LA BAR EXAM CODE TORTS: MULTIPLE CHOICE SHUFFLE Flashcards
Jennifer was injured as she left Red’s Bar when a railing on the outside stairway broke away from the building wall, causing her to fall. She duly commenced an action against Red’s Bar to recover damages for personal injuries suffered in her fall, alleging negligence on the part of the club in maintaining the stairway. Red’s Bar interposed a timely answer to Jennifer’s complaint consisting of a general denial. At the trial of the action, Jennifer presented evidence that (i) Red’s Bar owned and occupied the entire building in which the club was located, and (il) Jennifer had grasped the railing in a normal manner before it broke away from the outside wall. Red’s Bar presented evidence that (i) the railing had been installed according to industry standard, (il) the railing had been inspected at regular intervals prior to the incident and that it had been found free from defect, (i) the stairway was on the outside of the building and was accessible to the general public, and (iv) Red’s Bar was open six nights each week, and approximately 450 people used the stairway on each night that Red’s Bar was open. Would it be appropriate for the court to submit Jennifer’s case to the jury on the theory of res ipsa loquitur?
(a) Yes, because the accident would not have occurred absent Red’s Bar’s negligence.
(b) Yes, because the stairway was within the sole control of Red’s Bar.
(c) No, because there is direct evidence of Red’s Bar’s fault or lack of fault.
(d) No, because Jennifer was the “but for” cause of the railway breaking away from the building.
(c)
Res Ipsa Loquitur in Louisiana requires the trial judge to determine whether reasonable minds could differ concerning all three of the following criteria: 1. The injury is of the kind that does not ordinarily occur in the absence of negligence on someone’s part; 2. The evidence sufficiently eliminates other more probable causes of the injury, such as the conduct of the plaintiff or of a third person; and 3. The alleged negligence of the defendant must be within the scope of the defendant’s duty to the plaintiff. In addition, in Linnear v. Centerpoint Energy Entex/Reliant Energy, 966 So.2d 36 (La. 2007), the Louisiana Supreme Court ruled that “res ipsa loquitur does not apply where direct evidence is used to explain the accident or injury.” (A) and (D) both address causation, but do not address the standard for res ipsa loquitur. (B) raises one of the requirements for res ipsa loquitur at common law, but it is not one of the requirements in Louisiana. (C) is correct because there is evidence of regular inspections and the installation of the railing.
Stevie, 17 years old, and his younger brother Joey, age 15, climbed over the airport fence to watch airplanes land. On the fence were signs that read, “Danger, No Trespassing.” Once over the fence, the boys started running across the runway. Joey tripped and twisted his ankle. Stevie started to head back to help Joey, but then saw a plane heading toward him. The pilot saw Joey but was unable to avoid hitting him. Joey was propelled through the air. Stevie ran to Joey, who was conscious for a few moments before dying in Stevie’s arms. Stevie’s parents have come to you to find out whether they may bring an action for negligent infliction of emotional distress on behalf of their son Stevie against the airport. You tell them:
(a) Yes, because Stevie was an immediate family member.
(b) Yes, because Stevie was within the “zone of danger.”
(c) No, because Stevie assumed the risk by climbing over the fence.
(d) No, because there is no evidence of physical injury suffered from the distress to Stevie.
(a)
Louisiana Civil Code art. 2315.6 allows parties to bring an action such as this when the plaintiff falls within a certain defined category of parties. Immediate family members are in that list. (B) is incorrect because Louisiana does not apply the “zone of danger” test. (C) is incorrect because Louisiana has eliminated the assumption of the risk defense. (D) is incorrect because physical injury is not necessary for a 2315.6 claim.
Defendant’s dog bit Plaintiff while Plaintiff was visiting Defendant’s home. The dog had not threatened or bitten anyone before but had frequently barked at people. The dog was always enclosed in the kitchen or chained in the backvard.
Can Plaintiff prevail in an action against defendant sounding in either negligence or strict liability?
(a) No, because Defendant had no reason to believe the dog would bite Plaintiff.
(b) No, because Louisiana law does not recognize strict liability claims for injuries caused by animals
(c) Possibly, in strict liability, because dog owners are strictly liable for injuries caused by their dogs.
