Final Exam

Question 1

The plaintiff is being treated by a physician for asbestosis, an abnormal chest condition that was caused by his on-the job handling of materials containing asbestos. His physician has told him that the asbestosis is not presently cancerous, but that it considerably increases the risk that he will ultimately develop lung cancer.

The plaintiff brought an action for damages, based on strict product liability, against the supplier of the materials that contained asbestos. The court in this jurisdiction has ruled against recovery of damages for negligently inflicted emotional distress in the absence of physical harm.

If the supplier is subject to liability to the plaintiff for damages, should the award include damage for emotional distress he has suffered arising from his knowledge of the increased risk that he will develop lung cancer?

A: No, because the plaintiff’s emotional distress did not cause his physical condition.
B: No, because the court does not recognize a cause of action for an increased risk of cancer.
C: Yes, because the supplier of a dangerous product is strictly liable for the harm it causes.
D: Yes, because the plaintiff’s emotional distress arises from bodily harm caused by his exposure to asbestos.

Answer 1

D: Yes, because the plaintiff’s emotional distress arises from bodily harm caused by his exposure to asbestos.

D is correct. This is an instance where a defendant (the supplier) is liable for a physical injury (the chest condition and related prognosis) and the plaintiff’s emotional distress stems from that underlying tortious conduct. Because the plaintiff may recover for all consequences flowing from this underlying liability, he may tack on the emotional distress
damages.

A is incorrect. This type of causation is only relevant to a negligent or intentional infliction of emotional distress cause of action. This is a strict liability for physical harm that caused subsequent emotional suffering.

B is incorrect. The cause of action is not at issue. The issue is the proper scope of damages, which includes emotional distress stemming from liability for an underlying physical injury. Here, the plaintiff has a chest condition and future risk of additional health consequences, all of which can give rise to pain and suffering.

C is incorrect. This answer choice is too broad. The “tacking on” of emotional damages is only permitted when a tortiously-inflicted physical injury causes emotional distress.

Question 2

The defendant operates a collection agency. He was trying to collect a valid $400 bill for medical services rendered to the plaintiff by a doctor that was past due.

The defendant went to the plaintiff’s house and when the plaintiff’s mother answered the door, the defendant told her that he was there to collect a bill owed by the plaintiff. The mother told the defendant that because of the plaintiff’s illness, the plaintiff had been unemployed for six months, that she was still ill and unable to work, and that she would
pay the bill as soon as she could.

The defendant, in a loud voice, demanded to see the plaintiff and said that if he did not receive payment immediately, he would file a criminal complaint charging her with fraud. The plaintiff, hearing the conversation, came to the door. The defendant, in a loud voice, repeated his demand for immediate payment and his threat to use criminal process.

Assume that the plaintiff did not suffer physical harm as a result of the defendant’s conduct, but did suffer severe emotional distress. If the plaintiff asserts a claim against the defendant based on intentional infliction of emotional distress, will the plaintiff prevail?

A: Yes, because the plaintiff suffered severe emotional distress as a result of the defendant’s conduct.

B: No, because the bill for medical services was valid and past due.

C: No, because the plaintiff did not suffer physical harm as a result of the defendant’s conduct.

D: No, because the defendant’s conduct created almost no risk of physical harm to the plaintiff

Answer 2

A: Yes, because the plaintiff suffered severe emotional distress as a result of the defendant’s conduct.

A is correct. The defendant, a bill collector, came to the house of the plaintiff, a severely ill person, and loudly threatened her multiple times with criminal fraud charges over the payment of a hospital bill. This would likely constitute extreme and outrageous behavior.

B is incorrect. Even if the bill for services was valid and past due, the plaintiff could still recover on a claim for intentional infliction of emotional distress based on the defendant’s extreme and outrageous methods of collection, which caused the plaintiff severe emotional distress.

C is incorrect. Severe emotional distress can be evidenced physically, but physical injuries are not required. The correct answer establishes the last necessary element of the tort, making it the correct response.

D is incorrect. Risk of physical harm created by the defendant is not an element of a claim for intentional infliction of emotional distress. Instead, a plaintiff must show that the defendant acted extremely or outrageously with an intent, which succeeded, in causing severe emotional distress.

Question 3

A car driven by the defendant entered land owned by and in the possession of the plaintiff, without the plaintiff’s permission.

Which, if any, of the following allegations, without additional facts, would provide a sufficient basis for a claim by the plaintiff against the defendant?

A: The defendant intentionally drove his car onto the plaintiff’s land.

B: The defendant’s car damaged the plaintiff’s land.

C: The defendant negligently drove his car onto the plaintiff’s land.

D: The defendant’s car damaged the plaintiff’s personal property.

Answer 3

A: The defendant intentionally drove his car onto the plaintiff’s land.

A is correct. This is the only choice that, if true, would be sufficient for a claim of trespass to land. The initial facts establish two of the elements, physical invasion and causation, and this answer satisfies the third element - intent. Therefore, if the defendant intentionally drove his car onto the plaintiff’s land, this would provide a sufficient basis for a
trespass claim.

B is incorrect. Damages are not necessary for a prima facie case of trespass, and they are usually presumed with intentional torts. Moreover, without additional evidence of intent, the claim would be insufficient.

C is incorrect. If the defendant negligently or unintentionally entered the land, it would negate the intent element and the plaintiff would not have a trespass claim.

D is incorrect. As explained above, damages are presumed with intentional torts and without also establishing intent, there would be no trespass claim.

Question 4

While an equestrian was riding her horse on what she thought was a public path, the owner of a house next to the path approached her, shaking a stick and shouting, “Get off my property.” Unknown to the equestrian, the path on which she was riding crossed the private property of the shouting owner. When the equestrian explained that she thought the path was a public trail, the man cursed her, approached the equestrian’s horse, and struck the horse with the stick. As a result of the blow, the horse reared, causing the equestrian to fear that she would fall. However, the equestrian managed to stay on her horse, and then departed. Neither the equestrian nor the horse suffered bodily
harm. If the equestrian brings an action for damages against the property owner, the result should be for

A: the equestrian, for trespass to her chattel property.

B: the equestrian, for battery and assault.

C: the defendant, because the equestrian suffered no physical harm.

D: the defendant, because he was privileged to exclude trespassers from his property.

Answer 4

B: the equestrian, for battery and assault.

B is correct. The equestrian suffered two specific tort injuries. The first was assault. For assault, the defendant must have the apparent present physical ability to complete his threatened battery for the tort of assault to be complete. Words alone are not sufficient. This first tort occurred when the owner approached her, yelling and shaking a stick at her. The second was a battery. A battery is caused by an intentional harmful or offensive touch to the plaintiff’s person or an extension thereof, without consent or privilege. When the owner struck the horse the equestrian was seated on, he committed a battery by striking an extension of the equestrian, causing an offensive touch. Choice B appropriately lists both torts.

A is incorrect. Trespass to chattels is an interference with the equestrian’s possessory interest in her personal property. To prevail in trespass to chattels, however, the equestrian would have to prove actual damages, measured according to the diminution of the chattel’s value. Since the facts clearly state the horse suffered no damage, this claim would not prevail.

C is incorrect. A battery claim does not require bodily harm or severe emotional distress.

D is incorrect. The defendant had no privilege to use any type of force against the equestrian unless she was a threat to the owner’s personal safety.

Question 5

A bank vice president took substantial kickbacks to approve certain loans that later proved worthless. Upon learning of the kickbacks, the bank’s president fired the vice president, telling him, “If you are not out of this bank in 10 minutes, I will have the guards physically throw you
out.” The vice president left at once.

If the vice president asserts a claim against the president based on assault, will the vice president prevail?

A: No, because the guards never touched the vice president.

B: No, because the president gave the vice president 10 minutes to leave.

C: Yes, because the president intended to cause the vice president severe emotional distress.

D: Yes, because the president threatened the vice president with a harmful or offensive bodily contact.

Answer 5

B: No, because the president gave the vice president 10 minutes to leave.

B is correct. In a claim for assault, the vice president must show that the president had the apparent present physical ability to immediately complete his threatened battery in order for the vice president to have had an apprehension of an imminent harmful or offensive contact. Words alone are not sufficient. Therefore, the president did not commit an assault.

A is incorrect. Actual contact is not required for an assault.

C is incorrect. Intent to cause severe emotional distress is not the element of an assault claim; it is an element of the tort of intentional infliction of emotional distress.

D is incorrect. Words alone are not sufficient if not accompanied by some overt act. Further, the threat must be of immediate harm, and the president gave the vice president 10 minutes to leave.

Question 6

A defendant, an inexperienced driver, borrowed a car from the plaintiff, a casual acquaintance, for the express purpose of driving it several blocks to the local drug store. Instead, the defendant drove the car, which then was worth $12,000, 100 miles to another city. While the defendant was driving in the other city the next day, the car was hit by a
negligently driven truck and sustained damage that will cost $3,000 to repair. If repaired, the car will be fully restored to its former condition.

If the plaintiff asserts a claim against the defendant based on conversion, the plaintiff should recover a judgment for

A: $12,000.

B: $3,000.

C: $3,000 plus damages for the loss of the use of the car during its repair.

D: nothing, because the defendant was not negligent.

Answer 6

A: $12,000.

A is correct. The plaintiff should recover the fair market value of the car, $12,000, because the defendant substantially interfered with the plaintiff’s chattel by driving the car 100 miles, keeping it overnight, and incurring $3,000 in damages. This amounts to a conversion claim, which allows for damages for the full value of the car at the time of the
conversion.

B is incorrect. Conversion entitles the plaintiff to the full market value of the chattel at the time of the conversion, which was $12,000. Damages for $3,000 - the amount to repair the car - would be insufficient.

C is incorrect. The defendant’s interference was substantial enough to sustain a conversion claim. As explained above, the plaintiff is entitled to the car’s full market value, not merely repairs plus loss of use.

D is incorrect. The defendant’s interference was intentional and a conversion. Therefore, the defendant’s lack of negligence will not protect him from liability.

Question 7

Question
In the course of a bank holdup, a robber fired a gun at a guard. The guard drew his revolver and returned fire. One of the bullets fired by the guard ricocheted, striking the plaintiff, who was simply a customer at the bank.

If the plaintiff asserts a claim against the guard based upon battery, will
the plaintiff prevail?

A: Yes, because the plaintiff was not the robber’s accomplice.

B: Yes, under the doctrine of transferred intent.

C: No, because the guard fired reasonably in his own defense.

D: No, because the guard did not intend to shoot the plaintiff.

Answer 7

C: No, because the guard fired reasonably in his own defense.

C is correct. The guard will prevail against the plaintiff’s battery claim because the guard reasonably acted in self defense by returning fire when the robber shot at him. Even though the guard injured the plaintiff when he fired, and the plaintiff was an innocent bystander, the guard’s self-defense privilege will protect him from liability because he injured the plaintiff by accident.

A is incorrect. This is an incorrect statement of the facts and a reference to criminal law, which is inapplicable.

B is incorrect. Although there was transferred intent, the guard’s actions are protected by the privilege of self-defense.

D is incorrect. It is incorrect that the defendant had no intent as to the plaintiff. Transferred intent would normally apply, extending the intent to shoot the robber to a bystander. However, the guard is still not liable because he was acting in self-defense, which shields him from liability for the plaintiff’s injuries as well.

Question 8

A plaintiff was walking peacefully along a public street when he encountered the defendant, whom he had never seen before. Without provocation or warning, the defendant picked up a rock and struck the plaintiff with it. It was later established that the defendant was mentally ill and suffered recurrent hallucinations.

If the plaintiff asserts a claim against the defendant based on battery, which of the following, if supported by evidence, will be the defendant’s best defense?

A: The defendant did not understand that his act was wrongful.

B: The defendant did not desire to cause harm to the plaintiff.

C: The defendant did not know that he was striking a person.

D: The defendant thought the plaintiff was about to attack him.

Answer 8

C: The defendant did not know that he was striking a person.

C is correct. If the defendant did not know he was striking a person, such a claim would defeat the intent necessary to be liable for a battery, which requires harmful or offensive contact with the plaintiff.

A is incorrect. This would be ineffective because ignorance of the law is no defense in tort or criminal liability.

B is incorrect. The intent element of battery does not require that the defendant intended to physically harm the plaintiff, so this would also be an ineffective defense.

D is incorrect. This belief would be unreasonable given that the plaintiff was peacefully walking down the street, which means the defendant would not be able to invoke self-defense.

Question 9

A plaintiff owned a large tract of land on the shore of a lake. The defendant lived on a stream that ran along one boundary of the plaintiff’s land and into the lake. At some time in the past, a channel had been cut across the plaintiff’s land from the stream to the lake at a point some distance from the mouth of the stream. From where the defendant lived, the channel served as a convenient shortcut to the lake. Erroneously believing that the channel was a public waterway, the defendant made frequent trips through the channel in his motorboat. His use of the channel caused no harm to the land through which it passed. Once the defendant learned of the plaintiff’s ownership of the channel, he stopped using it as a shortcut.

If the plaintiff asserts a claim for damages against the defendant based on trespass, which of the following would be a correct disposition of the case?

A: Judgment for the plaintiff for nominal damages, because the defendant intentionally used the channel.

B: Judgment for the defendant, because he did not use the channel after learning of the plaintiff’s ownership claim.

C: Judgment for the defendant, because he caused no harm to the plaintiff’s land.

D: Judgment for the defendant, because when he used the channel he believed it was a public waterway.

Answer 9

A: Judgment for the plaintiff for nominal damages, because the defendant intentionally used the channel.

A is correct. Trespass is an intentional entry onto the land of another, without permission. The intent only refers to the intent to enter the property; the defendant need not know that it is another’s private property. For an intentional trespass to land, damage is not required; the court will award nominal damages based on the trespass alone. The
facts here support a claim for trespass because the defendant intentionally used the channel, without permission, even though he incorrectly believed it was a public waterway. All other answer choices may be eliminated because they find in favor of the defendant.

B is incorrect. The fact that the defendant stopped using the channel after learning of the plaintiff’s ownership does not preclude a trespass violation, which does not require the defendant to be aware of the plaintiff’s ownership.

C is incorrect. A trespass claim does not require a showing of damages.

D is incorrect. As explained above, a trespass claim does not require the defendant to know that the property belongsto someone else; here, the defendant’s belief that it was a public waterway does not protect him from liability

Question 10

A defendant built in his backyard a garage that encroached two feet across the property line onto property owned by his neighbor. Thereafter, the defendant sold his property to a friend. The neighbor was unaware, prior to the defendant’s sale to his friend, of the encroachment of the garage onto her property. When the neighbor subsequently learned of the encroachment, she sued the defendant for damages for trespass.

In this action, will the neighbor prevail?

A: No, because the defendant was unaware of the encroachment when the garage was built.

B: No, because the defendant no longer owns or possesses the garage.

C: Yes, because the defendant knew where the garage was located, whether or not he knew where the property line was.

D: Yes, because the friend was unaware of the encroachment when he purchased the property.

Answer 10

C: Yes, because the defendant knew where the garage was located, whether or not he knew where the property line was.

C is correct. The defendant’s intentional entry onto the land was enough to satisfy intent; he did not need to know he was trespassing onto the neighbor’s land to be held liable.

A is incorrect. Building the garage on the land is sufficient intent because the land was entered intentionally; the intent to trespass is not required.

B is incorrect. If the defendant committed an intentional trespass by entering the neighbor’s land and building on it, then it is irrelevant that he no longer owns the building in question.

D is incorrect. The friend’s lack of knowledge does not establish intent on the part of the defendant.

Question 11

The plaintiff, a jockey, was seriously injured in a race when another jockey, the defendant, cut too sharply in front of her without adequate clearance. The two horses collided, causing the plaintiff to fall to the ground, sustaining injury. The State Racetrack Commission ruled that, by cutting in too sharply, the defendant committed a foul in violation of
racetrack rules requiring adequate clearance for crossing lanes. The plaintiff has brought an action against the defendant for damages in which one count is based on battery.

Will the plaintiff prevail on the battery claim?

A: Yes, if the defendant was reckless in cutting across in front of the plaintiff’s horse.

B: Yes, because the State Racetrack Commission determined that the defendant committed a foul in violation of rules applicable to racing.

C: No, unless the defendant intended to cause impermissible contact
between the two horses or apprehension of such contact by the plaintiff.

D: No, because the plaintiff assumed the risk of accidental injury inherent in riding as a jockey in a horse race.

Answer 11

C: No, unless the defendant intended to cause impermissible contact between the two horses or apprehension of such contact by the plaintiff.

C is correct. If the plaintiff does not establish the defendant’s intent in one of these two ways, she will not prevail. She must show that the defendant either intended to make offensive contact with the plaintiff’s person or intended to commit assault in that the defendant intended to place her in apprehension of immediate harmful or offensive contact.

A is incorrect. Battery requires the intent to bring about the harmful or offensive contact to the plaintiff’s person or the intent to commit assault, which is a greater threshold than mere recklessness.

B is incorrect. A violation of the rules does not prove battery per se, but it could be considered evidence of intent. The remaining elements for battery still must be satisfied.

D is incorrect. Assumption of risk is not a defense to intentional torts, including battery. Even if the plaintiff assumed the risk, she would still be able to prevail on a battery claim.

Question 12

A real estate developer was trying to purchase land on which he intended to build a large commercial development. An elderly widow had rejected all of the developer’s offers to buy her ancestral home, where she had lived all her life and which was located in the middle of the developer’s planned development. Finally, the developer offered her
$250,000. He told her that if she rejected it, state law authorized him to have her property condemned. He subsequently parked a bulldozer in front of her house.

The widow then consulted her nephew, a law student, who researched the question and advised her that the developer had no power of condemnation under state law. The widow had been badly frightened by the developer’s threat, and was outraged when she learned that the developer had lied to her.

If the widow sues the developer for damages for emotional distress, will she prevail?

A: Yes, because the developer’s action was extreme and outrageous.

B: Yes, because the widow was frightened and outraged.

C: No, because the widow did not suffer emotional distress that was severe.

D: No, because it was not the developer’s purpose to cause emotional distress.

Answer 12

C: No, because the widow did not suffer emotional distress that was severe.

C is correct. The widow being badly frightened and outraged is insufficient to establish that she experienced severe emotional distress. She sought no medical attention and offered no additional evidence that the level of distress she experienced necessitated medical attention.

A is incorrect. Extreme and outrageous conduct, without a showing of severe emotional distress, is not enough to sustain an IIED claim.

B is incorrect. The widow’s fright and outrage is not enough to establish that her distress was severe, especially given that she had the wherewithal to seek her nephew’s advice about the situation after the threat.

D is incorrect. Intent for IIED does not require that the defendant purposefully caused emotional distress. It is enough that the defendant recklessly disregarded a high probability or had knowledge of a substantial certainty that emotional distress would occur. The widow will still not prevail, however, as stated above.

Question 13

A plaintiff and a man were passengers sitting in adjoining seats on a flight on an airline. There were many empty seats on the aircraft.

During the flight, a flight attendant served the man nine drinks. As the man became more and more obviously intoxicated and attempted to engage the plaintiff in a conversation, the plaintiff chose to ignore the man. This angered the man, who suddenly struck the plaintiff in the face, giving her a black eye.

If the plaintiff asserts a claim for damages against the airline based on battery, she will

A: prevail, because she suffered an intentionally inflicted harmful or offensive contact.

B: prevail, because the flight attendant acted recklessly in continuing to serve liquor to the man.

C: not prevail, because the man was not acting as an agent or employee of the airline.

D: not prevail, because she cannot establish some permanent injury from the contact.

Answer 13

C: not prevail, because the man was not acting as an agent or employee of the airline.

C is correct. For the airline to be held responsible for the man’s commission of battery against the plaintiff, vicarious liability must apply. However, there is no evidence of a special relationship between the man and the airline, such as the man being an agent or employee. As such, vicarious liability will not attach.

A is incorrect. Although this answer lists elements of battery, the question is asking whether the plaintiff can recover from the airline, not from the man directly. For the airline to be liable, vicarious liability would have to render the airline responsible for the man’s tortious conduct, which it does not.

B is incorrect. Even if the flight attendant acted recklessly by serving the man nine drinks, this alone is not enough for the airline to be held liable for the man’s tortious conduct. Vicarious liability must attach to force the airline to be responsible for the man’s actions.

D is incorrect. This is not the correct reason why the plaintiff will not prevail, as no actual injury is required to sustain a battery claim. Only offensive or harmful contact is required.

Question 14

A neighbor, who lived next door to a homeowner, went into the homeowner’s garage without permission and borrowed the homeowner’s chainsaw. The neighbor used the saw to clear broken branches from the trees on the neighbor’s own property. After he had finished, the neighbor noticed several broken branches on the homeowner’s trees that were in danger of falling on the homeowner’s roof. While the neighbor was cutting the homeowner’s branches, the saw broke.

In a suit for conversion by the homeowner against the neighbor, will the homeowner recover?

A: Yes, for the actual damage to the saw.

B: Yes, for the value of the saw before the neighbor borrowed it.

C: No, because when the saw broke the neighbor was using it to benefit the homeowner.

D: No, because the neighbor did not intend to keep the saw.

Answer 14

B: Yes, for the value of the saw before the neighbor borrowed it.

B is correct. The call of the question gives a claim for conversion. Conversion occurs when the defendant’s trespass on the plaintiff’s property interest is substantial and amounts to an act of ownership/dominion.

A is incorrect. The remedy for conversion is always the fair market value of the property at the time of conversion. If the neighbor had not broken the saw, the claim would have only been for trespass to chattels, which would have entitled the homeowner to actual damages, not market value.

C is incorrect. When the neighbor broke the saw, the neighbor became liable to the homeowner for the market value of the saw before the conversion. It is irrelevant that, at the time the saw broke, the neighbor was cutting branches from the homeowner’s trees.

D is incorrect. The neighbor took the saw without permission, which was a trespass to chattels.

Question 15

The warden of a state prison prohibits the photographing of the face of any prisoner without the prisoner’s consent. A news photographer wanted to photograph a notorious mobster incarcerated at the state prison. To circumvent the warden’s prohibition, the photographer flew over the prison exercise yard and photographed the mobster. A prisoner, who was imprisoned for a technical violation of a regulatory statute, happened to be standing next to the mobster when the photograph was taken.

When the picture appeared in the press, the prisoner suffered severe emotional distress because he believed that his business associates and friends would think he was consorting with gangsters. The prisoner suffered no physical harm as the result of his emotional distress. The prisoner brought an action against the photographer for intentional
and reckless infliction of emotional distress.

What is the best argument that the photographer can make in support of a motion for summary judgment?

A: No reasonable person could conclude that the photographer intended to photograph the prisoner.

B: The prisoner did not suffer any physical injury arising from the emotional distress.

C: As a news photographer, the photographer was privileged to take photographs that others could not.

D: No reasonable person could conclude that the photographer’s conduct was extreme and outrageous as to the prisoner.

Answer 15

D: No reasonable person could conclude that the photographer’s conduct was extreme and outrageous as to the prisoner.

D is correct. A motion for summary judgment will be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. For the prisoner to prevail in his claim for intentional and reckless infliction of emotional distress, he must show that: (i) the photographer’s intentional (with purpose or
knowledge to a substantial certainty) or reckless disregard for the consequences of publishing the photograph was; (ii) extreme and outrageous conduct; which (iii) caused the prisoner severe emotional distress. This answer choice addresses the element of outrageousness that is not answered in the fact pattern and which is an objective standard that can be determined as a matter of law.

A is incorrect. The photographer clearly pointed his lens to take a picture, knowing to a substantial certainty that the mobster and his companions would be photographed as a result.

B is incorrect. Severe emotional distress can be evidenced physically, but physical harm is not required.

C is incorrect. The issue of a reporter’s privilege to photograph is a disputed material fact which gives rise to a question for the jury.

Question 16

A host pointed an unloaded revolver at her guest, threatening to shoot him. The guest knew that the revolver was not loaded, and that the ammunition for the revolver was stored in a locked basement closet, two stories below where the two were then standing.

In an action brought by the guest against the host for assault, will the guest be likely to prevail?

A: No, because the host did not intend to shoot her guest.

B: No, because the host did not put her guest in apprehension of an imminent contact.

C: Yes, because the ammunition was accessible to the host.

D: Yes, because the host threatened her guest with a revolver.

Answer 16

B: No, because the host did not put her guest in apprehension of an imminent contact.

B is correct. The tort of assault requires that the plaintiff have an apprehension of an imminent bodily contact. That result did not occur here, because the guest knew that the revolver was not loaded and that the ammunition was in a locked basement closet.

A is incorrect. This answer correctly states that the guest will lose, but it misstates the legal basis for this conclusion. Even though the host did not intend to shoot her guest, she may well have intended to cause the guest to fear being shot. That apprehension, if it had been created, would have been adequate to support the intent of assault.

C is incorrect. Assault requires that the apprehended bodily contact be imminent. It would take the host some time to retrieve the ammunition from a locked closet two floors below, so the guest had no reasonable fear of imminent contact.

D is incorrect. A threat is not enough to support a case for assault unless it actually results in an apprehension of immediate bodily contact. In this case, the guest knew that the revolver was not loaded and that the ammunition was in a locked basement closet, so there was no reasonable fear of imminent contact.

Question 17

A bus passenger was seated next to a woman whom he did not know. The woman stood to exit the bus, leaving a package on the seat. The passenger lightly tapped the woman on the back to get her attention and to inform her that she had forgotten the package. Because the woman had recently had back surgery, the tap was painful and caused
her to twist and seriously injure her back.

If the woman sues the passenger to recover for the back injury, will she be likely to prevail?

A: No, because she is presumed to have consented to the ordinary contacts of daily life.

B: No, because she was not put in apprehension by the touching.

C: Yes, because the passenger intentionally touched her.

D: Yes, because the passenger’s intentional touching seriously injured her.

Answer 17

A: No, because she is presumed to have consented to the ordinary contacts of daily life.

A is correct. The woman gave no indication that she did not want to be subjected to the ordinary touches that are part of life in a crowded society. In the absence of such an indication from her, the passenger was entitled to believe that she implicitly consented to a light tap to get her attention. The passenger’s touch was neither unreasonable nor
inconsistent with ordinary social norms privileging such contacts, and would not amount to offensive or harmful contact sufficient to give rise to a claim for battery.

B is incorrect. This answer correctly states that the woman cannot prevail, but it misstates the legal basis for this conclusion. It is true that the woman would have to prove that she thought that she was about to be touched in order to recover in an action for assault. But the elements of a negligence or a battery action could be established without any reference to whether she had an apprehension of this or contact of any other sort. The reason she cannot recover, despite being seriously injured, is because she gave no indication that she did not want to be subjected to the ordinary touches that are part of life in a crowded society. The passenger’s touch was neither unreasonable nor
inconsistent with ordinary social norms privileging such contacts.

C is incorrect. People are presumed to have consented to the ordinary contacts of daily life. Although the passenger intended to touch the woman, he did not intend a harmful or offensive touching, and the woman gave no indication that she did not want to be subjected to the ordinary touches that are part of life in a crowded society. The touch was
neither unreasonable nor inconsistent with ordinary social norms privileging such contacts.

D is incorrect. Serious injury is neither necessary nor sufficient to support either battery or negligence, although some damage would be required to recover in negligence. Here, although the woman was seriously injured, she will not prevail because she gave no indication that she did not want to be subjected to the ordinary touches that are part of
life in a crowded society. The passenger’s touch was neither unreasonable nor inconsistent with ordinary social norms privileging such contacts.

Question 18

A law student rented a furnished apartment. His landlord began to solicit his advice about her legal affairs, but he refused to provide it. The landlord then demanded that he vacate the apartment immediately. The landlord also began engaging in a pattern of harassment, calling the student at home every evening and entering his apartment without his
consent during times when he was at school. During these unauthorized visits, she removed the handles from the bathroom and kitchen faucets, making the faucets unusable, but she did not touch any personal property belonging to the student. The lease has a year to run, and the student is still living in the apartment. The student has sued the
landlord for trespass.

Is he likely to prevail?

A: No, because he has no standing to sue for trespass.

B: No, because the landlord caused no damage to his property.

C: Yes, for compensatory damages only.

D: Yes, for injunctive relief, compensatory damages, and punitive damages.

Answer 18

D: Yes, for injunctive relief, compensatory damages, and punitive damages.

D is correct. There is evidence supporting compensatory damages (for emotional distress and the removal of the faucet handles) and punitive damages (based on the landlord’s malicious intent and ill will). Because the lease is still in effect and the trespasses are repeated and ongoing, injunctive relief should also be available.

A is incorrect. The student is in legal possession of the apartment and thus has an interest that can be vindicated in a trespass action. There is evidence supporting compensatory damages (for emotional distress and the removal of the faucet handles) and punitive damages (based on the landlord’s malicious intent and ill will). Because the lease is still in effect and the trespasses are repeated and ongoing, injunctive relief should also be available.

B is incorrect. Damage is not necessary to establish a cause of action in trespass, and, in any case, the removal of the faucet handles constituted damage to the property. There is evidence supporting compensatory damages (for emotional distress and the removal of the faucet handles) and punitive damages (based on the landlord’s malicious intent and ill will). Because the lease is still in effect and the trespasses are repeated and ongoing, injunctive relief should also be available.

C is incorrect. Under these facts demonstrating a pattern of ongoing malicious behavior, the law student is unlikely to be limited to compensatory damages. In addition to compensatory damages for emotional distress and the removal of the faucet handles, the student is entitled to punitive damages (based on the landlord’s malicious intent and ill will). Because the lease is still in effect and the trespasses are repeated and ongoing, injunctive relief should also be
available.

Question 19

Under the Federal Tort Claims Act, with certain exceptions not relevant here, the federal government is liable only for negligence. A federally owned and operated nuclear reactor emitted substantial quantities of radioactive matter that settled on a nearby dairy farm, killing the dairy herd and contaminating the soil. At the trial of an action brought against
the federal government by the farm’s owner, the trier of fact found the following: (1) the nuclear plant had a sound design, but a valve made by an engineering company had malfunctioned and allowed the radioactive matter to escape; (2) the engineering company was universally regarded as a quality manufacturer of components for nuclear plants; and (3) there was no way the federal government could have anticipated or prevented the emission of the radioactive matter.

If there is no other applicable statute, for which party should the court enter judgment?

A: The farm owner, on the ground that the doctrine of res ipsa loquitur applies.

B: The farm owner, on the ground that one who allows dangerous material to escape to the property of another is liable for the damage done.

C: The government, on the ground that a case under the Federal Tort Claims Act has not been proved.

D: The government, on the ground that the engineering company is the proximate cause of the farm owner’s damage.

Answer 19

C: The government, on the ground that a case under the Federal Tort Claims Act has not been proved.

C is correct. There has been no finding of negligence on the part of the government. The trier of fact found that the government had selected a reliable manufacturer for the component part and could not have anticipated or prevented the malfunction. The court should therefore enter judgment for the defendant, on the ground that a case under the
Federal Tort Claims Act has not been proved.

A is incorrect. Res ipsa loquitur does not apply here because it is not a situation where the accident causing the injury would normally not happen unless the defendant acted negligently. On the contrary, the evidence tends to establish the total absence of negligence by the federal government.

B is incorrect. Negligence is the only permissible cause of action here, and this answer choice implicates the doctrine of strict liability.

D is incorrect. Proximate cause may be proven based on the actions of multiple defendants. However, this is not necessary to determine here because based on the evidence in the record, the federal government did not breach its duty, as stated above.

Question 20

A man owned a much-loved cat, worth about $25, that frequently trespassed on a neighbor’s property. The neighbor repeatedly asked the man to keep the cat on his own property, but the trespasses did not diminish. Aware of the man’s long-standing attachment to the cat, the neighbor killed the cat with a shotgun in full view of the man. As a
consequence, the man suffered great emotional distress.

In an action by the man against the neighbor, which of the following claims would be likely to result in the greatest monetary recovery?

A: Battery.

B: Intentional infliction of emotional distress.

C: Trespass to a chattel.

D: Conversion.

Answer 20

B: Intentional infliction of emotional distress.

B is correct. The tort of intentional infliction of emotional distress allows recovery for personal injury despite the absence of physical injury or touching of the plaintiff. The prima facie elements of a claim for the intentional infliction of emotional distress are: (i) an act by the defendant constituting extreme and outrageous conduct; (ii) intent or recklessness by the defendant; (iii) causation; and (iv) damages amounting to severe emotional distress. On these facts, the neighbor was aware that his conduct would cause severe emotional distress, and he could be held liable for the man’s emotional suffering, as well as for the value of the cat.

A is incorrect. The neighbor did not touch the man, so the neighbor is not liable for battery. There was an intentional touching, but the touching constituted only trespass to a chattel.

C is incorrect. Trespass to chattels provides an action for intentional interference with the plaintiff’s chattel in a way that causes recognizable harm to the chattel, which was the case here. While the man could state a case of trespass to chattels, any recoverable damages would be limited to $25, the value of the cat. An action establishing intentional infliction of emotional distress would result in a larger recovery.

D is incorrect. Conversion provides a cause of action for interference with a chattel that is substantial enough to amount to the exercise of dominion or control. While the man could state a case for conversion, any recoverable damages would be limited. The standard remedy in conversion is a forced sale, so the man could recover no more than $25, the value of the cat. An action establishing intentional infliction of emotional distress would result in a larger recovery.

Question 21

A college student was asleep in his bed in a college dormitory when his roommate, in a drunken fury, entered their room intending to attack the student with an ice pick while he slept. Fortunately, the phone rang and awakened the student. The roommate retreated quickly and threw the ice pick under his own bed in the same room. The next day, the student heard from friends about the roommate’s murderous plans and later found the ice pick under the roommate’s bed. Even though the college expelled his roommate, the student remained extremely upset and afraid to sleep.

In a suit against the roommate for assault, will the student prevail?

A: No, because the roommate did not touch the student.

B: No, because the student was not awake when the roommate entered the room and was unaware until later that the roommate was intending to attack him.

C: Yes, because it was reasonable for the student to feel afraid of sleeping in his room afterward.

D: Yes, because the roommate intended to inflict serious harm.

Answer 21

B: No, because the student was not awake when the roommate entered the room and was unaware until later that the roommate was intending to attack him.

B is correct. To establish a claim for assault, a plaintiff must demonstrate that he reasonably apprehended that a harmful or offensive touch was imminent. In this case, because he was asleep, the student did not have the apprehension necessary for an assault claim.

A is incorrect. Contact or touching is not required to establish a claim of assault. Assault requires that a plaintiff reasonably apprehend that a harmful or offensive touch is imminent. In this case, however, the student did not have the apprehension necessary for an assault claim because he was asleep.

C is incorrect. Fear is neither necessary nor sufficient to establish a claim for assault. Assault requires a plaintiff to prove that he reasonably apprehended that a harmful or offensive touch was imminent. In this case, because he was asleep, the student did not have the necessary apprehension. Proof of apprehension at the time of the defendant’s act
is necessary even given the fact that the student became fearful of
future harmful contact.

D is incorrect. Proof that the roommate intended to inflict serious harm on the student would satisfy the intent element of a cause of action for assault, but the student cannot establish that he reasonably apprehended an imminent contact, which is another essential element of an assault claim. Because he was asleep, the student did not have the
necessary apprehension.

Question 22

A customer pledged a stock certificate to a bank as security for a loan. A year later, when the customer fully repaid the loan, the bank refused the customer’s demand to return the stock certificate because the officer dealing with the loan had the mistaken belief that there was still a balance due. No one at the bank reviewed the records until two months later, at which time the error was discovered. The bank then offered to return the stock certificate. However, the
customer refused to accept it.

At the time the customer pledged the certificate, the shares were worth $10,000; at the time the customer repaid the loan, the shares were worth $20,000; and at the time the bank offered to return the certificate, the shares were worth $5,000.

If the customer brings an action against the bank based on conversion, how much, if anything, should the customer recover?

A: Nothing, because the bank lawfully came into possession of the certificate.

B: $5,000, because that was the value of the shares when the customer
refused to accept the certificate back.

C: $10,000, because that was the value of the shares when the bank came into possession of the certificate.

D: $20,000, because that was the value of the shares when the customer was entitled to the return of the certificate.

Answer 22

D: $20,000, because that was the value of the shares when the customer was entitled to the return of the certificate.

D is correct. Conversion occurs when a defendant intentionally commits an act depriving the plaintiff of possession of her chattel or interferes with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff use of the chattel. The damages are the full value at the time of the conversion. The conversion occurred when the bank refused to
relinquish the stock certificate in response to the customer’s lawful demand, and at that time the shares were worth $20,000.

A is incorrect. Someone who refuses to surrender a chattel to another person who is entitled to its immediate possession is liable for conversion even if the one holding the chattel originally came into possession lawfully.

B is incorrect. Damages for conversion are determined by the value of the chattel at the time of the conversion itself, which was when the customer demanded the return of the certificate, not when the bank subsequently attempted to remedy the conversion.

C is incorrect. As explained above, conversion damages are based on the value at the time of conversion, not when the defendant first came into possession of the chattel.

Question 23

Unaware that a lawyer was in the county courthouse library late on a Friday afternoon, when it was unusual for anyone to be using the library, a clerk locked the library door and left. The lawyer found herself locked in when she tried to leave the library at 7 p.m. It was midnight before the lawyer’s family could find out where she was and get her
out. The lawyer was very annoyed by her detention but was not otherwise harmed by it.

Does the lawyer have a viable claim for false imprisonment against the clerk?

A: No, because it was unusual for anyone to be using the library late on a Friday afternoon.

B: No, because the clerk did not intend to confine the lawyer.

C: Yes, because the clerk should have checked to make sure no one was in the library before the clerk locked the door.

D: Yes, because the lawyer was aware of being confined.

Answer 23

B: No, because the clerk did not intend to confine the lawyer.

B is correct. Intent to confine the claimant (or to commit some other intentional tort) is essential to establishing liability for false imprisonment. There is no evidence that the clerk had such an intent.

A is incorrect. The fact that it was unusual for anyone to be using the library at the time the clerk locked the door might lead a fact finder to conclude that the clerk was not negligent in failing to detect the lawyer. However, because false imprisonment is an intentional tort, the reasonableness of the clerk’s conduct is irrelevant. If the clerk had intended to lock the lawyer in the library, the lawyer would have a claim for false imprisonment even if it was unusual for anyone to be using the library at the time. Under these facts, however, the clerk did not intend to lock the lawyer in the library, so the lawyer does not have a viable claim for false imprisonment.

C is incorrect. Whether a reasonable person in the clerk’s position would have checked before locking the door is irrelevant to a claim for false imprisonment. False imprisonment is an intentional tort requiring intent to confine the claimant (or to commit some other intentional tort). What a reasonable person would have done is relevant to a negligence claim, but not to a false imprisonment claim.

D is incorrect. In cases involving false imprisonment, courts often hold that the plaintiff must have been aware of the confinement at the time of the imprisonment or else must have sustained actual harm. It is also essential, however, that the defendant have had an intent to confine the plaintiff (or to commit some other intentional tort). If the clerk had had such an intent, the lawyer’s awareness that she was confined might have completed the prima facie case, but the clerk had no such intent.

Question 24

A man tied his dog to a bike rack in front of a store and left the dog there while he went inside to shop. The dog was usually friendly and placid.

A five-year-old child started to tease the dog by pulling gently on its ears and tail. When the man emerged from the store and saw what the child was doing to the dog, he became extremely upset.

Does the man have a viable claim against the child for trespass to chattels?

A: No, because the child did not injure the dog.

B: No, because the child was too young to form the requisite intent.

C: Yes, because the child touched the dog without the man’s consent.

D: Yes, because the child’s acts caused the man extreme distress.

Answer 24

A: No, because the child did not injure the dog.

A is correct. Without any actual harm to the dog or any substantial deprivation of the man’s use of his dog, a trespass to chattels claim will not succeed.

B is incorrect. A small child may be able to form the requisite intent to commit an intentional tort. Here, the child is nevertheless not liable because the man cannot show any actual damage to the dog or his interest in the dog, as required by a trespass to chattels claim.

C is incorrect. Even though the child touched the dog without the man’s consent, trespass to chattels requires the plaintiff to show actual harm, which did not occur here.

D is incorrect. Extreme emotional distress will not satisfy the requirement of actual harm to the chattel or substantial interference with the man’s interest in it.

Question 25

A mother and her six-year-old child were on a walk when the mother stopped to talk with an elderly neighbor. Because the child resented having his mother's attention diverted by the neighbor, the child angrily threw himself against the neighbor and knocked her to the ground. The neighbor suffered a broken wrist as a result of the fall. In an action for battery by the neighbor against the child, what is the strongest argument for liability? A: The child intended to throw himself against the neighbor. B: The child was old enough to appreciate that causing a fall could inflict serious injury. C: The child was old enough to appreciate the riskiness of his conduct. D: The child was not justified in his anger.

