Torts Flashcards
3) In which situation would the Defendant not be held to the standard of care of a reasonable person?
A) Defendant was deaf and is accused of being negligent in failing to heed a warning bell.
B) Defendant has poor judgment.
C) Defendant is hot tempered and damaged property in a tantrum.
D) Defendant has an I.Q. of 85.
A) Defendant was deaf and is accused of being negligent in failing to heed a warning bell.
A D will not be held to a standard, which is physically impossible for him to achieve. In this case, the D will be held to the standard of a reasonable deaf person. (Was failure to wear a hearing aid negligent, for example).
4) Which of the following is false or the least correct statement?
A) A personal representative may recover for the decedent’s pain and suffering up to the point of death.
B) A decedent’s family may recover for decedent’s lost earnings.
C) A decedent’s family may recover for their own loss of companionship.
D) The Defendant cannot assert defenses against the personal representative.
D) The Defendant cannot assert defenses against the personal representative.
Use a true-false approach to a negative question. The odd one out is almost always the correct answer. A D may assert any defense against the personal representative as if he/she were the P himself. A personal representative steps into the shoes of the decedent.
6) Pedestrian is crossing a street in a non-negligent manner. Driver A approaches from the West, and Driver B approaches from the East. Both drivers negligently strike Pedestrian Plaintiff at the same time. Driver A causes the Pedestrian a broken leg and Driver B causes a broken arm. The jury finds Driver A is liable for the broken leg and Driver B liable for the broken arm. The jury awards damages of $6,000 for the broken leg and $4,000 for the broken arm. How much is Driver A responsible for paying? A) $4,000. B) $6,000. C) $10,000. D) $13,000.
B) $6,000.
Because the damages have been apportioned, Driver A is responsible for only the amount of damage he caused. Under causation analysis, Driver A was not the proximate cause of the broken arm.
7) Driver negligently strikes Pedestrian causing a broken leg. Upon arrival at the hospital, Doctor negligently and unnecessarily amputates the leg. In a suit against both Driver and Doctor, the jury awards $500,000.00 in damages for the loss of the leg. What additional information must be known to determine a judgment amount against Driver?
A) None
B) The damages for the injury to the leg less damages for wrongful amputation.
C) The damages only for the wrongfully amputated leg.
D) The percentage apportionment of fault of each Defendant.
A) None
No other information is needed because two separate acts of negligence creating indivisible damages result in joint and several liability. Thus, Driver will be liable for the entire amount unless the jury apportions damages. Note that the call of the question asks what must be known to determine a judgment amount.
9) In which situation will a parent not be liable for the torts committed by a child?
A) The child injures another while mowing the lawn at the parent’s behest.
B) The child injures another with a firearm given to him by the parent.
C) The child injures another while speeding down the street on his bicycle after his parent had warned him to stop doing so.
D) The child injures another while playing a pick-up game of football.
D) The child injures another while playing a pick-up game of football.
A parent is not vicariously liable for the torts of a child except for the situations in A, B, or C.
19) Donny Defendant needs to get Polly Plaintiff’s attention. He gently taps her on the shoulder. Polly falls to the ground screaming in pain. It turns out that she had a latent infection at the very spot Donny touched her. As a result, bone exfoliation began causing more pain and a renewed infection. In order for Polly to succeed in a suit for an intentional tort, what at a minimum must she prove?
A) That Donny intended to touch her.
B) That Donny knew of the infection.
C) That Donny intended to inflict pain
D) That Donny intended to inflict pain due to a prior grudge against Polly.
B) That Donny knew of the infection.
When dealing with a hyper-sensitive victim, the reasonable person standard applies; would a reasonable person find the contact offensive? An exception applies if the D knew that the specific victim would find the contact offensive. In answer B, if Donny knew of the infection, one could conclude that he would be aware that the contact would be offensive.
24) For which of the following will Plaintiff need to prove actual damages in a trespass to land action?
A) Defendant flies over Plaintiff’s house at low altitude.
B) Defendant chases several children onto Plaintiff’s property.
