Torts workshop Flashcards
A driver on a 3,000-mile cross-country trip in
his new car tried to drive the entire trip without
stopping, but fell asleep at the wheel, causing the
car to strike a bridge abutment and roll over. The
driver was seriously injured by the rollover, and
suffered additional injuries when the turn signal
rod broke off and punctured his lung.
The driver had purchased the car from his
local auto dealer. The car was manufactured by
a local manufacturer, and the turn signal rod
was manufactured by a subcontractor whom the
manufacturer had used for many years. Tests
after the accident established that the turn signal
rod was defective and that the defect was the
reason it broke off. The defect was not discoverable through reasonable inspection and the
manufacturer had had no prior indication of any
defects.
The driver brought a strict liability action
against the manufacturer in a jurisdiction that
does not apply its comparative negligence rules
to strict liability actions.
What is the likely result of the driver’s action?
(A) The driver will be awarded damages for all
injuries incurred as a result of the accident.
(B) The driver will be awarded damages for
injuries incurred because the turn signal
rod was defective, but he will not recover
for other injuries incurred in the accident.
(C) The manufacturer will prevail, because the
accident was caused by the driver’s negligence.
(D) The manufacturer will prevail, because the
driver cannot show that the manufacturer
knew or should have known that the turn
signal rod was defective.
(B) The driver will be awarded damages for injuries from the turn signal rod. Even though the defective turn signal rod was not the proximate cause of the accident, the driver can recover from the
manufacturer for the additional injuries suffered due to the defective turn signal rod, because
those are identifiable as caused by that defect. The manufacturer is strictly liable under a products
liability theory for injuries caused by that defect, even though a subcontractor manufactured the
rod. Thus, (B) is the correct answer. (D) can be eliminated because it deals with a negligence
theory, and the suit is being filed under a strict liability theory. Because liability attached only for
the damages actually caused by the defective turn signal, (A) is incorrect. (C) is incorrect. In a
jurisdiction that does not apply its comparative negligence rules to strict liability actions, ordinary
contributory negligence is not a defense. The driver’s falling asleep at the wheel was negligent and
a cause of the accident, but his punctured lung was also caused by the defective turn signal.
hree volunteers independently brought to the
event a casserole dish made with ground beef.
Each of them had prepared her dish in her own
kitchen. Another volunteer combined the dishes
onto one large serving platter, from which guests
at the luncheon served themselves. One of the
guests became seriously ill with what the health
department later determined to be a bacterial
infection from undercooked beef that was in the
combined casserole. The guest brought an action
against the three volunteers who made the casserole dishes, alleging negligent preparation of the
ground beef.
Assuming that the guest can establish only
the above facts and his injuries, who is likely to
prevail in the action?
(A) The guest, because, under the doctrine
of res ipsa loquitur, he has established an
inference of negligence.
(B) The guest, because he can require each of
the volunteers to prove that she was not the
actual cause of the injury.
(C) The volunteers, because the guest cannot
establish which of the volunteers breached
her duty of care.
(D) The volunteers, because they all were
donating their time and food to the event.
(C) The volunteers are likely to prevail. The elements of the prima facie case for negligence are (i)
a duty owed to the plaintiff, (ii) breach of that duty, (iii) actual and proximate cause, and (iv)
damages. Here, the volunteers each owed a duty of care to anyone consuming the food they
prepared, including the guest. The facts indicate that at least one of the volunteers breached that
duty by improperly preparing or cooking the ground beef. That breach of duty caused the guest
to become seriously ill. However, he cannot establish which of the volunteers breached the duty
of care and was the actual cause of his injury. Absent additional evidence, the guest will not
prevail.
