Torts

Question 1

Which of the following need NOT be shown by the plaintiff under the attractive nuisance doctrine?

A The owner was or should have been aware of the dangerous condition.

B The child was lured onto the property by the attractive nuisance.

C The condition was likely to cause injury because of the child’s inability to appreciate the risk.

D The expense of remedying the situation is slight compared with the magnitude of the risk.

Answer 1

B The child was lured onto the property by the attractive nuisance.

The plaintiff does not need to show that the child was lured onto the property by the attractive nuisance. The plaintiff does need to show that the owner was or should have been aware of the dangerous condition, that it was likely to cause injury because of the child’s inability to appreciate the risk, and that the expense of eliminating the danger is slight compared with the magnitude of the risk. Under the attractive nuisance doctrine, a landowner has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on the property. To recover under this doctrine, the plaintiff must show that (i) there is a dangerous condition present on the land of which the owner is or should be aware, (ii) the owner knows or should know that young persons frequent the vicinity of this dangerous condition, (iii) the condition is likely to cause injury, i.e., is dangerous, because of the child’s inability to appreciate the risk, and (iv) the expense of remedying the situation is slight compared with the magnitude of the risk.

Question 2

If a statute providing for a criminal penalty is applicable to a common law negligence case, the statute’s specific duty will replace the more general common law duty of care. Which of the following does a plaintiff NOT need to show to prove the availability of the statutory standard?

A The plaintiff is in the class intended to be protected by the statute.

B The statute was designed to prevent the type of harm that the plaintiff suffered.

C The plaintiff suffered physical injury because of the defendant’s violation of the statute.

D The standards set out in the statute are clearly defined.

Answer 2

C The plaintiff suffered physical injury because of the defendant’s violation of the statute.

The plaintiff need not suffer physical injury from the defendant’s violation of the statute. While damages is an element of the prima facie case for negligence, any type of damages, including property damages, will suffice. To prove the availability of the statutory standard, a plaintiff must show that the standards set out in the statute are clearly defined. For the statute to apply, (i) the plaintiff must be in the class intended to be protected by the statute, and (ii) the statute must have been designed to prevent the type of injury that he suffered.

Question 3

Which of the following is correct at common law regarding affirmative duties to act?

A One has a general duty to act when it will not result in risk of harm to him

B One who acts for the benefit of another has a duty to continue the assistance

C A “Good Samaritan” statute excuses any resulting negligence

D A physician has a duty to render emergency medical care if it will not result in risk of harm to her

Answer 3

B One who acts for the benefit of another has a duty to continue the assistance

With regard to affirmative duties to act, one who gratuitously acts for the benefit of another is then under a duty to act like an ordinary, prudent, reasonable person and continue the assistance. There is no general duty to act, even if it will not result in risk of harm to the person who would be taking action. As a general matter, no legal duty is imposed on any person to affirmatively act for the benefit of others. Absent a statute changing the common law rule, even physicians are not required to come to the aid of a person needing assistance. A “Good Samaritan” statute does NOT excuse any resulting negligence. Many states have enacted Good Samaritan statutes, which usually exempt doctors, nurses, etc. from liability for ordinary negligence when they voluntarily and gratuitously render emergency treatment. However, liability still exists under most of these statutes for gross negligence.

Question 4

A defendant intended to commit an assault on A, but his conduct only constituted a battery on B.
Under the transferred intent doctrine, the defendant is liable for:

A An assault of B.

B An attempted assault of A and a battery of B.

C A battery of B.

D An attempted assault of A and an assault of B.

Answer 4

C A battery of B.

(C) The defendant has committed a battery of B when he acts with the intent to commit an assault on A, but his conduct only constitutes a battery on B. The transferred intent doctrine allows an intent to commit a tort against one person to be transferred to the committed tort or to the injured person. It applies to (i) assault, (ii) battery, (iii) false imprisonment, (iv) trespass to land, and (v) trespass to chattels. The defendant is not liable for an assault of B. The committed tort was a battery, and the intent transfers from the assault to the battery. Nor is the defendant liable for an attempted assault of A. There is no tort liability for an attempted assault standing alone. The defendant is liable only because of the transferred intent doctrine, and only to the person harmed. Thus, there is no liability to A here.

Question 5

Which of the following is correct regarding self-defense?

A Retaliation may be permissible.

B Deadly force may be permissible.

C Retreat is required.

D Actual necessity is required.

Answer 5

B Deadly force may be permissible.

(B) Deadly force may be permissible for self-defense. A person may use deadly force to prevent death or serious bodily injury to herself. Self-defense requires use of force that reasonably appears necessary to prevent harm. A person may use deadly force if she reasonably believes that she is in danger of serious bodily injury. Retaliation is not permissible for self-defense. Self-defense is only permitted to prevent the commission of a tort. A person cannot retaliate by using force when there is no longer a threat of injury. Retreat is not required for self-defense. A majority of courts hold that a person may stand her ground and need not attempt an escape. Actual necessity is not required for self-defense. A person need only have an apparent necessity to defend oneself, i.e., a reasonable belief that she is being, or is about to be, attacked.Thus, a reasonable mistake as to the need for self-defense does not eliminate this defense.

Question 6

If the plaintiff establishes res ipsa loquitur, it will have the following effect:

A A directed verdict will not be given for the defendant.

