Past California Bar Exam Questions and Answers

The following California Bar Exam questions are reprinted with permission of the California Bar Examiners.  The accompanying exam answers are written by Bar None Review.  Use of these answers is for your personal bar review preparation and law school study only.  The exam answers may not be reprinted or republished in any form without express written permission.

CONTRACTS ESSAY & ANSWER
CONSTITUTIONAL LAW ESSAY & ANSWER
CRIMINAL LAW & PROCEDURE ESSAYS & ANSWERS
TORTS ESSAY & ANSWER

• Torts Essay 1
• Torts Answer A
• Torts Answer B

 

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TORTS ESSAY 1

Dina, aged sixteen, lives at home with her mother, Mary, in a state where the age of majority is eighteen. Mary is aware that Dina has recently exhibited a sometimes violent and delusionary nature diagnosed as schizophrenia and has attacked persons in the neighborhood. Medication that can control Dina's behavior has been prescribed, but without Mary's knowledge, Dina has stopped taking it.

A week after Dina stopped taking her medication, she approached a neighbor, Paul, as he walked along the sidewalk fronting Mary's home. When she has a face to face with Paul, Dina, without provocation, gestured threateningly and screamed, "I know you're out to get me and I'm going to get you first," and then strode away.

Paul, who had no knowledge of Dina's mental illness, phoned Mary about the incident. Mary told Paul that "Dina has sometimes made threats to others, but I do not think she will try to hurt you and I assure you that this will not happen again." Paul believed Mary's assurances and, for that reason, did not seek to avoid Dina.

Mary questioned Dina about the incident, scolded her, and asked if Dina was taking her medication. When Dina said she was, Mary did not pursue the matter.

Two days after Dina confronted Paul, Dina saw him raking leaves which had fallen into the street fronting their adjoining homes. Dina got on her bicycle and rode it as rapidly as she could directly at Paul. Although Dina swerved away from Paul at the last moment, Paul reacted by diving to one side. He struck his head on the curb and suffered a severe concussion and facial injuries

Paul has sued Dina and Mary, alleging tortious causes of action.

1. Is Paul entitled to recover against Dina for:
   
   a. Assault? Discuss.
   b. Battery ? Discuss.
   
   
2. Is Paul entitled to recover against Mary:
   
   a. On the ground that Mary was negligent as to Paul? Discuss.
   b. On the ground that Mary is vicariously liable for Dina's conduct? Discuss

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Answer A to Torts Essay 1

1. Paul v. Dina

a. Assault

Paul has sued Dina alleging the intentional tort of assault. In order to recover, Paul must establish that Dina 1) intentionally 2) created in Paul a reasonable apprehension 3) of imminent harmful or offensive bodily contact. There are two acts of Dina that might give rise to liability for assault.

 

i. Dina's Verbal Threat

Intent. Dina intentionally made the statement, "I'm going to get you first." This was a voluntary act which threatened Paul with some kind of harm.

Reasonable Apprehension. However, Dina's statement should not have led to a reasonable apprehension of imminent harm. She was face to face with Paul and screaming at him and making threatening gestures. These actions may alone have created an apprehension in Paul. However, Dina said, "I'm going to get you first." Thus, Dina's words indicate that the threat is to be carried out in the future. There is no reasonable apprehension of imminent harm, and thus, this element of the tort of assault is not met. Thus, Dina is not liable to Paul for the verbal threat.

 

ii. Dina's Bicycle Attack

The second act of Dina which may give rise to the tort of assault is when Dina rode her bicycle at Paul.

Intent. Dina of her own volition rode her bike towards Paul as fast as possible. This satisfies the requirements of intent. However, is Dina's intent vitiated by the fact that she is possibly delusional and schizophrenic? The answer is no. All persons are capable of intentional torts. There is no incapacity defense. So long as the act is voluntary and is substantially certain to bring about the intended result, the element of intent is met.