Answer 25

A: The child intended to throw himself against the neighbor. A is correct. Even though he is a child, he will be liable for the intentional tort of battery if the neighbor can show that the child had the requisite intent, i.e., that he intended to make the offensive or harmful bodily contact. B is incorrect. Battery does not require proof that the defendant, even a child, knew or intended to cause injury. It is enough that he intended to cause the harmful or offensive contact, even if he did not understand that his actions were wrong or would cause the elderly neighbor to be injured. C is incorrect. The child's ability to appreciate the riskiness of his conduct is irrelevant to a battery claim, which only requires intent to make the harmful or offensive contact. D is incorrect. The child's anger, whether justified or not, is not relevant to a battery claim. The neighbor need only show the intent to make the contact. The relevance of justifiable anger may be relevant to some affirmative defenses, but not to an intentional tort such as battery.

Question 26

A security guard, dressed in plain clothes, was working for a discount store when a customer got into a heated argument with a cashier over the store’s refund policy. Without identifying himself as a security guard, the security guard suddenly grabbed the customer’s arm. The customer attempted to push the security guard away, and the security guard knocked the customer to the floor, causing injuries. The customer sued the discount store for battery on a theory of vicarious liability for the injuries caused by the security guard. The store filed an answer to the customer’s complaint, asserting the affirmative defense of contributory negligence. The customer has moved to strike the affirmative defense. Traditional rules of contributory negligence apply. Should the trial court grant the customer’s motion? A: No, because contributory negligence is an affirmative defense to a cause of action based on vicarious liability. B: No, because the customer should have known that his argument with the cashier might provoke an action by a security guard. C: Yes, because contributory negligence is not a defense to battery. D: Yes, because the customer did not know that he was pushing away someone who was employed as a security guard.

Answer 26

C: Yes, because contributory negligence is not a defense to battery. C is correct. Contributory negligence is a defense to negligence. Here, the action is for battery, an intentional tort. Therefore, the defense will not be available. A is incorrect. The trial court should grant the customer's motion. Contributory negligence can be a defense to vicarious liability, but not to battery. B is incorrect. The trial court should grant the customer's motion. The security guard was dressed in plain clothes so the customer can make the argument that he was unaware of the presence of any security personnel making the action unforeseeable. D is incorrect. The court should grant the customer's motion because contributory negligence is not an available defense. The fact that the customer did not know that he was pushing someone away who was employed as a security guard does not change that fact.

Question 27

A landowner hired a tree specialist to cut down four trees, which he pointed out to the specialist before the specialist began work. Although the landowner reasonably believed that all the trees were on his property, three of the trees that were cut down were in fact on a neighbor’s property. Who, if anyone, is liable to the landowner’s neighbor for conversion? A: Both the tree specialist and the landowner. B: Neither the tree specialist nor the landowner. C: The landowner only. D: The tree specialist only.

Answer 27

A: Both the tree specialist and the landowner. A is correct. Conversion occurs when an actor intentionally interacts with an item that is the personal property of another so as to permanently deprive the rightful owner of possession. It is irrelevant whether the actor knows that the item belongs to another individual. Thus, the landowner’s reasonable belief that the trees were his does not defeat liability for either the landowner or the tree specialist. The tree specialist is also liable for conversion because he intentionally cut down and so severely interfered with the neighbor's interest in the three trees. The fact that the tree specialist was acting under the orders of the landowner does not relieve him of liability. B is incorrect. The landowner’s reasonable belief that the trees were his does not defeat liability for either the landowner or the tree specialist. The landowner and the tree specialist working in concert committed conversion by permanently depriving the neighbor of three trees. C is incorrect. Conversion occurs when an actor intentionally interacts with an item that is the personal property of another and permanently deprives the other of possession. The tree specialist’s actions meet the definition of conversion regardless of the fact that he was directed to take that action by the landowner. D is incorrect. The tree specialist was hired by the landowner and cut down the trees at the direction of the landowner. Therefore, the landowner and the tree specialist are both subject to liability for conversion.

Question 28

A wealthy elderly woman was repeatedly harassed by a debt collector over a period of two months. The debt collector was trying to collect a large debt owed to his client by the woman’s impoverished adult son. Although the debt collector knew that the woman was not legally responsible for the son’s debt, he called the woman multiple times each day and threatened to destroy her credit. He also told her that he knew where she lived and that he was going to withdraw the money from her bank account. As a result, the woman suffered great mental anguish, was unable to sleep, and ultimately suffered serious health consequences. Which of the following conclusions would best support a claim by the woman against the debt collector for intentional infliction of emotional distress? A: The debt collector could reasonably have foreseen that the calls and threats might cause harm to the woman’s health. B: The debt collector’s conduct caused the woman to fear that he was someday going to physically attack her. C: The debt collector’s conduct failed to comply with industry custom. D: The debt collector’s conduct was extreme and outrageous.

Answer 28

D: The debt collector’s conduct was extreme and outrageous. D is correct. A conclusion that the debt collector’s conduct was extreme and outrageous, combined with the fact that the woman experienced severe emotional distress and that the debt collector was probably at least reckless with respect to the risk of causing her distress, will provide the woman with a plausible claim for intentional infliction of emotional distress (IIED). None of the conclusions stated in the other answer choices provides as much support to the woman’s IIED claim. A is incorrect. Even if the woman’s distress was reasonably foreseeable to the debt collector, that fact does not suffice to establish the recklessness or intentionality necessary for IIED liability. B is incorrect. The woman’s subjective belief that the debt collector might someday attack her does not establish that she suffered severe distress or that the debt collector’s conduct was extreme and outrageous, as required in a claim for IIED. C is incorrect. A mere failure to comply with industry custom does not establish any of the elements of IIED. Therefore, this is not a strong argument to support the woman’s IIED claim.

Question 29

A school bus driver reported to a middle school principal that a student had harassed other children on the bus. The principal informed the student’s parents of the bus driver’s report and told them that, because of the student’s behavior, the student could not ride the bus for the next week and would have to be driven to school by a parent. The following Monday morning, after the bus driver had let the children off the bus in front of the school, but before she could close the door and drive away, the student’s father pulled his car directly in front of her bus, blocking the driver’s path. Because there was another bus right behind hers, the driver was unable to move her bus. The father got out of his car and strode toward the open door of the bus, screaming at the driver: “You messed with the wrong family! I am going to get you!” Feeling threatened, the bus driver quickly closed the door. The father pounded on the door with enough force to dent it, screaming obscenities at the driver, until a school security guard intervened. If the driver were to sue the father, which cause of action would give her the best chance of recovery? A: Assault. B: Battery. C: Intentional infliction of emotional distress. D: Trespass to chattels.

Answer 29

A: Assault. A is correct. Assault would be the best theory under which the driver could bring a claim against the father. A reasonable jury could conclude that the father intentionally caused the driver to apprehend imminent harmful physical contact, as is required for assault liability. B is incorrect. There was no battery because the father never touched the driver. Even under the “extended personality” doctrine—which allows a battery plaintiff to establish the necessary contact element if the defendant touches an object closely connected to the plaintiff’s person—making contact with the bus is almost certain not to count as making contact with the driver’s person. C is incorrect. Establishing the elements of an intentional infliction of emotional distress claim requires showing both that the defendant intended to cause severe distress and that the defendant’s conduct was extreme and outrageous. These elements will be harder for the driver to establish than the elements of an assault claim. D is incorrect. Trespass to chattels requires an intentional interference with the plaintiff’s chattel in a way that causes recognizable harm to the chattel. The driver is not likely to be considered to have a possessory interest in the damaged bus, and therefore trespass to chattels would be difficult to prove and less likely to result in recovery than a claim based on assault.

Question 30

A mother took her five-year-old child to a hospital emergency room for treatment. A doctor on the hospital staff molested the child while treating her. At the time, no one was in the treatment room except the doctor and the child; the mother had left the room to get a cup of coffee. Two weeks later, when the child told her mother what had occurred in the treatment room, the mother suffered severe emotional distress that caused her to become physically ill. In an action against the doctor by the mother on her own behalf to recover for intentional infliction of emotional distress, is the mother likely to prevail? A: No, because the mother was contributorily negligent in leaving the child alone with the doctor during treatment. B: No, because the mother was neither the direct victim of the doctor’s conduct nor a contemporaneous witness. C: Yes, because the doctor’s conduct was outrageous. D: Yes, because the mother’s distress was the natural and foreseeable consequence of the doctor’s conduct.

Answer 30

B: No, because the mother was neither the direct victim of the doctor’s conduct nor a contemporaneous witness. B is correct. The mother will not succeed in suing the doctor for her emotional distress caused by his intentional harm to her child. Without being a direct victim of his intentional conduct that caused harm, and without any showing that the mother witnessed the harm to her child or even present at the scene, she will have no cause of action. A is incorrect. The mother will not recover because she was not a direct victim or present when the molestation occurred, not because of her own contributory negligence (or lack thereof). Moreover, the mother was not negligent in leaving her child in the care of a doctor. C is incorrect. Even though the doctor's conduct was outrageous, the mother cannot recover for the reasons stated above. D is incorrect. Although the mother's distress could be a natural and foreseeable consequence of the doctor's conduct, the mother will not be able to recover, as explained above.

Question 31

During a deer-hunting season open to rifle hunters, a hunter saw a deer in the forest. He shot his rifle at the deer, hoping to hit and kill it. Instead, he hit and injured a hiker. The hunter had not realized that the hiker was there. Does the injured hiker have an actionable battery claim against the hunter? A: No, because the hunter did not intend to shoot the hiker. B: No, because the hunter did not make direct physical contact with the hiker. C: Yes, because the bullet from the hunter’s rifle made direct physical contact with the hiker. D: Yes, because the hunter intentionally shot the rifle.

Answer 31

A: No, because the hunter did not intend to shoot the hiker. A is correct. The hunter intended to kill and shoot the deer, not to hit the hiker. The hunter's intent to shoot the deer was legal, not tortious, and thus it will not transfer to the act of shooting the hiker. B is incorrect. The lack of direct physical contact is not dispositive in a battery action because a defendant may be liable where he makes indirect contact. However, the hiker's battery claim will still fail because the hunter lacked the requisite intent. C is incorrect. A battery is an intentional tort, which means that a harmful touching will not necessarily be enough to prevail without the specific intent of the defendant. D is incorrect. Even though the hunter intentionally shot the rifle, this is not alone to meet the intent element for battery. At the very least, the intent to shoot the rifle had to have been in order to inflict harmful or offensive touching, which was not the case. He intended to shoot a deer, which was legal.

Question 32

An ordinance in a small town required all restaurants to designate smoking and nonsmoking sections for their customers. A cigarette smoker and a nonsmoker were seated at adjoining tables in a small restaurant. The smoker’s table was in the smoking section, and the nonsmoker’s table was in the nonsmoking section. When the smoker lit a cigarette, the nonsmoker politely requested that he not smoke, explaining that she had a severe allergy to cigarette smoke. The smoker ignored the nonsmoker’s request and continued to smoke. As a result, the nonsmoker was hospitalized with a severe allergic reaction to the smoke. The nonsmoker brought a battery action against the smoker. Which of the following questions will NOT be an issue in the battery action? A: Did the smoker intend to cause the nonsmoker’s contact with the cigarette smoke? B: Does smoke have the physical properties necessary for making the kind of contact required for battery? C: Is contact with cigarette smoke from a lawful smoking section in a restaurant the kind of contact one must endure as a voluntary restaurant patron? D: Was the smoker’s conduct unreasonable under the circumstances?

Answer 32

D: Was the smoker’s conduct unreasonable under the circumstances? D is correct. Whether the smoker's conduct was reasonable is irrelevant. The defendant's intent to cause harmful or offensive contact with the plaintiff is what would sustain a battery claim. Reasonableness would be relevant to determining negligence, not whether a battery occurred. A is incorrect. Battery requires the plaintiff to establish that the defendant intended to inflict a contact on the plaintiff. B is incorrect. At a minimum, indirect bodily contact is necessary for a battery claim, and whether smoking satisfies that element would be a relevant determination. C is incorrect. If the non-smoker's choice to patronize a restaurant with a legal smoking section amounted to implied consent to coming into contact with cigarette smoke, this may be a complete defense for the smoker against a battery claim.

Question 33

The manager of a department store noticed that a customer was carrying a scarf with her as she examined various items in the blouse department. The manager recognized the scarf as an expensive one carried by the store. The customer was trying to find a blouse that matched a color in the scarf, and, after a while, found one. The manager then saw the customer put the scarf into her purse, pay for the blouse, and head for the door. The manager, who was eight inches taller than the customer, blocked the customer's way to the door and asked to see the scarf in the customer's purse. The customer produced the scarf, as well as a receipt for it, showing that it had been purchased from the store on the previous day. The manager then told the customer there was no problem and stepped out of her way. If the customer brings a claim against the store based on false imprisonment, the store's best defense would be that A: by carrying the scarf in public view and then putting it into her purse, the customer assumed the risk of being detained. B: the manager had a reasonable belief that the customer was shoplifting and detained her only briefly for a reasonable investigation of the facts. C: the customer should have realized that her conduct would create a reasonable belief that facts existed warranting a privilege to detain. D: the customer was not detained, but was merely questioned about the scarf.

Answer 33

B: the manager had a reasonable belief that the customer was shoplifting and detained her only briefly for a reasonable investigation of the facts. B is correct. The manager had a "shopkeeper's (or merchant's) privilege" to detain the customer. For the privilege to be valid, the manager must have had reasonable grounds to believe that the customer was stealing or attempting to steal store property, the detention must be for a reasonable period of time, and it must be conducted in a reasonable manner. If the manager had held the customer after the issue of the stolen scarf had been settled, or after the goods had been recovered in an attempt to obtain a signed confession, the customer's claim for false imprisonment would prevail. B is the best defense because it addresses the elements of the privilege as they pertain to the facts of the situation. A is incorrect. It does not describe a complete defense. The statement only addresses reasonable grounds. C is incorrect. This answer provides a negligence standard of comparative fault. This is an intentional tort issue, however. D is incorrect. This answer does not describe a successful defense. False imprisonment has no specific time requirement. If the customer did not feel free to leave, there is a false imprisonment.

Question 34

A gardener's backyard, which is landscaped with expensive flowers and shrubs, is adjacent to a golf course. While a golfer was playing golf on the course, a thunderstorm suddenly came up. As the golfer was returning to the clubhouse in his golf cart, lightning struck a tree on the course, and the tree began to fall in the golfer's direction. In order to avoid being hit by the tree, the golfer deliberately steered his cart onto the gardener's property, causing substantial damage to the gardener's expensive plantings. In an action by the gardener against the golfer to recover damages for the harm to his plantings, the gardener will A: prevail, because, although occasioned by necessity, the golfer's entry onto the gardener's property was for the golfer's benefit. B: prevail, for nominal damages only, because the golfer was privileged to enter the gardener's property. C: not prevail, because the lightning was an act of God. D: not prevail, because the golfer's entry onto the gardener's property was occasioned by necessity and therefore privileged.

Answer 34

A: prevail, because, although occasioned by necessity, the golfer's entry onto the gardener's property was for the golfer's benefit. A is correct. The golfer has the "incomplete" privilege of private necessity, which allows trespass (without being branded the legal status of trespasser) onto the property of another to avoid a serious personal threat to life or property, but keeps liability for any actual damage caused by the intrusion. The golfer's need to escape a falling tree in a thunderstorm qualifies as an emergency sufficient to invoke a necessity privilege. The privilege of private necessity means that the golfer is only liable for actual damages. B is incorrect. The golfer is not legally a trespasser due to the private emergency that caused him to take refuge on the gardener's property. The golfer's privilege to trespass is incomplete, however, so he must pay the gardener for any actual damages to the property as a result of the golfer's actions. C is incorrect. An act of God is generally used as a defense (superseding cause) in negligence to cut short liability. Instead, the sudden storm created an emergency situation that justified the golfer's intrusion onto the gardener's property. Because it was a personal emergency, however, the golfer is subject to the provisions of the incomplete privilege of private necessity and must pay the gardener for any actual damage to the gardener's property as a result of the entry. D is incorrect. If this had been a public emergency/necessity there would have been complete privilege with no liability. Private necessity, however, is an incomplete privilege, and the golfer is liable for any actual damages he caused.

Question 35

A pedestrian was crossing a street at a crosswalk. A bystander, who was on the sidewalk nearby, thought he saw a speeding automobile heading in the pedestrian's direction. However, the automobile was obviously coming to a stop at the traffic light. Nevertheless, the bystander ran into the street and pushed the pedestrian onto the sidewalk. The pedestrian fell to the ground and broke her leg. In an action for battery brought by the pedestrian against the bystander, will the pedestrian prevail? A: Yes, because the bystander could have shouted a warning instead of pushing the pedestrian out of the way. B: Yes, because the pedestrian was not actually in danger and the bystander should have realized it. C: No, because the driver of the car was responsible for the pedestrian's injury. D: No, because the bystander's intent was to save the pedestrian, not to harm her.

Answer 35

B: Yes, because the pedestrian was not actually in danger and the bystander should have realized it. B is correct. The bystander is liable for pushing the pedestrian because his mistake regarding whether the pedestrian was in danger was unreasonable. The fact that the car was obviously coming to a stop means that it was unreasonable to believe the pedestrian was in danger. The bystander thus has no defense and will be liable for battery. A is incorrect. The bystander's belief that the pedestrian was in danger was unreasonable. As such, there was no need for a warning whatsoever, let alone physical intervention to prevent imminent harm. The bystander will not be privileged in any way for his conduct and will be liable for battery. C is incorrect. The actions of the driver will not cut short the bystander's liability for an intentional harmful or offensive contact. Only the bystander's own privilege will do that. D is incorrect. The bystander’s motivation would not provide a defense to the battery charge if his beliefs about the situation were unreasonable.

Question 36

A plaintiff suffered a serious injury while participating in an impromptu basketball game at a public park. The injury occurred when the plaintiff and the defendant, on opposing teams, each tried to obtain possession of the ball when it rebounded from the backboard after a missed shot at the basket. During that encounter, the plaintiff was struck and injured by the defendant's elbow. The plaintiff now seeks compensation from the defendant. At the trial, evidence was introduced tending to prove that the game had been rough from the beginning, that elbows and knees had frequently been used to discourage interference by opposing players, and that the plaintiff had been one of those making liberal use of such tactics. In this action, will the plaintiff prevail? A: Yes, because the defendant intended to strike the plaintiff with his elbow. B: Yes, because the defendant intended to cause harmful or offensive contact with the plaintiff. C: No, because the plaintiff impliedly consented to violent play. D: No, because the defendant did not intentionally use force that exceeded the players' consent.

Answer 36

D: No, because the defendant did not intentionally use force that exceeded the players' consent. D is correct. The plaintiff gave implied consent to this type of contact by the defendant based on the fact that the game had started out rough, the plaintiff had engaged in similar behavior already, and the defendant did not intentionally use force that went beyond that scope of contact. A is incorrect. The defendant's intentional elbow strike fell squarely within the implied consent given by the players who had been engaging in touching with elbows and knees from the beginning of the game. B is incorrect. When a defendant intends to cause contact with the plaintiff that would typically be considered harmful or offensive, the plaintiff's previous implied consent will be a complete defense as long as the defendant's level of contact remained within the proper scope. C is incorrect. The defendant did not have the privilege of any level of "violent play" with the plaintiff. The defendant's conduct fell within the scope of implied consent but had the defendant exceeded this scope by intentionally engaging in other, more intense violent acts, the plaintiff may have been able to prevail.

Question 37

The police in a large city notified local gas station attendants that a woman recently had committed armed robberies at five city gas stations. The police said that the woman was approximately 75 years old, had white hair, and drove a vintage, cream-colored Ford Thunderbird. Attendants were advised to call the police if they saw her, but to not attempt to apprehend her. Armed robbery is a felony under state law. A traveler was passing through the city on a cross-country journey. The traveler was a 75-year-old woman who had white hair and drove a vintage, cream-colored Ford Thunderbird. When the traveler drove into a gas station, the owner of the station thought the traveler must be the robber wanted by the police. After checking the oil at the traveler's request, the owner falsely informed the traveler that she had a broken fan belt, that her car could not be driven without a new belt, that it would take him about an hour to replace it, and that she should stay in his office for consultation about the repair. The traveler was greatly annoyed that her journey was delayed, but she stayed in the owner's office while she waited for her car. The owner telephoned the police and, within the hour, the police came and questioned the traveler. The police immediately determined that the traveler was not the woman, and the traveler resumed her journey without further delay. In the traveler's action for false imprisonment against the owner, the traveler will A: not prevail, because the owner reasonably believed that the traveler was the wanted woman. B: not prevail, because the traveler suffered no physical or mental harm. C: prevail, because the traveler reasonably believed she could not leave the owner's premises. D: prevail, because the owner lied to the traveler about the condition of her car.

Answer 37

A: not prevail, because the owner reasonably believed that the traveler was the wanted woman. A is correct. Although the owner's actions in keeping the traveler at the gas station satisfy the elements of false imprisonment, the owner will be protected by privilege given that he reasonably believed the traveler had committed a felony, which had actually occurred, and the scope of the confinement was not unreasonable. B is incorrect. Actual injury to the plaintiff is not required unless the plaintiff is unaware of the confinement. The traveler was aware that she was being confined, so no damages are required. Nevertheless, the owner was legally justified by a privilege. C is incorrect. Although the traveler was falsely imprisoned based on her reasonable belief that she could not leave, the owner's privilege of arrest legally excuses him from liability. D is incorrect. As explained above, the privilege excuses the owner from legal liability even though the traveler was falsely imprisoned.

Question 38

A professional football player signed a written consent for his team's physician to perform a knee operation. After the athlete was under a general anesthetic, the doctor asked a world famous orthopedic surgeon to perform the operation. The surgeon's skills were superior to the doctor's, and the operation was successful. In an action for battery by the athlete against the surgeon, the athlete will A: prevail, because the athlete did not agree to allow the surgeon to perform the operation. B: prevail, because the consent form was in writing. C: not prevail, because the surgeon's skills were superior to the doctor's. D: not prevail, because the operation was successful.

Answer 38

A: prevail, because the athlete did not agree to allow the surgeon to perform the operation. A is correct. Battery requires harmful or offensive contact to the plaintiff's person, intent, and causation. Contact to the plaintiff's person is considered offensive if it is not expressly or impliedly consented to by the plaintiff. Unlike a medical malpractice claim, a prima facie case for battery does not require proof of damages to prevail. In this case, the athlete signed a consent form specifically allowing the team doctor to perform the surgery, not the surgeon. Regardless of any superior skill level, the surgeon touched the athlete without his consent, which constitutes offensive contact, and thus meets the requirements for a battery. B is incorrect. The reason the plaintiff will prevail is not that the consent for the doctor to perform the surgery was inwriting, but rather, because of the lack of any consent - express or implied - for the surgeon to perform the surgery. C is incorrect. The fact that the surgeon had superior skills has no bearing on his liability for battery, which does not require a showing of damages. D is incorrect. As explained above, without any need to show damages, the surgery's success does not preclude a battery claim.

Question 39

As a seller, an encyclopedia salesman, approached the grounds on which a homeowner's house was situated, he saw a sign that said, "No salesmen. Trespassers will be prosecuted. Proceed at your own risk." Although the seller had not been invited to enter, he ignored the sign and drove up the driveway toward the house. As he rounded a curve, a powerful explosive charge buried in the driveway exploded, and the seller was injured. Can the seller recover damages from the homeowner for his injuries? A: Yes, because the homeowner was responsible for the explosive charge under the driveway. B: Yes, because the homeowner, when he planted the charge, intended to harm a possible intruder. C: No, because the seller ignored the sign, which warned him against proceeding further. D: No, because the homeowner reasonably feared that intruders would come and harm him or his family.

Answer 39

A: Yes, because the homeowner was responsible for the explosive charge under the driveway. A is correct. The homeowner is liable for battery because he: (i) committed the required act by placing the explosives under his driveway; and (ii) this caused the harm to the salesman. Causation is still present even though the contact was indirect. B is incorrect. This answer is incorrect for several reasons. For a battery claim, the salesman does not need to show that the homeowner intended to cause harm, but rather, offensive or harmful contact. The homeowner had the requisite intent if he merely knew with substantial certainty that his actions would likely bring about the consequences, i.e., that placing the explosives would likely cause an explosion. He did not have to intend any injuries or intend to cause harm to trespassers, including the salesman. This answer also lists a motive, which is not required to prove battery. C is incorrect. The seller's action in ignoring the sign and the homeowner's motives for planting the charge will not negate his liability for the seller's injury. D is incorrect. The facts here do not place the homeowner or his family in any type of jeopardy at all.

Question 40

A landowner who owned a large tract of land in the mountains sought to protect a herd of wild deer that lived on part of the land. Although the landowner had posted signs that said, “No Hunting—No Trespassing,” hunters frequently intruded to kill the deer. Recently, the landowner built an eight-foot-high chain-link fence, topped by three strands of barbed wire, across a gully on her land that provided the only access to the area where the deer lived. A wildlife photographer asked the landowner for permission to enter the land to photograph the deer. Because the landowner feared that any publicity would encourage further intrusions by hunters, she denied the photographer’s request. Frustrated, the photographer attempted to climb the fence. He became entangled in the barbed wire and suffered extensive lacerations. The wounds became infected and ultimately caused his death. The photographer’s personal representative has sued the landowner. Is the personal representative likely to prevail? A: Yes, because the landowner may not use deadly force to protect her land from intrusion. B: Yes, because the landowner had no property interest in the deer that entitled her to use force to protect them. C: No, because the photographer entered the landowner’s land after the landowner had refused him permission to do so and therefore was a trespasser. D: No, because the potential for harm created by the presence of the barbed wire was apparent.

Answer 40

D: No, because the potential for harm created by the presence of the barbed wire was apparent. D is correct. The landowner employed reasonable use of force (the barbed wire) to defend her property, without any attempt to conceal it, which was apparent to the photographer. An average person would stay away from protruding, sharp barbed wire covering the top of a fence. However, the photographer disregarded the obvious risk and proceeded anyway, allowing himself to become severely injured. A is incorrect. Although this is a true statement (landowners may not use deadly force to defend against mere trespassers), the barbed wire here did not amount to "deadly force." To be deadly, someone would have to get major parts of their body extensively caught up in barbed wire. An average person would not have proceeded, especially to such an extent, and thus the photographer assumed the risk. B is incorrect. The landowner had a property interest in the land, which entitled her to protect that interest through reasonable force, even if her motive was primarily to protect the deer. C is incorrect. Even trespassers can sue for injuries caused by certain dangers on a landowner's property, although this does not apply in this case, where the landowner acted properly and the photographer assumed the risk.

Question 41

In a plaintiff’s action for battery, the evidence established the following: the plaintiff was bad-tempered and, as the defendant knew, carried a gun and used it often; the plaintiff struck the defendant first; during the altercation, the plaintiff repeatedly tried to get to his gun; and the blows inflicted upon the plaintiff by the defendant resulted in the plaintiff being hospitalized. Which finding of fact would be most likely to result in a verdict for the defendant? A: The defendant used no more force than he actually believed was necessary to protect himself against death or serious bodily harm. B: The defendant used no more force than he reasonably believed was necessary to protect himself against death or serious bodily harm. C: The defendant, in fact, feared death or serious bodily harm. D: The defendant was justified in retaliating against the plaintiff because the plaintiff struck the first blow.

Answer 41

B: The defendant used no more force than he reasonably believed was necessary to protect himself against death or serious bodily harm. B is correct. The privilege of self-defense permits the use of force actually and reasonably believed to be necessary given the threat posed by the plaintiff. A is incorrect. This answer is incomplete. It is not sufficient that the defendant actually believed that the force he used was necessary to protect himself. The defendant's actual belief that the force he used was necessary must also be objectively reasonable in order to support the privilege of self-defense. C is incorrect. This answer is incomplete. Actual fear is insufficient to support the privilege of self-defense. The defendant is privileged to use only that force which is objectively reasonable given the threat. D is incorrect. The defendant could respond to the first blow only with the force that he actually and reasonably believed was necessary to prevent further attacks. The privilege of self-defense does not permit retaliation or revenge.

Question 42

A farmer kept antiques in an uninhabited farmhouse on his property. The farmhouse had been broken into several times in the past, and some of the farmer’s goods had been stolen. Instead of posting “No Trespassing” signs, the farmer decided to install an alarm system to deter intruders. While the farmer was in the farmhouse installing the alarm system, he heard a window open in the adjoining room. The farmer crept very quietly to the door of the room, threw the door open, and found an intruder, a young child. The farmer immediately struck the child, a 10-year-old girl, very hard in the face, breaking her nose. In an action on behalf of the child against the farmer to recover for the injury to her nose, is the child likely to prevail? A: No, because the farmer did not use deadly force. B: No, because the farmer had probable cause to believe that the child was a thief. C: Yes, because the farmer should have posted a “No Trespassing” sign. D: Yes, because the farmer used excessive force.

Answer 42

D: Yes, because the farmer used excessive force. D is correct. The farmer was privileged to use reasonable force to prevent or end a trespasser's intrusion upon his land or to protect his property, but he was not privileged to use force that threatened serious bodily injury unless he was himself in danger of serious bodily harm. The force the farmer used was sufficient to and did in fact cause serious bodily injury. The child appeared to pose no threat of bodily harm to the farmer and could have been deterred by less forceful means. A is incorrect. The child can state a claim for battery because there was an intentional infliction of a harmful contact. To support a battery action, the contact need not involve force so great as to threaten death. B is incorrect. The force the farmer used was likely to and did in fact inflict serious bodily harm. Even if the child had been a thief, the privilege to use reasonable force to protect one's property does not extend to the use of force likely to cause serious bodily harm when there is no threat of such harm to oneself. The child appeared to pose no threat of bodily harm to the farmer and could have been deterred by less forceful means. C is incorrect. The farmer was not required to have posted a warning in order to have had a privilege to protect his property by the use of reasonable force, although the absence of a warning sign may become a factor in determining whether the steps he took were in fact reasonable. In evaluating whether his actions were reasonable as a defense of his property, the court will ask whether the force he used was excessive. The child appeared to pose no threat of bodily harm to the farmer and could have been deterred by less forceful means. Because the force the farmer used was greater than necessary and was intended to cause serious bodily harm, it was excessive as a defense of property.

Question 43

A rancher and his neighbor were involved in a boundary dispute. In order to resolve their differences, each drove his truck to an open pasture area on his land where the two properties were separated by a fence. The rancher was accompanied by four friends, and the neighbor was alone. The neighbor got out of his truck and walked toward the fence. The rancher got out but simply stood by his truck. When the neighbor came over the fence, the rancher shot him, inflicting serious injury. In a battery action brought by the neighbor against the rancher, the rancher testified that he actually thought his neighbor was armed, although he could point to nothing that would have reasonably justified this belief. Is the neighbor likely to prevail? A: No, because the rancher was standing on his own property and had no obligation to retreat. B: No, because the rancher suspected that the neighbor was armed. C: Yes, because deadly force is never appropriate in a property dispute. D: Yes, because it was unreasonable for the rancher to consider the use of a gun necessary for self-defense.

Answer 43

D: Yes, because it was unreasonable for the rancher to consider the use of a gun necessary for self-defense. D is correct. The rancher will be liable for battery because his use of force sufficient to cause serious bodily injury was not supported by a reasonable belief that the neighbor was armed or that the neighbor even intended to harm him. Absent such a showing, the rancher will not be privileged in his shooting of the neighbor. A is incorrect. Regardless of whether there was a duty to retreat, the rancher's use of deadly force was unreasonable, and thus was not privileged in any location, including his own property. B is incorrect. As stated above, the rancher's belief that the neighbor was armed and intended to shoot him was unreasonable, regardless of his subjective belief, and thus no privilege will apply. C is incorrect. Although this began as a property dispute, such conflicts can escalate and parties may develop the reasonable belief that deadly force is necessary to defend against serious bodily harm or death. However, the rancher's belief was unreasonable, which is why the neighbor will prevail.

Question 44

A driver was traveling along a highway during an unusually heavy rainstorm when the roadway began to flood. To protect his car from water damage, the driver pulled his car up a steep, unmarked driveway abutting the highway that led to a homeowner’s residence. The driver left his car parked in the driveway and walked home, intending to return when the floodwater had subsided. Shortly after the driver started to walk home, the homeowner carefully rolled the car back down his driveway and parked it on the highway shoulder. The floodwater continued to rise and caused damage to the driver’s car. If the driver sues the homeowner to recover for damage to the car, is the driver likely to prevail? A: Yes, because the driver was privileged to park his car on the homeowner’s property. B: Yes, because there were no “no trespassing” signs posted. C: No, because the driver intentionally drove his car onto the homeowner’s property. D: No, because the homeowner was privileged to remove the car from his property.

Answer 44

A: Yes, because the driver was privileged to park his car on the homeowner’s property. A is correct. The driver's intentional intrusion onto the homeowner's property was indeed a trespass, but the trespass was privileged by the necessity created by the storm. A landowner has no right to forcibly expel a trespasser or a trespasser's property when the trespasser was driven by necessity to trespass on his land, and the landowner is liable for any damage to property of the trespasser that results from an expulsion. B is incorrect. The driver was privileged to trespass on the homeowner's land whether or not signs discouraging trespassers had been posted. The question is whether the driver's trespass was privileged by necessity, not whether the driver had been put on notice that he was an unwanted trespasser. C is incorrect. As explained above, the driver's intentional decision to drive onto the homeowner's property was a trespass, but the trespass was privileged by necessity, and as such, the driver is not liable and may also recover damages to his car. D is incorrect. There is no applicable privilege for the homeowner to have forcibly removed the car from his property; the driver's privilege prevails and he is entitled to recover damages.

Question 45

In a tavern, an intoxicated woman threatened to slash a man with a broken beer bottle. Another customer, who had not been threatened by the woman, forcefully grabbed the woman and locked her in the tavern’s storeroom until the police could arrive. In the process, although the customer used reasonable force, the customer badly sprained the woman’s wrist. Is the woman likely to recover in an action against the customer? A: No, because the customer’s conduct was privileged as a defense of others. B: Yes, based on battery only. C: Yes, based on false imprisonment only. D: Yes, based on both battery and false imprisonment.

Answer 45

A: No, because the customer’s conduct was privileged as a defense of others. A is correct. A defense based on the defense of others is available when the defendant has a reasonable belief that the person being aided would have the right of self-defense. The defendant may use as much force as he could have used in self-defense if the injury were threatened to him. Here, an intoxicated woman threatened to slash a man with a broken beer bottle. The man would have the right of self-defense and therefore the woman will not recover in an action against the customer. B is incorrect. The woman cannot recover on a claim for battery because the customer's conduct was privileged as a defense of others. C is incorrect. To prove a false imprisonment claim, there must have been a willful detention, the detention must have been without consent, and the detention must have been unlawful. However, here the customer only locked the woman in the tavern's storeroom until the police could arrive. Therefore, the customer has a valid defense. D is incorrect. As stated above, the woman does not have a cause of action for battery or false imprisonment.

Question 46

A pilot was flying his small plane when he experienced engine trouble and was forced to make an emergency landing. He landed the plane safely in a large yard behind a home located in a relatively remote area. Unfortunately, when he disembarked from the plane, he was attacked and injured by two large dogs kept by the homeowner to discourage trespassers. The homeowner, who had seen the plane land, had ordered the dogs to attack. Several months earlier, the homeowner had posted large signs around the perimeter of the yard warning of the dogs. Does the pilot have a viable claim against the homeowner for battery? A: No, because the homeowner had provided adequate warning. B: No, because the pilot was a trespasser. C: Yes, because the pilot can invoke the privilege of necessity. D: Yes, because the pilot could not reasonably have been expected to see the warning signs posted by the homeowner

Answer 46

C: Yes, because the pilot can invoke the privilege of necessity. C is correct. A battery occurs when a defendant brings about harmful or offensive contact upon the plaintiff with the intent to do so. The homeowner ordered the dogs to attack and so caused the harmful contact to occur with the requisite intent. Therefore, the pilot has a case for battery. The homeowner may then seek to assert a defense of property defense against the pilot, which is a defense to intentional torts. However, when an actor has a privilege to enter the land of another because of necessity, that privilege supersedes the privilege a landowner has in defense of property. Because the pilot had the privilege of necessity, which would defeat the homeowner's defense of defense of property, the pilot can bring a viable battery claim. A is incorrect. The pilot had the privilege of necessity to enter the homeowner's land, which defeats any right the homeowner had to the defense of his property. Additionally, only reasonable force may be used to defend property, unless there is an additional threat of bodily harm to the owner. In this case, the use of vicious dogs would be excessive force against a mere trespasser. B is incorrect. Even though the pilot was a trespasser, he has the defense of private necessity. D is incorrect. Even if the pilot had seen the warnings, he still had the defense of private necessity to enter the property. And the use of vicious dogs would be a use of excessive force against a mere trespasser, which is not allowed.

Question 47

After a car buyer failed to make timely payments on her auto loan and failed to respond to notices of default properly sent to her home address, the loan company hired a collection agency to repossess the car. An employee of the agency went to the buyer’s home and knocked on the front door. When the buyer answered, the employee explained that he was there to repossess the car and asked for the car keys. The buyer handed the employee the keys but then asked the employee to allow her to retrieve her laptop computer from the car. The employee declined the request, explaining to the buyer that any possessions in the car could be reclaimed from the company after the car was repossessed. After pleading unsuccessfully with the employee, the buyer shoved the employee away from the door with such force that the employee fell and suffered a broken wrist. The buyer then ran to the car, which was unlocked, and retrieved the laptop. The employee has sued the buyer for battery. The buyer has moved for summary judgment, arguing that she was privileged to act as she did. Should the trial court grant the buyer’s motion? A: No, because a fact-finder could reasonably conclude that the buyer used excessive force in attempting to defend her property. B: No, because after the buyer handed the keys to the employee, the car was no longer her property. C: Yes, because a possessor can use nonlethal force to protect his or her property. D: Yes, because the buyer complied with the law by returning the car keys and acted reasonably in asking to retrieve the laptop.

Answer 47

A: No, because a fact-finder could reasonably conclude that the buyer used excessive force in attempting to defend her property. A is correct. Summary judgment will be granted if a party shows there is no genuine dispute of material fact and that the party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. The buyer intentionally shoved the employee, which satisfies the prima facie case for battery. As an affirmative defense, the buyer could claim that she was privileged to use force against the employee in order to maintain possession of her property. However, this defense will be established only if the jury reasonably concludes that the buyer’s use of force was reasonable, not excessive, under the circumstances. Thus, the trial court should deny the buyer’s motion for summary judgment because there is a dispute as to whether the buyer’s use of force was reasonable. B is incorrect. The buyer’s claim of a privilege for the use of force would be based on her possessory right in the laptop, not the car. C is incorrect. There is no general rule permitting possessors of property to use nonlethal force to protect their possessory rights in all situations. Possessors can sometimes use nonlethal force to protect their possessions, but only if the force used is reasonable under the circumstances. D is incorrect. The buyer’s compliance with the employee’s request for the keys, and the reasonableness of the buyer’s request to retrieve the laptop, do not establish as a matter of law that the buyer’s use of force was reasonable under the circumstances.

Question 48

An intoxicated man who was standing on a fifth-floor apartment balcony threatened to jump off the building. A bystander pulled the man back into the building, pushed him into a bedroom, and locked the bedroom door from the outside. When the man became sober, the bystander released him from the bedroom. Does the man have a claim against the bystander? A: Yes, for battery, because the bystander pushed the man into the bedroom. B: Yes, for false imprisonment, because the bystander locked the man in the bedroom. C: Yes, for both battery and false imprisonment. D: No, because the bystander was privileged to act as he did.

Answer 48

D: No, because the bystander was privileged to act as he did. D is correct. A person is privileged to use reasonable force to protect another against imminent harm. The privilege includes preventing self-inflicted harm. Here, the intoxicated man was on the verge of harming or killing himself. It was reasonable for the bystander to push the man and lock him in the bedroom until the danger had passed. A is incorrect. Even though the intentional pushing of another person without that person’s consent meets the definition of a battery, the privilege to use force to prevent self-inflicted harm would defeat a battery claim brought by the man. B is incorrect. Although the intentional confinement of another person without that person’s consent meets the definition of false imprisonment, the privilege to use force to prevent self-inflicted harm would defeat this claim. C is incorrect. The man’s intentional pushing and confinement of another person were reasonable under the circumstances because the intoxicated man threatened serious self-inflicted harm.

