Torts Flashcards
During a deer-hunting season open to rifle hunters, a hunter saw a deer in the forest. He shot his rifle at the deer, hoping to hit and kill it. Instead, he hit and injured a hiker. The hunter had not realized that the hiker was there.
Does the injured hiker have an actionable battery claim against the hunter?
(A) No, because the hunter did not intend to shoot the hiker.
(B) No, because the hunter did not make direct physical contact with the hiker.
(C) Yes, because the bullet from the hunter’s rifle made direct physical contact with the hiker.
(D) Yes, because the hunter intentionally shot the rifle.
(A). The deer is not a person or a chattel, so transferred intent does not apply.
A pilot was flying his small plane when he experienced engine trouble and was forced to make an emergency landing. He landed the plane safely in a large yard behind a home located in a relatively remote area. Unfortunately, when he disembarked from the plane, he was attacked and injured by two large dogs kept by the homeowner to discourage trespassers. The homeowner, who had seen the plane land, had ordered the dogs to attack. Several months earlier, the homeowner had posted large signs around the perimeter of the yard warning of the dogs.
Does the pilot have a viable claim against the homeowner for battery?
(A) No, because the homeowner had provided adequate warning.
(B) No, because the pilot was a trespasser.
(C) Yes, because the pilot can invoke the privilege of necessity.
(D) Yes, because the pilot could not reasonably have been expected to see the warning signs posted by the homeowner.
(C). The pilot is a trespasser, which may give the homeowner a valid defense for batter UNLESS the pilot had a privilege for the trespass, as was the case here.
A mother and her six-year-old child were on a walk when the mother stopped to talk with an elderly neighbor. Because the child resented having his mother’s attention diverted by the neighbor, the child angrily threw himself against the neighbor and knocked her to the ground. The neighbor suffered a broken wrist as a result of the fall.
In an action for battery by the neighbor against the child, what is the strongest argument for liability?
(A) The child intended to throw himself against the neighbor.
(B) The child was old enough to appreciate that causing a fall could inflict serious injury.
(C) The child was old enough to appreciate the riskiness of his conduct.
(D) The child was not justified in his anger.
(A). To recover on a claim for battery, it is sufficient for the neighbor to show that the child intended to touch the neighbor in a way that would be considered harmful or offensive, even though the child may have been too young to understand that what he was doing was wrong or to appreciate that the neighbor might be unusually vulnerable to injury.
An ordinance in a small town required all restaurants to designate smoking and nonsmoking sections for their customers. A cigarette smoker and a nonsmoker were seated at adjoining tables in a small restaurant. The smoker’s table was in the smoking section, and the nonsmoker’s table was in the nonsmoking section. When the smoker lit a cigarette, the nonsmoker politely requested that he not smoke, explaining that she had a severe allergy to cigarette smoke. The smoker ignored the nonsmoker’s request and continued to smoke. As a result, the nonsmoker was hospitalized with a severe allergic reaction to the smoke.
The nonsmoker brought a battery action against the smoker.
Which of the following questions will NOT be an issue in the battery action?
(A) Did the smoker intend to cause the nonsmoker’s contact with the cigarette smoke?
(B) Does smoke have the physical properties necessary for making the kind of contact required for battery?
(C) Is contact with cigarette smoke from a lawful smoking section in a restaurant the kind of contact one must endure as a voluntary restaurant patron?
(D) Was the smoker’s conduct unreasonable under the circumstances?
(D). Whether a battery defendant’s conduct was reasonable under the circumstances is irrelevant if in fact the defendant intended to make a harmful or offensive contact with the plaintiff. It would be relevant in a negligence action, but not in a battery action.
A rancher and his neighbor were involved in a boundary dispute. In order to resolve their differences, each drove his truck to an open pasture area on his land where the two properties were separated by a fence. The rancher was accompanied by four friends, and the neighbor was alone.