Reasonable Apprehension of Imminent Harm. Paul saw Dina riding towards him and was put in fear of harm as evidenced by his leaping to one side to avoid Dina. The test for apprehension is, however, an objective one. In this circumstance, having received a prior verbal threat from Dina and now with her act of bicycling toward him at high speed, Paul had a reasonable apprehension of imminent bodily harm. Dina had the apparent intent to carry out a threat and also the present ability to carry out her threat.

Dina is therefore liable to Paul for assault. She is liable for nominal damages and possibly punitive damages as well as damages caused by the assault. Paul dived away from Dina and struck his head and suffered a severe concussion and facial injuries. Dina will probably be liable to Paul for any medical expenses incurred as well as pain and suffering damages.

Dina may argue that the damages were not caused by her act, but rather were self-inflicted by Paul. However, this argument will fail. During the commission of the tort, it is foreseeable that the victim Paul would try to escape. The injury during the escape was caused by the assault and Dina is liable for these damages.

Dina may attempt to raise the defense of self-defense. A person is privileged to use appropriate force against another person when they reasonably believe that the other is about to cause them imminent harm. Here, Dina said, "I know you're out to get me." This indicates that she believed that Paul was a threat to her in some way. However, the defense of self-defense will fail.

First, the facts indicate no basis for Dina's fear of Paul. For self-defense to apply, Dina's fear would have to be objectively reasonable. It appears that Dina's fear is more likely to be the result of her delusions and not any real events. Thus, she had no reasonable fear of harm from Paul.

Further, self-defense can only be used to prevent or defend against imminent bodily harm. Here, no facts suggest Paul was about to harm Dina. Her fear that Paul might attack her in the future, even if true, would not give rise to self-defense. In fact, Paul was raking leaves and not threatening Dina.

Still further, Dina stated, "I will get you first." This indicates her intent to get Paul before he had the opportunity to hurt her. Even if her belief were true, self-defense does not allow one to take the law into your own hands and go on the offensive.

 

b. Battery

To recover for the intentional tort of battery, Paul must establish that Dina intentionally caused a harmful or offensive contact with Paul's person.

Intent. Here, the same act of Dina, riding the bike at Paul, suffices as the intentional act. The act was voluntary despite Dina's illness as discussed above. Dina might argue that she only intended to scare Paul as evidenced by the fact she swerved away at the last minute. However, Dina intended the tort of assault. This intent will be transferred to the foreseeable tort of battery which occurred. It was foreseeable that Paul would attempt to escape, thus, the harm resulting from the escape will be presumed to have been the result of intent.

Infliction of Harmful or Offensive Contact. As a result of Paul's dive, he suffered facial injuries and a concussion when his head hit the curb. This is a harmful contact with Paul's person sufficient to satisfy this element of battery.

Damages. Dina will be liable for damages from this tort as described above for the tort of assault. Actual damages to cover medical expenses, pain and suffering and possibly punitive damages because this is an intentional tort.

Defenses. Dina's defense of self-defense will fail for the same reasons as above. The court may consider Dina's failure to take the medication as voluntary disablement akin to voluntary intoxication which would further discount any value that Dina's defense of incapacity would have.

 

2. Paul v. Mary

a. Was Mary Negligent as to Paul

Duty. Generally, the law imposes no duty to control the acts of another person. However, under certain circumstances, where a person has knowledge of the dangerous propensities of a person and also the means by which to control the person, then such a duty will arise. Here, Dina is Mary's minor daughter living at home. It is arguable whether Mary has control over Dina. This will be a jury question that could go either way; no facts are given. Mary did have knowledge of Dina's dangerous propensity. She knows of Dina's violent delusionary schizophrenic condition and Paul told her of his encounter with Dina. Thus, a duty of control will be imposed upon Mary. This duty will run to all foreseeable plaintiffs under the Cardozo rule for Palsgraf v. L.I.R.R. Co. Paul is a foreseeable plaintiff, particularly because he notified Mary of Dina's first threat.

Mary, then, has a duty to act as a reasonable person under the circumstances in her control of Dina and her actions towards Paul.

