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1

W1Q1

Donamae lived alone except for her large Persian cat, “Fluffkins,” in a single-family home in a fine subdivision in prosperous Lime County. Although Donamae had never had any problems with crime in the area, she bought a handgun to protect herself.

One night at about 11 p.m., Donamae heard a strange noise. She put on a robe, took the gun from her nightstand, and proceeded down her stairs, as her bedroom was located on the second floor of her house.

At about the same time, Donamae’s next-door neighbor, Nathaniel, also heard a strange noise. He walked out of his house and onto Donamae’s lawn, because he thought the sound came from the direction of Donamae’s abode. He stood silently on Donamae’s lawn, listening.

As Donamae reached the last step, Fluffkins playfully charged down the stairs. The 15-pound cat struck the back of Donamae’s legs, causing her to lose her balance. Although Donamae did not fall, her loss of balance caused her to drop the gun. The gun hit the floor and discharged. The bullet went through Donamae’s front window and struck Nathaniel in the shoulder.

If Nathaniel sues Donamae on a battery theory, he will:

(A) Prevail, because handguns are highly dangerous instrumentalities.
(B) Prevail, because the cat’s actions are imputed to Donamae.
*(C) Lose, because the firing of the gun was a nonvolitional act.
(D) Lose, because Nathaniel was a trespasser.

2

W1Q2

Customer, age 20, went into Store at approximately 6:45 p.m. to look at some suits that were on sale. The clerks were busy, and one of them told him that he should wait on himself. Customer selected three suits from a rack and went into the dressing room to try them on. Signs posted on the walls of the Store state that closing time is 9 p.m.; however, because of a special awards banquet for employees, Store was closed at 7 p.m. on this day. The employees, in a hurry to get to the banquet, did not check the dressing rooms or turn off the lights before leaving. When Customer emerged from the dressing room a few minutes after 7 p.m., he was alone and locked in. Customer tried the front door but it was secured on the outside by a bar and padlock, so he went to the rear door. Customer grabbed the doorknob and vigorously shook the door. It did not open, but the activity set off a mechanism that had been installed because of several recent thefts committed by persons who had hidden in the store until after closing time. The mechanism sprayed a chemical mist in Customer’s face, causing him to become temporarily blind. The mechanism also activated an alarm carried by Store’s employee, Watchman, who was just coming to work. Watchman unlocked the front door, ran into the store, and grabbed Customer. Customer, who was still unable to see, struck out at this person and hit a metal rack, injuring his hand. Watchman then identified himself, and Customer did the same. After assuring himself that Customer was telling the truth, Watchman allowed him to leave.

If Customer is to prevail on a claim against Store based on battery from the use of the chemical spray, Customer must establish that:

(A) He suffered severe bodily harm.
*(B) The spray mist was an offensive or harmful contact.
(C) He suffered severe emotional distress.
(D) His conduct was not a factual cause of the chemical’s spraying him.

3

W1Q3

Paine and Duncan were playing tennis. Duncan became highly irritated because every time Duncan prepared to serve, Paine started talking loudly. Paine’s loud talk distracted Duncan from his game, and Duncan usually faulted on his serves. Duncan told Paine to “cut it out,” but Paine persisted in the behavior.

Standing several feet away, Duncan swung his tennis racket toward Paine’s head. However, Duncan slipped as he swung the racket and it flew out of his hand as he lost his balance. The racket flew through the air and struck Paine in the head.

Has Paine grounds for a battery action against Duncan?

*(A) Yes, if Duncan intended to create a reasonable apprehension in Paine.
(B) Yes, because the racket struck Paine.
(C) No, because Duncan did not intend the racket to strike Paine.
(D) No, but only if Duncan can prove that the owner of the tennis court had not maintained the court properly and this caused Duncan to slip.

4

W1Q4

Antoinette and Babette were high school classmates. After school, they went together to “Le Soda Shoppe,” a short-order restaurant popular with students. Antoinette and Babette were seated in a booth near the front of the restaurant and were heavily engaged in conversation when Doug, another classmate, sat down at the booth immediately adjacent to theirs. Doug had a “crush” on Babette and wanted to scare her slightly to draw attention to himself. Therefore, he shot a spitball from his straw toward Babette, who was seated with her back toward him. Doug’s shot went astray and struck Antoinette in the eye, causing her to suffer corneal damage.

