4 Negligence Flashcards
Question 2975 (Mixed MBE PQ 2)
The plaintiff and his friend were walking on a city sidewalk. The friend jokingly pushed the plaintiff after the plaintiff started making fun of the friend’s taste in music. This caused the plaintiff to trip over his own feet and stumble into the bike lane of the street. The defendant driver, who was involved in a heated argument on his cell phone, had veered into the bike lane and did not see the plaintiff. He hit the plaintiff, causing the plaintiff numerous injuries. The plaintiff has sued the driver. The evidence at trial shows that the plaintiff’s injuries were caused by the negligence of both the friend and the defendant. The state has adopted a system of pure several liability.
Is the plaintiff likely to prevail in a negligence claim against the defendant?
A. No, because the plaintiff’s injuries were caused by multiple tortfeasors.
B. No, because the state does not recognize joint and several liability.
C. Yes, because the defendant and the friend were independent tortfeasors.
D. Yes, because the defendant’s conduct was the actual cause of the plaintiff’s injury.
D. Yes, because the defendant’s conduct was the actual cause of the plaintiff’s injury.
Answer choice D is correct. In order to prove negligence, the plaintiff must establish that the defendant’s actions were both the actual cause and the proximate cause of the plaintiff’s injury. Generally, the plaintiff must show that his injury would not have occurred but for the defendant’s conduct. When multiple defendants have contributed to the plaintiff’s injury, the plaintiff may establish causation by showing that the defendant’s conduct was a substantial factor in causing the plaintiff’s injury. In this case, the defendant and the friend were both the actual causes of the plaintiff’s injury, and the plaintiff could recover against either or both of them.
Answer choice C is incorrect because when more than one individual is the cause of a plaintiff’s harm, the plaintiff may choose to sue only one defendant regardless of whether the defendants acted in concert with one another or were independent tortfeasors.
Question 2405 (MBE Exam #3 AM)
A patron at a resort ranch took part in a supervised horseback trail ride. Prior to the ride, the patron executed a valid release that enumerated the inherent risks of horseback riding and, by its terms, relieved the resort from liability from any loss, damage, or injury to the guest’s person or property suffered during the ride attributable to the negligence of the ranch or its employees. The patron was injured by a fall from the horse. The horse reared in response to negligent behavior of another rider who was also a patron at the ranch. The patron filed suit against the ranch and the other rider for damages resulting from his injuries that totaled $400,000. At trial, it was determined that the ranch was 75% at fault for the patron’s injuries due to its selection and training of the horse, and that the other rider was 25% at fault. The applicable jurisdiction recognizes the validity of such releases and has enacted both a modified comparative negligence statute and a pure several liability statute.
How much can the patron recover from the ranch?
A. Nothing
B. $100,000
C. $300,000
D. $400,000
A. Nothing
Answer choice A is correct. In general, parties can contract to disclaim liability for negligence. An exculpatory provision in a contract acts as a bar to recovery for harms arising from the negligence of the party protected by the contract. This bar applies even where the state has adopted a comparative negligence statute. Here, the patron entered into a valid agreement to exculpate the ranch from liability for its negligence. Consequently, answer choices B, C, and D are incorrect.
NEGLIGENCE - Defenses to Negligence
Question 1459 (MBE Exam #3 PM)
After a man suffered a major epileptic seizure, he reported the seizure to his state’s Motor Vehicle Administration, in compliance with the following statute: Driver’s license holders diagnosed with epilepsy shall be required to report their epilepsy and seizures to the State Motor Vehicle Administration (SMVA). The SMVA shall refer their license applications to the Medical Advisory Board for review. The Board may, in its discretion, suspend or revoke a person’s driver’s license or refuse to renew a license for longer than 90 days if the person’s driving may be adversely affected by a seizure. Pursuant to its authority, the Medical Advisory Board revoked the man’s driver’s license. Nonetheless, the man kept driving his car to work, and one morning, he hit a pedestrian with his car. The pedestrian was crossing the street in a crosswalk. There is no evidence that the man was suffering an epileptic seizure at the time of the incident. The pedestrian sued the man, and during trial, argued that the man’s actions constituted negligence per se.
Will the pedestrian’s argument be successful?
A. No, because the man was not suffering a seizure at the time of the accident.
B. No, because the harm suffered by the pedestrian was not of the type contemplated by the statute.
C. Yes, because the man was driving in violation of the Medical Advisory Board’s order.
D. Yes, because the pedestrian is in the class of persons intended to be protected by the statute.
A. No, because the man was not suffering a seizure at the time of the accident.
Answer choice A is correct. When a criminal or regulatory statute (or an administrative regulation or municipal ordinance) imposes a penalty for violation of a specific duty, if the defendant violates the statute by failing to perform that duty, he is liable in negligence to anyone in the class of people intended to be protected by the statute for any harms of the type the statute was intended to protect against. This is known as negligence per se. Once negligence per se is established, in order for the defendant to be liable, the plaintiff must prove that his injuries were proximately caused by the defendant’s violation of the statute. Here, the accident was not of the type that the statute was designed to protect against. The statute is designed to prevent the consequences of a driver suffering a seizure while behind the wheel, and the man was not suffering a seizure, so the statute is inapplicable to the issue of his negligence.