Question 49

A man rented a beach house for a weeklong vacation. On the day he arrived, just after sunset, he took his bag upstairs to a second-floor bedroom and unpacked. As he was about to head back downstairs, he realized that the stairwell had become too dark to navigate without a light. The man spent about 30 seconds feeling the walls at the top of the stairwell but could not find a light switch. In fact, the switch was located in an awkward position not reachable without descending to the second step. Although he recognized the danger of descending an unfamiliar staircase in darkness, the man started down the stairs. He lost his footing halfway down, fell, and was seriously injured. The man has sued the owner of the beach house for negligence. The jurisdiction recognizes the traditional common law defense of assumption of risk. If the action proceeds to trial, which of the following would be an appropriate (paraphrased) instruction for the court to give to the jury? A: “If you conclude that the owner failed to provide reasonably safe premises, but that the man knowingly and voluntarily chose to encounter the risk of falling on the darkened stairs, then you must assign a percentage of responsibility to the man.” B: “If you conclude that the owner failed to provide reasonably safe premises, but that the man knowingly and voluntarily chose to encounter the risk of falling on the darkened stairs, then you must find for the owner.” C: “If you conclude that the owner failed to provide reasonably safe premises, but that the man was a mere licensee, then you must find for the owner.” D: “If you conclude that the owner failed to provide reasonably safe premises, then you may in your discretion award the man both compensatory and punitive damages.”

Answer 49

B: “If you conclude that the owner failed to provide reasonably safe premises, but that the man knowingly and voluntarily chose to encounter the risk of falling on the darkened stairs, then you must find for the owner.” B is correct. The traditional assumption of risk defense is a complete defense. Therefore, if the jury finds that the man knowingly and voluntarily chose to encounter the risk of falling down the darkened stairs, the owner will not be liable. A is incorrect. The question states that the jurisdiction recognizes the traditional rule for assumption of risk, which is a complete defense. Under the traditional rule, the assignment of a percentage of responsibility does not apply. C is incorrect. The man’s status as a licensee is not relevant to whether he assumed the risk of falling down the stairs. D is incorrect. The question is not about what damages the man might recover but whether he assumed the risk of falling down the stairs and thereby rendered the owner not liable for his injuries.

Question 50

A boater, caught in a sudden storm and reasonably fearing that her boat would capsize, drove the boat up to a pier, exited the boat, and tied the boat to the pier. The pier was clearly marked with "NO TRESPASSING" signs. The owner of the pier ran up to the boater and told her that the boat could not remain tied to the pier. The boater offered to pay the owner for the use of the pier. Regardless, over the boater's protect, the owner untied the boat and pushed it away from the pier. The boat was lost at sea. Is the boater likely to prevail in an action against the owner to recover the value of the boat? A: No, because the owner told the boater that she could not tie the boat to the pier. B: No, because there was a possibility that the boat would not be damaged by the storm. C: Yes, because the boater offered to pay the owner for the use of the pier. D: Yes, because the boater was privileged to enter the owner's property to save her boat.

Answer 50

D: Yes, because the boater was privileged to enter the owner's property to save her boat. D is correct. The boater was privileged to trespass on the owner's property under the doctrine of private necessity, because the boater's property was at risk. Because the boater's intrusion onto the pier was privileged, the owner had no right to exclude her or her boat from the pier. When the owner untied the boat, he committed an unprivileged trespass upon the boater's property, so the owner must pay for the loss of the boat. A is incorrect. The boater was privileged to trespass on the owner's property under the doctrine of private necessity, because the boater's property was at risk. Because the boater's intrusion onto the pier was privileged, the owner had no right to exclude her or her boat from the pier. In telling the boater that she could not tie the boat to the pier, the owner was asserting a right that he did not possess. When the owner untied the boat, he committed an unprivileged trespass upon the boater's property, so the owner must pay for the loss of the boat. B is incorrect. The boater was privileged to trespass on the owner's property under the doctrine of private necessity, because her property was at risk. In order to establish that privilege, the boater need not establish that harm to the boat was inevitable, but only that her actions were reasonable given the circumstances. Because the boater's intrusion onto the pier was privileged, the owner had no right to exclude her or her boat from the pier. When the owner untied the boat, he committed an unprivileged trespass upon the boater's property, so the owner must pay for the loss of the boat. C is incorrect. The boater is likely to prevail, but it is because the boater was privileged to trespass on the owner's property under the doctrine of private necessity. Because the boater's property was at risk, her intrusion onto the pier was privileged, and the owner had no right to exclude her or her boat from the pier. Whether or not the boater offered to pay the owner is irrelevant to the privilege of private necessity. When the owner untied the boat, he committed an unprivileged trespass upon the boater's property, so the owner must pay for the loss of the boat.

Question 51

A doctor ordered chest X-rays for a patient who smoked cigarettes. After the consulting radiologist told the doctor that the X-rays looked normal, the doctor told the patient that he was in good health. In fact, the radiologist had missed signs of cancer on the X-rays that a trained radiologist, acting competently, would have detected. After another X-ray of the patient’s chest, performed one year later, showed advanced lung cancer, the doctor discovered that the radiologist had misinterpreted the patient’s earlier X-rays. The patient died within four months of the later X-ray, because by then his cancer had become untreatable. In a wrongful death suit against the radiologist based on only the facts set out above, a jury found the radiologist negligent and awarded $3 million in compensatory damages and $21 million in punitive damages. Is the radiologist likely to have the punitive damages award vacated on appeal? A: No, because a 7 to 1 ratio of punitive to compensatory damages is constitutionally permissible. B: No, because an award of punitive damages is appropriate for medical malpractice that results in death or serious injury. C: Yes, because punitive damages awards are not authorized unless there is proof of willful or wanton misconduct on the defendant’s part. D: Yes, because the patient smoked cigarettes and therefore was contributorily negligent.

Answer 51

C: Yes, because punitive damages awards are not authorized unless there is proof of willful or wanton misconduct on the defendant’s part. C is correct. Punitive damages may be awarded where there is proof of the defendant’s willful or wanton misconduct. Although the radiologist was negligent, nothing in the facts provided suggests that the radiologist acted with willful or wanton misconduct. Thus, the radiologist is likely to have the punitive damages award vacated on appeal. A is incorrect. The issue is not the amount of damages, but rather the lack of evidence that demonstrates that the radiologist injured the patient in a willful or wanton manner. Absent evidence of willful or wanton misconduct, punitive damages may not be awarded. B is incorrect. Punitive damages are not based on the extent of the plaintiff’s injuries and may only be awarded when there is evidence that the defendant willfully or wantonly injured the plaintiff. Because the facts do not prove that the radiologist acted in a willful or wanton manner, the punitive damages award will likely be vacated on appeal. D is incorrect. The patient’s own negligence is irrelevant to the question of whether punitive damages are appropriate. Regardless of the patient’s own conduct, punitive damages may be awarded where evidence shows the defendant’s willful or wanton misconduct caused injury to the plaintiff. No such evidence is present in the facts; thus, the punitive damages award is improper and will likely be vacated.

Question 52

An eight-year-old child went to the grocery store with her mother. The child pushed the grocery cart while her mother put items into it. The child's mother remained near the child at all times. Another customer in the store noticed the child pushing the cart in a manner that caused the customer no concern. A short time later, the cart the child was pushing struck the customer in the knee, inflicting serious injury. If the customer brings an action, based on negligence, against the child, the child's best argument in defense would be that A: The child exercised care commensurate with her age, intelligence, and experience. B: The child is not subject to tort liability. C: The child was subject to parental supervision. D: The customer assumed the risk that the child might hit the customer with the cart.

Answer 52

A: The child exercised care commensurate with her age, intelligence, and experience. A is correct. This choice gives a child-appropriate negligence standard of care. The customer's claim for negligence will be allowed, but the child will only be held to the standard of care expected of "a reasonable child" of the same age, training, maturity, experience, and intelligence. B is incorrect. This choice is both overly broad and not a defense. The child is not too young to be held liable in tort. Children as young as four have been found capable of forming a tortious intent. C is incorrect. The child's mother can assert supervision of her child as a defense against a claim for negligence in the control of her daughter, but it is not available to the child herself. D is incorrect. The customer did not expressly or impliedly and knowingly assume the risk that the child would push a cart into her. Entering the grocery store was not an assumption of the risk that she might be injured by a store cart.

Question 53

A plaintiff suffered from a serious, though not immediately life-threatening impairment of his circulatory system. The plaintiff's cardiologist recommended a cardiac bypass operation and referred the plaintiff to a surgeon. The surgeon did not inform the plaintiff of the 2% risk of death associated with this operation. The surgeon defended his decision not to mention the risk statistics to the plaintiff because the plaintiff "was a worrier and it would significantly lessen his chance of survival to be worried about the nonsurvival rate." The surgeon successfully performed the bypass operation and the plaintiff made a good recovery. However, when the plaintiff learned of the 2% risk of death associated with the operation, he was furious that the surgeon had failed to disclose this information to him, saying that he would have refused the operation if he had known of the risk. If the plaintiff asserts a claim against the surgeon based on negligence, will the plaintiff prevail? A: No, because the surgeon used his best personal judgment in shielding the plaintiff from the risk statistic. B: No, because the operation was successful and the plaintiff suffered no harm. C: Yes, because the plaintiff would have refused the operation had he been informed of the risk. D: Yes, because a patient must be told the risk factors associated with a surgical procedure in order to give informed consent.

Answer 53

B: No, because the operation was successful and the plaintiff suffered no harm. B is correct. Negligence (including medical malpractice) requires proof of duty, breach, causation, and damages. It is not a dignitary tort. If the plaintiff did not suffer an actual injury, he cannot prevail in an action for negligence against his doctor. A is incorrect. A doctor has a duty to provide the patient with enough information about a procedure's risks to enable the patient to give informed consent. C is incorrect. It does not alter the fact that the plaintiff cannot establish damages in his negligence claim. D is incorrect. This answer choice provides a correct statement about informed consent, but without damages the plaintiff will not prevail.

Question 54

While approaching an intersection with the red light against him, a motorist suffered a heart attack that rendered him unconscious. The motorist's car struck a child, who was crossing the street with the green light in her favor. Under the state motor vehicle code, it is an offense to drive through a red traffic light. The child sued the motorist to recover for her injuries. At trial it was stipulated that: (1) immediately prior to suffering the heart attack, the motorist had been driving within the speed limit, had seen the red light, and had begun to slow his car; (2) the motorist had no history of heart disease and no warning of this attack; (3) while the motorist was unconscious, his car ran the red light. On cross motions for directed verdicts on the issue of liability at the conclusion of the proofs, the court should A: grant the child's motion, because the motorist ran a red light in violation of the motor vehicle code. B: grant the child's motion, because, in the circumstances, reasonable persons would infer that the motorist was negligent. C: grant the motorist's motion, because he had no history of heart disease or warning of the heart attack. D: deny both motions and submit the case to the jury, to determine whether, in the circumstances, the motorist's conduct was that of a reasonably prudent person.

Answer 54

C: grant the motorist's motion, because he had no history of heart disease or warning of the heart attack. C is correct. The stipulated facts prove that there was no legally sufficient evidentiary basis for a reasonable jury to find that the motorist breached his duty of care given that he was not driving negligently and had no history of heart disease that created a foreseeable risk of harm to others while driving. A is incorrect. The motorist's violation of the statute does not constitute negligence per se because he was unconscious when he violated it and it was unforeseeable that he would have lost consciousness for any reason while driving. B is incorrect. Res ipsa loquitur does not apply because the parties stipulated that the motorist lost control of the car, the instrumentality, based on an unforeseen medical emergency that he had no reason to take precautions against. D is incorrect. The motorist's motion for a directed verdict should be granted because, as explained above, a person who is unconscious is not liable for acts he had no control over unless it was foreseeable and precautions were not taken, which was not the case here.

Question 55

A patient had been under the care of a cardiologist for three years prior to submitting to an elective operation that was performed by a surgeon. Two days thereafter, the patient suffered a stroke, resulting in a coma, caused by a blood clot which formed after the operation. When it appeared that she had entered a permanent vegetative state, with no hope of recovery, the artificial life-support system that had been provided was withdrawn, and she died a few hours later. The withdrawal of artificial life support had been requested by her family, and duly approved by a court. The surgeon was not involved in that decision, or in its execution. The administrator of the patient's estate thereafter filed a wrongful death action against the surgeon, claiming that the surgeon was negligent in having failed to consult a cardiologist prior to the operation. At the trial the plaintiff offered evidence that accepted medical practice would require examination of the patient by a cardiologist prior to the type of operation that the surgeon performed. In this action, the plaintiff should A: prevail, because the surgeon was negligent in failing to have the patient examined by a cardiologist prior to the operation. B: prevail, because the blood clot that caused the patient's death was caused by the operation which the surgeon performed. C: not prevail, because there is no evidence that a cardiologist would have provided advice that would have changed the outcome if one had examined the patient before the operation. D: not prevail, because the surgeon had nothing to do with the withdrawal of artificial life support, which was the cause of the patient's death.

Answer 55

C: not prevail, because there is no evidence that a cardiologist would have provided advice that would have changed the outcome if one had examined the patient before the operation. C is correct. The critical issue in this question is whether the lack of a cardiology review is the cause in fact and the legal cause of the injury the patient suffered. This answer choice is the only answer that addresses the need to provide evidence of the causal link between the surgeon's breach of duty and the subsequent medical injury to the patient. A is incorrect. There is no indication that, even if the surgeon had consulted a cardiologist, it would have led to a different outcome. Thus, there is no evidence that the surgeon’s failure to consult a cardiologist was a but-for cause of the harm. B is incorrect. The surgeon is not liable for the resulting harm without the plaintiff establishing actual causation. There is no evidence that the surgeon’s failure to consult a cardiologist was a but-for cause of the harm. D is incorrect. The need for and the potential withdrawal of life support were foreseeable consequences. Thus, if the surgeon was otherwise negligent, he would be liable for the resulting harm.

Question 56

A car owner washed her car while it was parked on a public street, in violation of a local ordinance that prohibits the washing of vehicles on public streets during specified hours. The ordinance was enacted only to expedite the flow of automobile traffic. Due to sudden and unexpected cold weather, the car owner’s waste water formed a puddle that froze in a crosswalk. A pedestrian slipped on the frozen puddle and broke her leg. The pedestrian sued the car owner to recover for her injury. At trial, the only evidence the pedestrian offered as to negligence was the car owner’s admission that she had violated the ordinance. At the conclusion of the evidence, both parties moved for a directed verdict. How should the trial judge proceed? A: Deny both motions and submit the case to the jury, because, on the facts, the jury may infer that the car owner was negligent. B: Deny both motions and submit the case to the jury, because the jury may consider the ordinance violation as evidence that the car owner was negligent. C: Grant the car owner’s motion, because the pedestrian has failed to offer adequate evidence that the car owner was negligent. D: Grant the pedestrian’s motion, because of the car owner’s admitted ordinance violation.

Answer 56

C: Grant the car owner’s motion, because the pedestrian has failed to offer adequate evidence that the car owner was negligent. C is correct. The pedestrian offered no evidence supporting the claim of negligence except the ordinance violation. The ordinance was not adopted to reduce the risk of accumulating ice on public walkways. Accordingly, the car owner's motion should be granted. A is incorrect. Negligence creating the risk of an icy surface cannot be inferred from the mere fact that the car owner allowed the water to accumulate; the cold weather was sudden and unexpected. The ordinance violation is irrelevant because the ordinance was not adopted to reduce the risk of accumulating ice on public walkways. Because there is no reasonable inference of negligence and no independent evidence of negligence, the car owner's motion should be granted. B is incorrect. By referencing the ordinance violation, this answer choice raises the doctrine of negligence per se. Because the pedestrian offered no evidence supporting the claim of negligence except the ordinance violation, the car owner's motion should be granted. D is incorrect. By referencing the ordinance violation, this answer choice raises the doctrine of negligence per se. However, negligence per se does not create a presumption of negligence in this situation.

Question 57

In a civil action, a plaintiff sued a decedent’s estate to recover damages for injuries she suffered in a collision between her car and one driven by the decedent. At trial, the plaintiff introduced undisputed evidence that the decedent’s car had swerved across the centerline of the highway into oncoming traffic, where it had collided with the plaintiff’s car. The decedent’s estate introduced undisputed evidence that, before he swerved across the centerline, the decedent had suffered a fatal heart attack, which he had no reason to foresee, and that, just prior to the heart attack, the decedent had been driving at a reasonable speed and in a reasonable manner. A statute makes it a traffic offense to cross the centerline of a highway. In this case, which party is likely to prevail? A: The decedent’s estate, because its rebuttal evidence is undisputed. B: The decedent’s estate, because the plaintiff has not established a prima facie case of liability. C: The plaintiff, because the accident was of a type that does not ordinarily happen in the absence of negligence on the actor’s part. D: The plaintiff, because the decedent crossed the centerline in violation of the statute.

Answer 57

A: The decedent’s estate, because its rebuttal evidence is undisputed. A is correct. The plaintiff's evidence that the decedent violated the statute and crossed over the centerline establishes a prima facie case of negligence. However, the prima facie case of negligence may be rebutted by showing that compliance with the statute was beyond the defendant's control. Here, the decedent's estate successfully rebutted the plaintiff's evidence by providing an undisputed explanation of how the accident happened that is inconsistent with a finding of negligence (the decedent's unforeseeable heart attack made her unable to comply with the statute or, indeed, with any standard of care). B is incorrect. This answer correctly states that the decedent's estate will prevail, but it misstates the legal basis for this conclusion. As explained above, the decedent's estate successfully rebutted the plaintiff's prima facie case of negligence by providing an uncontested explanation of how the accident happened that is inconsistent with a finding of negligence (the decedent's unforeseeable heart attack made him unable to comply with the statute or, indeed, with any standard of care). C is incorrect. It may or may not be true that accidents of this type do not ordinarily happen in the absence of negligence, but whether they do is irrelevant. As explained above, the decedent's estate has successfully rebutted the plaintiff's prima facie case of negligence by providing an undisputed explanation of how the accident happened that is inconsistent with a finding of negligence (the decedent's unforeseeable heart attack made him unable to comply with the statute or, indeed, with any standard of care). D is incorrect. As explained above, the decedent's estate has successfully rebutted the plaintiff's evidence by providing an undisputed explanation of how the accident happened that is inconsistent with a finding of negligence (the decedent's unforeseeable heart attack made him unable to comply with the statute or, indeed with any standard of care).

Question 58

A food company contracted with a delivery service to supply food to remote areas around the world. The contract between the food company and the delivery service was terminable at will. The delivery service then entered into a contract with an airline to provide an airplane to deliver the food. The contract between the delivery service and the airline was also terminable at will. The food company was displeased with the airline because of a previous business dispute between them. Upon learning of the delivery service’s contract with the airline, the food company terminated its contract with the delivery service in order to cause the airline to lose the business. After the food company terminated the delivery service’s contract, the delivery service had no choice but to terminate the airline contract. If the airline sues the delivery service for tortious interference with contract, will the airline prevail? A: No, because the airline and the delivery service were the parties to the contract. B: No, because the airline was not in privity with the food company. C: Yes, because the delivery service did not terminate the contract because of poor performance. D: Yes, because the delivery service’s termination of the contract made it a party to the food company’s acts.

Answer 58

A: No, because the airline and the delivery service were the parties to the contract. A is correct. The airline company sued the delivery service based on a theory of the tortious interference with its contract. The tort of interference with contract provides a cause of action against those who improperly interfere with the performance of a contract between the plaintiff and a third person. In this case, the airline and the delivery service were parties to a contract, and any action between them would be based on the contract, rather than on tort. The proper defendant in the tort action would be the food company. See Restatement (Second) of Torts § 766. B is incorrect. This answer correctly states that the airline will not prevail, but it misstates the reasoning for this conclusion. The airline could sue the food company for tortious interference even though it was not in privity with the food company, but it did not do so. It sued the delivery service instead. Because the airline and the delivery service were parties to a contract, the action between them would be based on the contract, rather than on tort. See Restatement (Second) of Torts § 766. C is incorrect. There are two reasons why this answer choice is incorrect. First, the delivery service was a party to the contract with the airline company. Any claim of breach is governed by contract law, rather than tort law. Thus, the airline company cannot win on a theory of tortious interference with the contract. Second, even assuming that the airline brought a proper cause of action based on contract law, the contract was terminable at will. Thus, the delivery service could have terminated the contract regardless of the quality of performance without breaking the contract. See Restatement (Second) of Torts § 766. D is incorrect. There is no indication here that the delivery service encouraged or otherwise abetted the food company's decision to cancel its contract. In fact, the delivery service lost business because of that cancellation and would have no reason to encourage the food company to cancel. See Restatement (Second) of Torts § 766.

Question 59

A fire that started in the defendant’s warehouse spread to the plaintiff’s adjacent warehouse. The defendant did not intentionally start the fire, and the plaintiff can produce no evidence as to how the fire started. However, the defendant had failed to install a sprinkler system, which was required by a criminal statute. The plaintiff can produce evidence that had the sprinkler system been installed, it could have extinguished the fire before it spread. In an action by the plaintiff against the defendant to recover for the fire damage, is it possible for the plaintiff to prevail? A: No, because the statute provides only for criminal penalties. B: No, because there is no evidence that the defendant negligently caused the fire to start. C: Yes, because a landowner is strictly liable for harm to others caused by the spread of fire from his premises under the doctrine of Rylands v. Fletcher. D: Yes, because the plaintiff was harmed as a result of the defendant’s violation of a statute that was meant to protect against this type of occurrence.

Answer 59

D: Yes, because the plaintiff was harmed as a result of the defendant’s violation of a statute that was meant to protect against this type of occurrence. D is correct. A criminal statute can be used to set the standard of care in a negligence action if it was intended to protect against the type of harm that occurred by specifying preventive steps that should be taken. In that case, violation of the statute is negligence per se. A is incorrect. As explained above, the criminal statute may be used as the standard of care in this case. B is incorrect. Even though there is no evidence that the defendant intentionally or negligently started the fire, his failure to take preventive steps to stop the spread of fires was a but-for cause of the plaintiff's loss. C is incorrect. The modern interpretation of Rylands v. Fletcher limits the precedent to a category of "abnormally dangerous activities." There is no indication that the defendant here engaged in an abnormally dangerous activity.

Question 60

A schizophrenic patient who was institutionalized in a psychiatric facility pushed a nurse down a stairwell at the facility. The nurse, a paid employee of the facility who was trained to care for schizophrenic patients, was injured. The patient is an indigent whose care is paid for by the government. The jurisdiction generally follows the rule that a person with a mental deficiency is held to the standard of a reasonable person. In a negligence action brought by the nurse against the patient, the patient’s lawyer will argue that the patient should not be held responsible for the nurse’s injury. Which of the following facts will be LEAST helpful to the patient’s lawyer’s argument? A: The nurse was a professional caregiver. B: The nurse was trained to care for patients with schizophrenia. C: At the time she pushed the nurse, the patient thought she was being attacked by an elephant. D: The patient is an indigent whose care is paid for by the government.

Answer 60

D: The patient is an indigent whose care is paid for by the government. D is correct. Whether the patient has the resources to satisfy an adverse judgment is irrelevant to the judgment itself and should not be a subject of argument on the issue of liability in the case, although the patient's financial situation might affect a lawyer's decision to take on the case. A is incorrect. The nurse's professional role is relevant because it might support a defense based on assumption of risk. B is incorrect. The nurse's specialty training is relevant because it might support a defense based on either assumption of risk or contributory negligence. The patient could argue that a professional with the nurse's training should have foreseen the risk of this happening and taken steps to protect herself. C is incorrect. The patient's mental state is relevant because the patient's actions were no doubt caused by the mental illness and thus fell within the risks likely assumed and anticipated by the nurse.

Question 61

A patient received anesthesia while giving birth. Upon awakening from the anesthesia, she discovered a severe burn on the inner portion of her right knee. The patient has brought a medical malpractice action in which she has joined all of the physicians and nurses who exercised control over her person, the delivery room, the medical procedures, and the equipment used during the period in which she was unconscious. The defendants have jointly moved for summary judgment. The patient has produced affidavits that establish that the applicable professional standard of care was violated. What would be the patient’s best argument against the motion? A: At least one of the defendants had control over whatever agency or instrumentality caused the patient’s injury. B: The defendants were acting in concert. C: The patient has produced affidavits that establish that the applicable professional standard of care was violated. D: The patient was in no way responsible for her injury.

Answer 61

A is correct. Showing that a defendant had control over the instrumentality that caused her injury would be a basis for the application of res ipsa loquitur in some jurisdictions and, if res ipsa ioquitur was applied, it could be a basis for defeating the defendants’ motion for summary judgment. B is incorrect. "Acting in concert" refers to jointly engaging in negligent activity. There is no evidence here that the mishap that caused the injury was the result of any joint negligent activity; a single actor may have caused the burn. C is incorrect. Even though the plaintiff can establish that there was negligence by someone, she must also establish that the defendants caused her injury. Evidence that the standard of care was breached establishes that someone was negligent, but it does not establish that all the defendants or any particular defendant were responsible. D is incorrect. Excluding the patient as a cause is ordinarily not enough to establish liability if a responsible injurer cannot be identified. The plaintiff needs an additional doctrine to make the causal connection between her injury and the defendants.

Question 62

A man rented a car from a car rental agency. Unbeknownst to the rental agency, the car had a bomb hidden in it at the time of the rental. The bomb exploded an hour later, injuring the man. Immediately prior to renting the car to the man, the rental agency had carefully inspected the car to be sure it was in sound operating condition. The rental agency did not inspect for hidden explosive devices, but such an inspection would have revealed the bomb. There had been no previous incidents of persons hiding bombs in rental cars. In a negligence action by the man against the car rental agency, is the man likely to prevail? A: No, because the rental agency could not have reasonably foreseen the likelihood of someone placing a bomb in the car it was about to rent to the man. B: No, because the rental agency did not hide the bomb in the car. C: Yes, because an inspection for explosive devices would have revealed the bomb. D: Yes, because the bomb made the car abnormally dangerous.

Answer 62

A: No, because the rental agency could not have reasonably foreseen the likelihood of someone placing a bomb in the car it was about to rent to the man. A is correct. The standard to be applied in a negligence action is whether the defendant acted with ordinary care. The presence of a bomb in a rental car is sufficiently unlikely that a reasonable rental agency would not routinely inspect for such a device. In the absence of evidence that the agency should have foreseen that there might be a bomb hidden in the car, the man cannot prove a negligence claim. B is incorrect. Under some circumstances, the rental agency could be liable even though it did not hide the bomb. If it were reasonably foreseeable that a bomb might be planted in a rental car (for example, because that practice had become a common terrorist tactic in the area), a reasonably prudent rental agency would routinely search for such a device before renting out the car. In that situation, even though the agency did not hide a bomb itself, it would be liable for failing to take reasonable precautions. In this case, the agency will not be liable to the man, because it took all reasonable precautions under the circumstances. C is incorrect. Even if an untaken precaution (such as an inspection for explosive devices) would have revealed a danger, the defendant in a negligence action is responsible only for taking those precautions that are reasonably necessary. A bomb has a high potential for inflicting serious injury, but in most cases it is so unlikely to be found in a rental car that the time and effort needed for a routine search for bombs would not be justified. If incidents involving bombs in rental cars began to occur, that calculation might change, but in this case, the agency will not be liable to the man, because it took all reasonable precautions under the circumstances. D is incorrect. The car may well have become abnormally dangerous once the bomb was planted, but the agency did not intentionally engage in an abnormally dangerous activity. Moreover, even if the court decided that the agency had engaged in an abnormally dangerous activity, that conclusion would support strict liability, not negligence. Unreasonable conduct, rather than abnormal danger, is the key to liability in negligence. And in this negligence action, the agency will not be liable to the man, because it took all reasonable precautions under the circumstances.

Question 63

A 14-year-old girl of low intelligence received her parents' permission to drive their car. She had had very little experience driving a car and did not have a driver's license. Although she did the best she could, she lost control of the car and hit a pedestrian. The pedestrian has brought a negligence action against the girl. Is the pedestrian likely to prevail? A: No, because only the girl's parents are subject to liability. B: No, because the girl was acting reasonably for a 14-year-old of low intelligence and little driving experience. C: Yes, because the girl was engaging in an adult activity. D: Yes, because the girl was not old enough to obtain a driver's license.

Answer 63

C: Yes, because the girl was engaging in an adult activity. C is correct. The girl was engaging in a dangerous activity that is characteristically undertaken by adults, so she will be held to the adult standard of care. No adjustment will be made to that standard to reflect her low intelligence and lack of experience. Her low intelligence and her inexperience put others at risk, and she will be held to the standard of a reasonably prudent driver even if she is not capable of reasonable prudence. A is incorrect. The parents and the girl may both be liable. The girl was engaging in a dangerous activity that is characteristically undertaken by adults, so she will be held to the adult standard of care and can be sued for the injuries caused by her negligent driving. B is incorrect. The girl was engaging in a dangerous activity that is characteristically undertaken by adults, so she will be held to the adult standard of care. No adjustment will be made to that standard to reflect her low intelligence and lack of experience. Her low intelligence and her inexperience put others at risk, and she will be held to the standard of a reasonably prudent driver even if she is not capable of reasonable prudence. D is incorrect. In the absence of a statute setting a different standard, the girl's failure to obtain a license ordinarily would not be evidence that she was actually negligent at the time of the accident. The pedestrian would have to prove actual negligence, which should be easy given that the girl lost control of the car and given the fact that the girl will be held to an adult standard of care because she was engaging in an activity that is characteristically undertaken by adults.

Question 64

A 13-year-old girl was operating a high-speed motorboat. The boat was towing a 9-year-old boy in an inner tube tied to the rear of the motorboat by a rope. The rope became tangled around the boy’s foot, causing him to suffer severe injuries. In a suit brought on the boy’s behalf against the girl, the boy has introduced uncontroverted evidence that the girl drove carelessly in such a way as to entangle the boy in the rope. Is the boy likely to prevail? A: No, because the boy assumed the risk. B: No, because the girl was too young to be expected to appreciate and avoid the risk she exposed the boy to. C: Yes, because children of the girl’s age should have the capacity to operate motorboats. D: Yes, because the girl will be held to an adult standard of care.

Answer 64

D: Yes, because the girl will be held to an adult standard of care. D is correct. In order to determine if the boy is likely to prevail, we must first determine what duty of care was owed to him. The girl is only 13 years old. A majority of courts will hold that a child is required to conform to the standard of care a child of like age, education, intelligence, and experience. However, when a child engages in an activity that is normally one that only adults engage in, courts will hold that the child will be required to conform to the same standard of care as an adult in such an activity. Here, the girl was operating a high-speed motorboat: an adult activity. Therefore, she will be held to an adult standard of care and the boy will prevail. A is incorrect. An assumption of the risk applies when the plaintiff knew of the risk and voluntarily assumed it. There is nothing in the facts here to suggest that the boy assumed the risk. Further, the boy has introduced uncontroverted evidence that the girl drove carelessly in such a way as to entangle the boy in the rope. B is incorrect. As stated above, when children are engaged in an adult activity, courts will hold that they are required to conform to the same standard of care as an adult. C is incorrect. This is an incorrect statement. Children of the girl's age should not have the capacity to operate motorboats.

Question 65

A complaint filed on behalf of a woman against a nursing home and an ambulance service included the following allegations: The woman, who was 86 years old and unable to speak after suffering a stroke, was picked up from her daughter’s house by the ambulance service and taken to the nursing home to stay while her daughter was out of town. When the woman’s daughter returned a few days later, the ambulance service picked up the woman from the nursing home and returned her to the daughter’s house. The daughter was shocked to discover that the woman had a broken leg; her leg had been uninjured when she left for the nursing home. A physician’s report attached to the complaint stated that the woman’s leg injury would not have occurred in the absence of negligence. The complaint further alleged that the woman was under the control, successively, of the ambulance service and the nursing home during the time when she must have sustained the injury, and that either the ambulance service or the nursing home must have negligently moved or handled the woman, causing the injury to her leg. Both defendants have argued that the allegations in the complaint are inadequate to support a negligence claim. What is the best response to the defendants’ argument? A: Both defendants owed a duty to the woman. B: One of the two defendants probably caused the injury, and the circumstances of the injury are primarily within the knowledge and control of the defendants rather than the woman or her representative. C: The defendants are concurrent tortfeasors, so each is vicariously liable for any tortious act committed by the other. D: There are grounds for the fact-finder to infer that both defendants were negligent.

Answer 65

B: One of the two defendants probably caused the injury, and the circumstances of the injury are primarily within the knowledge and control of the defendants rather than the woman or her representative. B is correct. The physician's report stated that the woman's leg injury would not have occurred in the absence of negligence. However, the woman had suffered a stroke and was unable to speak. Therefore, the defendants are the ones with primary knowledge and control of what caused the injury. The woman cannot offer any more allegations in her complaint. A is incorrect. While true, the fact that both defendants owed a duty to the woman does not address the argument that the allegations in the complaint are inadequate to support a negligence claim. C is incorrect. Vicarious liability applies when the defendants have a special relationship, such as employer-employee relationship. Nothing in the facts indicates that the ambulance service is an employee of the nursing home. D is incorrect. The woman did not state in her complaint what exactly happened because she does not have knowledge of it. There are not enough grounds for the fact-finder to infer that both defendants were negligent until they provide details of the incident.

Question 66

A patient who had suffered a severe fracture of her leg was treated by an orthopedist, who set the patient’s leg and put it in a cast. When the leg continued to bother the patient six months later, she consulted a second orthopedist in the same town. The second orthopedist surgically inserted a pin to facilitate healing. The patient brought a malpractice action against the first orthopedist, claiming that he should have surgically inserted a pin at the time of initial treatment. The only evidence that the patient offered in support of her malpractice claim was the testimony of the second orthopedist, as follows: In response to the question “Would you have inserted a pin initially?” the second orthopedist testified, “I personally would not have been satisfied that the leg would heal properly without a pin.” At the close of the patient’s evidence, the first orthopedist moved for judgment as a matter of law. Should the motion be granted? A: No, because the patient has introduced evidence that the first orthopedist failed to give the care that the second orthopedist would have provided. B: No, because the second orthopedist practices in the same town and field of specialty as the first orthopedist. C: Yes, because the patient has failed to introduce evidence that the first orthopedist’s care fell below the professional standard of care. D: Yes, because the second orthopedist also treated the patient and is thus not sufficiently objective to offer expert testimony

Answer 66

C: Yes, because the patient has failed to introduce evidence that the first orthopedist’s care fell below the professional standard of care. C is correct. Professionals are held to a different standard of conduct than that of the ordinary person. Doctors especially have a specialized standard of care; most courts will apply a national standard of care to evaluate their conduct. The patient is responsible for introducing evidence to show that the orthopedist breached his standard of care. There is nothing here to suggest that this was the case. A is incorrect. The only evidence that the patient has introduced is the statement by the second orthopedist stating his personal opinion. No statements of fact were provided, nor were any statements illustrating that the first orthopedist breached the standard of care. B is incorrect. This fact would not have an effect on the judgment as a matter of law being granted or denied. D is incorrect. The second orthopedist would be allowed to offer expert testimony, if qualified as an expert.

Question 67

A company set up a website for the advertisement of goods and services offered by individuals, as well as other public notices. One of the notices on the site announced that the furnishings in a home at a specified address were free for the taking. Within a few hours of the posting, all the furnishings had been taken. The notice had been placed by the homeowner’s cousin without the homeowner’s knowledge. The cousin bore a grudge against the homeowner and had placed the notice while the homeowner was away and had left the door to the home unlocked. In a negligence action brought by the homeowner against the company, what will be the company’s strongest defense? A: The company had no duty to the homeowner. B: The cousin’s actions were a proximate cause of the homeowner’s loss. C: The First Amendment prohibits all tort actions based upon mere speech. D: There is no evidence of careless conduct by the company.

Answer 67

A: The company had no duty to the homeowner. A is correct. The elements of a claim for negligence are duty, breach of duty, causation, and damages. The company’s best argument against liability is that it has no duty to protect people from being injured by third parties who intentionally misuse its site, which merely provides a platform for transactions between individuals. Without any duty owed, there can be no finding of negligence. B is incorrect. The question asks for the company’s strongest defense. If the company had owed a duty to the homeowner, it could argue that the cousin’s actions were a proximate cause of the homeowner’s loss, thereby negating the element of causation. But a stronger defense is that the company owed no duty to the homeowner. C is incorrect. The First Amendment limits tort liability in some contexts but does not prohibit all tort actions just because there is a speech component to the defendant’s actions. D is incorrect. The question asks for the company’s strongest defense. The question of whether a defendant has acted with reasonable care is a fact-intensive question that a jury resolves, but if a defendant can show that they had no duty, the court need not advance the case to a jury trial to determine whether there was carelessness.

Question 68

An 11-year-old boy was driving a full-size motorcycle on a private road, where the boy was a trespasser. The motorcycle hit a tire that had fallen off a truck driven by a delivery company employee who was making a delivery to an address on the private road. The boy was injured when his motorcycle went out of control after striking the tire. In a negligence action brought on behalf of the boy against the delivery company, the company contends that the boy was contributorily negligent and that his damages, if any, should be reduced in conformance with the jurisdiction’s comparative negligence statute. The boy argues that his conduct should be judged according to the standard of a reasonable child of like age, intelligence, and experience under the circumstances. Is the boy entitled to be judged according to the standard of care that he has argued for? A: No, because the boy was driving a motorcycle. B: No, because the boy was trespassing on the private road. C: Yes, because comparative negligence applies. D: Yes, because the boy was 11 years old at the time.

Answer 68

A: No, because the boy was driving a motorcycle. A is correct. Children engaging in a dangerous activity that is characteristically undertaken by adults may be held to an adult standard of care. Because the boy was driving a motorcycle—an adult activity—he will be held to the adult standard of care. B is incorrect. The boy’s status on the land is not relevant to his negligence. The determination of whether he was a trespasser or guest would be relevant if the landowner’s negligence was at issue. C is incorrect. Whether comparative negligence applies does not impact the standard of care by which the boy’s conduct will be measured. D is incorrect. The boy was engaged in an adult activity and was not of “tender years” (the common law rule that a child under 7 years old is incapable of negligence), so he will be held to the adult standard of care.

Question 69

In an action brought against a defendant by a pedestrian's legal representative, the only proof that the legal representative offered on liability were that: (1) the pedestrian was killed instantly while walking on the shoulder of the highway; (2) the defendant was driving the car that struck the pedestrian; and (3) there were no living witnesses to the accident other than the defendant, who denied negligence. The jurisdiction has adopted a rule of pure comparative negligence. If, at the end of the plaintiff's case, the defendant moves for directed verdict, the trial judge should A: grant the motion, because the legal representative has offered no specific evidence from which reasonable jurors may conclude that the defendant was negligent. B: grant the motion, because it is just as likely that the pedestrian was negligent as that the defendant was negligent. C: deny the motion, because the pedestrian was in violation of the state highway code. D: deny the motion, because, in the circumstances, negligence on the part of the defendant may be inferred.

Answer 69

D: deny the motion, because, in the circumstances, negligence on the part of the defendant may be inferred. D is correct. The pedestrian's representative introduced sufficient evidence for a res ipsa loquitur claim, which has the effect of allowing the jury to decide whether to infer the defendant's negligence. A directed verdict for the defendant would thus be improper because the jury must decide whether it will infer the defendant's negligence or find that his denial of negligence overcomes the res ipsa showing. A is incorrect. On the contrary, the representative has offered sufficient evidence to allow a jury to infer that the defendant was negligent, as stated above. B is incorrect. Even if it is just as likely that the plaintiff was negligent as the defendant, the jury must still determine, based on the evidence, whether to infer that the defendant was probably negligent, or decline to do so and find that the defendant's denial of negligence should defeat the res ipsa showing. C is incorrect. Whether the pedestrian violated the highway code would be relevant to determining damages because pure comparative negligence still allows a plaintiff to recover, even if by a reduced amount. None of these determinations should be made pursuant to a directed verdict. However, the motion should still be denied, as stated above.

Question 70

A landlord owns and operates a 12-story apartment building containing 72 apartments, 70 of which are rented. A pedestrian has brought an action against the landlord alleging that while he was walking along a public sidewalk adjacent to the landlord's apartment building a flower pot fell from above and struck him on the shoulder, causing extensive injuries. The action was to recover damages for those injuries. If the pedestrian proves the foregoing facts and offers no other evidence explaining the accident, will his claim survive a motion for directed verdict offered by the defense? A: Yes, because the pedestrian was injured by an artificial condition of the premises while using an adjacent public way. B: Yes, because such an accident does not ordinarily happen in the absence of negligence. C: No, because the landlord is in no better position than the pedestrian to explain the accident. D: No, because there is no basis for a reasonable inference that the landlord was negligent.