The neighbor got out of his truck and walked toward the fence. The rancher got out but simply stood by his truck. When the neighbor came over the fence, the rancher shot him, inflicting serious injury.
In a battery action brought by the neighbor against the rancher, the rancher testified that he actually thought his neighbor was armed, although he could point to nothing that would have reasonably justified this belief.
Is the neighbor likely to prevail?
(A) No, because the rancher was standing on his own property and had no obligation to retreat.
(B) No, because the rancher suspected that the neighbor was armed.
(C) Yes, because deadly force is never appropriate in a property dispute.
(D) Yes, because it was unreasonable for the rancher to consider the use of a gun necessary for self-defense.
(D) It is true that force sufficient to cause serious bodily injury cannot be used to protect property, but a property dispute can escalate to a situation in which the participants are in danger of bodily harm. In this case, the rancher will argue that he feared that the neighbor was going to shoot him.
While the rancher’s belief that deadly force was necessary to protect himself from harm may have been actual, it was not reasonable. To justify the use of force sufficient to cause death or serious bodily injury, a defendant must have a reasonable belief that he himself is threatened with force of that sort.
A man tied his dog to a bike rack in front of a store and left the dog there while he went inside to shop. The dog was usually friendly and placid.
A five-year-old child started to tease the dog by pulling gently on its ears and tail. When the man emerged from the store and saw what the child was doing to the dog, he became extremely upset.
Does the man have a viable claim against the child for trespass to chattels?
(A) No, because the child did not injure the dog.
(B) No, because the child was too young to form the requisite intent.
(C) Yes, because the child touched the dog without the man’s consent.
(D) Yes, because the child’s acts caused the man extreme distress.
(A). Trespass to chattels requires that the plaintiff show actual harm to or deprivation of the use of the chattel for a substantial time. Here the child’s acts caused emotional distress to the man, but the acts did not result in harm to the man’s material interest in the dog. Even a small child can commit an intentional tort, such as trespass to chattels, so long as the child is old enough to form an intent to touch.
In a civil action, a plaintiff sued a decedent’s estate to recover damages for injuries she suffered in a collision between her car and one driven by the decedent. At trial, the plaintiff introduced undisputed evidence that the decedent’s car had swerved across the centerline of the highway into oncoming traffic, where it had collided with the plaintiff’s car. The decedent’s estate introduced undisputed evidence that, before he swerved across the centerline, the decedent had suffered a fatal heart attack, which he had no reason to foresee, and that, just prior to the heart attack, the decedent had been driving at a reasonable speed and in a reasonable manner. A statute makes it a traffic offense to cross the median of a highway.
In this case, which party is likely to prevail?
(A) The decedent’s estate, because its rebuttal evidence is undisputed.
(B) The decedent’s estate, because the plaintiff has not established a prima facie case of liability.
(C) The plaintiff, because the accident was of a type that does not ordinarily happen in the absence of negligence on the actor’s part.
(D) The plaintiff, because the decedent crossed the median in violation of the statute.
(A). The decedent’s estate is likely to prevail because the evidence that the decedent’s estate has produced, that is, the evidence that established that the decedent was driving reasonably prior to his heart attack, is undisputed. Because this evidence rebuts the plaintiff’s evidence of negligence, and because the defendant’s evidence is undisputed, there is nothing more that the plaintiff has to support her negligence claim.
A bright 12-year-old child attended a day-care center after school. The day-care center was located near a man-made duck pond on the property of a corporation. During the winter, the pond was used for ice-skating when conditions were suitable. At a time when the pond was obviously only partially frozen, the child sneaked away from the center’s property and walked out onto the ice over the pond. The ice gave way, and the child fell into the cold water. He suffered shock and would have drowned had he not been rescued by a passerby. At the time of the incident, the pond was clearly marked with numerous signs that stated, “THIN ICE—KEEP OFF.” When the child sneaked away from the day-care center, the center was staffed with a reasonable number of qualified employees, and the employees were exercising reasonable care to ensure that the children in their charge did not leave the premises. There had not been a previous instance of a child coming onto the corporation’s property from the day-care center. The jurisdiction follows a rule of pure comparative negligence.
