Final Exam Flashcards
The plaintiff is being treated by a physician for asbestosis, an abnormal chest condition that was caused by his on-the job handling of materials containing asbestos. His physician has told him that the asbestosis is not presently cancerous, but that it considerably increases the risk that he will ultimately develop lung cancer.
The plaintiff brought an action for damages, based on strict product liability, against the supplier of the materials that contained asbestos. The court in this jurisdiction has ruled against recovery of damages for negligently inflicted emotional distress in the absence of physical harm.
If the supplier is subject to liability to the plaintiff for damages, should the award include damage for emotional distress he has suffered arising from his knowledge of the increased risk that he will develop lung cancer?
A: No, because the plaintiff’s emotional distress did not cause his physical condition.
B: No, because the court does not recognize a cause of action for an increased risk of cancer.
C: Yes, because the supplier of a dangerous product is strictly liable for the harm it causes.
D: Yes, because the plaintiff’s emotional distress arises from bodily harm caused by his exposure to asbestos.
D: Yes, because the plaintiff’s emotional distress arises from bodily harm caused by his exposure to asbestos.
D is correct. This is an instance where a defendant (the supplier) is liable for a physical injury (the chest condition and related prognosis) and the plaintiff’s emotional distress stems from that underlying tortious conduct. Because the plaintiff may recover for all consequences flowing from this underlying liability, he may tack on the emotional distress
damages.
A is incorrect. This type of causation is only relevant to a negligent or intentional infliction of emotional distress cause of action. This is a strict liability for physical harm that caused subsequent emotional suffering.
B is incorrect. The cause of action is not at issue. The issue is the proper scope of damages, which includes emotional distress stemming from liability for an underlying physical injury. Here, the plaintiff has a chest condition and future risk of additional health consequences, all of which can give rise to pain and suffering.
C is incorrect. This answer choice is too broad. The “tacking on” of emotional damages is only permitted when a tortiously-inflicted physical injury causes emotional distress.
The defendant operates a collection agency. He was trying to collect a valid $400 bill for medical services rendered to the plaintiff by a doctor that was past due.
The defendant went to the plaintiff’s house and when the plaintiff’s mother answered the door, the defendant told her that he was there to collect a bill owed by the plaintiff. The mother told the defendant that because of the plaintiff’s illness, the plaintiff had been unemployed for six months, that she was still ill and unable to work, and that she would
pay the bill as soon as she could.
The defendant, in a loud voice, demanded to see the plaintiff and said that if he did not receive payment immediately, he would file a criminal complaint charging her with fraud. The plaintiff, hearing the conversation, came to the door. The defendant, in a loud voice, repeated his demand for immediate payment and his threat to use criminal process.
Assume that the plaintiff did not suffer physical harm as a result of the defendant’s conduct, but did suffer severe emotional distress. If the plaintiff asserts a claim against the defendant based on intentional infliction of emotional distress, will the plaintiff prevail?
A: Yes, because the plaintiff suffered severe emotional distress as a result of the defendant’s conduct.
B: No, because the bill for medical services was valid and past due.
C: No, because the plaintiff did not suffer physical harm as a result of the defendant’s conduct.
D: No, because the defendant’s conduct created almost no risk of physical harm to the plaintiff
A: Yes, because the plaintiff suffered severe emotional distress as a result of the defendant’s conduct.
A is correct. The defendant, a bill collector, came to the house of the plaintiff, a severely ill person, and loudly threatened her multiple times with criminal fraud charges over the payment of a hospital bill. This would likely constitute extreme and outrageous behavior.
B is incorrect. Even if the bill for services was valid and past due, the plaintiff could still recover on a claim for intentional infliction of emotional distress based on the defendant’s extreme and outrageous methods of collection, which caused the plaintiff severe emotional distress.
C is incorrect. Severe emotional distress can be evidenced physically, but physical injuries are not required. The correct answer establishes the last necessary element of the tort, making it the correct response.
D is incorrect. Risk of physical harm created by the defendant is not an element of a claim for intentional infliction of emotional distress. Instead, a plaintiff must show that the defendant acted extremely or outrageously with an intent, which succeeded, in causing severe emotional distress.
A car driven by the defendant entered land owned by and in the possession of the plaintiff, without the plaintiff’s permission.
Which, if any, of the following allegations, without additional facts, would provide a sufficient basis for a claim by the plaintiff against the defendant?
A: The defendant intentionally drove his car onto the plaintiff’s land.
B: The defendant’s car damaged the plaintiff’s land.
C: The defendant negligently drove his car onto the plaintiff’s land.
D: The defendant’s car damaged the plaintiff’s personal property.
A: The defendant intentionally drove his car onto the plaintiff’s land.
A is correct. This is the only choice that, if true, would be sufficient for a claim of trespass to land. The initial facts establish two of the elements, physical invasion and causation, and this answer satisfies the third element - intent. Therefore, if the defendant intentionally drove his car onto the plaintiff’s land, this would provide a sufficient basis for a
trespass claim.
B is incorrect. Damages are not necessary for a prima facie case of trespass, and they are usually presumed with intentional torts. Moreover, without additional evidence of intent, the claim would be insufficient.
C is incorrect. If the defendant negligently or unintentionally entered the land, it would negate the intent element and the plaintiff would not have a trespass claim.
D is incorrect. As explained above, damages are presumed with intentional torts and without also establishing intent, there would be no trespass claim.
While an equestrian was riding her horse on what she thought was a public path, the owner of a house next to the path approached her, shaking a stick and shouting, “Get off my property.” Unknown to the equestrian, the path on which she was riding crossed the private property of the shouting owner. When the equestrian explained that she thought the path was a public trail, the man cursed her, approached the equestrian’s horse, and struck the horse with the stick. As a result of the blow, the horse reared, causing the equestrian to fear that she would fall. However, the equestrian managed to stay on her horse, and then departed. Neither the equestrian nor the horse suffered bodily
harm. If the equestrian brings an action for damages against the property owner, the result should be for
A: the equestrian, for trespass to her chattel property.
B: the equestrian, for battery and assault.
C: the defendant, because the equestrian suffered no physical harm.
D: the defendant, because he was privileged to exclude trespassers from his property.
B: the equestrian, for battery and assault.
B is correct. The equestrian suffered two specific tort injuries. The first was assault. For assault, the defendant must have the apparent present physical ability to complete his threatened battery for the tort of assault to be complete. Words alone are not sufficient. This first tort occurred when the owner approached her, yelling and shaking a stick at her. The second was a battery. A battery is caused by an intentional harmful or offensive touch to the plaintiff’s person or an extension thereof, without consent or privilege. When the owner struck the horse the equestrian was seated on, he committed a battery by striking an extension of the equestrian, causing an offensive touch. Choice B appropriately lists both torts.
A is incorrect. Trespass to chattels is an interference with the equestrian’s possessory interest in her personal property. To prevail in trespass to chattels, however, the equestrian would have to prove actual damages, measured according to the diminution of the chattel’s value. Since the facts clearly state the horse suffered no damage, this claim would not prevail.
C is incorrect. A battery claim does not require bodily harm or severe emotional distress.
D is incorrect. The defendant had no privilege to use any type of force against the equestrian unless she was a threat to the owner’s personal safety.
A bank vice president took substantial kickbacks to approve certain loans that later proved worthless. Upon learning of the kickbacks, the bank’s president fired the vice president, telling him, “If you are not out of this bank in 10 minutes, I will have the guards physically throw you
out.” The vice president left at once.
If the vice president asserts a claim against the president based on assault, will the vice president prevail?
A: No, because the guards never touched the vice president.
B: No, because the president gave the vice president 10 minutes to leave.
C: Yes, because the president intended to cause the vice president severe emotional distress.
D: Yes, because the president threatened the vice president with a harmful or offensive bodily contact.
B: No, because the president gave the vice president 10 minutes to leave.
B is correct. In a claim for assault, the vice president must show that the president had the apparent present physical ability to immediately complete his threatened battery in order for the vice president to have had an apprehension of an imminent harmful or offensive contact. Words alone are not sufficient. Therefore, the president did not commit an assault.
A is incorrect. Actual contact is not required for an assault.
C is incorrect. Intent to cause severe emotional distress is not the element of an assault claim; it is an element of the tort of intentional infliction of emotional distress.
D is incorrect. Words alone are not sufficient if not accompanied by some overt act. Further, the threat must be of immediate harm, and the president gave the vice president 10 minutes to leave.
A defendant, an inexperienced driver, borrowed a car from the plaintiff, a casual acquaintance, for the express purpose of driving it several blocks to the local drug store. Instead, the defendant drove the car, which then was worth $12,000, 100 miles to another city. While the defendant was driving in the other city the next day, the car was hit by a
negligently driven truck and sustained damage that will cost $3,000 to repair. If repaired, the car will be fully restored to its former condition.
If the plaintiff asserts a claim against the defendant based on conversion, the plaintiff should recover a judgment for
A: $12,000.
B: $3,000.
C: $3,000 plus damages for the loss of the use of the car during its repair.
D: nothing, because the defendant was not negligent.
A: $12,000.
A is correct. The plaintiff should recover the fair market value of the car, $12,000, because the defendant substantially interfered with the plaintiff’s chattel by driving the car 100 miles, keeping it overnight, and incurring $3,000 in damages. This amounts to a conversion claim, which allows for damages for the full value of the car at the time of the
conversion.
B is incorrect. Conversion entitles the plaintiff to the full market value of the chattel at the time of the conversion, which was $12,000. Damages for $3,000 - the amount to repair the car - would be insufficient.
C is incorrect. The defendant’s interference was substantial enough to sustain a conversion claim. As explained above, the plaintiff is entitled to the car’s full market value, not merely repairs plus loss of use.
D is incorrect. The defendant’s interference was intentional and a conversion. Therefore, the defendant’s lack of negligence will not protect him from liability.
Question
In the course of a bank holdup, a robber fired a gun at a guard. The guard drew his revolver and returned fire. One of the bullets fired by the guard ricocheted, striking the plaintiff, who was simply a customer at the bank.
If the plaintiff asserts a claim against the guard based upon battery, will
the plaintiff prevail?
A: Yes, because the plaintiff was not the robber’s accomplice.
B: Yes, under the doctrine of transferred intent.
C: No, because the guard fired reasonably in his own defense.
D: No, because the guard did not intend to shoot the plaintiff.
C: No, because the guard fired reasonably in his own defense.
C is correct. The guard will prevail against the plaintiff’s battery claim because the guard reasonably acted in self defense by returning fire when the robber shot at him. Even though the guard injured the plaintiff when he fired, and the plaintiff was an innocent bystander, the guard’s self-defense privilege will protect him from liability because he injured the plaintiff by accident.
A is incorrect. This is an incorrect statement of the facts and a reference to criminal law, which is inapplicable.
B is incorrect. Although there was transferred intent, the guard’s actions are protected by the privilege of self-defense.
D is incorrect. It is incorrect that the defendant had no intent as to the plaintiff. Transferred intent would normally apply, extending the intent to shoot the robber to a bystander. However, the guard is still not liable because he was acting in self-defense, which shields him from liability for the plaintiff’s injuries as well.
A plaintiff was walking peacefully along a public street when he encountered the defendant, whom he had never seen before. Without provocation or warning, the defendant picked up a rock and struck the plaintiff with it. It was later established that the defendant was mentally ill and suffered recurrent hallucinations.
If the plaintiff asserts a claim against the defendant based on battery, which of the following, if supported by evidence, will be the defendant’s best defense?
A: The defendant did not understand that his act was wrongful.
B: The defendant did not desire to cause harm to the plaintiff.
C: The defendant did not know that he was striking a person.
D: The defendant thought the plaintiff was about to attack him.
C: The defendant did not know that he was striking a person.
C is correct. If the defendant did not know he was striking a person, such a claim would defeat the intent necessary to be liable for a battery, which requires harmful or offensive contact with the plaintiff.
A is incorrect. This would be ineffective because ignorance of the law is no defense in tort or criminal liability.
B is incorrect. The intent element of battery does not require that the defendant intended to physically harm the plaintiff, so this would also be an ineffective defense.
D is incorrect. This belief would be unreasonable given that the plaintiff was peacefully walking down the street, which means the defendant would not be able to invoke self-defense.
A plaintiff owned a large tract of land on the shore of a lake. The defendant lived on a stream that ran along one boundary of the plaintiff’s land and into the lake. At some time in the past, a channel had been cut across the plaintiff’s land from the stream to the lake at a point some distance from the mouth of the stream. From where the defendant lived, the channel served as a convenient shortcut to the lake. Erroneously believing that the channel was a public waterway, the defendant made frequent trips through the channel in his motorboat. His use of the channel caused no harm to the land through which it passed. Once the defendant learned of the plaintiff’s ownership of the channel, he stopped using it as a shortcut.
If the plaintiff asserts a claim for damages against the defendant based on trespass, which of the following would be a correct disposition of the case?
A: Judgment for the plaintiff for nominal damages, because the defendant intentionally used the channel.
B: Judgment for the defendant, because he did not use the channel after learning of the plaintiff’s ownership claim.
C: Judgment for the defendant, because he caused no harm to the plaintiff’s land.
D: Judgment for the defendant, because when he used the channel he believed it was a public waterway.
A: Judgment for the plaintiff for nominal damages, because the defendant intentionally used the channel.
A is correct. Trespass is an intentional entry onto the land of another, without permission. The intent only refers to the intent to enter the property; the defendant need not know that it is another’s private property. For an intentional trespass to land, damage is not required; the court will award nominal damages based on the trespass alone. The
facts here support a claim for trespass because the defendant intentionally used the channel, without permission, even though he incorrectly believed it was a public waterway. All other answer choices may be eliminated because they find in favor of the defendant.
B is incorrect. The fact that the defendant stopped using the channel after learning of the plaintiff’s ownership does not preclude a trespass violation, which does not require the defendant to be aware of the plaintiff’s ownership.
C is incorrect. A trespass claim does not require a showing of damages.
D is incorrect. As explained above, a trespass claim does not require the defendant to know that the property belongsto someone else; here, the defendant’s belief that it was a public waterway does not protect him from liability
A defendant built in his backyard a garage that encroached two feet across the property line onto property owned by his neighbor. Thereafter, the defendant sold his property to a friend. The neighbor was unaware, prior to the defendant’s sale to his friend, of the encroachment of the garage onto her property. When the neighbor subsequently learned of the encroachment, she sued the defendant for damages for trespass.
In this action, will the neighbor prevail?
A: No, because the defendant was unaware of the encroachment when the garage was built.
B: No, because the defendant no longer owns or possesses the garage.
C: Yes, because the defendant knew where the garage was located, whether or not he knew where the property line was.
D: Yes, because the friend was unaware of the encroachment when he purchased the property.
C: Yes, because the defendant knew where the garage was located, whether or not he knew where the property line was.
C is correct. The defendant’s intentional entry onto the land was enough to satisfy intent; he did not need to know he was trespassing onto the neighbor’s land to be held liable.
A is incorrect. Building the garage on the land is sufficient intent because the land was entered intentionally; the intent to trespass is not required.
B is incorrect. If the defendant committed an intentional trespass by entering the neighbor’s land and building on it, then it is irrelevant that he no longer owns the building in question.
D is incorrect. The friend’s lack of knowledge does not establish intent on the part of the defendant.
The plaintiff, a jockey, was seriously injured in a race when another jockey, the defendant, cut too sharply in front of her without adequate clearance. The two horses collided, causing the plaintiff to fall to the ground, sustaining injury. The State Racetrack Commission ruled that, by cutting in too sharply, the defendant committed a foul in violation of
racetrack rules requiring adequate clearance for crossing lanes. The plaintiff has brought an action against the defendant for damages in which one count is based on battery.
Will the plaintiff prevail on the battery claim?