B A directed verdict will be given for the plaintiff.

C The burden of proof is shifted to the defendant.

D A presumption of negligence is created.

Answer 6

A A directed verdict will not be given for the defendant.

The circumstantial evidence doctrine of res ipsa loquitur deals with those situations where the fact that a particular injury occurred may itself establish or tend to establish a breach of duty owed. Where res ipsa loquitur has been proven, the plaintiff has made a prima facie case, and a directed verdict will not be given for the defendant. Application of the doctrine does not shift the burden of proof to the defendant, nor does it create a presumption of negligence. Furthermore, the doctrine does not result in a directed verdict for the plaintiff. The defendant may introduce evidence that due care was exercised, and the jury may reject the permissible inference that may be drawn from the res ipsa proof and find for the defendant.

Question 7

There often is more than one cause for an injury. The “but for” test for actual cause applies to:

A Joint causes.
B Alternative causes.
C Superseding causes.
D Concurrent causes.

Answer 7

D Concurrent causes.

The “but for” test for actual cause applies to concurrent causes. An act or omission to act is the cause in fact of an injury when the injury would not have occurred but for the act. This test applies in concurrent cause cases, where several acts combine to cause the injury, but none of the acts standing alone would have been sufficient. But for any of the acts, the injury would not have occurred. The “substantial factor” test is used for joint causes, where several causes commingle and bring about an injury, but any one alone would have been sufficient to cause the injury. In that case, it is sufficient if defendant’s conduct was a substantial factor in causing the injury. An alternative causes situation arises when two or more persons have been negligent, but uncertainty exists as to which one caused the plaintiff’s injury. Under this approach, the plaintiff must prove that harm has been caused to him by one of them (with uncertainty as to which one). The burden of proof then shifts to the defendants, and each must show that his negligence is not the actual cause. Superseding causes arise in the context of proximate cause rather than actual cause. In addition to being an actual cause, the defendant’s conduct must also be a proximate cause of the injury. Causes that arise after the defendant’s conduct that contribute to the injury may be so unforeseeable as to be superseding causes, which cut off the defendant’s liability for his original negligent act.

Question 8

Which of the following describes only dependent intervening forces in a proximate cause analysis?

A Efforts to protect person or property and acts of God.

B Subsequent medical malpractice and criminal acts of third persons.

C A subsequent disease and negligence of rescuers.

D A subsequent accident and an intentional tort of a third person.

Answer 8

C A subsequent disease and negligence of rescuers.

Dependent intervening forces are normal responses or reactions to the situation created by the defendant’s negligent act. Dependent intervening forces are almost always foreseeable. A subsequent disease is a common dependent intervening force. The original tortfeasor is usually liable for diseases caused in part by the weakened condition in which the defendant has placed the plaintiff by negligently injuring her. Also, negligence of rescuers is a common dependent intervening force. Generally rescuers are viewed as foreseeable intervening forces, so the original tortfeasor usually is liable for their negligence. Efforts to protect person or property are common dependent intervening forces. A defendant is usually liable for negligent efforts on the part of persons to protect the life or property of themselves or third persons endangered by the defendant’s negligence. Subsequent medical malpractice is also a common dependent intervening force. The defendant is usually liable for the aggravation of the plaintiff’s condition caused by the malpractice of the treating physician. A subsequent accident may also be a dependent intervening force if the original injury was a substantial factor in causing the second accident. However, acts of God and intentional torts and criminal acts of third persons are independent intervening forces. Independent intervening forces operate on the situation created by the defendant’s negligence, but they are independent actions rather than natural responses or reactions to the situation. (Note that the defendant may or may not be liable for independent intervening forces. It depends on whether they are foreseeable.)

Question 9

In a negligence action, the plaintiff cannot recover:

A Unforeseeable damages
B Noneconomic damages
C Presumed damages
D Damages for lost future earning capacity

Answer 9

C Presumed damages

In a negligence action, the plaintiff cannot recover presumed damages. Damage is an essential element of a plaintiff’s prima facie case for negligence. This means actual harm or injury. Unlike for some intentional torts, damage will not be presumed in negligence. A plaintiff is entitled to all damages that he can prove, even if the extent of the damages was unforeseeable. Permissible damages includes economic damages, such as medical expenses and lost earnings, and noneconomic damages, such as pain and suffering. The plaintiff is also entitled to damages for lost future earning capacity, discounted to present value to avoid an excess award; i.e., the plaintiff receives an amount that, if securely invested, would produce the income that the jury wishes him to have.

Question 10

A plaintiff who is 40% negligent can recover 60% of his damages in which of the following cases?

A In either a pure or a partial comparative negligence jurisdiction, regardless of the number of defendants and their degree of fault.

B In a pure comparative negligence jurisdiction only.

C In a partial comparative negligence jurisdiction, but only against a defendant who is more at fault than the plaintiff.

D In a partial comparative negligence jurisdiction, but only if there is only one defendant.

Answer 10

A In either a pure or a partial comparative negligence jurisdiction, regardless of the number of defendants and their degree of fault.

