[FPLC - TORTS - FALL 1991 ] Annotated

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TORTS

Professor Gibbons

Fall 91 Final Annotated

This examination consists of 24 multiple-choice questions, each worth 10 points (240 total points) and one essay question (120 points, though more can be given for a truly outstanding answer). The best answer from the four provided for each multiple-choice question will receive 10 points; the worst will receive 0 points. In those questions where more than one choice is plausible, partial credit will be given. Choose the best answer from the choices provided by circling the letter to its left.



The facts stated in the questions apply to the questions that follow. Do not take anything that follows a question as any indication of the correct answer to a prior question. An answer that is right for the wrong reason is wrong. If all four answer choices are weak, the strongest alternative is the correct answer.



Law applicable to exam: the rule in Dillon v. Legg, Uniform Comparative Fault Act, Restatement ?02A, 519, 520, 827, 828, as interpreted in the cases.



The Indiana Harbor Belt Railway ("the Harbor Belt," in railroading circles) is a tiny railroad that operates only eighty miles of main line track and one switching yard, in Blue Island, Illinois, right south of Chicago. Despite its size, however, the Harbor Belt is a crucial link in the railway system, for it connects all of the rail lines coming into Chicago from the south with those coming from the east. Cargo bound, for example, for New York city from as far away as New Orleans heads first north to Chicago, then east along lines now owned by Conrail, linking with those lines over the short Harbor Belt connection. All east/south rail traffic is switched in the Blue Island yard, where incoming trains are broken up and reconfigured into trains bound for a single location.



On July 11, 1986 a Harbor Belt worker noticed a liquid gushing out of a tank car in the Blue Island yard and sounded the alarm. The liquid was acrylonitrile, a chemical used in making plastics, dyes, and pharmaceuticals. Acrylonitrile is highly flammable, highly toxic, and possibly carcinogenic. The tank car contained 20,000 gallons of it and before the leak was stopped 5,000 gallons had spilled out into the yard.



Officials of the Illinois Department of Environmental Protection were quickly on the scene and ordered the yard and 21 square blocks of the neighboring residential neighborhood evacuated. It ordered the Harbor Belt to commence immediate clean-up activities, which shut down the yard and all south/east rail transportation through Chicago for ten days. The direct cost of the clean-up to Harbor Belt was a million dollars, in addition to which it lost two million dollars in revenue due to the ten day shutdown. Harbor Belt's interest understandably turned to finding someone else to pay those costs.



The acrylonitrile was owned by American Cyanamid Corp., which was shipping it from a plant in Missouri to a customer in New Jersey. The tank car was owned by the North American Car Company, which had leased it to Cyanamid on a twenty year lease, with the agreement that Cyanamid would handle all repairs and maintenance on the car. The cause of the leak was a faulty valve on the underside of the tank car which was ordinarily used to unload liquid from the car.



The Harbor Belt filed suit against Cyanamid to recover the three million dollars it lost by the spill. Count One of the complaint alleged negligence in maintaining the tank car; Count Two alleged strict liability for the abnormally dangerous activity of shipping acrylonitrile, under sections 519 and 520 of the Restatement. Cyanamid filed a motion for summary judgment on Count Two.



Which of the following is its strongest argument in support of that motion, assuming that the factual allegations made in each argument are true?



a. This is an activity whose risk can, in fact, be eliminated by the exercise of reasonable care, as shown by the fact that Cyanamid has in the past shipped thousands of cars through the Blue Island yard without mishap, and, in an odd way, by Count One, which alleges that Cyanamid caused the accident by failing to use reasonable care. 8

This is a good argument for the inapplicability of strict liability, for it is meant to apply only to those situations where due care offers insufficient protection. The argument is, however, an odd one that may be hard to get across to a judge.

b. Acrylonitrile is not simply "of value to the community," but is in fact involved in the production of numerous essential commercial products. 4

The value of the activity is, in fact, a consideration, so that, presumably, a court would not hold a very valuable, irreducibly dangerous activity strictly liable. But that argument is extremely weak, for how does it withstand the rejoinder that, if the activity is so valuable, surely it can pay for the messes that it makes.

c. It was not Cyanamid that was conducting the "activity" at all, but rather the Harbor Belt, for the activity that caused the injury was the transit of the tank car. 10

Here is the heart of the matter: the Harbor Belt was the one doing the, arguably, abnormally dangerous activity. "Shipping" is not an activity; "moving" is.

d. Cyanamid ships hundreds of carloads of acrylonitrile through the Blue Island yard each year, making it a "matter of common usage." 0

That something is frequent does not make it "common."




Which of the following reasons for the doctrine of abnormally dangerous activities offers the greatest support to Cyanamid's motion for summary judgment?



a. To force people who undertake abnormally dangerous activities to take all cost justified loss avoidance measures. 0

This is the reason underlying negligence, not strict liability for abnormally dangerous activities.

b. To force people who undertake abnormally dangerous activities to include in their costs the amount necessary to compensate anyone injured by those activities. 3

This is a reason underlying this doctrine, but hardly one that favors Cyanamid.

c. To force people who undertake abnormally dangerous activities to do them in a location that exposes others to the smallest risk of loss. 10

This is a reason underlying this doctrine and it is one that Cyanamid has at least arguably complied with - there are no other rail routes that would handle the load and truck transport is loaded with dangers, so this was the way to ship it.

d. To force people who undertake abnormally dangerous activities to do it in a way that minimizes the magnitude of potential losses. 3

This is also a reason underlying this doctrine, but it is not relevant to Cyanamid's situation.



