Torts Capstone Questions

Question 1

A man boarded a plane with his pet rattlesnake hidden in his carry-on bag. The man was not aware that the carry-on bag, which he put under the seat in front of him, had a defective zipper. The snake, which had no teeth or venom and was harmless, escaped from the bag and started slithering down the aisle while the man was using the lavatory. A woman who had just gotten up from her seat saw the snake heading towards her and tried to run in the other direction. She tripped over someone’s foot and broke her ankle.

If the woman sues the man on a theory of strict liability for her broken ankle, will she prevail?
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A
No, because the snake was in fact a nondangerous animal.

B
No, because the injury she suffered was not caused by the dangerous propensity of a snake.

C
Yes, because the snake is a wild animal.

D
Yes, because it is not a common activity to bring snakes on a plane.

Answer 1

C

The woman will prevail because the rattlesnake is classified as a wild animal. An owner of a wild (i.e., nondomestic) animal, even one kept as a pet, will be strictly liable for the damage caused by the animal. A rattlesnake, even a harmless one, will be classified as a wild animal. Therefore (C) is correct and (A) is wrong. (B) is wrong because the injury the woman suffered was within the “normal dangerous propensity” of the animal. Strict liability for wild animals includes liability for the harm that results when a person is attempting to flee from what is perceived to be a dangerous animal. (D) is wrong. The fact that the activity was uncommon in the locale would have some relevance if the lawsuit were based on a theory of strict liability for an abnormally dangerous activity. It has nothing to do with strict liability for damage caused by animals.

Question 2

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

If the instructor brings a battery action against the golfer, will he recover?
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A Yes, because the golfer acted intentionally and caused harmful contact to her instructor.

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

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

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

Answer 2

C

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

Question 3

A new homeowner had two dogs that frequently barked at birds and squirrels in the yard, especially during the day while the homeowner was at work. A neighbor who worked nights was aggravated by the barking, which disturbed his sleep, and decided to let the homeowner know how he felt. One evening, upon learning that the homeowner was entertaining her boss and several clients, the neighbor came to her front door with a boombox and started playing a recording of the dogs barking, putting it at full volume. When the homeowner came to the door, he began yelling at her and berating her in front of her guests for having no consideration for her neighbors, while continuing to play the recording. The homeowner was very upset, especially because her guests decided that they had better leave, and she ended up losing a bonus that her boss was going to give her at the end of the evening.

If the homeowner asserts a claim based on intentional infliction of emotional distress against the neighbor, what will be the probable result?

A The homeowner will prevail because the neighbor’s conduct was extreme and outrageous.

B The homeowner will prevail because she suffered pecuniary harm from the neighbor’s conduct.

C The neighbor will prevail because the homeowner suffered no physical harm.

D The neighbor will prevail if the barking from the homeowner’s dogs is judged to constitute a nuisance.

Answer 3

A

The homeowner will probably prevail on a claim for intentional infliction of emotional distress because the neighbor’s conduct was sufficiently extreme and outrageous and the other elements of the tort are present. Intentional infliction of emotional distress requires: (i) an act by defendant amounting to extreme and outrageous conduct; (ii) intent to cause severe emotional distress or recklessness as to the effect of defendant’s conduct; (iii) causation; and (iv) damages. “Outrageous conduct” is extreme conduct that transcends all bounds of decency. The neighbor’s use of the recording and his insults against the homeowner for the benefit of her guests would probably qualify as extreme and outrageous conduct, particularly because there is no evidence that he had previously tried to resolve the problem with the homeowner in a more civilized manner. The neighbor had the requisite intent (either he intended to cause emotional distress or he was reckless as to its effect), there was causation, and the homeowner suffered damages (i.e., she was severely distressed) as a result of the neighbor’s actions. (B) is wrong because pecuniary harm is not required for purposes of this tort-all that is required is severe emotional distress. (C) is wrong because, in contrast to negligent infliction of distress, intentional infliction of distress does not require proof of physical harm to recover. (D) is wrong because the fact that the barking constituted a nuisance would not be a defense to conduct amounting to intentional infliction of distress; abatement of a private nuisance by self-help must be preceded by notice to the other party and must be conducted in a reasonable manner.

