Torts

Question 1

Child swings bat at person, misses, and hits third party. What can the person sue for?

Answer 1

Assault. Children liable for intentional torts.

Question 2

Patient operated by a doctor who performs a successful surgery on another part of body. Tort?

Answer 2

Battery - no consent, even if surgery is successful

Question 3

Several people involved in fight in which A is hurt and sues all the people. Can A recover for damages if he was not the first aggressor?

Answer 3

No, does matter. Need concerted action to impose liability on all the people in the fight.

Question 4

B intends to keep A in room and physically blocks A in room. A escapes. What can A sue B for?

Answer 4

False imprisonment. Short time is immaterial.

Question 5

Patient operated by a doctor who performs a successful surgery on another part of body. Can patient recover nominal damages for negligence?

Answer 5

No. Nominal damages not available for negligence need actual damages.

Can sue for battery and recover nominal damages.

Question 6

B is a noisy neighbor and tells A that he will cut her throat if A calls the police. Is physical harm needed for an intentional infliction of emotional distress?

Answer 6

No. For conduct that is extreme and outrageous it is intentional and no physical harm needed.

Question 7

A enters B’s land to avoid a fire and damages fence. Will B be successful in a claim?

Answer 7

Yes. Private necessity is a defense to trespass. Still liable for damages caused by trespass.

Question 8

A mistakenly takes an item of B believing it to be his. The item is stolen. Can B bring an action against A?

Answer 8

Yes. Conversion. Intend to take item is irrelevant. Action of substantial interference is required.

Thief by another does not relieve A of liability.

Question 9

B is a teenager with 10% vision in one eye. B fails to see A and hits A. If A prevails against B it is because?

Answer 9

B failed to exercise care a person with B’s disability would have exercised.

Question 10

B drives car into A and breaks A’s leg. B tries to help. B goes to get help but forgets. A develops pneumonia. What can A recover against if B is not negligent?

Answer 10

Pneumonia only not for the broken leg. B’s action placed A in peril and has a duty to act even if not negligent.

Question 11

10 year old trespasser is swept away by a river. Can trespasser sue landowner?

Answer 11

No. No duty of landowner to warn trespasser of natural condition.

Child status does not matter.

Question 12

19 year old trespasser is swept away by a river. Can trespasser sue landowner?

Answer 12

No. No duty of landowner to warn trespasser of natural condition.

Question 13

10 year old niece steps in an obscured animal hole and breaks leg. Landowner knows of the animal hole. Can niece sue landowner?

Answer 13

Yes. A duty to warn licensee (social guest) of a natural condition of which landowner is aware.

Question 14

Under pure comparative negligence, A is 60% at fault, B is 30% at fault, and C is 10% at fault. What can A recover from C?

Answer 14

40% if the jurisdiction has joint and several liability.

Question 15

7 year old child enters land and falls into abandoned mine shaft. Landowner removed warning signs. Child was not attracted onto land. Can child sue landowner?

Answer 15

Yes. Attractive nuisance doctrine requires child to be injured by dangerous artificial condition. No need to be attracted onto land.

Question 16

Under contributory negligence what must plaintiff show to recover even if they were also partially negligent?

Answer 16

Defendant’s conduct was wanton and reckless. Example: drinking before hunting.

Question 17

Under contributory negligence, A is 60% at fault, B is 30% at fault, and C is 10% at fault. What can A recover from C?

Answer 17

Nothing.

Question 18

Several people, who do not know each other, are involved in fight in which A is hurt and sues all the people. A does not know who hit him. Can A recover for damages?

Answer 18

No, cannot prove that they acted in concert.

Concerted action creates joint and several liability.

Question 20

What is the best defense for manufacturer in a negligent product liability?

Answer 20

No reports of prior accidents. Plaintiff needs to show manufacturer knew or should have known of danger product.

Question 21

Parent is in a wreck and infant is injured when car seat fails. Parent violated statute driving. Parent brings a negligence product liability action on behalf of infant. Is the violation of the statute a defense?

Answer 21

No. Contributory negligence not imputed to infant.

