MBE questions

Question 1

Q 27

What are the 4 privacy torts

“CLIP”

Answer 1

1. C: commercial appropriation
2. L: false light
3. I: intrusion into ones seclusion or solitude
4. P: public disclosure of private facts

Question 2

q 27

best defense to privacy torts

Answer 2

consent

Question 3

trespassers

The landowner owes the same duty to anticipated trespassers as he does to discovered trespassers

The majority of states now treat anticipated trespassers on generally the same basis as discovered trespassers in terms of the duty owed them by the landowner

Question 4

vicarious liability

A principal’s vicarious liability for the torts of her independent contractor does not depend on whether the principal negligently selected the contractor.

However, a broad exception WILL impose liability on the principal if the duty is nondelegable (iow: something that cannot be delegated) because of public policy considerations.

Question 5

A company that owned a tract of land believed to be rich in mineral deposits contracted with a licensed excavator for the removal of soil from the property and delivery of the soil to the company’s laboratories. While one of the excavator’s trucks was on the way to the laboratory, the rear gate broke loose, dumping three tons of soil onto the highway. A motorist who was driving a short but safe distance behind the truck was unable to stop in time and collided with the soil, causing her serious injury. The rear gate had been negligently secured by one of the excavator’s employees.

If the motorist sues the company for his injuries and does not prevail, what is the most likely reason?

A The rear gate was secured by the excavator’s employee.

B The excavator had a license to transport soil on the highway.

C The company’s duty in respect to the movement of its soil on the highway was delegable.

D The transportation of soil on the highways was a common practice in the area where the accident occurred.

Answer 5

C The company’s duty in respect to the movement of its soil on the highway was delegable.

The general rule is that a principal will not be liable for tortious acts of its agent if the agent is an independent contractor. However, a broad exception will impose liability on the principal if the duty is nondelegable because of public policy considerations. As long as the company was not subject to a nondelegable duty, it would not be liable for the negligence of the excavator’s employee in the transportation of its soil.

(A) is not as good an answer as (C) because the fact that the accident was caused by the negligence of the independent contractor’s employee does not necessarily excuse the company from liability.

(C) supplies the additional factor that enables the company to avoid liability.

(B) is incorrect because the possession of a license by the excavator would not excuse the company from liability.

(D) is incorrect because the fact that the transportation of soil was common to the area is relevant only for a strict liability action for abnormally dangerous activities, and the transport of soil by truck is not such an activity.

Question 6

contributory negligence

As a motorist was driving on a road, a driver on an intersecting road failed to see a stop sign at the intersection and crossed into the motorist’s path. The motorist would have had time to avoid the driver’s vehicle except that he was making a call on his cell phone. He slammed on the brakes as soon as he saw the driver, so the impact occurred at a low speed. The driver’s car sustained only minor damage, but the motorist’s car sustained such heavy damage that it was a total loss.

If the motorist sues the driver in a jurisdiction following traditional contributory negligence and assumption of the risk rules, what is the driver’s best defense?

A The driver’s running the stop sign was unintentional.

B The motorist was negligent in purchasing a car that would suffer heavy damage when struck at low speed.

C The motorist was contributorily negligent.

D The motorist had the last clear chance to avoid the accident.

Answer 6

C The motorist was contributorily negligent.

Because the motorist was not driving attentively, the motorist was contributorily negligent. Under traditional rules, plaintiff’s contributory negligence is a complete defense to negligence; i.e., it completely bars plaintiff’s right to recover.

Here the motorist is contributorily negligent because he was not paying attention to his driving. If he had been paying attention, the facts indicate that he would have had adequate time to either stop his car or swerve to avoid the driver’s vehicle.

Question 7

breach/causation

A plaintiff purchased a new car manufactured by an automotive corporation. While the plaintiff was driving home from the local dealership, she stopped at a stop sign. She was struck from behind by a jeep driven by a driver who had negligently failed to stop. On impact, the plaintiff was injured when she hit her head on the front windshield. The car’s airbag should have prevented this, but the airbag was defective and failed to inflate. Assume that a state law requires all automobiles to be equipped with airbags that will prevent drivers from hitting their heads on windshields on impact.

If the plaintiff asserts a claim against the driver, will the plaintiff prevail?

A Yes, unless the corporation was negligent in the manufacture of the car that the plaintiff was driving.

B Yes, because the driver’s negligent driving was a cause in fact of the collision.

C No, because the airbag in the plaintiff’s car violated a state law.

D No, because the plaintiff would not have been injured but for the failure of the airbag.

Answer 7

B Yes, because the driver’s negligent driving was a cause in fact of the collision.

The plaintiff will prevail because the driver’s negligence was a cause in fact of the plaintiff’s injuries. But for the driver’s negligent act of colliding with the plaintiff’s car, the plaintiff would not have been injured, regardless of the fact that the airbag was defective. Note that there can be more than one cause in fact of an injury. (A) is incorrect because the corporation’s negligence would not qualify as an intervening act, because it occurred earlier in time than the driver’s. An intervening force comes into motion after the time of the defendant’s negligent act and combines with it to cause injury to the plaintiff. (C) is incorrect because the fact that the defective airbag violated a statute may establish a breach of duty by the corporation, but it does not relieve the driver from liability for negligence. (D) is incorrect because the “but for” test is used to establish liability in concurrent cause cases, not limit another’s liability. As stated above, there may be more than one cause in fact of an injury.

Question 8

defamation

During an action for breach of contract, the defendant testified in court that she withheld shipment of the goods because the plaintiff defrauded her. The plaintiff now wishes to sue the defendant for defamation because he can establish that this testimony was false.

