MBE Questions Flashcards
Two pranksters threw ice from a soda cup over a shopping mall railing onto the heads of patrons two floors below. They intended to post videos of the ice hitting these patrons and the patrons slipping on the ice on a website known for displaying pranks. After a while, the pranksters became bored and left the railing to walk to the food court. As they walked away, they heard a scream and saw a mall patron fall after slipping on the remnants of the ice. The pranksters had not seen or targeted this mall patron prior to his fall but walked over to help him up. The patron cried hysterically and was visibly shaken to the point of needing medical care for his emotional as well as physical injury.
If the pranksters are found liable for the patron’s injuries, which of the following is the most plausible basis?
A) Assault.
B) Battery.
C) Negligent infliction of emotional distress.
D) Intentional infliction of emotional distress.
B) Battery.
Intent for battery exists when the defendant
(1) intends to cause contact with the plaintiff’s person,
(2) intends to cause contact with a third party but instead causes contact with the plaintiff, or
(3) intends to commit an assault but instead commits a battery.
Transferred intent:
Here, the pranksters intended to cause contact with targeted mall patrons by hitting their heads with ice and causing them to slip on it (intent to commit battery). Although a different patron slipped on the ice (same tort; different person), the pranksters’ initial intent to batter the targeted patrons transferred to the injured patron.
During a football game, the plaintiff was severely injured by the defendant, a player on the opposing team, when the defendant ripped off the plaintiff’s helmet and intentionally elbowed the plaintiff in the head to obtain possession of the football. The plaintiff brought a battery action seeking compensation from the defendant.
During the trial, the defendant introduced evidence demonstrating that all of the players, including the plaintiff, use rough tactics when tackling players on the opposing team to obtain possession of the ball. The plaintiff introduced evidence that intentionally hitting a player once his helmet had been removed was beyond the scope of the game.
Will the plaintiff likely prevail in an action for damages against the defendant?
A) No, because having used rough tactics during the football game, the plaintiff was estopped from suing.
B) No, because the defendant did not intend to cause harmful or offensive contact with the plaintiff.
C) Yes, because the defendant intentionally removed the plaintiff’s helmet.
D) Yes, because the defendant’s reckless disregard for the plaintiff’s safety exceeded the scope of consent.
D) Yes, because the defendant’s reckless disregard for the plaintiff’s safety exceeded the scope of consent.
Consent is only a defense where the defendant’s conduct falls within the scope of the plaintiff’s consent.
A musician’s brother borrowed the musician’s electric guitar. The brother told the musician that he was going to use it the next day to teach the children in his second-grade class about different musical instruments. Instead, the brother went to a rowdy bar that evening and played the electric guitar with his rock band all night long. A drunk bar patron got on stage during one of the songs, grabbed the guitar from the brother, and smashed it against the ground. The brother took the guitar to a repair shop the next day and was told that it would cost $750 to restore the guitar to its original condition. At the time of the incident, the guitar was worth $1,500. The musician asserts a claim against his brother for conversion.
What is the musician entitled to recover?
A) Nothing.
B) $750.
C) $1,500.
D) $1,500 plus damages for loss of use.
C) $1,500.
Is this conversion or trespass to chattel?
Here, the brother had the musician’s permission to borrow his guitar to teach second-grade students about musical instruments. But the brother intentionally exceeded the scope of permission when he took the guitar to a rowdy bar and played it with his rock band. Then, the musician’s right to control the guitar was seriously violated when a bar patron smashed it against the ground. Therefore, the brother committed conversion, and the musician can recover the fair market value of the guitar at the time the conversion occurred—$1,500
A defendant, intending to frighten the plaintiff, went to the plaintiff’s place of work, a toy store. When the plaintiff was alone in the store, the defendant waved a knife at the plaintiff, saying, “I’m going to make sure you don’t molest any more children!” It turns out that the defendant had mistaken the plaintiff for someone else, who the defendant believed to have molested his nephew. The plaintiff, however, assumed that the knife was just one of the toys from a shelf in the store and that the defendant was just making a tasteless joke, so he laughed it off and told the defendant to get lost. Only later did the plaintiff realize that the knife had been real and that he had actually been in serious danger. As a result of looking back on the distressing event, the plaintiff has suffered from severe anxiety, leading to illness, which has caused him to miss work.
Which of the following tort doctrines offers the plaintiff the best chance to recover?
A) Intentional infliction of emotional distress.
B) Assault.
C) Battery.
D) Slander.
A) Intentional infliction of emotional distress.
For intentional infliction of emotional distress, conduct is considered extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society.
Here, the defendant knew (intent) or was indifferent to the obvious risk (recklessness) that his conduct would cause the plaintiff severe emotional distress. And because this conduct caused the plaintiff to experience severe anxiety and illness (severe emotional distress), IIED offers the plaintiff the best chance to recover.
The owner of a bed-and-breakfast catered to wealthy city residents hoping to get some rest near the beach. His bed-and-breakfast had doors and windows that opened out directly onto the beach. On a busy holiday weekend, a guest at the bed-and-breakfast threw a party during which he fell out of a second-story window onto the sand below. His injuries were minor, but he filed suit against the owner, alleging that the owner was negligent in allowing the window to fully open on an upper-level floor.
During the proceedings, the guest provided evidence that within that same beach town, there were six bed-and-breakfasts, and all of them contained locks on their upper-level windows preventing them from opening more than four inches, although there was no statute requiring this precaution. The owner countered with evidence that no other guest had ever fallen out of a window, and that the windows had recently been inspected and given a positive safety rating. The guest then moved for judgment as a matter of law.
In a jurisdiction that has abolished the traditional rules of innkeeper liability, is the court likely to grant the guest’s motion?
A) Yes, because the owner allowed the windows to open wide enough for a guest to fall through.
B) Yes, because other bed-and-breakfasts in the area did not allow windows to open more than four inches.
C) No, because the windows were recently inspected and noted to be safe.
D) No, because there was no statute requiring window locks.
C) No, because the windows were recently inspected and noted to be safe.
Generally, innkeepers owe a duty to use ordinary care to protect its guests while they are on the premises. Evidence that the innkeeper complied with (or deviated from) community or industry custom is relevant to—but not conclusive on—the issue of negligence.
