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.
111) Peter Pornography applied for a business license to operate a topless dancing establishment. The application process involved numerous public hearings and many in the community loudly complained. One neighbor, Patty Pure, who lived in the same block as the proposed establishment, was especially vocal. At a public hearing she stated, as her research indicated, that these types of establishments were run by organized crime. She further stated that they hire prostitutes, many of whom are addicted to illegal narcotics and that some of the establishment’s customers are rapists who often vandalize the community and attack single females. Based upon her complaints, the city license department denied Peter Pornography a business license. If Peter sues Patty for defamation, Peter will likely
A) Recover, because he incurred monetary damages.
B) Not recover, because Peter was a public figure.
C) Not recover, because Patty reasonably believed her statements to be true.
D) Not recover, because Patty’s statements of fact did not refer to Peter.
C) Not recover, because Patty reasonably believed her statements to be true.
Patty was under a qualified privilege because she was a neighbor conducting her own affairs in a matter concerning her own interest. It appears as if she was speaking in good faith and the fair comment standard is that of a reasonable neighbor. This qualified privilege can be abrogated only by malice or D’s knowledge that the statement was false.
116) Gary worked at Horrid Hospital as a medical assistant. Horrid Hospital subsequently terminated Gary. He then filed a lawsuit against Horrid Hospital alleging wrongful discharge. The hospital defended on the basis that Gary’s poor work performance was the sole reason for the employment termination. Horrid’s attorney took the deposition of one of Gary’s former co-workers, who testified that he was present when the supervisor stated that Gary had AIDS. This portion of the printed deposition was published in the case and included within a motion for summary judgment. A newspaper reporter read these facts in the pleading in the court file. The reporter wrote an article specifying Gary had AIDS without verifying the fact with Gary. The next morning the front page of the Notorious News printed a story entitled “Horrid Hospital Fires Gay Employee For Having AIDS.” The article gave Gary’s name, but did not disclose that Gary had denied the AIDS allegation. If a defamation lawsuit is brought against Notorious, their worst defense is
A) By bringing the lawsuit, Gary impliedly agreed to waive any defamation claim.
B) The facts presented in their front-page story in the morning paper were absolutely privileged.
C) They exercised reasonable care in determining the overall truth of the article.
D) Gary became a public figure by bringing the lawsuit and the newspaper lacked knowledge that the AIDS allegation was false.
C) They exercised reasonable care in determining the overall truth of the article.
This seems to be the worst defense that Notorious News could assert. Reasonable care would imply the newspaper at least made some investigation such as calling Gary and asking if he denied having AIDS. Ordinarily a reporter would report more objectively by at least disclosing this was only one party’s opinion.
120) Concerned Citizen saw Susan Shoplifter leave a retail store in a hurry and a person near her began to yell, “Stop, thief.” Concerned jumped on Susan, holding her for 30 minutes until the police arrived. The police could not find any stolen items on Susan and released her. There was never a warrant issued. If Susan sues Concerned for false imprisonment, she will likely
A) Prevail because Concerned is a private citizen, not a police officer and thus held to a lower standard.
B) Prevail because there was no crime committed and the arrest was made without a warrant.
C) Not prevail because Concerned had reasonable grounds for believing that Susan had committed a theft.
D) Not prevail because the arrest was only for 30 minutes.
B) Prevail because there was no crime committed and the arrest was made without a warrant.
False arrest does not apply if there was a crime committed and/or the arrest was made under color of a warrant. Here, neither of these two excusing factors applies, so Susan would prevail.
121) Sleazy Salesman had some raw land for sale that was polluted. While similar non-polluted acreage in the neighborhood was worth $250,000, the fair value of this polluted parcel was $100,000. Eager Edgar wanted the property and had read some comparable appraisals at around $260,000. While he had looked at the property, he was unaware of the pollution. He offered Sleazy $240,000 which was accepted. After the purchase had closed, Eager learned of the pollution and sued Sleazy for fraud or misrepresentation. Sleazy’s least viable defense is
A) He had not made a false statement.
B) He had no intention to deceive Eager.
C) Eager had no damages since the land could be used for some purposes even with the pollution.
D) Eager had no right to rely.
D) Eager had no right to rely.
The correct alternative because this is the least viable or worst defense since it implies that Sleazy made a statement that Eager could rely upon.
122) Tom Timid and his wife, Tracey, were walking in front of their home when physically large Ben Bully pulled up in a car. Tom owed a large sum of money to Ben, was delinquent in the payments, and did not have the money to pay. Ben stepped out of his car and tripped Tom. He then sat on Tom and punched him repeatedly. The beating was ferocious and Tom suffered both physically and mentally. When Ben left, Tom was close to death. Unknown to Ben, Tom’s wife, Tracey, had a pre-existing medical condition which was compounded when she visually observed the brutality to Tom. Tracey suffered a stroke while observing Ben attack Tom. Without this unusual medical condition, she would not have suffered any damage. If Tracey brings suit against Ben for outrage or the intentional infliction of emotional distress, Tracey will
A) Not prevail, because she was not physically injured.
B) Not prevail, because she was not threatened with physical injury.
C) Prevail, only if Ben was aware of heightened sensitivity to emotional distress.
D) Prevail, because a Defendant takes the Plaintiff as they find them.
C) Prevail, only if Ben was aware of heightened sensitivity to emotional distress.
A victim’s ordinary sensitivity and vulnerability is the usual standard for intentional infliction of mental distress or outrage. (This is contrary to the usual “super-sensitive P” tort rule in which the D takes the P as she finds her.) If the D knows the P is especially vulnerable or susceptible to emotional distress, the duty level is raised.
