many of the fliers were read by Creekside Arms tenants. As a result of reading the flier, 3 Creekside Arms tenants have not paid their rent.

Assume that all of the above can be proved by credible evidence. Please discuss the issues that will be involved should Patico sue Dorsey for defamation, including the likely outcome.

END OF ESSAY #1
ESSAY #2

(Suggested time: One hour)

Health-Nuts is a company that manufactures and sells a variety of “natural” health products through independent retailers. One of their biggest selling products is an herbal remedy for weight loss, called “Slim-Eaze”. Health-Nuts advertises Slim-Eaze in print ads as an “all natural, effective, fast, and safe means of losing weight—the best natural weight loss product available without prescription”. Based on studies that it has carried out over several years, Health-Nuts is aware that, on rare occasions, use of Slim-Eaze will cause serious kidney damage. Health-Nuts has not issued any warnings regarding this remote potential for kidney damage associated with the use of Slim-Eaze.

Sarah recently decided to lose weight, saw the advertisement for Slim-Eaze, and went to her local health food store to check the product out. While there, she asked the store owner whether he had heard anything about Slim-Eaze. The owner, Jim, stated that the store had been selling Slim-Eaze for over a year and that it was “the best known non-prescription and all natural product for weight loss available”. Jim knew that a small number of people had suffered kidney damage from using Slim-Eaze, but he did not tell Sarah this information because he believed that no other product worked as well as Slim-Eaze. Sarah would not have purchased or used Slim-Eaze if she had known of the risk of kidney damage.

Within a week of beginning to use Slim-Eaze as directed, Sarah suffered the first signs of kidney damage. The doctors treating her believed that much greater damage to Sarah’s kidney, including kidney failure, could be avoided with immediate dialysis treatment. Sarah refused, however, because her religious beliefs did not permit her to use “artificial” healing techniques such as dialysis. Because Sarah did not undergo dialysis treatment, one of her kidneys failed completely.

Sarah wishes to file a tort action against both Heath-Nuts and Jim. Discuss all potential causes of action she might bring against these parties, and analyze the likely success of each cause of action.

END OF ESSAY #2

END OF PART I