Question 4

A landowner had a swimming pool and a dressing cabana constructed in her spacious backyard. The pool was entirely within the confines of the landowner’s property. However, one corner of the cabana extended a few inches onto a far corner of her neighbor’s land. At the time of the construction, neither the neighbor nor the landowner was aware that the cabana extended onto the neighbor’s property.

Does the neighbor have a cause of action for trespass?

A Yes, because the cabana extends onto the neighbor’s land.

B Yes, because the presence of the cabana on the neighbor’s land has caused damage to his property.

C No, because the landowner did not actually enter the neighbor’s property.

D No, because the landowner did not intend to have the cabana encroach on the neighbor’s property.

Answer 4

A

The neighbor will prevail because the cabana extends onto the neighbor’s land. The tort of trespass to land requires: (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. (C) is incorrect because it makes no difference that the landowner herself did not enter the property that was being violated. (D) is incorrect because the landowner’s intent to have the cabana built on its current site suffices for purposes of trespass liability. As noted above, the defendant need not have intended to commit a trespass. (B) is incorrect because actual injury to the violated property is not a prerequisite to sustain this cause of action. Damage is presumed.

Question 5

A college student borrowed his roommate’s notebook computer without permission because he needed to write a term paper that was due the next day. While the computer was sitting open on the student’s desk overnight, a water pipe in the ceiling began leaking and water dripped down on the computer, rendering it inoperable. A computer repair service estimated that it would cost $500 to repair all the damaged components. At the time it was damaged, the computer was worth $700.

If the roommate sues the student for the damage caused to the computer, what will be the extent of his recovery?

A Nothing, because the damage occurred through no fault of the student.

B Loss of use damages for the time it was in the student’s possession.

C $500 in damages.

D $700 in damages.

Answer 5

D

The roommate can recover $700 in damages from the student for conversion. To establish a prima facie case of conversion, the following elements must be proved: (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. (C) is incorrect because the damages remedy for conversion is the fair market value; in effect, there is a forced sale of the item. The student may keep the computer but he is liable to the roommate for the entire value of the computer rather than just the cost of repairs.

Question 6

While practicing their target shooting at the firing range, a man and woman got into an argument that almost erupted into physical combat, except that they were restrained and separated by bystanders. Later, in the parking lot of the range, the man shot the woman in the shoulder. Bystanders who rushed to the scene immediately after hearing the man’s shot found the woman on the pavement with a black flashlight in her hand. The woman’s pistol was in her locker at the firing range. At the trial of the woman’s civil action for battery against the man, the woman established that the man intentionally shot her. In defense, the man testified that the woman approached him, saying, “We’ll settle this once and for all, right now,” and raised an object toward the man. He testified that he feared that the woman was about to shoot him with a pistol, so he fired in self-defense.

Assuming that the jury decides that the man is telling the truth, what else must the jury find for him to prevail?

A No additional facts.

B That a reasonable person in the same circumstances would have believed that the woman was about to shoot.

C That the woman was at fault in raising a black object toward the man while threatening him.

D That the woman was the original aggressor.

Answer 6

B

If the man prevails, it will be because the jury determined that he acted reasonably under the circumstances. One may act in self-defense not only where there is real danger but also where there is a reasonable appearance of danger. An honest but mistaken belief that the woman was about to shoot would justify the use of deadly force by the man if a reasonable person would have acted similarly under those circumstances. The test is an objective one-an honest belief alone is not sufficient. Thus, (A) is incorrect. (C) is incorrect because the woman’s fault is not the determining factor-the reasonableness of the man’s belief governs for self-defense. (D) is incorrect because it does not resolve whether the man had the right to use deadly force. Even if the man started the altercation at the range, he would have the right to use deadly force if the woman escalated the fight with deadly force.

Question 7

A homeowner bought “20-pound test” fishing line for hanging potted plants on his porch. “20-pound test” in the fishing industry means that fishing line will not break under an initial stress of up to 20 pounds when a hooked fish tugs against the line, but not that it will support a constant 20-pound weight. Most sportfishers are aware of this technical meaning, but most laypersons are not, and the manufacturer put no warnings or explanations on the package in which the line was sold. The homeowner hung a 15-pound basket from his front porch, directly above an old-fashioned porch swing. A friend visiting the homeowner was sitting on the swing when the line holding the basket broke, causing the plant to fall and strike the guest on the head.