Answer 70

D: No, because there is no basis for a reasonable inference that the landlord was negligent. D is correct. Any time negligence must be inferred, there is a res ipsa loquitur issue. For a claim based on res ipsa loquitur to prevail, the pedestrian must show that the landlord had exclusive control of the flowerpot before it fell. In this case, the landlord did not have exclusive control of the flowerpot during the relevant time frame because 70 of the units had tenants, so res ipsa loquitur may not be used to establish negligence. Therefore, the pedestrian will not be able to make his prima facie case, and the landlord's motion for a directed verdict should be granted. A is incorrect. The landlord normally would not be responsible for conditions created by tenants in their apartments absent additional facts not present in this question. B is incorrect. It makes a true statement but does not address the requirement of exclusive control, so the negligence cannot be imputed on the landlord. C is incorrect. The landlord is not required to explain the accident. It is the plaintiff's burden to prove her case, including the fact that the landlord was in exclusive control of the instrumentality at the time the negligence occurred. The facts do not support the requirement, so the landlord's motion for a directed verdict will be granted.

Question 71

A defendant left her car parked on the side of a hill. Two minutes later, the car rolled down the hill and struck and injured the plaintiff. In the plaintiff's negligence action against the defendant, the plaintiff introduced into evidence the facts stated above, which are undisputed. The defendant testified that, when she parked her car, she turned the front wheels into the curb and put on her emergency brakes, which were in good working order. She also introduced evidence that, in the weeks before this incident, juveniles had been tampering with cars in the neighborhood. The jury returned a verdict in favor of the defendant, and the plaintiff properly moved for a judgment notwithstanding the verdict. The plaintiff's motion should be A: granted, because it is more likely than not that the defendant's negligent conduct was the legal cause of the plaintiff's injuries. B: granted, because the evidence does not support the verdict. C: denied, because, given the defendant's evidence, the jury was not required to draw an inference of negligence from the circumstances of the accident. D: denied, because the defendant was in no better position than the plaintiff to explain the accident.

Answer 71

C: denied, because, given the defendant's evidence, the jury was not required to draw an inference of negligence from the circumstances of the accident. C is correct. The jury's verdict was reasonable in light of the defendant's evidence countering the plaintiff's res ipsa loquitur showing, which would have allowed an inference of negligence. The defendant offered plenty of evidence to defeat an inference of her negligence, and the motion should be denied. A is incorrect. This choice addresses legal causation, which is not the dispositive issue here. The correct issue is whether the jury's finding that the defendant did not breach a duty of care was reasonable in light of the evidence. B is incorrect. On the contrary, the evidence does support the verdict, and the jury reasonably found in favor of the defendant, as stated above. D is incorrect. Both the plaintiff and the defendant properly introduced evidence regarding the defendant's alleged breach of her duty. A res ipsa showing is simply an avenue for the plaintiff to satisfy her burden of proof by way of a permissible inference, which the defendant may defeat with her own evidence. Here, the defendant countered the plaintiff's evidence with sufficient facts to prevail.

Question 72

For five years, a rancher had kept his horse in a ten-acre field enclosed by a six-foot woven wire fence with six inches of barbed wire on top. The gate to the field was latched and could not be opened by an animal. The rancher had never had any trouble with people coming onto his property and bothering the horse, and the horse had never escaped from the field. One day, however, when the rancher went to the field, he found that the gate was open and the horse was gone. Shortly before the rancher's discovery, a driver was driving with due care on a nearby highway when suddenly the rancher's horse darted in front of his car. When the driver attempted to avoid hitting the horse, he lost control of the car, which then crashed into a tree. The driver was injured. The driver sued the rancher to recover damages for his injuries and the rancher moved for summary judgment. If the facts stated above are undisputed, the judge should A: deny the motion, because pursuant to the doctrine of res ipsa loquitur, a jury could infer that the rancher was negligent. B: deny the motion, because an animal dangerous to highway users escaped from the rancher's property and caused the collision. C: grant the motion, because there is no evidence that the rancher was negligent. D: grant the motion, because the rancher did not knowingly permit the horse to run at large.

Answer 72

A: deny the motion, because pursuant to the doctrine of res ipsa loquitur, a jury could infer that the rancher was negligent. C: grant the motion, because there is no evidence that the rancher was negligent. A or C is correct. Although rare, on a few occasions the NCBE has released two correct answers for one question. For this question, when it was scored, either answer A or C was accepted as correct and given credit. However, moving forward, examinees should still approach each question as if only one answer is correct. A motion for summary judgment will be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. A and C are opposite sides of the res ipsa loquitur (RIL) argument. The doctrine of RIL is generally applied in situations where negligence clearly occurred and (i) the defendant had exclusive control of the instrumentality during the relevant time, and (ii) the plaintiff shows that he was not responsible for the injury. The court is not required to infer negligence and no presumption is created; RIL merely permits the fact finder to infer negligence from the facts. Thus, either A or C could be correct, depending on the determination of the judge. Most jurisdictions hold that a plaintiff is not entitled to summary judgment merely because the defendant did not rebut a RIL case. In this situation, however, the defendant made the motion. B is incorrect. The horse is livestock. As such, in common law, the rancher would be held in strict liability for its trespass. Under the Restatement (Second) of Torts, however, (§506) the horse would be considered a domestic animal and negligence would have to be proved before the driver could recover damages (unless the horse had a known propensity to escape, which is not the case in this situation). An animal "dangerous to highway users" is not a category. D is incorrect. The issue is negligence, not intentional trespass.

Question 73

A traveler was a passenger on a commercial aircraft owned and operated by an airline. The aircraft crashed into a mountain, killing everyone on board. The flying weather was good. The traveler's legal representative brought a wrongful death action against the airline. At trial, the legal representative offered no expert or other testimony as to the cause of the crash. On the airline's motion to dismiss at the conclusion of the legal representative's case, the court should A: grant the motion, because the legal representative has offered no evidence as to the cause of the crash. B: grant the motion, because the legal representative has failed to offer evidence negating the possibility that the crash may have been caused by mechanical failure that the airline could not have prevented. C: deny the motion, because the jury may infer that the aircraft crashed due to the airline's negligence. D: deny the motion, because in the circumstances common carriers are strictly liable.

Answer 73

C: deny the motion, because the jury may infer that the aircraft crashed due to the airline's negligence. C is correct. The evidence is sufficient to establish a res ipsa loquitur showing, which allows the trier of fact to infer the airline's negligence. For this reason, the airline's motion to dismiss should be denied because the traveler's legal representative has presented a claim upon which relief can be granted. A is incorrect. In order to present a claim upon which relief can be granted, the legal representative was not required to establish the cause of the crash. The evidence offered was sufficient to support an inference of negligence. B is incorrect. The motion should be denied because the evidence is sufficient to infer negligence. The legal representative is not required to prove what caused the crash to defeat a motion to dismiss. The airline may offer evidence regarding the cause in its own defense, in an effort to combat the inference of negligence. D is incorrect. The standard of care threshold is higher for a common carrier, but it is still a negligence case, and does not trigger strict liability.

Question 74

A customer fell and injured himself when he slipped on a banana peel while shopping at a grocery store. The banana peel was fresh and unblemished except for a mark made by the heel of the customer’s shoe. In an action brought by the customer against the store, these are the only facts in evidence. Should the trial judge permit the case to go to the jury? A: No, because the customer had an obligation to watch where he stepped. B: No, because there is not a reasonable basis for inferring that the store knew or should have known of the banana peel. C: Yes, because it is more likely than not that the peel came from a banana offered for sale by the grocer. D: Yes, because the store could foresee that a customer might slip on a banana peel.

Answer 74

B is correct. Unlike slip-and-fall cases in which res ipsa loquitur is appropriate, the condition of the banana peel does not indicate that it has been on the ground for any significant period of time. Therefore, there is not enough evidence to support a jury verdict that the store staff was negligent in failing to remove it before the customer's fall. A is incorrect. In slip-and-fall cases, even if a customer was negligent, he could recover some of his damages under a system of pure comparative negligence if a jury determines that the grocer was also negligent. The case at issue, however, should not go to the jury, because there is no evidence to support a finding of negligence on the part of store staff, as explained above. C is incorrect. Strict products liability is not applicable here because the banana was not defective. The fact that the peel came from a banana offered for sale by the grocer is not evidence of negligence. D is incorrect. Foreseeability alone is not sufficient to establish that the grocer was negligent. The plaintiff must also offer evidence that the grocer fell below the standard of care, i.e., that he failed to adopt the precautions that a reasonably prudent person in his situation would adopt to avoid the foreseeable risk. There is no such evidence here.

Question 75

As a shopper was leaving a supermarket, an automatic door that should have opened outward opened inward, striking and breaking the shopper’s nose. The owner of the building had installed the automatic door. The lease, pursuant to which the supermarket occupied the building, provided that the supermarket was responsible for all maintenance of the premises. The shopper sued the supermarket. At trial, neither the shopper nor the supermarket offered any testimony, expert or otherwise, as to why the door had opened inward. At the close of evidence, both the shopper and the supermarket moved for judgment as a matter of law. How should the trial judge rule? A: Grant judgment for the shopper, because it is undisputed that the door malfunctioned. B: Grant judgment for the supermarket, because the shopper failed to join the owner of the building as a defendant. C: Grant judgment for the supermarket, because the shopper failed to offer proof of the supermarket’s negligence. D: Submit the case to the jury, because on these facts negligence may be inferred.

Answer 75

D: Submit the case to the jury, because on these facts negligence may be inferred. D is correct. Based on the evidence in the record, the jury could infer negligence because the accident occurred from a door in the exclusive control of the supermarket, and it is not the type of accident that would occur without negligence. Either way, this is question for a jury to decide. A is incorrect. A reasonable jury could find for either party based on the evidence here. The mere fact that the door malfunctioned, absent a finding that the supermarket breached its duty, is not enough to take the case from the jury. B is incorrect. The shopper was not required to sue all possibly negligent parties. The supermarket may join the building owner as a third party defendant, if it chooses to do so. C is incorrect. Under res ipsa loquitur, the shopper was not required to offer direct proof that the supermarket was negligent because the facts speak for themselves, which gives rise to a potential inference of liability.

Question 76

In an action by a man against a pharmacy, the man offered only the following evidence: The man took a clearly written prescription to a pharmacy. The pharmacy’s employee filled the prescription by providing pills with 30 milligrams of the active ingredient instead of 20 milligrams, as was prescribed. Shortly after taking the pills as directed, the man, who had no previous history of heart problems, suffered a heart attack. Overdoses of the active ingredient had previously been associated with heart problems. Does the man have a valid claim against the pharmacy? A: No, because pharmacies are not strictly liable for injuries caused by incorrectly filled prescriptions. B: No, because the man offered no specific proof as to the pharmacy’s negligence. C: Yes, because a jury could reasonably conclude that the man would not have suffered a heart attack had the pharmacy provided the correct dosage. D: Yes, because by providing the 30-milligram pills rather than the 20-milligram pills, the pharmacy sold the man a defective product.

Answer 76

C: Yes, because a jury could reasonably conclude that the man would not have suffered a heart attack had the pharmacy provided the correct dosage. C is correct. There is sufficient circumstantial evidence to support a conclusion that the pharmacy’s employee was negligent in filling the prescription and that the consequent overdose caused the heart attack. The pharmacy would be vicariously liable for its employee’s negligence under respondeat superior principles. B is incorrect. Although the evidence does not specify exactly how the pharmacy’s employee erred, it is sufficient to support a claim of negligence against the pharmacy under respondeat superior principles. A is incorrect. Under some theories, pharmacies might be held strictly liable for incorrectly filled prescriptions. That fact is irrelevant here, however, because in this case, the evidence of the employee's negligence, while circumstantial, is sufficient to support a negligence claim against the pharmacy under respondeat superior principles. D is incorrect. It is not necessary to establish that a product was defective in order to establish a claim in negligence. Here, there is no evidence demonstrating that the product itself was defective. If the pill bottle had been improperly labeled, the product would have been considered defective, but there is no mention of mislabeling in the facts.

Question 77

A mother purchased an expensive television from an appliance store for her adult son. Two years after the purchase, a fire started in the son's living room in the middle of the night. The fire department concluded that the fire had started in the television. No other facts are known. The son sued the appliance store for negligence. The store has moved for summary judgment. Should the court grant the store's motion? A: No, because televisions do not catch fire in the absence of negligence. B: No, because the store sold the television. C: Yes, because the son is not in privity with the store. D: Yes, because there is no evidence of negligence on the part of the store.

Answer 77

D: Yes, because there is no evidence of negligence on the part of the store. D is correct. The son is suing in negligence, not in strict liability. To make out a prima facie case in negligence, the son must introduce evidence that the store was negligent. However, the son has not pointed to any negligent action or omission by the store. This is not an appropriate case for res ipsa loquitur, because the manufacturer, rather than the store, may have been negligent or the negligence may have occurred after the sale (for example, during a repair or while the television was being used by the son). A is incorrect. Even if it were true that televisions do not catch fire in the absence of negligence, the fact that this television did is insufficient to establish that the store acted negligently. This is not an appropriate case for res ipsa loquitur, because the manufacturer, rather than the store, may have been negligent or the negligence may have occurred after the sale (for example, during a repair or while the television was being used by the son). Because the son cannot establish the store's negligence, the court should grant the store's motion. B is incorrect. This answer choice relies on strict liability, but the call of the question specifies that this is a negligence action. Thus, this answer is incorrect. C is incorrect. This question is a red herring. Privity is not required in negligence claims for malfunctioning products Thus, this answer choice is incorrect.

Question 78

Question A shopper was riding on an escalator in a department store when the escalator stopped abruptly. The shopper lost her balance and fell down the escalator steps, sustaining injuries. Although the escalator had been regularly maintained by an independent contractor, the store's obligation to provide safe conditions for its invitees was nondelegable. The shopper has brought an action against the store for damages, and the above facts are the only facts in evidence. The store has moved for a directed verdict. Should the court grant the motion? A: No, because the finder of fact could infer that the escalator malfunction was due to negligence. B: No, because the store is strictly liable for the shopper's injuries. C: Yes, because an independent contractor maintained the escalator. D: Yes, because the shopper has not produced evidence of negligence.

Answer 78

A: No, because the finder of fact could infer that the escalator malfunction was due to negligence. A is correct. There is enough evidence here to support an inference of negligence on the part of the store or the contractor. A jury could find that the malfunction was due to the negligent installation, maintenance, or operation of the escalator; the store would be responsible for all these possible causes under the nondelegable duty doctrine. B is incorrect. Landowners and occupiers are not strictly liable even for injuries to their business invitees. The court should not grant the motion, but it is because the fact finder could infer negligence on the part of the store or the contractor, and the store's obligation to provide safe conditions was nondelegable. C is incorrect. Even if the malfunction were due to the negligence of the independent contractor, the store would also be responsible under the nondelegable duty doctrine. These facts illustrate a common situation in which that doctrine is applied: the defendant owns a building and invites the public to enter the building for the defendant's financial benefit. There is enough evidence here to support an inference of negligence on the part of the store or the contractor. A jury could find that the malfunction was due to the negligent installation, maintenance, or operation of the escalator; the store would be responsible for all these possible causes under the nondelegable duty doctrine. D is incorrect. There is enough evidence here to support an inference of negligence on the part of the store or the contractor. A jury could find that the malfunction was due to the negligent installation, maintenance, or operation of the escalator; the store would be responsible for all these possible causes under the nondelegable duty doctrine.

Question 79

A patient in a hospital was placed in a wheelchair with his broken leg extended straight out in front of him. As a nurse employed by the hospital was pushing the wheelchair through a set of automatic doors at a normal pace, the doors closed on the patient’s foot, injuring it. The nurse attempted to pull the wheelchair back through the doors. This action caused the doors to close more tightly on the patient’s foot, injuring it further. The patient sued the hospital, alleging improper maintenance of the doors. The patient has produced no evidence of specific conduct or neglect on the part of the hospital that would have caused the automatic doors to malfunction. The hospital has moved for summary judgment. Should the court grant the hospital’s motion? A: No, because a jury could find that there was a latent defect in the doors. B: No, because a jury could find the hospital liable for negligence based on res ipsa loquitur. C: Yes, because proof of an accident, by itself, does not establish that an injured person was a victim of negligence. D: Yes, because the nurse’s action was a superseding cause of the injury.

Answer 79

B: No, because a jury could find the hospital liable for negligence based on res ipsa loquitur. B is correct. There is sufficient evidence here for a res ipsa loquitur showing, meaning that a jury could infer that the hospital was probably negligent. As such, summary judgment would be improper based on the existence of a dispute as to a material fact. A is incorrect. There is no specific evidence of a latent defect, or even of negligent conduct by the hospital that caused the door to malfunction. However, the jury may nonetheless infer negligence under res ipsa. C is incorrect. As stated above, the court should deny the hospital's motion based on res ipsa loquitur, because a jury could infer negligence based on the circumstantial evidence already presented. D is incorrect. The nurse's transport of the patient in the wheelchair was not an intervening event that would amount to a superseding cause because she operated at a normal pace, performing a normal task. This would be more applicable had she engaged in some unforeseeable tortious act or intentional harm.

Question 80

A longshoreman fell to his death through an open hatch on the deck of a ship. The longshoreman was an employee of a company that had contracted with the ship’s owner to load and unload the ship. The fall occurred at night, when loading work was over for the day, and there was no reason for the longshoreman to have been near the hatch. A negligence action was filed against the ship’s owner for the death of the longshoreman. In that action, the owner has moved for summary judgment and has provided unrebutted evidence that it is customary for the crews of ships to open the hatches for ventilation after the longshoremen have left the ships. How should the court respond to the motion? A: Deny the motion and submit the case to the jury with instructions that the custom is relevant but not conclusive on the issue of negligence. B: Deny the motion and submit the case to the jury with instructions that the ship’s owner should win if the longshoreman was improperly near the hatch. C: Deny the motion, because the probability of serious injury caused by falling down an open hatch clearly outweighs the burden of keeping the hatch closed. D: Grant the motion, because the custom should be considered conclusive on the issue of negligence.

Answer 80

A: Deny the motion and submit the case to the jury with instructions that the custom is relevant but not conclusive on the issue of negligence. A is correct. The motion should be denied because, although it is custom for the hatches to be left open for ventilation, it cannot be said to be conclusive on the issue of negligence. There are not enough facts in this question to determine if that alone absolves the ship's owner of liability. B is incorrect. Even if the longshoreman was improperly near the hatch, that would not be enough to show negligence for either party. It would not be enough for the jury to find for the ship's owner. C is incorrect. This is a question of fact, which should be submitted to the jury. D is incorrect. As stated above, the motion should be denied.

Question 81

A pedestrian was injured when hit by a chair that was thrown from an upper-story hotel window. The pedestrian sued the occupants of all the rooms from which the chair might have been thrown. At trial, the pedestrian has been unable to offer any evidence as to the exact room from which the chair was thrown. The defendants have filed a motion for a directed verdict. Should the court grant the motion? A: No, because it is unreasonable to expect the pedestrian to prove which of the defendants caused the harm. B: No, because of the doctrine of alternative liability. C: Yes, because a plaintiff always has the burden to prove that a particular defendant’s conduct was the factual cause of the plaintiff’s physical harm. D: Yes, because the pedestrian has failed to offer evidence that the defendants jointly engaged in tortious conduct.

Answer 81

D: Yes, because the pedestrian has failed to offer evidence that the defendants jointly engaged in tortious conduct. D is correct. When two or more tortious acts combine to cause an indivisible injury to a plaintiff, each tortfeasor is jointly and severally liable for that injury. Defendants in a civil suit can be held jointly and severally liable only if their concurrent acts brought about the harm to the plaintiff. These acts do not have to be simultaneous, they only must contribute to the same event. Here, only one occupant threw a chair out of the upper-story hotel window. There is no evidence that the defendants all contributed to the harm that the pedestrian suffered. Therefore, the motion for directed verdict should be granted. A is incorrect. The pedestrian must offer evidence that the defendants either jointly engaged in the tortious conduct, or determine which of the defendants was responsible for the harm. The pedestrian cannot simply sue all the occupants of all the rooms and recover. B is incorrect. The doctrine of alternative liability allows a plaintiff to shift the burden of proving causation of her injury to multiple defendants, even if only one is ultimately responsible. This doctrine requires that the plaintiff bring all possible defendants into court and that the plaintiff show that the defendants all breached a duty of reasonable care. Here, only one of the defendants breached a duty of reasonable care so this doctrine does not apply. C is incorrect. The plaintiff does not have to prove that one particular defendant's conduct was the factual cause of the plaintiff's physical harm. As stated above, there are a few different ways a plaintiff can bring an action against multiple defendants. Here, they simply do not apply.

Question 82

A customer bought a can of corn at a grocery store. While eating the corn later that evening, the customer was injured by a small piece of glass in the corn. The customer sued the canning company that had processed and canned the corn. At trial, the customer presented evidence that neither the customer nor any third party had done anything after the can of corn was opened that would account for the presence of the glass. Without any other evidence, is the customer likely to prevail? A: No, because it is possible that someone tampered with the can before the customer bought it. B: No, because the customer has not shown any direct evidence that the canning company acted negligently. C: Yes, because a jury may reasonably infer that the canning company acted negligently. D: Yes, because the grocery store could not have discovered the piece of glass by reasonable inspection.

Answer 82

C: Yes, because a jury may reasonably infer that the canning company acted negligently. C is correct. Under the doctrine of res ipsa loquitur, courts can infer negligence from the very nature of an accident or injury in the absence of direct evidence on how the defendant behaved. The elements of duty, breach, and causation are inferred from the injury because it would not ordinarily occur without negligence. The customer presented evidence that neither the customer nor any third party had done anything with the can after it was opened that would account for the glass. Therefore, the jury can infer that if not for negligence on behalf of the canning company, the injury would not have occurred. A is incorrect. Canned food is sealed in such a way that it is almost impossible to open or tamper with. Any tampering would be immediately obvious. Therefore, the only explanation for the glass in the corn is negligence during the canning process. B is incorrect. Although no direct evidence has been presented, negligence can be inferred for the purposes of res ipsa loquitur. D is incorrect. Although this is true, it is not the reason the customer would be likely to prevail. This would be a better argument to absolve the grocery store of liability.

Question 83

A recently installed elevator suddenly started free-falling down the elevator shaft while carrying passengers. Frightened, a passenger pried the inside doors open and impulsively stuck his arm through them to try to stop the fall. As a result, his arm was broken. The elevator eventually stopped without causing further injuries. In a negligence action brought by the injured passenger against the company that installed and maintained the elevator, the injured passenger has asked the trial judge to instruct the jury that it may find the company negligent on a theory of res ipsa loquitur. In response, the company has argued that the passenger’s conduct caused his injuries. How should the judge rule? A: The judge should deny the passenger’s request, because it is possible that the company was not negligent. B: The judge should deny the passenger’s request, because the jury could find that the conduct of the passenger contributed to his injuries. C: The judge should grant the passenger’s request but should also instruct the jurors to consider any carelessness of the passenger in awarding damages if they find the company liable. D: The judge should grant the passenger’s request, because the passenger acted reasonably considering the stress of the situation.

Answer 83

C: The judge should grant the passenger’s request but should also instruct the jurors to consider any carelessness of the passenger in awarding damages if they find the company liable. C is correct. The question of the passenger’s negligence is relevant to the jury’s assessment of damages but is not a bar to a res ipsa loquitur instruction. Under res ipsa, where the facts strongly indicate that the plaintiff’s injuries resulted from the defendant’s negligence, the trier of fact may be permitted to infer that the defendant was probably negligent. This approach allows the jury to skip over the typical negligence analysis of duty and breach of duty and allows the defendant’s negligence to be presumed. A is incorrect. To establish res ipsa, the plaintiff must show (i) the event that happened is one that usually does not occur absent the negligence of a party; (ii) the harm was caused by something in the defendant’s exclusive control; and (iii) the plaintiff is not the one who caused the event to occur. Here, the company was exclusively in control of the elevator, and the injury is of a kind that would not have happened if the elevator had not malfunctioned, so the passenger’s request for a res ipsa instruction should be granted. B is incorrect. The passenger’s negligence is relevant to the damages awarded, if any, but it is not a bar to a res ipsa instruction. D is incorrect. The question of if the passenger acted reasonably or negligently is not relevant to whether a res ipsa instruction is appropriate, but rather to the amount of damages to assess against the company if they are found liable.

Question 84

A trucker driving down an isolated country road late one night struck cattle that had escaped from a farmer’s pen and wandered into the road. The trucker was unable to stop before hitting the cattle but was not driving carelessly. While he was not injured in the collision, the trucker sustained damage to his truck and lost income during the time it took to repair the truck. The trucker sued the farmer for his damages and invoked the doctrine of res ipsa loquitur. At trial, the farmer introduced evidence that his cattle pen was of a sufficient height to prevent cattle from stepping over it and was constructed of thick steel pipe sitting in concrete with a substantial top rail. A sturdy pen such as this one would be more difficult for cattle to break through than one constructed of barbed wire or electric wire. Should the trial court allow the case to go to the jury with a res ipsa loquitur instruction? A: No, because it is possible that a third party wrongfully let the cattle out of the pen. B: No, because the trucker must submit direct evidence of negligence in order to invoke the res ipsa loquitur doctrine. C: Yes, because the farmer is strictly liable for harm caused by his escaping cattle. D: Yes, because the jury could conclude that cattle would not ordinarily escape a strong, secure cattle pen in the absence of negligence.

Answer 84

D: Yes, because the jury could conclude that cattle would not ordinarily escape a strong, secure cattle pen in the absence of negligence. D is correct. The facts indicate that the farmer was in exclusive control of his farm and that the trucker did not contribute to the accident. Therefore, the jury is permitted to conclude that the cattle escaped due to the farmer’s negligence. A is incorrect. Res ipsa loquitur allows an inference of the farmer’s negligence even though it is possible that a third party let the cattle out of the pen. Here, the farmer was in exclusive control of his farm, and the trucker did not contribute to the accident. The jury may infer that the cattle escaped due to the farmer’s negligence. B is incorrect. Res ipsa loquitur allows an inference of negligence in the absence of direct proof of negligence. The trucker needs to establish that the farmer was in exclusive control of the pen, that the accident would not have occurred but for negligence, and that the accident was not due to the trucker’s own actions. C is incorrect. If an accident is caused by a motorist colliding with livestock on a public roadway, there is no trespass to land and therefore, no strict liability claim. Generally, a defendant who is responsible for a farm animal that strays onto a public roadway is liable for negligence only.

Question 85

While a driver was taking a leisurely spring drive, he momentarily took his eyes off the road to look at some colorful trees in bloom. As a result, his car swerved a few feet off the roadway, directly toward a pedestrian, who was standing on the shoulder of the road waiting for a chance to cross. When the pedestrian saw the car bearing down on him, he jumped backwards, fell, and injured his knee. The pedestrian sued the driver for damages, and the driver moved for summary judgment. The foregoing facts are undisputed. The driver's motion should be A: denied, because the record shows that the pedestrian apprehended an imminent, harmful contact, with the driver's car. B: denied, because a jury could find that the driver negligently caused the pedestrian to suffer a legally compensable injury. C: granted, because the proximate cause of the pedestrian's injury was his own voluntary act. D: granted, because it is not unreasonable for a person to be distracted momentarily.

Answer 85

B: denied, because a jury could find that the driver negligently caused the pedestrian to suffer a legally compensable injury. B is correct. A motion for summary judgment will be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. A question of fact exists as to whether the driver's negligence caused the pedestrian's reaction, or whether the pedestrian's injury was the result of his own act. A motion for summary judgment by the driver can only be rendered for the driver or denied. A is incorrect. The driver did not act with the purpose of causing the pedestrian to apprehend an imminent harmful or offensive touching. The driver was merely inattentive, which is negligent rather than intentional. C is incorrect. The pedestrian's action was a cause in fact of his injury, but not necessarily the proximate cause. A summary judgment can only be granted if, as a matter of law, the driver is entitled to judgment and no material fact is in dispute. Clearly, the driver and the pedestrian are disputing which of them is responsible for the pedestrian's taking the jump backwards. D is incorrect. While momentary distraction may not be unreasonable, the driver had a duty to drive safely, which was breached.

Question 86

A patron ate a spicy dinner at a restaurant on Sunday night. He enjoyed the food and noticed nothing unusual about the dinner. Later that evening, the patron had an upset stomach. He slept well through the night, went to work the next day, and ate three meals. His stomach discomfort persisted, and by Tuesday morning he was too ill to go to work. Eventually, the patron consulted his doctor, who found that the patron was infected with a bacterium that can be contracted from contaminated food. Food can be contaminated when those who prepare it do not adequately wash their hands. The patron sued the restaurant for damages. He introduced testimony from a health department official that various health code violations had been found at the restaurant both before and after the patron's dinner, but that none of the restaurant's employees had signs of bacterial infection when they were tested one month after the incident. The restaurant's best argument in response to the patron's suit would be that A: no one else who ate at the restaurant on Sunday complained about stomach discomfort. B: the restaurant instructs its employees to wash their hands carefully and is not responsible if any employee fails to follow these instructions. C: the patron has failed to establish that the restaurant's food caused his illness. D: the patron assumed the risk of an upset stomach by choosing to eat spicy food.

Answer 86

C: the patron has failed to establish that the restaurant's food caused his illness. C is correct. The defense with the best chance of prevailing. Health code violations can only establish duty and breach; they do not establish the restaurant's causal control over the specific instrumentality that caused the actual food poisoning. In addition, res ipsa loquitur does not apply because the patron was unable to show that the restaurant had exclusive control over everything the patron ate within the period leading up to his illness. As a consequence, the restaurant's negligence cannot be inferred by the circumstances. A is incorrect. This is an ineffective defense because it may not include anyone who was not aware of why they might have been ill. The best defense is to show that the patron has not established causation. B is incorrect. An employer is responsible for enforcing its safety policies and will be vicariously liable if, while in the course of the employer's business, a negligent action of its employee causes an injury. D is incorrect. The patron did not knowingly undertake to eat food that he was aware would cause him illness. At most, this argument would go to damages.

Question 87

A man was admitted to a hospital after complaining of persistent severe headaches. While he was there, hospital staff failed to diagnose his condition, and he was discharged. Two days later, the man died of a massive brain hemorrhage due to a congenital defect in an artery. The man's wife has brought a wrongful death action against the hospital. The wife offers expert testimony that the man would have had a "reasonable chance" (not greater than 50%) of surviving the hemorrhage if he had been given appropriate medical care at the hospital. In what type of jurisdiction would the wife's suit most likely be successful? A: A jurisdiction that applies traditional common law rules concerning burden of proof. B: A jurisdiction that allows recovery based on strict liability. C: A jurisdiction that allows recovery for the loss of the chance of survival. D: A jurisdiction that recognizes loss of spousal consortium.

Answer 87

C: A jurisdiction that allows recovery for the loss of the chance of survival. C is correct. In establishing a claim of negligence against a defendant, a plaintiff must prove that the defendant’s action was the factual cause of the harm suffered. This becomes difficult to prove when the victim likely would have suffered the harm (death in this example) even if the defendant had acted reasonably. In jurisdictions that allow recovery for loss of chance of survival, courts allow plaintiffs to recover a portion of his or her damages for the reduction in survival chance. A is incorrect. If traditional common law rules concerning burden of proof were applied, the wife would be required to prove that reasonable action on the part of the hospital (presumably a correct diagnosis) would, more likely than not, have led to the man's survival. The wife cannot do that here since his chance is stipulated to have been 50% or less. B is incorrect. Cause in fact is a necessary element of a plaintiff's case in strict liability as well as in negligence. Under either theory, the wife must establish that reasonable action on the part of the hospital (presumably a correct diagnosis) would, more likely than not, have led to the man's survival. Here, the wife cannot establish that the chances of the man's survival were greater than 50% even if he had been given appropriate medical care. Therefore, the wife could not carry her burden of proof on the issue of cause in fact in such a jurisdiction. D is incorrect. Cause in fact is a necessary element of a plaintiff's case for loss of spousal consortium, as well as in cases in which a plaintiff is suing for personal injury. Thus, even if the loss of spousal consortium is available, it would not solve the wife’s problem concerning proving cause in fact.

Question 88

A man and a woman were competing in an illegal drag race. Both of them were driving over the speed limit but were otherwise driving very carefully. However, when a tire on the woman’s car suddenly blew out, she lost control of her car and crashed, injuring a pedestrian. The pedestrian later sued the man, because the woman had no insurance or assets. Will the pedestrian be likely to prevail in that action? A: No, because the man did not cause the injury. B: No, because the man was driving very carefully. C: Yes, because the man and the woman were acting in concert in a dangerous activity. D: Yes, because the man was exceeding the speed limit.

Answer 88

C: Yes, because the man and the woman were acting in concert in a dangerous activity. C is correct. When two or more tortfeasors act in concert and injure a plaintiff, then each will be jointly and severally liable for the entire injury. Moreover, anyone who is found to have been engaging in an abnormally dangerous activity will be strictly liable for any injuries which result from the activity. Here, the man and woman were competing in an illegal drag race and were driving over the speed limit. They were acting in concert by drag racing. The man will, therefore, be liable for the pedestrian's injuries. A is incorrect. Even though the man did not cause the injury, he is still liable because he was acting in concert and negligently drag racing. B is incorrect. The fact that the man was driving carefully is irrelevant. He was still engaged in an illegal drag race. D is incorrect. Though the man was exceeding the speed limit, that will not be the reason why the pedestrian will prevail in this action.

Question 89

A plaintiff and a defendant were in the habit of playing practical jokes on each other on their respective birthdays. On the plaintiff's birthday, the defendant sent the plaintiff a cake containing an ingredient that he knew had, in the past, made the plaintiff very ill. After the plaintiff had eaten a piece of the cake, he suffered severe stomach pains and had to be taken to the hospital by ambulance. On the way to the hospital, the paramedic, who was driving the ambulance, suffered a heart attack, which caused the ambulance to swerve from the road and hit a tree. As a result of the collision, the plaintiff suffered a broken leg. In a suit by the plaintiff against the defendant to recover damages for the plaintiff's broken leg, the plaintiff will A: prevail, because the defendant knew that the cake would be harmful or offensive to the plaintiff. B: not prevail, because the paramedic was not negligent. C: not prevail, because the defendant could not reasonably be expected to foresee injury to the plaintiff's leg. D: not prevail, because the paramedic's heart attack was a superseding cause of the plaintiff's broken leg.

Answer 89

A: prevail, because the defendant knew that the cake would be harmful or offensive to the plaintiff. A is correct. The defendant intentionally fed the plaintiff a substance that he knew would make the plaintiff very ill. Despite the red-herring stating that the two "were in a habit of playing practical jokes," this is a battery. A battery is caused by an intentional harmful or offensive contact to the plaintiff's person or an extension thereof, without consent or privilege. The actual touching need not be done personally by the defendant as long as the defendant set into motion an action with purpose or knowledge to a substantial certainty that the offensive or harmful touching would result. B is incorrect. The negligence of the paramedic would be irrelevant. Since the defendant committed the intentional tort of battery, he would be liable for all resulting consequences of the battery, even if they were unintended and unforeseen. C is incorrect. Although the defendant could not be reasonably expected to foresee the plaintiff’s leg injury, the defendant would still be liable, because intentionally wrongful actions, such as battery, render a defendant liable for all consequences of those acts, even if unintended and unforeseen. D is incorrect. The paramedic’s heart attack would not be a superseding cause severing the defendant’s liability, because intentionally wrongful actions, such as battery, render a defendant liable for all consequences of those acts, even if unintended and unforeseen.

Question 90

A hiker, although acting with reasonable care, fell while attempting to climb a mountain and lay unconscious and critically injured on a ledge that was difficult to reach. The plaintiff, an experienced mountain climber, was himself seriously injured while trying to rescue the hiker. The plaintiff's rescue attempt failed, and the hiker died of his injuries before he could be reached. The plaintiff brought an action against the hiker's estate for compensation for his injuries. In this jurisdiction, the traditional common-law rules relating to contributory negligence and assumption of risk remain in effect. Will the plaintiff prevail in his action against the hiker's estate? A: Yes, because his rescue attempt was reasonable. B: Yes, because the law should not discourage attempts to assist persons in helpless peril. C: No, because the hiker's peril did not arise from his own failure to exercise reasonable care. D: No, because the plaintiff's rescue attempt failed and therefore did not benefit the hiker.

Answer 90

C: No, because the hiker's peril did not arise from his own failure to exercise reasonable care. C is correct. One who acts negligently and endangers himself is also liable for the resulting injuries of anyone who undertakes to rescue him. Here, however, the hiker was not negligent in creating his peril, and the plaintiff will not prevail. A is incorrect. An action ending with a need to be rescued must have been negligent for the injured rescuer to have a claim against the estate. The negligence of a rescuer is generally a foreseeable result of the original negligent act, and the rescuer need not show that the rescue was reasonable. B is incorrect. This is the general policy reason behind statutes that grant immunity to doctors or nurses who render medical assistance at the scene of an accident. The statutes do not, as a matter of majority rules, create an affirmative duty to help emergency victims at the scene of an accident. They only absolve the medical professionals from liability for ordinary negligence. D is incorrect. One who acts negligently and endangers only himself is also liable for the resulting injuries of anyone who undertakes to rescue him. A failed rescue attempt would not cut short liability if the hiker had been negligent.

Question 91

In preparation for a mountain-climbing expedition, a climber purchased the necessary climbing equipment from a retail dealer in sporting goods. A week later, the climber fell from a rock face when a safety device he had purchased from the retail dealer malfunctioned because of a defect in its manufacture. Thereafter, a rescuer was severely injured when he tried to reach and give assistance to the climber on the ledge to which the climber had fallen. The rescuer's injury was not caused by any fault on his own part. If the rescuer brings an action against the retailer to recover damages for his injuries, will the rescuer prevail? A: No, because the retailer could not have discovered the defect by a reasonable inspection of the safety device. B: No, because the rescuer did not rely on the representation of safety implied from the sale of the safety device by the retailer. C: Yes, because the climber was not negligent in failing to test the safety device. D: Yes, because injury to a person in the rescuer's position was foreseeable if the safety device failed.

Answer 91

D: Yes, because injury to a person in the rescuer's position was foreseeable if the safety device failed. D is correct. This is a products liability question. The rescuer can succeed in the claim against the retailer because injury to a person in the rescuer's position was foreseeable if the safety device failed. A is incorrect. The determining factor of the rescuer's success in bringing a claim is that he was a foreseeable plaintiff. B is incorrect. Liability under both products liability and negligence would allow the rescuer to recover as a foreseeable plaintiff, so the rescuer is a non-user that would be able to recover against the retailer because he was a foreseeable plaintiff. C is incorrect. The rescuer will prevail, but not because the climber was not contributorily negligent. The defective product was the cause of the injuries, so the rescuer could prevail under negligence or products liability claims.

Question 92

A defendant negligently caused a fire in his house, and the house burned to the ground. As a result, the sun streamed into the plaintiff's yard next door, which previously had been shaded by the defendant's house. The sunshine destroyed some delicate and valuable trees in the plaintiff's yard that could grow only in the shade. The plaintiff has brought a negligence action against the defendant for the loss of the plaintiff's trees. The defendant has moved to dismiss the complaint. The best argument in support of this motion would be that A: the defendant's negligence was not the active cause of the loss of the plaintiff's trees. B: the defendant's duty to avoid the risks created by a fire did not encompass the risk that sunshine would damage the plaintiff's trees. C: the loss of the trees was not a natural and probable consequence of the defendant's negligence. D: the plaintiff suffered a purely economic loss, which is not compensable in a negligence action.

Answer 92

B: the defendant's duty to avoid the risks created by a fire did not encompass the risk that sunshine would damage the plaintiff's trees. B is correct. It states the appropriate standard at issue. In an action for negligence, the defendant has a duty only to act in a reasonably prudent manner with regard to foreseeable harm. When the fire was negligently started in his own home, the defendant's duty to avoid foreseeable risks posed by a fire arguably would not have included sun damage to his neighbor's trees. In a motion to dismiss, if the plaintiff cannot show foreseeable risk, then there is no duty andno claim for negligence. A is incorrect. The defendant’s negligence was the actual cause of the loss of plaintiff’s trees. C is incorrect. The defendant’s conduct was the proximate cause of the loss of plaintiff’s trees. D is incorrect. Damage to trees would not be considered a purely economic loss, but rather an injury to the plaintiff's property. But, since the issue is one of unforeseeable risk and subsequent lack of duty, the issue of damages will not be reached.

Question 93

Question While a plaintiff was leaving an elevator, it suddenly dropped several inches, causing her to fall. An investigation of the accident revealed that the elevator dropped because it had been negligently maintained by an elevator company. The elevator company had a contract with the owner of the building to inspect and maintain the elevator. The plaintiff's fall severely aggravated a preexisting physical disability. If the plaintiff sues the elevator company for damages for her injuries, she should recover A: nothing, because the elevator company could not reasonably have been expected to foresee the extent of harm that the plaintiff suffered as a result of the accident. B: nothing, because the accident would not have caused significant harm to an ordinarily prudent elevator passenger. C: damages for the full amount of her disability, because a tortfeasor must take its victim as it finds her. D: damages for the injury caused by the falling elevator, including the aggravation of her preexisting disability.

