i’m finishing up a prep course for the MBE portion of the virginia bar, and one of the practice questions reads as follows:

Edgar, a former major league baseball player, was so eager to have his 7-year-old son, Babe, play baseball that he enrolled him in the little league by falsifying Babe’s age.
One afternoon during a ball game, Babe was called out on strikes by Ump, the umpire. Edgar, who was standing behind the baseline, was so infuriated with Ump’s decision that he shouted in a loud voice, “Kill the umpire.” Babe, who was still holding his bat, swung the bat at Ump. Ump ducked and the bat flew out of Babe’s hands and struck Spek, a spectator, who was standing behind the baseline watching the game. Spek was seriously injured.

In an action by Ump against Edgar for assault,

a) Ump will not prevail because Edgar did not have the requisite intent for the action of assault;
b) Ump will not prevail beccause Edgar did not swing the bat at him;
c) Ump will prevail because Babe acted on Edgar’s order; or
d) Ump will prevail because, having falsified Babe’s age, Edgar is responsible for Babe’s conduct.

so as not to spoil your reading of the question & answers, my discussion is continued…

now, according to the prep company, the correct answer is A, based on the following rationale:

“the facts here do not imply that Edgar intended to bring about a harmful contact or the apprehension of one. The expression Edgar used is commonly heard at baseball games, and someone who uses it generally does not intend that another person will carry out the act.”

i happened to choose answer C, because it seems to me that a child that young would be more likely than not to act on a parent’s apparent order, and furthermore, the parent should reasonably know that their very young kid would carry out the act. whether or not the parent intended another person - not his child - to carry out the act should be irrelevant.

to me, it seems that answer A hinges not on knowledge of the law (assault requiring intent), but on knowledge that such an exclamation at a baseball game does not carry with it intent. personally, i don’t like baseball, and i’ve been to exactly two games in my life. i’ve never watched one on television. how the hell am i supposed to know that the expression used by Edgar is common at baseball games?