MBE practice issues torts

Question 1

If two people are liable in tort to a third person for the same harm and one of them discharges the liability of both, he is entitled to

Answer 1

indemnity from the other if the other would be unjustly enriched at his expense by the discharge of the liability.

Question 2

T or F An owner of a wild animal, even a wild animal kept as a pet, is strictly liable for injuries caused by a dangerous propensity common to the species of animal in question. However, the victim must do nothing voluntarily to cause the animal to injure him.

Answer 2

True

Question 3

Strict products liability requires:

Answer 3

(1) a proper plaintiff who is injured using the defective product, or another foreseeable plaintiff such as a bystander or rescuer;
(2) a proper defendant in the chain of distribution;
(3) a manufacturing defect, a design defect, or a failure to warn;
(4) causation; and
(5) damages.

Question 4

Intrusion of seclusion is a form of invasion of privacy that is present when the defendant unreasonably intrudes into the plaintiff’s seclusion. Damages recoverable for invasion of seclusion include

Answer 4

compensatory damages (e.g. mental distress unaccompanied by physical injury) and,

under appropriate circumstances, punitive damages.

Question 5

The tort of interference with prospective advantage protects the probable “expectancy” interests of _______ contractual relations of a party, such as the prospect of obtaining employment or the opportunity to obtain customers

Answer 5

future

Question 6

T or F As a general rule, a possessor of a wild animal is subject to strict liability to another for harm done by the animal to the other person, his land, or his property, even when the possessor exercises the utmost care to confine the animal.
Even when the animal does not directly cause the injury, when the injury is caused by a person reacting reasonably to the animal’s presence–such as by running away from a potentially dangerous wild animal–the possessor will be strictly liable for this harm.

Answer 6

True

Question 7

Where strict liability is applicable, a defendant generally may not raise contributory negligence as a defense. However, where a plaintiff knew of the danger that justified imposition of strict liability, and his contributory negligence caused exactly that danger to be manifested, such contributory negligence will

Answer 7

bar the plaintiff’s recovery, assuming the jurisdiction applies the traditional contributory negligence doctrine.

Question 8

Generally, providers of services are not held strictly liable for injuries received by their customers. If defective goods are supplied along with services, strict liability is still not applicable so long as the goods supplied were

Answer 8

merely “incidental” to rendition of the services.

Question 9

Under the hindsight-negligence test,

Answer 9

a product is defective if a reasonable person, knowing of the danger it presented, would not have placed it in the stream of commerce.

This test imposes constructive prior knowledge of the defect on the defendant, in effect presuming that the defendant knew of the risk, whether or not he actually did know or reasonably could have known of it.

Question 10

Some jurisdictions look to the nature of the harm threatened by the defect to determine the availability of damages in strict liability, rather than distinguishing between property damage and economic losses. Under this approach, any loss suffered is recoverable if caused by a defect that ?

Answer 10

a defect that threatened personal injury, even if the actual loss did not include personal injury.

However, If the defect was not such that it would threaten personal injury, no property damage or economic losses are recoverable in strict liability.

Question 11

If a P decides to encounter a known danger, what effect may it have in a comparative negligence jurisdiction when the jury is assigning fault?

Answer 11

If P chose to encounter a known danger that isnt necessarily a complete bar to liability, but instead it is a reason to assign some fault to the P when it decides fault in a comparative negligence jurisdiction.

Question 12

T or F, a seller of a defective product remains strictly liable even if it leaves D’s control.

Answer 12

True

Question 13

T or F American manufacturers are required to place warnings in different languages on products sold within the US

Answer 13

False, they are not required to

Question 14

Whenever two or more people are acting in concert, do each of them become subject to liability for the acts of others as well as his own for purposes of tort law?

Answer 14

Yes

Question 15

Even though most courts have held that for abnormally dangerous activities, most courts have held that this immunity, most courts have held that this immunity does not carry over to?

Answer 15

contractors performing the work for the government.

Question 16

T or F, a mental disturbance alone is not sufficient for purposes of IIED.

Answer 16

True

Question 17

Even though an airline is not liable for the tortious acts of its passengers it can still be held liable for the ________ acts of its employees

Answer 17

negligent

Question 18

Can Strict liability for an abnormally dangerous activity be imposed even if the harm triggered the operation of an unexpected force of nature?

Answer 18

yes

Question 19

what jurisdiction does the last clear chance rule apply to

Answer 19

only to a contributory negligence jurisdiction, not a comparative negligence jurisdiction.

Question 20

The general rule is that an employer is not vicariously liable for the acts of an independent contractor. However, what are the two exceptions?

Answer 20

If the Independent contractor is involved in an activity to which the employer has a NON-delegable duty of care such as when work is performed in a public area necessarily involves an inherent danger. Employer should anticipate need for specific precautions.

OR

if the independent contractor is performing an abnormally dangerous activity.

Question 21

Is flying an airplane considered an abnormally dangerous activity? why or why not

Answer 21

No because in modern society flying an airplane is so commonplace not to be regarded as an abnormally dangerous activity.

Question 22

T or F, even if a defective product was installed negligently, the manufacturer of the defective product could still be held strictly liable for the defective product.

Answer 22

True

Question 23

What is a significant difference between criminal assault and tortious assault.

Answer 23

Tortious assault occurs where the D does an act with intent to put the P in apprehension of imminent harmful or offensive contact AND the RESULT is that the P is put in apprehension of imminent harmful or offensive contact whereas in criminal assault, the result does not have to occur. In other words the victim does not actually have to be placed in fear.

Tortious assault: Intent alone is not sufficient without the P being placed in apprehension of imminent harmful or offensive contact.

Question 24

For purposes of D’s extreme and outrageous conduct in IIED, what factor may be considered to contribute to such conduct?

Answer 24

the D knew the P was especially sensitive or vulnerable to injury through mental distress.

Question 25

in last clear chance, the last wrongdoer or at least the decisive wrongdoer is viewed as the?

Answer 25

worst wrongdoer and should pay.

NOTE: remember only applies in contributory negligence jurisdiction

Question 26

T or F res ipsa loquitor creates a rebuttable presumption but does not shift the burden of proof onto the D. The P still has that burden. The judge, however, decides as a matter of law whether the doctrine should apply.

Answer 26

True

Question 27

The tort of appropriation of likeness has not been extended to

Answer 27

animals, corporations, or other non-human plaintiffs.

Question 28

An employer has a conditional privilege against defamation when he or she comments on an employee’s performance at the request of a prospective employer. This privilege exists when a defendant communicates on a matter of interest to the recipient. The privilege, because it is conditional, can be defeated by a showing that

Answer 28

the employer’s opinion was based on actual malice,

that he exceeded the scope of the privilege, or

that he does not believe the communication to be true. If any of these applies, the defendant is liable for defamation.

Question 29

For the purposes of the attractive nuisance doctrine, for the element of the inability of a child to appreciate the danger is a subjective test. In general, for this subjective test, the child, because of his lack of age and maturity, either must

Answer 29

not appreciate the danger involved or

must not discover the condition.

Question 30

T or F News stories on matters of public concern are not absolutely protected, and are subject to exceptions

Answer 30

True