C) Defendant is walking along the property line on his side when a bear charges him. He jumps onto Plaintiff’s property to escape.
D) Defendant refuses to leave Plaintiff’s property when ordered to do so.
C) Defendant is walking along the property line on his side when a bear charges him. He jumps onto Plaintiff’s property to escape.
When there is a trespass due to necessity, the trespasser is not liable for nominal damages. However, he will be liable for any actual damages, which P must prove in order to recover.
30) Plaintiff Patient sees Defendant Doctor concerning an enlarged prostate gland. The Doctor recommends removal of the prostate gland. A side effect of the recommended procedure is the Patient’s possible impotence. Which option is the weakest argument the Doctor could make in response to an accusation of malpractice?
A) The Patient would have undergone the procedure even if he knew impotence would result.
B) The Doctor explained the procedure and all possible side effects including impotence.
C) The Patient signed an informed consent form acknowledging that he had been counseled on the side effects of and alternatives to the procedure.
D) The Doctor never counseled the Patient on the possible side effect of impotence because impotence was not foreseeable until the Doctor was operating and realized that due to Patient’s peculiar anatomy impotence could result.
D) The Doctor never counseled the Patient on the possible side effect of impotence because impotence was not foreseeable until the Doctor was operating and realized that due to Patient’s peculiar anatomy impotence could result.
When the impotence became foreseeable, the doctor going forward with the procedure exceeded the scope of the patient’s consent since the patient was not aware of this risk. There is no indication in these facts that the surgery was an emergency that might preclude the necessity for consent.
43) Which is a correct statement regarding proof of breach?
A) Although a jury decides what really happened, it is ultimately up to a judge to decide whether a breach of duty occurred.
B) Proof of breach need not be shown under the res ipsa loquitur doctrine.
C) To establish res ipsa loquitur, Plaintiff must prove the injury was the type that would not occur in the absence of someone’s negligence and that Defendant had notice that such an injury might occur.
D) Res ipsa loquitur establishes Plaintiff’s prima facie case for negligence against Defendant.
B) Proof of breach need not be shown under the res ipsa loquitur doctrine.
P is not required to prove breach if res ipsa loquitur is properly established.
61) Defendant sends Plaintiff a letter accusing him of sexual misconduct. Plaintiff’s spouse opens the letter and leaves Plaintiff as a result of the false facts in the communication. In a defamation suit, Plaintiff will
A) Prevail, because Defendant’s accusation constitutes libel per se.
B) Not prevail, unless Defendant knew that Plaintiff’s wife was in the habit of opening Plaintiff’s mail.
C) Not prevail, unless Defendant made the accusation with knowledge of its falsity.
D) Not prevail, because there is an absolute interspousal immunity.
B) Not prevail, unless Defendant knew that Plaintiff’s wife was in the habit of opening Plaintiff’s mail.
In order to constitute defamation, the false statement concerning P must have been intended to be publicized to a third person. There is no publication if the statement is made only to P. However, there may have been publication if D knew that P’s wife would read the letter.
66) Which of the following is false?
A) To succeed in a malicious criminal prosecution proceeding, Plaintiff must be acquitted at trial on the merits.
B) A claim for wrongful civil proceeding will lie if the lawsuit lacked a reasonable factual basis.
C) Defendant slanders the title of Plaintiff’s real property where Defendant files a lien attachment because Plaintiff failed to pay back a secured loan.
D) Defendant commits an abuse of process where he uses the legal process to accomplish a goal unrelated to the legal proceeding at issue.
C) Defendant slanders the title of Plaintiff’s real property where Defendant files a lien attachment because Plaintiff failed to pay back a secured loan.
A true-false approach is useful in a negative call of the question. Slander of title occurs where P’s real property is attached in bad faith. Here, it appears that D had a valid claim to P’s property. This alternative is thus false and is the correct answer.