A plaintiff who is 40% at fault can recover in either a pure or a partial comparative negligence jurisdiction, regardless of the number of defendants and their degree of fault. In a pure comparative negligence state, the plaintiff can recover no matter how great her degree of fault. In a partial comparative negligence jurisdiction, the plaintiff’s recovery will be barred if her negligence passes a threshold level, either 50% or 51%. Hence, the plaintiff here can recover in a pure comparative negligence jurisdiction and in any partial comparative negligence jurisdiction. For that reason, it is incorrect to state that the plaintiff can recover in a pure comparative negligence jurisdiction only. In a partial comparative negligence jurisdiction, if several defendants have contributed to a plaintiff’s injury, a “combined comparison” approach is used to determine the threshold level; i.e., the plaintiff’s negligence is compared with the total negligence of all of the defendants combined. Thus, a plaintiff who is 40% at fault can recover in a partial comparative negligence jurisdiction even if there is more than one defendant, and may recover against a defendant who is also less at fault than she; the plaintiff will still be less at fault than the combined fault of the defendants.

Question 11

In contrast to products liability cases based on negligence, those based on strict liability do not:

A Require an injured bystander to be foreseeable.

B Require that suppliers have an opportunity to inspect.

C Prohibit recovery of solely economic losses.

D Impose liability when an intermediary negligently failed to discover the defect.

Answer 11

B Require that suppliers have an opportunity to inspect.

Unlike with products liability cases based on negligence, those based on strict liability do not require that suppliers have an opportunity to inspect. Thus, for a case based on the sale of a defective product, a retailer in a strict liability action may be liable for a manufacturing or design defect simply for being a commercial supplier of that defective product, even if it had no opportunity to inspect the manufacturer’s product before selling it. In a negligence action, the supplier’s negligence must be proved. Products liability cases based on negligence and those based on strict liability both require that an injured bystander be foreseeable. While privity is not required in these cases, and bystanders are protected and may bring a claim under either theory, they must be foreseeable plaintiffs. Liability under these theories applies only to foreseeable plaintiffs. Products liability cases based on negligence and those based on strict liability both prohibit recovery of solely economic losses. The types of damages recoverable under both theories are the same: personal injury and property damages. Economic loss cannot be the sole damage claim. As under claims based on negligence, those based on strict liability will impose liability even though an intermediary negligently failed to discover the defect. The same concepts of proximate cause govern negligence and strict liability actions. The negligent failure of an intermediary to discover a defect is not a superseding cause and does not cut off the supplier’s strict liability. However, if the intermediary’s conduct becomes something more than ordinary foreseeable negligence, then it does become a superseding cause.

Question 12

Which of the following invasion of privacy branches require the plaintiff to show “publicity”?

A Intrusion on plaintiff’s affairs or seclusion and public disclosure of private facts about plaintiff.

B Intrusion on plaintiff’s affairs or seclusion and publication of facts placing plaintiff in a false light.

C Publication of facts placing plaintiff in a false light and public disclosure of private facts about plaintiff.

D Intrusion on plaintiff’s affairs or seclusion, publication of facts placing plaintiff in a false light, and public disclosure of private facts about plaintiff.

Answer 12

C Publication of facts placing plaintiff in a false light and public disclosure of private facts about plaintiff.

The invasion of privacy branches based on publication of facts placing the plaintiff in a false light and public disclosure of private facts about the plaintiff require “publicity” concerning the false light or private facts—i.e., widespread dissemination of the facts. Mere publication to a third person is not sufficient for liability. In contrast, invasion of privacy based on intrusion on the plaintiff’s affairs or seclusion requires neither publication nor publicity – just the act of intruding.

Question 13

Which of the following best states who may bring a strict liability action against a defendant engaging in abnormally dangerous activities?

A Anyone injured as a result of the dangerous propensity of the activity

B Any foreseeable plaintiff injured as a result of the dangerous propensity of the activity

C Anyone directly injured by the activity

D Any foreseeable plaintiff as long as she was directly injured by the activity

Answer 13

B Any foreseeable plaintiff injured as a result of the dangerous propensity of the activity

A defendant engaging in an abnormally dangerous activity may be liable only to foreseeable plaintiffs injured as a result of the dangerous propensity of the activity. This is the best statement of the scope of the duty owed. In most states, a defendant will be liable only to those persons to whom a reasonable person would have foreseen a risk of harm under the circumstances. In general, strict liability is not imposed for injuries to a plaintiff to whom no reasonable person would have foreseen a danger. The defendant will not be strictly liable to all plaintiffs who were directly injured by the activity. Rather, the harm must result from the kind of danger to be anticipated from the abnormally dangerous activity; i.e., it must flow from the “normally dangerous propensity” of the activity involved. Conversely, a foreseeable plaintiff may recover even if she was not directly injured by the activity as long as the injury was from the dangerous propensity (e.g., injuries caused by fleeing the danger from the activity).

Question 14

A principal will be vicariously liable for the tortious acts of her independent contractor:

A If the independent contractor is engaged in inherently dangerous activities.

B Under the doctrine of respondeat superior.

C If the principal negligently selected the independent contractor.

D If the principal negligently supervised the independent contractor.

Answer 14

A If the independent contractor is engaged in inherently dangerous activities.