Breach. Did Mary breach her duty of care? Two acts of Mary possibly constitute breach of the duty of care. Mary assured Paul that Dina would not try to hurt him and assured him that the threat would not happen again. This statement turned out to be wrong. However, this is not a classic misrepresentation which must concern a present or past hurt. Mary's statement is a warranty that certain events will not occur in the future. Her statement serves two purposes as well as possibly being a negligent statement. Mary, in making the statement, assumed a duty of care toward Paul. This augments the duty imposed by law. Mary in essence states that she has control of the situation and of Dina.

The second act that may constitute breach of the standard of care is Mary's acts toward Dina. Mary scolded Dina, but she took Dina's word that she was taking her medication. Under the circumstances, a reasonable person would have made certain that Dina was taking her medication. Mary's failure was breach.

Mary's Breach Caused Paul's Harm. Paul probably reasonably relied on Mary's statement that Dina would not threaten him again. Paul's failure to take self-protective action and rely on Mary was one cause of his injury.

Dina would probably not have attacked Paul if she had taken her medication. Therefore, Mary's failure to ensure Dina took her medication was another cause of the harm to Paul. But for Mary's breaches, the harm to Paul would not have occurred.

The harm to Paul was foreseeable because Mary knew of Dina's medical condition and violent propensity. She also knew that Dina had particularly threatened Paul. Thus, Mary's acts are the proximate cause of Paul's harm.

Finally, Paul suffered damages as discussed above. Mary will be liable in negligence for Paul's medical expenses and pain and suffering and lost wages. However, because Mary was merely negligent, she probably won't be liable to Paul for punitive damages.

 

b. Is Mary Vicariously Liable for Dina's Conduct ?

The general rule is that parents are not vicariously liable for the torts of their children. However, many states impose parental liability by statute for intertwined torts of minors. Thus, statutes usually have a limit of liability.

If the state where the events took place has such a statute, Mary may be liable for Dina's acts up to the dollar limit on liability. Otherwise, Mary will have no vicarious liability to Dina's acts.

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Answer B to Torts Essay 1

1. Paul v. Dina

A. Assault

Assault is the intentional causing of an apprehension of immediate harmful or offensive touching.

 

i. Dina's First Approach

When Dina first yelled at Paul that she was "going to get" him, no assault occurred.

Although she may have caused fear or apprehension of future injury, and she made threatening gestures, her words seemingly take away the immediacy; her threat is to get Paul later; her intent is to get Paul later.

If, however, by her words and actions, she intended to cause an apprehension of present injury, Dina's actions in her first approach are sufficient to constitute assault. The facts do not make clear whether some outside event may have caused her to withdraw from an initial intent to threaten present injury.

 

ii. Dina's Second Approach

When Dina rode her bicycle at Paul, she committed assault. She clearly intended to cause Paul to be immediately afraid or apprehensive of a harmful touching. Paul's response of diving to the side shows that he was in fact afraid of being hit. The fact that Dina swerved away is not relevant to the assault which was already complete at that point.

 

B. Battery

Battery is the intentional causation of harmful or offensive contact to the plaintiff's person.

Intent. Dina may not have intended to hit Paul with her bike. Swerving to the side at the last minute may have been her plan all along, or she may have changed her mind as she approached Paul.

Even if her intent was not to hit Paul, Dina may nonetheless have intended a harmful or offensive touching. Paul's response of jumping to the side was foreseeable, as was the possibility that he would hit something or fall down when he did so. This is sufficient to constitute intent.

Causation. Dina's actions clearly caused Paul to hit the ground. But for her riding her bike at him, he would not have jumped, and her actions were the direct and proximate cause of his jumping and injury.

Harmful or Offensive Contact. Paul's response to Dina clearly was harmful, as evidenced by his injury: a severe concussion and facial injuries.

 

C. Defenses

• Consent
  Paul did not consent to Dina's contact. His warning by her ahead of time does not mean there was consent.
  