In a jurisdiction following the traditional rules for landowners and possessors of land, will the guest prevail against the homeowner in a suit to recover damages for her injuries?

A Yes, because she was a social guest.

B Yes, because the homeowner was negligent in hanging the plant.

C No, because the homeowner could not be expected to know the technical meaning of “20-pound test.

D No, because she was not a foreseeable plaintiff.

Answer 7

C

The guest will not prevail in a suit against the homeowner. As a social guest of the homeowner’s, the guest is deemed to be a licensee; i.e., one who enters onto land with the owner’s permission for her own purpose or business rather than for the owner’s benefit. In a jurisdiction following the traditional rules for landowners and possessors of land, the owner owes a licensee the duty to 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. The owner has no duty to a licensee to inspect for defects nor to repair known defects. The homeowner, as a person who was not involved with fishing, had no reason to suspect that a fishing line that was “20-pound test” could not support the constant weight of a 15-pound basket. Thus, the homeowner did not know of the dangerous condition present in the form of the basket overhanging his porch. Because the homeowner was unaware of the danger, he was under no duty to warn the guest, a licensee, of the dangerous condition. Having violated no duty owed to the guest, the homeowner will not be held liable for her injuries. (A) is accurate in stating that the guest was a social guest. However, as detailed above, the duty owed to a guest is simply to warn of concealed dangerous conditions of which the owner is aware. The homeowner had no duty to warn of a danger of which he neither knew nor had reason to know. (B) is incorrect because there is no indication either that the homeowner hung the basket in a negligent manner or that he was negligent in failing either to warn the guest or to be aware of the danger. The homeowner appears to have acted as would a reasonable person with no knowledge of the meaning of technical terms of fishing. (D) is incorrect because a social guest would indeed be a foreseeable plaintiff. If the homeowner had been negligent in hanging the basket directly above the swing, it would have been reasonably foreseeable that an injury would befall any person who sat on the swing. Thus, (D) reaches the correct result that the guest will not prevail, but for an incorrect reason.

Question 8

A swimmer went to a privately owned lake resort whose owner charged a fee for admission. The beach had a roped-in swimming area and large signs directing swimmers not to swim anywhere but within the ropes. The lifeguards regularly enforced this rule. The resort also rented canoes and rowboats to its patrons, who could take them anywhere on the lake. The swimmer and two of his friends had rented a canoe and started to paddle out toward the other side of the lake when the swimmer saw a volleyball game starting on the beach that he wanted to join. He left his friends in the canoe and started swimming to shore. He was only a few yards outside of the roped-in swimming area when he started, but he angled away from the swimming area toward the area of the beach where the volleyball net was set up. Although the lifeguard on duty saw him, she did not warn him to return to the swimming area. When the depth of the water was about four feet, he put his foot down and was severely cut by the jagged edge of a rusted metal stake protruding a few inches out of the bottom of the lake. The swimmer had not seen the stake even though the water was clear and it was visible if he had looked down.

If the swimmer sues the resort in a jurisdiction that applies the traditional rules for landowners and possessors of land, is he likely to recover?

A No, because the stake could have been seen by the swimmer.

B No, because he was swimming outside of the roped-in area.

C Yes, because the lifeguard on duty saw him and did not warn him to return to the swimming area.

D Yes, because he is a public invitee of the resort.

