Torts

Question 1

Does D-landowner have a duty to protect a plaintiff not on the defendant’s land from dangers deriving from natural conditions on the defendant’s land?

Answer 1

Under the majority rule, a defendant does not have a duty to protect a plaintiff not on the defendant’s land from dangers deriving from natural conditions on the defendant’s land.

However, a person is required to exercise reasonable care to prevent injury to a plaintiff not on his land resulting from unreasonably dangerous artificial conditions that abut or protrude onto adjacent land, and to protect passersby on a public street from injury deriving from dangerous artificial conditions on defendant’s land.

Question 2

contributory negligence jurisdiction and common carriers

Answer 2

Common carriers, such as trains and buses, traditionally have a duty to avoid harm to their passengers through the exercise of the highest degree of vigilance, care, and precaution. Thus, as a common carrier, the driver is not subject to the reasonably prudent person test; he is held to a higher standard. Given that he did not properly inspect his bus, he was negligent.

However, if the man was contributorily negligent, he will be barred from recovery in a contributory negligence jurisdiction. Under this approach, a plaintiff is required to exercise due care to protect himself from injury by the defendant. The analysis of whether a plaintiff acted with contributory negligence is similar to the analysis of a defendant’s negligence and considers whether the plaintiff acted as a reasonable person would under similar circumstances. A reasonable person would not have attempted to board a bus wearing roller skates, particularly in the face of posted signs prohibiting the action. As such, in a contributory negligence jurisdiction, the man’s contributory negligence would bar him from recovery.

Question 3

doctrine of res ipsa loquitur examples

Answer 3

Crashing through the barn while parking the car is the kind of thing that ordinarily does not occur in the absence of a negligent act, and from the known facts, it is more likely than not that the pen pal was responsible. Finally, there is nothing to suggest that the woman had anything to do with the crash, because she was in the passenger’s seat.

Question 4

The general rule is that there is no affirmative duty to aid a plaintiff. What are the exceptions?

Answer 4

An exception to this general rule is that a person does have a duty to aid a plaintiff if the person’s conduct is responsible for placing the plaintiff in a position of requiring aid.

In some (a minority of) jurisdictions, a defendant is liable for a failure to perform a gratuitous promise to render aid if the plaintiff relied on the promise to the plaintiff’s detriment. In most jurisdictions, however, a defendant who gratuitously promises to take action to help a plaintiff does not have a duty to actually take the promised action.

Special relationship between defendant and plaintiff takes place when the defendant derives economic benefit or when the defendant occupies a position of power over the plaintiff. The following relationships have been generally recognized as triggering the duty to care for the plaintiff:

(1) employer/employee (during and in the scope of employment);
(2) common carrier and innkeeper/customer;
(3) school/pupil;
(4) parent/child; and (
5) jailer/prisoner.

Question 5

Generally, to recover for negligent infliction of emotional distress, the plaintiff must have been within the zone of danger and must have suffered some physical manifestation of the emotional distress. What is the exception?

Answer 5

There is an exception to these requirements if the defendant negligently mishandles a corpse.

Question 6

contributory negligence and last clear chance doctrine

Answer 6

In jurisdictions taking a traditional contributory negligence approach, a plaintiff is required to exercise due care to protect himself from injury by defendant. The analysis as to whether a plaintiff was contributorily negligent is similar to the analysis of the defendant’s conduct, in that it considers whether the plaintiff acted as a reasonable person would under the same or similar circumstances. Traditionally, if a plaintiff is found to have engaged in contributorily negligent conduct, he is barred from recovering for defendant’s otherwise negligent conduct.

However, the last clear chance doctrine provides a basis for recovery even where plaintiff has been contributorily negligent. If the injury to plaintiff could still have been avoided through a subsequent exercise of due care by defendant, then defendant is said to have had the last clear chance to avoid harm, and plaintiff’s contributory fault does not bar recovery.

Here, the homeowner took notice of the neighbor’s careless riding, including the fact that his eyes were closed, and the homeowner comprehended the potential risk of harm from the exposed mower blades, yet she nevertheless continued mowing rather than wait until the neighbor passed by. As the homeowner had the last clear chance to avoid the harm, the neighbor may recover for his injuries, even in a contributory negligence jurisdiction.

Question 7

Is mistake a defense to trespass to land?

Answer 7

No. Trespass only requires the requisite intent to physically enter another’s land. The fact that a defendant is mistaken about where the boundary line is does not negate the intent to enter the property.

i.e. Even though the contractor may have thought he was parking the machinery on the supermarket’s property, the requirement of intent was satisfied.

Question 8

If a product has a manufacturing defect, strict liability will be imposed on…

Answer 8

…the manufacturer and everyone else in the chain of distribution for the harm caused by the defect. Commercial suppliers at all levels of the distribution chain (i.e., manufacturer, distributor, or retailer) are proper defendants. This is the case even if they did nothing to contribute to the harm.

That the injury is attributable to the defendant is proven by showing that the defect that injured the plaintiff was in existence at the time it left the defendant’s control.

If negligence, rather than strict liability, is the theory of recovery in a products liability action, a defendant will be held liable for a failure to inspect goods for defects if they come from a previously unknown or questionable source.

Question 9

A defendant that sells a product in a defective condition unreasonably dangerous to the user is …

Answer 9

…strictly liable for any harm done to the consumer or their property. The store is liable because they sold a defective product to the woman and it caused her harm. Even if consumer wasn’t physically injured, she can still recover for damage to her property.

Question 10

Strict liability of providers of services (vs. sellers of goods)

Answer 10

Generally, providers of services are not held strictly liable for injuries received by their customers. If defective goods are supplied along with services, strict liability is still not applicable, so long as the goods supplied were merely “incidental” to rendition of the services. However, restaurants are frequently regarded as sellers of goods (food) subject to strict liability.

Suppliers of services cannot be strictly liable, but only for negligence.

Question 11

Generally, a defendant is held strictly liable for injuries resulting from abnormally dangerous activities on his land. Exception?

Answer 11

A defendant will not be liable to a plaintiff who knows of and appreciates the danger justifying the imposition of strict liability and who voluntarily exposes himself to that danger. Such an assumption of the risk will completely bar the plaintiff from recovery.

i.e. the passerby entered the defendant’s land in conscious disregard of the warning signs.

Question 12

Trespasser and strict liability for his injuries inflicted by a defendant’s animal.

Answer 12

If the plaintiff is a trespasser, strict liability will not be imposed for injuries inflicted by a defendant’s animal while the plaintiff is on the defendant’s land, even as to animals with known dangerous propensities.

If the plaintiff is a known or frequent trespasser, a defendant may only be found liable for negligence.

Here, the rancher knew that locals frequently entered upon a portion of his land to access a neighboring nature reserve. Because the hiker is classified as a frequent trespasser, strict liability will not be imposed.

Question 13

invasion of his privacy v. defamation

Answer 13

One who publicly discloses private facts of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that would be highly offensive to a reasonable person, and is not of legitimate concern to the public. Truth is not a defense to publication of private facts. However, unlike defamation, disclosure to a third person is not sufficient publication to garner liability (information must be disseminated to the public).

Question 14

A strict products liability action requires plaintiff to establish that:

Answer 14

(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.

If the product was dangerous beyond the expectation of the ordinary consumer or a less dangerous alternative or modification was economically feasible, the supplier has supplied a defective product.

Furthermore, while some products may be safe if used as intended, they may involve serious dangers if used in other ways. Courts require suppliers to anticipate reasonably foreseeable uses even if they are misuses of the product.

To hold a manufacturer strictly liable for a defect in a product, the product must have reached the consumer without substantial change in the condition in which it was supplied.

To hold the commercial supplier strictly liable
for a product defect, the product must be expected to, and must in fact, reach the user or consumer without substantial change in the condition in which it is supplied. A product manufacturer is not strictly liable for defects that were not present when the product left the manufacturer’s control.

Question 15

A manufacturer built a speedboat that it sold through an independent dealership. One day, the boat’s owner was racing the boat dangerously close to shore in a misguided effort to impress some sunbathers on the beach. The owner was heading straight for the beach and then attempted to turn quickly away, but the steering failed and the boat crashed onto shore, injuring a sunbather. The sunbather asserts a claim based on negligence against the manufacturer. At trial, she presents evidence of the above facts and evidence that the steering failure resulted from defect in the boat that was present when it left the manufacturer. At the end of the sunbather’s case, the manufacturer moves for a directed verdict.
How should the court rule?

(A) Grant the motion, because the sunbather
failed to present evidence of negligence on
the part of the manufacturer.
(B) Grant the motion, because the sunbather’s
uncontroverted evidence established that
the boat owner’s negligence was a superseding
cause of the accident.
(C) Deny the motion, because the defect is not
something that would ordinarily occur in
the absence of negligence.
(D) Deny the motion, because the manufacturer
placed a dangerously defective boat into the
stream of commerce.

Answer 15

The court should deny the motion because the sunbather can rely on res ipsa loquitur to get the
case to the jury. To prevail on a negligence claim, the sunbather must show negligent conduct by
the manufacturer, leading to the supplying of a dangerously defective product by the company.
The failure to exercise reasonable care, which is the critical distinction between a products
liability action based on negligence and one based on strict liability, can be established by res ipsa loquitur in a case such as this, because the steering defect at the manufacturing stage would not usually occur without some negligence on the part of the manufacturer.

Hence, (C) is correct and (A) is wrong. (B) is wrong because any negligence on the part of the owner is reasonably foreseeable and will not relieve the manufacturer of the consequences of its negligence. (D) is wrong because simply placing a defective boat into the stream of commerce would present grounds for a strict liability action, but not one for negligence. Some negligence must be shown.

Question 16

Most courts have refused to extend strict products liability to cases in which plaintiff suffers only economic loss when not accompanied by physical harm to the plaintiff, requiring the plaintiff instead to…

Answer 16

…bring an action for breach of warranty to recover
such damages.

Question 17

A homeowner purchased a new electric garage
door opener directly from the manufacturer. A
representative of the manufacturer installed the
opener and tested it after installation. The opener
had a safety sensor that was supposed to detect
when anything was in the path of the door and
automatically stop and retract. One day as the
homeowner was backing out of her garage, she
accidently hit the garage door button too early,
causing the garage door to come down and crush
the hood of her car. The homeowner brought a
negligence action against the manufacturer to
recover her damages.
Evidence at trial showed that the manufacturer
had tested a sample of the garage door
openers in the same series as the one installed in
the homeowner’s garage, and had conducted its
normal tests with regard to the installation. The
particular opener installed in the homeowner’s
garage, however, had a defective circuit that
disabled the safety sensor.
To establish a prima facie case, which of the
following best states what the homeowner must
establish?
(A) The safety sensor was defective, and the
manufacturer failed to inspect the safety
sensor on the homeowner’s opener.
(B) The safety sensor was defective.
(C) The safety sensor was defective, and the
manufacturer inspected the safety sensor
but failed to discover the defect.
(D) The safety sensor was defective, and the
manufacturer could have discovered the
defect if it had properly inspected the safety
sensor.

Answer 17

(D) The plaintiff must show that the manufacturer could have discovered the defect. In a product
liability action based on negligence, the plaintiff must show negligent conduct on the part of the
manufacturer that led to the supplying of a product with an unreasonably dangerous defect. The standard of care in a negligence action is reasonable care, and the plaintiff must show that the defendant has failed to exercise such care. The manufacturer’s failure to discover the defect when a proper inspection would have revealed it establishes the failure to exercise due care.

(A) is wrong because it does not refer to the standard of care. The failure to inspect must be shown to be a breach of the duty of care, which would only be the case if the defect could have been discovered by an inspection.

(C) is similarly wrong because it does not show that the manufacturer’s standard of conduct was unreasonable; only if the defect could have been discovered by a reasonable inspection, as indicated by (D), would the failure to do so constitute a breach of duty.

(B) is wrong because it does not refer to the manufacturer’s conduct at all, which is critical to an action based on negligence.

Question 18

Ten years ago, a chemical manufacturer
decided that it needed a safe place to store toxic
waste that was a byproduct of its manufacturing
processes. A highly reputable engineering
company was hired and an exhaustive survey
was performed to find a site. Once the site
was selected, the chemicals were stored there
underground, using state-of-the-art techniques.
However, the surveyors failed to discover a crack
in the rock of the storage area that was too small
for their instruments to detect. Over a period of
years the chemicals began to seep through the
crack and into the water table below the surface.
Tests disclosed that a nearby city’s water supply,
all of which came from local wells that tapped
into the water table, contained unacceptably high
levels of chemical contaminants. The city was
required to spend $5 million on a complex filtration system to remove the dangerous chemicals from its water.
The city brought an action against the
chemical manufacturer to recover the cost of
building the filtration system. At the end of the
plaintiff’s case establishing the above facts, the
manufacturer moved for a directed verdict.
Should the court grant the manufacturer’s
motion?
(C) No, if the court determines as a matter of
law that storage of the chemicals creates a
foreseeable risk of serious harm even when
reasonable care is exercised by all actors.
(D) No, because the trier of fact could determine
that storage of the chemicals creates a
foreseeable risk of serious harm even when
reasonable care is exercised by all actors.

Answer 18

(C) The court should deny the chemical manufacturer’s motion if it determines that its storage of chemicals was an abnormally dangerous activity, making the manufacturer strictly liable for any harm caused by the chemicals. The city can bring a private nuisance action against the chemical manufacturer for the substantial and unreasonable interference with the use of its water. Nuisances may be based on intent, negligence, or strict liability. A strict liability standard for engaging in an abnormally dangerous activity would apply where the activity (i) creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and (ii) is not a matter of common usage in the community. Whether an activity is abnormally dangerous is a question of law that the court can decide on a motion for a directed verdict. Because the city has presented no evidence of negligence on the chemical manufacturer’s part, the only way that the city can survive the manufacturer’s directed verdict motion is if the court finds that a strict liability standard applies, as suggested by (C).

(D) is incorrect because, as discussed above, whether the elements making an activity abnormally dangerous are present is a question of law for the court rather than a question of fact.

Question 19

Several cars of a freight train transporting
nuclear waste derailed as the train neared a
street crossing. One of the cars struck a motorist’s
car as it was waiting at the crossing gate,
seriously injuring the motorist. The area around
the accident was immediately evacuated, but
fortunately none of the freight cars ruptured in
the derailment.
In an action alleging strict liability against
the railway that operated the freight train,
the motorist established the above facts and
presented evidence of her injuries. The railway
presented evidence that the derailment was
caused by a hidden defect in the spikes that
anchored the rails to the track. The spikes were
manufactured by its regular supplier and had not
previously caused any problems. The railroad
also presented evidence that the local authorities
were supposed to restrict access to roads
crossing the freight line while that particular
train was in transit, but they had failed to do so.
In this action, is the motorist likely to prevail?

Answer 19

Careful! Even when the Q mentions strict liability it’s not necessarily strict liability!

(C) The motorist is not likely to prevail in a strict liability action because her injury did not arise
from the abnormally dangerous propensity of the railway’s activity.

The railway’s transport of nuclear waste likely qualifies as an abnormally dangerous activity because: (i) it creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and (ii) the activity is not a matter of common usage in the community. However, the scope of liability extends only
to the dangers that would be anticipated from the activity involved; strict liability does not apply
to harms that were not caused by the normally dangerous propensity of the activity. Here, the
railway’s activity is subject to strict liability because of the danger of radioactivity inherent in
nuclear waste, but not from a derailment by itself. Because the motorist’s injuries were not caused
by the release of radioactivity, strict liability does not apply. The railway would be liable for the
injuries from the derailment only if the motorist established negligence.

Question 20

A new synthetic liquid was created that could
safely double the output of electrical power
plants. One byproduct of the production of the liquid was a hazardous chemical that was not
biodegradable in the environment. A stateof-
the-art manufacturing plant was built to produce this liquid, and the manufacturing plant secured an expert opinion on how to dispose of the hazardous chemical byproduct. The expert
concluded that the earth beneath the disposal site was impermeable, and that there was no danger of contaminating the underground waters if the chemical were buried. Based on this expert
opinion, the hazardous chemical was buried in
a depression on the land because the head of
the manufacturing plant reasonably believed
that it was safe. The chemical, nonetheless, seeped through the underlying soil strata, and was carried by the flow of percolating water to a neighboring well used by the adjacent sheep
farm to water the sheep. The chemical rendered the water in the well unfit for consumption by
sheep. The sheep farmer had bought the farm after the plant was built. While he was unaware of
the hazardous chemical disposal underground
when he bought the farm, the sheep farmer was
later told his well may be contaminated, and he did nothing about it. The sheep were harmed by drinking from the contaminated well, and the sheep farmer asserts a claim against the manufacturing plant for damages to the sheep in a jurisdiction that follows traditional contributory negligence rules. Which of the following is the manufacturing plant’s best defense?
(A) Many companies converted their power
plants so that they could utilize the synthetic
liquid developed by the manufacturing plant.
(B) The sheep farmer did not do what a reasonable person would have done to prevent
harm to his sheep after he learned that the well was contaminated.
(C) The sheep farmer was contributorily negligent.
(D) The manufacturing plant was in place
and in operation before the sheep farmer purchased his property.

Answer 20

(B) Under the “avoidable consequences” rule, a plaintiff has a duty to mitigate damages to avoid
further injuries from the defendant’s conduct. Because the sheep farmer’s property was damaged in this situation, the sheep farmer’s claim would be based on strict liability. As such, simple contributory negligence would not be a good defense in jurisdictions following traditional contributory negligence rules. (C) is therefore incorrect. But if the plaintiff discovers the existence of the danger and fails to act reasonably to prevent further harm from occurring, the defendant would have a good defense, making (B) the best defense. (A) is incorrect because there is no balancing
of utility and risk where abnormally dangerous activities are involved. (D) is incorrect because
the sheep farmer would have had to have known of and appreciated the risk involved when he
purchased the property to constitute assumption of the risk. Thus, (B) is the only correct answer.

Question 21

A well-known Oscar-winning producer who
owned the nation’s leading special effects studio
employed a creative designer who was recognized
throughout the industry as one of the top
talents in the special effects field. A competitor
of the producer who wanted to hire the designer
told him that that the producer was in negotiations
to sell his studio to a major Hollywood film
company. In fact this statement was not true, and
the competitor made the statement without any
knowledge of its truth or falsity. The designer,
whose employment contract with the producer
was terminable at will by either party, agreed to
be hired by the competitor. The producer was
very upset when he learned of the competitor’s
action because he knew that the designer would
be almost impossible to replace. The producer
brought suit against the competitor.
If the producer establishes the above facts and
that he suffered damages, which of the following
is likely to be true?

(A) He will recover for intentional interference
with business relations, because the competitor used improper means to hire the designer away from the producer.

(C) He will not recover for intentional interference
with business relations, because the designer was an at-will employee of the producer.

Answer 21

(A) The producer can recover for intentional interference with business relations because the competitor used improper means to hire the designer away.

To establish a prima facie case for interference with contract or prospective economic advantage, the plaintiff must prove:

(i) the existence of a valid contractual relationship between the plaintiff and a third party or a valid business expectancy of the plaintiff;
(ii) the defendant’s knowledge of the expectancy; (iii) intentional interference by the defendant that induces a breach or termination of the relationship or expectancy; and
(iv) damage to plaintiff.

While an interferer’s conduct may be privileged where it is a proper attempt to obtain business for the interferer, not only the ends but also the means of persuasion used must be proper.

Here, the competitor made an intentional misrepresentation with the intent to induce the designer to leave the producer’s employment, and the producer has shown that he suffered actual damage from the designer’s departure.

(C) is incorrect because even though the competitor did not induce the designer to breach
his contract, because it was terminable at will by either party, the competitor did induce a termination of the contractual relationship and interfered with the producer’s business expectancy that the designer would stay in his employ. While the competitor would have been privileged to try to hire the designer away using legitimate means, the privilege does not extend to making intentional misrepresentations about the designer’s current employer.

Question 22

When a defamatory statement involves a matter of public concern or involves a public figure, the plaintiff must provide competent evidence of…

Answer 22

actual injury (i.e., presumed damages are not permitted absent a showing of knowledge of
falsity or reckless disregard of truth). Actual injury is not limited to out-of-pocket loss; it may include impairment of reputation, personal humiliation, and mental anguish.

Question 23

A man working at a clothing store discovered
that his girlfriend, a 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 23

(C) 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, completing the prima facie case. Nevertheless, the stated fact will diminish the amount of damages that the man will recover because his reputation was not likely harmed in the eyes of his boss.

(A) is wrong because, as
stated above, the man can establish a prima facie case for defamation even though the defamatory
statement was not believed.

(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 if his reputation was not damaged.

(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 24

The wife of the president of a small but prestigious
private college was also an instructor at
the college. While researching an article about
the college president, a reporter discovered and
revealed in a published news story that while the
wife was dating the president, she had falsified
her academic credentials on her application for a
position with the college. As a result of the news
story, the wife was subject to verbal attacks and
innuendo among her colleagues. She asserted
a cause of action against the newspaper for
defamation and established at trial that the story
about her was not accurate.
What else will the wife need to show to
prevail?

(C) The newspaper published the story with
knowledge that it was false or with reckless
disregard for its truth or falsity.
(D) The newspaper was negligent in publishing
the story.

Answer 24

(D) For the wife to prevail, she will need to show that the newspaper was negligent. Although at
common law defamation liability could be strict, a number of Supreme Court decisions based on the First Amendment now impose a fault requirement in cases involving public figures or
matters of public concern.

A defendant may not be held liable for defamation on a matter of public concern involving a public figure unless, in addition to publishing a false story, it was at least
negligent in ascertaining the truth or falsity of its facts. Here, a story about an instructor at a prestigious college falsifying her academic credentials, while dating the president of the college, likely is a matter of public concern because it affects the perceived integrity of the institution.

(C)
is incorrect because knowledge or reckless disregard is the standard applicable to public figures, and the wife does not qualify as such merely because she is married to someone who may be a public figure.

Question 25

There are four branches of the tort of invasion of privacy:

Answer 25

(i) appropriation of the plaintiff’s picture or name for the defendant’s commercial advantage; (ii) intrusion upon plaintiff’s affairs or seclusion; (iii) publication of facts that place plaintiff in a false light; and (iv) public disclosure of private facts about plaintiff.

Question 26

A boy was arrested for shoplifting. His mother was informed and arrived at the police station, where a reporter for a daily newspaper took her picture. The photograph appeared on the front page of the next day’s edition of the paper, above a story about an increase in shoplifting arrests. A caption to the photograph identified her as the mother of a boy arrested for shoplifting. Later that week, the mother lost her job as a result of the story in the paper. Will the mother recover if she asserts a claim against the newspaper for invasion of privacy? (C) No, because her photograph was taken in a public place. (D) No, because the caption was accurate.

Answer 26

(C) The facts do not make out a claim for invasion of privacy in any of the four forms that invasion of privacy takes. The photograph was not an appropriation for commercial purposes because it was incidental to a legitimate news story and was not used in an advertisement. The photograph did not involve intrusion because it was taken in a public place. The news feature did not involve false light because the facts do not suggest that the photograph conveyed a false impression. Finally, the mother’s appearance at the police station simply was not a private fact, because it is generally agreed that anything visible in a public place may be recorded and given circulation by means of a photograph. ``` **(D) is incorrect because truth is not a defense to most invasion of privacy actions. Even for false light invasion of privacy, the fact that the caption was true does not preclude recovery if the photograph otherwise conveyed a false impression.** Thus, (C) is a better choice than (D). ```

Question 27

A private nuisance action requires a showing that the defendant’s interference with the use and enjoyment of the plaintiff’s property was unreasonable. To be characterized as unreasonable,...

Answer 27

...the severity of the inflicted injury must outweigh 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, the values of the respective properties, the cost to the defendant to eliminate the condition complained of, and the social benefits from allowing the condition to continue.

Question 28

In a private nuisance suit against the record company, is the fact that the artist owns her studio and has used it for 15 years controlling?

Answer 28

(B) The artist’s ownership and use of her studio is relevant but not controlling. The fact that one type of land use was entered into before another is relevant but not conclusive evidence of the reasonableness of the use in a private nuisance action. \*\*\* While not conclusive, conduct consistent with what a zoning ordinance permits is relevant evidence that the use is not a nuisance.

Question 29

A fire broke out in a home that had been recently remodeled, destroying the house and injuring the homeowner. An investigation by the fire marshal established that the fire started from a short in some wiring behind a wall. A small section of wiring that ran to an outlet through a narrow gap between a furnace chimney and a hot water pipe had had part of its outer sheath cut off. The homeowner filed suit against the electrical company that did the rough wiring. The parties stipulated for trial that the company had installed the wiring in compliance with the blueprints, and that the wiring had been inspected and approved by the building inspector before the chimney and the water pipe had been installed and the walls put up, all by different contractors. At trial, the homeowner introduced the report of the fire marshal establishing how the fire started, and evidence of his medical expenses and other damages. At the end of the homeowner’s case, the electrical company’s attorney rested her case and moved for a directed verdict. The homeowner’s attorney also moved for a directed verdict. How should the court rule on the directed verdict motions? (B) Deny the electrical company’s motion and grant the homeowner’s motion for a directed verdict, because the company failed to rebut the presumption of negligence that the homeowner has established. (C) Deny the homeowner’s motion and grant the electrical company’s motion for a directed verdict, because the wire could have been damaged by another contractor. (D) Deny both directed verdict motions, because the homeowner has presented enough evidence to submit the case to the jury.

Answer 29

(C) The court should grant the electrical company’s motion for a directed verdict because _the homeowner has not established a prima facie case of negligence on the company’s part._ The homeowner has established that the electrical company owed a duty to him and that he has suffered harm from the fire caused by the short in the wiring. However, he has not established that the company breached any duty to him. _While breach of duty is ordinarily a question for the trier of fact, a plaintiff’s failure to offer any evidence on that element of the prima facie case will permit a directed verdict for the defendant._ Under certain circumstances, the fact that a particular injury occurred may itself establish or tend to establish a breach of duty owed, permitting the trier of fact to infer the defendant’s liability. This is the doctrine of res ipsa loquitur (“the thing speaks for itself”). **However, for the doctrine to apply, the plaintiff must show that** **(i) the accident causing his injury is the type that would not normally occur unless someone was negligent;** **(ii) the negligence was attributable to the defendant; and** **(iii) the injury was not attributable to the plaintiff.** The second requirement can often be satisfied by showing that the instrumentality causing the injury was in the exclusive control of the defendant. Here, however, the wiring was exposed to work done by other contractors in installing a chimney and a hot water pipe nearby and putting up the walls, and _the homeowner has offered no evidence that the cut in the outer sheath of the wiring was present when the electrical company finished its work_. _Instead, the fact that the wiring had been approved by the building inspector suggests that the wiring was intact when the electrical company finished._ Given these facts, the homeowner has not presented evidence that the negligence was attributable to the defendant. Since res ipsa loquitur does not apply and no other evidence of breach of duty was established, the electrical company’s motion for a directed verdict should be granted. (B) is also incorrect because the homeowner’s motion for a directed verdict would be denied _even if he had established res ipsa loquitur._ Establishing res ipsa loquitur merely creates a permissible inference of negligence; it does not create a presumption of negligence. Where the res ipsa loquitur element has been proved, the plaintiff has established a prima facie breach of duty on the defendant’s part and no directed verdict may be given for the defendant. **However, it does not require the defendant to present evidence to rebut a presumption. The trier of fact is free to accept the inference of negligence that has been created and find for the plaintiff or reject the inference of negligence and find for the defendant, even if the defendant offers no other evidence on the issue.** Thus, the court would not grant the homeowner’s motion for a directed verdict even if he had established res ipsa loquitur.

Question 30

A bookstore owner entered into an agreement with a building contractor to have a facade attached to the front of his bookstore. The contractor constructed the facade and attached it to the storefront, using plans prepared by himself and his own employees. After completing the work, the contractor was paid the contract price by the bookstore owner. A week later, a woman was walking past the front of the bookstore when the facade and a portion of the original building collapsed, striking and injuring her. The woman sued both the contractor and the bookstore owner for damages arising from her injuries. The parties stipulated that the attachment of the facade to the storefront caused the building to collapse **and that the bookstore owner was *_not_* negligent in selecting or supervising the contractor.** If the woman recovers against the bookstore owner, does the latter have any right of action against the contractor? (A) Yes, because the bookstore owner’s conduct was not a cause in fact of the injuries to the woman. (B) Yes, because the woman recovered from the bookstore owner on the basis of vicarious liability. (C) No, because the bookstore owner selected the contractor to perform the work.

Answer 30

(B) The bookstore owner has an action against the contractor for indemnification because the woman’s recovery against the bookstore owner was based on vicarious liability. While the general rule is that a principal is not vicariously liable for the torts of an independent contractor, a broad exception applies when the duty of care is nondelegable on public policy grounds, such as **_a landowner’s duty to make his premises safe._** Indemnity involves shifting the entire loss between or among tortfeasors, in contrast to apportioning it as in contribution. Where one is vicariously liable for the torts of another, the former has a right of indemnity against the latter. Here, the bookstore owner was not directly liable to the woman in his capacity as owner of the property because he exercised due care in selecting the contractor, so the judgment against him was on the basis of vicarious liability for any negligence by the contractor, because the bookstore owner’s duty to keep his building safe to passersby was nondelegable. (A) is incorrect because **the bookstore owner, by hiring the contractor,** **_was_ a cause of fact of the woman’s injuries** (i.e., but for the bookstore owner’s hiring of the contractor, the woman would not have been injured). However, that does not address the theory on which the woman recovered against the bookstore owner.

Question 31

Each member of the partnership is .... liable for the tortious conduct of another partner committed in the scope of the partnership’s affairs.

Answer 31

vicariously

Question 32

Independent contractor

Answer 32

The general rule is that a principal is not liable for tortious acts of an agent who is an independent contractor. An agent is likely to be an independent contractor if she: (i) is engaged in a distinct business of her own; (ii) controls the manner and method by which she performs her tasks; (iii) is hired to do a particular job; (iv) supplies her own tools and materials; (v) is paid a given amount for the job; and (vi) is hired to do a short-term, specific job. Despite the general rule, a principal can be held liable for the tortious acts of an independent contractor if: (i) the independent contractor is engaged in inherently dangerous activities; or (ii) the principal has a duty that is nondelegable on public policy grounds (e.g., a land occupier’s duty to keep his land safe for business invitees). Also, a principal can be held liable for his own negligence in selecting an incompetent independent contractor.

Question 33

The common law rule is that an automobile owner is (not) liable for torts committed by another person driving the automobile.

Answer 33

not liable By statute or judicial precedent, many states have imposed liability on a car owner for the tortious conduct of an immediate family member driving the car (family car rule) or for the tortious conduct of anyone driving the car with consent (permissive use rule).

Question 34

A developer constructed several small stores in a commercial district. She received a bid from a contractor to install awnings on the front windows of the stores. The developer had heard that the contractor did shoddy work, but the price was right and the contractor expressly assumed all of the risk of any liability. The developer subsequently sold one of the stores to a barber. A few months later, an awning collapsed without warning, injuring a customer who was about to enter the barbershop. An investigation by the building inspector revealed that the awning collapsed because the brackets used by the contractor were cheaper and weaker than the required brackets, although they looked the same. The developer and the contractor are now both bankrupt. If the customer sues the barber for his injuries, is the customer likely to prevail? (A) Yes, because the barber had a nondelegable duty to keep the premises safe for customers and those passing by. (D) No, because the barber had no opportunity to oversee the contractor’s actions.

Answer 34

(D) The customer is not likely to prevail because the barber had no opportunity to oversee the contractor’s work. A property owner owes a duty to those adjacent to the premises to take due precautions to protect them from dangerous conditions, and a business owes its customers a duty to make reasonable inspections to discover and make safe any dangerous conditions. Further, that duty cannot be delegated to an independent contractor; the owner remains vicariously liable. However, nothing in the facts establishes that the barber breached his duty to the customer. *There was nothing wrong with the brackets evident from a reasonable inspection, and the awning collapsed without warning.* **_Further, the barber was not involved in hiring or supervising the contractor and would not be responsible for the contractor’s negligence._** Hence, because no facts point to negligence by the barber, the customer is not likely to prevail. (A) is incorrect even though it is true that a business owner would be vicariously liable to customers and passersby injured by the negligent work of an independent contractor that he hired. Here, however, the **_barber did not engage the contractor_** and is not responsible for the contractor’s conduct.

Question 35

A delivery company employed several messengers to deliver packages by car to nearby towns. The company also allowed some employees to use company cars for personal use from time to time. A clerical employee had her car in a body shop because she had run a red light and been broadsided by another vehicle. This was the second time she had run a light and been hit. She borrowed a company car for the weekend and was using it to do some grocery shopping. The employee negligently went through a red light and crossed the path of a rented van. The man driving the van swerved to avoid the employee and struck a light post and several parked cars, severely damaging the van. At the time of the accident, the driver of the van was exceeding the posted speed limit; he would have been able to avoid hitting the light post and the cars had he been going the proper speed. The leasing company that had rented the van to the driver brought a lawsuit against the delivery company employee and the delivery company. The jurisdiction retains traditional contributory negligence rules. If the delivery company prevails in the lawsuit, what is the most likely reason? (A) The delivery company had no reason to know that its employee had a poor driving record. (B) The driver of the van had the last clear chance to avoid the accident.

Answer 35

(A) If the delivery company prevails, it will be because it entrusted its car to its employee without having reason to know that she had a poor driving record. In the absence of negligence on the delivery company’s part, it will not be liable for its employee’s negligent driving either as her employer or as the owner of the automobile she was driving. An employer will be vicariously liable for tortious acts committed by its employee only if the tortious acts occur within the scope of the employment relationship. Here, although the employee was using the company car, she was not conducting any business for the delivery company. **Her use of the car to go grocery shopping was a personal errand outside the scope of her employment for which the delivery company is not vicariously liable.** The delivery company is also not vicariously liable for permitting its employee to drive its car—**the general rule absent a statute to the contrary is that an automobile owner is not vicariously liable** for the tortious conduct of another driving the owner’s automobile. **However, the owner may be liable for its own negligence in entrusting the car to a particular driver.** If the delivery company knew or should have known that its employee had a poor driving record, its furnishing the employee with a car would constitute a breach of its duty to other drivers. However, if it is determined that the delivery company had no reason to know of the employee’s poor driving record, it will not be liable. (B) is incorrect because the fact that the driver of the van had the last opportunity to avoid the accident is irrelevant to the leasing company’s right to recover from the delivery company. **The doctrine of last clear chance does not apply because it is essentially _plaintiff’s rebuttal against the defense of contributory negligence;_ it would not be raised by the delivery company as a defense** (i.e., if the delivery company asserted that the driver of the van was contributorily negligent, the leasing company could rebut by asserting that the delivery company employee had the last clear chance to avoid the accident).

