Torts Negligence Kaplan Foundation Course MBE Questions Flashcards
Landowners duty regarding trees, and scope of that duty
Prosser states, “When the tree is in an urban area, the landowner now has a duty of reasonable care, including inspection to make sure that the tree is safe.” Law of Torts, pg. 390. Moreover, recent decisions have extended the right to reasonable protection from travelers on the street to adjoining landowners as well.
Homeowner owes a reasonable duty to persons outside the premises.
What is a reasonable person required to know in regard to a duty owed.
According to Prosser, one of the most difficult questions in connection with negligence is with regard to “what a person is required to know” in order to warn another of unreasonable risks of harm. Obviously, an individual will not be responsible for risks that he is unaware of.
What is the duty owed to an invitee
People who enter public buildings (such as churches, airports, museums) are classified as invitees. A hotel would fall under the category of a building open to members of the general public. Therefore, the friend is viewed as an invitee. The duty owed to an invitee is twofold: (1) duty to make reasonable inspections and (2) duty to make safe for the protection of invitees who enter. Here, since the hotel breached its duty to inspect and make safe, the friend will be entitled to recover.
In order to recover under negligence per se or violation of a statute
n order to recover for negligence per se, most courts require that: (1) the plaintiff be a member of the class of persons intended to be protected by the statute, and (2) the harm suffered must be of a type that the statute was designed to protect against.
Question dealing with res ipsa loquitur and directed verdicts on the MBE
A trap that is frequently tested on the Multistate is to present a negligence question and then indicate in the facts that the plaintiff has failed to present any evidence supporting the cause of action. When a plaintiff fails to satisfy her burden of production (by presenting a preponderance of evidence to prove the elements of her claim), the court may grant defendant’s motion to dismiss. However, inres ipsa loquitur situations there is an inference of negligence on the part of the defendant. As a result, the plaintiff has made a prima facie case and no directed verdict may be given to the defendant.
Res ipsa loquitur simply establishes an inference of negligence. Basically, it allows the plaintiff to escape a nonsuit, or a dismissal of his action. However, the inference of negligence to be drawn from the circumstances is left to the jury, which may very well find against him. Certainly, the defendant in rebuttal may present a preponderance of evidence to avoid liability.
What are the instructions on the MBE for Torts
It is important to note that the MBE instructions for Torts state as follows, “Examinees should assume that joint and several liability, with pure comparative negligence, is the relevant rule unless otherwise indicated.”
Therefore, you must assume that pure comparative negligence applies to this fact pattern because you are not told otherwise.
What is the general rule about comparative negligence statutes
As a general rule, comparative negligence statutes have the effect of apportioning damages based on the parties’ respective degrees of fault. For example, if the defendant’s fault is found to be twice as great as that of the plaintiff, the latter will recover two-thirds of his damages, and himself bear the remainder of his loss. As a consequence, plaintiff’s recovery will be diminished in proportion to his negligence.
last clear chance” doctrine is applied
in contributory, not comparative, negligence jurisdictions.
Where two or more causes combine to produce such a single result, incapable of any logical division
According to Prosser, certain results, by their very nature, are obviously incapable of any logical, reasonable, or practical division. Death may be such a result, and so may be a broken leg or any single wound, the destruction of a house by fire, or the sinking of a barge. Where two or more causes combine to produce such a single result, incapable of any logical division, each may be a substantial factor in bringing about the loss, and if so, each must be charged with all of it. In this situation, most courts place the burden of proof on the issue of causation upon the two defendants. Unless the innocent defendant can prove that he is not culpable, liability will be imposed. This is the rule enunciated in the case of Summers v. Tice [1999 P.2d 1 (1948)]
On all standardized examinations (whether it be the MBE, SAT, LSAT, GRE) the Examiner’s main goal is “to hide the correct answer,” HOW
The Examiners try to accomplish this by employing “distracters” and “red herrings”.
A comparative negligence statute only applies
A comparative negligence statute only applies when the two negligent parties (e.g., liable plaintiff and the liable defendant) are suing one another.
When a non-liable plaintiff was injured by joint tortfeasors, comparative negligence plays what role?
NONE.
A comparative negligence statute only applies when the two negligent parties (e.g., liable plaintiff and the liable defendant) are suing one another.
When a plaintiff who was injured by the combined negligent acts of both the fan and the truck driver. The defendants are joint tortfeasors who would be jointly and severally liable for the full amount of the friend’s damages. Plaintiff may recover full damages from one of the defendants, who could then seek contribution from the other defendant
Explain a valid release and the effects
Restatement of Torts 2d, Section 885(1) provides: “A valid release by one tortfeasor from liability for harm, given by the injured person, does not discharge others liable for the same harm, unless it is agreed that it will discharge them.” However, subsection (3) states, “A payment by any person made in compensation of a claim for a harm for which others are liable as tortfeasors diminishes the claim against the tortfeasors, at least to the extent of the payment made, whether or not the person making the payment is liable to the injured person and whether or not it is so agreed at the time of payment or the payment is made before or after judgment.”
A public landowner is, generally, not liable for the intentional torts committed by third persons
In order to answer this question, it is necessary to determine what duty is owed to the plaintiff. Since the facts indicate those entering the premises will be viewed as invitees (or “business” visitors). A person may be classified as an invitee even though she does not actually confer an economic benefit to the possessor. The important consideration is whether there is a potential pecuniary profit to be gained. This same issue is often tested where a person enters a business with no intention of buying anything but to change a $1 bill for the parking meter. He nonetheless was an invite
Defendant’s failure to guard against the possibility of a known danger can be liable when
Prosser states, “If the intervening cause is one in which ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances, he may be negligent, among other reasons, because he has failed to guard against it; or he may be negligent only for that reason.” Furthermore, Prosser notes, “Even though the intervening cause may be regarded as foreseeable, the defendant is not liable unless his conduct has created or increased an unreasonable risk of harm through its intervention.” Thus, “there may be an appreciable danger that the plaintiff will be struck by lightning, or by an automobile in the street, or a mail sack thrown from a train, or that a kerosene lamp will explode in his face, but there is no liability unless what the defendant has done has increased the risk.”
