Miss MBE Qs Flashcards
INTENTIONAL TORTS INVOLVING PERSONAL INJURY
Assault:
Two high school students, dressed as robbers for Halloween, were playing tag and chasing each other in the street 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!” Before the student could touch her, 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 prevail in her suit against the student?
A. Yes, because the woman was placed in reasonable apprehension of imminent battery.
B. Yes, because the student’s words, coupled with the act of jumping from the shrub, constituted an overt act.
C. No, because the woman sustained no damages for which she could collect.
D. No, because the student did not have the necessary intent to commit a tort.
Answer choice D is correct. An assault occurs when the defendant’s intentional overt act causes the plaintiff to experience reasonable apprehension of an imminent battery. The act must be volitional and performed with intent to place someone in apprehension of imminent harm or offensive contact. The doctrine of transferred intent applies to the tort of assault. Here, although the student startled the woman, who was reasonably frightened by the student’s actions, the student lacked tortious intent. Had the student intended to assault or commit battery against another person, the doctrine of transferred intent would have applied, but the facts do not suggest that the student had any intent to commit any sort of tort, and was merely playing a game of tag with a friend.
HARMS TO PERSONAL PROPERTY & LAND
Trespass to Chattels:
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 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 explained what he had done. The brother was furious, and 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 damages.
B. No, because the man returned the rifle to the brother.
C. Yes, because the man used or intermeddled with the brother’s chattel.
D. Yes, because the brother need not prove actual damages.
Answer choice A is correct. A defendant is liable for trespass to chattels if he intentionally interferes with the plaintiff’s right of possession by either dispossessing the plaintiff of the chattel or using or intermeddling with the plaintiff’s chattel.
In the case of dispossession, a plaintiff must prove damages by either the actual damages caused by the interference or the loss of use.
In the case of use or intermeddling, the plaintiff must show actual damages. In this case, the brother cannot prove he suffered any damages. Accordingly, his claim will likely fail.
NEGLIGENCE
Duty:
An on-duty firefighter was injured when he fell down as a consequence of poorly-maintained stairs in the common area of an apartment building. The maintenance of the stairs was the responsibility of the owner of the building. The fire was caused by the negligence of an inebriated tenant who had fallen asleep while smoking a cigarette in bed.
Which of the following best describes the likely outcome of the firefighter’s tort claim?
A. The firefighter can recover from either the owner or the tenant.
B. The firefighter can recover from the tenant, but not the owner.
C.The firefighter can recover from the owner, but not the tenant.
D. The firefighter cannot recover from either the owner or the tenant.
Answer choice C is correct. An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent in the job (“firefighter’s rule”). In this case, the firefighter’s injury was caused by the owner’s failure to properly maintain the stairs leading into the apartment building. This injury did not result from a risk inherent in the job and consequently that firefighter can recover from the owner. The firefighter’s rule would, however prevent the firefighter from recovering from the tenant whose negligence caused the fire which, in turn, led to the firefighter presence in the apartment building where the firefighter was injured.
NEGLIGENCE
Vicarious Liability:
A storeowner hired a flooring company to retile the floors in the aisles of the store. During the retiling, the employees of the flooring company clearly roped off the area where the retiling was being performed and marked the retiling area with signs, as well. On the last day of the retiling, an employee of the flooring company finished up the last area of tile. The area, however, needed a couple of hours to dry and set before it would be safe to walk on it. Nonetheless, the employee removed the ropes and signs from the last area and left the store. A customer walked over the unmarked area and tripped because the tiles were slightly uneven, as they had not yet set into place. The customer broke his wrist as a result of tripping on the uneven tiles. In an action brought against the employee, the flooring company, and the store, the trier of fact found that the employee was liable in negligence for the damages incurred as a consequence of the broken wrist and the flooring company was vicariously liable for such damages.
Can the storeowner also be vicariously liable for these damages?
A. Yes, because the customer suffered injury due to the negligence of an employee.
B. Yes, because the storeowner’s duty to keep the premises safe could not be delegated.
C. No, because the flooring company was an independent contractor.
D. No, because the employee was hired by the flooring company, not the storeowner.
Answer choice B is correct. A person who hires an independent contractor is not generally vicariously liable for the torts committed by an independent contractor. However, a person who hires an independent contractor remains vicariously liable for the breach of non-delegable duties, such as the duty of a shopkeeper to keep premises that are open to the public in a reasonably safe condition. In this case, that duty was breached and consequently the storeowner is vicariously liable for the negligence of the employee of the flooring company, even though the flooring company was an independent contractor.
