Torts Flashcards
ALA Quizzes, Kaplan Quizzes, Kaplan Qbank, CLS Quizzes
Three friends were driving home together from a local tavern. The driver had not consumed any alcoholic
beverages at the tavern. On their way home, the three friends observed a man wandering haphazardly
across the busy highway. One friend remarked, “I hope that guy makes it home. If he’s not careful, he could get killed.” The driver said, “That’s his problem. I have to get home. I can’t be bothered to stop and help him.” After being dropped off at his home, the friend felt pangs of guilt and decided to go back and help the man that he’d seen. The friend asked his brother, who had not been drinking, to drive back to find and help the man. When the brothers returned to the area where the man had been, they found him lying on the shoulder of the highway, obviously injured. They helped the man into their car and the brother drove the man to the hospital. When they arrived at the hospital, the man was admitted with a broken leg. The leg had been broken when the man was wandering on the highway and was struck by a vehicle which had left the scene. The broken leg was the man’s only injury.
If the man sues the driver of the car the friend had been in on the way home from the tavern for damages for his injuries, will he prevail?
(A) No, because the driver was under no duty to help the man.
(B) No, because the man was involved in an abnormally dangerous activity.
(C) Yes, because a reasonable person would have helped the man.
(D) Yes, because the driver breached his duty to the man.
(A) No, because the driver was under no duty to help the man.
While a man was cutting his front lawn with a rotary power lawn mower, his neighbor was coming home from work. The neighbor was walking past the man’s front lawn when he was hit in the eye with a small rock discharged from the lawn mower. The neighbor lost the use of his eye. The lawn mower had no space for any protective device such as metal netting or a drag plate to prevent the ejection of projectiles such as rocks or pieces of wood.
In a suit for damages based on strict liability against the manufacturer of the mower, will the neighbor prevail?
A. Yes, because he will be able to prove a manufacturing defect.
B. Yes, because the lawn mower was defectively designed.
C. No, because the neighbor is not a proper plaintiff in a strict liability action.
D. No, because the neighbor was negligent in walking on the sidewalk while the lawn mower was being used.
C. No, because the neighbor is not a proper plaintiff in a strict liability action.
A novice rock climber was acquiring all of the equipment he needed to pursue his new favorite hobby. He saw an advertisement for a sale on Steel Strength heavy duty rope at a sporting goods store. The manufacturer’s ad showed a photo of an athletic man standing next to a jagged rock face with a rope tied around his waist in rock-climbing fashion. The ad read: “Steel Strength rope helps me climb where I need to climb and go where I need to go.” The rock climber bought a spool of Steel Strength rope at the store. He didn’t discuss the rope with the sales clerk because, based on the ad, he was confident that it was what he needed. The climber brought the rope on his next climbing excursion. The climber’s large friend, who had also just started climbing, came along, and he borrowed some of the Steel Strength rope. The rope, which really wasn’t designed for supporting even an average-weight person, broke under his weight. He fell from the rock face, landing on a park ranger. The friend broke both of his legs, and the ranger broke her arm. The friend and the park ranger sue the manufacturer in product liability for their injuries.
Which of the following is correct?
A. Neither the ranger nor the friend can prevail, because they were not foreseeable plaintiffs.
B. Neither the ranger nor the friend can prevail against the manufacturer, because the novice climber did not ask the store clerk for help.
C. The ranger cannot prevail against the manufacturer, because she was working at the time of the accident.
D. Both the ranger and the friend can prevail against the manufacturer, because the advertisement created an express warranty.
D. Both the ranger and the friend can prevail against the manufacturer, because the advertisement created an express warranty.
After a power outage, the stoplights at a busy intersection were blinking red for traffic going in every direction. By statute, motorists must come to a full stop at a blinking red traffic signal before proceeding through the intersection. Cars driven by the plaintiff and by the defendant arrived at the intersection at the same time. Due to inattention, neither one stopped for the signal and the cars collided in the intersection.
The plaintiff sued the defendant for his injuries. The trier of fact determined that the plaintiff was more at fault than the defendant.
Will the plaintiff likely recover damages?
A. No, because the plaintiff did not stop at the blinking red light.
B. No, because the plaintiff’s fault was greater than the defendant’s.
C. Yes, if the defendant had the last clear chance to avoid the accident.
D. Yes, even though the plaintiff’s fault was greater than the defendant’s.
D. Yes, even though the plaintiff’s fault was greater than the defendant’s.
On New Year’s Eve, a man negligently hit a woman with his car. The woman was rushed to the hospital and sent into surgery. The surgeon, who was summoned from a nearby party, operated on the woman while
intoxicated. As a result, the surgeon failed to remove a drain tube, causing the woman harm and requiring a second operation to remove. The woman has now brought suit against the man for her injuries.
At trial, testimony showed that the woman suffered $100,000 in damages caused to her legs from the accident and $50,000 from complications surrounding the drain tube. At trial, an expert testified that the surgeon’s efforts fell below the standard of care that should have been exercised in an operating room as a result of his intoxication. The jury also found that the woman was 25% responsible for the accident.
How much should the woman recover from the man?
(A) $75,000, or the amount of her injuries from the accident minus her own negligence.
(C) $125,000, or the woman’s injuries from the accident as well as the doctor’s negligence, minus her own negligence.
(D) $150,000, or the full amount of her injuries for both the accident and the doctor’s negligence.
(B) $100,000, or the full amount of her injuries from the accident.
(A) $75,000, or the amount of her injuries from the accident minus her own negligence.
A family lived in a quiet residential neighborhood. They built a treehouse in the backyard for their three adolescent children. One weekend, the family took a vacation to a neighboring state. While the family was away, a 10-year-old boy who lived in the neighborhood trespassed upon the property. The boy was in the family’s backyard when he saw the treehouse, which was situated in a tall tree. The boy climbed up the ladder and began playing in the treehouse. While inside, the boy peered out the window and saw a large limb with avocados perched above the treehouse.
The boy decided to collect a few avocados to bring home to his mother, but found that he was unable to reach them. Despite knowing it was dangerous, he climbed on top of the treehouse roof in an effort to get closer to the branch. As the boy was walking along the roof, he slipped and fell to the ground, severely fracturing his ankle and leg.
If the boy’s parents assert a tort action against the family to recover for the boy’s injuries, will the plaintiffs prevail?
A. Yes, because the treehouse constituted an attractive nuisance.
B. Yes, because the boy’s own negligence was the cause of his injury.
C. No, because a child of like age, intelligence, and experience would not have climbed on top of the treehouse roof.
D. No, because the boy recognized the risk that was involved.
D. No, because the boy recognized the risk that was involved.
Discussion of correct answer: This is an extremely tricky Multistate question dealing with the attractive nuisance doctrine.
Under the attractive nuisance doctrine, a possessor of land is subject to liability for physical harm to trespassing children where:
(1) an artificial dangerous condition exists on the property;
(2) the possessor knows or should know that children are likely to trespass on the property;
(3) the children because of their youth, age, or immaturity fail to appreciate the danger or realize the risks involved in intermeddling with it; and
(4) the utility of maintaining the dangerous condition is slight compared to the risks involved.
It is important to note that the inability of a child to appreciate the danger is a subjective test. In general, for this subjective test, the child, because of his lack of age and maturity, either must not appreciate the danger involved or must not discover the condition. Because the facts state that the boy knew that climbing out onto the treehouse roof was dangerous but did so anyway, the plaintiffs will not be liable for the boy’s injuries.
A motorist hits a pedestrian and leaves the pedestrian laying on the side of the road, in need of medical attention. As a result of the accident, the pedestrian suffered broken ribs and a concussion. Shortly after the motorist drove away, a passerby found the pedestrian and robbed him. In the course of the robbery, the passerby broke the pedestrian’s arm.
Will the motorist be held liable for the pedestrian’s broken arm?
A. Yes, because the passerby’s action was a superseding cause.
B. Yes, because the passerby’s action was an intervening cause.
C. No, because the passerby’s action was a superseding cause.
D. No, because the passerby’s action was an intervening cause.
C. No, because the passerby’s action was a superseding cause.
Discussion of correct answer: A superseding cause is an unforeseeable, intervening cause that breaks the chain of causation between the initial wrongful act and the ultimate injury, and thus relieves the original tortfeasor of any further liability. An example of a superseding cause is an intentional tort of a third person. On the other hand, an intervening force is one that actively operates in producing harm to another after the actor has already committed his negligent act or omission. As a general rule, a defendant will be held liable for harm caused by foreseeable intervening forces. Here, the passerby committed an intentional tort by robbing the victim. As such, the passerby’s broken arm was caused by a superseding cause and the motorist will not be liable for this particular injury.
A driver wanted to purchase a new SUV but could not afford the retail prices being offered by the new car dealers in the area. While reading the newspaper, the driver saw an advertisement by an auction company. In the advertisement, the auction company claimed that it was selling new, unused, late-model cars for substantially lower prices than those charged by automobile dealers representing manufacturers. The driver went to the automobile auction and placed the winning bid on a late-model SUV. As he was driving the vehicle home at a high rate of speed, the brakes suddenly failed, causing an accident. The brake failure resulted from a defectively designed brake mechanism. The driver suffered a broken leg and brought suit against the auction company in strict liability to recover for his injuries.