If Antoinette sues Doug, she can recover for:

(A) Assault.
*(B) Battery.
(C) Intentional infliction of emotional distress.
(D) Nothing, because Doug did not intend to harm her.

5

W1Q5

During the Miss Metropolis competition, the judges announced that Wilma was first runner-up and that Kerry was the winner. As the auditorium quieted for Kerry’s acceptance remarks, Wilma said loudly, “You only won because you slept with all of the judges, you slut!” Kerry immediately slapped Wilma forcefully in the face.

Wilma brings an action for battery against Kerry. Who will prevail?

(A) Kerry, because she was provoked by Wilma’s comment.
(B) Kerry, because a reasonable person would have slapped Wilma under the circumstances.
(C) Wilma, unless Kerry’s slap was totally spontaneous.
*(D) Wilma, because Kerry intentionally caused an offensive touching.

6

W1Q6

Paola and Dixon, who are otherwise unacquainted, happened to be riding the same crowded city bus during the evening rush hour. Neither Paola nor Dixon was able to find a seat, and they, along with about 15 other persons, were riding the bus as standees. When the bus braked suddenly, the standing passengers were thrown together, and Paola, who was wearing very high-heeled shoes, began to stumble. Dixon tried to keep Paola from falling, and in doing so he placed his arm around Paola’s waist.

If Paola sues Dixon for battery, will she recover?

(A) Yes, if Dixon intended to put his arm around Paola’s waist.
(B) Yes, because Dixon touched Paola without her permission.
(C) No, but only if Dixon put his arm around Paola’s waist by accident.
*(D) No, because Dixon’s conduct was socially acceptable.

7

W1Q7/Q8

When Denton heard that his neighbor, Prout, intended to sell his home to a minority purchaser, Denton told Prout that Prout and his wife and children would meet with “accidents” if he did so. Prout then called the prospective purchaser and told him that he was taking the house off the market.

7. If Prout asserts a claim against Denton for assault, Prout will:

(A) Recover if Denton intended to place Prout in fear of physical harm.
(B) Recover, because Denton’s conduct was extreme and outrageous.
*(C) Not recover if Denton took no action that threatened immediate physical harm to Prout.
(D) Not recover, because Prout’s action removed any threat of harmful force.

8. If Prout asserts a claim against Denton for intentional infliction of emotional distress, Prout will:

*(A) Recover if Prout suffered severe emotional distress as a consequence of Denton’s conduct.
(B) Recover, because Denton intended to frighten Prout.
(C) Not recover, because Denton made no threat of immediate physical harm to Prout or his family.
(D) Not recover if Prout suffered no physical harm as a consequence of Denton’s conduct.

8

W2Q1

Gilda Gammaray, a precocious student at Northcentral High School, was an “A” student in her chemistry class and was interested in developing a Science Fair project in the area of chemistry. She was inspired by an experiment conducted in class in which the teacher had the students mix three chemicals together to create a gas that caused the faces of the students to become grossly distorted. Gilda obtained an ample supply of the three chemicals and went to an abandoned building located on a street that had heavy pedestrian traffic. She mixed together the chemicals, and the fumes passed across the sidewalk, causing the pedestrians’ faces to become grossly distorted, as if they suffered from physical defects. The effect of the gas was temporary and none of the pedestrians suffered any permanent damage. One of the pedestrians exposed to the gas was Parker.

If Parker wants to sue Gilda, which of the following best describes the tort she has committed against him?

(A) Assault.
(B) Battery.
(C) Intentional infliction of emotional distress.
(D) Invasion of privacy.

9

W2Q2

During a trip to Vail, Colorado, Polly’s ankle was injured in a skiing mishap. Upon her return to Biggston, her hometown, she consulted Dr. Ace, an orthopedic specialist with staff privileges at Sawbones Hospital. Ace told her that the injury would require a relatively simple operation to assure that she would not walk with a pronounced limp in the future. Ace was known in the community as a highly skilled and respected orthopedic specialist, and Polly agreed to the operation. Upon her admission to Sawbones Hospital, Polly signed the standard consent forms and liability waivers releasing Dr. Ace, Dr. Baker (the anesthesiologist), Dr. Chase (the assistant surgeon), and the surgical nursing staff. Two hours before the operation was scheduled to be performed, one of Ace’s patients was brought into the emergency room with numerous orthopedic injuries that required immediate attention. Dr. Ace quickly called Dr. Deuce and asked him to perform Polly’s operation. Dr. Deuce was, like Dr. Ace, a highly skilled orthopedic specialist with wide respect in the community. When Dr. Deuce arrived at the hospital, Polly was already sedated. He performed the operation with his usual skill. The operation was a complete success and no complications occurred. However, when Polly discovered that she had been operated on by Deuce rather than Ace, she became upset and consulted an attorney.