(A) is incorrect. Res ipsa loquitur does not apply because more than one person supplied
the casserole dish. The res ipsa loquitur doctrine enables a plaintiff to establish breach of duty
just from the fact that an injury occurred that would not ordinarily occur unless someone was
negligent. However, the plaintiff must establish evidence connecting a particular defendant with
the negligence to support a finding of liability against that defendant. When more than one person
was in control of the instrumentality that caused the injury, such as here, res ipsa loquitur generally may not be used. The doctrine sometimes has been applied to multiple parties involved in a
joint venture, but that does not apply in this case. Each person volunteered independently to make
the casserole dish, and each of them worked individually with their own recipes in their own
homes, and another person combined the three batches into one casserole dish.
A mother whose young son was riding on
a roller coaster by himself for the first time
walked some distance away to get a snack. She
heard a commotion by the ride and saw a crowd
gathered. When she came closer, she heard
someone close to the scene say that a young
boy had fallen off and was killed. She was very
distraught but could not see through the crowd.
In fact, it was not her son but another boy who
had fallen off. That boy had struck her son while
falling from a higher part of the track, resulting
in injuries to her son. The mother, who was
pregnant, ultimately suffered a miscarriage as
a result of accident-related stress. In a previous
suit by the parents of the boy who was killed, the
ride operator was found liable for negligence in
operating the ride.
Can the mother recover damages for her
distress and resulting miscarriage in an action
against the ride operator for negligent infliction
of emotional distress?
(A) Yes, because her son was injured as a result
of the operator’s negligence.
(B) Yes, because she was closely related to
someone in the zone of danger from the
operator’s negligence.
(C) No, because she was not within the zone of
danger from the operator’s negligence.
(D) No, because her son was not the boy who
was killed.
(C) The mother cannot recover. A duty to avoid negligent infliction of emotional distress may be
breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. For
a bystander who is outside the zone of danger from the risk of physical injury but who suffers
emotional distress from seeing the defendant negligently injure another, most states allow
recovery 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 mother was some distance away and not in the zone of danger,
so her distress was not caused by any perceived danger to her. Nor can she recover under the
bystander rules. While she is related to her son, who was injured in part by the ride operator’s
negligence, she was not present at the scene of the injury and did not personally observe or
perceive the event. Rather, her distress was due primarily to hearing someone say that a young
boy had been killed and not being able to get close enough to the ride to see where her son was.
Hence, she cannot recover damages for negligent infliction of emotional distress. (A) is incorrect.
The mother’s distress was not caused by the injuries her son suffered, but rather at her fear that
he was the one killed. While she may be able to recover damages for his injuries, those would be
distinct from any damages for her emotional distress.
A camper at a state park built a campfire
within a fire ring on a calm day according to
approved procedures. Just as a sudden strong
wind arrived and blew some embers onto the
grass, a large bear came out of the woods and
charged at the camper. The camper ran to his
car, which was some distance away, with the
bear in close pursuit. By the time the bear left
and the camper was able to exit the car and
summon assistance, the embers in the grass had
started a brush fire. The fire destroyed another
camper’s equipment and automobile at a nearby
campsite before it could be extinguished.
The other camper sued the camper who
started the fire. At trial, the parties stipulated
to the above facts. The plaintiff introduced into
evidence a state statute that prohibited leaving
any campfires unattended and required them to
be extinguished immediately if any embers were
blown out of the fire ring. At the conclusion of
the proofs, both parties moved for a directed
verdict.
How should the court rule on the motions?
(A) Grant the plaintiff’s motion, because the
statute was intended to prevent the type of
harm that occurred, making the statutory
standard applicable.
(B) Grant the plaintiff’s motion, because a
brush fire caused by a campfire does not
ordinarily happen in the absence of negligence by the camper.
(C) Grant the defendant’s motion, because the
plaintiff has not established a prima facie
case of negligence.
(D) Deny both motions, because the jury should
make the factual determination of whether
the defendant was negligent.