Answer 8

B

The swimmer cannot recover from the resort because he did not have invitee status when he was injured. In jurisdictions following the traditional rules for landowners and possessors of land, the nature of a duty of an owner or occupier of land to those on the premises depends on the legal status of the plaintiff in regard to the property, i.e., whether the plaintiff is a trespasser, licensee, or invitee. An invitee is a person who enters onto the premises in response to an express or implied invitation of the landowner. Those who enter as members of the public for a purpose for which the land is held open to the public and those who enter for a purpose connected with the business or other interests of the landowner are considered invitees. However, a person will lose his status as an invitee if he exceeds the scope of the invitation-if he goes onto a portion of the property where his invitation cannot reasonably be said to extend. Here, the swimmer was an invitee of the resort in the areas to which it allowed its patrons to go. However, the resort clearly identified the boundaries of the area held open to swimmers, and the swimmer could not reasonably have believed that he was invited to swim in the area where he was injured. Because the swimmer was at most a licensee when he was injured, the resort did not owe him a duty to make reasonable inspections of that area to discover dangerous conditions and make them safe. At most, the resort had a duty only to warn the swimmer of known dangerous conditions that create an unreasonable risk of harm to him and that he is unlikely to discover, and nothing in the facts indicates that any employees of the resort knew of the stake under the water. The swimmer therefore cannot recover against the resort. (A) is not as good a choice as (B). While a landowner is not liable for a dangerous condition that is obvious to the entrant on the land, the fact that the stake was visible does not establish that it was obvious, given that the swimmer was looking forward rather than down. Whether a danger is obvious is determined by all of the surrounding circumstances, not just whether the danger is visible. The better reason why the swimmer cannot recover is because he was no longer an invitee. (C) is incorrect because the lifeguard’s failure to direct the swimmer to the swimming area would not constitute an invitation to swim in the restricted area; at most, it would establish only that the swimmer was a licensee rather than a trespasser when he swam in that area. A licensee is one who enters onto land with the possessor’s permission, express or implied, for his own purpose or business rather than for the possessor’s benefit. The lifeguard’s conduct may have constituted implied permission for the swimmer to exit the lake in a nonswimming area for his own benefit, but it does not establish that he reasonably believed that he was invited to swim in that area. (D) is incorrect because the swimmer lost his status as an invitee when he exceeded the scope of his invitation by swimming in an area where swimming was not permitted.

Question 9

A state statute required that any freight train operating within the city limits be able to stop within 200 yards of applying its brakes. No fixed speed limit was established or particular type of braking mechanism required, but through either lowered speed or braking power, the 200-yard limit was required of all trains. Another statute prohibited vehicles from being within the railroad crossing when the lights on the warning signs are flashing or when the gates are lowered. One day, as a freight train was entering the city limits, the engineer saw a car stalled at a street crossing ahead. He immediately applied full braking power, but was unable to stop the train before it had hit and demolished the car. The driver of the car had gotten clear before the impact, but brought suit against the freight line for property damage to the $25,000 car. At trial, the parties stipulated that the car was stalled within the crossing while the warning lights were flashing. Evidence at trial established that the distance from the point at which the engineer applied the train’s brakes to the point of impact was 150 yards, and from the braking point to the point at which the train finally stopped was 225 yards. No other evidence of negligence was presented by the driver. At the end of the driver’s case, the freight line moved for a directed verdict.

Should the court grant the motion?

A No, because the freight line was negligent per se.

B No, because the freight line was strictly liable for its violation of the braking statute.

C Yes, because the driver’s car was on the freight line’s tracks in violation of the crossing statute.

D Yes, because the freight line’s violation of the braking statute was not the cause in fact of the accident.

Answer 9

D

The court should grant the motion because the driver did not establish the cause-in-fact element of his prima facie case against the freight line. 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. 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. (A) is incorrect because establishing the freight line’s “negligence per se” through violation of the statute only establishes a conclusive presumption of duty and breach of duty; the plaintiff must still prove causation. (B) is incorrect because generally violation of a statute does not create strict liability; even if it did in this case, the plaintiff would still have to prove causation as part of the prima facie case for strict liability. (C) is not correct because the court will not reach the issue of the plaintiff’s contributory negligence in this case because the prima facie case for the defendant’s negligence has not been established. Furthermore, establishing the plaintiff’s contributory negligence by violation of a statute uses the same rules that govern whether a statute can establish the defendant’s negligence. Hence, the driver’s violation of the crossing statute may be excused if the trier of fact determines that compliance was beyond his control because his car stalled.

Question 10

A man was negligently driving down the road, not paying attention to where he was going. Because of this, he hit and seriously injured a pedestrian who was lawfully crossing the street. The accident was witnessed by the pedestrian’s friend who was standing on the sidewalk. As a result of seeing the pedestrian injured, her friend suffered extreme emotional distress that physically affected her nervous system. The friend brings suit against the driver for negligent infliction of emotional distress in a jurisdiction that has adopted the majority approach in bystander cases.

Will the friend prevail?

A Yes, because she witnessed the pedestrian being seriously injured by the driver.

B Yes, because severe shock to the nervous system constitutes a physical injury.