What must the driver prove in order to be successful in his lawsuit?
A. The auction company failed to inspect the brakes and a cursory inspection would have disclosed the defect.
B. The auction company was in the business of selling automobiles.
C. The driver’s excessive speed was not a legal cause of the accident.
D. The driver inspected the brakes himself before driving home from the auction.
B. The auction company was in the business of selling automobiles.
A homeowner in a small city-owned property that was bordered by a local roadway. On the very edge of the property, next to the homeowner’s fence, was a large oak tree that hung over the sidewalk beside the roadway. One day a large limb that was decayed broke off and injured a passerby as he was walking on the sidewalk to the grocery store. It was conceded by the homeowner that he was unable to properly maintain the tree due to a recent illness.
If the passerby subsequently brings an action against the homeowner, will he recover?
A. Yes, because the homeowner owed a reasonable duty of care to persons outside the premises.
B. Yes, because the homeowner owed a nondelegable duty to persons outside the premises.
C. No, because the passerby assumed the risk by walking under the tree limb.
D. No, because the homeowner acted reasonably considering his physical condition.
A. Yes, because the homeowner owed a reasonable duty of care to persons outside the premises.
When a hurricane suddenly increased its intensity and changed its path to strike the oceanfront town that a tourist was visiting, she took refuge at the hotel where she was a guest. As the winds increased and the storm surge began to cause the water to rise, the hotel manager advised everyone still in the building to move off of the ground floor. However, the tourist panicked at being trapped by the water and decided to flee the hotel and seek higher ground. She got almost to the main gate of the hotel when she was swept away by the floodwaters and drowned.
In an action by the tourist’s estate against the hotel, what is the likely result?
A. The tourist’s estate will prevail because the tourist was a guest at the hotel.
B. The tourist’s estate will prevail because the hotel manager did not prevent the tourist from leaving.
C. The hotel will prevail because it did not breach any duty it owed to the tourist.
D. The hotel will prevail because the hurricane was an unforeseeable act of God.
C. The hotel will prevail because it did not breach any duty it owed to the tourist.
A popular electronics store is having a Black Friday super sale, with deep price reductions and giveaways for the first five people to make purchases. A man decided to enter the store the night before, hide out in one of the large appliance boxes that were lying in the stockroom, and then be the first person in the store the next morning.
During the night, the man needed to use the restroom, and entered a door marked “Employees Only.” The door led to a stairway that had a broken first step, and the man fell, injuring himself. The next morning, he was found with a broken leg, and arrested.
If the man brings suit against the electronics store, what is the likely result?
A. The man will recover, because he was an invitee who was injured on the premises.
B. The man will recover, because he was a licensee who was injured on the premises.
C. The man will not recover, because he was a trespasser on the premises.
D. The man will not recover, because he was a trespasser in an area marked “Employees Only.”
C. The man will not recover, because he was a trespasser on the premises.
A teenager was traveling northbound through an intersection with a green light. At the moment she entered the intersection, two drivers, one traveling eastbound and one traveling westbound, also entered the intersection. Both of these drivers ran red lights as they entered the intersection, and hit the car driven by the teenager at the same moment. As a result of the accident, the teenager suffered a number of serious injuries.
In a negligence suit by the teenager against the two drivers, what is the likely result?
A. Neither driver will be liable, because the court will apply the but-for test.
B. Both drivers will be liable under the but-for test.
C. Neither driver will be liable, because the court will apply the substantial factor test.
D. Both drivers will be liable under the substantial factor test.
D. Both drivers will be liable under the substantial factor test.
Discussion of correct answer: The court may apply the but-for test in a negligence action, and find that a defendant is liable for the plaintiff’s injuries if the defendant’s conduct was the cause-in-fact of an event, and if that event would not have occurred but-for the existence of the conduct. However, where the conduct of multiple defendants results in injury to the plaintiff, the court will not use this test. This is because both defendants can deny liability by pointing to the conduct of the other defendant. Therefore, the court may apply the substantial factor test in such situations. Under this test, a defendant’s conduct is also the cause-in-fact of a plaintiff’s injury if that conduct was a substantial factor in bringing about the injury. Here, the conduct of each driver was a substantial factor in bringing about the teenager’s injuries. As such, the court will find that both drivers are liable under the substantial factor test.
A tall building was under construction in the downtown business district of a city. A lawyer took a car to the downtown area to go to a meeting with a client. She was running late for the meeting and could not find a legal parking spot, so she decided to park illegally in front of a fire hydrant. This was in violation of a local ordinance that prohibited parking within 50 feet of a fire hydrant. The lawyer figured that it was better to get a ticket than to miss her meeting with an important client. The spot where she parked was next to the site of the construction of the new building. While the lawyer was at her meeting, an accident occurred at the construction site. A large crane was being used to lift a load of bricks. A cable on the crane broke, and the bricks fell. Most of them landed on top of the lawyer’s car. The load of bricks that fell on the lawyer’s car caused the gas tank of the car to rupture and explode. Shrapnel from the explosion flew in all directions and injured a pedestrian who was walking on the sidewalk near the lawyer’s car.
If the pedestrian sues the lawyer and relies on the doctrine of negligence per se, which of the following, if true, is the lawyer’s best defense?
A. Payment of a small fine is the only penalty provided in the ordinance for those who park too close to fire hydrants.
B. The police never issued a ticket to the lawyer for parking in front of the fire hydrant.
C. The purpose of the parking ordinance was to facilitate access to the hydrant by fire trucks, not to protect against accidents like the one that occurred when bricks fell on the lawyer’s car
D, The pedestrian would not have been injured if the construction company had properly maintained the crane.
C. The purpose of the parking ordinance was to facilitate access to the hydrant by fire trucks, not to protect against accidents like the one that occurred when bricks fell on the lawyer’s car
A bike messenger was injured when the driver of a car, who was not paying attention to the road, drifted into the bicycle lane and hit him. After the accident, the messenger went to a doctor, who advised that, although he suffered no broken bones, he nevertheless needed to stay off his feet for a few weeks in order to allow his body to recover. However, the messenger had just graduated from college, and needed to start repaying his loans. As a result, he could not discontinue his job as a messenger.
The next week, as the messenger was making a routine delivery in an office building, his legs suddenly gave way, causing him to tumble down several flights of stairs. He was rushed to the hospital, where he was treated for two broken legs and a shattered hip.
If the messenger now sues the driver of the car, which of the following statements is the most accurate?
A. The driver is responsible for all injuries sustained by the messenger, under the eggshell plaintiff rule.
B. The driver is responsible for all injuries sustained by the messenger, because they were foreseeable.
C. The driver is not responsible for all injuries sustained by the messenger, because the doctor warned the messenger to stay off his feet.
D. The driver is not responsible for all injuries sustained by the messenger, under the doctrine of avoidable consequences.
D. The driver is not responsible for all injuries sustained by the messenger, under the doctrine of avoidable consequences.
A law student, who was involved in Law Review, moot court, and clinic, was taking 18 credits. She was afraid she was never going to get everything done on time, and she thought some extra caffeine would help. The law student bought a coffee pot from Coffee Warehouse, Inc. She paid top dollar for the coffee maker, but she figured it was worth it because the coffee pot had a special “refresh” function that would keep brewed coffee fresh over a 48-hour period. The law student used the coffee maker for several weeks and noticed a marked improvement in her energy level. One morning, as the law student was reaching for the coffee pot, the pot suddenly exploded. The law student’s hand was severely cut by flying glass from the shattered pot. An investigation revealed that the glass used by Coffee Warehouse to make the coffee pot was defective, which is why it exploded.
If the law student sues Coffee Warehouse on a strict liability theory, what must she prove to prevail?
A. The coffee pot was defective, and a thorough inspection by Coffee Warehouse’s would have revealed the defect.
B. The coffee pot was defective.
C. The coffee pot was defective, and the defect was the cause of the law student’s injuries.
D. The coffee pot was defective, was thoroughly inspected by Coffee Warehouse, and the defect went undetected.
C. The coffee pot was defective, and the defect was the cause of the law student’s injuries.
A builder specialized in the renovation of old buildings. His most recent project was the conversion of a housing project into luxury condominiums. One of the buildings had been renovated by the city 15 years ago when steel guard rails had been installed on all the windows to prevent children from accidental falls. The builder did most of the exterior painting and brick repair work himself to save money. He greatly improved the appearance of the old buildings by painting the window guards an attractive decorative garden pattern. When renovations were completed, members of the local fire department inspected the premises. The fire inspector was a large, heavy-set man. For public relations and safety purposes, he conducted his inspections in full uniform—big steel-toed black boots, a hard hat, tool belt, keys, and a heavy lined coat. The uniform added 25 pounds to his weight of 225 pounds.
