Cards from MBE Questions

Question 1

J&S Liability and Pre-Existing Conditions

Answer 1

Under joint and several liability, it is impossible to separate the pre-existing condition from the new worsened condition.

Question 2

J&S Liability, Impossible to Apportion

Answer 2

the wrongdoers, rather than their victim, should bear the burden of the impossibility of apportionment.
-J&S liability applies only when the acts of two or more persons combine to produce one result.

Question 3

Damages in strict products liability

Answer 3

Damages in strict products liability are permitted to the extent that they include any personal injury to plaintiff or property damage. A claim for purely economic loss (e.g., loss of business) is not allowed under a strict products liability theory.

Question 4

res ipsa loquitur (i.e. allowing an inference of negligence) - elements

Answer 4

(i) the accident was of a kind that ordinarily does not occur in the absence of negligence; (ii) it was caused by an agent or instrumentality within the exclusive control of the defendant; and (iii) it was not due to any action on the part of the plaintiff.
- Note: while the defendant is often in a better position to explain an accident when the doctrine of res ipsa loquitur is applied, this is not necessary to establish res ipsa loquitur.
- Framing the inquiry: Is it reasonable to infer that the defendant was negligent?
- If there is direct evidence of negligence, the res ipsa loquitur doctrine does not apply

Question 5

RIL - products liability context

Answer 5

“In the instant case, the botulinium bacteria could have arisen either in the manufacturing process, when the soup can was under the control of the food company, or later, when the soup can was under the control of either the supermarket or the consumer herself. Thus, res ipsa loquitur does not apply, and the consumer’s case cannot survive a directed verdict without direct evidence of negligence on the part of the food company.”

Question 6

Risk-Utility Test

Answer 6

• Using the risk-utility test, to prevail on a claim under a strict products liability design defect theory, the jury must determine whether the risks posed by the product outweigh its benefits.
• A plaintiff must prove that a reasonable alternative design was available to the defendant and the failure to use that design has rendered the product not reasonably safe.
• The alternative design must be economically feasible.

Question 7

Failure to warn scenarios

Answer 7

• manufacturer of a defectively designed product generally cannot escape liability for harms that result from the defect by warning about the defect.
• a consumer’s failure to read a warning can protect a commercial supplier from liability where the product is defective due to a failure to warn
• a commercial supplier is generally not similarly shielded where the defect is due to a defective design.

Question 8

Deadly force in self defense

Answer 8

• A person may use deadly force to defend himself if he has a reasonable belief that force sufficient to cause serious bodily injury or death is about to be intentionally inflicted upon him.
• In this case, the plaintiff will not prevail if the guard’s use of deadly force, firing the gun, was reasonable to defend himself.

Question 9

If no duty of care is owed

Answer 9

there can be no liability for negligence

Question 10

Duty of care to undiscovered trespassers

Answer 10

• Landowners do not owe a duty to undiscovered trespassers.
• Additionally, landowners do not have a duty to inspect their property for evidence of trespassers.
• Here, the plaintiff is an undiscovered trespasser as the defendant was unaware of her presence.
• Accordingly, the defendant did not owe the plaintiff a duty.

Question 11

Duty of care to foreseeable plaintiffs

Answer 11

Even when a defendant’s act causes injury to a plaintiff, the plaintiff may not recover if he was outside the zone of foreseeable harm. Although the defendant in this case negligently parked his car in front of the fire hydrant, it was not foreseeable that the plaintiff might be harmed by this act.

Question 12

Foreseeable Negligence

Answer 12

Answer choice B is incorrect because the owner’s failure to warn the mechanic was foreseeable negligence, which is not a superseding cause, and therefore does not relieve the driver of liability.

Question 13

Liability of the first defendant in comparative negligence JD where there are two negligent defendants and the negligence of the second is foreseeable,

Answer 13

• The facts state that the driver was negligent. If that negligence was the actual and proximate cause of an injury, then the driver is liable.
• Clearly, the mechanic’s injury would not have happened but for the driver’s negligent operation of the car.
• Therefore, so long as the driver’s operation of the car was also the proximate cause of the mechanic’s injury, then the driver will be liable.