How would you rule on that motion?



a. Grant it because there was nothing abnormally dangerous about the activity, since (true fact) the Harbor Belt handles thousands of cars each year that are as dangerous as the car in this case. 6

This ruling is based upon the "common usage" element of the tort and so is plausible, but it suggests that a common usage is one that the parties have built loss avoidance around - because it is so common - which is not immediately obvious in this case. Sounds like a jury question, not summary judgment.

b. Grant it because the dangerous activity was being done by the Harbor Belt, not Cyanamid. 10

Clearly.

c. Deny it because a trial is needed to determine whether or not Cyanamid did proper maintenance of the car. 0

That is a good reason for going to trial on the negligence count, but not this one.

d. Deny it because Cyanamid could have shipped the acrylonitrile by truck (true fact) and a trial is needed to determine whether trucking it would have been safer. 4

This is irrelevant in the light of answer b. above, but it is relevant to this cause of action and could, by a considerable stretch of the imagination, be something a court would want to wait for a trial to determine.



During discovery it became clear that the valve on the under side of the tank car had failed because the gasket that sealed the valve to the car had been partially dissolved by the acrylonitrile, letting it seep, then gush, onto the ground. Cyanamid brought a third party complaint in products liability against the North American Car Company, from which it had leased the tank car, and the Pullman Company, designer and manufacturer of the car.



North American immediately moved for summary judgment on the third party complaint, providing uncontroverted affidavits that showed that it was simply an industrial financing agency that provided Cyanamid with the money to purchase the car. It knew nothing about railroad cars, had never seen them, simply put up the money when Cyanamid told it what cars to buy - in fact the entire company consisted of three, admittedly well fed, financiers in Spokane, Washington.



What is the strongest argument for its motion?



a. To hold a firm that provides only financing liable in products liability will make it difficult or impossible for companies to finance expensive purchases. 4

A policy reason, and one based upon a pretty lusty empirical proposition (i.e., the drying up of financing), but not an argument that a court is likely to completely disregard.

b. An industrial finance company necessarily finances the purchase of thousands of different types of equipment, and it is simply impossible for it to become expert enough in any of them to affect the purchase decision. 10

No control, no ability to control, no liability. Innately, the strongest of reasons.

c. 402A applies to "sellers engaged in the business of selling such product;" North American was the buyer of the product. 0

EEK! It surely was the buyer of the product, but for the purpose of leasing the product to others, which puts it in the marketing stream.

d. The three people who make up North American have no knowledge at all about railroad cars and Cyanamid knew that. 8

Saying they did not know is not as strong as saying they could not have known, but the fact that Cyanamid knew of their ignorance adds strength to this argument.



What is the strongest rejoinder to that argument?



a. As lessor/lessee, there was a special relationship between North American and Cyanamid that North American breached by its failure to eval‎uate the product. 0

To have any probative value the claim of special relationship must be based upon facts that indicate that one party has undertaken some aspect of the safety of the other. That is entirely lacking here, given the uncontroverted facts.

b. Arguing that holding North American liable would destroy the financing of industrial products is a policy argument that has no standing in a products liability lawsuit. 3

Policy reasons surely are appropriate in these suits (whether they should be or not is another subject) - recall all the verbiage in the opinions about spreading the cost of accidents - though this is not a very compelling one.

c. The aim of products liability law is to make companies responsible for the products they deal in; if North American didn't involve itself in the purchase decision, it should have. 10

When a defendant shows that it had no control, the only way out is to argue that it should have had control and hope that the judge will leave that to a jury to decide, or at least withhold the judgment on the motion until the end of the plaintiff's case.

d. Courts have treated lessors of products, particularly automobile lessors, as if they were "sellers" within 402A, and should treat the lessor here as such. 4

True enough, as stated in the casebook, but the position of a lessor of automobiles is very different from the defendants here, for they deal in a very small number of products and a technically unsophisticated clientele.



How would you rule on North American's motion?



a. Grant the motion, for the owner of a product is not liable to those injured by it under a products liability theory. 0

Twaddle - under all interpretations of 402A everyone in the stream of delivery of the product is exposed to liability, though ultimate responsibility lies with those with the greatest control.

b. Grant the motion, for North American simply provided the financing for Cyanamid's purchase of the car. 10

No control, no liability.

c. Deny the motion, for products liability law applies to everyone in the marketing chain, including those who lease as well as sell a product. 3

True, but it doesn't apply to those who have no control over it. Consider the bank that you borrowed your money from to buy your car. If a wheel falls off of it and you are injured, think you have an action against the bank for products liability?

d. Deny the motion, for North American was the owner of the car and it could have exercised control over the purchase decision. 5

This is a stronger ground than c., for it raises the should have had control question, though that is pretty well answered by the facts of this case.



Pullman also moved for summary judgment, admitting that the tank car had been rated for the transport of acrylonitrile but showing that the instructions supplied with the car required that the gasket be replaced every six months with one supplied by Pullman and that no properly maintained valve and gasket had ever failed on one of its cars. Cyanamid admitted that it had used gaskets supplied by another company, but proved that it had replaced the gaskets every six months, according to instruction, and that the gaskets that it used were identical in every way to those supplied by Pullman. How would you rule on the motion?



a. Grant the motion since the gasket that failed (i.e., dissolved) was not supplied by Pullman. 4

Barely plausible resolution, requiring a very narrow reading of 402A - "One who sells ?"

b. Grant the motion since the reason for the failure lay with the maintenance of the car, not with its manufacture or design. 2

There is no evidence to support this proposition, surely not enough to remove the need for a trial, but it is not as bad an answer as c.

c. Deny the motion because the failure of the gasket appears to be a design defect and Pullman designed the tank car. 10

If the gasket that failed was identical to the one specified, which is uncontroverted from the facts, the failure of the gasket is attributable to the design which specified its use and its replacement at six month intervals.

d. Deny the motion because it is irrelevant that Pullman used all possible care in the design and manufacture of the car, since this is an action in strict liability. 0

Judge Traynor would have agreed with this proposition, but it has been abandoned since by a standard that eval‎uates the legitimacy of the design and manufacturing process.



