1. Martha Smith went to a K-Mart store at about 7:30 p.m. on September 8 to purchase some diapers and several cans of motor oil. She took her small child along to enable her to purchase the correct size diapers, carrying the child in an infant seat which she had purchased at K-Mart two or three weeks previously. A large K-Mart price tag was still attached to the infant seat.

Martha purchased the diapers and oil and some children's clothes. She was in a hurry to leave because it was then 8:00 p.m., her child's feeding time, and she rushed through the checkout lane. She paid for the diapers, oil, and clothing. Just after leaving the store, she heard someone ask her to stop. She turned around and saw a K-Mart security guard, who asked, "Would you please come back into the store?" Martha replied, "What for?" The security guard pulled out a store badge, showed it to her, and said that if she would just come back into the store, he would like to talk to her about it.

When Martha hesitated, the security guard grabbed her by the arm and led her back into the store, stopping just inside the doors. The guard then told Martha that one of the K-Mart employees had informed him that she saw Martha steal the car seat. Martha denied that she had stolen the seat and explained that she had purchased the seat previously. She demanded to see the person who accused her of stealing the seat. The security guard said that it would take a while to find the employee. Martha asked if they could wait in a more private place, but the guard said that they could not.

After approximately twenty minutes, the employee was found. The employee stated that she saw Martha steal the infant seat by taking it off a table and putting her baby in it. Martha pointed out to the security guard that the seat had cat hairs, food crumbs, and milk stains on it. The guard then said, "I'm really sorry; there's been a terrible mistake. You can go." Martha looked at the clock as she left. The time was 8:30 p.m.

Assume Martha has sued K-Mart for false imprisonment. Your firm represents K-Mart, and your boss wants to know if the store has a valid defense. Research revealed the following statute:

ch. 203, 99

A merchant or merchant's adult employee who has probable cause for believing that a person has stolen store merchandise may detain such person in a reasonable manner for a reasonable length of time.

Using the IRAC method, write analysis of the issues in this case. Include arguments that will be raised by both Martha's attorney and the store's attorney. (Remember, if there are not two sides, you have not selected an issue.)

2. Review the situation of Mrs. Day, presented at the beginning of the chapter. Using the IRAC method, write an analysis of the issues in the case. Include arguments that will be raised by both Mrs. Day's attorney and Mr. Day's attorney. For example, if you represented Mrs. Day, what torts would you argue Mr. Day committed? If you were representing Mr. Day, how would you respond?

3. Prosenjit Podar killed Tatiana Tarasoff. Two months earlier Prosenjit had told Dr. Lawrence Moore, a psychologist, that he intended to kill Tatiana. Dr. Moore did not warn Tatiana or her parents of Prosenjit's intention. What policy considerations would argue against finding the psychologist liable? If you represented Tatiana's parents, how would you reply to those arguments?

4. The defendant company entered a float in a parade. As the float traveled down the street, employees threw candy to the crowd. Children running to collect the candy injured a spectator. Develop an argument for why the spectator should be allowed to sue the company.

5. A grocery store customer was mugged on a sidewalk adjacent to the shopping center. The mugging occurred immediately after the customer left the store. The sidewalk was owned not by the grocery store but by the shopping center. The grocery store knew of numerous similar muggings on the sidewalk. The store employees used the sidewalk to carry bags to customers' cars, and its lease provided that the store could hold sidewalk sales there. Analyze whether the grocery store should be held liable for the customer's injuries.

6. A young woman, Melissa, returned from a solo bicycling trip on Cape Cod to find that her car would not start. A young man, Michael Gentile, lent her his cell phone so that she could call her parents. Her father, who was a member of AAA, called AAA and asked that a tow truck go to the location of his daughter's disabled car. Two hours later the tow truck appeared. The driver asked Melissa where she wanted her car towed but did not offer to give her a ride. Michael offered to give her a lift to her mother's house. She accepted. Somewhere along the way Michael raped and killed her. The parents have sued AAA for negligence. AAA has filed a motion to dismiss. How do you think the court ruled? Why?