Answer 93

D: damages for the injury caused by the falling elevator, including the aggravation of her preexisting disability. D is correct. It was foreseeable by the elevator company that a failure to maintain an elevator would cause severe physical harm to its passengers should the elevator malfunction as the result of that negligence. Clearly, the burden to maintain the elevator, which the elevator company was being paid for, did not outweigh the potential harm to the elevator passengers. When negligence is found, the defendant takes the plaintiff as it finds her. The elevator company is therefore responsible for the plaintiff's injuries, including the aggravation of her existing disability. A is incorrect. The injury must be foreseeable, but to find a defendant liable, the extent of the injury itself does not necessarily have to be foreseeable. B is incorrect. As explained above, when negligence is found, the defendant must take the plaintiff as it finds her. The standard is not whether "an ordinarily prudent elevator passenger" would have been harmed to the same extent. C is incorrect. This answer choice misstates the rule. The elevator company is not responsible for injuries not caused by its negligence, only for the aggravation of the disability.

Question 94

A man's car sustained moderate damage in a collision with a car driven by a woman. The accident was caused solely by the woman's negligence. The man's car was still drivable after the accident. Examining the car the next morning, the man could see that a rear fender had to be replaced. He also noticed that gasoline had dripped onto the garage floor. The collision had caused a small leak in the gasoline tank. The man then took the car to a mechanic, who owns and operates a body shop, and arranged with the mechanic to repair the damage. During their discussion the man neglected to mention the gasoline leakage. Thereafter, while the mechanic was loosening some of the damaged material with a hammer, he caused a spark, igniting vapor and gasoline that had leaked from the fuel tank. The mechanic was severely burned. The mechanic has brought an action to recover damages against the man and woman. The jurisdiction has adopted a pure comparative negligence rule in place of the traditional common law rule of contributory negligence. In this action, will the mechanic obtain a judgment against the woman? A: No, because there is no evidence that the woman was aware of the gasoline leak. B: No, because the mechanic would not have been harmed had the man warned him about the gasoline tank. C: Yes, because the mechanic was not negligent in failing to discover the gasoline leak himself. D: Yes, because the mechanic's injury was a proximate consequence of the woman's negligent driving.

Answer 94

D: Yes, because the mechanic's injury was a proximate consequence of the woman's negligent driving. D is correct. It is foreseeable that a car accident could rupture a gas tank leading the gasoline to ignite and causing severe burn damage to anyone in or near the car, and the woman's negligence was the proximate cause of the accident and all foreseeable injuries. The manner of the accident is not determinative; the mechanic's injury was a foreseeable result of the accident. The mechanic's injury was not so removed in time and circumstance as to offend fundamental fairness. A is incorrect. The woman is not required to know of the gas leak. It is a foreseeable consequence of the car accident. B is incorrect. While this may contain a true statement, the man's failure to warn the mechanic will not be enough to supersede and preclude recovery from the woman. The igniting gas was a foreseeable injury; the manner in which it occurred is not determinative. C is incorrect. The mechanic's comparative negligence will affect the amount of damages he may recover from the woman but will not prevent him from prevailing on his claim. A pure comparative negligence jurisdiction allows a plaintiff to recover all of his damages except the portion attributed, by the court, to his own negligence.

Question 95

A driver negligently drove his car into a pedestrian, breaking her leg. The pedestrian's leg was put in a cast, and she used crutches to get around. While shopping at her local supermarket, the pedestrian non-negligently placed one of her crutches on a banana peel that had been negligently left on the floor by the manager of the supermarket's produce department. The pedestrian's crutch slipped on the peel, and she fell to the floor, breaking her arm. Had the pedestrian stepped on the banana peel at a time when she did not have to use crutches, she would have regained her balance. The pedestrian sued the driver and the supermarket for her injuries. The pedestrian will be able to recover from A: the driver, for her broken leg only. B: the driver, for both of her injuries. C: the supermarket, for both of her injuries. D: the driver, for her broken leg only, and the supermarket, for her broken arm only.

Answer 95

B: the driver, for both of her injuries. B is correct. The pedestrian's broken arm is proximately connected to the driver's negligent driving. Courts generally hold that subsequent ordinary negligence actions, which may add to the plaintiff's injuries, are a foreseeable consequence of the original action and will not break the chain of causation. The facts clearly state that the pedestrian would not have lost her balance had she not been on crutches as the result of being hit by the driver. Because it is foreseeable that walking on crutches would make the pedestrian less stable on her feet and more vulnerable to subsequent injury from falling, the driver is the proximate (legal) cause of both injuries (although responsibility for the broken arm alone may be apportioned between the driver and the supermarket as concurrent tortfeasors). A is incorrect. As described above, the driver is liable for the broken leg and also the foreseeable harm resulting from a subsequent slip-and-fall due to the pedestrian’s injured state. C is incorrect. The supermarket will not be liable for both injuries because the injuries are clearly divisible (the supermarket had nothing to do with the broken leg, which was caused only by the driver’s negligence). D is incorrect. As described above, the driver is liable for the broken leg and also the foreseeable harm resulting from a subsequent slip-and-fall due to the pedestrian’s injured state.

Question 96

A driver, returning home from a long work shift at a factory, fell asleep at the wheel and lost control of his car. As a result, his car collided with a police car driven by an officer who was returning to the station after having responded to an emergency. The officer was injured in the accident and later sued the driver in negligence for her injuries. The driver has moved for summary judgment, arguing that the common law firefighters’ rule bars the suit. Should the court grant the motion? A: No, because the firefighters’ rule does not apply to police officers. B: No, because the police officer’s injuries were not related to any special dangers of her job. C: Yes, because the accident would not have occurred but for the emergency. D: Yes, because the police officer was injured on the job.

Answer 96

B: No, because the police officer’s injuries were not related to any special dangers of her job. B is correct. The driver could be held liable for his negligence because being struck by a car in normal traffic is not one of the special risks inherent to dangerous police work. The firefighters' rule bars only claims for injuries that result from risks that are unique or special to the plaintiff's inherently dangerous work. A is incorrect. This answer correctly states that the driver's motion should be denied, but it misstates the legal basis for this conclusion. The firefighters' rule, although named with reference to firefighters, also covers police officers. They, too, are public servants at risk of injury by the perils that they have been employed to confront. Instead, the motion should be denied because being struck by a car in normal traffic is not one of the special risks inherent to dangerous police work. The firefighters' rule bars only claims for injuries that result from risks that are unique or special to the plaintiff's inherently dangerous work. C is incorrect. But-for causation is not sufficient to support the firefighters' rule defense when the risk that materialized was not one of the unique risks inherent to the officer's dangerous work. The firefighters' rule bars only claims for injuries that result from risks that are unique or special to the plaintiff's inherently dangerous work. The fact that the officer was returning from an emergency when she was struck is just a coincidence. D is incorrect. The firefighters' rule bars only claims for injuries that result from risks that are unique or special to the plaintiff's inherently dangerous work. Workers' compensation, not the common law of torts, is the compensation system for on-the-job injuries. The driver could be held liable for his negligence because being struck by a car in normal traffic is not one of the special risks inherent to dangerous police work.

Question 97

A construction company was digging a trench for a new sewer line in a street in a high-crime neighborhood. During the course of the construction, there had been many thefts of tools and equipment from the construction area. One night, the construction company’s employees neglected to place warning lights around the trench. A delivery truck drove into the trench and broke an axle. While the truck driver was looking for a telephone to call a tow truck, thieves broke into the truck and stole $350,000 worth of goods. The delivery company sued the construction company to recover for the $350,000 loss and for the damage to its truck. The construction company has stipulated that it was negligent in failing to place warning lights around the trench and admits liability for damage to the truck, but it denies liability for the loss of the goods. On cross-motions for summary judgment on the claim for the goods, how should the court rule? A: Deny both motions, because there is evidence to support a finding that the construction company should have realized that its negligence could create an opportunity for a third party to commit a crime. B: Grant the construction company’s motion, because no one could have foreseen that the failure to place warning lights could result in the loss of a cargo of valuable goods. C: Grant the construction company’s motion, because the criminal acts of third persons were a superseding cause of the loss. D: Grant the delivery company’s motion, because but for the construction company’s actions, the goods would not have been stolen.

Answer 97

A: Deny both motions, because there is evidence to support a finding that the construction company should have realized that its negligence could create an opportunity for a third party to commit a crime. A is correct. A defendant will be liable for the criminal actions of a third party if they were a reasonably foreseeable result at the time of the defendant's negligence. Here, the construction company claims it should not be liable for third party criminal acts, and yet, it had knowledge of regular thefts in the area, which means that a jury could reasonably decide that it was foreseeable. Because of this disputed issue, the motions should both be denied and it should be submitted to the jury. B is incorrect. It is arguable whether the construction company could have reasonably foreseen that failing to adequately light the site could make vehicles in the area more vulnerable to thefts. Such a result is not so far-reaching that no one could have foreseen it, and the jury should decide the issue. C is incorrect. Although a defendant is usually not liable for criminal acts by third parties, this is not the case where such criminal activity was reasonably foreseeable at the time of the defendant's negligence. The construction company's motion should be denied because a jury should determine whether the thefts were foreseeable based on the history of crime in the area. D is incorrect. But-for cause is not sufficient to be liable for negligence, there must also be proximate cause. However, a defendant's negligence may not be the proximate cause of an injury if a superseding cause intervened. The jury should decide this issue, as stated above.

Question 98

When a tire of a motorist’s car suffered a blowout, the car rolled over and the motorist was badly injured. Vehicles made by the manufacturer of the motorist’s car have been found to be negligently designed, making them dangerously prone to rolling over when they suffer blowouts. A truck driver who was driving behind the motorist when the accident occurred stopped to help. Rescue vehicles promptly arrived, and the truck driver walked along the side of the road to return to his truck. As he approached his truck, he was struck and injured by a speeding car. The truck driver has sued the manufacturer of the injured motorist’s car. Is the truck driver likely to prevail in a suit against the car manufacturer? A: No, because the car manufacturer’s negligence was not the proximate cause of the truck driver’s injuries. B: No, because the truck driver assumed the risk of injury when he undertook to help the motorist. C: Yes, because it is foreseeable that injuries can result from rollovers. D: Yes, because the car manufacturer’s negligence caused the dangerous situation that invited the rescue by the truck driver.

Answer 98

D: Yes, because the car manufacturer’s negligence caused the dangerous situation that invited the rescue by the truck driver. D is correct. By negligently designing the vehicles, the manufacturer became liable for foreseeable intervening causes of harm, including the invitation of rescue. There is no evidence that the truck driver was negligent or acted recklessly in assisting the motorist, and he will thus prevail. A is incorrect. The truck driver's rescue efforts were foreseeable as the result of the manufacturer's negligent design, and as such, the intervening force of the speeding car hitting him will not break the chain of proximate causation, and the manufacturer will be liable for the truck driver's injuries. B is incorrect. Assumption of the risk will only be a defense when the plaintiff voluntarily faces a risk of harm, which means that no reasonable alternatives existed. This generally does not apply in emergency situations, such as in this case, where the truck driver did not have a reasonable alternative course of action to offering aid to the motorist. C is incorrect. The truck driver's injuries were foreseeable given the dangerous situation caused by the manufacturer's negligence, not because rollovers cause injuries. The issue is whether the intervening event of the speeding car broke the chain of proximate cause. As explained above, because danger invites rescue, a rescuer injured while providing aid is considered foreseeable and the defendant will be liable.

Question 99

A driver negligently ran into a pedestrian who was walking along a road. The pedestrian sustained an injury to his knee, causing it to buckle from time to time. Several months later, the pedestrian sustained an injury to his shoulder when his knee buckled, causing him to fall down a flight of stairs. The pedestrian then brought an action against the driver for the injuries to his knee and shoulder. In his action against the driver, for which of his injuries may the pedestrian recover damages? A: For the injuries to his knee and shoulder, because the driver takes the victim as he finds him. B: For the injuries to his knee and shoulder, if the jury finds that the pedestrian’s fall down a flight of stairs was a normal consequence of his original injury. C: For the injury to his knee only, because the injury to the pedestrian’s shoulder is separable. D: For the injury to his knee only, if the jury finds that the driver could not have foreseen that his negligent driving would cause the pedestrian to fall down a flight of stairs.

Answer 99

B: For the injuries to his knee and shoulder, if the jury finds that the pedestrian’s fall down a flight of stairs was a normal consequence of his original injury. B is correct. The jury's finding that the fall was a normal consequence of the original injury will allow for the analysis to proceed to a determination of the scope of recoverable damages. Negligent defendants are liable for the full extent damages, regardless of foreseeability. A is incorrect. This principle applies to unusually vulnerable plaintiffs, which was not the case here. Nevertheless, the pedestrian will recover for both injuries because the fall was a natural consequence of the original injury and the defendant will thus be liable for even unforeseeable damages. C is incorrect. Separability of an injury is an issue that arises where there are multiple defendants, but here, there is a single defendant and multiple injuries. D is incorrect. Because the jury found that the fall was a natural consequence of the original injury, the analysis proceeds to damages. Foreseeability does not limit the extent of recoverable damages, as stated above.

Question 100

A shopper slipped and fell in a grocery store, injuring her wrist. In a medical malpractice action against the doctor who treated her, the shopper alleges that the doctor worsened the injury by his treatment. Normally, competent medical treatment would have resulted in a complete cure of the wrist injury. The doctor is seeking to implead the grocery store. The grocery store contends that its alleged negligence was not a proximate cause of any of the injuries allegedly caused by the doctor. Should the court allow the doctor to implead the grocery store? A: No, because medical malpractice and the negligence of a possessor of property involve different standards of care. B: No, because the alleged negligent acts of the grocery store and the doctor occurred sequentially and not concurrently. C: No, because the fact-finder could find that the shopper sustained a single indivisible injury proximately caused by the negligence of both the grocery store and the doctor. D: Yes, because the fact-finder could assign some of the responsibility for the shopper’s injuries to the grocery store.

Answer 100

D: Yes, because the fact-finder could assign some of the responsibility for the shopper’s injuries to the grocery store. D is correct. The doctor may implead the grocery store because the fact-finder could conclude that the negligence of both the grocery store and the doctor contributed to the total injury suffered by the shopper, including the worsening of her initial injury that resulted from the doctor’s malpractice. A is incorrect. The question is not about the standard of care applicable to the doctor and the store. Rather, this question addresses whether the store, if found negligent, may be held responsible along with the doctor, not only for the shopper’s initial injury but also for the worsening of the injury as a result of the doctor’s malpractice. B is incorrect. The mere fact that the doctor’s malpractice happened after the alleged negligence of the store does not defeat the imposition of liability on the store for the worsening of the shopper’s injury caused by the doctor’s malpractice. C is incorrect. The fact that the doctor’s negligence and the store’s negligence (if any) both contributed to the plaintiff’s injury does not limit the doctor’s ability to implead the grocery store. On the contrary, the fact that liability could be assigned to both the doctor and the store provides a basis for why the doctor may implead the grocery store.

Question 101

As a bartender was removing the restraining wire from a bottle of champagne produced and bottled by Winery, Inc., the plastic stopper suddenly shot out of the bottle. The stopper struck and injured the bartender's eye. The bartender had opened other bottles of champagne, and occasionally the stoppers had shot out with great force, but the bartender had not been injured. The bartender has brought an action against Winery, Inc., alleging that the bottle that caused his injury was defective and unreasonably dangerous because its label did not warn that the stopper might suddenly shoot out during opening. The state has merged contributory negligence and unreasonable assumption of risk into a pure comparative fault system that is applied in strict products liability actions. A jury made the following findings of fact: that the bottle was defective and unreasonably dangerous because it lacked a warning, that a legally sufficient warning would not have prevented the bartender's injury, and that a reasonable bartender would have realized that a stopper could eject from the bottle and hit his eye. Will the bartender recover a judgment in his favor? A: No, because a legally sufficient warning would not have prevented the bartender's injury. B: No, because a reasonable bartender would have realized that a stopper could eject from the bottle and hit his eye. C: Yes, with damages reduced by the percentage of any contributory fault on the bartender's part. D: Yes, with no reduction in damages, because foreseeable lack of caution is the reason for requiring a warning.

Answer 101

A: No, because a legally sufficient warning would not have prevented the bartender's injury. A is correct. This is a products liability action based on strict liability for a design defect, specifically an inadequate warning. In order to establish a prima facie case in products liability based on strict liability, the following elements must be proven: (i) the defendant is a commercial supplier; (ii) the defendant produced or sold a defective product; (iii) the defective product was the actual and proximate cause of the plaintiff's injury; and (iv) the plaintiff suffered damages to person or property. In order to prove a defective product, courts use a factor balancing test known as the feasible alternative approach. One factor is the avoidability of the injury by care in use, including the role of instructions and warnings. In this case, the bartender was aware of the risk and had experienced it before. A legally sufficient warning here would not have prevented the bartender's injury. Because the injury would have occurred even with a legally sufficient warning, the bartender will not recover. B is incorrect. This answer hints at an assumption of risk defense for the winery, but there is no evidence that the bartender’s opening of the bottle was unreasonable in light of the known risk. In this jurisdiction, assumption of the risk has been merged into a comparative fault system. C is incorrect. Ordinary contributory negligence is not a defense in a strict products liability action where the plaintiff merely failed to discover the defect or guard against its existence. Here, the bartender only failed to guard against the possibility that the cork would shoot out after taking off the restraining wire. Furthermore, the bartender will not recover because the lack of an adequate warning was not the cause in fact of his injury. D is incorrect. The bartender will not recover because the lack of an adequate warning was not the cause in fact of his injury.

Question 102

A plaintiff entered a drug store to make some purchases. As he was searching the aisles for various items, he noticed a display card containing automatic pencils. The display card was on a high shelf behind a cashier's counter. The plaintiff saw a sign on the counter that read, "No Admittance, Employees Only." Seeing no clerks in the vicinity to help him, the plaintiff went behind the counter to get a pencil. A clerk then appeared behind the counter and asked whether she could help him. He said he just wanted a pencil and that he could reach the display card himself. The clerk said nothing further. While reaching for the display card, the plaintiff stepped sideways into an open shaft and fell to the basement, 10 feet below. The clerk knew of the presence of the open shaft, and had reason to believe that the plaintiff had not noticed it when stepping behind the counter. The plaintiff sued the drug store to recover damages for the injuries he sustained in the fall. The jurisdiction has adopted a rule of pure comparative negligence, and it follows traditional common-law rules governing the duties of a land possessor. Will the plaintiff recover a judgment against the drug store? A: No, because the plaintiff was a trespasser. B: No, because the plaintiff's injuries did not result from the defendant's willful or wanton misconduct. C: Yes, because the premises were defective with respect to a public invitee. D: Yes, because the clerk had reason to believe that the plaintiff was unaware of the open shaft.

Answer 102

D: Yes, because the clerk had reason to believe that the plaintiff was unaware of the open shaft. D is correct. As an invitee, and even as a trespasser once he went into the area of the store he was not permitted in, the plaintiff was owed a duty by the store, and by extension the clerk, to be warned of known, non-obvious, artificial dangers and for the premise to be made reasonably safe. The fact that the clerk knew the open shaft was there and that the plaintiff likely did not know, will render the store liable for injuries the plaintiff suffered, even if he became a trespasser in ignoring the sign. A is incorrect. Even if the plaintiff was downgraded from an invitee to a trespasser, the store still had a duty to warn of the open shaft, which was a known, non-obvious artificial condition on the premises that could cause serious bodily harm. B is incorrect. Even though the defendant was not willful or wanton, this does not preclude liability for negligent failure to warn of known perils that are non-obvious to even trespassers, as stated above. C is incorrect. The duty to warn existed here, regardless of whether the plaintiff remained an invitee or became a trespasser by entering into the restricted area of the store.

Question 103

A supermarket is in a section of town where there are sometimes street fights and where pedestrians are occasionally the victims of pickpockets and muggers. In recognition of the unusual number of robberies in the area, the supermarket posted signs in the store that read: "Warning: There are pickpockets and muggers at work in this part of the city. The supermarket is not responsible for the acts of criminals." Other than posting the signs, the supermarket took no other precautions to prevent criminal activity on the premises. One evening, a customer drove to the supermarket to see about a special on turkeys that the supermarket was advertising. She decided that the turkeys were too large and left the store without purchasing anything. In the parking lot, she was attacked by an unknown man who raped her and then ran away. If the customer sues the supermarket, the result should be for the A: plaintiff, because the supermarket failed to take reasonable steps to protect customers against criminal attack in its parking lot. B: plaintiff, because the supermarket is liable for harm to business invitees on its premises. C: defendant, because the warning signs were visible to the customer. D: defendant, because the rapist was the proximate cause of the customer's injuries.

Answer 103

A: plaintiff, because the supermarket failed to take reasonable steps to protect customers against criminal attack in its parking lot. A is correct. The supermarket had a duty to do more than post a warning. The fact that it was aware of ongoing violent crimes in the area meant that it had a duty to take reasonable affirmative steps to keep its customers safe against foreseeable dangers by third persons. B is incorrect. The supermarket is not strictly liable for any harm to invitees, but rather, negligent if it breaches a duty of care owed in a given situation. As stated above, the store is liable for negligently failing to make the premise reasonably safe. C is incorrect. Aside from the signs, the supermarket took no other precautions to prevent criminal activity on the premise. As explained above, the supermarket failed to carry out its duty to make conditions on the premise reasonably safe. D is incorrect. The rapist was the actual cause of the plaintiff's injuries, although that does not save the supermarket from liability. As stated above, the supermarket had a duty to exercise reasonable care for its customers in protecting them against a foreseeable danger, which it failed to do by merely posting signs.

Question 104

A defendant has a small trampoline in his backyard which, as he knows, is commonly used by neighbor children as well as his own. The trampoline is in good condition, is not defective in any way, and normally is surrounded by mats to prevent injury if a user should fall off. Prior to leaving with his family for the day, the defendant leaned the trampoline up against the side of the house and placed the mats in the garage. While the defendant and his family were away, the plaintiff, aged 11, a new boy in the neighborhood, wandered into the defendant's yard and saw the trampoline. The plaintiff had not previously been aware of its presence, but, having frequently used a trampoline before, he decided to set it up, and started to jump. He lost his balance on one jump and took a hard fall on the bare ground, suffering a serious injury that would have been prevented by the mats. An action has been brought against the defendant on the plaintiff's behalf to recover damages for the injuries the plaintiff sustained from his fall. In this jurisdiction, the traditional common-law rules pertaining to contributory negligence have been replaced by a pure comparative negligence rule. In his action against the defendant, will the plaintiff prevail? A: No, because children likely to be attracted by the trampoline would normally realize the risk of using it without mats. B: No, because the plaintiff failed to exercise reasonable care commensurate with his age, intelligence, and experience. C: No, because the plaintiff entered the defendant's yard and used the trampoline without the defendant's permission. D: No, because the plaintiff did not know about the trampoline before entering the defendant's yard and thus was not "lured" onto the premises.

Answer 104

A: No, because children likely to be attracted by the trampoline would normally realize the risk of using it without mats. A is correct. Here, the facts indicate that while the neighborhood children commonly used the defendant's trampoline, the plaintiff was new to the neighborhood and so was unknown to the defendant. The plaintiff is also 11, old enough to understand the risks. The defendant knew that the local children would be aware of the need for mats because those children "commonly" used the trampoline and the mats. Therefore, the plaintiff will not prevail. B is incorrect. This answer choice uses the incorrect standard. The test used for determining a child's standard of care in a negligence action is not applicable here. Because the children in the neighborhood knew the trampoline was usually used with mats, the child's standard of care is irrelevant. C is incorrect. Lack of permission does not provide a defense for a claim based on the attractive nuisance doctrine. D is incorrect. The courts now reject the traditional requirement that the child must be "lured" onto the premises by the attractive nuisance.

Question 105

A vintner is the owner of a large vineyard and offers balloon rides to visitors who wish to tour the grounds from the air. During one of the rides, the vintner was forced to make a crash landing on his own property due to high winds. Without the vintner's knowledge or consent, a trespasser had entered the vineyard to camp for a couple of days. The trespasser was injured when he was hit by the basket of the descending balloon. If the trespasser sues the vintner to recover damages for his injuries, will the trespasser prevail? A: No, because there is no evidence that the crash landing was made necessary by the vintner's negligence. B: No, because the vintner was unaware of the trespasser's presence until after the injury had occurred. C: Yes, because even a trespasser may recover for injuries caused by an abnormally dangerous activity. D: Yes, because the accident occurred at a place which the vintner knew was frequented by intruders.

Answer 105

B: No, because the vintner was unaware of the trespasser's presence until after the injury had occurred. B is correct. The vintner has no duty to an undiscovered trespasser. If the vintner knew or reasonably should have known of the trespasser's presence, under majority law he has a duty of reasonable care to avoid injury to the trespasser. (Under traditional common law a discovered trespasser was only owed the duty to avoid gross negligence or willful and wanton misconduct.) This choice appropriately addresses the issue of awareness and the corresponding duty. A is incorrect. The vintner only has a duty of reasonable care for an activity that has a foreseeably harmful result to a specific plaintiff or a potential plaintiff in the zone of danger. The facts do not indicate that visitors were known to frequent the property where the vintner was forced to land. The vintner has no duty to an unknown and unforeseeable trespasser. C is incorrect. The facts do not support an inference that ballooning is an ultra-hazardous or abnormally dangerous activity. D is incorrect. The facts give no indication that the vineyard was frequented by trespassers and specifically states that the trespasser was there without consent or knowledge of the vintner.

Question 106

The day after a seller completed the sale of his house and moved out, one of the slates flew off the roof during a windstorm. The slate struck a pedestrian who was on the public sidewalk. The pedestrian was seriously injured. The roof is old and has lost several slates in ordinary windstorms on other occasions when the seller was present. The pedestrian was also aware that past windstorms had blown slates off the roof. If the pedestrian sues the seller to recover damages for his injuries, will the pedestrian prevail? A: Yes, because the roof was defective when the seller sold the house. B: Yes, because the seller should have been aware of the condition of the roof and should have realized that it was dangerous to persons outside the premises. C: No, because the seller was neither the owner nor the occupier of the house when the pedestrian was injured. D: No, because the pedestrian knew that in the past slates had blown off the roof during windstorms.

Answer 106

B: Yes, because the seller should have been aware of the condition of the roof and should have realized that it was dangerous to persons outside the premises. B is correct. The seller had a duty of reasonable care for the safety of those outside the land to prevent harm resulting from conditions on the land. The facts indicate that ordinary windstorms had previously caused tile loss. Despite the fact that the seller just sold the home, he was or should have been aware of the dangerous condition of the roof and the foreseeability of harm to persons outside the premises from windswept falling tiles. Instead, he left the dangerous conditions without taking precautionary measures to protect against dislodged tiles. C is incorrect. It is irrelevant that the seller was no longer the owner or occupier of the house; the seller's negligent conduct was a breach of his duty of care and proximately caused the pedestrian's injuries. A is incorrect. This is not a products liability issue; it is a failure to exercise reasonable care issue. The seller was a negligent user/owner of a property, not a manufacturer of a defective product. Thus, the pedestrian must assert a claim for negligence, not strict liability. The seller is still liable for his own negligent conduct as it affected the house, even if he has just sold the property at issue. (If the sale had occurred sometime earlier such that the new owner had time to observe the problem, however, then the seller would no longer be liable for the original condition of the roof. The new owner would have had a duty to repair the roof once he had time to discover the dangerous condition.) D is incorrect. The pedestrian's own breach of care (if any) would only go to damages. The pedestrian does not, however, have a duty to guard against the internal property conditions of another that may result in a danger to the pedestrian while walking past the land.

Question 107

A bright 12-year-old child attended a day-care center after school. The day-care center was located near a man-made duck pond on the property of a corporation. During the winter, the pond was used for ice-skating when conditions were suitable. At a time when the pond was obviously only partially frozen, the child sneaked away from the center’s property and walked out onto the ice over the pond. The ice gave way, and the child fell into the cold water. He suffered shock and would have drowned had he not been rescued by a passerby. At the time of the incident, the pond was clearly marked with numerous signs that stated, “THIN ICE—KEEP OFF.” When the child sneaked away from the day-care center, the center was staffed with a reasonable number of qualified employees, and the employees were exercising reasonable care to ensure that the children in their charge did not leave the premises. There had not been a previous instance of a child coming onto the corporation’s property from the day-care center. The jurisdiction follows a rule of pure comparative negligence. In a suit brought on the child’s behalf against the corporation and based only on the facts above, who is likely to prevail? A: The child, because the corporation owes a duty to keep its premises free of dangerous conditions. B: The child, because the pond was an attractive nuisance. C: The corporation, because the danger of thin ice may reasonably be expected to be understood by a 12-year-old child. D: The corporation, because the day-care center had a duty to keep the child off the ice.

Answer 107

C: The corporation, because the danger of thin ice may reasonably be expected to be understood by a 12-year-old child. C is correct. The child-trespasser was a bright 12-year-old, which means he should have appreciated the magnitude of the risk in light of the sign explicitly warning him from not going onto the ice. A is incorrect. The corporation fulfilled its duty to reasonably make safe dangerous conditions that a trespasser would be unlikely to discover. The child here should have appreciated the risk by way of the obviousness of the icy lake and the signs warning of the danger, as stated above. B is incorrect. There is no evidence that the corporation was aware that children were likely to trespass and be at risk by the lake, and the child here should have appreciated the risk given the warning sign and his level of intelligence as a bright 12-year-old. D is incorrect. Whether the daycare was negligent is irrelevant. If the daycare was negligent, this does not preclude the corporation from being liable if it had been negligent. However, as stated above, the corporation acted reasonably and therefore should still prevail.

Question 108

A hiker sustained a head injury when he was struck by a limb that fell from a tree. At the time of his injury, the hiker was walking through a forest on private property without the property owner’s knowledge or permission. It was determined that the limb fell because the tree was infested with termites. In an action by the hiker against the property owner to recover for his head injury, will the hiker be likely to prevail? A: No, because the property owner could not foresee that anyone would be injured. B: No, because the property owner breached no duty to the hiker, who was a trespasser. C: Yes, because the property owner had a duty to prevent the trees on his property from becoming dangerous. D: Yes, because the property owner is liable for hidden dangers on his property.

Answer 108

B: No, because the property owner breached no duty to the hiker, who was a trespasser. B is correct. The hiker was a trespasser because he entered without the permission of the owner. A possessor of land is not required to exercise reasonable care to make his land safe for trespassers. A is incorrect. Nothing in the facts suggests that the weakness of the limb could not have been discovered by the exercise of reasonable care. The hiker was a trespasser, however, because he entered without the permission of the owner, and a possessor of land is not required to exercise reasonable care to make his land safe for trespassers. If the property owner had owed a duty to take reasonable care to protect the hiker, the property owner might have been required to make regular inspections of the conditions on his land. C is incorrect. The hiker was a trespasser because he entered without the permission of the owner. A possessor of land is not required to exercise reasonable care to make his land safe for trespassers. D is incorrect. The hiker was a trespasser because he entered without the knowledge or permission of the owner. A property owner is liable only for artificial conditions highly dangerous to trespassers and only when he knows about the trespasser or has some reason to anticipate the trespasser’s presence.

Question 109

A child was bitten by a dog while playing in a fenced-in common area of an apartment complex owned by a landlord. The child was the guest of a tenant living in the complex, and the dog was owned by another tenant. The owner of the dog knew that the dog had a propensity to bite, but the landlord did not have any notice of the dog’s vicious propensities. In an action by the child against the landlord, will the child be likely to prevail? A: Yes, because in these circumstances a landlord is strictly liable. B: Yes, because a landlord’s duty to protect a tenant’s guests from dangerous conditions is nondelegable. C: No, because the landlord did not have notice of the dog’s vicious propensities. D: No, because a landlord owes no duty to a tenant’s guests.

Answer 109

C is correct. Any duty that the landlord may have is at most a duty to act reasonably. Because the landlord had no reason to know that the dog posed a risk to those on his property, his failure to take precautions against that risk was not negligent. A is incorrect. The possessor of a vicious dog may be strictly liable to those injured by the dog, but the landlord here is not in possession of the dog. Moreover, the liability, where it exists, is limited to cases in which the possessor has reason to know that the dog is unusually dangerous. B is incorrect. A landlord may have a nondelegable duty to protect persons who come upon the land from dangerous conditions of the property, such as cracked walks and broken stairs, but the presence of a dog that belongs to a tenant is not such a condition. Also the landlord's duty is only to act reasonably, and there is no evidence here that the landlord or anyone for whom he was responsible acted unreasonably. D is incorrect. The answer correctly states that the landlord will prevail, but it misstates the reasoning for this conclusion. A landlord does owe a duty to those who are foreseeably on the land, including guests of his tenants when they are in common areas. But the landlord's duty is only to act reasonably. The landlord will not be liable because there is no evidence that he acted unreasonably.

Question 110

A young woman who attended a rock concert at a nightclub was injured when the band opened its performance with illegal fireworks that ignited foam insulation in the club’s ceiling and walls. The young woman sued the radio station that sponsored the performance. The radio station has moved for summary judgment, claiming that it owed no duty to audience members. The evidence has established the following facts: The station advertised its sponsorship on the radio and in print, distributed free tickets to the concert, staffed the event with the station’s interns to assist with crowd control, and provided a station disc jockey to serve as master of ceremonies. The master of ceremonies had the authority to stop or delay the performance at any time on the basis of any safety concern. The station knew or should have known that the band routinely used unlicensed, illegal fireworks in its performances. Should the court grant the radio station’s motion for summary judgment? A: No, because there is sufficient evidence of knowledge and control on the part of the station to impose on it a duty of care to audience members. B: No, because under respondeat superior, the radio station is vicariously liable for the negligent actions of the band. C: Yes, because it is the band and the nightclub owners who owed audience members a duty of care. D: Yes, because the conduct of the band in setting off illegal fireworks was criminal and was a superseding cause as a matter of law.

Answer 110

A: No, because there is sufficient evidence of knowledge and control on the part of the station to impose on it a duty of care to audience members. A is correct. A duty of care is owed to only foreseeable plaintiffs. Here, the radio station owed a duty to the attendees of the concert because the station advertised its sponsorship on the radio and in print, distributed free tickets to the concert, and more. The station had sufficient knowledge and control, giving rise to a duty to the concert attendees. B is incorrect. Respondeat superior usually applies to an employer/employee relationship. An employer will be held vicariously liable for tortious acts committed by her employee if the tortious acts occur within the scope of the relationship. This doctrine does not apply because there is no employer/employee relationship. Here, there aren't enough facts to infer that. C is incorrect. The radio station also owed a duty to the concert attendees because the radio station was heavily involved in the concert. The radio station knew or should have known that the band routinely used illegal fireworks in its performances, so it would be foreseeable that they would use fireworks here. D is incorrect. The radio station knew or should have known of the band's propensities to use illegal fireworks. Therefore, it is not a superseding cause as a matter of law.

Question 111

While visiting at his son’s home, a grandfather tripped on a toy left on the floor by his four-year- old grandson. The grandfather fell and was severely injured. The grandfather regularly visited his son’s home and was aware that the grandson routinely left toys scattered about the house. The son had never warned the grandfather to look out for toys. The grandfather brought an action against his son to recover for his injuries, and both the grandfather and the son have moved for directed verdicts as to liability. The jurisdiction has abolished intra-family immunity and applies the traditional rules of landowner liability. What action should the court take? A: Deny both motions and submit the case to the jury based on negligence. B: Deny both motions and submit the case to the jury based on strict liability. C: Grant the grandfather’s motion, because the son is liable as a matter of law for failing to warn about the risk of toys being left on the floor. D: Grant the son’s motion, because the son had no duty to warn that the grandson might leave toys on the floor.

Answer 111

D: Grant the son’s motion, because the son had no duty to warn that the grandson might leave toys on the floor. D is correct. The duty owed by an owner or occupier of land to those on the premises for dangerous conditions on the land depends on the legal status of the plaintiff with regard to the property. Here, the grandfather was invited to the son's home, making him a licensee. Typically social guests are considered licensees. An owner owes a duty to warn or make safe dangerous known conditions that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover. In this case, the grandfather regularly visits the son's home and was aware that toys were typically left around the house. The son had no duty to warn the grandfather because the dangerous condition was one already known to the grandfather. A is incorrect. The motion should be granted because the son has proved that he has not breached a duty owed to the grandfather. Because the son can show that the grandfather has not met an essential element of his case, the court should grant judgment as a matter of law for the son. B is incorrect. Strict liability claims are a mechanism to impose liability without fault. For strict liability to apply, the defendant's activity must impose an absolute duty to make safe. Here, strict liability would not be a proper theory of liability because the son is not engaged in an activity that requires an absolute duty to make safe. C is incorrect. An owner owes a duty to warn or make safe dangerous known conditions that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover. The grandfather was already aware of the condition of the house with toys commonly left scattered about. Therefore, the son had no duty to warn because the grandfather was already aware of the condition of the home.

Question 112

An eight-year-old child went to the grocery store with her mother. The child pushed the grocery cart while her mother put items into it. The child's mother remained near the child at all times. Another customer in the store noticed the child pushing the cart in a manner that caused the customer no concern. A short time later, the cart the child was pushing struck the customer in the knee, inflicting serious injury. Assume that the child was negligent and the child's mother did not adequately supervise the child. If the customer brings an action, based on negligence, against the child's mother, will the customer prevail? A: Yes, because the child was negligent. B: Yes, because the child's mother is responsible for any harm caused by the child. C: Yes, because the child's mother assumed the risk of her child's actions. D: Yes, because the child's mother did not adequately supervise the child's actions.

Answer 112

D: Yes, because the child's mother did not adequately supervise the child's actions. D is correct. Parents have a number of affirmative duties based on their special relationship to their minor children. This includes the duty to exercise reasonable care in the control of the parent's minor children. A parent who is physically present and fails to exercise control of her child is generally not vicariously liable for the child's tortious behavior; rather, the parent may be liable for her own negligence in failing to control the child. Because the child's mother was not adequately supervising her daughter, and it was foreseeable that the child could potentially injure someone, the customer is likely to prevail. A is incorrect. The action is against the child's mother, who had an affirmative duty to control her child. It is the mother's negligence, not the tortious behavior of the child , that renders the mother liable. B is incorrect. The correct standard of care here is negligence, not strict liability. The mother was liable because the harm caused by the child's actions was reasonably foreseeable, not because she is responsible for any harm, which would be incorrectly applying strict liability. C is incorrect. Assumption of risk must be knowing and expressed or implied. More importantly, it is used as a defense by the defendant against a claim of negligence by the plaintiff. The mother cannot "assume the risk" of the child's behavior unless the mother was the plaintiff herself in an action. This choice implies vicarious liability, which is not at issue here.

Question 113

A defendant and a group of his friends are fanatical basketball fans who regularly meet at each others' houses to watch basketball games on television. Some of the group are fans of the home team, and others are fans of the rival team. When the group has watched televised games between these two teams, fights sometimes have broken out among the group. Despite this fact, the defendant invited the group to his house to watch a championship game between the home team and the rival team. During the game, the defendant's guests became rowdy and antagonistic. Fearing that they would begin to fight, and that a fight would damage his possessions, the defendant asked his guests to leave. They refused to go and soon began to fight. The defendant called the police, and a police officer was sent to the defendant's home. The officer sustained a broken nose in his efforts to stop the fighting. The officer brought an action against the defendant alleging that the defendant was negligent in inviting the group to his house to watch this championship game. The defendant has moved to dismiss the complaint. The best argument in support of this motion would be that A: a rescuer injured while attempting to avert a danger cannot recover damages from the endangered person. B: a police officer is not entitled to a recovery based upon the negligent conduct that created the need for the officer's professional intervention. C: as a matter of law, the defendant's conduct was not the proximate cause of the officer's injury. D: the defendant did not owe the officer a duty to use reasonable care, because the officer was a mere licensee on the defendant's property.

Answer 113

B: a police officer is not entitled to a recovery based upon the negligent conduct that created the need for the officer's professional intervention. B is correct. The "firefighter's rule" bars from recovery a firefighter or police officer who was injured by a peril that he was employed to confront. If the peril was created through negligence or caused by a strict liability activity, the officer generally still has no claim against the landowner (the defendant). Here, the police officer was called to the house with the expectation that he would be confronting the fight, rendering this the most effective argument in favor of the motion. A is incorrect. If the policeman were an ordinary rescuer, he could recover damages if his injury was a foreseeable result of negligent conduct by the individual he was rescuing. It is the officer's status as a professional emergency worker that creates the bar to recovery. C is incorrect. Generally, the firefighter's rule has been interpreted to mean that the defendant had no duty to the officer either to avoid creating the danger which needed the officer's services, or to protect the officer from any associated harms that the defendant had no knowledge of. If there is no duty, then the issue of proximate cause does not arise. D is incorrect. As explained above, the strongest argument is the firefighter's rule because the police officer was injured due to a peril that he was employed to confront. Arguing that the officer is a licensee would impose a duty of care on the defendant to warn of or make safe certain dangerous conditions on the premises, whereas the firefighter's rule would bar to recovery.