  
• Incapacity
  Both children and insane people may commit intentional torts. Incapacity is not a defense.
  
  
• Self-Defense
  An individual may respond with non-deadly force to a reasonable belief that she is under attack. She must respond with reasonable force under the circumstances.
  
  Here, Dina does not have the defense of self-defense available because there is no indication that she was under any attack at all.
  
  Although one may be mistaken in her belief of a need for self-defense, this mistake must be reasonable. It's hard to say what a reasonable schizophrenic would believe, but objectively, the reasonable person would not believe Paul was attacking simply by raking leaves in the garden.
  
  Dina has no defense to her intentional torts of assault and battery, and she may further be liable for any emotional distress. Paul may recover for his injuries.

 

2. Paul v. Mary

A. Negligence

An individual is liable for the foreseeable results of her negligent conduct when she has (1) a duty (2) that duty is breached, (3) the breach of duty caused the plaintiffs injury and (4) the plaintiff suffers damages.

 

i. Duty

a. Foreseeable Plaintiff

Paul was clearly a foreseeable plaintiff as Mary knew Paul had been threatened by Dina. He was directly in danger

b. Standard of Care

The standard of care for individuals is objective. One must behave as would a reasonable person under the circumstances. Here, Mary knows that Dina has attacked people in the neighborhood.

c. Parent's Duty

When a parent has (1) special reason to know of the need to control a child and (2) the ability and opportunity to control that child, she may be negligent in failing to do so.

Mary knew Dina could attack people. Mary may have believed that the medication could control Dina, but simply asking Dina if she had taken it is not enough under the circum­stances.

She could have supervised Dina while taking the medication, and knowing that Dina had threatened Paul, she had notice that such supervision was necessary.

Mary was therefore subject to a special duty of care because of her knowledge and her opportunity and ability to control Dina.

 

ii. Breach

An individual breaches her duty when she fails to live up to the required standard of care.

Here, as discussed above, Mary was subject to a special parent's duty. She breached this duty by not controlling Dina, and by assuring Paul that he was in no danger.

 

iii. Causation

a. Actual Cause: But for Mary's failure to control Dina, and but for her inappropriate assurances of safety, Paul's injury would not have occurred. Thus, Mary's negligence is an actual cause of Paul's injury.

b. Proximate Cause: Proximate causation requires that defendant's role in plaintiff's injury was sufficiently connected to the injuring event that the injuring action can be said to be foreseeable.

Here, Mary's failure to control Dina clearly is closely connected to Paul's injuries. If she had assured that Dina took her medication, Dina would not have attacked Paul.

Mary's improper assurances of safety are also probably a proximate cause, because Paul may have been more on the alert had he been forewarned.

Mary's negligence, therefore, can be said to have caused Paul's injuries.

 

iv. Damages

Damages must be suffered in order for a tort recovery to be allowed. Here Paul's physical injuries are sufficient to satisfy this requirement.

 

v. Defenses

a. Intervening Intentional Tort: The intentional tort of another may sometimes break the chain of causation. Here, however, Dina's tort was clearly foreseeable, and was, in fact, the action Mary was responsible for preventing.

b. Assumption of the Risk: If an individual knows of a risk and voluntarily proceeds in the face of it, he may be said to have assumed the risk.

This is not a defense here, however, because Mary's assurances removed any knowledge of the danger from Paul's mind.

Mary should be liable in negligence to Paul for the injuries he suffered at Dina's hands.

 

B. Vicarious Liability

As a general rule, parents are not vicariously liable for the intentional torts of their children. They may be statutorily liable up to a limited dollar amount. This will vary by jurisdiction.

Parents may be liable in negligence for negligent supervision, as Mary is, discussed previously.

 

i. Assumption of a Duty

One may be liable for the torts of another if one assumes the duty to protect against these actions. Here, Mary assumed this duty when she assured Paul of his safety. Thus, she may be vicariously liable. However, under the general rule, Mary is not liable under a vicarious liability theory.

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