(d) Yes, because keeping the dog chained or indoors demonstrated that Defendant was on notice the dog might bite someone.
(c)
Louisiana Civil Code art. 2321 imposes strict liability upon the owners of dogs. (Note: The standard for all other animals is negligence.) As a result, (B) is an incorrect statement of law. (A) and (D) both address the issue of notice which is a condition for negligence. (C) is correct because the owner will be responsible under a strict liability theory IF the dog posed an unreasonable risk of harm. We really don’t have enough facts to assess whether the dog did represent an unreasonable risk of harm.
A woman took her car in for scheduled maintenance. The mechanic certified that the car was in perfect working order. Later that day, the woman was driving beyond the posted speed limit when her brakes failed, causing her car to strike a pedestrian.
If the pedestrian brings an action against the mechanic who certified the woman’s car as operable, what will be the probable outcome?
(a) Judgment for the mechanic, because the pedestrian was legally a bystander.
(b) Judgment for the mechanic, because the woman’s negligence was an independent, superseding cause.
(c) Judgment for the pedestrian if the mechanic was negligent in inspecting the car.
(d) Judgment for the pedestrian, because the mechanic was strictly liable in tort.
(c)
The pedestrian will prevail if the mechanic was negligent in inspecting and certifying the car. Because the brakes failed soon after the mechanic certified the car, it is highly likely that the mechanic was neg-ligent. There is no strict liability in tort for service transactions, so (D) is wrong. Privity of contract is not required to find liability for negligence, and the pedestrian’s presence on the street makes her a foreseeable plaintiff, so (A) is wrong. (B) is incorrect because this is not a superseding cause situation; the mechanic’s potential negligence would not be cut off by the woman’s foreseeable negligent driving.
A woman was driving carefully but with an expired driver’s license, in violation of a statute requiring license renewal. When she stopped at a stop sign, another driver, who was speeding, crashed into her car. The woman suffered injuries and sued the other driver.
The fact that the woman had an expired driver’s license would not affect her claim against the other driver because:
(a) The other driver’s negligence occurred after the woman’s.
(b) The driver should have known that there are some unlicensed drivers on the road.
(c) The prevention of accidents of this sort is not the reason that drivers are required to renew their driver’s licenses.
(d) There is a greater chance of causing injury when a driver speeds than when a person drives with an expired license.
(c)
A statutory standard of care will replace the general common law duty of care if the statute was designed to prevent the type of harm suffered by the plaintiff. Here, the woman was driving carefully and stopped at a stop sign when she was hit by a car driven negligently by the other driver. The fact that she was driving with an expired license could not prevent the type of harm that she suffered.
Hence, (C) is the best answer because it precludes applicability of the statute altogether. (A) is incorrect because it is irrelevant that the driver’s speeding came after the woman’s failure to renew her license.
(B) is incorrect because it is irrelevant whether the driver knew that there are unlicensed drivers on the road. (D) does not state a legally recognized basis for this result.
While driving his car down the road, the defendant, who had no history of heart problems, experienced a heart attack. The defendant’s car crossed the center line of the highway, in violation of a motor vehicle statute, and headed directly at a car driven by the plaintiff that was exceeding the speed limit. The plaintiff, seeing the defendant’s car heading toward him, swerved to avoid the collision. In so doing, the plaintiff’s car spun out of control and crashed into a ditch, causing the plaintiff injury. The plaintiff brought suit against the defendant for the injuries sustained in the accident.
The plaintiff will:
(a) Prevail, because the defendant’s act was a substantial factor in causing the plaintiff’s car to swerve.
(b) Prevail, because the defendant violated a statute by crossing the center line.
(c) Not prevail, because the defendant had no prior history of heart trouble.
(d) Not recover all of his damages, because the plaintiff was exceeding the speed limit.