Question 22

Parent is in a wreck and infant is injured when car seat fails. Retailer was negligent in failing to notice defect. Parent brings a negligence product liability action on behalf of infant. Can manufacturer use retailer’s negligence as a defense?

Answer 22

No. Intermediate negligence does not relieve manufacturer of liability.

Question 23

A is hauling dynamite in boxes. A box falls off the truck due to defective truck latch and breaks B’s foot. Dynamite does not explode. B sues A for strict liability. Result?

Answer 23

B will lose, no liability for A. Strict liability only for dangerous propensities. Dynamite did not explode.

Question 24

A rocket company is testing rockets in a remote area. When launching the rockets, they rockets cause a large cloud of debris to travel over and onto a farmer’s land. The farmer sues for trespass to land. What is the best available defense?

Answer 24

Rocket company had no reason to anticipate that the test would cause debris to travel onto the farmer’s land. Trespass require an intent to enter the land of another.

Question 25

B lends A her car to go to pick up an pizza. A drives to the mall and browse through several stores, then goes to pick up the pizza. After getting the pizza, another person hits the parked car causing damage. B sues A for negligence and damage caused. Result?

Answer 25

A. Mere delay does not create foreseeable risk of car being hit.

Question 26

A manufacturer produces a product that an association recommends. A purchasers uses the product, but it malfunctions. The purchaser brings an action against the association. What is the theory that they are likely to recover?

Answer 26

Negligence. Cannot sue for express warranty, implied warranty of merchantability or strict tort liability (require a commercial supplier of item)

Question 27

10 year old niece steps in an obscured animal hole and breaks leg. Can niece sue landowner?

Answer 27

No. Niece is a licensee. Only a duty to warn of a natural condition of which landowner is aware.

Question 28

A hiker bought a water bottle, and while hiking a thief stole the bottle and become sick. Test showed the bottle contained impurities. The thief sues the manufacturer for negligence. What would be helpful to manufacturer in defense?

Answer 28

Manufacturer bottle water in compliance with statutes that regulate processing of water - compliance is not conclusive that manufacturer complied with duty, but evidence of compliance.

Question 29

A breeds horse on his property. B open dump next door. Smell causes breeding to tamper off. Would A be successful if it operated the horse farm for many years before B opened the dump?

Answer 29

No. Nuisance requires a substantial interference with the use and enjoyment of land. Prior ownership does not establish nuisance.

Question 29

Company ABC employed a well known scientist. A competitor wanted to hire the scientist and told him statements that were not true. The scientist's employment agreement was terminable at will. ABC sued the competitor for intentional interference with business relationship. ABC is likely to?

Answer 29

Recover, if damages shown, because competitor used improper means to hire the scientist. Privilege to hire at-will employee does not extend when improper means are used. Same result if scientist was an independent contractor.

Question 30

A hurricane was going to strike an ocean town. A tourist in the hotel was told by the owner to go to higher floors. The tourist panicked and headed into the rising waters. The tourist was swept away. The tourist's estate brings an action against the hotel. Likely result?

Answer 30

For the hotel. No duty to the tourist was breached by hotel. Innkeepers have a higher duty, but no evidence of a breach of that duty.

Question 31

Homeowner hung a basket using 20-lb fish line, that sportfishers knew meant it could support stresses up to 20-lb. A friend visiting the homeowner was struck by the basket when the line broke. Will the friend prevail in a suit to recover damages?

Answer 31

No. Friend is an licensee (social guest) and homeowner owes a duty to warn of known dangerous conditions. Homeowner did not know that the line was not strong enough to hold basket.

Question 32

A man borrows a truck from its owner. After the man takes the truck, the owner remembers there is a problem with the steering. The owner calls the man's wife and tells her. She forgets to tell the man. Later the man drove around a curve and the steering failed, causing an accidence. Man sues owner. Likely result?

Answer 32

Man will prevail. Gratuitous bailment, the bailor owes a duty to inform of known dangerous defects. Wife's act in not telling is not a superseding cause.

Question 33

Shopper sues a store for slip and fall that caused a broken ankle. Shopper stepped in water from a malfunctioning freezer. Shopper had testimony that floor around water appeared dirty. Does the shopper need evidence that the employee's of the store knew the freezer was leaking to survive a motion for summary judgment?