7. Every year Camp Good Times holds a hike to the top of Mount Snow or to the top of Barton Hill. Of the two hikes, the one up Mount Snow is a bit more arduous, but either can be accomplished in under an hour. This past year the campers, who ranged in age from seven to twelve, voted to hike up Mount Snow. The fifty campers and two camp counselors made it to the top of the hill in about half an hour with no problems. On the way back down, however, eight-year-old Timmy tripped over a large moss-covered log lying across the path. As a result of his fall, he suffered a broken leg. His parents now want to know whether they can successfully sue the camp for Timmy's injury. Please evaluate their claim based on Sauer.

8. Two crime victims were killed, having been shot. The families wanted to sue the handgun manufacturer under the theory that manufacturers of handguns negligently marketed them in such a way as to create underground market, making it easy to obtain the guns. However, the plaintiffs were not able to identify which specific manufacturer made the handguns used in the shootings. Should they be allowed to pursue their lawsuit and, if so, against whom?

9. An alarm company delayed calling the fire department. By the time the firefighters arrived, the fire had advanced to such a stage that one of the firefighters was killed. The firefighter's widow sued the alarm company, alleging its negligent delay in calling in the fire resulted in her husband's death. How do you think the court decided? Why?

10. Assume you are a legislator and want to draft a statute dealing with social host liability. How would you fashion such a rule? For example, would you limit liability to those cases

a. where minors are involved?

b. where the host knows the guest is intoxicated?

c. where the host actually serves the alcohol?

How would you avoid the concern that finding liability in some cases would potentially lead to unlimited liability for social hosts?

11. Do you think a social host should be liable for accidents caused by drivers who obtained alcohol from the social host? Why? For example, consider the following facts. Margaret Davis gave her daughter, a high school student, permission to hold a party. Davis did not keep alcoholic beverages in her home, and there were none on the night of the party. Before the party began, Davis left. During the unchaperoned party, a seventeen-year-old guest obtained beer brought to the party by another guest. While driving home intoxicated, the guest lost control of his car and injured Ruth Langemann. Should Langemann be allowed to sue Davis for her injuries?

12. In McGuiggan v. New England Telephone & Telegraph Co., the Massachusetts Supreme Court established a test for when social hosts will be held responsible for harm that comes to one of their guests. Please review the standard set by that court as given on page 377. Then think about the following hypothetical:

Seventeen-year-old Sally held a party. She had some friends buy two kegs of beer and bring them to the party. She paid for the kegs and was then partially reimbursed by the other guests. At some point, four men whom she had not invited appeared at the party. They were visibly intoxicated and while at the party helped themselves to Sally's beer. Shortly after the uninvited guests arrived, Tom, one of Sally's friends, told her he was leaving. She asked him to stay because she was apprehensive about the four uninvited men. Tom stayed and later was "sucker punched" by one of those uninvited guests. Tom has sued Sally for his injuries. Sally's attorney filed a motion to dismiss.

How do you think the court ruled? Why?

13. Mr. Alack joined a local health club. He signed a two-page, single-spaced contract that included the following language:

Member assumes full responsibility for any injuries, damages, or losses and does hereby fully and forever release and discharge [the health club] from any and all claims, demands, damages, rights of action, or causes of action, present or future . . . resulting from or arising out of the Member's . . . use or intended use of said gymnasium or the facilities and equipment thereof.

One day while he was exercising, the handle of a rowing machine disengaged from the weight cable and smashed into Mr. Alack's mouth. It was discovered that the machine's handle was not connected with the necessary clevis pin and that the health club did not require periodic inspections of its equipment. If you were representing Mr. Alack, how would you argue that the release would not bar him from suing the health club for its negligent failure to maintain the rowing machine?

14. Before taking part in a horseback riding tour at the Loon Mountain Equestrian Center, Ms. Wright signed the following release:

I understand and am aware that horseback riding is a HAZARDOUS ACTIVITY. . . . I, therefore, release Loon Mountain Recreation Corporation . . . FROM ANY AND ALL LIABILITY FOR DAMAGES AND PERSONAL INJURY TO MYSELF . . . RESULTING FROM THE NEGLIGENCE OF LOON MOUNTAIN RECREATION CORPORATION TO INCLUDE NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY MAINTENANCE OF ANY HORSE.

