MBE questions Flashcards
Q 27
What are the 4 privacy torts
“CLIP”
- C: commercial appropriation
- L: false light
- I: intrusion into ones seclusion or solitude
- P: public disclosure of private facts
q 27
best defense to privacy torts
consent
trespassers
The landowner owes the same duty to anticipated trespassers as he does to discovered trespassers
The majority of states now treat anticipated trespassers on generally the same basis as discovered trespassers in terms of the duty owed them by the landowner
vicarious liability
A principal’s vicarious liability for the torts of her independent contractor does not depend on whether the principal negligently selected the contractor.
However, a broad exception WILL impose liability on the principal if the duty is nondelegable (iow: something that cannot be delegated) because of public policy considerations.
A company that owned a tract of land believed to be rich in mineral deposits contracted with a licensed excavator for the removal of soil from the property and delivery of the soil to the company’s laboratories. While one of the excavator’s trucks was on the way to the laboratory, the rear gate broke loose, dumping three tons of soil onto the highway. A motorist who was driving a short but safe distance behind the truck was unable to stop in time and collided with the soil, causing her serious injury. The rear gate had been negligently secured by one of the excavator’s employees.
If the motorist sues the company for his injuries and does not prevail, what is the most likely reason?
A The rear gate was secured by the excavator’s employee.
B The excavator had a license to transport soil on the highway.
C The company’s duty in respect to the movement of its soil on the highway was delegable.
D The transportation of soil on the highways was a common practice in the area where the accident occurred.
C The company’s duty in respect to the movement of its soil on the highway was delegable.
The general rule is that a principal will not be liable for tortious acts of its agent if the agent is an independent contractor. However, a broad exception will impose liability on the principal if the duty is nondelegable because of public policy considerations. As long as the company was not subject to a nondelegable duty, it would not be liable for the negligence of the excavator’s employee in the transportation of its soil.
(A) is not as good an answer as (C) because the fact that the accident was caused by the negligence of the independent contractor’s employee does not necessarily excuse the company from liability.
(C) supplies the additional factor that enables the company to avoid liability.
(B) is incorrect because the possession of a license by the excavator would not excuse the company from liability.
(D) is incorrect because the fact that the transportation of soil was common to the area is relevant only for a strict liability action for abnormally dangerous activities, and the transport of soil by truck is not such an activity.
contributory negligence
As a motorist was driving on a road, a driver on an intersecting road failed to see a stop sign at the intersection and crossed into the motorist’s path. The motorist would have had time to avoid the driver’s vehicle except that he was making a call on his cell phone. He slammed on the brakes as soon as he saw the driver, so the impact occurred at a low speed. The driver’s car sustained only minor damage, but the motorist’s car sustained such heavy damage that it was a total loss.
If the motorist sues the driver in a jurisdiction following traditional contributory negligence and assumption of the risk rules, what is the driver’s best defense?
A The driver’s running the stop sign was unintentional.
B The motorist was negligent in purchasing a car that would suffer heavy damage when struck at low speed.
C The motorist was contributorily negligent.
D The motorist had the last clear chance to avoid the accident.
C The motorist was contributorily negligent.
Because the motorist was not driving attentively, the motorist was contributorily negligent. Under traditional rules, plaintiff’s contributory negligence is a complete defense to negligence; i.e., it completely bars plaintiff’s right to recover.
Here the motorist is contributorily negligent because he was not paying attention to his driving. If he had been paying attention, the facts indicate that he would have had adequate time to either stop his car or swerve to avoid the driver’s vehicle.
breach/causation
A plaintiff purchased a new car manufactured by an automotive corporation. While the plaintiff was driving home from the local dealership, she stopped at a stop sign. She was struck from behind by a jeep driven by a driver who had negligently failed to stop. On impact, the plaintiff was injured when she hit her head on the front windshield. The car’s airbag should have prevented this, but the airbag was defective and failed to inflate. Assume that a state law requires all automobiles to be equipped with airbags that will prevent drivers from hitting their heads on windshields on impact.