The attorney should advise Polly that if she sues Deuce for battery, the likely result is:

(A) Polly will win, but she may be entitled only to nominal damages.
(B) Polly will win, unless a reasonable person similarly situated would have consented to the operation.
(C) Polly will lose, because Deuce performed the operation competently.
(D) Polly will lose, because she suffered no harm.

10

W2Q3

Bradley went to the local lumberyard late one Saturday afternoon to purchase some sheets of plywood. Hopson, a salesman for the lumberyard, escorted Bradley to the back end of the lot where the plywood was stored. While Bradley and Hopson were looking over the sheets of plywood, the custodian closed and locked the only gate out of the lumberyard, since it was closing time and he believed that all employees had gone home. The storage area of the lumberyard is surrounded by a 12-foot-high chain link fence. Bradley and Hopson soon discovered that they had been locked in the lumberyard. Since the storage area was located at the back of the property owned by the lumberyard, there was very little chance that they would be seen on the premises. Hopson informed Bradley that since the lumberyard was closed on Sunday, no one would be back to let them out until Monday morning. Hopson went into a small shed in the lumberyard to wait until help would come. However, Bradley, panicking at the thought of being trapped on the lumberyard property until Monday morning, tried to climb over the fence and in doing so, fell and was injured. Bradley asserted a claim against the lumberyard for damages for his injuries.

If Bradley’s claim is based on false imprisonment, will Bradley prevail?

(A) Yes, because he was harmed as a result of his confinement.
(B) Yes, because he was confined against his will.
(C) No, unless the custodian knew that someone was in the lot at the time he locked the gate.
(D) No, unless the custodian was negligent in locking the gate.

11

W2Q4

At home one January night, Scott heard something bang against the bay window in the room where he was reading the newspaper. When he heard another louder bang, he put down the paper and looked out the window. He saw eleven-year-old Roman, the neighborhood bully, out back packing a large snowball. Fearful that Roman would break the window, Scott went out the front door and walked around to the back. When Roman saw him, Scott said, “I want to talk to you, Roman.” Roman ran in the other direction and jumped over the fence belonging to Scott’s neighbor Tim. Tim had recently purchased a dangerous Rottweiler as a guard dog. Because it was dark, Roman landed on a birdbath, knocked it over, and woke up the dog. The Rottweiler attacked Roman, who received severe lacerations and suffered permanent scarring as a result.

Tim brings an action against Scott for trespass. If Scott prevails, it will most likely be because:

(A) Scott confronted Roman in order to defend his property.
(B) Scott did not enter onto Tim’s land.
(C) Roman was the one who made the decision to jump over the fence.
(D) Scott did not intend to frighten Roman onto Tim’s property.

12

W2Q5/Q6

Bill was walking along an unpaved road on his way to work. Suddenly, a school bus coming in the opposite direction began to careen toward him. This was due to the fact that the bus driver, Wally, had momentarily lost control of the bus while attempting to light a cigarette.
To avoid being hit by the bus, Bill jumped off the road into Carol’s yard. Unfortunately, he landed in a bed of prize-winning zinnias and damaged them extensively.

5. In a suit by Carol against Bill for the damage to her zinnias:

(A) Bill is liable for any damage because he had no privilege to enter upon Carol’s land.
(B) Whether Bill is liable depends on whether he was exercising due care.
(C) Bill may be held liable for damage to the zinnias.
(D) Bill is not liable for any damage to the zinnias because his entry was privileged.

6. In a suit by Carol against Wally, the bus driver, for the damages to her zinnias:

(A) Wally is liable for trespass because his driving caused Bill to enter onto Carol’s land and
damage her zinnias.
(B) Wally is liable on the theory of negligence.
(C) Wally is not liable because Carol’s zinnias were not within the scope of any duty he owed in operating a bus on a public road.
(D) If Wally is held liable on any theory, he is entitled to indemnity from Bill, who did the damage.

