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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.
UNIVERSITY OF MISSOURI-KANSAS CITY
SCHOOL OF LAW
Privacy, Relational & Emotional Torts
Winter Semester, 1999
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.
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.
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
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.
Please write legibly, because I can only give credit if I understand
what you write.
can also only give credit for answers that are written in the bluebook.
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.
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.
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!
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. §
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.
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
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
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?”
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?