The builder showed the inspector around the building. As part of his inspection, the inspector climbed on the window bars to evaluate this means of egress from the apartments on the upper floors in the event of a fire or emergency. When he reached the third floor, the painted window guards gave way, causing the inspector to fall and seriously hurt himself. Examination revealed that underneath the new paint, the window guards was badly corroded and could not support the inspector in his uniform. The inspector sued the builder for his injuries.
In a majority jurisdiction, who should prevail?
A. The inspector, because the builder received an economic benefit from his inspection of the building.
B. The inspector, because the builder had a duty to inspect the window bars.
C. The builder, because he did not intentionally conceal the defective bars with paint.
D. The builder, because he was not aware of the dangerous condition of the window bars.
D. The builder, because he was not aware of the dangerous condition of the window bars.
Discussion of correct answer: This is the best answer, because it correctly states the builder’s required standard of care toward the inspector. Although the builder invited the inspector onto the premises for the builder’s business purposes, courts traditionally classify the inspector as a licensee because he is a fireman. (This also applies to the police officer.) The builder’s duty to a licensee is to fix or warn of known dangers. He is not required to make his land safe for licensees and is not required to inspect to discover dangers, even if a reasonable inspection would have revealed them. If the builder was aware that the window bars would be dangerous to someone the inspector’s size, its condition would be a known defect about which the builder must issue a warning. Nothing in the facts shows that the developer knew of the unsafe condition.
An only daughter whose father died after a long illness arranged with a mortuary to bury him next to his wife’s grave. The daughter selected the most ornate casket available because she wanted it to remain closed during the wake, and she could not bring herself to view the body before the funeral. At the cemetery, however, she decided to view the body just before it was buried. She was horrified to discover that the body in the casket was dressed in a clown costume and a bright orange wig. In fact, it was not her father but a popular circus entertainer who had died the same day as her father and had requested to be buried in his costume. Although the mortuary was able to retrieve her father’s body and bury it, the daughter was greatly distressed by the episode and suffered nightmares as a result. However, she did not seek medical or psychiatric care because of it. The mortuary apologized for its error in switching the bodies, but insisted that the daughter pay all of the agreed-to charges for the funeral.
If the daughter brings action against the mortuary to recover for her emotional distress, can she recover damages?
A. No, because the daughter did not have to obtain medical or psychiatric care.
B. No, because the daughter suffered no physical injury.
C. Yes, because of the known sensitivity of people concerning the death of a family member.
D. Yes, because the mortuary is requiring the daughter to pay the bill for the funeral expenses.
C. Yes, because of the known sensitivity of people concerning the death of a family member.
The daughter can recover damages for her emotional distress, even though she suffered no physical injury and did not require medical care, because of the known sensitivity of people concerning the death of a family member. In the usual case, the duty to avoid negligent infliction of emotional distress is breached when defendant creates a foreseeable risk of physical injury to plaintiff, typically by causing a threat of physical impact that leads to emotional distress, and plaintiff can recover for physical injury caused solely by the distress. In special situations, however, courts have permitted plaintiff to recover in the absence of physical symptoms where defendant’s negligence creates a great likelihood of severe emotional distress. One of these situations is the mishandling of a relative’s corpse, because it is certainly foreseeable that a person will suffer severe emotional distress if the corpse of a family member is negligently mishandled. In this case, the mortuary was negligent in putting the wrong body in the casket, creating a foreseeable risk of severe emotional distress to the daughter under the circumstances. Despite the fact that she suffered no physical injury, she can recover damages from the mortuary.
A doorman negligently locked a door that an office worker was intending to use to exit an office building, so the worker was forced to use a different exit. As she stepped onto the sidewalk outside the building, a car careened out of control on the street and jumped the curb. The car struck and injured the worker and then drove off. The driver was not found.
The worker brought suit against the doorman, seeking damages for her injuries. At trial, the parties stipulated that the doorman was negligent in locking the door and that the worker suffered injuries when she was struck by the car. The worker also established that if she had exited from the door she was intending to, she would not have been struck by the car. At the end of the worker’s case, the doorman moved for a directed verdict in his favor.
How should the judge rule?
A. Grant the motion, because the driver of the car was the actual cause of the worker’s injuries.
B. Grant the motion, because the car was an unforeseeable intervening force.
C. Deny the motion, because the jury could find that but for the doorman’s negligence, the worker would not have been injured.
D. Deny the motion, because the jury could find that the doorman’s negligence was a foreseeable concurring cause of the worker’s injury.
B. Grant the motion, because the car was an unforeseeable intervening force.
The court should grant the motion because the evidence establishes that the car was a superseding force that cut off the doorman’s liability for his negligence under proximate cause principles. The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of, and within the increased risk caused by, his acts. An indirect cause case is one where the facts indicate that a force came into motion after the time of defendant’s negligent act and combined with the negligent act to cause injury to the plaintiff. Whether an intervening force will cut off the defendant’s liability for the plaintiff’s injury and be deemed superseding is determined by foreseeability. Here, nothing in the facts suggests that a car jumping the curb was a foreseeable consequence of the doorman’s negligently locking the door. Hence, the judge should grant the motion because the worker has failed to establish the proximate cause element of his prima facie case.
A man on his bike was run off the road when the driver of a car, who was not paying attention to the road, drifted into the bicycle lane. The man ran into the guardrail, pinning his leg against his bike, but did
not fall. After the incident, the man chose not to go to a doctor, as he was a little shaken and sore, but otherwise did not appear injured. The next week, as the man was delivering a package as part of his job, his legs suddenly gave way, causing him to tumble down several flights of stairs. He was then rushed to the hospital, where he was treated for two broken legs and a shattered hip.
If the man now sues the driver of the car, which of the following statements is the most accurate?
(A) The driver is responsible for all injuries sustained by the man, because the driver must take the victim as he finds him.
(C) The driver is not responsible for all injuries sustained by the man, because the man failed to go to the doctor, who may have warned him to stay off of his feet.
(D) The driver is not responsible for all injuries sustained by the man, under the doctrine of avoidable consequences.
(B) The driver is responsible for all injuries sustained by the man, because the man’s conduct after the accident was reasonable.
(B) The driver is responsible for all injuries sustained by the man, because the man’s conduct after the accident was reasonable.
Two law students ranked high in their class were competing for one opening at a prestigious law firm. During the interview with the hiring partner, one student was asked what he thought of the other’s work as an editor of the law review. The student responded that there was a rumor around the school that the editor got outside help on her law review comment. Based in large part on his statement, that student was chosen over the law review editor, who later accepted a less lucrative position with another firm.
If the law review editor brings a slander action against the other student and establishes the above facts, will she prevail?
A. Yes, because the student’s statement to the hiring partner was defamatory.
B. Yes, because the law review editor suffered special damages.
C. No, because the hiring partner asked the student for his opinion.
D. No, because the law review editor did not establish that the student made the statement with at least negligence.
A. Yes, because the student’s statement to the hiring partner was defamatory.
The student’s statement constitutes slander per se and therefore the student will be liable. To establish a prima facie case for defamation, the following elements must be proved:
(i) defamatory language on the part of the defendant;
(ii) the defamatory language must be “of or concerning” the plaintiff (i.e., it must identify the plaintiff to a reasonable reader, listener, or viewer);
(iii) publication of the defamatory language by the defendant to a third person; and
(iv) damages to the reputation of the plaintiff.
Here, the student’s suggestion that the law review editor received outside help on an article she authored impeaches her integrity and legal skills. The defamatory language directly related to the editor. The publication requirement is satisfied because the student made the statement to the hiring partner. To recover damages for slander, special damages must be pleaded and proved unless the spoken defamation falls within one of four categories, characterized as slander per se. Hence, a defamatory statement adversely reflecting on the plaintiff’s abilities in his business, trade, or profession is actionable without pleading or proof of special damages. The student’s statement adversely reflected on the law review editor’s honesty and capability in her profession, and as such is slander per se.
While driving to the grocery store, a 45-year-old man was hit from behind by a car that was being negligently driven by a woman. At the hospital, the doctor indicated that the accident itself should only have caused minor injuries. However, the doctor determined that due to a childhood condition, the man’s bones did not fully form properly, and as a result, the injuries he suffered were more severe. In fact, it was determined that the man will have to be placed into traction for one year, and that he would never walk again.
To what damages will the man be entitled?
A. He will be entitled to just those damages that can be attributed to the car accident.
B. He will be entitled to all damages he sustained as a result of the accident, because a tortfeasor is liable for the full consequences of the injury she causes.
C. He will be entitled to damages that a normal person would have sustained in a similar accident.
D. He will be entitled to damages for the traction, but not the paralysis, because of the doctrine of avoidable consequences.
B. He will be entitled to all damages he sustained as a result of the accident, because a tortfeasor is liable for the full consequences of the injury she causes.
A ballplayer became ill soon after consuming sunflower seeds marketed by a farm products company. The package of seeds was inspected and foreign matter was discovered on the seeds.
