Torts Qs

Question 1

Two pranksters threw ice from a soda cup over a shopping mall railing onto the heads of patrons two floors below. They intended to post videos of the ice hitting these patrons and the patrons slipping on the ice on a website known for displaying pranks. After a while, the pranksters became bored and left the railing to walk to the food court. As they walked away, they heard a scream and saw a mall patron fall after slipping on the remnants of the ice. The pranksters had not seen or targeted this mall patron prior to his fall but walked over to help him up. The patron cried hysterically and was visibly shaken to the point of needing medical care for his emotional as well as physical injury.
If the pranksters are found liable for the patron’s injuries, which of the following is the most plausible basis?
Assault.
Battery.
Negligent infliction of emotional distress.
Intentional infliction of emotional distress.

Answer 1

BATTERY -
A D is liable for battery if the D intended to cause contact with the P’s person and the D’s affirmative conduct caused contact that was harmful or offensive to the P. Under the doctrine of transferred intent, the intent requirement for battery is also satisfied if the D:
- intended to cause contact with a third party but instead caused contact with the P (same tort against a different person) or
- intended to commit an assault, but instead committed a battery (different tort against the same person).

Here, the pranksters intended to cause contact with targeted mall patrons by hitting their heads with ice and causing them to slip on it (intent to commit battery). Although a different patron slipped on the ice (same tort; different person), the pranksters’ initial intent to batter the targeted patrons transferred to the injured patron.

Not Assault - Liability for assault arises when the defendant intends to cause (and does cause) the P to anticipate an imminent, and harmful or offensive, contact with the plaintiff’s person.

Not NIED The patron was not (1) in the “zone of danger” of the threatened physical impact as he did not fear for his safety, (2) a bystander who witnessed a close relative’s injury, or (3) in a special relationship with the pranksters.

Not Intentional infliction of emotional distress - requires proof of extreme and outrageous conduct. But throwing ice at mall patrons, while dangerous, is neither extreme nor outrageous.

Question 2

A musician’s brother borrowed the musician’s electric guitar. The brother told the musician that he was going to use it the next day to teach the children in his second-grade class about different musical instruments. Instead, the brother went to a rowdy bar that evening and played the electric guitar with his rock band all night long. A drunk bar patron got on stage during one of the songs, grabbed the guitar from the brother, and smashed it against the ground. The brother took the guitar to a repair shop the next day and was told that it would cost $750 to restore the guitar to its original condition. At the time of the incident, the guitar was worth $1,500. The musician asserts a claim against his brother for conversion.
How much $ is the musician entitled to recover?

Answer 2

$1,500

A defendant who has permission to use the plaintiff’s chattel commits CONVERSION when he/she (1) intentionally uses the chattel in a way that exceeds the scope of permission and (2) seriously violates the plaintiff’s right to control the chattel. The D is liable for the FAIR MARKET VALUE of the chattel at the time of the conversion

(vs Trespass to chattels is a minor intentional interference with the P’s chattel that only allows the P to recover actual damages (e.g., cost of repairs, loss of use).

Question 3

liability of common carriers for passengers

Answer 3

Under the common-law approach (majority rule), common carriers can be liable for even slight negligence because they owe the highest duty of care to their passengers that is consistent with practical business operations.

modern approach (minority rule), common carriers are negligent only if they fail to use reasonable care to protect passengers from harm that arises within the scope of that relationship

Question 4

negligence per se.

Answer 4

The plaintiff’s negligence is presumed if:
1) the plaintiff violated a statute
2) the statute was intended to prevent the type of harm suffered by the P and
3) the P is within a class of persons that the statute was intended to protect.

Even when negligence per se is established, the D still must prove that the P’s violation of the statute caused the P’s harm

Question 5

A consumer bought a can of chicken soup from her neighborhood grocery store. The soup was manufactured by a large food company.
Approximately two weeks later, the consumer’s son ate the soup and soon became violently ill. At the hospital, the attending physician diagnosed the illness as botulism poisoning, a serious disease that can arise from defects in the manufacturing process of canned foods or be brought on after manufacturing through temperature fluctuations in storage of the canned foods. Tests later confirmed that the can of soup was tainted with botulinum bacteria.
The consumer sued the large food company for negligence on behalf of her son. At trial, she produced no direct evidence of negligence on the part of the food company, but invoked the doctrine of res ipsa loquitur to prove liability. The applicable jurisdiction has adopted a traditional standard for res ipsa loquitur and a comparative-negligence standard. The food company filed a motion for a directed verdict.
How should the trial judge rule on the motion?
a - Deny the motion, because canned goods do not contain bacteria in the absence of negligence.
b - Grant the motion, because there is no evidence that the food company was negligent.

Answer 5

b - Although soup is not normally tainted with botulism absent negligence, the company did not have exclusive control over the defective can. The grocery store and the consumer both possessed it after manufacturing, when improper storage could have caused botulism. Therefore, the company’s negligence cannot be inferred (Choice A). And since there is no evidence that the company was negligent, it should be granted a directed verdict.

Under the traditional standard for res ipsa loquitur, negligence is inferred if (1) the plaintiff’s harm would not normally occur unless someone was negligent, (2) the defendant had exclusive control over the thing that caused the harm, and (3) the plaintiff did nothing to cause the harm.

When res ipsa loquitur applies, the plaintiff’s burden to produce evidence of negligence is satisfied and the court will generally deny the defendant’s efforts to dismiss the case (e.g., through a motion for a directed verdict).

Question 6

A woman had a toothache. The dentist removed her tooth and implanted a new tooth. This tooth, which was made from synthetic materials by a dental laboratory, contained a defect. The dentist was unaware of the defect because he failed to exercise reasonable care in examining the tooth before implanting it. Several weeks later, when the woman bit down on an apple, the implanted tooth broke. A piece of the broken tooth caused substantial damage to her mouth. The woman brought a strict products liability action against the dentist.
Is the woman likely to prevail?
A - Yes, because the dentist did not exercise reasonable care.
B - Yes, because the implanted tooth was defective.
C - No, because the dentist did not know that the implanted tooth was defective.
D - No, because the dentist was a service provider.

Answer 6

D - Strict products liability claims can only be brought against commercial suppliers or sellers. This means that the defendant must be in the business of manufacturing, selling, or otherwise distributing the type of defective product that harmed the plaintiff. Accordingly, those in the business of providing services are not subject to strict products liability.

not a - this might be malpractice, but it’s not strict products liability. Malpractice claims require proof that a professional (e.g., dentist) deviated from the standard of care that reasonable professionals in his/her field would have used under similar circumstances. Here, the dentist likely deviated from that standard of care when he failed to examine the tooth before implanting it.