A: Yes, if the defendant was reckless in cutting across in front of the plaintiff’s horse.
B: Yes, because the State Racetrack Commission determined that the defendant committed a foul in violation of rules applicable to racing.
C: No, unless the defendant intended to cause impermissible contact
between the two horses or apprehension of such contact by the plaintiff.
D: No, because the plaintiff assumed the risk of accidental injury inherent in riding as a jockey in a horse race.
C: No, unless the defendant intended to cause impermissible contact between the two horses or apprehension of such contact by the plaintiff.
C is correct. If the plaintiff does not establish the defendant’s intent in one of these two ways, she will not prevail. She must show that the defendant either intended to make offensive contact with the plaintiff’s person or intended to commit assault in that the defendant intended to place her in apprehension of immediate harmful or offensive contact.
A is incorrect. Battery requires the intent to bring about the harmful or offensive contact to the plaintiff’s person or the intent to commit assault, which is a greater threshold than mere recklessness.
B is incorrect. A violation of the rules does not prove battery per se, but it could be considered evidence of intent. The remaining elements for battery still must be satisfied.
D is incorrect. Assumption of risk is not a defense to intentional torts, including battery. Even if the plaintiff assumed the risk, she would still be able to prevail on a battery claim.
A real estate developer was trying to purchase land on which he intended to build a large commercial development. An elderly widow had rejected all of the developer’s offers to buy her ancestral home, where she had lived all her life and which was located in the middle of the developer’s planned development. Finally, the developer offered her
$250,000. He told her that if she rejected it, state law authorized him to have her property condemned. He subsequently parked a bulldozer in front of her house.
The widow then consulted her nephew, a law student, who researched the question and advised her that the developer had no power of condemnation under state law. The widow had been badly frightened by the developer’s threat, and was outraged when she learned that the developer had lied to her.
If the widow sues the developer for damages for emotional distress, will she prevail?
A: Yes, because the developer’s action was extreme and outrageous.
B: Yes, because the widow was frightened and outraged.
C: No, because the widow did not suffer emotional distress that was severe.
D: No, because it was not the developer’s purpose to cause emotional distress.
C: No, because the widow did not suffer emotional distress that was severe.
C is correct. The widow being badly frightened and outraged is insufficient to establish that she experienced severe emotional distress. She sought no medical attention and offered no additional evidence that the level of distress she experienced necessitated medical attention.
A is incorrect. Extreme and outrageous conduct, without a showing of severe emotional distress, is not enough to sustain an IIED claim.
B is incorrect. The widow’s fright and outrage is not enough to establish that her distress was severe, especially given that she had the wherewithal to seek her nephew’s advice about the situation after the threat.
D is incorrect. Intent for IIED does not require that the defendant purposefully caused emotional distress. It is enough that the defendant recklessly disregarded a high probability or had knowledge of a substantial certainty that emotional distress would occur. The widow will still not prevail, however, as stated above.
A plaintiff and a man were passengers sitting in adjoining seats on a flight on an airline. There were many empty seats on the aircraft.
During the flight, a flight attendant served the man nine drinks. As the man became more and more obviously intoxicated and attempted to engage the plaintiff in a conversation, the plaintiff chose to ignore the man. This angered the man, who suddenly struck the plaintiff in the face, giving her a black eye.
If the plaintiff asserts a claim for damages against the airline based on battery, she will
A: prevail, because she suffered an intentionally inflicted harmful or offensive contact.
B: prevail, because the flight attendant acted recklessly in continuing to serve liquor to the man.
C: not prevail, because the man was not acting as an agent or employee of the airline.
D: not prevail, because she cannot establish some permanent injury from the contact.
C: not prevail, because the man was not acting as an agent or employee of the airline.
C is correct. For the airline to be held responsible for the man’s commission of battery against the plaintiff, vicarious liability must apply. However, there is no evidence of a special relationship between the man and the airline, such as the man being an agent or employee. As such, vicarious liability will not attach.
A is incorrect. Although this answer lists elements of battery, the question is asking whether the plaintiff can recover from the airline, not from the man directly. For the airline to be liable, vicarious liability would have to render the airline responsible for the man’s tortious conduct, which it does not.
B is incorrect. Even if the flight attendant acted recklessly by serving the man nine drinks, this alone is not enough for the airline to be held liable for the man’s tortious conduct. Vicarious liability must attach to force the airline to be responsible for the man’s actions.
D is incorrect. This is not the correct reason why the plaintiff will not prevail, as no actual injury is required to sustain a battery claim. Only offensive or harmful contact is required.
A neighbor, who lived next door to a homeowner, went into the homeowner’s garage without permission and borrowed the homeowner’s chainsaw. The neighbor used the saw to clear broken branches from the trees on the neighbor’s own property. After he had finished, the neighbor noticed several broken branches on the homeowner’s trees that were in danger of falling on the homeowner’s roof. While the neighbor was cutting the homeowner’s branches, the saw broke.
In a suit for conversion by the homeowner against the neighbor, will the homeowner recover?
A: Yes, for the actual damage to the saw.
B: Yes, for the value of the saw before the neighbor borrowed it.
C: No, because when the saw broke the neighbor was using it to benefit the homeowner.
D: No, because the neighbor did not intend to keep the saw.
B: Yes, for the value of the saw before the neighbor borrowed it.
B is correct. The call of the question gives a claim for conversion. Conversion occurs when the defendant’s trespass on the plaintiff’s property interest is substantial and amounts to an act of ownership/dominion.
A is incorrect. The remedy for conversion is always the fair market value of the property at the time of conversion. If the neighbor had not broken the saw, the claim would have only been for trespass to chattels, which would have entitled the homeowner to actual damages, not market value.
C is incorrect. When the neighbor broke the saw, the neighbor became liable to the homeowner for the market value of the saw before the conversion. It is irrelevant that, at the time the saw broke, the neighbor was cutting branches from the homeowner’s trees.
D is incorrect. The neighbor took the saw without permission, which was a trespass to chattels.
The warden of a state prison prohibits the photographing of the face of any prisoner without the prisoner’s consent. A news photographer wanted to photograph a notorious mobster incarcerated at the state prison. To circumvent the warden’s prohibition, the photographer flew over the prison exercise yard and photographed the mobster. A prisoner, who was imprisoned for a technical violation of a regulatory statute, happened to be standing next to the mobster when the photograph was taken.
When the picture appeared in the press, the prisoner suffered severe emotional distress because he believed that his business associates and friends would think he was consorting with gangsters. The prisoner suffered no physical harm as the result of his emotional distress. The prisoner brought an action against the photographer for intentional
and reckless infliction of emotional distress.
What is the best argument that the photographer can make in support of a motion for summary judgment?
A: No reasonable person could conclude that the photographer intended to photograph the prisoner.
B: The prisoner did not suffer any physical injury arising from the emotional distress.
C: As a news photographer, the photographer was privileged to take photographs that others could not.
D: No reasonable person could conclude that the photographer’s conduct was extreme and outrageous as to the prisoner.
D: No reasonable person could conclude that the photographer’s conduct was extreme and outrageous as to the prisoner.
D is correct. A motion for summary judgment will be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. For the prisoner to prevail in his claim for intentional and reckless infliction of emotional distress, he must show that: (i) the photographer’s intentional (with purpose or
knowledge to a substantial certainty) or reckless disregard for the consequences of publishing the photograph was; (ii) extreme and outrageous conduct; which (iii) caused the prisoner severe emotional distress. This answer choice addresses the element of outrageousness that is not answered in the fact pattern and which is an objective standard that can be determined as a matter of law.
A is incorrect. The photographer clearly pointed his lens to take a picture, knowing to a substantial certainty that the mobster and his companions would be photographed as a result.
B is incorrect. Severe emotional distress can be evidenced physically, but physical harm is not required.
C is incorrect. The issue of a reporter’s privilege to photograph is a disputed material fact which gives rise to a question for the jury.
A host pointed an unloaded revolver at her guest, threatening to shoot him. The guest knew that the revolver was not loaded, and that the ammunition for the revolver was stored in a locked basement closet, two stories below where the two were then standing.
In an action brought by the guest against the host for assault, will the guest be likely to prevail?
A: No, because the host did not intend to shoot her guest.
B: No, because the host did not put her guest in apprehension of an imminent contact.
C: Yes, because the ammunition was accessible to the host.
D: Yes, because the host threatened her guest with a revolver.
B: No, because the host did not put her guest in apprehension of an imminent contact.
B is correct. The tort of assault requires that the plaintiff have an apprehension of an imminent bodily contact. That result did not occur here, because the guest knew that the revolver was not loaded and that the ammunition was in a locked basement closet.
A is incorrect. This answer correctly states that the guest will lose, but it misstates the legal basis for this conclusion. Even though the host did not intend to shoot her guest, she may well have intended to cause the guest to fear being shot. That apprehension, if it had been created, would have been adequate to support the intent of assault.
C is incorrect. Assault requires that the apprehended bodily contact be imminent. It would take the host some time to retrieve the ammunition from a locked closet two floors below, so the guest had no reasonable fear of imminent contact.
D is incorrect. A threat is not enough to support a case for assault unless it actually results in an apprehension of immediate bodily contact. In this case, the guest knew that the revolver was not loaded and that the ammunition was in a locked basement closet, so there was no reasonable fear of imminent contact.
A bus passenger was seated next to a woman whom he did not know. The woman stood to exit the bus, leaving a package on the seat. The passenger lightly tapped the woman on the back to get her attention and to inform her that she had forgotten the package. Because the woman had recently had back surgery, the tap was painful and caused
her to twist and seriously injure her back.
If the woman sues the passenger to recover for the back injury, will she be likely to prevail?
A: No, because she is presumed to have consented to the ordinary contacts of daily life.
B: No, because she was not put in apprehension by the touching.
C: Yes, because the passenger intentionally touched her.
D: Yes, because the passenger’s intentional touching seriously injured her.
A: No, because she is presumed to have consented to the ordinary contacts of daily life.
A is correct. The woman gave no indication that she did not want to be subjected to the ordinary touches that are part of life in a crowded society. In the absence of such an indication from her, the passenger was entitled to believe that she implicitly consented to a light tap to get her attention. The passenger’s touch was neither unreasonable nor
inconsistent with ordinary social norms privileging such contacts, and would not amount to offensive or harmful contact sufficient to give rise to a claim for battery.
B is incorrect. This answer correctly states that the woman cannot prevail, but it misstates the legal basis for this conclusion. It is true that the woman would have to prove that she thought that she was about to be touched in order to recover in an action for assault. But the elements of a negligence or a battery action could be established without any reference to whether she had an apprehension of this or contact of any other sort. The reason she cannot recover, despite being seriously injured, is because she gave no indication that she did not want to be subjected to the ordinary touches that are part of life in a crowded society. The passenger’s touch was neither unreasonable nor
inconsistent with ordinary social norms privileging such contacts.
C is incorrect. People are presumed to have consented to the ordinary contacts of daily life. Although the passenger intended to touch the woman, he did not intend a harmful or offensive touching, and the woman gave no indication that she did not want to be subjected to the ordinary touches that are part of life in a crowded society. The touch was
neither unreasonable nor inconsistent with ordinary social norms privileging such contacts.
D is incorrect. Serious injury is neither necessary nor sufficient to support either battery or negligence, although some damage would be required to recover in negligence. Here, although the woman was seriously injured, she will not prevail because she gave no indication that she did not want to be subjected to the ordinary touches that are part of
life in a crowded society. The passenger’s touch was neither unreasonable nor inconsistent with ordinary social norms privileging such contacts.
A law student rented a furnished apartment. His landlord began to solicit his advice about her legal affairs, but he refused to provide it. The landlord then demanded that he vacate the apartment immediately. The landlord also began engaging in a pattern of harassment, calling the student at home every evening and entering his apartment without his
consent during times when he was at school. During these unauthorized visits, she removed the handles from the bathroom and kitchen faucets, making the faucets unusable, but she did not touch any personal property belonging to the student. The lease has a year to run, and the student is still living in the apartment. The student has sued the
landlord for trespass.
Is he likely to prevail?
A: No, because he has no standing to sue for trespass.
B: No, because the landlord caused no damage to his property.
C: Yes, for compensatory damages only.
D: Yes, for injunctive relief, compensatory damages, and punitive damages.
D: Yes, for injunctive relief, compensatory damages, and punitive damages.
D is correct. There is evidence supporting compensatory damages (for emotional distress and the removal of the faucet handles) and punitive damages (based on the landlord’s malicious intent and ill will). Because the lease is still in effect and the trespasses are repeated and ongoing, injunctive relief should also be available.
A is incorrect. The student is in legal possession of the apartment and thus has an interest that can be vindicated in a trespass action. There is evidence supporting compensatory damages (for emotional distress and the removal of the faucet handles) and punitive damages (based on the landlord’s malicious intent and ill will). Because the lease is still in effect and the trespasses are repeated and ongoing, injunctive relief should also be available.
B is incorrect. Damage is not necessary to establish a cause of action in trespass, and, in any case, the removal of the faucet handles constituted damage to the property. There is evidence supporting compensatory damages (for emotional distress and the removal of the faucet handles) and punitive damages (based on the landlord’s malicious intent and ill will). Because the lease is still in effect and the trespasses are repeated and ongoing, injunctive relief should also be available.
C is incorrect. Under these facts demonstrating a pattern of ongoing malicious behavior, the law student is unlikely to be limited to compensatory damages. In addition to compensatory damages for emotional distress and the removal of the faucet handles, the student is entitled to punitive damages (based on the landlord’s malicious intent and ill will). Because the lease is still in effect and the trespasses are repeated and ongoing, injunctive relief should also be
available.
Under the Federal Tort Claims Act, with certain exceptions not relevant here, the federal government is liable only for negligence. A federally owned and operated nuclear reactor emitted substantial quantities of radioactive matter that settled on a nearby dairy farm, killing the dairy herd and contaminating the soil. At the trial of an action brought against
the federal government by the farm’s owner, the trier of fact found the following: (1) the nuclear plant had a sound design, but a valve made by an engineering company had malfunctioned and allowed the radioactive matter to escape; (2) the engineering company was universally regarded as a quality manufacturer of components for nuclear plants; and (3) there was no way the federal government could have anticipated or prevented the emission of the radioactive matter.
If there is no other applicable statute, for which party should the court enter judgment?
A: The farm owner, on the ground that the doctrine of res ipsa loquitur applies.
B: The farm owner, on the ground that one who allows dangerous material to escape to the property of another is liable for the damage done.
C: The government, on the ground that a case under the Federal Tort Claims Act has not been proved.
D: The government, on the ground that the engineering company is the proximate cause of the farm owner’s damage.
C: The government, on the ground that a case under the Federal Tort Claims Act has not been proved.
C is correct. There has been no finding of negligence on the part of the government. The trier of fact found that the government had selected a reliable manufacturer for the component part and could not have anticipated or prevented the malfunction. The court should therefore enter judgment for the defendant, on the ground that a case under the
Federal Tort Claims Act has not been proved.
A is incorrect. Res ipsa loquitur does not apply here because it is not a situation where the accident causing the injury would normally not happen unless the defendant acted negligently. On the contrary, the evidence tends to establish the total absence of negligence by the federal government.
B is incorrect. Negligence is the only permissible cause of action here, and this answer choice implicates the doctrine of strict liability.
D is incorrect. Proximate cause may be proven based on the actions of multiple defendants. However, this is not necessary to determine here because based on the evidence in the record, the federal government did not breach its duty, as stated above.
A man owned a much-loved cat, worth about $25, that frequently trespassed on a neighbor’s property. The neighbor repeatedly asked the man to keep the cat on his own property, but the trespasses did not diminish. Aware of the man’s long-standing attachment to the cat, the neighbor killed the cat with a shotgun in full view of the man. As a
consequence, the man suffered great emotional distress.