If the ballplayer brings an action against the farm products company on the basis of strict tort liability, which of the following would be most helpful for the company to avoid liability?
A. The foreign matter on the seeds was a rare mold that could not be detected by tests commonly used for establishing that sunflower seeds are safe for human consumption.
B. The seeds were sold in their natural state, and had not been manufactured or processed by the farm products company in any way.
C. In answer to an interrogatory, the ballplayer has acknowledged that he has no evidence that his illness was caused by the foreign matter on the seeds.
D. Although marketed under the label of the farm products company, the seeds had been collected and packaged for distribution by another company and any foreign matter on the seeds was the other company’s fault.
C. In answer to an interrogatory, the ballplayer has acknowledged that he has no evidence that his illness was caused by the foreign matter on the seeds.
A patient needing ankle surgery signed standard consent forms and liability waivers covering the surgeon scheduled to perform the surgery. Two hours before the operation was scheduled to be performed, one of the surgeon’s patients was brought into the emergency room with numerous orthopedic injuries that required immediate attention. The surgeon requested the head of orthopedic surgery, who was the leading authority on ankle surgery, to perform the ankle surgery for him so he could go to the emergency room. By the time the head surgeon arrived in the operating room, the patient was already sedated. He performed the operation with his usual skill and the operation was a complete success.
If the patient sues the head surgeon for battery, will she likely prevail?
A. Yes, but she may be entitled only to nominal damages.
B. Yes, because the head surgeon is vicariously liable for the original surgeon’s obtaining a replacement without the patient’s consent.
C. No, because the head surgeon performed the operation competently and the patient suffered no harm.
D. No, because a reasonable person similarly situated would have consented to the operation.
A. Yes, but she may be entitled only to nominal damages.
The patient can establish a prima facie case for battery. The fact that the operation was a success and that she may not be able to prove actual damages will not bar her recovery.
The prima facie case for battery requires: (i) an act by defendant that brings about a harmful or offensive contact to plaintiff; (ii) intent on the part of defendant to do the act; and (iii) causation.
Here, the head surgeon’s performing the operation on the patient’s ankle would be harmful or offensive contact because the patient had selected another surgeon to perform the operation and did not consent to the head surgeon’s participating in any way. Even if evidence of her distress is not adequate to prove actual damages, she will still be entitled to a judgment in her favor and nominal damages, because damages is not an element of the prima facie case for battery.
A woman was shopping at a department store. She got on the store’s escalator on the third floor and was riding it to the fourth floor. The escalator came to a sudden stop, causing the woman to fall backwards. At the time the escalator suddenly stopped, the woman was not holding onto the handrail. She suffered several broken bones and injuries to her back. Apart from the sudden stop, nothing indicated that something was wrong with the escalator. A regular maintenance examination was performed on the escalator six days before the incident. After the incident, a maintenance specialist examined the escalator and found it to be in proper working order. The woman brought a negligence action for damages against the department store. At trial, the woman requested a jury instruction based on the doctrine of res ipsa loquitur. The trial judge gave the requested instruction, and the jury returned a verdict in favor of the woman. The department store has filed an appeal claiming the trial court erred by giving an instruction on res ipsa loquitur.
Will the store likely prevail on appeal?
A. Yes, because res ipsa loquitur would not be available because the woman was contributorily negligent.
B. Yes, because the woman will not be able to demonstrate that the sudden stopping of an escalator is an event which would not ordinarily occur in the absence of negligence.
C. No, because res ipsa loquitur is always available when there is unexplained negligence.
D. No, because the woman will be able to demonstrate that it is more likely than not that the store’s negligence caused the escalator to suddenly stop.
B. Yes, because the woman will not be able to demonstrate that the sudden stopping of an escalator is an event which would not ordinarily occur in the absence of negligence.
Discussion of correct answer: The doctrine of res ipsa loquitur is available to help a plaintiff establish the defendant breached a duty of care when the circumstances make it impossible for a plaintiff to determine exactly what the defendant did or failed to do that gave rise to the injuries. When the doctrine applies, a jury is permitted to infer negligence. For the doctrine to apply, a plaintiff must establish three things. First, the event that caused the injury would not occur in the absence of negligence. Second, it is more likely than not that the defendant’s negligence caused the event. Third, the plaintiff is not responsible for the event that caused the accident. While the woman will be able to show she was not responsible for the escalator suddenly stopping, she will not be able to prove either the first or second elements. The sudden stop of an escalator is unlikely to always be the result of negligence. Further, the facts demonstrate that the defendant was not negligent, having done an inspection six days before the accident and following the accident it was determined the escalator was in proper working order.
Think Like a Lawyer
Res ipsa loquitur is not applied often, because it requires a very special set of facts.
Step by Step Walkthrough
Step 1: A plaintiff must establish that three requisites are present in order to invoke the doctrine of res ipsa loquitur: (1) the event that caused the plaintiff’s injury was one which would not ordinarily occur in the absence of negligence; (2) it is more likely than not that it was the defendant’s negligence that was responsible for the injury-causing event; and (3) the plaintiff was not responsible for the event that caused injury.
Step 2: In this fact pattern, the woman cannot show that her injury would not ordinarily occur in the absence of negligence. It may have simply been an accident, considering all the inspections that were done. In addition, it is thus not more likely than not that the store’s negligence was responsible. Consequently, on appeal, the appellate court will likely find that the jury instruction on res ipsa loquitur should not have been given, and the jury award must be overturned.
Step 3: Select the answer stating that the store will win, because the woman will not be able to demonstrate that the sudden stopping of an escalator is an event which would not ordinarily occur in the absence of negligence.
Step 4: Ignore the answer choice regarding contributory negligence, which would not prevent a jury instruction on res ipsa loquitur.
Step 5: Ignore the answer choice stating that res ipsa loquitur is always available when there is unexplained negligence, because that is not the law.
Step 6: Finally, ignore the answer choice stating that the woman will be able to demonstrate that it is more likely than not that the store’s negligence caused the escalator to suddenly stop. This is so because the store has demonstrated that it met its duty of care.
Without doing a background check, an employer hires a delivery man to make deliveries in local residential neighborhoods. A background check of the delivery man would have revealed that he had a history of causing motor vehicle accidents by driving while under the influence of drugs and alcohol.
If the delivery man causes an accident while making a delivery because he is under the influence of drugs or alcohol, can the injured party bring a cause of action based on negligent hiring against the employer?
A. Yes, because the cause of action will be based on the doctrine of respondeat superior.
B. Yes, because the employer was negligent in failing to conduct a background check on the delivery man before hiring him.
C. No, because the employer did not have a duty to investigate the delivery driver’s background before hiring him.
D. No, because the doctrine of respondeat superior does not apply to intentional torts committed by the employee.
B. Yes, because the employer was negligent in failing to conduct a background check on the delivery man before hiring him.
Discussion of correct answer: This question requires the reader to distinguish between the doctrine of respondeat superior and negligence in hiring.
The defendant-employer has a duty to a plaintiff to exercise reasonable care in hiring employees, such that a defendant may be liable to a plaintiff if an employee subsequently injures the plaintiff.
This is negligence in hiring.
On the other hand, the vicarious liability of an employer for his employee’s torts — respondeat superior – applies where the negligent conduct is that of the employee and liability is attributed by law to the employer.
In negligent hiring, the employer is liable for his own negligence in hiring the employee, not vicariously liable for the wrongful conduct of the employee. Here, the question specifically asks about negligence in hiring. Therefore, the reader should focus on the employer’s failure to conduct a background check, which would have revealed the delivery man’s history of causing motor vehicle accidents while under the influence of drugs and alcohol.
A woman went shopping for a birthday present for her husband at the local mall. The mall has a lighted parking area but there is no security staff that patrols the parking lot. The mall is located in an area with a high crime rate. As the woman was getting into her car, a criminal grabbed her purse and placed a gun to her head. The criminal threatened to shoot her if she did not give him her shopping bags. She resisted and he hit her with the gun before fleeing with her purse and the presents she bought for her husband.
In a negligence suit for damages against the mall, will the woman likely prevail?
A. Yes, because it was foreseeable that in a high crime area criminals could pose a danger to customers going to their vehicles in the parking lot.
B. Yes, because the mall would be strictly liable because of its knowledge of crime in the area.
C. No, because the negligence of the mall was not the proximate cause of the woman’s injuries.
D. No, because the mall satisfied its duty to exercise reasonable care for the safety of invitees by having a lighted parking lot.
A. Yes, because it was foreseeable that in a high crime area criminals could pose a danger to customers going to their vehicles in the parking lot.
Discussion of correct answer: Generally, the criminal or tortious acts of a third party constitute a superseding intervening cause that breaks the chain of causation. However, when the facts and circumstances demonstrate that the criminal act is foreseeable, the chain of causation will not be broken. The facts indicate that the mall is located in a high crime area and the mall does not use security guards. Therefore, these facts and circumstances indicate that a criminal act is foreseeable.