Here, the guest produced evidence that the other bed-and-breakfasts in town had locks on their upper-level windows to prevent them from fully opening. Although this was the area’s custom, the owner’s failure to follow it did not conclusively establish his negligence—especially since his windows had been recently inspected and received a positive safety rating
A country club hosted a celebrity golf tournament to raise money for a local hospital. The country club had a strict policy of requiring any person not currently engaged in a golf match to stay off the course while a tournament is in session. The country club made an announcement to this effect, adding that entering the course during play could result in serious injury. An adult club member, who was aware of the policy, walked onto the course during a match in order to procure the signature of a famous golf star. While on the course, the member was struck in the head by a golf ball and injured.
The jurisdiction applies the traditional rules of landowner liability.
In a suit against the country club by the member to recover for his injuries, how will the court likely hold?
A) Liable, because the member was a business invitee.
B) Liable, because the presence of famous golf stars constituted an attractive nuisance.
C) Not liable, because the country club enjoys charitable immunity.
D) Not liable, because the country club did not breach its duty to the member.
D) Not liable, because the country club did not breach its duty to the member.
A land possessor owes a duty to known or anticipated trespassers to (1) warn them about hidden, artificial dangers that are known to the land possessor but unlikely to be discovered by trespassers and (2) use reasonable care in active operations.
The club fulfilled this duty when it warned the member that entering the course during play could result in serious injury.
A consumer bought a can of chicken soup from her neighborhood grocery store. The soup was manufactured by a large food company. Approximately two weeks later, the consumer’s son ate the soup and soon became violently ill. At the hospital, the attending physician diagnosed the illness as botulism poisoning, a serious disease that can arise from defects in the manufacturing process of canned foods or be brought on after manufacturing through temperature fluctuations in storage of the canned foods. Tests later confirmed that the can of soup was tainted with botulinum bacteria.
The consumer sued the large food company for negligence on behalf of her son. At trial, she produced no direct evidence of negligence on the part of the food company, but invoked the doctrine of res ipsa loquitur to prove liability. The applicable jurisdiction has adopted a traditional standard for res ipsa loquitur and a comparative-negligence standard. The food company filed a motion for a directed verdict.
How should the trial judge rule on the motion?
A) Deny the motion, because canned goods do not contain bacteria in the absence of negligence.
B) Deny the motion, because the food company was along the chain of distribution.
C) Grant the motion, because there is no evidence that the food company was negligent.
D) Grant the motion, because the doctrine of res ipsa loquitur has been abolished in comparative-negligence jurisdictions.
C) Grant the motion, because there is no evidence that the food company was negligent.
Res ipsa loquitur, negligence is inferred if
(1) the plaintiff’s harm would not normally occur unless someone was negligent,
(2) the defendant had exclusive control over the thing that caused the harm, and
(3) the plaintiff did nothing to cause the harm.
Although soup is not normally tainted with botulism absent negligence, the company did not have exclusive control over the defective can. The grocery store and the consumer both possessed it after manufacturing, when improper storage could have caused botulism.
A motorcyclist traveling along a hilly road through the woods at dusk experienced sudden engine trouble. He stopped his motorcycle in the middle of the road and, as he was unable to get it started again, left it there and walked to find assistance. Two drivers, who were approaching the motorcycle from opposite sides of the road, failed to see the motorcycle because the motorcyclist had neglected to turn on his hazard lights and neither car’s automatic headlights had come on. As a result, both drivers simultaneously clipped the motorcycle, causing damage so significant that the motorcycle was totaled.
The motorcyclist subsequently filed a negligence action against the two drivers to recover damages for the loss of his motorcycle, which had been damaged beyond repair. At trial, it was established that both drivers had failed to act as reasonably prudent persons under the circumstances because their headlights were off. It was also established that the impact of either car alone would have been sufficient to total the motorcycle and that the motorcycle would have been visible to both drivers if its hazard lights had been turned on.
Is the motorcyclist likely to recover damages from the drivers?
A) No, because neither driver’s conduct was the “but for” cause of the motorcyclist’s damages.
B) No, because the motorcyclist’s contributory negligence is a complete bar to recovery.
C) Yes, because each driver’s conduct was a substantial factor in causing the motorcyclist’s damages.
D) Yes, because the drivers had the last clear chance to avoid the motorcyclist’s harm.
C) Yes, because each driver’s conduct was a substantial factor in causing the motorcyclist’s damages.
Where multiple forces combined to cause the plaintiff’s harm and any one alone would have been sufficient to cause the harm, the test for actual causation is whether the defendant’s conduct was a substantial factor in causing the harm.
A woman in great pain from a toothache made an emergency appointment with a dentist. The dentist removed her tooth. Later, she returned and the dentist implanted a new tooth. This tooth, which was made from synthetic materials by a dental laboratory, contained a defect. The dentist was unaware of the defect because he failed to exercise reasonable care in examining the tooth before implanting it. Several weeks later, when the woman bit down on an apple, the implanted tooth broke. A piece of the broken tooth caused substantial damage to her mouth. The woman brought a strict products liability action against the dentist.
Is the woman likely to prevail?
A) Yes, because the dentist did not exercise reasonable care.
B) Yes, because the implanted tooth was defective.
C) No, because the dentist did not know that the implanted tooth was defective.
D) No, because the dentist was a service provider.
D) No, because the dentist was a service provider.
service providers are not subject to strict products liability.
A plaintiff purchased a new car from a car dealer. A computer chip in the engine of the car had been defectively manufactured, such that the plaintiff lost control of the car, causing the plaintiff to suffer injuries. Several entities were involved in the process through which the defective chip ended up in the plaintiff’s car. The defective computer chip was manufactured by a component company and then purchased by an engine builder. The engine builder then incorporated the chip into the engine and sold the engine to a car manufacturer. The car manufacturer then incorporated the engine into the car and sold the car to the car dealer. The plaintiff brought an action for strict products liability against the component company, the engine builder, the car manufacturer, and the car dealer.
From whom can the plaintiff recover for his injuries?