(c)
The plaintiff will not prevail because the defendant had no history of heart problems. For the plaintiff to prevail in a claim against the defendant, the plaintiff must show (i) actual cause, (ii) duty/scope of the duty, (iii) breach, and (iv) damages. While drivers owe a duty of care to other drivers on the road, a driver would not be deemed to have breached that duty if he had a surprise heart attack while driving, given that he had no history of heart trouble. (A) is wrong because the fact that the defendant’s car was a cause of the accident does not establish breach of duty. (B) is wrong because violation of an applicable statute, which may sometimes establish breach of duty, will be excused where compliance was impossible. Here, because the defendant suffered a sudden heart attack, he was unable to comply with the motor vehicle statute. (D) is wrong. The facts do not establish whether the accident would have happened regardless of the plaintiff’s contributory negligence, but the trier of fact will not reach that issue because the plaintiff will not be able to establish the prima facie case.
A man was using his newly purchased riding mower to cut the grass in front of his residence when a group of intoxicated college students came rollerblading down the sidewalk. Just as the group passed the man, one of them trying to show off attempted a spin and jump, but instead tumbled onto the lawn directly in the path of the mower. The man attempted to swerve violently to the left to avoid him, but the mower toppled forward, dumping the man and itself over and giving the man a concussion. Unbeknownst to the man, the mower had a design defect that caused it to topple over if the steering wheel were turned too sharply while the machine was in motion. The man brought an appropriate action against the rollerblader for damages in state court.
Will the man recover for his injuries?
(a) No, because the manufacturer of the mower is strictly liable for supplying a dangerously defective product.
(b) No, if the rollerblader can prove to the trier of fact that the man would not have been injured but for the existence of the design defect in the mower.
(c) Yes, because the man was injured as a result of trying to avoid running over the rollerblader.
(d) Yes, because the rollerblader was negligent in trying to do the difficult skating maneuver while intoxicated.
(d)
The man will recover because the rollerblader was negligent. The rollerblader’s conduct created an unreasonable risk of harm to a foreseeable victim, and such harm proximately occurred. (A) is incorrect because the existence of a concurrent tortfeasor who is also liable for a plaintiff’s injuries does not relieve another tortfeasor of liability. (B) is incorrect for a similar reason - the rollerblader’s actions were a concurrent cause of the man’s injuries, so he is liable even if the design defect was also a cause. (C) is wrong because it does not include the element of the roller-blader’s negligence - if the rollerblader had been acting prudently or was operating under some privilege, the fact that the man was injured while trying to avoid hitting him would not create liability. Thus, (D) is the best answer.
A landlord employed his friend as the on-site manager of one of his apartment buildings despite being aware that he had previously been arrested for criminal battery, disorderly conduct, and driving while intoxicated. The manager did a good job dealing with the general maintenance of the apartment building, although the landlord was aware that he continued to drink heavily.
One night the manager, who was extremely intoxicated, attempted to swat an insect on the ceiling of his apartment and could not do so after several attempts. Enraged, he took a pistol from his drawer and shot at the insect. The bullet missed the insect and passed through the ceiling of his apartment into the apartment above, lodging in the leg of a tenant’s social guest.
Does the guest have a viable cause of action against the landlord?
(a) Yes, because the guest was a licensee of the tenant.
(b)
Yes, because the landlord was aware of the manager’s habitual drunkenness and propensity for violence.
(c) No, because the landlord cannot be held liable for the manager’s intentional torts.
(d) No, because shooting an insect was outside the scope of the manager’s employment.
(b)
Because the landlord knew about the manager’s continued heavy drinking and tendencies toward violence, the guest has a cause of action for negligence in his hiring of the manager. An employer owes a duty to all those who may foreseeably come into contact with his employee to exercise due care in the hiring, supervision, and retention of the employee, and the landlord’s retention of the manager under these circumstances may be a breach of that duty. (A) is incorrect because the landlord’s liability here is based on negligent hiring rather than the guest’s status on the property. (C) is also incorrect. An employer can be held directly liable for the intentional tort of an employee if it was foreseeable and the employer was negligent in hiring or retaining the employee. (D) is a true statement that would be relevant for vicarious liability purposes.
However, it does not preclude the landlord from being liable for his own negligence based on the foreseeability of his employee acting violently.
Two neighbors who worked in a large city nearby alternated days driving. Because the commute took them through a crime-ridden area, one commuter was vigilant about keeping her car well-maintained, but the other failed to maintain her car or bring it in for servicing, despite the first commuter’s complaints and dashboard warning lights indicating that it needed servicing.