Question 36

A statute requires that any pilot who flies passengers for hire must have a commercial pilot’s license. An experienced pilot who had only a private pilot’s license and not the commercial license required by statute was asked by an attorney to fly her to another city to close a deal. The attorney knew that the pilot did not have a commercial license but the only commercial flight to the city was at an inconvenient time. The pilot flew the attorney through bad weather and landed safely, but because of a minor navigational error he landed at an airport a few miles away from the airport he was heading for. As he was going to start taxiing toward the hangar, another plane struck the aircraft. The student pilot of that plane had ignored the control tower’s instructions and gone onto the landing runway instead of the takeoff runway. The attorney was injured in the collision. If the attorney sues the pilot for her injuries, who will prevail? (A) The pilot, because the attorney knew he lacked a commercial license and voluntarily assumed the risk of flying with him. (B) The pilot, because the injuries to the attorney were caused by the negligence of the student pilot of the other plane. (C) The attorney, because the pilot violated a statute designed to prevent persons without commercial licenses from flying passengers for a fee, and such violation imposes liability per se. (D) The attorney, because the pilot landed at the wrong airport, and but for this mistake the attorney could not have been injured by the other aircraft.

Answer 36

(B) The pilot will prevail because the conduct of the other plane’s student pilot constituted a superseding intervening force that relieves the pilot from liability. To establish a prima facie case for negligence, the attorney must show that the pilot’s breach of his duty to her was the actual and proximate cause of her injury. **The attorney can establish actual cause because but for the pilot’s error, she would not have been injured.** However, not all injuries “actually” caused by a defendant will be deemed to have been proximately caused by his acts. **The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts.** This rule applies to cases such as this, where an intervening force comes into motion after the defendant’s negligent act and combines with it to cause plaintiff’s injury (indirect cause cases). Here, the pilot’s navigational error did create a greater risk of collision with other planes in the process of landing, but it did not increase the risk of a plane using the landing runway to take off in disregard of the control tower’s instructions once the pilot was safely on the ground. *_Hence, the student pilot’s unforeseeable conduct was not within the increased risk created by the pilot’s negligence and constitutes a superseding force that breaks the causal connection between the pilot’s conduct and the attorney’s injury_*, enabling the pilot to avoid liability to the attorney. (A) is incorrect because assumption of the risk requires **knowledge of the specific risk and the voluntary assumption of that risk.**Although the attorney knew that the pilot lacked a commercial license, _she also was under the impression that he was a very good pilot._ There is no indication that she knew of or voluntarily assumed any risk. Certainly, she did not assume the risk of the type of harm she suffered.

Question 37

The plaintiff was exiting from a parking garage owned and operated by the city when he discovered that the exit ramp was blocked by construction barricades and a pile of brokenup concrete. No workers or detour signs were around and the plaintiff was in a hurry, so he backed up and drove down an entrance ramp that was clearly marked as such. As he came around a corner, his car was broadsided by a pickup truck. The plaintiff was seriously injured in the collision. A statute in the jurisdiction requires drivers to obey all traffic directional markings in both public and private parking lots and garages. The jurisdiction retains governmental immunity for municipalities. If the plaintiff brings a lawsuit against the city to recover for his injuries, which of the following facts will be LEAST helpful in the city’s defense? (A) The plaintiff was aware that another exit on the other side of the garage was open. (B) The construction workers responsible for blocking off the exit ramp were employees of an independent contractor rather than the city. (C) The city does not collect fees or make a profit in the operation of the garage. (D) The pickup truck driver could have avoided the plaintiff but recognized him as an old enemy and deliberately ran into him.

Answer 37

(B) The fact least helpful to the city’s defense of the plaintiff’s lawsuit is the identity of the workers who blocked the exit ramp. Under vicarious liability rules, a principal will be liable for the tortious acts of an independent contractor if the duty is nondelegable on public policy grounds; **included is the duty of a possessor of land to keep its premises safe for its invitees.** If the workers were negligent in leaving the ramp blocked without providing another means of exiting, the fact that they were not city employees would not absolve the city of liability; hence, their identity would be of no help to the city’s defense. (A) is incorrect because if the plaintiff was aware of an alternate route, he may have been **contributorily negligent** in exiting down the entrance ramp. **A plaintiff’s contributory negligence may be established by violation of an applicable statute.** However, as with a statutory duty imposed on a defendant, the plaintiff’s violation of the statute may be excused if compliance was beyond the plaintiff’s control. If no other means of exiting the garage were known to the plaintiff, he may be excused for violating the traffic statute; however, if he knew of an alternative exit, the city will probably be able to establish contributory negligence on his part by his violation of the statute, reducing his potential recovery. (C) is incorrect because whether the city collects fees and makes a profit in operation of the garage will be considered by the court in determining whether the jurisdiction’s governmental immunity applies. _Where municipal immunity still exists, courts have limited its scope by differentiating between “governmental” and “proprietary” functions of the municipality._ **If the municipality is performing a function that might as well have been provided by a private corporation, the function may be construed as a proprietary one and no immunity will attach.** The inference that a function is proprietary will be strengthened where _the city collects revenues by virtue of providing the service._ Hence, the fact that the city is not collecting revenues or making a profit in operating the garage will make it less likely that the function will be deemed to be proprietary and more likely that it will be deemed to be governmental and thus immune; in other words, it will be more helpful rather than less helpful in the city’s defense. (D) is incorrect because the pickup truck driver’s conduct under these circumstances would be deemed **_a superseding force_** that breaks the causal connection between any negligence on the part of the city and the plaintiff’s injury. Assuming that the city workers were negligent, the fact that an independent intervening force caused the injury generally would not cut off the city’s liability, because its negligence created a foreseeable risk of that harm occurring. **However, where this foreseeable harm is caused by an unforeseeable crime or intentional tort of a third party, most courts would not hold the city liable, treating the crime or tort as a superseding force.** ``` Here, while blocking the exit ramp created a foreseeable risk that someone might collide with the plaintiff, it was not foreseeable that his enemy would take that opportunity to commit an intentional tort against him. Because the pickup truck driver’s conduct was unforeseeable under the circumstances in choice (D), the city would be relieved of liability for any negligence in blocking the ramp. ```

Question 38

On the way home from a nightclub, a passenger began yelling at the designated driver claiming that he was not taking the best route back to her house. The driver disagreed and contended that his route was the quickest. The passenger impulsively grabbed the steering wheel, causing the car to swerve and strike a pedestrian, injuring him. At trial, the pedestrian established that the driver’s license had expired the day before the accident. The driver’s traffic record qualified him for an automatic renewal of his driver’s license, but he had forgotten to submit it in time. A statute in the jurisdiction makes it an offense to drive a vehicle on any public road in the state without a valid driver’s license. Will the pedestrian prevail? (A) Yes, because the driver violated a statute by driving without a valid license. (B) Yes, because the driver failed to control his passenger. (C) No, because the driver did not start the argument. (D) No, because the passenger’s action was the proximate cause of the injury.

Answer 38

(D) The pedestrian will not prevail because the **passenger’s grabbing of the wheel is the negligent conduct that caused the pedestrian’s injuries.** To establish a prima facie case for negligence, the following elements must be proved: (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 an unreasonable risk of injury; (ii) breach of that duty by the defendant; (iii) the breach of the duty **by defendant** was the actual and proximate cause of plaintiff’s injury; and (iv) damage to plaintiff’s person or property. Here, **the driver’s actions were an actual cause of the pedestrian’s injury because, but for the driver’s driving and the passenger’s grabbing the steering wheel, the injury to the pedestrian would not have happened.** **However, the driver’s actions were not a proximate cause of the injury because the passenger’s grabbing of the steering wheel was a superseding intervening force.** A superseding force is one that serves to break the causal connection between the initial wrongful act and the ultimate injury, and itself becomes a direct immediate cause of such injury. Thus, the first actor would be relieved of liability from the consequences of his antecedent conduct. **The passenger’s conduct in suddenly grabbing the steering wheel was an unforeseeable intervening force creating an unforeseeable harmful result, and thus constituted a superseding force.** Consequently, the driver would be relieved of any negligence liability since the passenger’s actions were the proximate cause of the accident. (A) is incorrect. A clearly stated specific duty imposed by a statute may replace the more general common law duty of due care when (i) the plaintiff is within the class to be protected by the statute, and (ii) the statute was designed to prevent the type of harm suffered. The statute probably does not apply here because it is intended to keep unsafe drivers off the streets, and there is no indication that the driver is an unsafe driver, or that any driver could have prevented the injury when the passenger grabbed the steering wheel. Even if the statutory standard were applicable, a violation means only that plaintiff will have established a **_conclusive presumption of duty and breach of duty._** It does not, however, establish causation or damages. Here, the fact that the driver does not have a valid license is not the proximate cause of the pedestrian’s injury, as discussed above. (B) is incorrect because the driver had no way of knowing that the passenger would grab the steering wheel. The driver’s conduct will be measured against that of the ordinary, prudent, reasonable person who drives a vehicle. An ordinary, prudent, reasonable person would not have foreseen that one of his passengers would impulsively grab the steering wheel, and therefore there are no special safety precautions that the driver should have taken as part of his duty of care toward pedestrians. (C) is incorrect because, even if the driver had started the argument, this would not justify the passenger’s grabbing of the steering wheel. In either case, the passenger’s actions rather than the driver’s would be considered the proximate cause of the pedestrian’s injuries.

Question 39

A doorman negligently locked a door that an office worker was intending to use to exit an office building, so the worker was forced to use a different exit. As she stepped onto the sidewalk outside the building, a car careened out of control on the street and jumped the curb. The car struck and injured the worker and then drove off. The driver was not found. The worker brought suit against the doorman, seeking damages for her injuries. At trial, the parties stipulated that the doorman was negligent in locking the door and that the worker suffered injuries when she was struck by the car. The worker also established that if she had exited from the door she was intending to, she would not have been struck by the car. At the end of the worker’s case, the doorman moved for a directed verdict in his favor. How should the judge rule? (A) Grant the motion, because the driver of the car was the actual cause of the worker’s injuries. (B) Grant the motion, because the car was an unforeseeable intervening force. (C) Deny the motion, because the jury could find that but for the doorman’s negligence, the worker would not have been injured. (D) Deny the motion, because the jury could find that the doorman’s negligence was a foreseeable concurring cause of the worker’s injury.

Answer 39

(B) The court should grant the motion because the evidence establishes that the car was a superseding force that cut off the doorman’s liability for his negligence under proximate cause principles. **The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of, and within the increased risk caused by, his acts.** An indirect cause case is one where the facts indicate that a force came into motion after the time of defendant’s negligent act and combined with the negligent act to cause injury to the plaintiff. **Whether an intervening force will cut off the defendant’s liability for the plaintiff’s injury and be deemed superseding is determined by foreseeability.** Here, nothing in the facts suggests that a car jumping the curb was a foreseeable consequence of the doorman’s negligently locking the door. Hence, the judge should grant the motion because the worker has failed to establish the proximate cause element of his prima facie case. (A) is wrong because **the doorman was also an actual cause of the worker’s injuries—but for the doorman’s negligence, the worker would not have been on the sidewalk where the car jumped the curb.** (C) is wrong because it establishes only actual cause. A directed verdict is appropriate because no evidence establishes the proximate cause element of the worker’s case. (D) is wrong because the facts do not establish foreseeability. While the doorman’s negligence was a concurring actual cause of the worker’s injury, it was not a proximate cause because the injury that occurred was unforeseeable.

Question 40

A homeowner raked up numerous dead, dry leaves that had fallen on his yard and set fire to the pile, even though the wind was blowing at 15-20 miles per hour that day, and a county ordinance made it unlawful to burn leaves on any day when the wind speed exceeded 10 miles per hour. After the homeowner went into his house, the wind whipped the burning leaves into the air and deposited some of them, still burning, on the wood-shingled roof of a neighboring house, setting the house on fire. A driver was passing by and saw the burning roof of the neighbor’s house. He pulled over, got out of his car and ran across the street toward the neighbor’s yard so that he could warn the occupants of the house. The driver was struck by a paramedic’s vehicle just arriving in response to a telephone report of the fire. The driver brought an action against the homeowner to recover for the injuries he suffered from being struck by the emergency vehicle. How should the court rule in this action? (A) For the driver, because the homeowner’s negligence was a proximate cause of the driver’s injuries. (C) For the homeowner, because the emergency vehicle was the actual cause of the driver’s injuries.

Answer 40

(A) The court should rule for the driver. The homeowner’s negligence in burning leaves during a period of relatively high winds resulted in a fire, and **_it is foreseeable that third persons will attempt to rescue the victims of the tortfeasor’s negligent acts._** To the extent that the emergency vehicle was an intervening force, it was a normal response (responding to the fire) and was not unforeseeable. Thus, the homeowner’s negligence was a proximate cause of the driver’s injuries. (C) is incorrect. **_The homeowner’s negligence_** was a cause in fact of the driver’s injuries, because it was the homeowner’s negligence which both prompted the driver to attempt a rescue of the occupants of the burning residence, and brought the emergency vehicle onto the scene. It is possible for the separate actions of two independently operating actors to combine to injure the plaintiff, and whether either of them is liable for those injuries depends on the elements of the negligence analysis, including proximate cause. Here, the homeowner breached the duty of due care, and that breach was an actual and a proximate cause of the injury to the driver.

Question 41

A skier broke his leg when he was knocked down by the chair lift as he tried to avoid other skiers who had fallen off while disembarking. The ski resort employee operating the lift had not been paying attention and had failed to stop the lift. Ski patrol personnel placed the skier on a stretcher, which they then hooked up to a snowmobile to bring him down the mountain. The route down ran along the edge of a ski trail. Midway down, a novice snowboarder tried to see how close he could come to the stretcher without hitting it, but he lost control and landed on top of the skier’s leg, damaging it further. The skier filed a lawsuit against the snowboarder and the resort in a jurisdiction that has adopted a comparative contribution system in joint and several liability cases. At trial, the skier’s physician testified that the skier’s leg was permanently disabled, but that neither injury, by itself, would have caused the permanent disability and it was impossible to quantify how much each injury contributed to the disability. The jury determined that the damages from the permanent disability equaled $2 million, **_and that the snowboarder and the resort were each 50% at fault._** What amount of damages can the skier recover from the snowboarder for his permanent disability? (A) $1 million, because the jurisdiction follows comparative contribution rules. (B) $2 million, because it was not possible to identify the portion of the injury that the snowboarder caused.

Answer 41

(B) The skier can recover $2 million from the snowboarder because the snowboarder _is jointly and severally liable for the injury._ **The doctrine of joint and several liability provides that when two or more tortious acts combine to proximately cause an indivisible injury to plaintiff, each tortfeasor will be jointly and severally liable for that injury.** _This means that plaintiff can recover the entire amount of his damages from any one defendant._ *The doctrine applies even though each tortfeasor acted entirely independently and at different times.* Here, both the snowboarder and the employee of the ski resort breached their duty to the skier to act with reasonable care. _Each tortfeasor’s act was the actual cause of the skier’s disability because but for either one of the acts, his leg would not have been permanently disabled._ **The snowboarder’s act was the proximate cause of the skier’s disability because the disability was the direct result of the snowboarder’s act.** _The fact that the extent of the harm was unforeseeable is irrelevant; i.e., the tortfeasor takes the victim as he finds him._ Thus, the skier can recover the entire $2 million from the snowboarder. (A) is incorrect because **the contribution rules govern only whether a defendant required to pay more than his share of damages has a claim against the other jointly liable parties for the excess.** *_Contribution does not involve the amount of damages that the plaintiff can collect in the first place._*

Question 42

A fire broke out in a home that had been recently remodeled, destroying the house and injuring the homeowner. An investigation by the fire marshal established that the fire started from a short in some wiring behind a wall. A small section of wiring that ran to an outlet through a narrow gap between a furnace chimney and a hot water pipe had had part of its outer sheath cut off. The homeowner filed suit against the electrical company that did the rough wiring. The parties stipulated for trial that the company had installed the wiring in compliance with the blueprints, and that the wiring had been inspected and approved by the building inspector before the chimney and the water pipe had been installed and the walls put up, all by different contractors. At trial, the homeowner introduced the report of the fire marshal establishing how the fire started, and evidence of his medical expenses and other damages. At the end of the homeowner’s case, the electrical company’s attorney rested her case and moved for a directed verdict. The homeowner’s attorney also moved for a directed verdict. _**How should the court rule on the directed verdict motions?**_ (A) Deny the electrical company’s motion and grant the homeowner’s motion for a directed verdict, because a short in the wiring caused the homeowner’s injuries. (B) Deny the electrical company’s motion and grant the homeowner’s motion for a directed verdict, because the company failed to rebut the presumption of negligence that the homeowner has established. (C) Deny the homeowner’s motion and grant the electrical company’s motion for a directed verdict, because the wire could have been damaged by another contractor. (D) Deny both directed verdict motions, because the homeowner has presented enough evidence to submit the case to the jury.

Answer 42

(C) The court should grant the electrical company’s **_motion for a directed verdict because the homeowner has not established a prima facie case of negligence_** on the company’s part. The homeowner has established that the electrical company owed a duty to him and that he has suffered harm from the fire caused by the short in the wiring. _However, he has not established that the company breached any duty to him._ ***While breach of duty is ordinarily a question for the trier of fact, a plaintiff’s failure to offer any evidence on that element of the prima facie case will permit a directed verdict for the defendant.*** _Under certain circumstances, the fact that a particular injury occurred may itself establish or tend to establish a breach of duty owed, permitting the trier of fact to infer the defendant’s liability. This is the doctrine of res ipsa loquitur (“the thing speaks for itself”)_. However, for the doctrine to apply, the plaintiff must show that (i) the accident causing his injury is the type that would not normally occur unless someone was negligent; (ii) the negligence was attributable to the defendant; and (iii) the injury was not attributable to the plaintiff. **The second requirement can often be satisfied by showing that the instrumentality causing the injury was in the exclusive control of the defendant**. Here, however, the wiring was exposed to work done by other contractors in installing a chimney and a hot water pipe nearby and putting up the walls, and the homeowner has offered no evidence that the cut in the outer sheath of the wiring was present when the electrical company finished its work. Instead, the fact that the wiring had been approved by the building inspector suggests that the wiring was intact when the electrical company finished. Given these facts, the homeowner has not presented evidence that the negligence was attributable to the defendant. Since res ipsa loquitur does not apply and no other evidence of breach of duty was established, the electrical company’s motion for a directed verdict should be granted.

Question 43

A worker at a petrochemical plant was severely burned when a pipe carrying hot oil exploded. The worker brought a negligence action against the company that manufactured and installed the pipe. At trial, the worker established what happened and the injuries he suffered. He also presented evidence that the pipe burst because it had corroded at a higher than normal rate, which according to testimony of the worker’s experts indicated a defect in the manufacture of the pipe. At the close of the worker’s case, the manufacturer moved for a directed verdict. How should the court rule? (A) Deny the motion, because the pipe was defective and injured the worker. (B) Deny the motion, because the jury could find that the premature corrosion of the pipe would not have occurred absent negligence by the manufacturer.

Answer 43

(B) The court should deny the motion because the jury may draw an inference of negligence from the plaintiff’s evidence. The plaintiff’s action against the manufacturer is a products liability action based on a negligence theory. In such a case, the prima facie case consists of: (i) a legal duty owed by the defendant to this plaintiff; (ii) breach of the duty; (iii) actual and proximate cause; and (iv) damages. **Breach of duty requires showing (i) negligent conduct by the defendant leading to (ii) the supplying of a defective product by the defendant.** The plaintiff may invoke res ipsa loquitur against the manufacturer if the error is something that usually does not occur without the negligence of the manufacturer. Here, the plaintiff has presented evidence that the manufacturer supplied a pipe that was so defective as to be unreasonably dangerous (because of its premature corrosion). The plaintiff can use res ipsa loquitur to show negligence because the manufacturer fabricated and installed the pipe and the premature corrosion would not likely have occurred without negligence on its part. Because the plaintiff has presented evidence of the other elements of the prima facie case, it should withstand the defendant’s motion for directed verdict. (A) is incorrect because **_it implies liability without fault._** As a plaintiff in a negligence action, the plaintiff must show that the manufacturer breached a duty owed to him, and that such breach caused his injuries. The mere fact that a pipe manufactured by the manufacturer exploded does not satisfy this burden. **_It is possible that the pipe could have exploded without any fault on the part of the manufacturer._**

Question 44

An ordinance of a city makes it unlawful to park a motor vehicle on a city street within 10 feet of a fire hydrant. At 1:55 p.m., a man, realizing he must be in the bank before it closed at 2 p.m. and finding no other space available, parked his automobile in front of a fire hydrant on a city street. The man then hurried into the bank, leaving his elderly neighbor as a passenger in the rear seat of the car. About five minutes later, and while the man was still in the bank, a woman was driving down the street. The woman swerved to avoid what she mistakenly thought was a hole in the street and sideswiped the man’s car. The man’s car was turned over on top of the hydrant, breaking the hydrant and causing a small flood of water. The man’s car was severely damaged and the elderly neighbor was badly injured. If the elderly neighbor asserts a claim against the man, will the elderly neighbor recover? (A) Yes, because the man’s action was negligence per se. (C) No, because a reasonably prudent person could not foresee injury to the elderly neighbor as a result of the man’s action.

Answer 44

(C) The elderly neighbor will not recover because the man _did not breach a duty owed to him_ when he parked the car. This question can be analyzed in terms of either the extent of the duty of care or proximate cause. Where a defendant’s conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff. **However, no duty is imposed on a person to take precautions against events that cannot reasonably be foreseen**. And in terms of proximate cause, **intervening forces that produce unforeseeable results (results not within the increased risk created by the defendant’s negligence) will be deemed to be unforeseeable and superseding, and thus break the causal connection between the defendant’s negligent act and the ultimate injury.** _**Here, the man’s allegedly negligent parking did not increase the risk that the woman would sideswipe his car; the woman’s conduct was an unforeseeable intervening force that cuts off the man’s liability for his conduct.**_ (A) is incorrect for two reasons. For breach of a statute to establish negligence per se, the plaintiff must show that the statute was designed to prevent the type of harm that occurred, which does not seem to be the case with the fire hydrant ordinance here. Furthermore, proving breach of an applicable statute establishes only duty and breach of duty. Actual and proximate cause must still be established for recovery, and proximate cause is lacking here.

Question 45

A husband was on his way to meet his wife for lunch at the restaurant in the lobby of a bank building where she worked. He had just entered the building, which was owned and operated by the bank, when he heard screams and the sound of breaking glass from the restaurant area. He immediately saw that a large piece of artwork made of stained glass had fallen onto the seating area of the restaurant. In the seating area he saw several injured persons, including his wife, lying in the wreckage of the artwork. He fainted and hit his head on the marble floor, fracturing his skull. The artwork had collapsed because the pedestal that the bank had provided for the artwork was not properly constructed. If the husband sues the bank for his injury, is he likely to prevail? (B) No, because he did not actually see the artwork collapse onto the diners. (C) Yes, because his wife was one of the persons he saw lying in the wreckage.

Answer 45

(C) The husband will recover for his injuries because his wife was among those injured by the collapse of the artwork. The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. **In most jurisdictions, a bystander who sees the defendant negligently injuring another can recover for his own distress if** **(i) the plaintiff and the person injured by the defendant’s negligence are closely related,** **(ii) the plaintiff was present at the scene of the injury, and** **(iii) the plaintiff personally observed or perceived the event.** Observation is typically by sight, but may also be by hearing or other senses under certain circumstances. *_Here, the husband heard the screams and the sound of breaking glass when the artwork collapsed as he entered the lobby.*_ _*Even though he evidently did not see the artwork collapse on the diners, he heard it crash where his wife was sitting and saw the immediate aftermath._* Because his wife was one of the persons injured by the collapse of the artwork, he can recover damages for the injuries caused by his distress. (

Question 46

Common Foreseeable Intervening Forces

Answer 46

The following intervening forces that are normal responses or reactions to the situation created by defendant’s negligent act are almost always foreseeable: ## Footnote **(i) subsequent medical malpractice,** **(ii) negligence of rescuers,** **(iii) efforts to protect the person or property of oneself or another,** **(iv) injuries caused by another “reacting” to defendant’s actions,** **(v) subsequent diseases caused by a weakened condition, and** **(vi) subsequent accident substantially caused by the original injury.**

Question 47

Independent Intervening Forces

Answer 47

Independent intervening forces that are not just a natural response or reaction to the situation created by defendant’s conduct may be foreseeable if defendant’s negligence increased the risk of harm from these forces. Independent intervening forces include **(i) negligent acts of third persons,** **(ii) crimes and intentional torts of third persons, and** **(iii) acts of God.**

Question 48

The extent of the liability of owners and/or occupiers of land (and those in privity with the owner/occupier) depends on where the injury occurred and on the status of the plaintiff

Answer 48

**1) Duty of Possessor to Those Off Premises** There is no duty to protect one off the premises from natural conditions on the premises; however, there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land. Also, one must carry on activities on the premises so as to avoid unreasonable risk of harm to others off the premises. _Exam Tip:_ In urban areas, the owner/occupier is liable for damage caused off the premises by trees on the premises (e.g., falling branches). This has been an exam favorite in recent years. **2) Duty of Possessor to Those On Premises** Under the traditional rule followed in many states, the duty owed a plaintiff on the premises for dangerous conditions on the land depends on the plaintiff’s status as trespasser, licensee, or invitee. Note, though, that close to half of the states reject the distinction between licensees and invitees (and, in a few states, trespassers as well), and simply apply a reasonable person standard to dangerous conditions on the land. **a) Duty Owed to Trespassers** No duty is owed to an undiscovered trespasser. As to discovered or anticipated trespassers, the landowner must: (i) warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm, and (ii) use reasonable care in the exercise of “active operations” on the property. (No duty is owed for natural conditions or less dangerous artificial conditions.) Easement and license holders owe a duty of reasonable care to trespassers. **b) Attractive Nuisance Doctrine** Most courts impose on a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous conditions on his property. This is typically an artificial condition but occasionally a natural condition may suffice. To establish the doctrine’s applicability, plaintiff must show: (i) a dangerous condition on the land that the owner is or should be aware of, (ii) the owner knows or should know children frequent the vicinity of the condition, (iii) the condition is likely to cause injury (i.e., it 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. **c) Duty Owed to Licensees** A licensee is one who enters onto the land with the possessor’s permission for her own purpose or business, rather than for the possessor’s benefit. The possessor has a duty to (i) warn of or make safe dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover, and (ii) exercise reasonable care in the conduct of “active operations” on the property. The possessor has no duty to inspect or repair. (Remember: Social guests are considered licensees.) **d) Duty Owed to Invitees** Invitees enter onto the land in response to an invitation by the landowner (i.e., they enter for a purpose connected with the business of the landowner or enter as members of the public for a purpose for which the land is held open to the public). The landowner or occupier owes the same duties owed to licensees **plus a duty to make reasonable inspections to discover nonobvious dangerous conditions and, thereafter, make them safe (a warning may suffice).** One will lose invitee status if she exceeds the scope of the invitation. **e) Duty Owed to Users of Recreational Land** A landowner who permits the general public to use his land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, _unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity._ **3) Duties of Lessor and Lessee of Realty** The lessee has a general duty to maintain the premises. The lessor must warn of existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection. If the lessor covenants to repair, he is liable for unreasonably dangerous conditions. If the lessor volunteers to repair and does so negligently, he is liable. **4) Duties of Vendor of Realty** A vendor must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and which he knows the vendee is not likely to discover on a reasonable inspection.

Question 49

A 13-year-old boy who lived on a farm with his parents in a rural area had learned to drive the family’s tractor when he was 11. A state statute permitted persons without a driver’s license to operate farm vehicles on public roads for short distances. One morning the boy took the tractor onto a public road to reach one of the outlying fields a few hundred yards away. As he neared the field he was distracted by a girl riding by on a bicycle, and cut in front of a milk delivery truck that was starting to pass him. The truck swerved off the road, injuring the driver. If the driver sues the boy to recover damages for his injuries, which of the following statements is most correct regarding the standard of care to be applied? (A) The state statute replaces the general common law standard of care with a statutory standard. (B) The trier of fact should take into account the boy’s experience at driving a tractor when considering the applicable standard of care.

Answer 49

(B) The most correct statement is that the trier of fact should take into account the boy’s experience when considering the applicable standard of care. **Regardless of the specific standard of care that is applied, someone with knowledge superior to that of the average person is required to use that knowledge.** Hence, the trier of fact should take into account the fact that the boy had driven a tractor since he was 11 years old. (A) is incorrect. _The precise standard of care in a common law negligence case may be established by proving the applicability to that case of a statute providing for criminal penalties, so that the statute’s specific duty will replace the more general common law duty of due care, and a violation of the statute will establish duty and breach of duty._ Here, nothing in the facts indicates that the boy violated any provisions in the statute, but he still may be liable to the truck driver for breach of a general duty of care.

Question 50

A boy mowing his lawn noticed a strong vibration from the engine but continued to mow. The engine housing suddenly broke apart and pieces flew off the lawnmower. One piece struck the boy in the head, seriously injuring him. The boy’s mother was inside the house and heard yelling from the backyard. She went to the window and saw her son lying on the ground by the lawnmower and a friend of his kneeling over him. She became very upset and fainted. Subsequent investigation showed that a negligent repair by a local mechanic caused the engine housing to shatter. The mother brought a lawsuit against the mechanic, seeking recovery for her son’s injury and the emotional distress she suffered. Can the mother recover damages for her emotional distress? (A) No, because her son’s continuing to mow after noticing the vibration was a superseding cause of the harm. (B) No, because the mother was not within the zone of danger from the mechanic’s negligence. (C) Yes, because the mother was closely related to someone in the zone of danger from the mechanic’s negligence.

Answer 50

(B) The mother cannot recover damages for her emotional distress. A duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The mother might try to assert two theories in support of her emotional distress claim, but she is unlikely to prevail on either one. First, she could claim distress flowing from fear for her own safety, but she may prevail only if the defendant’s negligence placed her in a zone of danger. Here, because she was safely inside her home and quite distant from the mower when it exploded, she was not in a zone of danger. Alternatively, she could claim distress flowing from her anguish at seeing her son injured. However, for a bystander who is outside the zone of danger from the risk of physical injury but who suffers emotional distress from seeing the defendant negligently injure another, most states allow recovery only if: (i) the plaintiff and the person injured by the defendant are closely related; (ii) the plaintiff was present at the scene of the injury; and (iii) the plaintiff personally observed or perceived the event. Here, while she is related to her son, who was injured by the mechanic’s negligence, she was not present at the scene of the injury and did not personally observe or perceive the event. Hence, she cannot recover damages for negligent infliction of emotional distress. (A) is incorrect. Under proximate cause rules, a third party’s negligence that contributes to the plaintiff’s harm will not be considered a superseding force where it is within the foreseeable risk created by the defendant’s negligence. While the son may have been negligent in continuing to use the mower, this conduct would not cut off the defendant’s liability to the mother if she otherwise could recover for her distress. (C) is incorrect because the plaintiff’s close relationship with the injured person is only one of the requirements for a plaintiff **_outside the zone of danger_** to recover emotional distress damages. Because the mother was not present at the scene and did not observe the event, she cannot recover.

Question 51

Duty Regarding Negligent Infliction of Emotional Distress

Answer 51

The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The plaintiff usually must satisfy two requirements to prevail: * *(i) the plaintiff must be within the “zone of danger”; and (ii) the plaintiff must suffer physical symptoms from the distress.** **a. Plaintiff Must Be Within the “Zone of Danger”** The plaintiff usually must show that her distress has been caused by a threat of physical impact. **b. Plaintiff Must Suffer Physical Symptoms from the Distress** Most courts usually require that the defendant’s conduct cause the plaintiff emotional distress that manifests itself in physical symptoms (note that severe shock to the nervous system that causes physical symptoms will satisfy this requirement). A growing minority of states have dropped the requirement of physical symptoms. **c. Special Situations Where Requirements Not Always Necessary** _1) Bystander Not in Zone of Danger Seeing Injury to Another_ A bystander outside the “zone of danger” of physical injury who sees the defendant negligently injuring another can recover damages for her own distress as long as **(i) the plaintiff and the person injured by the defendant are closely related,** **(ii) the plaintiff was present at the scene of the injury, and** **(iii) the plaintiff personally observed or perceived the event.** Many of these states also drop the requirement of physical symptoms in this situation. _2) Special Relationship Between Plaintiff and Defendant_ The defendant may be liable for directly causing the plaintiff severe emotional distress when a duty arises from the relationship between the plaintiff and the defendant, such that the defendant’s negligence has great potential to cause emotional distress (e.g., doctor’s misdiagnosis that patient has terminal illness). Many states drop the requirement of physical symptoms in this situation as well. _3) Other Situations_ The plaintiff may be able to recover without proving the zone of danger and physical symptoms requirements in other situations where the defendant’s negligence creates a great likelihood of emotional distress (e.g., erroneous report of a relative’s death or mishandling of a relative’s corpse).

Question 52

Intentional Infliction of Emotional Distress

Answer 52

Elements of the prima facie case: (i) An act by defendant amounting to extreme and outrageous conduct; (ii) Intent or recklessness; (iii) Causation; and (iv) Damages—severe emotional distress. **a. Extreme and Outrageous Conduct** This is conduct that transcends all bounds of decency. Conduct that is not normally outrageous may become so if: _1) It is continuous in nature; 2) It is directed toward a certain type of plaintiff_(children, elderly persons, pregnant women, supersensitive adults if the sensitivities are known to defendant); or _3) It is committed by a certain type of defendant (common carriers or innkeepers may be liable even for mere “gross insults”)._ **b. Requisite Intent** Unlike for other intentional torts, recklessness as to the effect of defendant’s conduct will satisfy the intent requirement. **c. Damages** Actual damages (severe emotional distress), not nominal damages, are required. _Proof of physical injury is not required._ The more outrageous the conduct, the less proof of damages is required. **d. Causation in Bystander Cases** When the defendant intentionally causes physical harm to a third person and the plaintiff suffers severe emotional distress because of it, the plaintiff may recover by showing either the prima facie case elements of emotional distress or that (i) she was present when the injury occurred, (ii) she is a close relative of the injured person, and (iii) the defendant knew facts (i) and (ii). Exam Tip Intentional infliction of emotional distress is a fallback tort position. Thus, if another alternative in your exam question is a tort that will also allow plaintiff to recover, it should be chosen over this alternative.

Question 53

A shopper at a grocery store slipped and fell when he stepped in some water that had seeped out from a malfunctioning freezer case. The fall caused the shopper to break an ankle, so he filed suit against the store in a jurisdiction applying the traditional rules for landowners and possessors of land. At trial, the shopper presented evidence of the above facts, and testified that the floor around the water appeared dirty. To survive a motion for summary judgment by the store, what additional evidence must the shopper present? (A) No additional evidence. (C) The store employees knew that the freezer case was leaking.