In a suit brought on the child’s behalf against the corporation and based only on the facts above, who is likely to prevail?
(A) The child, because the corporation owes a duty to keep its premises free of dangerous conditions.
(B) The child, because the pond was an attractive nuisance.
(C) The corporation, because the danger of thin ice may reasonably be expected to be understood by a 12-year-old child.
(D) The corporation, because the day-care center had a duty to keep the child off the ice.
(C). The corp didn’t know of Ts, and warned of the dangerous condition. The daycare center employees acted w/ reasonable care. The pond was “obviously” only partially frozen, and the child was “bright”.
A patient received anesthesia while giving birth. Upon awakening from the anesthesia, she discovered a severe burn on the inner portion of her right knee. The patient has brought a medical malpractice action in which she has joined all of the physicians and nurses who exercised control over her person, the delivery room, the medical procedures, and the equipment used during the period in which she was unconscious.
The defendants have jointly moved for summary judgment. The patient has produced affidavits that establish that the applicable professional standard of care was violated.
What would be the patient’s best argument against the motion?
(A) At least one of the defendants had control over whatever agency or instrumentality caused the patient’s injury.
(B) The defendants were acting in concert.
(C) The patient has produced affidavits that establish that the applicable professional standard of care was violated.
(D) The patient was in no way responsible for her injury.
(A). Ybarra v. Spangard and cases that follow its approach have relied on this extension of res ipsa loquitur to establish causation in situations in which the plaintiff was treated by a medical team that, as a group, had exclusive control of the patient and in which the patient, because she was unconscious, cannot identify what went wrong. The doctrine may be limited to medical cases like this one, in which there may be a concern that none of the medical professionals would be willing to testify against another.
Desmond fell while attempting to climb a mountain, and lay unconscious and critically injured on a ledge that was difficult to reach. Pearson, an experienced mountain climber, was himself seriously injured while trying to rescue Desmond. Pearson’s rescue attempt failed, and Desmond died of his injuries before he could be reached.
Pearson brought an action against Desmond’s estate for compensation for his injuries. In this jurisdiction, the traditional common-law rules relating to contributory negligence and assumption of risk remain in effect.
Will Pearson prevail in his action against Desmond’s estate?
(A) Yes, if his rescue attempt was reasonable.
(B) Yes, because the law should not discourage attempts to assist persons in helpless peril.
(C) No, unless Desmond’s peril arose from his own failure to exercise reasonable care.
(D) No, because Pearson’s rescue attempt failed and therefore did not benefit Desmond.
(C) If Desmond’s peril arose from his own negligence, his estate can be liable to his rescuer. Choice A is wrong because it suggests a reasonableness standard for Pearson’s conduct, not the wanton or reckless standard applied to rescuers at common law.
A four-year-old child sustained serious injuries when a playmate pushed him from between two parked cars into the street, where he was struck by a car. The child, by his representative, sued the driver of the car, the playmate’s parents, and his own parents. At trial, the child’s total damages were determined to be $100,000. The playmate’s parents were determined to be 20% at fault because they had failed to adequately supervise her. The driver was found to be 50% at fault. The child’s own parents were determined to be 30% at fault for failure to adequately supervise him. The court has adopted the pure comparative negligence doctrine, with joint and several liability, in place of the common law rules relating to plaintiff’s fault. In addition, the common law doctrines relating to intra-family liability have been abrogated.
What is the maximum amount, if anything, that the child’s representative can recover from the driver?
(A) 30000
(B) 50000
(C) 100000
(D) Nothing.
(C) 100,000. This correctly applies the black-letter laws related to comparative negligence and J+S liability to the facts.
J+S liability: any 1 Δ (sharing some % of fault for accident to Π) can be liable for all of Π’s injuries; Δ can choose one Δ to sue (then that Δ will later sue others for their share).