A) The car dealer only, because the plaintiff was not in privity with the other parties.
B) Any of the parties who had negligently failed to inspect the product.
C) Any of the parties, regardless of whether the party was negligent.
D) The component company only, because the component company is the party that manufactured the defective chip.
C) Any of the parties, regardless of whether the party was negligent.
Strict products liability is imposed on any commercial seller in the chain of distribution if
(1) the commercial seller’s product contained a defect when it left the commercial seller’s control AND
(2) that defect caused the plaintiff harm.
All of the parties were in the chain of sale. Strict liability doesn’t care about negligence.
A chef who worked in a restaurant purchased an electric knife from a knife manufacturer that was specially designed to cut through meat. The instructions for the electric knife clearly stated that it should not be used on raw, hard vegetables, such as carrots or potatoes, because the moving blades on the electric knife would malfunction and could cause serious injury. One day, the chef’s friend asked to borrow the electric knife. The chef lent the electric knife to the friend and told him, “Don’t use the electric knife to cut raw vegetables.” Thinking that the advice was only to avoid dulling the blades, the friend disregarded the chef’s advice. When the friend used the electric knife to cut raw carrots, the moving blades on the knife malfunctioned, causing the friend to sustain a serious knife wound. The friend filed a negligence suit against the chef to recover damages for his injuries. The jurisdiction applies the common-law rules for contributory negligence and assumption of the risk.
Which of the following is the chef’s best defense?
A) The friend was contributorily negligent.
B) The friend voluntarily assumed the risk.
C) The chef did not owe a duty to the friend.
D) The knife manufacturer is strictly liable for the friend’s injuries.
A) The friend was contributorily negligent.
P’s failure to use reasonable care for his/her own safety is a complete bar to recovery for negligence (% doesn’t matter)
Since the friend contributed to his own harm by ignoring the chef’s instructions, contributory negligence is the chef’s best defense.
Note: strict liability and negligence are two different torts
The defendant purchased a tiger in the hope of achieving his life’s ambition of performing in a Las Vegas show. The defendant kept the tiger locked in a cage specifically designed for such animals. Unbeknownst to the defendant, however, there was a manufacturing defect in the cage that caused the lock to spring open. The tiger escaped from the cage and ran onto the defendant’s yard, where the plaintiff, a painter hired by the defendant, was on a ladder painting the exterior of the defendant’s home. The plaintiff panicked when he saw the tiger, causing him to fall off the ladder. The tiger ran off the property without approaching the plaintiff. The plaintiff sustained significant injuries as the result of his fall. The plaintiff has sued the defendant. At trial, the defendant provided evidence that he exercised reasonable care in containing the tiger.
The jurisdiction recognizes the doctrine of contributory negligence.
Is the plaintiff likely to prevail at trial?
Answers:
A) No, because the plaintiff’s own negligence on the ladder contributed to his injuries.
B) No, because the tiger was not a direct cause of the plaintiff’s injuries.
C) Yes, because the plaintiff was an invitee and was therefore owed the highest duty of care.
D) Yes, because the defendant is strictly liable for the plaintiff’s injuries.
D) Yes, because the defendant is strictly liable for the plaintiff’s injuries.
The owner of a wild animal is strictly liable for harm that is caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal or directly results from the wild animal’s abnormally dangerous characteristics.
No matter if the owner kept his tiger in a cage or let it run loose, he is strictly liable. We also don’t care about the harm being foreseeable. A defendant is strictly liable for harm that (1) is caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal or (2) directly results from the wild animal’s abnormally dangerous characteristics
A water skier filed a negligence action for neck injuries he sustained while water skiing against the driver of the boat and the “spotter,” the person responsible for informing a boat driver when a water skier falls. At trial, the jury determined that all three parties were negligent. The water skier was 10% at fault for attempting a very difficult move, the driver was 30% at fault for making a sharp turn while the water skier was attempting the move, and the spotter was 60% at fault for not paying attention and failing to inform the driver when the water skier fell into the water. The jurisdiction in which the court is located recognizes pure several liability. The jury awarded the water skier $100,000 in damages.
If the water skier only tries to collect from the spotter, what is the most the water skier can recover?
A) $90,000, and the spotter can collect $30,000 from the driver.
B) $90,000, and the spotter can collect $45,000 from the driver.
C) $60,000, and the spotter can collect $30,000 from the driver.
D) $60,000, and the spotter cannot collect anything from the driver.
D) $60,000, and the spotter cannot collect anything from the driver.
Pure comparative negligence = negligent plaintiff’s recovery is reduced by his/her proportionate share of fault.
PURE SEVERAL LIABILITY= limits the plaintiff to recovering from each defendant the portion of damages that corresponds to his/her proportionate share of fault.
The skier’s recovery will be reduced by his proportionate share of fault ($100,000 - $10,000 = $90,000). Since the skier only tried to collect from the spotter, he may recover $60,000—the amount attributable to the spotter’s share of the fault. And since the spotter has not paid more than his share of fault, he cannot seek contribution from the driver
If this were joint/several liability, A would be correct
Two college students, dressed as robbers for Halloween, were playing hide-and-seek outside of their dormitory. One of the students hid behind a shrub and waited to surprise the other. Before the other student appeared, an elderly woman passed the shrub. The student, hearing footsteps and thinking it was the other student, jumped in front of her and shouted, “Got you!” The elderly woman shrieked and jumped backward. She dropped a bag of groceries but was otherwise unharmed. The woman sued the student for assault.
Will the woman likely prevail in her suit against the student?
A) No, because the student did not have the necessary intent to commit a tort.
B) No, because the woman sustained no damages that she could collect.
C) Yes, because the student’s conduct was extreme and outrageous.
D) Yes, because the woman was placed in anticipation of imminent contact.
D) Yes, because the woman was placed in anticipation of imminent contact.
Assault:
(1) a defendant intends to cause the plaintiff to anticipate an imminent, and harmful or offensive, contact with the plaintiff’s person and
(2) the defendant’s affirmative conduct causes the plaintiff to anticipate such contact
Transferred Intent: defendant’s intent to commit an assault (or battery or false imprisonment) against one person transfers to the defendant’s commission of that intended tort against a different person.