Answer 53

(A) The shopper’s lawsuit will survive a motion for summary judgment by the store without any additional evidence. Under the facts here, the shopper was an invitee as to the store because he came onto the premises for a purpose connected with the store’s business. _The store therefore owed him the duty to warn of nonobvious dangerous conditions **and** to make reasonable inspections to discover dangerous conditions and make them safe._The shopper’s testimony that the floor around the water appeared dirty suggests that the floor had not been swept or mopped for some time. This is enough evidence to allow the jury to decide whether the store employees failed to reasonably inspect or make safe an area in which its invitees would walk, which would breach its duty to the shopper. (C) is incorrect because the store could be liable even if its employees _did not know_ that water was leaking onto the floor. Because the shopper was an invitee, the store owed a duty to make _reasonable inspections_ to discover unsafe conditions.

Question 54

A tenant remained in possession of the house she was renting after her lease term had expired, prompting the landlord to begin eviction proceedings. While the tenant was still in the house, a heavy snowfall covered the driveway, requiring her to shovel the driveway so she could get her car out of the garage. Shortly after she finished shoveling, the tenant’s neighbor used a snowblower to blow all of the snow from his driveway onto the tenant’s driveway. Consequently, the tenant had to shovel it again before she could get her car out. Which party may bring a trespass action against the neighbor? (A) Just the landlord, because the tenant no longer had a right to possession of the property. (B) Just the tenant, because the neighbor blew the snow onto her driveway.

Answer 54

(B) Only the tenant may bring a trespass action against the neighbor. Trespass to land is **an interference with the right of possession of the land.** It requires (i) an act of physical invasion of the plaintiff’s real property by the defendant, (ii) intent on the defendant’s part to bring about the physical invasion, and (iii) causation. Here, the tenant can allege that the neighbor knowingly blew all of the snow from his driveway onto the tenant’s driveway, causing an invasion of the tenant’s possession of her property. (A) and is incorrect because **_an action for trespass may be maintained by anyone in actual or constructive possession of the land, even if that possession is without title or legal right._** One who is not in possession, however, generally has no right to sue for trespass, and the landlord would not have a right to sue here because the tenant is in actual possession of the land. While some modern cases allow a landlord to bring a damages action against a trespasser for injury to the landlord’s interest (i.e., for any permanent damage to the property), there was no such injury in this case. Hence, the landlord is not entitled to sue for trespass because he has suffered no interference with his right to possession.

Question 55

A married couple was leaving a nightclub at closing. The wife forgot her jacket and went back in to the club to retrieve it while her husband looked for a cab outside. Her husband saw a cab sitting across the street and ran for it, cutting off one of the club’s bouncers who was also looking for a ride home. The bouncer became angry at the husband for “stealing his cab.” The cab departed while they were arguing. Seeing no one else around, the bouncer began to punch and kick the husband, causing him severe injury. The wife watched the entire episode from across the street and became greatly distressed. The husband sued the bouncer for his injuries. If the wife also sues the bouncer, alleging intentional infliction of emotional distress, will she recover? (A) No, because the bouncer did not intend to inflict emotional distress on the wife. (B) No, because the bouncer did not know that the wife was watching from across the street.

Answer 55

(B) Because the bouncer was unaware that the wife was watching, the bouncer could not have the requisite intent to inflict emotional distress. **For intentional infliction of emotional distress based on conduct directed at a third person, recovery is ordinarily limited to plaintiffs who _are not only present at the time, but are known by the defendant to be present_, so that the mental distress is likely to have been anticipated by the defendant.** (A) is not as good an answer, because _**the bouncer need not intend to inflict emotional distress. Liability for this tort may be based on recklessness.**_

Question 56

A 16-year-old teenager was playing baseball in a sandlot when the ball was hit over his head and onto a landowner’s adjacent property. Ignoring “beware of dog” signs, the teenager climbed over the fence into the landowner’s yard to retrieve the ball and was attacked by a vicious guard dog belonging to the landowner. The dog bit the teenager, causing him to suffer severe lacerations that required numerous stitches. If the teenager brings an action against the landowner to recover damages for his injuries, will he likely prevail? (A) Yes, because the landowner may not use a vicious dog to protect only his property. (B) Yes, because the landowner is strictly liable for injuries caused by the vicious dog. (C) No, because the teenager was trespassing on the landowner’s property.

Answer 56

**_(A) The teenager will prevail because the landowner may not intentionally use a vicious dog to protect only his property._** **One may use only reasonable force to defend property. A landowner may not use force that will cause death or serious bodily harm. Furthermore, one may not use indirect deadly force such as a trap, spring gun, _or vicious dog when such force could not lawfully be directly used, e.g., against a mere trespasser._** (B) is incorrect because strict liability in such cases generally is not imposed in favor of undiscovered trespassers against landowners. **_Trespassers cannot recover for injuries inflicted by the landowner’s abnormally dangerous domestic animals in the absence of negligence._** (C) is incorrect because **_a landowner who protects his property from intruders by keeping a vicious watchdog he knows is likely to cause serious bodily harm may be liable even to trespassers for injuries caused by the animal._** The liability is based on intentional tort principles: Because the landowner is not entitled to use deadly force in person to protect only property, he also may not use such force indirectly.

Question 57

A fashion student at a prestigious fashion design school bought a new sewing machine for $1,000 so that she would be more than adequately equipped for her design assignments. One day, her roommate loaned the sewing machine to their neighbor, as she had done on several prior occasions. Unfortunately, the neighbor caused extensive damage to the machine. The cost to repair the sewing machine was $400. If the fashion student sues her roommate for the damage the neighbor caused to the sewing machine, what will be the result? (A) The fashion student will recover $1,000. (B) The fashion student will recover the fair market value of the sewing machine. (C) The fashion student will recover $400. (D) The fashion student will recover nothing, because her roommate did not damage the machine and the neighbor’s conduct was not intentional.

Answer 57

(B) The fashion student will recover the fair market value of the machine because her roommate is liable for conversion. Conversion is the intentional interference with the plaintiff’s right of possession in the chattel that is serious enough to warrant that the defendant pay the full value of the chattel. Conversion will be found if the defendant was using the chattel without permission and it was accidentally damaged, as in this case. _**The remedy for conversion is the fair market value of the chattel at the time and place of conversion.**_

Question 58

A young teenager pointed a squirt gun at an older teenager as if she was going to squirt him, although the younger teenager knew that the gun was empty. The older teenager did not know that the gun was empty and yelled, “A little water isn’t going to hurt me.” The younger teenager pulled the trigger and yelled back, “You’re lucky, it wasn’t even loaded.” Is the younger teenager liable to the older teenager? (B) Yes, because the younger teenager committed an assault. (D) No, because the older teen was not worried about getting wet.

Answer 58

(B) The younger teenager is liable for assault. An assault is an affirmative act by the defendant done with the intent to place the plaintiff in apprehension of an imminent harmful or offensive contact to his person and that actually causes the plaintiff apprehension. Children are deemed to be capable of forming the intent for assault and other intentional torts. **The plaintiff need not be placed in fear of the contact; an apprehension of contact that is offensive (that is, not consented to) is sufficient.** Furthermore, the apparent ability to inflict the contact is all that is needed; the fact that it could not be carried out is irrelevant. Here, the older teenager was placed in **apprehension of imminent offensive contact, namely the squirts of water.** The younger teenager’s actions show that she intended to cause the older teenager to believe that he was going to get squirted, thus satisfying the intent requirement. (D) is incorrect. *_**While the older teenager claimed (probably truthfully) that he was not afraid of getting wet, apprehension of offensive contact is all that the tort requires.**_*This element is satisfied here.

Question 59

A driver in the local racing circuit brought his customized yellow stock car to a body shop to have it repainted before the new racing season began. When the driver returned to pick up the car, he was horrified to discover that it was repainted pink instead of yellow. The owner of the body shop apologized and offered to repaint the car, but the driver refused because the first race was in two days. The driver lost a couple of endorsements because the endorsers’ ads did not work with the new color. He was also subjected to ridicule at the track, but he felt better after he drove the car to victory in the first race. If the driver sues the body shop for their treatment of his car, will he prevail? (B) No, unless he can prove that the body shop breached a duty of care owed to him. (C) Yes, because the value of his car was reduced.

Answer 59

(C) The driver can recover for trespass to chattels because he can show that the value of his car has been reduced as a result of the conduct of the body shop. **Trespass to chattels requires** (i) an act of defendant that interferes with plaintiff’s right of possession in the chattel, (ii) intent to perform the act bringing about the interference with plaintiff’s right of possession, (iii) causation, and (iv) damages. **The act of interference may be either dispossession of or damage to the chattel.** Here, the body shop employees interfered with the driver’s possession of his car by painting it contrary to his instructions, _and they intended to do the act (painting) that caused the interference. The driver suffered damage because that conduct reduced the value of his car for advertising purposes. Hence, the driver will be able to satisfy the prima facie case for trespass to chattels._

Question 60

For false imprisonment, the plaintiff must show

Answer 60

(i) an act or omission on the part of the defendant that confines or restrains the plaintiff to a bounded area, (ii) intent on the part of the defendant to confine or restrain the plaintiff, and (iii) causation.

Question 61

A dog owner lived next door to a day care center. Because he had a large yard and there were no applicable zoning restrictions, he installed a kennel and began training attack dogs to sell to businesses. As soon as he opened the business and posted signs in front advertising the exceptional ferocity of the dogs, some parents who had children enrolled in the day care center became alarmed at the prospect of the dogs right next to the yard where the children played, especially because the children could see and hear the dogs being taught to attack people. Within a few months of the dogs’ arrival next door, the owner of the day care lost 10% of her enrollment. If the day care owner brings a nuisance action against the dog owner, what will be the most critical factual issue that the trier of fact must resolve to determine who should prevail? (A) Whether the day care owner suffered other damages in addition to her economic losses. (B) Whether the day care owner’s use of her property makes her business abnormally sensitive to the presence of the dogs. (C) Whether the dog owner conducted his business with reasonable care. (D) Whether the dog owner was apprised of the day care owner’s conc

Answer 61

(B) The determining factor for the day care owner in prevailing will be whether her use of the property is abnormally sensitive to the presence of the dogs. Nuisance is an invasion of private property rights by conduct that is either intentional, negligent, or subject to strict liability. Strict liability will be the basis for a nuisance action (sometimes called an “absolute” nuisance or a “nuisance per se”) when wild animals or abnormally dangerous domestic animals are involved, or when defendant is engaged in an abnormally dangerous activity. Thus, dogs known by their owner to be vicious may create a private nuisance when they interfere with the use and enjoyment of the land next door, and the owner may be subject to strict liability because of his knowledge of the dogs’ dangerous propensities. [See Restatement (Second) of Torts §822, comment j] For the presence of the dogs to be an actionable nuisance, however, they must result in a substantial interference with the day care owner’s use of her land. The interference will not be characterized as substantial if it is merely the result of plaintiff’s specialized use of her own property. [See Foster v. Preston Mill Co., 268 P.2d 645 (1954)—D not strictly liable for blasting operations that caused female mink on P’s ranch to kill their young in reaction to the vibrations] Hence, (B) states the most critical factual issue. (A) is incorrect because the day care owner does not need to establish other types of damages to recover once she has established that the dog owner’s activity is an actionable interference with the use and enjoyment of her land. (C) is incorrect because the exercise of reasonable care by the dog owner is irrelevant; the day care owner’s nuisance action arises from an activity for which the dog owner is strictly liable. (D) is incorrect because the dog owner’s knowledge of his interference with the day care owner’s use of her property would only establish that his conduct might also be an intentional nuisance, which would require the day care owner to show unreasonableness, i.e., that her injury outweighs the utility of his conduct. She does not need to make that showing for a nuisance action based on strict liability.

Question 62

A dog owner lived next door to a day care center. Because he had a large yard and there were no applicable zoning restrictions, he installed a kennel and began training attack dogs to sell to businesses. As soon as he opened the business and posted signs in front advertising the exceptional ferocity of the dogs, some parents who had children enrolled in the day care center became alarmed at the prospect of the dogs right next to the yard where the children played, especially because the children could see and hear the dogs being taught to attack people. Within a few months of the dogs’ arrival next door, the owner of the day care lost 10% of her enrollment. If the day care owner brings a nuisance action against the dog owner, what will be the most critical factual issue that the trier of fact must resolve to determine who should prevail? (A) Whether the day care owner suffered other damages in addition to her economic losses. (B) Whether the day care owner’s use of her property makes her business abnormally sensitive to the presence of the dogs. (C) Whether the dog owner conducted his business with reasonable care. (D) Whether the dog owner was apprised of the day care owner’s concerns and did nothing to alleviate them.

Answer 62

(B) The determining factor for the day care owner in prevailing will be whether her use of the property is abnormally sensitive to the presence of the dogs. Nuisance is an invasion of private property rights by conduct that is either ***_intentional, negligent, or subject to strict liability._*** * *_Strict liability will be the basis for a nuisance action (sometimes called an “absolute” nuisance or a “nuisance per se”)_ when wild animals or abnormally dangerous domestic animals are involved,** * *or when defendant is engaged in an abnormally dangerous activity.** Thus, dogs known by their owner to be vicious may create a private nuisance when they interfere with the use and enjoyment of the land next door, and the owner may be subject to strict liability because of his knowledge of the dogs’ dangerous propensities. _For the presence of the dogs to be an actionable nuisance, however, they must result in a substantial interference with the day care owner’s use of her land._ **The interference will not be characterized as substantial if it is merely the result of plaintiff’s specialized use of her own property.** [See Foster v. Preston Mill Co., 268 P.2d 645 (1954)—D not strictly liable for blasting operations that caused female mink on P’s ranch to kill their young in reaction to the vibrations] Hence, (B) states the most critical factual issue. (A) is incorrect because the day care owner does not need to establish other types of damages to recover once she has established that the dog owner’s activity is an actionable interference with the use and enjoyment of her land. (C) is incorrect because the exercise of reasonable care by the dog owner is irrelevant; the day care owner’s nuisance action arises from an activity for which the dog owner is strictly liable. (D) is incorrect because the dog owner’s knowledge of his interference with the day care owner’s use of her property would only establish that his conduct might also be **_an intentional nuisance,_ which would require the day care owner to show unreasonableness, i.e., that her injury outweighs the utility of his conduct.** She does not need to make that showing for a nuisance action based on strict liability.

Question 63

A resident living near a factory brought a private nuisance action against the factory, alleging that emissions from the factory’s smokestack were aggravating her sinus condition and interfering with the use and enjoyment of her property. What is the most relevant factor in the factory’s defense of the lawsuit? (A) The plaintiff moved to her current residence after the factory’s smokestack was releasing that level of emissions. (B) No other residents of that neighborhood have complained about the factory. (C) The factory complies with local zoning ordinances. (D) No particulate matter from the emissions has landed on the plaintiff’s property.

Answer 63

(B) The most relevant factor in the factory’s defense is that no one else in the neighborhood has complained. _**A private nuisance is a substantial, unreasonable interference with another private individual’s use or enjoyment of her property.** To constitute a substantial interference, the activity must be offensive, inconvenient, or annoying to an average person in the community._ It will not be characterized as substantial if it is merely the result of the plaintiff’s hypersensitivity. Here, if no other residents of the plaintiff’s neighborhood have complained about the emissions, that indicates that the interference may not be substantial, and that the lawsuit may stem just from the plaintiff’s persensitivity caused by her sinus condition. (A) is incorrect because the fact that the plaintiff “came to the nuisance” would not preclude her from recovering. Even though the factory was emitting the same level of emissions before she moved to the property, she can recover as long as she shows a substantial and unreasonable interference. (C) is incorrect because compliance with government authority is not a defense to a private nuisance action. The fact that the factory complies with zoning requirements may be some evidence as to the reasonableness of the activity but it is not determinative, nor is it as persuasive as showing that the emissions did not interfere with anyone else’s use of their property. (D) is incorrect because particulate matter landing on the plaintiff’s property would be necessary for establishing a trespass action but not a nuisance action. The interference may be substantial and unreasonable even though there was no physical invasion of the plaintiff’s property.

Question 64

A farmer in a rural area contracted with a power company to erect wind turbines on his property. While zoning codes permitted this use of the property, the foundation supports for the turbines were not at the depth required by a code provision intended to ensure that large structures could withstand hurricane-force winds. When the wind turbines became operational, the noise bothered the farmer’s neighbor, although other neighbors the same distance away were not bothered. The neighbor, who was a commercial beekeeper, also discovered that his bees were producing less honey after the turbines began operating. If the beekeeper brings a private nuisance action against the farmer, is he likely to prevail? (A) Yes, because the noise from the wind turbines interfered with the beekeeper’s use and enjoyment of his land. (B) Yes, because the wind turbines were in violation of the zoning code. (C) No, because the noise from the wind turbines apparently would not disturb a person of ordinary sensibilities in the community. (D) No, because the zoning code regulation was not designed to prevent the type of harm that the beekeeper suffered.

Answer 64

(C) The beekeeper will not prevail because the noise apparently would not disturb a person of ordinary sensibilities. For a private nuisance action to lie, the interference with the plaintiff’s use and enjoyment of his land must be substantial. This means that it must be offensive, inconvenient, or annoying to an average person in the community. It will not be characterized as substantial if it is merely the result of the plaintiff’s hypersensitivity or specialized use of his own property. Here, the noise from the wind turbines does not disturb other neighbors similarly situated, indicating that the plaintiff’s disturbance was based on hypersensitivity. Thus, the fact that the beekeeper is bothered by it and that it may interfere with the beekeeping operation on his property does not make it a substantial interference. Hence, the beekeeper likely will not prevail under the circumstances here. (A) is incorrect because it is not sufficient that the farmer’s conduct interfered with the beekeeper’s use and enjoyment of his land; the interference must be both substantial and unreasonable for the beekeeper to prevail. (B) is incorrect because the farmer’s violation of the zoning code does not establish that an actionable nuisance is present, particularly because the regulation that was violated pertained to the stability of the structure rather than the noise that was generated. Conversely, (D) is incorrect because the fact that the zoning code regulation was not designed to prevent excessive noise does not establish that the farmer’s activity was not a nuisance; it could constitute a nuisance even if the structures complied with the zoning code regulation.

Question 65

Slander per se categories

Answer 65

Business of Sex Crimes causes Disease (Business, Sex, Crime, Disease). adverse reflection on the plaintiff’s abilities in his trade or business unchastity of a woman (imputing serious sexual misconduct to the P) crime involving moral turpitude loathsome disease (e.g., a sexually transmitted disease) CLAMS (slander “per se”): C – Falsely accusing the P of committing a serious CRIME L – Falsely stating that P has an existing (not former) communicable, LOATHSOME disease (e.g., a sexually transmitted disease) A – Making a false statement that ADVERSELY reflects on P’s trade or business M – Falsely accusing P of MORAL turpitude S – Falsely accusing P of serious SEXUAL misconduct (male or female)

Question 66

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

Answer 66

(A) 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. (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 67

A professional athlete was involved in a car accident after leaving his team’s stadium following a game, and a child was killed. The child’s parents brought a wrongful death lawsuit against the athlete, which eventually was settled. A reporter for a sports gossip website accurately reported that, as part of the legal settlement, the athlete was required to seek counseling for alcoholism. The website reporter incorrectly believed that she had received this information from a press release by the athlete’s agent, but in fact it had been supplied by an unauthorized source, and no public information was released of the terms of the settlement. The athlete brought a privacy action against the website reporter based on the public disclosure of private facts, but the jury rejected his claim. What is the likely explanation? (A) The facts stated were true. (B) The publication involved a matter of public interest. (C) The report was based on a judicial proceeding. (D) The website reporter reasonably believed that the athlete had consented to release of this information.

Answer 67

(B) If the website reporter prevails, it will be because the publication involved a matter of public interest. **The invasion of privacy action based on _public disclosure of private facts_ requires the following elements:** **(i) publication or public disclosure by defendant of private information about the plaintiff, and** **(ii) the matter made public is such that its disclosure would be highly offensive to a reasonable person.** ***_However, publication in such a case may be privileged if the matter is one of legitimate public interest, as long as it is made with actual malice (i.e., knowledge of falsity or reckless disregard for the truth)._*** Here, the professional athlete may very well be considered a public figure, but, even if he is not, his conduct of possibly driving from his team’s stadium while intoxicated and striking and killing a child would appear to be a matter of public interest. The facts indicate that the report was not made with actual malice, and therefore would be privileged. (A) is incorrect because an action for public disclosure of private facts is permitted even if the facts disclosed were true. (C) is incorrect. While a defendant has no liability for matters of public record, nothing in the facts indicates that the terms of the settlement were part of the public record, and no public information was released about the terms of the settlement. (D) is incorrect because, while consent is a defense to an invasion of privacy action, a reasonable mistake as to whether consent was given is not a valid defense.

Question 68

A local entertainment section of a newspaper published a story on the town’s business district, accompanied by photos of various businesses in the district. A minister who happened to be walking on the sidewalk in front of an adult bookstore when a photo was taken for the story became very upset when he saw it in the newspaper, because the camera angle made it appear that he was exiting the bookstore. If the minister sues the newspaper for invasion of privacy and establishes the above facts, is he likely to prevail? (A) Yes, because the photo made it appear as if he was exiting an adult bookstore. (B) Yes, because the newspaper made a public disclosure of a private fact. (C) No, because he was on a public sidewalk when the photo was taken. (D) No, because he has not alleged any economic or pecuniary damages.

Answer 68

(A) The minister likely will prevail because unauthorized use of his picture that falsely makes him appear to be exiting the adult bookstore would be highly offensive to a reasonable person under the circumstances and constitute a false light invasion of privacy. **To establish a prima facie case for invasion of privacy based on publication by defendant of facts placing plaintiff in a false light, the following elements must be proved:** **(i) publication of facts about plaintiff by defendant placing plaintiff in a false light in the public eye; and** **(ii) the “false light” must be something that would be highly offensive to a reasonable person under the circumstances.** Here, the photo created the false impression that the minister was exiting an adult bookstore. Publication of the photo conveying this false impression of the minister’s conduct would be highly offensive to a reasonable person under the circumstances. (B) cannot be correct because it is couched in terms of disclosure of private facts about the plaintiff. To establish a prima facie case for invasion of privacy based on public disclosure of private facts about plaintiff, the following elements must be proved: (i) publication or public disclosure by defendant of private information about the plaintiff; and (ii) the matter made public is such that its disclosure would be highly offensive to a reasonable person of ordinary sensibilities. Here, no private facts were disclosed, and therefore an action based on public disclosure of private facts will not succeed. (C) is incorrect. Because the minister was placed in a false light, it makes no difference that the picture was taken on a public sidewalk. An invasion of privacy based on false light can occur on public property as well as private property. (D) is incorrect. The absence of economic harm to the minister has no bearing on a privacy action. In an action for invasion of right to privacy, the plaintiff need not plead and prove special damages, providing the elements of a prima facie case are present. In other words, emotional distress and mental anguish are sufficient damages.

Question 69

The owner of a small computer consulting firm was attending the annual trade meeting of the computer industry and spoke with the owner of a second consulting firm about doing joint projects. The owner of the second firm replied by rejecting the idea immediately, stating that she believed that the first owner was incompetent. A sales representative of a computer supply firm overheard the remark. The owner of the first firm sued the owner of the second firm for defamation. If the first owner does not prevail in this lawsuit, what will be the likely reason? (A) It was not reasonably foreseeable that the second owner’s remark would be overheard. (B) The second owner did not know that her remark would be overheard. (C) There was no publication. (D) The sales representative was not a party to the conversation.

Answer 69

(A) If the plaintiff does not prevail, it will be because it was not reasonably foreseeable that the defendant’s remark would be overheard, and therefore the fault requirement for the publication element would not be satisfied. To establish a prima facie case for defamation, the following elements must be proved: (i) defamatory language on the part of the defendant; (ii) the defamatory language must be “of or concerning” the plaintiff (i.e., it must identify the plaintiff to a reasonable reader, listener, or viewer); (iii) publication of the defamatory language by the defendant to a third person; and (iv) damage to the reputation of the plaintiff. The second owner’s statement constitutes defamatory language because it adversely affects the first owner’s reputation by attacking his competency. The publication requirement is satisfied when there is a communication to a third person who understands it. **_However, the communication to the third person must be made either intentionally or negligently;_** if it was not reasonably foreseeable that the defamatory statement would be overheard by the sales representative, the fault requirement for the publication element is not satisfied. ***_(B) is incorrect. The plaintiff could prevail even if the defendant did not know that her remark would be overheard as long as it was reasonably foreseeable that it could be overheard._*** (C) is incorrect because there in fact was a publication, i.e., there was a communication, albeit not intentionally made, to the sales representative, who would reasonably have understood it to be defamatory. (D) is incorrect because there is no requirement that the third party be a party to the conversation—the third party need only be a reader, listener, or viewer.

Question 70

To establish a prima facie case for interference with business relations, the following elements must be proved:

Answer 70

(i) existence of a valid contractual relationship between plaintiff and a third party or a valid business expectancy of plaintiff; (ii) defendant’s knowledge of the relationship or expectancy; (iii) intentional interference by defendant that induces a breach or termination of the relationship or expectancy; and (iv) damage to plaintiff. An interferer’s conduct may be privileged where it is a proper attempt to obtain business for the interferer, particularly if the interference is only with a prospective business relationship rather than with an existing contract.

Question 71

Strict liability for wild animals includes....

Answer 71

....liability for the harm that results when a person is attempting to flee from what is perceived to be a dangerous animal.

Question 72

A bull, which is... animal.

Answer 72

a domestic

Question 73

The driver of a tanker truck was transporting radioactive waste from a nuclear power plant to a permanent storage facility in a remote western region of the United States. After driving all night, the driver fell asleep at the wheel and the truck crossed over the center line, off the road, and onto a homeowner’s property, coming to rest after crashing into several glass cases containing the homeowner’s collection of poisonous snakes, the keeping of which was permitted by local ordinance. When the driver exited the truck, he was bitten on the leg by one of the poisonous snakes and became seriously ill. The driver brought an action against the homeowner for his injuries. The parties stipulated to the above facts, and that the driver violated a state statute by driving off of the road. Both parties moved for judgment as a matter of law on the liability issue. How should the court rule? (A) Grant the driver’s motion and deny the homeowner’s motion, because the homeowner is strictly liable for the injury caused by the snake. (B) Deny the driver’s motion and grant the homeowner’s motion, because the driver was a trespasser on the homeowner’s property. (C) Deny the driver’s motion and grant the homeowner’s motion, because the driver’s violation of the state statute establishes contributory negligence as a matter of law. (D) Deny both parties’ motions, because both parties were engaged in an activity for which strict liability is imposed.

Answer 73

(B) The court should grant the homeowner’s motion for _judgment as a matter of law because the driver has not established a prima facie case against the homeowner._ An owner of wild (dangerous) animals is strictly liable for injuries caused by those animals as long as the personinjured did nothing, voluntarily or consciously, to bring about the injury. _However, strict liability generally is not imposed in favor of undiscovered trespassers against landowners in the absence of negligence, such as when the landowner knows that the trespassers are on the land and fails to warn them of the animal._ Here, despite the fact that the driver did not intend to enter the homeowner’s land (and thus would not be liable for the intentional tort of trespass), his status on the homeowner’s land is that of a trespasser rather than a licensee or invitee. The driver has presented no evidence of negligence on the homeowner’s part and therefore has not established a prima facie case against the homeowner. (A) is wrong because, as discussed above, the homeowner is not strictly liable to the driver because the driver was a trespasser. (C) is incorrect because the driver will not prevail regardless of whether he was contributorily negligent, because he cannot establish a prima facie case against the homeowner in either negligence or strict liability. (D) is incorrect for several reasons: While the driver’s transport of radioactive waste may have been an abnormally dangerous activity, that danger had nothing to do with the accident that occurred. Furthermore, the fact that the driver may have been engaged in an abnormally dangerous activity would not prevent him from recovering damages from another tortfeasor if he established the requisite prima facie case. Finally, the fact that the parties were engaged in activities potentially creating strict liability has nothing to do with whether issues of fact regarding liability still exist that would require denying both motions and going to trial.

Question 74

A fan of a popular band sneaked behind stage to try to meet band members. She entered a small room to hide despite a sign on the door marked, “Danger – Electrical Equipment.” During the performance, the band’s special effects equipment in the room malfunctioned and triggered fireworks in the room to explode. The fireworks had been stored in the room by a third party that the band had hired to stage the special effects. The fan suffered burns to her face and hands from the fireworks. The fan brought an action based on strict liability against the band. After evidence of the above facts was presented, both parties moved for a directed verdict. How should the court decide on the directed verdict motions? (A) Grant the band’s motion, because the fan was a trespasser and could not rely on a strict liability theory. (B) Grant the fan’s motion, because the judge can determine as a matter of law that the band’s storage and use of fireworks for their special effects was an abnormally dangerous activity. (C) Deny both motions, because the jury must determine whether the malfunction was caused by the third party that the band hired to set up the special effects. (D) Deny both motions, because the jury must determine whether the fan was a foreseeable plaintiff.

Answer 74

(D) The court should deny both motions. An activity may be characterized as abnormally dangerous if it involves a substantial risk of serious harm to persons or property even when reasonable care is exercised. Whether an activity is abnormally dangerous is a question of law that the court can decide on a motion for directed verdict. **_However, the defendant is liable only to “foreseeable plaintiffs”—persons to whom a reasonable person would have foreseen a risk of harm under the circumstances._** Generally, strict liability is not imposed on a defendant’s abnormally dangerous activity that caused injury to a person whose presence the defendant had no reason to know. Here, there is nothing to suggest that the band knew that the fan had sneaked into the equipment room. Hence, the jury could determine that the fan’s presence was unforeseeable and reject her strict liability claim. ***_(A) is incorrect because the fan’s status as a trespasser would be relevant only in an action against the landowner._*** In this action against the band, the issue is whether the fan is a foreseeable plaintiff, which is a question for the jury. (B) is incorrect even though it is true that _the judge makes the determination whether an activity is abnormally dangerous._ As discussed above, even if the judge determines that the band’s storage and use of fireworks is an abnormally dangerous activity, the jury needs to determine whether the fan is a foreseeable plaintiff. (C) is incorrect because the band would be liable even if the third party that it had hired was responsible for the harm that occurred. Regardless of whether the use of fireworks is determined to be an abnormally dangerous activity for which strict liability applies, it is clearly an inherently dangerous activity because fireworks injuries occur even in the course of professional fireworks displays. Hence, the band would be vicariously liable for any fault on the part of the third party in setting up the special effects or storing the fireworks.

Question 75

To prove breach of duty in a products liability case based on **_negligence_**, the plaintiff must show: **Defective food products are treated as ...**

Answer 75

(i) negligent conduct by the defendant leading to (ii) the supplying of a defective product by the defendant. **... manufacturing defects—the product is defective if it is dangerous beyond the expectation of the reasonable consumer.** To show negligence in a manufacturing defect case, the plaintiff may invoke _res ipsa loquitur._ To rely on that doctrine, the plaintiff must show that the injury is the type that would not normally occur absent negligence and that it usually occurs because of the negligence of the manufacturer (and that the injury was not attributable to the plaintiff). **_An intermediary’s failure to discover a defect is not a superseding cause, and the defendant who created the defect will remain liable._** **_i.e._** **_A piece of bone over an inch long in ground beef was a dangerous defect that would not have occurred without negligence on the part of the meat processor.The processor would be liable even if the restaurant employees were negligent in not finding the bone,_**

Question 76

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 76

(D) 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 77

A man purchased a large flat screen television and decided to mount it on the ceiling over his bed. The manual that came with the product included detailed instructions and illustrations on how to mount the television on different types of walls, along with all the required hardware, but contained neither instructions nor warnings regarding mounting on the ceiling. The man carefully followed the wall-mounting instructions and was satisfied that it would hold. In fact, however, the mounting was not appropriate for ceilings. The next night, a woman who was the man’s overnight guest was seriously injured when the television came loose and fell on the bed. Will the woman prevail in a suit against the company that manufactured the television? (A) Yes, because the manufacturer had a duty to include warnings for all potential placements of its product. (B) Yes, if the manufacturer knew that its television was sometimes mounted on ceilings rather than walls.

Answer 77

_(B) Knowledge on the part of the manufacturer that its television was being mounted on the ceiling would give rise to a duty to include in the manual warnings against the practice or detailed instructions on how to safely mount it._ The television hardware and instructions were appropriate for its intended mounting on the wall. However, courts in a strict liability case require a commercial supplier **_to anticipate reasonably foreseeable uses even if they are misuses of the product._** If the manufacturer knew that members of the public were sometimes mounting the television on the ceiling, marketing the product without including either warnings against the practice or appropriate hardware and instructions on how to safely do so made the product so defective as to be unreasonably dangerous if it were improperly mounted. Under a strict liability theory, the manufacturer is liable for supplying a defective product. As a guest of a purchaser of the product, the woman is a foreseeable plaintiff; thus, the manufacturer may be liable to her. The defective product actually and proximately caused the woman to suffer serious injuries. Therefore, the manufacturer is liable to the woman in a strict products liability action. _**(A) is incorrect because the facts do not establish that the manufacturer was under a duty to include the warnings in its manual.** Such a duty would exist if the manufacturer knew (as (B) states) or should have known that the television was being mounted on ceilings._

Question 78

Under either negligence or strict liability theory, an intermediary’s negligent failure to discover a defect is (not) a superseding cause, so the defendant who supplied the defective product will still be liable.

Answer 78

is not

Question 79

A patient was admitted to a hospital to undergo an x-ray procedure that required him to be tilted up. During the procedure, the technician improperly strapped the patient to an x-ray table designed for the procedure. There was a footrest at the bottom of the table to help support the patient, but the bolts holding the footrest gave way and the footrest fell off. Had the patient been securely strapped in, he would have remained on the table. However, the loss of the footrest caused sufficient additional pressure on the straps that they loosened, and the patient fell from the table, struck his head, and suffered injuries. The patient sued the manufacturer of the x-ray table, which supplied the table fully assembled, on a theory of strict liability for his injuries. Who is likely to prevail? (A) The patient, because the x-ray table was dangerously defective. (C) The manufacturer, because the hospital employee was negligent when he failed to properly secure the straps. (D) The manufacturer, because the table was not in its exclusive control when the plaintiff incurred his injury.