What impact does the information provided by Pullman's motion have on the Harbor Belt's case against Cyanamid?



a. Strengthens it, since it shows that Cyanamid failed to maintain the car properly. 0

It surely showed nothing of the kind.

b. Strengthens it, if it is also true that the gaskets used by Cyanamid were not equal to those used by Pullman. 10

If this is true, we have a different story, for it looks like Cyanamid may have used inferior gaskets to those specified, perhaps to save money.

c. Weakens it, for it shows that this was the first failure of the gasket, raising the issue of foreseeability. 4

True, but not by much, for in products liability the product must be safe when the first one leaves the factory, not after a zillion people have been hurt.

d. Weakens it, for it tends to focus liability on on the Pullman Company. 8

True, for it implicates the design of the car, though in this case the plaintiff will not be unhappy with the weakening of the case against Cyanamid.



To this flurry of motions Cyanamid added a motion to strike the Harbor Belt's claim for two million dollars caused by the ten day shutdown of its operations. Which argument, if supported by proof of the relevant facts, would give the strongest support to that motion?



a. The shutdown caused consequential economic losses which, while they might be recoverable in a contract action, are not recoverable in tort. 0

Hey, tort is where you do get consequential economic damages, though contract law has begun to pay some attention to them in some situations.

b. Had the Harbor Belt maintained proper surveillance of its yard, it would have spotted the spill when it was just beginning, requiring a minor cleanup and no interruption. 10

If true, this is a killer on the claim for shutdown of the yard.

c. The shutdown of the Yard was ordered by the Illinois Department of Environmental Protection and is not Cyanamid's responsibility. 0

Irrelevant.

d. The ten day shutdown of the yard was unprecedented in the history of railroading and was therefore unforeseeable. 4

This is a Polemis-like argument that gets a little weak when you are talking about something as toxic as acrylonitrile.



The acrylonitrile spill was of more than academic interest to you since your law office was located on Blue Island Avenue, immediately opposite the yard, and it was part of the area evacuated during the ten day cleanup period. By the time that you returned to your office on the day of the spill the area had been sealed, all of your files and records under locked in side, and the area guarded by the Chicago Police.



The closure of your office wrecked havoc with your practice. You missed numerous motions that you had set for hearing during that period; you did catch a case that came up for trial and had it continued, but you were out of touch with your clients, and, worse, missed any new business that might have come in during that period. As you sorted out the mess and attempted to reestablish your reputation when your office was reopened it crossed your mind that you might have an action against the Harbor Belt for defamation. Is it worth continuing that line of thought?



a. No, but you might consider a negligence action for the infliction of economic loss, where a prime component of damages will be your loss of professional reputation. 10

Economic loss includes not only losses during the down time but also long run losses incurred as the result of the shutdown, perhaps caused through the vehicle of your reputation.

b. No, because the shut down was caused by the Illinois Department of Environmental Protection, acting under the mandate of statute. 2

It might be that a court would protect Harbor Belt from its neighbors because of the breadth of the area shut down, but that is hardly the problem with a defamation action.

c. No, unless you can show that the Harbor Belt was negligent. 0

Irrelevant.

d. No, for an action in defamation must be based upon representations made about you, not on actions that happen to you. 8

Can actions without representations constitute defamation? Possible, though not likely here.



The spill was not, however, an unmitigated disaster to your practice, for the people in your neighborhood were hopping mad about it. You spent much of the ten days organizing a neighborhood association - Concerned Neighbors of Blue Island - talking with them about potential legal actions that they could take. The spill was a major media event and evoked wave after wave of revelations about the railroad yard and the dangers it presented, prime among which was the fact that the yard handled dozens of cars each day that were classified by the U. S. Department of Transportation "dangerous," a spill from any one of which would cause problems at least as bad as those in this case.



Real estate agents reported that all interest in the purchase of property within the 21 block area had ceased and that the purchasers of four parcels under contract at the time of the spill had unilaterally terminated those contracts. The consensus among the agents was that, even given the public's short memory, the value of real estate in the affected area would never return to more than half its prior value. Which immediately set you thinking about an action in nuisance for an injunction and damages.



What is the likelihood that such an action would result in an injunction, closing the yard?



a. None, if the Illinois courts adopted Boomer v. Atlantic Cement, for it abolished the injunction remedy in nuisance cases. 0

It did nothing of the sort.

b. None, for the Harbor Belt is a key link in the national rail system and there is no alternative to it. 10

There is no way a court will knock a link out of the national rail system (consider (d) and (e) of Restatement 827 and all of 828.

c. Slim, for the buildings in the neighborhood were constructed many years after the Harbor Belt railroad (true fact), so they "came to the nuisance." 3

Coming to the nuisance may influence the remedy the court will employ, but it will not, alone, eliminate the use of injunction.

d. Slim, for the Harbor Belt is an essential component of the Chicago economy (true fact). 7

This might, alone, eliminate the injunction, but it is not as strong as a.