A retired policeman was hired as a night watchman by a manufacturer of large construction machinery. During the watchman’s orientation, the manager of the factory emphasized that in the event of any problem, the watchman was to keep himself out of danger and call the police immediately. The night watchman also was warned never to go outside the fence while on duty. One night, a drug addict, whom the watchman recognized from his days on the police force, was walking past the yard. In a rare moment of lucidity, the addict also recognized the former police officer. The addict jeered, “Hey! You a rent-a-cop now?” The watchman ignored the addict for a while, but the addict continued to rant loudly and derisively about the watchman’s new career. After several minutes of this, the watchman flew into a rage. He went outside the gate and chased the addict down. The watchman punched the addict several times, giving him a concussion. The addict subsequently filed a lawsuit against the watchman and the manufacturer.
Which of the following is the strongest argument in the manufacturer’s defense?
A The watchman’s act was outside the scope of his employment.
B The watchman was defending the manufacturer’s property.
C The watchman was acting in self-defense.
D The watchman was contributorily negligent.
A The watchman’s act was outside the scope of his employment.
While walking down an escalator in a department store, a man was hit from behind by an employee who was taking some boxes to the trash compactor. The man fell and suffered injuries as a result. While in the hospital, the doctor indicated that the accident itself should only have caused minor injuries. The doctor then determined the man’s bones had never healed properly after falling out of a tree as a child and breaking his pelvis and both of his legs. As a result, the injuries the man now suffered were more severe. At trial, the jury made the following findings: (1) the man was 10% at fault; (2) the employee was gainfully employed by the
department store at the time of the injury; and (3) the man’s childhood injuries were self-inflicted.
To what damages will the man be entitled?
(A) He will be entitled to only those damages that can be attributed to the employee’s accident, minus his own percentage of negligence.
(B) He will be entitled to all damages sustained as a result of the accident minus his own percentage of negligence, because the department store is liable for the full consequences of the injuries sustained by the man.
(C) He will be entitled to damages that a normal person would have sustained in a similar accident.
(D) He will recover nothing, because his childhood injuries were self-inflicted.
(B) He will be entitled to all damages sustained as a result of the accident minus his own percentage of negligence because the department store is liable for the full consequences of the injuries sustained by the man.
A traffic accident occurred at a road intersection. A motorcycle, a car, and a truck were involved. The motorcyclist
was injured and brought suit against the driver of the car and the driver of the truck. The jury returned a verdict finding that the motorcyclist’s injuries were caused by negligence on the part of all three of the parties.
The jury assigned 55% of the fault for the motorcyclist’s injuries to the motorcyclist, 25% to the driver of the car, and 20% to the driver of the truck. The jury found that the number of the motorcyclist’s injuries was $100,000. The motorcyclist enforced the judgment against the driver of the car and collects $45,000 from him. The driver of the car then brought an action against the driver of the truck for contribution.
What should the driver of the car recover?
(C) $20,000.
(B) $27,000.
(A) Nothing, because he was more at fault than the driver of the truck was.
(D) $15,000.
(C) $20,000.
A husband and a wife were always misplacing their keys. One day, the husband hung a key rack at eye level just inside the front door of their home. The husband and the wife agreed that each night, when they returned home from work, they would place their keys on the key rack so that each knew at all times where their keys were located.
One Sunday afternoon, the husband and the wife decided to walk to the local deli for lunch. Because their 14-year-old daughter was going to be home, they decided they did not need to take their keys, and so they left them hanging on the key rack. Shortly after the husband and the wife left, the daughter decided that she wanted to attempt to drive the family car around the block before her parents returned. Even though she knew she was forbidden from doing so, she removed the keys to the family car off of the key rack, started the family car, and attempted to drive it around the block. However, due to the fact that she was an inexperienced driver, she quickly lost control of the car and crashed into a parked car owned by a neighbor. The car suffered substantial damage.
If the neighbor sues the husband and the wife, what will be the most likely result?
A. The neighbor will win, because the husband and the wife are liable for the negligence of their daughter.
B. The neighbor will win, because a child operating a motor vehicle is an unusually dangerous activity.
C. The husband and the wife will win, because a parent is not liable for the tortious acts of a child.
D. The husband and the wife will win, unless they did not act reasonably in permitting their daughter access to the car keys.
D. The husband and the wife will win, unless they did not act reasonably in permitting their daughter access to the car keys.
Think Like a Lawyer
Parents are not liable for the negligent acts of their children.
Step by Step Walkthrough
Step 1: While a child may be negligent if he does not act as the reasonable child of the same age, education, intelligence, and experience would have done, his negligence is not attributable to his parents. Parents are not vicariously liable for negligence committed by their child. However, parents can be liable for their own negligence if they fail to act as reasonable prudent parents under the circumstances.
Step 2: Here, the 14-year-old is not a defendant. The parents are defendants, and they will only be liable if they breached a duty of reasonable care in regard to the car keys.
Step 3: Select the answer stating that, if the neighbor sues the husband and the wife, the husband and the wife will win, unless they did not act reasonably in permitting their daughter access to the car keys.
Step 4: Discard the answer choice saying that the neighbor will win, because the husband and the wife are liable for the negligence of their daughter. This is not a correct statement of the law. There is no vicarious liability on the part of the parents for the negligent acts of their children.
Step 5: Discard the answer choice saying that the neighbor will win, because a child operating a motor vehicle is an unusually dangerous activity. Driving a car is not ultrahazardous, and strict liability does not apply. Instead, the 14-year-old would be held to the standard of an adult driving the car, if she were a defendant. The parents, since strict liability is not involved, have no liability for their child’s negligent act.
Step 6: Finally, discard the answer choice saying that the husband and the wife will win, because a parent is not liable for the tortious acts of a child. This is true, but incomplete, because there is one theory left in which the parents might be liable, and that is for their own negligence.
Driving home from work one evening, a man suddenly had engine trouble. Fearing that he would permanently damage his engine, the man immediately pulled to the side of the road and parked. The man failed to notice he had parked five feet from a fire hydrant. The man got out of his car to call for help. Shortly thereafter, a car negligently crashed into the man’s parked car. A local city ordinance made it illegal to park within 10 feet of a fire hydrant. The man sued the other driver for the damage to his car.
What result is most likely?
A Judgment for the other driver, because the man’s violation of the city ordinance constituted comparative negligence per se. B Judgment for the other driver, because the man’s parking his car next to the fire hydrant was the cause in fact of the accident. C Judgment for the man, because the city ordinance was designed to provide the fire department access to the fire hydrant. D Judgment for the man, because the other driver had the last clear chance to avoid the accident.
C. Judgment for the man, because the city ordinance was designed to provide the fire department access to the fire hydrant.
A man bought a brand new microware oven from a department store. This new microware was advertised as being state of the art and could cook meat quickly and without a lot of hassle. The man invited some of his friends over to try it out. The man put some food in the microwave. As the man and his friends talked to each other, they smelled smoke. The man opened up the new microware and was severely injured as it was on fire. It turned out that the new microware had a manufacturing defect and one of the faulty wires caused it to catch on fire. If the microware had been manufactured correctly, the fire would not have happened. The man was very angry and wanted to bring a strict liability claim to recover money for his injuries.
Who can the man bring the claim against?
A. The department store.
B. The manufacturer of the product.
C. Both the department store and the manufacturer of the product.
D. Neither the department store nor the manufacturer of the product.
C. Both the department store and the manufacturer of the product.
A father and his son went camping in a very rural area. They camped at the bottom of a steep hill covered with large trees. During the first night of camping, a large tree limb fell and seriously injured the father. The father and son were about five miles from a public highway. The son decided to walk to the highway to get medical help. At the top of the hill, the son came upon two experienced campers. The campers and the son decided he would continue walking to the highway to get help, and the two campers would stay with his father at the bottom of the hill until help arrived. After finding the father, the campers decided to move the father to the top of the hill and wait for help to arrive. As they were moving the father up the hillside, they lost their footing and dropped the father. The father rolled about 50 feet back down the hill. Eventually, help arrived and the father was taken to a hospital. The treating physician determined that moving the father and dropping him worsened his internal bleeding and caused more severe injuries.
In a negligence suit against the campers, will the father prevail?
A. Yes, because the rescuers were subject to a heightened standard of care.
B. Yes, because the rescuers did not act reasonably.
C. No, because the rescuers acted reasonably.
D. No, because the rescuers will be immune from liability under a Good Samaritan statute.
B. Yes, because the rescuers did not act reasonably.
Discussion of correct answer: While a person generally has no duty to take affirmative steps to render assistance absent a special relationship, in a majority of jurisdictions once action is taken the rescuer is held to a standard of reasonable care. Thus, a rescuer must act with due care in carrying out a rescue. When a special relationship exists, such as parent-child, employer-employee, or jailer-prisoner, the defendant has an affirmative duty to act to benefit the plaintiff. Here, there is no special relationship. However, the facts show that the two campers did not act reasonably when they decided to move the injured father up the hill, placing him at even greater risk of injury. A reasonable rescuer would not have attempted to move an injured person under those conditions.