Answer 79

(A) Judgment will likely be for the plaintiff because the manufacturer supplied a product that was in a defective condition unreasonably dangerous to users. A commercial supplier of a product may be liable to any foreseeable plaintiff who was injured by a product that was in a defective condition unreasonably dangerous to users. In making this determination in case of a design defect, courts evaluate whether a less dangerous design or alternative was economically feasible. In making this determination in the case of a manufacturing defect, courts evaluate whether the product was dangerous beyond the expectation of the ordinary consumer. Here, the bolts attaching the footrest to the x-ray table gave way. _The table had been fully assembled by the manufacturer and was being used appropriately by the hospital, indicating that the failure of the bolts was due to a manufacturing or design defect in the x-ray table._ **Under either the “feasible alternative” test or the “consumer expectation” test,** the trier of fact will likely find that the product was defective and unreasonably dangerous to users when the product left the manufacturer’s control, making the manufacturer strictly liable. (C) is wrong because an intermediary’s ordinary negligence is not a superseding cause that would relieve the manufacturer from liability. Here, the injury was caused by both the failure of the footrest and the improper tightening of the straps. The latter occurrence is ordinary foreseeable negligence that would not supersede whatever liability the manufacturer is judged to have for the failure of the footrest. (D) is wrong because the fact that the table was not in the exclusive control of the manufacturer is irrelevant. Exclusive control is a means of showing an element of res ipsa loquitur, a doctrine for proving breach of duty in a negligence action. In a strict products liability action, the manufacturer will be liable for an unreasonably dangerous defective condition as long as the table was expected to, and did in fact, become operational without substantial change in the condition in which it was supplied.

Question 80

A father purchased the largest model rocket that he could find, hoping to interest his daughter in space engineering. Several days later, the father and daughter went to an open area in a state park to fire the rocket. The father was in such a rush to fire the rocket that he failed to remove the safety key from the launch system. Upon connecting the launch system to the rocket motor, the motor exploded, seriously injuring the father and daughter. A negligence action was brought on behalf of the daughter against the rocket manufacturer. At trial, evidence shows that the explosion resulted from a manufacturing defect in the motor. Evidence also shows that the motor would not have exploded while they were connecting the launch system if the father had removed the safety key. Will the daughter recover for her injuries? (A) No, because she did not purchase the rocket. (B) No, because the father was negligent in failing to remove the safety key before connecting the motor. (C) Yes, if the trier of fact determines that the defect in the motor could have been discovered by the rocket manufacturer in the exercise of reasonable care. (D) Yes, unless the manufacturer shows that the defect in the motor could have been discovered by the rocket retailer in the exercise of reasonable care.

Answer 80

(C) The rocket manufacturer will be liable for negligence if it should have discovered the defect in the motor. _**To establish a prima facie case for negligence in a products liability case, the plaintiff must show the existence of a legal duty owed by the defendant to that particular plaintiff, breach of that duty, actual and proximate cause, and damages.**_ _**To prove breach of duty, plaintiff must show (i) negligent conduct by the defendant leading to (ii) the supplying of a defective product by the defendant.**_ The call of the question indicates that the rocket manufacturer supplied a defective product. If the defect could have been discovered by the manufacturer in the exercise of reasonable care, it was negligent in not discovering the defect and preventing the rocket from being sold. Choice (A), which addresses the duty element, is incorrect because a manufacturer of a defective product owes a duty of due care to any foreseeable plaintiff. Although the daughter did not purchase the rocket (and so was not in privity with the manufacturer), she was the daughter of the purchaser and was standing nearby when her father connected the launch system and the rocket exploded, causing her injuries. (B) is incorrect because the father’s negligence would be imputed to the daughter only where she and her father stand in such a relationship to each other (e.g., an employer-employee relationship) that the courts would find it proper to charge the daughter with her father’s negligence (such that she would be vicariously liable for her father’s negligent conduct if a third party had sued her). Here, there are no facts to impute the father’s negligence (in failing to remove the safety key) to his daughter. Choice (D), which addresses the causation element, is incorrect because **_an intermediary’s negligent failure to discover a defect is foreseeable negligence and therefore not a superseding cause._** The rocket manufacturer is the defendant whose original negligence created the defect and will still be liable.

Question 81

A security guard, dressed in plain clothes, was working for a discount store when a customer got into a heated argument with a cashier over the store's refund policy. Without identifying himself as a security guard, the security guard suddenly grabbed the customer's arm. The customer attempted to push the security guard away, and the security guard knocked the customer to the floor, causing injuries. The customer sued the discount store for battery on a theory of vicarious liability for the injuries caused by the security guard. The store filed an answer to the customer's complaint, asserting the affirmative defense of contributory negligence. The customer has moved to strike the affirmative defense. Traditional rules of contributory negligence apply. Should the trial court grant the customer's motion? A. No, because contributory negligence is an affirmative defense to a cause of action based on vicarious liability. B. No, because the customer should have known that his argument with the cashier might provoke an action by a security guard. C. Yes, because contributory negligence is not a defense to battery. D. Yes, because the customer did not know that he was pushing away someone who was employed as a security guard.

Answer 81

(C) is correct. **_Contributory negligence is a defense to negligence actions but not to intentional torts actions._** Battery is an intentional tort for which contributory negligence is not a defense. Hence, the court should grant the customer's motion to strike the affirmative defense. (A) is incorrect. A cause of action based on vicarious liability may arise not just from an employee's negligence but also from an employee's intentional conduct in certain circumstances. Here, the vicarious liability allegation is based on the security guard's intentional tort of battery, for which contributory negligence is not a defense. (B) is incorrect. Even if the customer should have known that a security guard would intervene and was therefore contributorily negligent, that would not be a defense to battery. (D) is incorrect. The fact that the customer did not know that he was pushing a security guard does not address the store's defense, which is that the customer should have known that the person who intervened could have been a security guard and therefore was contributorily negligent. Choice (C) addresses why the defense will fail.

Question 82

The tort of invasion of privacy includes the following four kinds of wrongs:

Answer 82

(i) **appropriation** by the defendant of the plaintiff's picture or name for the defendant's commercial advantage; (ii) **intrusion** by the defendant on the plaintiff's **affairs or seclusion**; (taking video of someone on a public street is not actionable) (iii) publication by the defendant of facts placing the plaintiff in a **false light**; and (iv) **public disclosures** of private facts about the plaintiff by the defendant (taking video of someone on a public street is not actionable) \*\*\* the right of privacy is a personal right and does not survive the death of the plaintiff

Question 83

Under contributory negligence principles, a plaintiff is required to ...

Answer 83

act as a reasonably prudent person, the same as the defendant. A plaintiff who fails to act reasonably and who negligently contributes to his injury will have his recovery reduced in jurisdictions following a pure comparative negligence rule. In a case where contributory negligence is shown, the trier of fact weighs the plaintiff's negligence against that of the defendant and reduces the plaintiff's damages accordingly. i.e. The worker was in no danger in the stalled elevator but nevertheless jumped 12 feet to the ground after waiting 15 minutes. The trier of fact is likely to find that the worker was at least partly at fault for his injury by jumping from that height. Hence, he will not obtain a judgment for 100% of his damages.

Question 84

A patient who had suffered a severe fracture of her leg was treated by an orthopedist, who set the patient's leg and put it in a cast. When the leg continued to bother the patient six months later, she consulted a second orthopedist in the same town. The second orthopedist surgically inserted a pin to facilitate healing. The patient brought a malpractice action against the first orthopedist, claiming that he should have surgically inserted a pin at the time of initial treatment. The only evidence that the patient offered in support of her malpractice claim was the testimony of the second orthopedist, as follows: In response to the question "Would you have inserted a pin initially?" the second orthopedist testified, "I personally would not have been satisfied that the leg would heal properly without a pin." At the close of the patient's evidence, the first orthopedist moved for judgment as a matter of law. A. No, because the patient has introduced evidence that the first orthopedist failed to give the care that the second orthopedist would have provided. B. No, because the second orthopedist practices in the same town and field of specialty as the first orthopedist. C. Yes, because the patient has failed to introduce evidence that the first orthopedist's care fell below the professional standard of care. D. Yes, because the second orthopedist also treated the patient and is thus not sufficiently objective to offer expert testimony. Should the motion be granted?

Answer 84

(C) is correct. A person who is a professional (e.g., doctor) is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing. **_For doctors, most courts will apply a national standard of care to evaluate their conduct._** This standard of care generally is established by expert testimony. Here, the only evidence the patient offered in support of her malpractice claim was the testimony of the second orthopedist. However, that orthopedist stated only that he personally would have inserted a pin to make sure the leg healed properly. He did not testify as to what treatment conforms to the requisite standard of care or whether the first orthopedist had failed to conform to that standard of care by not inserting a pin initially. Hence, the patient has not presented sufficient evidence of breach of duty to withstand a motion for judgment as a matter of law. (A) is incorrect. Evidence that the second orthopedist would have provided different care is not enough to establish breach of duty, as discussed above. (B) is incorrect. As discussed above, most courts apply a national standard of care to evaluate the standard of care of doctors, particularly if they are specialists. Thus, the fact that the second orthopedist practices in the same town as the first orthopedist is irrelevant. (D) is incorrect. The fact that the second orthopedist treated the patient does not preclude him from testifying to the appropriate standard of care.

Question 85

A fumigation company was hired to eliminate pests in one of two buildings in a condominium complex that shared a common wall. _The owners of the complex told the fumigation company_ that the common wall separating the infested building from the uninfested building was an impenetrable fire wall. _The fumigation company did its own thorough inspection_ and determined that the buildings were indeed completely separated by the wall. Residents of the condominium units in the building that was to be sprayed were told to evacuate, but the residents of the uninfested building were told that they could remain while the other building was treated. During and shortly after the fumigation, in which a highly toxic chemical was used, many residents of the uninfested building became sick. It was determined that their illnesses were caused by the fumigation chemical. In fact, there was a hole in the fire wall separating the two buildings, but because it could only be observed from a specific position in the crawl space underneath the floor of the uninfested building, _it had not been discovered by either the fumigation company or any previous building inspector._ Are the residents of the uninfested building likely to prevail in a tort action against the fumigation company? A. No, because the condominium complex owners were responsible for accurately conveying the condition of their buildings. B. No, because the fumigation company exercised a high level of care. C. Yes, because the fumigation company can be held strictly liable for its activity. D. Yes, because the fumigation company put a dangerous product into the stream of commerce.

Answer 85

C) is correct. **A defendant may be held strictly liable for an activity that is deemed abnormally dangerous. *_The courts generally impose two requirements for finding an activity to be abnormally dangerous:_*** ***_(i) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and_*** ***_(ii) the activity is not a matter of common usage in the community._*** *Fumigating is commonly held to be an abnormally dangerous activity for which strict liability is imposed.* (A) is incorrect. The fumigation company did its own thorough inspection of the buildings and did not rely on the information from the condominium complex owners. Even had that been the case, the fumigation company would be strictly liable for the harm that occurred. (B) is incorrect. Because the fumigation company is strictly liable for its activity, it does not matter that it exercised a high level of care. (D) is incorrect. The fumigation company used a dangerous product but it did not put it into the stream of commerce. Hence, its strict liability is based on engaging in an abnormally dangerous activity rather than supplying a dangerous and defective product.

Question 87

A man and a woman were in a two-car traffic accident. Immediately after the accident, the man was treated by a physician at a nearby hospital’s emergency room. The man later filed a negligence action against the woman in federal district court, seeking compensatory damages. The woman now seeks discovery regarding the emergency room physician’s observations, opinions, and treatment of the man. Is the woman entitled to discovery regarding that information? C Yes as to the physician’s observation and treatment, but the physician’s opinions are discoverable only if the man intends to call the physician as an expert witness at trial. D Yes, because the physician observed and treated the man and developed opinions about the man’s injuries for purposes other than litigation or trial.

Answer 87

The woman is entitled to discovery regarding the physician’s observations, opinions, and treatment of the man because the physician developed opinions about the man’s injuries for purposes other than litigation or trial. (C) is incorrect because it is not applicable to the situation here, where the physician was not retained in anticipation of litigation or trial.

Question 89

After picking up a load of hazardous chemical waste, a truck driver for a waste management company set out on the road to his next stop. However, he had failed to secure the latch on the back panel of the truck. Consequently, the panel opened while the truck was on the road, and a metal canister full of chemical waste fell onto the road. A car struck the canister, causing the car to veer off the road and injure the driver. The driver filed suit against the company for his injuries. The jurisdiction in which the above events took place has adopted a rule of partial comparative negligence. At trial, the driver of the car admitted that he had momentarily taken his eyes off the road to look at his speedometer. When he had looked up again, the canister was there and he could not stop in time. The jury found that the company, through its truck driver, had acted willfully and wantonly and was 90% at fault, while the driver of the car was 10% at fault. The driver filed a motion for judgment notwithstanding the verdict, seeking recovery for 100% of his damages. If the judge grants the motion, what is the most likely reason? A A plaintiff’s comparative negligence is not taken into account in cases of willful and wanton conduct by the defendant. B A state ordinance mandating motorists to stay within the posted speed limit requires as a matter of law an occasional glance at the speedometer. C The company was more than 50% at fault. D The company was engaged in an abnormally dangerous activity.

Answer 89

If the driver was effectively required by statute to take an occasional quick look at his speedometer to make sure that he was complying with appropriate speed limits, then his momentary glance at the speedometer in the instant case would, **_as a matter of law, not constitute negligent conduct._** Because this is a matter of law, the judge would be authorized to correct this aspect of the jury’s verdict. If the driver is thus found to be not negligent in this matter, his recovery will not be reduced. (A) is incorrect because in most states that have adopted comparative negligence, the plaintiff’s negligence will be considered even in cases where the defendant has acted willfully and wantonly. (C) is incorrect because the fact that the defendant is more than 50% at fault does not mean that the plaintiff is entitled to receive 100% of his damages from the defendant in a partial comparative negligence jurisdiction. It only means that the plaintiff’s recovery is not totally defeated. _(D) is incorrect because, although the transportation of chemical waste would probably be considered an abnormally dangerous activity, **liability for conducting an abnormally dangerous activity attaches only if the harm results from the kind of danger to be anticipated from such activity;** i.e., the injury must flow from the normally dangerous propensity of the activity. The canister falling from the truck is not the “normally dangerous propensity” of transporting chemical waste._

Question 90

A driver and his passenger were involved in an automobile accident when the driver ran a red light and crashed into another car. Due to a manufacturing defect in the automobile’s airbag system, the passenger side airbag did not deploy. The passenger was killed on impact. The passenger’s estate brought suit against the driver and the airbag’s manufacturer. At trial it is established that the driver was negligent in running the red light. What effect would such proof have on the claim of the passenger’s estate against the airbag manufacturer? A It would reduce recovery by the estate if the action against the manufacturer is based on negligence. B It would bar recovery by the estate if the trier of fact finds that the driver was the sole legal cause of the passenger’s death. C It would bar recovery by the estate if it is shown that the driver is the sole legal heir of the passenger’s estate. D It would have no effect on recovery by the estate as long as the action against the manufacturer is based on strict liability.

Answer 90

***_The driver’s negligence would bar recovery if it was the sole legal cause of the passenger’s death._*** Regardless of the theory that the plaintiff is using in a products liability action, actual and proximate cause must be established. If the driver’s negligence is the sole legal or proximate cause of the passenger’s death, it would preclude the estate’s suit against the airbag manufacturer because the defect was not a legal cause of the passenger’s death. (A) is incorrect because the driver’s contributory negligence will not be imputed to the passenger; hence, it will not reduce the estate’s recovery under comparative negligence rules. (C) is incorrect. A potential beneficiary who was negligent will be subject to the jurisdiction’s fault rules. Hence, his negligence will reduce his recovery under pure comparative negligence rules but will not bar it, even if he is the sole heir. (D) is incorrect. In most pure comparative negligence jurisdictions, the same comparative fault rules will apply whether the action against the manufacturer is based on negligence or strict liability. As discussed above, whether the estate can recover, and the extent of its recovery, depends on causation issues and the driver’s status as a beneficiary of the estate.

Question 91

Res ipsa loquitur example

Answer 91

Through the doctrine of res ipsa loquitur, the child can establish breach of duty just by the fact that she was ejected from the ride after she had been strapped in; in other words, an inference of negligence is established because the accident causing her injury is the type that would not normally occur unless someone was negligent. The other two elements required for res ipsa loquitur are that the plaintiff was free of fault, which is easy to show in this case, and that the negligence was attributable to the defendant; i.e., that this type of accident ordinarily happens because of the negligence of someone in the defendant’s position. If the plaintiff were suing a ride operator individually, this requirement would prevent her from using res ipsa loquitur in most jurisdictions because she could not establish that that particular operator was negligent. However, the amusement park will be liable under the doctrine of respondeat superior regardless of which of its employees was negligent, because the amusement park, through its employees, did have exclusive control over the ride; therefore, the negligence is attributable to the amusement park.

Question 92

A company that was the leading supplier of home water filtration systems had a network of sales promoters who were under contract for two- or three-year terms and were compensated solely by commissions earned from sales and by occasional bonuses. Veteran promoters also earned commissions by recruiting other promoters for the company. _One of the company’s veteran promoters was contacted by a former top sales representative for another manufacturer who was looking for similar sales opportunities in the region._ The sales rep knew that the promoter might be able to get her a position with his company, which was looking for additional promoters. At the time he met with the sales rep, the promoter’s contract with the company had one more month to run. When the promoter’s contract with the company expired, he announced that he was forming his own business to market a different line of water filtration systems manufactured by a competitor of the company, _and that the sales rep would be in charge of his promotional network._ _The company brought an action against the promoter for interference with business relations for hiring the sales rep._ At a preliminary hearing, the parties stipulated to the above facts and that the promoter was an independent contractor rather than an employee of the company. The promoter then filed a motion for a summary judgment in his favor. Should the court grant the promoter’s motion? A Yes, because the sales rep had no business relationship with the company at the time the promoter’s alleged interference occurred. B Yes, because the promoter was an independent contractor rather than an employee of the company. C No, because the jury could find that the means the promoter used to obtain the sales rep were not privileged. D No, because the jury could find that the promoter breached his contract with the company by meeting with the sales rep.

Answer 92

The court should not grant the promoter’s motion because the jury could find that the promoter used improper means, while working for the company, to divert the sales rep for his own purposes. To establish a prima facie case for interference with business relations, the following elements must be proved: (i) existence of a valid contractual relationship between plaintiff and a third party or a valid business expectancy of plaintiff; (ii) defendant’s knowledge of the relationship or expectancy; (iii) intentional interference by defendant that induces a breach or termination of the relationship or expectancy; and (iv) damage to plaintiff. Thus, a plaintiff has a cause of action for interference with probable future business relationships for which the plaintiff has a reasonable expectation of financial benefit. _On the other hand, an interferer’s conduct may be privileged where it is a proper attempt to obtain business for the interferer, particularly if the interference is only with a prospective business relationship rather than with an existing contract._ What is proper depends on various factors, including the means of persuasion used. Here, the promoter’s conduct would not be privileged if the jury were to find that he improperly used his position with the company to develop a relationship with the sales rep. (A) is incorrect because even though the company did not have an existing contractual relationship with the sales rep, _it could very well show that it had a reasonable expectation of signing a contract with the sales rep that the promoter knew of and intentionally interfered with._ (Note that courts do not permit recovery for negligent interference with business relations.) Whether the company could prove its expectancy to a sufficient degree to establish actual damages would be a question for the trier of fact; hence, summary judgment would not be appropriate on this basis. (B) is incorrect because the promoter can be liable for interference with business relations regardless of whether he was an independent contractor or an employee of the company, as long as he used improper means for steering the sales rep away from the company. (D) is incorrect because a defendant’s breach of his own contract with the plaintiff is not a basis for the tort of interference with business relations. If the promoter breached his contract with the company, the company’s cause of action would be in contract and its remedy would be governed by contract rules. Here, the tort action that the company is suing on does not require establishing a breach of the promoter’s contract with the company.

Question 93

W didn’t look both ways when crossing. She was hit by a truck, and immediately afterwards, she was struck by a car. As a result of these collisions with the vehicles, the woman suffered severe injuries. Although it was impossible to determine which portion of the woman’s injuries was caused by the driver of the car and which was caused by the truck driver, at the trial of the woman’s suit, the jury determined that the driver of the car was 20% negligent, that the truck driver was 40% negligent, and that the woman was 40% negligent. It was further determined that the woman had suffered $100,000 in damages. The woman had already received $10,000 from her group medical insurance plan. The driver of the car had a $500,000 auto liability insurance policy, and the truck driver is now insolvent. How much will the woman recover in damages from the driver of the car? A $90,000. B $60,000. C $50,000. D $20,000.

Answer 93

The woman will recover $60,000. _Under pure comparative negligence, which you should assume is the rule unless the question specifies otherwise, the plaintiff may recover no matter how great her negligence._ In this case, the woman has suffered damages of $100,000. Because she was 40% negligent, she may recover only $60,000 ($100,000 less $40,000). Therefore, (B) is correct, and (A) is wrong. Absent a statute, damages are not reduced or mitigated because of benefits received from collateral sources (e.g., health insurance). Thus, the woman’s receipt of $10,000 under her insurance plan does not diminish her recovery. (C) is therefore wrong. _The driver of the car and the truck driver are jointly and severally liable for the woman’s injuries because their negligent acts combined to proximately cause an indivisible injury to the woman._ Because the driver of the car and the truck driver are jointly and severally liable, the woman may recover the entire $60,000 from the driver of the car. Thus, (D) is wrong.

Question 94

The owner of a small computer consulting firm was attending the annual trade meeting of the computer industry and spoke with the owner of a second consulting firm about doing joint projects. The owner of the second firm replied by rejecting the idea immediately, stating that she believed that the first owner was incompetent. A sales representative of a computer supply firm overheard the remark. The owner of the first firm sued the owner of the second firm for defamation. If the first owner does not prevail in this lawsuit, what will be the likely reason? A It was not reasonably foreseeable that the second owner’s remark would be overheard. B The second owner did not know that her remark would be overheard. C There was no publication. D The sales representative was not a party to the conversation.

Answer 94

If the plaintiff does not prevail, it will be because it was not reasonably foreseeable that the defendant’s remark would be overheard, and therefore the fault requirement for the publication element would not be satisfied. To establish a prima facie case for defamation, the following elements must be proved: (i) defamatory language on the part of the defendant; (ii) the defamatory language must be “of or concerning” the plaintiff (i.e., it must identify the plaintiff to a reasonable reader, listener, or viewer); (iii) publication of the defamatory language by the defendant to a third person; and (iv) damage to the reputation of the plaintiff. The second owner’s statement constitutes defamatory language because it adversely affects the first owner’s reputation by attacking his competency. The publication requirement is satisfied when there is a communication to a third person who understands it. **However, the communication to the third person must be made either intentionally or negligently;** _if it was not reasonably foreseeable that the defamatory statement would be overheard by the sales representative, the fault requirement for the publication element is not satisfied._ (B) is incorrect. The plaintiff could prevail even if the defendant did not know that her remark would be overheard as long as it was reasonably foreseeable that it could be overheard. (C) is incorrect because there in fact was a publication, i.e., there was a communication, albeit not intentionally made, to the sales representative, who would reasonably have understood it to be defamatory. (D) is incorrect because there is no requirement that the third party be a party to the conversation—the third party need only be a reader, listener, or viewer.

Question 95

The plaintiff was exiting from a parking garage owned and operated by the city when he discovered that the exit ramp was blocked by construction barricades and a pile of broken-up concrete. No workers or detour signs were around and the plaintiff was in a hurry, so he backed up and drove down an entrance ramp that was clearly marked as such. As he came around a corner, his car was broadsided by a pickup truck. The plaintiff was seriously injured in the collision. A statute in the jurisdiction requires drivers to obey all traffic directional markings in both public and private parking lots and garages. The jurisdiction retains governmental immunity for municipalities. If the plaintiff brings a lawsuit against the city to recover for his injuries, which of the following facts will be LEAST helpful in the city’s defense? A The plaintiff was aware that another exit on the other side of the garage was open. B The construction workers responsible for blocking off the exit ramp were employees of an independent contractor rather than the city. C The city does not collect fees or make a profit in the operation of the garage. D The pickup truck driver could have avoided the plaintiff but recognized him as an old enemy and deliberately ran into him.

Answer 95

The fact least helpful to the city’s defense of the plaintiff’s lawsuit is the identity of the workers who blocked the exit ramp. **_Under vicarious liability rules, a principal will be liable for the tortious acts of an independent contractor if the duty is nondelegable on public policy grounds;_ included is the duty of a possessor of land to keep its premises safe for its invitees.** If the workers were negligent in leaving the ramp blocked without providing another means of exiting, the fact that they were not city employees would not absolve the city of liability; hence, their identity would be of no help to the city’s defense. (A) is incorrect because if the plaintiff was aware of an alternate route, he may have been contributorily negligent in exiting down the entrance ramp. A plaintiff’s contributory negligence may be established by violation of an applicable statute. However, as with a statutory duty imposed on a defendant, the plaintiff’s violation of the statute may be excused if compliance was beyond the plaintiff’s control. If no other means of exiting the garage were known to the plaintiff, he may be excused for violating the traffic statute; however, if he knew of an alternative exit, the city will probably be able to establish contributory negligence on his part by his violation of the statute, reducing his potential recovery. **_(C) is incorrect because whether the city collects fees and makes a profit in operation of the garage will be considered by the court in determining whether the jurisdiction’s governmental immunity applies._** **Where municipal immunity still exists, courts have limited its scope by differentiating between “governmental” and “proprietary” functions of the municipality. *_If the municipality is performing a function that might as well have been provided by a private corporation, the function may be construed as a proprietary one and no immunity will attach._* The inference that a function is proprietary will be strengthened where the city collects revenues by virtue of providing the service.** Hence, the fact that the city is not collecting revenues or making a profit in operating the garage will make it less likely that the function will be deemed to be proprietary and more likely that it will be deemed to be governmental and thus immune; in other words, it will be more helpful rather than less helpful in the city’s defense. (D) is incorrect because the pickup truck driver’s conduct under these circumstances would be deemed a superseding force that breaks the causal connection between any negligence on the part of the city and the plaintiff’s injury. Assuming that the city workers were negligent, the fact that an independent intervening force caused the injury generally would not cut off the city’s liability, because its negligence created a foreseeable risk of that harm occurring. However, where this foreseeable harm is caused by an unforeseeable crime or intentional tort of a third party, most courts would not hold the city liable, treating the crime or tort as a superseding force. Here, while blocking the exit ramp created a foreseeable risk that someone might collide with the plaintiff, it was not foreseeable that his enemy would take that opportunity to commit an intentional tort against him. Because the pickup truck driver’s conduct was unforeseeable under the circumstances in choice (D), the city would be relieved of liability for any negligence in blocking the ramp.

Question 96

A pedestrian was struck and seriously injured by a car driven by an intoxicated driver. The driver had been served several alcoholic drinks by a bartender at a local bar. The pedestrian sued the bartender in a jurisdiction that does not have a dramshop act. Is the bartender vicariously liable for the pedestrian’s injuries? A No, because the driver acted recklessly by driving while intoxicated. B No, because there is no dramshop act in the jurisdiction to impose liability. C Yes, because there is no dramshop act in the jurisdiction to limit liability. D Yes, because the intoxicated driver caused the pedestrian to suffer personal injuries.

Answer 96

Because the jurisdiction does not have a dramshop statute, the bartender will not be liable for the injuries caused to the pedestrian by the intoxicated driver. At common law, no liability was imposed on vendors of intoxicating beverages for injuries resulting from the vendee’s intoxication, whether the injuries were sustained by the vendee or by a third person as a result of the vendee’s conduct. Many states, in order to avoid this common law rule, have enacted “dramshop acts.” Such acts create a cause of action in favor of any third person injured by the intoxicated vendee. Without a dramshop act, the bartender will not be vicariously liable. (A) is incorrect because it implies that the bartender would be vicariously liable if the driver was not reckless. Without a dramshop act, however, there can be no vicarious liability imposed on the bartender regardless of whether the driver’s actions are characterized as reckless or simply negligent. (C) is incorrect because a dramshop act exists to ***impose*** liability on, rather than ***limit*** liability of, a tavernkeeper. (D) is incorrect. While several courts have imposed liability on tavernkeepers even in the absence of a dramshop act, this liability is based on ordinary negligence principles (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liability. The question here is attempting to establish liability based on vicarious liability principles rather than negligence principles. Thus, without a dramshop act, the bartender cannot be vicariously liable for any personal injuries caused by the driver.

Question 97

For defamation note that fault is an element required for both defamation of a private and public figure. Difference?

Answer 97

Public figure - fault has to amount to actual malice Private figure - negligence

Question 98

A 13-year-old boy who lived on a farm with his parents in a rural area had learned to drive the family’s tractor when he was 11. A state statute permitted persons without a driver’s license to operate farm vehicles on public roads for short distances. One morning the boy took the tractor onto a public road to reach one of the outlying fields a few hundred yards away. As he neared the field he was distracted by a girl riding by on a bicycle, and cut in front of a milk delivery truck that was starting to pass him. The truck swerved off the road, injuring the driver. If the driver sues the boy to recover damages for his injuries, which of the following statements is most correct regarding the standard of care to be applied? A The state statute replaces the general common law standard of care with a statutory standard. B The trier of fact should take into account the boy’s experience at driving a tractor when considering the applicable standard of care. C Persons 13 years of age or older are held to the same standard as adults. D An adult standard of care will not be applied because it is common in that region for children of that age to be operating tractors.

Answer 98

The most correct statement is that the trier of fact should take into account the boy’s experience when considering the applicable standard of care. Regardless of the specific standard of care that is applied, someone with knowledge superior to that of the average person is required to use that knowledge. Hence, the trier of fact should take into account the fact that the boy had driven a tractor since he was 11 years old

Question 99

A driver was driving his car negligently along a mountain road. He lost control of his car and careened over the side of a cliff. A jogger saw the driver’s car go off the cliff and stopped to see if he could help. The jogger started to climb down the cliff to render aid to the driver. In doing so, the jogger slipped and broke his leg. The jogger sued the driver to recover damages for his broken leg. Regarding any defenses the driver might raise, which of the following statements is correct? A A rescuer acts at his own peril. B The excitement of the accident and the speedy response of the rescuer would be considered in a case such as this. C Assumption of the risk cannot be invoked against rescuers. D The driver would not have a valid defense.

Answer 99

All of the circumstances will be considered when evaluating the conduct of the rescuer, including the excitement of the accident and the speedy response of the rescuer. **_A rescuer is a foreseeable plaintiff as long as the rescue is not reckless; hence, the defendant is liable if he negligently puts himself in peril and the plaintiff is injured attempting a rescue._** **A plaintiff may take extraordinary risks when attempting a rescue without being considered contributorily negligent.** The emergency situation is one of the factors taken into account when evaluating the plaintiff’s conduct. (D) is incorrect; the driver would have a defense if he could demonstrate that the rescuer’s actions were reckless. (A) is incorrect because, while the court can conclude that the rescuer recklessly put himself in danger, this is not an absolute defense. (C) is an incorrect statement of law; assumption of risk may be applicable, depending on the circumstances, such as if the rescue were reckless.

Question 100

A pedestrian walking along an unpaved road on his way to work saw a school bus coming in the opposite direction suddenly begin to careen toward him. The bus driver had momentarily lost control of the bus while attempting to light a cigarette. To avoid being hit by the bus, the pedestrian jumped off the road into a landowner’s yard. Unfortunately, he landed in a bed of prize-winning zinnias and damaged them extensively. In a suit by the landowner against the bus driver for the damages to her zinnias, what is the likely result? A The bus driver is liable for trespass because his driving caused the pedestrian to enter the landowner’s yard and damage her zinnias. B The bus driver is liable on the theory of negligence. C The bus driver is not liable because the landowner’s zinnias were not within the scope of any duty he owed in operating a bus on a public road. D If the bus driver is held liable on any theory, he is entitled to indemnity from the pedestrian, who did the damage.

Answer 100

The bus driver is liable to the landowner in a negligence action. The driver of a vehicle on a public road owes to foreseeable plaintiffs a duty of ordinary, reasonable care to refrain from creating an unreasonable risk of injury in the operation of the vehicle. In trying to light a cigarette while driving the bus, the bus driver created an unreasonable risk that he would lose control of the bus, thus endangering the physical safety and the property of other drivers on the road, pedestrians, and owners of property adjoining the road. _There was a foreseeable risk of injury to the landowner or her property arising from the manner in which the bus driver drove the bus; thus, the duty of care extended from the bus driver to the landowner._ This duty was breached when the bus driver drove the bus so as to create an unreasonable risk of injury to the landowner or her property. It was reasonably foreseeable that a pedestrian endangered by the manner in which the bus driver drove the bus would be compelled to enter the landowner’s property and would damage the zinnias. _By forcing the pedestrian to jump off the road to save his life, the bus driver actually and proximately caused the damage to the zinnias; ***where a defendant’s actions cause another to react, liability will attach for any harm inflicted by the reacting person on another.***_ Thus, the bus driver can be held liable in negligence for the damage to the landowner’s zinnias. (C) is incorrect because the manner in which the bus driver operated the bus created a foreseeable risk of injury to the person or property of someone who owns property adjoining the road. Therefore, the general duty of due care owed by the bus driver in his operation of the bus extended to the landowner and her zinnias. (A) is incorrect because the bus driver lacked the intent to bring about a physical invasion of the landowner’s property. Absent such intent, there can be no liability for trespass. The bus driver was negligent in his operation of the bus, and this caused the pedestrian to enter the landowner’s land. However, the bus driver neither acted with the purpose of forcing the pedestrian onto the landowner’s land nor did he act knowing with substantial certainty that this consequence would result. Therefore, the bus driver did not have the intent needed to support an action for trespass. (D) is incorrect because none of the circumstances in which indemnity is available is present. Indemnity involves shifting the entire loss between or among tortfeasors. One held vicariously liable may obtain indemnification from the person whose conduct actually caused the damage. The bus driver will be held liable for his own negligence in driving the bus, not vicariously for any conduct of the pedestrian’s. Thus, this basis for indemnity does not apply. It is also possible for one tortfeasor to recover against a co-joint tortfeasor where there is a considerable difference in degree of fault. Here, the bus driver is primarily at fault. He was negligent in driving the bus, while the pedestrian merely reacted to save himself from death or serious injury, and was apparently not negligent at all. Thus, it is the bus driver who is the “more wrongful” tortfeasor, thereby precluding recovery of indemnity from the pedestrian on this basis as well.

Question 101

Although in general individuals do not have a duty to rescue those in need, an individual may have such a duty when there exists a special relationship with the potential victim. Such a relationship exists when

Answer 101

the victim is a business invitee on the premises. In such a case, the business and its agents have a duty to intervene and use reasonable care to aid and assist the invitee.

Question 102

A homeowner contracted for construction of a custom-built, elevated deck in his backyard. _The deck’s designer supervised the construction, which was carried out by several employees of a local building company._ The homeowner was pleased with the appearance of the deck, but the first time he stepped on it, a support on one side of the deck gave way, causing the homeowner to fall and be injured. The homeowner brought an action joining the building company and the deck’s designer as defendants, alleging negligence. In his complaint, he alleged that he does not know which of the defendants is responsible for the damages. Which of the following doctrines would be most helpful against the designer? A Respondeat superior. B Res ipsa loquitur.

