Torts Learning Questions - Set 5 Flashcards
For the doctrine of res ipsa loquitur to apply, the plaintiff must establish that _________.
A
The defendant’s breach of duty was the sole cause of the plaintiff’s injury
B
The defendant possessed the instrumentality that caused the injury
C
The accident would not normally occur unless someone was negligent
D
The defendant violated a statute establishing a standard of care
C
For the doctrine of res ipsa loquitur to apply, the plaintiff must establish that 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.
Which of the following best describes res ipsa loquitur?
A
The fact that a particular injury occurred establishes breach of duty as a matter of law
B
Proof that a defendant violated a statute establishes the existence of a duty owed and breach thereof
C
The fact that a particular injury occurred tends to establish the breach of a duty owed
D
Custom or usage establishes the standard of care in a given case
C
Res ipsa loquitur deals with those situations where the fact that a particular injury occurred may itself tend to establish the breach of a duty owed, because the type of injury that occurred would not normally occur in the absence of negligence. Where the facts are such as to strongly indicate that the plaintiff’s injuries resulted from the defendant’s negligence, the trier of fact may be permitted to infer the defendant’s liability.
Res ipsa loquitur does not refer to custom or usage establishing the standard of care. Custom or usage may be introduced to establish the standard of care in a given case. Unlike res ipsa loquitur, however, customary methods of conduct do not furnish a test that conclusively controls the question of whether certain conduct amounted to negligence.
Res ipsa loquitur also does not refer to the defendant’s violation of a statute as establishing the existence of a duty and breach thereof. Proof that a defendant violated an applicable statute may establish the existence of a duty owed to a plaintiff and a breach thereof, but that is not an application of circumstantial evidence to show breach of duty, as res ipsa loquitur is.
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.
Which of the following is NOT a prerequisite for the plaintiff to rely on the doctrine of res ipsa loquitur?
A
The injury was not attributable to the plaintiff or any third person.
B
There is evidence connecting the defendant with the negligence.
C
The defendant had actual possession of the instrumentality causing the injury.
D
The accident causing the injury is the type that would not normally occur unless someone was negligent.
C
It is not necessary for application of res ipsa loquitur to show that the defendant had actual possession of the instrumentality causing the injury, even though this may be one way to connect the defendant with the negligence that occurred.
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.
Res ipsa loquitur requires that:
1. The accident is of a type that normally does not occur in the absence of someone’s negligence; 2. The evidence connects the defendant to the negligence (i.e., this type of accident ordinarily happens because of the negligence of someone in the defendant’s position); and 3. The injury was not attributable to the plaintiff or any third person.
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.
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.
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.
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.
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.
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.
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.
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.
What is one of the effects of res ipsa loquitur?
A
It requires the defendant to present evidence of due care in rebuttal
B
The burden of proof switches to the defendant
C
No directed verdict may be given for the defendant
D
It creates a presumption of negligence
C
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.C