Question 7

A chef who worked in a restaurant purchased an electric knife from a knife manufacturer that was specially designed to cut through meat. The instructions for the electric knife clearly stated that it should not be used on raw, hard vegetables, such as carrots or potatoes, because the moving blades on the electric knife would malfunction and could cause serious injury. One day, the chef’s friend asked to borrow the electric knife. The chef lent the electric knife to the friend and told him, “Don’t use the electric knife to cut raw vegetables.” Thinking that the advice was only to avoid dulling the blades, the friend disregarded the chet’s advice. When the triend used the electric knite to cut raw carrots, the moving blades on the knite malfunctioned, causing the friend to sustain a serious knife wound. The friend filed a negligence suit against the chef to recover damages for his injuries. The jurisdiction applies the common-law rules for contributory negligence and assumption of the risk.
Which of the following is the chef’s best defense?
a - The friend was contributorily negligent.
b - The friend voluntarily assumed the risk.
c - The chef did not owe a duty to the friend.

Answer 7

a - Here, the chef owed the friend a duty of care because it was foreseeable that the friend might be harmed if he was not warned that the knife malfunctions when used to cut raw vegetables. Altho the chef did warn the friend, the chef may have breached this duty by failing to explain why the knife should not be used on raw vegetables. But since the friend contributed to his own harm by ignoring the chef’s instructions, contributory negligence is the chef’s best defense.

not b - B) Under the common law, assumption of the risk, is a complete defense to negligence when the plaintiff voluntarily accepts a known risk of harm. Here, the chef instructed the friend not to use the knife to cut raw vegetables but did not explain why. As a result, the friend was unaware that the knife could malfunction when he used it to cut raw carrots and did not assume the risk of injury

Question 8

The plaintiff brought his car to a mechanic for a tune-up. During the tune-up, the mechanic removed the fuse for the brake lights and inadvertently failed to replace it, causing the lights to stop working. As the plaintiff was driving his car home from the mechanic, he was involved in an accident.
The plaintiff, seeing a friend walking along the road, slammed on his brakes to give the friend a ride. The defendant, who was driving the car behind the plaintiff, hit the plaintiff. The plaintiff sustained severe whiplash from the accident and has sued the defendant and the mechanic.
At trial, the jury determined that the plaintiff’s damages were $10,000 and that the defendant was 50% at fault, the mechanic was 25% at fault, and the plaintiff was 25% at fault. The jurisdiction recognizes pure several liability and partial comparative negligence.
How much can the plaintiff collect from the defendant?

Answer 8

$5,000

Modified (or partial) comparative negligence – P’s recovery is reduced by his/her proportionate share of fault and is barred if the plaintiff’s fault exceeds 50%

Question 9

A defendant is subject to liability to the plaintiff for ASSAULT if:

Answer 9

The D intends to cause the P to anticipate/apprehend an imminent harmful or offensive contact with the P’s person
AND
The D’s affirmative conduct causes the O to anticipate/apprehend such contact with the P’s person.

Question 10

elements of an intentional tort

Answer 10

1) Tortious conduct (act)
2) Requisite mental state (intent)
3) Causation

Question 11

Which of the statements regarding assault is FALSE?

a - Mere words are generally not enough to create an assault.
b - The threatened harmful or offensive contact must be imminent.
c - The plaintiff must prove actual damages to recover for assault.
d - The plaintiff must be aware of the defendant’s act

Answer 11

c

Question 12

T or F?

A wrongful death action may be brought by the decedent’s personal representative for losses suffered by the representative.

Answer 12

T

Question 13

Which of the statements regarding immunities is FALSE?
a - Government officials are immune for ministerial acts.
b - The Federal Tort Claims Act expressly waives immunity and allows the federal government to be sued for certain kinds of torts.
c - The federal government has NOT waived immunity for traditional governmental functions.
d - Most states have eliminated charitable immunity.

Answer 13

a

Question 14

Regarding contributory negligence, which of the statements is TRUE?
a - A plaintiff’s negligence will bar recovery only if it exceeds the defendant’s negligence.
b - The “last clear chance” doctrine permits the plaintiff to recover despite being negligent.
c - Most jurisdictions currently adhere to the contributory negligence rules.
d - The plaintiff’s damages are reduced by the extent to which the plaintiff contributed to the harm.

Answer 14

b

Question 15

T or F?
In a pure comparative negligence jurisdiction,
a D who is less at fault than the plaintiff is not required to pay damages in a pure comparative negligence jurisdiction.

Answer 15

False bc Pure Comparative Negligence means the P’s recovery is reduced by the P’s percentage of fault.

vs Modified Comparative Negligence - If the P is MORE at fault than the D, then the P cannot recover (some say if equally at fault, P can’t recover)

Question 16

When a product is less safe than contemplated by the ordinary consumer, a plaintiff should bring a claim for

Answer 16

design defect

Question 17

Which of the following is recognized as a complete defense to a strict liability action?

a- Contributory negligence
b- Assumption of the risk
c-Consent

Answer 17

b

Question 18

Which invasion of privacy claim is relatively difficult to prove?
a -Appropriation of the right to publicity
b -Unreasonable intrusion upon the plaintiff’s private affairs
c -False light
d -Public disclosure of private facts

Answer 18

d

Question 19

In a parking lot, two drivers simultaneously backed up and struck the other’s car. Neither driver suffered physical injuries, but the P’s sedan sustained $10,000 in damage and the defendant’s oversized pickup truck sustained $1,000 in damage. The plaintiff filed a negligence action against the defendant to recover for the damage to her sedan. In his answer, the defendant filed a counterclaim to recover for the damage to his truck.
At trial, the jury determined that the plaintiff was 70% at fault and the defendant 30% at fault for the accident and that both parties are entitled to recover damages. The applicable jurisdiction has enacted a pure comparative-fault statute.
What is the total amount of damages that the plaintiff can recover?