A principal will be vicariously liable for the tortious acts of her independent contractor if the independent contractor is engaged in inherently dangerous activities. In general, a principal will not be vicariously liable for tortious acts of an independent contractor. Two broad exceptions exist, however: (i) the independent contractor is engaged in inherently dangerous activities, e.g., excavating next to a public sidewalk, blasting; or (ii) the duty, because of public policy considerations, is simply nondelegable, e.g., the duty of a business to keep its premises safe for customers. Respondeat superior is the doctrine that makes employers vicariously liable for the torts of employees; it does not apply to independent contractors. A principal may be liable for negligently selecting or supervising an independent contractor. However, that liability is for her own negligence; it is not vicarious liability.

Question 15

The right of contribution among tortfeasors:

A Imposes contribution based on equal shares of the overall liability.

B Provides for apportionment of damages in the absence of joint and several liability.

C Does not apply against a tortfeasor who is immune from liability.

D Applies to intentional torts.

Answer 15

C Does not apply against a tortfeasor who is immune from liability.

The right of contribution among tortfeasors is a device whereby responsibility is apportioned among those who are at fault. However, it does not apply against a tortfeasor who is immune from liability. If the contributing tortfeasor has a defense that would bar liability, such as intra-family tort immunity, she is not liable for contribution. In most states, contribution is based on relative fault of the various tortfeasors rather than on equal shares of the overall liability. Contribution does not provide for apportionment of damages in the absence of joint and several liability; rather, it can only operate in response to joint and several liability, because it allows any tortfeasor required to pay more than his share of damages under joint and several liability rules to have a claim against the other jointly liable parties for the excess. Contribution does not apply to intentional torts in most states.

Question 16

For purposes of private nuisance, the interference with the plaintiff’s use of the land is unreasonable only if:

A The interference is offensive or annoying to an average person in the community.

B The remedy of damages is unavailable or inadequate.

C The nuisance is a “nuisance per se.”

D The severity of the plaintiff’s inflicted injury outweighs the utility of the defendant’s conduct.

Answer 16

D The severity of the plaintiff’s inflicted injury outweighs the utility of the defendant’s conduct.

The interference with the plaintiff’s use of the land will be considered unreasonable under nuisance law when the severity of the plaintiff’s inflicted injury outweighs the utility of the defendant’s conduct. In balancing these respective interests, courts take into account that every person is entitled to use his own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courses of conduct open to the defendant. Whether the interference is offensive or annoying to an average person in the community is the test for whether the interference is substantial, which is a separate requirement for establishing a nuisance. Whether the remedy of damages is unavailable or inadequate determines only whether the plaintiff may be able to obtain an injunction remedy. A nuisance is sometimes called a “nuisance per se” when it is based on strict liability (e.g., a nuisance arising from an abnormally dangerous activity).

Question 17

In the course of repainting an apartment, the landlord of a small apartment building used a professional strength, stain-killing primer manufactured by a paint company for professional painters. The building’s common ventilation system was running as the landlord applied the primer, and some fumes from the primer went through the ventilation system into the apartment of the upstairs tenant, who suffered injuries to her eyes as a result. The warning label on the can, which the landlord read, stated: “Danger. This material is extremely hazardous and volatile. Do not use near open flame. Use only with adequate ventilation.” The product contained a chemical known to be harmful to people’s eyes, but in the 15 years that the product has been on the market, there were no reported cases of anyone suffering an eye injury from the product. However, professional painters routinely close off or shut down any common ventilation systems in buildings before using the product.

If the tenant brings an action against the paint company on a theory of strict liability, will she recover?

A Yes, because the product was used as intended and she was injured thereby.

B Yes, because the label on the product did not warn of the risk of the fumes causing eye injury.

C No, because the fact that no one had previously been injured demonstrated that the warning label on the product was sufficient.

D No, because the landlord acted negligently by leaving the ventilation system on.

Answer 17

B Yes, because the label on the product did not warn of the risk of the fumes causing eye injury.

The tenant will likely prevail because the lack of a warning about eye injuries made the product unreasonably dangerous. A products liability action based on strict liability requires the following: (i) the defendant is a commercial supplier; (ii) the defendant produced or sold a defective product; (iii) the defective product was the actual and proximate cause of the plaintiff’s injury; and (iv) the plaintiff suffered damage to person or property. Here, the paint company is a commercial supplier of a “defective” product. Although the primer was not actually defective in that it apparently performed as it was meant to do, it is legally defective if it was unreasonably dangerous and could be made safer by adequate warnings. Here, the paint company knew of the danger and could easily have placed a specific warning on the label. Even though professional users may have known of the danger, it was not obvious, and it could have been avoided at minimal cost by including a specific warning. That would have alerted the landlord to the danger, making it more likely that he would take precautions that would have prevented the tenant from being injured. To prove actual cause where the plaintiff’s claim is that the product is defective because of lack of an adequate warning, the plaintiff is entitled to a presumption that an adequate warning would have been read and heeded. Thus, the tenant can likely establish liability on her cause of action. (A) is wrong because even in a strict liability action, liability will be found only if the product is defective, not just because someone was injured when it was used for its intended purpose. (C) is wrong because the manufacturer must warn of the danger, and its duty is not satisfied merely because there have been no injuries to date by following the instructions on the label. (D) is wrong because, given the inadequacy of the warnings, any negligence on the landlord’s part would be ordinary foreseeable negligence that would not cut off the paint company’s liability for its defective product.