Question 14

strict products liability based on a manufacturing defect

Answer 14

(i) the product was defective, (ii) the defect existed at the time the product left the defendant’s control, and (iii) the defect caused the plaintiff’s injury when used in an intended or reasonably foreseeable way.
- While misuse of a product is not an automatic bar to recovery, the particular misuse must be foreseeable.

Question 15

misuse in a manufacturing defect case - analysis

Answer 15

While misuse of a product is not an automatic bar to recovery, the particular misuse must be foreseeable.

Question 16

Trespass

Answer 16

• Trespass to land occurs when the defendant’s intentional act causes a physical invasion of the land of another.
• -The defendant need only have the intent to enter the land, not the intent to commit a wrongful trespass.
• Intent to trespass is not necessary; the defendant need only have the intent to enter the land at issue, or to cause a physical invasion with foreign objects.
• No proof of actual damages is required.
• the defendant is liable for trespass, even if he no longer owns the property in question (defendant built a garage that encroached on a neighbor’s land;) - liable even if someone who bought the land from the defendant knew of the encroachment.

Question 17

Trespass - privilege of private necessity

Answer 17

• The privilege of necessity is available to a person who enters onto the land of another in order to prevent injury that is substantially more serious than the invasion itself.
• A defendant who acts to prevent a threatened injury from some source of nature or other independent cause that is not connected with the plaintiff is said to be acting under necessity.
• Defendants acting under necessity have the right to use the property of others to save their own lives or more valuable property.
• Private necessity is a qualified privilege to protect a limited number of people.
• The property owner is entitled to recover actual damages even though the defendant was not a trespasser but was acting under private necessity.
• In this case, if the plaintiff had reasonable grounds to believe his boat might sink, his trespass is permissible under the privilege of private necessity as he is protecting his property. However, the plaintiff would still be liable for any actual damages he caused to the owner’s dock.
• If there are no actual damages, nominal damages are not available.

Question 18

Manufacturing defect - parties agree that bottler and not the store were responsible for the defect

Answer 18

• The seller of a product with a manufacturing defect that is dangerous to the health of a consumer is strictly liable for the injuries it causes.
• contributory negligence, if any, is no defense to a strict products liability action.
• the store sold the bottle in a defective condition to the consumer, so it can be held strictly liable even though it did not bottle the soda.
• Liability is not based on exclusive control but on the sale to the consumer.

Question 19

Partial comparative fault JD problem/Same problem - pure comparative fault JD

Answer 19

-In a modified (i.e., partial) comparative negligence jurisdiction, when there is only one defendant, a plaintiff may recover from the defendant to the extent of the defendant’s fault, but the plaintiff is precluded from recovering if his fault exceeds the defendant’s fault.
-Because the plaintiff here was 70% at fault, he is liable for 70% of the defendant’s damages (i.e., $700).
-And, because the plaintiff was more at fault than the defendant, the plaintiff cannot recover anything from the defendant for damages to his own car.
-Consequently, the defendant is entitled to recover $700 from the plaintiff.
PURE COMPARATIVE FAULT ANALYSIS -
-In a pure comparative negligence jurisdiction, the plaintiff is not precluded from recovering if his fault exceeds the defendant’s fault.
-Because the defendant was 30% at fault, she is liable for 30% of the plaintiff’s damages (i.e., $3,000).
-Because the plaintiff was 70% at fault, he is liable for 70% of the defendant’s damages (i.e., $700).
-Offsetting the defendant’s recovery from the plaintiff’s recovery, the plaintiff is entitled to recover $2,300 (i.e., $3,000 - $700).

Question 20

SL of lessor/LO - goats of a lessor wandering, jumping a neighbor’s fence, and eating the neighbor’s vegetable garden?

Answer 20

• owner of any animal, wild or domestic (other than a household pets) is strictly liable for any reasonably foreseeable damages caused by the animal while trespassing on another’s land.
• Strict liability does not extend to the owner of the land on which the animals are kept, even when the animals are on the land with the landowner’s permission, unless the landowner also has the right to possess the animals.