67) Perfect Beach was a popular seaside resort city whose economic viability depended upon tourists staying in the seaside hotels and condominiums. During a week in May, the beach experienced a perfect storm which deposited massive boulders on the sandy beach. The municipality hired Rock Crusher Inc. to grind up the boulders into sand and thereby recreate the pristine sand beach. Grinding started on July 1 at the height of the tourist season. Rock Crusher's grinding machine made very loud noises that the tourists found extremely disturbing. The tourists staying at Perfect Beach left and new guests refused to check into the condominiums and hotels. A large hotel on the beach lost more money than the other businesses. If the hotel seeks to recover their financial losses from Rock Crusher Inc. and the municipality, their best theory of recovery is likely A) Negligence. B) Public nuisance. C) Private nuisance. D) Abnormal and dangerous activity.
C) Private nuisance.
This is probably more of a private nuisance than a public one. The harm is only suffered by the property owners on the beach. The effect of the loud grinding machine created a substantial interference with the use of their private property.
68) Frank Fister was drinking beer with a number of his fraternity brothers on a Friday evening. As the evening progressed, some of the group began to shadow box. This game involved real sparring, but the body and face blows were very light, little more than a touching. Timothy Timid, a new fraternity pledge, was sitting in the corner drinking his beer when they announced that the shadow boxing was going to begin and any non-participants should leave the room. One of the brothers picked Timothy up and pushed him into the middle of the room. Frank was bouncing around the room and tapped Timothy lightly on the chin to annoy him. Frank did not intend to hurt him, but unknown to anyone, Timothy had just recovered from complicated facial surgery because of a serious automobile accident and had a “glass jaw.” Frank’s tap broke Timothy’s jaw and he sued Frank for battery. Frank’s best defense is that
A) He did not intend to injure Timothy.
B) If Timothy had a normal jaw, no damage would have resulted from the tap.
C) Timothy consented to the damage by not leaving the room when the fighting began.
D) Timothy assumed the risk by not leaving the room when the fighting began.
C) Timothy consented to the damage by not leaving the room when the fighting began.
While this is probably the best answer, it may not be sufficient to prevent liability. Consent needs to include an appreciation of the risks and it is not clear Timothy understood that those who remained agreed to participate in the boxing.
69) Sharon Shannydresser was a Monday night customer in the local mall outlet of a 40,000 square foot retail store named Spectacular Outfits. Sharon started shopping at 8:30 P.M. The store closed at 9:00 P.M. Sharon took three full outfits into the dressing room at 8:40 P.M. At 8:55 P.M. the store manager decided to close a little early and locked all the doors at 8:59 P.M. The clerk who had waited on Sharon forgot she was still in the dressing room. Sharon took over two hours trying on every combination of all three full outfits. At 10:40 P.M. Sharon became very tired and laid down on a couch in the dressing room for a quick nap. She slept until 7:00 A.M. Tuesday morning when she was awakened by the sound of employees opening the store. Sharon then learned about her confinement and she decided to file a legal claim. If Sharon sues Spectacular Outfits for false imprisonment seeking damages, the Defendant’s weakest defense is
A) The store manager did not know he was confining Sharon.
B) Sharon had no knowledge of her confinement.
C) Sharon can show no actual damages.
D) The false imprisonment did not set physical boundaries as she could have walked around the store.
D) The false imprisonment did not set physical boundaries as she could have walked around the store.
This seems the weakest defense because limiting the P to movement within the store’s outer walls is still a technical confinement even if quite large.
70) Carol Compass and Harriet Hikers were good friends who frequently went on mountain hiking trips together. One trip was a 10-mile backpacking exercise into a beautiful alpine lake named Packwood Lake. They hiked to the lake one hot day each carrying a 50-pound backpack. They were both very tired by the time they arrived at the lake, and decided to go swimming together. Carol swam out into the middle of the lake where she experienced a severe leg cramp. She cried out for help. Harriet heard her, but was tired herself and unsure of her ability to swim out there and back. As a result, she failed to act and Carol drowned. If Carol’s heirs bring suit against Harriet, the likely outcome is the suit will
A) Prevail, if Carol and Harriet are determined to have been engaged in a common pursuit so they are considered co-venturers.