Question 18

A homeowner purchased a riding lawn mower from a lawn mower dealer. During his first use of the mower, the homeowner noticed that the mower was vibrating when he turned, but he was able to finish mowing. A few days later, the homeowner lent the mower to his neighbor. The neighbor was driving the mower back to his yard when he made a turn and a wheel broke off, causing the neighbor to be thrown off the lawn mower and onto the sidewalk. The neighbor was injured.

The neighbor brought a negligence action against the dealer for his injuries. At trial, the neighbor presented evidence that the wheel broke because of a manufacturing defect. The dealer presented evidence that the homeowner could have discovered the defect after the mower began vibrating when he used it for the first time.

In this action, who is likely to prevail?

A The neighbor, because the lawn mower was sold by the dealer with an unreasonably dangerous defect.

B The neighbor, because the defect in the wheel would not likely have occurred in the absence of negligence.

C The dealer, because the homeowner should have discovered the defect when the mower first started vibrating.

D The dealer, because there is no evidence that the dealer had reason to know that the lawn mower was defective.

Answer 18

D The dealer, because there is no evidence that the dealer had reason to know that the lawn mower was defective.

The dealer will prevail because there is no evidence that it should have discovered the defect. To prove breach of duty in a products liability action based on negligence, the plaintiff must show (i) negligent conduct by the defendant leading to (ii) the supplying of a defective product by the defendant. However, a dealer who buys from a reputable manufacturer with no reason to anticipate that the product is dangerous need make only a cursory inspection of the goods to avoid liability for manufacturing defects. Here, there is no evidence that the dealer should have known that the wheel was defective; hence the dealer will likely prevail. (A) is incorrect because merely selling the lawn mower with an unreasonably dangerous defect, without knowing or being expected to know of the defect, will not subject the dealer to liability for negligence. The statement in (A) is more appropriate in an action based on strict liability. (B) is incorrect because the use of res ipsa loquitur suggested by that choice would be directed at the manufacturer rather than the dealer, and the dealer is not liable for the manufacturer’s negligence. (C) is incorrect because the negligent failure of an intermediary to discover a defect is not a superseding cause. If the dealer were otherwise liable, the negligent failure of the homeowner to discover the defect in the wheel would not cut off the dealer’s liability.

Question 19

A ballplayer became ill soon after consuming sunflower seeds marketed by a farm products company. The package of seeds was inspected and foreign matter was discovered on the seeds.

If the ballplayer brings an action against the farm products company on the basis of strict tort liability, which of the following would be most helpful for the company to avoid liability?

A The foreign matter on the seeds was a rare mold that could not be detected by tests commonly used for establishing that sunflower seeds are safe for human consumption.

B The seeds were sold in their natural state, and had not been manufactured or processed by the farm products company in any way.

C In answer to an interrogatory, the ballplayer has acknowledged that he has no evidence that his illness was caused by the foreign matter on the seeds.

D Although marketed under the label of the farm products company, the seeds had been collected and packaged for distribution by another company and any foreign matter on the seeds was the other company’s fault.

Answer 19

C In answer to an interrogatory, the ballplayer has acknowledged that he has no evidence that his illness was caused by the foreign matter on the seeds.

The ballplayer’s lack of evidence of causation is most helpful to the farm products company. One of the elements of a prima facie case for products liability based on strict liability is causation of some harm to the plaintiff by a defective product. The ballplayer must show that the farm products company is strictly liable as a commercial supplier of the seeds, and that the farm products company marketed a defective product. In addition, the defect must have actually and proximately caused some harm to the plaintiff, and there must be damages. If, as (C) states, the ballplayer can produce no evidence that the illness he suffered was caused by the seeds’ foreign matter, then he cannot prove the element of causation. Absent causation, a cause of action for strict liability will not lie. (A) is not as helpful to the farm products company as (C) because it does not preclude the ballplayer from establishing a prima facie case for strict liability. The fact that the foreign matter in the seeds was a rare mold might allow the farm products company to claim that it was not feasible to supply the seeds in a safer condition than they were (i.e., a “state of the art” defense), but the success of this argument is much less certain than the argument of no causation raised by choice (C). (B) is incorrect because the farm products company is strictly liable as a commercial supplier to refrain from selling a defective product. There is no requirement that the defendant in a strict liability action have manufactured or processed the product, only that the defendant be a commercial supplier of the product. The farm products company is a commercial supplier of the seeds by marketing them in its packaging. Therefore, the farm products company can be strictly liable even if the seeds were sold in their natural state. (D) is incorrect because, even if the seeds were actually collected and packaged by another company, the farm products company also is strictly liable as the company that markets the seeds and thus is part of the distributive chain.

Question 20

A man working at a clothing store discovered that his girlfriend and coworker had been taking money from the cash register. Not wanting to be a party to the situation, he ended the relationship and found another job. Not long after this, the man’s new boss, who knew why the man had quit, came into the clothing store. He asked the girlfriend if she missed her boyfriend working with her at the store. She replied, “Yes, but when we found that he was stealing from the cash register, we had no choice but to let him go.”

If the man sues his former girlfriend for defamation, the fact that the new boss knew the truth of why the man had left his job at the store will have what result?

A It will act as a complete defense to an action for defamation.