124) Debit and Credit, CPAs, is a firm of public auditors. One of their clients - Fast Eddie, Inc - hired the firm to audit their financial statements. Fast Eddie told Debit and Credit that they were going to submit their audited financial statements to a bank in the local area as the basis for a large loan. The auditors were negligent in performing their examination with the result that the audited financial statements submitted to Better Bank were materially misleading. Better Bank made a large loan to Fast Eddie in reliance on the CPA firm’s audit opinion. The CPA firm was unaware of the specific identity of the bank and did not have any communication with them. The loan subsequently went into default and the bank brought suit against the auditors, Debit and Credit. The auditor’s best defense against the lawsuit is
A) The bank was not their client and lacked privity of contract with the CPA firm.
B) The bank did not rely upon the financial statements audited by the CPA firm.
C) The bank made its own investigation and thus was contributorily negligent.
D) The audit opinion was not a false statement of fact because there was not scienter or intent to deceive.
B) The bank did not rely upon the financial statements audited by the CPA firm.
The best defense is one that defeats an element that the P must prove as a part of their prima facie case. Reliance on the financial statement is a necessary element for P to recover for negligent misrepresentation.
127) Robert Ripoff was an architect who owned a local architectural firm. He recently learned that he would lose his major client due to a business merger. This client’s billings had contributed 40% of gross revenue and 60% of net profits to his practice. Upon learning this bad news, he immediately listed his architectural practice for sale. The buyer asked him if he was aware of any significant change that could be expected in clientele base or revenues. Robert said no and did not mention the loss of the major client. If the buyer later sues Robert, she will
A) Not prevail, because the rule of caveat emptor (let the buyer beware) applies to the sale of a business.
B) Not prevail, unless the buyer can establish that Robert was under a duty to make disclosure of the loss of the major client.
C) Prevail, if the seller expressly represented the non-existence of the undisclosed matter.
D) Prevail, for the 40% of the gross business lost.
B) Not prevail, unless the buyer can establish that Robert was under a duty to make disclosure of the loss of the major client.
It is P’s burden to establish that the D had a duty to make disclosure of the concealed fact.
129) Charley Carseller was a used car salesman. He saw Georgina Gullible walk onto his car lot. He immediately walked out of the salesroom and met her in the middle of the lot. Georgina was looking at a used 1964 Volkswagen bug car. Charley immediately started in with his sales pitch. Which of the following statements, if incorrect, would least likely to be considered a fraudulent inducement to sell the car to Georgina?
A) “I am sure that the insurance for this car would be half the regular rate.”
B) “We had this car appraised at $5,000 and are selling it for only $4,000.
C) “This car will continue to increase in value $1,000 a year.”
D) “This car was owned by a retired law school professor.”
D) “This car was owned by a retired law school professor.”
A fraudulent inducement requires the D to have made a false statement of a material fact; materiality is a measure of the import to the P. Who owned the car would not seem to be material or of any real import to the buyer’s decision and thus not a fraudulent inducement.
130) Mighty Manufacturing produces a line of heart defibrillators, which it retails through a network of sales agents. Due to the many highly valuable trade and customer secrets it protects, Mighty is quite concerned about its agents’ loyalty. Each agent must agree to sell only Mighty’s product and not to compete within a year of termination. A competitor approached one of Mighty’s agents knowing the agent was under this legally enforceable agency contract. If Mighty brings suit against the competitor, it will
A) Not prevail, because there are no present damages.
B) Prevail, even if a breach does not occur.
C) Prevail, only if the competitor tried to bribe the agent.
D) Prevail, against the competitor and also prevail against the agent even if no breach follows.
B) Prevail, even if a breach does not occur.
A breach does not have to follow the interference of contract to permit a recovery for tortious interference; the interference itself is actionable.
132) David Drinker was a heavy partier who frequented nightclubs. One evening, he met Lois Looser in a bar. They partied and both drank heavily until the bar closed. David insisted that he was sufficiently sober to drive Lois to her home. Lois was sure David was drunk, but knew she herself was drunk too. Lois figured David had a better chance of getting her home than she did. Neither one of them considered taking a taxi and Lois neglected to fasten her seat belt. David began driving but collided with another moving vehicle driven by Larry Lush. The police arrived on the scene and determined that David, Lois, and Larry were all legally drunk and that both drivers had failed to stop at stop signs resulting in the collision. Lois was injured and sued David and Larry for negligence. The court determined that David and Larry were each 40% at fault, Lois was 20% at fault, and that Lois' damages were $25,000. Lois levies on her negligence judgment against both David and Larry. She is able to attach $15,000 from Larry's bank account. How much is Larry's right of contribution against David? A) $7,500. B) $5,000. C) $2,500. D) -0-
B) $5,000.
In those states that recognize contribution between Ds, if Larry pays $15,000, he would have a right of contribution against David for $5,000. This would be the excess Larry paid over his proportional share. ($15,000 - [.5 x 20,000]).