….
Which cause of action would NOT permit the Δ to recover punitive damages?
(A) Assault
(B) Battery
(C) Negligence
(D) Recklessness
(C). Punitive damages not available in ordinary negligence cases.
A firstborn child was examined as an infant by a doctor who was a specialist in the diagnosis of speech and hearing impairments. Although the doctor should have concluded that the infant was totally deaf due to a hereditary condition, the doctor negligently concluded that the infant’s hearing was normal. After the diagnosis, but before they learned that the infant was in fact deaf, the parents conceived a second child who also suffered total deafness due to the hereditary condition.
The parents claim that they would not have conceived the second child had they known of the high probability of the hereditary condition. They have sought the advice of their attorney regarding which negligence action against the doctor is most likely to succeed.
What sort of action against the doctor should the attorney recommend?
(A) A medical malpractice action seeking damages on the second child’s behalf for expenses related to his deafness, on the ground that the doctor’s negligence caused him to be born deaf.
(B) A wrongful birth action by the parents for expenses they have incurred due to the second child’s deafness, on the ground that but for the doctor’s negligence, they would not have conceived the second child.
(C) A wrongful life action by the parents for expenses for the entire period of the second child’s life, on the ground that but for the doctor’s negligence, the second child would not have been born.
(D) A wrongful life action on the second child’s behalf for expenses for the entire period of his life, on the ground that but for the doctor’s negligence, he would not have been born.
(B). This course of action will be permitted in many states. The parents sought an accurate assessment of their first child, which the doctors failed to provide. The parents can recover only for the additional expenses related to the child’s deafness.
A pedestrian was injured when hit by a chair that was thrown from an upper-story hotel window. The pedestrian sued the occupants of all the rooms from which the chair might have been thrown.
At trial, the pedestrian has been unable to offer any evidence as to the exact room from which the chair was thrown. The defendants have filed a motion for a directed verdict.
Should the court grant the motion?
(A) No, because it is unreasonable to expect the pedestrian to prove which of the defendants caused the harm.
(B) No, because of the doctrine of alternative liability.
(C) Yes, because a plaintiff always has the burden to prove that a particular defendant’s conduct was the factual cause of the plaintiff’s physical harm.
(D) Yes, because the pedestrian has failed to offer evidence that the defendants jointly engaged in tortious conduct.
(D) There is no evidence offered by the Π as to which Δ did this, and there is no evidence that these Δs occupying separate rooms were acting in concert.
A man and a woman were competing in an illegal drag race. Both of them were driving over the speed limit but were otherwise driving very carefully.
However, when a tire on the woman’s car suddenly blew out, she lost control of her car and crashed, injuring a pedestrian.
The pedestrian later sued the man, because the woman had no insurance or assets.
Will the pedestrian be likely to prevail in that action?
(A) No, because the man did not cause the injury.
(B) No, because the man was driving very carefully.
(C) Yes, because the man and the woman were acting in concert in a dangerous activity.
(D) Yes, because the man was exceeding the speed limit.
(C). When people are acting in concert in a dangerous activity, they are all liable even if only 1 of them causes the injury. You can’t have a drag race by yourself.
Plaintiff was a passenger in a car that was struck in the rear by a car driven by First. The collision resulted from First’s negligence in failing to keep a proper lookout. Plaintiff’s physician found that the collision had aggravated a mild osteoarthritic condition in her lower back and had brought on similar, but new, symptoms in her neck and upper back.
Six months after the first accident, Plaintiff was a passenger in a car that was struck in the rear by a car driven by Second. The collision resulted from Second’s negligence in failing to keep a proper lookout. Plaintiff’s physician found that the second collision had caused a general worsening of Plaintiff’s condition, marked by a significant restriction of movement and muscle spasms in her back and neck. The physician believes Plaintiff’s worsened condition is permanent, and he can find no basis for apportioning responsibility for her present worsened condition between the two automobile collisions.