B It will establish that the man has not suffered any actual injury.

C It may diminish the damages that the man would be entitled to recover.

D It proves that the girlfriend had no reasonable ground for believing that the man was
fired for dishonesty.

Answer 20

C It may diminish the damages that the man would be entitled to recover.

The new boss’s knowledge of the true circumstances behind the man’s departure from the store may diminish the man’s recovery. The girlfriend is liable for defamation because she made a defamatory statement about the man to a third person. As long as it is understood in its defamatory sense, an accusation need not be believed to be actionable. Because the statement that he was stealing at his job constituted slander per se, damages are presumed. Hence, (A) is wrong. (B) is wrong because actual injury encompasses not only damage to reputation but also humiliation and mental distress, for which the man could recover even though the new boss did not believe the girlfriend’s statement. (D) is wrong because the fact that the new boss did not believe the statement does not prove lack of basis for the girlfriend to have made it.

Question 21

A columnist for a major metropolitan newspaper had a very antagonistic relationship with the city’s mayor. When a restaurant owned by the columnist’s family was shut down by city health inspectors, the columnist responded with a column publicizing the shutdown and asserting that it was in retaliation for his prior columns in which he had criticized the mayor. In fact, the mayor had nothing to do with the action by the city health inspectors. While the columnist had no evidence of the mayor’s involvement, he believed that there was a connection because “that’s how the city works.”

Can the mayor recover against the columnist for defamation?

A No, because the columnist did not act with actual malice.

B No, because the columnist had a qualified privilege to explain why he believed his family’s business was shut down.

C Yes, because the columnist’s hostility toward the mayor establishes malice so as to overcome any qualified privilege the columnist had.

D Yes, because the columnist should have investigated the accuracy of his claims before publishing the column.

Answer 21

A No, because the columnist did not act with actual malice.

The mayor cannot recover against the columnist because he did not act with actual malice. A public official, such as a mayor, may not recover for defamatory words relating to his official conduct unless there is clear and convincing proof that the statement was made with actual malice, which is defined as knowledge that the statement was false or reckless disregard as to truth or falsity. Reckless conduct is not measured by whether a reasonable person would have investigated before publishing; rather, there must be a showing that the defendant in fact (subjectively) entertained serious doubts as to the truthfulness of his publication. Here, while the columnist had no evidence of the mayor’s involvement with the action of the health inspectors, he believed that there was a connection based on his belief as to how the city operates. Hence, he has not acted with actual malice and is not liable to the mayor for defamation. (B) is incorrect because the columnist’s qualified privilege applies only to statements made to defend his own actions, property, or reputation. Even if it were to apply to his explanation of why his family’s restaurant was shut down, his statements in the column were beyond the scope of the privilege, which does not extend to making a statement to a mass audience whose reading of the statement would not reasonably further his interest in defending himself. Here, the publication in his newspaper column of his explanation as to why the restaurant was shut down was beyond the scope of any privilege he may have had. (C) is incorrect because malice that will result in the loss of a qualified privilege is defined by most courts as knowledge of falsity or reckless disregard as to truth or falsity, rather than hostility or ill-will. As long as the defendant is using a proper occasion for a qualified privilege in a proper way, he will not lose this privilege simply because he bears ill-will toward the plaintiff. (D) is incorrect because the fact that the columnist should have investigated the accuracy of his assertions and did not only establishes negligence on his part. As discussed above, the mayor, as a public official, must show at least reckless disregard as to truth or falsity to recover in a defamation action.

Question 22

A golfer and her instructor were playing golf in a foursome when the golfer became very annoyed with critical comments made by the instructor. To show the other golfers in the group how annoyed she was with her instructor, the golfer stood a few yards behind him while the instructor was teeing off and swung a club at him. The instructor, who was focusing on his shot, was not within range of the club but unfortunately the club slipped out of the golfer’s hands and struck the instructor in the head, injuring him.

If the instructor brings a battery action against the golfer, will he recover?

A Yes, because the golfer acted intentionally and caused harmful contact to her instructor.

B Yes, because the golfer intended to cause the instructor reasonable apprehension of imminent harmful contact.

C No, because the golfer did not intend to cause harmful or offensive contact.

D No, unless the golfer acted unreasonably in swinging the club at her instructor.

Answer 22

C No, because the golfer did not intend to cause harmful or offensive contact.

The golfer will not be liable because she did not intend to cause harmful or offensive contact. The prima facie case for battery has the following elements: (i) an act by the defendant that brings about harmful or offensive contact to the plaintiff’s person; (ii) intent on the part of the defendant to bring about harmful or offensive contact to the plaintiff’s person; and (iii) causation. Here, the golfer did not have the intent to cause harmful or offensive contact. Hence, she will not be guilty of battery. (A) is incorrect because even though the golfer had the intent to swing the club, she did not have the intent required for battery—to cause harmful or offensive contact to another. (B) is incorrect because the facts do not support an intent to cause an assault. Under the transferred intent doctrine, an intent to cause an assault (intent to cause apprehension of imminent harmful or offensive contact) will satisfy the intent requirement for battery when the other elements of battery are present. Here, however, the golfer was standing behind the instructor and was intending only to show the other golfers how annoyed she was. No intent to commit assault is apparent here. (D) is incorrect because it describes a negligence standard. The instructor may be able to recover against the golfer in a negligence cause of action if the golfer acted unreasonably in swinging the club, but this does not establish intent for a battery action.