May the plaintiff do so?

A Yes, if he can show that the defendant acted out of malice towards the plaintiff.

B Yes, if he can show that the defendant did not believe the allegation to be true.

C No, because the accusation is absolutely privileged.

D No, if the defendant prevailed in the original action, because of the doctrine of collateral estoppel.

Answer 8

C No, because the accusation is absolutely privileged.

The plaintiff cannot sue the defendant in a defamation action because the accusation is absolutely privileged. All statements made by the judge, jurors, counsel, witnesses, or parties in judicial proceedings are absolutely privileged. Absolute privileges are not affected by a showing of malice, abuse, or excessive publication, unlike qualified privileges. Because the defendant was testifying in court regarding the plaintiff’s conduct, the statement is absolutely privileged regardless of its truth or falsity. It also does not matter whether the defendant was lying or testifying out of malice towards the plaintiff

Question 9

vicarious liablity

Under a Dramshop Act, a tavernkeeper _________ liable to third parties who are injured by an intoxicated vendee.

Answer 9

May be vicariously

Question 10

interference with business relations

To establish a prima facie case for interference with business relations, the following elements must be proved:

Answer 10

1. Existence of a valid contractual relationship btwn P and a 3rd party or a valid business expectancy of plaintiff
2. D’s knowledge of the relationship or expectancy
3. Intentional interference by defendant that induces a breach or termination of the relationship or expectancy; and
4. Damage to plaintiff.

Question 11

A landowner who had owned and operated a small airport notified the electric company that he was discontinuing operations and that it should shut down the electrical current that had supplied his communications equipment. The equipment had been surrounded by a fence and signs warning of high voltage. Because the electric company had maintained a transformer next to the landowner’s communications equipment that contained many valuable and reusable parts, it decided to leave the power on to prevent theft until it could schedule removal of the transformer. Three days later, a trespasser who knew that the airport had closed went onto the property looking for something to steal. He could find nothing of value except the transformer. He noticed the signs warning of the high voltage but believed that the power had since been turned off. He scaled the fence with the intent to dismantle the transformer. As soon as he touched the transformer, he was seriously injured by the electric current.

If the trespasser asserts a claim against the electric company to recover damages for his injuries, will he prevail?

A Yes, because the electric company was not the owner of the land on which the trespasser trespassed.

B Yes, because the electric company used unreasonable force to protect its property.

C No, because the trespasser was a trespasser on the landowner’s land.

D No, because the trespasser intended to steal the electric company’s transformer.

Answer 11

The trespasser was threatening only the property interest of the electric company, so the use of deadly force was not be privileged.

By leaving the power (after landowner had discontinued operations on the land) on to prevent theft, the electric company was using indirect deadly force to defend its property where such force could not lawfully be directly used. Hence, it will be liable to the trespasser for his injuries.

Question 12

A motorist was driving to a luncheon in a car that he knew did not have operating headlights. On the way there he was rear-ended by another driver who had been driving 20 m.p.h. over the speed limit posted on that stretch of road. He suffered personal injuries and his car was extensively damaged. The jurisdiction makes it a misdemeanor to drive a vehicle that does not have operating headlights.

If the motorist brings an action against the other driver and the above facts are established, will he prevail?

A Yes, because the other driver violated the speeding statute, but the motorist’s damages will be reduced because of his violation of the headlight statute.

B Yes, because the other driver violated the speeding statute, and the motorist’s damages will not be reduced despite his violation of the headlight statute.

C No, because the motorist’s violation of the headlight statute constitutes negligence per se.

D No, because the motorist has not established that driving 20 m.p.h. over the speed limit created an unreasonable risk of injury to others.

Answer 12

B Yes, because the other driver violated the speeding statute, and the motorist’s damages will not be reduced despite his violation of the headlight statute.

No excuse for violating the speeding statute is present in the facts; thus, violation of the statute establishes negligence per se.

(A) is incorrect because, while an applicable statute may establish plaintiff’s contributory negligence, the headlight statute does not apply here. Even though the statute was intended to protect drivers against cars being driven without headlights, it would be very difficult to show that it was designed to prevent rear-end collisions during the day, or that violation of the statute was a cause of the motorist’s injury.

Question 13

“Actual malice” in the constitutional sense is different from malice in the sense of ill will.

Actual malice is the knowledge that the statement was false or reckless disregard as to its truth or falsity.

think of the MCQ about the chief justice and associate justice

Question 14

After leaving ceremonies at which the chief justice of a state supreme court had been named distinguished jurist of the year, an associate justice was interviewed by the press. The associate justice told a reporter that the chief justice “is a senile imbecile who lets his clerks write all his opinions. He hasn’t had a lucid thought in decades, and he became a judge by being on the payroll of the mob.” Enraged, the chief justice brought an action for defamation against the associate justice.

Which of the following, if established by the chief justice in his defamation action, would permit recovery against the associate justice?

A The associate justice negligently made the statements, which were false, and caused the chief justice actual injury.

B The associate justice made the statements knowing they were false.

C The associate justice made the statements because he hated the chief justice and wished to destroy his reputation in the legal community.

D The associate justice made the statements in order to ensure that the chief justice’s political career was nipped in the bud.

Answer 14

B The associate justice made the statements knowing they were false.

(C) is incorrect because, even if the associate justice hated the chief justice and wanted to harm him, he would not be liable for defamation if the statements were true, since a public official such as the chief justice must prove that the statement was false. Thus, it would not be enough merely to show that the associate justice had bad motives.