One evening after dark when the latter was driving them both home from work, her car died just as they were passing through a dangerous neighborhood. The passenger, who was calling for assistance on her cell phone, protested when the driver opened her door to look at the engine. Two assailants appeared and beat and robbed the driver and passenger.
Does the passenger have a valid claim against the driver for her injuries?
(a) Yes, because the driver owed her the same increased level of care that a common carrier owed its passenger.
(b) Yes, because the jury could reasonably conclude that the driver’s negligence increased the risk that the passenger would be the victim of criminal activity.
(c) No, because independent criminal acts of third persons are considered intervening forces that supersede any negligence by the driver.
(d) No, because the driver had no duty to prevent criminal attacks on the passenger.
(b)
The passenger has a valid claim against the driver because the jury could reasonably conclude that she was negligent. The driver owes a duty of ordinary care to his passenger regardless of whether that passenger is paying or not paying. The driver also owed a duty to act as a reasonable person would under emergency circumstances after the car was stopped. Her opening of the car door, as well as her failure to maintain her car, could be found to be negligent under the circumstances. The acts of the criminals were foreseeable, because every day the passenger and the driver commuted through this dangerous neigh-borhood. (A) is incorrect because this is the standard of care owed to a paying passenger. (C) is incorrect because whether criminal acts of third persons are superseding depends on foreseeability. Here, the criminal activity was foreseeable under the circumstances and therefore does not constitute a superseding cause. (D) is incorrect. The driver owed a duty to her passenger to use reasonable care while in this dangerous area.
A patient with a degenerative eye disease visited a well-known eye surgeon, who told him that there were two ways to treat his eye: a more traditional surgical method or a recently developed injection method. Although the injection method had the advantage of a higher success rate, it also carried a 25% risk that vision would be lost completely, whereas such a risk was only 10% by the surgical method. The surgeon described both methods to the patient but did not tell the patient of the risk factors involved. The surgeon asked the patient which method he would like to use, but the patient told the surgeon to choose whichever method he preferred because he was the expert. The surgeon selected the injection method and carefully injected the patient’s eye with the amount of medicine recommended by the medical literature and known to the surgeon from past experience.
Unfortunately for the patient, the attempt to restore his vision to normal failed, and, in fact, he suffered a complete loss of vision as a result of the injection. Afterward, the patient learned of the different risk factors of the two methods. The patient sued the surgeon for his loss of vision. At trial, the above facts were established.
The patient testified that he would have chosen the surgery had he known of the varying risk factors. At the close of the patient’s case, the surgeon moved for a directed verdict.
The court should:
(a) Deny the motion, because the jury could find that a reasonable person would not have consented to the injection procedure if informed of the risks.
(b) Deny the motion, because the patient would not have undergone the injection procedure had he known of the risks.
(c) Grant the motion, because the facts establish that the patient consented to the surgeon’s selection of the procedure to use.
(d) Grant the motion, because there are no facts to indicate that the surgeon performed the procedure negligently.
(a)
The motion should be denied because the jury could find that a reasonable person would not have undergone the procedure had he been informed of the risks. A doctor has a duty to disclose the risks of treatment to enable a patient to make an informed consent. Louisiana has established a Medical Disclosure Panel that will identify the medical treatments and procedures that require disclosure, and the details that need to be disclosed. To establish causation, an undisclosed risk must have been serious enough that a reasonable person in the patient’s position would have withheld consent. In other words, the patient will recover only if he can establish that the failure to disclose was the proximate cause of his injury. This will be a determination of fact for the jury to make. (B) is wrong because it does not address the reason why the case should be sent to the jury. While it establishes the element of actual cause, it does not establish the preliminary element of breach of duty, which the jury must decide based on its factual determination of whether a reasonable person would have consented. The jury must determine whether proximate cause exists. (C) is wrong because the patient’s consent to the procedure protects the doctor from a battery action, but the patient can still recover for negligence if his consent was uninformed. (D) is wrong because the crux of informed consent is not that the procedure was not performed with due care but that the doctor has breached the duty of disclosure.