Does the requirement that a nuisance be based upon an "intentional invasion" of property present you with a particular problem in this case?



a. No, for the movement of railroad cars was an intentional act which created a risk, and that is sufficient "intention" for nuisance. 4

Recall Atlantic Cement, where the troublesome action was one that was a necessary concomitant of making cement; Atlantic cement, presumably, did not want to pollute, but it surely was willing to pollute to stay in business. That is not the case here, where the spill is every bit as bad for Harbor Belt as for everyone else.

b. No, for the Harbor Belt could have avoided the harm with due care, and its failure to do so is sufficient intentionality. 0

Say who?

c. Yes, because it is clear that the Harbor Belt did not want the spill to happen and itself suffered when it did. 10

Exactly, and this is going to be a big problem in a nuisance case.

d. Yes, because this is a case in which the Harbor Belt, or someone else, was at fault, so a fault-based action will suffice. 7

The fact that someone other than the Harbor Belt was at faults does help the intentionality requirement, though it would help to show that there is nothing that the Harbor Belt can do to avoid similar risks in the future, making the danger of spills a normal component of its doing business.



What will be the Harbor Belt's strongest argument that the yard, while not without costs, is in fact a "suitable" use in its location?



a. The fact that almost half of the members of the Concerned Neighbors of Blue Island are employees of the railroad. 5

It would be more helpful if they weren't, for the inference here is that they moved into the area regretfully in order to get jobs, not that they felt that the yard was a good neighbor.

b. The fact that it is annually examined by the U. S. Department of Transportation and has received the highest safety ratings for the operation of the yard. 2

The safety ratings may show that it is a safe operation, as railroad operations go, but it hardly shows that it is in the right place.

c. The fact that it was built prior to the advent of the 20th century and that the other buildings in the neighborhood were built because it was there. 0

So it was suitable in 1890. That was a hundred years ago.

d. The fact that there is no other way to provide a link between the rail lines arriving in Chicago from the east and south. 10

In economic terms, the demand for the Harbor Belt's tracks is of unitary elasticity - there is no other location for them, let alone a more suitable one.



What would be the significance to the nuisance action of a finding by the Illinois Department of Environmental Protection that there had been many prior spills from cars in the yard which, though comparatively minor, had resulted in the accumulation of considerable toxic substances in the soil under the buildings owned by members of the Concerned Neighbors?



a. Helpful, since it would add a count in trespass to the complaint. 5

That would help a bit, but its real value would be to strengthen the ground for an injunction, which is not going to happen here.

b. Very helpful, for it would add another element of damages to the nuisance action. 0

All damage to the land is recoverable in any nuisance action, though this proof would presumably add more dollars to the claim.

c. Extremely helpful, for it would show that the acrylonitrile spill was not an isolated event but part of a continuing pattern of negligence by the railroad. 0

This may very well kill the nuisance action, for it becomes relevant only when the defendant can show due care.

d. Crucial, for it would strengthen the proof of intentionality by showing that pollution was a necessary part of the operation of the yard. 10

Which would put the case squarely in the Boomer mold.



One nice thing about a nuisance action here is that the court is unlikely to employ a remedy like the one utilized in Spur Industries v. Del Webb. Why?



a. It would be inappropriate to protect either party in the case with a property rule because of the high transaction costs in this situation. 10

Recall that in Spur there was a single plaintiff and a single defendant. Here there are multiple plaintiffs, making the transaction costs of a joint action remedy (e.g., free riders and negotiation costs) much greater.

b. The neighbors have already gotten an advantage from the proximity of the railroad in the depressed prices that they paid for their buildings. 0

Irrelevant to the use of this remedy.

c. The neighbors have nothing to gain from the relocation of the railroad. 2

They surely do, and the same kind of gain as Del Webb - increase in market value.

d. An injunction of any kind is just not an appropriate remedy in this case. 7

This alternative begins to hint at the best answer to this question (which is not included in the choices), namely, that there just is not another location for the Harbor Belt's tracks. The remedy in Spur employed an injunction.



Your enthusiasm for an action by the neighbors is really on the rise. If the real estate agents are right that the spill will cut real estate values in half, you are looking at damages in the region of $25 million, a third of which makes for a very nice year. Is there another arrow in your quiver besides nuisance and, possibly, trespass? Your reading of the complaint in Harbor Belt v. American Cyanamid gives it to you - an action in strict liability for abnormally dangerous activity.



Trouble is, that count doesn't go very well with your nuisance theory because ?/P>



a. The nuisance theory argues that the dangers presented by the yard are and have been an unavoidable, normal, feature of its operation. 10

It is at least facially inconsistent to argue that the railroad enjoyed an abnormally dangerous event which is a chronic problem. Inconsistent arguments can, of course, be made, but they call for a serious strategic decision about the way to handle the case.

b. The nuisance theory argues that if the railroad had used due care the spill would not have happened. 0

That argument would make it a negligence case, not a nuisance case.

c. The nuisance theory argues that the yard is an inappropriate use of land in its location. 2

It sure does, but so does the abnormally dangerous theory.

d. The nuisance theory argues for a continuous low level of risk, while the abnormally dangerous doctrine requires an event of high risk. 8

Correct, but not quite as precise a statement of the conflict as a. above.



Your ruminations about the case against the Harbor Belt are disturbed by the appearance in your office of McCurdy Katz, the treasurer of the Concerned Citizens and a clerk in the Blue Island yard, who presents you with an evidenciary bonanza. Because of his job, Mr. Katz has access to the proprietary records of his employer, the Harbor Belt. He chanced to notice a report on his boss' desk in which an independent safety engineering firm hired several years before the spill by the Harbor Belt quantified the risks presented by cars carrying toxic materials through the yard and recommended that they be segregated from other cars and handled in a portion of the yard that had been engineered to contain and neutralize any spills. The railroad never implemented those recommendations. Mr. Katz made a copy of the report and returned the original to his boss's desk.



