Torts Flashcards
A hardware store had a public pay telephone attached to the outside wall of its building. The telephone was owned and operated by the local telephone company. On Thursday, November 25, the store was closed for Thanksgiving. A resident, who lived two doors away, walked to the hardware store to use the telephone. He wanted to call his son and daughter-in-law to wish them a happy Thanksgiving, but his home phone was out of order. The resident picked up the receiver, inserted coins for the cost of the call, and promptly received an electric shock. Although the resident was momentarily stunned, he did not suffer any pain or injuries. Unknown to the resident, a technician employed by the telephone company had incorrectly rewired the telephone the previous day, causing a short circuit in the telephone mechanism.
In a suit against the telephone company and the hardware store, the resident will:
A. Prevail because the technician was acting within the scope of employment.
B. Prevail because of the doctrine of respondeat superior.
C. Not prevail because the resident suffered no injury.
D. Not prevail because the technician was the proximate cause of the injury.
(D) A negligence action requires proof that the plaintiff suffered some actual harm. Consequently, because the resident did not suffer any pain or other harm from the electrical shock, he would be unsuccessful in his negligence action. Choices (A), (B), and (C) are incorrect because, in order for a plaintiff to prevail in a negligence cause of action, there must be some harm or injury to the plaintiff’s person or property.
A small city used the local police department to provide security at its municipally owned sports venue. One windy fall afternoon, an hour before the kickoff of a professional football game, a fan discarded a plastic bag, which then blew away and landed in the bridle of a police officer’s horse. The officer, a city employee, was riding on horseback to assist in crowd control. The officer lunged forward to grab the plastic bag but lost his balance and fell from the stirrups. Embarrassed, the officer quickly got up and carelessly pulled down on the bridle rather than up, as he should have, to shake the bag loose. The horse became frightened and reared up, and with the plastic bag still blocking its vision, raced off into the crowd. A 78-year-old man was at the main entry gate stepping out of a charter bus he had taken to see the game. The horse struck the man and threw him into the air. The man landed on his head and died. In an action by the man’s estate against the city police department, will the man’s estate prevail?
(A) No, because the firefighter’s rule bars recovery against the police department.
(B) No, because the fan was the proximate cause of the man’s harm.
(C) Yes, because the defendant had an absolute duty to keep the premises safe.
(D) Yes, because the defendant’s conduct was the proximate cause of the plaintiff’s injuries.
?(D) Yes, because the defendant’s conduct was the proximate cause of the plaintiff’s injuries.?
A pedestrian was walking in front of a hotel in the downtown area when a chair was thrown from an unidentified window. The chair struck the pedestrian on the head, knocking her unconscious. When the pedestrian recovered consciousness, she found herself in a nearby hospital with a doctor in attendance. An examination revealed that the pedestrian had suffered a concussion and severe head lacerations. A subsequent investigation revealed that the chair had, in fact, been thrown from a window at the hotel. None of the hotel’s employees or guests, however, admitted culpability for the incident. If the pedestrian asserts a claim against the hotel for negligence, will the doctrine of res ipsa loquitur enable her to recover?
(A) Yes, because the chair was within the control of the hotel.
(B) Yes, because a chair is not usually thrown from a window in the absence of someone’s negligence.
(C) No, because the chair was not within the control of the hotel at the time the pedestrian was injured.
(D) No, because the hotel is not vicariously liable for the tortious conduct of its employees.
(C) The doctrine of res ipsa loquitur allows a plaintiff to recover when there is strong circumstantial evidence that the defendant was negligent, even though the plaintiff cannot identify exactly what the defendant did that was negligent. The doctrine originated in Byrne v. Boadle, 159 Eng. Rep. 299 (1863), a British case involving a person who was walking down the street when he was suddenly struck on the head by a barrel of flour. Figuring that the barrel must have come from the warehouse located next to the spot where he was hit by the barrel, the injured person sued the owner of the warehouse. Although the plaintiff could not show exactly what anyone did that was negligent, the court said that the situation spoke for itself, and that negligence could be inferred because it seemed that a barrel would not fall unless one of the defendant’s employees had been negligent in some way. A different situation, with a different result, arose in Larson v. St. Francis Hotel, 188 R2d 513 (Cal. Ct. App. 1948), where a plaintiff was struck by a chair thrown by an unidentified person from an unidentified window of the defendant’s hotel. The plaintiff was unable to recover because the building in question was a hotel. It was not clear that the chair was thrown by an employee of the hotel, rather than a guest. The chair, thus, was not under the exclusive control of the hotel and its employees, and there was no sound basis for inferring that the hotel or its employees must have been negligent. This question is like the Larson case, rather than the Byrne case, so res ipsa loquitur does not apply, and the plaintiff will lose. Choice (A) is incorrect because the chair may have been thrown by a hotel guest, so the chair was not under the hotel’s exclusive controL. Choice (B) is incorrect because even though it may be clear that someone was negligent, that negligent person could have been a hotel guest, rather than a hotel employee. Choice CD) is incorrect because a hotel can be vicariously liable for the tortious conduct of its employees, but it is not clear that it was one of the employees (rather than a hotel guest) who was negligent.
In 2009, State X passed a law prohibiting smoking in all public buildings in the state. Lengthy debate preceding the bill centered on the dangers of second-hand smoke. After the law was passed, a man lit a cigarette in a restaurant within State X. He was immediately told by the waiter to extinguish the cigarette, which he did by throwing it in a wastebasket. Immediately thereafter, smoke began to rise from the wastebasket, and soon the restaurant was filled with smoke. As the customers ran out in panic, one of them stumbled and broke his leg.