134) Always Aluminum operated a large production facility producing aluminum. Its largest cost input was electricity, which they purchased from Regional Electric Company. Because of severe electrical power shortages in California, Regional Electric tripled its per-kilowatt charge to Always. This made it impossible to operate the production plant at a profit so the company closed its facility and laid off all its employees. It instructed all their utilities, including Regional Electric, to turn off the utilities. Regional turned off the meter generating the monthly bill to Always, but left open the electricity main leading to the equipment in the plant. Angry Andrew was one of the laid-off employees. He knew the plant had closed and decided to jump over the fence and take some of the equipment to compensate himself for unpaid fringe benefits he claimed were due. Angry began dismantling some of the equipment, which had valuable electric generator components. Angry’s steel wrench touched both the positive and negative electric poles of the generator at the same time. This severely shocked Angry causing him physical damages. The electrical component in the generator which Always had intended to sell to a third party was destroyed, thereby rendering the equipment valueless. If Always Aluminum sues Angry Andrew for trespass to chattels or conversion in destroying the electrical components, Angry
A) Is not liable because Angry did not intend to cause damages.
B) Is not liable for trespass to chattels but is liable for conversion.
C) Is not liable for conversion but is liable for trespass to chattels.
D) Is liable for either trespass to chattels or conversion at the election of Always.
D) Is liable for either trespass to chattels or conversion at the election of Always.
The best alternative because if the damages are substantial (good rule of thumb is over 50% destroyed), the P has the election of recovering for either trespass or conversion. Conversion is the higher level tort and allows recovery of the full fair market value of the equipment.
135) Charlie Chicken and his elderly mother were walking along a city street alone at night. Up ahead, he saw a gang of teenage hoodlums. Charlie believed this was the gang he had read about in the local newspaper that had harassed and assaulted other neighborhood residents. To avoid having to walk through the gang, Charlie broke through a wooden fence on a privately owned lot. He then broke a house window to allow himself and his mother to enter the abandoned residence owned by Harry Homeowner. Charlie and his mother went through the house and out the back door to the alley, thus avoiding becoming victims of the gang’s attack. If Harry Homeowner sues Charlie for the cost of a new fence and window, Harry will likely
A) Prevail, because Charlie intentionally crossed over Harry’s property.
B) Not prevail, because Charlie merely acted as a reasonably prudent person under the circumstances.
C) Not prevail, because the action is justified by the defense of necessity, defense of others, and defense of one’s self.
D) Prevail, because Charlie knew the trespass would cause damages to the homeowner.
D) Prevail, because Charlie knew the trespass would cause damages to the homeowner.
Liability will exist for the damages suffered by the homeowner even if the necessity of the situation excuses the trespass or provides a defense such as a privilege.
140) Charlie Cowboy operates Dude Ranch that advertises widely to attract weekend cowboys. The ranch provides lodging and horses to the dudes who pay a per diem charge to stay at the ranch. The ranch has developed a riding trail system and gives all the dudes a map of trails. This allows the guests to ride around the ranch in their own groups at their own leisure. The horse trail has an old wooden bridge that crosses over a river. Unknown to anyone, the bridge supports were partially rotted. A large group of horse riders on the bridge resulted in a collapse. ||A neighbor named Fisherman Fred had sneaked into the dude ranch and was fishing in the river below the bridge. As the bridge collapsed, the debris fell on Fisherman Fred forcing him under water resulting in his drowning. If Fisherman Fred’s heirs bring a wrongful death action against Dude Ranch, the likely outcome is
A) Verdict for Dude Ranch, because the drowning was the cause of Fisherman Fred’s death.
B )Verdict for Dude Ranch, because Fisherman Fred was on the property without permission or invitation.
C) Verdict for Fisherman Fred, if Dude Ranch could have reasonably discovered the rotting bridge had they made an investigation.
D) Verdict for Fisherman Fred, since Dude Ranch is responsible for any dangerous condition on the land.
B )Verdict for Dude Ranch, because Fisherman Fred was on the property without permission or invitation.
A landlord is not liable to a trespasser who is not known to be on the premises and was not given permission or invitation. Uninvited unknown intruders usually trespass at their own peril.
145) Everyproduct Store, Inc., was a large retailer-wholesaler. In this location, the retail store was connected to their large wholesale facility. The wholesale operation served as a warehouse and shipping facility for all Everyproduct stores. While store personnel moved between the two areas, the public was only allowed in the retail store. There were signs at the connecting door leading to the wholesale area which stated that “Only Everyproduct’s employees and suppliers are allowed in this portion of the facility.” The restrooms were located right at the intersection of the two areas. Sharon and Sally Shoppers were sisters who spent most of their weekend afternoons browsing through merchandise at retail stores in their city. They considered themselves to be excellent shoppers with advanced expertise in quality-price decisions. On a Sunday afternoon, they were using their expertise in analyzing much of the inventory at Everyproduct Store. The Everyproduct facility was heated by furnace oil, which was stored in a large fuel tank in the area near the door between the retail and wholesale areas. The fuel line broke flooding the floors in the area where the retail and wholesale portions adjoined with a clear, slippery oil film. Because the maintenance crew did not work on Sunday, it was almost closing time, and there were very few shoppers in the store, the store manager decided to leave the oil on the floor for the Monday morning crew to clean up. The manager did post a warning sign up at the front of the spill on the retail store side. Sharon and Sally had entered the women’s restroom right before this occurred and the warning sign was posted. Sharon left the restroom first and turned left to go back into the retail store. She slipped on the oil, fell, and broke her arm. If Sharon sues Everyproduct, the likely outcome is that she will
A) Prevail, because Everyproduct is strictly liable for all harms that occur to its customers on its premises.
B) Not prevail, because she was an expert shopper.
C) Not prevail, if the signs the store personnel posted were a reasonable warning.
D) Prevail, because she was a business invitee.
D) Prevail, because she was a business invitee.
Sharon was a business invitee. This status requires the property owner to remedy or warn customers of known hazards. Here, the store should have realized some customers in the restroom might not see the signs when they returned to the retail premises.