Question 21

Negligent Infliction of Emotional Distress

Answer 21

• Negligent infliction of emotional distress requires proof that the defendant created a foreseeable risk of injury to the plaintiff, which caused severe emotional distress likely to result in physical injury.
• The facts state the doctor was negligent, and that his negligence directly resulted in physical harm to the applicant.

Question 22

Negligent Misrepresentation

Answer 22

• negligent misrepresentation (which generally applies only to business transactions) requires that the plaintiff justifiably relies upon a misrepresentation made by defendant.
• Under these facts, the applicant did not rely on the doctor’s statement, so negligent misrepresentation is not a viable cause of action.

Question 23

Invasion of privacy

Answer 23

• invasion of privacy requires the applicant to establish that the doctor unreasonably intruded into the applicant’s private affairs or that the doctor publicly disclosed private facts about the applicant.
• The applicant cannot prove either, because the facts lead us to believe that the applicant consented to the review of her medical records, and because the disclosure was not public.

Question 24

RIL - agent or instrumentality within the exclusive control of the defendant

Answer 24

• Since almost all of the apartments have been rented, the landlord cannot be said to have control over the premises from which the flower pot fell.
• Consequently, the doctrine cannot be applied to create an inference that the landlord was negligent.

Question 25

duties - need proof of breach (case of landowner)

Answer 25

-while a landowner does owes a duty to prevent an unreasonable risk of harm to pedestrians on adjacent property, in this case, since almost all of the apartments have been leased, there is a lack of evidence that the landlord has breached this duty.

Question 26

typical way of cue-ing RIL in the question prompt

Answer 26

“If the pedestrian proves the foregoing facts and offers no other evidence explaining the accident, will his claim survive a motion for directed verdict offered by the defense?”

Question 27

prima facie case for SL (here, a case of an abnormally dangerous activity)

Answer 27

• The nuclear power plant will be held strictly liable for any damages caused as they were engaged in an abnormally dangerous activity, dealing with radioactive materials, and members of the public were foreseeable plaintiffs.
• A prima facie case for strict liability requires (i) an absolute duty to make the plaintiff’s person or property safe, (ii) breach, (iii) actual and proximate causation, and (iv) damages.
• Specific negligence need not be proven.
• Answer choices A, B, and C relate to the issues of injury, damages, and causation, all of which are substantial issues that will need to be addressed.
• “absolute duty”

Question 28

Physician - duty/what constitutes breach of duty (context: informed consent)

Answer 28

• Physicians are under a special obligation to explain all material risks of a medical procedure to a patient in advance of a patient’s decision to consent to treatment.
• Failure of a physician to secure informed consent from the patient constitutes a breach of the physician’s duty toward the patient and is actionable as medical malpractice.
• Doctors are not under an obligation to disclose when the risk is a commonly known risk, the patient waives or refuses the information, the patient is incompetent (although the physician must make a reasonable attempt to secure informed consent from a guardian), or disclosure would be too harmful to the patient (e.g., it would upset the patient enough to cause extreme illness, such as a heart attack).
• Here, the man refused to hear about all the risks of the surgery before consenting to it. -Thus, the doctor did not breach his duty to the man.

Question 29

Assault - Elements

Answer 29

• intentional overt act or threat caused plaintiff to experience reasonable apprehension of an imminent battery
• does not require actual contact, only the imminent threat of contact.
• distinguish threat of future harm, e.g. “in ten minutes”, from imminent harm.
• words alone are not considered an overt act, BUT if they are coupled with conduct or other circumstances, e.g. bank guards, words may be sufficient and a touching is not required.

Question 30

Assumption of Risk

Answer 30

• assumption of the risk occurs when a plaintiff subjectively knew of the risk, and
• voluntarily continued the act
• Here, there is no evidence that the plaintiff was aware of the risk of the door descending at the time of the accident.

Question 31

Duty of care to invitees/licensees

Answer 31

• People who enter land held open to the public, such as an auto repair shop, would be classified as invitees.
• Furthermore, regardless of the plaintiff’s status as an invitee or licensee, he would have been owed a duty of ordinary care by the auto company.
• a licensee is entitled to reasonable care in conducting activities on the land.