Answer 33

No. Shopper is invitee and store has duty to warn of nonobvious dangers and make reasonable inspectations to discover dangers and make them safe. Knowledge of leaking freezing is not required.

Question 34

A driver asked a paint shop to paint his grey car yellow. The paint shop instead paints the car pink. The driver was subject to ridicule, but the car functioned. The driver sues the paint shop. Likely result?

Answer 34

Driver will prevail because value of car was reduced - trespass to chattels. Act of interference with plaintiff's right of possession. Damages would have to be shown.

Question 35

Due to doctor's improper surgery a woman becomes pregnant. The women sues a doctor to recover: 1) medical expenses for pregnancy and her pain and suffering during labor; 2) her lost future earnings because of her disability; 3) future cost of raising a child; and 4) extraordinary medical expenses to treat child's disease. What is least likely to be recovered?

Answer 35

future cost of raising her child - least certain.

Question 36

Newspaper runs an article that the general manager of a sports team raised ticket prices to support his gambling habit. The general manager is well known in the community. What facts does the general manager have to prove?

Answer 36

Statement by newspaper was false and newspaper acted with actual malice. Libel - damages are presumed

Question 37

B loaned her car to C. C loaned B's car to D, without telling B. D took the car on a 900-mile trip. B asked for car back, but C could not give the car until D returned two weeks later. C attempted to return the car, but B refused and sued for conversion. There was no damage to the car. Likely result?

Answer 37

B can recover for conversion because there is a serious interference with possession. Amount of damages is fair market value of car. C is bailee and liable for conversion if there is a material breach of the bailment.

Question 38

B berates C and accuses C of shoplifting. B negligently forgot that the public address system was on, and the statements were made to all people in the area. In an defamation action can C recover?

Answer 38

Yes. Publication can be intentional or negligently.

Question 39

In defending liability under the attractive nuisance doctrine, can the defendant use the child's knowledge of the danger as a defense?

Answer 39

Yes - need to shown dangerous condition that children are unable to appreciate the risk.

Question 40

Driver was fed up with pedestrians and drove straight at one intending to make them jump. Driver hit the horn, but the pedestrian was listening to music and did not see the driver. A bystander rushed to save the pedestrian. The bystander fractured her knee when saving the pedestrian. Pedestrian sues the driver for assault. Likely result?

Answer 40

Driver will prevail. In assault need to place the party in apprehension of fear and pedestrian did not see the threatening acts of the driving.

Question 41

An officer carelessly pulls on reins of horse, which causes horse to be scared and runs off into a crowd. The horse hits and kills a bystander. In a suit by the estate of the bystander, the officer defends on the ground that his actions are not the legal cause of the bystander's death. Ruling.

Answer 41

For bystander. Officer's action are the legal (proximate) cause of the death because. Foreseeable.

Question 42

B suffered $100,000 in accident with A and C. Jury finds that B is 30% at fault, A is 40% at fault and C is 30% at fault. How much can B recover against A?

Answer 42

$70,000. joint and several liability applies on MBE unless told otherwise. A can seek contribution from C.

Question 43

Is scienter required for intentional misrepresentation?

Answer 43

Yes, but not required for negligent misrepresentation.

Question 44

In a claim for libel, must a plaintiff show damages?

Answer 44

No, damages are presumed. Do not need to show evidence of damages to get to a jury.

Question 45

In a claim for slander, must a plaintiff show damages?

Answer 45

Slander is an oral statement. - If per se, then damages are presumed and if not per se, then damages must be shown.

Question 46

Backpacker takes shelter in a home. He opens the door and stays in the home for the night. Owner sues for trespass to land. Result?

Answer 46

Defense of necessity - no liability for nominal damages.

Question 47

In a strict product liability claim, if the consumer misuses the product and the product is not otherwise defective, is consumer barred from recovery?

Answer 47

No. Consumer can recover if the misuse was foreseeable.

Question 48

A man is fleeing from a bull and jumps the fence into a grower's melon patch. The man destroys several melons. The grower is upset and grabs a shotgun filled with rock salt. The grower points the gun at the man says "Stop or I'll shoot." The grower aimed the gun but slipped and fell. The gun discharges and hits the man. The man sues for assault. Result?