B) Not prevail, because an uncompensated party has no duty to rescue.
C) Not prevail, because Harriet did not cause the risk.
D) Prevail, unless Harriet told Carol that she thought it was a bad idea for her to go swimming.
A) Prevail, if Carol and Harriet are determined to have been engaged in a common pursuit so they are considered co-venturers.
This is the best answer because one of the exceptions to the “no duty to rescue” rule is where the D and the victim are acting together in a common pursuit so that they are co-venturers.
71) Doug Dragger and his wife Sue were driving their fully restored 1932 Ford “deuce” roadster convertible on a Sunday afternoon. Doug was very proud of his Ford restoration and he and his wife often dressed in 1950’s style clothes when they attended antique car events in Boston. They were going west on Commonwealth Avenue and Doug was not paying careful attention. Sarah Speeder was going north to Cambridge on Backbay Avenue and because she was not paying attention, she failed to stop at a stop sign and collided with the Draggers’ car, injuring Sue. Had Doug been more alert, he might have been able to swerve or stop in time to avoid the accident. If Sue Dragger brings suit against both her husband and Sarah for her injuries, Sue will
A) Not prevail against her husband because of intra-family immunity.
B) Prevail against her husband only if Sarah is determined to have no fault.
C) Prevail against both her husband and Sarah in proportion to their relative fault.
D) Prevail against her husband and Sarah for joint and several liability.
C) Prevail against both her husband and Sarah in proportion to their relative fault.
The best answer since the recovery would be from both Ds in proportion to their relative fault.
75) Harry Homeowner was putting new tar and shingles on the roof of his house. Rather than hiring a roofing contractor, he decided to do all the work himself on the weekends. One Saturday morning, he was up on his roof and had just completed putting the tar on one side of the roof. The 50 pound heavy steel tar bucket was almost empty. Without looking, Harry threw it over the side of the house. Nathan Neighbor was standing just inside Harry’s property watching Harry’s activities on the roof. Harry saw Nathan watching him on the roof. Unfortunately, the heavy steel tar bucket thrown by Harry hit Nathan on the head. Nathan cried out in pain as he fell to the ground. His head struck the sidewalk and he was rendered unconscious. Harry heard Nathan’s cry and looked over the roof, seeing him lying there. Since he did not particularly like Nathan anyway, Harry decided to begin putting the shingles on that side of the roof even though he could have called 911 on his cell phone. Rosalind Rescuer was a passing driver who saw the whole event. She immediately loaded Nathan into her car and began driving to the closest medical center. During the trip, Rosalind was distracted by the news she received in a cell phone call from her daughter and negligently ran into a highway concrete divider. In his weakened state, Nathan died in the crash. The personal representative of Nathan’s estate sues Rosalind Rescuer for wrongful death. The most likely outcome of the suit is that the suit will
A) Prevail, if the jury finds that Rosalind acted unreasonably for a rescuer in the emergency situation.
B) Not prevail, since Rosalind was a mere uncompensated bystander with no duty to rescue an injured party.
C) Not prevail, since a rescuer in an emergency is not held to a reasonable care standard.
D) Not prevail, since a normal uninjured victim would not have died in the accident.
A) Prevail, if the jury finds that Rosalind acted unreasonably for a rescuer in the emergency situation.
The best answer. The negligence standard for a rescuer in an emergency is still one of objective reasonableness, but the jury may consider the emergency situation in determining whether a rescuer operated reasonably.
77) Billy Boozer was out on the town for a party. He had been to a number of bars before he stopped in at Drift On Inn Bar and Grill at midnight. The jurisdiction had a statute which prohibited serving liquor to any intoxicated person. The bartender suspected Billy was intoxicated, but because Billy was a regular, he served him two beers anyway. Billy prided himself on being a responsible drunk driver. The bottles of beer served Billy were from a new case. Unknown to the bartender, there had been a freak mistake at the bottler and the toxic solvent used to clean the bottling equipment had been put in one of the beer bottles Billy drank. The toxic solvent was colorless, had no smell or taste, and would have required a laboratory test to discover. Billy left the bar and began driving carefully and reasonably home. Ten minutes later the toxic solvent ruptured his kidneys, causing Billy to pass out. Out of control, Billy’s car ran into Phillip Pedestrian. If Phillip brings suit against Drift On Inn under the statute, the most effective argument Drift On Inn could make would be
A) The two beers served Billy did not contain enough alcohol to make him intoxicated.