NEGLIGENCE
Defenses to Negligence:
A man was involved in a serious car accident with another driver and a motorcyclist. The man brought an action for negligence against the driver and the motorcyclist. After a lengthy trial, the jury concluded that the man’s total damages were $200,000. The jury found the man to be 50% at fault for the accident. The driver was found to be 30% at fault and the motorcyclist was found to be 20% at fault. The jurisdiction has adopted pure comparative liability and joint and several liability.
Which of the following is the maximum amount the man may recover from the motorcyclist?
A. Nothing.
B. $40,000
C. $100,000
D. $200,000
Answer choice C is correct. In jurisdictions that have adopted the doctrine of pure comparative negligence, a plaintiff’s contributory negligence is not a complete bar to recovery. Instead, the plaintiff’s full damages are calculated by the trier of fact and then reduced by the proportion that the plaintiff’s fault bears to the total harm. Under the doctrine of joint and several liability, each of two or more defendants who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm. In this case, the total damages were $200,000. The man was found to be 50% at fault. Thus, the man can recover a total of $100,000. Because the jurisdiction follows joint and several liability, the man can recover the entire $100,000 from the motorcyclist.
PURE COMPARATIVE L: Answer choice A is incorrect because a plaintiff in a pure comparative liability jurisdiction can always recover, unless he is found to be 100% at fault.
SEVERAL L: Answer choice B is incorrect because $40,000 represents the motorcyclist’s share of the total damages. This would be the correct answer if the jurisdiction applied several—rather than joint and several, liability.
STRICT LIABILITY
Abnormally Dangerous Activities:
A small town is well known for its abundance of silver, and many residents of the town are employed as underground miners. Warning signs are posted in various locations outside of and within the mines, including in front of dangerous equipment, warning of the dangerous nature of the work. The mines use the most current methods of extracting the silver, including modern conveyor equipment, and they recently passed an inspection conducted by engineers and mining experts to ensure the silver extraction is completed as safely as possible. One day, a journalist sneaked into the mine to investigate a local news station’s allegations of labor violations at the mines. After being at the mine for a few hours, the journalist realized all miners are adequately trained, and all equipment and practices seemed to follow the most accepted safety standards. Instead of walking back the length of the tunnels to return to ground level, he decided to ride on a moving conveyor belt used to return silver and equipment to the surface. When he did so, his shoelace got caught in the conveyor belt, which then caught his foot. His foot was so severely mangled that it had to be amputated. He sued the company that owns the mines for his injury. Will the mining company be strictly liable for this accident?
A. Yes, because mining is an abnormally dangerous activity.
B. Yes, because the mining company knows or should have known that non-employees might be present at the mines.
C. No, because this is not the type of possible harm that made the activity subject to strict liability.
D. No, because the mines recently passed safety inspections.
Answer choice C is correct. A defendant engaged in an abnormally dangerous activity will be held strictly liable for personal injuries and property damage caused by the activity, regardless of the precautions taken to prevent the harm. An abnormally dangerous activity is one that (i) creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised; and (ii) is not commonly engaged in. Strict liability for an abnormally dangerous activity exists only if harm that actually occurs results from the risk that made the activity abnormally dangerous in the first place. As is the case with superseding causes in negligence, the defendant’s liability can be cut off by unforeseeable intervening causes. Here, the harm expected by mining might include damage resulting from the use of explosives, equipment used in a customary way, or even the caving in of mines. The unforeseeable use of the conveyor equipment as a means of human transport of an unauthorized and unforeseeable trespasser, along with the resulting injury, would likely absolve the company of liability.
DEFAMATION, INVASION OF PRIVACY, & BUSINESS TORTS
Invasion of Privacy:
A local sporting goods store created an advertisement that aired only on local television. The advertisement featured a video of the goods offered by the store along with phrases regarding the quality of the products, such as, “Best in the Area!” One portion of the advertisement featured a display of the boxing equipment offered by the sporting goods store. At the same time, a voice said, “If you want to be the best, you have to train like the best.” This slogan has been used by and is associated with a well-known professional boxer who grew up and continues to live in the area. The slogan appears on the boxer’s boxing shorts, and the voice in the advertisement sounded very much like that of the boxer. The advertisement was made without the boxer’s permission. When the boxer learned of the advertisement, he immediately brought an action against the sporting goods store for misappropriation of the right to publicity. He can establish that the advertisement has caused him the loss of endorsement income from another sporting goods store.
Will the boxer prevail?