Plaintiff brought an action for damages against First and Second. At the close of Plaintiff’s evidence, as outlined above, each of the defendants moved for a directed verdict in his favor on the ground that Plaintiff had failed to produce evidence on which the jury could determine how much damage each defendant had caused. The jurisdiction adheres to the common-law rules regarding joint and several liability.
Plaintiff’s best argument in opposition to the defendants’ motions would be that the defendants are jointly and severally liable for Plaintiff’s entire harm, because
(A) the wrongdoers, rather than their victim, should bear the burden of the impossibility of apportionment.
(B) the defendants breached a common duty that each of them owed to Plaintiff.
(C) each of the defendants was the proximate cause in fact of all of Plaintiff’s damages.
(D) the defendants are joint tortfeasors who aggravated Plaintiff’s preexisting condition.
(A) Together, joint and several liability do exactly what Choice A suggests: they shift the burden of dividing up responsibility from the plaintiff to the defendants. Choice (B) is correct in the sense that each defendant breached a duty to the plaintiff, but it isn’t relevant to the defendants’ motion about damages.
Driver negligently drove his car into Pedestrian, breaking her leg. Pedestrian’s leg was put in a cast, and she used crutches to get about. While shopping at Market, her local supermarket, Pedestrian nonnegligently placed one of her crutches on a banana peel that had been negligently left on the floor by the manager of Market’s produce department. Pedestrian’s crutch slipped on the peel, and she fell to the floor, breaking her arm. Had Pedestrian stepped on the banana peel at a time when she did not have to use crutches, she would have regained her balance.
Pedestrian sued Driver and Market for her injuries.
Pedestrian will be able to recover from
(A) Driver, for her broken leg only.
(B) Driver, for both of her injuries.
(C) Market, for both of her injuries.
(D) Driver, for her broken leg only, and Market, for her broken arm only.
(B). Even though the manager of Market’s produce section was negligent in leaving the banana peel on the floor, that’s not going to be enough to break the causal chain between Driver and Pedestrian. In other words, the manager’s negligence was an intervening cause that contributed to the fall but not a superseding cause that got Driver off the hook. When Driver left Pedestrian in an injured state, it was foreseeable that she might suffer subsequent injuries related to that state, so Driver remains responsible.
Adam’s car sustained moderate damage in a collision with a car driven by Basher. The accident was caused solely by Basher’s negligence. Adam’s car was still drivable after the accident. Examining the car the next morning, Adam could see that a rear fender had to be replaced. He also noticed that gasoline had dripped onto the garage floor. The collision had caused a small leak in the gasoline tank.
Adam then took the car to Mechanic, who owns and operates a body shop, and arranged with Mechanic to repair the damage. During their discussion Adam neglected to mention the gasoline leakage. Thereafter, while Mechanic was loosening some of the damaged material with a hammer, he caused a spark, igniting vapor and gasoline that had leaked from the fuel tank. Mechanic was severely burned.
Mechanic has brought an action to recover damages against Adam and Basher. The jurisdiction has adopted a pure comparative negligence rule in place of the traditional common-law rule of contributory negligence.
In this action, will Mechanic obtain a judgment against Basher?
(A) No, unless there is evidence that Basher was aware of the gasoline leak.
(B) No, if Mechanic would not have been harmed had Adam warned him about the gasoline leak.
(C) Yes, unless Mechanic was negligent in not discovering the gasoline leak himself.
(D) Yes, if Mechanic’s injury was a proximate consequence of Basher’s negligent driving.
(D). Mechanic will be able to recover from Basher if he can prove Basher’s negligence was a proximate cause of his injuries. Any negligence by Adam may give rise to joint and several liability but it will not get Basher completely off the hook.
An elderly neighbor hired a 17-year-old boy with a reputation for reckless driving to drive the neighbor on errands once a week. One day the teenager, driving the neighbor’s car, took the neighbor to the grocery store. While the neighbor was in the store, the teenager drove out of the parking lot and headed for a party on the other side of town.