Answer 102

Res ipsa loquitur will be most helpful against the designer. Res ipsa loquitur means the thing speaks for itself. It is appropriate in situations where an injury does not usually occur unless someone was negligent ***_and the plaintiff does not know which of the defendants caused the injury._* While res ipsa loquitur is sometimes not available where more than one person may have been in control of the instrumentality causing the injury, it is available in a case where a particular defendant had the power of control over the site of the injury.** Even if the homeowner does not know why the deck collapsed, the deck’s designer would be responsible because he designed the deck and was supervising the construction. Hence, res ipsa loquitur likely could be used. (A) is not correct because the doctrine of respondeat superior imposes vicarious liability on an employer for the tortious conduct of its employee. _That doctrine would be helpful against the building company for any negligence by its employees but not against the designer, because the workers were not the designer’s employees._

Question 103

Can plaintiff be found to have assumed the risk of injury and be completely barred from recovery in a strict liability situation?

Answer 103

A plaintiff may be found to have assumed the risk of injury and be completely barred from recovery in a strict liability situation if the plaintiff knows of and appreciates the danger justifying imposition of strict liability and voluntarily exposes himself to such danger. i.e. The technician was retired but had worked in the industry for over twenty years and overseen many similar demolitions. He voluntarily exposed himself to the danger that he knew to exist and was of the type that imposes strict liability to building demolitions. Therefore, the court is likely to bar his recovery under a theory of strict liability.

Question 104

Is mistake a defense to trespass?

Answer 104

Trespass requires an intentional entry onto the land. Damages are not required, and mistake is not a defense.

Question 105

In order to establish liability, the plaintiff must show that the defendant's actions were both the actual and proximate cause of the plaintiff's harm. Actual cause is established by the but-for test. Whether the defendant's actions are the proximate cause of the plaintiff's injury turns on the foreseeability of the results of the defendant's action. Where the injury suffered was unforeseeable (where one type of injury was foreseeable but an entirely different, unforeseeable injury actually occurred), most courts hold that it is unfair to hold the defendant liable even if his actions actually caused the plaintiff's harm.

Answer 105

Here, the foreseeable injury would have been an injury caused by the BB pellet striking the friend. Getting hit by a rock that was kicked by a horse was an unforeseeable result, and the friend suffering a fractured skull was also an unforeseeable injury. Therefore, the boy's actions are not the proximate cause of the friend's injuries.

Question 106

Under a comparative negligence regime, where the plaintiff's negligence has contributed to her own injuries, the total damages caused by the defendant may be apportioned based upon a determination of the relative fault of each party.

Answer 106

A majority of states have adopted comparative negligence systems, by either statute or judicial decision. Some states have adopted a pure system of comparative negligence. In such states, apportionment of damages tracks apportionment of fault perfectly--if the defendant is 25% responsible and the plaintiff is 75% responsible, the plaintiff recovers from the defendant 25% of the total damages she suffered.

Question 107

A landowner has a duty to exercise reasonable care to protect children trespassers only if

Answer 107

the child trespasser is unaware of the risk. This prerequisite is satisfied if the child trespasser did not appreciate the danger the risk represented. **_However, if the child trespasser is aware of the condition, understands the risk of danger it poses, and is able to avoid that risk, the defendant owes no heightened duty to prevent injury to that child._** Here, although the boy is a child, he is also an expert trampoline artist. As such, the boy understood the dangers of trampoline jumping, and he could have avoided the risk by not using the businessman's trampoline. Therefore, the businessman had no duty to protect the boy from harm, and the boy cannot prevail in his negligence action.

Question 108

Conversion is an intentional act by the defendant that causes the destruction of or a serious and substantial interference with the plaintiff's chattel. The tort of conversion involves a more serious interference with a plaintiff's property interest than the tort of trespass to chattels. In distinguishing between the two torts, the longer the period of interference and the greater the use of the chattel by the defendant, the more likely it is that the defendant's act will be considered a conversion rather than a trespass to chattels.

Answer 108

Here, the job seeker kept the suit for more than three weeks, a much longer time period than that typically involved in the tort of trespass to chattels, and she ultimately decided to keep the suit indefinitely. Given the seriousness of her interference with the property interest of the suit's rightful owner, the job seeker has committed the tort of conversion.

Question 109

The owner of a small fleet of taxicabs had his cabs serviced by a national chain of auto service centers. One of his cabs went through a stop sign when its brakes failed without warning. The ensuing collision seriously injured the passenger. An investigation revealed that brake repairs had been made on the cab a week before, but the service center’s mechanic had used the wrong parts and had made numerous errors in reassembling the brakes. If the passenger sues the cab company owner for her injuries, who should prevail? A The passenger should prevail, unless the jury determines that the owner exercised a high degree of care in selecting the service center for maintenance of his cabs. B The passenger should prevail, because the owner breached his duty to her to provide a safe vehicle in which to ride. C The owner should prevail, because he had no reason to know that the service center’s mechanic would be negligent. D The owner should prevail, because he is not vicariously liable for the negligence of an independent contractor.

Answer 109

The passenger will recover against the owner for her injuries because the owner, a common carrier, owed her a nondelegable duty to provide a safe vehicle in which to ride. The general rule is that a principal will not be liable for tortious acts of his agent if the agent is an independent contractor. However, a major exception to this rule applies when the duty, because of public policy considerations, is nondelegable. In these cases, the principal is vicariously liable for the agent’s negligence despite the principal’s own exercise of due care. A common example of these types of duties is the duty of a business to keep its premises and instrumentalities safe for its customers. This includes the duty of a common carrier, such as a taxi company, to keep its vehicles in safe working order. Thus, the owner’s duty to the passenger, a passenger in his cab, was nondelegable. The negligent conduct of the mechanic is deemed to be that of the owner. The negligent conduct was the actual and proximate cause of the passenger’s injuries. Thus, the owner is vicariously liable to the passenger for those injuries.

Question 110

A worker who missed his ride home because he was working late walked across the street to a tavern to get a drink. He chatted with a patron of the tavern and discovered that he lived only a short distance from the patron. The patron offered to give the worker a ride home. Although he knew the patron was probably too drunk to drive, the worker reluctantly agreed. On the way home, the patron, driving in a dangerous manner, was involved in a collision with another car, whose driver was also driving negligently, and the worker was injured. If the worker sues the patron to recover for his injuries and the above facts are established at trial, will the worker’s recovery be reduced? A Yes, because the worker knew that the patron was drunk. B Yes, because the other driver involved in the collision was also negligent. C No, because the negligence of the patron and the other driver were the proximate causes of the accident. D No, as long as the worker joins the other driver in his lawsuit.

Answer 110

The worker’s recovery will be reduced because the worker knew that the patron was drunk. The worker impliedly assumed the risk of injury when he voluntarily allowed the patron to drive him home knowing that the patron was drunk. **_In jurisdictions applying pure comparative negligence (which you are to assume is the rule unless otherwise stated), implied assumption of risk is usually treated as a variant of contributory negligence. If the plaintiff unreasonably assumed the risk of injury, as the facts indicate here, he will be considered contributorily negligent and his damages will be reduced._**

Question 111

An employer will be vicariously liable for tortious acts committed by its employee only if

Answer 111

the tortious acts occur within the scope of the employment relationship. Here, although the employee was using the company car, she was not conducting any business for the delivery company. Her use of the car to go grocery shopping was a personal errand outside the scope of her employment for which the delivery company is not vicariously liable. **The delivery company is also not vicariously liable for permitting its employee to drive its car—the general rule absent a statute to the contrary is that an automobile owner is not vicariously liable for the tortious conduct of another driving the owner’s automobile.** _However, the owner may be liable for its own negligence in entrusting the car to a particular driver._ If the delivery company knew or should have known that its employee had a poor driving record, its furnishing the employee with a car would constitute a breach of its duty to other drivers. However, if it is determined that the delivery company had no reason to know of the employee’s poor driving record, it will not be liable.

Question 112

An investor who owned several thriving shopping malls was negotiating to purchase a local mall from the company that currently owned it. A staff attorney for the state transportation department who shopped at the mall regularly learned of the negotiations and contacted the investor. The mall had deteriorated noticeably during the time the current company had owned it and the attorney believed that new ownership would revitalize the mall considerably. Although the attorney had no information to support this, she told the investor that the state was currently planning to construct a new interchange for the turnpike only three blocks from the mall. The investor went ahead with the purchase, believing that the new interchange would boost sales. In fact, no interchange was being considered by the state at that time, and nothing that the investor did after he purchased the mall could stem the decline in sales. He ended up selling the property at a substantial loss several years after the purchase. Does the investor have a cause of action against the attorney for his losses? A Yes, for negligent misrepresentation, because the owner made a business transaction in reliance on the attorney’s statements. B Yes, for intentional misrepresentation, because the attorney was aware that she did not know whether the state was planning an interchange.

Answer 112

The attorney acted with scienter for purposes of an intentional misrepresentation action because she was aware that she did not know whether the state was planning an interchange. To establish a prima facie case of intentional misrepresentation or fraud, plaintiff must prove (i) misrepresentation by defendant, (ii) scienter, (iii) intent to induce plaintiff’s reliance on the misrepresentation, (iv) causation (actual reliance on the misrepresentation), (v) justifiable reliance on the misrepresentation, and (vi) damages. The element of scienter, which involves defendant’s state of mind, requires plaintiff to show that defendant made the statement knowing it to be false or made it with reckless disregard as to its truth or falsity. Because the attorney made her statement even though she had no information that the state was planning an interchange, she acted with scienter. The other elements of intentional misrepresentation are established by the facts. Thus, the investor has a cause of action against the attorney under the condition stated in (B).

Question 113

Vicarious liability for the conduct of another can arise in partnership and joint venture situations.

Answer 113

**Each member of the partnership is vicariously liable for the tortious conduct of another partner committed in the scope of the partnership’s affairs.** As with respondeat superior situations, if the tortfeasor has gone off on a frolic of his own, he is no longer acting within the scope of the partnership and the other partners will not be liable. On the other hand, a minor deviation from the partnership activity will not take it outside of the scope of the partnership’s affairs. i.e. Here, the painter and the apprentice are partners in their painting business. The apprentice’s detour to a post office along the way simply to mail a letter did not take his activity outside the scope of the partnership’s affairs; hence the painter is vicariously liable simply because of his status as a partner.

Question 114

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 114

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 independen**t **(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 115

A plaintiff sued a defendant for serious personal injuries he incurred when the defendant allegedly drove through a red light and collided with the plaintiff’s car. Calling the defendant as an adverse witness, the plaintiff asked her if she had been drinking before the accident. **The defendant refused to answer, asserting her privilege against self-incrimination.** _The plaintiff then offers in evidence a certified copy of a court record indicating that, eight years previously, the defendant had been convicted of reckless driving while intoxicated that caused serious personal injury, a felony._ How should the trial court rule on the admissibility of the court record? A Admit the record as relevant character evidence because the plaintiff suffered serious personal injuries. B Admit the record as impeachment evidence. C Exclude the record as irrelevant because as yet the defendant has given no testimony to be impeached. D Exclude the record because the conviction is too remote and does not necessarily reflect on the defendant’s credibility as a witness in the present proceedings.

Answer 115

**The record of the conviction should be excluded because the defendant has given no testimony to be impeached.** Impeachment involves the casting of an adverse reflection on the truthfulness of a witness. Although the defendant has been called as a witness, she has not given any testimony at this point. Consequently, the plaintiff is unable to introduce evidence that would otherwise constitute proper impeachment evidence.

Question 116

As a general rule, a defendant is liable if he negligently puts himself in peril and the plaintiff is injured in attempting a rescue. However, the “firefighters’ rule” ....

Answer 116

... will bar firefighters and police officers, on public policy or assumption of risk grounds, from recovering for injuries caused by the risks of a rescue.

Question 117

When there is an employer-employee relationship between a principal and his agent, the employer is vicariously liable for torts committed by the employee within the scope of the employment relationship. This is the doctrine of respondeat superior. On the other hand, the general rule is that a principal is not liable for tortious acts of an agent who is an independent contractor. An agent is likely to be an independent contractor if she:

Answer 117

(i) is engaged in a distinct business of her own; (ii) controls the manner and method by which she performs her tasks; (iii) is hired to do a particular job; (iv) supplies her own tools and materials; (v) is paid a given amount for the job; and (vi) is hired to do a short-term, specific job. Despite the general rule, a principal can be held liable for the tortious acts of an independent contractor if: (i) the independent contractor is engaged in inherently dangerous activities; or (ii) the principal has a duty that is nondelegable on public policy grounds (e.g., a land occupier’s duty to keep his land safe for business invitees). Also, a principal can be held liable for his own negligence in selecting an incompetent independent contractor.

Question 118

A bicycle manufacturer manufactured a bicycle that it sold to a retail dealer. The bicycle had a serious manufacturing defect in its brakes, but the dealer did not discover the defect before putting it on the sales floor despite a careful inspection of the bicycle. The retail dealer sold the bicycle to a bicycle messenger. Shortly thereafter, while the messenger was riding the bicycle along a busy city street, he saw a traffic light facing him turn from green to yellow. He sped up, hoping to cross the intersection before the light turned red. However, the messenger quickly realized that he could not do so and applied the brake, which failed and caused him to crash. The messenger sustained injuries. Assume that the jurisdiction follows traditional contributory negligence rules. If the messenger asserts a claim against the retail dealer based on strict liability in tort, will the messenger prevail? A Yes, because the brake failed because of a dangerous defect present when the bicycle left the factory of the manufacturer. B Yes, because the brake failed while the messenger was riding the bicycle. C No, because the messenger contributed to his own injury by speeding up. D No, because the retail dealer carefully inspected the bicycle before selling it.

Answer 118

The messenger will prevail. In a strict liability action, the plaintiff must prove that a product was so defective that it is unreasonably dangerous. The defect causing the harm must have existed when the product left the defendant’s control. The defendant must be a commercial supplier of the product in question. Brake failure on a bicycle is an unreasonably dangerous defect. If this defect existed when the bicycle left the factory of the manufacturer, then the messenger has a viable cause of action sounding in strict liability against the retail dealer, a supplier in the distributive chain. Thus, (A) is correct. (B) is wrong because it implies absolute liability, not strict liability; i.e., the retail dealer is not liable simply because the brakes failed. It must be established that the brakes were defective when placed in commerce. (C) is wrong because, in jurisdictions retaining traditional contributory negligence rules, ordinary contributory negligence does not bar recovery in strict liability cases where the plaintiff fails to discover the defect or to take steps to guard against its existence. (D) is wrong because a careful inspection would be relevant to a negligence action, but not to one based on strict liability.

Question 119

Two law students ranked high in their class were competing for one opening at a prestigious law firm. During the interview with the hiring partner, one student was asked what he thought of the other’s work as an editor of the law review. The student responded that there was a rumor around the school that the editor got outside help on her law review comment. Based in large part on his statement, that student was chosen over the law review editor, who later accepted a less lucrative position with another firm. If the law review editor brings a slander action against the other student and establishes the above facts, will she prevail? A Yes, because the student’s statement to the hiring partner was defamatory. B Yes, because the law review editor suffered special damages. C No, because the hiring partner asked the student for his opinion. D No, because the law review editor did not establish that the student made the statement with at least negligence.

Answer 119

The student’s statement constitutes slander per se and therefore the student will be liable. To establish a prima facie case for defamation, the following elements must be proved: (i) defamatory language on the part of the defendant; (ii) the defamatory language must be “of or concerning” the plaintiff (i.e., it must identify the plaintiff to a reasonable reader, listener, or viewer); (iii) publication of the defamatory language by the defendant to a third person; and (iv) damages to the reputation of the plaintiff. Here, the student’s suggestion that the law review editor received outside help on an article she authored impeaches her integrity and legal skills. The defamatory language directly related to the editor. The publication requirement is satisfied because the student made the statement to the hiring partner. _To recover damages for slander, special damages must be pleaded and proved unless the spoken defamation falls within one of four categories, characterized as slander per se. Hence, a defamatory statement adversely reflecting on the plaintiff’s abilities in his business, trade, or profession is actionable without pleading or proof of special damages._ The student’s statement adversely reflected on the law review editor’s honesty and capability in her profession, and as such is slander per se. (B) is incorrect because, as noted above, the student’s defamatory statement adversely reflecting on the editor’s abilities in her profession is actionable without proof of special damages. (C) is incorrect because the mere fact that the interviewer asked the student his opinion does not justify a defamatory response. The student did not have a common law qualified privilege to make the statements because he was not a former employer of the law review editor and was not yet a member of the hiring partner’s firm (negating any common interest privilege). Furthermore, once publication is established, it is no defense that the defendant had no idea that the publication was defamatory. It is the intent to publish, not the intent to defame, that is the requisite intent. Thus, even if the student thought that his comments did not constitute defamation because they were in response to the interviewer’s question, he could still be found liable for defamation assuming all other elements of the tort were satisfied. (D) is incorrect because it states a standard for private persons suing on matters of public concern. Private plaintiffs must show that the defendant was at least negligent as to truth or falsity in making the statement, but here no matter of public concern is involved, so fault need not be shown. Also, since a matter of public concern is not involved, the plaintiff does not need to establish that the statement was false; a defamatory statement is presumed false at common law.

Question 120

A small cruise ship struck a whale swimming underwater, causing the ship to suddenly lurch sideways. A passenger on the ship who was walking down a corridor lost his balance and bumped his head on the edge of a doorway. Because of a previously existing medical condition that made him susceptible to bleeding on the brain, he suffered a cerebral hemorrhage and permanent mental impairment, despite prompt medical attention on the ship. The passenger brought suit against the cruise ship owner for his damages. At trial, the passenger presented evidence of how he was injured as he walked down the hallway, his previous medical condition, and his medical expenses and other damages. The cruise ship owner presented evidence that the cruise ship was following its approved route and that the whale could not have been detected before impact, and that the bump would not have injured someone in ordinary health. At the close of the evidence, the cruise ship owner moved for a directed verdict. How should the court rule? A Grant the motion, because there is no evidence that the crew operated the ship negligently. B Grant the motion, because the cruise ship owner introduced uncontroverted evidence that a person in normal health would not have been injured by the bump. C Deny the motion, because the jury could find that the cruise ship owner, as a common carrier and innkeeper, breached its high duty of care to the passenger. D Deny the motion, because the fact that the severity of the passenger’s injuries was not foreseeable does not cut off the cruise ship owner’s liability.

Answer 120

The court should grant the cruise ship owner’s motion because the passenger has not established a prima facie case of negligence against the cruise ship. To establish a prima facie case for negligence, a plaintiff must show (i) a duty of care, (ii) breach of that duty, (iii) actual and proximate cause, and (iv) damages. **As a common carrier and/or an innkeeper, the cruise ship owed its passengers a high duty of care, and therefore would be liable for slight negligence.** However, the passenger has offered no evidence to establish that the cruise ship employees breached that duty, and res ipsa loquitur is not applicable here because the collision with the whale swimming underwater is not the type of event that would occur only as a result of negligence. Because the passenger failed to establish breach of duty, the court should grant the cruise ship owner a directed verdict. (B) is incorrect because the cruise ship owner does not need that evidence to prevail. While evidence that a person in normal health would not have been injured by the bump supports the cruise ship’s other evidence that it exercised due care, it is not necessary because the passenger has failed to offer evidence that the cruise ship owner breached its duty. On the other hand, if the cruise ship owner had breached its duty of care to its passengers, the fact that a person in normal health would not have been injured by the bump on the head would not be a defense to liability. If a defendant’s negligence causes an aggravation of a plaintiff’s existing physical illness, the defendant is liable for the damages caused by the aggravation. (C) is incorrect because, as discussed above, the passenger has failed to present evidence that the cruise ship owner breached the high duty of care that it owed to its guests. (D) is incorrect even though it is a true statement of law, as discussed above. The reason the cruise ship owner prevails is because the passenger has failed to establish a prima facie case.

Question 121

A bookstore owner entered into an agreement with a building contractor to have a facade attached to the front of his bookstore. The contractor constructed the facade and attached it to the storefront, using plans prepared by himself and his own employees. After completing the work, the contractor was paid the contract price by the bookstore owner. A week later, a woman was walking past the front of the bookstore when the facade and a portion of the original building collapsed, striking and injuring her. The woman sued both the contractor and the bookstore owner for damages arising from her injuries. The parties stipulated that the attachment of the facade to the storefront caused the building to collapse and that the bookstore owner was not negligent in selecting or supervising the contractor. If the woman recovers against the bookstore owner, does the latter have any right of action against the contractor? A Yes, because the bookstore owner’s conduct was not a cause in fact of the injuries to the woman. B Yes, because the woman recovered from the bookstore owner on the basis of vicarious liability. C No, because the bookstore owner selected the contractor to perform the work. D No, because payment for the work without reservation was acceptance by the bookstore owner.

Answer 121

The bookstore owner has an action against the contractor for indemnification because the woman’s recovery against the bookstore owner was based on vicarious liability. While the general rule is that a principal is not vicariously liable for the torts of an independent contractor, a broad exception applies when the duty of care is nondelegable on public policy grounds, such as a landowner’s duty to make his premises safe. Indemnity involves shifting the entire loss between or among tortfeasors, in contrast to apportioning it as in contribution. Where one is vicariously liable for the torts of another, the former has a right of indemnity against the latter. Here, the bookstore owner was not directly liable to the woman in his capacity as owner of the property because he exercised due care in selecting the contractor, so the judgment against him was on the basis of vicarious liability for any negligence by the contractor, because the bookstore owner’s duty to keep his building safe to passersby was nondelegable. Thus, answers (C) and (D) reach a wrong result, and do not address the basis on which the bookstore owner was liable. (A) is incorrect because the bookstore owner, by hiring the contractor, was a cause of fact of the woman's injuries (i.e., but for the bookstore owner's hiring of the contractor, the woman would not have been injured). However, that does not address the theory on which the woman recovered against the bookstore owner.

Question 122

A utility company working underground installed a guardrail around its access hole for safety. Although the guardrail completely surrounded the hole, there was an opening in one part of the rail to make it easier to pass down tools to those working below. The owner of a show dog living across the street from the utility access hole frequently walked his dog in his front yard without a leash. One afternoon, the dog unexpectedly chased a squirrel out of the dog owner’s yard and ran through the opening of the guardrail, falling into the open hole and suffering broken bones and internal injuries. Although expert veterinary care saved the dog’s life, the dog was no longer of “show quality” after the injuries. The dog owner brought a negligence claim against the utility company to recover his _economic losses_ resulting from the injuries to his dog. At trial, the dog owner presented the above facts. The utility company presented uncontested evidence that the guardrail used by the company meets typical industry standards, and that the opening in the guardrail was not large enough for a person to have fallen through. At the close of the evidence, the utility company moved for a directed verdict. What should the court do? A Deny the verdict, because the jury could find that the company failed to exercise reasonable care in making the dangerous condition safe. B Grant the verdict, because the guardrail used by the company meets typical industry standards. C Grant the verdict, because the owner’s negligence claim does not support recovery of solely economic loss. D Grant the verdict, because a reasonably careful person would not have been injured in the same manner.

Answer 122

The court should deny the motion, because the jury could find that the company did not exercise reasonable care. ***_Although the extent of precautions necessary may not be as great when the defendant’s conduct poses a risk of harm only to property and not to persons, the same general rules of negligence apply._*** **Hence, the jury could find that the utility company’s conduct created a risk of injury to property that it deems unreasonable (based on the magnitude of the risk and the utility of the conduct), so that it will incur liability even though it created little risk of injury to persons.** _If the company was negligent, the dog owner could recover any property damage caused by the negligence, including whatever decline in the dog’s value he is able to prove._ (B) is incorrect because the fact that the guardrail meets typical industry standards does not preclude the jury from finding negligence. If adherence to industry standards does not prevent an unreasonable risk of harm, the defendant may be in breach of its duty of ordinary care, which is a question for the jury to decide. (C) is incorrect because ***_the plaintiff is entitled to recover all of his damages, both economic and noneconomic, if he establishes the prima facie case elements. In contrast to a products liability claim, in an ordinary negligence claim a plaintiff can recover even though he suffered only economic loss (i.e., property damage)._*** (D) is incorrect because that option does not take into account the duty of care to avoid injury to property, as discussed above.

Question 123

A driver purchased a new automobile from a car dealer. Within a few days of the purchase, the driver returned the car to the dealer for repairs because the car kept pulling to the left whenever the driver applied the brakes. The dealer’s mechanic readjusted the brakes but did not detect any other problem with the brake system. The dealer’s mechanic assured the driver that the brakes were fixed and, even if they did pull the car to the left again, the brakes would still allow the car to stop. The car worked fine for two days, but then the brakes started pulling to the left again. As the driver was driving the car back to the dealer’s shop for further repair, he saw a pedestrian crossing the street. The driver pressed his foot down on the brake pedal, but the master cylinder failed, and the car would not stop. The driver’s car struck the pedestrian, injuring him. If the pedestrian sues the driver for his injuries, who will prevail? C The driver will prevail, because he had no reason to know that his brakes would not stop the car. D The driver will prevail, because he diligently had his brakes repaired.

Answer 123

The driver will prevail under the facts given. The driver owed to a foreseeable plaintiff a general duty to behave as a reasonable person would under the same or similar circumstances. Continuing to drive the car with knowledge of an attendant danger would create an unreasonable risk of injury to people such as the pedestrian, and would constitute a breach of the driver’s duty of care. However, the driver had no reason to know of the dangerous underlying problem (the defective master cylinder), and he had been assured by the dealer’s mechanic that the car was safe to drive. Thus, the driver has not breached his duty of care here. It is true that, as (D) states, the driver had diligently had his brakes repaired, but if he had reason to know, subsequent to the repairs, that the brakes were dangerous, he should not have driven the car. Because the driver reasonably relied on the advice of the dealer’s mechanic, the driver had no reason to know of the danger involved in continuing to drive the car. Thus, (C) is a better answer than (D).

Question 124

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

Answer 124

(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. **The plaintiff does not need to show that the child was lured onto the property by the attractive nuisance.**

Question 125

A child accompanying a customer of the landowner is considered ...

Answer 125

... an invitee because she came onto the property for a purpose connected to the business. Under traditional landowner liability rules, a landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This general duty includes the duties owed to licensees (to warn of nonobvious, dangerous conditions known to the landowner and to use ordinary care in active operations on the property). A landowner also owes invitees a duty to make reasonable inspections to discover dangerous conditions and make them safe. A customer of the landowner who goes through a door marked “employees only” is no longer an invitee. A person loses his status as an invitee if he exceeds the scope of the invitation—if he goes into a portion of the premises where his invitation cannot reasonably be said to extend. **A firefighter fighting a fire on the landowner’s property is not treated like an invitee. _Under the “firefighter’s rule,” police officers and firefighters are generally treated like *licensees,* based on public policy or assumption of risk grounds._** They cannot recover for a landowner’s failure to inspect or repair dangerous conditions that are an inherent risk of their law enforcement or firefighting activity. A hiker on the landowner’s open land is not considered an invitee. If an owner or occupier of open land permits the public to use the land for recreational purposes without charging a fee, the landowner is not liable for injuries suffered by a recreational user **unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.**

Question 126

By statute in some states and case law in others, shopkeepers have been given a privilege to detain someone suspected of shoplifting and thus avoid liability for false imprisonment. The following conditions must be satisfied:

Answer 126

(i) there must be a reasonable belief as to the fact of theft; (ii) the detention must be conducted in a reasonable manner and only nondeadly force can be used; and (iii) the detention must be only for a reasonable period of time and only for the purpose of making an investigation. **A shopkeeper _is not_ required to notify the police in a reasonable amount of time to avoid liability for false imprisonment when detaining a suspect for shoplifting.**

Question 127

Prima facie case for intentional infliction of emotional distress requires proof of:

Answer 127

**(i) an act by the defendant amounting to extreme and outrageous conduct;** **(ii) intent on the part of the defendant to cause the plaintiff to suffer severe emotional distress, or recklessness as to the effect of the defendant’s conduct;** **(iii) causation; and** **(iv) damages—severe emotional distress:** hurt feelings are not sufficient.

Question 128

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

Answer 128

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 129

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_**

Answer 129

**_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

Question 130

To prove breach of duty in a products liability action, the plaintiff must show

Answer 130

(i) negligent conduct by the defendant leading to (ii) the supplying of a defective product by the defendant. Negligent conduct is demonstrated by showing that the defendant’s conduct fell below the standard of care expected of a reasonable person under like circumstances, not the level of care generally exercised by the defendant. **To show negligence in a manufacturing defect case, the plaintiff may invoke res ipsa loquitur, but it is not required that the plaintiff prove res ipsa loquitur in establishing breach of duty.** A plaintiff may show that a product was dangerous because it departed from its intended design to establish a manufacturing defect, but may instead show that the design itself is deficient (to establish a design defect).

Question 131

**Unlike with products liability cases based on negligence, those based on strict liability do not require that suppliers have an opportunity to inspect.**

Answer 131

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._ **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 132

In a products liability case based on strict liability, a plaintiff may recover both personal injury damages and property damages for the supplying of a defective product.

Answer 132

If the plaintiff’s complaint is only that the product does not work as well as expected or requires repairs (i.e., no personal injury or property damages), most courts do not permit recovery of damages for economic losses under either a strict liability or a negligence theory; the plaintiff must bring an action for breach of warranty.

Question 133

A defendant engaging in an abnormally dangerous activity may be liable only to ...

Answer 133

... foreseeable plaintiffs injured as a result of the dangerous propensity of the activity. 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 134

In general, a principal will not be vicariously liable for tortious acts of an independent contractor. Two broad exceptions exist, however:

Answer 134

(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. 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 135

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.

Answer 135

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. (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 136

The court should grant the cruise ship owner’s motion because the passenger has not established a prima facie case of negligence against the cruise ship. To establish a prima facie case for negligence, a plaintiff must show (i) a duty of care, (ii) breach of that duty, (iii) actual and proximate cause, and (iv) damages. As a common carrier and/or an innkeeper, the cruise ship owed its passengers a high duty of care, and therefore would be liable for slight negligence. However, the passenger has offered no evidence to establish that the cruise ship employees breached that duty, and res ipsa loquitur is not applicable here because

Answer 136

**_the collision with the whale swimming underwater is not the type of event that would occur only as a result of negligence._**

Question 137

The neighbor will prevail because the cabana extends onto the neighbor’s land. The tort of trespass to land requires:

Answer 137

(i) an act of physical invasion of the plaintiff’s real property by the defendant, (ii) intent by the defendant to bring about a physical invasion of the property, and (iii) causation. **The intent required is the intent to enter on a particular piece of land, rather than intent to trespass.** _Also, it is not necessary that the defendant personally enter the land. It is sufficient if the defendant’s act or something set in motion thereby causes a physical invasion of the property. **By having the cabana constructed, the landowner acted so as to bring about the physical invasion of the neighbor’s land.**_

Question 138

To establish a prima facie case of conversion, the following elements must be proved:

Answer 138

(i) an act by defendant interfering with plaintiff’s right of possession in the chattel, (ii) intent to perform the act bringing about the interference with plaintiff’s right of possession, (iii) causation, and **_(iv) damages—an interference that is serious enough in nature or consequence to warrant that the defendant pay the full value of the chattel._** **_Even if the conduct is wholly innocent, liability may attach where the interference is serious in nature._** **Accordingly, accidentally causing damage to another’s chattel may constitute a conversion when the damage occurred while the defendant was using the chattel _without permission._** Here, the student interfered with the roommate’s right of possession in the computer by taking it without permission, and it sustained damages of over 70% of its value while in the student’s possession. Hence, the student has committed a conversion. The plaintiff in a conversion case is entitled to damages for the fair market value of the chattel **_at the time and place of the conversion_**, which in this case was $700. (A) is incorrect because even though the student was not at fault in the water pipe leaking, the damage occurred while the computer was wrongfully in his possession. (B) is incorrect. Had the computer not been damaged, the roommate’s recovery would be limited to loss of use damages under a trespass to chattels theory. However, the serious damage that occurred while the computer was in the wrongful possession of the student warrants a recovery for conversion.

Question 139

When two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortfeasor ...

Answer 139

... 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. 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.

Question 140

The primary test for cause in fact (actual cause) is the “but for” test: An act is the cause in fact of an injury when the injury would not have occurred but for the act.

Answer 140

Even though the freight line had a duty created by the statute to be able to stop its train within 200 yards of first braking, and breached that duty (establishing the first two elements of the driver’s prima facie case), it must still be shown that the collision would not have occurred in the absence of the breach. Because the car was only 150 yards from the point of braking, even a train in compliance with the statute would have struck it. Since no other evidence of negligence has been presented, the motion should be granted.

Question 141

A property owner and use of force

Answer 141

**Most states today do not allow resort to _“self-help”_; one who has been wrongfully excluded from possession of real property may bring an ejectment action or other summary procedure to recover possession.** Hence, the owner who uses force to retake possession is liable for whatever injury she inflicts. (In former years, under the common law, a landowner tortiously dispossessed of real property could use reasonable force to regain possession, if she acted promptly upon discovery of the dispossession.) **An owner may use reasonable force to recapture a chattel when in “hot pursuit” of the tortfeasor_._** _A demand for return of the chattel must be made before force is used, unless the demand would be futile or dangerous. However, force can be used only against the tortfeasor or a third party who knows that the chattel was tortiously obtained._ If an innocent third party has obtained the chattel, the owner is no longer privileged to use force to effect a recapture of the chattel. **A citizen may use force to effect a misdemeanor arrest. However, the citizen is allowed to use only the amount of force necessary to effect the arrest and never deadly force.** **A property owner may use force to defend the property from tortious interference. Although a property owner may use reasonable force to defend property, she may not use force that will cause death or serious bodily harm.** Furthermore, one may not use indirect deadly force such as a trap, spring gun, or vicious dog when such force could not lawfully be directly used, e.g., against a mere trespasser.

Question 142

The friend will recover for battery because the student did not have the right to use force.

Answer 142

The defense of recapture of chattels is limited by the circumstances of the original dispossession. When another’s possession of the owner’s chattel began lawfully, the owner may use only peaceful means to recover the chattel. Force may be used to recapture a chattel only when in “hot pursuit” of one who has obtained possession wrongfully (e.g., by theft). **Here, the friend’s initial possession of the game system was a bailment, because the student consented to his borrowing it. Thus, the student is not entitled to use force to recover it, and his wrestling it away from the friend constituted the requisite harmful or offensive contact to make the student liable for battery.**

Question 143

The shopper here can establish a prima facie case because the guard’s pulling out the handcuffs and reaching for the shopper’s arm created a reasonable apprehension of an immediate offensive contact, and the guard intended to create this apprehension so that the shopper would willingly step to the side to allow his bags to be checked. However, the store could raise the defense of

Answer 143

chattels if the guard reasonably believed that the shopper was a shoplifter. This defense, which allows the property owner (or his agent) to use reasonable force or the threat of force to recapture his chattels from a tortfeasor who has stolen them, has a specialized application in the shopkeepers’ privilege to reasonably detain individuals whom they reasonably believe to be in possession of shoplifted goods. ***_Although the privilege usually applies as a defense to a false imprisonment action, it is equally applicable as a defense to other intentional torts._*** Hence, if the security guard’s belief that the shopper was a shoplifter was reasonable, the defense would be available and the store would not be liable for the assault.