A. No, because the advertisement did not use the boxer’s name or picture.
B. No, because the advertisement was only shown on local television.
C. Yes, because the boxer can prove special damages.
D. Yes, because the boxer did not consent to the advertisement.
Answer choice D is correct. Misappropriation of the right to publicity is based upon the right of an individual to control the commercial use of his own identity. The plaintiff must prove (i) the defendant’s unauthorized appropriation of the plaintiff’s name, likeness, or identity, (ii) for the defendant’s advantage, commercial or otherwise, (iii) lack of consent, and (iv) resulting injury. Frequently, commercial appropriation cases involve the use of the plaintiff’s name or picture, but this is not required. A television or radio production may simply mimic a plaintiff’s distinctive vocal patterns in order to incur liability. In this case, the sporting goods store used the boxer’s well-known slogan and mimicked his voice in their advertisement in order to gain more business. The advertisement was made without the boxer’s consent.
Answer choice C is incorrect. While the boxer’s economic loss clearly qualifies as special damages, special damages are not required to be established in a misappropriation of the right to publicity action.
INTENTIONAL TORTS INVOLVING PERSONAL INJURY
Battery:
A plaintiff was on a crowded subway train during rush hour. The subway line was undergoing significant renovations, resulting in frequent, sudden stops by the subway trains. The plaintiff was standing in the middle of one of the subway cars and holding onto a pole for stability. The defendant, also standing in the subway car, was texting on his cell phone and not holding onto anything. The subway train came to a sudden stop causing the defendant to fall toward the plaintiff. The defendant lightly grabbed the plaintiff’s arm to stop himself from falling completely over. The plaintiff did not like being touched by anyone as she had been in an abusive relationship in the past. Although she was not injured by the defendant’s conduct, the plaintiff subsequently brought an action for battery against the defendant.
Will the plaintiff prevail?
A. No, because the plaintiff consented to the defendant’s contact.
B. No, because the plaintiff did not suffer any actual harm.
C. Yes, because the defendant failed to exercise reasonable care.
D. Yes, because the defendant intentionally grabbed her arm.
Answer choice A is correct. There is no battery if the plaintiff consented to the act, either expressly or by virtue of participating in a particular event or situation (such as being bumped on a crowded subway). In this case, the plaintiff chose to ride a crowded subway train. By making that decision, she implicitly consented to the ordinary contacts that can occur in that situation. The defendant lightly grabbing her arm to prevent himself from falling is within the type of contact that is typical on a crowded subway train. In addition, although the plaintiff found the contact offensive, a contact is only offensive when a person of ordinary sensibilities (i.e., a reasonable person) would find the contact offensive (objective test).
Answer choice D is incorrect. The fact that the defendant intentionally grabbed the plaintiff’s arm to prevent his fall is not enough to impose liability for battery. Here, the contact was neither harmful nor offensive. In addition, the plaintiff impliedly consented to the contact.
INTENTIONAL TORTS INVOLVING PERSONAL INJURY
Battery:
A plaintiff was a very smart and successful high school student. He was also, unfortunately, the victim of some teasing by the other boys because he was physically weak and clumsy. In class one day, the defendant, one of the other boys, decided to pester the plaintiff by throwing a paper airplane at the plaintiff when the teacher was not looking. When the plaintiff tried to duck out of the way of the paper airplane, he awkwardly fell off his chair and hit his head on the desk, resulting in a concussion. The plaintiff brought a suit for battery against the defendant.
Of the following, which would be the most important matter for the plaintiff to prove?
A. That it was against school rules to throw paper airplanes in class.
B. That the defendant intended to do him physical harm.
C. That he did not consent to being pestered in this way.
D. That his own weakness and clumsiness did not contribute to his injury.
Answer choice C is correct. There is no battery if the plaintiff consented to the act, either expressly or by virtue of participating in a particular event or situation. In this case, the facts do not indicate that the plaintiff expressly consented to the defendant’s conduct. Similarly, the plaintiff did not consent to having objects thrown at him while in class merely by being present in the classroom.
Answer choice A is incorrect because although the school rules would be relevant, they would be relevant only as evidence of whether the plaintiff did or did not implicitly consent.
Answer choice B is incorrect because the tort of battery does not require a showing that the defendant intended to cause physical injury.
Answer choice D is incorrect because the tort of battery entails liability for any harm even if the harm is worse than anticipated because of the weakness or clumsiness of the plaintiff.