(D) is essentially the same answer as (C)

Question 15

A farmer kept a pet bear at his farm. The bear was very old and had no teeth, no claws, and very little energy, but people liked to see the bear when they visited the farmer because no one else in the region had a pet bear. When the farmer first obtained the bear many years ago, he had a large steel cage constructed to house the animal. The cage had an electronic lock that only opened with a security code. Even though the bear was now old and harmless, it was always kept locked in the cage. One night during a severe storm while the farmer was out of town, a bolt of lightning hit the cage and the door opened. The bear left the cage and wandered off. The next morning, a 10-year-old girl was waiting on a rural road for her school bus. The bear emerged from a wooded area about 100 feet from where the girl was standing and headed towards her. She screamed and turned to run, tripping on the road and breaking her arm when she fell.

If the girl sues the farmer on a theory of strict liability for her bodily harm, will she prevail?

A No, because the bear was in fact a nondangerous animal.

B No, because the damage she suffered was not the type of damage that a bear would normally cause.

C Yes, because the bear is a wild animal.

D Yes, because pet bears were not commonly kept in the community.

Answer 15

C Yes, because the bear is a wild animal.

An owner of a wild (i.e., nondomestic) animal, even one kept as a pet, will be strictly liable for the damage caused by the animal. A bear, even a very tame one, will be classified as a wild animal.

(B) is wrong because the injury the girl suffered was within the “normal dangerous propensity” of the animal. Strict liability for wild animals includes liability for the harm that results when a person is attempting to flee from what is perceived to be a dangerous animal

Question 16

A backpacker came upon another hiker who had been bitten by a rattlesnake. The backpacker carried the bitten hiker back to his vehicle and drove him toward the nearest hospital. On the way there, while exceeding the posted speed limit, the backpacker lost control of his vehicle and crashed into a tree by the side of the road. He was uninjured, but the snakebitten hiker’s leg was broken. An ambulance soon arrived and took the hiker to the hospital. The emergency room physician committed malpractice that resulted in the loss of the hiker’s leg. The hiker is now suing the backpacker.

Which of the following is the most likely reason why the backpacker will be held liable for the hiker’s injuries?

A Having undertaken to rescue the hiker, the backpacker is strictly liable for injuries resulting from the rescue.

B The emergency room physician’s malpractice is a foreseeable intervening cause that does not relieve the backpacker of liability.

C The backpacker did not conduct himself as a reasonably prudent person in carrying out the rescue of the hiker.

D The backpacker committed negligence per se when he exceeded the posted speed limit.

Answer 16

C The backpacker did not conduct himself as a reasonably prudent person in carrying out the rescue of the hiker.

(A) is an incorrect statement of the law - a rescuer is not strictly liable for a victim’s injuries, but rather is liable only for negligent acts. (Here, the backpacker was negligent in his driving.)

(B) is an accurate statement of the law but does not take into account that the backpacker must be negligent to be liable at all.

Question 17

compare with card 17, Q about dentist

A patient was scheduled to undergo nonemergency surgery for the removal of her appendix by her family doctor. The day of the surgery, the doctor was called out of town because of a family illness. Even though the surgery could be postponed, the doctor asked the surgeon on call, who was an expert in appendectomies, to take his place. The patient was not informed of the switch in doctors.

If the patient sues the surgeon on a battery theory, who will prevail?

A The patient, as long as she establishes damages at trial.

B The patient, regardless of whether she establishes damages at trial.

C The surgeon, because he was at least as qualified as the doctor.

D The surgeon, because the doctor requested that the surgeon take his place.

Answer 17

B The patient, regardless of whether she establishes damages at trial.

The patient can establish a prima facie case for battery regardless of whether she establishes damages at trial.

Here, the surgeon’s performing the operation would be offensive contact because it was unconsented to: The patient had selected her doctor to perform the operation and did not consent to the surgeon’s participating in the procedure.

(A) is incorrect because damages is not an element of the prima facie case for battery. Even if the patient cannot establish damages, she can obtain a judgment in her favor and at least nominal damages.

This question differs from card 17 because here there was a lack of consent to the different physician performing the procedure whereas in the other question on card 17, there was consent of to the surgery and the use of local anesthetic

Question 18

compare with card 16, Q about app’y surgery

A dentist filling a child’s cavities used a newly developed local anesthetic that was more effective than Novocain. However, it carried a 1% risk of causing a serious seizure when administered to children, which the dentist did not mention to the child’s mother or note in the consent forms, which stated only that a local anesthetic would be used. The child’s dental work was completed without any problem, but the mother looked up the anesthetic on the Internet and learned about the risk. She complained to the dentist that she would not have consented to use of the anesthetic had she known of the risk, but the dentist argued that using the new anesthetic was justified in the child’s case because otherwise he would not have been willing to sit still for the dental work.

Does the mother have a cause of action on behalf of the child against the dentist?

A Yes, because a reasonable person would have considered information about the risk important.

B Yes, because the mother would not have consented to the use of the anesthetic if she had known of the risk of seizure.

C No, because the dentist used his best judgment in deciding that the benefits of using the anesthetic outweighed the risk.

D No, because the child suffered no harm from use of the anesthetic.

Answer 18

D No, because the child suffered no harm from use of the anesthetic.

One of the duties that doctors, dentists, and other health professionals owe their patients is the duty to provide a patient with enough information about the risks of a proposed course of treatment or surgical procedure to enable the patient to make an “informed consent” to the treatment.

If an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent to the treatment, the health care professional has breached this duty. However, breach of duty is only one element of a cause of action for negligence. The plaintiff must also establish actual and proximate cause and some damage to plaintiff’s person or property. Damage means actual harm or injury

Here, the mother consented to the surgery and use of a local anesthetic, so battery is not applicable. Further, the child’s dental work was completed without any problem and no other injury is apparent from the facts; the mother’s possible distress at not being informed of the risk is not, standing alone, a compensable injury.