In an action by the man against the neighbor, which of the following claims would be likely to result in the greatest monetary recovery?
A: Battery.
B: Intentional infliction of emotional distress.
C: Trespass to a chattel.
D: Conversion.
B: Intentional infliction of emotional distress.
B is correct. The tort of intentional infliction of emotional distress allows recovery for personal injury despite the absence of physical injury or touching of the plaintiff. The prima facie elements of a claim for the intentional infliction of emotional distress are: (i) an act by the defendant constituting extreme and outrageous conduct; (ii) intent or recklessness by the defendant; (iii) causation; and (iv) damages amounting to severe emotional distress. On these facts, the neighbor was aware that his conduct would cause severe emotional distress, and he could be held liable for the man’s emotional suffering, as well as for the value of the cat.
A is incorrect. The neighbor did not touch the man, so the neighbor is not liable for battery. There was an intentional touching, but the touching constituted only trespass to a chattel.
C is incorrect. Trespass to chattels provides an action for intentional interference with the plaintiff’s chattel in a way that causes recognizable harm to the chattel, which was the case here. While the man could state a case of trespass to chattels, any recoverable damages would be limited to $25, the value of the cat. An action establishing intentional infliction of emotional distress would result in a larger recovery.
D is incorrect. Conversion provides a cause of action for interference with a chattel that is substantial enough to amount to the exercise of dominion or control. While the man could state a case for conversion, any recoverable damages would be limited. The standard remedy in conversion is a forced sale, so the man could recover no more than $25, the value of the cat. An action establishing intentional infliction of emotional distress would result in a larger recovery.
A college student was asleep in his bed in a college dormitory when his roommate, in a drunken fury, entered their room intending to attack the student with an ice pick while he slept. Fortunately, the phone rang and awakened the student. The roommate retreated quickly and threw the ice pick under his own bed in the same room. The next day, the student heard from friends about the roommate’s murderous plans and later found the ice pick under the roommate’s bed. Even though the college expelled his roommate, the student remained extremely upset and afraid to sleep.
In a suit against the roommate for assault, will the student prevail?
A: No, because the roommate did not touch the student.
B: No, because the student was not awake when the roommate entered the room and was unaware until later that the roommate was intending to attack him.
C: Yes, because it was reasonable for the student to feel afraid of sleeping in his room afterward.
D: Yes, because the roommate intended to inflict serious harm.
B: No, because the student was not awake when the roommate entered the room and was unaware until later that the roommate was intending to attack him.
B is correct. To establish a claim for assault, a plaintiff must demonstrate that he reasonably apprehended that a harmful or offensive touch was imminent. In this case, because he was asleep, the student did not have the apprehension necessary for an assault claim.
A is incorrect. Contact or touching is not required to establish a claim of assault. Assault requires that a plaintiff reasonably apprehend that a harmful or offensive touch is imminent. In this case, however, the student did not have the apprehension necessary for an assault claim because he was asleep.
C is incorrect. Fear is neither necessary nor sufficient to establish a claim for assault. Assault requires a plaintiff to prove that he reasonably apprehended that a harmful or offensive touch was imminent. In this case, because he was asleep, the student did not have the necessary apprehension. Proof of apprehension at the time of the defendant’s act
is necessary even given the fact that the student became fearful of
future harmful contact.
D is incorrect. Proof that the roommate intended to inflict serious harm on the student would satisfy the intent element of a cause of action for assault, but the student cannot establish that he reasonably apprehended an imminent contact, which is another essential element of an assault claim. Because he was asleep, the student did not have the
necessary apprehension.
A customer pledged a stock certificate to a bank as security for a loan. A year later, when the customer fully repaid the loan, the bank refused the customer’s demand to return the stock certificate because the officer dealing with the loan had the mistaken belief that there was still a balance due. No one at the bank reviewed the records until two months later, at which time the error was discovered. The bank then offered to return the stock certificate. However, the
customer refused to accept it.
At the time the customer pledged the certificate, the shares were worth $10,000; at the time the customer repaid the loan, the shares were worth $20,000; and at the time the bank offered to return the certificate, the shares were worth $5,000.
If the customer brings an action against the bank based on conversion, how much, if anything, should the customer recover?
A: Nothing, because the bank lawfully came into possession of the certificate.
B: $5,000, because that was the value of the shares when the customer
refused to accept the certificate back.
C: $10,000, because that was the value of the shares when the bank came into possession of the certificate.
D: $20,000, because that was the value of the shares when the customer was entitled to the return of the certificate.
D: $20,000, because that was the value of the shares when the customer was entitled to the return of the certificate.
D is correct. Conversion occurs when a defendant intentionally commits an act depriving the plaintiff of possession of her chattel or interferes with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff use of the chattel. The damages are the full value at the time of the conversion. The conversion occurred when the bank refused to
relinquish the stock certificate in response to the customer’s lawful demand, and at that time the shares were worth $20,000.
A is incorrect. Someone who refuses to surrender a chattel to another person who is entitled to its immediate possession is liable for conversion even if the one holding the chattel originally came into possession lawfully.
B is incorrect. Damages for conversion are determined by the value of the chattel at the time of the conversion itself, which was when the customer demanded the return of the certificate, not when the bank subsequently attempted to remedy the conversion.
C is incorrect. As explained above, conversion damages are based on the value at the time of conversion, not when the defendant first came into possession of the chattel.
Unaware that a lawyer was in the county courthouse library late on a Friday afternoon, when it was unusual for anyone to be using the library, a clerk locked the library door and left. The lawyer found herself locked in when she tried to leave the library at 7 p.m. It was midnight before the lawyer’s family could find out where she was and get her
out. The lawyer was very annoyed by her detention but was not otherwise harmed by it.
Does the lawyer have a viable claim for false imprisonment against the clerk?
A: No, because it was unusual for anyone to be using the library late on a Friday afternoon.
B: No, because the clerk did not intend to confine the lawyer.
C: Yes, because the clerk should have checked to make sure no one was in the library before the clerk locked the door.
D: Yes, because the lawyer was aware of being confined.
B: No, because the clerk did not intend to confine the lawyer.
B is correct. Intent to confine the claimant (or to commit some other intentional tort) is essential to establishing liability for false imprisonment. There is no evidence that the clerk had such an intent.
A is incorrect. The fact that it was unusual for anyone to be using the library at the time the clerk locked the door might lead a fact finder to conclude that the clerk was not negligent in failing to detect the lawyer. However, because false imprisonment is an intentional tort, the reasonableness of the clerk’s conduct is irrelevant. If the clerk had intended to lock the lawyer in the library, the lawyer would have a claim for false imprisonment even if it was unusual for anyone to be using the library at the time. Under these facts, however, the clerk did not intend to lock the lawyer in the library, so the lawyer does not have a viable claim for false imprisonment.
C is incorrect. Whether a reasonable person in the clerk’s position would have checked before locking the door is irrelevant to a claim for false imprisonment. False imprisonment is an intentional tort requiring intent to confine the claimant (or to commit some other intentional tort). What a reasonable person would have done is relevant to a negligence claim, but not to a false imprisonment claim.
D is incorrect. In cases involving false imprisonment, courts often hold that the plaintiff must have been aware of the confinement at the time of the imprisonment or else must have sustained actual harm. It is also essential, however, that the defendant have had an intent to confine the plaintiff (or to commit some other intentional tort). If the clerk had had such an intent, the lawyer’s awareness that she was confined might have completed the prima facie case, but the clerk had no such intent.
A man tied his dog to a bike rack in front of a store and left the dog there while he went inside to shop. The dog was usually friendly and placid.
A five-year-old child started to tease the dog by pulling gently on its ears and tail. When the man emerged from the store and saw what the child was doing to the dog, he became extremely upset.
Does the man have a viable claim against the child for trespass to chattels?
A: No, because the child did not injure the dog.
B: No, because the child was too young to form the requisite intent.
C: Yes, because the child touched the dog without the man’s consent.
D: Yes, because the child’s acts caused the man extreme distress.
A: No, because the child did not injure the dog.
A is correct. Without any actual harm to the dog or any substantial deprivation of the man’s use of his dog, a trespass to chattels claim will not succeed.
B is incorrect. A small child may be able to form the requisite intent to commit an intentional tort. Here, the child is nevertheless not liable because the man cannot show any actual damage to the dog or his interest in the dog, as required by a trespass to chattels claim.
C is incorrect. Even though the child touched the dog without the man’s consent, trespass to chattels requires the plaintiff to show actual harm, which did not occur here.
D is incorrect. Extreme emotional distress will not satisfy the requirement of actual harm to the chattel or substantial interference with the man’s interest in it.
A mother and her six-year-old child were on a walk when the mother stopped to talk with an elderly neighbor. Because the child resented having his mother’s attention diverted by the neighbor, the child angrily threw himself against the neighbor and knocked her to the ground. The neighbor suffered a broken wrist as a result of the fall.
In an action for battery by the neighbor against the child, what is the strongest argument for liability?
A: The child intended to throw himself against the neighbor.
B: The child was old enough to appreciate that causing a fall could inflict serious injury.
C: The child was old enough to appreciate the riskiness of his conduct.
D: The child was not justified in his anger.
A: The child intended to throw himself against the neighbor.
A is correct. Even though he is a child, he will be liable for the intentional tort of battery if the neighbor can show that the child had the requisite intent, i.e., that he intended to make the offensive or harmful bodily contact.
B is incorrect. Battery does not require proof that the defendant, even a child, knew or intended to cause injury. It is enough that he intended to cause the harmful or offensive contact, even if he did not understand that his actions were wrong or would cause the elderly neighbor to be injured.
C is incorrect. The child’s ability to appreciate the riskiness of his conduct is irrelevant to a battery claim, which only requires intent to make the harmful or offensive contact.
D is incorrect. The child’s anger, whether justified or not, is not relevant to a battery claim. The neighbor need only show the intent to make the contact. The relevance of justifiable anger may be relevant to some affirmative defenses, but not to an intentional tort such as battery.
A security guard, dressed in plain clothes, was working for a discount store when a customer got into a heated argument with a cashier over the store’s refund policy. Without identifying himself as a security guard, the security guard suddenly grabbed the customer’s arm. The customer attempted to push the security guard away, and the security guard knocked the customer to the floor, causing injuries. The customer sued the discount store for battery on a theory of vicarious liability for the injuries caused by the security guard.
The store filed an answer to the customer’s complaint, asserting the affirmative defense of contributory negligence. The customer has moved to strike the affirmative defense. Traditional rules of contributory negligence apply.
Should the trial court grant the customer’s motion?
A: No, because contributory negligence is an affirmative defense to a cause of action based on vicarious liability.
B: No, because the customer should have known that his argument with the cashier might provoke an action by a security guard.
C: Yes, because contributory negligence is not a defense to battery.
D: Yes, because the customer did not know that he was pushing away someone who was employed as a security guard.
C: Yes, because contributory negligence is not a defense to battery.
C is correct. Contributory negligence is a defense to negligence. Here, the action is for battery, an intentional tort. Therefore, the defense will not be available.
A is incorrect. The trial court should grant the customer’s motion. Contributory negligence can be a defense to vicarious liability, but not to battery.
B is incorrect. The trial court should grant the customer’s motion. The security guard was dressed in plain clothes so the customer can make the argument that he was unaware of the presence of any security personnel making the action unforeseeable.
D is incorrect. The court should grant the customer’s motion because contributory negligence is not an available defense. The fact that the customer did not know that he was pushing someone away who was employed as a security guard does not change that fact.
A landowner hired a tree specialist to cut down four trees, which he pointed out to the specialist before the specialist began work. Although the landowner reasonably believed that all the trees were on his property, three of the trees that were cut down were in fact on a neighbor’s property.
Who, if anyone, is liable to the landowner’s neighbor for conversion?
A: Both the tree specialist and the landowner.
B: Neither the tree specialist nor the landowner.
C: The landowner only.
D: The tree specialist only.
A: Both the tree specialist and the landowner.
A is correct. Conversion occurs when an actor intentionally interacts with an item that is the personal property of another so as to permanently deprive the rightful owner of possession. It is irrelevant whether the actor knows that the item belongs to another individual. Thus, the landowner’s reasonable belief that the trees were his does not defeat
liability for either the landowner or the tree specialist. The tree specialist is also liable for conversion because he intentionally cut down and so severely interfered with the neighbor’s interest in the three trees. The fact that the tree specialist was acting under the orders of the landowner
does not relieve him of liability.
B is incorrect. The landowner’s reasonable belief that the trees were his does not defeat liability for either the landowner or the tree specialist. The landowner and the tree specialist working in concert committed conversion by permanently depriving the neighbor of three trees.
C is incorrect. Conversion occurs when an actor intentionally interacts with an item that is the personal property of another and permanently deprives the other of possession. The tree specialist’s actions meet the definition of conversion regardless of the fact that he was directed to take that action by the landowner.
D is incorrect. The tree specialist was hired by the landowner and cut down the trees at the direction of the landowner. Therefore, the landowner and the tree specialist are both subject to liability for conversion.
A wealthy elderly woman was repeatedly harassed by a debt collector over a period of two months. The debt collector was trying to collect a large debt owed to his client by the woman’s impoverished adult son.
Although the debt collector knew that the woman was not legally responsible for the son’s debt, he called the woman multiple times each day and threatened to destroy her credit. He also told her that he knew where she lived and that he was going to withdraw the money from her bank account. As a result, the woman suffered great mental anguish,
was unable to sleep, and ultimately suffered serious health consequences.
Which of the following conclusions would best support a claim by the woman against the debt collector for intentional infliction of emotional distress?
A: The debt collector could reasonably have foreseen that the calls and threats might cause harm to the woman’s health.
B: The debt collector’s conduct caused the woman to fear that he was someday going to physically attack her.
C: The debt collector’s conduct failed to comply with industry custom.
D: The debt collector’s conduct was extreme and outrageous.
D: The debt collector’s conduct was extreme and outrageous.
D is correct. A conclusion that the debt collector’s conduct was extreme and outrageous, combined with the fact that the woman experienced severe emotional distress and that the debt collector was probably at least reckless with respect to the risk of causing her distress, will provide the woman with a plausible claim for intentional infliction of emotional distress (IIED). None of the conclusions stated in the other answer choices provides as much support to the woman’s IIED claim.
A is incorrect. Even if the woman’s distress was reasonably foreseeable to the debt collector, that fact does not suffice to establish the recklessness or intentionality necessary for IIED liability.
B is incorrect. The woman’s subjective belief that the debt collector might someday attack her does not establish that she suffered severe distress or that the debt collector’s conduct was extreme and outrageous, as required in a claim for IIED.
C is incorrect. A mere failure to comply with industry custom does not establish any of the elements of IIED. Therefore, this is not a strong argument to support the woman’s IIED claim.
A school bus driver reported to a middle school principal that a student had harassed other children on the bus. The principal informed the student’s parents of the bus driver’s report and told them that, because of the student’s behavior, the student could not ride the bus for the next week and would have to be driven to school by a parent.
The following Monday morning, after the bus driver had let the children off the bus in front of the school, but before she could close the door and drive away, the student’s father pulled his car directly in front of her bus, blocking the driver’s path. Because there was another bus right behind hers, the driver was unable to move her bus.
The father got out of his car and strode toward the open door of the bus, screaming at the driver: “You messed with the wrong family! I am going to get you!” Feeling threatened, the bus driver quickly closed the door. The father pounded on the door with enough force to dent it, screaming obscenities at the driver, until a school security guard
intervened.
If the driver were to sue the father, which cause of action would give her the best chance of recovery?
A: Assault.
B: Battery.
C: Intentional infliction of emotional distress.
D: Trespass to chattels.
A: Assault.