Answer 48

For the man, if the man reasonably believed that the grower might shoot him. Grower cannot claim defense of property because man had a privilege to enter the land.

Question 49

Does a fetus born alive have a claim against those who commit prenatal negligence? Even after 18 years?

Answer 49

Yes and yes. Need to show negligence - breach of the duty of care, causation and damages. Doctor owes duty to mother and fetus not to act in a negligent manner.

Question 50

Motorcyclist who is learning to ride sees a classmate walking along the street. Motorcyclist tried to scared him and swerved at him, but a latent defect in the motorcycle cause the tire to blow and the motorcyclist lost control. While losing control, the motorcyclist hit the accelerated and hit the classmate. Classmate sues for battery. Result?

Answer 50

Classmate will prevail, because motorcyclist intended to frighten classmate. Intend to commit assault can be transfer if an offensive touching takes place.

Question 51

A customer is held by store security on suspicion of writing bad checks. Customer is denied for an hour until the store can confirm whether she wrote bad checks. Customer was embarrassed and sues for damages for humiliation. Result?

Answer 51

Customer will prevail because she was falsely imprisoned. Store has a privilege to detain for a reasonable time. Does not need to show intentional infliction of emotional distress because she can recover damages from humiliation under a false imprisonment claim.

Question 52

Pilot had given 15-year old son flying lessons and was confident the son's ability to fly. Son flew to a high school graduation and after a successful take off the engine stalled due to negligence of the mechanic. The plane crashed and killed the son. In a comparative negligence jurisdiction, who's negligence may reduce recovery?

Answer 52

Either the pilot in permitting the son to fly or the son in flying the plane.

Question 53

When is a rescuer a foreseeable plaintiff?

Answer 53

When the defendant negligently places himself or a third person in peril

Question 54

Is a party who acted negligent liable to a rescuer to act wantonly in the rescue?

Answer 54

No liability. - no duty to rescuers who act wantonly.

Question 55

In a civil action, if the defendant feared the plaintiff was about to harm them, what is needed to maintain a claim of self-defense?

Answer 55

Reasonable person in the same circumstances would have believed that force was necessary to prevent attack Must be honest, and reasonable mistake is acceptable.

Question 56

Logger was confronted by protester who was yelling at logger. Logger took a swing at protester to frighten her away. The blade broke off, due to a manufacturing defect, and struck protester. Protester brings an action for battery. Result?

Answer 56

Protester will prevail because logger intended to frighten protester. Intent to assault is sufficient even when there is no intent to cause the contact. Intent to commit assault is transferred.

Question 57

Is provocation a defense to battery?

Answer 57

No, not a defense. Need to have self-defense that was reasonable to believe that he was in danger.

Question 58

A security guard that grabs a shopper's arm because the guard suspected shopper was a shoplifter. If a shopper brings an action for assault against a store and does not prevail?

Answer 58

Guard acted reasonably under the shopkeeper's privilege.

Question 59

Is a non-emergency surgery by a doctor who the patient did not consent to gives rise to what type of action?

Answer 59

Battery. Damages are not needed. Can recover nominal damages.

Question 60

Is it a defense that plaintiff was not injured by defendant's conduct when the cause of action is an intentional tort?

Answer 60

No. Intentional torts are actionable without alleging a specific injury or damage.

Question 61

A security guard restrains a teenager suspected of shoplifting by keeping him in the back of car while the guard eats his lunch for an hour. If the teenage suffered humiliation, is it actionable against the guard?

Answer 61

Yes, under a theory of false imprisonment because detention was not reasonable.

Question 62

If successful in an action for conversion what is the result?

Answer 62

Plaintiff receives fair market value at time of conversion, but the defendant keeps the property.

Question 63

If successful in an action for trespass to chattel what is the result?

Answer 63

Plaintiff receives damages to chattel and keeps item.

Question 64

Flakes from an adjacent chemical plant would drift onto farmer's land. Farmer repeatedly complained to plant. Can farmer recover against the plant?