146) Peter Pistol was a gun collector and had a very large collection of antique pistols. He was holding a party at his home and decided to show off some of the finest pieces in his collection to his party guests. He brought a large antique Colt 45 pistol into the living room and waived the gun at Tina Timid. Tina was quite disturbed by this and later filed suit against Peter. Peter’s best defense is that
A) This act would not create apprehension of an imminent battery in the mind of a reasonable person.
B) Tina did not actually experience any mental apprehension.
C) Tina knew the pistol was not loaded.
D) Since the gun was unloaded, there was not an imminent threat of contact.
B) Tina did not actually experience any mental apprehension.
If the P did not actually experience any mental apprehension, Peter would have a valid defense since this is the interest the tort of assault seeks to prohibit.
149) Tommy Trucker was driving his pickup truck west on the interstate. He was a very careful driver and was always on the alert for accidents to be avoided. Debra Driver was driving east on the interstate with her children in her car. Tommy saw a stray kitten in the road and turned to avoid hitting the animal. Apparently Tommy turned the steering wheel too suddenly because the pickup truck began spinning end-to-end on the freeway. Tommy’s pickup spun across the center divider and collided with Debra’s automobile causing significant injury to one of her children in the back seat. Debra, herself, was not injured in the accident. However, she personally suffered severe emotional distress including numerous physical symptoms from seeing her children injured in the collision. If Debra brings suit for outrage or emotional distress, the claim will likely
A) Prevail, because she was present at the scene of the accident and saw the injury to her children.
B) Not prevail, because she suffered no physical injuries in the collision.
C) Not prevail, unless Tommy Trucker was driving at an unreasonably high speed which caused his pickup truck to spin out of control when he swerved to avoid hitting the cat.
D) Prevail, because she suffered severe emotional distress with physical manifestations and she was herself within the zone of danger created by Tommy’s act.
C) Not prevail, unless Tommy Trucker was driving at an unreasonably high speed which caused his pickup truck to spin out of control when he swerved to avoid hitting the cat.
If liability exists for Debra’s emotional distress, it would be under a theory of negligence because intention is lacking. This would require some unreasonable act on the part of the D; speeding might qualify.
151) Larry Lastminute was a law student at Everyone Passes Law School. Larry had not attended most of his first year tort classes and was beginning to become quite nervous about how he was going to perform on the upcoming final exam. A week before the final exam, he walked into the law school library and left his books on a desk while he went to get a cup of coffee. When he returned he picked up a law book that he believed was his own. After highlighting a few pages with a yellow marker, he realized it was not his own. The true owner, Donna Diligent, then appeared and discovered Larry had marked up her book. Donna brings suit against Larry for trespass to chattels. As a part of her prima facie case, Donna will not have to prove
A) Intention by Larry to harm her book by using the yellow marker to highlight text.
B) That Larry has intermeddled with personal property.
C) That she had an ownership or possessory interest in the book.
D) Actual damages resulted from the trespass.
A) Intention by Larry to harm her book by using the yellow marker to highlight text.
While trespass to chattels is an intentional tort, the intent requirement is minimal as long as there is some intention to do the act which resulted in the trespass. Here, D intended the physical act of picking up the book and marking the pages.
156) David and Deloris Dwelling were in their home one evening peacefully watching television. Fugitive Fred was being chased by police in the neighborhood and ran into the Dwelling’s home to escape arrest. Fred pulled a six-shooter handgun from his pocket and aimed at David and Deloris. He fired all six rounds at Deloris who was hit and injured. Two of the shots missed Deloris, but went through the wall and hit the Dwelling’s four-year-old child, Innocent, who was asleep in the next room. If Innocent’s guardian brings a suit for battery against Fred, the likely outcome is that the claim will
A) Prevail, because Fugitive injured Innocent.
B) Not prevail, because Fred had no intent to injure Innocent.
C) Not prevail, because Innocent was asleep so the Plaintiff lacked any mental apprehension of offensive contact.
D) Prevail, because Fred intended to shoot Deloris
D) Prevail, because Fred intended to shoot Deloris
While battery is an intentional tort, the necessary intent may be transferred between victims: Fred intended to batter Deloris which is sufficient intent to allow the actual victim, Innocent, to recover
158) Prince and Paula Parents had an 11-year-old daughter, Caroline. The parents left their car keys lying on a table in the entryway of their home. They directed Caroline to go to the local store three blocks away and buy a loaf of bread for dinner. Caroline picked up the car keys off the table without her parents’ permission and backed the car out of the Parents’ driveway into the street. Caroline decided to go on a joy ride with two of her friends, Wendy and Julie. She drove down to the grocery store, purchased the bread, and then drove to the corner soda fountain where she picked up Wendy and Julie who joined her in the front seat of the car. As they drove down the strip, a car emerged from a cross street. The three girls were all talking which distracted Caroline who did not see that the green light had changed to red. Their car collided with the emerging car driven by Iola Innocent. Caroline did not have a driver’s license. If Iola brings suit against Caroline for her injuries, the probable outcome of the suit is Iola will
A) Prevail if the trier of fact determines that Caroline did not act as a reasonably prudent 11-year-old would have under similar circumstances.
B) Not prevail because an 11-year-old does not have the age, education, experience, and ability to properly operate a motor vehicle.
C) Not prevail because the chatter of Wendy and Julie distracted Caroline.
D) Prevail if the trier of fact determines that Caroline did not act as a reasonably prudent adult person would have under similar circumstances.
