Torts MBE Flashcards
A man owned a shotgun that he used for hunting. The man knew that his old friend had become involved with a violent gang that recently had a shoot-out with a rival gang. The man, who was going to a farm to hunt quail, placed his loaded shotgun on the back seat of his car. On his way to the farm, the man picked up his old friend to give him a ride to someone’s house. After dropping off his old friend at the house, the man proceeded to the farm, where he discovered that his shotgun was missing from his car. The old friend had taken the shotgun and, later in the day, the old friend used it to shoot a member of the rival gang. The gang member was severely injured.
The gang member recovered a judgment for his damages against the man, as well as the old friend, on the ground that the man was negligent in allowing his old friend to obtain possession of the gun, and was therefore liable jointly and severally with the old friend for the gang member’s damages. The jurisdiction has a statute that allows contribution based upon proportionate fault and adheres to the traditional common-law rules on indemnity.
If the man fully satisfies the judgment, he then will have a right to recover from the old friend
indemnity for the full amount of the judgment, because the old friend was an intentional tortfeasor.
When two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortfeasor is jointly and severally liable for that injury. This means each is liable to the plaintiff for the entire damage incurred. Joint and several liability applies even though each tortfeasor acted entirely independently.
Where joint and several tort liability exists, and a plaintiff can recover the entire judgment from either defendant, the typical rule of contribution allows any tortfeasor required to pay more than his share of damages to have a claim against the other jointly liable parties for the excess. Contribution is NOT allowed, however, in favor of those who committed intentional torts, even if each tortfeasor was equally culpable.
A driver negligently drove his car into a pedestrian, breaking her leg. The pedestrian’s leg was put in a cast, and she used crutches to get around. While shopping at her local supermarket, the pedestrian non-negligently placed one of her crutches on a banana peel that had been negligently left on the floor by the manager of the supermarket’s produce department. The pedestrian’s crutch slipped on the peel, and she fell to the floor, breaking her arm. Had the pedestrian stepped on the banana peel at a time when she did not have to use crutches, she would have regained her balance.
The pedestrian sued the driver and the supermarket for her injuries.
The pedestrian will be able to recover from
the driver, for both of her injuries.
B is correct. The pedestrian’s broken arm is proximately connected to the driver’s negligent driving. Courts generally hold that subsequent ordinary negligence actions, which may add to the plaintiff’s injuries, are a foreseeable consequence of the original action and will not break the chain of causation. The facts clearly state that the pedestrian would not have lost her balance had she not been on crutches as the result of being hit by the driver. Because it is foreseeable that walking on crutches would make the pedestrian less stable on her feet and more vulnerable to subsequent injury from falling, the driver is the proximate (legal) cause of both injuries (although responsibility for the broken arm alone may be apportioned between the driver and the supermarket as concurrent tortfeasors).
For five years, a rancher had kept his horse in a ten-acre field enclosed by a six-foot woven wire fence with six inches of barbed wire on top. The gate to the field was latched and could not be opened by an animal. The rancher had never had any trouble with people coming onto his property and bothering the horse, and the horse had never escaped from the field. One day, however, when the rancher went to the field, he found that the gate was open and the horse was gone. Shortly before the rancher’s discovery, a driver was driving with due care on a nearby highway when suddenly the rancher’s horse darted in front of his car. When the driver attempted to avoid hitting the horse, he lost control of the car, which then crashed into a tree. The driver was injured.
The driver sued the rancher to recover damages for his injuries and the rancher moved for summary judgment.
If the facts stated above are undisputed, the judge should
C. grant the motion, because there is no evidence that the rancher was negligent.
or
A. deny the motion, because pursuant to the doctrine of res ipsa loquitur, a jury could infer that the rancher was negligent.
The horse is livestock. As such, in common law, the rancher would be held in strict liability for its trespass. Under the Restatement (Second) of Torts, however, (§506) the horse would be considered a domestic animal and negligence would have to be proved before the driver could recover damages (unless the horse had a known propensity to escape, which is not the case in this situation). An animal “dangerous to highway users” is not a category.