A is correct. Assault would be the best theory under which the driver could bring a claim against the father. A reasonable jury could conclude that the father intentionally caused the driver to apprehend imminent harmful physical contact, as is required for assault liability.
B is incorrect. There was no battery because the father never touched the driver. Even under the “extended personality” doctrine—which allows a battery plaintiff to establish the necessary contact element if the defendant touches an object closely connected to the plaintiff’s person—making contact with the bus is almost certain not to count as making contact with the driver’s person.
C is incorrect. Establishing the elements of an intentional infliction of emotional distress claim requires showing both that the defendant intended to cause severe distress and that the defendant’s conduct was extreme and outrageous. These elements will be harder for the driver to establish than the elements of an assault claim.
D is incorrect. Trespass to chattels requires an intentional interference with the plaintiff’s chattel in a way that causes recognizable harm to the chattel. The driver is not likely to be considered to have a possessory interest in the damaged bus, and therefore trespass to chattels would be difficult to prove and less likely to result in recovery than a claim based on assault.
A mother took her five-year-old child to a hospital emergency room for treatment. A doctor on the hospital staff molested the child while treating her. At the time, no one was in the treatment room except the doctor and the child; the mother had left the room to get a cup of coffee. Two weeks later, when the child told her mother what had
occurred in the treatment room, the mother suffered severe emotional distress that caused her to become physically ill.
In an action against the doctor by the mother on her own behalf to recover for intentional infliction of emotional distress, is the mother likely to prevail?
A: No, because the mother was contributorily negligent in leaving the child alone with the doctor during treatment.
B: No, because the mother was neither the direct victim of the doctor’s conduct nor a contemporaneous witness.
C: Yes, because the doctor’s conduct was outrageous.
D: Yes, because the mother’s distress was the natural and foreseeable consequence of the doctor’s conduct.
B: No, because the mother was neither the direct victim of the doctor’s conduct nor a contemporaneous witness.
B is correct. The mother will not succeed in suing the doctor for her emotional distress caused by his intentional harm to her child. Without being a direct victim of his intentional conduct that caused harm, and without any showing that the mother witnessed the harm to her child or even present at the scene, she will have no cause of action.
A is incorrect. The mother will not recover because she was not a direct victim or present when the molestation occurred, not because of her own contributory negligence (or lack thereof). Moreover, the mother was not negligent in leaving her child in the care of a doctor.
C is incorrect. Even though the doctor’s conduct was outrageous, the mother cannot recover for the reasons stated above.
D is incorrect. Although the mother’s distress could be a natural and foreseeable consequence of the doctor’s conduct, the mother will not be able to recover, as explained above.
During a deer-hunting season open to rifle hunters, a hunter saw a deer in the forest. He shot his rifle at the deer, hoping to hit and kill it. Instead, he hit and injured a hiker. The hunter had not realized that the hiker was there.
Does the injured hiker have an actionable battery claim against the hunter?
A: No, because the hunter did not intend to shoot the hiker.
B: No, because the hunter did not make direct physical contact with the
hiker.
C: Yes, because the bullet from the hunter’s rifle made direct physical contact with the hiker.
D: Yes, because the hunter intentionally shot the rifle.
A: No, because the hunter did not intend to shoot the hiker.
A is correct. The hunter intended to kill and shoot the deer, not to hit the hiker. The hunter’s intent to shoot the deer was legal, not tortious, and thus it will not transfer to the act of shooting the hiker.
B is incorrect. The lack of direct physical contact is not dispositive in a battery action because a defendant may be liable where he makes indirect contact. However, the hiker’s battery claim will still fail because the hunter lacked the requisite intent.
C is incorrect. A battery is an intentional tort, which means that a harmful touching will not necessarily be enough to prevail without the specific intent of the defendant.
D is incorrect. Even though the hunter intentionally shot the rifle, this is not alone to meet the intent element for battery. At the very least, the intent to shoot the rifle had to have been in order to inflict harmful or offensive touching, which was not the case. He intended to shoot a deer, which was legal.
An ordinance in a small town required all restaurants to designate smoking and nonsmoking sections for their customers. A cigarette smoker and a nonsmoker were seated at adjoining tables in a small restaurant. The smoker’s table was in the smoking section, and the nonsmoker’s table was in the nonsmoking section. When the smoker lit a cigarette, the nonsmoker politely requested that he not smoke, explaining that she had a severe allergy to cigarette smoke. The smoker ignored the nonsmoker’s request and continued to smoke. As a result, the nonsmoker was hospitalized with a severe allergic reaction to the smoke.
The nonsmoker brought a battery action against the smoker.
Which of the following questions will NOT be an issue in the battery action?
A: Did the smoker intend to cause the nonsmoker’s contact with the cigarette smoke?
B: Does smoke have the physical properties necessary for making the kind of contact required for battery?
C: Is contact with cigarette smoke from a lawful smoking section in a restaurant the kind of contact one must endure as a voluntary restaurant patron?
D: Was the smoker’s conduct unreasonable under the circumstances?
D: Was the smoker’s conduct unreasonable under the circumstances?
D is correct. Whether the smoker’s conduct was reasonable is irrelevant. The defendant’s intent to cause harmful or offensive contact with the plaintiff is what would sustain a battery claim. Reasonableness would be relevant to determining negligence, not whether a battery occurred.
A is incorrect. Battery requires the plaintiff to establish that the defendant intended to inflict a contact on the plaintiff.
B is incorrect. At a minimum, indirect bodily contact is necessary for a battery claim, and whether smoking satisfies that element would be a
relevant determination.
C is incorrect. If the non-smoker’s choice to patronize a restaurant with a legal smoking section amounted to implied consent to coming into contact with cigarette smoke, this may be a complete defense for the smoker against a battery claim.
The manager of a department store noticed that a customer was carrying a scarf with her as she examined various items in the blouse department. The manager recognized the scarf as an expensive one carried by the store. The customer was trying to find a blouse that matched a color in the scarf, and, after a while, found one. The manager
then saw the customer put the scarf into her purse, pay for the blouse, and head for the door. The manager, who was eight inches taller than the customer, blocked the customer’s way to the door and asked to see the scarf in the customer’s purse. The customer produced the scarf, as well as a receipt for it, showing that it had been purchased from the store on the previous day. The manager then told the customer there was no problem and stepped out of her way.
If the customer brings a claim against the store based on false imprisonment, the store’s best defense would be that
A: by carrying the scarf in public view and then putting it into her purse, the customer assumed the risk of being detained.
B: the manager had a reasonable belief that the customer was shoplifting and detained her only briefly for a reasonable investigation of the facts.
C: the customer should have realized that her conduct would create a reasonable belief that facts existed warranting a privilege to detain.
D: the customer was not detained, but was merely questioned about the scarf.
B: the manager had a reasonable belief that the customer was shoplifting and detained her only briefly for a reasonable investigation of the facts.
B is correct. The manager had a “shopkeeper’s (or merchant’s) privilege” to detain the customer. For the privilege to be valid, the manager must have had reasonable grounds to believe that the customer was stealing or attempting to steal store property, the detention must be for a reasonable period of time, and it must be conducted in a reasonable
manner. If the manager had held the customer after the issue of the stolen scarf had been settled, or after the goods had been recovered in an attempt to obtain a signed confession, the customer’s claim for false imprisonment would prevail. B is the best defense because it addresses the elements of the privilege as they pertain to the facts of the situation.
A is incorrect. It does not describe a complete defense. The statement only addresses reasonable grounds.
C is incorrect. This answer provides a negligence standard of comparative fault. This is an intentional tort issue, however.
D is incorrect. This answer does not describe a successful defense. False imprisonment has no specific time requirement. If the customer did not feel free to leave, there is a false imprisonment.
A gardener’s backyard, which is landscaped with expensive flowers and shrubs, is adjacent to a golf course. While a golfer was playing golf on the course, a thunderstorm suddenly came up. As the golfer was returning to the clubhouse in his golf cart, lightning struck a tree on the course, and the tree began to fall in the golfer’s direction. In order to avoid being hit by the tree, the golfer deliberately steered his cart onto the gardener’s property, causing substantial damage to the gardener’s expensive plantings.
In an action by the gardener against the golfer to recover damages for the harm to his plantings, the gardener will
A: prevail, because, although occasioned by necessity, the golfer’s entry onto the gardener’s property was for the golfer’s benefit.
B: prevail, for nominal damages only, because the golfer was privileged to enter the gardener’s property.
C: not prevail, because the lightning was an act of God.
D: not prevail, because the golfer’s entry onto the gardener’s property was occasioned by necessity and therefore privileged.
A: prevail, because, although occasioned by necessity, the golfer’s entry onto the gardener’s property was for the golfer’s benefit.
A is correct. The golfer has the “incomplete” privilege of private necessity, which allows trespass (without being branded the legal status of trespasser) onto the property of another to avoid a serious personal threat to life or property, but keeps liability for any actual damage caused by the intrusion. The golfer’s need to escape a falling tree in
a thunderstorm qualifies as an emergency sufficient to invoke a necessity privilege. The privilege of private necessity means that the golfer is only liable for actual damages.
B is incorrect. The golfer is not legally a trespasser due to the private emergency that caused him to take refuge on the gardener’s property. The golfer’s privilege to trespass is incomplete, however, so he must pay the gardener for any actual damages to the property as a result of the golfer’s actions.
C is incorrect. An act of God is generally used as a defense (superseding cause) in negligence to cut short liability. Instead, the sudden storm created an emergency situation that justified the golfer’s intrusion onto the gardener’s property. Because it was a personal emergency, however, the golfer is subject to the provisions of the incomplete privilege of private necessity and must pay the gardener for any actual damage to the gardener’s property as a result of the entry.
D is incorrect. If this had been a public emergency/necessity there would have been complete privilege with no liability. Private necessity, however, is an incomplete privilege, and the golfer is liable for any actual damages he caused.
A pedestrian was crossing a street at a crosswalk. A bystander, who was on the sidewalk nearby, thought he saw a speeding automobile heading in the pedestrian’s direction. However, the automobile was obviously coming to a stop at the traffic light. Nevertheless, the bystander ran into the street and pushed the pedestrian onto the sidewalk. The pedestrian fell to the ground and broke her leg.
In an action for battery brought by the pedestrian against the bystander, will the pedestrian prevail?
A: Yes, because the bystander could have shouted a warning instead of pushing the pedestrian out of the way.
B: Yes, because the pedestrian was not actually in danger and the bystander should have realized it.
C: No, because the driver of the car was responsible for the pedestrian’s injury.
D: No, because the bystander’s intent was to save the pedestrian, not to harm her.
B: Yes, because the pedestrian was not actually in danger and the bystander should have realized it.
B is correct. The bystander is liable for pushing the pedestrian because his mistake regarding whether the pedestrian was in danger was unreasonable. The fact that the car was obviously coming to a stop means that it was unreasonable to believe the pedestrian was in danger. The bystander thus has no defense and will be liable for battery.
A is incorrect. The bystander’s belief that the pedestrian was in danger was unreasonable. As such, there was no need for a warning whatsoever, let alone physical intervention to prevent imminent harm.
The bystander will not be privileged in any way for his conduct and will be liable for battery.
C is incorrect. The actions of the driver will not cut short the bystander’s liability for an intentional harmful or offensive contact. Only the bystander’s own privilege will do that.
D is incorrect. The bystander’s motivation would not provide a defense to the battery charge if his beliefs about the situation were unreasonable.
A plaintiff suffered a serious injury while participating in an impromptu basketball game at a public park. The injury occurred when the plaintiff and the defendant, on opposing teams, each tried to obtain possession of the ball when it rebounded from the backboard after a missed shot at the basket. During that encounter, the plaintiff was struck and
injured by the defendant’s elbow. The plaintiff now seeks compensation from the defendant.
At the trial, evidence was introduced tending to prove that the game had been rough from the beginning, that elbows and knees had frequently been used to discourage interference by opposing players, and that the plaintiff had been one of those making liberal use of such tactics.
In this action, will the plaintiff prevail?
A: Yes, because the defendant intended to strike the plaintiff with his elbow.
B: Yes, because the defendant intended to cause harmful or offensive contact with the plaintiff.
C: No, because the plaintiff impliedly consented to violent play.
D: No, because the defendant did not intentionally use force that exceeded the players’ consent.
D: No, because the defendant did not intentionally use force that exceeded the players’ consent.
D is correct. The plaintiff gave implied consent to this type of contact by the defendant based on the fact that the game had started out rough, the plaintiff had engaged in similar behavior already, and the defendant did not intentionally use force that went beyond that scope of contact.
A is incorrect. The defendant’s intentional elbow strike fell squarely within the implied consent given by the players who had been engaging in touching with elbows and knees from the beginning of the game.
B is incorrect. When a defendant intends to cause contact with the plaintiff that would typically be considered harmful or offensive, the plaintiff’s previous implied consent will be a complete defense as long as the defendant’s level of contact remained within the proper scope.
C is incorrect. The defendant did not have the privilege of any level of “violent play” with the plaintiff. The defendant’s conduct fell within the scope of implied consent but had the defendant exceeded this scope by intentionally engaging in other, more intense violent acts, the plaintiff may have been able to prevail.
The police in a large city notified local gas station attendants that a woman recently had committed armed robberies at five city gas stations. The police said that the woman was approximately 75 years old, had white hair, and drove a vintage, cream-colored Ford Thunderbird. Attendants were advised to call the police if they saw her, but to not attempt to apprehend her. Armed robbery is a felony under state law.
A traveler was passing through the city on a cross-country journey. The traveler was a 75-year-old woman who had white hair and drove a vintage, cream-colored Ford Thunderbird. When the traveler drove into a gas station, the owner of the station thought the traveler must be the robber wanted by the police. After checking the oil at the traveler’s request, the owner falsely informed the traveler that she had a broken fan belt, that her car could not be driven without a new belt, that it would take him about an hour to replace it, and that she should stay in his office for consultation about the repair. The traveler was greatly annoyed that her journey was delayed, but she stayed in the owner’s office while she waited for her car. The owner telephoned the police and, within the hour, the police came and questioned the traveler. The police immediately determined that the traveler was not the woman, and the traveler resumed her journey without further delay.
In the traveler’s action for false imprisonment against the owner, the traveler will
A: not prevail, because the owner reasonably believed that the traveler was the wanted woman.
B: not prevail, because the traveler suffered no physical or mental harm.
C: prevail, because the traveler reasonably believed she could not leave the owner’s premises.
D: prevail, because the owner lied to the traveler about the condition of her car.
A: not prevail, because the owner reasonably believed that the traveler was the wanted woman.
A is correct. Although the owner’s actions in keeping the traveler at the gas station satisfy the elements of false imprisonment, the owner will be protected by privilege given that he reasonably believed the traveler had committed a felony, which had actually occurred, and the scope of the confinement was not unreasonable.
B is incorrect. Actual injury to the plaintiff is not required unless the plaintiff is unaware of the confinement. The traveler was aware that she was being confined, so no damages are required. Nevertheless, the owner was legally justified by a privilege.
C is incorrect. Although the traveler was falsely imprisoned based on her reasonable belief that she could not leave, the owner’s privilege of arrest legally excuses him from liability.
D is incorrect. As explained above, the privilege excuses the owner from legal liability even though the traveler was falsely imprisoned.
A professional football player signed a written consent for his team’s physician to perform a knee operation. After the athlete was under a general anesthetic, the doctor asked a world famous orthopedic surgeon to perform the operation. The surgeon’s skills were superior to the doctor’s, and the operation was successful.
In an action for battery by the athlete against the surgeon, the athlete will
A: prevail, because the athlete did not agree to allow the surgeon to perform the operation.
B: prevail, because the consent form was in writing.
C: not prevail, because the surgeon’s skills were superior to the doctor’s.
D: not prevail, because the operation was successful.