D) Prevail if the trier of fact determines that Caroline did not act as a reasonably prudent adult person would have under similar circumstances.
The usual standard for a child is that performance is measured by a reasonable prudent child of the same age, education, experience, and ability. An exception applies if the child is involved in adult activities, such as driving a car. The standard to be thus applied is that of a reasonable prudent adult person.
163) David Doglover had a German Shepherd dog named Attack and a pet monkey named Playful. The German Shepherd was generally friendly, but had bitten people in the past and David kept him in a well-fenced area. The pet monkey was purchased from a traveling circus many years ago and had become almost totally domesticated when around adults, but still liked to jump on small children.||A child left the gate to the German Shepherd’s fenced area open allowing Attack to get out. Attack spotted a cat across the street and ran to see if he could catch the cat. At the same time, two small children were crossing the same street in Attack’s path. Attack was running at full speed when he hit the children knocking them down onto the concrete street. The children received substantial injuries from the fall and their guardian has brought suit against Attack’s owner, David Doglover, alleging strict liability. The likely outcome of this suit is that the children will
A) Prevail, under strict liability because Attack has a history of biting people.
B) Not recover under strict liability, because David Doglover exercised extraordinary precaution to fence in the animal.
C) Not recover under strict liability, because the Plaintiff’s injury was not within the scope of the harm of biting people.
D) Prevail under strict liability, because David Doglover owns the dog.
C) Not recover under strict liability, because the Plaintiff’s injury was not within the scope of the harm of biting people.
Strict liability will be imposed only if the resultant harm flowed from the specific risk used to justify the application of strict liability to the activity in question; the risk was the dog biting people as opposed to knocking down small children.
166) A negligent driver ran into the rear of a car at a red stoplight. The driver in the leading car, Wally Whiplash, who was not wearing a seat belt, suffered substantial injuries and was taken to the hospital. Wally refused to undergo surgery to alleviate the injury thereby creating permanent injuries. The insurance company paid Wally a substantial sum for disability benefits. In the lawsuit Wally brings against the negligent driver to recover damages, Wally will likely
A) Prevail, for damages including punitive damages.
B) Not be able to block the negligent driver from introducing at trial evidence of the payments received from the insurance company.
C) Prevail, for an extra award for the attorney fees he incurred
D) Not be entitled to interest on the principal damage sum from the date of the accident to the date of judgment.
D) Not be entitled to interest on the principal damage sum from the date of the accident to the date of judgment.
Interest on the monetary amount of the damages that would have been earned from the date of the accident to the date of judgment (prejudgment interest) is not recoverable because it is not liquidated.
174) A police officer was in his police car when he received an emergency dispatch call to go to a given address. When he arrived at the address he found a pregnant woman who had just gone into premature labor. The woman had experienced problems during the pregnancy and the decision was made to take her to the maternity ward at the nearest hospital. On the way, the police car carrying the officer and woman drove north through a busy intersection against a red light at 45 miles per hour without using a siren. The speed limit was 30 miles per hour in the area. Ike Innocent was driving west through the same intersection and collided with the police car. If Ike brings suit against the police department, the likely outcome is that the suit will
A) Prevail, if the police officer’s actions were determined to be reckless.
B) Not prevail, because he was a government employee performing a discretionary act within the scope of his official duties.
C) Not prevail, unless a reasonable police officer under similar circumstances would have used the siren.
D) Prevail, if the police officer failed to act as a reasonable person.
C) Not prevail, unless a reasonable police officer under similar circumstances would have used the siren.
This is the best answer because the test for a professional employee would be a reasonable police officer in a like circumstance.
177) Phil Photographer was an 11 year-old boy in the sixth grade of Entrepreneur Grade School, which is operated as a non-profit educational organization. This elementary school was planning its annual spring fair in which the students teamed up and created commercial operations and competed for awards. Phil’s father owned a commercial film developing company and he encouraged Phil to start a film developing operation for the fair. The business plan was to print up a flyer to distribute to all the school’s parents and teachers encouraging them to have their personal film developed by Phil and his teammate Patty. Phil and Patty built a little demonstration booth for the spring fair. Their idea was to demonstrate to the other students and fair judges how they develop film. To develop the film they had to combine three chemicals and dip the film into it. Phil’s father was to provide all the chemicals in the appropriate amounts for the demonstration. Unfortunately, Mr. Photographer was away on business, so Phil went down to the local photography supply shop and asked to buy all three ingredients, including a toxic solvent called Acetone. Acetone is potentially explosive unless very slowly mixed with other photographic chemicals. There was a state law and store policy prohibiting the sale of Acetone to other than a registered film processor, but there was no age requirement. The clerk was aware of the state law and store policy, but Phil pleaded with him and the clerk finally sold him the chemicals. At the time, the clerk did warn Phil that Acetone was potentially dangerous and could explode if poured rapidly into the other chemicals. The day of the school Fair over 300 parents and students paid $5.00 per person to attend the event. Phil’s father could not attend the event because he was away on business again. Phil mixed all the chemicals except Acetone in one flask in the booth, but was called away at that point. His teammate Patty saw that the Acetone had not been added so she dumped the Acetone flask into the flask containing the other chemicals. Phil had forgotten to pass on to Patty the warning he had received from the clerk in the supply store. The combined chemicals exploded in Patty’s face, burning her skin. This necessitated $10,000 of medical treatment. If Patty’s parents bring suit on Patty’s behalf for her personal injuries against the local photography supply shop, the likely outcome is
A) For the Defendant, because Phil’s actions were an independent, intervening cause of the injuries.