This information most strengthens which cause of action by the neighbors against the Harbor Belt?



a. Negligence 10

Failure to take recommended loss avoidance is the heart of a negligence case.

b. Nuisance 0

By strengthening the negligence case, the nuisance case would actually be weakened.

c. Trespass 0

The report is irrelevant to a trespass case.

d. Abnormally dangerous activity 6

This report would help to prove one element of the case: that the activity had been undertaken in an inappropriate location, to wit, a part of the yard that had not been specially prepared for the risk.



Does Mr. Katz's activity expose him to potential liability for invasion of privacy?



a. No, because he got the information while on the job and it involves commercial, rather than personal, matters. 5

A court might be more reluctant to apply privacy concepts to the workplace, giving some strength to this proposition, but there is an idea in c. that is lively.

b. No, because the report was in plain sight on his boss's desk and was therefore not sufficiently "private." 3

The report was not "private" in the sense that intimate personal information is, but it was confidential, unless, perhaps the boss' desk is where public notices are posted.

c. Yes, because there is an implicitly confidential relationship between employer and employee which Mr. Katz intentionally violated. 10

More problematic than Mr. Katz' acquisition of the report is his "processing" of it (i.e., reading it), then giving it to the enemy - violating the confidentiality implicit in the position of trust that his employer had placed him in.

d. Yes, because by offering them to you he is publishing private facts. 0

Publication is indeed the problem here, but these are not offensive private facts.



Would you be exposing yourself to potential liability by accepting the report from Mr. Katz, assuming the Illinois courts adopted Pearson v. Dodd?



a. No, since the document would be discoverable by you in a legal action anyway (true fact), so there is no injury. 6

The discoverability of the document would surely reduce the damage associated with having it, but getting it in the formative stages of the case is hardly the equivalent of discovering it during suit.

b. No, because possession of the document is privileged since it was done pursuant to the preparation of a case at law. 2

Courts are hesitant to use both defamation and privacy law in a way that might interfere with the legal process, so there is a bit of weight to this argument, but is is surely not going to rise to the level of a "privilege."

c. Yes, if Mr. Katz' actions were done at your request or stimulated in some way by your actions. 10

Here, you become the actor, fully as blameworthy as Mr. Katz.

d. Yes, if you paid him for them. 0

Simply paying him for them will not do it. Promising to pay him for them, or suggesting that you will pay, will, but that is answer c.



Snooping in his boss' office was not the limit of Mr. Katz's enthusiasm. In addition he had been spying on Marge O'Donnell, Yardmaster of the Blue Island railroad yard and the Harbor Belt's Vice President of Operations. The job of dealing with the public about the spill had fallen to Ms. O'Donnell, who had taken to it with some gusto. The fourth generation of O'Donnells to work for the Harbor Belt, she defended the company unstintingly in the press and did not hesitate to name American Cyanamid the culprit. A student of the Yasser Arafat school of public relations, she referred the Illinois Department of Environmental Protection as "those weenies," blaming them for the long shutdown, called the neighborhood association "feebleminded turkeys" and the various environmentalists who showed up at the scene "meddlers" and worse. Ms. O'Donnell's spirited, unambiguous remarks made her a favorite with television news producers. She was a common sight on network news during the ten day shutdown and continued to be a popular subject for the local media as the legal controversies unfolded.



Mr. Katz had not gotten along well with Ms. O'Donnell since they were in third grade together at the Morris School. She so routinely took his lunch from him that he began asking his mother to make the kind of sandwiches that he knew she liked, but even that failed to bring her to his side. Mr. Katz leaped at the chance to even the score. He supplied Veronica Singletary, a producer with WGN-TV news with photocopies of Ms. O'Donnell's personnel records. Those records indicated that on two occasions in the past Ms. O'Donnell had taken protracted medical leaves of absence from her job while she was under the care of a psychiatrist.



Sensing a story there, Ms. Singletary suggested to Mr. Katz that any information that he could gather about Ms. O'Donnell's psyche would not go for naught. Mr. Katz bent himself to the task with a will. He had no trouble gaining access to Ms. O'Donnell's psychiatrist by posing as a prospective patient and making a copy of his file on her. He bought a cellular telephone that he used when he could to intercept and record the telephone conversations that Ms. O'Donnell made from the Yardmaster's shanty.



Would Ms. Singletary expose herself or WGN-TV to liability if she used any of the information that she got from Mr. Katz as part of television show about Ms. O'Donnell?



a. No, so long as she presented the information in a way that created a true picture of Ms. O'Donnell. 0

Painting Ms. O'Donnell in a false light would surely be actionable, but painting her in a true light does not eliminate the problem here.

b. Possibly, because it appears that Mr. Katz was motivated by personal malice toward Ms. O'Donnell. 2

Mr. Katz' feelings toward Ms. O'Donnell are going to add to the troubles here, but they are not the main problem.

c. Probably, because it will divulge private information that an ordinary person would consider offensive. 7

That it would, but this is not a very strong cause of action in the first place and Ms. O'Donnell has thrust, and continues to thrust, herself into an odious public debate.

d. Clearly, because the information was gained through an invasion of Ms. O'Donnell's privacy motivated by Ms. Singletary. 10

True, and it puts Ms. Singletary on the hot seat beside Mr. Katz.