Answer 19

Pure comparative fault (default rule on the MBE) – the party’s recovery is reduced by his/her percentage of fault

Since this is a pure comparative-fault jurisdiction, the plaintiff’s recovery will be reduced by her proportionate share of fault ($10,000 - $7,000 = $3,000) (Choice D). And the defendant’s recovery will be reduced by his proportionate share of fault ($1,000 - $300 = $700). Since the jury determined that both parties are entitled to recovery, the plaintiff’s recovery will be reduced by the defendant’s recovery ($3,000 - $700), for a total recovery of $2,300

Question 20

A construction company was using a crane to remove air conditioning equipment from a truck parked on a residential street. The equipment weighed several hundred pounds. A half-block away, the mother of a seven-year-old boy was standing on her front porch, watching her son walk to the school bus stop at the end of the block. As the boy walked past the construction site, the air conditioning equipment fell, landing mere inches away from the boy, who calmly continued walking to his bus.
While the boy suffered no ill effects from the incident, his mother, who had a clear view of the incident, immediately fainted after seeing her son so close to certain death. For the next 48 hours, the mother was unable to function due to shock over the event. In the following months, the mother had difficulty sleeping due to nightmares as a result of the incident.
On behalf of her son, the mother brought an action against the construction company for negligent infliction of emotional distress and produced evidence at trial conclusively establishing that the construction company was negligent in allowing the air conditioning equipment to fall.
Which of the following is the construction company’s best defense against this action?
a - The construction company’s actions were not extreme and outrageous.
b - The mother did not suffer a physical impact to her person.
c - The mother was outside the zone of danger.
d - The son suffered no ill effects.

Answer 20

d

Negligent infliction of emotional distress (NIED) has three theories of recovery: (1) zone of danger, (2) bystander, and (3) special situation. Liability under the zone-of-danger theory arises when:
- the defendant’s negligent conduct placed the plaintiff in danger of immediate bodily harm AND
- that danger caused the plaintiff serious emotional distress.

Here, the construction company negligently allowed the air conditioning equipment to fall and land mere inches away from the boy, placing him in danger of immediate bodily harm. However, since the boy suffered no ill effects from the incident, the company’s best defense against the mother’s NIED action is that he suffered no serious emotional distress.

Not A) Extreme and outrageous conduct is an element of IIED—not NIED. And even if it were, the construction company’s actions—though negligent—did not constitute conduct that is unacceptable in a civilized society.

Not B) The fact that the mother did not suffer any physical impact from the incident is irrelevant since she filed the suit on behalf of her son, who must prove that he was in the zone of danger.

Not C) The mother was outside the zone of danger because she was a half-block away when the air conditioning equipment fell. Nevertheless, this is not the construction company’s best defense because she filed the suit on her son’s behalf. Therefore, the company must prove that he was not in the zone of danger to prevail.

Question 21

A politician suffered from chronic social anxiety that caused him to have debilitating panic attacks before public speaking events. During an election year, the politician embarked on an extensive campaign tour across the country and asked his doctor about possible medications to alleviate his social anxiety. The doctor prescribed a popular prescription drug called CalmX that had helped many of her patients overcome their anxiety disorders.
The manufacturer of CalmX had warned all prescribing doctors about its side effect, which caused “extreme flatulence” when patients consumed a rare imported cheese while using the drug. The manufacturer’s instructions that accompanied the drug did not warn consumers about this side effect because it was extremely rare.
The politician successfully took CalmX during the campaign tour. However, on the day of a critical televised debate, he consumed a large amount of the rare imported cheese. As a result, the politician experienced extreme flatulence during the debate. The video of the debate went viral and caused him to lose the election.
The politician has brought a strict products liability action against the manufacturer of CalmX.
Is the politician likely to prevail?
b - No, because the manufacturer informed prescribing doctors about CalmX’s side effect.
c - Yes, because the manufacturer did not directly warn the politician about CalmX’s side effect.
d - Yes, because the manufacturer is strictly liable for any harm caused by CalmX.

Answer 21

B

Under products liability law, a commercial supplier generally is strictly liable for harm caused by its defective product. A product is defective due to inadequate warnings or instructions when:
- the product poses a foreseeable risk of harm that is not obvious to an ordinary user AND
- reasonable instructions or warnings by the commercial supplier could have reduced that risk.
BUT under the learned-intermediary rule, a prescription drug or medical device is not defective due to inadequate warnings or instructions when its manufacturer warned the prescribing physician about the risk of harm associated with that product. (since the physician is expected to convey the manufacturer’s warning to the product’s user)

Question 22

A man had dinner at a local chain restaurant with his wife. As the man and his wife attempted to exit the restaurant, two employees from a department store at the local mall stepped in front of the man and blocked his path to the exit. The employees believed that the man was an individual known to shoplift at the department store because his appearance was similar to a suspect who had been shoplifting at the store earlier that day. While one employee proceeded to dump the contents of the man’s bag onto the floor, the other employee called the department store’s security officer on his cell phone, informing him that the shoplifting suspect had been apprehended
After a few minutes, the department store’s security officer arrived at the restaurant and told the employees that the man was not the suspect who had been caught shoplifting earlier. The employees apologized for their mistake, and the man left the restaurant.
The man has filed a claim for false imprisonment against the employees. In response, the employees assert that they are not liable for false imprisonment on the basis of the merchant’s privilege.
Will the employees’ defense likely succeed?
a - No, because the employees lacked conclusive proof that the man had shoplifted.
b - No, because the man was not detained on or in the vicinity of the department store.
c - Yes, because the employees only detained the man for a few minutes.
d - Yes, because the employees reasonably believed that the man had shoplifted.

Answer 22

b
To successfully assert the merchant’s privilege as a defense to false imprisonment, a defendant-merchant must have detained the plaintiff on or in the immediate vicinity of the merchant’s premises.

Question 23

A man and his friend decided to drive downstate to watch a football game. The man drove the friend to the game and refused any compensation from her. On the way home, the man failed to notice a stoplight and ran it, which caused a collision with another vehicle. The friend was severely injured as a result of the collision and sued the man for her injuries.
The jurisdiction where the friend’s suit was filed recently enacted a guest statute with regard to a driver’s duty to persons riding in the driver’s vehicle.
Will the friend be likely to recover damages for her injuries?
a - No, because a driver is only liable for injuries to paying passengers.
b - No, because the man was merely negligent.
c - Yes, because the man owed his friend a duty to exercise ordinary care.
d - Yes, because the man was strictly liable for the friend’s injuries.

Answer 23

b - Here, the friend was a guest because she rode in the man’s car for free. In most jurisdictions, the man would have owed the friend a duty to exercise ordinary care. However, since this jurisdiction enacted a guest statute, he only owed her a duty to refrain from gross or wanton and willful (i.e. reckless) misconduct. And since the man was merely negligent when he failed to notice the stoplight and ran it, the friend is unlikely to recover damages for her injuries from the car accident

Rule: In most jurisdictions, automobile drivers owe a duty of ordinary care to guests (who ride free) and passengers (who pay money for the ride). But a minority of jurisdictions have enacted “guest statutes,” under which an automobile driver’s only duty to guests is to refrain from gross or wanton and willful misconduct.