Question 144

One may use only reasonable force to defend property. A landowner may not use force that will cause death or serious bodily harm. Furthermore, one may not use indirect deadly force such

Answer 144

**as a trap, spring gun, or _vicious dog_** when such force could not lawfully be directly used, e.g., against a mere trespasser.

Question 145

A person may interfere with the real or personal property of another when the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and the threatened injury is substantially more serious than the invasion that is undertaken to avert it.

Answer 145

Here, it was necessary for the motorist to push the car into the landowner’s driveway to avoid the threat of other vehicles colliding with it on the narrow road, which would be a substantially more serious harm than any damage to the landowner’s property. Hence, the landowner was not entitled to move the car back into the road, and the motorist can recover from the landowner the damages that resulted from doing so. _(A) is wrong because the absence of “no trespassing” signs is irrelevant. Even if the landowner had posted “no trespassing” signs and the motorist saw them, the signs do not negate the privilege, which supersedes any right of the landowner to protect his property._ (C) is similarly incorrect; the fact that the motorist’s car damaged the landowner’s property does not extinguish the privilege. The motorist will be required to pay for the damage to the landowner’s flower bed because the privilege of private necessity is not absolute, but the landowner was not entitled to move the car off of his land and back into danger. (D) is incorrect. A landowner’s reasonable belief that he had a right to defend his property generally is not a defense to the entrant’s exercise of a privilege, such as necessity, that supersedes the defense of property right. Here, the landowner’s reasonable mistake that he had a right to remove the car is no defense.

Question 146

A “Good Samaritan” law refers to ...

Answer 146

a statute exempting licensed doctors, nurses, etc., who voluntarily and gratuitously render emergency treatment, from liability for ordinary negligence. Hence, it would not be used to establish breach of duty. … To prove breach of duty, it must be shown what in fact happened, and (based on these facts) that the defendant acted unreasonably. Proof of what happened may be established by either direct or circumstantial evidence. Other matters may also be offered into evidence to establish the standard by which defendant’s conduct is to be measured, such as: 1. Custom or usage; 2. Violation of an applicable statute; and 3. The circumstantial evidence doctrine of res ipsa loquitur.

Question 147

A violation of an applicable statute may be excused if:

Answer 147

(i) compliance with the statute would cause more danger than a violation (e.g., a defendant drives onto the wrong side of the road to avoid hitting children who dart into his path), or (ii) compliance with the statute would be beyond the defendant’s control (e.g., a blind pedestrian crosses against a light).

Question 148

The pedestrian will not prevail because the passenger’s grabbing of the wheel is the negligent conduct that caused the pedestrian’s injuries.

Answer 148

Here, the driver’s actions were an actual cause of the pedestrian’s injury because, but for the driver’s driving and the passenger’s grabbing the steering wheel, the injury to the pedestrian would not have happened. **However, the driver’s actions were not a proximate cause of the injury because the passenger’s grabbing of the steering wheel was a superseding intervening force.** ***_A superseding force is one that serves to break the causal connection between the initial wrongful act and the ultimate injury, and itself becomes a direct immediate cause of such injury._*** Thus, the first actor would be relieved of liability from the consequences of his antecedent conduct. **_The passenger’s conduct in suddenly grabbing the steering wheel was an unforeseeable intervening force creating an unforeseeable harmful result, and thus constituted a superseding force._** Consequently, the driver would be relieved of any negligence liability since the passenger’s actions were the proximate cause of the accident. (A) is incorrect. A clearly stated specific duty imposed by a statute may replace the more general common law duty of due care when (i) the plaintiff is within the class to be protected by the statute, and (ii) the statute was designed to prevent the type of harm suffered. The statute probably does not apply here because it is intended to keep unsafe drivers off the streets, and there is no indication that the driver is an unsafe driver, or that any driver could have prevented the injury when the passenger grabbed the steering wheel. Even if the statutory standard were applicable, a violation means only that plaintiff will have established a conclusive presumption of duty and breach of duty. It does not, however, establish causation or damages. Here, the fact that the driver does not have a valid license is not the proximate cause of the pedestrian’s injury, as discussed above. (B) is incorrect because the driver had no way of knowing that the passenger would grab the steering wheel. The driver’s conduct will be measured against that of the ordinary, prudent, reasonable person who drives a vehicle. **An ordinary, prudent, reasonable person would not have foreseen that one of his passengers would impulsively grab the steering wheel, and therefore there are no special safety precautions that the driver should have taken as part of his duty of care toward pedestrians.**

Question 149

The court should deny both motions and submit the case to the jury, because the jury could find that the father was negligent in not preventing his child from grabbing the steering wheel.

Answer 149

Under ordinary negligence principles, the father owed a duty to other motorists to maintain control of his vehicle. **_The jury could find that the father breached this duty of care by not noticing when his child unbuckled the seat belt and started climbing into the front seat, and not preventing the child from grabbing the steering wheel._** Hence, the case should go to the jury for a determination of whether the father was negligent. (A) is incorrect because the facts do not establish that the statutory standard of care is applicable to these facts. The precise standard of care in a common law negligence case may be established by proving that a statute providing for a criminal penalty applies to the particular case. If that is done, the statute’s more specific duty will replace the more general common law duty of care. **_Violation of the statute establishes negligence per se—a conclusive presumption of duty and breach of duty; the plaintiff must then establish causation and damages to complete the prima facie case of negligence._** **To prove that the statutory standard applies, the plaintiff must show that (i) she is in the class intended to be protected by the statute, and (ii) the statute was designed to prevent the type of harm that occurred.** Here, the statute likely was intended primarily to protect children from injuries caused by not being properly restrained in a vehicle involved in a collision. The motorist has presented no evidence that the statute was intended to protect her from the harm that she suffered. (C) is incorrect because the father is not vicariously liable for his child’s negligent conduct at common law. Any liability of the father in this case would arise from his own potential negligence in failing to control his child while driving.

Question 150

A firefighter engaged in fighting a fire on the landowner’s premises is (not) an invitee.

Answer 150

is NOT Under the “firefighter’s rule,” police officers and firefighters are generally treated like ***_licensees rather than invitees_***, based on public policy or assumption of risk grounds. **They cannot recover for a landowner’s failure to inspect or repair dangerous conditions that are an inherent risk of their law enforcement or firefighting activity.** A landowner DOES owe an invitee a duty to make inspections. The landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This general duty includes the duties owed to licensees (to warn of nonobvious dangers known to the landowner and to use ordinary care in active operations on the property), plus a duty to make reasonable inspections to discover dangerous conditions and make them safe. However, the duty to “make safe” does not require that the landowner must repair dangerous conditions to satisfy his duty to invitees. Depending on the nature of the danger, it is usually sufficient if a reasonable warning has been given.

Question 151

A licensee is one who enters on land with the landowner’s permission, express or implied, for her own purpose or business, rather than for the landowner’s benefit. The owner has a duty to

Answer 151

warn of or make safe a dangerous condition known to the owner that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover. As to a licensee, the landowner does NOT need to inspect for dangerous conditions on the land. Similarly, the landowner need NOT repair known dangerous conditions on the land of which the licensee is not aware; a warning generally will suffice.

Question 152

Under the facts here, the shopper was an invitee as to the store because he came onto the premises for a purpose connected with the store’s business. The store therefore owed him the duty to warn of nonobvious dangerous conditions and to make reasonable inspections to discover dangerous conditions and make them safe. The shopper’s testimony that the floor around the water appeared dirty suggests that the floor had not been swept or mopped for some time.

Answer 152

This is enough evidence to allow the jury to decide whether the store employees failed to reasonably inspect or make safe an area in which its invitees would walk, which would breach its duty to the shopper. The shopper’s lawsuit will survive a motion for summary judgment by the store without any additional evidence.

Question 153

For the doctrine of res ipsa loquitur to apply, the plaintiff must establish that

Answer 153

the accident causing his injury is the type that would not normally occur unless someone was negligent. The circumstantial evidence doctrine of res ipsa loquitur deals with situations where the fact that a particular injury occurred **_tends to establish a breach of a duty owed._** **Res ipsa loquitur requires that the plaintiff present evidence connecting the defendant with the negligence that occurred in order to support a finding of liability.** _This requirement can be satisfied by showing that the instrumentality that caused the injury was in the exclusive control of the defendant, but actual possession of the instrumentality is NOT necessary._ **It is not necessary to show that the defendant violated a statute establishing a standard of care. Establishing negligence by application of res ipsa loquitur is distinct from establishing negligence through the violation of a statute.** _The doctrine of res ipsa loquitur is a means of establishing breach of duty;_ it does not require a showing that the defendant’s conduct was the sole cause of the plaintiff’s injury. _Res ipsa loquitur does not establish breach of duty as a matter of law. It is still up to the trier of fact to accept or reject the evidence._ **One of the effects of res ipsa loquitur is that no directed verdict may be given for the defendant, because when the res ipsa element has been proved, _the plaintiff has made a prima facie case for negligence_. The doctrine, however, does NOT switch the burden of proof to the defendant and does NOT create a presumption of negligence.** _Furthermore, it does NOT require the defendant to present evidence of due care in rebuttal._ **If the jury elects not to infer negligence, it may find for the defendant even if the defendant presents no evidence on that issue.**

Question 154

The plaintiff’s action against the manufacturer is a products liability action based on a negligence theory. In such a case, the prima facie case consists of:

Answer 154

(i) a legal duty owed by the defendant to this plaintiff; (ii) breach of the duty; (iii) actual and proximate cause; and (iv) damages. **_Breach of duty requires showing_** **_(i) negligent conduct by the defendant leading to_** **_(ii) the supplying of a defective product by the defendant._** ***_The plaintiff may invoke res ipsa loquitur against the manufacturer if the error is something that usually does not occur without the negligence of the manufacturer._*** Here, the plaintiff has presented evidence that the manufacturer supplied a pipe that was so defective as to be unreasonably dangerous (because of its premature corrosion). _The plaintiff can use res ipsa loquitur to show negligence because the manufacturer fabricated and installed the pipe and the premature corrosion would not likely have occurred without negligence on its part._ Because the plaintiff has presented evidence of the other elements of the prima facie case, it should withstand the defendant’s motion for directed verdict.

Question 155

The bottler is being sued on a negligence theory; thus, the thief must prove that the bottler failed to exercise ordinary, reasonable care in bottling and distributing the water. **Violation of a statute will establish a conclusive presumption of**

Answer 155

**duty and breach of duty.** ***_However, compliance with an applicable statute does not necessarily establish due care, because due care may require more than is called for by the statute._*** **Nevertheless, compliance with a statute is admissible as evidence that a defendant may have acted with due care.** Thus, the bottler could use its compliance with the water bottling statutes as a means of establishing that it conformed with its duty to use ordinary, reasonable care. (A) is incorrect because a products liability action based on negligence uses the same causation analysis as a standard negligence case. _Thus, a defendant’s liability is not cut off by a foreseeable intervening force that comes into motion after the defendant’s original negligent act._ **Consequently, an intermediary’s negligent failure to discover a defect is not a superseding cause, and the defendant whose original negligence created the defect will be held liable along with the intermediary.** _Hence, the retailer’s possibly negligent failure to inspect the water for purity will not relieve the bottler of liability for the consequences of its own negligence, if any._ (C) will not be helpful to the bottler because this question allows for use of res ipsa loquitur. **Under this doctrine, if a plaintiff shows that his injury is of a type that would not normally occur in the absence of negligence, and that such negligence is attributable to the defendant (e.g., by showing that the instrumentality causing the injury was in the exclusive control of the defendant), the trier of fact is permitted to infer the defendant’s negligence.** Here, impurities would not normally get into the bottled water in the absence of negligence, and the fact that the container from which the thief drank was unopened allows the trier of fact to infer that the impurity entered the water due to negligence on the part of the bottler. Therefore, the thief is not required to introduce evidence as to how the impurity got into the water in order to prevail. (D) is incorrect because **the bottler’s duty of due care in the context of products liability arises from having placed the water into the stream of commerce.** Having done so, the bottler owes a duty to any foreseeable plaintiff, whether such person be an actual purchaser of the water or merely a user thereof. ***_With the placing of the water into the stream of commerce, the thief is a foreseeable plaintiff as a drinker of the water, regardless of the fact that he obtained the water by means of theft._***

Question 156

The homeowner has established that the electrical company owed a duty to him and that he has suffered harm from the fire caused by the short in the wiring. However, he has not established that the company breached any duty to him.

Answer 156

***_While breach of duty is ordinarily a question for the trier of fact, a plaintiff’s failure to offer any evidence on that element of the prima facie case will permit a directed verdict for the defendant._*** Under certain circumstances, the fact that a particular injury occurred may itself establish or tend to establish a breach of duty owed, permitting the trier of fact to infer the defendant’s liability. This is the doctrine of res ipsa loquitur (“the thing speaks for itself”). **However, for the doctrine to apply, the plaintiff must show that** **(i) the accident causing his injury is the type that would not normally occur unless someone was negligent;** **(ii) the negligence was attributable to the defendant; and** **(iii) the injury was not attributable to the plaintiff.** The second requirement can often be satisfied by showing that the instrumentality causing the injury was in the exclusive control of the defendant. **Here, however, the wiring was exposed to work done by other contractors in installing a chimney and a hot water pipe nearby and putting up the walls, and the homeowner has offered no evidence that the cut in the outer sheath of the wiring was present when the electrical company finished its work.** _Instead, the fact that the wiring had been approved by the building inspector suggests that the wiring was intact when the electrical company finished._ Given these facts, the homeowner has not presented evidence that the negligence was attributable to the defendant. Since res ipsa loquitur does not apply and no other evidence of breach of duty was established, the electrical company’s motion for a directed verdict should be granted.

Question 157

The court should grant the petroleum company’s motion for a directed verdict in its favor because the employee has not established a prima facie case against the petroleum company. The question does not indicate the theory of liability for the employee’s lawsuit; however, because strict liability is not applicable against the petroleum company for operation of the refinery (as discussed below) and because there is no evidence to establish that the petroleum company is vicariously liable for another party’s negligence here, the employee’s only feasible theory of liability is that the petroleum company itself was negligent. While the employee has established the negligence elements of duty, causation, and damages, he has not established the element of breach of duty.

Answer 157

While breach of duty is ordinarily a question for the trier of fact, plaintiff’s failure to offer any evidence on that element of the prima facie case will permit a directed verdict for defendant. Under certain circumstances, the fact that a particular injury occurred may itself establish or tend to establish a breach of duty owed, permitting the trier of fact to infer defendant’s liability. This is the doctrine of res ipsa loquitur. However, for the doctrine to apply, plaintiff must show that: (i) the accident causing his injury is the type that would not normally occur unless someone was negligent; (ii) the negligence was attributable to defendant; and (iii) the injury was not attributable to plaintiff. For the second requirement, plaintiff must establish that this type of accident ordinarily happens because of the negligence of someone in defendant’s position. This can often be done by showing that the instrumentality causing the injury was in the exclusive control of the defendant. **Here, however, the crane that caused the injury was designed and constructed by a company other than the petroleum company and was serviced and maintained by still another company not selected by the petroleum company.** Even assuming that the collapse of the crane was the type of accident that does not normally occur unless someone was negligent, there is no evidence that the petroleum company was the source of that negligence. **The accident could well be attributable to negligence on the part of the manufacturer or the company hired by the manufacturer to service the crane, or simply to a defect in the materials used to construct the crane, and there is no basis for the petroleum company’s being vicariously liable for the actions of either company, since the exceptions that impose vicarious liability for the conduct of an independent contractor do not apply.** Since no other evidence of breach of duty was established, the petroleum company’s motion for a directed verdict should be granted. (B) is incorrect because the petroleum company owed a duty to the employee since the employee was an invitee on the petroleum company’s property. An invitee is one who enters onto the premises in response to an express or implied invitation of the landowner or occupier, including those who enter for a purpose connected with the business interests of the landowner. Here, even though the employee was an employee of an independent contractor, he was on the premises for the benefit of the petroleum company’s refinery operations and at its invitation. Thus, he is an invitee to whom the petroleum company owed a duty of reasonable care. _(C) is incorrect because the refinery operation is not an abnormally dangerous activity. For strict liability to apply to an activity, the activity (i) must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors, and (ii) must not be a matter of common usage in the community._ Because an oil refinery can be operated in many locations without the risk of serious harm as long as due care is exercised, a court is not likely to find it to be an abnormally dangerous activity; hence, the petroleum company would not be strictly liable to the employee. (D) is incorrect because, as discussed above, the employee has presented no evidence of the petroleum company’s negligence and has therefore failed to establish his prima facie case.

Question 158

While criminal acts of third persons are intervening forces that operate on the situation created by the defendant’s negligence, they are independent actions rather than natural responses or reactions to the situation. This type of intervening force may be foreseeable, but only when

Answer 158

**the plaintiff can show that the defendant’s negligence increased the risk that the force would cause harm to the plaintiff. _If a defendant’s negligence created a foreseeable risk that a third person would commit a crime, the defendant’s liability will not be cut off by the criminal act._**

Question 159

Two neighbors who worked in a large city nearby alternated days driving. Because the commute took them through a crime-ridden area, one commuter was vigilant about keeping her car well-maintained, but the other failed to maintain her car or bring it in for servicing, despite the first commuter's complaints and dashboard warning lights indicating that it needed servicing. One evening after dark when the latter was driving them both home from work, her car died just as they were passing through a dangerous neighborhood. The passenger, who was calling for assistance on her cell phone, protested when the driver opened her door to look at the engine. Two assailants appeared and beat and robbed the driver and passenger. Does the passenger have a valid claim against the driver for her injuries? A. Yes, because the driver owed her the same increased level of care that a common carrier owed its passenger. B. Yes, because the jury could reasonably conclude that the driver's negligence increased the risk that the passenger would be the victim of criminal activity. C. No, because independent criminal acts of third persons are considered intervening forces that supersede any negligence by the driver. D. No, because the driver had no duty to prevent criminal attacks on the passenger.

Answer 159

The passenger has a valid claim against the driver because the jury could reasonably conclude that she was negligent. The driver owes a duty of ordinary care to his passenger regardless of whether that passenger is paying or not paying. The driver also owed a duty to act as a reasonable person would under emergency circumstances after the car was stopped. Her opening of the car door, as well as her failure to maintain her car, could be found to be negligent under the circumstances. The acts of the criminals were foreseeable, because every day the passenger and the driver commuted through this dangerous neighborhood.

Question 160

A law enforcement officer was transporting a prisoner on a plane to testify in a criminal case. Unknown to those on the plane, an assassin hired to kill the prisoner had bribed an airport baggage handler to sneak a timed-release crate of poisonous snakes into the cargo hold of the plane. Once the crate was triggered to open, the snakes were able to slither into the passenger compartment through gaps in the conduits between the cargo hold and the passenger compartment. In the ensuing panic caused by the snakes, the officer was struck in the head by a fire extinguisher that another passenger threw at a snake, and suffered a severe concussion. The officer filed suit against numerous parties, including the person who designed the conduit system on that type of plane. At trial, evidence established that the design for the conduit system that he used had been rejected in the industry because of the danger of pressure loss between the cargo hold and the passenger compartment. An industry-approved design that the designer could have used would have kept the snakes from getting into the passenger compartment of the plane. As between the officer and the designer, which party is likely to prevail? A The officer, because the designer is strictly liable for designing the conduit system of the plane. B The officer, because of the high degree of care owed to passengers of a common carrier. C The designer, because the assassin's actions were an unforeseeable intervening force. D The designer, because the officer was injured by another passenger rather than a snake.

Answer 160

The designer will prevail because the assassin’s actions were an unforeseeable intervening force. To establish a prima facie case for negligence, the following elements must be proved: (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 an unreasonable risk of injury; (ii) breach of that duty by the defendant; (iii) the breach of the duty by the defendant was the actual and proximate cause of the plaintiff’s injury; and (iv) damage to the plaintiff’s person or property. The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of, and within the increased risk caused by, his acts. **An indirect cause case is one where the facts indicate that a force came into motion after the time of defendant’s negligent act and combined with the negligent act to cause injury to the plaintiff.** **_Whether an intervening force will cut off the defendant’s liability for the plaintiff’s injury and be deemed superseding is determined by foreseeability._** Here, the designer, as a professional designing a component of a plane, owed a duty of care to passengers such as the officer. He breached that duty of care by using a design for the conduit system that had been rejected in the industry because of the danger of pressure loss. His breach was the actual cause of the officer’s harm because, but for his use of that design, the snakes would not have gotten into the passenger compartment of the plane. However, the conduct of the assassin in causing snakes to be placed on the plane is an unforeseeable intervening force. While criminal acts of third persons may be foreseeable if the defendant’s negligence increased the likelihood of the crime being committed, there is nothing to suggest that the designer’s negligence had any influence on the assassin’s conduct. Hence, that conduct cuts off the designer’s liability to the officer for the negligent design of the conduit system. (A) is incorrect. To establish strict tort liability, the plaintiff must prove that the defendant is a commercial supplier of a product. The designer, however, provided a service of designing a conduit system in a plane; because the facts do not suggest that he is a commercial supplier of a product, he cannot be held strictly liable. (B) is incorrect. Even assuming that the designer would be held to the high degree of care that common carriers owe their passengers, the officer must still establish the other elements of the tort. As discussed above, he would not be able to establish proximate cause under these facts. (D) is incorrect because the response by the other passenger is a foreseeable “reaction” force that does not cut off the causal connection between the act and the harm. If the designer were deemed to be a proximate cause of the snakes getting into the passenger compartment, the fact that the officer’s injury was caused by the reaction of another passenger rather than a snakebite would not matter.

Question 161

Depending on the circumstances, strict liability may be imposed on the owners of wild animals, domestic animals, and trespassing animals.

Answer 161

Unless an owner of wild animals can rely on a public duty exception (e.g., a zookeeper), the owner is strictly liable for injuries caused by the wild animals, even those kept as pets. An owner is strictly liable for the damage done by the trespass of his animals (other than household pets) as long as the damage was _reasonably foreseeable_. It does not matter that the owner acted with reasonable care to keep them from trespassing. Normally, the owner of a domestic animal is not strictly liable for injuries it causes. Strict liability will attach, however, if the owner _knows of the domestic animal’s dangerous propensities_ (i.e., propensities more dangerous than normal for that species). **This rule applies even if the animal has never injured anyone.**

Question 162

An activity may be characterized as abnormally dangerous if it creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors. Determining whether an activity is abnormally dangerous is (not) a question of fact for the jury to decide.

Answer 162

is NOT a question of fact for the jury to decide; rather, it is a question of law that the court can decide on a motion for a directed verdict. It is incorrect that strict liability will arise from any type of harm caused by the activity. 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 condition or thing involved. _It is also incorrect that the activity must be considered abnormally dangerous in every community. Courts generally impose a requirement that the activity must not be a matter of common usage in the community where it takes place. An activity may be considered abnormally dangerous in some areas but not in others._ **_The fact that the defendant did not foresee a risk of harm will not negate a claim of strict liability for an abnormally dangerous activity. To prevail, a plaintiff need only show that a reasonable person could have foreseen the risk of harm, regardless of whether the defendant did not._** **_If the plaintiff was not foreseeable, the strict liability claim is not established._** The defendant's liability for an abnormally dangerous activity extends only to foreseeable plaintiffs, who are persons to whom a reasonable person would have foreseen a risk of harm under the circumstances. Note, though, that the nature of the abnormally dangerous activity may create a large class of foreseeable plaintiffs. **_If the type of harm was not foreseeable, the plaintiff cannot establish a strict liability claim_**. 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 condition or thing involved. **_An unforeseeable intervening force may allow a defendant to avoid liability in a strict liability action for an abnormally dangerous activity._** The same rules govern causation for strict liability as they do for negligence, and thus a defendant’s liability may be cut off by an unforeseeable intervening force that brings about the injury.

Question 163

The carrier’s transport of explosives likely qualifies as an abnormally dangerous activity because: (i) it creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and (ii) the activity is not a matter of common usage in the community. However, the scope of liability extends only to the dangers that would be anticipated from the activity involved; strict liability does not apply to harms that were not caused by the normally dangerous aspect or propensity of the activity.

Answer 163

Here, the carrier’s activity is subject to strict liability because of the danger of explosion from the truck’s cargo, but not from a crash by itself. Because the motorist’s injuries were not caused by an explosion, strict liability does not apply. The carrier would be liable for the injuries from the crash only if the motorist established negligence. (A) is incorrect because it states the standard for strict liability for defective products, which requires that the defendant be a commercial supplier of the defective product, i.e., someone in the chain of distribution of the product. Here, the carrier is not a commercial supplier of the tire that failed; rather, it is the purchaser or consumer of the tire. (D) is incorrect. It is questionable whether the negligence by the local authorities could be considered an intervening force, which must come into play after the culpable conduct by the defendant. Even if it were an intervening force, it likely would not be considered so extraordinary as to be an unforeseeable intervening force. Hence, it would not constitute a superseding force that would break the causal connection between the motorist’s injury and the carrier’s actions.

Question 164

The court should grant the homeowner’s motion for judgment as a matter of law because the driver has not established a prima facie case against the homeowner. ## Footnote **An owner of wild (dangerous) animals is strictly liable for injuries caused by those animals as long as ...**

Answer 164

**... the person injured did nothing, voluntarily or consciously, to bring about the injury.** **However, strict liability _generally is not imposed in favor of undiscovered trespassers_ against landowners in the absence of negligence, such as when the landowner knows that the trespassers are on the land and fails to warn them of the animal.** Here, despite the fact that the _driver did not intend to enter the homeowner’s land_ (and thus would not be liable for the intentional tort of trespass), his status on the homeowner’s land is that of a trespasser rather than a licensee or invitee. The driver has presented no evidence of negligence on the homeowner’s part and therefore has not established a prima facie case against the homeowner.

Question 165

The hiker will not prevail because strict liability does not apply to a bull, which is a

Answer 165

**_a domestic animal_**. The owner of a domestic animal, including a farm animal, is not strictly liable for injuries it causes, **as long as the owner has no knowledge that the animal has abnormally dangerous propensities** (i.e., propensities more dangerous than normal for that species). A bull is a domestic animal, and nothing in the facts suggests that the bull was more dangerous than normal for that type of animal. Hence, strict liability will not apply. (A) is incorrect because the rule for trespassing animals does not apply. **The owner of a trespassing animal is strictly liable for harm done by the trespass as long as it was reasonably foreseeable.** Here, the bolt of lightning caused the fence to break and allowed the bull to escape. This unforeseeable intervening force was the cause of the trespass; hence, the strict liability rule for trespassing animals does not apply here. (D) is incorrect because **the hiker’s status as a trespasser on the neighbor’s land is irrelevant as to the farmer’s liability. If the hiker were a trespasser on the farmer’s land, strict liability would not apply even if the bull were abnormally dangerous, but the farmer’s liability is not affected by the hiker’s status as to the neighbor.**

Question 166

Unlike with products liability cases based on negligence, those based on strict liability do not require that suppliers have an opportunity to inspect.

Answer 166

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. **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.** The failure of a **_retailer**_ to take action after discovering a dangerous defect may prevent establishing causation against a _**manufacturer_** in a strict products liability action. The same concepts of proximate cause that govern negligence and strict liability actions are applicable to strict liability actions for defective products. As with products liability cases based on negligence, the _negligent failure of a retailer to discover a dangerous defect does not cut off the supplier’s strict liability. On the other hand, when the intermediary’s conduct becomes something more than ordinary foreseeable negligence, it becomes a superseding cause_. ***_Hence, the conduct of a retailer who discovered a dangerous defect and then took no action (such as alerting the manufacturer, warning the consumer, or removing the product from sale) constitutes more than ordinary foreseeable negligence and may cut off the manufacturer’s liability._*** The destruction of the product because of its dangerous defect does not prevent establishing actual cause. If the product has been destroyed, the plaintiff may rely on an inference that this type of product failure ordinarily would occur only as a result of a product defect. The retailer’s labeling of the product as its own will not affect the liability of the manufacturer.

Question 167

The rule that the defendant cannot avoid liability by showing negligent failure of an intermediary to discover the defect does not relate to actual cause; rather, it relates to

Answer 167

_the proximate cause principle_ that negligence of an intermediary is foreseeable and not a superseding cause. Under this principle, the intermediary’s negligence does not cut off the defendant’s liability for supplying a defective product. _The basic requirement to show actual cause is that the defect in the product must have existed when the product_ **_left_** _the defendant’s control._ When a defect is difficult to establish (such as if the product is destroyed), the plaintiff may rely on an inference that such a product failure ordinarily would occur only as a result of a _defect (similar to res ipsa loquitur)._ To show that inadequate warnings were an actual cause of the injury, the plaintiff is entitled to a presumption that an adequate warning would have been read and heeded (i.e., but for the lack of an adequate warning, the plaintiff would not have been injured).

Question 168

The defendant manufacturer has a defense if the retailer discovered the defect during the course of an inspection but failed to warn the buyer.

Answer 168

The same concepts of proximate cause governing general negligence and strict liability actions are applicable to strict liability actions for defective products. As with products liability cases based on negligence, the negligent failure of an intermediary to discover the defect does not cut off the supplier’s strict liability. But when the intermediary’s conduct becomes something more than ordinary foreseeable negligence, it becomes a superseding cause. _The manufacturer can argue that the retailer’s failure to take action after discovering a defect was not foreseeable and therefore cuts off the manufacturer’s liability for the defect._ ***_The fact that the retailer could have discovered the defect during a reasonable inspection but failed to make any inspection would generally not be relevant to the manufacturer’s defense; that typically would be considered ordinary foreseeable negligence which does not cut off the manufacturer’s liability._***

Question 169

To recover on a theory of strict tort liability, the man must show that his injuries were caused by an unreasonably dangerous defect in the boat that existed when the boat left the boating supply store’s control. A prima facie case in products liability based on strict tort liability consists of the following:

Answer 169

(i) the defendant is a commercial supplier; (ii) the defendant **_produced**_ or _**sold_** a defective product; (iii) the product was the actual and proximate cause of the plaintiff’s injury; and (iv) the plaintiff suffered damages **to person or property.** **Examples of commercial suppliers include manufacturers, retailers, wholesalers, and assemblers.** _The second element is established by proving that the product is in a defective condition unreasonably dangerous to users. A plaintiff need not prove that the defendant was at fault in selling or producing a dangerous product**.**_ **To prove actual cause, a plaintiff must trace the harm suffered to a defect in the product that existed when the product left the defendant’s control**. _Here, because the steering failed due to a defect present when the boat left the manufacturer, that defect must also have been present when the man bought the boat from the boating supply store, the retailer._ This defect rendered the boat unreasonably dangerous to users such as the man. The boating supply store sold the boat in this defective condition, and the defect actually and proximately caused the man to incur severe personal injuries. _(A) is incorrect because the inspection of the boat by the boating supply store prior to sale would be relevant to a negligence action, but not to one based on strict liability. Strict liability will still lie because the boat left the boating supply store’s control with a defect that rendered it unreasonably dangerous._ (B) is incorrect because ordinary contributory negligence is not a defense in strict liability actions in jurisdictions that do not apply comparative fault rules in these cases. To the extent that the man is “misusing” the boat by weaving in and out of the pylons, it is a reasonably foreseeable misuse that the commercial supplier must take into account. To avail itself of the man’s conduct as a defense, the boating supply store must show that the man voluntarily and unreasonably encountered a known risk. The facts herein do not indicate any such knowing assumption by the man of the risk of harm from the defective steering mechanism.

Question 170

A worker at a petrochemical plant was severely burned when a pipe carrying hot oil exploded. The worker brought a negligence action against the company that manufactured and installed the pipe. At trial, the worker established what happened and the injuries he suffered. He also presented evidence that the pipe burst because it had corroded at a higher than normal rate, which according to testimony of the worker's experts indicated a defect in the manufacture of the pipe. At the close of the worker's case, the manufacturer moved for a directed verdict. How should the court rule? (A) Deny the motion, because the pipe was defective and injured the worker. (B) Deny the motion, because the jury could find that the premature corrosion of the pipe would not have occurred absent negligence by the manufacturer. (C) Grant the motion, because the worker has not established that the manufacturer was negligent. (D) Grant the motion, because the pipe was in the petrochemical plant's possession when it exploded.

Answer 170

B The court should deny the motion because the jury may draw an inference of negligence from the plaintiff's evidence. The plaintiff's action against the manufacturer is a products liability action based on a negligence theory. In such a case, the prima facie case consists of: (i) a legal duty owed by the defendant to this plaintiff; (ii) breach of the duty; (iii) actual and proximate cause; and (iv) damages. Breach of duty requires showing (i) negligent conduct by the defendant leading to (ii) the supplying of a defective product by the defendant. The plaintiff may invoke res ipsa loquitur against the manufacturer if the error is something that usually does not occur without the negligence of the manufacturer. Here, the plaintiff has presented evidence that the manufacturer supplied a pipe that was so defective as to be unreasonably dangerous (because of its premature corrosion). The plaintiff can use res ipsa loquitur to show negligence because the manufacturer fabricated and installed the pipe and the premature corrosion would not likely have occurred without negligence on its part. Because the plaintiff has presented evidence of the other elements of the prima facie case, it should withstand the defendant's motion for directed verdict. (A) is incorrect because it implies liability without fault. As a plaintiff in a negligence action, the plaintiff must show that the manufacturer breached a duty owed to him, and that such breach caused his injuries. The mere fact that a pipe manufactured by the manufacturer exploded does not satisfy this burden. It is possible that the pipe could have exploded without any fault on the part of the manufacturer. (C) is incorrect because, as discussed above, the worker may rely on res ipsa loquitur here to establish an inference of negligence. (D) is incorrect because, despite the fact that the pipe was in the petrochemical plant's possession at the time of the explosion, the explosion itself may have been caused by negligence on the part of the manufacturer. Because the manufacturer fabricated and installed the pipe, the plaintiff may rely on res ipsa loquitur even though the manufacturer was not in possession of the pipe when the explosion occurred.

Question 171

A bottler markets water in lightweight plastic bottles that are sold by grocery stores, sporting goods stores, and other retail outlets. A hiker purchased several bottles of the water from a retailer and took them with him on a hike. While the hiker left his backpack unattended, a thief took one of the unopened containers without permission and drank some of the water. He immediately became violently ill. Tests were run on the water and showed that it contained impurities. If the thief maintains a negligence action against the bottler, which of the following arguments would be the most helpful to the bottler in avoiding liability? (A) The retailer had ample opportunity to test and inspect samples of the bottled water for purity and failed to do so. (B) The bottler bottled its water in compliance with numerous statutes that regulate the process of bottling water for human consumption. (C) The thief has failed to introduce any evidence at trial as to how the impurities got into the water he drank, and therefore has not met his burden of proof. (D) No reasonable person would have foreseen that the water would have been stolen and consumed by a thief.