A manufacturer of component parts supplied pedals to a large bicycle producer. One of the pedals ended up being defective, but was still placed on a bicycle, because the producer was not aware that the pedal was defective. The bicycle was later sold to a father, who bought it for his son. Two weeks after the purchase of the bicycle, the defective pedal broke when the son was riding his bicycle at a local park. As a result, the boy crashed into an elderly man, who suffered serious injuries. The elderly man filed a strict product liability action against the bicycle producer.
Will the elderly man prevail in his lawsuit?
A. Yes, because the bicycle producer is in the chain of distribution.
B. Yes, because of the consumer expectation test standard.
C. No, because the defect is the fault of the manufacturer of component parts.
D. No, because the elderly man was not using the defective product.
A. Yes, because the bicycle producer is in the chain of distribution.
A young man had decided to move from his house into an apartment he just bought in the city. The apartment was much smaller than the house, but it was in a very nice building. The young man decided to post an advertisement on-line in order to sell one of the couches that he would not be taking to the new apartment. The couch was very large and had very high legs. The young man knew that one of the legs of the couch was broken and was only taped to the couch, but the young man did not mention that in the advertisement. At some point a woman contacted the young man and bought the couch for $500. The woman then set the couch in her house. A week later, the woman’s elderly grandmother sat on the couch, but the broken leg fell off, and the couch collapsed with the grandmother. As a result, the grandmother suffered a hip injury. The grandmother filed a strict products liability suit against the young man for her injury.
Which of the following is correct?
A. The grandmother prevails, because the young man did not warn the woman about the broken leg.
B. The grandmother prevails, because the couch had a broken leg.
C. The young man prevails, because the grandmother was not the purchaser of the couch.
D. The young man prevails, because he was a one-time seller.
D. The young man prevails, because he was a one-time seller.
A local hair salon was busy and filled with both customers and employees. At this salon, customers had to walk down an aisle to get their hair washed before returning to the stylists’ chairs. A stylist placed a bottle of conditioner on the floor next to her chair because her work counter was full. The stylist accidentally knocked the bottle over, but did not notice what she had done. Moments later, a customer walking down the aisle slipped on the liquid that had spilled onto the floor. A sign at the front of the store warned customers to watch their step. The customer has filed a suit for damages against the store.
Will the store likely prevail?
A. Yes, because the store discharged its duty by warning shoppers to watch their step.
B. Yes, because the store discharged its duty to maintain the premises in a reasonably safe condition.
C. No, because the store’s duty was not discharged by the giving of a warning and it failed to maintain the premises in a reasonably safe condition.
D. No, because the customer was at fault for not seeing the danger.
C. No, because the store’s duty was not discharged by the giving of a warning and it failed to maintain the premises in a reasonably safe condition.
Discussion of correct answer:The standard of care that applies to a landowner or occupier depends on the status of the injured party and the type of activity that caused the injury. Under these facts, the customer would be a business invitee because she entered the premises at the express or implied invitation of the landowner. She entered for a specific purpose relating to the store’s activities on the land. A landowner must exercise reasonable care to prevent injuries to an invitee from activities conducted on the land. The landowner also has a duty to exercise reasonable care in discovering dangerous artificial conditions that an invitee would not be aware of and to warn them of the condition or to make it safe. Merely providing the customer a warning would not satisfy the store’s duty to prevent injuries or its duty to discover dangerous conditions
An experienced mechanic was hired by a company to replace a defective ignition switch on a motorized three-wheel forklift. The forklift had been purchased by the company two years ago from a distributor of heavy-duty factory equipment. The ignition switch that the mechanic was working on was located near the two rear wheels. After removing the old defective switch, the mechanic then attempted to insert the new ignition switch, which he had purchased from a parts distributor. When the new ignition switch popped out of the socket, the mechanic tried to reinsert it. As he did so, the forklift engine suddenly started and dragged the mechanic underneath the rear axle, injuring him. The new ignition switch that the mechanic was installing had been specifically designed to fit the model he was fixing.
If the mechanic brings a claim against the manufacturer alleging that the new ignition switch was defective and unreasonably dangerous, will he recover?
A. Yes, if such an accident was foreseeable and the manufacturer failed to warn purchasers of the danger.
B. Yes, if the manufacturer advertised the ignition switch as “a safe and effective starter switch” for such forklift models.
C. No, if a reasonably prudent mechanic would have stopped trying to reinsert the ignition switch after it had popped out of the socket.
D. No, if the mechanic failed to properly inspect the ignition switch before attempting to insert it.
A. Yes, if such an accident was foreseeable and the manufacturer failed to warn purchasers of the danger.
A pedestrian, who was walking along Chestnut Street at 10:20 p.m. on the night of December 3, urgently needed to find a restroom. Just ahead, the pedestrian noticed a private dinner club. As the pedestrian
approached the club, he noticed a sign over the front door that read: “ADMITTANCE TO MEMBERS ONLY.” Although the pedestrian was not a member of the exclusive club, he entered the dimly lit club, found a door marked “Gentlemen,” and entered the restroom.
Which of the following would best describe the pedestrian’s legal status when he was in the restroom?
(C) Licensee.
(B) Guest.
(D) Invitee.
(A) Trespasser.
(A) Trespasser.
A statute in State X provides that:
“It shall be unlawful for any person to sell, or permit to be sold, intoxicating liquors to one who visibly is under the influence of alcohol. Whosoever shall sell intoxicating liquors in contravention of the foregoing provision shall be guilty of a misdemeanor punishable by imprisonment for not more than 60 days or a fine of not more than $5,000 or both.”
The owner of a local bar and grill brought the statute to the attention of his bartenders. Late one night, a patron entered the bar and ordered a gin martini. Noticing that the patron was very drunk, the bartender said, “Hey buddy, I don’t think you can handle another drink.” The patron responded, “C’mon, just one more for the road.” The bartender acquiesced and mixed a martini from a bottle of gin, which he then served to the patron.
The bartender was unaware that a disgruntled employee of the gin distiller had spiked the bottle with strychnine, a highly poisonous substance. After drinking the martini, the patron left the bar and began to drive home. Moments later, due to the poison he became violently ill and went into convulsions. As a consequence, the patron lost control of his car, which struck and seriously injured a pedestrian. The patron, who subsequently recovered, was prosecuted under a state statute making it a misdemeanor to drive while under the influence of alcohol.
If the pedestrian asserts a claim against the bartender, will the bartender likely be held liable?
A. No, because the pedestrian was not a foreseeable plaintiff.
B. No, because the bartender’s act was not the legal cause of the accident.
C. Yes, because he was negligent per se in serving the patron the martini.
D. Yes, because but for the fact that he served the patron the martini, the pedestrian would not have been injured.
A. No, because the pedestrian was not a foreseeable plaintiff.
Think Like a Lawyer
Causation requires both actual cause and proximate cause.
Step by Step Walkthrough
Step 1: Negligence requires: (1) duty; (2) breach of that duty; (3) causation, both actual and proximate; and (4) damages. Actual cause means the cause-in-fact of the injury. Legal cause, also known as proximate cause, means whether the defendant owed a duty of reasonable care to the plaintiff as one who could foreseeably be injured.
Step 2: The violation of a safety statute, or other criminal statute, can provide the first two elements, leaving only causation and damages to be proved. This is known as negligence per se. The violation of a safety statute can prove duty and breach if the harm suffered is the harm that the statute was meant to protect against, and the plaintiff is a member of the protected class.
Step 3: Here, the bartender acted negligently in serving alcohol to the patron that was already drunk. In addition, the bartender violated the dramshop statute that had been enacted. The harm that occurred, however, was not one that the statute addressed. Driving under the influence of strychnine was not a situation that the statute was designed to cover.
Step 4: Therefore, if the pedestrian asserts a claim against the bartender, the bartender will not be liable, because the bartender’s act was not the legal cause of the accident. Select this answer. The bartender did not foresee that a pedestrian could be injured by strychnine, because he didn’t know he was adding the strychnine to the drink. The two persons responsible for the accident were the patron and the saboteur of the gin.
Step 5: Ignore the three incorrect answer choices. The pedestrian is a proper, foreseeable plaintiff. There was no negligence per se. And, finally, it is true that, but for the fact that he served the patron the martini, the pedestrian would not have been injured. Thus, the serving was a cause-in-fact,but it was not the proximate cause of the accident. The bartender could not have assessed the foreseeability of a strychnine-related accident, because he had no idea strychnine was in the gin.
A local elementary school was located on the west side of a street. The school was totally obscured from the roadway by a tall hedge designed to shield out road noise and give the students a sense of rural serenity. An opening in the hedge led to a crosswalk which the elementary school students often used. In addition, there were no signs visible on the street indicating the existence of the elementary school. A tourist was proceeding north on this street at 25 mph, the normal speed limit within city limits, when an elementary school student emerged from the opening in the hedge and ran into the street. The tourist hit the student, critically injuring him. Although no sign was posted, another local ordinance set a 15-mph speed limit for streets surrounding any school. If the tourist had been going the 15-mph speed limit, he would have been able to stop in time to avoid hitting the student.
