5 Strict Liability Flashcards
Question 1483 (MBE Exam #3 AM)
A college student entered the back yard of a zoology professor to attend a social gathering for students that was to be held there. The professor was cleaning out the cage of his pet porcupine and had carelessly allowed the porcupine to roam free. The porcupine, well camouflaged in a pile of leaves, was sunning itself. The student didn’t see the porcupine, tripped over it, and broke his hand. The applicable jurisdiction permits the keeping of a porcupine as a pet. In a strict liability action by the student against the professor, who will prevail?
A. The student, because the professor possessed a wild animal.
B. The student, because the professor, aware that students were coming to a social gathering, failed to act with reasonable care.
C. The professor, because the student was only a licensee, not an invitee.
D. The professor, because the student was not injured as a consequence of a dangerous propensity of the animal.
D. The professor, because the student was not injured as a consequence of a dangerous propensity of the animal.
Answer choice D is correct. While the possessor of a wild animal is generally strictly liable for the injuries caused by the animal, strict liability generally does not apply to injuries that do not result from the dangerous propensities of the animal. Here, the student’s injury was caused by tripping over the porcupine, and not from a dangerous propensity of the porcupine.
Answer choice A is incorrect because, as noted, the possessor of a wild animal is not strictly liable when the injury does not result from the dangerous propensity of the animal.
Answer choice B is incorrect because the action brought by the student was based on strict liability, not negligence. Consequently, the professor’s failure to act with reasonable care is irrelevant.
Answer choice C is incorrect because the exception to strict liability for a possessor of a wild animal applies only to a trespasser who is injured by the wild animal on the possessor’s property. It does not extend to a licensee, such as a social guest, or an invitee.
STRICT LIABILITY - Animals
Question 1491 (MBE Exam #3 PM)
A pest control company fumigated one of two buildings in an apartment complex with a toxic gas in order to eliminate unwanted insects. Even though the company exercised reasonable care, the gas escaped into the other building, which adjoined the fumigated building, where the gas caused serious illness to a tenant in that building. The tenant had received a written advance notice about the fumigation that advised the tenant of the need to vacate his apartment during the hours the fumigation was conducted. The tenant chose instead to remain there in order to watch a favorite television program. The applicable jurisdiction treats fumigation as an ultrahazardous activity. The injured tenant filed an action against the pest control company. Who will prevail?
A. The tenant, because the pest control company is strictly liable for the harm that resulted from the fumigation.
B. The tenant, because the pest control company was negligent in conducting the fumigation.
C. The pest control company, because the tenant was not a resident of the fumigated building.
D. The pest control company, because the tenant assumed the risk.
D. The pest control company, because the tenant assumed the risk.
Answer choice D is correct. Although the pest control company, by engaging in an abnormally dangerous activity, is strictly liable for harm that results from the conduct of that activity, assumption of the risk is a defense to strict liability. The tenant’s decision to remain in the apartment and thereby possibly expose himself to the gas was both knowing and voluntary.
Answer choice A is incorrect because, as noted, even though the company is strictly liable, assumption of the risk is a defense to strict liability.
Answer choice B is incorrect because the company exercised reasonable care in fumigating the building.
Answer choice C is incorrect because the company’s strict liability to the tenant is not based on residency in the fumigated building.
STRICT LIABILITY - Defenses to Strict Liability