B) For the Defendant, because the supply store had an express policy not to sell the chemical Acetone to other than a registered film processor.
C) For the Plaintiff, because the store’s sales clerk violated the state statute when he sold the chemical Acetone to a non-registered film processor.
D) For the Plaintiff, because a reasonably prudent sales clerk would not have sold Acetone to an 11 year-old child.
D) For the Plaintiff, because a reasonably prudent sales clerk would not have sold Acetone to an 11 year-old child.
The correct answer because it focuses on the element necessary for a finding of negligence against the agent of the principal D.
179) Holly and Harry Host operated the Sleepytime Inn, a Bed and Breakfast. The Hosts built the Inn on one corner of an old orchard that Harry inherited. The Hosts did not commercially farm the orchard, but left an old rusting tractor among the trees on the top of the hill. They placed “No Trespassing” signs on the rundown fence around the orchard. Each afternoon, the Hosts provided free wine to the guests in the Inn. Many of the guests would take two or three glasses of wine and go to the outdoor hot tub. There was a leak in one of the water pipes to the hot tub, which created a puddle on the walkway between the hot tub and the guestrooms. Harry intended to fix the leak, but was waiting for a part. The Inn experienced a very unusual late August storm involving a cold snap with freezing temperatures and significant snowfall. Because the Inn was full, the Hosts continued to operate. In the evening, the guests were enjoying the hot tub and their usual free wine. One guest named Louise Loose had consumed three glasses of wine and decided she wanted some more. She got out of the hot tub and began walking to the Inn. Due to the unusually cold weather, the puddle on the walkway had frozen. Louise was not paying enough attention, slipped, and hit her head on the cement, suffering a concussion. If Louise sues the Inn, the likely outcome is that her claim will
A) Prevail, because the Hosts are strictly liable for any damages suffered by their rent-paying guests.
B) Prevail, because of Harry Host’s negligence.
C) Not prevail, because Harry Host did not yet have the necessary part to make the correction so it was impossible to stop the leak at that time.
D) Not prevail, because Louise was intoxicated and should have looked where she was going.
A) Prevail, because the Hosts are strictly liable for any damages suffered by their rent-paying guests.
This is the best answer under these circumstances. While ordinary comparative fault or assumption of risk could apply, here the P was a paying customer, the hot tub was placed outside, rather than inside, the Inn and the Hosts provided the wine for free, thus encouraging negligent behavior and it was foreseeable that a guest could be injured.
181) Diane Driver was operating a vehicle on an expressway. The gas gauge was close to empty and Diane was feeling a little tired so she decided to stop at a turnout to get some coffee and fill the gas tank. While in the store, a woman named Harriet Hitchhiker approached Diane and asked for a ride to the next city. Diane agreed to transport Harriet and Harriet put her own suitcase in the trunk of the car. Diane asked the attendant to check the air pressure in her tires including the spare tire in the trunk. The attendant was in a hurry and mistakenly left a bottle of acid in the trunk that he had been using to clean oil off old automotive parts. When Diane stopped the car to let Harriet out, it was later in the evening after the sun had set. Harriet opened the trunk to get her suitcase out and knocked the bottle of acid over thereby seriously burning her hands. Harriet brings suit against Diane in a jurisdiction that has an all or nothing contributory negligence statute and no automobile guest statute. Diane’s most persuasive defense is that
A) Diane had no knowledge of the acid or that it would cause injury to the passenger.
B) Harriet did not pay for the transportation so she, in effect, assumed the risk of damages.
C) It was not foreseeable that injury would result from the passenger opening the trunk to retrieve her suitcase.
D) Harriet was contributorily negligent in not using a flashlight to light the car’s trunk before reaching into the trunk.
A) Diane had no knowledge of the acid or that it would cause injury to the passenger.
The most persuasive defense because if the D had no knowledge of the risk, it is hard to create a duty.
182) On Larry Landowner’s farm, there is a natural spring on a hill that occasionally overflows onto the neighboring public park. In the summer when the spring was dry, the county built an asphalt walkway around the park. By December, the fall rains had caused the spring to overflow over the path in the park. The temperature dropped one night and the water on the path froze. There was also a light snow, which covered the ice caused by the spring water. Joyce Jogger was running around the path to enjoy the sight of the fresh snow in the park. She slipped on the ice on the snow-covered path suffering a broken leg. If Joyce brings suit against Larry for her damages, her claim will likely
A) Prevail, if Larry knew his spring was running over the path.
B) Prevail, if Joyce did not know of the ice.
C) Not prevail, unless Larry had dug a channel for the spring to get the flooding off his property.
D) Not prevail, because joggers who run on snow-covered walkways assume the risk of danger.
C) Not prevail, unless Larry had dug a channel for the spring to get the flooding off his property.
A landowner is not liable to passers-by for injuries resulting from natural conditions. Here, the alternative includes that the D created an artificial condition that would create the liability.
186) Clearwater High School built a new main high school building. The school staff was responsible for purchasing the equipment their kitchen needed to serve student lunches. The school buyer went into a retail store named Kitchen Supply Emporium and purchased a brand new oven for $900. The label stated that the net price included a $100 discount because the oven line was being discontinued. The new oven was delivered and installed by Kitchen Supply. On the first day of use, defective hidden wiring in the oven failed and the sparks ignited a fire. The cook on duty was seriously injured. A lawsuit was filed and during discovery it was learned that the defective oven had been made by Allright Manufacturing and distributed through a wholesaler named Allstate Distributing Co. In a strict liability action, which of the below parties will be held liable?