HARMS TO PERSONAL PROPERTY & LAND
Trespass to Chattels:
A man and his neighbor were involved in an increasingly serious dispute. One afternoon, the man backed his car out of his driveway, and headed down the street past the neighbor’s house. Suddenly, the man heard two “pop” sounds coming from his right. Looking in that direction, the man saw his neighbor standing on his porch, tossing a gun into the bushes. The man drove away as quickly as possible. Once he was a safe distance away, he got out of his car and surveyed the damage. He immediately noticed a bullet hole in the front right fender. Later, he repaired his vehicle, at a substantial cost. Based on the foregoing facts, which intentional tort claim by the man is most likely to result in the greatest monetary recovery?
A. Intentional infliction of emotional distress
B. Conversion
C. Assault
D. Trespass to chattels
Answer choice D is correct. A defendant is liable for trespass to chattels if he intentionally interferes with the plaintiff’s right of possession by either dispossessing the plaintiff of the chattel or using or intermeddling with the plaintiff’s chattel, and causes damage. Here, the neighbor intermeddled with the man’s chattel (i.e., his car) by firing shots that caused damage to the car. Furthermore, punitive damages may be available, as the neighbor’s conduct was willful and wanton.
HARMS TO PERSONAL PROPERTY & LAND
Nuisance:
A chef had long operated a restaurant in a building leased on a yearly basis from the owner. In addition to seating within the building, the restaurant also had outdoor seating on a patio in the back of the building, which was permitted under the terms of the lease. Across the alley from the restaurant, a private residence was sold. The buyer, who occupied the premises, had four properly licensed dogs, the maximum number permitted by local ordinance. The buyer frequently permitted the dogs to run free within his fenced yard where the dogs, in addition to barking incessantly, would urinate and defecate. The restaurant experienced a significant decrease in business attributable to the presence of the dogs. Without contacting the buyer, the chef initiates a lawsuit that alleges that the dogs constitute a private nuisance. Which of the following is the buyer’s best defense?
A. The chef did not own the property on which the restaurant operated.
B. The chef did not suffer a physical harm from the presence of the dogs.
C. The chef had not tried to resolve the matter before filing the action.
D. The buyer had acquired the dogs for his personal protection.
Answer choice D is correct. To establish a private nuisance, the inference with the use or enjoyment of another individual’s property must be substantial and unreasonable. The interference is deemed unreasonable if the injury caused by the defendant outweighs the usefulness of his actions. Here, if the buyer acquired the dogs for the purpose of protection, the utility of the dogs to the defendant would be bolstered.
HARMS TO PERSONAL PROPERTY & LAND
Nuisance:
A plastics manufacturer opened a plant in a rural area. As a byproduct of the manufacturing, the plant emitted a harmless gas. The gas was odorless to all but a few individuals with a rare olfactory disorder. A few years after the plant opened, a man purchased a house near the plant. Soon after, the man developed the rare olfactory disorder. The odor of the gas caused the man to suffer from headaches and nausea. The man brought an action against the plastics manufacturer for nuisance, seeking to enjoin the plant’s activity.
Will the man’s action be successful?
A. No, because the gas emissions would not be considered offensive to an average person in the community.
B. No, because the man moved to the area after the plant was already in operation.
C. Yes, because the man suffered harm different in kind from that of the public at large.
D.Yes, because the gas emissions substantially interfered with the man’s use and enjoyment of his home.
THRESHOLD QUESTION - IS THE SUIT PUBLIC OR PRIVATE? (public harmful to all, special to you. private measured by reasonable standard)
Answer choice A is correct. A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual’s use or enjoyment of his land. A substantial interference is one that would be offensive, inconvenient, or annoying to a normal, reasonable person in the community. A person with special sensitivities can recover only if the average person would be offended, inconvenienced, or annoyed. In this case, only persons with rare olfactory conditions could smell the otherwise harmless gas emitted by the plant. Because the gas emissions would not be offensive to a normal, reasonable person in the community, the interference is not substantial and thus the man’s action will fail.
NEGLIGENCE
Standard of Care:
The owner of an abandoned building in an urban section of town knew that many homeless people were staying in the building for shelter. Because he sympathized with their plight, he decided not to have them removed from the building and left the building in its current state, as he had no plans to remodel the building. The owner knew the building had dilapidated and uneven floors but never posted signs or informed those staying there of the uneven floors. A homeless man tripped on the uneven floor and sprained his ankle. A legal aid attorney filed suit against the owner on behalf of the injured man. The owner defended on the basis that he had no obligation to take action to provide a safe environment to the man. Under the Restatement, is the defense outlined by the owner likely to be successful?