A plaintiff was walking peacefully along a public street when he encountered the defendant, whom he had never seen before. Without provocation or warning, the defendant picked up a rock and struck the plaintiff with it. It was later established that the defendant was mentally ill and suffered recurrent hallucinations.
If the plaintiff asserts a claim against the defendant based on battery, which of the following, if supported by evidence, will be the defendant’s best defense?
C The defendant did not know that he was striking a person.
The issue here is, which of the defenses addresses whether the defendant had formed the intent necessary to complete the battery? The best defense would be that the defendant did not know he was striking a person, which would defeat intent.
Mental disability does not generally provide immunity for intentionally tortious conduct. Thus, if the defendant threw the rock with the purpose of hitting the plaintiff or the knowledge that he would hit the plaintiff with the rock, he had formed intent, regardless of his understanding or motive. However, if he did not know he was striking a person, then he could not have formed the intent to hit a person. As such, the only defense that has a chance of prevailing is one where the defendant did not intend to hit the plaintiff at all.
오답
A - The defendant did not understand that his act was wrongful.
Mistake of law, or ignorance that one’s act(s) are illegal, is generally not a defense.
B -The defendant did not desire to cause harm to the plaintiff.
Battery specifically only requires the intent to cause the harmful or offensive contact
D - defendant’s belief that the plaintiff was about to attack him would have been unreasonable. A proper self-defense claim requires the defendant to reasonably believe the force is necessary to guard against harm to himself.
A defendant built in his backyard a garage that encroached two feet across the property line onto property owned by his neighbor. Thereafter, the defendant sold his property to a friend. The neighbor was unaware, prior to the defendant’s sale to his friend, of the encroachment of the garage onto her property. When the neighbor subsequently learned of the encroachment, she sued the defendant for damages for trespass.
In this action, will the neighbor prevail?
C. Yes, because the defendant knew where the garage was located, whether or not he knew where the property line was.
A. No, because the defendant was unaware of the encroachment when the garage was built.
A is incorrect. The defendant did not need to know he was trespassing or encroaching onto the neighbor’s property to have the requisite intent. It is sufficient that the physical invasion onto the land happened, even if the defendant was unaware it belonged in part to the neighbor.
A landowner who owned a large tract of land in the mountains sought to protect a herd of wild deer that lived on part of the land. Although the landowner had posted signs that said, “No Hunting—No Trespassing,” hunters frequently intruded to kill the deer. Recently, the landowner built an eight-foot-high chain-link fence, topped by three strands of barbed wire, across a gully on her land that provided the only access to the area where the deer lived.
A wildlife photographer asked the landowner for permission to enter the land to photograph the deer. Because the landowner feared that any publicity would encourage further intrusions by hunters, she denied the photographer’s request. Frustrated, the photographer attempted to climb the fence. He became entangled in the barbed wire and suffered extensive lacerations. The wounds became infected and ultimately caused his death. The photographer’s personal representative has sued the landowner.
Is the personal representative likely to prevail?
No, because the potential for harm created by the presence of the barbed wire was apparent.
C. No, because the photographer entered the landowner’s land after the landowner had refused him permission to do so and therefore was a trespasser.
answer reaches the correct answer with the wrong reasoning. The landowner’s refusal to permit others to enter her land was clear both before and after she denied the photographer’s request to enter. Therefore, the photographer would have been a trespasser whether or not the landowner had specifically told him not to enter. Landowners do owe a duty to trespassers to exercise ordinary care to warn the trespasser of, or to make safe, artificial conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover (e.g., hidden traps and deadly force). The barbed wire was not hidden and did not amount to deadly force based on the actions of an average trespasser.
A builder purchased a large tract of land intending to construct residential housing on it. The builder hired a contractor to build a large in-ground swimming pool on the tract. The contract provided that the contractor would carry out blasting operations that were necessary to create an excavation large enough for the pool. The blasting caused cracks to form in the walls of the plaintiff’s home in a nearby residential neighborhood.