Question 23

A trainer of homing pigeons brought several of them to a park that he often used for training. He had trained this group of pigeons carefully and was confident that they would readily find their way home. When they were released, one of the pigeons inexplicably turned in the opposite direction from home. Several blocks away at the other end of the park, it collided with a radio-controlled model airplane that its owner had just purchased and was trying out for the first time. The collision sent the airplane out of control; it dipped low across a highway and was struck and run over by a truck.

The airplane owner sued the pigeon trainer for the destruction of his airplane. The parties stipulated to the above facts and the airplane owner presented evidence of his damages. The trainer then moved for a directed verdict.

Should it be granted?

A No, because the trainer’s pigeon caused the destruction of the airplane.
B No, because the jury could find negligence on the trainer’s part under the doctrine of res ipsa loquitur.
C Yes, because the truck, rather than the pigeon, was the direct cause of the airplane’s destruction.
D Yes, because the trainer took reasonable care in training his pigeons.

Answer 23

D Yes, because the trainer took reasonable care in training his pigeons.

The court should grant a directed verdict for the trainer because the airplane owner has not shown that the trainer breached any duty that he owed to him. A prima facie case of negligence requires plaintiff to show the following elements: (i) the existence of a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against unreasonable risk of injury, (ii) breach of that duty by the defendant, (iii) that the breach of duty was the actual and proximate cause of plaintiff’s injury, and (iv) damage to plaintiff’s person or property. Here, it is doubtful that the trainer’s releasing his pigeons created any duty to other users of the park. To the extent that it did, the fact that he had taken great care to train them to return directly to their roosts indicates that he did not breach his duty to the airplane owner. Because the airplane owner has offered no other evidence of negligence, nor any reason to impose strict liability on the trainer (as discussed below), the trainer’s motion for a directed verdict should be granted. (A) is incorrect because that choice indicates the imposition of a strict liability standard on the trainer. The owner of a domestic or inherently nondangerous animal is not strictly liable for the injuries it causes. The conduct of the trainer’s homing pigeon would not make the trainer liable in the absence of some negligence on his part. (B) is incorrect because the doctrine of res ipsa loquitur applies only to situations where the fact that a particular injury occurred itself establishes that defendant breached a duty. If the doctrine is applicable, no directed verdict may be given for defendant because plaintiff has established a prima facie case. However, the accident must be the type that would not normally occur unless someone was negligent. The collision between the trainer’s homing pigeon and the model airplane is not that type of accident; by itself, it provides no suggestion that anyone was negligent. (C) is incorrect because the truck is not a superseding force that breaks “the causal connection” between the action of the trainer’s pigeon and the airplane’s destruction. In indirect cause cases, where a force came into motion after defendant’s act and combined with it to cause injury to plaintiff, defendant will still be potentially liable for foreseeable intervening forces that are within the increased risk caused by his acts. Even if the intervening force is independent (i.e., not a natural response or reaction to the situation), it will be foreseeable where defendant’s negligence increased the risk that the independent force would cause harm. Hence, if the trainer were negligent in releasing his pigeon, the fact that the destruction of the airplane was directly caused by the truck would not relieve the trainer from liability, because the initial collision with the pigeon caused the airplane to go out of control and created a substantial risk that it would be damaged by an intervening force.

Question 24

A bicyclist was riding his bicycle in the street when a negligently driven car struck the bike, knocking the bicyclist off the bike and breaking his right ankle. The driver of the car immediately stopped and went to his assistance. She got him to his feet and was slowly moving him toward the curb when a negligently driven taxicab struck him in the left leg. The bicyclist required surgery on both his right ankle and his left leg.

If the bicyclist sues the driver and the cabbie, which of the following best states his right to recover?

A He can recover from either the driver or the cabbie for all of his injuries because the driver and the cabbie are jointly and severally liable.
B He can recover from the driver only for the injury to his right ankle and recover from the cabbie only for the injury to his left leg.
C He can recover from either the driver or the cabbie for the injury to his left leg and recover from the driver only for the injury to his right ankle.
D He cannot recover against the driver for the injury to his left leg unless the jury determines that the driver acted negligently when she came to his aid.

Answer 24

C He can recover from either the driver or the cabbie for the injury to his left leg and recover from the driver only for the injury to his right ankle.

The bicyclist can recover from either party for the left leg injury but only from the driver for the right ankle injury. When two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortfeasor is jointly and severally liable to the plaintiff for the entire damage incurred. Joint and several liability applies even though each tortfeasor acted entirely independently. However, if the actions are independent, plaintiff’s injury is divisible, and it is possible to identify the portion of injuries caused by each defendant, then each will be liable only for the identifiable portion. Here, the cabbie would not be liable for the injury to the right ankle, because the cabbie did not cause the injury. (A) is therefore incorrect. With regard to the left leg, the cabbie was not the only cause of that injury. The original tortfeasor is liable for harm caused by the negligence of third persons when such negligence was a foreseeable risk created by the original tortfeasor’s conduct. Here, as a result of the driver’s original negligence, the bicyclist was in a position of danger while he was still in the street. The negligence of the cabbie in striking the bicyclist was a foreseeable risk while the bicyclist was in the street; it is therefore a foreseeable intervening force that will not cut off the driver’s liability. Hence, both the driver and the cabbie will be jointly and severally liable for that injury. (B) is therefore incorrect. (D) is incorrect because the driver remains responsible for the foreseeable consequences of her original negligence in striking the bicyclist, regardless of whether she acted with due care when she came to his aid.