13

W2Q7

Adam drove into the parking lot of Bank and was about to pull into an empty spot when Ben cut in front of him with his automobile and took his parking place. Adam and Ben each got out of his car and Adam started to yell at Ben. After a heated argument, a fight broke out between them. Calib came out of the bank at that moment and saw that Adam was getting the better of Ben in the fight. Calib ran to his car, took a gun from the glove compartment, pointed it at Adam and said, “Stop this minute or I’ll shoot.”

If Adam asserts a claim against Calib based on assault, who will prevail?

(A) Adam, because Calib threatened him with deadly force.
(B) Adam, because Calib was unaware of who was the aggressor.
(C) Calib, because Adam was the original aggressor by starting the fight with Ben.
(D) Calib, if it was apparent that Adam was about to inflict serious bodily harm to Ben.

14

W3Q1/Q2

As soon as Wanda moved into her new house, she went to the local animal shelter and selected two dogs to keep her company. The dogs were housebroken but barked constantly at birds and squirrels in the yard. Their barking was particularly incessant during the day, while Wanda was at work. Morlock, who lived next door and worked nights, was aggravated by the constant barking, which disturbed his sleep, and decided to let Wanda know how he felt. One evening, upon learning that Wanda was entertaining her boss and several clients, Morlock came to her front door with a tape recorder and an electrically amplified bullhorn. He started playing a tape of the dogs barking, putting it at full volume and amplifying it with the bullhorn. When Wanda came to the door, he began yelling at her through the bullhorn and berating her in front of her guests for having no consideration for her neighbors. Wanda, very upset, slammed the door shut. The door struck the bullhorn and jammed it against Morlock’s face, knocking out two of his teeth.

1. If Wanda asserts a claim based on intentional infliction of emotional distress against Morlock, what will be the probable result?

*(A) Wanda will prevail, because Morlock’s conduct was extreme and outrageous.
(B) Wanda will prevail if she suffered pecuniary harm from Morlock’s conduct.
(C) Morlock will prevail, because Wanda suffered no physical harm.
(D) Morlock will prevail if the barking from Wanda’s dogs constituted a nuisance.

2. If Morlock asserts a claim based on battery against Wanda, will Morlock prevail?

(A) Yes, unless Wanda did not foresee that the bullhorn would knock out Morlock’s teeth.
*(B) Yes, if Wanda knew that the door was substantially certain to strike the bullhorn.
(C) No, because Wanda was entitled to use force to protect herself.
(D) No, if Morlock’s conduct provoked Wanda’s response.

15

W3Q3/Q4

Peter was rowing a boat on a mountain lake when a storm suddenly arose. Fearful that the boat might sink, Peter rowed to a boat dock on shore and tied the boat to the dock. The shore property and dock were the private property of Owner.

While the boat was tied at the dock, Owner came down and ordered Peter to remove the boat because the action of the waves was causing the boat to rub against a bumper on the dock. When Peter refused, Owner untied the boat and cast it adrift. The boat sank.

3. A necessary element in determining if Peter is liable for a trespass is whether:

(A) Owner had clearly posted his property with a sign indicating that it was private property.
(B) Peter knew that the property belonged to a private person.
(C) Peter had reasonable grounds to believe the property belonged to a private person.
*(D) Peter had reasonable grounds to believe his boat might be swamped and might sink.

4. If Peter asserts a claim against Owner for loss of the boat, the most likely result is that Owner will:

*(A) Have no defense under the circumstances.
(B) Prevail, because Peter was a trespasser ab initio.
(C) Prevail, because the boat might have damaged the dock.
(D) Prevail, because Peter became a trespasser when he refused to remove the boat.

16

W3Q5/Q6

Danny is a 10-year-old, and although his parents make sure he is home by 10 p.m. during the school week, they do not really enforce any sort of curfew on their son during the weekend. One Saturday night, when Danny’s parents went to bed at midnight, Danny was still out. About 2 a.m., Danny and two other children were arrested by the police and convicted of breaking the windows and causing other damage to Bernadette’s automobile.

5. In a suit by Bernadette against Danny for the damages he caused to her automobile, Bernadette should:

(A) Prevail, because Danny, at the age of 10, should have been aware of the consequences of his action.
*(B) Prevail, because Danny deliberately damaged her car.
(C) Not prevail, because Danny is presumed to be under the care of his parents and, therefore, is not legally responsible for his tortious conduct.
(D) Not prevail, unless she can show that Danny was mature enough to be aware of the consequences of his action.