Question 24

A facility operated an indoor playground consisting of several large rooms that housed equipment, including inflatable slides upon which children can play. In the corner of one of the rooms, the facility stored damaged inflatable slides for repair. Since children played on the damaged inflatable slides in the past, the storage area was cordoned off with a rope and was clearly marked with numerous “DO NOT ENTER” signs.
While his father was at the facility’s concession stand, an eight-year-old child wandered to the storage area and saw the damaged inflatable slides.
The child slipped under the rope and began to play on one of the inflatable slides, which had an attached air tube. The child grabbed the air tube and began to play with it. Because the air tube was connected to an active air machine, the child lost control of it. The air tube struck the child in the face and caused permanent damage to one of his eyes.
An action has been brought against the facility on the child’s behalf to recover damages for the injury to his eye. In its answer, the facility denies liability for the child’s injury because the storage area was cordoned off with a rope and prominently displayed warning signs.
Is the child likely to prevail?
b - No, because the storage area was cordoned off with a rope and prominently displayed warning signs.
c - Yes, because the damaged inflatable slides were an attractive nuisance.

Answer 24

c
Attractive-nuisance doctrine: land possessors have a duty to exercise reasonable care to protect child trespassers from artificial ( man-made) conditions on their land when:
- the condition exists where the land possessor knows or should know that children are likely to trespass
- the land possessor knows or should know that the condition poses an unreasonable risk of serious bodily harm or death to children
- children of the trespasser’s age cannot reasonably discover or appreciate the risk and
- the risk outweighs the condition’s utility and the burden of eliminating the risk.

A land possessor that breaches this duty and causes the child trespasser physical harm is liable for negligence.

Here, the child was a trespasser because he entered the storage area to play on the damaged slides, which the facility knew other children had done in the past. The child suffered an eye injury when he lost control of an active air tube—a risk that an 8-year-old could not have reasonably understood. This risk outweighed the utility of storing the damaged slides in that area, especially since the slides could have been safely stored elsewhere (e.g., in a locked closet). Therefore, the child is likely to prevail

Question 25

As a safety measure, a city enacted an ordinance imposing a fine for trespassing on construction and roadwork sites marked with orange caution tape. The city's construction team marked a city block with orange caution tape to divert all cars and pedestrians while the team repaired potholes. A pedestrian wanted to walk down the marked-off street. The street was full of construction equipment, but because it appeared that construction had not yet started, the pedestrian stepped over the orange caution tape and walked down the street. Distracted by the equipment around him, the pedestrian stepped into an open manhole and landed on a construction worker who was inspecting the sewer under the construction site. Both parties were injured in the accident. The construction worker has sued the pedestrian for negligence to recover damages for his injuries in a jurisdiction that applies the minority approach to negligence per se. What is the legal effect of the pedestrian's walking on a street marked with caution tape? A - It creates a conclusive presumption that the pedestrian breached a duty. B - It creates a rebuttable presumption that the pedestrian breached a duty. C - It will bar the pedestrian from recovering damages from the city in a future negligence action. D - It will have no legal effect because the construction worker's act was the proximate cause of the accident.

Answer 25

B- Under the minority approach for negligence per se, a defendant's violation of a statute or ordinance creates a rebuttable presumption (as opposed to a conclusive presumption) that the defendant breached a duty of care.

Question 26

An acrobat went to a chiropractor when he pinched a nerve in his neck while practicing an acrobatic routine. The chiropractor had the acrobat lie down on a custom-made chiropractic table. The table could be tilted such that the acrobat was angled with his head toward the floor, allowing the chiropractor deeper access to the acrobat's neck muscles. During the session, the table malfunctioned due to a manufacturing defect and tilted all the way down, causing the acrobat to bang his head on the floor. The chiropractor attempted to adjust the table to return it to an upright position, but the table malfunctioned again and wrenched the chiropractor's shoulder, causing serious injury. If the chiropractor brings a strict liability action against the manufacturer of the table to recover damages for her injury, who will likely prevail? A - The chiropractor, because she was within the zone of danger of a threatened physical impact. B - The chiropractor, because the chiropractic table was used for its intended purpose. C - The manufacturer, because the chiropractor is not the proper plaintiff for this action. D - The manufacturer, because the chiropractor's injury did not occur in a reasonably foreseeable way.

Answer 26

b

Question 27

A famous singer hired a bodyguard to protect her before and after her music concerts. Their employment contract authorized the bodyguard to use reasonable force to protect the singer from any dangerous situations that put her safety at risk. However, the singer also told the bodyguard that she preferred that he use a reasonable amount of force to get fans out of the way only if they are within a one-foot radius of her. Otherwise, the singer told him he should just help her maneuver through crowds and watch for anyone who might try to harm her. After one of her concerts, the bodyguard guided the singer through an area heavily crowded with her fans. Most fans moved out of the way. However, one man kept pushing his way toward the singer and would not relent when the bodyguard politely asked him to move back. The man ignored the bodyguard and continued to push toward the singer. When the man was three feet away from her, the bodyguard punched the man in the face. The man has filed a claim against the singer, claiming that she is liable for the battery committed by her bodyguard. If the jury determines that the bodyguard committed battery against the man, which party is likely to prevail? a - The man, because the bodyguard's conduct was within the scope of his employment. b - The man, because the singer will always be liable for any tortious conduct by the bodyguard as force is inherent in the job. c - The singer, because she gave the bodyguard specific instructions that he did not follow. d - The singer, because she is not liable for the intentional tort of the bodyguard.

Answer 27

a Under the doctrine of respondeat superior, an employer is vicariously liable for any tortious conduct of an employee that is within the scope of employment. An employer is generally not liable for an intentional tort (e.g., battery) committed by its employee because that conduct typically falls outside the scope of employment. However, such liability will arise in two instances: - When the use of reasonable force is inherent in the employee's job and the employee acts in the course of his/her work - When the EE is authorized by the ER to act on its behalf and the EE's position provides an opportunity to commit an intentional tort

Question 28

A 12-year-old boy had trouble controlling his temper and was prone to violence. The boy and his father attended family therapy together to address the issue, where their therapist stressed the importance of parental supervision while the boy learns to apply new skills for handling anger. As part of his treatment plan, the boy was also required to take medication on a daily basis. The boy's father filled the boys monthly prescription, but he did not check to make sure that the boy took the pills. The boy soon decided that he did not like taking the medication and stopped taking it entirely. Shortly thereafter, the father dropped the boy off at a bowling alley and drove to meet his coworkers at a nearby bar. While unsupervised at the bowling ally, the boy got into a fight with a man in the next lane and intentionally dropped a bowling ball on the man's foot, resulting in a broken foot. If the man brings a negligence action against the boy's father, who will likely prevail?