The injured customer then brought an action against the man for violating the law against smoking in public places. Will the customer prevail?
(A) Yes, because the man was the proximate cause of the customer’s injuries.
(B) Yes, because the man is strictly liable.
(C) No, because the restaurant was negligent in not protecting its customers.
(D) No, because the customer was not injured by second-hand smoke.
?(D) No, because the customer was not injured by second-hand smoke.?
A building inspector entered a businessman’s property to conduct a routine inspection. As part of his work, the inspector examined the metal fire escape on the side of the building. Unknown to the businessman, the metal stairs of the fire escape were rusted and weak. As the building inspector began to ascend the fire escape, one of the steps broke, and he fell breaking his leg. Later, the building inspector brought a negligence claim against the businessman. Who will prevail?
(A) The inspector because the fire escape was a dangerous condition on the businessman’s property.
(B) The inspector, because the failure of the businessman to inspect the fire escape himself was the proximate cause of the injury.
(C) The businessman because the inspector was an unknown trespasser.
(D) The businessman because he did not know the step was rusted.
?(D) The businessman because he did not know the step was rusted.?
A homeless man was in dire need of bathroom facilities. As he walked down the street, he noticed a building with a sign attached to the door which read “Private Club—NO Trespassing.” Despite the sign, he entered the door and ran to the bathroom. On his way there, he tripped on a ripped piece of carpeting that the Club was aware of, and was scheduled to be fixed the next day. The homeless man suffered a broken leg.
If the homeless man brings a tort action against the Club, who will prevail?
(A) The homeless man because the Club failed to warn him of the dangerous carpet.
(B) The homeless man because he was a business invitee.
(C) The Club because the carpet was scheduled to be fixed the next day.
(D) The Club because the homeless man had no authority to enter the building.
?(B) The homeless man because he was a business invitee.?
A patron checked into a hotel. The hotel’s outer structure had been built as a replica of the classic Roman style of architecture with Ionic columns and marble frescoes draped over the entrance. The elaborate entryway led inside to a variety of shops and restaurants that adjoined the hotel lobby. The hotel management knew that pigeons often nested inside the overhead sculptures. This resulted in pigeon droppings frequently falling outside the main entryway. Consequently, the hotel management instructed its employees to clean the area around the front entrance on a daily basis. One afternoon, one of the patron’s friends came by the hotel to pay a visit. As the friend walked under the columns to enter the hotel, he slipped on some pigeon droppings that had not been wiped up. On this particular day, the hotel employees had failed to clean the entrance area. Injuring his leg, the friend now brings suit against the hotel. In his personal injury action, will the friend recover?
(A) Yes, because the hotel employees knew of the dangerous condition and failed to remedy it in a timely manner.
(B) Yes, because the hotel employees had not cleaned the entryway.
(C) No, because the friend was not a paying guest of the hotel.
(D) No, because the hotel is only responsible for natural conditions on the land.
(A) Yes, because the hotel employees knew of the dangerous condition and failed to remedy it in a timely manner.
An inmate was serving a life term in prison without parole for first-degree murder. A prison guard had even been injured on several occasions while breaking up fights involving the inmate. On one particular day, while on his rounds, the prison guard observed the inmate walking toward the stairwell that the prison guard knew was in disrepair. One of the steps near the top of the stairwell was missing. Just as the prison guard was about to call
out to warn the inmate, the prison guard recalled the broken rib he had suffered during the last fight he broke up involving the inmate. Instead of warning the inmate, the prison guard decided to stand back and watch the inmate get what was coming to him. The inmate tumbled down the stairs and was rendered unconscious. The inmate sued the prison guard for negligence. Which of the following is correct?
(A) The prison guard will not be held liable for negligence, because he had been injured helping the inmate in the past.
(B) The prison guard should be held liable for negligence.
(C) The prison guard will not be held liable for negligence, because the prison guard did not cause the inmate’s injury; the fall down the stairs did.
(D) The guard will not be held liable for negligence, because the guard was not responsible for keeping the stairwell in good repair.
?>(C) The prison guard will not be held liable for negligence, because the prison guard did not cause the inmate’s injury; the fall down the stairs did.?
A man decided to commit suicide by jumping off a bridge. After climbing over the railing, he stood on the bridge’s ledge and contemplated his death. Just as he was about to jump, a cyclist rode past and yelled for the man not to do it. The cyclist leaped from her bike, reached over the railing, and pulled the man to safety. In doing so, the cyclist suffered a serious back injury.
The cyclist brought a tort action against the man. Will she prevail?
(A) No, because she was under no duty to aid the man.
(B) No, because she assumed the risk of injury.
(C) Yes, because she had a duty to help the man.
(D) Yes, because the man created the peril.
(D) Yes, because the man created the peril.
A man built an in-ground swimming pool in his backyard. In order to keep trespassers away, he posted large signs: “NO Trespassing—Beware of Vicious Guard Dogs.” Although he had no such dogs, he believed this harmless prevarication would keep the neighborhood kids away from the pool. A few weeks later, the 14-year-old neighbor decided that he needed to cool off on a hot day. Despite the signs, he jumped into the pool for a swim. Due to his poor swimming technique, he drowned.
His parents then brought a negligence suit against the man. Which of the following provides the man his best defense?
(A) The boy was a trespasser.
(B) The parents were negligent in supervising the boy.
(C) The boy’s poor swimming was the cause of his injury.
(D) The boy was old enough to understand the risk of swimming in the pool.
(D) The boy was old enough to understand the risk of swimming in the pool.