A mother and father who recently divorced had one child. As part of their custody agreement, the judge awarded primary custody of the child to the mother and granted weekend visitations to the father. Soon after the divorce, the mother remarried another man, who treated the child like his own. The father became extremely angry when he learned about the mother’s remarriage, so he decided to cause her emotional distress. The father appeared at the mother’s house when he was supposed to return the child from a weekend visitation. When the mother and the stepfather answered the door, the father told them that the child had been in a car accident and was in a coma. In fact, the child was neither in an accident nor in a coma.
Both the mother and the stepfather suffered severe emotional distress as a result of the father’s news. Each of them sued the father for intentional infliction of emotional distress. The father has moved to dismiss the stepfather’s claim, arguing that his conduct was directed at the mother alone.
Should the judge grant the father’s motion to dismiss?
A) No, because the stepfather is a close relative of the mother.
B) No, because the target of the father’s conduct is irrelevant for such a claim.
C) Yes, because the father intended to cause distress to the mother alone.
D) Yes, because the stepfather did not suffer bodily injury.
A) No, because the stepfather is a close relative of the mother.
Bystander IIED:
(1) plaintiff contemporaneously perceived that conduct, (2) the plaintiff was closely related to the third party, and (3) the defendant knew of the plaintiff’s presence and that relationship.
Here, the father notified the mother (a third party) that the child had been in an accident and was in a coma, which caused the stepfather (a close relative of the mother) to suffer severe emotional distress. The stepfather was present when the father notified the mother (contemporaneous perception). And since the father knew that the stepfather and the mother were married and that the stepfather was present when the father notified the mother, the judge should deny the father’s motion to dismiss the stepfather’s IIED claim.
A shopper was a frequent customer of a local handbag store. One afternoon, the shopper went into the store, carrying a handbag she had purchased from the manufacturer’s online site two weeks earlier. The shopper set her handbag on one of the store’s merchandise racks and then looked around the store. After she was finished looking around the store, the shopper retrieved her handbag from the merchandise rack and proceeded to leave. The store’s security guard, who had observed the shopper pick up the handbag, stopped her and discreetly asked if she had purchased the handbag from the store.
When the shopper replied that she had not, the guard indicated that he would have to call the police if she did not follow him to the back of the store. The guard took the shopper to a locked office where he detained her for 10 minutes while he reviewed the store’s security camera footage. After determining that the shopper had entered the store with the handbag, the guard released her.
If the shopper sues the guard for false imprisonment, is she likely to prevail?
A) Yes, because she had no reasonable means of escape.
B) Yes, because the confinement resulted from an improper threat.
C) No, because the time and manner of the detention were reasonable given the guard’s reasonable belief that the shopper was shoplifting.
D) No, because she suffered no actual or physical injury as a result of her confinement.
C) No, because the time and manner of the detention were reasonable given the guard’s reasonable belief that the shopper was shoplifting.
The merchant’s privilege: defense to false imprisonment if merchant-defendant
1) reasonably believes that the plaintiff has wrongfully taken or is attempting to take merchandise from its premises and
2) detains the plaintiff for a reasonable time and in a reasonable manner in the immediate vicinity of the merchant’s premises.
Note: no means of escape is a reasonably necessary means
A newly retired chemist bought a house in a small but densely populated rural town. The chemist still enjoyed conducting experiments in her spare time. Because the chemist used very strong chemicals, she always experimented with her windows open to keep fresh air circulating in her home. A computer programmer who lived next door to the chemist kept his home office windows open as well because his network of servers and computers generated a lot of heat when he worked.
The programmer suffered from a rare disease known as anosmia, which blocked his sense of smell. As a result, the programmer could not smell the unpleasant, but ultimately harmless, fumes when they entered his office after the chemist conducted an experiment. However, visitors to the programmer’s home and his neighbors regularly complained about the loathsome smell.
Ignoring the issue of damages, could the programmer prevail in a private nuisance action against the chemist?
A) No, because the programmer assumed the risk of encountering fumes by keeping his windows open.
B) No, because the programmer could not smell the fumes emanating from the chemist’s home.
C) Yes, because the programmer suffered harm that is different from that suffered by other community members.
D) Yes, if the fumes unreasonably interfered with the programmer’s use and enjoyment of his home.
D) Yes, if the fumes unreasonably interfered with the programmer’s use and enjoyment of his home.
Private nuisance is a substantial and unreasonable interference with the use and enjoyment of the plaintiff’s property. An interference is substantial if a normal person in the community would find the interference offensive, annoying, or intolerable even if the plaintiff is not personally bothered by it*
The owner of a restaurant was responsible for printing new dinner menus every day after speaking with the restaurant’s chef in the morning. The menu always indicated in a footnote that all dishes were prepared in a kitchen that also worked with nuts and animal products. One morning, after speaking with the chef, the owner created a dinner menu that labeled a chicken dish as “soy, nut, and dairy free.” However, the chicken dish contained pecan crumbs.
That evening during dinner service, a patron of the restaurant told his waiter that he was allergic to nuts. Based on the menu, the waiter suggested that he order the chicken dish. The patron noted the warning in the footnote on the menu, but knowing that his own allergy was not severe enough to react to mere trace amounts of nuts, he ordered the chicken dish. After eating a few bites of the dish, he suffered a severe allergic reaction and was rushed to the hospital.
The patron filed a negligence suit against the owner of the restaurant to recover damages for his injuries. The above facts are undisputed at trial, and at the close of the patron’s case, the owner filed a motion for a directed verdict.
The jurisdiction has abolished traditional rules of landowner liability.
If no other evidence has been introduced, should the owner’s motion be granted?
A) No, because a jury could conclude that the owner breached her duty of reasonable care to the patron.
B) No, because the court cannot grant the owner’s motion until she has presented her case.
C) Yes, because the patron assumed the risk by eating restaurant food that may contain nuts.
D) Yes, because the patron consented to ordering the chicken dish based upon the waiter’s suggestion.
A) No, because a jury could conclude that the owner breached her duty of reasonable care to the patron.
Negligence: duty, breach, cause, damages
Duty: land possessors owe a duty of care to all land entrants (except flagrant trespassers).