Question 32

Duty of care - to whom is it owed

Answer 32

• Generally, a duty of care is owed to all foreseeable persons who may be injured by the defendant’s failure to follow a reasonable standard of care.
• The engineer owed no duty to the plaintiff to prevent an injury caused by defects unrelated to the engineer’s work, as was the case here.

Question 33

Firefighter’s Rule

Answer 33

• an emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent in the job.
• Here, the officer, who was aware of the inherent risks associated with his profession, cannot recover in a negligence action when he was injured as a result of confronting the known and accepted risks.

Question 34

Duty of the person who creates a peril

Answer 34

• a person who creates the peril has the duty to exercise reasonable care in preventing further harm.
• Here, the defendant created the peril (i.e, the gathering) and he would owe a duty of care to a rescuer. Answer choice C is incorrect as the officer would not have responded to the house, and received his injury, but for the defendant’s soiree. Therefore, the defendant’s actions were the legal cause of the injury. Answer choice D is incorrect because a licensee is entitled to reasonable care in conducting activities on the land.

Question 35

Where the facts tempt a conclusion that there is liability but there is none - in this example, there is no negligence

Answer 35

• Under the facts as described, there is no evidence of lack of reasonable care by the day care center.
• day care centers are not strictly or absolutely liable for all injuries that occur to children under their care. The center’s negligence must be established.
• the mere fact that the center is located near a pond is not in itself evidence of negligence. It might mean that reasonable care requires extra-vigilant supervision, but the facts specify that the center staff was in fact exercising “reasonable care.”

Question 36

Risk-utility test

Answer 36

• Using the risk-utility test, to prevail on a claim under a strict products liability design defect theory, the jury must determine whether the risks posed by the product outweigh its benefits.
• A plaintiff must prove that a reasonable alternative design was available to the defendant and the failure to use that design has rendered the product not reasonably safe.
• The alternative design must be economically feasible.
• Thus, the plaintiff will not prevail if the chemistry set was as safe as possible, consistent with its educational purposes, and its benefits exceed its foreseeable risks.

Question 37

Failure to warn

Answer 37

-the plaintiff would have to show that there were foreseeable risks of harm not obvious to an ordinary user of the product, which risks could have been reduced or avoided by providing reasonable instructions or warnings. -Here, an ordinary user could recognize the inherent risks involved in working with chemicals.

Question 38

Abnormally dangerous activities

Answer 38

• an abnormally dangerous activity is one that creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised and the activity is not commonly engaged in.
• In this case, the plaintiff will not prevail under an abnormally dangerous activity theory because if used properly, the chemistry sets can be performed with complete safety.

Question 39

Defenses to strict liability

Answer 39

-Contributory Negligence JD - the plaintiff’s contributory negligence is not a defense to strict liability, i.e., it does not bar recovery.

• Comparative Fault JD - The Third Restatement provides that the defendant’s liability based on strict liability for either abnormally dangerous activities or animals should be reduced by the comparative fault of the plaintiff.
• However, only a minority of jurisdictions have taken this position.
• In the MAJORITY of comparative-fault jurisdictions, the plaintiff’s contributory negligence does not reduce the plaintiff’s recovery under a strict liability claim.
• Assumption of the Risk - The plaintiff’s assumption of the risk bars his recovery in a strict-liability action. This defense is also referred to as “knowing contributory negligence.”
• Statutory Privilege - Performance of an essential public service (e.g., construction of utility or sewer lines) exempts one from strict liability; however, liability may still exist under a negligence theory.

Question 40

Partial comparative negligence - jurisdictional variation

Answer 40

Under a system of pure comparative negligence, a plaintiff’s damages are reduced by the proportion that his fault bears to the total harm. Under partial comparative negligence, the plaintiff’s recovery may be barred if the plaintiff is at least 50% at fault or at least more at fault than the defendant (depending on the jurisdiction).

Question 41

Pure several liability

Answer 41

Pure several liability is a system under which each tortfeasor is liable only for his proportionate share of the plaintiff’s damages.