Question 114

An eight-year-old child had a habit of riding his bicycle onto a busy highway. His parents knew about this habit but continued to let the child ride his bicycle. One afternoon, the child rode his bicycle down his driveway onto the busy highway and a driver had to stop her car suddenly to avoid colliding with the bike. Because of the sudden stop, the driver's son, who was sitting on the seat without any restraint, was thrown into the dashboard and injured. Had the driver's son been properly restrained in a baby car seat, as required by a state safety statute of which his mother was aware, he would not have been injured. In an action brought on behalf of the driver's son against the child's parents to recover for the son's injuries, the driver's son will A: not prevail, because parents are not vicariously liable for the negligent acts of their children. B: not prevail, because the driver's son's injury was attributable to his mother's knowing violation of a safety statute. C: prevail, because the child's parents knew that he sometimes rode into the highway, and they took no steps to prevent it. D: prevail, because the child's riding into the highway was negligent and the proximate cause of the driver's son's injuries.

Answer 114

C: prevail, because the child's parents knew that he sometimes rode into the highway, and they took no steps to prevent it. C is correct. Parents have a number of affirmative duties, based on their special relationship to their minor children. This includes the duty to exercise reasonable care in the control of the parent's minor children. Liability is generally limited to actions that were foreseeable by the parent. A is incorrect. A parent who fails to exercise control regarding a known propensity of his child is generally not vicariously liable for the child's tortious behavior; rather, the parent is liable for his or her own negligence in failing to control the child. B is incorrect. The driver's son's damages may be limited because of his lack of proper restraint, but it will not prevent him from prevailing in a claim for negligence if the child's parents were also negligent in their care and control of the child's known propensity to drive his bike into the street. D is incorrect. This answer assumes that the driver's son could recover from the child's parents because of vicarious liability. The child's parents were negligent in failing to control their child, but not vicariously liable for the child's behavior.

Question 115

The grandson and his friend, both eight years old, were visiting at the grandmother's house when, while exploring the premises, they discovered a hunting rifle in an unlocked gun cabinet. They removed it from the cabinet and were examining it when the rifle, while in the grandson's hands, somehow discharged. The bullet struck and injured the friend. The gun cabinet was normally locked. The grandmother had opened it for dusting several days before the boys' visit, and had then forgotten to relock it. She was not aware that it was unlocked when the boys arrived. At the trial on an action against the grandmother on behalf of the friend, the information above has been admitted into evidence. If the grandmother moves for a directed verdict in her favor at the end of the friend's case, that motion should be A: granted, because the grandmother is not legally responsible for the acts of her grandson. B: granted, because the grandmother did not recall that the gun cabinet was unlocked. C: denied, because a firearm is an inherently dangerous instrumentality. D: denied, because a jury could find that the grandmother breached a duty of care she owed to the plaintiff.

Answer 115

D: denied, because a jury could find that the grandmother breached a duty of care she owed to the plaintiff. D is correct. A directed verdict (also called Judgment as a Matter of Law) allows judgment if the evidence, when viewed in the light most favorable to the nonmoving party, is such that a reasonable person/jury could not disagree. A directed verdict is entered at the close of the evidence before the matter goes to a jury. There are two potential claims at issue in this question. The first is whether the grandmother can be held vicariously liable for the grandson's tortious act. The grandmother has a duty to exercise reasonable care in the control of the grandson while he is physically within her care or custody. Liability, however, is generally limited to actions that were a known propensity of the child, and thus, foreseeable by the caretaker. A custodian of a child who fails to exercise control regarding the known propensity of that child is generally not vicariously liable for the child's tortious behavior; rather the caretaker is liable for his or her own negligence in failing to control the child. The facts clearly indicate that the grandson's behavior was not foreseeable to the grandmother. The second issue, however, is whether the grandmother had a duty of reasonable care to the plaintiff to take affirmative measures that would keep her grandson from using the gun. When the grandmother failed to remove the bullets from a stored gun and then forgot to relock the gun case, it was foreseeable that her grandson would find and play with the gun; she thereby failed in her duty to control the grandson's use of a dangerous instrumentality. A is incorrect. This answer arrives at the wrong conclusion. While the grandmother may not generally be liable for her grandson's tortious activities, she is liable for her own negligence. B is incorrect. The negligence occurred when the grandmother failed to remove the bullets from the gun and lock the cabinet, not several days later, when she failed to recall that she did not lock it. C is incorrect. This answer reaches the correct conclusion but is not the best answer. When the grandmother failed to remove the bullets from a stored gun and then forgot to relock the gun case, it was foreseeable that her grandson would find and play with the gun, thus failing in her duty to control the grandson's use of a dangerous instrumentality.

Question 116

A company designed and built a processing plant for the manufacture of an explosive chemical. An engineer was retained by the company to design a filter system for the processing plant. She prepared an application for a permit to build the plant's filter system and submitted it to the state's Department of Environmental Protection (DEP). As required by DEP regulations, the engineer submitted a blueprint to the DEP with the application for permit. The blueprint showed the entire facility and was signed and sealed by her as a licensed professional engineer. After the project was completed, a portion of the processing plant exploded, injuring the plaintiff. During discovery in an action by the plaintiff against the engineer, it was established that the explosion was caused by a design defect that was unrelated to the filter system designed by the engineer. However, the defect was present in the blueprint signed by the engineer. In that action, will the plaintiff prevail? A: Yes, because the engineer signed, sealed, and submitted a blueprint that showed the design defect. B: Yes, because all of the plant's designers are jointly and severably liable for the defect. C: No, because the engineer owed no duty to the plaintiff to prevent the particular risk of harm. D: No, because the engineer was an independent contractor.

Answer 116

C: No, because the engineer owed no duty to the plaintiff to prevent the particular risk of harm. C is correct. While this looks like a products liability question, it is a professional malpractice issue. The company designed and built the processing plant. The engineer was retained solely for the purpose of designing a filter system for the plant. She had a duty to exercise skill in the design of the filter system, commensurate with her professional training and standards. The engineer's use of the company's blueprint for the proper permit did not impute liability onto the engineer for the entire facility, as a permit is nothing more than a license (permission) to proceed with construction, not a guarantee against defect. A is incorrect. While the manufacturer of a defective product is subject to strict liability, strict liability does not apply to the performance of services. The engineer provided a service and will be held to a negligence standard. B is incorrect. The facts indicate that the processing plant was not a joint enterprise. The engineer was not in partnership with the company and was not in a business association with the company for the limited purpose of building the plant. The engineer was hired solely to perform a design service as an independent contractor. The engineer's design was not the cause of the injury, and she cannot be held liable for the company's design. D is incorrect. The plaintiff is suing the engineer directly; the engineer's status as an independent contractor will not provide a defense.

Question 117

A man's car sustained moderate damage in a collision with a car driven by a woman. The accident was caused solely by the woman's negligence. The man's car was still drivable after the accident. Examining the car the next morning, the man could see that a rear fender had to be replaced. He also noticed that gasoline had dripped onto the garage floor. The collision had caused a small leak in the gasoline tank. The man then took the car to a mechanic, who owns and operates a body shop, and arranged with the mechanic to repair the damage. During their discussion the man neglected to mention the gasoline leakage. Thereafter, while the mechanic was loosening some of the damaged material with a hammer, he caused a spark, igniting vapor and gasoline that had leaked from the fuel tank. The mechanic was severely burned. The mechanic has brought an action to recover damages against the man and woman. The jurisdiction has adopted a pure comparative negligence rule in place of the traditional common law rule of contributory negligence. The jury found that while a reasonable person in the man's position would have warned the mechanic about the gasoline leak, the man had no actual knowledge of the risk that the gasoline leak presented. In this action, will the mechanic obtain a judgment against the man? A: No, because it was the mechanic's job to inspect the vehicle and repair whatever needed repair. B: No, because the man was not aware of the risk that the gasoline leak presented. C: Yes, because a reasonable person in the man's position would have warned the mechanic about the gasoline leak. D: Yes, because the car was unreasonably dangerous when the man delivered it to the mechanic.

Answer 117

C: Yes, because a reasonable person in the man's position would have warned the mechanic about the gasoline leak. C is correct. The man's conduct is subject to the objective reasonable person standard. Therefore, the man had a duty to inform the mechanic of the leak, because a reasonably prudent person in the man's position would have given a warning. A is incorrect. Although the statement is true, the mechanic's negligence, while diminishing his damages, will not prevent him from prevailing on his claim. In a pure comparative negligence jurisdiction, the plaintiff is entitled to all of his damages minus the portion that the court attributes to the plaintiff's negligence. B is incorrect. The man's conduct is subject to the objective reasonable person standard. Under that standard, his actual understanding of the risk is irrelevant. D is incorrect. It combines elements of products liability with a landowner's liability for abnormally dangerous activity on his land. The man is a user, not a manufacturer or seller of the car, so he will not be held strictly liable for the leaking gas tank. Likewise, the man was not conducting ultra hazardous activities that would create a nondelegable duty resulting in strict liability. Instead, the mechanic must prove negligent conduct by the man to prevail.

Question 118

A sporting goods shop was burglarized by an escaped inmate from a nearby prison. The inmate stole a rifle and bullets from a locked cabinet. The burglar alarm at the shop did not go off because the shop's owner had negligently forgotten to activate the alarm's motion detector. Shortly thereafter, the inmate used the rifle ammunition stolen from the shop in a shooting spree that caused injury to several people, including the plaintiff. If the plaintiff sues the shop's owner for the injury she suffered, will the plaintiff prevail? A: Yes, because the plaintiff's injury could have been prevented had the motion detector been activated. B: Yes, because the shop's owner was negligent in failing to activate the motion detector. C: No, because the storage and sale of firearms and ammunition is not an abnormally dangerous activity. D: No, because there is no evidence of circumstances suggesting a high risk of theft and criminal use of firearms stocked by the shop's owner.

Answer 118

D: No, because there is no evidence of circumstances suggesting a high risk of theft and criminal use of firearms stocked by the shop's owner. D is correct. The commission of a criminal act often supersedes the liability of the original negligent actor. An exception occurs if the negligent act creates a condition such that a criminal act is the foreseeable consequence of that action. Here, the shop owner didn't forget to lock his door; he just forgot to set the alarm on his gun shop. The negligence of not turning on the alarm does not contribute to the likelihood of the crime happening. In this case, the inmate broke in not knowing if the alarm was on or off. The break-in was a superseding force that would cut off the defendant's liability. It is not foreseeable that the breaking would happen just because there is a prison nearby unless it is a notably high crime area already. A is incorrect. The store owner did not have a duty to prevent the criminal acts of another unless those criminal acts were foreseeable. B is incorrect. The commission of the criminal act will supersede the store owner's liability. C is incorrect. This answer choice does not address the appropriate theory of recovery. This is an issue of negligence, not strict liability.

Question 119

During a comprehensive evaluation of an adult patient’s psychiatric condition, a psychiatrist failed to diagnose the patient’s suicidal state. One day after the misdiagnosis, the patient committed suicide. The patient’s father, immediately after having been told of his son’s suicide, suffered severe emotional distress, which resulted in a stroke. The patient’s father was not present at the patient’s appointment with the psychiatrist, nor did he witness the suicide. The father has brought an action against the psychiatrist to recover for his severe emotional distress and the resulting stroke. Is the father likely to prevail? A: No, because the father did not sustain a physical impact. B: No, because the psychiatrist’s professional duty did not extend to the harms suffered by the patient’s father. C: Yes, because the father was a member of the patient’s immediate family. D: Yes, because the psychiatrist reasonably could have foreseen that a misdiagnosis would result in the patient’s suicide and the resulting emotional distress of the patient’s father.

Answer 119

B: No, because the psychiatrist’s professional duty did not extend to the harms suffered by the patient’s father. B is correct. Courts do not impose a duty on medical professionals to warn third parties when a patient is a danger to himself and not others and will deny liability to family members who suffered emotionally in the event that the patient commits suicide. A is incorrect. The existence of a physical impact is irrelevant here. The father will lose because there was no duty on the psychiatrist as to the father in the first place. There is no need to determine whether the father's stroke was or was not a sufficient physical injury, because, without a duty, there will not be liability. C is incorrect. The father and son's close relationship is also irrelevant here absent a duty owed to the father. Had the father been a bystander bringing a claim of negligent infliction of emotional distress, their relationship would have been relevant. D is incorrect. Even if the psychiatrist could have foreseen potential emotional distress for the father, this alone does not create a duty to warn that the patient was a danger to himself.

Question 120

A bright 12-year-old child attended a day-care center after school. The center was located near a man-made duck pond on the property of a corporation. During the winter, the pond was used for ice-skating when conditions were suitable. At a time when the pond was obviously only partially frozen, the child sneaked away from the center’s property and walked out onto the ice over the pond. The ice gave way, and the child fell into the cold water. He suffered shock and would have drowned had he not been rescued by a passerby. At the time of the incident, the pond was clearly marked with numerous signs that stated, “THIN ICE—KEEP OFF.” When the child sneaked away from the day-care center, the center was staffed with a reasonable number of qualified employees, and the employees were exercising reasonable care to ensure that the children in their charge did not leave the premises. There had not been a previous instance of a child coming onto the corporation’s property from the day-care center. The jurisdiction follows a rule of pure comparative negligence. In a suit brought on the child’s behalf against the day-care center and based only on the facts above, who is likely to prevail? A: The child, because he left the center while he was under the center’s care. B: The child, because the day-care center is located near a pond. C: The day-care center, because it was not negligent. D: The day-care center, because the child was a trespasser.

Answer 120

C: The day-care center, because it was not negligent. C is correct. Here, the call of the question states the suit is between the day-care center and the child. However, the facts state that the pond in question was the property of the corporation. Thus, the attractive nuisance doctrine would not apply under these facts against the day-care center. Thus, there is no evidence of lack of reasonable care by the day-care center and they would likely prevail. A is incorrect. Day-care centers are not strictly or absolutely liable for all injuries that occur to children under their care. The center's negligence must be established. Under the facts as described, there is no evidence of lack of reasonable care, and the day-care center will prevail. B is incorrect. The mere fact that the center is located near a pond is not in itself evidence of negligence. It might mean that reasonable care requires extra-vigilant supervision, but the facts specify that the center staff was in fact exercising reasonable care. Accordingly, the day-care center will prevail. D is incorrect. This answer correctly concludes that the day-care center will prevail, but it misstates the reasoning for that conclusion. The child’s status as a trespasser would only be relevant in litigation against an owner or possessor of land, such as the corporation. Under the facts as described, there is no evidence of lack of reasonable care, and the day-care center should prevail for that reason.

Question 121

As a bartender was removing the restraining wire from a bottle of champagne produced and bottled by Winery, Inc., the plastic stopper suddenly shot out of the bottle. The stopper struck and injured the bartender's eye. The bartender had opened other bottles of champagne, and occasionally the stoppers had shot out with great force, but the bartender had not been injured. The bartender has brought an action against Winery, Inc., alleging that the bottle that caused his injury was defective and unreasonably dangerous because its label did not warn that the stopper might suddenly shoot out during opening. The state has merged contributory negligence and unreasonable assumption of risk into a pure comparative fault system that is applied in strict products liability actions. A jury made the following findings of fact: that the bottle was defective and unreasonably dangerous because it lacked a warning, that a legally sufficient warning would not have prevented the bartender's injury, and that a reasonable bartender would have realized that a stopper could eject from the bottle and hit his eye. Will the bartender recover a judgment in his favor? A: No, because a legally sufficient warning would not have prevented the bartender's injury. B: No, because a reasonable bartender would have realized that a stopper could eject from the bottle and hit his eye. C: Yes, with damages reduced by the percentage of any contributory fault on the bartender's part. D: Yes, with no reduction in damages, because foreseeable lack of caution is the reason for requiring a warning.

Answer 121

A: No, because a legally sufficient warning would not have prevented the bartender's injury. A is correct. This is a products liability action based on strict liability for a design defect, specifically an inadequate warning. In order to establish a prima facie case in products liability based on strict liability, the following elements must be proven: (i) the defendant is a commercial supplier; (ii) the defendant produced or sold a defective product; (iii) the defective product was the actual and proximate cause of the plaintiff's injury; and (iv) the plaintiff suffered damages to person or property. In order to prove a defective product, courts use a factor balancing test known as the feasible alternative approach. One factor is the avoidability of the injury by care in use, including the role of instructions and warnings. In this case, the bartender was aware of the risk and had experienced it before. A legally sufficient warning here would not have prevented the bartender's injury. Because the injury would have occurred even with a legally sufficient warning, the bartender will not recover. B is incorrect. This answer hints at an assumption of risk defense for the winery, but there is no evidence that the bartender’s opening of the bottle was unreasonable in light of the known risk. In this jurisdiction, assumption of the risk has been merged into a comparative fault system. C is incorrect. Ordinary contributory negligence is not a defense in a strict products liability action where the plaintiff merely failed to discover the defect or guard against its existence. Here, the bartender only failed to guard against the possibility that the cork would shoot out after taking off the restraining wire. Furthermore, the bartender will not recover because the lack of an adequate warning was not the cause in fact of his injury. D is incorrect. The bartender will not recover because the lack of an adequate warning was not the cause in fact of his injury.

Question 122

An actress, who played the lead role in a television soap opera, was seriously injured in an automobile accident caused by the defendant's negligent driving. As a consequence of the actress's injury, the television series was canceled, and a supporting actor was laid off. Although the supporting actor looked for other work, he remained unemployed. In an action against the defendant, can the supporting actor recover for his loss of income attributable to the accident? A: Yes, because the defendant's negligence was the cause in fact of the supporting actor's loss. B: Yes, because the supporting actor took reasonable measures to mitigate his loss. C: No, because the defendant had no reason to foresee that by injuring the lead actress he would cause harm to the supporting actor. D: No, because the defendant's liability does not extend to economic loss to the supporting actor that arises solely from physical harm to the lead actress.

Answer 122

D: No, because the defendant's liability does not extend to economic loss to the supporting actor that arises solely from physical harm to the lead actress. D is correct. With the exception of a wrongful death claim allowed by statute, a negligence action for pure economic loss to a plaintiff as the result of an injury suffered by a third party is generally not recoverable. As a matter of public policy, courts will not find liability for purely economic losses in tort law. Typically, that is what contract law is for. Here, because the supporting actor is seeking to recover damages as a result of the television series being canceled and being laid off, these damages constitute economic damages and therefore are not recoverable. Courts, as a policy matter, will refuse to find proximate cause in such cases. A is incorrect. As stated above, this is a negligence action for pure economic loss. Therefore, the supporting actor will not recover. B is incorrect. The supporting actor cannot recover for pure economic loss. C is incorrect. It is likely that this injury is foreseeable. However, courts still choose not to find liability based on policy.

Question 123

A plaintiff, who was 20 years old, purchased a new, high-powered sports car that was marketed with an intended and recognized appeal to youthful drivers. The car was designed with the capability to attain speeds in excess of 100 miles per hour. It was equipped with tires designed and tested only for a maximum safe speed of 85 miles per hour. The owner's manual that came with the car stated that "continuous driving over 90 miles per hour requires highspeed-capability tires," but the manual did not describe the speed capability of the tires sold with the car. The plaintiff took her new car out for a spin on a straight, smooth country road where the posted speed limit was 55 miles per hour. Intending to test the car's power, she drove for a considerable distance at over 100 miles per hour. While she was doing so, the tread separated from the left rear tire, causing the car to leave the road and hit a tree. The plaintiff sustained severe injuries. The plaintiff has brought a strict product liability action in tort against the manufacturer of the car. You should assume that pure comparative fault principles apply to this case. Will the plaintiff prevail? A: No, because the plaintiff's driving at an excessive speed constituted a misuse of the car. B: No, because the car was not defective. C: Yes, because the statement in the manual concerning the tires did not adequately warn of the danger of high-speed driving on the tires mounted on the car. D: No, because the plaintiff's driving at a speed in excess of the posted speed limit was negligence per se that was not excusable.

Answer 123

C: Yes, because the statement in the manual concerning the tires did not adequately warn of the danger of high-speed driving on the tires mounted on the car. C is correct. The car manufacturer created a high-powered sports car and then failed to equip it with high-speed capability tires. This would make the car unreasonably dangerous and strict liability may be applied if, as in this case, the manufacturer failed to give a proper warning as to the type of tires needed for the car to be driven at its higher speeds. The duty to warn will create strict liability despite the plaintiff's prolonged use of the car at a high speed because its use at that high speed was a foreseeable use, given its design and marketing. While the car was not defective, the failure to give proper directions and specific warning was. A is incorrect. Although a commercial supplier can potentially defeat a strict liability claim on the basis that the plaintiff misused the product, the misuse must not be reasonably foreseeable. Here, the plaintiff drove a high-powered sports car at an excessive speed, which was marketed for its highspeed capabilities. Therefore, even if the plaintiff misused the product, they could still recover because that misuse was reasonably foreseeable. B is incorrect. Although the car was not defective, there was still a design defect due to the manufacturer's failure to give proper directions and specific warnings in the owner's manual. Therefore, the plaintiff could recover damages. D is incorrect. Violation of an applicable safety statute would not prevent the plaintiff from prevailing under strict liability because her misuse of the car was foreseeable, given the car's design and marketing.

Question 124

A college student purchased a large bottle of No-Flake dandruff shampoo, manufactured by a shampoo company. The box containing the bottle stated in part: "CAUTION - Use only one capful at most once a day. Greater use may cause severe damage to the scalp." The college student read the writing on the box, removed the bottle, and threw the box away. The college student's roommate asked to use the No-Flake, and college student said, "Be careful not to use too much." The roommate thereafter used No-Flake twice a day, applying two or three capfuls each time, notwithstanding the label statement that read: "Use no more than one capful per day. See box instructions." The more he used No-Flake, the more inflamed his scalp became, the more it itched, and the more he used. After three weeks of such use, the roommate finally consulted a doctor who diagnosed his problem as a serious and irreversible case of dermatitis caused by excessive exposure to the active ingredients in No-Flake. These ingredients are uniquely effective at controlling dandruff, but there is no way to remove a remote risk to a small percentage of persons who may contract dermatitis as the result of applying, for prolonged periods of time, amounts of No-Flake substantially in excess of the directions. This jurisdiction adheres to the traditional common law rules pertaining to contributory negligence and assumption of risk. Based upon the foregoing facts, if the roommate sues the shampoo company to recover damages for his dermatitis, his most promising theory of liability will be that the No-Flake shampoo A: had an unreasonably dangerous manufacturing defect. B: had an unreasonably dangerous design defect. C: was inherently dangerous. D: was inadequately labeled to warn of its dangers.

Answer 124

D: was inadequately labeled to warn of its dangers. D is correct. An inadequate warning can function as a type of design defect claim where the product is in a defective condition or is unreasonably dangerous to the user based on a design or manufacturing defect. A product is unreasonably dangerous when it is dangerous beyond the expectations of the ordinary consumer because of a departure from the intended design. A type of design defect is an inadequate warning which does not provide users with clear and complete warnings of dangers, which may not be apparent. Here, the shampoo did not depart from the intended design. Further, the product was substantially altered by the time it reached the roommate, because the college student had disposed of the packaging. However, although the shampoo directed users to use no more than one capful per day, it did not warn users of the minimal risk of developing dermatitis from frequent overuse. Therefore, the roommate's best argument would be that the shampoo was inadequately labeled to warn of its dangers. A is incorrect. The shampoo was not defective because it was dangerous beyond the expectations of the ordinary consumer. At most, the manufacturer failed to adequately warn of an (unlikely) risk of a non-apparent danger. B is incorrect. Although there may have been a type of design defect in terms of an inadequate warning, the facts do not indicate that the shampoo had an unreasonably dangerous design defect, especially because there is no indication the roommate asserted that a safer alternative design existed. C is incorrect. The shampoo was not inherently dangerous, as it was safe for use as directed and the injury experienced by the roommate was both unlikely and could only be caused through overuse. Further, the roommate could not hold the manufacturer strictly liable, because the college student had substantially altered the product by removing it from the packaging.

Question 125

A plaintiff, who was an asbestos insulation installer from 1955 to 1965, contracted asbestosis, a serious lung disorder, as a result of inhaling airborne asbestos particles on the job. The asbestos was manufactured and sold to the plaintiff's employer by an asbestos company. Because neither the asbestos company nor anyone else discovered the risk to asbestos installers until 1966, the company did not provide any warnings of the risks to installers until after that date. The plaintiff brought an action against the asbestos company based on strict liability in tort for failure to warn. The case is to be tried before a jury. The jurisdiction has not adopted a comparative fault rule in strict liability cases. In this action, an issue that is relevant to the case and is a question for the court to decide as a matter of law, rather than for the jury to decide as a question of fact, is whether A: a satisfactory, safer, alternative insulation material exists under today's technology. B: the defendant should be held to the standard of a prudent manufacturer who knew of the risks, regardless of whether the risks were reasonably discoverable before 1966. C: the defendant should reasonably have known of the risks of asbestos insulation materials before 1966, even though no one else had discovered the risks. D: the asbestos insulation materials to which the plaintiff was exposed were inherently dangerous.

Answer 125

B: the defendant should be held to the standard of a prudent manufacturer who knew of the risks, regardless of whether the risks were reasonably discoverable before 1966 B is correct. Here, the defendant is accused of failing to warn about the dangers of asbestos through a strict liability claim. Before any questions can be submitted to the jury, the judge must decide the legal standard for a "reasonable asbestos company," i.e. whether the asbestos company should be held to the standard of a prudent manufacturer who knew of the risks, regardless of whether the risks were reasonably discoverable before 1966. A is incorrect. Not only would the current existence of safer technology be irrelevant because the case involves asbestos exposure several decades in the past, but the existence of safer alternatives is also a question of fact, not a question of law. C is incorrect. Whether the defendant knew or should have known the risks of asbestos in 1966 is a question of fact for the jury, not a question of law for the judge. D is incorrect. Whether asbestos materials are inherently dangerous is a question of fact, not a question of law.

Question 126

A dentist was anesthetizing a patient’s jaw before pulling a tooth. Although the dentist used due care, the hypodermic needle broke off in the patient’s gum tissue, causing injury. The needle broke because of a manufacturing defect that the dentist could not have detected. Is the patient likely to recover damages in an action against the dentist based on strict products liability and malpractice? A: No, on neither basis. B: Yes, based on malpractice, but not on strict products liability. C: Yes, based on strict products liability, but not on malpractice. D: Yes, on both bases.

Answer 126

A: No, on neither basis. A is correct. The strict products liability suit would fail because the dentist was not in the business of selling the product, and thus he is not a commercial supplier of the needles. Rather, he is a service provider. The malpractice suit would fail because the plaintiff could not establish that the defendant departed from the professional standard of care. B is incorrect. The dentist would not be liable for malpractice, because the dentist exercised due care and did not deviate from the professional standard of care. C is incorrect. The dentist is not in the business of selling needles. He is a service provider. Therefore, he would not be an appropriate defendant in a suit for strict products liability. In fact, the patient cannot recover against the dentist based on either strict products liability or malpractice. D is incorrect. The patient cannot recover on the basis of products liability because the dentist is not in the business of selling needles. He is a service provider. The patient cannot recover on the basis of malpractice because there is no evidence (nor could there be on these facts) that the dentist departed from a professional standard of care. In fact, the patient cannot recover against the dentist on either basis.

Question 127

A company manufactured metal stamping presses that were usually sold with an installed safety device that made it impossible for a press to close on a worker’s hands. The company strongly recommended that its presses be purchased with the safety device installed, but would sell a press without the safety device at a slightly reduced price. Rejecting the company’s advice, a worker’s employer purchased a stamping press without the safety device. The press closed on the worker’s hand, crushing it. If the worker were to sue the company, would the worker be likely to prevail? A: Yes, because the company’s press was the cause in fact of the worker’s injury. B: Yes, because the company sold the press to the worker’s employer without an installed safety device. C: No, because the failure of the worker’s employer to purchase the press with a safety device was a superseding cause of the worker’s injury. D: No, because the company strongly recommended that the worker’s employer purchase the press with the safety device.

Answer 127

B: Yes, because the company sold the press to the worker’s employer without an installed safety device. B is correct. Here, there was a feasible safety device that would have prevented the worker's injury. The model without the safety device was sold at a slightly reduced price, indicating that it was feasible to include the safety device for a small price. A is incorrect. The fact that a product manufactured by the company caused harm to the worker is not sufficient to establish liability. The worker must also prove that the press was either negligently made or defective in order to recover from the company. C is incorrect. The possibility that an employer would purchase the press without a safety device in order to save money is foreseeable. Offering the safety device as an alternative is not adequate. In fact, it indicates that the company had reason to foresee that if the press is used without a safety device, it poses a significant risk to those who operated it. D is incorrect. Where it is feasible to install a safety device, a manufacturer does not fulfill its obligation to make a safe product by warning the purchaser that the product is unsafe.

Question 128

A homeowner was using a six-foot stepladder to clean the furnace in his home. The homeowner broke his arm when he slipped and fell from the ladder. The furnace had no warnings or instructions on how it was to be cleaned. In a suit by the homeowner against the manufacturer of the furnace to recover for his injury, is the homeowner likely to prevail? A: No, because the danger of falling from a ladder is obvious. B: No, because the homeowner should have hired a professional to clean the furnace. C: Yes, because the furnace did not have a ladder attached to it for cleaning purposes. D: Yes, because the lack of warnings or instructions for how to clean the furnace made the furnace defective.

Answer 128

A: No, because the danger of falling from a ladder is obvious. A is correct. A manufacturer has no obligation to warn against obvious dangers. There appears to be nothing unique to the furnace that would add to the ordinary dangers of working on a ladder. B is incorrect. Furnaces should be built for ordinary use, including routine maintenance by homeowners. In addition, there is no indication that a professional would be more adept than the homeowner in maintaining his balance on the ladder; maintaining one's balance on a six-foot stepladder is not a professional technical skill. The homeowner will likely not prevail, but the reason is that the manufacturer had no duty to warn of the obvious risks of working on a ladder. C is incorrect. Because a ladder is an easily available household product that can be used for a variety of tasks, there is no reason to expect a furnace manufacturer to include a ladder with the furnace. Furthermore, there is no indication that the homeowner's fall was due to anything special about the ladder he used; he could just as easily have fallen from a ladder provided by the furnace manufacturer. The homeowner will likely not prevail, because the manufacturer had no duty to warn of the obvious risks of working on a ladder. D is incorrect. A manufacturer is not obliged to include warnings about obvious or patent dangers; nor is a manufacturer obliged to include instructions about how to conduct ordinary activities such as working on a ladder. There is no indication that anything said by the manufacturer would have reduced the obvious risk that materialized here because the homeowner was working on a ladder.

Question 129

A homeowner was injured when an automatic cutoff switch failed to function on a snowblower he was using. The cutoff switch had functioned well for a year after he purchased the snowblower but failed after the machine had been improperly repaired by a mechanic. The snowblower’s operating manual contained a clear and prominent warning against making the very alteration to the switch mechanism that was made by the mechanic. The mechanic, however, did not have a manual available when he repaired the snowblower. Does the homeowner have a viable claim against the manufacturer of the snowblower for damages? A: No, because the homeowner was contributorily negligent in failing to furnish the snowblower’s manual to the mechanic. B: No, because the injury resulted from a substantial alteration of the snowblower by a third party. C: Yes, because a defect in the snowblower caused the homeowner’s injury. D: Yes, because the manufacturer should have made the manual available to repair personnel.

Answer 129

B: No, because the injury resulted from a substantial alteration of the snowblower by a third party. B is correct. To find liability under a products liability theory, the plaintiff must show that the product was defective when the product left the defendant's control and the facts indicate that the cutoff switch had functioned well for a year after it was purchased. Further, the mechanic made the alteration that was clearly warned against in the operating manual. An intervening cause is an event that occurs after the initial act and causes injury, cutting off a tortfeasor's liability. Here, the mechanic's act can be said to be an intervening cause and the manufacturer will not be liable. A is incorrect. Contributory negligence arises when the plaintiff fails to act prudently and is considered to be a contributory factor in the injury suffered. Here, the plaintiff did not have a duty to furnish the snowblower's manual to the mechanic and will not be held liable. C is incorrect. The defect in the snowblower did not cause the homeowner's injury, the mechanic's improper repair did. There are two different types of defects: manufacturing or design. For a manufacturing defect, the plaintiff will prevail if the product was dangerous beyond the expectation of the ordinary consumer. A design defect occurs when all the products of a line are made identically according to manufacturing specifications but have dangerous propensities because of their mechanical features or packaging. Neither defect is present here. D is incorrect. It is not the responsibility of the manufacturer to make the manual available to repair personnel. The manufacturer provided an operating manual when the snowblower was sold and that is sufficient.

Question 130

A man was driving his new car along a dark road with the car’s high-beam headlights on to illuminate the road. When he saw the headlights of another car appear in the distance, he reached to turn the high beams off. Instead of turning from high-beam to low-beam, the headlights on the car turned off completely. The man tried repeatedly to turn the lights on again but could not do so. He collided with the other car and suffered injuries. The man has brought an action against the manufacturer of the headlight controls in his car, the manufacturer of his car, and the retailer who sold him the car. If the man can establish that a defect in the controls caused the accident, from whom can he recover? A: Only the manufacturer of the car and the retailer of the car. B: Only the manufacturer of the car. C: Only the manufacturer of the headlight controls and the manufacturer of the car. D: All three defendants.

Answer 130

D: All three defendants. D is the correct answer. Because the plaintiff can establish that there was a defective product, all three defendants will be liable in a products liability lawsuit under strict liability. Under joint and several liability, each defendant is held to be jointly and severally liable for the entire damages caused to the plaintiff. Joint and several liability applies even if the defendants acted independently. Therefore, in this case, each defendant is liable under strict liability, and the man can recover from any of them. A is incorrect. While the manufacturer of the car and the retailer are both liable, the manufacturer of the headlight controls is also liable under strict products liability. B is incorrect. For the reasons explained above, while the manufacturer of the car is liable, so are the manufacturer of the headlight controls and the retailer. C is incorrect. Again, all three defendants are liable pursuant to strict products liability.

Question 131

A defendant's dog ran into the street in front of the defendant's home and began chasing cars. The plaintiff, who was driving a car on the street, swerved to avoid hitting the dog, struck a telephone pole, and was injured. Assume that the defendant knew his dog would often chase cars but refused to restrain it. If the plaintiff asserts a claim against the defendant, will the plaintiff prevail? A: Yes, because the defendant's dog was a cause in fact of the plaintiff's injury. B: Yes, because the defendant knew his dog had a propensity to chase cars and did not restrain it. C: No, because a dog is a domestic animal. D: No, because there is no statute or ordinance making it unlawful for the owner to allow a dog to be unleashed on a public street.

Answer 131

B: Yes, because the defendant knew his dog had a propensity to chase cars and did not restrain it. B is correct. The owner of an animal can be held responsible for the damage caused when that animal escapes its owner's property. Because the dog is a domestic animal, the damage caused by the defendant's dog will generally create liability for compensation only if the defendant knew of his dog's "mischievous propensity." (Note: Some states, however, have imposed strict liability statutes for damage caused by wandering/trespassing dogs). A is incorrect. The plaintiff will prevail, but not because the dog was the cause in fact of the plaintiff's injury. As stated above, the owner of an animal can be held responsible for the damage caused when that animal escapes its owner's property. C is incorrect. While owners of wild animals are held in strict liability for the animal's damages, owners of domestic animals can also be held strictly liable, if the animal's "mischievous" propensity is known. D is incorrect. The defendant's dog is a trespasser, with or without an applicable leash law, once it leaves its master's property.

Question 132

While walking on a public sidewalk, a pedestrian was struck by a piece of lumber that fell from the roof of a homeowner's house. The homeowner had hired a repairman to make repairs to his roof, and the lumber fell through due to negligence on the repairman's part. Assume that the homeowner exercised reasonable care in hiring the repairman, that the repairman was an independent contractor, and that public policy made a homeowner's duty to keep the sidewalk safe for pedestrian a nondelegable duty. If the pedestrian brings an action against the homeowner to recover damages for the injury caused to him by the repairman's negligence, will the pedestrian prevail? A: Yes, under the res ipsa loquitur doctrine. B: Yes, because the repairman's act was a breach of a nondelegable duty owed by the homeowner to the pedestrian. C: No, because the repairman was an independent contractor rather than the homeowner's servant. D: No, because the homeowner exercised reasonable care in hiring the repairman to do the repair.

Answer 132

B: Yes, because the repairman's act was a breach of a nondelegable duty owed by the homeowner to the pedestrian. B is correct. In general, an independent contractor is liable for his own torts. However, an exception exists where the contractor is carrying out an inherently dangerous activity or where there is a public policy consideration that makes the duty nondelegable. The facts indicate that the duty to make the sidewalk safe for pedestrians was a nondelegable duty. A is incorrect. Res ipsa loquitur does not apply here, where the defendant/homeowner is NOT negligent, and the repairman is. However, the homeowner will remain liable for damages caused by the repairman's breach of a nondelegable duty to keep the sidewalk safe. C is incorrect. The general rule absolving employers of the negligent conduct of their independent contractors does not apply here, where the homeowner had a non-delegable duty to keep the sidewalk safe to the public. D is incorrect. Although the homeowner exercised reasonable care in hiring the repairman, he still had a nondelegable duty to keep the sidewalk safe, including from the repairman's negligent actions.

Question 133

A chemical company manufactured a liquid chemical product known as XRX. Some XRX leaked from a storage tank on the chemical company's property, seeped into the groundwater, flowed to a farmer's adjacent property, and polluted the farmer's well. Several of the farmer's cows drank the polluted well water and died. If the farmer brings an action against the chemical company to recover the value of the cows that died, the farmer will A: prevail, because a manufacturer is strictly liable for harm caused by its products. B: prevail, because the XRX escaped from the chemical company's premises. C: not prevail, because the farmer is not a foreseeable plaintiff. D: not prevail, because the chemical company was not engaged in an abnormally dangerous activity.

Answer 133

B: prevail, because the XRX escaped from the chemical company's premises. B is correct. These facts are enough to sustain a strict liability claim, including an absolute duty to make safe the abnormally dangerous activity of storing the toxic chemical, causation in that the chemical that killed the cows leaked from the company's premises, and damage in the form dead cows, a lost property interest. A is incorrect. This statement of law is far too broad. A company will only be strictly liable for harm caused by its products if certain conditions exist, namely, an evidentiary showing that the product itself was unreasonably dangerous and defective. The farmer will prevail under strict liability theory, but because of the company's engagement in an abnormally dangerous activity, not due to products liability. C is incorrect. The farmer IS a foreseeable plaintiff because his property abuts the company's, so the mishandling of toxic chemicals would be reasonably likely to affect the farmer's property interests. D is incorrect. The storage of XRX was an abnormally dangerous activity because, even with reasonable care, there is a foreseeable risk of harm, and storage of this chemical is not a matter of common usage in the community given that it is surrounded by farmland.

Question 134

A builder purchased a large tract of land intending to construct residential housing on it. The builder hired a contractor to build a large in-ground swimming pool on the tract. The contract provided that the contractor would carry out blasting operations that were necessary to create an excavation large enough for the pool. The blasting caused cracks to form in the walls of the plaintiff's home in a nearby residential neighborhood. In the plaintiff's action for damages against the builder, the plaintiff should A: prevail, only if the builder retained the right to direct and control the contractor's construction of the pool. B: prevail, because the blasting that the contractor was hired to perform damaged the plaintiff's home. C: not prevail, if the contractor used reasonable care in conducting the blasting operations. D: not prevail, if the builder used reasonable care to hire a competent contractor.

Answer 134

B: prevail, because the blasting that the contractor was hired to perform damaged the plaintiff's home. B is correct. The general rule of an employer's non-liability for torts of his independent contractor does not apply to abnormally dangerous work, which is considered non-delegable and triggers strict liability. As such, the builder will be liable for the damage caused by the contractor's blasting. A is incorrect. This answer is referencing the distinction between an employee and an independent contractor for purposes of vicarious liability. This analysis does not apply here, where the abnormally dangerous work renders the builder vicariously strictly liable, regardless of the degree of control he exercised over the work or the classification of the worker as an employee or independent contractor. C is incorrect. When strict liability applies, negligence is irrelevant. The nature of the builder's liability is that the blasting activity is so dangerous that even reasonable care will not ameliorate all risk of harm, and his duty to make safe is non-delegable, even if he did not perform the work himself. D is incorrect. As stated above, when strict liability applies, the issues of intent or negligence (i.e., reasonableness) no longer apply.