A driver was traveling in his car one evening when he heard his cell phone ring. The phone was located on the console of the car, so the driver reached out to grab it. While the driver was looking at his caller identification display, a pedestrian walked into a crosswalk directly in front of his car. When the driver saw the pedestrian, he immediately swerved the car and slammed it into a utility pole. The utility pole crashed to the ground and caused a power outage in the area.
One block away from the accident site, a child was watching television when the power went out, and her house became pitch black. The child, who was afraid of the dark, ran out of the house and into the street, where she was struck by a bicyclist and seriously injured.
The child’s parents have sued the driver for negligence to recover damages for the physical injuries suffered by the child.
In a jurisdiction that follows the majority view on the duty of care, which party will likely prevail?
A) The driver, because he owed no duty of care to the child.
B) The driver, because his actions were not the cause in fact of the child’s injuries.
C) The parents, because the driver owed a duty of care to the child.
D) The parents, because the driver’s conduct was the legal cause of the child’s injuries.
A) The driver, because he owed no duty of care to the child.
Negligence: Duty, Breach, Cause, Damages
Modern/Cardozo view: duty of care is owed only to persons who might be foreseeably harmed by the defendant’s negligent conduct.
Here, the driver owed a duty of care to persons who might be foreseeably harmed by his negligent driving (e.g., the pedestrian or other drivers). But the driver owed no duty of care to the child because it was not foreseeable that she would be injured by an accident that occurred one block away.
Note: The driver’s actions were the cause in fact (i.e., factual cause) of the child’s injuries because but for his negligent driving, the power outage would not have occurred and the child would not have fled the house and been struck by the bicyclist.
A hotel owner maintained a patio with an outdoor pool. The area was for hotel patrons’ use only, but local residents would frequently sneak in to use the pool at night. The hotel owner knew that residents were using the pool, but the “No Trespassing” sign she posted at the patio’s entrance had little effect in deterring trespassers.
As winter approached and temperatures dropped at nighttime, the hotel owner installed high-powered heat lamps so that hotel patrons would stay warm when they used the patio furniture by the pool. The hotel owner did not want the heat lamps to distract from the aesthetic beauty of the area, so they were camouflaged by heat-proof plastic plants and installed in very discreet locations so that hotel patrons could not see them in the dark without close inspection.
One night, an adult resident who had trespassed onto the patio to access the pool accidentally backed into one of the concealed heat lamps and suffered third-degree burns.
Will the resident prevail if he brings a negligence claim against the hotel owner?
A) No, because the heat lamps were not an abnormally dangerous condition for a patio.
B) No, because the resident was not a hotel patron.
C) Yes, because the aesthetic benefit of having the heat lamps hidden does not outweigh the risk of harm.
D) Yes, because the heat lamps were a hazard that the resident was not likely to discover.
D) Yes, because the heat lamps were a hazard that the resident was not likely to discover.
A land possessor owes a duty to known or anticipated trespassers to
(1) warn them about hidden, artificial dangers that are known to the land possessor but unlikely to be discovered by trespassers and
(2) use reasonable care in activities conducted on the land.
A man and his friend decided to drive downstate to watch the homecoming football game at their alma mater. The man drove the friend to the game and refused any compensation from her. On the way home, the man failed to notice a stoplight and ran it, which caused a collision with another vehicle. The friend was severely injured as a result of the collision and sued the man for her injuries.
The jurisdiction where the friend’s suit was filed recently enacted a guest statute with regard to a driver’s duty to persons riding in the driver’s vehicle.
Will the friend be likely to recover damages for her injuries?
A) No, because a driver is only liable for injuries to paying passengers.
B) No, because the man was merely negligent.
C) Yes, because the man owed his friend a duty to exercise ordinary care.
D) Yes, because the man was strictly liable for the friend’s injuries.
B) No, because the man was merely negligent.
“guest statutes” = an automobile driver’s only duty to guests is to refrain from gross or wanton and willful misconduct (minority of jurisdictions)
In most jurisdictions, the man would have owed the friend a duty to exercise ordinary care. However, since this jurisdiction enacted a guest statute, he only owed her a duty to refrain from gross or wanton and willful misconduct
As a safety measure, a city enacted an ordinance imposing a fine for trespassing on construction and roadwork sites marked with orange caution tape. The city’s construction team marked a city block with orange caution tape to divert all cars and pedestrians while the team repaired potholes. A pedestrian wanted to walk down the marked-off street. The street was full of construction equipment, but because it appeared that construction had not yet started, the pedestrian stepped over the orange caution tape and walked down the street. Distracted by the equipment around him, the pedestrian stepped into an open manhole and landed on a construction worker who was inspecting the sewer under the construction site. Both parties were injured in the accident.
The construction worker has sued the pedestrian for negligence to recover damages for his injuries in a jurisdiction that applies the minority approach to negligence per se.
What is the legal effect of the pedestrian’s walking on a street marked with caution tape?
A) It creates a conclusive presumption that the pedestrian breached a duty.
B) It creates a rebuttable presumption that the pedestrian breached a duty.
C) It will bar the pedestrian from recovering damages from the city in a future negligence action.
D) It will have no legal effect because the construction worker’s act was the proximate cause of the accident.
B) It creates a rebuttable presumption that the pedestrian breached a duty.
minority approach for negligence per se –> a defendant’s violation of a statute or ordinance creates a rebuttable presumption (as opposed to a conclusive presumption) that the defendant breached a duty of care.
Here, the construction worker was injured when the pedestrian walked down a street marked with caution tape. This violated an ordinance that was likely designed to keep workers like him safe from injuries at open construction sites.
Note: Under the majority approach, the pedestrian’s duty and breach would be conclusively presumed
The owner of an abandoned building knew that many persons experiencing homelessness stayed in the building for shelter. Because he sympathized with their plight, the owner decided not to have the homeless removed from the building and left it in its current state because he had no plans to remodel it. Despite knowing that the building had dilapidated, rotting, and uneven floors, the owner never posted signs or informed those who stayed in the building about its uneven floors.