6. Assume that the jurisdiction has no statute regarding parental liability. In a suit by Bernadette against Danny’s parents for the damages caused to her automobile, Bernadette should:

(A) Prevail, because a minor’s parents are vicariously liable anytime the minor commits a tortious act.
(B) Prevail, because Danny’s parents did not ensure that Danny was home at a reasonable hour.
*(C) Not prevail, unless she can show that Danny’s parents were aware that Danny has done this sort of act before.
(D) Not prevail, because there is no reason to assume that Danny’s parents could know that Danny might damage Bernadette’s automobile.

17

W3Q7

Mildred Minor was a three-year-old child attending nursery school. Tom Tease, who attended the same nursery school, teased Mildred every day because she wore glasses. One day when Tom’s teasing was particularly vicious, Mildred slugged Tom in the face, knocking out his two newly acquired front teeth.

If Tom’s parents sue Mildred’s parents for damage to Tom’s teeth, the best defense would be:

(A) Tom was the initial aggressor.
(B) Mildred is too young to be responsible for her actions.
(C) A parent cannot be liable for damages due to the child’s conduct.
*(D) They were unaware of any potentially violent behavior by Mildred.

18

W3Q8

When Nancy was jogging along a road by the beach, Al pulled out of the alley and hit her with his car, injuring her. There was a stop sign at the end of the alley, but Al had failed to see it and stop.

If Nancy sues Al, on the basis of which standard of care will Al be judged?

(A) Strict liability, because an automobile is an inherently dangerous instrument.
(B) That of a reasonable and prudent person under the facts of this situation.
*(C) The standard set by the traffic ordinance, unless Al is excused from following its requirements.
(D) The doctrine of res ipsa loquitur, because it can be presumed that nobody would fail to stop at a stop sign in the absence of negligence.

19

W4Q1

A city ordinance required that all dogs be leashed when taken outside of an enclosed area. Bee often allowed her dog, Bop, to run loose in front of Bee’s house. One day, when Bop was running loose, Dina was driving her car up the street in front of Bee’s house. The day was clear and sunny and Dina was driving carefully at a speed somewhat below the posted limit. Bop dashed out into the street from between two parked cars. Dina alertly applied her brakes, but could not avoid striking Bop. Pris, driving another vehicle behind Dina, promptly applied her brakes as soon as she saw the red lights glow on the rear of Dina’s vehicle. However, Pris’s vehicle struck the rear of Dina’s vehicle. Both of the vehicles suffered damage and both drivers suffered minor injuries which required x-rays and other medical attention.

If Pris sues Dina for her vehicle damage and personal injuries, Pris will:

(A) Prevail, because the ordinance was designed to prevent dogs from being hit by cars.
(B) Prevail, because Dina was a proximate cause of the accident.
(C) Not prevail, because Dina obeyed the traffic laws.
*(D) Not prevail, unless Dina herself was negligent.

20

W4Q2


Dieter and Freya were recently engaged to be married. They went to “Katzenjammer,” a popular local nightclub, to celebrate their engagement.

While at Katzenjammer, they met their friend, Ingrid, who joined them at their table. Although Freya and Ingrid had several drinks, Dieter drank very moderately, telling the waiter, “I have to drive.” Freya asked Dieter to give Ingrid a ride home and he readily agreed. A statute in the jurisdiction makes it an offense to drive a vehicle on any public road in the state without a valid driver’s license. Dieter’s license recently expired, but he was too busy with wedding plans to go to the local branch of the State Department of Motor Vehicles to renew the license. The trio left Katzenjammer and they entered Dieter’s car. Dieter and Freya sat in the front seat, while Ingrid sat in back. Dieter began driving on what he felt was the best route to Ingrid’s house. Ingrid told Dieter that he was going the wrong way. Dieter disagreed. Ingrid became more insistent and began yelling at Dieter. Freya agreed with Ingrid and impulsively grabbed the steering wheel. The car swerved and struck Pike, a pedestrian, injuring Pike.

If Pike sues Dieter, who will prevail?

(A) Pike, because Dieter violated a statute by driving without a valid license.
(B) Pike, because Dieter failed to control his passenger, Freya.
(C) Dieter, because Dieter did not start the argument.
*(D) Dieter, because Freya’s action was the proximate cause of the injury.