Question 42

Negligence Per Se

Answer 42

• Negligence per se occurs when an enacted statute defines the standard of reasonable conduct, which supersedes the common law standard of care.
• The plaintiff may establish a duty and breach of said duty, if he is in the class of people intended to be protected by the statute and the enacted statute was designed to protect the particular accident or harm that occurred.
• Because Section 1 was enacted to prevent accidents to pedestrians while crossing the street, the pedestrian would be in the class of people intended to be protected and his injury would be the type of harm sought to be prevented.
• Accordingly, his failure to abide by the statute, may be considered by the trier of fact.

Question 43

Doctrine of Last Clear Chance

Answer 43

-The doctrine of last clear chance allows a negligent plaintiff to mitigate the legal consequences of her contributory negligence by establishing that the defendant had the last clear chance to avoid the injury but failed to do the same.

Question 44

If answer choice says recovery is barred, but prompt does not specify whether a JD follows contributory or comparative negligence?

Answer 44

• D. It will bar the pedestrian’s recovery as a matter of law.
• Answer choice D is incorrect because it would depend on which theory of negligence was adopted by the state.
• If the state followed a comparative theory of negligence, the pedestrian’s recovery would not be barred completely. If the state followed a contributory theory of negligence, it would bar the pedestrian’s recovery, if the pedestrian was found to be at least one percent negligent.

Question 45

Section 1 of the Vehicle Code of a state makes it illegal to cross a street in a central business district other than at a designated crosswalk. Section 2 of the Code prohibits parking any motor vehicle so that it blocks any part of a designated crosswalk. A pedestrian wanted to cross Main Street in the central business district of the city, located in the state, but a truck parked by a trucker was blocking the designated crosswalk. The pedestrian stepped out into Main Street and carefully walked around the back of the truck. The pedestrian was struck by a motor vehicle negligently operated by the driver. If the pedestrian asserts a claim against the driver, the pedestrian’s failure to be in the crosswalk will have which of the following effects?
A. It is not relevant in determining the right of the pedestrian.
B. It may be considered by the trier of the facts on the issue of the driver’s liability
C. It will bar the pedestrian’s recovery unless the driver saw the pedestrian in time to avoid the impact.
D. It will bar the pedestrian’s recovery as a matter of law.

Answer 45

Answer choice B is correct. Negligence per se occurs when an enacted statute defines the standard of reasonable conduct, which supersedes the common law standard of care. The plaintiff may establish a duty and breach of said duty, if he is in the class of people intended to be protected by the statute and the enacted statute was designed to protect the particular accident or harm that occurred. Because Section 1 was enacted to prevent accidents to pedestrians while crossing the street, the pedestrian would be in the class of people intended to be protected and his injury would be the type of harm sought to be prevented. Accordingly, his failure to abide by the statute, may be considered by the trier of fact. Answer choice A is incorrect because the pedestrian’s failure to cross using the crosswalk can be considered by way of contributory negligence. Hence, it is relevant to the case at bar. This is especially true since it appears to be the type of injury Section 1 was enacted to avoid. Answer choice C is incorrect because it infers that the doctrine of last clear chance is applicable, which is not contemplated here. The doctrine of last clear chance allows a negligent plaintiff to mitigate the legal consequences of her contributory negligence by establishing that the defendant had the last clear chance to avoid the injury but failed to do the same. Answer choice D is incorrect because it would depend on which theory of negligence was adopted by the state. If the state followed a comparative theory of negligence, the pedestrian’s recovery would not be barred completely. If the state followed a contributory theory of negligence, it would bar the pedestrian’s recovery, if the pedestrian was found to be at least one percent negligent. It is not, however, the best answer choice given here.