A man experiencing homelessness who tripped on an uneven floor and sprained his ankle brought suit against the owner to recover damages for his injury. In his defense, the owner argues that he had no obligation to take action to provide a safe environment to the man.
The jurisdiction has abolished traditional rules of landowner liability.
Will the owner’s defense likely be successful?
A) No, because the owner did not prohibit trespassers from entering the building.
B) No, because the owner had a duty to protect the man from unsafe conditions.
C) Yes, because the floors did not involve a risk of serious harm or death.
D) Yes, because the owner did not have a duty to protect trespassers.
B) No, because the owner had a duty to protect the man from unsafe conditions.
Modern approach: Duty to ALL land entrants, except flagrant trespassers
Here, the man was a trespasser because he intentionally entered the building without the owner’s permission. However, the man was not a flagrant trespasser because he entered the building to seek shelter—not commit a crime. And since the owner knew that the building’s floors were dilapidated, the risk of injury to the man was foreseeable
A woman consulted with a plastic surgeon about liposuction treatment. The surgeon reviewed with the woman the cost, procedure, and risks associated with liposuction. However, the surgeon did not tell the woman that many patients who undergo liposuction feel numbness in the treated area for several months after treatment.
After obtaining the woman’s consent, the surgeon successfully performed the liposuction. The woman suffered no numbness or other physical harm due to the liposuction. However, when the woman learned of the risk of numbness associated with liposuction, she was outraged that the surgeon had failed to disclose this information to her. The woman would have refused the operation had she been informed of the risk.
If the woman files a negligence suit against the surgeon, will the woman likely prevail?
A) No, because the surgeon did not breach his standard of care.
B) No, because the surgeon’s conduct did not cause the woman physical harm.
C) Yes, because the surgeon failed to disclose the risk of numbness following the procedure.
D) Yes, because the surgeon was the proximate cause of the woman’s outrage.
B) No, because the surgeon’s conduct did not cause the woman physical harm.
Informed consent doctrine: Physicians who fail to disclose risks is liable for negligence IF
1) failure to disclose caused patient to consent and
2) risk materialized and resulted in physical harm
The woman likely needed to be told of this risk to give informed consent, and she would have refused the operation had she been so informed. But since the procedure was successful and the woman suffered no physical harm, she will not prevail in a negligence suit against the surgeon.
A plaintiff was injured when a roller coaster she was riding at an amusement park ran off the rails and crashed. After conducting a thorough investigation of the accident, the plaintiff was unable to determine what had caused the accident, but she did learn that the amusement park had failed to register with the county tax commission as required by state law.
Which of the following would be the strongest basis for the plaintiff’s tort claim?
A) Negligence per se.
B) Public nuisance.
C) Res ipsa loquitur.
D) Strict products liability.
C) Res ipsa loquitur.
Note: negligence per se is found where there is a statutory regulation designed to prevent the kind of harm that occurred (not present here)
To facilitate the plowing of major streets, a city ordinance prohibited parking on major streets, defined in the ordinance, weekdays between 4:00 a.m. and 9:00 a.m. on days when it snowed more than one inch. The defendant left his car parked on a major street near his house while he went on an overnight business trip during the middle of the week. Contrary to the weather forecast, it snowed five inches on the night the defendant was gone. The next morning, the plaintiff walked to work along the same busy major street. She decided to walk in the street, as it had been plowed but the sidewalks were still covered with snow in spots where residents had neglected to shovel. When the plaintiff walked around the defendant’s car at around 8:00 a.m., she was hit by a city bus and injured.
The plaintiff has sued the defendant for negligence for her injuries. The jurisdiction recognizes pure comparative negligence.
Is the plaintiff likely to prevail?
A) No, because the defendant’s act did not proximately cause the plaintiff’s injuries.
B) No, because the plaintiff’s negligence contributed to her injuries.
C) Yes, because the defendant’s violation of the ordinance amounts to negligence per se.
D) Yes, because the jurisdiction recognizes pure comparative negligence.
A) No, because the defendant’s act did not proximately cause the plaintiff’s injuries.
Proximate cause: Plaintiff’s harm was a reasonably foreseeable consequence of the Defendant’s conduct
Here, the plaintiff would not have been hit by a city bus and injured but for the defendant leaving his car parked on a major street after it had snowed five inches (actual causation). However, the pedestrian’s harm was not reasonably foreseeable since there was no snow in the weather forecast and parking on a major street does not generally increase the risk that a pedestrian would be hit by a vehicle (no proximate cause).
Note: In pure comparative negligence jurisdictions, P’s recovery for negligence is reduced, not barred, if P failed to use reasonable care for his/her own protection
A gym owns 10 treadmills. Eight of the treadmills are newer, fully functional models while the other two treadmills are older models that abruptly slow down without warning. The gym continues to use the older treadmills due to the high demand for treadmills at the club, and no gym member has been injured using them.
While using one of the older treadmills, a gym member’s headphones slipped off her head and fell toward the treadmill’s belt. The member reached down to grab the headphones to prevent them from getting caught in the belt. As she reached down, the treadmill abruptly slowed down, causing her to slam into the treadmill’s handrails and suffer bruised ribs as a result.
If the member sues the gym for negligence for her injuries, will the member likely prevail?
A) No, because the injury was not caused by the abrupt slowdown.
B) No, because the member was not using the treadmill properly.
C) Yes, because the gym is strictly liable for her injuries.
D) Yes, because the member’s bruised ribs were a foreseeable injury.
D) Yes, because the member’s bruised ribs were a foreseeable injury.
Negligence: duty, breach, cause, damages
Causation requires actual cause (but for) and proximate cause (reasonably foreseeable)
Note: Strict products liability is imposed on commercial sellers of a defective product (e.g., manufacturers, distributors, retailers)—not a service provider like a gym.
A skier was skiing down a mountain at a ski resort. As the skier turned a corner, she noticed an injured snowboarder lying unconscious and half-covered with snow at the edge of a difficult trail. Due to her reasonable speed, the skier was able to approach the snowboarder and stop without hitting him. She saw that he appeared to have suffered a compound fracture of his leg. The skier also recognized that the snowboarder was in grave peril, but because she had no cell phone and did not know how to administer first aid, she simply continued to ski down the mountain.