21

W4Q3

Howard looked out his front window one day and saw Rex standing on a narrow ledge on the second story of the house across the street. He also saw a ladder lying on the ground beneath where Rex was stranded. Howard ran out and picked up the ladder and placed it against the side of the house. However, he set it atop a patch of ice. As Rex started down the ladder, a rotten rung broke and Rex fell to the ground and was injured.

If Rex sues Howard for damages for his injuries, will he recover?

(A) Yes, because Howard’s action caused the injury to Rex.
(B) Yes, because Howard assumed the duty of aiding Rex.
(C) Yes, because it was foreseeable that Rex would be injured as a result of Howard’s negligent conduct.
*(D) No, because Howard’s negligence did not cause the injury to Rex.

22

W4Q4

Since his recent divorce, Stanley had been feeling very despondent. He drove out into the country, parked his car in an isolated area, and channeled the exhaust inside the car. Stanley got back in the car, rolled up the windows, and left the engine running, hoping that carbon monoxide would put him out of his misery.

Meanwhile, Blanche, a jogger, happened to be taking a run in the country and came upon Stanley’s car. She saw a hose going into the trunk from the exhaust pipe and concluded that perhaps someone was trying to commit suicide. She looked through the windshield and saw Stanley passed out on the front seat. She tried to open the car doors, but finding them locked, she broke a window to get into the car and cut her hand badly in the process. Stanley was hospitalized for the effects of the gas and Blanche’s hand required surgery to repair damaged tendons.

Is Stanley liable to Blanche for her injuries?

*(A) Yes, because it was foreseeable that someone would try to rescue him.
(B) Yes, because she saved his life.
(C) No, because she did not place him in peril.
(D) No, because she was a volunteer.

23

W4Q5/Q6

Aerodrome, Inc., operates a private airfield for general aviation aircraft. In connection with an expansion of its facilities, extensive excavation work was being done next to the landing field, resulting in large mounds of earth next to the excavations. The chain link fence surrounding the airfield had been removed in one location to permit entry of very large earth- moving equipment, and a makeshift barrier was erected of wooden traffic barricades. Several children from a nearby residential area, ranging in age from seven to nine, discovered the easily bypassable wooden barricades and began playing “king of the mountain” and other games on the huge mounds of earth after the airfield was closed in the evening. Aerodrome was aware of this activity.

One evening, Luke was flying his small, single-engine airplane on a cross-country flight and passed near the Aerodrome airfield. Due to a defect in the electrical system of the aircraft, which was not discovered by professional aircraft mechanics at Luke’s home field when they inspected the plane and certified it operable, Luke was forced to seek an emergency landing area, and, as had occasionally been done by pilots in similar circumstances, glided toward the Aerodrome field. The electrical system defect rendered the aircraft very difficult to control, and as Luke made his landing he was unable to avoid striking and injuring Sally, who had been pushed onto the landing field during a game of “king of the mountain” on the mounds. If the electrical system defect had been discovered and remedied, in addition to probably not having to have made an emergency landing, Luke would have been able to avoid Sally.

5. If Sally brings an action for personal injuries against Luke, what is Luke’s best defense?

(A) He did not act willfully and wantonly.
(B) He could not reasonably foresee that he would have to make an emergency landing.
*(C) He used reasonable care in the maintenance of his aircraft.
(D) His conduct was not the cause in fact of the injury to Sally.

6. If Sally brings an action against the aircraft mechanics who certified Luke’s plane as operable, what will be the probable outcome?

(A) Judgment for the mechanics, because Sally was legally a bystander.
(B) Judgment for the mechanics, because Aerodrome’s negligence was an independent, superseding cause.
*(C) Judgment for Sally, if the mechanics were negligent in inspecting the airplane.
(D) Judgment for Sally, because the mechanics were strictly liable in tort.

