Week Ten, Part 4 - Torts: Revenge Of The Classroom Gods

As Professor Charles Rice hands back our mid-terms in Torts, I expect a grade no higher than a D. To me, the test was overwhelming.

The Woodenism about “failing to prepare is preparing to fail” runs through my head. To get ready for the exam, all I did was memorize the elements of each intentional tort: battery, assault, false imprisonment, trespass to land, trespass to chattels, infliction of emotional distress, conversion.

I open my bluebook. At the top of the first page I see a B+.

Yeah, baby! Move over, Justice Scalia! I've never been so happy with a grade less than A .

Rice gives us feedback. “I saw very few problems with the law,” he says, “though everybody made the basic mistake of concluding that Nemo was a bailee of the gas can.”

That’s strange, I think. I didn’t deal at all with bailments, the law of obligations arising when one person leaves personal property in the possession of another.

“And when Able runs out of gas and rolls his car into the private drive, that’s necessity.”

Missed that issue too.

Rice talks about statutory negligence and the question of causation. “All I wanted you to do was play with it,” he says. “Max out the issue.”

Bailments. Necessity. Statutory negligence. Causation. Hmmm. Either Rice is the incarnation of generosity or my grade should have much lower.

I reopen my exam. Not a mark on it. I suspect Rice skimmed my answer or gave me a grade based on the first paragraph.

His statement of “I saw very few problems with the law” is true, only because he didn’t look.

The revenge of the classroom gods is swift.

As part of our continuing discussion of negligence, Rice brings us to the topic of res ipsa loquitur, Latin for “the thing speaks for itself.” This doctrine allows plaintiffs to infer negligence by the mere fact that an accident happened.

“For example,” Rice explains, “suppose you’re walking on a sidewalk near the St. Francis Hotel in San Francisco. It is not V-J Day. Suddenly, a large overstuffed armchair hits you in the head, although no one saw where it came from.”

Rice lists the elements of res ipsa on the board. Using the Socratic method, he questions a student over Holmes v. Gamble, a 1982 case from Colorado. The judge in Holmes had used a “preponderance of the evidence” standard and granted the defendant’s motion for a directed verdict. A higher court overturned the decision. It said the trial court should have applied a “probability of the evidence” standard.

“The point,” Rice says, “is that probability is higher than preponderance.”

Deirdre “Dee” Grant raises her hand. She’s a waif-like student from Ireland with an undergraduate law degree. “Are you sure?” she asks. Dee tugs on the bill of her baseball cap, then reads aloud from a section of Holmes. It seems to indicate that “probability” is a quantum of evidence below “preponderance.”

Wow! A student challenging a prof on a legal issue. The class is quiet. We’ve never seen this before.

Rice looks down for about 15 seconds, reading the paragraph in question.

“Mea culpa,” he says. “It’s the first time, but I goofed.”

Ha! Back at ya! After eight weeks of terrorizing us, albeit in a humorous fashion, Rice has gotten a little comeuppance.

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