Question 46

SL design defect - foreseeable plaintiffs - contributory negligence

Answer 46

• Under strict liability, the manufacturer of a defective product may be liable for any harm to persons or property caused by such product.
• In order to establish a prima facie case of strict products liability based on design defect, the plaintiff must prove that: (i) the product was defectively designed, (ii) the defect existed at the time the product left the defendant’s control, and (iii) the defect caused the plaintiff’s injury when used in an intended or reasonably foreseeable way.
• Using the risk-utility test, the jury must determine whether the risks posed by the product outweigh its benefits.
• A plaintiff must prove that a reasonable alternative design was available to the defendant and the failure to use that design has rendered the product not reasonably safe.
• The alternative design must be economically feasible.
• In this case, the trailer was defectively designed and caused the plaintiff’s injury. The trailer company knew that a reasonable alternative design was available that incorporated a restraining device at minimal cost.
• The failure to incorporate the device into its design rendered the product not reasonably safe.
• As a result, the trailer company will be held strictly liable for the injuries caused by its defectively designed product.
• In a strict liability action, any negligence on behalf of a third party would be irrelevant to the manufacturer’s liability. The trailer owner’s negligence, if any, would not relieve the trailer company from liability as its liability arises from its manufacture of a defective product.
• contributory negligence is generally not a defense to a strict liability claim. Even if the plaintiff was negligent, she could still recover from the trailer company in a strict liability action.
• Privity of contract is not required in order for the plaintiff to recover. Anyone foreseeably injured by a defective product may bring a strict liability action. Appropriate plaintiffs include purchasers, other users, and even bystanders who suffer personal injury or property damage. An automobile driver is clearly a foreseeable plaintiff to a manufacturer of a trailer.

Question 47

Worker’s Compensation

Answer 47

• workers’ compensation compensates the employee for on-the-job injuries without regard to fault, either by the employee or employer.
• However, the receipt of worker’s compensation will not bar an employee’s recovery against a third party, such as the glass company (here, products liability).

Question 48

Effective warning - analysis

Answer 48

• In product liability cases, the defendant manufacturer may be required to warn against the foreseeable risks of harm of a product, which are not obvious to an ordinary user of the product, which risks can be reduced or avoided by providing reasonable instructions or warnings.
• In this case, it is clear by the warning on the glasses that it does not protect against the kind of hazard encountered by the plaintiff.
• Here, the glass company clearly stated that the glasses would only protect against small flying objects, not the large pieces that caused the plaintiff’s injury. Accordingly, the plaintiff will not prevail.

Question 49

Duty of a seller - inspection - establishing breach

Answer 49

• To prevail under a theory of negligence, the child must prove the seller owed and breached a duty to the child that resulted in harm to the child.
• The commercial manufacturer, distributor, retailer, or seller of a product owes a duty of reasonable care to any foreseeable plaintiff (i.e., a purchaser, user, or bystander).
• Failure to exercise reasonable care in the inspection or sale of a product constitutes breach of that duty.
• Therefore, the seller would be liable if a reasonable inspection would have revealed the ventilating system’s dangers.
• Answer choice A is incorrect because the mere fact that the ventilating system was defective is insufficient to establish the liability of the seller in a negligence action. -Answer choice B is incorrect because if the inspection would not have revealed the defect, the seller would not be liable, even if he failed to perform any type of inspection.
• Answer choice C is incorrect because if the seller had inspected the product and the defect was not discovered, the seller would not be liable unless he failed to exercise reasonable care in the inspection.

Question 50

Damages in a personal injury negligence action

Answer 50

• The measure of damages in a personal injury action includes all actual damages incurred, past and future pain and suffering (e.g., emotional distress), medical expenses, lost wages and any reduction in future earnings capacity, and loss of consortium.
• Under the “eggshell skull” rule, the defendant is liable for the full extent of the plaintiff’s injuries due to the plaintiff’s pre-existing medical condition or vulnerability, even if the extent is unusual or unforeseeable.
• Attorney’s fees in a personal injury suit are not recoverable.

Question 51

Invasion of Privacy - Defense

Answer 51

• An action for the invasion of privacy based on the public disclosure of private facts is grounded in the disclosure of truthful information about the plaintiff that is not of legitimate concern to the public and that a reasonable person would find highly offensive.
• Here, even if the public disclosure of the above facts is highly offensive to a reasonable person, the plaintiff’s own announcement made the fact public and amounted to consent, which is a defense to public disclosure of private facts.
• Legal standard - the disclosure must be highly offensive to a reasonable person.