24

W4Q7

Greg was a seven-year-old boy who often came onto Mr. Smith’s property to play with Mr. Smith’s dog. Mr. Smith was aware that this occurred. When Mr. Smith decided to put in a swimming pool, a couple of large pieces of equipment were left in his backyard overnight by Jones Corp., the construction company. The equipment was not owned by Jones Corp. but was leased from Brown Co., which was responsible for its repair and maintenance. After the workers had left, Greg came onto the Smith property to play. Eventually, he climbed up on one of the pieces of equipment, which had no safety locking device on the ignition, and began pushing buttons and moving levers. The engine started and the equipment began to move. Greg became frightened and jumped off, falling into the hole that had been dug that day, and was injured. Greg’s parents brought suit against both Jones Corp. and Brown Co. but not against Mr. Smith. The jury found the defendants jointly and severally liable for Greg’s injuries in the amount of $6,000.

Which of the following is a correct statement of the defendants’ liability?

*(A) Both defendants would be liable for the full amount.
(B) The defendants would be liable for damages based upon their relative fault.
(C) Each defendant would be liable for $3,000.
(D) Greg could recover $6,000 from each defendant.

25

W5Q1

Clark, age 14, was the youngest licensed pilot in the state. The state had no law restricting the age at which a person could receive a pilot’s license. One Saturday, Clark told his friends on the football team that he would fly over the field close to the ground during the game that day. The weather that day was quite foggy and pilots were being advised to fly only if necessary. Clark considered the flight necessary, as he did not want to disappoint his friends, but he did decide to keep his air time to a minimum. He buzzed the football field and returned to the airport. However, in landing, he ran off the runway due to the fog and damaged Lex’s airplane, which was in the parking area.

If Lex sues Clark for damage to his airplane and prevails, it will be because:

*(A) A reasonable pilot would not have flown that day.
(B) A pilot with Clark’s age, education, and experience would not have flown that day.
(C) It was not necessary for Clark to fly that day.
(D) Flying a plane by a 14-year-old is an inherently dangerous activity, and Clark is strictly liable for the damage.

26

W5Q2

Sherm owned and operated a large hunting lodge in the hills of an arid western state. Northwest of his property was a private lodge owned by Governor Grafton and used by his family. Southwest of Sherm’s property was a lumber mill owned by the Redwood Pulp Company. After a particularly arid summer in that region, the danger of forest fires was acute. One evening, Governor Grafton’s son was having a party at his family’s lodge with some of his friends. At the end of the night he failed to properly extinguish a bonfire that he and his friends had built. Within a few hours, wind-blown cinders had spread the fire to the trees east of the lodge. At the same time several miles away, a Redwood worker was making emergency repairs to a pipe running between two mill buildings. He did not notice some of the sparks from his welding torch land in a pile of dried lumber and catch fire, and he failed to check the area after he was finished. By the time the fire was noticed by another employee, it was out of control. The wind blew both fires toward Sherm’s hunting lodge. They merged a mile away and shortly thereafter totally consumed the lodge. Either fire alone would have destroyed the lodge as well.

Sherm, who had been engaging in some low-key lobbying of the governor to persuade him to sign a bill opening up a nearby state forest for hunting, did not bring a lawsuit against the governor or his son. He did, however, file a lawsuit against Redwood, alleging that its employee’s negligence caused the destruction of his lodge. The state in which Sherm is located follows the traditional rules regarding joint tortfeasors.

Can Sherm recover from Redwood?

(A) No, because Sherm’s lodge would have been destroyed regardless of the conduct of Redwood’s employee.
(B) No, because the damage is indivisible and cannot be apportioned unless Sherm adds the other tortfeasor to the lawsuit.
*(C) Yes, because the negligence of Redwood’s employee was a cause of Sherm’s injury.
(D) Yes, but Sherm can recover only 50% of his damages from Redwood.

27

W5Q3

Phil, an avid skier, was spending the day at Default Mountain Ski Resort. On his second ride up one of the chair lifts, both skiers on the chair in front of him fell while disembarking. The employee of Default who was operating the chair lift was not paying attention, however, and did not shut off the lift. When Phil came to the top, he tried to jump off to the side to avoid hitting the skiers on the ground in front of him. He was knocked off balance by the chair and fell off a ledge of icy snow, fracturing his leg in several places. Ski patrol personnel came to Phil’s aid and carefully placed him on a stretcher, which they then hooked up to a snowmobile to bring him down the mountain along the edge of a ski trail. Midway down, Dan, a skier of moderate skill, decided to show off by seeing how close he could come to the stretcher without hitting it. He lost control, however, and landed on top of Phil’s leg, damaging it further. As a result, Phil’s leg was permanently disabled and he had to give up his career as a ballet dancer.