In the plaintiff’s action for damages against the builder, the plaintiff should
B. prevail, because the blasting that the contractor was hired to perform damaged the plaintiff’s home.
The general rule of an employer’s non-liability for torts of his independent contractor does not apply to abnormally dangerous work, which is considered non-delegable and triggers strict liability. As such, the builder will be liable for the damage caused by the contractor’s blasting.
A male employee who worked at a psychiatric hospital had sexual relations with a patient in her room at the hospital. The patient was severely mentally disabled, and although the patient did not initiate the encounter, she did not protest.
A tort action was brought on the patient’s behalf against the hospital. The hospital contends that the employee’s actions were outside the scope of his employment.
Is the patient likely to prevail?
D. Yes, because the hospital failed to use reasonable care to protect the patient from such conduct.
Because of the unique vulnerabilities of helpless patients, the hospital would have a duty to institute safeguards to protect against sexual assault. Courts tend to recognize that caretaker institutions of those who are helpless to care for themselves may be considered to have a special relationship, resulting in an affirmative duty to protect their patients. This is the best answer because it addresses the particular problem posed by a severely disabled patient’s being attacked by a hospital employee in her hospital room.
A plaintiff owned a large tract of land on the shore of a lake. The defendant lived on a stream that ran along one boundary of the plaintiff’s land and into the lake. At some time in the past, a channel had been cut across the plaintiff’s land from the stream to the lake at a point some distance from the mouth of the stream. From where the defendant lived, the channel served as a convenient shortcut to the lake. Erroneously believing that the channel was a public waterway, the defendant made frequent trips through the channel in his motorboat. His use of the channel caused no harm to the land through which it passed. Once the defendant learned of the plaintiff’s ownership of the channel, he stopped using it as a shortcut.
If the plaintiff asserts a claim for damages against the defendant based on trespass, which of the following would be a correct disposition of the case?
A. Judgment for the plaintiff for nominal damages, because the defendant intentionally used the channel.
A is correct. Trespass is an intentional entry onto the land of another, without permission. The intent only refers to the intent to enter the property; the defendant need not know that it is another’s private property. For an intentional trespass to land, damage is not required; the court will award nominal damages based on the trespass alone. The facts here support a claim for trespass because the defendant intentionally used the channel, without permission, even though he incorrectly believed it was a public waterway. All other answer choices may be eliminated because they find in favor of the defendant.
While a plaintiff was leaving an elevator, it suddenly dropped several inches, causing her to fall. An investigation of the accident revealed that the elevator dropped because it had been negligently maintained by an elevator company. The elevator company had a contract with the owner of the building to inspect and maintain the elevator. The plaintiff’s fall severely aggravated a preexisting physical disability.
If the plaintiff sues the elevator company for damages for her injuries, she should recover
C. damages for the full amount of her disability, because a tortfeasor must take its victim as it finds her. (오답)
D. damages for the injury caused by the falling elevator, including the aggravation of her preexisting disability.
The elevator company is not responsible for injuries not caused by its negligence, only for the aggravation of the disability.
A married couple bought a new recreational vehicle (RV) to travel in. After the couple brought the RV home, but before they had moved any personal property into it, the RV spontaneously caught fire and was completely destroyed.
Does the couple have a viable strict products liability claim against the manufacturer of the RV?
No, because the damage was only to the RV itself.
Under the economic loss rule, there is no recovery on a strict products liability theory if a defect in a product causes damage only to the product itself, as opposed to personal injury or injury to other property. In such cases, the owner of the damaged product is limited to contract remedies for damage to the product.
A plumbing company hired a worker to work at various construction sites. The worker used his own truck to travel between the company’s warehouse and the construction sites, but the company fitted the truck with a rack for carrying plumbing pipes. The company paid the worker for traveling between the warehouse and the construction sites, but not for his drive to and from work.
Because the worker was required to haul pipes on his truck while driving between the warehouse and the construction sites, the company asked the worker, before hiring him, whether he had a valid driver’s license. The worker represented that he did, although in fact his license had been suspended because he had been convicted of recklessly causing motor vehicle collisions. The company made no effort to verify the worker’s representation.
While driving to work one morning in his truck, the worker carelessly caused a collision in which a woman was injured.