Answer 171

B Evidence that the bottler complied with applicable statutes will be admissible to show that the bottler acted with ordinary, reasonable care, and is the only one of the listed arguments that would be helpful to the bottler. The bottler is being sued on a negligence theory; thus, the thief must prove that the bottler failed to exercise ordinary, reasonable care in bottling and distributing the water. Violation of a statute will establish a conclusive presumption of duty and breach of duty. However, compliance with an applicable statute does not necessarily establish due care, because due care may require more than is called for by the statute. Nevertheless, compliance with a statute is admissible as evidence that a defendant may have acted with due care. Thus, the bottler could use its compliance with the water bottling statutes as a means of establishing that it conformed with its duty to use ordinary, reasonable care. (A) is incorrect because a products liability action based on negligence uses the same causation analysis as a standard negligence case. Thus, a defendant's liability is not cut off by a foreseeable intervening force that comes into motion after the defendant's original negligent act. Consequently, an intermediary's negligent failure to discover a defect is not a superseding cause, and the defendant whose original negligence created the defect will be held liable along with the intermediary. Hence, the retailer's possibly negligent failure to inspect the water for purity will not relieve the bottler of liability for the consequences of its own negligence, if any. (C) will not be helpful to the bottler because this question allows for use of res ipsa loquitur. Under this doctrine, if a plaintiff shows that his injury is of a type that would not normally occur in the absence of negligence, and that such negligence is attributable to the defendant (e.g., by showing that the instrumentality causing the injury was in the exclusive control of the defendant), the trier of fact is permitted to infer the defendant's negligence. Here, impurities would not normally get into the bottled water in the absence of negligence, and the fact that the container from which the thief drank was unopened allows the trier of fact to infer that the impurity entered the water due to negligence on the part of the bottler. Therefore, the thief is not required to introduce evidence as to how the impurity got into the water in order to prevail. (D) is incorrect because the bottler's duty of due care in the context of products liability arises from having placed the water into the stream of commerce. Having done so, the bottler owes a duty to any foreseeable plaintiff, whether such person be an actual purchaser of the water or merely a user thereof. With the placing of the water into the stream of commerce, the thief is a foreseeable plaintiff as a drinker of the water, regardless of the fact that he obtained the water by means of theft.

Question 172

A fire broke out in a home that had been recently remodeled, destroying the house and injuring the homeowner. An investigation by the fire marshal established that the fire started from a short in some wiring behind a wall. A small section of wiring that ran to an outlet through a narrow gap between a furnace chimney and a hot water pipe had had part of its outer sheath cut off. The homeowner filed suit against the electrical company that did the rough wiring. The parties stipulated for trial that the company had installed the wiring in compliance with the blueprints, and that the wiring had been inspected and approved by the building inspector before the chimney and the water pipe had been installed and the walls put up, all by different contractors. At trial, the homeowner introduced the report of the fire marshal establishing how the fire started, and evidence of his medical expenses and other damages. At the end of the homeowner's case, the electrical company's attorney rested her case and moved for a directed verdict. The homeowner's attorney also moved for a directed verdict. How should the court rule on the directed verdict motions? (A) Deny the electrical company's motion and grant the homeowner's motion for a directed verdict, because a short in the wiring caused the homeowner's injuries. (B) Deny the electrical company's motion and grant the homeowner's motion for a directed verdict, because the company failed to rebut the presumption of negligence that the homeowner has established. (C) Deny the homeowner's motion and grant the electrical company's motion for a directed verdict, because the wire could have been damaged by another contractor. (D) Deny both directed verdict motions, because the homeowner has presented enough evidence to submit the case to the jury.

Answer 172

C The court should grant the electrical company's motion for a directed verdict because the homeowner has not established a prima facie case of negligence on the company's part. The homeowner has established that the electrical company owed a duty to him and that he has suffered harm from the fire caused by the short in the wiring. However, he has not established that the company breached any duty to him. While breach of duty is ordinarily a question for the trier of fact, a plaintiff's failure to offer any evidence on that element of the prima facie case will permit a directed verdict for the defendant. Under certain circumstances, the fact that a particular injury occurred may itself establish or tend to establish a breach of duty owed, permitting the trier of fact to infer the defendant's liability. This is the doctrine of res ipsa loquitur ("the thing speaks for itself"). However, for the doctrine to apply, the plaintiff must show that (i) the accident causing his injury is the type that would not normally occur unless someone was negligent; (ii) the negligence was attributable to the defendant; and (iii) the injury was not attributable to the plaintiff. The second requirement can often be satisfied by showing that the instrumentality causing the injury was in the exclusive control of the defendant. Here, however, the wiring was exposed to work done by other contractors in installing a chimney and a hot water pipe nearby and putting up the walls, and the homeowner has offered no evidence that the cut in the outer sheath of the wiring was present when the electrical company finished its work. Instead, the fact that the wiring had been approved by the building inspector suggests that the wiring was intact when the electrical company finished. Given these facts, the homeowner has not presented evidence that the negligence was attributable to the defendant. Since res ipsa loquitur does not apply and no other evidence of breach of duty was established, the electrical company's motion for a directed verdict should be granted. (C) is therefore correct, and (B) and (D) are incorrect. (B) is also incorrect because the homeowner's motion for a directed verdict would be denied even if he had established res ipsa loquitur. Establishing res ipsa loquitur merely creates a permissible inference of negligence; it does not create a presumption of negligence. Where the res ipsa loquitur element has been proved, the plaintiff has established a prima facie breach of duty on the defendant's part and no directed verdict may be given for the defendant. However, it does not require the defendant to present evidence to rebut a presumption. The trier of fact is free to accept the inference of negligence that has been created and find for the plaintiff or reject the inference of negligence and find for the defendant, even if the defendant offers no other evidence on the issue. Thus, the court would not grant the homeowner's motion for a directed verdict even if he had established res ipsa loquitur. (A) is incorrect because the electrical company is not strictly liable for the short in the wiring. The homeowner's failure to offer some evidence of negligence on the part of the electrical company will allow the electrical company to prevail.

Question 173

A petroleum company operated refineries in several states and was also engaged in the manufacture of a variety of petrochemical products. The company hired an industrial cleaning service to thoroughly clean one of its refineries. While one of the cleaning service's employees was engaged in routine cleaning activities at the refinery, one of the support legs on a crane suddenly gave way, causing part of the crane to fall onto a pipe carrying hot oil, cracking it open. The employee had his back to the pipe at the time and hot oil squirted over his back and legs, causing severe burns. The employee filed suit against the petroleum company for his injuries. The parties stipulated for trial that the crane had been designed and constructed by a crane construction specialist and was serviced at regular intervals by a reputable crane maintenance company selected by the crane construction company. The employee testified at the trial that he was injured when the pipe cracked open and submitted his medical bills and other evidence of damages. The employee introduced no further evidence. At the conclusion of the employee's case, the petroleum company moved for a directed verdict in its favor. Should the directed verdict be granted? (A) Yes, because the employee has done nothing to connect the petroleum company to any negligent activity that might have caused the accident. (B) Yes, because the petroleum company did not owe a duty to an employee of an independent contractor. (C) No, because the petroleum company is strictly liable to the employee for his injuries. (D) No, because a jury could reasonably conclude, based on the evidence presented by the employee, that the petroleum company was negligent.

Answer 173

A The court should grant the petroleum company's motion for a directed verdict in its favor because the employee has not established a prima facie case against the petroleum company. The question does not indicate the theory of liability for the employee's lawsuit; however, because strict liability is not applicable against the petroleum company for operation of the refinery (as discussed below) and because there is no evidence to establish that the petroleum company is vicariously liable for another party's negligence here, the employee's only feasible theory of liability is that the petroleum company itself was negligent. While the employee has established the negligence elements of duty, causation, and damages, he has not established the element of breach of duty. While breach of duty is ordinarily a question for the trier of fact, plaintiff's failure to offer any evidence on that element of the prima facie case will permit a directed verdict for defendant. Under certain circumstances, the fact that a particular injury occurred may itself establish or tend to establish a breach of duty owed, permitting the trier of fact to infer defendant's liability. This is the doctrine of res ipsa loquitur. However, for the doctrine to apply, plaintiff must show that: (i) the accident causing his injury is the type that would not normally occur unless someone was negligent; (ii) the negligence was attributable to defendant; and (iii) the injury was not attributable to plaintiff. For the second requirement, plaintiff must establish that this type of accident ordinarily happens because of the negligence of someone in defendant's position. This can often be done by showing that the instrumentality causing the injury was in the exclusive control of the defendant. Here, however, the crane that caused the injury was designed and constructed by a company other than the petroleum company and was serviced and maintained by still another company not selected by the petroleum company. Even assuming that the collapse of the crane was the type of accident that does not normally occur unless someone was negligent, there is no evidence that the petroleum company was the source of that negligence. The accident could well be attributable to negligence on the part of the manufacturer or the company hired by the manufacturer to service the crane, or simply to a defect in the materials used to construct the crane, and there is no basis for the petroleum company's being vicariously liable for the actions of either company, since the exceptions that impose vicarious liability for the conduct of an independent contractor do not apply. Since no other evidence of breach of duty was established, the petroleum company's motion for a directed verdict should be granted. (B) is incorrect because the petroleum company owed a duty to the employee since the employee was an invitee on the petroleum company's property. An invitee is one who enters onto the premises in response to an express or implied invitation of the landowner or occupier, including those who enter for a purpose connected with the business interests of the landowner. Here, even though the employee was an employee of an independent contractor, he was on the premises for the benefit of the petroleum company's refinery operations and at its invitation. Thus, he is an invitee to whom the petroleum company owed a duty of reasonable care. (C) is incorrect because the refinery operation is not an abnormally dangerous activity. For strict liability to apply to an activity, the activity (i) must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors, and (ii) must not be a matter of common usage in the community. Because an oil refinery can be operated in many locations without the risk of serious harm as long as due care is exercised, a court is not likely to find it to be an abnormally dangerous activity; hence, the petroleum company would not be strictly liable to the employee. (D) is incorrect because, as discussed above, the employee has presented no evidence of the petroleum company's negligence and has therefore failed to establish his prima facie case.

Question 174

Which of the following situations involves a common intervening force that courts almost always find foreseeable? (A) A roofer negligently leaves a hammer on the plaintiff's roof, and a strong wind blows the hammer off the roof, where it strikes the plaintiff (B) A parking lot attendant negligently leaves the keys to the plaintiff's car inside it with the doors unlocked, and a thief steals the car (C) A defendant negligently causes a plaintiff to break her leg, and while walking on her crutches, the plaintiff loses her balance and injures herself (D) A defendant negligently blocks a sidewalk, forcing the plaintiff to walk in the roadway, where he is struck by a negligently driven car

Answer 174

C If the plaintiff loses her balance while on crutches and injures herself, this involves an intervening force that is a normal response or reaction to the situation created by the defendant's act. This is a subsequent accident situation, where the plaintiff suffers a subsequent injury following her original injury, and the original injury was a substantial factor in causing the second accident. This is a type of intervening force that courts almost always find foreseeable. The other situations involve intervening forces that operate on a situation created by a defendant's negligence but are independent actions, rather than natural responses or reactions to the situation. An independent negligent act of a third person, a criminal act of a third person, and an act of God are all independent intervening forces. While these may be found to be foreseeable if the defendant's negligence created a significant risk that these forces would cause harm to the plaintiff, other types of intervening forces are deemed foreseeable because they are normal responses or reactions to the situation created by the defendant's act.

Question 175

Two neighbors who worked in a large city nearby alternated days driving. Because the commute took them through a crime-ridden area, one commuter was vigilant about keeping her car well-maintained, but the other failed to maintain her car or bring it in for servicing, despite the first commuter's complaints and dashboard warning lights indicating that it needed servicing. One evening after dark when the latter was driving them both home from work, her car died just as they were passing through a dangerous neighborhood. The passenger, who was calling for assistance on her cell phone, protested when the driver opened her door to look at the engine. Two assailants appeared and beat and robbed the driver and passenger. Does the passenger have a valid claim against the driver for her injuries?

Answer 175

The passenger has a valid claim against the driver because the jury could reasonably conclude that she was negligent. The driver owes a duty of ordinary care to his passenger regardless of whether that passenger is paying or not paying. The driver also owed a duty to act as a reasonable person would under emergency circumstances after the car was stopped. Her opening of the car door, as well as her failure to maintain her car, could be found to be negligent under the circumstances. The acts of the criminals were foreseeable, because every day the passenger and the driver commuted through this dangerous neighborhood. (A) is incorrect because this is the standard of care owed to a paying passenger. (C) is incorrect because whether criminal acts of third persons are superseding depends on foreseeability. Here, the criminal activity was foreseeable under the circumstances and therefore does not constitute a superseding cause. (D) is incorrect. The driver owed a duty to her passenger to use reasonable care while in this dangerous area.

Question 176

A doorman negligently locked a door that an office worker was intending to use to exit an office building, so the worker was forced to use a different exit. As she stepped onto the sidewalk outside the building, a car careened out of control on the street and jumped the curb. The car struck and injured the worker and then drove off. The driver was not found. The worker brought suit against the doorman, seeking damages for her injuries. At trial, the parties stipulated that the doorman was negligent in locking the door and that the worker suffered injuries when she was struck by the car. The worker also established that if she had exited from the door she was intending to, she would not have been struck by the car. At the end of the worker's case, the doorman moved for a directed verdict in his favor. How should the judge rule?

Answer 176

Grant the motion, because the car was an unforeseeable intervening force. The court should grant the motion because the evidence establishes that the car was a superseding force that cut off the doorman's liability for his negligence under proximate cause principles. The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of, and within the increased risk caused by, his acts. An indirect cause case is one where the facts indicate that a force came into motion after the time of defendant's negligent act and combined with the negligent act to cause injury to the plaintiff. Whether an intervening force will cut off the defendant's liability for the plaintiff's injury and be deemed superseding is determined by foreseeability. Here, nothing in the facts suggests that a car jumping the curb was a foreseeable consequence of the doorman's negligently locking the door. Hence, the judge should grant the motion because the worker has failed to establish the proximate cause element of his prima facie case. (A) is wrong because the doorman was also an actual cause of the worker's injuries-but for the doorman's negligence, the worker would not have been on the sidewalk where the car jumped the curb. (C) is wrong because it establishes only actual cause. A directed verdict is appropriate because no evidence establishes the proximate cause element of the worker's case. (D) is wrong because the facts do not establish foreseeability. While the doorman's negligence was a concurring actual cause of the worker's injury, it was not a proximate cause because the injury that occurred was unforeseeable.

Question 177

A barge transporting toxic chemical waste down a river lost its navigation control when its propeller broke without warning. The barge struck a dinner cruise ship, injuring several passengers, but fortunately the toxic waste did not leak from the barge. In an action alleging strict liability against the barge operator, an injured cruise ship passenger established the above facts and presented evidence of her injuries. The barge operator presented evidence that the propeller failure was caused by a hidden defect in the metal of one of the propeller blades that could not be detected by routine inspection. The propeller was manufactured by a subcontractor of the shipbuilder that assembled the barge, and these types of propellers had not previously caused any problems. The barge operator also presented evidence that the local authorities were supposed to restrict other ships' access to the river while the barge was in transit but had failed to do so. The jurisdiction has decided that the transport of toxic chemical waste is an abnormally dangerous activity. In this action, is the passenger likely to prevail? (A) Yes, because the propeller was in a defective condition that made it unreasonably dangerous. (B) Yes, because the barge operator was engaged in an abnormally dangerous activity. (C) No, because the injury did not arise from the dangerous aspect of the activity. (D) No, because the negligence of the local authorities in failing to restrict access to the river while the barge was in transit was a superseding cause of the passenger's injuries.

Answer 177

C The passenger is not likely to prevail in a strict liability action because her injury did not arise from the abnormally dangerous aspect of the barge operator's activity. The barge operator's transport of toxic waste has been determined to be an abnormally dangerous activity. An activity is considered abnormally dangerous when: (i) it creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and (ii) the activity is not a matter of common usage in the community. However, the scope of liability extends only to the dangers that would be anticipated from the activity involved; strict liability does not apply to harms that were not caused by the normally dangerous aspect or propensity of the activity. Here, the barge operator's activity is subject to strict liability because of the danger of toxic waste escaping from the barge, but not from a crash by itself. Because the passenger's injuries were not caused by exposure to toxic waste, strict liability does not apply. The barge operator would be liable for the injuries from the crash only if the passenger established negligence. (A) is incorrect because it states the standard for strict liability for defective products, which requires that the defendant be a commercial supplier of the defective product, i.e., someone in the chain of distribution of the product. Here, the barge operator is not a commercial supplier of the propeller that failed; rather, it is the purchaser or consumer of the propeller. (B) is incorrect because, as discussed above, strict liability does not apply to the harm that occurred here. (D) is incorrect. It is questionable whether the negligence by the local authorities could be considered an intervening force, which must come into play after the culpable conduct by the defendant. Even if it were an intervening force, it likely would not be considered so extraordinary as to be an unforeseeable intervening force. Hence, it would not constitute a superseding force that would break the causal connection between the passenger's injury and the barge operator's actions.

Question 178

The driver of a tanker truck was transporting radioactive waste from a nuclear power plant to a permanent storage facility in a remote western region of the United States. After driving all night, the driver fell asleep at the wheel and the truck crossed over the center line, off the road, and onto a homeowner's property, coming to rest after crashing into several glass cases containing the homeowner's collection of poisonous snakes, the keeping of which was permitted by local ordinance. When the driver exited the truck, he was bitten on the leg by one of the poisonous snakes and became seriously ill. The driver brought an action against the homeowner for his injuries. The parties stipulated to the above facts, and that the driver violated a state statute by driving off of the road. Both parties moved for judgment as a matter of law on the liability issue. How should the court rule? (A) Grant the driver's motion and deny the homeowner's motion, because the homeowner is strictly liable for the injury caused by the snake. (B) Deny the driver's motion and grant the homeowner's motion, because the driver was a trespasser on the homeowner's property. (C) Deny the driver's motion and grant the homeowner's motion, because the driver's violation of the state statute establishes contributory negligence as a matter of law. (D) Deny both parties' motions, because both parties were engaged in an activity for which strict liability is imposed.

Answer 178

The court should grant the homeowner's motion for judgment as a matter of law because the driver has not established a prima facie case against the homeowner. An owner of wild (dangerous) animals is strictly liable for injuries caused by those animals as long as the person injured did nothing, voluntarily or consciously, to bring about the injury. However, strict liability generally is not imposed in favor of undiscovered trespassers against landowners in the absence of negligence, such as when the landowner knows that the trespassers are on the land and fails to warn them of the animal. Here, despite the fact that the driver did not intend to enter the homeowner's land (and thus would not be liable for the intentional tort of trespass), his status on the homeowner's land is that of a trespasser rather than a licensee or invitee. The driver has presented no evidence of negligence on the homeowner's part and therefore has not established a prima facie case against the homeowner. (A) is wrong because, as discussed above, the homeowner is not strictly liable to the driver because the driver was a trespasser. (C) is incorrect because the driver will not prevail regardless of whether he was contributorily negligent, because he cannot establish a prima facie case against the homeowner in either negligence or strict liability. (D) is incorrect for several reasons: While the driver's transport of radioactive waste may have been an abnormally dangerous activity, that danger had nothing to do with the accident that occurred. Furthermore, the fact that the driver may have been engaged in an abnormally dangerous activity would not prevent him from recovering damages from another tortfeasor if he established the requisite prima facie case. Finally, the fact that the parties were engaged in activities potentially creating strict liability has nothing to do with whether issues of fact regarding liability still exist that would require denying both motions and going to trial.

Question 179

A bolt of lightning struck a tree, causing it to fall on a farmer's fence which enclosed a pasture containing the farmer's large bull. The bull escaped through the broken fence and entered the neighbor's property. It gored a hiker who was crossing the neighbor's property without permission. In the hiker's action against the farmer based on strict liability, is the hiker likely to prevail?

Answer 179

The hiker will not prevail because strict liability does not apply to a bull, which is a domestic animal. The owner of a domestic animal, including a farm animal, is not strictly liable for injuries it causes, as long as the owner has no knowledge that the animal has abnormally dangerous propensities (i.e., propensities more dangerous than normal for that species). A bull is a domestic animal, and nothing in the facts suggests that the bull was more dangerous than normal for that type of animal. Hence, strict liability will not apply. (A) is incorrect because the rule for trespassing animals does not apply. The owner of a trespassing animal is strictly liable for harm done by the trespass as long as it was reasonably foreseeable. Here, the bolt of lightning caused the fence to break and allowed the bull to escape. This unforeseeable intervening force was the cause of the trespass; hence, the strict liability rule for trespassing animals does not apply here. (B) is incorrect because, as discussed above, strict liability does not apply for domestic animals with normal dangerous propensities. Only domestic animals with propensities more dangerous than normal for the species may subject the owner to strict liability. (D) is incorrect because the hiker's status as a trespasser on the neighbor's land is irrelevant as to the farmer's liability. If the hiker were a trespasser on the farmer's land, strict liability would not apply even if the bull were abnormally dangerous, but the farmer's liability is not affected by the hiker's status as to the neighbor. Note that if strict liability applied for harm from an animal trespassing on a neighbor's property, the hiker's status as a trespasser might be relevant because strict liability applies only to injured persons who were rightfully on the property. However, as discussed above in (A), that liability is inapplicable here because the bull's trespass was unforeseeable.

Question 180

What is highly relevant for the defendant in defending a strict products liability claim?

Answer 180

The defendant manufacturer has a defense if the retailer discovered the defect during the course of an inspection but failed to warn the buyer. The same concepts of proximate cause governing general negligence and strict liability actions are applicable to strict liability actions for defective products. As with products liability cases based on negligence, the negligent failure of an intermediary to discover the defect does not cut off the supplier's strict liability. But when the intermediary's conduct becomes something more than ordinary foreseeable negligence, it becomes a superseding cause. The manufacturer can argue that the retailer's failure to take action after discovering a defect was not foreseeable and therefore cuts off the manufacturer's liability for the defect. The fact that the retailer could have discovered the defect during a reasonable inspection but failed to make any inspection would generally not be relevant to the manufacturer's defense; that typically would be considered ordinary foreseeable negligence which does not cut off the manufacturer's liability. Whether the retailer made a reasonable inspection of the product or that it was impossible to inspect the product are irrelevant to the retailer's defense. A retailer in a strict liability action may be liable for a manufacturing or design defect simply because it was a commercial supplier of a defective prod

Question 181

A man purchased a new power boat with an inboard engine from a boating supply store. The boating supply store properly inspected the boat before delivery, but did not detect a virtually invisible manufacturing defect in the boat's steering mechanism. Later that summer, the man was entertaining some friends on his boat on a lake near a dam. There were some warning pylons near the dam, warning boaters to stay clear. The man decided to show off for his friends by weaving his boat in and out of the warning pylons. As he rounded the last of them, the steering mechanism of his boat jammed, and the boat crashed into the dam. The man was severely injured. The man brings an action for damages against the boating supply store on a theory of strict liability in tort in a jurisdiction that does not apply its comparative fault rules to strict liability actions. Who will prevail?

Answer 181

To recover on a theory of strict tort liability, the man must show that his injuries were caused by an unreasonably dangerous defect in the boat that existed when the boat left the boating supply store's control; (C) is the only alternative that reflects this requirement. A prima facie case in products liability based on strict tort liability consists of the following: (i) the defendant is a commercial supplier; (ii) the defendant produced or sold a defective product; (iii) the product was the actual and proximate cause of the plaintiff's injury; and (iv) the plaintiff suffered damages to person or property. Examples of commercial suppliers include manufacturers, retailers, wholesalers, and assemblers. The second element is established by proving that the product is in a defective condition unreasonably dangerous to users. A plaintiff need not prove that the defendant was at fault in selling or producing a dangerous product. To prove actual cause, a plaintiff must trace the harm suffered to a defect in the product that existed when the product left the defendant's control. Here, because the steering failed due to a defect present when the boat left the manufacturer, that defect must also have been present when the man bought the boat from the boating supply store, the retailer. This defect rendered the boat unreasonably dangerous to users such as the man. The boating supply store sold the boat in this defective condition, and the defect actually and proximately caused the man to incur severe personal injuries. Thus, (C) states why the man will prevail. (A) is incorrect because the inspection of the boat by the boating supply store prior to sale would be relevant to a negligence action, but not to one based on strict liability. Strict liability will still lie because the boat left the boating supply store's control with a defect that rendered it unreasonably dangerous. (B) is incorrect because ordinary contributory negligence is not a defense in strict liability actions in jurisdictions that do not apply comparative fault rules in these cases. To the extent that the man is "misusing" the boat by weaving in and out of the pylons, it is a reasonably foreseeable misuse that the commercial supplier must take into account. To avail itself of the man's conduct as a defense, the boating supply store must show that the man voluntarily and unreasonably encountered a known risk. The facts herein do not indicate any such knowing assumption by the man of the risk of harm from the defective steering mechanism. (D) is incorrect because it does not establish the causation element. The boating supply store's strict tort liability depends on whether the steering mechanism failed because of a defect present at the time it sold the boat to the man. If the boat was not defective at the time of sale, or if any defect that was present had nothing to do with the failure of the steering mechanism, the boating supply store will not be liable for a subsequent failure of the steering mechanism from some other cause.

Question 182

A consumer purchased a grass trimmer from a hardware store. He took it out of the box and assembled it according to the instructions. He noticed that there were bolts and screws left over and some joints that could have accepted additional fasteners, but he just discarded the extra hardware. As he was using the trimmer, the housing came apart and a hard piece of plastic flew off. His neighbor, who was standing nearby, was struck in the eye by the piece of plastic and suffered permanent injuries. The neighbor sued the hardware store and the manufacturer of the trimmer in a strict liability action. Through discovery, it was determined that the instructions omitted a critical step in the assembly process that would have used the extra hardware, which is why the housing came apart, and that the manufacturer had received some complaints about the instructions previously. The hardware store had no knowledge of any complaints regarding any of the manufacturer's products. As to the hardware store, the neighbor will: Recover or not recover? Why?

Answer 182

Recover (B) The neighbor will recover against the hardware store. In a products liability action based on strict liability, the plaintiff need show only (i) the defendant is a commercial supplier, (ii) the defendant produced or sold a defective product, (iii) the defective product was an actual and proximate cause of the plaintiff's injury, and (iv) the plaintiff suffered damages to person or property. Here, the hardware store is in the chain of supply of the product. The product was defective because the instructions omitted a critical part of the assembly process. Finally, the omission was an actual and proximate cause of the neighbor's injury, allowing him to recover against the hardware store. As indicated by choice (B), an intermediary's negligent failure to recognize the danger does not cut off the supplier's strict liability. Answer (A) is incorrect because the manufacturer's awareness of the faulty instructions does not affect whether the hardware store will be liable. The hardware store was not aware of any problems with the product, but it is nevertheless liable as a commercial supplier. Answer (C) is incorrect. The neighbor, as a bystander, is within the foreseeable zone of danger and is therefore a foreseeable plaintiff who can recover in this action. Answer (D) is incorrect because the fact that the hardware store was not at fault and had no opportunity to inspect is irrelevant. It is liable because it is a commercial supplier of a defective product and the neighbor is suing under a strict liability theory

Question 183

A homeowner purchased a ladder from a home supply retailer. While he was using the ladder, an improperly installed bolt fastening one of the rungs gave way, causing him to fall and break his leg. The homeowner sued the manufacturer of the ladder to recover damages for his injury. If it is established at trial that the home supply retailer could have discovered the defectively installed bolt if it had conducted a reasonable inspection of the ladder, what is the effect of the retailer's failure to inspect?

Answer 183

The failure of the home supply retailer to inspect the ladder has no legal effect on the manufacturer's liability, regardless of whether the plaintiff is suing in negligence or strict liability. Under either theory, an intermediary's negligent failure to discover a defect is not a superseding cause, so the defendant who supplied the defective product will still be liable. Thus, even if the home supply retailer were negligent in not discovering the defect, it would not relieve the manufacturer of liability.

Question 184

Under the doctrine of respondeat superior, an employer: A May be liable for negligently supervising an employee B Is liable for the tortious frolic of an employee C Is liable for all tortious acts committed by his employees D May be liable for an intentional tortious act committed by an employee

Answer 184

D Under the doctrine of respondeat superior, an employer is vicariously liable for tortious acts committed by his employees if the tortious acts occur within the scope of the employment relationship. Under this doctrine, an employer may be liable for an intentional tortious act committed by an employee. While the general rule is that intentional tortious conduct by employees is not within the scope of employment, courts will find intentional tortious conduct to be within the ambit of this relationship when (i) force is authorized in the employment; (ii) friction is generated by the employment; or (iii) the employee is furthering the business of the employer. An employer is not liable for ALL tortious acts committed by his employees ; the acts must be within the scope of the employment relationship. An employer is NOT liable for the tortious frolics of his employees. An employee on a delivery or business trip for his employer may commit a tort while deviating from the employer's business to run a personal errand. If the deviation was minor in time and geographic area, the employee will still be considered to be acting within the scope of employment, but a more major deviation is a "frolic" for which the employer would not be liable. While it is true that an employer may be directly liable for negligent supervision, the employer will NOT be liable for negligently supervising an employee under the respondeat superior doctrine, which only imposes vicarious liability. An employer's liability for negligent supervision will be direct liability rather than vicarious liability.

Question 185

Which of the following circumstances has no bearing on whether an employer will be vicariously liable for an employee's intentional tort? What does have bearing?

Answer 185

The employee was negligently supervised by the employer. Vicarious liability is derivatively imposed liability. The fact that the employee was negligently supervised by the employer has no bearing on whether the employer will be vicariously liable for the employee's intentional torts; rather, it will make it more likely that the employer will be directly liable for its own negligence. In contrast, the fact that force was authorized in the employment, friction was generated by the employment, or the employee was furthering the business of the employer make it more likely that the employee's intentional torts will be found to be within the scope of employment.

Question 186

A landlord employed his friend as the on-site manager of one of his apartment buildings despite being aware that he had previously been arrested for criminal battery, disorderly conduct, and driving while intoxicated. The manager did a good job dealing with the general maintenance of the apartment building, although the landlord was aware that he continued to drink heavily. One night the manager, who was extremely intoxicated, attempted to swat an insect on the ceiling of his apartment and could not do so after several attempts. Enraged, he took a pistol from his drawer and shot at the insect. The bullet missed the insect and passed through the ceiling of his apartment into the apartment above, lodging in the leg of a tenant's social guest. Does the guest have a viable cause of action against the landlord? (A) Yes, because the guest had been invited onto the property by the tenant. (B) Yes, because the landlord was aware of the manager's habitual drunkenness and propensity for violence. (C) No, because the landlord cannot be held liable for the manager's intentional torts. (D) No, because shooting an insect was outside the scope of the manager's employment.

Answer 186

B Because the landlord knew about the manager's continued heavy drinking and tendencies toward violence, the guest has a cause of action for negligence in the landlord's hiring of the manager. An employer owes a duty to all those who may foreseeably come into contact with his employee to exercise due care in the hiring, supervision, and retention of the employee, and the landlord's retention of the manager under these circumstances may be a breach of that duty. (A) is incorrect because the landlord's liability here is based on negligent hiring rather than the guest's status on the property. (C) is also incorrect. An employer can be held directly liable for the intentional tort of an employee if it was foreseeable and the employer was negligent in hiring or retaining the employee. (D) is a true statement that would be relevant for vicarious liability purposes. However, it does not preclude the landlord from being liable for his own negligence based on the foreseeability of his employee acting violently.

Question 187

A housecleaning agency was given a key to a customer's house so that the agency could have its employees clean while the homeowner was away. After a maid sent by the agency had finished and left the homeowner's house, she went back because she had forgotten her cigarettes. She neglected to lock the door when she left the second time because she was already late for the next job. When the homeowner returned after a few days away, she discovered that her house had been ransacked and several items of jewelry stolen. The front door was open, and there were no signs of forced entry. If the homeowner brings an action against the agency that employed the maid, what is the likely result?

Answer 187

The homeowner will prevail because the maid's negligence increased the risk of criminal conduct by a third party. Criminal acts and intentional torts of third persons are foreseeable independent intervening forces if the defendant's negligence created a foreseeable risk that they would occur. Here, the maid's failure to lock the door was negligent because it created a risk of burglary; hence, the burglary does not cut off the agency's liability for the maid's negligence. As the maid's employer, the agency is vicariously liable under respondeat superior. (A) is wrong because there is nothing in the facts to indicate that the homeowner waived her right to bring tort claims against the agency; having a contractual relationship with a party does not automatically preclude bringing a tort action against the party. (B) is wrong because the burglary was not a superseding cause of the loss; it was within the increased risk caused by the maid's negligence. (D) is wrong because she reentered to retrieve a personal item that she had brought with her when she went to the job; her return just to get the item was within the scope of her employmen

Question 188

A shopper was in a large department store that was remodeling its menswear department and had hired a contractor to do the work. A carpenter employed by the contractor was working on the remodeling job. When the carpenter left the store to take a break, she left a carpenter's level projecting out into one of the aisles, unbeknownst to any store employees. Shortly before she returned 15 minutes later, the shopper came down that aisle and tripped over the level. He fell and struck his head on the sharp corner of a display case. The shopper required hospitalization and sued the store for his injuries. Will the shopper prevail in his suit against the store?

Answer 188

Yes. The shopper will prevail because the employee of the contractor hired by the store left the level in the aisle. The general rule that a principal will not be vicariously liable for the acts of its independent contractor's agent is subject to several broad exceptions, including one for duties that are nondelegable because of public policy considerations. One of these duties is the duty of a business to keep its premises safe for customers. Hence, a business would be liable for the negligence of an employee of an independent contractor to the same extent as for the negligence of its own employee. Here, the carpenter was employed by the contractor, which was hired by the store. The carpenter breached the duty owed to customers such as the shopper by leaving the level projecting out into one of the aisles. The shopper was injured as a result, so he will prevail in a suit against the store. (B) is wrong. As part of the duty owed to customers, the store employees have a duty to make reasonable inspections of their premises to discover unsafe conditions (such as if a customer had spilled something slippery in an aisle). However, regardless of whether they had a reasonable time to discover the level, the store is liable because it is responsible for the carpenter's conduct. (C) is wrong because, as discussed above, the store is liable under these circumstances for the conduct of its independent contractor's employee. (D) is wrong because the store is liable regardless of the knowledge of its employees.

Question 189

developer constructed several small stores in a commercial district. She received a bid from a contractor to install awnings on the front windows of the stores. The developer had heard that the contractor did shoddy work, but the price was right and the contractor expressly assumed all of the risk of any liability. The developer subsequently sold one of the stores to a barber. A few months later, an awning collapsed without warning, injuring a customer who was about to enter the barbershop. An investigation by the building inspector revealed that the awning collapsed because the brackets used by the contractor were cheaper and weaker than the required brackets, although they looked the same. The developer and the contractor are now both bankrupt. If the customer sues the barber for his injuries, is the customer likely to prevail?