If the plaintiff asserts a claim against the driver, will the plaintiff prevail?
A Yes, unless the corporation was negligent in the manufacture of the car that the plaintiff was driving.
B Yes, because the driver’s negligent driving was a cause in fact of the collision.
C No, because the airbag in the plaintiff’s car violated a state law.
D No, because the plaintiff would not have been injured but for the failure of the airbag.
B Yes, because the driver’s negligent driving was a cause in fact of the collision.
The plaintiff will prevail because the driver’s negligence was a cause in fact of the plaintiff’s injuries. But for the driver’s negligent act of colliding with the plaintiff’s car, the plaintiff would not have been injured, regardless of the fact that the airbag was defective. Note that there can be more than one cause in fact of an injury. (A) is incorrect because the corporation’s negligence would not qualify as an intervening act, because it occurred earlier in time than the driver’s. An intervening force comes into motion after the time of the defendant’s negligent act and combines with it to cause injury to the plaintiff. (C) is incorrect because the fact that the defective airbag violated a statute may establish a breach of duty by the corporation, but it does not relieve the driver from liability for negligence. (D) is incorrect because the “but for” test is used to establish liability in concurrent cause cases, not limit another’s liability. As stated above, there may be more than one cause in fact of an injury.
defamation
During an action for breach of contract, the defendant testified in court that she withheld shipment of the goods because the plaintiff defrauded her. The plaintiff now wishes to sue the defendant for defamation because he can establish that this testimony was false.
May the plaintiff do so?
A Yes, if he can show that the defendant acted out of malice towards the plaintiff.
B Yes, if he can show that the defendant did not believe the allegation to be true.
C No, because the accusation is absolutely privileged.
D No, if the defendant prevailed in the original action, because of the doctrine of collateral estoppel.
C No, because the accusation is absolutely privileged.
The plaintiff cannot sue the defendant in a defamation action because the accusation is absolutely privileged. All statements made by the judge, jurors, counsel, witnesses, or parties in judicial proceedings are absolutely privileged. Absolute privileges are not affected by a showing of malice, abuse, or excessive publication, unlike qualified privileges. Because the defendant was testifying in court regarding the plaintiff’s conduct, the statement is absolutely privileged regardless of its truth or falsity. It also does not matter whether the defendant was lying or testifying out of malice towards the plaintiff
vicarious liablity
Under a Dramshop Act, a tavernkeeper _________ liable to third parties who are injured by an intoxicated vendee.
May be vicariously
interference with business relations
To establish a prima facie case for interference with business relations, the following elements must be proved:
- Existence of a valid contractual relationship btwn P and a 3rd party or a valid business expectancy of plaintiff
- D’s knowledge of the relationship or expectancy
- Intentional interference by defendant that induces a breach or termination of the relationship or expectancy; and
- Damage to plaintiff.
A landowner who had owned and operated a small airport notified the electric company that he was discontinuing operations and that it should shut down the electrical current that had supplied his communications equipment. The equipment had been surrounded by a fence and signs warning of high voltage. Because the electric company had maintained a transformer next to the landowner’s communications equipment that contained many valuable and reusable parts, it decided to leave the power on to prevent theft until it could schedule removal of the transformer. Three days later, a trespasser who knew that the airport had closed went onto the property looking for something to steal. He could find nothing of value except the transformer. He noticed the signs warning of the high voltage but believed that the power had since been turned off. He scaled the fence with the intent to dismantle the transformer. As soon as he touched the transformer, he was seriously injured by the electric current.
If the trespasser asserts a claim against the electric company to recover damages for his injuries, will he prevail?
A Yes, because the electric company was not the owner of the land on which the trespasser trespassed.
B Yes, because the electric company used unreasonable force to protect its property.
C No, because the trespasser was a trespasser on the landowner’s land.
D No, because the trespasser intended to steal the electric company’s transformer.
The trespasser was threatening only the property interest of the electric company, so the use of deadly force was not be privileged.
By leaving the power (after landowner had discontinued operations on the land) on to prevent theft, the electric company was using indirect deadly force to defend its property where such force could not lawfully be directly used. Hence, it will be liable to the trespasser for his injuries.
