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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 #512C Professor
Torts II Winter Semester, 1996
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.
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. The applicable
law is the law of this State, the State of Elation, which consists of all
cases in your casebook and any cases discussed in class.
7. This exam
consists of 4 pages. TURN IN
THIS EXAMINATION WITH YOUR BLUE BOOKS.
Ace Acton has worked as an investment advisor for the “Big Seven”
accounting firm of Earnest & Younger for five years. He has an MBA, has
passed the Uniform Certified Public Accountant’s Exam, and is a member of
the American Institute of Certified Public Accountants. Among the 100 or so
individual accounts that Action supervised were those of clients, Catherine
(“Cat”) Ballou and Kennedy (“Kid”) Shalleen.
Ballou is an elderly woman, who used to train and show horses. She has
suffered for years from a degenerative kidney disease.
Shalleen is a high strung, sensitive young man who engages in some
obsessive behaviors such as frequent handwashing and counting the number of
steps he takes when walking anywhere. Acton and Shalleen went to college
together, so Acton has seen Shalleen exhibit these bizarre behaviors.
Acton even knows about the time Shalleen “went off” and
spray-painted the walls of the dormitory because the cleaning people had
forgotten to change his sheets.
By written agreement signed by each of these two clients, Earnest &
Younger was given full discretionary authority over all investment decisions
regarding the clients’ accounts. With
respect to each of these clients’ accounts, Acton was supposed to make
sensible investment decisions in accordance with the individual client’s
stated objective and assure that all payments required by governmental
agencies were properly computed and paid.
On the investment goals line of the agreement,
Ballou indicated a desire for protection of her principal with secure,
stable investments, while Shalleen stated that he wanted “the best possible
return” on his investments.
Interested in obtaining a larger commission on his accounts, and in the
hopes of significant profits for himself and his clients, Acton “borrowed”
the entire $500,000 that was in Ballou’s account to invest for himself in a
get-rich-quick scheme, intending to repay it immediately with a profit to her.
Before taking this action, Acton went out to lunch with his senior
partner, Simon Perry, whose bonuses depend on the account activity and profits
of the junior partners he supervises. During lunch Acton told Perry what he
planned to do. Perry did not say
much during the conversation other than “Be careful, now. Don’t do
anything illegal.” Unfortunately,
the scheme was a bust, and Acton lost all of Ballou’s money, wiping out her
entire life savings. She is now
struggling to pay her portion of the insurance co-payment for
kidney dialysis and thinks that even if a matching kidney is found for
organ donation, she will be unable to afford the surgery.
Regarding Shalleen’s account, Acton invested in some risky investments
and placed much of Shalleen’s money in a somewhat shady lending company.
Shalleen has not lost a dime, but his accounts have been changed from standard
stock and mutual funds investments to a portfolio of loans. When Shalleen received his account activity report, he called
Acton and angrily informed him that he could not stand the possibility of a
bad return. Acton reminded
Shalleen that he wanted the “best possible return.”
“How can it be the best possible return if I stand to lose
everything?” Shalleen yelled. As
a result, Shalleen has become emotionally
incapable of dealing with money. He
breaks out in a sweat when he has to make change or put coins in parking
meters. Three weeks after receiving his account activity report, Shalleen
brings a gun to the office of Earnest & Young and shoots a secretary,
Zachary Terry, seriously injuring him. Terry
was going to be married the next day to his fiancé of seven years, Feona
Antsi. Fe, who worked as a bookkeeper for Earnest & Younger,
heard the commotion, and came out of her office in time to see him carried
away on a stretcher. Fe, of course, is an emotional wreck.
Several months prior to the Ballou and Shalleen fiasco, two former
clients of Acton had filed complaints with the state prosecutor’s office
about his deceptive handling of their accounts.
Since there were two similar complaints, the prosecutor, Gillian
Garcetti, had asked one of her
investigators to look into it.
The investigator submitted a report substantiating that the allegations
looked like questionable practices, and recommended filing charges.
Garcetti, who believed in color-coded filing (red for cases not to
pursue, yellow for those on hold while further investigation conducted, and
green for the cases which were “go”) misfiled the investigator’s report
in the red drawer rather than the green drawer, and thus did not pursue the
cases. She discovered this mistake only when the Acton embezzlement and
Shalleen homicide cases were brought to her office.
DIRECTIONS: Discuss all possible torts and defenses for named
parties only. Ignore possible
workers compensation defenses and anything other than the tort principles we
discussed this semester. There are no arbitration agreements involved.
In 1995, Van Court Publishing Company, Inc., published Jennifer
Victor’s book, Satanic Panic: The Creation of a Contemporary Legend.
The book purports to be an expose of the claims made by persons who
believe they have been victimized by Satanic cults.
The book recounts various individuals’ reactions to accusations of
ritual abuse and clearly favors the accused abusers over the alleged victims
of ritual abuse claims. The
thesis of the book is that Satanic ritual abuse does not in reality occur (or
at least not in large scale), and that accusations of such abuse are largely
unfounded, having been influenced by rumor, panic, contemporary legend, and
improper and suggestive investigative techniques.
The book includes “research,” “data,” and copious footnotes,
but its general tenor is not of an objective piece of journalism.
It is clearly intended as a propaganda piece.
In a section of the book
entitled “The Career of a Moral Crusader,” Victor discusses social worker
Noel Howard, as a “consultant” for cases of sexual abuse. The book states that Howard supports his claims with
“so-called Satanic cult ritual abuse diagnostic indicators and other
pseudo-scientific propaganda materials.”
In other passages of the book, Victor states that “sometimes moral
crusades can turn into witch hunts” and that “crusaders are likely to assume
that those accused are guilty.” In
describing a series of training seminars, the book states: “It was as these
conferences that Howard made the infamous allegation about babies being cooked
by Satanists in microwave ovens.” During
a speech at a training conference, Howard actually had said, “There are
reports about Satanists in the eighteenth and nineteenth centuries boiling
babies.” He then added jokingly,
“Perhaps modern-day Satanists will adapt to their time and use modern
technology, like microwaves?” Before
writing the book, Victor, thinking it would be futile, did not try to arrange an
interview with Howard himself.
DIRECTIONS: Howard is concerned that Satanic Panic falsely
accuses him of fomenting unsubstantiated child abuse accusations.
Evaluate Howard’s claims and any possible defenses.
HAVE A GREAT SUMMER!