A. Yes, because the floors did not involve a risk of serious harm or risk of death.
B. Yes, because the owner did not have a duty to protect these trespassers.
C. No, because the owner had a duty to protect the man from unsafe conditions.
D. No, because the owner did not prohibit the people from entering the building.
Answer choice C is correct. Landowners owe a duty toward discovered or anticipated trespassers only to warn or protect them from concealed dangerous artificial conditions. But here, the owner’s knowledge of the homeless population in the building and his acquiescence in their presence converts them to licensees, as they essentially entered his building with his implied permission, so he must do more than warn. Therefore, according to the Third Restatement, the owner should have exercised reasonable care to prevent harm to the entrants posed by artificial conditions (such as the uneven floors). Here, the owner should have exercised reasonable care to ensure the safety of the building, as he knew and impliedly approved of the entrants being in the building
NEGLIGENCE
Standard of Care:
A homeowner built his home on a parcel of land that had previously been a de facto playground for middle-school children in the neighborhood. Someone had hung swings from the branches of some of the trees on the property, and children had played on the swings for years. The homeowner removed the swings and warned any children who entered his property that the land was private property and that they were trespassing. The property had been landscaped to blend in with its natural surroundings, and it contained several shallow reflecting ponds, as well as lush shrubs and trees. Because of the number of ponds and the prohibitive cost of fencing each pond, the homeowner did not install fences or other barriers, though he did post prominent warning signs near every pond. The entire landscaped area was lit with solar lanterns, and the warning signs were clearly visible day and night. One day, a group of children crossed the property to get to the old playground area. On the way there, they saw a pond and decided to play in the water. Despite the shallow water, one of the children drowned. The family of the child sued the homeowner for negligence under the attractive nuisance doctrine. Is the suit likely to be successful?
A. No, because the homeowner removed the swings from his property.
B. No, because the homeowner posted warnings on the property.
C. Yes, because the homeowner could have placed fences around the ponds.
D. Yes, because having ponds subjects a landowner to strict liability.
Answer choice B is correct. Under the attractive nuisance doctrine, a landowner may be liable for injuries to children trespassing on the land if: i) an artificial condition exists in a place the owner knows or has reason to know children are likely to trespass; ii) the owner knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children; iii) the children, because of their youth, do not discover or cannot appreciate the danger presented by the condition; iv) the utility to the landowner of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children; and v) the landowner fails to exercise reasonable care to protect children from the harm. Here, the homeowner knew children were trespassing on his land and had an obligation to maintain the land and eliminate the danger. It would have been a great burden for the homeowner to place fences around all of his ponds, and the risk of death or serious bodily harm from the shallow ponds was minimal. Instead, the homeowner posted well-lit warning signs near every pond. Under the circumstances, the homeowner exercised reasonable care.
NEGLIGENCE
Standard of Care:
A defendant purchased property on a hilltop with a beautiful view of the city. The prior owner of the property told the defendant that she had allowed local children to climb up the hill and take in the view. The defendant decided to build a cabin on the property. Before the defendant began construction, he installed a fence around the property and posted several “NO TRESPASSING” signs. Nonetheless, the plaintiff, a nine-year-old boy, ignored the signs, climbed the fence, and went on the property to enjoy the view. While walking on the crest of the hill, the plaintiff saw a wooden spool six feet in diameter on which had been coiled cables for supplying the house with electricity. The plaintiff climbed on the spool to get a better view. The spool tilted suddenly and the plaintiff fell off and tumbled down the hill, suffering severe injuries as a consequence.
Could the plaintiff recover for his injuries under the attractive nuisance doctrine?
A. Yes, but only if he can show that the defendant failed to exercise reasonable care.
B. Yes, because the defendant knew that children were likely to trespass on his property.
C. No, because the plaintiff had not been attracted to the property by the object that caused his injuries.
D. No, because the defendant had not given him permission to enter the property.
Answer choice A is correct. Under the “attractive nuisance” doctrine, a land possessor may be liable for injuries to children trespassing on the land if: (i) an artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass, (ii) the land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children, (iii) the children, because of their youth, do not discover or cannot appreciate the danger presented by the condition, (iv) the utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children, and (v) the land possessor fails to exercise reasonable care to protect children from the harm. In this case, there was a large wooden spool, which was an artificial condition on his hilltop property where he knew children were likely to trespass due to his conversation with the prior owner. This spool posed a risk of serious bodily injury to children. If the plaintiff is able to show that the defendant failed to exercise reasonable care to protect children from the spool, then the plaintiff can likely recover for his injuries.