B) Serving the two beers to Billy was not the cause-in-fact of Phillip Pedestrian’s injury.
C) The jurisdiction’s statute was not intended to prevent injuries from people drinking beer that contained toxic poison.
D) The mistake at the bottler was a superseding cause of the injury in question.
C) The jurisdiction’s statute was not intended to prevent injuries from people drinking beer that contained toxic poison.
The most effective defense argument since establishing liability under a statute requires that the P’s particular injury be among the harms or risks which the statute was intended to prohibit. This injury occurred not because of alcohol, but rather because Billy’s kidneys were ruptured by toxic solvents.
78) Sobriety Forever was a city with a statute which stated, “any business or individual who sells alcoholic beverages to a minor shall be liable to any party injured by that minor while intoxicated.” Dick Drinker was only 17 but had a mature look and a beard, which allowed him to enter a few bars. He liked to go out on the town and get drunk. This evening he spent all night in two bars named Tuesday’s and Friday’s. After two drinks at Tuesday’s, Dick became relaxed and one of his friends talked him into going to Friday’s and to continue drinking. Upon leaving Friday’s he got into an accident because of his cumulative intoxication. Tuesday’s did not serve Dick enough alcohol to make him intoxicated and the alcohol that Friday’s served Dick would have been enough to make him intoxicated even if Tuesday’s had not served him at all. If the injured party sues, the court should hold that
A) Tuesday’s is liable under the statute even if their conduct did not cause Dick to become intoxicated.
B) Tuesday’s conduct was a cause of Dick’s intoxication, but not a cause of the injury because his driving superseded their violation.
C) Tuesday’s conduct was not the sole cause of Dick’s intoxication because Friday’s conduct was a substantial factor in making him intoxicated.
D) Tuesday’s conduct was a cause of the injury because Dick would not have become intoxicated in Friday’s if Tuesday’s did not sell him the alcohol.
D) Tuesday’s conduct was a cause of the injury because Dick would not have become intoxicated in Friday’s if Tuesday’s did not sell him the alcohol.
The best answer because of the “but for” test. The injury would not have occurred without Dick’s intoxication and he would not have become intoxicated at Friday’s without Tuesday’s serving him first so Tuesday’s was a cause in fact of the injury.
80) Billy Bully started a fist fight with another 10-year-old boy named Jack DeLong whom Billy thought was a weakling. Unknown to Billy, Jack had been working out with weights and had developed into a very good fighter. Ike Intervenor, a large 25-year-old was out for a walk. As Ike turned the corner of the block, he saw Jack strike Billy twice. Billy fell back and Jack stepped forward to strike him again. Ike thought Jack was the aggressor and to protect Billy, he stepped in and threw Jack into the adjoining river. Jack’s arm was broken and he almost drowned. He brought suit against Ike for his damages. Ike’s best defense is
A) He thought Jack was the initial aggressor.
B) Billy had a valid defense if Jack sued him.
C) The force Ike used was not excessive.
D) He had no intention of injuring Jack, only to stop Billy’s beating.
B) Billy had a valid defense if Jack sued him.
Under the defense of others, the intervenor steps into the shoes of the victim; therefore, if Billy had a valid defense, that same defense would be available to the intervenor D.