This Q is different from card 16 because here there was consent to the dentistry vs the app’y surgery where there was no consent for a different doctor. While both questions are the same in the fact that neither patient suffered actual harm, the difference is the lack of consent which creates a claim for battery. There was an offensive contact which was NOT consented to.

Question 19

A company manufactured parachutes that it sold exclusively to the United States Army. To meet the standards required by the Army, each parachute was subjected to a 15-point inspection by the company before it could be approved for sale. When a parachute did not pass inspection, it was stored in another section of the company’s plant. At a later time, a further inspection of the defective parachute would be made to determine whether the defects could be corrected or whether the parachute should be destroyed.

One night, the plant was burglarized through no fault of the company and a large number of parachutes, including the defective ones, were stolen. The defective parachutes eventually were sold on the black market to a member of a skydiving club who made purchases for the club. One week later, the member was using one of the parachutes when it failed to open, causing his death.

If the member’s estate brings a wrongful death action against the company on a theory of strict liability, which of the following is the company’s best defense?

A The company acted reasonably in storing the defective parachutes.

B The company did not sell or place into the stream of commerce the defective parachute.

C The member did not purchase the parachute from the company.

D The member was negligent when he purchased the parachute on the black market.

Answer 19

B The company did not sell or place into the stream of commerce the defective parachute.

To establish liability in a strict liability action based on a defective product, the plaintiff must prove that the defendant is a commercial supplier of the product in question and that the product is expected to be supplied to the consumer without substantial change in the condition in which it is supplied.

Here, the company produced the defective parachutes but did not place them into the stream of commerce and did not intend to do so. Thus, it is not liable to the member with regard to the defective parachutes.

(D) is incorrect. There is no indication that the member knew that the parachutes might be defective just because they were sold on the black market. Even in jurisdictions that apply their comparative negligence rules to strict products liability actions, the member’s conduct, if considered negligent, would at most reduce the estate’s recovery by a small amount.

(B) is a better choice because it totally negates the company’s liability.

Question 20

An engineer licensed by the state was the principal design engineer for a wastewater treatment plant’s aeration system. Detailed recommendations for designing aeration systems for this type of plant had been published by a panel of engineers after lengthy study. The engineer fully complied with the recommendations in his design. Nevertheless, the treatment plant’s aeration system suffered a major failure, causing the release of bacteria-laden water into a river that damaged a fish hatchery run by the plaintiff.

If the plaintiff sues the engineer and prevails, what is the likely explanation?

A The engineer knew of a better design that he could have used that would have prevented the failure.

B The engineer had neglected to renew his license in a timely manner, so he did some of the design work while his license was expired, in violation of a state statute.

C The engineer was involved in an abnormally dangerous activity.

D The engineer was a member of the panel that developed the design standards.

Answer 20

A The engineer knew of a better design that he could have used that would have prevented the failure.

(C) is incorrect. An activity is characterized as abnormally dangerous only if it involves a substantial risk of serious harm to persons or property, even when reasonable care is exercised by all actors, and the activity is not a matter of common usage in the community. Designing an aeration system for a wastewater treatment plant would not constitute an abnormally dangerous activity under this test

Question 21

A resort maintained an outside bar adjacent to its pool. When the bar was closed, it was secured by a metal gate that reached up towards the roof of the bar, but which left about a three-foot gap between the top of the gate and the roof. The resort had installed motion detectors inside the bar linked to an alarm system because of several previous thefts of liquor by persons climbing over the gate. Late one night, an intoxicated guest of the resort who wanted to keep partying after hours began to climb over the gate to get into the bar through the gap at the top, intending to take some bottles of wine.

The brackets attaching the gate to the walls, which had been gradually deteriorating and pulling away from the walls for some time, suddenly gave way as he reached the top. The gate collapsed, causing him to fall back onto the concrete patio. He sustained a severe concussion and other serious injuries. The resort is located in a jurisdiction that applies the traditional liability rules for landowners and possessors of land.

If the guest sues the resort for his injuries, is he likely to prevail?

A No, because the guest did not have invitee status when he was climbing over the gate.

B No, because the guest intended to steal alcohol belonging to the resort.

C Yes, because the resort operators were aware that persons had climbed over the gate in the past.

D Yes, because the brackets attaching the gate to the walls were in a weakened condition that could have been detected by a routine inspection.

Answer 21

A No, because the guest did not have invitee status when he was climbing over the gate.

In jurisdictions following the traditional landowner liability rules, the duty owed by an owner or occupier of land to those on the land depends on whether the person on the land is characterized as a trespasser, licensee, or invitee.

An invitee is one who enters onto the premises in response to an express or implied invitation from the landowner. A person loses his status as an invitee if he exceeds the scope of the invitation.

Here, the guest was an invitee while on the grounds of the resort, but he lost invitee status when he began climbing over the gate to get into the closed bar. He became a trespasser because he clearly did not have express or implied permission to climb into the bar, and a landowner owes no duty to an undiscovered trespasser.

Here, while the guest can argue that he was an anticipated trespasser because others had climbed over the gate in the past, there is no evidence that the resort knew of the dangerous condition of the brackets, so the resort has breached no duty to the guest under these facts.

(C) is incorrect because, as discussed above, the resort’s awareness of previous thefts from the bar may make the guest an anticipated trespasser rather than an undiscovered trespasser, but it does not make the resort liable to the guest under these circumstances.