While on the tour, the guide's horse kicked Ms. Wright in the leg. Ms. Wright sued for negligence, arguing that the tour guide had failed to control the horse after it had given signs it was about to "act out." If you were representing Ms. Wright, how would you argue that the release should not bar her from suing the tour company? What if Ms. Wright, a relatively inexperienced rider, had been injured after having been put on a horse nicknamed "Killer," a horse known to be difficult. Do you think that this waiver would bar her from suing the tour company?

15. One of the events at a local fair involved paying to ride a mechanical bull. John Lilya watched as a rider was thrown from the mechanical bull. John then paid his $5 and signed a release that read:

I acknowledge that riding a mechanical bull entails known and unanticipated risks which could result in physical injury. I expressly agree to accept all the risks in this activity. My participation is purely voluntary, and I elect to participate in spite of the risks.

John mounted the bull and was immediately thrown. He stood up and got back on the bull. He was thrown again. This time when he fell, he fractured his neck. If you were representing the fair sponsors, how would you argue that John assumed the risk of his injury?

16. First review the Irwin case beginning on page 368. Then think about this hypothetical.

Jason was a tenth grader at Dartmouth High School, a Massachusetts public school. One day last April three "youths" who did not attend the school had a violent altercation at the school with two of Jason's classmates. Later that day the three youths returned to the school, proceeded to a second-floor classroom, and stabbed Jason to death.

Jason's mother has sued the school for negligence, alleging that it failed to maintain adequate security and failed to protect her son in the presence of a known threat. The school has filed a motion to dismiss on two grounds: first, that they are protected by the discretionary function exception to the Massachusetts Tort Claims Act and second, that the attack was unforeseeable.

How do you think the court ruled? Why?

17. An amateur soccer game was played between high school-aged players. Julian Nabozny was a goalie. David Barnhill was a forward for the opposing team. David was known for being a very rough player, having acquired more penalties than any other player on the team. Rather than cautioning David to play a clean game, David's coach urged all his players to play as hard as they could and to "go for the kill."

During the game, David kicked Julian in the head while Julian was in possession of the ball. Contact with a goaltender while he is in possession of the ball is a violation of FIFA (International Association Football Federation soccer's international governing body) rules, which governed the contest.

When Julian's dad saw David kick his son in the head, he jumped out of his chair, rushed onto the field, and hit David in the chin with his fist, breaking David's jaw.

Another parent, Mike Bishop, also rushed onto the field. Afraid that Julian might be hurt further, he scooped him up and carried him off the field. Unfortunately, when David had kicked Julian, he had broken his neck. When Mike picked him up, the movement caused compression in Julian's spinal cord, leaving him permanently paralyzed from the waist down.

a. Julian wants to sue David, the other player. In his complaint, which tort theory is Julian's attorney most likely to allege and what will he have to prove for Julian to be successful?

b. Julian also wants to sue the coach. In his complaint, which tort theory is Julian's attorney most likely to allege and what will he have to prove for Julian to be successful?

c. Finally, Julian wants to sue the parent who "helped" him. In his complaint, which tort theory is Julian's attorney most likely to allege and what will he have to prove for Julian to be successful?

d. For the court to allow David to recover against Julian's dad, on what tort theory will David's attorney rely?

18. Return to the fact situation with which we opened this chapter. Have your thoughts changed about whether Maria should be able to sue Dennis for the injuries she suffered? If you were representing her, what arguments would you make? What counterarguments would you expect Dennis' attorney to raise?

19. A 15-year-old threw a 2.5-pound piece of concrete from an overhead pass. It went through the windshield of the truck Barbara Collins was driving. As a result, she suffered severe brain injuries. She sued the manufacturer of the truck, under a theory of strict product liability, claiming that the windshield was defective because its penetration resistance was inadequate. In turn, the truck manufacturer argued that the juvenile's criminal conduct was a superseding cause that relieved it of liability. Who do you think has the better argument and why?

20. Alison, a 14-year-old girl attempted to spray her hair using an aerosol can of AquaNet. When nothing came out, she cut open the can, planning to pour the contents into an empty aerosol bottle. Unhappily, while attempting this operation, she was standing next to a gas stove. The stove was not on, but its pilot light ignited the escaping hair spray, which in turn ignited Alison's clothing, causing extensive burns. She sued the manufacturer of AquaNet for failing to adequately warn about the product's flammability. Do you think she was successful? Why or why not?