Question 135

A driver was driving his car near a homeowner's house when the homeowner's child darted into the street in front of the driver's car. As the driver swerved and braked his car to avoid hitting the child, the car skidded up into the homeowner's driveway and stopped just short of the homeowner, who was standing in the driveway and had witnessed the entire incident. The homeowner suffered from serious emotional distress from witnessing the danger to his child and to himself. Neither the homeowner nor his property was physically harmed. If the homeowner asserts a claim for damages against the driver but is unable to establish that the driver was negligent, will the homeowner still be able to prevail? A: Yes, because the driver's entry onto the homeowner's land was unauthorized. B: Yes, because the homeowner suffered serious emotional distress by witnessing the danger to his child and to himself. C: No, because the homeowner failed to show that the driver was negligent. D: No, because the homeowner's child was not exercising reasonable care.

Answer 135

C: No, because the homeowner failed to show that the driver was negligent. C is correct. A claim for damages based solely on emotional distress requires at least negligence by the defendant in order to prevail. Here, absent any evidence that the driver acted negligently, the subsequent events causing the homeowner's emotional suffering will not give rise to a successful claim. A is incorrect. This will not be a basis for recovery because the driver's unauthorized entry was privileged under private necessity, to avoid hitting the child. B is incorrect. As explained above, in a claim for negligent infliction of emotional distress, without a showing of negligence, the homeowner will not prevail. D is incorrect. The only way the child's behavior would be relevant is after a finding of the driver's negligence, followed by a finding that the homeowner was comparatively negligent in failing to exercise control over the child, which could reduce damages. However, the claim itself would not reach this phase absent any showing of the driver's negligence.

Question 136

A consumer became physically ill after drinking part of a bottle of soda that contained a large decomposed snail. The consumer sued the store from which she had bought the soda to recover damages for her injuries. The parties agreed that the snail had been put into the bottle during the bottling process, over which the store had no control. The parties also agreed that the snail would have been visible in the bottle before the consumer opened it. Will the consumer be likely to prevail in an action against the store? A: No, because the consumer could have seen the snail in the bottle before she drank out of it. B: No, because the store was not responsible for the bottling process. C: Yes, because the consumer was injured by a defective product sold to her by the store. D: Yes, because the store had exclusive control over the bottle before selling it to the consumer.

Answer 136

C: Yes, because the consumer was injured by a defective product sold to her by the store. C is correct. The seller of a product with a manufacturing defect that makes the product dangerous to the health of a consumer is strictly liable for the injuries caused by the defect. A is incorrect. The seller of a product with a manufacturing defect that is dangerous to the health of a consumer is strictly liable for the injuries caused by the defect. A defense claim that the consumer should have looked more closely at the bottle would not make a difference, because contributory negligence is no defense to a strict products liability action. B is incorrect. The fact that the store was not responsible for the bottling process would be relevant to a negligence action, but it is irrelevant with regard to strict liability. Because the store sold the bottle to the consumer in a defective condition, the store can be held strictly liable even though it did not bottle the soda. D is incorrect. This answer reaches the correct conclusion with the wrong reasoning. Exclusive control is relevant for res ipsa loquitur, not strict liability. Strict liability is based on the sale of the defective product as part of the marketing chain.

Question 137

A farmer owns a small farm with several head of cattle which are kept in a fenced grazing area. One day the cattle were frightened by a thunderstorm, an occasional occurrence in the area. The cattle broke through the fence, entered onto the neighbor's property, and severely damaged the neighbor's crops. Because the farmer's cattle had panicked during past thunderstorms, the farmer had been diligent in maintaining the fence. Under the law of the state, landowners are not required to erect fences to prevent the intrusion of livestock. If the neighbor sues the farmer to recover for the damage done to his crops, will the neighbor prevail? A: Yes, because the farmer's cattle caused the damage to the neighbor's crops. B: Yes, because the farmer's cattle had panicked during previous thunderstorms. C: No, because the fence was not negligently maintained by the farmer. D: No, because the thunderstorm was a force of nature.

Answer 137

A: Yes, because the farmer's cattle caused the damage to the neighbor's crops. C: No, because the fence was not negligently maintained by the farmer. A and C are both correct. Both answer choices were given credit by the Examiners. The difference in answers reflects the different ways trespassing cattle have been treated in jurisdictions across the United States. Many courts today allow a plaintiff to assert her claim under either a negligence theory or a strict liability theory, or both. Some states required landowners bordering cattle grazing lands to erect fences by passing "fence-out" statutes; as a result, those states would only hold the cattle owner liable for intentionally driving his cattle onto the land of another, but not for strict liability or negligence. Choice C addresses the fact pattern statement that the neighbor was not required to erect a fence to prevent intrusions by cattle, leading to the inference that the farmer was required to do so. Other states required cattle owners to protect crop-growers from cattle trespass, giving rise to strict liability. Choice A reflects the common law response to a livestock trespass. B is incorrect. Despite the fact that the Restatement (Second) classifies cattle as domestic animals, thus making the farmer liable only for an intentional tort or ordinary negligence, strict liability would still be imposed upon the farmer for a foreseeable harm resulting from a known (by the farmer), abnormally dangerous propensity by his cattle. The propensity would have to be beyond what is considered normal behavior for cattle in general. This standard is irrelevant under the facts of this question, which does not indicate that the behavior of the cattle was abnormal and thus a dangerous propensity. D is incorrect. The thunderstorm was not a superseding "Act of God" that will cut short the farmer's liability for the actual damages caused by his cattle. The facts indicate that storms were an "occasional occurrence." The storms were not unforeseeable. The determinative issue is whether the farmer's fence was constructed to adequately confine his cattle, despite their agitation. If not, the farmer would be liable under a claim for negligence. In a claim for strict liability, the neighbor would prevail in an action for his actual crop damages.

Question 138

A homeowner owned a large poisonous snake which had been defanged and was kept in a cage. A storm damaged the homeowner’s house and the snake’s cage, allowing the snake to escape. During the cleanup after the storm, a volunteer worker came across the snake. The worker tried to run away from the snake and fell, breaking his arm. In a suit by the worker against the homeowner based on strict liability in tort to recover for his injury, will the worker prevail? A: No, because the snake’s escape was caused by a force of nature. B: No, because the worker should have anticipated an injury during his volunteer work. C: Yes, because the homeowner did not take adequate precautions to secure the snake. D: Yes, because the worker’s injury was the result of his fear of the escaped snake.

Answer 138

D: Yes, because the worker’s injury was the result of his fear of the escaped snake. D is correct. Strict liability applies to the homeowner because it was reasonably foreseeable that a person (i.e., the worker) who encountered his large, poisonous snake, with no reason to believe it had been de-fanged, would try to escape and potentially suffer an injury. A is incorrect. Owners of dangerous animals are strictly liable even when the harm would not have occurred but for the operation of a force of nature. B is incorrect. This defense will not apply because the worker had no reason to believe he would encounter a poisonous snake in the home, so his assumption of risk could not have been knowing or voluntary. C is incorrect. The reason the worker will prevail is because the homeowner kept an abnormally dangerous animal and the worker's injury was reasonably foreseeable, but not because of the inadequacy of the precautions. In strict liability, the reasonableness of one's precautions is irrelevant.

Question 139

The owner of a shopping mall hired a construction company to design and construct a new entryway to the mall. The construction company negligently selected an unusually slippery material for the floor covering. A week after the entryway was completed, a customer who had come to the mall to buy cosmetics slipped on the floor of the entryway, sustaining injuries. The customer sued the mall owner for the construction company’s negligent design of the mall’s entryway. Will the injured customer be likely to recover damages? A: No, because the construction company will likely be considered an independent contractor. B: No, because no other customers had previously slipped on the floor. C: Yes, because the customer intended to make a purchase at the mall. D: Yes, because the mall’s duty to maintain safe conditions was nondelegable.

Answer 139

D: Yes, because the mall’s duty to maintain safe conditions was nondelegable. D is correct. Although employers are not usually liable for the negligence of independent contractors, there are limits on the ability of employers to circumvent liability in this way. Work in public places often gives rise to a nondelegable duty on the part of the landowner. Here, the mall's duty to maintain safe conditions is nondelegable, so the mall--not the independent contractors--will be liable for the customer's injuries. A is incorrect. There are limits on the ability of employers to circumvent respondeat superior liability through the use of independent contractors. Work done in a public place held open to the public by a landowner often gives rise to a nondelegable duty on the part of the landowner. B is incorrect. Proof that prior accidents have occurred is neither necessary nor sufficient to establish negligence or the existence of a nondelegable duty. C is incorrect. The status of the injured plaintiff is irrelevant to whether the duty is nondelegable. Also, when a business is open to the public generally, members of the public are typically treated as invitees whether or not they intend to make a purchase on any particular visit.

Question 140

A manufacturing plant located near a busy highway uses and stores highly volatile explosives. The owner of the plant has imposed strict safety measures to prevent an explosion at the plant. During an unusually heavy windstorm, a large tile was blown off the roof of the plant and crashed into a passing car, damaging the hood and the windshield. The driver of the car brought a strict liability action against the owner of the plant to recover for the damage to the car. Is the driver likely to prevail? A: No, because the damage to the car did not result from the abnormally dangerous aspect of the plant’s activity. B: No, because the severity of the windstorm was unusual. C: Yes, because the plant’s activity was abnormally dangerous. D: Yes, because the plant’s location near a busy highway was abnormally dangerous.

Answer 140

A: No, because the damage to the car did not result from the abnormally dangerous aspect of the plant’s activity. A is correct. Although the manufacture of explosives may be an abnormally dangerous activity, strict liability for injuries caused by such activities is limited to the kind of harm that makes the activity abnormally dangerous. This accident could have occurred when a roof tile fell from a building that housed a perfectly safe and ordinary activity. B is incorrect. This is the correct conclusion, but it misstates the legal basis for that conclusion. The fact that the windstorm was unusually severe may be relevant to a negligence claim, where the case would turn on whether the owner took reasonable precautions to prevent the accident, but it is not relevant to a claim of strict liability. The strict liability claim fails because the risk that materialized was not of the sort that makes the activity abnormally dangerous. C is incorrect. Although the plant's activity was abnormally dangerous, strict liability is limited to the kind of harm that makes the activity abnormally dangerous. Here, the falling of roof tiles is unrelated to the plant's abnormally dangerous activity. D is incorrect. As explained above, strict liability is not applicable because the harm that occurred was not related to the dangerous nature of the plant's activity.

Question 141

A hotel employed a carefully selected independent contractor to rebuild its swimming pool. The hotel continued to operate while the pool was being rebuilt. The contract between the hotel and the contractor required the contractor to indemnify the hotel for any liability arising from the contractor’s negligent acts. A guest of the hotel fell into the excavation, which the contractor had negligently left unguarded. In an action by the guest against the hotel to recover for his injuries, what would be the most likely outcome? A: Liability, because the hotel had a nondelegable duty to the guest to keep a safe premises. B: Liability, because the contract between the hotel and the contractor required the contractor to indemnify the hotel for any liability arising from the contractor’s negligent acts. C: No liability, because the contractor was the actively negligent party. D: No liability, because the hotel exercised reasonable care in employing the contractor.

Answer 141

A: Liability, because the hotel had a nondelegable duty to the guest to keep a safe premises. A is correct. Ordinarily, someone who hires an independent contractor would not be vicariously liable for the contractor's negligence. However, a landowner who holds his land open to the public has a nondelegable duty to keep the premises safe for business visitors. Such a landowner is liable for any negligence that causes a guest to be injured by unsafe conditions on the premises, even the negligence of an independent contractor. B is incorrect. While it is true that the hotel would most likely be liable, the contract between the hotel and the contractor is irrelevant to the hotel's potential liability to the guest. Should the guest successfully sue the hotel, the contract would allow the hotel to bring an action for indemnification against the contractor, but the contract does not affect the hotel's liability to its guests. The hotel's liability, as stated above, would arise from its nondelegable duty to the guest to keep a safe premises. C is incorrect. Because the hotel had a nondelegable duty to keep the premises safe for business visitors, the court will hold the hotel liable for the contractor's negligence, whether that negligence was active or passive. Distinctions based on active, as opposed to passive, negligence are outmoded, and, even if they applied, they address the apportionment of damages between defendants, not the responsibility of a defendant to a plaintiff. D is incorrect. If the hotel had not exercised reasonable care in selecting a contractor, that would be an alternative basis for imposing liability on the hotel. However, even when a hotel has carefully selected an independent contractor, it still has a nondelegable duty to keep the premises safe for business visitors such as hotel guests and will be held vicariously liable for the contractor's negligence.

Question 142

A surgeon performed a sterilization operation on a patient. After the surgery, the surgeon performed a test that showed that the patient's fallopian tubes were not severed, as was necessary for sterilization. The surgeon did not reveal the failure of the operation to the patient, who three years later became pregnant and delivered a baby afflicted with a severe birth defect that will require substantial medical care throughout its life. The birth defect resulted from a genetic defect unknown to, and undiscoverable by, the surgeon. The patient brought an action on her own behalf against the surgeon, seeking to recover the cost of her medical care for the delivery of the baby, and the baby's extraordinary future medical expenses for which the patient will be responsible. Which of the following questions is relevant to the lawsuit and currently most difficult to answer? A: Did the surgeon owe a duty of care to the baby with respect to medical services rendered to the patient three years before the baby was conceived? B: Can a person recover damages for a life burdened by a severe birth defect based on a physician's wrongful failure to prevent that person's birth from occurring? C: Did the surgeon owe a duty to the patient to inform her that the sterilization operation had failed? D: Is the patient entitled to recover damages for the baby's extraordinary future medical expenses?

Answer 142

D: Is the patient entitled to recover damages for the baby's extraordinary future medical expenses? D is correct. The facts state that the patient wanted to be sterilized but did not give a reason. In addition, the birth defect was "unknown and undiscoverable by the surgeon." This is a wrongful pregnancy case. The call of the question asks for the relevant issue that is currently the most difficult to answer. This is an issue which is not yet settled in case law. Currently in some courts, if the reason for preventing the pregnancy (via sterilization) was not due to the risk of genetic defects, the surgeon may not be regarded as the legal (proximate) cause of any damages resulting from baby's genetic problems (although other harms may still carry liability). Those courts have required that the surgeon at least be on notice that genetic defects are possible before the extraordinary medical/child-rearing expenses are recoverable. A is incorrect. The suit is by the patient (who must be owed a duty of care), not the baby, this answer choice is easily discarded. B is incorrect. This answer can be eliminated because it is the wrong suit. A wrongful birth is asserted by the mother when, but for the defendant's negligence in testing or counseling, the mother would have terminated a pregnancy to avoid the birth of a child with serious genetic defects. C is incorrect. This answer can be eliminated as well because it is a clear and settled area of law; the surgeon had a duty to inform the patient that her surgery had failed once the surgeon possessed that knowledge.

Question 143

A firstborn child was examined as an infant by a doctor who was a specialist in the diagnosis of speech and hearing impairments. Although the doctor should have concluded that the infant was totally deaf due to a hereditary condition, the doctor negligently concluded that the infant's hearing was normal. After the diagnosis, but before they learned that the infant was in fact deaf, the parents conceived a second child who also suffered total deafness due to the hereditary condition. The parents claim that they would not have conceived the second child had they known of the high probability of the hereditary condition. They have sought the advice of their attorney regarding which negligence action against the doctor is most likely to succeed. What sort of action against the doctor should the attorney recommend? A: A medical malpractice action seeking damages on the second child's behalf for expenses related to his deafness, on the ground that the doctor's negligence caused him to be born deaf. B: A wrongful birth action by the parents for expenses they have incurred due to the second child's deafness, on the ground that but for the doctor's negligence, they would not have conceived the second child. C: A wrongful life action by the parents for expenses for the entire period of the second child's life, on the ground that but for the doctor's negligence, the second child would not have been born. D: A wrongful life action on the second child's behalf for expenses for the entire period of his life, on the ground that but for the doctor's negligence, he would not have been born.

Answer 143

B: A wrongful birth action by the parents for expenses they have incurred due to the second child's deafness, on the ground that but for the doctor's negligence, they would not have conceived the second child. B is correct. This type of "wrongful birth" action is permitted in many states, where parents may recover economic damages for the negligent failure to diagnose a hereditary or congenital condition and, had they known about it, they would not have proceeded with a pregnancy. A is incorrect. A medical malpractice suit is typically based on the injury suffered by a patient due to the doctor's negligence. However, the parents here would be claiming that the second child's "injury" was the fact that he was born deaf, and courts would be unlikely to find this outcome injurious compared to the "better" non-injurious outcome of not having been born at all. C is incorrect. A "wrongful life" action is not brought by parents, but by the child who would not have been born. An action by the parents based on advice that would have avoided a conception of a child would be a wrongful birth action. Also, most courts would not permit recovery for all the expenses for the second child's life even in a proper action, only expenses attributable to the child's disability. D is incorrect. This claim is rarely successful, as very few states accept it. And those states that do accept it will only award special damages related to additional costs from the disability, not for expenses throughout the period of the child's life.

Question 144

A plaintiff's three-year-old daughter was killed in an automobile accident. At the plaintiff's direction, the child's body was taken to a mausoleum for interment. Normally, the mausoleum's vaults are permanently sealed with marble plates secured by "tamper-proof" screws. After the child's body was placed in a mausoleum, however, only a fiberglass panel secured by caulking compound covered her vault. About a month later, the child's body was discovered in a cemetery located near the mausoleum. It had apparently been left there by vandals who had taken it from the mausoleum. As a result of this experience, the plaintiff suffered great emotional distress. If the plaintiff sues the mausoleum for the damages arising from her emotional distress, will she prevail? A: No, because the plaintiff experienced no threat to her own safety. B: No, because the mausoleum's behavior was not extreme and outrageous. C: Yes, because the mausoleum failed to use reasonable care to safeguard the body. D: No, because the plaintiff suffered no physical harm as a consequence of her emotional distress.

Answer 144

C: Yes, because the mausoleum failed to use reasonable care to safeguard the body. C is correct. The mausoleum did not intentionally act in an extreme and outrageous way, so this is a negligent infliction of emotional distress issue. The mausoleum was negligent in its failure to adhere to its own standard in securing the child's body, and it was foreseeable that its failure to do so would cause emotional harm to the child's mother when the body of her three-year-old daughter was mishandled. The mausoleum breached its duty of care regarding the child's body and the majority of courts allow standalone emotional harm to be recoverable where there has been a mishandling of a dead body of a relative resulting in severe emotional distress. A is incorrect. The mausoleum directly created a foreseeable risk of harm by directly causing severe emotional distress through its failure to properly secure the vault. B is incorrect. Extreme and outrageous behavior is an element of an intentional infliction of emotional distress claim, and the mausoleum did not intentionally act in an extreme and outrageous manner. D is incorrect. No physical harm is required when the negligent infliction of emotional distress action arises from the mishandling of a relative's corpse.

Question 145

While a woman was in her kitchen, she heard the screech of automobile tires. She ran to the window and saw a tricycle flying through the air. The tricycle had been hit by a car driven by a young man, who had been speeding. She also saw a child's body in the grass adjacent to the street. As a result of her shock from this experience, the woman suffered a heart attack. In a claim by the woman against the young man, the woman's right to recovery will depend on whether A: a person can recover damages based on the defendant's breach of a duty owed to another. B: it is foreseeable that a person may suffer physical harm caused solely by an injury inflicted on another. C: a person can recover damages caused by shock unaccompanied by bodily impact. D: a person can recover damages for harm resulting from shock caused solely by another's peril or injury

Answer 145

D: a person can recover damages for harm resulting from shock caused solely by another's peril or injury. D is correct. This question presents an issue of negligent infliction of emotional distress. That claim is based on either being in the zone of danger created by the negligent defendant or witnessing a third party, the victim, be harmed. The woman was not in the zone of danger because she was inside. Therefore, her right to recovery will depend on the remaining basis of negligent infliction of emotional distress: whether she can recover emotional distress damages caused solely by another's peril or injury. A is incorrect. It does not address the relevant requirements of a negligent infliction of emotional distress cause of action. B is incorrect. Foreseeability of physical harm is not a relevant requirement to negligent infliction of emotional distress. C is incorrect. In this case, the operative question is not whether the plaintiff was actually injured, because she suffered a heart attack. The question is if she can recover for the heart attack because of negligent infliction of emotional distress by the defendant.

Question 146

A man's father died in a hospital. The hospital maintains a morgue with refrigerated drawers a bit larger than the human body. The decedent's body was placed in such a drawer awaiting pickup by a mortician. Before the mortician called for the body, a hospital orderly placed two opaque plastic bags in the drawer with the decedent's body. One bag contained the decedent's personal effects, and the other contained an amputated leg from some other hospital patient. It is stipulated that the hospital was negligent to allow the amputated leg to get into the decedent's drawer. The mortician delivered the two opaque plastic bags to the man, assuming both contained personal effects. The man was shocked when he opened the bag containing the amputated leg. The man sued the hospital to recover for emotional distress. At the trial, the man testified that the experience had been extremely upsetting, that he had had recurring nightmares about it, and that his family and business relationships had been adversely affected for a period of several months. He did not seek medical or psychiatric treatment for his emotional distress. Who should prevail? A: The man, because of the sensitivity people have regarding the care of the bodies of deceased relatives. B: The man, because hospitals are strictly liable for mishandling dead bodies. C: the hospital, because the man did not require medical or psychiatric treatment. D: the hospital, because the man suffered no bodily harm.

Answer 146

A: The man, because of the sensitivity people have regarding the care of the bodies of deceased relatives. A is correct. The man's emotional suffering was the result of the negligent mishandling of his dead father's body, which constitutes a special scenario allowing for recovery damages due to heightened sensitivity of the surrounding circumstances. B is incorrect. The hospital’s liability is based on negligence, not strict liability. C is incorrect. A claim for intentional infliction of emotional distress requires a showing that the plaintiff sought treatment for his suffering. However, this case involves a special scenario of negligent infliction of emotional distress, which requires no such showing because of the sensitive nature of the circumstances. D is incorrect. The lack of bodily harm to the man is not dispositive here, where a special circumstance allows for recovery based on emotional suffering alone, as previously explained.

Question 147

An employer retained a doctor to evaluate medical records of prospective employees. The doctor informed the employer that an applicant, a prospective employee, suffered from AIDS. The employer informed the applicant of this and declined to hire her. The applicant was shocked by this news and suffered a heart attack as a result. Subsequent tests revealed that the applicant in fact did not have AIDS. The doctor had negligently confused the applicant's file with that of another prospective employee. If the applicant sued the doctor for damages, on which of the following causes of action would the applicant recover? A: Negligent infliction of emotional distress. B: Invasion of privacy. C: Negligent misrepresentation. D: Both invasion of privacy and negligent misrepresentation.

Answer 147

A: Negligent infliction of emotional distress. A is correct. The applicant would not typically recover for emotional damages that resulted in a heart attack unless she had also been in a "zone of danger." However, a special circumstance exists when one receives false reports of the death or serious bodily injury to a loved one. Here, the applicant received news that she had a potentially life-threatening disease and even suffered a heart attack as a result. B is incorrect. Invasion of privacy would not be actionable here, where the privileged medical information was never used publicly for commercial gain. C is incorrect. Negligent misrepresentation would also not be actionable here, where the employer, not the applicant, is the party that directly relied on hearing the negligent misrepresentation by the doctor. D is incorrect. This choice is incorrect for the reasons provided above.

Question 148

A driver negligently ran over a pedestrian. A bystander witnessed the accident from across the street. The bystander ran to the pedestrian, whom he did not know, and administered first aid, but the pedestrian died in the bystander’s arms. The bystander suffered serious emotional distress as a result of his failure to save the pedestrian’s life, but he experienced no resulting physical manifestations. The bystander has brought a negligence action against the driver. Is the bystander likely to prevail? A: No, because the bystander assumed the risk. B: No, because the bystander had no familial or other preexisting relationship with the pedestrian. C: Yes, because danger invites rescue. D: Yes, because the bystander was in the zone of danger.

Answer 148

B: No, because the bystander had no familial or other preexisting relationship with the pedestrian. B is correct. Individuals have a duty to avoid causing emotional distress in others. That duty is breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The risk of physical injury is created either by: (i) causing a threat of physical impact that leads to emotional distress; or (ii) directly causing severe emotional distress that by itself is likely to result in physical symptoms. Normally, a plaintiff can recover only if the defendant's conduct caused a physical injury to the plaintiff. If the plaintiff's distress is caused by threat of physical impact (i.e., if the plaintiff is in the "zone of danger" created by the defendant's conduct), most courts require that the threat be directed at the plaintiff or someone in his immediate presence. On the contrary, a bystander outside the "zone of danger" of physical injury who sees the defendant negligently injuring another cannot recover damages for her own distress. However, some states will allow a bystander to recover based on foreseeability factors rather than a "zone of danger" theory if: (i) the plaintiff and the person injured by the defendant are closely related; (ii) if the plaintiff was present at the scene; and (iii) if the plaintiff observed or perceived the injury. Therefore, this answer is correct because even states that allow witnesses who are not in the zone of danger to recover for the emotional distress of observing an accident limit recovery to witnesses who are closely related to the injured person. A is incorrect. One who negligently injures another is liable to rescuers even when the rescuer voluntarily comes to the aid of the injured person. C is incorrect. One who negligently injures another is liable to rescuers who are physically injured in the course of the rescue, but pure emotional distress is not usually recoverable in a negligence action in the absence of physical harm or a close relationship with the injured person. D is incorrect. The bystander observed the accident from across the street. He was not in the path of the car so was not in the zone of danger.

Question 149

A pedestrian was crossing a street in a crosswalk when a woman walking just ahead of him was hit by a truck. The pedestrian, who had jumped out of the way of the truck, administered CPR to the woman, who was a stranger. The woman bled profusely, and the pedestrian was covered in blood. The woman died in the ambulance on the way to the hospital. The pedestrian became very depressed immediately after the incident and developed physical symptoms as a result of his emotional distress. The pedestrian has brought an action against the driver of the truck for negligent infliction of emotional distress. In her defense, the driver asserts that she should not be held liable, because the pedestrian's emotional distress and resulting physical symptoms are not compensable. What is the strongest argument that the pedestrian can make in response to the driver's defense? A: The pedestrian saw the driver hit the woman. B: The pedestrian was acting as a Good Samaritan. C: The pedestrian was covered in the woman's blood and developed physical symptoms as a result of his emotional distress. D: The pedestrian was in the zone of danger.

Answer 149

D: The pedestrian was in the zone of danger. D is correct. Because the pedestrian was in the path of the truck, he was under a direct physical threat from the driver's negligence. He could recover for the emotional distress that he suffered as a result of his fear for his own safety, and many courts would also allow him to recover for all other emotional distress that he suffered in connection with the event. A is incorrect. Absent some special relationships between the pedestrian and the woman (a stranger to him), damages for emotional suffering from just witnessing the accident will not be recoverable. B is incorrect. Merely acting as a "Good Samaritan" does not automatically entitle the person to recover for purely emotional distress, absent additional evidentiary showings, as stated above. C is incorrect. This alone would not support a negligent infliction of emotional distress claim, which requires at least that the plaintiff was in the "zone of danger" such that the threat to his safety caused the emotional suffering.

Question 150

After her husband died in a hospital, a widow directed the hospital to send her husband’s body to a funeral home for burial. The hospital negligently misidentified the husband’s body and sent it to be cremated. When she was informed of the hospital’s mistake, the widow suffered serious emotional distress. She has sued the hospital. Is the hospital likely to be held liable to the widow? A: No, because the widow did not witness the cremation. B: No, because the widow was never in any danger of bodily harm. C: Yes, because hospitals are strictly liable if they do not properly dispose of corpses. D: Yes, because the negligent handling of the husband’s body was especially likely to cause his widow serious emotional distress.

Answer 150

D: Yes, because the negligent handling of the husband’s body was especially likely to cause his widow serious emotional distress. D is correct. This question is testing the concept of negligent infliction of emotional distress. Typically to recover, a plaintiff must satisfy two requirements: (i) the plaintiff must have been within the "zone of danger" and (ii) the plaintiff must suffer physical symptoms from the distress. However, there are exceptions where these requirements are not necessary when the defendant's negligence creates a great likelihood of emotional distress. One such exception is the mishandling of a relative's corpse. In this case, the hospital was negligent and mishandled the corpse of the widow's husband. Therefore, she will likely be able to recover for negligent infliction of emotional distress. A is incorrect. A bystander, not in the zone of danger, who witnesses the injury of another, may sometimes still recover for negligent infliction of emotional distress as an exception to the "zone of danger" requirement. The widow does not meet this exception. However, she does meet another exception and will likely recover. B is incorrect. Although the widow does not meet the "zone of danger" requirement, she can still recover because the hospital acted negligently in a way that created a great likelihood of emotion distress by burning the husband's corpse. C is incorrect. There is no such rule in strict liability which holds hospitals liable for improperly handling a corpse. However, the fact pattern states that the hospital was negligent and the widow suffered emotional distress. Therefore, this situation meets the requirements for negligent infliction of emotional distress.

Question 151

In a trial by jury, a restaurant owner proved that a power company's negligent maintenance of a transformer caused a fire that destroyed his restaurant. The jury returned a verdict for the owner in the amount of $450,000 for property loss and $500,000 for emotional distress. The trial judge entered judgment in those amounts. The power company appealed the part of the judgment awarding $500,000 for emotional distress. On appeal, the judgment should be A: affirmed, because the power company negligently caused the owner's emotional distress. B: affirmed, because harm arising from emotional distress is as real as harm caused by physical impact. C: reversed, because the law does not recognize a claim for emotional distress incident to negligently caused property loss. D: reversed, because the owner suffered physical harm as a consequence of the emotional distress caused by his property loss.

Answer 151

C: reversed, because the law does not recognize a claim for emotional distress incident to negligently caused property loss. C is correct. The jury should not have awarded damages to the owner for emotional suffering because he experienced no physical injury, and such non-economic damages cannot be tacked on to a negligent damage to property claim absent physical injury. A is incorrect. Even if the power company was responsible for the emotional distress, those types of damages are not recoverable in an action based solely on negligent damage to property. B is incorrect. Regardless of the severity of the suffering experienced based on emotional versus physical injury, this is a negligent damage to property action. This does not allow for any recovery for mental suffering. D is incorrect. There are no facts to suggest that the owner suffered any physical injury from the event or as a manifestation of the emotional distress. In this case, emotional distress damages are not recoverable when the underlying tort is based solely on property damages.

Question 152

A defendant operates a bank courier service that uses armored trucks to transport money and securities. One of the defendant's armored trucks was parked illegally, too close to a street intersection. The plaintiff, driving his car at an excessive speed, skidded into the armored truck while trying to make a turn. The truck was not damaged, but the plaintiff was injured. The plaintiff has brought an action against the defendant to recover damages for his loss resulting from the accident. The jury determined that both parties were negligent, but that the defendant was less negligent than the plaintiff. The jurisdiction follows a pure comparative negligence rule. In this action, the plaintiff should recover A: nothing, because the defendant was not an active or efficient cause of the plaintiff's loss. B: nothing, because the defendant was less negligent. C: his entire loss, reduced by a percentage that reflects the negligence attributed to the plaintiff. D: his entire loss, because the defendant's truck suffered no damage.

Answer 152

C: his entire loss, reduced by a percentage that reflects the negligence attributed to the plaintiff. C is correct. In a pure comparative rule jurisdiction, the plaintiff may recover his full amount of damages, less the portion attributed to his own negligence. The plaintiff is not barred from recovery by his own negligence, but he will have his award reduced, according to the court's determination of the plaintiff's percentage of responsibility for his own injuries due to his excessive speed in driving. A is incorrect. This answer misstates the applicable standard, which is that when the plaintiff and defendant each have a proportion of the fault, in a pure comparative rule jurisdiction, the plaintiff may recover the full damages less the amount for which he is responsible. B is incorrect. This answer also misstates the standard. Even when a plaintiff is more liable than the defendant, in a pure comparative jurisdiction, the plaintiff is entitled to damages that are proportionate to the defendant's fault. D is incorrect. As explained above, the plaintiff is only entitled to the full damages minus the amount attributed to his own negligence.

Question 153

A man, who was driving his car at night, stopped the car and went into a nearby tavern for a drink. He left the car standing at the side of the road, projecting three feet into the traffic lane. The lights were on and his friend, the plaintiff, was asleep in the back seat. The plaintiff awoke, discovered the situation, and went back to sleep. Before the man returned, his car was hit by an automobile approaching from the rear and driven by the defendant. The plaintiff was injured. The plaintiff sued the defendant and the man jointly to recover the damages he suffered resulting from the accident. The jurisdiction has a pure comparative negligence rule and has abolished the defense of assumption of risk. In respect to other issues, the rules of the common law remain in effect. The plaintiff should recover A: nothing, because the plaintiff was more negligent than either the defendant or the man. B: nothing, because the total of the defendant's and the man's negligence was not greater than the plaintiff's. C: from the defendant and the man, jointly and severally, the amount of damages the plaintiff suffered reduced by the percentage of the total negligence that is attributed to the plaintiff. D: from the defendant and the man, severally, a percentage of the plaintiff's damages equal to the percentage of fault attributed to each of the defendants.

Answer 153

C: from the defendant and the man, jointly and severally, the amount of damages the plaintiff suffered reduced by the percentage of the total negligence that is attributed to the plaintiff. C is correct. Pure comparative negligence allows recovery by the plaintiff for all damages not attributed to his own negligence. The plaintiff is therefore entitled to 100% of the damages he suffered, minus his percentage of the fault. Because this is a joint and several liability jurisdiction, the defendant and the man are each liable for the entire award. The plaintiff can collect the full amount of his award from either defendant or both, as long as the total only equals the percentage of the damages he is entitled to. A is incorrect. Pure comparative negligence does not require the plaintiff to be less at fault than the defendants. B is incorrect. It gives the standard for modified (or hybrid), rather than pure, comparative fault. D is incorrect. The facts state that, other than pure comparative negligence, the common law rules remain in effect. The adoption of pure comparative negligence, therefore, did not eliminate the joint and several liability of the defendants. The defendant and the man are each liable for the entire award and must pursue an action between them for contribution. The plaintiff is entitled to collect the entire award from either of them as long as his total award only equals the amount established by the judgment.

Question 154

A plaintiff, who was driving at an excessive speed, applied her brakes to stop at a traffic light. Due to damp, fallen leaves, her car skidded and came to a halt perpendicular to the roadway. The defendant, who was also driving at an excessive speed and was immediately behind the plaintiff, saw the plaintiff's car perpendicular to the roadway. Although the defendant had sufficient distance to come to a slow, controlled stop, he decided not to slow down but, rather, to swerve to the left in an effort to go around the plaintiff's car. Due to oncoming traffic, the space was insufficient and the defendant's car collided with the plaintiff's car, severely injuring the plaintiff. The plaintiff filed a personal injury action against the defendant in a jurisdiction in which contributory negligence is a bar to recovery. At trial, the jury finds that the defendant was more at fault than the plaintiff, and that the defendant had a last clear chance to avoid the accident. However, the jury also found that the plaintiff was the legal cause of the accident, and that she assumed the risk by speeding. Will the plaintiff prevail? A: Yes, because the defendant was more than 50% at fault. B: Yes, because the defendant had the last clear chance. C: No, because the plaintiff's conduct was a legal cause of the accident. D: No, because, in speeding, the plaintiff assumed the risk.

Answer 154

B: Yes, because the defendant had the last clear chance. B is correct. The facts stipulate that this is a contributory negligence jurisdiction. At common law, contributory negligence completely barred his right to recover. Even if the defendant is much more negligent than the plaintiff, in a contributory negligence jurisdiction, if a plaintiff is even 1% negligent, he is completely barred from recovery. However, under the doctrine of last clear chance, a plaintiff can recover despite their own contributory negligence. Under this doctrine, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence. Because the plaintiff was speeding, she would fall within the contributory negligence rule. This is confirmed by the jury finding that the plaintiff was the legal cause of the accident. However, the jury also found that the defendant had the last clear chance to avoid the accident, which means the plaintiff’s contributory negligence will be disregarded as a defense. A is incorrect. This answer choice provides the modified (hybrid) form of comparative negligence (comparative responsibility) and is an inappropriate standard to apply in a contributory negligence jurisdiction. C is incorrect. Although the plaintiff was contributorily negligent, the fact that the defendant had the last clear chance to avoid the accident prevents the defendant from using that negligence to bar recovery. D is incorrect. Any risk assumed by the plaintiff due to her speeding is wiped away by the defendant’s last clear chance to avoid the accident

Question 155

A construction company was engaged in blasting operations to clear the way for a new road. The company had erected adequate barriers and posted adequate warning signs in the vicinity of the blasting. Although the plaintiff read and understood the signs, he entered the area to walk his dog. As a result of the blasting, the plaintiff was hit by a piece of rock and sustained head injuries. The jurisdiction follows the traditional common law rules governing the defenses of contributory negligence, assumption of risk, and last clear chance. In an action by the plaintiff against the construction company to recover damages for his injuries, the plaintiff will A: not prevail, because the construction company exercised reasonable care to protect the public from harm. B: not prevail, because the plaintiff understood the signs and disregarded the warnings. C: prevail, because the plaintiff was harmed by the construction company's abnormally dangerous activity. D: prevail, because the plaintiff used reasonable care to protect himself from harm.

Answer 155

B: not prevail, because the plaintiff understood the signs and disregarded the warnings. B is correct. The general rule prohibiting the defense of contributory negligence in strict liability cases does not apply where the plaintiff knew of the danger and voluntarily, unreasonably subjected himself to the danger anyway. Here, the plaintiff saw and understood the signs, and disregarded them, and will thus be barred from recovery due to his contributory negligence or assumption of risk. A is incorrect. Strict liability will apply regardless of the reasonableness of the defendant's conduct, as the duty is absolute, and cannot be discharged by acting with good intentions or reasonableness. This plaintiff will still lose, however, because of his unreasonable contributory negligence. C is incorrect. The plaintiff's assumption of risk will preclude his recovery. D is incorrect. The plaintiff did not act reasonably. As explained above, his knowing disregard of the warnings and voluntary exposure to the extreme danger will bar him from recovery because he assumed the risk.

Question 156

A mining company that operated a copper mine in a remote location kept dynamite in a storage facility at the mine. The storage facility was designed and operated in conformity with state-of-the-art safety standards. In the jurisdiction, the storage of dynamite is deemed an abnormally dangerous activity. Dynamite that was stored in the mining company’s storage facility and that had been manufactured by an explosives manufacturer exploded due to an unknown cause. The explosion injured a state employee who was at the mine performing a safety audit. The employee brought an action in strict liability against the mining company. What would be the mining company’s best defense? A: The mine was in a remote location. B: The mining company did not manufacture the dynamite. C: The state employee assumed the risk of injury inherent in the job. D: The storage facility conformed to state-of-the-art safety standards.

Answer 156

C: The state employee assumed the risk of injury inherent in the job. C is correct. Assumption of risk can be a complete defense to strict liability, and in this case, the state employee willingly took on auditing duties in potentially dangerous environments. A is incorrect. The remoteness is a factor when determining whether an activity is considered abnormally dangerous, but the question states that the activity has already been deemed abnormally dangerous. B is incorrect. Whether the defendant is a manufacturer is not relevant here, where an abnormally dangerous activity is at issue. That is more dispositive in a products liability action. D is incorrect. Whether the facility conformed to the highest safety standards is irrelevant to a strict liability action, where negligence and intent are not elements of the action. If this were a negligence action, conformity to safety standards would be relevant.

Question 157

A man and his friend, who were both adults, went to a party. The man and the friend had many drinks at the party and became legally intoxicated. They decided to play a game of chance called "Russian roulette" using a gun loaded with one bullet. As part of the game, the man pointed the gun at the friend and, on her command, pulled the trigger. The man shot the friend in the shoulder. The friend has brought a negligence action against the man. Traditional defenses based on plaintiff's conduct apply. What is likely to be the dispositive issue in this case? A: Whether the game constituted a joint venture. B: Whether the friend could validly consent to the game. C: Whether the friend was also negligent. D: Whether the man was legally intoxicated when he began playing the game.

Answer 157

C: Whether the friend was also negligent. C is correct. Contributory negligence is an appropriate defense to a negligence action, and here both parties seem to have been acting unreasonably in exactly the same way. Whether the argument is put in the form of the friend's carelessness in engaging in the activity or in her unreasonable assumption of risk, many states would now evaluate the defense under comparative negligence principles. A is incorrect. The fact that the man and the friend might have been engaged in a joint venture would be relevant if the action were being brought by a third party who was not part of the venture but who had been injured as a consequence of their activities. It is irrelevant to a suit among participants in a joint venture unless it indicates an assumption of risk. B is incorrect. It is likely that consent to this activity would be routinely found to be against public policy, although the consequences of such a determination would vary from state to state. But consent is a defense more appropriately raised in an intentional tort case, not a case for negligence. There is no indication that the friend consented to any negligence, and in any case she was too intoxicated to give a valid consent. D is incorrect. The man's intoxication would not insulate him from liability to those he injured while in that state. He would still be held to the "reasonably prudent person" standard.