NEGLIGENCE
Standard of Care:
A bus company operates routes between major cities. These buses are popular with students because they are inexpensive and reliable. The bus company does not have bus stations, but picks up and drops off passengers at designated, well-lit public parking areas. The plaintiff, a 20-year-old female college student, recently rode the bus. On that occasion, however, heavy traffic threatened to delay the bus, so the driver decided to let the passengers off at an unlit spot about a half-mile from the designated drop-off lot. While walking from this spot to the designated drop-off lot where her ride was waiting, the plaintiff was attacked and robbed by an unknown assailant. The plaintiff brought an action for negligence against the bus company.
Could the plaintiff recover from the bus company for her injuries?
A. Yes, if she can demonstrate that the driver failed to meet the relevant standard of care.
B. Yes, because common carriers are strictly liable for injuries to passengers.
C. No, because the intervening criminal conduct of the assailant severs the chain of causation.
D. No, because the bus company no longer owed the plaintiff a duty of care once she got off the bus.
Answer choice A is correct. In order to recover for negligence, the plaintiff must prove duty, breach, causation, and damages. If she can establish the bus driver’s decision to drop her off at a different, dimly-lit lot constituted a failure to meet the relevant standard of care, then the plaintiff can recover from the bus company for negligence.
NEGLIGENCE
Breach or Violation of Duty of Care:
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; soon thereafter, the son became violently ill. At the hospital, the attending physician diagnosed the illness as botulism poisoning, a serious disease which can arise by defects in the manufacturing process of canned foods, or can 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 botulinium bacteria. The consumer sued the large food company 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 comparative negligence standard. The company filed a motion for a directed verdict. How should the trial judge rule on the motion?
A. Deny the motion, because the application of res ipsa loquitur in this case is proper.
B. Deny the motion, because the invocation of res ipsa loquitur shifted the burden of proof and production to the food company.
C. Grant the motion, because the consumer produced no direct evidence of negligence on the part of the food company.
D. Grant the motion, because the doctrine of res ipsa loquitur has been abolished in comparative negligence jurisdictions.
Answer choice C is correct. Under the traditional standard for res ipsa loquitur, the plaintiff must prove that (i) the accident was of a kind that ordinarily does not occur in the absence of negligence; (ii) it was caused by an agent or instrumentality within the exclusive control of the defendant; and (iii) it was not due to any action on the part of the plaintiff. In the instant case, the botulinium bacteria could have arisen either in the manufacturing process, when the soup can was under the control of the food company, or later, when the soup can was under the control of either the supermarket or the consumer herself. Thus, res ipsa loquitur does not apply, and the consumer’s case cannot survive a directed verdict without direct evidence of negligence on the part of the food company.
NEGLIGENCE
Causation:
A woman told her friend that she believed she had a peanut allergy, although it had not been diagnosed. In an attempt to prove her long-held theory that peanut allergies do not really exist, the friend decided to surreptitiously give the woman some peanuts. The friend invited the woman over for lunch, assuring her that the lunch was peanut-free. In fact, the friend had substituted peanuts for pine nuts in the pesto on their sandwiches. After they finished eating, the friend began to feel guilty and admitted to her plan. When the woman saw hives forming on her arm, she decided to go to the doctor. The doctor told the woman that the hives were likely due to anxiety, but that he would provide an ointment. Due to a mix-up, the doctor ordered the nurse to provide the woman with an antibiotic to which the woman was allergic. The woman suffered a severe reaction to the antibiotic. The woman has sued her friend and her doctor for negligence. The friend has filed a motion to dismiss the claims against her. Is the friend likely to succeed in having the claims against her dismissed?
A. No, because the doctor’s error and the resulting harm were foreseeable.
B. No, because the friend’s actions were the direct cause of the woman’s injuries.
C. Yes, because the doctor’s error was the direct cause of the woman’s injuries.
D. Yes, because the doctor’s error was a superseding cause of the woman’s injuries.
Answer choice A is correct. To succeed on a negligence claim, the plaintiff must prove proximate causation. Proximate cause exists when the defendant’s actions are a direct cause of the plaintiff’s injuries. Or, if an intervening force occurs between the defendant’s act and the plaintiff’s injury, the defendant still may be liable if the intervening force was foreseeable. Medical malpractice is a foreseeable intervening force. In this case, the doctor’s error was foreseeable after the friend intentionally gave the woman a food to which she may have been allergic. Accordingly, the friend was the proximate cause of the woman’s injuries.