(D) is incorrect because the failure to inspect or discover the dangerous condition does not make the resort liable here. The guest could argue that the resort operators should have known of the dangerous condition of the gate, but that would not establish liability here. The landowner must know of a highly dangerous artificial condition to be liable to trespassers, and nothing indicates that any resort employee knew that the gate would collapse.

Question 22

In jurisdictions following the traditional landowner liability rules, the duty owed by an owner or occupier of land to those on the land depends on whether the person on the land is characterized as a trespasser, licensee, or invitee.

Question 23

A trespasser is one who comes onto the land without permission or privilege.

A licensee is one who enters on the land with the landowner’s permission, express or implied, for his own purpose or business rather than the landowner’s benefit.

An invitee is one who enters onto the premises in response to an express or implied invitation from the landowner.

Question 24

A strawberry farmer held his farm open to the public to pick strawberries for a fee. The farmer knew that many patrons would eat as many strawberries out in the field as they would bring home with them, so he advertised that no chemical pesticides or fertilizers were used on his strawberries. The owner of the land adjacent to the farm began operating a soap factory, a use allowed by the zoning code. Flakes of an unavoidable chemical byproduct of the soap-making process would drift over onto the farm whenever the wind was blowing in that direction and settle onto the strawberry plants. The flakes caused no harm to the plants themselves but detracted from the appearance of the strawberries as well as their taste if eaten right off the plant; consequently, the farmer’s business declined. On several occasions, the farmer complained to the factory owner, but the owner did nothing, in part because a visit to the county recorder of deeds office had convinced him that he was the true owner of a large part of the strawberry farm, although in fact it was just a recording error.

Can the farmer recover damages for the harm caused to his business from the factory owner?

A Yes, because the discharge from the owner’s factory entered the farmer’s land.

B Yes, because the factory owner intended to conduct the activities that caused the particles to fall on the farmer’s land.

C No, because the factory owner had no intent to cause harm to the farmer’s property.

D No, because the factory owner’s belief that he owned the property, although erroneous, was reasonable.

Answer 24

B Yes, because the factory owner intended to conduct the activities that caused the particles to fall on the farmer’s land.

Here, note that the farmer had complained to the factory owner. The factory owner continued his activity knowing with substantial certainty that the flakes would continue to fall on the farm whenever the wind was right. Thus, it can be found that the factory owner intended to bring about the trespass.

Question 25

A plaintiff was injured when the steering mechanism of a snowmobile failed. He brought a negligence action against the snowmobile manufacturer. The steering mechanism was designed and manufactured by a component manufacturer; the snowmobile manufacturer merely assembled the snowmobile, branded it, and distributed it directly to retailers.

To prevail against the snowmobile manufacturer, what will the plaintiff need to prove?

A That the steering mechanism was in a defective condition unreasonably dangerous to users.

B That the steering mechanism was in a defective condition unreasonably dangerous to users, and the plaintiff was the purchaser of the snowmobile, a member of the purchaser’s family, or a guest of the purchaser.

C That the steering mechanism was in a defective condition unreasonably dangerous to users, and the defect could have been discovered and corrected if the component manufacturer had exercised reasonable care in its quality control process.

D That the steering mechanism was in a defective condition unreasonably dangerous to users, and the snowmobile manufacturer failed to inspect the mechanism before assembly of the snowmobile.

Answer 25

C That the steering mechanism was in a defective condition unreasonably dangerous to users, and the defect could have been discovered and corrected if the component manufacturer had exercised reasonable care in its quality control process.

PFC of negligence in a products liability case, the plaintiff must show: (i) the existence of a legal duty owed by the defendant to that particular plaintiff; (ii) breach of that duty; (iii) actual and proximate cause; and (iv) damages.

The duty of care arises when the defendant acts as a commercial supplier of products. A commercial supplier who assembles a product from components manufactured by others is subject to the same liability as the manufacturer of the defective component. To prove breach of duty, the plaintiff must show (i) negligent conduct by the defendant that leads to (ii) the supplying of a defective product.

Here, because the snowmobile manufacturer assembled** the snowmobile from component parts, including the steering mechanism manufactured by the component manufacturer, and **sold the snowmobile as its own product, it will be liable for the negligence of the component manufacturer.

(A) would be correct if the plaintiff were suing the snowmobile manufacturer on a strict liability theory, BUT the facts of the question indicate that the plaintiff is suing in negligence. In products liability actions, always make sure you are applying the appropriate theory of liability.

(D) is incorrect even though the snowmobile manufacturer may have had a duty to inspect the steering mechanism before assembly. Nothing in (D) indicates that either the component manufacturer or the snowmobile manufacturer was negligent.

The existence of a defect does NOT by itself establish negligence, and the snowmobile manufacturer’s failure to inspect the mechanism before assembly is not actionable negligence if the defect would not** have been discovered even with a reasonably careful inspection. It becomes actionable **negligence, however, due to the existence of the defect, the failure of the component manufacture to exercise reasonable care, the snowmobile’s failure to inspect, and most importantly, the fact that BOTH snowmobile AND component manufacturer are BOTH in the chain of commerce thus, making the snowmobile manufacturer liable for the component manufacturer’s negligence.

IOW: cannot claim negligence if even reasonable inspection would NOT have revealed the defect…because inspection would probably negate the claim of negligence (because someone took the time to reasonably inspect so, they would not be negligent). Have to show that defect was discoverable. Therefore, (C) is a better choice because it supplies the negligence element, which (D) does not.

Question 26

To establish a prima facie case of negligence in a products liability case, the plaintiff must show: (i) the existence of a legal duty owed by the defendant to that particular plaintiff; (ii) breach of that duty; (iii) actual and proximate cause; and (iv) damages.