Answer 28

The man, because the father failed to adequately supervise the boy. A defendant generally has no duty to control another's conduct unless the parties have a special relationship. Since parents and children have a special relationship, parents have a duty to exercise reasonable care to prevent their minor child from causing foreseeable harm to others. Therefore, parents are liable for negligence if they breach this duty and cause the plaintiff harm. Here, the father had a duty to use reasonable care to prevent the 12-year-old boy from harming others since the father knew that the boy had trouble controlling his temper and was prone to violence (i.e., it was foreseeable that he might harm others). The father breached that duty when he failed to take reasonable steps to confirm that the boy took his medication or supervise him at the bowling alley

Question 29

A celebrity and her neighbor were constantly arguing over the celebrity's dog, which incessantly barked during the day when the celebrity was not home. One afternoon, the celebrity was followed by paparazzi while she walked her dog. When she returned from her walk, the neighbor came out of his house and screamed at her, "You abuse your dog; that's the only reason she would bark all day like that!" A paparazzo broadcast a video of the incident on his celebrity gossip website with the following headline: "Celebrity accused by neighbor of animal abuse." The broadcast caused the celebrity severe emotional distress. If the celebrity sues the paparazzo for intentional infliction of emotional distress, will the celebrity likely prevail? a - No, because the celebrity did not suffer any physical harm from the video broadcast. b - No, because the paparazzo did not act with actual malice.

Answer 29

b - Intentional infliction of emotional distress (IIED) occurs when the defendant intentionally or recklessly causes the plaintiff severe emotional harm by engaging in extreme and outrageous conduct. If the plaintiff is a public figure who alleges that his/her emotional distress was caused by the defendant's publication (e.g., newspaper article, broadcast), then the plaintiff must also show that the defendant published a false statement of fact with actual malice—i.e., knowledge of, or reckless disregard for, the falsity of the statement.

Question 30

A man got into an argument with another patron while drunk at a bar. Incensed, the man shoved the patron. The patron picked up a water glass and threw it at the man. The glass narrowly missed the man's head and broke on the floor behind him. The patron then shouted at the man, "You have messed with the wrong person. I have a gun at home, and I'm coming back to kill you." Hearing the patron's words, the man's friend pulled out his revolver and shot the patron, seriously injuring him. The patron filed suit against the friend Will the friend be held liable for the patron's injuries? c - Yes, because deadly force is not permitted in the defense of another. d - Yes, because the friend could not have reasonably believed that the harm threatened by the patron was imminent.

Answer 30

d A defendant may use deadly force to defend a third party when the defendant reasonably believes (1) the plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force on the third party, (2) the third party is subject to death, serious bodily harm, or rape, and (3) the defendant can prevent that harm only by immediate deadly force

Question 31

Late one night, a 25-year-old woman climbed over her next-door neighbor's fence to get a look at a new deck that the neighbor had recently built. The neighbor was on vacation and unaware that the woman was on his property. After climbing over the neighbor's fence, the woman tripped and fell on leftover lumber that the neighbor's builder had left in some tall grass after building the deck. The neighbor was aware that the builder had placed the lumber in the grass, but the neighbor had placed no warning sign in the area. The woman broke her ankle and filed a negligence action against the neighbor seeking damages. In a jurisdiction that follows the traditional approach regarding the duty owed to land entrants, does the woman have a valid claim for negligence against her neighbor? a - No, because the neighbor did not create the artificial condition. b - No, because the woman was a trespasser. c - Yes, because the neighbor owes trespassers a duty to warn of hidden dangers. d - Yes, because the woman suffered an injury caused by an artificial condition.

Answer 31

b Under the traditional approach, a land possessor generally owes no undiscovered or unanticipated trespassers. However, the land possessor must not act in an intentional, willful, or wanton manner that causes physical harm—e.g., by setting a trap that causes death or serious bodily injury. A land possessor who breaches this duty and causes the plaintiff physical harm is liable for negligence.

Question 32

The friend of a teacher owned a pumpkin patch that was not open to the public. The friend invited the teacher and his schoolchildren to enter the patch to pick their own pumpkins as part of a class trip. While the teacher was on the friend's property, a wild snake bit him as he reached into the patch to pick a pumpkin. Nearby, the friend had posted a large sign that stated, "Danger: Snakes and rodents may be present in the patch - exercise caution when picking pumpkins." The teacher brought a suit for negligence against the friend to recover damages for his injury. The jurisdiction applies the traditional rules of landowner liability. Is the friend likely to be held liable?

Answer 32

No, because the friend warned the teacher of possible snakes. A land possessor traditionally owes licensees (e.g., social guests) a duty to warn them about concealed dangers that are known or should be obvious to the land possessor

Question 33

A landowner who lived on a steep hill hired a landscaping company to install a retaining wall in his backyard. A week after the wall was installed, it collapsed and damaged the landowner's fence and flower garden. The landowner sued the landscaping company for negligence. At trial, it was established that the retaining wall collapsed because it was negligently installed by an employee of the landscaping company. As a result, the court found the landscaping company vicariously liable for the employee's negligence and issued a judgment in favor of the landowner for $25,000 in damages, which was paid by the landscaping company. There is no indemnification agreement between the employee and the landscaping company. Can the landscaping company successfully bring a suit for damages against the employee? b - No, because there was no indemnification agreement between the landscaping company and the employee. d - Yes, because the landowner recovered a judgment based on vicarious liability.

Answer 33

d Under the doctrine of respondeat superior, an employer is vicariously liable for any tort committed by its employee while acting within the scope of the employment relationship (as seen here). But when the employee's liability has been discharged by the employer—e.g., payment of a judgment for damages—the employer can seek indemnity (i.e., full compensation) from the employee for its loss not b - an indemnity agreement is not required in order for a party who was found vicariously liable for the negligence of another (as seen here) to bring an indemnification suit against that party

Question 34

A man knew that his brother's most prized possession was his favorite hunting rifle. The man, who was very competitive with his brother, believed that he would achieve more hunting success with a rifle as nice as his brother's. One day when the brother was at work, the man went to the brother's house and borrowed the rifle. The man took it hunting fired one shot, and shot an eight-point buck. He returned the rifle to the brother's house before the brother returned home from work. Later that night, the man told his brother that he had proved his theory about the rifle, and he explained what he had done. The brother was furious, and he sued the man for trespass to chattels. At trial, the brother testified that he was upset about the man's use of his rifle. He did not provide other evidence of damages. Is the brother likely to prevail on his claim? A - No, because the brother cannot show that the man's interference caused him actual damages. C - Yes, because the brother need not prove actual damages. D - Yes, because the man used the brother's chattel.