81) Susan Swimmingpool lived in a house with a swimming pool in the back yard. The neighbor’s 19-year-old son, Stan Swimmer, asked Susan if he could swim for free if he vacuumed the pool once a week. Susan agreed. Without mentioning it to Stan, Susan drained the pool in the morning so a tile worker could replace some cracked tiles. Stan came home at night after playing in a baseball game and wanted to cool off by going swimming. In the dark, Stan ran out to the end of the diving board and jumped in. Unfortunately, both of Stan’s ankles were broken. The jurisdiction has a comparative fault (negligence) statute. If Stan asserts a claim against Susan, the likely outcome is that the claim should
A) Prevail, because the pool was an artificial attractive nuisance.
B) Not prevail, if a reasonable person in Stan’s position would have known of the risk of diving into a swimming pool in the night in the dark.
C) Not prevail, because Stan was a trespasser.
D) Prevail, if it was unreasonable for Susan to drain the swimming pool without warning Stan.
D) Prevail, if it was unreasonable for Susan to drain the swimming pool without warning Stan.
P would likely receive a partial recovery under the pure comparative fault statute in proportion to the relative fault of the parties. Because a landowner owes a duty of reasonable care to an invitee, there is some liability if a reasonable owner would have warned P.
84) Waxford Manufacturing Company employed Frank Fairfax as a route salesman paid primarily on a commission basis. Frank was driving a company-owned car when a truck owned and operated by Red Van Lines collided with Frank’s car. He was injured and applied for workers’ compensation under state law. The state agency specified a certain dollar amount of damages for this type of injury. Waxford receives notice from the State Worker’s Compensation Fund regarding Frank’s claim. Waxford realizes that if the state pays the claim, its assessed tax rate will increase, so Waxford wants to defeat Frank’s claim. The best argument that Waxford can advance to deny Frank’s claim is
A) Any injuries suffered by Frank did not arise out of and in the course of employment.
B) A route salesman paid on a commission basis is automatically deemed to be an independent contractor and therefore excluded from worker’s compensation coverage.
C) Frank himself was grossly negligent in driving, thus he assumed the risk of injury.
D) The injury did not occur on the employer’s premises and was due to the negligence of Red Van Lines.
A) Any injuries suffered by Frank did not arise out of and in the course of employment.
To qualify under workman’s compensation the claim for physical injury must arise within the course and scope of employment.
(B) is not the best argument because there is not an automatic rule as to whether an agent is to be treated as an employee or an independent contractor.
87) National Nuclear operated three nuclear power plants creating large amounts of electricity. One plant was located alongside Columbia River in what some scientists believed was an earthquake sensitive area. The nuclear plant’s reactors generated a large amount of heat, which created a danger of explosion. To reduce this risk, National pumped water from the Columbia and circulated it in the reactor equipment. After cooling, the water was highly radioactive and required extensive “cooling” to reduce the toxicity. The “hot” water was stored in large concrete holding tubs for a substantial time period before it was drained back into the Columbia River. There was an unexpected earthquake and many of the concrete holding tubs cracked. Massive amounts of water flooded Nancy Neighbor’s adjoining farmland. If Nancy asserts a claim against National Nuclear for strict liability for an abnormally dangerous activity the court should find for
A) National, because the unexpected earthquake was caused by an act of God.
B) Nancy, because operating a nuclear power plant is an abnormally dangerous activity.
C) Nancy, because it was unreasonable to operate a nuclear power plant in a geographic location where an earthquake could occur.
D) Nancy, because “hot” water in a large quantity is an element that is foreseeably likely to create harm to neighbors if it should escape from its containers.
D) Nancy, because “hot” water in a large quantity is an element that is foreseeably likely to create harm to neighbors if it should escape from its containers.
Strict liability may be imposed on a landowner who uses the land in a non-natural manner for the storage of radioactive “hot” water which may escape. The resulting damages to the neighbors are foreseeable.
88) Sally Seller owned a two-story brick residence that she had listed for sale with a real estate firm. Betty Buyer made an offer on the house conditional upon inspection of the home. In a recent earthquake many of the bricks on the home became dangerously loose. Betty hired Iris Inspector to conduct an investigation of the house. Iris missed the hidden loose bricks. While Betty was unaware of the loose bricks, Sally knew of them from an investigation that the listing real estate firm conducted. After the sale closed and Betty moved in, a neighbor was walking alongside the house. There was a slight tremor and the neighbor was hit by falling bricks and seriously injured. It was then that Betty discovered the loose bricks. If the neighbor brings suit against Sally and Betty, the likely outcome is that the neighbor will prevail against
A) Sally, because she knew of the dangerously loose brick work.