Ms. Singletary's proposal to do a half hour show on Ms. O'Donnell was put on hold, partly out of concern for its legal implications, partly because two months had passed since the spill. But the controversy surrounding it would not die. The Harbor Belt and Ms. O'Donnell became the focus of verbal attacks by environmentalists, who introduced a bill in the Illinois legislature to prohibit the transport of toxic materials through residential neighborhoods. Ms. O'Donnell became the rallying point for industrial interests fighting the proposed bill.



WGN-TV dusted off Ms. Singletary's proposal. How much protection might the newsworthiness defense give Ms. Singletary and WGN-TV if it included in the show Ms. O'Donnell's psychiatric records?



a. Considerable, so long as the show makes a fair and accurate report of the contents of those records. 0

Fair report might help protect the station from a defamation action, but that will not be the nature of her action on the psychiatric records.

b. Considerable, because Ms. O'Donnell's mental state is highly relevant to a matter of grave public concern and she has actively made herself a participant in the controversy. 6

"Considerable" is too strong here, but her mental state may indeed be relevant, depending upon the nature of her behavior, possibly cleansing what is otherwise a pretty serious offense. Relying upon this hope can lead media to big compensation payouts unless they get lucky.

c. None, because newsworthiness is not a defense to an action for publication of facts which an ordinary person would consider offensive. 0

Not true, so long as the defendant is a public medium (WGN-TV is), the dispute is public (which the debate over a proposed statute clearly is), and the information is relevant to that debate (which it arguably is).

d. None, because the acquisition of those records was inspired by Ms. Singletary. 10

The problem here is not one of publication, which WGN-TV has some protection on, but one of the acquisition of the information in the first place, for which it is in big trouble.



WGN-TV tried to sidestep some of these legal questions by casting its show as a retrospective on the spill and the controversy it engendered. Ms. O'Donnell was, however, a prominent feature of the show and she immediately filed a defamation action against the station. She claimed that the inclusion of her psychiatric records defamed her in the eyes of the public, who harbor primitive myths about mental health. She included no claim for special damages, for, in fact, she was not fired from her job and the show produced even bigger fees for her as a speaker before industrial groups.



Which is WGN-TVs most promising basis for summary judgment on the defamation action?



a. She has made herself a public figure on the issue of toxic spills and her mental state is relevant to the merits of her statements on the issue. 5

Indeed it is, which makes for some defense to a privacy action, but misses the key weakness here, set out in d. below.

b. Statements about her psychiatric history do not constitute slander per se, so her failure to plead special damages is fatal to her case. 0

Slander per se? Publication over a television station is libel, and this surely passes the libel per se standard (and would, for that matter, probably pass the slander per se requirements as well).

c. The show has clearly enhanced her reputation, not diminished it. 0

There would probably be some weight to this when the jury came to establish damages, but it is no grounds for a summary judgment (besides, what about her reputation with environmentalists?).

d. She has failed to allege falsehood. 10

Yup. She has gotten herself confused between a privacy and a defamation cause of action.



Tragically, Ms. O'Donnell has included you and Mr. Katz in her action arising out of the television show. Her claim against you arises under the case of Tarasoff v. Regents of the University of California. She alleges, correctly, that you have received information from Mr. Katz concerning her, the Harbor Belt, and the spill, that you have been aware at every step of Mr. Katz's information gathering activities, including his acquisition of her psychiatric records, that you have been aware of his personal malice toward her and his intent to injure her, and that you did nothing to prevent it, despite the fact that as an attorney you are an officer of the court, duty bound to enforce the law.



Your best hope for a summary judgment on this case is to argue that ?/P>



a. You took no part in his actions and played no role in the television show. 4

This sounds like a proposition that the jury will have to ponder. Worse, it seems to accept the proposition that you had some sort of duty to Ms. O'Donnell.

b. You attempted at every turn to stop Mr. Katz, but you could not force him to stop without violating your duty of confidentiality to him. 0

This argument is close to suicide in a Tarasoff type case, for it implies that you felt a duty toward Ms. O'Donnell but were frustrated in your desire to act on it. Now tell me where your duty of confidentiality to Mr. Katz came from that prevented you from protecting Ms. O'Donnell?

c. Mr. Katz was not your client and you had no duty to control his behavior. 10

In Tarasoff the defendant was the wrongdoer's psychiatrist, a person who had personal knowledge of his psyche and some control of it. Here, there appears no legal relationship between you and Mr. Katz that would support a Tarasoff argument. Note that there is no suggestion in Tarasoff that a casual acquaintance of Podar would have such a duty.

d. You had no relationship with Ms. O'Donnell and no duty to look out for her interests. 4

This is not an argument that the statute is irrelevant - which is what the question asked for - but an argument the facts of this case do not constitute a violation of it.



Ms. O'Donnell finds support for her action against you in Ill. Rev. Statutes 1104.3: "Psychiatric records are the mutual property of the doctor and the patient, and anyone who perpetrates, or acquiesces in the perpetration of, a misuse or misappropriation of those records is guilty of a misdemeanor." What is your best argument that that statute is irrelevant to Ms. O'Donnell's action against you?



a. That rule is part of a chapter of the Illinois statutes dealing with the duties of hospitals toward their patients (true fact). 10

To be viewed as a source of private duties actionable in tort, a criminal law must aim to protect the same interest as tort. Here, the inclusion of the rule in a statute dealing with hospitals raises a fair argument that the purpose is the regulation of hospitals, not the protection of privacy, and is therefore irrelevant to a tort action.

b. "Acquiescence" requires more than simple knowledge that a misuse may occur. 0

This argument calls for an interpretation of the words of the statute. It is not an argument that the statute is irrelevant but that it is inapplicable to the facts of this case. Worse, it is extremely weak and raises a question of fact, which will wind up before the jury: did your behavior constitute "acquiescence?".

c. You did not acquiesce in Mr. Katz' transmission of the records to Ms. Singletary but, in fact, warned him in writing not to do it. 3

This is not an argument that the statute is irrelevant - which is what the question asked for - but an argument the facts of this case do not constitute a violation of it.

d. This statute is a criminal law and does not establish a duty in tort by a lawyer to a person who is not his or her client. 2

Indeed it doesn't, but courts will look to the criminal law as a source of duties in tort, if the criminal law is otherwise relevant.