(C) The court should grant the defendant’s motion because the plaintiff has not offered sufficient evidence of negligence on the defendant’s part to go to the jury. The standard of care in a negligence case may be established by proving that a statute imposing a specific duty applies instead of the more general common law duty of care. However, violation of the statute may be excused where compliance would cause more danger than violation or where compliance would be beyond the defendant’s control. Here, the statute regulating campfires is applicable because (i) the plaintiff, a fellow camper, is in the class intended to be protected by the statute, (ii) the statute was designed to prevent the escape of a campfire, which is what occurred here, and (iii) the statute clearly specifies what is required. However, even though the statute would apply to the defendant’s conduct and the defendant violated the statute, the violation will be excused here because he was fleeing for his life from a bear and had to take refuge in his car. Hence, the defendant will not be held to the statutory standard of care here. Because the plaintiff has offered no other evidence that the defendant was negligent, the defendant’s motion should be granted.
(A) is incorrect because,
as discussed above, even though the statute was intended to prevent the harm that occurred, the
defendant’s violation of the statute will be excused.
A driver traveling the speed limit in the
evening on a quiet country road rounded a curve
and struck a bicyclist who was riding in the same
lane. The driver stopped the car and inspected
the bicyclist, who had a broken leg. The driver
thought it best not to try to move the bicyclist,
so he told him that he would go to get help. The
driver drove away and left the bicyclist by the
side of the road. After the driver had left the
scene, he realized that he had forgotten his wife’s
birthday, so he stopped to buy a gift and hurried
home. He did not remember the bicyclist until
a few hours later, but assumed that by that time
someone would have come along to render assistance. However, the bicyclist was not rescued
until the following morning. By then, he had
contracted pneumonia as a result of exposure.
The bicyclist sued the driver to recover
damages for his broken leg and the pneumonia.
If the jury finds that the driver was not negligent in his operation of his automobile, for what
harm will the bicyclist most likely recover?
(A) Both the leg injury and the pneumonia.
(B) The leg injury but not the pneumonia.
(C) The pneumonia but not the leg injury.
(D) Neither the leg injury nor the pneumonia.
(C) The bicyclist will most likely recover for the pneumonia but not for the leg injury. The facts and
the call of the question indicate that the driver was not driving negligently when the accident
occurred. Therefore, he is not liable for the leg injury caused by the accident, and (A) and (B) are
incorrect. However, where the defendant’s actions have placed another person in peril or caused
another’s injury, the defendant has a duty to make reasonable efforts to rescue the imperiled
person or render aid to his victim. The driver’s neglect of the bicyclist after injuring him will
make him liable for the resulting pneumonia. Therefore, (B) and (D) are incorrect.
Two members of a backgammon club owned
identically sized, red backgammon boards. The
first member’s board was made of cheap material
while the second member’s board was quite
expensive. One night, after a competitive tournament, the two members met in the finals, playing
on a borrowed board. The second member won
and the first member, visibly upset, mistakenly
grabbed the other’s board and drove home. As
was her custom, she left the board in the trunk
of her car. Meanwhile, the owner of the board
discovered the board switch and drove to the
first member’s apartment to make an exchange.
The first member took the second to her parking
place and saw that her car had been stolen. The
police recovered the car days later, with no
backgammon board in the trunk. The second
member demanded a replacement board, but was
refused.
In an action to recover the board’s value, will
the second member recover?
(A) Yes, because when the first member took
the board she committed a trespass to chattel.
(B) Yes, because when the board was stolen
along with the car, the first member became
liable for conversion.
(C) No, because the first member believed in
good faith that the board was hers when she
took it from the club.
(D) No, because the board was lost through no
fault of the first member
(B) The plaintiff will win because the defendant committed a conversion. A conversion occurs when
the defendant intentionally causes serious interference with the chattel of the plaintiff. The intent
involved refers to the physical act that results in the conversion, not to the defendant’s desires
regarding the ultimate disposition of the property. Therefore, the first member was guilty of
conversion when she intentionally (i.e., volitionally) took the second’s board, which resulted in its
loss, even though the first member did not intend to lose it or even realize that she had taken the
property of another.
(A) is not the best answer because complete loss of a chattel is too serious an
interference to be classified a mere trespass.
(C) is wrong because the first member’s good faith
is irrelevant in a conversion action. (D) is wrong because the fact that the first member’s car was
stolen does not relieve her of liability