B) Betty, since a landowner is strictly liable for all harm neighbors suffer because of defects in the landowner’s property.
C) Both Sally and Betty.
D) Neither Sally nor Betty.
C) Both Sally and Betty.
It seems likely that under these circumstances both the seller and the buyer will be liable to the third party. Sally engaged in active concealment of a known dangerous condition. It was foreseeable that a neighbor would be injured. Betty would be liable because an owner has potential liability to persons outside the premises for injuries suffered from falling objects on their premises. (Betty will prevail against Sally for concealment on a cross-claim.)
89) David Driver was driving on an interstate to his home 200 miles away. At a road stop, Henry Hitchhiker came up to him and asked for a free ride. David agreed. Henry got in the driver’s side back seat and promptly fell asleep. Unfortunately he did not fasten his seat belt. About 50 miles later, David also fell asleep and the car went off the road and ran into the ditch. The jurisdiction in question has a guest statute. If Henry sues David, the court will likely find for
A) Henry if he can prove David failed to exercise ordinary care.
B) David because Harry failed to fasten his seat belt.
C) Henry only if he can prove David was grossly negligent or reckless.
D) David because a hitchhiker assumes the risk.
C) Henry only if he can prove David was grossly negligent or reckless.
A guest statute eliminates driver liability to non-paying passengers unless the driver was grossly negligent, reckless, or intoxicated.
94) Harry Healthcare held himself out as a “natural doctor” by listing this title on his business card, office door, and yellow page advertisements. Harry did not have a license to practice medicine or render chiropractic treatments. Nonetheless he gave Peter Patient chiropractic treatments and “prescribed” certain medicines for Peter’s affliction. Harry’s treatment did not help Peter who became worse and filed a lawsuit. The trial court instructed the jury that non-compliance with the mandatory medical doctor state licensing law could be considered as “clear evidence” of negligence. This instruction was
A) Proper, because Harry Healthcare was practicing medicine without a license.
B) Improper, because failure to obtain the required medical license did not cause Peter Patient’s injury.
C) Improper, because the lack of the required license here is negligence “per se” as contrasted to merely “clear evidence” of negligence.
D) Proper, since practicing medicine without a license is conclusive evidence of malpractice.
B) Improper, because failure to obtain the required medical license did not cause Peter Patient’s injury.
Failure to obtain a medical doctor license required of real doctors under the civil licensing statute did not cause the P’s injury so it was error to allow the jury to consider it to be “clear evidence” of negligence, however it might be “some” evidence of incompetence.
101) Harry Homeowner hired Pricilla Painter to paint the exterior of his home. The contract called for all painting to be completed in a workmanlike manner. Harry and his family moved out for the duration of the painting. Pricilla completed the painting and removed all the painting supplies from Harry’s home on Friday except for a long ladder that she intended to pick up on Monday. Over the weekend while Harry was still away, a burglar used Pricilla’s ladder to enter the house through an unlocked second floor window. Harry returned home, realized his favorite painting has been stolen by the burglar, and brought a negligence lawsuit against Pricilla. Harry will
A) Prevail, because Pricilla was responsible for leaving the ladder on the premises as an unapproved holdover tenant.
B) Not prevail, because Harry should have sued for breach of contract.
C) Not prevail, because the burglary was a superseding cause.
D) Prevail, because Pricilla created the opportunity for the burglar to trespass and steal the owner’s painting.
C) Not prevail, because the burglary was a superseding cause.
This intervening criminal behavior by a burglar does not seem to be reasonably foreseeable; thus it would constitute a superseding cause.