Question 27

A testing lab purchased a wind tunnel as a complete unit from a machinery company. The machinery company used an electronics company for the design and installation of the unit’s electronic control systems, which regulated air speed and triggered the emergency shut-off devices.

A technician was installing a scale model of a prototype aircraft that was to be tested in the wind tunnel when the electronic control system of the tunnel malfunctioned, causing the huge fans that created the air flow to start up. The powerful air flow pinned the technician against the grating covering the intake ducts, asphyxiating him before he was discovered and the fans could be shut off.

In an action by the technician’s survivors against the electronics company, proof that the machinery company failed to inspect the wind tunnel has which of the following legal effects?

A If the electronics company is held liable to the plaintiffs, it may bring an action for indemnity against the machinery company based on the failure to inspect.

B The failure of the machinery company to inspect the tunnel is a superseding cause that relieves the electronics company of liability to the plaintiffs.

C The failure of the machinery company to inspect the tunnel is attributable to the electronics company under the doctrine of respondeat superior.

D The failure of the machinery company to inspect the tunnel has no legal effect on the electronics company’s liability.

Answer 27

D The failure of the machinery company to inspect the tunnel has no legal effect on the electronics company’s liability.

Even if an inspection would have disclosed the defect, the machinery company’s failure to do so would have no legal effect on the electronics company’s liability.

Regardless of whether the technician’s survivors are using a negligence theory or a strict liability theory (both theories must be considered because the call of the question does not supply the theory of liability), an intermediary’s negligent failure to discover a defect is NOT a superseding cause, and the defendant who supplied the defective product will be held liable along with the intermediary. Thus, even if the machinery company’s failure to inspect were negligent, it would not relieve the electronics company of liability.

(A) is incorrect because it is a reversal of one of the situations in which indemnity is available. Where strict liability rules apply, each supplier of a defective product is liable to an injured person, but each supplier has a right of indemnification against all previous suppliers of the defective product in the distribution chain.

Here, both the machinery company and the electronics company would be liable in a strict liability action as suppliers if they supplied a defective product. However, the electronics company, as the previous supplier in the chain, would be liable to the machinery company for indemnity, rather than the machinery company being liable to the electronics company for indemnity.

Question 28

To be superseding, an intervening force must have been unforeseeable.

Question 29

The common law rule is that a parent is not vicariously liable for the tortious conduct of her child.

However, the parent may be held liable for her** **own** **negligence in allowing the child to do something that injures another’s person or property.

Question 30

A truck transporting explosives went out of control when a tire suddenly blew. The truck struck a motorist’s car as it was waiting at a stoplight, seriously injuring the motorist. The area around the accident was immediately evacuated, but fortunately the explosives were not detonated.

In an action alleging strict liability against the freight carrier that owned the truck, the motorist established the above facts and presented evidence of her injuries. The carrier presented evidence that the blowout was caused by a hidden defect in the tire that could not be detected by routine inspection. The tires were manufactured by the carrier’s regular supplier and had not previously caused any problems. The carrier also presented evidence that the local authorities were supposed to restrict access to roads along the truck’s route but had failed to do so.

In this action, is the motorist likely to prevail?

A Yes, because the tire was in a defective condition that made it unreasonably dangerous.

B Yes, because the freight carrier was engaged in an abnormally dangerous activity.

C No, because the injury did not arise from the dangerous aspect of the activity.

D No, because the negligence of the local authorities in failing to restrict access to roads along the truck’s route was a superseding cause of the motorist’s injuries.

Answer 30

C No, because the injury did not arise from the dangerous aspect of the activity.

The motorist is not likely to prevail in a strict liability action because her injury did not arise from the abnormally dangerous aspect of the freight carrier’s activity.

Strict liability does not apply to harms that were not caused by the normally dangerous aspect or propensity of the activity. The scope of liability extends only to the dangers that would be anticipated from the activity involved.

Here, the carrier’s activity is subject to strict liability because of the danger of explosion from the truck’s cargo, but not from a crash** by itself. Because the motorist’s injuries were not caused by an explosion from the **explosives in the truck, strict liability does not apply.

The carrier would be liable for the injuries from the crash only if the motorist established negligence…but here the question asks about strict liability.

(D) is incorrect. It is questionable whether the negligence by the local authorities could be considered an intervening force, which must come into play after the culpable conduct by the defendant. Even if it were an intervening force, it likely would not be considered so extraordinary as to be an unforeseeable intervening force. Hence, it would not constitute a superseding force that would break the causal connection between the motorist’s injury and the carrier’s actions.

Question 31

A valet parking attendant at a restaurant negligently left the keys of a car in the ignition when she parked it on a side street some distance from the restaurant, which was located in a high crime area. While dining, the car’s owner received a text message from the security company that operated his car’s anti-theft system that his key was in his ignition for over 30 minutes without the car running. The owner started to get up to check with the valet service but then his meal arrived and he promptly forgot about the car. About 20 minutes later, a teen saw the key in the ignition of the unlocked car and drove off with the car. By the time it was discovered that the car had been stolen, the car had been wrecked and the teen had fled. The owner sued the parking company that employed the attendant for the loss of his car.

Is the owner likely to recover?

A Yes, because the owner’s negligent failure to respond to the security company’s alert contributed the least to his loss.

B Yes, because the negligence of the parking attendant created the opportunity for the theft.

C No, because the teen committed a criminal act that was a superseding cause of the loss.

D No, because the owner’s negligent failure to respond to the security company’s alert was a superseding cause of his loss.

Answer 31

B Yes, because the negligence of the parking attendant created the opportunity for the theft.