Less than an hour later, another skier came down the trail. Because he was skiing at an unsafe speed, he was unable to stop and struck the snowboarder. The injured snowboarder suffered a concussion from the crash. It was later established that the snowboarder had broken his own leg when he recklessly tried to do a flip on the difficult trail.
If the snowboarder sues the first skier to recover damages for his concussion, what is the first skier’s best defense?
A) The first skier took no action to place the snowboarder in greater peril than when she found him.
B) The second skier had the last clear chance to avoid injury to the snowboarder.
C) The second skier’s negligence caused the snowboarder’s concussion.
D) The snowboarder recklessly put himself in peril by trying to do a flip on a difficult trail.
A) The first skier took no action to place the snowboarder in greater peril than when she found him.
Defendants generally have no duty to aid a plaintiff at risk of physical harm UNLESS the defendant’s conduct created that risk.
Note: Although the second skier’s negligence caused the snowboarder’s concussion, this is not the first skier’s best defense* because it merely helps to establish a claim against the second skier—not rebut the claim against the first skier
A professional football player injured his knee during a football game. The player delayed seeking medical attention for his injury for several days, which aggravated that injury. When the player finally sought treatment from an orthopedic surgeon, she negligently performed the operation on the player’s knee. After surgery, the player failed to follow the surgeon’s post-operative instructions. All of the player’s actions, coupled with the surgeon’s negligence, contributed to a permanent injury to the player’s knee.
As a consequence of the injury, the player’s ability to continue to play professional football has been adversely affected and the player has suffered emotional distress which has not manifested itself as a physical injury. The player sued the orthopedic surgeon for damages attributable to the surgeon’s medical treatment of the player’s knee injury.
Assume that each factor affecting the player’s injury can be quantified as a dollar amount with reasonable certainty.
If the player sues the surgeon for negligence, which of the following factors would the fact finder NOT consider in determining the player’s damages?
A) The player’s delay in seeking medical attention for his injury for several days.
B) The player’s emotional distress.
C) The player’s failure to follow the surgeon’s post-operative instructions.
D) The player’s inability to continue playing professional football due to his injury.
A) The player’s delay in seeking medical attention for his injury for several days.
Negligence case for damages, plaintiff can recover compensatory damages based on:
(1) the plaintiff’s initial physical harm,
(2) any subsequent harm traceable to that initial harm, and
(3) steps taken to mitigate the initial harm.
Note: plaintiff’s actions prior to the defendant’s negligent act are not a factor in determining damages.
A famous singer hired a bodyguard to protect her before and after her music concerts. Their employment contract authorized the bodyguard to use reasonable force to protect the singer from any dangerous situations that put her safety at risk. However, the singer also told the bodyguard that she preferred that he use a reasonable amount of force to get fans out of the way only if they are within a one-foot radius of her. Otherwise, the singer told him he should just help her maneuver through crowds and watch for anyone who might try to harm her.
After one of her concerts, the bodyguard guided the singer through an area heavily crowded with her fans. Most fans moved out of the way. However, one man kept pushing his way toward the singer and would not relent when the bodyguard politely asked him to move back. The man ignored the bodyguard and continued to push toward the singer. When the man was three feet away from her, the bodyguard punched the man in the face.
The man has filed a claim against the singer, claiming that she is liable for the battery committed by her bodyguard.
If the jury determines that the bodyguard committed battery against the man, which party is likely to prevail?
A) The man, because the bodyguard’s conduct was within the scope of his employment.
B) The man, because the singer will always be liable for any tortious conduct by the bodyguard as force is inherent in the job.
C) The singer, because she gave the bodyguard specific instructions that he did not follow.
D) The singer, because she is not liable for the intentional tort of the bodyguard.
A) The man, because the bodyguard’s conduct was within the scope of his employment.
Employer is liable for employee’s intentional torts IF
1) reasonable force is inherent during employee’s job OR 2) employee is authorized to act on behalf and has position that provides an opportunity to commit the tort
Here, the use of reasonable force to protect the singer was inherent in the bodyguard’s job, so the bodyguard’s conduct was within the scope of his employment
In a mall parking lot, two drivers simultaneously backed up and struck the other’s car. Neither driver suffered physical injuries, but the plaintiff’s luxury sedan sustained $10,000 in damage and the defendant’s oversized pickup truck sustained $1,000 in damage. The plaintiff filed a negligence action against the defendant to recover for the damage to her sedan. In his answer, the defendant filed a counterclaim to recover for the damage to his truck.
At trial, the jury determined that the plaintiff was 70% at fault and the defendant 30% at fault for the accident and that both parties are entitled to recover damages. The applicable jurisdiction has enacted a pure comparative-fault statute.
What is the total amount of damages that the plaintiff can recover?
A) Nothing.
B) $2,300.
C) $3,000.
D) $9,000.
B) $2,300
Pure comparative fault: P and D are both entitled to damages and P’s recovery is offset by D’s recovery
Here, the jury determined that the plaintiff was 70% at fault and the defendant 30% at fault for the accident. Since this is a pure comparative-fault jurisdiction, the plaintiff’s recovery will be reduced by her proportionate share of fault ($10,000 - $7,000 = $3,000)
*And the defendant’s recovery will be reduced by his proportionate share of fault ($1,000 - $300 = $700)
Since the jury determined that both parties are entitled to recovery, the plaintiff’s recovery will be reduced by the defendant’s recovery ($3,000 - $700), for a total recovery of $2,300.
A woman was driving at 55 miles per hour through a residential area in her pickup truck even though the posted speed limit was 40 miles per hour. Suddenly, a man driving a sport utility vehicle (SUV) negligently pulled out from an alley and in front of the woman. The woman was able to slow down and veer away from the SUV as soon as she saw it, but the two vehicles collided. Neither driver suffered serious physical injuries, but the accident caused $10,000 in damage to the woman’s truck and $1,000 in damage to the man’s SUV.
The woman filed a negligence action against the man to recover for the damage to her truck. In his answer, the man filed a counterclaim to recover for the damage to his SUV. At trial, the jury determined that the woman was 25% at fault and the man 75% at fault for the accident. Traditional defenses based on the plaintiff’s conduct apply in the jurisdiction.