A: prevail, because the athlete did not agree to allow the surgeon to perform the operation.
A is correct. Battery requires harmful or offensive contact to the plaintiff’s person, intent, and causation. Contact to the plaintiff’s person is considered offensive if it is not expressly or impliedly consented to by the plaintiff. Unlike a medical malpractice claim, a prima facie case for battery does not require proof of damages to prevail. In this case, the athlete signed a consent form specifically allowing the team doctor to perform the surgery, not the surgeon. Regardless of any superior skill level, the surgeon touched the athlete without his consent, which constitutes offensive contact, and thus meets the requirements for a battery.
B is incorrect. The reason the plaintiff will prevail is not that the consent for the doctor to perform the surgery was inwriting, but rather, because of the lack of any consent - express or implied - for the surgeon to perform the surgery.
C is incorrect. The fact that the surgeon had superior skills has no bearing on his liability for battery, which does not require a showing of damages.
D is incorrect. As explained above, without any need to show damages, the surgery’s success does not preclude a battery claim.
As a seller, an encyclopedia salesman, approached the grounds on which a homeowner’s house was situated, he saw a sign that said, “No salesmen. Trespassers will be prosecuted. Proceed at your own risk.” Although the seller had not been invited to enter, he ignored the sign and drove up the driveway toward the house. As he rounded a curve, a
powerful explosive charge buried in the driveway exploded, and the seller was injured.
Can the seller recover damages from the homeowner for his injuries?
A: Yes, because the homeowner was responsible for the explosive charge under the driveway.
B: Yes, because the homeowner, when he planted the charge, intended to harm a possible intruder.
C: No, because the seller ignored the sign, which warned him against proceeding further.
D: No, because the homeowner reasonably feared that intruders would come and harm him or his family.
A: Yes, because the homeowner was responsible for the explosive charge under the driveway.
A is correct. The homeowner is liable for battery because he: (i) committed the required act by placing the explosives under his driveway; and (ii) this caused the harm to the salesman. Causation is still present even though the contact was indirect.
B is incorrect. This answer is incorrect for several reasons. For a battery claim, the salesman does not need to show that the homeowner intended to cause harm, but rather, offensive or harmful contact. The homeowner had the requisite intent if he merely knew with substantial certainty that his actions would likely bring about the consequences,
i.e., that placing the explosives would likely cause an explosion. He did not have to intend any injuries or intend to cause harm to trespassers, including the salesman. This answer also lists a motive, which is not required to prove battery.
C is incorrect. The seller’s action in ignoring the sign and the homeowner’s motives for planting the charge will not negate his liability for the seller’s injury.
D is incorrect. The facts here do not place the homeowner or his family in any type of jeopardy at all.
A landowner who owned a large tract of land in the mountains sought to protect a herd of wild deer that lived on part of the land. Although the landowner had posted signs that said, “No Hunting—No Trespassing,” hunters frequently intruded to kill the deer. Recently, the landowner built an eight-foot-high chain-link fence, topped by three strands of barbed wire, across a gully on her land that provided the only access to the area where the deer lived.
A wildlife photographer asked the landowner for permission to enter the land to photograph the deer. Because the landowner feared that any publicity would encourage further intrusions by hunters, she denied the photographer’s request. Frustrated, the photographer attempted to climb the fence. He became entangled in the barbed wire and suffered extensive lacerations. The wounds became infected and ultimately caused his death. The photographer’s personal representative has sued the landowner.
Is the personal representative likely to prevail?
A: Yes, because the landowner may not use deadly force to protect her land from intrusion.
B: Yes, because the landowner had no property interest in the deer that entitled her to use force to protect them.
C: No, because the photographer entered the landowner’s land after the landowner had refused him permission to do so and therefore was a trespasser.
D: No, because the potential for harm created by the presence of the barbed wire was apparent.
D: No, because the potential for harm created by the presence of the barbed wire was apparent.
D is correct. The landowner employed reasonable use of force (the barbed wire) to defend her property, without any attempt to conceal it, which was apparent to the photographer. An average person would stay away from protruding, sharp barbed wire covering the top of a fence. However, the photographer disregarded the obvious risk and proceeded anyway, allowing himself to become severely injured.
A is incorrect. Although this is a true statement (landowners may not use deadly force to defend against mere trespassers), the barbed wire here did not amount to “deadly force.” To be deadly, someone would have to get major parts of their body extensively caught up in barbed wire. An average person would not have proceeded, especially to such an extent, and thus the photographer assumed the risk.
B is incorrect. The landowner had a property interest in the land, which entitled her to protect that interest through reasonable force, even if her motive was primarily to protect the deer.
C is incorrect. Even trespassers can sue for injuries caused by certain dangers on a landowner’s property, although this does not apply in this case, where the landowner acted properly and the photographer assumed the risk.
In a plaintiff’s action for battery, the evidence established the following: the plaintiff was bad-tempered and, as the defendant knew, carried a gun and used it often; the plaintiff struck the defendant first; during the altercation, the plaintiff repeatedly tried to get to his gun; and the blows inflicted upon the plaintiff by the defendant resulted in the plaintiff being hospitalized.
Which finding of fact would be most likely to result in a verdict for the defendant?
A: The defendant used no more force than he actually believed was necessary to protect himself against death or serious bodily harm.
B: The defendant used no more force than he reasonably believed was necessary to protect himself against death or serious bodily harm.
C: The defendant, in fact, feared death or serious bodily harm.
D: The defendant was justified in retaliating against the plaintiff because the plaintiff struck the first blow.
B: The defendant used no more force than he reasonably believed was necessary to protect himself against death or serious bodily harm.
B is correct. The privilege of self-defense permits the use of force actually and reasonably believed to be necessary given the threat posed by the plaintiff.
A is incorrect. This answer is incomplete. It is not sufficient that the defendant actually believed that the force he used was necessary to protect himself. The defendant’s actual belief that the force he used was necessary must also be objectively reasonable in order to support the privilege of self-defense.
C is incorrect. This answer is incomplete. Actual fear is insufficient to support the privilege of self-defense. The defendant is privileged to use only that force which is objectively reasonable given the threat.
D is incorrect. The defendant could respond to the first blow only with the force that he actually and reasonably believed was necessary to prevent further attacks. The privilege of self-defense does not permit retaliation or revenge.
A farmer kept antiques in an uninhabited farmhouse on his property. The farmhouse had been broken into several times in the past, and some of the farmer’s goods had been stolen. Instead of posting “No Trespassing” signs, the farmer decided to install an alarm system to deter intruders.
While the farmer was in the farmhouse installing the alarm system, he heard a window open in the adjoining room. The farmer crept very quietly to the door of the room, threw the door open, and found an intruder, a young child. The farmer immediately struck the child, a 10-year-old girl, very hard in the face, breaking her nose.
In an action on behalf of the child against the farmer to recover for the injury to her nose, is the child likely to prevail?
A: No, because the farmer did not use deadly force.
B: No, because the farmer had probable cause to believe that the child was a thief.
C: Yes, because the farmer should have posted a “No Trespassing” sign.
D: Yes, because the farmer used excessive force.
D: Yes, because the farmer used excessive force.
D is correct. The farmer was privileged to use reasonable force to prevent or end a trespasser’s intrusion upon his land or to protect his property, but he was not privileged to use force that threatened serious bodily injury unless he was himself in danger of serious bodily harm. The force the farmer used was sufficient to and did in fact cause serious
bodily injury. The child appeared to pose no threat of bodily harm to the farmer and could have been deterred by less forceful means.
A is incorrect. The child can state a claim for battery because there was an intentional infliction of a harmful contact. To support a battery action, the contact need not involve force so great as to threaten death.
B is incorrect. The force the farmer used was likely to and did in fact inflict serious bodily harm. Even if the child had been a thief, the privilege to use reasonable force to protect one’s property does not extend to the use of force likely to cause serious bodily harm when there is no threat of such harm to oneself. The child appeared to pose no threat of bodily harm to the farmer and could have been deterred by less forceful means.
C is incorrect. The farmer was not required to have posted a warning in order to have had a privilege to protect his property by the use of reasonable force, although the absence of a warning sign may become a factor in determining whether the steps he took were in fact reasonable. In evaluating whether his actions were reasonable as a defense of his property, the court will ask whether the force he used was excessive. The child appeared to pose no threat of bodily harm to the farmer and could have been deterred by less forceful means. Because the force the farmer used was greater than necessary and was intended to cause serious bodily harm, it was excessive as a defense of property.
A rancher and his neighbor were involved in a boundary dispute. In order to resolve their differences, each drove his truck to an open pasture area on his land where the two properties were separated by a fence. The rancher was accompanied by four friends, and the neighbor was alone.
The neighbor got out of his truck and walked toward the fence. The rancher got out but simply stood by his truck. When the neighbor came over the fence, the rancher shot him, inflicting serious injury. In a battery action brought by the neighbor against the rancher, the rancher testified that he actually thought his neighbor was armed, although he could point to nothing that would have reasonably justified this belief.
Is the neighbor likely to prevail?
A: No, because the rancher was standing on his own property and had no obligation to retreat.
B: No, because the rancher suspected that the neighbor was armed.
C: Yes, because deadly force is never appropriate in a property dispute.
D: Yes, because it was unreasonable for the rancher to consider the use of a gun necessary for self-defense.
D: Yes, because it was unreasonable for the rancher to consider the use of a gun necessary for self-defense.
D is correct. The rancher will be liable for battery because his use of force sufficient to cause serious bodily injury was not supported by a reasonable belief that the neighbor was armed or that the neighbor even intended to harm him. Absent such a showing, the rancher will not be privileged in his shooting of the neighbor.
A is incorrect. Regardless of whether there was a duty to retreat, the rancher’s use of deadly force was unreasonable, and thus was not privileged in any location, including his own property.
B is incorrect. As stated above, the rancher’s belief that the neighbor was armed and intended to shoot him was unreasonable, regardless of his subjective belief, and thus no privilege will apply.
C is incorrect. Although this began as a property dispute, such conflicts can escalate and parties may develop the reasonable belief that deadly force is necessary to defend against serious bodily harm or death. However, the rancher’s belief was unreasonable, which is why the neighbor will prevail.
A driver was traveling along a highway during an unusually heavy rainstorm when the roadway began to flood. To protect his car from water damage, the driver pulled his car up a steep, unmarked driveway abutting the highway that led to a homeowner’s residence. The driver left his car parked in the driveway and walked home, intending to return
when the floodwater had subsided. Shortly after the driver started to walk home, the homeowner carefully rolled the car back down his driveway and parked it on the highway shoulder. The floodwater continued to rise and caused damage to the driver’s car.
If the driver sues the homeowner to recover for damage to the car, is the driver likely to prevail?
A: Yes, because the driver was privileged to park his car on the homeowner’s property.
B: Yes, because there were no “no trespassing” signs posted.
C: No, because the driver intentionally drove his car onto the homeowner’s property.
D: No, because the homeowner was privileged to remove the car from his property.
A: Yes, because the driver was privileged to park his car on the homeowner’s property.
A is correct. The driver’s intentional intrusion onto the homeowner’s property was indeed a trespass, but the trespass was privileged by the necessity created by the storm. A landowner has no right to forcibly expel a trespasser or a trespasser’s property when the trespasser was driven by necessity to trespass on his land, and the landowner is liable
for any damage to property of the trespasser that results from an expulsion.
B is incorrect. The driver was privileged to trespass on the homeowner’s land whether or not signs discouraging trespassers had been posted. The question is whether the driver’s trespass was privileged by necessity, not whether the driver had been put on notice that he was an unwanted trespasser.
C is incorrect. As explained above, the driver’s intentional decision to drive onto the homeowner’s property was a trespass, but the trespass was privileged by necessity, and as such, the driver is not liable and may also recover damages to his car.
D is incorrect. There is no applicable privilege for the homeowner to have forcibly removed the car from his property; the driver’s privilege prevails and he is entitled to recover damages.
In a tavern, an intoxicated woman threatened to slash a man with a broken beer bottle. Another customer, who had not been threatened by the woman, forcefully grabbed the woman and locked her in the tavern’s storeroom until the police could arrive. In the process, although the customer used reasonable force, the customer badly sprained the
woman’s wrist.
Is the woman likely to recover in an action against the customer?
A: No, because the customer’s conduct was privileged as a defense of others.
B: Yes, based on battery only.
C: Yes, based on false imprisonment only.
D: Yes, based on both battery and false imprisonment.
A: No, because the customer’s conduct was privileged as a defense of others.
A is correct. A defense based on the defense of others is available when the defendant has a reasonable belief that the person being aided would have the right of self-defense. The defendant may use as much force as he could have used in self-defense if the injury were threatened to him. Here, an intoxicated woman threatened to slash a man with a
broken beer bottle. The man would have the right of self-defense and therefore the woman will not recover in an action against the customer.
B is incorrect. The woman cannot recover on a claim for battery because the customer’s conduct was privileged as a defense of others.
C is incorrect. To prove a false imprisonment claim, there must have been a willful detention, the detention must have been without consent, and the detention must have been unlawful. However, here the customer only locked the woman in the tavern’s storeroom until the police could arrive. Therefore, the customer has a valid defense.
D is incorrect. As stated above, the woman does not have a cause of action for battery or false imprisonment.
A pilot was flying his small plane when he experienced engine trouble and was forced to make an emergency landing. He landed the plane safely in a large yard behind a home located in a relatively remote area. Unfortunately, when he disembarked from the plane, he was attacked and injured by two large dogs kept by the homeowner to discourage
trespassers. The homeowner, who had seen the plane land, had ordered the dogs to attack. Several months earlier, the homeowner had posted large signs around the perimeter of the yard warning of the dogs.
Does the pilot have a viable claim against the homeowner for battery?
A: No, because the homeowner had provided adequate warning.
B: No, because the pilot was a trespasser.
C: Yes, because the pilot can invoke the privilege of necessity.
D: Yes, because the pilot could not reasonably have been expected to see the warning signs posted by the homeowner
C: Yes, because the pilot can invoke the privilege of necessity.
C is correct. A battery occurs when a defendant brings about harmful or offensive contact upon the plaintiff with the intent to do so. The homeowner ordered the dogs to attack and so caused the harmful contact to occur with the requisite intent. Therefore, the pilot has a case for battery. The homeowner may then seek to assert a defense of
property defense against the pilot, which is a defense to intentional torts. However, when an actor has a privilege to enter the land of another because of necessity, that privilege supersedes the privilege a landowner has in defense of property. Because the pilot had the privilege of necessity, which would defeat the homeowner’s defense of defense of property, the pilot can bring a viable battery claim.
A is incorrect. The pilot had the privilege of necessity to enter the homeowner’s land, which defeats any right the homeowner had to the defense of his property. Additionally, only reasonable force may be used to defend property, unless there is an additional threat of bodily harm to the owner. In this case, the use of vicious dogs would be excessive force against a mere trespasser.
B is incorrect. Even though the pilot was a trespasser, he has the defense of private necessity.
D is incorrect. Even if the pilot had seen the warnings, he still had the defense of private necessity to enter the property. And the use of vicious dogs would be a use of excessive force against a mere trespasser, which is not allowed.
After a car buyer failed to make timely payments on her auto loan and failed to respond to notices of default properly sent to her home address, the loan company hired a collection agency to repossess the car. An employee of the agency went to the buyer’s home and knocked on the front door. When the buyer answered, the employee explained that he was there to repossess the car and asked for the car keys. The buyer handed the employee the keys but then asked the employee to allow her to retrieve her laptop computer from the car. The employee declined the request, explaining to the buyer that any possessions in the car could be reclaimed from the company after the car was repossessed. After pleading unsuccessfully with the employee, the buyer shoved the employee away from the door with such force that the employee fell and suffered a broken wrist. The buyer then ran to the car, which was unlocked, and retrieved the laptop.