Question 158

A woman signed up for a bowling class. Before allowing the woman to bowl, the instructor required her to sign a waiver explicitly stating that she assumed all risk of injuries that she might suffer in connection with the class, including injuries due to negligence or any other fault. After she signed the waiver, the woman was injured when the instructor negligently dropped a bowling ball on the woman's foot. The woman brought a negligence action against the instructor. The instructor has filed a motion for summary judgment based on the waiver. What is the woman's best argument in opposition to the instructor's motion? A: Bowling is an inherently dangerous activity. B: In circumstances like these, it is against public policy to enforce agreements that insulate people from the consequences of their own negligence. C: It was unreasonable to require the woman to sign the waiver before she was allowed to bowl. D: When she signed the form, the woman could not foresee that the instructor would drop a bowling ball on her foot.

Answer 158

B: In circumstances like these, it is against public policy to enforce agreements that insulate people from the consequences of their own negligence. B is correct. This applies an exception to the general enforceability of liability waivers based on public policy grounds. The woman should argue that it would be unfair to preclude her from raising any liability claims because such a practice reduces businesses' incentive to take reasonable precautions against harm if they face no risk of negligence liability. A is incorrect. Bowling is not inherently dangerous. Even if it were, participants who voluntarily consent to bowl could arguably be said to assume the risk of the activity by signing a waiver before engaging in it. C is incorrect. A court is unlikely to find that simply asking the woman to sign the waiver was unreasonable. The court is more likely to find that certain terms, as applied, should not be enforced due to unfairness or other public policy reasons. The waiver could be enforced in the event that the woman's injuries resulted from another participant's negligence, as opposed to the instructor's. D is incorrect. Whether a person signing a liability waiver foresees the specific nature of potential harm is not dispositive in determining its enforceability. Typically, the exact type of future injury is unknown when signing waivers.

Question 159

A hot-air balloon touring company operated near a golf course. The company’s property was separated from the golf course by a fence on which the company had posted signs warning people not to enter the property because of the dangers of balloons landing. A golfer on the golf course hit an errant shot onto the company’s property, ignored the warning signs, and jumped over the fence to retrieve her golf ball. At about the same time, one of the company’s balloons experienced mechanical problems and had to make an emergency landing to avoid crashing. The balloon, which was out of control when it landed, struck the golfer and injured her. The jurisdiction has decided that hot-air ballooning is an abnormally dangerous activity. In an action by the golfer against the company, does the company have any affirmative defenses? A: No, because the balloon was out of control when it struck the golfer. B: No, because the company was engaged in an abnormally dangerous activity. C: Yes, because the balloon landed to avoid crashing. D: Yes, because the golfer assumed the risk by coming onto the company’s property.

Answer 159

D: Yes, because the golfer assumed the risk by coming onto the company’s property. D is correct. Despite the fact that this case involves an abnormally dangerous activity that would trigger strict liability, when the golfer ignored the visible warning signs and jumped over the fence voluntarily, she assumed the risk of being injured by hot-air balloons while on the company's property. A is incorrect. This does not prevent the company from bringing an affirmative defense that the golfer knowingly and voluntarily assumed the risk by ignoring the warnings signs. B is incorrect. Although hot-air ballooning is considered an abnormally dangerous activity that triggers strict liability, this will not preclude the company from raising an assumption of risk defense to bar the golfer from recovery, as stated above. C is incorrect. The company has an affirmative defense, but it is not based on its decision to land the balloon, which is implying that the company acted reasonably. That is irrelevant to a strict liability analysis. However, the company may still raise an affirmative defense, for the reasons given above.

Question 160

A construction worker was working at the construction site of a new building. An open elevator, which had been installed in the building by the elevator manufacturer, was used to haul workers and building materials between floors. While the worker was riding the elevator, it stalled between floors due to a manufacturing defect in the elevator. The worker called for assistance and was in no danger, but after waiting 15 minutes for help, he became anxious and jumped 12 feet to get out. He severely injured his back when he landed. In an action by the worker against the elevator manufacturer to recover for his back injury, is the worker likely to obtain a judgment for 100% of his damages? A: No, because such risks are inherent in construction work. B: No, because the worker was not in danger while on the stalled elevator. C: Yes, because the elevator stalled due to a manufacturing defect. D: Yes, because the worker was falsely imprisoned in the stalled elevator.

Answer 160

B: No, because the worker was not in danger while on the stalled elevator. B is correct. In order to recover for a manufacturing defect, the construction worker must prove that the elevator was dangerous beyond the expectation of an ordinary consumer. The construction worker cannot prove that and will not be able to recover a judgment for 100% of his damages. A is incorrect. The reason why the worker will not be able to recover for his back injury is not due to the inherent risks of construction work. It is because he was not in danger while on the stalled elevator. C is incorrect. As stated above, an essential element of a claim based on a manufacturing defect is dangerous beyond the expectation of the ordinary consumer. D is incorrect. The worker is trying to recover for his back injury through products liability. False imprisonment is an intentional tort that is not at issue.

Question 161

The plaintiff was a passenger in a car that was struck in the rear by a car driven by a student. The collision resulted from the student's negligence in failing to keep a proper lookout. The plaintiff's physician found that the collision had aggravated a mild osteoarthritic condition in her lower back and had brought on similar, but new, symptoms in her neck and upper back. Six months after the first accident, the plaintiff was a passenger in a car that was struck in the rear by a car driven by a doctor. The collision resulted from the doctor's negligence in failing to keep a proper lookout. The plaintiff's physician found that the second collision had caused a general worsening of the plaintiff's condition, marked by a significant restriction of movement and muscle spasms in her back and neck. The physician believes the plaintiff's worsened condition is permanent, and he can find no basis for apportioning responsibility for her present worsened condition between the two automobile collisions. The plaintiff brought an action for damages against the student and the doctor. At the close of the plaintiff's evidence, as outlined above, each of the defendants moved for a directed verdict in his favor on the ground that the plaintiff had /failed to produce evidence on which the jury could determine how much damage each defendant had caused. The jurisdiction adheres to the common law rules regarding joint and several liability. The plaintiff's best argument in opposition to the defendants' motions would be that the defendants are jointly and severally liable for the plaintiff's entire harm, because A: the wrongdoers, rather than their victim, should bear the burden of the impossibility of apportionment. B: the defendants breached a common duty that each of them owed to the plaintiff. C: each of the defendants was the proximate cause in fact of all of the plaintiff's damages. D: the defendants are joint tortfeasors who aggravated the plaintiff's preexisting condition.

Answer 161

A: the wrongdoers, rather than their victim, should bear the burden of the impossibility of apportionment. A is correct. Where the requirement of actual proof under these facts would result in a harsh result on an innocent victim, courts have traditionally held the defendants to be jointly and severally liable for the cause-in-fact, considering the injury to be indivisible as a matter of policy. B is incorrect. The issue is not duty, which was proven, but rather cause-in-fact. C is incorrect. This is a misstatement of the law. Proximate, or legal causation, is a separate element from cause-in-fact. If the plaintiff cannot show cause-in-fact, the issue of legal (proximate) cause would not be reached to determine its merit. D is incorrect. This answer comes to an incorrect conclusion. This is a legal conclusion, which is a judicial determination. The plaintiff is defending against a motion for directed verdict by the defendants, which means that the status of the defendants as joint tortfeasors has not yet been decided.

Question 162

A company operates an aircraft maintenance and repair business serving the needs of owners of private airplanes. A pilot contracted with the company to replace the engine in his plane with a more powerful engine of foreign manufacture. The company purchased the replacement engine through a representative of the manufacturer and installed it in the pilot's plane. A short time after it was put into use, the new engine failed, and the plane crashed into a warehouse, destroying the warehouse and its contents. The company was guilty of no negligence in the procurement, inspection, or installation of the engine. The failure of the engine was caused by a defect that would not be disclosed by inspection and testing procedures available to an installer. There was no negligence on the part of the pilot, who escaped the disabled plane by parachute. The warehouse owner recovered a judgment for damages from the pilot for the destruction of his warehouse and its contents, and the pilot has asserted a claim against the company to recover compensation on account of that liability. In that action, the pilot will recover A: full compensation, because the engine was defective. B: no compensation, because the company was not negligent. C: contribution only, because the company and the pilot were equally innocent. D: no compensation, because the warehouse owner's judgment established the pilot's responsibility to the warehouse owner.

Answer 162

A: full compensation, because the engine was defective. A is correct. This is a products liability claim based on a theory of strict liability. The company supplied and installed the defective engine as part of its normal course of business in maintaining and repairing private airplanes for customers. Therefore, the company is a commercial seller of a defective product and can be held strictly liable for the damages caused by the pilot as the result of the pilot's use of the defective engine. Thus, the pilot will recover against the company for the full amount of the judgment against him. B is incorrect. The company can be held strictly liable as a commercial seller of a defective product. C is incorrect. The company is strictly liable for all of the damages caused by the defective engine. Therefore, the pilot can recover from the company, and the company would need to seek indemnification from the engine's manufacturer. D is incorrect. The judgment established liability, not fault. In the pilot's action for strict liability, the pilot would not be barred from recovery against the company unless it was shown that the pilot knew of the defect and its danger but unreasonably proceeded to use the engine anyway. The facts do not support this conclusion, so the pilot is entitled to full compensation from the company.

Question 163

While driving his car, the plaintiff sustained injuries in a three-vehicle collision. The plaintiff sued the drivers of the other two vehicles, a truck and a bus, and each defendant crossclaimed against the other for contribution. The jurisdiction has adopted a rule of pure comparative negligence and allows contribution based upon proportionate fault. The rule of joint and several liability has been retained. The jury has found that the plaintiff sustained damages in the amount of $100,000, and apportioned the causal negligence of the parties as follows: The plaintiff 40%, the truck driver 30%, and the bus driver 30%. How much, if anything, can the plaintiff collect from the truck driver, and how much, if anything, can the truck driver then collect from the bus driver in contribution? A: Nothing, and then the truck driver can collect nothing from the bus driver. B: $30,000, and then the truck driver can collect nothing from the bus driver. C: $40,000, and then the truck driver can collect $10,000 from the bus driver. D: $60,000, and then the truck driver can collect $30,000 from the bus driver.

Answer 163

D: $60,000, and then the truck driver can collect $30,000 from the bus driver. D is correct. Pure comparative negligence allows the plaintiff to recover all damages not attributed to his own negligence. The plaintiff is therefore entitled to $60,000, which is the $100,000 in damages he suffered minus his 40% of the fault. Since this is a joint and several liability jurisdiction, the defendants are each liable for the entire award. The plaintiff can collect the full amount of his award from either defendant or both, as long as the total only equals the $60,000 he is entitled to. The jurisdiction allows contribution based on proportionate fault. The question asks how much (what is the most) the plaintiff can collect from the truck driver. Under joint and several liability, the plaintiff can collect up to his full award, $60,000, from the truck driver. The truck driver can then collect the bus driver's proportionate amount of the award in contribution, which is 30% of $100,000, or $30,000. A is incorrect. As explained above, the plaintiff is entitled to $60,000 in damages from either the truck driver or the bus driver, and whichever defendant pays those damages may collect from the other defendant their proportionate amount of the award in contribution. B is incorrect. Because joint and several liability applies, the plaintiff may collect the full amount of his award ($60,000) from either defendant. And because contribution based on proportionate fault also applies, the truck driver may collect $30,000 from the bus driver. C is incorrect. The amount of $40,000 (40%) is what the plaintiff is responsible for, not the amount he may recover in damages, which is $60,000, $30,000 of which the truck driver may collect from the bus driver as a proportionate amount of the award in contribution.

Question 164

A man owned a shotgun that he used for hunting. The man knew that his old friend had become involved with a violent gang that recently had a shoot-out with a rival gang. The man, who was going to a farm to hunt quail, placed his loaded shotgun on the back seat of his car. On his way to the farm, the man picked up his old friend to give him a ride to someone's house. After dropping off his old friend at the house, the man proceeded to the farm, where he discovered that his shotgun was missing from his car. The old friend had taken the shotgun and, later in the day, the old friend used it to shoot a member of the rival gang. The gang member was severely injured. The gang member recovered a judgment for his damages against the man, as well as the old friend, on the ground that the man was negligent in allowing his old friend to obtain possession of the gun, and was therefore liable jointly and severally with the old friend for the gang member's damages. The jurisdiction has a statute that allows contribution based upon proportionate fault and adheres to the traditional common-law rules on indemnity. If the man fully satisfies the judgment, he then will have a right to recover from the old friend A: indemnity for the full amount of the judgment, because the old friend was an intentional tortfeasor. B: contribution only, based on comparative fault, because the man himself was negligent. C: one-half of the amount of the judgment. D: nothing, because the man's negligence was a substantial proximate cause of the shooting.

Answer 164

A: indemnity for the full amount of the judgment, because the old friend was an intentional tortfeasor. A is correct. The man may be indemnified for the full judgment because the old friend was an intentional tortfeasor, who is liable for any and all consequences stemming from his actions. B is incorrect. Even though both the man and the old friend are culpable, the old friend's intentionally tortious actions render him liable for all consequences, despite the man's negligence. C is incorrect. As an intentional tortfeasor, the old friend will be liable for all of the consequences of his act. D is incorrect. The friend's intentional tort renders the man's negligence irrelevant.

Question 165

A plaintiff sustained personal injuries in a three-car collision caused by the concurrent negligence of a trucker and a bus driver. In the plaintiff's action for damages against the other two drivers, the jury apportioned the negligence 30% to the plaintiff, 30% to the trucker, and 40% to the bus driver. The plaintiff's total damages were $100,000. A state statute provides for a system of pure comparative negligence, joint and several liability of concurrent tortfeasors, and contribution based upon proportionate fault. If the plaintiff chooses to pursue the claim against the trucker alone, she will be entitled to collect at most A: $70,000 from the trucker, and then the trucker will be entitled to collect $40,000 from the bus driver. B: $30,000 from the trucker, and then the trucker will be entitled to collect $10,000 from the bus driver. C: $30,000 from the trucker, and then the trucker will be entitled to collect nothing from the bus driver. D: nothing from the trucker, because the percentage of fault for the trucker is not greater than that of the plaintiff.

Answer 165

A: $70,000 from the trucker, and then the trucker will be entitled to collect $40,000 from the bus driver. A is correct. The facts indicate that the jury apportioned responsibility and that the statute allows contribution based on proportionate fault between jointly and severally liable tortfeasors in a pure comparative negligence state. Therefore, all this question requires is a little basic math. The plaintiff's damages were for $100,000. She was responsible for $30,000 of her own damages, leaving $70,000 that she could collect from the trucker alone under the joint and several liability statute; the statute makes each co-defendant liable for the entire amount of the award. She would then be unable to collect any other amount from any other defendant. The jury determined that the share of responsibility for the trucker was 30% or $30,000. Under the facts, the state allows contribution by proportionate fault; as a result, the trucker is entitled to contribution from the bus driver in the amount of $40,000. B is incorrect. As explained above, the plaintiff's damages caused by the trucker and bus driver are $70,000. Under joint and several liability, the plaintiff can collect the full amount from the trucker, who can then sue the bus driver for the bus driver's contribution. C is incorrect. Under joint and several liability, the plaintiff will be able to recover the full amount from the trucker, who can sue the bus driver for his share through an action for contribution. D is incorrect. It gives the standard for modified (hybrid) comparative negligence. Pure comparative negligence allows the plaintiff to recover all her damages, minus the percentage attributed to her own negligence.

Question 166

A plaintiff sustained personal injuries in a three-vehicle collision caused by the concurrent negligence of all three drivers. In the plaintiff's action for damages against the other two drivers, the jury apportioned the negligence 30% to the plaintiff, 30% to a truck driver, and 40% to a cab driver. The plaintiff's total damages were $100,000. Assume that the state has retained the common-law rule pertaining to contribution and that the state's comparative negligence statute provides for a system of pure comparative negligence but abolishes joint and several liability. If the plaintiff chooses to pursue the claim against the truck driver alone, she will be entitled to collect at most A: $70,000 from the truck driver, and then the truck driver will be entitled to collect $40,000 from the cab driver. B: $30,000 from the truck driver, and then the truck driver will be entitled to collect $10,000 from the cab driver. C: $30,000 from the truck driver, and then the truck driver will be entitled to collect nothing from the cab driver. D: nothing from the truck driver, because his percentage of fault is not greater than that of the plaintiff.

Answer 166

C: $30,000 from the truck driver, and then the truck driver will be entitled to collect nothing from the cab driver. C is correct. The facts tell you that joint and several liability has been abolished, which means that each defendant is liable only for his own share of the damages, not the entire award. In addition, contribution between tortfeasors is only available where one defendant has paid more than his determined share of the damages. This is the only answer that appropriately applies these principles. A is incorrect. It states a joint and several liability standard of application to the facts. B is incorrect. The truck driver can collect nothing from the cab driver. They are not jointly and severally liable and the truck driver has not paid out more than his share of liability, so contribution is not available to him. D is incorrect. This answer is a misstatement of law. In pure comparative negligence, the plaintiff can recover all of her damages, minus the percentage attributed to her own fault. The plaintiff is entitled to $30,000 from the truck driver.

Question 167

A four-year-old child sustained serious injuries when a playmate pushed him from between two parked cars into the street, where he was struck by a car. The child, by his representative, sued the driver of the car, the playmate’s parents, and his own parents. At trial, the child’s total damages were determined to be $100,000. The playmate’s parents were determined to be 20% at fault because they had failed to adequately supervise her. The driver was found to be 50% at fault. The child’s own parents were determined to be 30% at fault for failure to adequately supervise him. The court has adopted the pure comparative negligence doctrine, with joint and several liability, in place of the common law rules relating to plaintiff’s fault. In addition, the common law doctrines relating to intra-family liability have been abrogated. What is the maximum amount, if anything, that the child’s representative can recover from the driver? A: $30,000. B: $50,000. C: $100,000. D: Nothing.

Answer 167

C: $100,000. C is correct. Under joint and several liability, the entire amount can be collected from any one of the defendants. That defendant, in turn, can seek to recover a proportional share of the damages from the other defendants. Thus, the child's representative will be able to collect the full $100,000 from the driver. A is incorrect. This might be correct under a pro-rata allocation of damages, but it is not correct under comparative negligence with joint and several liability. B is incorrect. This would be correct if liability were only several, rather than joint and several. D is incorrect. This might be the rule under a traditional contributory negligence regime where the negligence of the parent is imputed to the child and bars all recovery, but it is not the approach under comparative negligence with joint and several liability.

Question 168

An elderly neighbor hired a 17-year-old boy with a reputation for reckless driving to drive the neighbor on errands once a week. One day the teenager, driving the neighbor’s car, took the neighbor to the grocery store. While the neighbor was in the store, the teenager drove out of the parking lot and headed for a party on the other side of town. While on his way to the party, the teenager negligently turned in front of a moving car and caused a collision. The other driver was injured in the collision. The injured driver has brought an action for damages against the neighbor, based on negligent entrustment, and against the teenager. The jury has found that the injured driver’s damages were $100,000, that the injured driver was 10% at fault, that the teenager was 60% at fault, and that the neighbor was 30% at fault for entrusting his car to the teenager. Based on these damage and responsibility amounts, what is the maximum that the injured driver could recover from the neighbor? A: $100,000. B: $90,000. C: $60,000. D: $30,000.

Answer 168

B: $90,000. B is correct. In a system of pure comparative negligence with joint and several liability (the default system of liability on the MBE, unless stated otherwise), a plaintiff can recover all the damages, after discounting for the plaintiff's negligence, from any one of the defendants, and that defendant must pursue the other defendants for contribution. Here, the injured driver's recovery from the defendants would be reduced by an amount that reflects his own negligence (10% of the $100,000, or $10,000). The driver would be able to recover the full $90,000 from the neighbor, and the neighbor would have to pursue the teenager for contribution of his $60,000 share. A is incorrect. The damages awarded to the driver is determined by the total amount ($100,000) minus the plaintiff's negligence ($10,000). C is incorrect. As explained above, because the default standard is pure comparative negligence with joint and several liability, the driver can recover the total damages (less his own negligence) from any one of the defendants. D is incorrect. The driver is not limited to recovering damages calculated exclusively based on the neighbor's negligence, he may recover the full amount.

Question 169

A homeowner resides downhill from a metal fabrication facility. She has sued both the owner of the facility and the supplier of a solvent used at the facility. She contends that contaminants, consisting mostly of the solvent, were released into the ground at the facility and have migrated and continue to migrate to her property, contaminating the soil, the groundwater, and her well. She alleges various acts of negligence on the part of the facility owner in causing the release of the contaminants into the ground. She also alleges that employees of the solvent supplier were negligent in frequently spilling some of the solvent onto the ground while filling a rooftop tank at the facility. The solvent supplier has moved for summary judgment, arguing that if there was any contamination, the facility owner and the supplier independently contributed indeterminate amounts to the contamination and that therefore the homeowner cannot show how much damage each has inflicted on her. There is no evidence that the facility owner and the solvent supplier acted in concert. Should the court grant the summary judgment motion? A: No, because concurrent tortfeasors are jointly and severally liable for an indivisible injury. B: No, because the solvent supplier is vicariously liable for damage inflicted by the facility owner. C: Yes, because there is no basis for allocating damages against the solvent supplier. D: Yes, because there is no evidence that the facility owner and the solvent supplier acted in concert.

Answer 169

A: No, because concurrent tortfeasors are jointly and severally liable for an indivisible injury. A is correct. When two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortfeasor is held to be jointly and severally liable for that injury. Meaning, each is liable to the plaintiff for the entire damage incurred. This applies even if each tortfeasor acted independently. Therefore, the homeowner would not need to show how much damage the facility owner and supplier contributed in order to recover damages. Each party would be liable to the homeowner for the entire damage amount. B is incorrect. Vicarious liability occurs when one person commits a tortious act against a third party, and another person is liable to the third party for this act. This type of liability only occurs when there is a special relationship between the tortfeasor and the person to whom the tortious conduct is imputed. There is no special relationship here so vicarious liability does not apply. C is incorrect. There does not need to be a way of allocating damages against the solvent supplier because the supplier will be held to be joint and severally liable. D is incorrect. The facility owner and solvent supplier do not need to act in concert for there to be joint and several liability. As stated above, each is liable even if they acted independently.

Question 170

The governor of a state signed a death warrant for a convicted murderer. Two protesters are active opponents of the death penalty. At a demonstration protesting the execution of the murderer, the protesters carried large signs that state, "The governor - Murderer." A television station broadcast news coverage of the demonstration, including pictures of the signs carried by the protesters. The governor asserted a defamation claim against the television station. Assume that the jury finds that although the signs caused the public to hold the governor in lower esteem, the only reasonable interpretation of the signs was that the term "murderer" was intended as a characterization of anyone who would sign a death warrant. Will the governor prevail? A: Yes, because the signs would cause persons to hold the governor in lower esteem. B: Yes, because the governor can prove that the television station showed the signs with knowledge of falsity or reckless disregard of the truth that the governor had not committed homicide. C: No, because the governor cannot prove he suffered pecuniary loss resulting from harm to his reputation proximately caused by the defendants' signs. D: No, because the only reasonable interpretation of the signs was that the term "murderer" was intended as a characterization of one who would sign a death warrant.

Answer 170

D: No, because the only reasonable interpretation of the signs was that the term "murderer" was intended as a characterization of one who would sign a death warrant. D is correct. Because the statement could be reasonably interpreted only in one way, then that interpretation must, in fact, be defamatory in order for a plaintiff to prevail in a case of defamation. Here, the statement was that "murderer" means one that would sign a death warrant. Therefore, the statement was the expression of an opinion not based on specific facts, and would not support a defamation action. A is incorrect. As explained above, a defamatory statement must be a provably false statement of fact. Because the statement in question was the expression of an opinion that anyone who would sign a death warrant is a murderer, the governor's claim would fail due to the inability to prove defamatory language on the part of the defendant. B is incorrect. The common law elements of the claim must be satisfied before the constitutional questions are addressed. To be defamatory a statement must be a provably false statement of fact. Because the statement was an expression of opinion that anyone who would sign a death warrant is a murderer, the governor would fail in setting out a claim for defamation even before the constitutional issues were addressed. Therefore, a determination regarding malice under New York Times v. Sullivan is irrelevant. C is incorrect. TV broadcasts tend to be treated as libel, which would mean special damages are not necessary. Even as a test for slander, however, this choice is incorrect because the accusation is criminal. A criminal accusation is slander per se and does not need proof of special damages to prevail.

Question 171

The governor of a state signed a death warrant for a convicted murderer. Two protesters are active opponents of the death penalty. At a demonstration protesting the execution of the murderer, the protesters carried large signs that stated, "The governor - Murderer." A television station broadcasted news coverage of the demonstration, including pictures of the signs carried by the protesters. If the governor asserts against the television station a claim of damages for intentional infliction of emotional distress, will the governor prevail? A: Yes, because the broadcast showing the signs caused the governor to suffer severe emotional distress. B: Yes, because the assertion on the signs was extreme and outrageous. C: No, because the governor did not suffer physical harm as a consequence of the emotional distress caused by the signs. D: No, because the television station did not publish a false statement of fact with "actual malice."

Answer 171

D: No, because the television station did not publish a false statement of fact with "actual malice." D is correct. To prevail on a claim for intentional infliction of emotional distress, a plaintiff is required to prove that the defendant engaged in extreme or outrageous conduct with an intent to cause severe emotional distress. Merely broadcasting news coverage, including news coverage of opinion statements would not be extreme and outrageous conduct by the news station, because it was not published with actual malice. A is incorrect. As part of the prima facie case for IIED, the plaintiff must prove severe emotional distress. However, there are no facts in the fact pattern that suggest that the governor suffered any kind of emotional distress from the television broadcast. Because the facts do not discuss any emotional distress, this answer choice can be eliminated. B is incorrect. The governor is suing the television station, so he will need to prove that the broadcast amounted to extreme and outrageous conduct. The signs are an action by a third party and are irrelevant to whether the broadcast was extreme and outrageous. C is incorrect. Physical injury is not required for recovery of an IIED claim. The plaintiff must only prove severe emotional distress as damages. Therefore, the governor would not be required to show physical harm to recover against the television station.

Question 172

A woman and a man, who were professional rivals, were attending a computer industry dinner where each was to receive an award for achievement in the field of data processing. The man engaged the woman in conversation away from the rest of the party and expressed the opinion that if they joined forces, they could do even better. The woman replied that she would not consider the man as a business partner and when the man demanded to know why, she told him that he was incompetent. The exchange was overheard by another person who attended the dinner. The man suffered emotional distress but no pecuniary loss. If the man asserts a claim against the woman based on defamation, will the man prevail? A: No, because the man suffered no pecuniary loss. B: No, because the woman's statement was made to the man and not to the person who overheard the statement. C: No, because the woman did not foresee that her statement would be overheard by another person. D: No, because the woman did not intend to cause the man emotional distress.

Answer 172

A: No, because the man suffered no pecuniary loss. C is correct. The prima facie case for defamation requires defamatory language concerning the plaintiff, publication of that language by the defendant to a third person, and damage to the reputation of the plaintiff. Here, the issue is whether there was publication by the defendant. The publication requirement is satisfied where there is a communication of the defamatory statement to a third person who understood it. That communication can be either intentional or the result of negligence. Therefore, if the woman had no reason to foresee that her statement would be overheard by another person, then there was no negligent or intentional communication and the man will not prevail on his defamation claim. A is incorrect. The defamatory statement was verbal, so the man would also normally need to prove special damages (pecuniary). However, the woman's comment was one regarding the man's trade or occupation, making it slander per se, and injury will be presumed. B is incorrect. A defamatory communication can be made negligently as well as intentionally. D is incorrect. The man does not need to show that the woman intended to cause him emotional distress; in this case injury is presumed.

Question 173

A newspaper, printed an article that stated: "Kitchen, the popular restaurant on the town square, has closed its doors. Kitchen employees have told [the newspaper] that the closing resulted from the owner's belief that Kitchen's general manager has embezzled thousands of dollars from the restaurant over the last several years. A decision on reopening the restaurant will be made after the completion of an audit of Kitchen's books." The plaintiff, who is Kitchen's general manager, brought a libel action against the newspaper based on the publication of this article. The parties stipulated that the plaintiff never embezzled any funds from Kitchen. They also stipulated that the plaintiff is well known among many people in the community because of his job with Kitchen. The case went to trial before a jury. The defendant's motion for a directed verdict in its favor, made at the close of the evidence, should be granted if the A: record contains no evidence that the plaintiff suffered special harm as a result of the publication. B: record contains no evidence that the defendant was negligent as to the truth or falsity of the charge of embezzlement. C: evidence is not clear and convincing that the defendant published the article with "actual malice." D: record contains uncontradicted evidence that the article accurately reported what the employees told the newspaper.

Answer 173

B: record contains no evidence that the defendant was negligent as to the truth or falsity of the charge of embezzlement. B is correct. If libel involves a public figure or a matter of public concern, the plaintiff must also prove two additional elements: falsity and fault. The standard for fault differs depending on if the plaintiff is a public figure or a private person involved in a matter of public concern. To determine if a matter is of public concern, the court will look at the content, form, and context of the publication. Here, the content was about the closing of a popular local restaurant, the form was a printed newspaper article, and the context was a communication to the entire readership of the newspaper. Therefore, because this would likely be a matter of public concern, the plaintiff is required to prove fault. For a matter of public concern involving a private person, the plaintiff must show that the defendant published the statement with at least negligence as to its truth or falsity. Therefore, if the general manager cannot prove that the newspaper was negligent as to the truth or falsity of the statements published, the newspaper's motion for a directed verdict will be granted. A is incorrect. Proof of special damages is only required for slander (verbal statement) or libel (statements in print) that is not defamatory on its face but rather requires reference to extrinsic facts to show its defamatory content. Harm is presumed when the libel is defamatory on its face (libel per se), as here, where the statement accused the plaintiff of embezzlement. C is incorrect. This is an incorrect standard, which would only be required if the plaintiff was a public official or figure. A person may become a public figure either by achieving great fame or notoriety, as in the case of movie stars and famous athletes or by voluntarily entering a particular area of public interest or controversy. Here, the general manager of restaurant would not amount to the status of a public figure just being he is known in this area. The plaintiff is only required to prove at least negligence in this situation. Thus, this is the incorrect standard to apply. Actual malice is only required if the plaintiff is a public figure or official. D is incorrect. The newspaper can still be held liable if it was negligent in determining the veracity of the employee's statement. Thus, the newspaper’s motion for a directed verdict will not be granted in light of these facts.

Question 174

The owner of a truck leasing company asked one of his employees to deliver $1,000 to the dealership's main office. The following week, as a result of a dispute over whether the money had been delivered, the owner instructed the employee to come to the office to submit to a lie detector test. When the employee reported to the owner's office for the test, it was not administered. Instead, without hearing the employee's story, the owner shouted at him, "You're a thief!" and fired him. At the time the owner accused the employee of stealing, the owner believed the charge to be true. The owner's shout was overheard by several other employees who were in another office that was separated from the owner's office by a thin partition. The next day, the employee accepted another job at a higher salary. Several weeks later, upon discovering that the money had not been stolen, the owner offered to rehire the employee. In a suit for slander by the employee against the owner, the employee will A: prevail, because the employee was fraudulently induced to go to the office for a lie detector test, which was not, in fact, given. B: prevail, because the owner should have foreseen that the statement would be overheard by other employees. C: not prevail, because the owner made the charge in good faith, believing it to be true. D: not prevail, because the statement was made to the employee alone and intended for his ears only.

Answer 174

B: prevail, because the owner should have foreseen that the statement would be overheard by other employees. B is correct. Slander is spoken defamation in which the plaintiff must prove (i) defamatory language; (ii) of or concerning the plaintiff; (iii) published to a third person; (iv) which caused damage to the plaintiff's reputation. Slander typically requires proof of special damages (pecuniary loss), unless the statement falls into one of four categories of exceptions for slander per se: (i) criminal activity; (ii) misconduct or incompetence in the plaintiff's trade or occupation; (iii) sexual misconduct; and (iv) the plaintiff's having a "loathsome" disease. In this case, the statement "you're a thief" would constitute slander per se as an accusation of criminal activity. Therefore, based on the facts, this is a defamatory statement, concerning the plaintiff, which does not require proof of special damages. The only element at issue is whether the statement was published to a third party. In this case, it was foreseeable that yelling the statement in an office with thin walls and several employees around would be overheard. Therefore, the employee will be able to recover. A is incorrect. The reason the employee went to the office is not relevant to the analysis of the slander action. C is incorrect. The owner's belief that the statement was true would not be a viable defense against the plaintiff's claim. D is incorrect. Communication to a third party may be intentional or negligent. In this case, it was foreseeable that the statement would be overheard by the other employees.

Question 175

Two law school classmates had competed for the position of editor of the law review. One of the students had a higher grade point average, but the other student was elected editor, largely in recognition of a long and important note that had appeared in the review over her name. During the following placement interview season, the student with the higher GPA was interviewed by a representative of a nationally prominent law firm. In response to the interviewer's request for information about the authorship of the law review note, the student said that he had heard that the note attributed to the law review editor was largely the work of another student. However, the student knew that the law review editor had written the note on her own. The firm told the law review editor that it would not interview her because of doubts about the authorship of the note. This greatly distressed her. In fact the note had been prepared by the law review editor without assistance from anyone else. If the law review editor asserts a claim against the other student based on defamation, she will A: recover, because the other student's statement was false. B: recover, because the other student exceeded the scope of any qualified privilege. C: not recover, because the law review editor did not prove pecuniary loss. D: not recover, because the statement was made by the other student only after the interviewer inquired about the authorship of the note.

Answer 175

B: recover, because the other student exceeded the scope of any qualified privilege. B is correct. The facts clearly indicate that the student with the higher GPA made a false statement about the law review editor. However, the fact that the statement was false is not enough to qualify for defamation. One of the goals of defamation law is to protect free speech, which means that in certain situations a person cannot be sued for a statement that is false. Here, the issue is what level of proof the law review editor needs in order to prevail in her claim, not whether the statement was merely false. The student with the higher GPA is speaking to a potential employer, within his position as a member of the law review staff. As such, he has a qualified privilege to talk about the law review editor's authorship during his job interview. However, the student with the higher GPA's qualified privilege is lost if his statement exceeds the scope of the privilege. The law review editor bears the burden of proving the other student exceeded his privilege by proving he acted with actual malice. To prove actual malice, the plaintiff must prove that the defendant acted with either: (i) knowledge that the statement was untrue, or (ii) a reckless disregard as to its truth or falsity. This is not the same as proving the statement is false. The plaintiff must prove the defendant had a subjective mental state in which he knew the statement was false or that he entertained serious doubts as to its truthfulness. Because the student with the higher GPA knew that the law review editor had written the note herself, B is the best answer. A is incorrect. Defamation is not a strict liability tort, which means that false statements alone are not always defamatory. In order to qualify as a defamatory statement, the offending statement must be unprivileged. Therefore, in some instances, a person cannot be sued for defamation when he or she makes a statement that is proved to be false. Here, the student with the higher GPA was asked to make a statement about the law review editor, his response was not defamatory because it merely turned out to be false but rather because he knew it was not true. C is incorrect. A claim for slander generally requires proof of special or pecuniary damages. However, the allegation against the law review editor is one of trade or professional misconduct and special damages are presumed. D is incorrect. The question by the interviewer triggered the qualified privilege, but the privilege is not absolute. The law review editor will still prevail if she can show that the student with the higher GPA made the statement with knowledge or in reckless disregard of its truth or falsity.

Question 176

An associate professor in the pediatrics department of a local medical school was denied tenure. He asked a national education lobbying organization to represent him in his efforts to have the tenure decision reversed. In response to a letter from the organization on the professor’s behalf, the dean of the medical school wrote to the organization explaining truthfully that the professor had been denied tenure because of reports that he had abused two of his former patients. Several months later, after a thorough investigation, the allegations were proven false, and the professor was granted tenure. He had remained working at the medical school at full pay during the tenure decision review process and thus suffered no pecuniary harm. In a suit for libel by the professor against the dean of the medical school, will the professor be likely to prevail? A: No, because the professor invited the libel. B: No, because the professor suffered no pecuniary loss. C: Yes, because the dean had a duty to investigate the rumor before repeating it. D: Yes, because the dean’s defamatory statement was in the form of a writing.

Answer 176

A: No, because the professor invited the libel. A is correct. Although the professor could offer sufficient evidence of an action for libel, the dean would be able to raise an absolute privilege of consent given that the defamatory statement was in response to the initial letter from the organization acting on the professor's behalf, followed by an authorized inquiry into the truth of the statement. B is incorrect. A showing of pecuniary loss is only relevant to the special damages required in certain slander actions. The cause of action here is libel, which has no such requirement. The professor will still lose, however, as stated above. C is incorrect. There is no general duty on a speaker to affirmatively investigate before making a statement to avoid liability for defamation. D is incorrect. The written nature of the statement only means this is a libel action, not slander. However, had the statement been oral, a slander action could have properly been brought. The professor would lose under either tort theory because, as explained above, the dean was acting under the privilege of consent.

Question 177

A newspaper published an editorial in which an editor asserted that a candidate for high political office was a user of illegal drugs. The accusation was untrue. The editor acted unreasonably in not investigating the accusation before publishing it; however, the editor honestly believed that the accusation was true. The candidate sued the editor for defamation. Is the candidate entitled to recover? A: No, because the accusation appeared in an editorial and was, therefore, merely an opinion. B: No, because the editor honestly believed that the accusation was true. C: Yes, because calling someone an illegal drug user is defamatory per se. D: Yes, because the accusation was false and was injurious to the candidate’s reputation.

Answer 177

B: No, because the editor honestly believed that the accusation was true. B is correct. In a defamation action that involves a matter of public concern - here, a claim brought by a candidate for public office - the plaintiff must establish more than mere negligence with regard to the truth or falsity of the allegedly defamatory statement of fact. The plaintiff must establish that the defendant acted with actual malice. Here, the candidate cannot establish actual malice on the part of the editor in publishing the statement because the editor honestly believed the accusation was true. A is incorrect. The assertion that the candidate used illegal drugs purported to be a statement of fact, not a statement of opinion. In this case, it is true that the candidate will not recover, but the reason is that he cannot show the actual malice required to defame a political candidate because the editor believed the statement about the candidate's drug use to be true. C is incorrect. The plaintiff in a defamation action must establish that a statement is defamatory, and accusing someone of a criminal act is indeed "defamatory per se." However, a political candidate, like a political official, must also establish that the defendant acted with actual malice, that is, that the defendant in fact knew the statement to be false or entertained serious doubts as to the truth of the statement. Here, the candidate cannot establish that essential element of his case. D is incorrect. A political candidate who brings a defamation action must establish not only that the statement was defamatory but also that the defendant acted with actual malice. As explained above, the evidence does not support a finding of actual malice in this case

Question 178

A man sued his neighbor for defamation based on the following facts: The neighbor told a friend that the man had set fire to a house in the neighborhood. The friend, who knew the man well, did not believe the neighbor's allegation, which was in fact false. The friend told the man about the neighbor's allegation. The man was very upset by the allegation, but neither the man nor the neighbor nor the friend communicated the allegation to anyone else. Should the man prevail in his lawsuit? A: No, because the friend did not believe what the neighbor had said. B: No, because the man cannot prove that he suffered pecuniary loss. C: Yes, because the man was very upset at hearing what the neighbor had said. D: Yes, because the neighbor communicated to the friend the false accusation that the man had committed a serious crime.

Answer 178

D: Yes, because the neighbor communicated to the friend the false accusation that the man had committed a serious crime. D is correct. The core of a defamation action is the communication of a defamatory statement about the plaintiff to a third party. Here, the statement was spoken rather than written, so the rules of slander apply. Often an action in slander requires that pecuniary loss be shown, but there is no such requirement where the statement accuses the plaintiff of engaging in serious criminal conduct. Arson is a crime of moral turpitude, so the neighbor's statement falls within the exception, and special harm need not be shown. A is incorrect. A successful defamation action does not depend on whether a third party actually believed the defamatory statement. It is enough that the defamatory statement was communicated to a third party. B is incorrect. The statement was spoken rather than written, so the rules of slander apply. Often an action in slander requires that pecuniary loss be shown, but there is no such requirement where the statement accuses the plaintiff of engaging in serious criminal conduct. Arson is a crime of moral turpitude, so the neighbor's statement falls within the exception. C is incorrect. Proof of emotional distress is not required to establish a cause of action for defamation, whether the action is in libel or slander. The man should prevail, but it is because the defamatory statement was communicated to a third party. Here, the statement was spoken rather than written, so the rules of slander apply. Often an action in slander requires that pecuniary loss be shown, but there is no such requirement where the statement accuses the plaintiff of engaging in serious criminal conduct. Arson is a crime of moral turpitude, so the neighbor's statement falls within the exception, and special harm need not be shown.