A motorist was driving to a luncheon in a car that he knew did not have operating headlights. On the way there he was rear-ended by another driver who had been driving 20 m.p.h. over the speed limit posted on that stretch of road. He suffered personal injuries and his car was extensively damaged. The jurisdiction makes it a misdemeanor to drive a vehicle that does not have operating headlights.
If the motorist brings an action against the other driver and the above facts are established, will he prevail?
A Yes, because the other driver violated the speeding statute, but the motorist’s damages will be reduced because of his violation of the headlight statute.
B Yes, because the other driver violated the speeding statute, and the motorist’s damages will not be reduced despite his violation of the headlight statute.
C No, because the motorist’s violation of the headlight statute constitutes negligence per se.
D No, because the motorist has not established that driving 20 m.p.h. over the speed limit created an unreasonable risk of injury to others.
B Yes, because the other driver violated the speeding statute, and the motorist’s damages will not be reduced despite his violation of the headlight statute.
No excuse for violating the speeding statute is present in the facts; thus, violation of the statute establishes negligence per se.
(A) is incorrect because, while an applicable statute may establish plaintiff’s contributory negligence, the headlight statute does not apply here. Even though the statute was intended to protect drivers against cars being driven without headlights, it would be very difficult to show that it was designed to prevent rear-end collisions during the day, or that violation of the statute was a cause of the motorist’s injury.
“Actual malice” in the constitutional sense is different from malice in the sense of ill will.
Actual malice is the knowledge that the statement was false or reckless disregard as to its truth or falsity.
think of the MCQ about the chief justice and associate justice
After leaving ceremonies at which the chief justice of a state supreme court had been named distinguished jurist of the year, an associate justice was interviewed by the press. The associate justice told a reporter that the chief justice “is a senile imbecile who lets his clerks write all his opinions. He hasn’t had a lucid thought in decades, and he became a judge by being on the payroll of the mob.” Enraged, the chief justice brought an action for defamation against the associate justice.
Which of the following, if established by the chief justice in his defamation action, would permit recovery against the associate justice?
A The associate justice negligently made the statements, which were false, and caused the chief justice actual injury.
B The associate justice made the statements knowing they were false.
C The associate justice made the statements because he hated the chief justice and wished to destroy his reputation in the legal community.
D The associate justice made the statements in order to ensure that the chief justice’s political career was nipped in the bud.
B The associate justice made the statements knowing they were false.
(C) is incorrect because, even if the associate justice hated the chief justice and wanted to harm him, he would not be liable for defamation if the statements were true, since a public official such as the chief justice must prove that the statement was false. Thus, it would not be enough merely to show that the associate justice had bad motives.
(D) is essentially the same answer as (C)
A farmer kept a pet bear at his farm. The bear was very old and had no teeth, no claws, and very little energy, but people liked to see the bear when they visited the farmer because no one else in the region had a pet bear. When the farmer first obtained the bear many years ago, he had a large steel cage constructed to house the animal. The cage had an electronic lock that only opened with a security code. Even though the bear was now old and harmless, it was always kept locked in the cage. One night during a severe storm while the farmer was out of town, a bolt of lightning hit the cage and the door opened. The bear left the cage and wandered off. The next morning, a 10-year-old girl was waiting on a rural road for her school bus. The bear emerged from a wooded area about 100 feet from where the girl was standing and headed towards her. She screamed and turned to run, tripping on the road and breaking her arm when she fell.
If the girl sues the farmer on a theory of strict liability for her bodily harm, will she prevail?
A No, because the bear was in fact a nondangerous animal.
B No, because the damage she suffered was not the type of damage that a bear would normally cause.
C Yes, because the bear is a wild animal.
D Yes, because pet bears were not commonly kept in the community.
C Yes, because the bear is a wild animal.
An owner of a wild (i.e., nondomestic) animal, even one kept as a pet, will be strictly liable for the damage caused by the animal. A bear, even a very tame one, will be classified as a wild animal.