ESSAY QUESTION. The Tarasoff opinion has sent shivers down the spine of every profession that deals confidentially with clients, patients, or customers. Consider the application of that doctrine to the legal profession. Is it true that a lawyer would have a duty to warn anyone he or she had reason to believe was threatened by a client? Consider a lawyer who had a client who was plotting to take over a company, sell its assets and fire its workers. Should that lawyer be personally liable for failing to warn them? Should the lawyer be liable only if the client does something illegal as part of his plot? Or should the lawyer only be liable if what the client wants to do will physically injure someone? Why? Consider a lawyer who has a corporate client who will produce a product that is not perfectly safe. Must the lawyer warn its customers of the dangers or face personal liability? What of the lawyer who represents a criminal defendant who has expressed rage and a desire to harm the prosecuting attorney?



I. Should Tarasoff liability apply to lawyers? If not, why not? If so, what should be the limits on that liability? Why?



II. Is the rule in Tarasoff a good one? Why (not)?



Use both sides of the following page for your answer.




This question raises issues that go very deep into the heart of tort law. A good place to start Part I would be to ask whether or not the Tarasoff court might have applied its doctrine to lawyers. It is not at all clear that it would have done so. That court places considerable emphasis upon the professional training of the psychiatrist in matters of the human psyche. It cites the amicus brief to the effect that predicting violence is generally impossible and that, if required to do so, psychiatrists will vastly overpredict, but leaves that issue for later in the proceeding (it is highly significant that Tarasoff arose on dismissal of the complaint).



There is reason to believe that that court would not have come to the same conclusion if it was a lawyer who was the defendant. That interpretation is strengthened by the difference between the lawyer/client relationship and the psychiatrist/patient relationship. The lawyer is hired to represent the client, in a sense becoming an extension of the client. Moreover, that relationship is central to the judicial process itself, where the lawyer/client privilege is the strongest ethical responsibility of the lawyer. One simply must feel that her lawyer is on her side. Notice as well that psychiatric counseling, unless required by court, is optional, while most legal representation is not.



But it does not follow under the question above that because the Tarasoff court would probably not be applied to lawyers, it should not be so applied. Notice, however, that this is, at best, an extremely close question. There were those who took this as a dead issue - of course it should apply to lawyers; to do otherwise would be inhuman, reprehensible, have the public hate lawyers, and so on. This was a big mistake, for it dashed over the hard job if you were going to take this position: how and to what extent would such liability by justified? That is no easy answer to provide, for the union between lawyer and client, indeed the subservient role of the lawyer (not the case in psychiatry), is central to the legal process. It would be a bit much of me to expect you to have a developed understanding of that relationship at this point in your education, but I did expect you to see that there was something very basic going on here; most talked about the lawyer's duty of confidentiality, which is a thin way to think about it, but it did evince a sensibility to what is at stake.



What could trump this value, such that the law would compel the lawyer to breach it? We know that there is no general duty to rescue in tort law, unless one has undertaken a rescue to the detriment of another. Forcing the lawyer to blow the whistle smacks of inventing a duty to rescue, but there is a little bit more here, for the lawyer/client relationship is a private one. In the ordinary rescue case the need for rescue is a public matter (e.g., drowning man screaming for help). Here, the lawyer will be the only one who knows that another is at risk. Further, the lawyer may have instilled a level of confidence or resentment in the client that leads him or her to brash thoughts. If such be the case, the situation is more like the rescuer who stops rescue in the middle than a simple bystander.



Notice, however, that if this is the basis that one chose for imposing the duty on lawyers, it will support only an extraordinarily limited duty on the lawyer, to wit, those situations in which there is a fatal result (the failed rescue doctrine applies to fatalities) and the lawyer is in a unique position to know of the danger.



There are other grounds upon which one could conceivably base a duty on the part of the lawyer. The court in Tarasoff, for example, invented a "special relationship" between the psychiatrist and Tatiana. In fact, of course, there was no relationship between them whatsoever, but the court cobbled one up, misapplying the Restatement of Torts for support (see note 1 following the case). If you simply cited "special relationship" as your grounds, however, you failed to set forth even an arguably sufficient ground for the duty, but you needed to explain how it is that one can have a "special relationship" with someone one doesn't even know. The Supreme Court of California may be able to get away with misapplying the Restatement for they are the final authority, but you and I are not.



There is the foreseeability approach: It is fundamental to tort law that one who foresees, or should foresee, a risk to another must act to avoid it, if ? Right, if the person creates the risk, but not if one does not create the risk - there is no duty to rescue. This approach requires that the rescue doctrine be dealt with. To leave it on simple foreseeability leaves it standing on one leg, from which it topples. You must at the very, very least argue that the lawyer is involved somehow in the creation of the risk, which will lead to a very, very limited duty on the lawyer.



Then there is the moral duty approach: You and I both feel, in our heart of hearts, that we should warn the person at risk; we feel under a moral obligation to do so; the law should recognize that moral obligation as a legal one. This approach requires some exploration of the relationship between moral precepts and legal principles. To the extent that this was not present, to the extent that you said, "I feel this to be true, so I'm going to make it law." there was no ground for the duty you found.