Answer 189

The customer is not likely to prevail because the barber had no opportunity to oversee the contractor's work. A property owner owes a duty to those adjacent to the premises to take due precautions to protect them from dangerous conditions, and a business owes its customers a duty to make reasonable inspections to discover and make safe any dangerous conditions. Further, that duty cannot be delegated to an independent contractor; the owner remains vicariously liable. However, nothing in the facts establishes that the barber breached his duty to the customer. There was nothing wrong with the brackets evident from a reasonable inspection, and the awning collapsed without warning. Further, the barber was not involved in hiring or supervising the contractor and would not be responsible for the contractor's negligence. Hence, because no facts point to negligence by the barber, the customer is not likely to prevail

Question 190

What are the three affirmative defenses to intentional torts?

Answer 190

Trespass to Chattels / Conversion 1) Intentional interference 2) with plaintiff's personal property if interference is slight --\> trespass to chattels if interference is large --\> conversion Personal property = chattels, i.e. anything you own except land and real estate Two ways to interfere with personal property: i. Damage it - scratch it, etc. ii. Taking it away from you - robbing you of it \*\*A mistake about the ownership of the items won't reduce liability Ex: you think you were working on your laptop, get frustrated that its not working, and throw it across the room breaking it --\> you acted intentionally at the moment and broke the laptop, even though you mistakenly thought it was yours --\> liable conversion What are the three affirmative defenses to intentional torts?

Question 191

Self Defense - property analysis in intentional torts

Answer 191

General self-defense principle: When a person has reasonable grounds to believe that he is being, or is about to be, attacked, he may use such force as is reasonably necessary for protection against the potential injury. Generally, one may use reasonable force to prevent the commission of a tort against her property. 1. Request to Desist Usually Required - a request to desist must precede the use of force, unless the circumstances make it clear that the request would be futile or dangerous. 2. Effect of Mistake - reasonable mistake is allowed as to the property owner's right to use force in defense of property where the mistake involves whether an intrusion has occurred or whether a request to desist is required. However, mistake is not allowed where the entrant has a privilege to enter the property that supersedes the defense of property right (see 4 below). In such a case the property owner is liable for mistakenly using force against a privileged entrant unless the entrant himself intentionally or negligently caused the mistake (e.g., by refusing to tell the property owner the reason for the intrusion). 3. Limited to Preventing Commission of Tort - defense of property is limited to preventing the commission of tort against the defendant's property. Thus, once the defendant has to been permanently dispossessed of the property and the commission of the tort is complete, she may not use force to recapture it. However, where one is in "hot pursuit" of someone who wrong-fully dispossessed her of her property, the defense still operates because the other is viewed as still in the process of committing the tort against the property. 4. Superseded by other Privileges - whenever an actor has a privilege to enter upon the land of another because of necessity, right of reentry, right to enter upon another's land to recapture chattels, etc., that privilege supersedes the privilege of the land possessor to defend her property How much Force may be used? One may use reasonable force to defend property. However, she may not use force that will cause death or serious bodily harm. (of course, if the invasion of property also entails a serious threat of bodily harm to the owner, she may then invoke the defense of self-defense and use deadly force). Further, one may not use indirect deadly force such as a trap, spring gun, or vicious dog when such force could not lawfully be directly used, e.g., against a mere trespasser.

Question 192

Four different standards of care - premises of liability

Answer 192

(1) Unknown trespasser on property - somebody comes into the land without permission onto the property and owner is unaware a. There is NO duty of care owed to unknown trespasser on property b. Will never ever win a negligence claim! 2. Discovered / anticipated trespasser on property - someone the possessor sees and is currently on the land. Anticipated situation is usually one where there is a pattern of trespassing in the past, and owner of the property knows about it. a. Duty to protect in this situation, only comes about only in 4-part test: i. (1) Hazardous condition must be artificial in nature. 1. Opposite of this is natural occurring condition 2. No duty is owed to naturally occurring hazards on the land. Ex: dead branch of tree, icy snow and conditions, etc. ii. (2) Condition must be highly dangerous! 1. No duty is owed to only those conditions that are moderately dangerous iii. (3) Hazard must be concealed 1. Danger cannot be obvious, if it is, then you owe no duty. 2. In such a situation, entrant can protect himself iv. (4) Hazard must have been on that the defendant knew about in the past b. In other words, the property owner in this situation will only protect entrant from known, man-made, highly dangerous, death traps (concealed) on the land ß this is only duty 3. Licensees a. Express or implied i. Both à Do not confer economic benefit on possessor of the land b. Classic example is social guest (friend who comes to watch the game), or someone who comes and knocks on the door and there is no "no soliciting", sign, there is implied consent and they are licensees. (ex: girl scouts) c. Duty = only Two part test i. (1) Hazard must be concealed 1. Can't be open or obvious ii. (2) Hazard must have been on that the defendant knew about in the past 1. same as above, but deleted highly dangerous or artificial condition reqs iii. So only duty is duty to protect licensee from known, death traps on the land (any level of danger), in other words: duty to warn of nonobvious dangerous conditions that are known 4. Invitees a. Enter with permission and confer benefit onto possessor. Classic example: is patron of restaurant. i. Don't have to give money, ex: if you go to church or go to museum. b. Duty i. (1) same duty as licensees plus ii. (2) condition is one that possessor knew about in advanced or could have discovered through a reasonable inspection 1. Inspection that would have been taken by reasonably prudent person. 2. Only reasonable inspection is required c. Def must protect from all reasonably knowable traps on the land. d. Duty to warn of nonobvious dangerous conditions that are known and to make reasonable inspections to discover dangerous conditions and make them safe

Question 193

The manufacturer’s awareness of the faulty instructions does not affect whether the hardware store will be liable.

Answer 193

The hardware store was not aware of any problems with the product, but it is nevertheless liable as a commercial supplier.

Question 194

The motorist will prevail because the car was dangerously defective. The motorist’s claim against the car manufacturer, as a commercial supplier of the product, likely would be based on strict liability in tort. As such, he would only need to establish that the car was in a defective condition unreasonably dangerous to users in order to recover. A defective door latch would be a dangerous defect.

Answer 194

(A) is incorrect because it is irrelevant. **Even if the motorist could have discovered the defect, his failure to discover it would be, at best, ordinary contributory negligence, which is not a defense to strict liability in tort in jurisdictions retaining traditional contributory negligence rules.** (C) is incorrect. In cases where a force came into motion after the time of the defendant’s negligent act (wasn’t wearing seatbelt) and combined with the negligent act to cause injury to the plaintiff (was rear-ended), this intervening force will likely be foreseeable where the defendant’s tortious conduct increased the risk that this force would cause harm to the plaintiff. Here, negligence by other drivers is foreseeable, and the defective latch increased the risk that such negligence would cause harm to the motorist. Hence, the truck driver’s negligence would qualify as a foreseeable intervening force that would not relieve the corporation from liability. (D) is incorrect because the car manufacturer would be strictly liable even though it did not know or have reason to know of the defect.

Question 195

**A defendant may be both vicariously liable and directly liable in the same action.**

Answer 195

A defendant may be both vicariously liable and directly liable in the same action. Vicarious liability is liability that is derivatively imposed. Because of the special relationship between the parties (e.g., employer-employee), if one person commits a tortious act against a third party, the other person can be liable to the third party for this act. This may be so even though the other person played no part in it, did nothing whatever to aid or encourage it, or indeed had done everything possible to prevent it. **In addition to being vicariously liable because of the relationship between the tortfeasor and the defendant, a defendant may be liable for her own negligence in dealing with or supervising the tortfeasor.** Respondeat superior IS a type of vicarious liability based on an employment relationship. Under the doctrine of respondeat superior, an employer will be vicariously liable for her employee’s torts ONLY IF the torts were committed within the scope of the employment relationship. The general rule is that a defendant is not vicariously liable for the torts of an independent contractor that she hires. However, there are several broad exceptions to that rule which have nothing to do with negligence in the selection of the contractor (which would make the defendant directly liable rather than vicariously liable). Under the doctrine of respondeat superior, an employer is vicariously liable for tortious acts committed by his employees if the tortious acts occur within the scope of the employment relationship. Under this doctrine, an employer may be liable for an intentional tortious act committed by an employee. While the general rule is that intentional tortious conduct by employees is not within the scope of employment, courts will find intentional tortious conduct to be within the ambit of this relationship when (i) force is authorized in the employment; (ii) friction is generated by the employment; or (iii) the employee is furthering the business of the employer; i.e. an aggressive bodyguard. An employer is not liable for ALL tortious acts committed by his employees ; the acts must be within the scope of the employment relationship. An employer is NOT liable for the tortious frolics of his employees. An employee on a delivery or business trip for his employer may commit a tort while deviating from the employer’s business to run a personal errand. If the deviation was minor in time and geographic area, the employee will still be considered to be acting within the scope of employment, but a more major deviation is a “frolic” for which the employer would not be liable. **While it is true that an employer may be directly liable for negligent supervision, the employer will NOT be liable for negligently supervising an employee under the respondeat superior doctrine, which only imposes vicarious liability. An employer’s liability for negligent supervision will be direct liability rather than vicarious liability.** 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 196

Because the landlord knew about the manager’s continued heavy drinking and tendencies toward violence, the guest has a cause of action for negligence in the landlord’s hiring of the manager.

Answer 196

An employer owes a duty to all those who may foreseeably come into contact with his employee to exercise due care in the hiring, supervision, and retention of the employee, and the landlord’s retention of the manager under these circumstances may be a breach of that duty.

Question 197

**_An employer can be held directly liable for the intentional tort of an employee if it_**

Answer 197

**_was foreseeable and the employer was negligent in hiring or retaining the employee._**

Question 198

A housecleaning agency was given a key to a customer's house so that the agency could have its employees clean while the homeowner was away. After a maid sent by the agency had finished and left the homeowner's house, she went back because she had forgotten her cigarettes. She neglected to lock the door when she left the second time because she was already late for the next job. When the homeowner returned after a few days away, she discovered that her house had been ransacked and several items of jewelry stolen. The front door was open, and there were no signs of forced entry. If the homeowner brings an action against the agency that employed the maid, what is the likely result? A She will not prevail, because she is limited to claims for breach of contract based on her agreement with the agency. B She will not prevail, because the act of the burglar was an independent superseding cause of the homeowner's loss. C She will prevail, because the maid's failure to lock the door created the risk that someone might enter and take the homeowner's valuables. D She will prevail, because when the maid returned after having completed her work, she was technically a trespasser, making the agency vicariously liable for any damage she caused to the premises.

Answer 198

The homeowner will prevail because the maid’s negligence increased the risk of criminal conduct by a third party. Criminal acts and intentional torts of third persons are foreseeable independent intervening forces if the defendant’s negligence created a foreseeable risk that they would occur. Here, the maid’s failure to lock the door was negligent because it created a risk of burglary; hence, the burglary does not cut off the agency’s liability for the maid’s negligence. As the maid’s employer, the agency is vicariously liable under respondeat superior.

Question 199

A shopper was in a large department store that was remodeling its menswear department and had hired a contractor to do the work. A carpenter employed by the contractor was working on the remodeling job. When the carpenter left the store to take a break, she left a carpenter's level projecting out into one of the aisles, unbeknownst to any store employees. Shortly before she returned 15 minutes later, the shopper came down that aisle and tripped over the level. He fell and struck his head on the sharp corner of a display case. The shopper required hospitalization and sued the store for his injuries. Will the shopper prevail in his suit against the store? A Yes, because the contractor's employee left the level in the aisle. B Yes, because the store's employees had a reasonable time to discover the level before the shopper fell. C No, because the store's employees did not leave the level in the aisle. D No, because the store's employees were unaware that the level was in the aisle. The customer is not likely to prevail because the barber had no opportunity to oversee the contractor’s work.

Answer 199

**A property owner owes a duty to those adjacent to the premises to take due precautions to protect them from dangerous conditions, and a business owes its customers a duty to make reasonable inspections to discover and make safe any dangerous conditions.** _Further, that duty cannot be delegated to an independent contractor; the owner remains vicariously liable._ However, nothing in the facts establishes that the barber breached his duty to the customer. There was nothing wrong with the brackets evident from a reasonable inspection, and the awning collapsed without warning. Further, the barber was not involved in hiring or supervising the contractor and would not be responsible for the contractor’s negligence. Hence, because no facts point to negligence by the barber, the customer is not likely to prevail. (A) (barber had a nondelegable duty to keep premises safe for customers and those passing by) is incorrect even though it is true that a business owner would be vicariously liable to customers and passersby injured by the negligent work of an independent contractor that he hired. Here, however, the barber did not hire the contractor and is not responsible for the contractor’s conduct. (B) is similarly incorrect. While the developer arguably was negligent in hiring a contractor who does shoddy work, her negligence will not be imputed to the barber. (C) is incorrect because it is irrelevant. Had the barber hired the contractor, the fact that the contractor contractually assumed all of the risks of liability would not preclude the customer from recovering against the barber.

Question 200

A developer constructed several small stores in a commercial district. She received a bid from a contractor to install awnings on the front windows of the stores. The developer had heard that the contractor did shoddy work, but the price was right and the contractor expressly assumed all of the risk of any liability. The developer subsequently sold one of the stores to a barber. A few months later, an awning collapsed without warning, injuring a customer who was about to enter the barbershop. An investigation by the building inspector revealed that the awning collapsed because the brackets used by the contractor were cheaper and weaker than the required brackets, although they looked the same. The developer and the contractor are now both bankrupt. If the customer sues the barber for his injuries, is the customer likely to prevail? A Yes, because the barber had a nondelegable duty to keep the premises safe for customers and those passing by. B Yes, because the developer did not exercise reasonable care in hiring the contractor to install the awnings. C No, because the contractor assumed all of the risks from his work. D No, because the barber had no opportunity to oversee the contractor's actions.

Answer 200

The customer is not likely to prevail because the barber had no opportunity to oversee the contractor's work. A property owner owes a duty to those adjacent to the premises to take due precautions to protect them from dangerous conditions, and a business owes its customers a duty to make reasonable inspections to discover and make safe any dangerous conditions. Further, that duty cannot be delegated to an independent contractor; the owner remains vicariously liable. However, nothing in the facts establishes that the barber breached his duty to the customer. There was nothing wrong with the brackets evident from a reasonable inspection, and the awning collapsed without warning. Further, the barber was not involved in hiring or supervising the contractor and would not be responsible for the contractor's negligence. Hence, because no facts point to negligence by the barber, the customer is not likely to prevail. (A) is incorrect even though it is true that a business owner would be vicariously liable to customers and passersby injured by the negligent work of an independent contractor that he hired. Here, however, the barber did not engage the contractor and is not responsible for the contractor's conduct. (B) is similarly incorrect. While the developer arguably was negligent in hiring a contractor who does shoddy work, her negligence will not be imputed to the barber. (C) is incorrect because it is irrelevant. Had the barber hired the contractor, the fact that the contractor contractually assumed all of the risks of liability would not preclude the customer from recovering against the barber.

Question 201

The owner of a boat took two friends out on a lake near his home. One of his friends was driving the boat when it struck a partially submerged rock that the owner of the boat had forgotten to tell him about. The owner of the boat and the other passenger were injured; the driver of the boat was not hurt. In a jurisdiction that applies joint and several liability with comparative contribution, the passenger brought suit against both the boat owner and the driver, and the boat owner also sued the driver. The jury determined that the boat owner was 55% at fault and suffered $10,000 in damages, the driver of the boat was 45% at fault, and the injured passenger suffered $100,000 in damages. After entry of judgment, the boat owner paid the passenger her total damages of $100,000, while the driver of the boat has paid nothing. How much, if anything, can the boat owner recover from the driver?

Answer 201

**The boat owner can recover $45,000 through comparative contribution for the passenger’s claim and $4,500 on his own claim against the driver of the boat.** Most comparative negligence states have adopted a comparative contribution system based on the relative fault of the various tortfeasors. Nonpaying tortfeasors who are jointly and severally liable are required to contribute only in proportion to their relative fault. Here, because the jurisdiction retained joint and several liability, the boat owner had to pay the passenger all of her damages. Under comparative contribution rules, the boat owner can obtain contribution from the driver for 45% of that amount, because the driver was 45% at fault. In addition, the boat owner has a direct claim against the driver for his own damages of $10,000, reduced by 55%, the amount of his fault. Thus, the total amount that the boat owner can recover from the driver is $49,500.

Question 202

A husband was on his way to meet his wife for lunch at the restaurant in the lobby of a bank building where she worked. He had just entered the building, which was owned and operated by the bank, when he heard screams and the sound of breaking glass from the restaurant area. He immediately saw that a large piece of artwork made of stained glass had fallen onto the seating area of the restaurant. In the seating area he saw several injured persons, including his wife, lying in the wreckage of the artwork. He fainted and hit his head on the marble floor, fracturing his skull. The artwork had collapsed because the pedestal that the bank had provided for the artwork was not properly constructed. If the husband sues the bank for his injury, is he likely to prevail?

Answer 202

The husband will recover for his injuries because his wife was among those injured by the collapse of the artwork. **The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff**. _In most jurisdictions, a bystander who sees the defendant negligently injuring another can recover for his own distress if_ _(i) the plaintiff and the person injured by the defendant’s negligence are closely related,_ _(ii) the plaintiff was present at the scene of the injury, and_ _(iii) the plaintiff personally observed or perceived the event._ **Observation is typically by sight, but may also be by hearing or other senses under certain circumstances.** Here, the husband heard the screams and the sound of breaking glass when the artwork collapsed as he entered the lobby. Even though he evidently did not see the artwork collapse on the diners, he heard it crash where his wife was sitting and saw the immediate aftermath. Because his wife was one of the persons injured by the collapse of the artwork, he can recover damages for the injuries caused by his distress. (A) is incorrect because, as stated above, the majority rule allows a bystander to recover based on the factors stated above even if he is outside the zone of danger of physical injury. (B) is incorrect because, as discussed above, a plaintiff who is present at the scene of the injury may perceive the event by hearing or other senses; under the circumstances here, it was not essential that he observe the actual collapse with his eyes. (D) is incorrect because it does not matter that the bank had provided the pedestal. Even if the negligent construction of the pedestal had been done by a third party, the bank remains liable to invitees on its premises because a business has a nondelegable duty to keep its premises safe for customers.

Question 203

A skier broke his leg when he was knocked down by the chair lift as he tried to avoid other skiers who had fallen off while disembarking. The ski resort employee operating the lift had not been paying attention and had failed to stop the lift. Ski patrol personnel placed the skier on a stretcher, which they then hooked up to a snowmobile to bring him down the mountain. The route down ran along the edge of a ski trail. Midway down, a novice snowboarder tried to see how close he could come to the stretcher without hitting it, but he lost control and landed on top of the skier’s leg, damaging it further. The skier filed a lawsuit against the snowboarder and the resort in a jurisdiction that has adopted a comparative contribution system in joint and several liability cases. At trial, the skier’s physician testified that the skier’s leg was permanently disabled, _but that neither injury, by itself, would have caused the permanent disability and it was impossible to quantify how much each injury contributed to the disability._ The jury determined that the damages from the permanent disability equaled $2 million, and that the snowboarder and the resort were each 50% at fault. What amount of damages can the skier recover from the snowboarder for his permanent disability?

Answer 203

The skier can recover $2 million from the snowboarder because the snowboarder is jointly and severally liable for the injury. The doctrine of joint and several liability provides that when two or more tortious acts combine to proximately cause an indivisible injury to plaintiff, each tortfeasor will be jointly and severally liable for that injury. This means that plaintiff can recover the entire amount of his damages from any one defendant. The doctrine applies even though each tortfeasor acted entirely independently and at different times. Here, both the snowboarder and the employee of the ski resort breached their duty to the skier to act with reasonable care. Each tortfeasor’s act was the actual cause of the skier’s disability because but for either one of the acts, his leg would not have been permanently disabled. The snowboarder’s act was the proximate cause of the skier’s disability because the disability was the direct result of the snowboarder’s act. The fact that the extent of the harm was unforeseeable is irrelevant; i.e., the tortfeasor takes the victim as he finds him. Thus, the skier can recover the entire $2 million from the snowboarder. Because the injury caused by the tortfeasors was not divisible, under joint and several liability rules, the snowboarder is liable for the full amount of the damages, including that attributable to the permanent disability. The “but for” test applies in concurrent cause situations—cases where several acts combine to cause the injury, but none of them standing alone would have been sufficient. The fact that the snowboarder’s act standing alone would not have caused the disability is irrelevant to the snowboarder’s liability.

Question 204

Nuisance

Answer 204

A private nuisance is a substantial, unreasonable interference **with another person’s use** or enjoyment of her property. The interference must be offensive, inconvenient, or annoying **to the average person in the community.** It is not a substantial interference if it merely interferes with a specialized use of the land.

Question 205

A newspaper printed in a news article that a successful businessperson running for the state legislature had attempted suicide and had just been released from the hospital, where he had undergone intensive psychotherapy. Actually, the businessperson had been hospitalized because he had contracted hepatitis. The businessperson’s opponent, the incumbent legislator, read the story into the legislative record the next day. The businessperson sued the incumbent for defamation. At trial, the businessperson established that the incumbent had serious doubts as to the accuracy of the story when she read it into the record. Is the businessperson likely to recover?

Answer 205

The businessperson will not recover against the incumbent because, as a state legislator, she was absolutely privileged to read the story into the record on the floor of the legislature. Under certain circumstances, a speaker will not be liable for defamatory statements because she is afforded an absolute privilege. Such a privilege is not affected by a showing of malice, abuse, or excessive provocation. Remarks made by either federal or state legislators in their official capacity during legislative proceedings are absolutely privileged. There is no requirement of a reasonable relationship to any matter at hand. The incumbent is a state legislator. When she read the newspaper article into the legislative record, she was speaking in her official capacity as a legislator, on the floor of the legislature. Thus, her reading of the article is cloaked with absolute privilege, and she will be shielded from liability for defamation. _(A) is incorrect because, even though the businessperson appears to have established actual malice by the incumbent, he will not recover. The businessperson, as a candidate for public office, is a public figure, and information about his health is probably a matter of public concern._ Thus, to recover, the businessperson must show actual malice (i.e., knowledge of falsity or reckless disregard for truth or falsity). However, this showing of malice still will not provide the businessperson a recovery because the incumbent has an absolute privilege. If she had only a qualified privilege, a showing of malice would defeat the privilege. Note also that, in any event, any defamation here would be characterized as libel, rather than slander. Libel is a defamatory statement recorded in writing or some other permanent form. **_Where the original defamation is libel, any repetition, even if oral, is also libel_**. Here, the original defamation was in a newspaper article and thus was libel. Consequently, the oral repetition of the article would also be libel, if the incumbent were subject to defamation liability. (C) is incorrect because, if the incumbent were not protected by the absolute privilege, the mere fact that she relied on the article would not afford her a defense. _A republisher (one who repeats a defamatory statement) is liable on the same general basis as a primary publisher._

Question 206

The owner of a corner lot allowed a hedge on his property to become overgrown, obstructing the view of motorists at that corner. Two motorists were driving inattentively and each ran a stop sign at the intersection bordering the lot. Their cars collided in the intersection and one of the motorists was injured. She sued the owner of the lot. The jury determined that the lot owner was 10% at fault and each of the motorists was 45% at fault. Will the injured motorist recover damages from the lot owner?

Answer 206

The injured motorist may recover damages from the lot owner because the jury found that the lot owner should have foreseen that motorists could be injured if the hedge was not cut back. _**The lot owner owes the duty of an owner and occupier of land *to those off the premises* for unreasonably dangerous artificial conditions**_. **In contrast to overgrown weeds, which are a natural condition for which no duty is owed absent a statute*_, a hedge is considered an artificial condition, analogous to a fence._*** Hence, by letting the hedge become so large that it created a foreseeable danger to motorists by obstructing their vision, the lot owner has breached his duty to the motorist. The other elements of the motorist’s negligence action (besides a duty and a breach of the duty) are actual and proximate cause, and damages. The motorist can establish actual cause by showing that, although she failed to notice the stop sign, she would have noticed another car traveling on a collision course with hers; i.e., but for the overgrown hedge, the motorist would have been able to avoid the accident. Proximate cause in an indirect case such as this can be established by showing that any intervening forces were foreseeable and not superseding. The other motorist’s negligent failure to stop may also have been caused in part by the overgrown hedge and is a foreseeable intervening force that does not break the chain of causation. Hence, (C) is incorrect. Under pure comparative negligence, the injured motorist can recover 10% of her damages even though her fault was greater than that of the lot owner. (A) is incorrect because a pure comparative negligence jurisdiction allows a plaintiff to recover no matter how great her negligence is. Thus, even though the motorists are both 45% at fault and the lot owner is only 10% at fault, the motorist can recover 10% of her damages from the lot owner. (D) is incorrect because, as discussed above, the lot owner is still liable for some damages in a pure comparative negligence jurisdiction even if his fault was only slight.

Question 207

A young teenager pointed a squirt gun at an older teenager as if she was going to squirt him, although the younger teenager knew that the gun was empty. The older teenager did not know that the gun was empty and yelled, “A little water isn’t going to hurt me.” The younger teenager pulled the trigger and yelled back, “You’re lucky, it wasn’t even loaded.” Is the younger teenager liable to the older teenager?

Answer 207

The younger teenager is liable for assault. An assault is an affirmative act by the defendant done with the intent to place the plaintiff in apprehension of an imminent harmful or offensive contact to his person and that actually causes the plaintiff apprehension. Children are deemed to be capable of forming the intent for assault and other intentional torts. The plaintiff need not be placed in fear of the contact; an apprehension of contact that is offensive (that is, not consented to) is sufficient. Furthermore, the apparent ability to inflict the contact is all that is needed; the fact that it could not be carried out is irrelevant. Here, the older teenager was placed in apprehension of imminent offensive contact, namely the squirts of water. The younger teenager’s actions show that she intended to cause the older teenager to believe that he was going to get squirted, thus satisfying the intent requirement.

Question 208

A dog owner lived next door to a day care center. Because he had a large yard and there were no applicable zoning restrictions, he installed a kennel and began training attack dogs to sell to businesses. As soon as he opened the business and posted signs in front advertising the exceptional ferocity of the dogs, some parents who had children enrolled in the day care center became alarmed at the prospect of the dogs right next to the yard where the children played, especially because the children could see and hear the dogs being taught to attack people. Within a few months of the dogs' arrival next door, the owner of the day care lost 10% of her enrollment. If the day care owner brings a nuisance action against the dog owner, what will be the most critical factual issue that the trier of fact must resolve to determine who should prevail?

Answer 208

_***The determining factor for the day care owner in prevailing will be whether her use of the property is abnormally sensitive to the presence of the dogs**.*_ ***_Nuisance is an invasion of private property rights by conduct that is either intentional, negligent, or subject to strict liability._*** _Strict liability will be the basis for a nuisance action (sometimes called an "absolute" nuisance or a "nuisance per se") when wild animals or abnormally dangerous domestic animals are involved, or when defendant is engaged in an abnormally dangerous activity**.**_ **Thus, dogs known by their owner to be vicious may create a private nuisance when they interfere with the use and enjoyment of the land next door, and the owner may be subject to strict liability because of his knowledge of the dogs' dangerous propensities.** [See Restatement (Second) of Torts §822, comment j] For the presence of the dogs to be an actionable nuisance, however, **they must result in a substantial interference with the day care owner's use of her land.** ***_The interference will not be characterized as substantial if it is merely the result of plaintiff's specialized use of her own property._*** **[See Foster v. Preston Mill Co., 268 P.2d 645 (1954)-D not strictly liable for blasting operations that caused female mink on P's ranch to kill their young in reaction to the vibrations]**

Question 209

The governor of an arid western state owned a vacation home and permitted his son to have a party there. At the end of the night the son failed to properly extinguish a bonfire that he and his friends had built, and within a few hours, wind-blown cinders had spread the fire to the trees east of the lodge. At the same time several miles away, a worker at a lumber mill was making emergency repairs to a pipe running between two mill buildings. He did not notice some of the sparks from his welding torch land in a pile of dried lumber and catch fire, and he failed to check the area after he was finished. By the time the fire was noticed by another employee, it was out of control. The wind blew both fires toward a landowner’s hunting lodge. They merged a mile away and shortly thereafter totally consumed the lodge. For political reasons, the landowner did not bring a lawsuit against the governor or his son. He did, however, file a lawsuit against the lumber mill, alleging that its employee’s negligence caused the destruction of his lodge. _Evidence at trial established that either fire alone would have destroyed the lodge as well._ Can the landowner recover from the lumber mill?

Answer 209

The landowner can recover the full amount of his damages from the lumber mill because the negligence of its employee caused the destruction of the lodge. Before a defendant will be liable for a breach of duty to the plaintiff, it must be shown that the breach was the actual and proximate cause of the injury. _**The general test for determining whether an act or omission is the actual cause of the injury is the “but for” test, i.e., whether the injury would not have occurred but for the act or omission. Under certain circumstances, however, the “but for” test is inadequate to determine actual cause.** ***Where several causes combine to bring about an injury—and any one alone would have been sufficient to cause the injury—the actual cause requirement is satisfied if defendant’s conduct was a substantial factor in causing the injury.***_ Under this analysis, the fire started by the lumber mill employee was an actual cause of the destruction of the landowner’s lodge because it was a substantial factor in causing the harm. It was also a proximate cause of the harm because no intervening forces broke the causal connection between the act and the harm. Because its employee was acting within the scope of his employment when he caused the fire to start, the lumber mill is vicariously liable for the injury that resulted. (B) is incorrect even though it is true that the damage is indivisible. The landowner can still recover from the lumber mill even if he does not sue the other tortfeasor. (D) is incorrect because joint and several liability rules allow the landowner to recover his full damages from the lumber mill. Where two or more tortious acts combine to proximately cause an indivisible injury to plaintiff, each tortfeasor will be jointly and severally liable for that injury, even though each defendant acted entirely independently. The effect of joint and several liability is that the plaintiff may recover the entire amount of the damages from any tortfeasor, who then may have a right of contribution from the other tortfeasor. Hence, even though the negligence of another tortfeasor was also an actual cause of the destruction of the landowner’s lodge, the landowner is entitled to recover all of his damages from the lumber mill.

Question 210

A minor league ballplayer hit a fly ball over the wall and out of the park during a game and struck a woman riding along the adjacent street on a bicycle. _The woman sued the ballplayer for negligence._ The woman alleged that the ballplayer had often hit balls out of the park and was aware that he had previously struck a car driving down the street. Assuming the woman's allegations are correct, is she likely to prevail? A. Yes, because the ballplayer was aware that someone on the street could be struck by a ball he hit. B. Yes, because the woman was in the zone of danger from the balls flying out of the park. C. No, because the ballplayer was not aware of the woman's presence on the street. D. No, because the ballplayer did not breach a duty of care towards the woman.

Answer 210

The woman will not prevail because the ballplayer’s conduct did not breach any duty owed to the woman. The prima facie case for negligence requires the plaintiff to show: (i) a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury; (ii) breach of that duty by the defendant; (iii) that the breach was the actual and proximate cause of the plaintiff’s injury; and (iv) damage to the plaintiff’s person or property. ***_Whenever a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person engaged in the same or similar activity._*** ***_If a defendant’s conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff._*** Here, there is some risk of injury to those outside the park based on previous occurrences. ***_However, there are no precautions that the ballplayer could have undertaken that would not directly conflict with the requirements of his job and harm his career_***. ***_On balance, the burden on the ballplayer to avoid any risk of injury far outweighs the likelihood of a ball hit by him clearing the wall and causing injury to someone_***. Hence, the ballplayer’s conduct did not create an unreasonable risk of injury to the woman and he did not breach a duty of care owed to her. Thus, she is not likely to prevail.

Question 211

A prima facie case for battery requires plaintiff to prove (i) an act by defendant that brings about a harmful or offensive contact to the plaintiff’s person, (ii) intent on defendant’s part to bring about harmful or offensive contact, and (iii) causation. The intent element is satisfied as long as the defendant knew with substantial certainty that the harmful or offensive contact would result. Here, the player’s conduct caused a harmful contact to the fan, because the player set into motion the force that caused injury to the fan. **_His intentionally shooting the puck into the crowded stands is enough to establish that he knew with substantial certainty that the puck would strike a spectator._**

Answer 211

(Note that even if he only intended to cause apprehension of contact, which is the intent for assault, this intent would suffice for liability for battery under the doctrine of transferred intent.)

Question 212

A cyclist was riding on a sidewalk when someone in a parked car suddenly opened the door of the car into her path. She swerved to avoid the car door and rode onto a landowner’s property, damaging some plastic lawn ornaments of waterfowl placed in his front yard. In a suit by the landowner against the cyclist for the damage to his lawn ornaments, what is the likely result?

Answer 212

The cyclist is liable for damage to the lawn ornaments even though she had a privilege to enter the landowner’s yard. **Pursuant to the privilege of necessity, a person may interfere with property of another where it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and where the threatened injury is substantially more serious than the invasion that seeks to avert it.** In cases of private necessity (where the act is solely to benefit a limited number of people rather than the public as a whole) the defense is qualified, so that the actor must pay for any injury she causes. The cyclist was faced with serious injury from being struck by the car door opening. Apparently the only way to avoid this injury was to swerve onto the landowner’s yard. The threatened injury to the cyclist was substantially more serious than the cyclist’s entry onto the landowner’s yard. Thus, the cyclist was privileged to enter the yard. However, because this is a **private necessity situation**, she will be required to pay for the damage she caused to the lawn ornaments.

Question 213

A driver in the local racing circuit brought his customized yellow stock car to a body shop to have it repainted before the new racing season began. When the driver returned to pick up the car, he was horrified to discover that it was repainted pink instead of yellow. The owner of the body shop apologized and offered to repaint the car, but the driver refused because the first race was in two days. The driver lost a couple of endorsements because the endorsers’ ads did not work with the new color. He was also subjected to ridicule at the track, but he felt better after he drove the car to victory in the first race. If the driver sues the body shop for their treatment of his car, will he prevail?

Answer 213

**The driver can recover for _trespass to chattels because he can show that the value of his car has been reduced as a result of the conduct of the body shop._** **Trespass to chattels requires** **(i) an act of defendant that interferes with plaintiff’s right of possession in the chattel,** **(ii) intent to perform the act bringing about the interference with plaintiff’s right of possession,** **(iii) causation, and (iv) damages.** ***_The act of interference may be either dispossession of or damage to the chattel._*** **_Here, the body shop employees interfered with the driver’s possession of his car by painting it contrary to his instructions, and they intended to do the act (painting) that caused the interference. The driver suffered damage because that conduct reduced the value of his car for advertising purposes._** **Hence, the driver will be able to satisfy the prima facie case for trespass to chattels.** **(A) is wrong because the fact that the driver won the race with the car does not establish absence of actual damages. Any loss in value of the chattels will suffice.**