A) Allright Manufacturing Co.
B) Allright Manufacturing Co., Allstate Distributing Co., and Kitchen Supply Emporium
C) Allright Manufacturing Co., Allstate Distributing Co., Kitchen Supply Emporium, and Clearwater High School
D) Allright Manufacturing Co. and Clearwater High School
B) Allright Manufacturing Co., Allstate Distributing Co., and Kitchen Supply Emporium
In a strict liability action, all sellers are potentially liable if they sold a product in a defective condition or unreasonably dangerous condition. There are no facts given in the question indicating that the oven’s condition was substantially changed after leaving the manufacturer. This “all sellers are liable” rule applies even though the P did not have a contract directly with the manufacturer or wholesaler. Clearwater High School could not be held liable in strict liability but could be sued for negligence.
188) Robert Railroad was a miniature railroad enthusiast, collector, and rebuilder. The entire basement of his home was one big model railroad shop in which he rebuilt used pieces of equipment and various high-profile models. One evening he went with his 7-year old daughter Roberta to the "parents evening" at her school. During a break in the program he was approached by Paul Purchaser, the parent of one of Roberta's school friends who had learned that Robert sold used model railroad items. He asked if Robert had any pieces ready for sale and Robert said yes. Robert then invited Paul to come to the house to look at his inventory of model railroad items. Two days later Paul Parent and his daughter Pattie arrived at Robert and Roberta's home. Pattie and Roberta went up to the attic to play with their dolls. Paul followed Robert down the basement steps to look over the model railroad pieces that were for sale. As Paul walked down the stairs he stepped on a miniature railroad car engine left on the stairs and fell. As Paul fell, he screamed out. Hearing her father's scream, Paul's daughter Pattie ran down from the attic. As she turned to go down the basement steps, she grabbed onto the electrical cord of a microwave oven on a shelf. As she swung around her weight pulled the microwave oven off the shelf and it fell on her. The legal status of Paul and his daughter Pattie after they entered Robert's home was
Paul Pattie
A) Licensee Licensee
B) Invitee Attractive Nuisance
C) Invitee Licensee
D) Licensee Attractive NuisanceC) Invitee Licensee
The question is the status of the intruders. Paul came onto the premises for the potential business purpose of purchasing model railroad pieces. Even if the injury occurred in the upper floors of the house that were not used for the model railroad business the purpose of Paul entering the premises was for business at the invitation of Robert. Pattie, Paul’s daughter came on the premises as a personal social guest to play with Roberta. She is thus to be characterized as a licensee and not an attractive nuisance child trespasser.
189) Albert Authority was a retired career marine who believed passionately in law and order. In retirement he took a job as a part-time security guard at Ceiling-Mart, a low quality discount store. Albert frequently dreamed of his days as an active marine and wore his old uniform to every civic event he attended. He also enjoyed perusing the Criminal Wanted posters published by the police departments in his area and prided himself on keeping current on the most wanted list. On one of Albert’s days off, he went to a veteran’s parade. He wore his old marine uniform including a belt holster containing his old marine-issue revolver. As he walked home after the parade he turned the corner and found he was facing a very large man with wild red hair and a full red beard. It took Albert only a moment to remember that he had seen a “wanted for murder” poster for a man meeting such a description. Albert pulled his marine-issue revolver and “arrested” the tall man with the wild red hair and beard. The arrestee protested and pleaded that Albert got the wrong man. He affirmatively said that his name was Big Red and he was running late to catch an airplane. A passer-by called 911 on her cell phone and 15 minutes later the police arrived on the scene. They then ran a full identification check on Big Red. After 20 minutes the police announced that Albert indeed had arrested the wrong man and ordered Big Red released. Albert did as ordered and showed the police that his old marine-issue revolver was not loaded. He then explained that the seriousness of the murder allegation in the wanted poster justified his reasonable mistake. Big Red arrived at the airport late and missed his plane. He was very upset over the whole incident. Big Red also asserts a claim against Albert for assault. The court will likely hold for
A) Albert if his mistaken identity error was reasonable.
B) Big Red only if he can prove monetary damages.
C) Big Red if he saw Albert pointing the revolver at him.
D) Albert because the revolver was unloaded so it was impossible to do any actual physical harm.
C) Big Red if he saw Albert pointing the revolver at him.
The best answer because it focuses on the requirement that P must have a mental apprehension of harmful contact. If P did not see the revolver the required apprehension would be missing.
195) Nancy Nightclub opened a drink and dance club called PartyForEver on the ground floor of a two story building she owned in Quiettown. Nancy herself lived in an apartment on the second floor of the building. The nightclub featured the best of the local bands and thus was an immediate success. A religious neighbor, Perfect Pious, lived across the street from Nancy’s establishment. Perfect viewed the partying every night as sinful and believed it had to be stopped. Perfect began a series of round-the-clock telephone calls to Nancy in her apartment harassing her for the “evil thing” she brought to the neighborhood. This did not persuade Nancy to close the nightclub, so Perfect called in “bomb threats” to the club during their busy hours. Upon receiving the calls, the police required Nancy to tell all the patrons to leave the nightclub. This caused Nancy’s business to substantially decline. If Nancy brings a lawsuit against Perfect for invasion of privacy, the court will likely hold for
A) Nancy because the telephone calls created monetary damages.
B) Perfect because she honestly felt her actions were serving the community and public interest.
C) Perfect because Nancy has other and better causes of action which may be asserted to recover her damages.