There were some other bases offered for the duty, all lacking altogether in legal significance. For example, "The public expects it and will hate lawyers if they aren't liable." which is extremely hard to believe, given that lawyers have never been liable in this way and there has been so little public outcry that, to my knowledge, there has never been a law proposed to create such a duty. There was a lamentable tendency in some papers for the writer to establish him or herself as the Moses of moral obligations, enunciating duties ex cathedra. That simply is not the way law goes. To act that way one must first be elected god.



Let's say that you concluded that some sort of duty on the lawyer was justified. You now face the task of fashioning a rule that executes on that duty and here there are even worse problems. It is, by the way, perfectly legitimate for a court to reject a proposed duty because no rule can be found to effectuate it. So it is central to set out the rule. The quick approach was to adopt the Tarasoff rule (don't bother quoting it), but here there was a serious problem. It was central in Tarasoff that the complaint alleged that Tarasoff did, in fact, predict that Poddar would kill Tatiana. But that raises the psychiatrist/lawyer distinction, for lawyers are hardly trained in predicting murder. If you simply adopted Tarasoff without more, you didn't cover lawyers. But hardly anyone did that. Mostly, you waved your hands at Tarasoff and said "it" applied to lawyers.



Here came the hot water, for I gave three illustrations in the question (corporate takeover, dangerous product, threatening the DA) that presented threats of varying severity. Carefully note that not one of them comes within Tarasoff, so if you were going to find a duty in any of those cases you had to provide your own test. Most who favored the rule made some attempt to limit exposure, generally by limiting it to cases of threats to physical well-being. One person actually adduced a reason for limiting the lawyer's exposure to those cases, for there financial compensation after the fact was not sufficient. In a few instances people opened lawyer's to the whole spectrum of threatened actions: If a client threatens injury, the lawyer must act. This evinced a disappointing failure to distinguish between wrongs and injuries, a distinction that goes to the heart of tort law. If, I hasten to add, you think that tort law should be about injuries (that is, that every injury is, ipso facto, a wrong) then that is what your entire essay should have been about, for that it is the heart of tort law that you are attacking.



Some papers made an effort to limit the lawyer's exposure to the Tarasoff situation (actual prediction of severe physical injury), a few even going on to an illuminating discussion of the difference between a subjective and an objective test. Many, desiring to go much further, hit upon the Learned Hand test for this situation, generally with poor results. Consider B, p, and L in this situation. p and L raise the question about how the lawyer is to assess them - don't skip it. B is a real kettle of fish. Some simply said that all that is required is a telephone call to the proposed victim - what B could be smaller? That is, most assuredly, only the tip of the B iceberg in this situation, for the warning will destroy not only the instant relationship between lawyer and client but also undercut future relationships with that lawyer and with lawyers in general (a consideration that is part of the Tarasoff test). There were those, incredibly, who felt that these costs could be avoided by keeping the who business secret from clients.



Those who rejected the application of Tarasoff tended to focus, in essence, upon B, upon the costs of such a rule in terms of the lawyer/client relationship and the justice system. Some, pleasurably, went beyond it to wonder what would happen if the lawyer did warn. This is a central analytical move and I wondered why more people did not make it, until I remembered that the Tarasoff court ignored the whole business. But consider it. Your client, who is accused of murder but out on bail, says that he hates a witness who testified against him and will kill him. Is that verbiage or a serious threat? Do you warn the witness or the police? What response do they take? What happens when the witness is not killed? Do we have a cause of action in publication of private facts? or intentional infliction of emotional distress? or defamation? They look like slam dunks to me, unless you create an immunity (oddly, people who favored applying Tarasoff to lawyers disliked immunities, but here, if they thought far enough, they would realize that they had to create one).



Without the immunity the lawyer is duck soup for liability every time his warning is successful. With it, however, what are we saying about the right to privacy, reputation, and emotional tranquility? Worse, have we not suspended the lawyer between the Scylla of failing to warn and the Charibdis of liability for warning? When added to the vagueness of the Tarasoff test, even in its literal form, this deficiency is reason enough to reject the duty even where on feels that the duty is, in the abstract, justified.



Finally, I am troubled (and many were) by the possibility that the Tarasoff rule, if it prospered (which it has not) would actually increase the risk to the public. Unless psychiatrists are completely useless, it is safer to have people who are potentially dangerous under their care than not. Yet Tarasoff most assuredly makes it dangerous for such people to seek them out. And, if they are in therapy, it makes it very wise for them to withhold from the therapist any indication that they are dangerous, which seems likely to thwart the purposes of therapy. Similarly, it seems to me that the society would be safer if those who do contemplate dangerous or illegal acts to be in consultation with a lawyer, who can explain the implications of their actions. Tarasoff looks to me like an instantaneous run solution that exacerbates a long run problem.



Yet there was one reason adduced to support Tarasoff that I found compelling. Paraphrasing it, law is a formative endeavor. We discover new duties, or at least we think we do, and we set them out as rules. Other courts look at those rules and, over time, build on them or kill them off. If it prospers, the idea underlying the duty becomes widespread in society, reforming or developing our sense of our duties to one another. Tarasoff may, in fact, be a bad idea, but it voices a deep felt human need for security and a deep sense, felt by some, of responsibility. The case forces other courts (and law students, for example in this exam) to consider the rule. As we do so we learn better what is possible to achieve through law and what it is that our own natures are capable of. Whether it prospers or dies out Tarasoff will have been an important force in the evolution of law. That is a deep reason.


END OF EXAMINATION