The employee has sued the buyer for battery. The buyer has moved for summary judgment, arguing that she was privileged to act as she did.
Should the trial court grant the buyer’s motion?
A: No, because a fact-finder could reasonably conclude that the buyer used excessive force in attempting to defend her property.
B: No, because after the buyer handed the keys to the employee, the car was no longer her property.
C: Yes, because a possessor can use nonlethal force to protect his or her property.
D: Yes, because the buyer complied with the law by returning the car keys and acted reasonably in asking to retrieve the laptop.
A: No, because a fact-finder could reasonably conclude that the buyer used excessive force in attempting to defend her property.
A is correct. Summary judgment will be granted if a party shows there is no genuine dispute of material fact and that the party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. The buyer intentionally shoved the employee, which satisfies the prima facie case for battery. As an affirmative defense, the buyer could claim that she was privileged to use force against the employee in order to maintain possession of her property. However, this defense will be established only if the jury reasonably concludes that the buyer’s use of force was reasonable, not excessive, under the circumstances. Thus, the trial court should deny the buyer’s motion for summary judgment because there is a dispute as to whether the buyer’s use of force was reasonable.
B is incorrect. The buyer’s claim of a privilege for the use of force would be based on her possessory right in the laptop, not the car.
C is incorrect. There is no general rule permitting possessors of property to use nonlethal force to protect their possessory rights in all situations. Possessors can sometimes use nonlethal force to protect their possessions, but only if the force used is reasonable under the circumstances.
D is incorrect. The buyer’s compliance with the employee’s request for the keys, and the reasonableness of the buyer’s request to retrieve the laptop, do not establish as a matter of law that the buyer’s use of force was reasonable under the circumstances.
An intoxicated man who was standing on a fifth-floor apartment balcony threatened to jump off the building. A bystander pulled the man back into the building, pushed him into a bedroom, and locked the bedroom door from the outside. When the man became sober, the bystander released him from the bedroom.
Does the man have a claim against the bystander?
A: Yes, for battery, because the bystander pushed the man into the bedroom.
B: Yes, for false imprisonment, because the bystander locked the man in the bedroom.
C: Yes, for both battery and false imprisonment.
D: No, because the bystander was privileged to act as he did.
D: No, because the bystander was privileged to act as he did.
D is correct. A person is privileged to use reasonable force to protect another against imminent harm. The privilege includes preventing self-inflicted harm. Here, the intoxicated man was on the verge of harming or killing himself. It was reasonable for the bystander to push the man and lock him in the bedroom until the danger had passed.
A is incorrect. Even though the intentional pushing of another person without that person’s consent meets the definition of a battery, the privilege to use force to prevent self-inflicted harm would defeat a battery claim brought by the man.
B is incorrect. Although the intentional confinement of another person without that person’s consent meets the definition of false imprisonment, the privilege to use force to prevent self-inflicted harm would defeat this claim.
C is incorrect. The man’s intentional pushing and confinement of another person were reasonable under the circumstances because the intoxicated man threatened serious self-inflicted harm.
A man rented a beach house for a weeklong vacation. On the day he arrived, just after sunset, he took his bag upstairs to a second-floor bedroom and unpacked. As he was about to head back downstairs, he realized that the stairwell had become too dark to navigate without a light. The man spent about 30 seconds feeling the walls at the top
of the stairwell but could not find a light switch. In fact, the switch was located in an awkward position not reachable without descending to the second step.
Although he recognized the danger of descending an unfamiliar staircase in darkness, the man started down the stairs. He lost his footing halfway down, fell, and was seriously injured.
The man has sued the owner of the beach house for negligence. The jurisdiction recognizes the traditional common law defense of assumption of risk.
If the action proceeds to trial, which of the following would be an
appropriate (paraphrased) instruction for the court to give to the jury?
A: “If you conclude that the owner failed to provide reasonably safe premises, but that the man knowingly and voluntarily chose to encounter the risk of falling on the darkened stairs, then you must assign a percentage of responsibility to the man.”
B: “If you conclude that the owner failed to provide reasonably safe premises, but that the man knowingly and voluntarily chose to encounter the risk of falling on the darkened stairs, then you must find for the owner.”
C: “If you conclude that the owner failed to provide reasonably safe premises, but that the man was a mere licensee, then you must find for the owner.”
D: “If you conclude that the owner failed to provide reasonably safe premises, then you may in your discretion award the man both compensatory and punitive damages.”
B: “If you conclude that the owner failed to provide reasonably safe premises, but that the man knowingly and voluntarily chose to encounter the risk of falling on the darkened stairs, then you must find for the owner.”
B is correct. The traditional assumption of risk defense is a complete defense. Therefore, if the jury finds that the man knowingly and voluntarily chose to encounter the risk of falling down the darkened stairs, the owner will not be liable.
A is incorrect. The question states that the jurisdiction recognizes the traditional rule for assumption of risk, which is a complete defense. Under the traditional rule, the assignment of a percentage of responsibility does not apply.
C is incorrect. The man’s status as a licensee is not relevant to whether he assumed the risk of falling down the stairs.
D is incorrect. The question is not about what damages the man might recover but whether he assumed the risk of falling down the stairs and thereby rendered the owner not liable for his injuries.
A boater, caught in a sudden storm and reasonably fearing that her boat would capsize, drove the boat up to a pier, exited the boat, and tied the boat to the pier. The pier was clearly marked with “NO TRESPASSING” signs. The owner of the pier ran up to the boater and told her that the boat could not remain tied to the pier. The boater offered to pay the owner for the use of the pier. Regardless, over the boater’s protect, the owner untied the boat and pushed it away from the pier. The boat was lost at sea.
Is the boater likely to prevail in an action against the owner to recover the value of the boat?
A: No, because the owner told the boater that she could not tie the boat to the pier.
B: No, because there was a possibility that the boat would not be damaged by the storm.
C: Yes, because the boater offered to pay the owner for the use of the pier.
D: Yes, because the boater was privileged to enter the owner’s property to save her boat.
D: Yes, because the boater was privileged to enter the owner’s property to save her boat.
D is correct. The boater was privileged to trespass on the owner’s property under the doctrine of private necessity, because the boater’s property was at risk. Because the boater’s intrusion onto the pier was privileged, the owner had no right to exclude her or her boat from the pier. When the owner untied the boat, he committed an unprivileged
trespass upon the boater’s property, so the owner must pay for the loss of the boat.
A is incorrect. The boater was privileged to trespass on the owner’s property under the doctrine of private necessity, because the boater’s property was at risk. Because the boater’s intrusion onto the pier was privileged, the owner had no right to exclude her or her boat from the pier. In telling the boater that she could not tie the boat to the pier, the
owner was asserting a right that he did not possess. When the owner untied the boat, he committed an unprivileged trespass upon the boater’s property, so the owner must pay for the loss of the boat.
B is incorrect. The boater was privileged to trespass on the owner’s property under the doctrine of private necessity, because her property was at risk. In order to establish that privilege, the boater need not establish that harm to the boat was inevitable, but only that her actions were reasonable given the circumstances. Because the boater’s
intrusion onto the pier was privileged, the owner had no right to exclude her or her boat from the pier. When the owner untied the boat, he committed an unprivileged trespass upon the boater’s property, so the owner must pay for the loss of the boat.
C is incorrect. The boater is likely to prevail, but it is because the boater was privileged to trespass on the owner’s property under the doctrine of private necessity. Because the boater’s property was at risk, her intrusion onto the pier was privileged, and the owner had no right to exclude her or her boat from the pier. Whether or not the boater offered
to pay the owner is irrelevant to the privilege of private necessity. When the owner untied the boat, he committed an unprivileged trespass upon the boater’s property, so the owner must pay for the loss of the boat.
A doctor ordered chest X-rays for a patient who smoked cigarettes. After the consulting radiologist told the doctor that the X-rays looked normal, the doctor told the patient that he was in good health. In fact, the radiologist had missed signs of cancer on the X-rays that a trained radiologist, acting competently, would have detected.
After another X-ray of the patient’s chest, performed one year later, showed advanced lung cancer, the doctor discovered that the radiologist had misinterpreted the patient’s earlier X-rays. The patient died within four months of the later X-ray, because by then his cancer had become untreatable.
In a wrongful death suit against the radiologist based on only the facts set out above, a jury found the radiologist negligent and awarded $3 million in compensatory damages and $21 million in punitive damages.
Is the radiologist likely to have the punitive damages award vacated on appeal?
A: No, because a 7 to 1 ratio of punitive to compensatory damages is constitutionally permissible.
B: No, because an award of punitive damages is appropriate for medical malpractice that results in death or serious injury.
C: Yes, because punitive damages awards are not authorized unless there is proof of willful or wanton misconduct on the defendant’s part.
D: Yes, because the patient smoked cigarettes and therefore was contributorily negligent.
C: Yes, because punitive damages awards are not authorized unless there is proof of willful or wanton misconduct on the defendant’s part.
C is correct. Punitive damages may be awarded where there is proof of the defendant’s willful or wanton misconduct. Although the radiologist was negligent, nothing in the facts provided suggests that the radiologist acted with willful or wanton misconduct. Thus, the radiologist is likely to have the punitive damages award vacated on appeal.
A is incorrect. The issue is not the amount of damages, but rather the lack of evidence that demonstrates that the radiologist injured the patient in a willful or wanton manner. Absent evidence of willful or wanton misconduct, punitive damages may not be awarded.
B is incorrect. Punitive damages are not based on the extent of the plaintiff’s injuries and may only be awarded when there is evidence that the defendant willfully or wantonly injured the plaintiff. Because the facts do not prove that the radiologist acted in a willful or wanton manner, the punitive damages award will likely be vacated on appeal.
D is incorrect. The patient’s own negligence is irrelevant to the question of whether punitive damages are appropriate. Regardless of the patient’s own conduct, punitive damages may be awarded where evidence shows the defendant’s willful or wanton misconduct caused injury to the plaintiff. No such evidence is present in the facts; thus, the punitive damages award is improper and will likely be vacated.
An eight-year-old child went to the grocery store with her mother. The child pushed the grocery cart while her mother put items into it. The child’s mother remained near the child at all times. Another customer in the store noticed the child pushing the cart in a manner that caused the customer no concern. A short time later, the cart the child was pushing struck the customer in the knee, inflicting serious injury.
If the customer brings an action, based on negligence, against the child, the child’s best argument in defense would be that
A: The child exercised care commensurate with her age, intelligence, and experience.
B: The child is not subject to tort liability.
C: The child was subject to parental supervision.
D: The customer assumed the risk that the child might hit the customer with the cart.
A: The child exercised care commensurate with her age, intelligence, and experience.
A is correct. This choice gives a child-appropriate negligence standard of care. The customer’s claim for negligence will be allowed, but the child will only be held to the standard of care expected of “a reasonable child” of the same age, training, maturity, experience, and intelligence.
B is incorrect. This choice is both overly broad and not a defense. The child is not too young to be held liable in tort. Children as young as four have been found capable of forming a tortious intent.
C is incorrect. The child’s mother can assert supervision of her child as a defense against a claim for negligence in the control of her daughter, but it is not available to the child herself.
D is incorrect. The customer did not expressly or impliedly and knowingly assume the risk that the child would push a cart into her. Entering the grocery store was not an assumption of the risk that she might be injured by a store cart.
A plaintiff suffered from a serious, though not immediately life-threatening impairment of his circulatory system. The plaintiff’s cardiologist recommended a cardiac bypass operation and referred the plaintiff to a surgeon. The surgeon did not inform the plaintiff of the 2% risk of death associated with this operation. The surgeon defended his decision not to mention the risk statistics to the plaintiff because the plaintiff “was a worrier and it would significantly lessen his chance of survival to be worried about the nonsurvival rate.”
The surgeon successfully performed the bypass operation and the plaintiff made a good recovery. However, when the plaintiff learned of the 2% risk of death associated with the operation, he was furious that the surgeon had failed to disclose this information to him, saying that he would have refused the operation if he had known of the risk.
If the plaintiff asserts a claim against the surgeon based on negligence, will the plaintiff prevail?
A: No, because the surgeon used his best personal judgment in shielding the plaintiff from the risk statistic.
B: No, because the operation was successful and the plaintiff suffered
no harm.
C: Yes, because the plaintiff would have refused the operation had he been informed of the risk.
D: Yes, because a patient must be told the risk factors associated with a surgical procedure in order to give informed consent.
B: No, because the operation was successful and the plaintiff suffered no harm.
B is correct. Negligence (including medical malpractice) requires proof of duty, breach, causation, and damages. It is not a dignitary tort. If the plaintiff did not suffer an actual injury, he cannot prevail in an action for negligence against his doctor.
A is incorrect. A doctor has a duty to provide the patient with enough information about a procedure’s risks to enable the patient to give informed consent.
C is incorrect. It does not alter the fact that the plaintiff cannot establish damages in his negligence claim.
D is incorrect. This answer choice provides a correct statement about informed consent, but without damages the plaintiff will not prevail.
While approaching an intersection with the red light against him, a motorist suffered a heart attack that rendered him unconscious. The motorist’s car struck a child, who was crossing the street with the green light in her favor. Under the state motor vehicle code, it is an offense to
drive through a red traffic light.
The child sued the motorist to recover for her injuries. At trial it was stipulated that: (1) immediately prior to suffering the heart attack, the motorist had been driving within the speed limit, had seen the red light, and had begun to slow his car; (2) the motorist had no history of heart disease and no warning of this attack; (3) while the motorist was
unconscious, his car ran the red light.
On cross motions for directed verdicts on the issue of liability at the conclusion of the proofs, the court should
A: grant the child’s motion, because the motorist ran a red light in violation of the motor vehicle code.
B: grant the child’s motion, because, in the circumstances, reasonable persons would infer that the motorist was negligent.
C: grant the motorist’s motion, because he had no history of heart disease or warning of the heart attack.
D: deny both motions and submit the case to the jury, to determine whether, in the circumstances, the motorist’s conduct was that of a reasonably prudent person.
C: grant the motorist’s motion, because he had no history of heart disease or warning of the heart attack.
C is correct. The stipulated facts prove that there was no legally sufficient evidentiary basis for a reasonable jury to find that the motorist breached his duty of care given that he was not driving negligently and had no history of heart disease that created a foreseeable risk of harm to others while driving.
A is incorrect. The motorist’s violation of the statute does not constitute negligence per se because he was unconscious when he violated it and it was unforeseeable that he would have lost consciousness for any reason while driving.
B is incorrect. Res ipsa loquitur does not apply because the parties stipulated that the motorist lost control of the car, the instrumentality, based on an unforeseen medical emergency that he had no reason to take precautions against.
D is incorrect. The motorist’s motion for a directed verdict should be granted because, as explained above, a person who is unconscious is not liable for acts he had no control over unless it was foreseeable and precautions were not taken, which was not the case here.
A patient had been under the care of a cardiologist for three years prior to submitting to an elective operation that was performed by a surgeon. Two days thereafter, the patient suffered a stroke, resulting in a coma, caused by a blood clot which formed after the operation. When it appeared that she had entered a permanent vegetative state, with no
hope of recovery, the artificial life-support system that had been provided was withdrawn, and she died a few hours later. The withdrawal of artificial life support had been requested by her family, and duly approved by a court. The surgeon was not involved in that decision, or in its execution.
The administrator of the patient’s estate thereafter filed a wrongful death action against the surgeon, claiming that the surgeon was negligent in having failed to consult a cardiologist prior to the operation. At the trial the plaintiff offered evidence that accepted medical practice would require examination of the patient by a cardiologist prior to the type of operation that the surgeon performed. In this action, the plaintiff should
A: prevail, because the surgeon was negligent in failing to have the patient examined by a cardiologist prior to the operation.