(B) is wrong because the injury the girl suffered was within the “normal dangerous propensity” of the animal. Strict liability for wild animals includes liability for the harm that results when a person is attempting to flee from what is perceived to be a dangerous animal
A backpacker came upon another hiker who had been bitten by a rattlesnake. The backpacker carried the bitten hiker back to his vehicle and drove him toward the nearest hospital. On the way there, while exceeding the posted speed limit, the backpacker lost control of his vehicle and crashed into a tree by the side of the road. He was uninjured, but the snakebitten hiker’s leg was broken. An ambulance soon arrived and took the hiker to the hospital. The emergency room physician committed malpractice that resulted in the loss of the hiker’s leg. The hiker is now suing the backpacker.
Which of the following is the most likely reason why the backpacker will be held liable for the hiker’s injuries?
A Having undertaken to rescue the hiker, the backpacker is strictly liable for injuries resulting from the rescue.
B The emergency room physician’s malpractice is a foreseeable intervening cause that does not relieve the backpacker of liability.
C The backpacker did not conduct himself as a reasonably prudent person in carrying out the rescue of the hiker.
D The backpacker committed negligence per se when he exceeded the posted speed limit.
C The backpacker did not conduct himself as a reasonably prudent person in carrying out the rescue of the hiker.
(A) is an incorrect statement of the law - a rescuer is not strictly liable for a victim’s injuries, but rather is liable only for negligent acts. (Here, the backpacker was negligent in his driving.)
(B) is an accurate statement of the law but does not take into account that the backpacker must be negligent to be liable at all.
compare with card 17, Q about dentist
A patient was scheduled to undergo nonemergency surgery for the removal of her appendix by her family doctor. The day of the surgery, the doctor was called out of town because of a family illness. Even though the surgery could be postponed, the doctor asked the surgeon on call, who was an expert in appendectomies, to take his place. The patient was not informed of the switch in doctors.
If the patient sues the surgeon on a battery theory, who will prevail?
A The patient, as long as she establishes damages at trial.
B The patient, regardless of whether she establishes damages at trial.
C The surgeon, because he was at least as qualified as the doctor.
D The surgeon, because the doctor requested that the surgeon take his place.
B The patient, regardless of whether she establishes damages at trial.
The patient can establish a prima facie case for battery regardless of whether she establishes damages at trial.
Here, the surgeon’s performing the operation would be offensive contact because it was unconsented to: The patient had selected her doctor to perform the operation and did not consent to the surgeon’s participating in the procedure.
(A) is incorrect because damages is not an element of the prima facie case for battery. Even if the patient cannot establish damages, she can obtain a judgment in her favor and at least nominal damages.
This question differs from card 17 because here there was a lack of consent to the different physician performing the procedure whereas in the other question on card 17, there was consent of to the surgery and the use of local anesthetic
compare with card 16, Q about app’y surgery
A dentist filling a child’s cavities used a newly developed local anesthetic that was more effective than Novocain. However, it carried a 1% risk of causing a serious seizure when administered to children, which the dentist did not mention to the child’s mother or note in the consent forms, which stated only that a local anesthetic would be used. The child’s dental work was completed without any problem, but the mother looked up the anesthetic on the Internet and learned about the risk. She complained to the dentist that she would not have consented to use of the anesthetic had she known of the risk, but the dentist argued that using the new anesthetic was justified in the child’s case because otherwise he would not have been willing to sit still for the dental work.
Does the mother have a cause of action on behalf of the child against the dentist?
A Yes, because a reasonable person would have considered information about the risk important.
B Yes, because the mother would not have consented to the use of the anesthetic if she had known of the risk of seizure.
C No, because the dentist used his best judgment in deciding that the benefits of using the anesthetic outweighed the risk.
D No, because the child suffered no harm from use of the anesthetic.
D No, because the child suffered no harm from use of the anesthetic.
One of the duties that doctors, dentists, and other health professionals owe their patients is the duty to provide a patient with enough information about the risks of a proposed course of treatment or surgical procedure to enable the patient to make an “informed consent” to the treatment.