NEGLIGENCE
Damages:
A business was founded by two partners. As the business grew, the two partners became increasingly busy. The partnership hired a limousine service, which provided a car and driver, to allow the partners to work en route to meetings. Both partners were on their way to a meeting when the limousine driver negligently ran a red light and crashed the car. One of the partners was not wearing a seat belt and suffered serious injury. The other partner was wearing a seat belt and did not suffer any injuries. The injured partner was unable to work for weeks due to his injuries, resulting in serious disruptions to the business. The partnership sued the limousine service on a negligence theory, alleging that it suffered significant losses due to the absence of the injured partner. The applicable state law recognizes a partnership as a separate legal entity that can sue and be sued. Is the partnership likely to recover in its negligence suit?
A. No, because the business suffered only economic losses, with no personal or property damage.
B. No, because the business may recover only from the driver, not his employer.
C. Yes, because the driver’s negligence caused the business to suffer actual damages.
D. Yes, because the driver owed a duty of care to the business and the individual partners.
Answer choice A is correct. A negligence plaintiff must prove actual injury. A plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover such loss through a negligence action. In this case, the business suffered only economic losses, and thus may not recover.
STRICT LIABILITY
Abnormally Dangerous Activities:
A plaintiff was injured when he fell in the parking lot of a chemical plant. The chemical plant, located in an uninhabited area, stored dangerous toxic chemicals that needed to be specially contained. The chemical plant exercised the utmost care in maintaining and containing the chemicals. At the time of his injury, the plaintiff was walking towards the entrance of the chemical plant. Distracted by his cell phone ringing, the plaintiff stepped into a pothole and twisted his knee. The plaintiff brought a strict liability action against the chemical plant, seeking damages for his injury. The plaintiff can establish that the plant failed to exercise reasonable care in maintaining the parking lot.
Can the plaintiff recover?
A. No, because the chemical plant exercised the utmost care in conducting its storage activities.
B. No, because the plaintiff’s injury did not result from an abnormally dangerous activity.
C. Yes, because the chemical plant didn’t exercise reasonable care in maintaining the parking lot.
D. Yes, because the chemical plant engaged in an abnormally dangerous activity.
Answer choice B is correct. Strict liability for an abnormally dangerous activity exists only if the harm that occurs results from the risk that made the activity abnormally dangerous. In this case, stepping into a pothole caused the plaintiff’s injury. The injury did not result from toxic chemicals escaping from the storage facility (i.e., the risk that made the operation of the chemical plant abnormally dangerous). Therefore, the plaintiff cannot recover in a strict liability action against the chemical plant for the injury to his knee.
PRODUCTS LIABILITY
Strict Products Liability:
The manufacturer of hot water heaters contacted the supplier of plastic resin about using the resin in the manufacturing of the heater. The supplier gave the manufacturer technical advice about how to mold the resin into a 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. The manufacturer designed and made the tank for its hot water heaters three-quarters of an 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. Due solely to the walls of the tank being too thin, the tank melted when used by the homeowner. The homeowner suffered both severe burns as well as substantial property damage as a consequence of the melted tank. The homeowner initiated a strict products liability action against the plastic supplier and the local plumbing store for damages suffered as a consequence of the melted hot water tank. Who will be liable?
A. Both the plastic supplier and the plumbing store
B. The plastic supplier only
C. The plumbing store only
D. Neither the plastic supplier nor the plumbing store
Answer choice C is correct. The plumbing store is liable for the harm caused to the plaintiff by the defective product (i.e., a hot water heater). To be subject to strict liability for a defective product, the defendant must be in the business of selling or otherwise distributing products of the type that harmed the plaintiff. Included as a seller are the manufacturer of the product, its distributor, and its retail seller. As long as the seller is a commercial supplier of the product, the seller is subject to strict liability for a defective product even if the seller was not responsible for the defect in any way. Here, the product is defective due to its design; the walls of the tank were too thin. Although the local plumbing store did not manufacture the defective hot water heater, the store, as a commercial supplier of the product, is strictly liable for it. However, the supplier of the plastic is not liable. The commercial supplier of a component that is integrated into a product during its manufacture is not liable unless the component itself is defective or the supplier substantially participates in the integration process and the integration of the component causes the product to be defective. Here, the plastic resin provided by the supplier was not itself defective, and, although the supplier participated in the integration process, the supplier’s participation did not lead to the defective hot water heater. Had the supplier’s advice been followed, the hot water heater tank would not have melted.
DEFAMATION, INVASION OF PRIVACY, & BUSINESS TORTS
Invasion of Privacy:
A plaintiff is a candidate for state treasurer. The defendant has held a long-standing grudge against the plaintiff. In an effort to dig up dirt on the plaintiff, the defendant hacked into the plaintiff’s personal email account and found lewd pictures of the plaintiff engaging in sexual conduct with a former staff member, as well as email exchanges between the plaintiff and the staff member. The defendant called the plaintiff on the phone and said to the plaintiff, “I hate you. I have always hated you. I just emailed your wife and your two top advisors, telling them that you are an adulterer. And tomorrow, I am going to drive over to your house and punch you right in the nose.”