If the student’s mother asserts a claim against the tourist on the student’s behalf, will the student prevail?
A. No, because the hedges prevented a driver on the street from seeing the school.
B. No, unless the tourist should have been driving more slowly under the circumstances.
C. Yes, because the tourist was negligent per se.
D. Yes, because the tourist owed the student a duty of reasonable care.
A. No, because the hedges prevented a driver on the street from seeing the school.
Discussion of correct answer: The tourist violated a local ordinance requiring drivers to maintain a 15-mph speed limit on streets surrounding a school. The purpose of the statute is to protect school students, be they adult or otherwise, from serious injury from rapidly moving cars. However, violation of a statute only proves breach when it is an unexcused violation. Here, the tourist was not a local resident, the existence of the school was hidden by the hedge, and no sign existed informing the tourist that this was a school district. The tourist did not know that he faced a situation in which the statute would apply. A reasonable person in his situation would not have known to slow down to the 15-mph limit. Hence, the tourist’s noncompliance will be excused if he was driving as a reasonable person under the circumstances. Keep in mind that ignorance of the law is no defense to a crime, but here we are not dealing with criminal liability, but rather civil tort liability.
Think Like a Lawyer
In order for a person to comply with a safety statute regarding behavior around a school, there must be notice of some kind that a school exists, either by signage or by being able to actually see the school.
Step by Step Walkthrough
Step 1: Negligence requires: (1) duty; (2) breach of that duty; (3) causation, both actual and legal; and (4) damages. The violation of a safety statute, or other criminal statute, can provide the first two elements, leaving only causation and damages to be proved. This is known as negligence per se. The violation of a safety statute can prove duty and breach if the harm suffered is the harm that the statute was meant to protect against, and the plaintiff is a member of the protected class. However, the violation will be excused if compliance with the statute: (a) would have resulted in a greater harm; or (b) would have been impossible.
Step 2: Here, the tourist drove at 25 mph, which was within the duty of care for a driver within the city limits. Although there was a statute setting a lower speed limit around schools, there was no sign about the school. Thus, the tourist could not have known to drive more slowly.
Step 3: Select the answer stating that the student will not prevail, unless the tourist should have been driving more slowly under the circumstances. This would be establishing ordinary negligence.
Step 4: Ignore the answer choice saying that the student will not prevail, because the hedges prevented a driver on the street from seeing the school. Even if the hedges hid the school, the driver still might be liable on an ordinary negligence theory.
Step 5: Ignore the answer choice saying that the student will prevail, because the tourist was negligent per se. The tourist was not negligent per se. Although the statute was violated, and the harm that occurred was the harm that the statute was designed to protect against, there was no notice that a school existed. The tourist is not required to be psychic. In order for an ordinary person to comply with such a safety statute, there must be notice of some kind that a school exists, either by signage or by visual information.
Step 6: Finally, ignore the answer choice saying that the student will prevail, because the tourist owed the student a duty of reasonable care. It appears, under the facts as stated, that the tourist met the duty of reasonable care. Thus, this answer choice does not help the student.
A leading manufacturer of camping products marketed a thermal blanket that incorporated new heat-generating technology. On the blanket’s packaging was a label stating that it was recommended by a leading camping association. A camper purchased one of the blankets and took it with her on a fall camping trip. The first night that she used the blanket, it malfunctioned and caused her severe burns.
If the camper maintains an action against the camping association, on which theory is she most likely to recover, if at all?
A. Express warranty.
B. Implied warranty of merchantability.
C. Strict tort liability.
D. Negligence.
D. Negligence.
An absentee landlord owned a run-down apartment building. He made as few repairs as possible. One day, a man visited the landlord’s building to see whether he wanted to rent an apartment there. The landlord showed the man the top-floor apartment that was available. The landlord quickly steered the man into the apartment, hoping that the man wouldn’t notice that the front door was about to come loose and fall off. The man did not in fact notice the broken door. The man nevertheless decided to rent the apartment, and moved in that Sunday night. The next morning, the tenant in the apartment below the man’s heard a loud crash from upstairs. The tenant raced upstairs to find the man on the floor, unconscious. The broken door was lying on the floor near the man. The man sued the landlord for negligence.
If the man prevails, which of the following provides the best reason?
A The door represented a patent defect.
B The door represented a latent defect.
C The contract did not contain any language that stated the man was renting the property “as is.”
D The landlord breached the implied warranty of habitability.
B The door represented a latent defect.
A landlord has a duty to warn a tenant of latent defects or repair them. Generally, a landlord is under no duty to warn of or repair obvious conditions. However, a landlord is responsible for dangerous natural or artificial conditions of which:
(1) the tenant is unaware and the condition is not reasonably apparent; and
(2) the landlord is or should reasonably be aware. Here, the landlord was aware of the broken door, and did nothing to fix.
As the holiday season approached, a homeowner decided to hang lights around his home. He set up a ladder, climbed it, and began to hang the lights along the edge of his roof. As the homeowner reached the corner of his roof he attempted to stretch to attach the lights to the corner rather than reposition the ladder. In so doing, he fell about 12 feet off the ladder. The homeowner felt some pain in his lower back but did not believe he was seriously injured. Shortly thereafter, the homeowner decided he needed more lights to hang on his home. While driving to the store to purchase additional lights, the homeowner purchased a hamburger and began to eat it his car while driving when he was hit from the rear by another vehicle, that had negligently failed to stop. As a result of the collision the homeowner suffered paralysis. The homeowner brought suit against the other driver. At trial, medical experts testified that the homeowner would not have been paralyzed in the collision if he had not fallen off the ladder earlier that day and that the initial back injury could have been treated by any competent practitioner by immobilization in a brace if the homeowner had gone to the doctor immediately.
What is the driver’s best argument for a reduction in the damages owed to the homeowner?
A. Damages should be reduced, because of the doctrine of avoidable consequences.
B. Damages should be reduced, because the driver was only passively negligent.
C. Damages should be reduced, because the homeowner was comparatively negligent.
D. Damages should be reduced, because the driver was not the legal cause of the homeowner’s injury.
C. Damages should be reduced, because the homeowner was comparatively negligent.
Discussion of correct answer:This question requires that a distinction be drawn between the doctrines of avoidable consequences and comparative negligence. When a plaintiff is injured in an accident, a plaintiff has an obligation to mitigate his damages. This includes taking all reasonable steps to limit the adverse consequences of the accident. If the plaintiff does not act as a reasonable person in limiting his injuries, his recovery against the individual causing the incident will not include damages for those consequences that could have been avoided. In this case the homeowner did not fail to mitigate damages after the tort, so the concept of avoidable consequences does not apply. Instead, he contributed to his injury because he was contributorily negligent by eating a hamburger while driving, which would make him comparatively negligent.
Several cars of a freight train transporting nuclear waste derailed as the train neared a street crossing. One of the cars struck a motorist’s car as it was waiting at the crossing gate, seriously injuring the motorist. The area around the accident was immediately evacuated, but fortunately none of the freight cars ruptured in the derailment.
In an action alleging strict liability against the railway that operated the freight train, the motorist established the above facts and presented evidence of her injuries. The railway presented evidence that the derailment was caused by a hidden defect in the spikes that anchored the rails to the track. The spikes were manufactured by its regular supplier and had not previously caused any problems. The railroad also presented evidence that the local authorities were supposed to restrict access to roads crossing the freight line while that particular train was in transit, but they had failed to do so.
In this action, is the motorist likely to prevail?
A. Yes, because the spikes were in a defective condition that made them unreasonably dangerous.
B. Yes, because the railway was engaged in an abnormally dangerous activity.
C. No, because the injury did not arise from the dangerous propensity of the activity.
D. No, because the negligence of the local authorities in failing to restrict access to roads crossing the freight line was a superseding cause of the motorist’s injuries.
C, No, because the injury did not arise from the dangerous propensity of the activity.
The motorist is not likely to prevail in a strict liability action because her injury did not arise from the abnormally dangerous propensity of the railway’s activity. The railway’s transport of nuclear waste likely qualifies as an abnormally dangerous activity because: (i) it creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and (ii) the activity is not a matter of common usage in the community. However, the scope of liability extends only to the dangers that would be anticipated from the activity involved; strict liability does not apply to harms that were not caused by the normally dangerous propensity of the activity. Here, the railway’s activity is subject to strict liability because of the danger of radioactivity inherent in nuclear waste, but not from a derailment by itself. Because the motorist’s injuries were not caused by the release of radioactivity, strict liability does not apply. The railway would be liable for the injuries from the derailment only if the motorist established negligence.
An office assistant leased a used car from a car dealer. While driving the car, which was a gas/electric hybrid, the office assistant lost control of the car in a driving rain storm and crashed head-on into a tree. An emergency crew was dispatched in response to a call from a witness who said that the driver of the car was injured, but the witness was unable to open the car’s door. The emergency crew arrived and used specialized hydraulic equipment to cut through the car’s door. Unfortunately, although it did not make a sound, the hybrid car was still running and the operator of the hydraulic equipment received a nasty electric shock that sent him to the hospital. It was later determined that the car model had a design defect.