If an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent to the treatment, the health care professional has breached this duty. However, breach of duty is only one element of a cause of action for negligence. The plaintiff must also establish actual and proximate cause and some damage to plaintiff’s person or property. Damage means actual harm or injury
Here, the mother consented to the surgery and use of a local anesthetic, so battery is not applicable. Further, the child’s dental work was completed without any problem and no other injury is apparent from the facts; the mother’s possible distress at not being informed of the risk is not, standing alone, a compensable injury.
This Q is different from card 16 because here there was consent to the dentistry vs the app’y surgery where there was no consent for a different doctor. While both questions are the same in the fact that neither patient suffered actual harm, the difference is the lack of consent which creates a claim for battery. There was an offensive contact which was NOT consented to.
A company manufactured parachutes that it sold exclusively to the United States Army. To meet the standards required by the Army, each parachute was subjected to a 15-point inspection by the company before it could be approved for sale. When a parachute did not pass inspection, it was stored in another section of the company’s plant. At a later time, a further inspection of the defective parachute would be made to determine whether the defects could be corrected or whether the parachute should be destroyed.
One night, the plant was burglarized through no fault of the company and a large number of parachutes, including the defective ones, were stolen. The defective parachutes eventually were sold on the black market to a member of a skydiving club who made purchases for the club. One week later, the member was using one of the parachutes when it failed to open, causing his death.
If the member’s estate brings a wrongful death action against the company on a theory of strict liability, which of the following is the company’s best defense?
A The company acted reasonably in storing the defective parachutes.
B The company did not sell or place into the stream of commerce the defective parachute.
C The member did not purchase the parachute from the company.
D The member was negligent when he purchased the parachute on the black market.
B The company did not sell or place into the stream of commerce the defective parachute.
To establish liability in a strict liability action based on a defective product, the plaintiff must prove that the defendant is a commercial supplier of the product in question and that the product is expected to be supplied to the consumer without substantial change in the condition in which it is supplied.
Here, the company produced the defective parachutes but did not place them into the stream of commerce and did not intend to do so. Thus, it is not liable to the member with regard to the defective parachutes.
(D) is incorrect. There is no indication that the member knew that the parachutes might be defective just because they were sold on the black market. Even in jurisdictions that apply their comparative negligence rules to strict products liability actions, the member’s conduct, if considered negligent, would at most reduce the estate’s recovery by a small amount.
(B) is a better choice because it totally negates the company’s liability.
An engineer licensed by the state was the principal design engineer for a wastewater treatment plant’s aeration system. Detailed recommendations for designing aeration systems for this type of plant had been published by a panel of engineers after lengthy study. The engineer fully complied with the recommendations in his design. Nevertheless, the treatment plant’s aeration system suffered a major failure, causing the release of bacteria-laden water into a river that damaged a fish hatchery run by the plaintiff.
If the plaintiff sues the engineer and prevails, what is the likely explanation?
A The engineer knew of a better design that he could have used that would have prevented the failure.
B The engineer had neglected to renew his license in a timely manner, so he did some of the design work while his license was expired, in violation of a state statute.
C The engineer was involved in an abnormally dangerous activity.
D The engineer was a member of the panel that developed the design standards.
A The engineer knew of a better design that he could have used that would have prevented the failure.
(C) is incorrect. An activity is characterized as abnormally dangerous only if it involves a substantial risk of serious harm to persons or property, even when reasonable care is exercised by all actors, and the activity is not a matter of common usage in the community. Designing an aeration system for a wastewater treatment plant would not constitute an abnormally dangerous activity under this test
A resort maintained an outside bar adjacent to its pool. When the bar was closed, it was secured by a metal gate that reached up towards the roof of the bar, but which left about a three-foot gap between the top of the gate and the roof. The resort had installed motion detectors inside the bar linked to an alarm system because of several previous thefts of liquor by persons climbing over the gate. Late one night, an intoxicated guest of the resort who wanted to keep partying after hours began to climb over the gate to get into the bar through the gap at the top, intending to take some bottles of wine.