C No, because she was not crossing the street with the pedestrian.

D No, because she was not a close relative of the pedestrian.

Answer 10

D

The friend will lose because she was not a close relative of the pedestrian. If a bystander suffers distress from seeing injury to another, a majority of courts now allow recovery 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, the friend is not related to the pedestrian; hence, she cannot recover for her distress. (A) is incorrect because witnessing the injury to another is not sufficient. (B) is incorrect even though the friend did suffer physical symptoms from the distress. As discussed above, she has not met the requirements to recover. (C) is incorrect because the friend’s proximity to the pedestrian is only relevant in the minority of jurisdictions that have retained the “zone of danger” requirement for bystander recovery. Here, the jurisdiction has adopted the majority approach.

Question 11

A hiker in an isolated area encountered a cross-country skier who had broken her leg. The hiker created a makeshift sled and began pulling the skier to the nearest road. As the hiker was pulling her across the ice of a lake, the ice gave way and they went into the water. The hiker was unable to get out of the water and drowned. The skier was able to pull herself to shore and eventually was rescued. However, she suffered severe hypothermia and lost some of her toes to frostbite as a result of being in the water.

Does the skier have a cause of action for damages against the hiker’s estate?

A No, because the hiker had no duty to come to the skier’s aid.

B No, because the hiker did not survive the accident.

C No, unless the hiker acted negligently in attempting to cross the ice.

D No, unless the hiker acted with gross negligence in his attempt to cross the ice.

Answer 11

C

The hiker’s estate may be liable to the skier if the hiker acted negligently when he was rescuing the skier. As a general rule, no legal duty is imposed upon any person to affirmatively act for the benefit of others. However, one who gratuitously acts for the benefit of another, although under no duty to do so in the first instance, is then under a duty to act like a reasonable person. Here, the hiker was under no duty to come to the skier’s assistance. Having done so, however, he was under a duty to use reasonable care in undertaking the rescue. If he acted negligently in doing so, he was in breach of his duty to the skier and the skier would have a cause of action against his estate. To prevail, the skier would also have to establish that her injuries would not have occurred but for the hiker’s negligent attempt to cross the ice, and that the skier herself was not at fault. In any case, the skier would have a cause of action stemming from the hiker’s negligent conduct. Thus, (C) is correct and (A) is incorrect. (B) is incorrect. At common law, a tort action abated at the death of either the tortfeasor or the victim. However, most states have adopted survival statutes that change this result. Thus, the fact that the potential tortfeasor died would not preclude the skier from bringing an action against the tortfeasor’s estate. (D) is incorrect because the skier would have a cause of action even for the hiker’s ordinary negligence. Many states have “Good Samaritan” statutes that exempt those who gratuitously render emergency assistance from liability for other than gross negligence, but most of these statutes apply only to health care providers rendering emergency medical assistance. Therefore, the skier could recover even if the hiker’s negligence did not amount to gross negligence.

Question 12

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 12

D

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 suggests 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. And, as discussed above, there is no evidence of negligence here. While this choice establishes the causation element, the breach of duty element is not established. (B) is incorrect because the doctrine of res ipsa loquitur applies only to situations where the fact that a particular injury occurred itself establishes that defendant breached a duty. If the doctrine is applicable, no directed verdict may be given for defendant because plaintiff has established a prima facie case. However, the accident must be the type that would not normally occur unless someone was negligent. The collision between the trainer’s homing pigeon and the model airplane is not that type of accident; by itself, it provides no suggestion that anyone was negligent. (C) is incorrect because the truck is not a superseding force that breaks “the causal connection” between the action of the trainer’s pigeon and the airplane’s destruction. In indirect cause cases, where a force came into motion after defendant’s act and combined with it to cause injury to plaintiff, defendant will still be potentially liable for foreseeable intervening forces that are within the increased risk caused by his acts. Even if the intervening force is independent (i.e., not a natural response or reaction to the situation), it will be foreseeable where defendant’s negligence increased the risk that the independent force would cause harm. Hence, if the trainer were negligent in releasing his pigeon, the fact that the destruction of the airplane was directly caused by the truck would not relieve the trainer from liability, because the initial collision with the pigeon caused the airplane to go out of control and created a substantial risk that it would be damaged by an intervening force.