While on his way to the party, the teenager negligently turned in front of a moving car and caused a collision. The other driver was injured in the collision.
The injured driver has brought an action for damages against the neighbor, based on negligent entrustment, and against the teenager.
The jury has found that the injured driver’s damages were $100,000, that the injured driver was 10% at fault, that the teenager was 60% at fault, and that the neighbor was 30% at fault for entrusting his car to the teenager.
Based on these damage and responsibility amounts, what is the maximum that the injured driver could recover from the neighbor?
(A) 100000
(B) 90000
(C) 60000
(D) 30000
(B). In a system of pure comparative negligence with joint and several liability, a plaintiff can recover all the damages due, after discounting for the plaintiff’s negligence, from any one of the defendants, and that defendant must pursue the other defendants for contribution. In this case, the driver would be able to recover the full $90,000 from the neighbor, and the neighbor would have to pursue the teenager for contribution of his $60,000 share.
A man and his friend, who were both adults, went to a party. The man and the friend had many drinks at the party and became legally intoxicated. They decided to play a game of chance called“Russian roulette”using a gun loaded with one bullet. As part of the game, the man pointed the gun at the friend and, on her command, pulled the trigger. The man shot the friend in the shoulder.
The friend has brought a negligence action against the man. Traditional defenses based on plaintiff’s conduct apply. What is likely to be the dispositive issue in this case?
(A) Whether the game constituted a joint venture.
(B) Whether the friend could validly consent to the game.
(C) Whether the friend was also negligent.
(D) Whether the man was legally intoxicated when he began playing the game.
(C). Contributory negligence is an appropriate defense to a negligence action, and here both parties seem to have been acting unreasonably in exactly the same way. Whether the argument is put in the form of the friend’s carelessness in engaging in the activity or in her unreasonable assumption of risk, many states would now evaluate the defense under comparative negligence principles.
A plumbing company hired a worker to work at various construction sites. The worker used his own truck to travel between the company’s warehouse and the construction sites, but the company fitted the truck with a rack for carrying plumbing pipes. The company paid the worker for traveling between the warehouse and the construction sites, but not for his drive to and from work.
Because the worker was required to haul pipes on his truck while driving between the warehouse and the construction sites, the company asked the worker, before hiring him, whether he had a valid driver’s license. The worker represented that he did, although in fact his license had been suspended because he had been convicted of recklessly causing motor vehicle collisions. The company made no effort to verify the worker’s representation.
While driving to work one morning in his truck, the worker carelessly caused a collision in which a woman was injured.
In her subsequent action against the plumbing company, based on a theory of negligent hiring, is the woman likely to prevail?
(A) No, because the company’s duty to use reasonable care in hiring a competent driver extended only to actions taken by the worker in the scope of his employment.
(B) No, because the worker was an independent contractor.
(C) Yes, because the company fitted the worker’s truck with a pipe rack.
(D) Yes, because the company had a duty to ensure that its workers had valid driver’s licenses.
(A). An employee’s commute to/from work is not considered to be within the scope of one’s employment.
Jones, who was driving his car at night, stopped the car and went into a nearby tavern for a drink. He left the car standing at the side of the road, projecting three feet into the traffic lane. The lights were on and his friend, Peters, was asleep in the back seat. Peters awoke, discovered the situation, and went back to sleep. Before Jones returned, his car was hit by an automobile approaching from the rear and driven by Davis. Peters was injured.
Peters sued Davis and Jones jointly to recover the damages he suffered resulting from the accident. The jurisdiction has a pure comparative negligence rule and has abolished the defense of assumption of risk. In respect to other issues, the rules of the common law remain in effect.
Peters should recover
(A) nothing, if Peters was more negligent than either Davis or Jones.
(B) nothing, unless the total of Davis’s and Jones’s negligence was greater than Peters’s.
(C) from Davis and Jones, jointly and severally, the amount of damages Peters suffered reduced by the percentage of the total negligence that is attributed to Peters.