Answer 64

Yes because plant intended to conduct the activities that caused the particles to fall on the farmer's land. Plant knew with substantial certainty that flakes would continue to fall on farmer's land.

Question 65

Does a trespasser with a privilege have to exercise due care to avoid liabiltiy?

Answer 65

Due care is irrelevant for qualified privileged to trespass to land. Remains liable for any damage caused.

Question 66

In a public necessity what is the effect to an action for trespass to land?

Answer 66

- complete defense - no tort liability for public necessity.

Question 67

Is a physical injury required for intentional infliction of emotional distress?

Answer 67

No, physical injury only required for negligence infliction of emotional distress.

Question 68

Is a physical injury required for negligent infliction of emotional distress?

Answer 68

Yes, must establish a physical injury in connection with emotional distress.

Question 69

Driver lapsed into unconsciousness while driving and crossed over the center line and hit another vehicle injuring motorist. Statute made it illegal to cross a center line. Plaintiff moves for a directed verdict. Result?

Answer 69

Deny motion, because it is possible that jury might find that driver had no reason to believe driver would lapse into unconsciousness

Question 70

Owner notifies electric company to shut down power. Electric company decides to leave power on for the transformer on to deter theft. A trespasser goes onto the land and is shocked while stealing transformer. Trespass sues electric company. Result?

Answer 70

For trespasser because electric company used unreasonable force to prevent theft. - electric company is not owner of land and does not have a duty to trespasser

Question 71

Under the common law, a parent is ____ liable for the tortious conduct of his/her child.

Answer 71

not vicariously liable - may be liable for own negligence in failing to exercise reasonable care and foreseeable that child would commit tortious conduct.

Question 72

A rescuer may be liable to the injured party if?

Answer 72

Rescuer did not act reasonably in carrying our the rescue of injured party. If negligent, then liable for all subsequent injuries including those from medical malpractice.

Question 73

To hold an employer liable for employee's actions that are outside of the scope of employment, what is needed?

Answer 73

negligent selection of employee if employer had some reason to be on notice that action that resulted in harm were likely to occur.

Question 74

If an invitee exceeds the scope of invitation then the invitee becomes ________.

Answer 74

A trespasser. - no duty to undiscovered trespasser. - discovered or anticipated trespasser - duty to warn of artificial conditions that involve a risk of death or serious injury.

Question 75

For res ipsa loquitur to apply what is needed?

Answer 75

instrumentality causing injury was in exclusive control of defendant.

Question 76

A valet parked a car on a street with high crime and left the keys in the ignition. While dining the owner of the car received a text message stating that keys were left in the ignition, but took no longer. The car was stolen by a teenager. Owner sued parking company. Result?

Answer 76

Apply pure comparative negligence - owner is able to recover because negligence of valet created the opportunity for theft

Question 77

In a modified comparative negligence, the plaintiff was 45% at fault and defendant was 55% at fault. Is the plaintiff is able to recover, even if plaintiff assumed the risk?

Answer 77

Yes, can recover 55%. Assumption of risk is abolished in modified comparative negligence.

Question 78

In comparative contribution jurisdiction, the plaintiff is 25%, one defendant is 30% and second defendant is 45%. Total damages are $100,000. How much can plaintiff seek from second defendant?

Answer 78

$75,000, but the second defendant can seek contribution from first defendant.

Question 79

In a negligence product manufacturer claim, is the manufacturer liable for negligence of maker of component part, if the component part is the cause of the injury?

Answer 79

Yes. Same liability for manufacturer and component maker.

Question 80

On a theory of strict liability for product liability requires what?

Answer 80

1) defendant is a commercial supplier of the product | 2) product was dangerously defective when sold or placed in stream of commerce

Question 81

Is misuse of a product a defense to a strict liability product claim?

Answer 81

Only if the misuse was not foreseeable by defendant

Question 82

In a strict liability product claim, if a person acted negligent, will it relieve liability?

Answer 82

No - negligence by any person does not relieve liability.

Question 83

Would fleeing from abnormally dangerous be foresee if plaintiff cuts leg?

Answer 83

Yes, strict liability applies if activity involves a risk of serious harm, and cannot be performed with complete safety no matter how much harm is used.