What is the total amount of damages that the woman can recover?
A) Nothing.
B) $7,250.
C) $7,500.
D) $9,000.
A) Nothing.
Traditional CL rule: Any contributory negligence on P’s part is a complete defense/bars P’s recovery of damages
A manufacturer of hot water heaters contacted a supplier of a new type of plastic resin about using the resin to line the water heaters. The supplier gave the manufacturer technical advice about how to mold the resin lining for the hot water tank. The supplier told the manufacturer that, in order to withstand the temperatures specified by the manufacturer, the resin would need to be at least one-inch thick. The manufacturer ordered the resin from the supplier but made the liner for the hot water tanks only one-half-inch thick using the supplier’s resin.
A plumber purchased a hot water heater made by the manufacturer from a local plumbing supply store and installed it in a homeowner’s residence. The homeowner used the tank for a short time during which, due solely to the lining of the tank being too thin, the tank melted, allowing the chlorine and flouride in the water to come in contact with and corrode the metal tank. One day, as a consequence of the compromised tank, scalding water burst out of the tank, causing the homeowner to suffer severe burns as he tried to shut off the tank and substantial property damage when he was unable to do so.
The homeowner initiated a strict products liability action against the manufacturer of the water tank, the resin supplier, and the local plumbing store for damages suffered as a consequence of the melted hot water tank.
The manufacturer of the water tank admitted liability and settled with the homeowner. Of the remaining parties, which is likely to be held liable for the homeowner’s injuries and property damage?
A) Both the store and the supplier.
B) The store only.
C) The supplier only.
D) Neither the store nor the supplier.
B) The store only.
Strict liability to suppliers when
1) Component is defective OR
2) supplier substantially participated in the process of integrating the component into the product’s design and the integration caused that product to be defective
Strict liability is imposed even if the commercial seller did not create or know about that defect.
Here, the hot water heater tank’s thin lining caused the tank to corrode, which allowed scalding water to burst out of it. The homeowner suffered injuries and damage to his property when he attempted but failed to shut off the tank. Although the store neither created nor knew about this manufacturing defect, it existed at the time the store sold the water heater to the plumber for installation in the homeowner’s residence.
A kayaker on a lake did not notice when a boat towing a water skier approached him from behind. As the boat passed the kayaker, the boat driver thought it would be funny to swerve quickly around the kayak, causing a violent wake in that area of the lake that he hoped would knock the water skier into the water. The boat driver quickly turned in front of the kayak, alarming the kayaker and causing a wave that almost flipped the kayak. In attempting to keep his balance, the water skier behind the boat involuntarily struck the back corner of the kayak. The impact, combined with the wake, flipped the kayak. The boat driver saw the incident but did not stop. The kayaker was terrified when his kayak flipped over, and he was trapped under the kayak for a few moments before he was able to free himself. He subsequently had to see a therapist to get over his new fear of water after suffering nightmares from the incident.
A) Only intentional infliction of emotional distress.
B) Only negligent infliction of emotional distress.
C) Battery and intentional infliction of emotional distress.
D) Battery and negligent infliction of emotional distress.
If the kayaker files suit against the boat driver, for which of the following might the kayaker recover?
D) Battery and negligent infliction of emotional distress.
Under the zone-of-danger theory, NIED liability arises when:
1) the defendant’s negligent conduct
2) placed the plaintiff in danger
3) of immediate bodily harm and
4) that danger caused the plaintiff serious emotional distress.
Note: doctrine of transferred intent generally does not apply to intentional infliction of emotional distress (IIED).*
And even if it did, the boat driver would not be liable for IIED because his conduct, though reckless, was not extreme and outrageous
Two actors playing a hero and a villain in an action movie were acting out a fistfight. Both the hero and the villain understood that, due to the violent nature of action scenes, punches and kicks were frequently used. During the fistfight, as directed by the script, the hero punched the villain in the stomach. The punch caused the villain pain but it did not cause any permanent injury. Both actors had caused similar injuries to one another during the shooting of the movie.
If the villain sues the hero for battery as a result of the punch, which of the following would be the hero’s strongest defense?
A) The hero did not use force that exceeded the villain’s consent.
B)The hero was instructed by the movie script to punch the villain during the scene.
C) The villain struck the hero in a similar way while filming the movie.
D) The villain was not seriously injured by the hero’s punch.
A) The hero did not use force that exceeded the villain’s consent.
consent is a defense to battery when the defendant reasonably believed—based on the plaintiff’s conduct or custom—that the plaintiff actually consented to the contact.
Note: Although the hero was instructed by the movie script to punch the villain during the scene, the hero would have been liable for battery had the villain not consented to being punched.
A man knew that his brother’s most prized possession was his favorite hunting rifle. The man, who was very competitive with his brother, believed that he would achieve more hunting success with a rifle as nice as his brother’s. One day when the brother was at work, the man went to the brother’s house and borrowed the rifle. The man took it hunting, fired one shot, and shot an eight-point buck. He returned the rifle to the brother’s house before the brother returned home from work. Later that night, the man told his brother that he had proved his theory about the rifle, and he explained what he had done. The brother was furious, and he sued the man for trespass to chattels. At trial, the brother testified that he was upset about the man’s use of his rifle. He did not provide other evidence of damages.
Is the brother likely to prevail on his claim?
A) No, because the brother cannot show that the man’s interference caused him actual damages.
B) No, because the man borrowed the rifle and did not demonstrate the requisite intent.
C) Yes, because the brother need not prove actual damages.
D) Yes, because the man used the brother’s chattel.
A) No, because the brother cannot show that the man’s interference caused him actual damages.
Trespass to Chattels: Intermeddling/Use
Plaintiff must prove actual damages through one of the following:
1) actual harm to the chattel (i.e., impairment of its physical condition, quality, or value)
2) substantial loss of use of the chattel or
3) bodily harm to the plaintiff
Here, the man neither damaged the rifle (no actual harm to chattel) nor caused the brother to suffer bodily harm. And the brother did not substantially lose use of the rifle since the man used it while the brother was at work.