Phil filed a lawsuit against Dan and Default to recover damages for his disability and loss of future earnings. The jurisdiction has adopted a comparative contribution system in joint and several liability cases. At trial, Phil’s physician testified that neither injury, by itself, would have left his leg permanently disabled but that it was impossible to quantify how much each injury contributed to the disability. The jury determined that the damages from Phil’s permanent disability equaled $2 million, and that Dan and Default were each 50% at fault.

What amount of damages can Phil recover from Dan for his permanent disability?

(A) $1 million, because the jurisdiction follows comparative contribution rules.
(B) Nothing for his permanent disability, because Phil has not met his burden of proof as to the amount of damages that Dan caused.
*(C) $2 million, because it was not possible to identify the portion of the injury that Dan caused.
(D) Nothing for his permanent disability, because the injury inflicted by Dan, by itself, would not have caused the disability.

28

W5Q4

Delco was the owner and manager of a large office building. It contracted its elevator maintenance to Plastico, an elevator repair company that did not have a good reputation for safety. One of Plastico’s employees incorrectly set a switch while repairing an elevator. As a result, the elevator dropped suddenly when Ira, an office worker in the building, used it the next day.
Ira sued Plastico in a jurisdiction that has adopted comparative contribution rules but has retained joint and several liability. The trier of fact determined that Plastico was 70% at fault and Delco was 30% at fault in causing Ira’s damages. After Ira had obtained a full recovery of his damages from Plastico, Plastico sued Delco to obtain reimbursement for the damages it paid to Ira.

Plastico should recover from Delco:

(A) All of the damages through indemnity because Delco owed a nondelegable duty to occupants of its building.
(B) None of the damages because Plastico was more at fault for Ira’s injury than Delco.
*(C) 30% of the total damages because Delco is jointly liable for the injury to Ira.
(D) 50% of the total damages because joint tortfeasors are liable for contribution in equal shares.

29

W5Q5

Panda was riding his bicycle up Spruce Street, when a car negligently driven by Alma struck Panda’s bike. Panda fell from the bike and broke his right ankle. Alma immediately stopped her car and went to Panda’s assistance. Panda was lying in the middle of the street in intense pain. Alma got Panda to his feet. Because of the pain in his right ankle, he relieved the weight by putting his right arm around Alma’s shoulder, and proceeded toward the curb using his left leg and the support provided by Alma. As they were moving toward the curb, a car negligently driven by Baker struck Panda in the left leg. Panda was hospitalized. The right ankle was splinted and eventually healed well. However, complications developed in his shattered left leg and it had to be amputated.

If Panda consults an attorney about suing Alma and/or Baker in a jurisdiction following the traditional rules for joint and several liability and contribution, which of the following statements would be correct statements of the law as applied to these facts?

I. Panda can recover from either Alma or Baker for all of his injuries as they are jointly and severally liable.

II. Panda can recover from Alma for the injury to his right ankle only and can recover from Baker for injury to his left leg only.

III. Panda can recover from either Alma or Baker for injury to the left leg and can recover from Alma only for injury to the right ankle.

IV. If Panda recovers from Alma for all the injuries, Alma will have contribution rights against Baker.

(A) I. and IV.
(B) Only II.
*(C) III. and IV.
(D) Only I.

30

W5Q6

Parker was enjoying a steak in a local restaurant when he started to choke. A waiter saw that Dr. Macmillan was sitting at a nearby table and the waiter ran over to her to ask her to help him save Parker. Dr. Macmillan stood up and told the waiter that she did not want to become involved, and she left the restaurant. Soon afterwards, the paramedics arrived and they were able to save Parker’s life. Unfortunately, he suffered brain damage due to lack of oxygen.

Parker brings a suit against Dr. Macmillan seeking damages for his injuries. Parker’s medical expert testified that had Parker received prompt medical attention there would have been no injuries at all. Can Parker recover damages from Dr. Macmillan?

(A) Yes, if the jurisdiction in which this accident occurred had a statute relieving doctors from malpractice claims when they give emergency first aid.
(B) Yes, if a reasonable doctor in Dr. Macmillan’s position would have rendered first aid.
*(C) No, because Dr. Macmillan was not responsible for Parker’s condition.
(D) No, unless it can be shown that Dr. Macmillan knew that Parker was substantially certain to suffer injury unless he received medical assistance from a doctor.