Which of the following tort doctrines offers the plaintiff the best chance of recovery?
A. Assault
B. Intrusion upon seclusion
C. Public disclosure of private facts
D. Defamation
Answer choice B is correct. The defendant’s act of intruding, physically or otherwise, into the plaintiff’s private affairs, solitude, or seclusion in a manner or to a degree objectionable to a reasonable person establishes liability. In this case, the defendant hacked into the plaintiff’s personal email account. This intrusion would be considered objectionable to a reasonable person. Therefore, the plaintiff would likely recover under this doctrine. Note that the plaintiff need not prove special damages for intrusion upon seclusion. Emotional distress is sufficient.
DEFAMATION, INVASION OF PRIVACY, & BUSINESS TORTS
Defamation:
An animal rights activist writes and publishes a book containing a fictional account of a dog breeding facility located within the activist’s state of residence. The facility in the account raises dogs under inhumane conditions. In a talk at the local library on her book, the activist states that the account is not based on any specific dog breeding facility within the state, of which there are over a hundred, but is typical of all of them. In addition, the activist states that the state dog breeders’ association actively discourages its members from adopting humane practices. A corporation that operates an in-state dog breeding facility brings a defamation action against the animal rights activist in which the state dog breeders’ association, an unincorporated entity, joins. State law permits an unincorporated association to sue and be sued as an entity. The corporation presents uncontroverted evidence that it raises its dogs under humane conditions and the association presents uncontroverted evidence that it actively encourages its members to adopt humane practices. The activist moves for summary judgment as to both plaintiffs. Should the court grant the motion as to either plaintiff?
A. Yes as to both the corporation and the association, because only a natural person can be defamed.
B. Yes as to only the corporation, because the activist’s statement at the library cannot reasonably be understood to refer to the corporation.
C. Yes as to only the association, because the activist’s statement at the library did not constitute slander per se.
D. No as to both the corporation and the association, because the statements about each are false.
Answer choice B is correct. When a defamatory statement is a made about a group, the group must be so small that the statement can reasonably be understood to refer to the plaintiff as a member of the group, unless there is other evidence that the language refers to that particular member. Here, since in-state dog breeders number more than one hundred, the group is too large to permit the inference that the activist was referring to the corporation.
DEFAMATION, INVASION OF PRIVACY, & BUSINESS TORTS
Defamation:
A journalist received information from a credible source that a large corporation had used child labor in foreign countries to produce electronics. The corporation had previously criticized its main competitor for using unethical labor practices in foreign countries. The journalist published an article in a nationally distributed newspaper repeating the charges against the corporation, which resulted in boycotts of the corporation’s products. The corporation sued the journalist for defamation and produced records showing that no child labor was ever used in the production of its products. The journalist’s source testified at trial that she knew the statements she made were false. The journalist testified that the article was based solely on the source’s statements, and that no other research was conducted into the veracity of her statements. He further testified that he believed the source, and never doubted the truthfulness of her information. The trier of fact found the testimony of the source and the journalist to be credible. Is the corporation likely to prevail in its defamation suit against the journalist?
A. Yes, because the journalist repeated the source’s defamatory statement.
B. Yes, because the source acted with malice in making the statement.
C. No, because only an individual, and not a corporation, may maintain a defamation action.
D. No, because the journalist did not act with malice.
Answer choice D is correct. A plaintiff may bring an action for defamation if the defendant’s defamatory language is of or concerning the plaintiff, is published to a third party who understands its defamatory nature; and damages the plaintiff’s reputation. For matters of public concern, the plaintiff must prove fault on the part of the defendant as well as the falsity of the statement. The standard for establishing the defendant’s fault depends on the plaintiff’s status as a public or private figure. A public figure is someone who is known to the general public and includes any person who has voluntarily injected himself into the public eye. If the statement relates to a public figure, the plaintiff must prove actual malice on the part of the defendant, as well as the falsity of the language. Malice means that the defendant knew that the statement or language was false, or he recklessly disregarded its truthfulness. To establish a reckless disregard for the truthfulness of a statement, the defendant must have entertained serious doubts about its truthfulness; mere failure to check facts is not sufficient. In this case, the corporation was a public figure, and thus would need to prove malice. Because the journalist testified credibly that he did not doubt the truthfulness of the statement, the corporation is unlikely to succeed in demonstrating malice, and thus would not prevail in its defamation claim.