Answer 34

a - Trespass to chattels occurs when the defendant intentionally interferes with the plaintiff's possession of a chattel through dispossession, use, or intermeddling (i.e., causing physical contact). Nominal harm is inferred when the interference is through dispossession. But when the interference is through use or intermeddling, the plaintiff must prove ACTUAL DAMAGES through (1) actual harm to the chattel, (2) substantial loss of use of the chattel, or (3) bodily harm to the plaintiff

Question 35

The stunt double for a famous movie star had tried and failed to start his own acting career for many years. The movie star was known for a signature outfit from which he rarely strayed: a blue leather jacket, white pants, red boots, and a cowboy hat. The stunt double owned the same outfit because, with the movie star's consent, he once posed as the movie star for a picture at a publicity event. Hoping to make a name for himself, the stunt double wore the movie star's signature outfit to a club. At the bar, he pulled his cowboy hat over his face, punched another man in the face, and then yelled obscenities to the paparazzi before fleeing. The paparazzi filmed the entire incident, and the footage appeared on every news and social media outlet. Because everyone believed that the stunt double was the movie star, the movie star's reputation was tarnished by the incident, even after he publicly claimed that he had been impersonated by the stunt double. The controversy made the stunt double incredibly popular, and he subsequently received a few roles in independent movies and on reality television. If the movie star sues the stunt double for misappropriating his right to publicity, is he likely to succeed? a - No, because the movie star consented to the stunt double impersonating him. b - No, because the stunt double did not use the movie star's name or claim to be the movie star. c - Yes, because the stunt double's misappropriation of the movie star's likeness for his own benefit harmed the movie star's reputation. d - Yes, because the stunt double placed the movie star in a false light in the eyes of the public.

Answer 35

c - Liability for invasion of privacy based on misappropriation of the right to publicity arises when a defendant (1) uses the plaintiff's name, likeness, or an item closely associated with the plaintiff without authorization, (2) obtains a benefit, and (3) causes the plaintiff an injury Here, the stunt double used the movie star's signature outfit (item closely associated with the plaintiff) by wearing it to a club without his authorization. The stunt double then punched a man and yelled obscenities at the paparazzi, an incident that appeared on news and social media outlets. The resulting publicity earned the stunt double a few television and movie roles (benefit) and tarnished the movie star's reputation (injury).

Question 36

A kayaker on a lake did not notice when a small wakeboard boat towing a water skier approached him from behind. As the boat passed the kayaker, the boat driver thought it would be funny to quickly increase the boat's speed and knock the water skier into the water. The boat driver increased the boat's speed as he passed the kayak, alarming the kayaker and causing a wave that almost flipped the kayak. In attempting to keep his balance, the water skier behind the boat involuntarily struck the back corner of the kayak. The impact, combined with the wake, flipped the kayak. The boat driver saw the incident but did not stop. The kayaker was terrified when his kayak flipped over, and he was trapped under the kayak for a few moments before he was able to free himself. He subsequently had to see a therapist to get over his new fear of water after suffering nightmares from the incident. what claims can the kayaker make to recover against the boat driver

Answer 36

Battery and negligent infliction of emotional distress Here, the boat driver intended to cause harmful contact with the skier by increasing the boat's speed and knocking him into the water (intent to commit battery). And since the driver instead caused the skier to hit the kayaker (same tort; different person), the driver's initial intent to commit a battery against the skier transferred to the kayaker. Under the zone-of-danger theory, NIED liability arises when: - the defendant's negligent conduct placed the P in danger of immediate bodily harm and - that danger caused the plaintiff serious emotional distress. Here, the boat driver's negligence caused the kayaker's kayak to flip over (danger of immediate bodily harm), and that danger caused the kayaker to suffer nightmares (serious emotional distress). Therefore, the kayaker might recover for both battery and NIED. Note: doctrine of transferred intent generally does not apply to intentional infliction of emotional distress

Question 37

An on-duty firefighter responded to a 911 call from a tenant about a fire in his apartment. The fire was caused by the tenant when he fell asleep while smoking a cigarette in his bed. The firefighter who responded to the tenant's call injured her ankle when she slipped and fell on a defective walkway outside the apartment building. The maintenance of the walkway was the responsibility of the apartment building owner, who knew the walkway needed to be repaired. Despite her ankle injury, the firefighter entered the tenant's apartment to extinguish the fire, where she was further injured when a section of the apartment wall that was burned by the fire fell on her. If the firefighter files an action for negligence against the tenant and the owner, she can likely recover from the owner, but not the tenant. Why?

Answer 37

professional rescuers are barred from recovering in negligence for harm that resulted from the special dangers of their jobs. BUT professional rescuers can recover for harm that resulted from a land possessor's failure to warn them about concealed dangers known to the land possessor. That is because professional rescuers are considered licensees.

Question 38

A pool cleaner at a country club used chlorine purchased from a company to kill the harmful bacteria that grew in his customers' pools. The company sold its chlorine in plastic containers with plastic screw-tops. The containers had a warning that stated, "Caution: Chlorine," but the warning did not specifically state that chlorine fumes were harmful if inhaled. The label also warned that the containers may leak if not stored upright. Despite the warning, the pool cleaner haphazardly stacked the containers on their sides and stored them in a small shed. A maintenance worker assigned to organize the shed sustained injuries after inhaling excess fumes that had built up in the shed from the leaking containers. The maintenance worker filed suit against the company under a theory of strict products liability. At trial, the company established that a completely leak-free container for the chlorine was too expensive to manufacture and that an ordinary user of its product would be aware of the dangers of chlorine fumes, without an additional warning. The jurisdiction applies the risk-utility test to determine whether a design defect exists. Is the maintenance worker likely to succeed on his claim? a - No, because the maintenance worker was not the appropriate plaintiff to bring this action. b - No, because there was no economically feasible alternative design for the containers. c - Yes, because the pool cleaner's negligence contributed to the maintenance worker's injury. d - Yes, because the warning label did not warn of the dangers of chlorine fumes.

Answer 38

b - Under the risk-utility test, a product is defectively designed if (1) the design creates a foreseeable risk of physical harm and (2) that risk could have been mitigated by a reasonable alternative design—e.g., a safer design available at a reasonable cost Here, the company's plastic containers posed a foreseeable risk of leaking chlorine, which is harmful when its fumes are inhaled. However, that risk of harm could not be mitigated by an economically feasible reasonable alternative design because it was established at trial that a completely leak-free container for the chlorine was too expensive to manufacture. As a result, the plastic containers were not defective, so the maintenance worker is not likely to succeed on his strict products liability claim.