The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts.

In indirect cause cases, an independent intervening force may be foreseeable where the defendant’s negligence increased the risk that these forces would cause harm to the plaintiff.

Even a criminal act by a third party will not cut off the defendant’s liability if the defendant’s negligence created a foreseeable risk that a third person would commit the crime.

Here, the parking company’s employee negligently left the key in the ignition when she parked the owner’s car on a side street away from the restaurant, creating a foreseeable risk that the car would be stolen. But for that negligence, the car would not have been stolen.

(A) is incorrect because, under pure comparative negligence rules, the car owner could recover some of his damages even if his negligence was deemed to be greater than the defendant’s.

(D) is incorrect because superseding cause analysis does not apply to the plaintiff’s negligence. Rather, it is an issue of contributory negligence.

Question 32

Force may not be used by __________.

Answer 32

a landowner to regain real property after being tortiously dispossessed

Question 33

A directed verdict is appropriate when evidence shows lack of proximate cause or actual cause or lack of both

Question 34

A landowner DOES owe an invitee a duty to make inspections. The landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This general duty includes the duties owed to licensees, plus a duty to make reasonable inspections to discover dangerous conditions and make them safe.

However, the duty to “make safe” does not require that the landowner must repair dangerous conditions to satisfy his duty to invitees. Depending on the nature of the danger, it is usually sufficient if a reasonable warning has been given.

Question 35

A man purchased a large flat screen television and decided to mount it on the ceiling over his bed. The manual that came with the product included detailed instructions and illustrations on how to mount the television on different types of walls, along with all the required hardware, but contained neither instructions nor warnings regarding mounting on the ceiling. The man carefully followed the wall-mounting instructions and was satisfied that it would hold. In fact, however, the mounting was not appropriate for ceilings. The next night, a woman who was the man’s overnight guest was seriously injured when the television came loose and fell on the bed.

Will the woman prevail in a suit against the company that manufactured the television?

A Yes, because the manufacturer had a duty to include warnings for all potential placements of its product.

B Yes, if the manufacturer knew that its television was sometimes mounted on ceilings rather than walls.

C No, if the manufacturer’s manual had all of the customary warnings for this type of product.

D No, because the man was negligent in mounting the television on the ceiling.

Answer 35

B Yes, if the manufacturer knew that its television was sometimes mounted on ceilings rather than walls.

Courts in a strict liability case require a commercial supplier to anticipate reasonably foreseeable uses even if they are misuses of the product. If the manufacturer knew that members of the public were sometimes mounting the television on the ceiling, marketing the product without including either warnings against the practice or appropriate hardware and instructions on how to safely do so made the product so defective as to be unreasonably dangerous if it were improperly mounted. Under a strict liability theory, the manufacturer is liable for supplying a defective product. As a guest of a purchaser of the product, the woman is a foreseeable plaintiff; thus, the manufacturer may be liable to her. The defective product actually and proximately caused the woman to suffer serious injuries. Therefore, the manufacturer is liable to the woman in a strict products liability action.

(A) is incorrect because the facts do not establish that the manufacturer was under a duty to include the warnings in its manual. Such a duty would exist if the manufacturer knew (as (B) states) or should have known that the television was being mounted on ceilings.

Question 36

A tenant remains liable to guests for dangerous conditions on the premises as the occupier of the land, regardless of the landlord’s obligation to inspect and repair.

Question 37

In support of a charity fundraising luncheon, three volunteers independently brought to the event a casserole dish made with ground beef. Each of them had prepared her dish in her own kitchen. Another volunteer combined the dishes onto one large serving platter, from which guests at the luncheon served themselves. One of the guests became seriously ill with what the health department later determined to be a bacterial infection from undercooked beef that was in the combined casserole. The guest brought an action against the three volunteers who made the casserole dishes, alleging negligent preparation of the ground beef.

Assuming that the guest can establish only the above facts and his injuries, who is likely to prevail in the action?

A The guest, because, under the doctrine of res ipsa loquitur, he has established an inference of negligence.

B The guest, because he can require each of the volunteers to prove that she was not the actual cause of the injury.

C The volunteers, because the guest cannot establish which of the volunteers breached her duty of care.

D The volunteers, because they all were donating their time and food to the event.

Answer 37

C The volunteers, because the guest cannot establish which of the volunteers breached her duty of care.The volunteers, because the guest cannot establish which of the volunteers breached her duty of care.

Here, the volunteers each owed a duty of care to anyone consuming the food they prepared, including the guest. The facts indicate that at least one of the volunteers breached that duty by improperly preparing or cooking the ground beef. That breach of duty caused the guest to become seriously ill. However, he cannot establish which of the volunteers breached the duty of care and was a factual cause of his injury. Absent additional evidence, the guest will not prevail.

(B) is incorrect. The alternative liability or unascertainable cause approach of Summers v. Tice applies when two or more persons have been negligent but it cannot be determined which one caused the plaintiff’s injury. The court will shift the burden of proof to each of the negligent defendants to show that his negligence was not a factual cause of the injury. Here, however, there is no evidence that all of the volunteers were negligent; most likely, just one of them was. Hence, the volunteers will not be required to prove that they did not cause the guest’s injury.

Question 38

A tenant’s apartment was without hot water for over a week because of a broken water heater, even though the landlord had been notified right away and the lease provided that the landlord would make repairs promptly. The tenant heated a large pot of water on the stove and started to carry it to the bathroom so she could warm up her bath. Her young nephew, who was visiting for a few days, came around the corner suddenly and collided with her. The hot water spilled on the nephew, burning him. Because the nephew had a rare blood disorder, the burns resulted in several of the nephew’s toes requiring amputation. The nephew’s guardian brought a negligence action against the landlord in a jurisdiction that follows the traditional rules for landowner liability.

