It is understood by the student whose Student Number is entered below that this examination is given and the student

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 Levit

Torts II Winter Semester, 1997

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 Gaul, which consists of all cases in your casebook and any cases discussed in class.

7. This exam consists of 11 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!

Medea Torr is a former junior high school teacher, who has worked twenty hours per week for the Gaul State Department of Education since 1989 administering their gifted and talented program. In 1993 she went back to school and earned her masters in social work, taking eight hours of mediation training. She has attended two seminars for lay persons and lawyers on alternative forms of dispute resolution (such as negotiation and mediation). Medea has counseled couples on a volunteer basis for her church. She is a member of the Society of Professionals in Dispute Resolution (SPIDR), a voluntary organization that disseminates information to its members about mediation. She watched as much of both the O.J. Simpson criminal and civil trials as her work schedule would permit.

Medea decided to supplement her income by mediating. She began to work with Mediation Services Group (MSG) as a trainee. One of the founding partners of MSG is a licensed psychologist, another has a J.D., and the third has a masters in family and child counseling. Medea knew of MSG’s rules that no trainee was allowed to take on new clients without authorization of at least two of the three managing partners and supervision by one of them. But Medea wanted to impress MSG with her independence and abilities, so when a new client call from Hugh and Thelma Busker came into the office, Medea took one of MSG’s standard form mediation agreements for the Buskers to sign.

Hugh and Thelma Busker, separating after twelve years, with no children, were fighting over the assets of their joint construction company. Hugh was a former semi-pro football player who never made it to the pros because he had bad knees. During the divorce, as during the marriage, High and Thelma were arguing principally about money. Hugh, Thelma, and Medea signed the MSG mediation agreement, which included provisions on mediator neutrality as between the parties (“I have no interest in how you settle your dispute, though I am an advocate for settlement of some kind”), confidentiality (“The parties and mediator each agree to treat the mediation and the statements made here as confidential and privileged against use at trial relating to this dispute so far as is lawful, except for necessary disclosures or disclosures compelled by law”), and mediation fees ($35 per hour for domestic cases).

Medea explained to the Buskers that most mediations would have to take place in the evenings because of her administrative commitments. Since MSG closed its office at 6 p.m., and because Medea did not want MSG to know just yet that she had taken a client, Medea offered to conduct the mediations at her home.

During one of her solo mediation sessions with Hugh, Medea noticed he was agitated, and kept checking his watch. When she asked him about it, Hugh slammed his hand on the table, and said, "This is a waste of time. Thelma has always wanted my time and my money. Now she wants half of my business! She is an evil, greedy woman." After Medea calmed Hugh down, pointing out that the division of the business's goodwill assets was really the last of the problems, Hugh replied softly, "If Thelma ceased to breathe, that would solve my problems."

Reflecting on the mediation session, Medea became concerned that Hugh would harm Thelma. Medea called Thelma and said, “During the course of our mediation, I fear that Hugh made a threat against your life. I just thought you should be aware of it. In my opinion, he's the kind of guy who could go off half cocked and cause somebody grave harm.” This information surprised and worried Thelma.

Two nights later, in the midst of a rainstorm, Thelma was have some trouble with her phone. She would pick it up and be without a dial tone, and then a half hour later, the phone would work, but there was static in the background. At about midnight, Thelma was awakened by a suspicious noise outside her ground floor bedroom window. She picked up the phone, heard a dial tone but static, and called the police, telling the dispatcher about the potential threat from Hugh, the noises outside her window, and the phone problems. “We'll send someone right over ma'am,” said the dispatcher, Diz P. Atcher. “I suggest you stay on the line.” Thelma said, "No, I want to get my gun." She hung up and retrieved a small pistol from her bedside table drawer.

The officer who was dispatched to Thelma's residence, Marlene Jackson, arrived within five minutes. She found a telephone repairman, T.R. Pearman, outside the house. Pearman had been called by one of Thelma’s neighbors who said there was trouble on the lines in the neighborhood. Jackson spoke with Pearman for a few moments, requested his identification, and ascertained that he was fixing phone lines in the neighborhood that had been damaged by the storm. The rain began to fall much more heavily. Jackson glanced at her watch and noticed that her shift had ended ten minutes ago. She got in her patrol car, relayed the information that all was clear, asked Diz P. Atcher to relay this information to the caller, and headed home. Diz tried to reach Thelma, but the lines were dead. Pearman immediately called his live-in girlfriend of five years, Gerda, on his cellular phone to tell her about his encounter with the police officer.

Thelma, meanwhile, had been unable to see much outside her window because of the storm. She picked up the phone again to call the police, but the line was dead. She heard more noises that seemed to be right outside her bedroom window, looked through the window and saw a man outside, coming up her walk toward the house, carrying something in his hand. Fearing that Hugh had come to shoot her, she shot Pearman twice, wounding him severely in the left leg. At the moment he was shot, Pearman was just saying goodbye to Gerda, who heard what she thought was a crack of lightening. Since the incident, Thelma has suffered severe depression, has had nightmares, and has lost weight. Gerda is equally distraught, and has increased her formerly monthly therapy sessions to twice per week. Pearman recovered, but has a pronounced limp.

DIRECTIONS: Please evaluate (give both plaintiff’s and defendant’s arguments) for all possible torts and defenses for named parties or entities only. Please do not address the liability of any person or entity who has not been named. Also, please do not discuss any claims by or against the Gaul State Department of Education, the Society of Professionals in Dispute Resolution, or the telephone company. Ignore possible workers compensation defenses and anything other than the tort principles we discussed this semester.