Question 39

Your client is a man who was injured while playing a round of golf at a miniature golf course. On the 13th hole, the man noticed that the golf course was developing a new hole that included a giant mechanical shark's jaws over a water pond. The new hole was marked off with a fence and a sign that stated, "Danger! Site Under Construction: Authorized Personnel Only" Curious to see the new hole, the man ignored the sign and climbed over the fence. The course manager happened to see the man enter the prohibited area on the manager's security camera. Knowing that the electrical work for the new hole was incomplete and that the concealed live electrical wires made the construction site unsafe, the manager immediately went over to the new hole. The manager called over the fence and told the man to "come back here and don't touch anything!" When the man ignored the manager's command and reached down under the shark's jaws to touch the water pond, he received severe electrical burns due to a stray wire that was touching the water. Your client wants to sue the golf course for negligence to recover damages for his electrical burns. The jurisdiction applies the traditional rules of landowner liability. Which of the following search terms would be most likely to produce resources that will help you analyze whether your client could prevail? c - Duty owed to discovered trespassers. d - Duty owed to flagrant trespassers.

Answer 39

c not d - Jurisdictions following the Restatement approach impose upon land possessors a duty of reasonable care to all land entrants EXCEPT flagrant trespassers. But, this jurisdiction follows the traditional approach, which divides land entrants into invitees, licensees, and discovered and unknown trespassers—not flagrant trespassers

Question 40

A woman hired a personal trainer to help her lose weight. In addition to enforcing a rigorous workout regimen, the trainer gave the woman appetite suppressant pills that the trainer claimed to have formulated himself. The trainer told the woman that the pills contained a combination of natura herbs that would safely curb her food cravings. The trainer did not charge the woman for the pills. The woman took the pills for a week. Although she stopped having food cravings, she also started to feel dizzy and had a hard time breathing. The woman showed the pills to a pharmacist, who identified them as store-bought pills containing a drug that suppressed one's appetite but had potentially dangerous side effects such as dizziness, headaches, and respiratory difficulty. The woman immediately stopped taking the pills, and within a day she stopped feeling dizzy and having difficulty breathing. If the woman files suit against the trainer for intentional misrepresentation, will she succeed? a - No, because she suffered no pecuniary loss. c - Yes, because she relied on the trainer's statement that the pills were safe.

Answer 40

a - Liability for intentional misrepresentation arises when (1) the defendant knowingly or recklessly misrepresents a material fact with the intent to induce the plaintiff's reliance and (2) the plaintiff reasonably relies on the misrepresentation and suffers pecuniary loss as a result

Question 41

The owner of an apartment complex employed a pest control company as an independent contractor to remove unwanted insects from one of the two buildings in the complex. The pest control company fumigated the building with a toxic gas. Even though the company exercised reasonable care, the gas escaped into the owner's other building, which adjoined the fumigated building, where the gas caused serious illness to a tenant therein. The tenant had received a written advance notice about the fumigation that advised the tenant of the need to vacate his apartment during the hours the fumigation was conducted. The tenant had intended to leave his apartment, but he fell asleep just prior to the fumigation due to a medication he was taking for a medical condition. The applicable jurisdiction treats fumigation as an abnormally dangerous activity and adheres to the rule of contributory negligence. The tenant brought a strict liability action against the owner of the apartment complex to recover damages for his harm. Who will likely prevail? a - The owner, because the fumigation was conducted by an independent contractor. b - The owner, because the pest control company exercised reasonable care. c - The owner, because the tenant's own negligence bars recovery. d - The tenant, because the owner is vicariously liable for the harm that resulted from the fumigation.

Answer 41

d - A person who hires an independent contractor is generally not vicariously liable for the independent contractor's torts. However, vicarious liability will be imposed when the person had a nondelegable duty of care—e.g., when the contractor's work involved an abnormally dangerous activity not c - In contributory negligence jurisdictions, the plaintiff's own negligence is a complete bar to recovery in a negligence action, but it is no defense to strict liability

Question 42

A principal is generally not vicariously liable for torts committed by its independent contractor—i.e., one who performs work for another outside an employment relationship. However, vicarious liability will be imposed if

Answer 42

if the independent contractor's work breaches a nondelegable duty. - Maintain safe conditions on premises open to public (eg, store, restaurant) - Safely perform activities that: -- are abnormally or highly dangerous infringe on private property right (eg, nuisance, trespass) -- are regulated by law or -- are conducted in public place

Question 43

A rancher kept his cows in a pasture beside a busy road. One evening, a cow knocked down a short portion of the fence separating the pasture from the road and wandered down the street. A motorist driving down the road turned the corner and saw the cow. Even though the motorist was driving at a reasonable speed, he knew he could not stop before he would hit the cow. Knowing that hitting an animal that size could cause a fatal car accident, the motorist veered off of the road and into a beet farm, damaging a long stretch of the beet farmer's fence in the process. If the beet farmer sues the motorist for trespass to land to recover damages, is he likely to succeed? A - No, because the motorist can claim the privilege of private necessity. c - Yes, because the motorist caused actual damage to the farmer's fence.

Answer 43

c. -Although a trespass is excused when it arises from private necessity—i.e., an intrusion that is, or reasonably appears to be, necessary to protect oneself, third parties, or property—the trespasser is still liable for actual damages caused by the trespass unless the entry was for the landowner's benefit

Question 44

A man managed a small hotel. His ex-wife stopped at the hotel one day, demanding that he give her overdue child support. The hotel manager asked his ex-wife to leave because he did not wish to discuss their financial problems while he was at work. On her way out, she let herself into the manager's office with a key she had retained, unbeknownst to the manager, to use his private bathroom. The sink in the bathroom had stopped up and flooded the bathroom floor. Because she was upset and rushed, the ex-wife did not notice that the floor was wet, and she slipped and sprained her ankle. The ex-wife sued the hotel for negligence. The evidence at trial showed that neither the manager nor the other employees of the hotel knew that the bathroom had flooded. Is the ex-wife likely to prevail on her negligence claim in a jurisdiction that follows traditional rules of landowner liability? a - No, because the hotel did not owe the ex-wife, an undiscovered trespasser, an affirmative duty of care. B - No, because the hotel's only duty was to warn or protect the ex-wife from concealed, dangerous artificial conditions that involved risk of death or serious bodily harm. c - Yes, because an innkeeper is held to the highest standard of care consistent with the practical operation of the business. d - Yes, because the hotel owed a duty to conduct reasonable inspections of the property and make it safe for the protection of the ex-wife.

Answer 44

a - A land possessor owes no duty to trespassers—i.e., persons who intentionally enter another's land without permission—unless the land possessor discovers or has reason to anticipate their presence

Question 45

Under the risk-utility test, a design defect exists when

Answer 45

(1) the risks posed by the product outweigh its benefits, and (2) the risk could be mitigated by a reasonable alternative design.