(D) from Davis and Jones, severally, a percentage of Peters’s damages equal to the percentage of fault attributed to each of the defendants.
(C). Comparative negligence is the majority rule that applies when a defendant introduces evidence that the plaintiff was partially at fault for his own injury. The jury then conducts a “fault analysis” to determine what percentage of the parties’ total negligence it should attribute to the plaintiff. Under a pure comparative negligence regime, you reduce the plaintiff’s damages by her percentage of fault, no matter what that percentage is.
We can eliminate choices A and B because they are not consistent with pure comparative negligence. Choice A describes contributory negligence, and Choice B describes a result you would get with partial contributory negligence. Choices C and D do look like pure comparative negligence because they call for reducing Peter’s recovery by whatever percentage of fault the jury assigns. What distinguishes C and D is whether Peter gets a reward based on joint and several liability or severally based on the percentages of fault assigned to Davis and Jones. We know joint and several liability is the default approach, and the fact pattern says nothing about a different rule in this jurisdiction. So choice C is the correct answer, and choice D is wrong.
Deland operates a bank courier service that uses armored trucks to transport money and securities. One of Deland’s armored trucks was parked illegally, too close to a street intersection. Pilcher, driving his car at an excessive speed, skidded into the armored truck while trying to make a turn. The truck was not damaged, but Pilcher was injured.
Pilcher has brought an action against Deland to recover damages for his loss resulting from the accident. The jurisdiction follows a pure comparative negligence rule.
In this action, Pilcher should recover
(A) nothing, because Deland was not an active or efficient cause of Pilcher’s loss.
(B) nothing, if Deland was less negligent than Pilcher.
(C) his entire loss, reduced by a percentage that reflects the negligence attributed to Pilcher.
(D) his entire loss, because Deland’s truck suffered no damage.
(C) The plaintiff’s damages will be reduced by his percentage of fault, no matter what that percentage is. Here, we learn that Pilcher was driving at an excessive speed when he skidded into Deland’s truck, so a fault analysis and a percentage reduction are appropriate.
Dan, an eight-year-old, rode his bicycle down his driveway into a busy highway and Driver had to stop her car suddenly to avoid colliding with the bike. Because of the sudden stop, Driver’s two-year-old son, Peter, who was sitting on the seat without any restraint, was thrown into the dashboard and injured. Had Peter been properly restrained in a baby car seat, as required by a state safety statute of which his mother was aware, he would not have been injured.
In an action brought on Peter’s behalf against Dan’s parents to recover for Peter’s injuries, Peter will
(A) not prevail, because parents are not vicariously liable for the negligent acts of their children.
(B) not prevail, because Peter’s injury was attributable to his mother’s knowing violation of a safety statute.
(C) prevail, if Dan’s parents knew that he sometimes drove into the highway, and they took no steps to prevent it.
(D) prevail, if Dan’s riding into the highway was negligent and the proximate cause of Peter’s injuries.
(C). Parents are not liable for the torts of their children, but they can be directly liable for their own negligence in failing to supervise a child. If a reasonable parent knew their child rode onto the highway, she would supervise the child to prevent him from doing so. If Dan’s parents knew and failed to supervise him, they were negligent. Choice C is what you’d need to prove to put Dan’s parents on the hook for Peter’s injuries.
Choice B is a tempting answer, but it is incorrect. The fact pattern does strongly suggest that mom was negligent per se when she disregarded the safety seat regulation. If Peter’s representative sued mom, he might be able to recover damages from her. But Dan’s riding his bike onto the highway was the cause of the accident. If Dan’s parents were negligent in preventing Dan from riding onto the highway, they are responsible, too. Under the default rule of joint and several liability, Peter’s representative can recover all of the damages for harm Peter suffered from Dan’s parents, even if they were only partially responsible for the harm. It would then be up to Dan’s parents to seek contribution from Peter’s mom on a negligence per se theory.