In her subsequent action against the plumbing company, based on a theory of negligent hiring, is the woman likely to prevail?
No, because the company’s duty to use reasonable care in hiring a competent driver extended only to actions taken by the worker in the scope of his employment.
The issue in this question is the scope of liability in a negligent hiring claim context. When an employer fails to act with reasonable care in hiring an individual, the employer opens itself up to potential liability if the employee subsequently causes harm of a type related to the negligence in hiring. However, employers are not liable for all possible activities or actions in which the employee might engage. The classic example of this are activities the employee undertakes when not working. That is the situation this question presents because, though the worker was driving in to work, he was not yet there, and his trips to work were not part of his job (note that the company did not pay him for his trips in). Thus, even if the employer was negligent in hiring the worker, its liability does not extend to this accident.
A plaintiff and a defendant were in the habit of playing practical jokes on each other on their respective birthdays. On the plaintiff’s birthday, the defendant sent the plaintiff a cake containing an ingredient that he knew had, in the past, made the plaintiff very ill. After the plaintiff had eaten a piece of the cake, he suffered severe stomach pains and had to be taken to the hospital by ambulance. On the way to the hospital, the paramedic, who was driving the ambulance, suffered a heart attack, which caused the ambulance to swerve from the road and hit a tree. As a result of the collision, the plaintiff suffered a broken leg.
In a suit by the plaintiff against the defendant to recover damages for the plaintiff’s broken leg, the plaintiff will
A prevail, because the defendant knew that the cake would be harmful or offensive to the plaintiff.
Intentionally wrongful actions render the defendant liable for all consequences of those acts, even if unintended and unforeseen.
While approaching an intersection with the red light against him, a motorist suffered a heart attack that rendered him unconscious. The motorist’s car struck a child, who was crossing the street with the green light in her favor. Under the state motor vehicle code, it is an offense to drive through a red traffic light.
The child sued the motorist to recover for her injuries. At trial it was stipulated that: (1) immediately prior to suffering the heart attack, the motorist had been driving within the speed limit, had seen the red light, and had begun to slow his car; (2) the motorist had no history of heart disease and no warning of this attack; (3) while the motorist was unconscious, his car ran the red light.
On cross motions for directed verdicts on the issue of liability at the conclusion of the proofs, the court should
C. grant the motorist’s motion, because he had no history of heart disease or warning of the heart attack.
The stipulated facts prove that there was no legally sufficient evidentiary basis for a reasonable jury to find that the motorist breached his duty of care given that he was not driving negligently and had no history of heart disease that created a foreseeable risk of harm to others while driving.
The grandson and his friend, both eight years old, were visiting at the grandmother’s house when, while exploring the premises, they discovered a hunting rifle in an unlocked gun cabinet. They removed it from the cabinet and were examining it when the rifle, while in the grandson’s hands, somehow discharged. The bullet struck and injured the friend. The gun cabinet was normally locked. The grandmother had opened it for dusting several days before the boys’ visit, and had then forgotten to relock it. She was not aware that it was unlocked when the boys arrived.
At the trial on an action against the grandmother on behalf of the friend, the information above has been admitted into evidence. If the grandmother moves for a directed verdict in her favor at the end of the friend’s case, that motion should be
denied, because a jury could find that the grandmother breached a duty of care she owed to the plaintiff.
directed verdict (also called Judgment as a Matter of Law) allows judgment if the evidence, when viewed in the light most favorable to the nonmoving party, is such that a reasonable person/jury could not disagree. A directed verdict is entered at the close of the evidence before the matter goes to a jury. There are two potential claims at issue in this question. The first is whether the grandmother can be held vicariously liable for the grandson’s tortious act. The grandmother has a duty to exercise reasonable care in the control of the grandson while he is physically within her care or custody. Liability, however, is generally limited to actions that were a known propensity of the child, and thus, foreseeable by the caretaker. A custodian of a child who fails to exercise control regarding the known propensity of that child is generally not vicariously liable for the child’s tortious behavior; rather the caretaker is liable for his or her own negligence in failing to control the child. The facts clearly indicate that the grandson’s behavior was not foreseeable to the grandmother.