B: prevail, because the blood clot that caused the patient’s death was caused by the operation which the surgeon performed.
C: not prevail, because there is no evidence that a cardiologist would have provided advice that would have changed the outcome if one had examined the patient before the operation.
D: not prevail, because the surgeon had nothing to do with the withdrawal of artificial life support, which was the cause of the patient’s death.
C: not prevail, because there is no evidence that a cardiologist would have provided advice that would have changed the outcome if one had examined the patient before the operation.
C is correct. The critical issue in this question is whether the lack of a cardiology review is the cause in fact and the legal cause of the injury the patient suffered. This answer choice is the only answer that addresses the need to provide evidence of the causal link between the surgeon’s breach of duty and the subsequent medical injury to the patient.
A is incorrect. There is no indication that, even if the surgeon had consulted a cardiologist, it would have led to a different outcome. Thus, there is no evidence that the surgeon’s failure to consult a cardiologist was a but-for cause of the harm.
B is incorrect. The surgeon is not liable for the resulting harm without the plaintiff establishing actual causation. There is no evidence that the surgeon’s failure to consult a cardiologist was a but-for cause of the harm.
D is incorrect. The need for and the potential withdrawal of life support were foreseeable consequences. Thus, if the surgeon was otherwise negligent, he would be liable for the resulting harm.
A car owner washed her car while it was parked on a public street, in violation of a local ordinance that prohibits the washing of vehicles on public streets during specified hours. The ordinance was enacted only to expedite the flow of automobile traffic. Due to sudden and unexpected cold weather, the car owner’s waste water formed a puddle that froze in a crosswalk. A pedestrian slipped on the frozen puddle and broke her leg. The pedestrian sued the car owner to recover for her injury. At trial, the only evidence the pedestrian offered as to negligence was the car owner’s admission that she had violated the ordinance. At the conclusion of the evidence, both parties moved for a directed
verdict.
How should the trial judge proceed?
A: Deny both motions and submit the case to the jury, because, on the facts, the jury may infer that the car owner was negligent.
B: Deny both motions and submit the case to the jury, because the jury may consider the ordinance violation as evidence that the car owner was negligent.
C: Grant the car owner’s motion, because the pedestrian has failed to offer adequate evidence that the car owner was negligent.
D: Grant the pedestrian’s motion, because of the car owner’s admitted ordinance violation.
C: Grant the car owner’s motion, because the pedestrian has failed to offer adequate evidence that the car owner was negligent.
C is correct. The pedestrian offered no evidence supporting the claim of negligence except the ordinance violation. The ordinance was not adopted to reduce the risk of accumulating ice on public walkways. Accordingly, the car owner’s motion should be granted.
A is incorrect. Negligence creating the risk of an icy surface cannot be inferred from the mere fact that the car owner allowed the water to accumulate; the cold weather was sudden and unexpected. The ordinance violation is irrelevant because the ordinance was not adopted to reduce the risk of accumulating ice on public walkways. Because there is no reasonable inference of negligence and no independent evidence of negligence, the car owner’s motion should be granted.
B is incorrect. By referencing the ordinance violation, this answer choice raises the doctrine of negligence per se. Because the pedestrian offered no evidence supporting the claim of negligence except the ordinance violation, the car owner’s motion should be granted.
D is incorrect. By referencing the ordinance violation, this answer choice raises the doctrine of negligence per se. However, negligence per se does not create a presumption of negligence in this situation.
In a civil action, a plaintiff sued a decedent’s estate to recover damages for injuries she suffered in a collision between her car and one driven by the decedent. At trial, the plaintiff introduced undisputed evidence that the decedent’s car had swerved across the centerline of the highway into oncoming traffic, where it had collided with the plaintiff’s car.
The decedent’s estate introduced undisputed evidence that, before he swerved across the centerline, the decedent had suffered a fatal heart attack, which he had no reason to foresee, and that, just prior to the heart attack, the decedent had been driving at a reasonable speed and in a reasonable manner. A statute makes it a traffic offense to cross the centerline of a highway.
In this case, which party is likely to prevail?
A: The decedent’s estate, because its rebuttal evidence is undisputed.
B: The decedent’s estate, because the plaintiff has not established a prima facie case of liability.
C: The plaintiff, because the accident was of a type that does not ordinarily happen in the absence of negligence on the actor’s part.
D: The plaintiff, because the decedent crossed the centerline in violation of the statute.
A: The decedent’s estate, because its rebuttal evidence is undisputed.
A is correct. The plaintiff’s evidence that the decedent violated the statute and crossed over the centerline establishes a prima facie case of negligence. However, the prima facie case of negligence may be rebutted by showing that compliance with the statute was beyond the defendant’s control. Here, the decedent’s estate successfully rebutted the plaintiff’s evidence by providing an undisputed explanation of how the accident happened that is inconsistent with a finding of negligence (the decedent’s unforeseeable heart attack made her unable to comply with the statute or, indeed, with any standard of care).
B is incorrect. This answer correctly states that the decedent’s estate will prevail, but it misstates the legal basis for this conclusion. As explained above, the decedent’s estate successfully rebutted the plaintiff’s prima facie case of negligence by providing an uncontested explanation of how the accident happened that is inconsistent with a finding of negligence (the decedent’s unforeseeable heart attack made him unable to comply with the statute or, indeed, with any standard of care).
C is incorrect. It may or may not be true that accidents of this type do not ordinarily happen in the absence of negligence, but whether they do is irrelevant. As explained above, the decedent’s estate has successfully rebutted the plaintiff’s prima facie case of negligence by providing an undisputed explanation of how the accident happened that is
inconsistent with a finding of negligence (the decedent’s unforeseeable heart attack made him unable to comply with the statute or, indeed, with any standard of care).
D is incorrect. As explained above, the decedent’s estate has successfully rebutted the plaintiff’s evidence by providing an undisputed explanation of how the accident happened that is inconsistent with a finding of negligence (the decedent’s unforeseeable heart attack made him unable to comply with the statute or, indeed with any standard of care).
A food company contracted with a delivery service to supply food to remote areas around the world. The contract between the food company and the delivery service was terminable at will. The delivery service then entered into a contract with an airline to provide an airplane to deliver the food. The contract between the delivery service and the airline was also terminable at will.
The food company was displeased with the airline because of a previous business dispute between them. Upon learning of the delivery service’s contract with the airline, the food company terminated its contract with the delivery service in order to cause the airline to lose the business. After the food company terminated the delivery service’s contract, the delivery service had no choice but to terminate the airline contract.
If the airline sues the delivery service for tortious interference with contract, will the airline prevail?
A: No, because the airline and the delivery service were the parties to the contract.
B: No, because the airline was not in privity with the food company.
C: Yes, because the delivery service did not terminate the contract because of poor performance.
D: Yes, because the delivery service’s termination of the contract made it a party to the food company’s acts.
A: No, because the airline and the delivery service were the parties to the contract.
A is correct. The airline company sued the delivery service based on a theory of the tortious interference with its contract. The tort of interference with contract provides a cause of action against those who improperly interfere with the performance of a contract between the plaintiff and a third person. In this case, the airline and the delivery service were parties to a contract, and any action between them would be based on the contract, rather than on tort. The proper defendant in the tort action would be the food company. See Restatement (Second) of Torts § 766.
B is incorrect. This answer correctly states that the airline will not prevail, but it misstates the reasoning for this conclusion. The airline could sue the food company for tortious interference even though it was not in privity with the food company, but it did not do so. It sued the delivery service instead. Because the airline and the delivery service were parties to a contract, the action between them would be based on the contract, rather than on tort. See Restatement (Second) of Torts § 766.
C is incorrect. There are two reasons why this answer choice is incorrect. First, the delivery service was a party to the contract with the airline company. Any claim of breach is governed by contract law, rather than tort law. Thus, the airline company cannot win on a theory of tortious interference with the contract. Second, even assuming that the airline brought a proper cause of action based on contract law, the contract was terminable at will. Thus, the delivery service could have terminated the contract regardless of the quality of performance without breaking the contract. See Restatement (Second) of Torts § 766.
D is incorrect. There is no indication here that the delivery service encouraged or otherwise abetted the food company’s decision to cancel its contract. In fact, the delivery service lost business because of that cancellation and would have no reason to encourage the food company to cancel. See Restatement (Second) of Torts § 766.
A fire that started in the defendant’s warehouse spread to the plaintiff’s adjacent warehouse. The defendant did not intentionally start the fire, and the plaintiff can produce no evidence as to how the fire started. However, the defendant had failed to install a sprinkler system, which was required by a criminal statute. The plaintiff can produce evidence
that had the sprinkler system been installed, it could have extinguished the fire before it spread.
In an action by the plaintiff against the defendant to recover for the fire damage, is it possible for the plaintiff to prevail?
A: No, because the statute provides only for criminal penalties.
B: No, because there is no evidence that the defendant negligently caused the fire to start.
C: Yes, because a landowner is strictly liable for harm to others caused by the spread of fire from his premises under the doctrine of Rylands v. Fletcher.
D: Yes, because the plaintiff was harmed as a result of the defendant’s violation of a statute that was meant to protect against this type of occurrence.
D: Yes, because the plaintiff was harmed as a result of the defendant’s violation of a statute that was meant to protect against this type of occurrence.
D is correct. A criminal statute can be used to set the standard of care in a negligence action if it was intended to protect against the type of harm that occurred by specifying preventive steps that should be taken. In that case, violation of the statute is negligence per se.
A is incorrect. As explained above, the criminal statute may be used as the standard of care in this case.
B is incorrect. Even though there is no evidence that the defendant intentionally or negligently started the fire, his failure to take preventive steps to stop the spread of fires was a but-for cause of the plaintiff’s loss.
C is incorrect. The modern interpretation of Rylands v. Fletcher limits the precedent to a category of “abnormally dangerous activities.” There is no indication that the defendant here engaged in an abnormally dangerous activity.
A schizophrenic patient who was institutionalized in a psychiatric facility pushed a nurse down a stairwell at the facility. The nurse, a paid employee of the facility who was trained to care for schizophrenic patients, was injured. The patient is an indigent whose care is paid for by the government.
The jurisdiction generally follows the rule that a person with a mental deficiency is held to the standard of a reasonable person. In a negligence action brought by the nurse against the patient, the patient’s lawyer will argue that the patient should not be held responsible for the nurse’s injury.
Which of the following facts will be LEAST helpful to the patient’s lawyer’s argument?
A: The nurse was a professional caregiver.
B: The nurse was trained to care for patients with schizophrenia.
C: At the time she pushed the nurse, the patient thought she was being attacked by an elephant.
D: The patient is an indigent whose care is paid for by the government.
D: The patient is an indigent whose care is paid for by the government.
D is correct. Whether the patient has the resources to satisfy an adverse judgment is irrelevant to the judgment itself and should not be a subject of argument on the issue of liability in the case, although the patient’s financial situation might affect a lawyer’s decision to take on the case.
A is incorrect. The nurse’s professional role is relevant because it might support a defense based on assumption of risk.
B is incorrect. The nurse’s specialty training is relevant because it might support a defense based on either assumption of risk or contributory negligence. The patient could argue that a professional with the nurse’s training should have foreseen the risk of this happening and taken steps to protect herself.
C is incorrect. The patient’s mental state is relevant because the patient’s actions were no doubt caused by the mental illness and thus fell within the risks likely assumed and anticipated by the nurse.
A patient received anesthesia while giving birth. Upon awakening from the anesthesia, she discovered a severe burn on the inner portion of her right knee. The patient has brought a medical malpractice action in which she has joined all of the physicians and nurses who exercised control over her person, the delivery room, the medical procedures, and
the equipment used during the period in which she was unconscious.
The defendants have jointly moved for summary judgment. The patient has produced affidavits that establish that the applicable professional standard of care was violated.
What would be the patient’s best argument against the motion?
A: At least one of the defendants had control over whatever agency or instrumentality caused the patient’s injury.
B: The defendants were acting in concert.
C: The patient has produced affidavits that establish that the applicable professional standard of care was violated.
D: The patient was in no way responsible for her injury.
A is correct. Showing that a defendant had control over the instrumentality that caused her injury would be a basis for the application of res ipsa loquitur in some jurisdictions and, if res ipsa ioquitur was applied, it could be a basis for defeating the defendants’ motion for summary judgment.
B is incorrect. “Acting in concert” refers to jointly engaging in negligent activity. There is no evidence here that the mishap that caused the injury was the result of any joint negligent activity; a single actor may have caused the burn.
C is incorrect. Even though the plaintiff can establish that there was negligence by someone, she must also establish that the defendants caused her injury. Evidence that the standard of care was breached establishes that someone was negligent, but it does not establish that all the defendants or any particular defendant were responsible.
D is incorrect. Excluding the patient as a cause is ordinarily not enough to establish liability if a responsible injurer cannot be identified. The plaintiff needs an additional doctrine to make the causal connection between her injury and the defendants.
A man rented a car from a car rental agency. Unbeknownst to the rental agency, the car had a bomb hidden in it at the time of the rental. The bomb exploded an hour later, injuring the man.
Immediately prior to renting the car to the man, the rental agency had carefully inspected the car to be sure it was in sound operating condition. The rental agency did not inspect for hidden explosive devices, but such an inspection would have revealed the bomb.
There had been no previous incidents of persons hiding bombs in rental cars.
In a negligence action by the man against the car rental agency, is the man likely to prevail?
A: No, because the rental agency could not have reasonably foreseen the likelihood of someone placing a bomb in the car it was about to rent to the man.
B: No, because the rental agency did not hide the bomb in the car.
C: Yes, because an inspection for explosive devices would have revealed the bomb.
D: Yes, because the bomb made the car abnormally dangerous.
A: No, because the rental agency could not have reasonably foreseen the likelihood of someone placing a bomb in the car it was about to rent to the man.
A is correct. The standard to be applied in a negligence action is whether the defendant acted with ordinary care. The presence of a bomb in a rental car is sufficiently unlikely that a reasonable rental agency would not routinely inspect for such a device. In the absence of evidence that the agency should have foreseen that there might be a bomb hidden in the car, the man cannot prove a negligence claim.
B is incorrect. Under some circumstances, the rental agency could be liable even though it did not hide the bomb. If it were reasonably foreseeable that a bomb might be planted in a rental car (for example, because that practice had become a common terrorist tactic in the area), a reasonably prudent rental agency would routinely search for such a
device before renting out the car. In that situation, even though the agency did not hide a bomb itself, it would be liable for failing to take reasonable precautions. In this case, the agency will not be liable to the man, because it took all reasonable precautions under the circumstances.
C is incorrect. Even if an untaken precaution (such as an inspection for explosive devices) would have revealed a danger, the defendant in a negligence action is responsible only for taking those precautions that are reasonably necessary. A bomb has a high potential for inflicting serious injury, but in most cases it is so unlikely to be found in a rental car that the time and effort needed for a routine search for bombs would not be justified. If incidents involving bombs in rental cars began to occur, that calculation might change, but in this case, the agency will not be liable to the man, because it took all reasonable precautions under the circumstances.
D is incorrect. The car may well have become abnormally dangerous once the bomb was planted, but the agency did not intentionally engage in an abnormally dangerous activity. Moreover, even if the court decided that the agency had engaged in an abnormally dangerous activity, that conclusion would support strict liability, not negligence. Unreasonable conduct, rather than abnormal danger, is the key to liability in negligence. And in this negligence action, the agency will not be liable to the man, because it took all reasonable precautions under the circumstances.
A 14-year-old girl of low intelligence received her parents’ permission to drive their car. She had had very little experience driving a car and did not have a driver’s license. Although she did the best she could, she lost control of the car and hit a pedestrian.
The pedestrian has brought a negligence action against the girl.
Is the pedestrian likely to prevail?
A: No, because only the girl’s parents are subject to liability.