Does the emergency worker have a product liability action against the car dealership that leased the car?
A. No, because a commercial lessor is not liable for the lease of defective used goods.
B. No, because the emergency worker was not the consumer of the product and is therefore not a proper defendant.
C. Yes, because the emergency worker is a reasonably foreseeable plaintiff.
D. Yes, because the car dealership was negligent in leasing a defective car.
C. Yes, because the emergency worker is a reasonably foreseeable plaintiff.
A thief made his living by stealing other people’s cattle and selling the meat to unscrupulous butchers. He drove his truck and trailer to a rancher’s ranch one evening because he had heard that the rancher was famous for his cattle. The thief set up his trailer and climbed into a field intending to steal a cow. Unknown to the thief, the field contained the rancher’s prize fighting bull, used in bullfighting. The bull charged the thief and knocked him to the ground, breaking his ankle in the process. A driver who happened to be driving by the rancher’s property saw the thief fall and, knowing of the rancher’s bull, realized that the thief was in extreme danger. The driver stopped his truck, got out and vaulted the fence into the field. Waving a red bandanna to distract the bull, the driver shouted to the thief to get out of the field while the driver would draw the bull off. The bull charged the driver, who spent an exciting few minutes dodging the enraged animal while the thief hobbled to the fence and climbed over. As the driver abandoned his bandanna and leaped over the fence, his foot caught on the boards and he fell out of the field, breaking his leg.
The driver sued the thief for his injuries. What result?
A. Judgment for the thief, because the driver knew that the bull was dangerous and voluntarily exposed himself to the danger.
B. Judgment for the thief, because the driver’s decision to intervene was an abnormal response to the situation.
C. Judgment for the driver, because he prevented the thief from suffering almost certain death or severe injury from the bull.
D. Judgment for the driver, because the thief negligently or intentionally placed himself in peril.
D. Judgment for the driver, because the thief negligently or intentionally placed himself in peril.
The plaintiff purchased a small, decorative glass table from her favorite home furniture and decoration store. The table is very small and the glass that makes up the surface of the table is very thin. The store displayed the table in its “decorations” section. When the plaintiff brought the table home, she placed it in her living room. A few days later, when the plaintiff came home from work, she lightly tossed her purse on the table. The table shattered, and the plaintiff was injured by shards of glass.
If the plaintiff brings an action against the store under a products liability theory, will she succeed?
A. Yes, because the defense of misuse is not available.
B. Yes, because it was foreseeable the plaintiff would use the table for this purpose.
C. No, because the manner in which the plaintiff used the table was neither intended nor foreseeable.
D. No, because the plaintiff misused the table.
B. Yes, because it was foreseeable the plaintiff would use the table for this purpose.
A man was driving home one evening when he looked away from the road to change the channel on the car radio. Because he looked away from the road he failed to notice that a pedestrian was lawfully crossing the street. When the man looked back and saw the pedestrian, he slammed on his brakes, but was unable to stop in time to avoid hitting the pedestrian. However, the collision was minor and the pedestrian, while knocked to the ground and momentarily dazed, suffered no permanent injuries.
Almost immediately, another car came driving down the road. The other driver negligently failed to see the man’s stopped car and plowed into the back of it. This pushed the man’s car over the pedestrian’s leg and he suffered a broken leg as a result. The pedestrian sues the man and the other driver for his injuries.
Will he prevail against the man?
A. Yes, because the man’s negligence made a significant contribution to the pedestrian’s injury.
B. Yes, because both the man and the other driver were negligent.
C. No, because the other driver’s subsequent impact would have caused the injury anyway.
D. No, because the other driver’s act was a superseding force.
A. Yes, because the man’s negligence made a significant contribution to the pedestrian’s injury.
Discussion of correct answer: A defendant’s conduct is the cause-in-fact of the plaintiff’s injury if that conduct was a substantial factor in causing the injury. Each driver made a significant contribution to the injury suffered by the pedestrian. The man’s significant contribution was that he knocked the pedestrian down on the ground. When there are multiple negligent parties, each of whom contributed to the plaintiff’s indivisible harm, they will be jointly and severally liable. Because the harm caused here is indivisible, both the man and the driver are jointly and severally liable for the pedestrian’s injuries.
An investor bought a run-down house in a developing neighborhood, which he hoped to fix up and “flip” for a considerable profit. The investor hired a painter to paint the outside of the house. The painter was a friend of the investor’s who was trying to start his own painting company. The painter agreed to paint the house at a discounted rate if the investor would allow him to put a sign in the front yard of the house advertising the painter’s new business. The investor chose a color and told the painter, “I don’t know anything about painting, so just do the job in your usual manner.” The investor paid the painter in advance for his services. As the painter was painting the side of the house, he accidentally flung a bucket of paint from the ladder where he was working. The bucket hit the investor’s neighbor in the head, causing the neighbor to suffer a concussion. The neighbor has asserted claims against the investor and the painter for his injuries.
If the neighbor recovers from the investor under a theory of vicarious liability, does the investor have any recourse against the painter?
A No, because payment by the investor was an acceptance of the work.
B No, because the investor selected the painter to do the work.
C Yes, because the judgment against the investor was based on vicarious liability.
D Yes, because the investor’s conduct was not a factual cause of the harm.
C Yes, because the judgment against the investor was based on vicarious liability.
A first-class passenger on an airplane flight from Atlanta to Chicago was seated next to a middle-aged salesman who was returning home after attending a business convention in Atlanta. The passenger, who was extremely exhausted after a long and hectic day, tried to sleep during the flight but was constantly being annoyed by the salesman. Once the flight departed, the salesman started ordering drinks of Scotch and water from the flight attendant, and became inebriated. When the passenger refused to talk to him, the salesman became very abusive to the passenger. Although there were many empty seats available on the plane in the first-class section, the passenger decided to remain seated next to the salesman. Finally, after the flight attendant had served the salesman his tenth drink of Scotch, the salesman became belligerent and punched the passenger in the mouth. The passenger’s two front teeth were knocked loose and she suffered a cut lip.
If the passenger asserts a claim against the airline based on negligence, what is the most likely outcome?
A. The passenger will prevail, because as a first class passenger, she was owed a special duty of care by the airline.
B. The passenger will prevail, because the flight attendant should have been aware that her conduct caused an unjustifiable risk of harm.
C. The passenger will not prevail, because the airline is not vicariously liable for the tortious conduct of its passengers.
D. The passenger will not prevail, because the passenger assumed the risk by not moving to another seat away from the salesman.
B. The passenger will prevail, because the flight attendant should have been aware that her conduct caused an unjustifiable risk of harm.
A city was experiencing a severe water shortage. To mitigate the problem, the city enacted an ordinance
limiting total water use and prohibiting the use of water by private citizens for any purpose other than
that of personal hygiene, cooking, and personal consumption. Use of water for landscaping, gardening,
washing cars, and the like was strictly prohibited and punishable by fines of up to $5,000.
A homeowner had a thriving vegetable garden which required daily watering. Because she limited her
personal water use, she felt justified in limited use of sprinklers to water her garden. The sprinklers were
timed to water the garden between 6:00 and 6:20 p.m. every night, before the homeowner got home
from work. As her garden was in her backyard, the homeowner was relatively confident that her water
use would go unnoticed by town officials, and it did. However, the sprinklers did not escape the attention
of a boy and his friend, the seven- and eight-year-old boys who lived on either side of the homeowner.
Noting that the homeowner’s sprinklers went off like clockwork every night at 6:00 p.m., just when temperatures
in the desert town were peaking, the boy and his friend made a habit of putting on their bathing
suits and sneaking into the homeowner’s backyard to run through the sprinklers, unbeknownst to their
mothers and to the homeowner.
One evening, in his enthusiasm, one of the boys tripped over the sprinkler spigot and scratched his
ankle. The wound went unnoticed by his mother until several days later, when she saw that her son was
limping. She took him to the doctor only to learn that he had developed a staph infection and required immediate
hospitalization. The boy was hospitalized for over a month before he recovered sufficiently to be
released, but his infected leg remained weak and his medical bills were extensive. The boy’s mother filed
suit against the homeowner to recover her medical expenses and lost wages, citing the homeowner’s
violation of the ordinance. The court accepted the statute as written.
Which of the following statements is most accurate?
(C) The boy’s mother will not prevail, because she was negligent in failing to control her child.
(B) The boy’s mother will prevail, because the attractive nuisance doctrine applies.
(D) The boy’s mother will not prevail, because the homeowner did not breach a duty of care or commit negligence per see.
(A) The boy’s mother will prevail, because the homeowner’s violation of the ordinance constituted negligence per se.
(D) The boy’s mother will not prevail, because the homeowner did not breach a duty of care or commit negligence per see.