104) Bill Bearhunter had always wanted to shoot a bear, but had never been successful in the short hunting season in the lower 48 states. The bears always seemed to detect him first. He read about an organized hunting trip in Alaska that charged $10,000 for the week-long hunt. Bill flew up to Alaska and began the hunt. During the nine-day hunting excursion, he saw a number of bears, but could never get close enough to get off a shot. The guide suggested Bill dress up in a bear rug complete with a bear’s head for a disguise. Bill agreed to try and put on the outfit. Bill went into the underbrush in an area known for bear grazing and sat down so only the head and upper chest of the bear outfit was visible. Another hunter named Fred Ferocious was frustrated because he also was unable to shoot a bear. Fred had been at it for 30 days and was leaving for the lower 48 the next morning. He had been drinking heavily in Chillout Charlie’s Tavern all day and was driving back to the Bear Camp in his pickup. He was legally drunk. As Fred slowed to make a sharp turn, he spotted Bill in the underbrush and thought he was a bear. Fred grabbed a double-barrel shotgun that was on the gun rack in the pickup and blasted away, injuring Bill. The jurisdiction in question has not adopted any form of comparative negligence. If Bill sues Fred for his injuries, the likely outcome is that he will
A) Prevail, if Bill can show that Fred was negligent in hunting while intoxicated.
B) Not prevail, unless Bill can prove he did not have the last clear chance to avoid being injured.
C) Not prevail, because Fred did not have the required intent to justify imposing liability for an intentional tort.
D) Prevail, if Bill can show that Fred’s act of hunting while intoxicated was reckless and wanton behavior.
D) Prevail, if Bill can show that Fred’s act of hunting while intoxicated was reckless and wanton behavior.
In a jurisdiction which has not adopted any form of comparative negligence or fault, contributory negligence is a complete defense to recovery. This result - a complete bar - applies to ordinary negligence, but does not apply to bar a recovery for reckless and wanton behavior beyond ordinary negligence.
108) The New York Coal Company constructed a new coal-burning electricity producing plant in a farming community. The coal burning does emit a substantial amount of cancer-causing fumes. Florence Farmer purchased the farm next door intending to grow wine grapes. Two years later, New York Coal Company quadrupled their output due to the energy shortage. At the higher toxic level, Florence’s grapevines died and Florence herself had a recurrence of the cancer she had 10 years ago which had been in remission. Her agricultural chemist expert at trial testified that the higher level of toxicity caused the wine grape failure and Florence’s cancer recurrence. In Florence’s claim against New York for damages, Florence will likely
A) Prevail, because New York’s plant is a nuisance.
B) Not prevail, because she moved to the nuisance.
C) Not prevail, because her prior cancer made her extra-sensitive to toxic substances.
D) Not prevail, because the Plaintiff cannot prove that New York Coal intended to injure her.
A) Prevail, because New York’s plant is a nuisance.
Florence will likely prevail on her claim of private nuisance. After the quadrupling of the emission level, the nuisance created a substantial interference with Florence’s use and enjoyment of her property.
109) Sam Speedy was driving with an expired driver’s license on a two-lane road. Speedy negligently hit a parked car. After the collision, both cars blocked the right lane of the road. Oscar Observer came along shortly thereafter and as he drove by he slowed down to look at the accident. At the slower speed, he was rear-ended by another driver. Oscar sustained substantial personal injury and physical damages. Oscar sues Speedy and Speedy files a motion for dismissal on summary judgment. With respect to the motion, a court will likely
A) Dismiss the case, since the Plaintiff could have passed the accident without slowing and was thus contributorily negligent.
B) Deny the motion, since a jury could reasonably conclude that Oscar’s injury and damages arose from an event that was a continuing consequence resulting from Speedy’s negligence.
C) Deny the motion, because Speedy had violated the state law requiring a driver’s license
D) Dismiss the case, since it was another driver who caused Oscar’s injury and damage.
B) Deny the motion, since a jury could reasonably conclude that Oscar’s injury and damages arose from an event that was a continuing consequence resulting from Speedy’s negligence.
Questions of fact remain as to whether the damaging event - the second accident - was a continuing consequence of Speedy’s negligence.