Answer choice B is incorrect because the pedestrian was hit by a vehicle; this harm is within the type contemplated by the statute. Answer choices C and D are incorrect because they ignore the “manner of harm” requirement for negligence per se.
NEGLIGENCE - The Standard of Care
A racetrack held a motorcycle race, which was sponsored by a local motorcycle dealership. Under the sponsorship agreement, the dealership was required to arrange for licensed and trained emergency medical technicians (EMTs) to be present during the race. The dealership contracted with a licensed and reputable emergency medical services (EMS) firm that supplied EMTs for events such as these.
A motorcyclist participating in the race was injured when he lost control of his motorcycle. The motorcyclist was treated at the scene by the EMTs. In removing the motorcyclist’s helmet, one of the EMTs twisted the motorcyclist’s neck, causing him to become permanently paralyzed.
The motorcyclist has sued both the EMS firm and the dealership, alleging that the EMT’s careless conduct caused his paralysis.
Assuming the validity of the motorcyclist’s negligence claim against the EMS firm, which of the following best characterizes the dealership’s potential liability?
A. The dealership is directly liable for hiring the EMS firm.
B. The dealership is vicariously liable, because it owed a nondelegable duty to provide emergency care for the race.
C. The dealership is vicariously liable, because the EMT was careless in the course of her employment.
D. The dealership is neither directly liable nor vicariously liable.
D. The dealership is neither directly liable nor vicariously liable.
A plaintiff can recover for negligence under theories of:
• direct liability (for the defendant’s own conduct) – requires proof that the defendant’s failure to exercise reasonable care caused the plaintiff harm (eg, negligently hiring an independent contractor) or
• vicarious liability (eg, for an independent contractor’s conduct) – requires proof that an independent contractor’s work involved a nondelegable duty (see image above) owed by the defendant that cannot be assigned to a third party and the contractor’s breach caused the plaintiff harm.
However, if the independent contractor’s work involved a delegable duty owed by the defendant, the defendant is not vicariously liable for the contractor’s negligent performance of that duty.
Here, an EMT twisted the motorcyclist’s neck, which caused the motorcyclist to become permanently paralyzed. The EMT was an employee of the EMS firm—not the dealership. As a result, the EMS firm is vicariously liable under the doctrine of respondeat superior for the EMT’s careless conduct in the course of her employment. However, the dealership is neither directly liable nor vicariously liable for the EMT’s negligence because:
• the dealership exercised reasonable care in hiring the licensed and reputable EMS firm that supplied EMTs for similar events (no direct liability) (Choice A) and
• although the EMT was careless in the course of her employment, the dealership’s duty to provide emergency medical care is a delegable duty that was properly delegated to the EMS firm as its independent contractor (no vicarious liability) (Choices B & C).
Educational objective:
A defendant can be (1) directly liable for his/her own negligence or (2) vicariously liable for an independent contractor’s negligence if the contractor’s work involved a nondelegable duty owed by the defendant and the contractor’s breach of that duty caused the plaintiff harm.
Question 6165 mix mbe pq s5
A woman purchased a can of ginseng soda from an artisanal grocery store that manufactures and packages all of its own food on-site. When the woman opened the can of soda, she discovered the carcass of a small mouse inside. The woman immediately fainted and hit her head on the side of a bench. The woman has brought a negligence action against the store. At trial, it was established that the can was in the sole possession of the store until the woman bought it. However, the woman was unable to present any direct evidence of the store’s negligence. At the conclusion of the woman’s case, the store moved for a directed verdict.
Should the trial judge grant the motion?
a Yes, because a reasonable juror could not conclude that the store was negligent based upon the evidence presented.
b Yes, because the woman offered no direct evidence supporting her claim that the store was negligent.
c No, because there is a rebuttable presumption of the store’s negligence based upon circumstantial evidence.
d No, because the store’s negligent conduct can be inferred in the absence of any direct evidence of negligence.
Answer choice D is correct. Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of the defendant’s negligent conduct in the absence of direct evidence of such negligence. To permit this inference, the plaintiff must prove that the accident (i) was of the kind that ordinarily does not occur in the absence of negligence, (ii) was caused by an agent or instrumentality within the exclusive control of the defendant, and (iii) was not due to any action on the part of the plaintiff. Typically, the carcass of a rodent will not be found in a can of soda absent negligence, and at trial it was established that the can had been within the exclusive control of the store. There is no evidence that the woman contributed to the presence of the rodent in the can. Therefore, under these facts, the jury is permitted to infer that the store engaged in negligent conduct. Accordingly, the trial court is required to deny the store’s motion for a directed verdict and the trier of fact must decide the issue of negligence. Answer choice A is incorrect because res ipsa loquitur will allow the jury to decide the issue of negligence based on these facts. Answer choice B is incorrect because the plaintiff is not required to offer direct evidence of the defendant’s negligence if he is able to satisfy the requirements of res ipsa loquitur. Answer choice C is incorrect because res ipsa does not create a rebuttal presumption of negligence; rather, it simply establishes an inference of negligence sufficient to avoid dismissal of the plaintiff’s action.
NEGLIGENCE - Breach of Duty