The brackets attaching the gate to the walls, which had been gradually deteriorating and pulling away from the walls for some time, suddenly gave way as he reached the top. The gate collapsed, causing him to fall back onto the concrete patio. He sustained a severe concussion and other serious injuries. The resort is located in a jurisdiction that applies the traditional liability rules for landowners and possessors of land.
If the guest sues the resort for his injuries, is he likely to prevail?
A No, because the guest did not have invitee status when he was climbing over the gate.
B No, because the guest intended to steal alcohol belonging to the resort.
C Yes, because the resort operators were aware that persons had climbed over the gate in the past.
D Yes, because the brackets attaching the gate to the walls were in a weakened condition that could have been detected by a routine inspection.
A No, because the guest did not have invitee status when he was climbing over the gate.
In jurisdictions following the traditional landowner liability rules, the duty owed by an owner or occupier of land to those on the land depends on whether the person on the land is characterized as a trespasser, licensee, or invitee.
An invitee is one who enters onto the premises in response to an express or implied invitation from the landowner. A person loses his status as an invitee if he exceeds the scope of the invitation.
Here, the guest was an invitee while on the grounds of the resort, but he lost invitee status when he began climbing over the gate to get into the closed bar. He became a trespasser because he clearly did not have express or implied permission to climb into the bar, and a landowner owes no duty to an undiscovered trespasser.
Here, while the guest can argue that he was an anticipated trespasser because others had climbed over the gate in the past, there is no evidence that the resort knew of the dangerous condition of the brackets, so the resort has breached no duty to the guest under these facts.
(C) is incorrect because, as discussed above, the resort’s awareness of previous thefts from the bar may make the guest an anticipated trespasser rather than an undiscovered trespasser, but it does not make the resort liable to the guest under these circumstances.
(D) is incorrect because the failure to inspect or discover the dangerous condition does not make the resort liable here. The guest could argue that the resort operators should have known of the dangerous condition of the gate, but that would not establish liability here. The landowner must know of a highly dangerous artificial condition to be liable to trespassers, and nothing indicates that any resort employee knew that the gate would collapse.
In jurisdictions following the traditional landowner liability rules, the duty owed by an owner or occupier of land to those on the land depends on whether the person on the land is characterized as a trespasser, licensee, or invitee.
A trespasser is one who comes onto the land without permission or privilege.
A licensee is one who enters on the land with the landowner’s permission, express or implied, for his own purpose or business rather than the landowner’s benefit.
An invitee is one who enters onto the premises in response to an express or implied invitation from the landowner.
A strawberry farmer held his farm open to the public to pick strawberries for a fee. The farmer knew that many patrons would eat as many strawberries out in the field as they would bring home with them, so he advertised that no chemical pesticides or fertilizers were used on his strawberries. The owner of the land adjacent to the farm began operating a soap factory, a use allowed by the zoning code. Flakes of an unavoidable chemical byproduct of the soap-making process would drift over onto the farm whenever the wind was blowing in that direction and settle onto the strawberry plants. The flakes caused no harm to the plants themselves but detracted from the appearance of the strawberries as well as their taste if eaten right off the plant; consequently, the farmer’s business declined. On several occasions, the farmer complained to the factory owner, but the owner did nothing, in part because a visit to the county recorder of deeds office had convinced him that he was the true owner of a large part of the strawberry farm, although in fact it was just a recording error.
Can the farmer recover damages for the harm caused to his business from the factory owner?
A Yes, because the discharge from the owner’s factory entered the farmer’s land.
B Yes, because the factory owner intended to conduct the activities that caused the particles to fall on the farmer’s land.
C No, because the factory owner had no intent to cause harm to the farmer’s property.
D No, because the factory owner’s belief that he owned the property, although erroneous, was reasonable.
B Yes, because the factory owner intended to conduct the activities that caused the particles to fall on the farmer’s land.
Here, note that the farmer had complained to the factory owner. The factory owner continued his activity knowing with substantial certainty that the flakes would continue to fall on the farm whenever the wind was right. Thus, it can be found that the factory owner intended to bring about the trespass.