Question 13

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

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

A He can recover from either the driver or the cabbie for all of his injuries because the driver and the cabbie are jointly and severally liable.

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

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

D He cannot recover against the driver for the injury to his left leg unless the jury determines that the driver acted negligently when she came to his aid.

Answer 13

C

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

Question 14

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 14

C

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 employment and would not make her a trespasser.

Question 15

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 seve

Answer 15

A

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 16

A patient troubled by an irritating skin rash consulted a dermatologist for treatment. The dermatologist diagnosed the rash as a genetic condition that had no cure and would ultimately spread and lead to disfigurement. The patient was shocked and distressed by the diagnosis. On the advice of her family, a week later the patient consulted another doctor. That doctor immediately diagnosed the skin rash as a common bacterial infection and prescribed an ointment that cleared up the condition in a few days. Because the doctor was a friend of the family, the patient was not charged for that visit.

Can the patient recover from the dermatologist for the emotional distress caused by his erroneous diagnosis?

A No, because the dermatologist’s conduct did not create a foreseeable risk of physical injury to the patient.

B Yes, because the misdiagnosis by the dermatologist caused the patient actual harm.

C No, because the patient did not have to pay for the second doctor visit.

D Yes, provided that the patient’s distress caused her some physical injury.

Answer 16

B

The patient’s distress is a recoverable element of damages caused by the dermatologist’s breach of duty to her. A doctor owes a duty to possess and exercise the degree of knowledge and skill exercised by other doctors in good standing. The dermatologist also owes a duty to exercise the superior knowledge and skill that he possessed in his area of specialty. He breached his duty by misdiagnosing a common skin infection that another doctor was able to diagnose immediately. His failure to properly diagnose the condition was the actual and proximate cause of injury to the patient; but for the misdiagnosis, she would not have had to continue suffering from the rash until the other doctor properly treated it. The continuation of the rash and any pain and suffering from it are compensable damages that she can recover from the dermatologist. Also compensable is the emotional distress that she suffered because of the misdiagnosis. While recovery for emotional distress is restricted when there is no other injury caused by the breach, these restrictions do not apply when plaintiff is the victim of another tort that causes physical injury. Plaintiff can recover damages for emotional distress that arise from the tortious conduct. (A) is incorrect. Given the patient’s physical condition, a failure to make a proper diagnosis did create a foreseeable risk that she would continue to suffer from a condition that could otherwise have been alleviated. Thus, the dermatologist’s conduct did constitute a breach of the duty he owed the patient. (C) is incorrect because the patient has suffered compensable injury regardless of whether she had to pay for the second doctor visit. The continuation of the skin rash until she saw the other doctor suffices as the damage element of the prima facie case. (D) is incorrect because it states a common requirement for recovery in cases where the only harm caused was through the negligent infliction of emotional distress. Here, the dermatologist’s negligent diagnosis directly caused the patient physical injury in addition to emotional distress. Hence, the emotional distress is recoverable even if the distress itself did not cause physical injury.

Question 17

A motorcyclist was injured in a collision and suffered $100,000 worth of injuries, including $20,000 in hospital and physician’s bills. The motorcyclist’s medical insurance company paid her $20,000 to cover hospital and medical expenses. Later, she filed suit against the driver of the car that struck her motorcycle. When the case came to trial, the jury agreed with the motorcyclist’s contention that her injuries were worth $100,000. The jury also determined that the motorcyclist was 30% negligent and that the driver was 70% negligent.

How much should the motorcyclist recover from the driver?

A $100,000.

B $70,000.

C $56,000.

D $50,000.

Answer 17

B

The motorcyclist should recover $70,000 from the driver. Under a pure comparative negligence system, a contributorily negligent plaintiff is allowed to recover a percentage of her damages. The plaintiff’s damages are reduced according to her proportionate share of the fault. Thus, the motorcyclist can recover 70% of her total of $100,000 in damages because she was 30% at fault, leaving her with a recovery of $70,000. (A) is incorrect because it fails to reflect the reduction in damages required under comparative negligence. Because the motorcyclist was 30% negligent, she cannot recover the entire $100,000. (C) is incorrect because it is derived from an initial reduction of damages by the amount of the insurance payments ($100,000 minus $20,000, leaving $80,000). This $80,000 figure is then reduced by the 30% negligence of the motorcyclist, leaving an amount of $56,000. However, as a general rule, damages are not reduced or mitigated by reason of benefits received by the plaintiff from other sources, such as health insurance. Thus, the 30% reduction is made from the figure of $100,000, not from $80,000. Similarly, (D) is incorrect because it is derived from a reduction of the $70,000 proportionate recovery by the $20,000 insurance payment. As noted above, the insurance payments are not allowed to reduce damages. Therefore, the $20,000 paid by the motorcyclist’s insurance company will not reduce the $70,000 in damages to which she is entitled.