D) Nancy since the telephone calls intruded upon Nancy’s solitude and seclusion.
D) Nancy since the telephone calls intruded upon Nancy’s solitude and seclusion.
This is the best answer because repeated unwanted telephone calls have been held actionable under the tort of intrusion. Notice that the MBE may refer to “invasion” and you have to determine which of the four sub-torts applies - here that is intrusion.
196) All American City prided itself on its patriotic civic attitude. One of the many activities it performed annually was a very large fireworks display over the central city lake on the Fourth of July. The City contracted the pyrotechnic display planning, setup, and execution to Always Careful Fireworks, Inc. Always Careful represented that they would use non-dangerous fireworks. This July was very warm and a large group of citizens came out to the various parks on the lake. When the sun went down, the firework show began. One of the rockets shot off by Always Careful was apparently defective. When fired, it veered horizontally. The rocket landed on the shingle wood roof of a home on the other side of the lake causing a roof fire. A motorist from another state driving through on an interstate above the lake began looking at the firework display. He became so excited with the display that he took his eyes off the road and failed to navigate the next turn in the road. A passenger in his car named Pattie was injured when the car went off the road. If the homeowner files a claim against All American City, the best defense that can be asserted is
A) Any responsibility for damages belongs to Always Careful Fireworks, Inc. not the City.
B) The homeowner assumed the risk by using wood singles on the roof rather than tile or composition.
C) The City could not reasonably foresee that a roof fire on the other side of the lake would result.
D) The firework product was not inherently dangerous.
D) The firework product was not inherently dangerous.
This is the best defense that can be asserted because if successful it would defeat the strict liability claim so that any recovery would have to be for negligence, allowing the possibility of some contributory negligence offset.
198) PriceCo was a large wholesale warehouse club located in Everytown. PriceCo had experiences where thieves hid in cars parked in the parking lot waiting for individual customers to rob. These attacks usually occurred in the evening hours after the sun went down and the parking lot was dark. In response to the robberies, the store put up some warning signs and additional lights in the parking lot. Two days later, Susan Shopper arrived at the store at 7:00 P.M. As she walked into the store she noticed one of the warning signs. She completed her shopping at around 8:00 P.M. and while walking back to her car, she was robbed. At about the same time, a passing motorist, Charlie Changer, pulled into the parking lot. He went into the store to get a roll of quarters to play pinball. He got the change but did not buy anything in the store. When he walked back to his car, he was also robbed. If both Susan and Charlie file claims against PriceCo the court will likely hold for
A) Both Susan and Charlie if PriceCo failed to exercise reasonable care.
B) Susan but not Charlie because he was only a licensee.
C) Charlie but not Susan because she saw the warning signs.
D) Neither Charlie or Susan because the store is not liable for dangers resulting from intentional torts committed by third parties not under their control.
A) Both Susan and Charlie if PriceCo failed to exercise reasonable care.
A land owner owes a duty to invitees to exercise reasonable care to eliminate unreasonable risks and to protect invitees against danger. It is a jury question as to the standard of care (e.g., whether PriceCo should have hired a security guard to patrol the parking lot).
Torts Opening Argument
The common law of torts protects the interests of those who have suffered harm.
Intentional torts
Intentional torts start with an intentional act (or failure to act) by a D that creates harm. Intent or motive to cause harm is not required, only the intent to commit the act, even if the resulting harm was not intended.
Transferred intent
If D intends battery, assault, false imprisonment, trespass to land, or trespass to chattels, and instead (or also) commits a different tort, D will be liable for the other tort as if he actually intended it. Intent may be transferred between victims if the intended consequence is the same.
Prima facie case of negligence
In order for a plaintiff to make a prima facie case of negligence there must exist legal duty to exercise reasonable care to that particular P, a breach of that duty, causation (“but for” and proximate), and resulting damages.
D’s Duty Balancing Test
Judge Learned Hand employed an equation weighing D’s burden of precaution against the probability of harm to the plaintiff, times the magnitude of the harm that would occur.
Liability to rescuers
Creating danger invites rescue and it is foreseeable that a rescuer may herself be injured, or may cause additional injury to P in her rescue attempt. The original tortfeasor is liable for these additional harms.
Standard of care in an emergency
In an emergency situation, the standard of care is one of a reasonable person in a similar emergency situation.
Respondeat superior
Agency vicarious liability to the employer applies if the agent’s tortious act was within the course and scope of the agency and in furtherance of the business, or the function was inherently dangerous. The principal may also be liable if there was negligent hiring or supervision.
Contributory negligence
The defense of contributory negligence applies where a plaintiff fails to take reasonable care to protect himself, similar to assumption of the risk, and is a total bar to recovery under common law.
Comparative fault
Comparative fault is now the rule in most states and operates to diminish proportionally the amount P is awarded for damages.
Assumption of the risk
Assumption of the risk involves an express and voluntary consent that may exculpate D from negligence liability. The P must understand the potential future specific risk involved.
Fraud
Fraud is a false statement of material fact, intended by the defendant to mislead the plaintiff into act or omission, upon which the plaintiff reasonably relies, and which results in damages to the plaintiff.
Strict liability
Strict liability applies to undomesticated dangerous animals; abnormally dangerous activities; and products liability arising from a defective new product sold by a merchant.
Defamation
Defamation is an unprivileged false statement of fact concerning a plaintiff, publicized to third parties, with a wrongful intention or negligence in exposing the plaintiff to hatred, contempt, ridicule, or disgrace; thus damaging plaintiff’s reputation and good name.