B: No, because the girl was acting reasonably for a 14-year-old of low intelligence and little driving experience.
C: Yes, because the girl was engaging in an adult activity.
D: Yes, because the girl was not old enough to obtain a driver’s license.
C: Yes, because the girl was engaging in an adult activity.
C is correct. The girl was engaging in a dangerous activity that is characteristically undertaken by adults, so she will be held to the adult standard of care. No adjustment will be made to that standard to reflect her low intelligence and lack of experience. Her low intelligence and her inexperience put others at risk, and she will be held to the standard of
a reasonably prudent driver even if she is not capable of reasonable prudence.
A is incorrect. The parents and the girl may both be liable. The girl was engaging in a dangerous activity that is characteristically undertaken by adults, so she will be held to the adult standard of care and can be sued for the injuries caused by her negligent driving.
B is incorrect. The girl was engaging in a dangerous activity that is characteristically undertaken by adults, so she will be held to the adult standard of care. No adjustment will be made to that standard to reflect her low intelligence and lack of experience. Her low intelligence and her inexperience put others at risk, and she will be held to the standard of
a reasonably prudent driver even if she is not capable of reasonable prudence.
D is incorrect. In the absence of a statute setting a different standard, the girl’s failure to obtain a license ordinarily would not be evidence that she was actually negligent at the time of the accident. The pedestrian would have to prove actual negligence, which should be easy given that the girl lost control of the car and given the fact that the girl will be held to an adult standard of care because she was engaging in an activity that is characteristically undertaken by adults.
A 13-year-old girl was operating a high-speed motorboat. The boat was towing a 9-year-old boy in an inner tube tied to the rear of the motorboat by a rope. The rope became tangled around the boy’s foot, causing him to suffer severe injuries.
In a suit brought on the boy’s behalf against the girl, the boy has introduced uncontroverted evidence that the girl drove carelessly in such a way as to entangle the boy in the rope.
Is the boy likely to prevail?
A: No, because the boy assumed the risk.
B: No, because the girl was too young to be expected to appreciate and avoid the risk she exposed the boy to.
C: Yes, because children of the girl’s age should have the capacity to operate motorboats.
D: Yes, because the girl will be held to an adult standard of care.
D: Yes, because the girl will be held to an adult standard of care.
D is correct. In order to determine if the boy is likely to prevail, we must first determine what duty of care was owed to him. The girl is only 13 years old. A majority of courts will hold that a child is required to conform to the standard of care a child of like age, education, intelligence, and experience. However, when a child engages in an activity that is normally one that only adults engage in, courts will hold that the child will be required to conform to the same standard of care as an adult in such an activity. Here, the girl was operating a high-speed motorboat: an adult activity. Therefore, she will be held to an adult standard of care and the boy will prevail.
A is incorrect. An assumption of the risk applies when the plaintiff knew of the risk and voluntarily assumed it. There is nothing in the facts here to suggest that the boy assumed the risk. Further, the boy has introduced uncontroverted evidence that the girl drove carelessly in such a way as to entangle the boy in the rope.
B is incorrect. As stated above, when children are engaged in an adult activity, courts will hold that they are required to conform to the same standard of care as an adult.
C is incorrect. This is an incorrect statement. Children of the girl’s age should not have the capacity to operate motorboats.
A complaint filed on behalf of a woman against a nursing home and an ambulance service included the following allegations:
The woman, who was 86 years old and unable to speak after suffering a stroke, was picked up from her daughter’s house by the ambulance service and taken to the nursing home to stay while her daughter was out of town. When the woman’s daughter returned a few days later, the ambulance service picked up the woman from the nursing home and
returned her to the daughter’s house. The daughter was shocked to discover that the woman had a broken leg; her leg had been uninjured when she left for the nursing home.
A physician’s report attached to the complaint stated that the woman’s leg injury would not have occurred in the absence of negligence.
The complaint further alleged that the woman was under the control, successively, of the ambulance service and the nursing home during the time when she must have sustained the injury, and that either the ambulance service or the nursing home must have negligently moved or handled the woman, causing the injury to her leg.
Both defendants have argued that the allegations in the complaint are inadequate to support a negligence claim.
What is the best response to the defendants’ argument?
A: Both defendants owed a duty to the woman.
B: One of the two defendants probably caused the injury, and the circumstances of the injury are primarily within the knowledge and control of the defendants rather than the woman or her representative.
C: The defendants are concurrent tortfeasors, so each is vicariously liable for any tortious act committed by the other.
D: There are grounds for the fact-finder to infer that both defendants were negligent.
B: One of the two defendants probably caused the injury, and the circumstances of the injury are primarily within the knowledge and control of the defendants rather than the woman or her representative.
B is correct. The physician’s report stated that the woman’s leg injury would not have occurred in the absence of negligence. However, the woman had suffered a stroke and was unable to speak. Therefore, the defendants are the ones with primary knowledge and control of what caused the injury. The woman cannot offer any more allegations in
her complaint.
A is incorrect. While true, the fact that both defendants owed a duty to the woman does not address the argument that the allegations in the complaint are inadequate to support a negligence claim.
C is incorrect. Vicarious liability applies when the defendants have a special relationship, such as employer-employee relationship. Nothing in the facts indicates that the ambulance service is an employee of the nursing home.
D is incorrect. The woman did not state in her complaint what exactly happened because she does not have knowledge of it. There are not enough grounds for the fact-finder to infer that both defendants were negligent until they provide details of the incident.
A patient who had suffered a severe fracture of her leg was treated by an orthopedist, who set the patient’s leg and put it in a cast. When the leg continued to bother the patient six months later, she consulted a second orthopedist in the same town. The second orthopedist surgically inserted a pin to facilitate healing.
The patient brought a malpractice action against the first orthopedist, claiming that he should have surgically inserted a pin at the time of initial treatment.
The only evidence that the patient offered in support of her malpractice claim was the testimony of the second orthopedist, as follows:
In response to the question “Would you have inserted a pin initially?” the second orthopedist testified, “I personally would not have been satisfied that the leg would heal properly without a pin.”
At the close of the patient’s evidence, the first orthopedist moved for judgment as a matter of law.
Should the motion be granted?
A: No, because the patient has introduced evidence that the first orthopedist failed to give the care that the second orthopedist would have provided.
B: No, because the second orthopedist practices in the same town and field of specialty as the first orthopedist.
C: Yes, because the patient has failed to introduce evidence that the first orthopedist’s care fell below the professional standard of care.
D: Yes, because the second orthopedist also treated the patient and is thus not sufficiently objective to offer expert testimony
C: Yes, because the patient has failed to introduce evidence that the first orthopedist’s care fell below the professional standard of care.
C is correct. Professionals are held to a different standard of conduct than that of the ordinary person. Doctors especially have a specialized standard of care; most courts will apply a national standard of care to evaluate their conduct. The patient is responsible for introducing evidence to show that the orthopedist breached his standard of care. There is nothing here to suggest that this was the case.
A is incorrect. The only evidence that the patient has introduced is the statement by the second orthopedist stating his personal opinion. No statements of fact were provided, nor were any statements illustrating that the first orthopedist breached the standard of care.
B is incorrect. This fact would not have an effect on the judgment as a matter of law being granted or denied.
D is incorrect. The second orthopedist would be allowed to offer expert testimony, if qualified as an expert.
A company set up a website for the advertisement of goods and services offered by individuals, as well as other public notices.
One of the notices on the site announced that the furnishings in a home at a specified address were free for the taking. Within a few hours of the posting, all the furnishings had been taken.
The notice had been placed by the homeowner’s cousin without the homeowner’s knowledge. The cousin bore a grudge against the homeowner and had placed the notice while the homeowner was away and had left the door to the home unlocked.
In a negligence action brought by the homeowner against the company, what will be the company’s strongest defense?
A: The company had no duty to the homeowner.
B: The cousin’s actions were a proximate cause of the homeowner’s loss.
C: The First Amendment prohibits all tort actions based upon mere speech.
D: There is no evidence of careless conduct by the company.
A: The company had no duty to the homeowner.
A is correct. The elements of a claim for negligence are duty, breach of duty, causation, and damages. The company’s best argument against liability is that it has no duty to protect people from being injured by third parties who intentionally misuse its site, which merely provides a platform for transactions between individuals. Without any duty owed, there can be no finding of negligence.
B is incorrect. The question asks for the company’s strongest defense. If the company had owed a duty to the homeowner, it could argue that the cousin’s actions were a proximate cause of the homeowner’s loss, thereby negating the element of causation. But a stronger defense is that the company owed no duty to the homeowner.
C is incorrect. The First Amendment limits tort liability in some contexts but does not prohibit all tort actions just because there is a speech component to the defendant’s actions.
D is incorrect. The question asks for the company’s strongest defense. The question of whether a defendant has acted with reasonable care is a fact-intensive question that a jury resolves, but if a defendant can show that they had no duty, the court need not advance the case to a jury trial to determine whether there was carelessness.
An 11-year-old boy was driving a full-size motorcycle on a private road, where the boy was a trespasser. The motorcycle hit a tire that had fallen off a truck driven by a delivery company employee who was making a delivery to an address on the private road. The boy was injured when his motorcycle went out of control after striking the tire.
In a negligence action brought on behalf of the boy against the delivery company, the company contends that the boy was contributorily negligent and that his damages, if any, should be reduced in conformance with the jurisdiction’s comparative negligence statute. The boy argues that his conduct should be judged according to the standard of a reasonable child of like age, intelligence, and experience under the circumstances.
Is the boy entitled to be judged according to the standard of care that he has argued for?
A: No, because the boy was driving a motorcycle.
B: No, because the boy was trespassing on the private road.
C: Yes, because comparative negligence applies.
D: Yes, because the boy was 11 years old at the time.
A: No, because the boy was driving a motorcycle.
A is correct. Children engaging in a dangerous activity that is characteristically undertaken by adults may be held to an adult standard of care. Because the boy was driving a motorcycle—an adult activity—he will be held to the adult standard of care.
B is incorrect. The boy’s status on the land is not relevant to his negligence. The determination of whether he was a trespasser or guest would be relevant if the landowner’s negligence was at issue.
C is incorrect. Whether comparative negligence applies does not impact the standard of care by which the boy’s conduct will be measured.
D is incorrect. The boy was engaged in an adult activity and was not of “tender years” (the common law rule that a child under 7 years old is incapable of negligence), so he will be held to the adult standard of care.
In an action brought against a defendant by a pedestrian’s legal representative, the only proof that the legal representative offered on liability were that: (1) the pedestrian was killed instantly while walking on the shoulder of the highway; (2) the defendant was driving the car that struck the pedestrian; and (3) there were no living witnesses to the
accident other than the defendant, who denied negligence.
The jurisdiction has adopted a rule of pure comparative negligence.
If, at the end of the plaintiff’s case, the defendant moves for directed verdict, the trial judge should
A: grant the motion, because the legal representative has offered no specific evidence from which reasonable jurors may conclude that the defendant was negligent.
B: grant the motion, because it is just as likely that the pedestrian was negligent as that the defendant was negligent.
C: deny the motion, because the pedestrian was in violation of the state highway code.
D: deny the motion, because, in the circumstances, negligence on the part of the defendant may be inferred.
D: deny the motion, because, in the circumstances, negligence on the part of the defendant may be inferred.
D is correct. The pedestrian’s representative introduced sufficient evidence for a res ipsa loquitur claim, which has the effect of allowing the jury to decide whether to infer the defendant’s negligence. A directed verdict for the defendant would thus be improper because the jury must decide whether it will infer the defendant’s negligence or find that his denial of negligence overcomes the res ipsa showing.
A is incorrect. On the contrary, the representative has offered sufficient evidence to allow a jury to infer that the defendant was negligent, as stated above.
B is incorrect. Even if it is just as likely that the plaintiff was negligent as the defendant, the jury must still determine, based on the evidence, whether to infer that the defendant was probably negligent, or decline to do so and find that the defendant’s denial of negligence should defeat the res ipsa showing.
C is incorrect. Whether the pedestrian violated the highway code would be relevant to determining damages because pure comparative negligence still allows a plaintiff to recover, even if by a reduced amount. None of these determinations should be made pursuant to a directed verdict. However, the motion should still be denied, as stated
above.
A landlord owns and operates a 12-story apartment building containing 72 apartments, 70 of which are rented. A pedestrian has brought an action against the landlord alleging that while he was walking along a public sidewalk adjacent to the landlord’s apartment building a flower pot fell from above and struck him on the shoulder, causing extensive injuries. The action was to recover damages for those injuries.
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?
A: Yes, because the pedestrian was injured by an artificial condition of the premises while using an adjacent public way.
B: Yes, because such an accident does not ordinarily happen in the absence of negligence.
C: No, because the landlord is in no better position than the pedestrian to explain the accident.
D: No, because there is no basis for a reasonable inference that the landlord was negligent.
D: No, because there is no basis for a reasonable inference that the landlord was negligent.
D is correct. Any time negligence must be inferred, there is a res ipsa loquitur issue. For a claim based on res ipsa loquitur to prevail, the pedestrian must show that the landlord had exclusive control of the flowerpot before it fell. In this case, the landlord did not have exclusive control of the flowerpot during the relevant time frame because 70 of the units had tenants, so res ipsa loquitur may not be used to establish negligence. Therefore, the pedestrian will not be able to make his prima facie case, and the landlord’s motion for a directed verdict should be granted.
A is incorrect. The landlord normally would not be responsible for conditions created by tenants in their apartments absent additional facts not present in this question.
B is incorrect. It makes a true statement but does not address the requirement of exclusive control, so the negligence cannot be imputed on the landlord.
C is incorrect. The landlord is not required to explain the accident. It is the plaintiff’s burden to prove her case, including the fact that the landlord was in exclusive control of the instrumentality at the time the negligence occurred. The facts do not support the requirement, so the landlord’s motion for a directed verdict will be granted.
A defendant left her car parked on the side of a hill. Two minutes later, the car rolled down the hill and struck and injured the plaintiff.
In the plaintiff’s negligence action against the defendant, the plaintiff introduced into evidence the facts stated above, which are undisputed. The defendant testified that, when she parked her car, she turned the front wheels into the curb and put on her emergency brakes, which were in good working order. She also introduced evidence that, in the weeks before this incident, juveniles had been tampering with cars in the neighborhood. The jury returned a verdict in favor of the defendant, and the plaintiff properly moved for a judgment notwithstanding the verdict.
The plaintiff’s motion should be
A: granted, because it is more likely than not that the defendant’s negligent conduct was the legal cause of the plaintiff’s injuries.
B: granted, because the evidence does not support the verdict.
C: denied, because, given the defendant’s evidence, the jury was not required to draw an inference of negligence from the circumstances of the accident.
D: denied, because the defendant was in no better position than the plaintiff to explain the accident.
C: denied, because, given the defendant’s evidence, the jury was not required to draw an inference of negligence from the circumstances of the accident.
C is correct. The jury’s verdict was reasonable in light of the defendant’s evidence countering the plaintiff’s res ipsa loquitur showing, which would have allowed an inference of negligence. The defendant offered plenty of evidence to defeat an inference of her negligence, and the motion should be denied.
A is incorrect. This choice addresses legal causation, which is not the dispositive issue here. The correct issue is whether the jury’s finding that the defendant did not breach a duty of care was reasonable in light of the evidence.
B is incorrect. On the contrary, the evidence does support the verdict, and the jury reasonably found in favor of the defendant, as stated above.
D is incorrect. Both the plaintiff and the defendant properly introduced evidence regarding the defendant’s alleged breach of her duty. A res ipsa showing is simply an avenue for the plaintiff to satisfy her burden of proof by way of a permissible inference, which the defendant may defeat with her own evidence. Here, the defendant countered the
plaintiff’s evidence with sufficient facts to prevail.