Question 84

Psychiatrist secretly filmed patients for a study of body language, without patient's consent. If patient sues for an invasion of privacy, what is the strongest argument to support the cause?

Answer 84

Psychiatrist has intruded upon patient's physical seclusion

Question 85

In private nuisance suit against a tortfeasor, the fact that the plaintiff owns her property and has used it for 15 years before is:

Answer 85

Not controlling, but relevant to the issue of whether the record company's use of its property is reasonable

Question 86

In defending a private nuisance claim, what is most helpful to the defense?

Answer 86

That one one else complained of the offending act. | This shows that the plaintiff is overly sensitive.

Question 87

If a business owner demands at a public forum to know why the government body denied a business licensee and in respond a government official makes defamatory statements, does the business owner have a defamation claim?

Answer 87

No, consented to statements by demanding a reason.

Question 88

What is the common law rule regarding the torts committed by a driver of car who is not the owner?

Answer 88

Owner is not liable for torts of driver.

Question 89

Can publication of a private fact be privileged?

Answer 89

Yes, when it concerns a matter of public interest.

Question 90

In a contributory negligent jurisdiction, who decides if the plaintiff was contributory negligent?

Answer 90

Jury. | - Usually deny motions for directed verdicts.

Question 91

What is needed to determine whether a doctor breached his duty to a patient when side effects of medication are not disclosed?

Answer 91

Would a reasonable person (objective standard) use medication even when told of side effects.

Question 92

When a plaintiff is injured by a chemistry set and sues in strict liability, will the manufacturer prevail if a) manufacturing chemistry sets is not an abnormally dangerous activity or b) if it was not economic feasible to modify the chemistry set to make it less dangerous.

Answer 92

b) if it was not economic feasible to modify the chemistry set to make it less dangerous

Question 93

In a strict product liability case, does the proper inspection of the item before it left the retailer relieve the retailer of liability?

Answer 93

No. Strict liability if it left the store's control with a defect that rendered it unreasonable dangerous.

Question 94

Is coming to the nuisance a good defense to a claim a private nuisance?

Answer 94

No.

Question 95

What is a key factor for determining whether a defendant has a defense to a claim of private nuisance?

Answer 95

Whether the severity of inflicted injury must outweigh the utility of defendant's conduct

Question 96

Is the duty to maintain the premise safe for customers a non-delegable duty?

Answer 96

Yes. Can raise vicarious liability for principal for acts of independent contractors.

Question 97

A shopping center hires a nightwatchman. The nightwatchman brings his pet rattlesnakes to the shopping center at night to deter burglars. A trespasser entered the shopping center and was bitten by one of the snakes. Can the trespasser bring an action against the shopping center?

Answer 97

No. There is no duty to trespassers because the nightwatchman committed an intentional tort by using the rattlesnakes to defend property.

Question 98

Pedestrian is stopped by police for violating jaywalking laws, which is punishable by a fine. The police asked to see an ID but the pedestrian refused. The police grabbed and twisted the pedestrian's arm. The pedestrian slipped out and moved swiftly to knock the baton out of the police's hand. The pedestrian brings an action against the officer for battery. Result?

Answer 98

For pedestrian because police was not privileged to use force. Jaywalking is a misdemeanor and cannot use force for a misdemeanor that does not involve a breach of the peace.

Question 99

What is needed for the police to use force in making an arrest for a misdemeanor?

Answer 99

Must involve a breach of the peace.

Question 100

Can res ipsa loquitur be used in a negligent product liability case?

Answer 100

Yes.

Question 101

Does negligence on part of the user of a product relieve the manufacturer in a negligent product liability case?

Answer 101

No. Owner's use (misuse and negligence) are reasonable foreseeable.

Question 102

When defamatory statements are made concerning a matter of public concern, what must the plaintiff prove to recover?

Answer 102

``` Actual damages (out-of-pocket; impairment of reputation; personal humiliation; and mental anguish) - no damages are presumed ```

Question 103

Does a person testifying have a privilege against future claims for defamation and infliction of emotional distress based on the testimony given?

Answer 103

Yes.