If the jury finds in favor of the landlord, what is the most likely reason?

A The nephew, as a social guest of the tenant, was not owed a duty by the landlord.

B The tenant’s conduct was the actual cause of the nephew’s injuries.

C The landlord’s conduct was not the proximate cause of the nephew’s injuries.

D The nephew’s injuries were not foreseeable.

Answer 38

C The landlord’s conduct was not the proximate cause of the nephew’s injuries.

To establish proximate cause in indirect cause cases, where an intervening force combines with the defendant’s conduct to cause the plaintiff’s injury, the plaintiff must show that the defendant’s negligence caused a foreseeable harm or caused a foreseeable reaction from a foreseeable intervening force. Intervening forces that produce a harm outside of the scope of what would normally be anticipated from the defendant’s negligence are generally deemed unforeseeable and superseding. Such a superseding event will break the chain of causation and relieve the defendant of liability. Here, it is ultimately a question for the jury whether the landlord’s failure to fix the water heater was a proximate cause of the nephew’s injury. However, the jury could very well find that the landlord’s failure to do so, even if negligent, is not a proximate cause of the nephew’s burn injuries because the conduct of the nephew and the tenant are superseding forces.

(A) is incorrect. Not only the tenant but also the landlord owes a duty to the tenant’s nephew. The landlord’s duty to maintain hot water in the tenant’s apartment extends to guests of the tenant as well.

(B) is incorrect. The tenant’s conduct was not the only actual cause of the nephew’s injuries under the “but for” test for actual cause. The landlord’s failure to repair the water heater promptly was also an actual cause, because but for his failure to do so, the tenant would not have been carrying a pot of hot water to the bathroom.

(D) is incorrect. Under the rule that a tortfeasor takes his victim as he finds him, it is irrelevant that the extent or severity of the plaintiff’s injuries was unforeseeable. If the landlord were liable to the nephew, he would be liable for all of his injuries even though some were not foreseeable.

Question 39

The plaintiff was driving inattentively when she had to swerve to avoid two other negligently driven vehicles at a busy intersection, and her car struck a light pole. The plaintiff, who was the only driver injured, sued one of the other drivers to recover damages in a jurisdiction that has adopted pure comparative negligence. The jury determined that she suffered injuries of $100,000 and was 50% at fault.

If the plaintiff is awarded a recovery of only $25,000 from the defendant, what will be the most likely reason?

A The defendant’s fault was less serious than that of the other tortfeasor.

B The plaintiff’s fault was as great as the total negligence of the other two drivers combined.

C The jurisdiction applies contribution based on a pro rata approach rather than proportional fault.

D The jurisdiction has abolished joint and several liability.

Answer 39

D The jurisdiction has abolished joint and several liability.

If the plaintiff recovers only $25,000, it will be because the jurisdiction has abolished joint and several liability. Under joint and several liability, when two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortfeasor is liable to the plaintiff for the entire damage incurred. Hence, the plaintiff could recover $50,000 from the defendant if joint and several liability applied (her total damages reduced by the amount of her own fault that contributed to her injury). The facts do not state what percent of fault was assigned to the defendant, but given that the other choices are incorrect, the defendant’s fault must have been determined to be 25%, so that $25,000 would be the plaintiff’s recovery in the absence of joint and several liability.

(A) is incorrect regardless of whether joint and several liability applies. If the defendant’s fault were less serious than that of the other tortfeasor, he would be liable to the plaintiff for less than $25,000 in the absence of joint and several liability. If joint and several liability did apply, he would be liable to the plaintiff for $50,000-the full amount of her damages.

(B) is incorrect because the fact that the plaintiff’s fault equals the combined fault of the other two tortfeasors is relevant only in a partial comparative negligence jurisdiction. It is irrelevant in a pure comparative negligence jurisdiction.

(C) is incorrect because the rule of contribution, regardless of whether it is based on a pro rata approach or a proportional fault approach, does not affect how much the plaintiff receives from a defendant. Rather, it enables a defendant who has paid more than his share of damages to the plaintiff under joint and several liability to seek recovery against any other joint tortfeasor for the excess paid.

Question 40

A pedestrian crossed the street at a crosswalk without looking for oncoming traffic. He was struck first by a car and then by a truck. The pedestrian sued both the driver of the car and the driver of the truck for negligence. The jury determined that the pedestrian was 60% at fault, the driver of the car 30%, and the truck driver 10%. The jury also determined that the pedestrian suffered damages of

$100,000. The driver of the car is insolvent.

In a pure comparative negligence jurisdiction retaining traditional joint liability rules, how much can the pedestrian collect from the driver of the truck?

A) Nothing.
B) $10,000.
C) $40,000.

D) $100,000.

Answer 40

C) $40,000.

The pedestrian can collect $40,000 from the driver. In a pure comparative negligence jurisdiction, the plaintiff can recover even if he was over 50% at fault.

Thus, (A) is wrong. The recovery will be limited to the percentage of damage attributed to the defendant(s), in this case 40%.

The jurisdiction retains the rule on joint and several liability. Therefore, each defendant is responsible for the combined liability of all defendants. (C) is therefore correct and (B) is wrong.

(D) is wrong because, in a comparative negligence jurisdiction, the plaintiff’s recovery is reduced due to his negligence.

Question 41

Contributory negligence is a defense to negligence actions but not to intentional torts actions. Battery is an intentional tort for which contributory negligence is not a defense.