Question 18

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

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

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

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

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

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

Answer 18

B

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

Question 19

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 19

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 20

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

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

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

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

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

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

Answer 20

C

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

Question 21

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 21

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 22

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

Can the mayor recover against the columnist for defamation?

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

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

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

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

Answer 22

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. (B) is incorrect because the columnist’s qualified privilege applies only to statements made to defend his own actions, property, or reputation. Even if it were to apply to his explanation of why his family’s restaurant was shut down, his statements in the column were beyond the scope of the privilege, which does not extend to making a statement to a mass audience whose reading of the statement would not reasonably further his interest in defending himself. Here, the publication in his newspaper column of his explanation as to why the restaurant was shut down was beyond the scope of any privilege he may have had. (C) is incorrect because malice that will result in the loss of a qualified privilege is defined by most courts as knowledge of falsity or reckless disregard as to truth or falsity, rather than hostility or ill-will. As long as the defendant is using a proper occasion for a qualified privilege in a proper way, he will not lose this privilege simply because he bears ill-will toward the plaintiff. (D) is incorrect because the fact that the columnist should have investigated the accuracy of his assertions and did not only establishes negligence on his part. As discussed above, the mayor, as a public official, must show at least reckless disregard as to truth or falsity to recover in a defamation action.

Question 23

A salesman in a highly visible and competitive field went to the police station to post bond for his son, who had been arrested for possession of a small quantity of narcotics. A photographer for the local newspaper who was at the police station took a picture of the salesman flanked by two bulky police officers. The photo, which looked like the pictures of alleged criminals being taken into custody, ran on a quarter of the front page because it was a slow news day. The photo was accompanied by a very small caption giving the salesman’s name and stating that his son had been arrested for possession of narcotics. The salesman’s boss was hypersensitive about the reputation of his company and fired the salesman after he saw the picture in the newspaper.

If the salesman brings an invasion of privacy action against the newspaper, what is the most likely basis?

A Intrusion upon seclusion.

B False light publicity.

C Public disclosure of private facts.

D Appropriation of plaintiff’s picture for commercial purposes.

Answer 23

B

The salesman’s basis for an invasion of privacy action will be that the newspaper published facts about the salesman that placed him in a false light. 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. The large picture of the salesman flanked by two bulky police officers could suggest that the salesman committed a crime because it looked like pictures that newspapers often print of alleged criminals being taken into custody. This “false light” would be highly offensive to a reasonable person under the circumstances. (A) is incorrect. This branch of invasion of right to privacy, intrusion upon plaintiff’s affairs or seclusion, requires (i) an act of prying or intruding on the affairs or seclusion of plaintiff by defendant; (ii) the intrusion must be something that would be highly offensive to a reasonable person; and (iii) the thing to which there is an intrusion or prying must be “private.” Here, the photograph of the salesman was taken at the police station, which is a public place. Hence, the intrusion was not into anything of the salesman’s private domain and is not actionable under this branch of invasion of privacy. (C) is similarly incorrect. Public disclosure of private facts requires (i) publication or public disclosure 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. Here, the presence of the salesman outside the police station was not a private fact. (D) is incorrect because appropriation of a plaintiff’s picture or name for commercial purposes must be for the promotion or advertisement of a product or service; the fact that the defendant is using the picture in a newspaper that it is selling is not sufficient.

Question 24

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

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

A The rear gate was secured by the excavator’s employee.

B The excavator had a license to transport soil on the highway.

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

D The transportation of soil on the highways was a common practice in the area where the accident occurred.

Answer 24

C

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

Question 25

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

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

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

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

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

C It may obtain indemnity from both the equipment company and the homeowner.

D It may not recover any damages it paid from any other party.

Answer 25

B

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