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It is understood by the student whose Student Number is entered below that this examination is given and the student's response is made and submitted pursuant to the conditions of the Honor Code.

  Student Exam No. ______________

 

UNIVERSITY OF MISSOURI-KANSAS CITY

SCHOOL OF LAW

 

Law #513                                                                                         Professor Levit

Defamation, Privacy, Relational & Emotional Torts                Winter Semester, 1999

 

FINAL EXAMINATION

     (3 hours)   

 

Materials that may be used during examination: You may use your casebook, any supplementary materials handed out for class, and any outlines or notes you yourself have prepared, in whole or in part.  You may not use commercially prepared outlines or hornbooks. 

 

     Instructions

 

1.  Read each question carefully and pay close attention to the facts and to what the question is asking you to do.  Discuss all issues presented by a question. Remember to argue issues both ways.  Do not engage in a discussion of issues not raised.

 

2.  I have included all of the facts I think you will need to answer the questions.  If a necessary fact is missing, please identify it in your answer and explain how it affects your conclusion.

 

3.  Nothing is intentionally ambiguous.  If anything about a question appears to be ambiguous, decide what you think is meant, tell me what you think is meant, and answer the question accordingly.  No reasonable resolution of an ambiguity will be penalized.

 

4.  Please write legibly, because I can only give credit if I understand what you write.

I can also only give credit for answers that are written in the bluebook.

 

5. Think before you write.  Organize your answer.  You get extra points for clarity and succinctness.  You are penalized for an answer which is disorganized and confusing.

 

6. Unless otherwise specified, the applicable law is the law of this State, the State of Nirvana, which consists of all cases in your casebook and any cases discussed in class.

 

7. This exam consists of 14 pages.  TURN IN THIS EXAMINATION WITH YOUR BLUE BOOKS.  It is an Honor Code Violation to fail to turn in the examination itself. Good luck!


Multiple Choice

     (30%)

 

                                                 Question 1

                                                   (40%)

 

On September 3, 1998, a fire started in a hydraulic line near a deep fat fryer in the Imperial Foods Products chicken plant in Nirvana.  The fire spread rapidly through the plant, badly injuring Roger Roe, an employee who could not escape the plant or the fire because the exits in the plant were unmarked, blocked, and inaccessible.  After the fire the Nirvana Department of Occupational Safety and Health (DOSH) conducted its first and only inspection in the plant’s eleven year history.  As a result of this inspection, DOSH discovered numerous violations of the state’s Occupational Safety and Health Act, including the plant’s inadequate and blocked exits and inadequate fire suppression system.

The previous owner of Imperial Foods had contracted with Safe Security Systems (“Safe”) for a combined fire and security alarm system and monitoring.  Edwin Hatter, who purchased Imperial Foods in January of 1998, thought that the contract extended through December 1998, but it actually expired in June of 1998.  Safe sent a notice of billing and a contract for renewal in May of 1998, but a secretary misplaced the mailing and Hatter never saw it.  Although Safe closed the account, the fire and security alarm equipment was not removed because Safe didn’t get around to it. 

The fire and security system included a button near Hatter’s desk, which he activated during the fire.  Since the security system remained, Safe received a signal from the alarm and one of their alarm monitors, Sam Sessions, telephoned Imperial Foods.  Hatter answered the phone and said, “There’s a fire here. Do something!”  “Okay, okay, calm down, sir,” replied Sam, “Hold on while I check your location.”  As Sam began to check the computer records, because Imperial Foods’ location was not automatically showing on his screen, Hatter said, “I can’t hold on. I’m in a burning building!”  Hatter hung up the phone and rushed out of the building, assuming that Safe would call the fire department. 

 

After determining the account was closed and was labeled “disregard signals,” Sam went to his boss to ask what to do.  The boss was in a meeting, so Sam, a new employee, waited a few minutes, then interrupted the meeting.  When Sam explained the problem, his boss said, “Figure out the location and call the fire department, Sam.  I don’t care if the account is closed.  That’s what we would do anyway.”

Nirvana has a state Tort Claims Act which provides that the State is liable  “under circumstances where it, if a private person, would be liable to the claimant under the laws of Nirvana. Nirv. Gen. Stat. § 143.   Under the Tort Claims Act, damages are capped  at $50,000 per occurrence. Nirv. Gen. Stat. § 147.  In passing the Tort Claims Act, the legislature incorporated the common law of negligence and immunities.


The state OSHA standards provide that the Division of Occupational Safety and Health (DOSH)  is “charged with the duty to visit and inspect, at reasonable hours, as often as practicable, all of the factories, mercantile establishments, mills, workshops, public eating places, and commercial institutions in the state.”  Nirv. Gen. Stat. § 95-4.    The statute itself provides that it “creates no private cause of action for individual claimants” for violation of OSHA standards. Nirv. Gen. Stat. § 95-6.

 

Using the tort principles we discussed this semester, please evaluate (give both plaintiff’s and defendant’s arguments) for all possible torts and defenses that plaintiff Roger Roe might have against any named parties or entities only. Please do not address the liability of any person or entity who has not been named. Please do not consider the claims of any possible plaintiffs except Roger Roe. Also, please do not address any workers compensation issues.

 

                                                       Question 2

                                                         (30%)

 

In the spring of 1998, Harley Hoppe, then King County Tax Assessor, was embroiled  in controversy over having hired private detectives to trail a deputy assessor  who had publicly charged Hoppe's office with wrongful assessment practices.  At  the time, it was revealed that Hoppe had secretly monitored county employees on  other occasions.  Local newspapers published  articles about the  private detective incident and, although the state attorney general's office upheld the legality of the practice, sharply criticized Hoppe in editorials and  political cartoons.  In the midst of the controversy surrounding Hoppe, the Nirvana Post-Intelligencer published a column  by Emmett Watson, a columnist known for his sharp pen and humorous, fanciful columns.  In his columns, Watson frequently uses alliterations and nicknames to refer to local and national politicians, civic leaders, and entertainers, such as calling Governor Spellman “Governor Spellbound” and President Clinton “President Popular.”

Written in the form of a first‑person narrative by "Philip  Marlowe," the column parodied Raymond Chandler's detective novels. Watson’s picture and by-line accompanied the column, which was set off from the rest of the page by a black outline.  In Watson's  column, Chandler's fictional private detective, Marlowe, was visited by an  unsavory character who offered Marlowe $1,000 to follow county employees for  "da boss," the county assessor, "Hurley Herpes.” In one of the most pertinent parts of the column, Marlowe wondered where the money to hire private  investigators came from: "Don't tell me where he gets the money," I said.  "I bet he hits the race tracks every day. Or maybe he just kind of ups a property assessment  here and there and some of the money drips over into the Private Eye Benevolent  Fund."  In another portion of the column, the unsavory visitor asks Marlowe, “I know yer not a lawyer, but you been around. Gimme your best gut instinct on this: if my boss has taken a payoff or two to not raise assessments, but most of that money has gone back to the general funds, he’s okay, right?”

            Later that year, Hoppe lost his post in a hotly contested  election.   Hoppe has come to your office.  He wants to sue Watson and the Nirvana Post-Intelligencer. What theories might he use (use only tort principles that we discussed this semester)?  What defenses would be raised?  Will you take the case?                                                                                

 

 THE END                              

 

 

 

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