Question 46

An intoxicated college student was biking and crashed. He fell and lost consciousness. A driver was unknowingly driving through an intersection with a four-way stop; the stop signs had been pulled down earlier that night. As the driver went through the intersection, he noticed the unconscious student lying in the road. He stepped on the brakes, but the brakes failed completely, and he ran over the student's legs. The student sued the driver for negligence to recover damages for his broken legs. At trial, it was conclusively established that the driver had brought his car to a mechanic to be serviced earlier on the day of the accident and that the mechanic's negligent service had caused the brakes to fail. It was also established that if the brakes had been serviced properly, the driver would have been able to stop his car before injuring the student. Which of the following is the driver's strongest defense? a - The driver used reasonable care in the maintenance of his car. d - The student's injuries were not proximately caused by the driver's running the stop sign.

Answer 46

a - no breach of DoC not d - The driver's failure to stop at the intersection was not the proximate cause of the student's injuries—the brake failure was. This would provide defenses if the student asserted a negligence per se theory for failure to stop at the stop sign, but it is unlikely he did since the brake failure was the main issue at trial.

Question 47

is expert testimony on the std of care for a specific profession required? or can a jury just make a finding?

Answer 47

Establishing a profession's applicable standard of care typically requires expert testimony. But when the defendant's negligence is so apparent that a lay person could identify it, expert testimony is not required

Question 48

A golfer's friend invited him to play a round of golf at the friend's country club. Intending to hit the ball into the middle of the fairway of the fifth hole, the golfer accidentally hit the ball and it landed in the rough, a few feet away from the fence of one of the homes bordering the golf course. The area where his ball landed actually belonged to the owner of the home, not the golf course. The homeowner saw the golfer hit the ball onto his property and subsequently filed suit for damages against him based on trespass. Is the homeowner likely to succeed? b - No, because the golfer lacked the intent to cause a physical invasion of the homeowner's property. c - Yes, because the golf ball struck by the golfer physically invaded the homeowner's property. d - Yes, because the golfer intentionally hit the golf ball that landed on the homeowner's property.

Answer 48

b To trespass, the D must intentionally enter/remain on land (or cause a thing or other person to enter/remain on land)

Question 49

The owner of pastureland permitted a herder to keep several of the herder's goats in the pasture. The goats wandered off the land, leapt over a fence properly maintained by a neighbor, and rambled into the neighbor's garden. Once in the garden, the goats ate the vegetables growing there. In a strict liability action brought by the neighbour, the herder is liable. Is the landowner also liable?

Answer 49

No owner of an animal—other than a dog or cat—that intrudes upon another's land is strictly liable for any reasonably foreseeable harm or damage caused by that intrusion strict liability does NOT extend to the owner of the land on which the trespassing animals were kept—unless the landowner also had the right to possess the animals

Question 50

A manufacturer sells shoes with the manufacturer's brand name to two competing retailers. When the larger of the two retailers, a national retailer, learns that the manufacturer is also selling the same brand of shoes to the retailer's competitor, the retailer stops placing orders for the shoes with the manufacturer. In response to a query by the manufacturer as to the reason for the larger retailer's action, the larger retailer states that it does not want to carry the same brand-name shoes as the smaller regional retailer. Under no contractual obligation to sell the brand-name shoes to the regional retailer, the manufacturer stops doing so. The national retailer resumes ordering the brand-name shoes from the manufacturer. The regional retailer, while suffering a loss of income due to its inability to sell the brand-name shoes, continued to be profitable since shoe sales represented only a small fraction of its overall sales. In an action for intentional interference with a contract brought by the regional retailer against the national retailer, which of the following would be the national retailer's WEAKEST argument? a - The national retailer did not substantially impact the regional retailer's overall business. b - The national retailer was merely exercising its freedom to refuse to deal with another. c - The regional retailer was a competitor. d - There was no contract between the manufacturer and the regional retailer.

Answer 50

a - The plaintiff's pecuniary loss need not be substantial for it to prevail on an intentional interference with contract claim. A showing of any pecuniary loss is sufficient

Question 51

A businessman entered an empty barbershop to get a haircut, and the barber began cutting the businessman's hair. A few days earlier, the barber had seen his girlfriend kissing another man. The barber had been unable to see the man's face, but the barber did see a distinct tattoo on the back of the man's neck. When the barber saw that the businessman had the same tattoo on the back of his neck, the barber accused the businessman of having an affair with the barber's girlfriend. Intending to frighten the businessman, the barber waved his scissors at the businessman, grabbed his tie, and threatened to hurt him if he did not confess. The businessman would not admit to the alleged affair. The barber then tried to cut off the businessman's tie but dropped the scissors before he could do so. Under which tort theory should the businessman bring an action against the barber? a - Battery. B - Intentional infliction of emotional distress.

Answer 51

A defendant is liable for battery if: - the D intended to cause contact with the plaintiff's person - the D's affirmative conduct caused such contact and - that contact caused bodily harm or was offensive to the P. Contact is offensive when a person of ordinary sensibilities (i.e., a reasonable person) would find it so. And the plaintiff's "person" includes anything connected to the plaintiff's body (e.g., an item of clothing). Here, the barber intentionally grabbed the businessman's tie and threatened to hurt him if he did not confess. A person of ordinary sensibilities would find that contact offensive. And since grabbing an item of the businessman's clothing constitutes contact with his person, the businessman should pursue a battery claim against the barber

Question 52

A retail company hires an accountant to conduct an independent audit of its books and records. The accountant is specifically informed that the company intends to use the opinion to obtain goods from a supplier. Due to inadvertent miscalculations, the accountant erroneously provides the company with a favorable, unqualified opinion. The company gives the accountant's opinion to the supplier. Impressed by the opinion, the supplier decides to purchase the company instead of merely supplying it with goods. Subsequently, after learning of the true condition of the company, the supplier sells the company at a loss. The supplier brings an action against the accountant for negligent misrepresentation. Who will prevail? b -The accountant, because the accountant's liability does not extend to the supplier's use of the accountant's opinion. c -The supplier, because the accountant was aware that the supplier was the intended user of the opinion. d 0The supplier, because the supplier relied on the accountant's opinion.

Answer 52

b a defendant who negligently provides information for a particular purpose is not liable for the plaintiff's financial loss if the plaintiff used the information for a DIFFERENT purpose

Question 53

A D is not subject to civil liability for battery when it is committed in defense of a third party if:

Answer 53

D reasonably believes that (1) the circumstances are such that the third party has a privilege of self-defense and (2) the defendant's action is immediately necessary to protect the third party