Question 25

A company that owned a tract of land believed to be rich in mineral deposits contracted with a licensed excavator for the removal of soil from the property and delivery of the soil to the company’s laboratories. While one of the excavator’s trucks was on the way to the laboratory, the rear gate broke loose, dumping three tons of soil onto the highway. A motorist who was driving a short but safe distance behind the truck was unable to stop in time and collided with the soil, causing her serious injury. The rear gate had been negligently secured by one of the excavator’s employees.

If the motorist sues the company for his injuries and does not prevail, what is the most likely reason?

A The rear gate was secured by the excavator’s employee.
B The excavator had a license to transport soil on the highway.
C The company’s duty in respect to the movement of its soil on the highway was delegable.
D The transportation of soil on the highways was a common practice in the area where the accident occurred.

Answer 25

C The company’s duty in respect to the movement of its soil on the highway was delegable.

The strongest basis for the motorist not prevailing is the absence of a nondelegable duty. The general rule is that a principal will not be liable for tortious acts of its agent if the agent is an independent contractor. However, a broad exception will impose liability on the principal if the duty is nondelegable because of public policy considerations. As long as the company was not subject to a nondelegable duty, it would not be liable for the negligence of the excavator’s employee in the transportation of its soil. (A) is not as good an answer as (C) because the fact that the accident was caused by the negligence of the independent contractor’s employee does not necessarily excuse the company from liability. (C) supplies the additional factor that enables the company to avoid liability. (B) is incorrect because the possession of a license by the excavator would not excuse the company from liability. (D) is incorrect because the fact that the transportation of soil was common to the area is relevant only for a strict liability action for abnormally dangerous activities, and the transport of soil by truck is not such an activity.

Question 26

A construction company that was putting in a swimming pool for a homeowner left a couple of large pieces of equipment in the backyard overnight. The equipment was not owned by the construction company but was leased from an equipment company, which was responsible for its repair and maintenance. After the workers had left, a seven-year-old boy came onto the homeowner’s property to play. The homeowner was aware that the boy often came onto his property to play with his dog. The boy climbed up on one of the pieces of equipment and began pushing buttons and moving levers. The engine started and the equipment began to move because the equipment company had not replaced a defective safety locking device on the ignition. The boy became frightened and jumped off, falling into the hole that had been dug that day, and was injured.

The boy’s parents brought suit against the homeowner and the construction company.

If the construction company is held liable for the boy’s injuries, may it recover anything from other parties?

A It may obtain indemnity from the equipment company because the equipment was negligently maintained in an unsafe condition.
B It may obtain contribution from the equipment company because the equipment was negligently maintained in an unsafe condition.
C It may obtain indemnity from both the equipment company and the homeowner
D It may not recover any damages it paid from any other party.

Answer 26

B It may obtain contribution from the equipment company because the equipment was negligently maintained in an unsafe condition.

Because the equipment company negligently maintained the equipment, the construction company could obtain contribution from the equipment company. When two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortious actor will be jointly and severally liable for that injury. Joint and several liability permits a plaintiff to recover the entire judgment amount from any defendant. Contribution allows a defendant required to pay more than his share of damages to recover from the other jointly liable parties for the excess. In other words, contribution apportions responsibility among those who are at fault. Here, if the construction company is held liable for the boy’s injuries, it will be because of its negligence in leaving unattended a piece of equipment without a working safety locking device. However, because the equipment company, which was responsible for repair and maintenance of the equipment, negligently performed such maintenance, resulting in the absence of a working safety locking device, then the equipment company’s negligence would have combined with that of the construction company to proximately cause the boy’s injuries. This would render the companies jointly and severally liable to the boy for the entire damage incurred. Thus, if the construction company is held liable for the injuries, it has a claim against the equipment company, as a jointly liable party, for the amount it pays in excess of its share of damages. (A) is incorrect because indemnity is not available here. Indemnity involves shifting the entire loss between or among tortfeasors, and is available where: (i) there is a contractual promise to indemnify; (ii) there is a special relationship between the defendants that would allow for vicarious liability; or (iii) the defendant is a supplier in a strict products liability case who is liable to an injured customer, thus giving the supplier a right of indemnification against previous suppliers in the distribution chain. In addition, some states allow a joint tortfeasor to recover indemnification from a co-joint tortfeasor where there is a considerable difference in degree of fault. Here, there is no evidence of a contractual right to indemnity between the construction company and the equipment company, there is no relationship between them that causes the construction company to be held vicariously liable for the equipment company’s negligence, and this is not a strict products liability case. Also, there is no indication of a considerable difference in degree of fault between the two companies. Therefore, none of the circumstances in which indemnity is available is present. (C) is incorrect because it would allow for indemnity in this situation and, as explained above, the circumstances allowing for indemnity are simply not present here. (D) is incorrect because, as explained above, the construction company can recover from the equipment company based on contribution rules.