4 Torts Practice Questions

Front 1

A yoga instructor, licensed through a respected program that meets the highest standards as defined by the profession, established her own studio in a building that abuts a large park. She became so popular that a waiting list to attend her class has grown. A potential student, who could not get into the instructor’s class, regularly watched the instructor’s lessons from behind a tree in the park adjacent to the studio, mimicking the instructor’s movements. The instructor knew of the potential student’s activity, and was annoyed that he was taking advantage of her classes without paying for them. During one morning class, she explained the situation to her paying students and warned them that she planned to perform silly poses directly contrary to yoga principles in hopes that the potential student would stop watching her class. She warned all of her clients not to mimic her poses.

Back 1

He sued the instructor for negligence.

Would the instructor be liable for the potential student’s injury?
A. Yes, because she was aware that the potential client was copying her motions, and the resulting harm was foreseeable.
B. Yes, because she is a licensed professional in her field, and as such is strictly liable for harm caused in her professional capacity.
C. No, because the potential student was not a paying customer.
D. No, because she never physically touched or directly spoke to the potential

Front 2

A

Back 2

A duty of care is generally owed to all foreseeable plaintiffs. The majority rule for determining whether a plaintiff is a “foreseeable plaintiff,” is whether the plaintiff is within the zone of foreseeable harm. This rule is referred to as the “Cardozo view.” Here, the instructor was aware that the potential student copied her actions from a nearby park. Moreover, a professional person is expected to exhibit the same skill, knowledge, and care as another practitioner in the same community. If the moves she performed were directly contrary to her training, she should have foreseen that the potential student could be injured. Accordingly, the instructor would be held liable for the potential client’s injuries.

Front 3

A woman erroneously believes that her boyfriend has stolen a valuable bracelet from her. She calls his cell phone and, after identifying him by name, leaves the following message, "You thief! Give me back my bracelet." Unknown to the woman, the boyfriend has another girlfriend. That girlfriend has access to the boyfriend's cell phone and listens to the message. In a suit for slander by the boyfriend brought against the woman, will the boyfriend prevail?
A. Yes, because the statement was false.
B. Yes, because the statement was slander per se.
C. No, because the woman was a private person and the matter was not one of public concern.
D. No, because the statement was not published negligently or intentionally.

Back 3

D
For a statement to be slander, it must be communicated to a third party either intentionally or negligently. There is no strict liability with regard to publication of defamatory language. Here, the woman was unaware that the hearer of the message had access to the boyfriend's cell phone.

Front 4

A man went to visit his grandfather, who was very ill. The grandfather and grandson reminisced about hunting trips they had taken on property owned by the grandfather. The grandfather told his grandson that he wanted him to have the property after the grandfather died. The grandson was unaware that his grandfather had sold the property earlier that month to a rancher who lived on an adjacent piece of property. Shortly after the grandfather died, the grandson planned a short trip to look over the property. The rancher, spotting the grandson, told the grandson that he now owned the land, and ordered the grandson to leave immediately. The grandson called the rancher a liar and refused to leave. The rancher went back to his house to think over his options. By the time he decided to report the grandson, however, the grandson had left to catch his flight home. The rancher has sued the grandson for trespass.
Is the rancher likely to succeed in his claim against the grandson?

Back 4

A. No, because the grandson honestly believed he owned the property.
B. No, because the rancher cannot prove he suffered damages.
C. Yes, because the grandson refused to leave after being told he did not own the land.
D. Yes, because mistake of fact is not a defense to a trespass to land claim.

Front 5

D

Back 5

Trespass to land occurs when the defendant’s intentional act causes a physical invasion of the land of another. The defendant need only have the intent to enter the land, not the intent to commit a wrongful trespass. Mistake of fact is not a defense because the defendant need not know that the land belongs to another. In this case, the grandson intentionally entered land that belonged to the rancher in order to look over the property; it is irrelevant that the grandson believed that he owned the land. Thus, answer choice A is incorrect. Answer choice B is incorrect because a trespass claim does not require proof of actual damages. Answer choice C is incorrect because intent is an element of a trespass to land claim. A defendant need only have the intent to enter the land, however, and not the intent to trespass.

Front 6

A man was hospitalized with chest pain. His physician ran diagnostic tests that revealed that the man was suffering an acute attack that required immediate surgical intervention. The physician informed the man of the need for surgery, and began to explain that the risks included surgical site infection. Before the doctor could explain the other risks, the man stopped him and stated, “Please don’t tell me anymore. I know I need the surgery, no matter the risks.” The man underwent the surgery immediately thereafter. Due to an unforeseen complication, the man died on the operating table. The man’s estate sued the physician for failure to inform the man of the risks of the surgery. The physician responded with the defense that the man had given informed consent for the surgery.
Will the man’s estate prevail in its action against the physician?

Back 6

A. Yes, because the physician was bound to inform the patient of all the potential risks of the surgery.
B. Yes, because the man did not give informed consent for the surgery.
C. No, because the physician was only required to inform the patient of the commonly known risks of the surgery.
D. No, because the man consented to the surgery after refusing to hear about all the risks.

Front 7

D

Back 7

Physicians are under a special obligation to explain all material risks of a medical procedure to a patient in advance of a patient’s decision to consent to treatment. Failure of a physician to secure informed consent from the patient constitutes a breach of the physician’s duty toward the patient and is actionable as medical malpractice. Doctors are not under an obligation to disclose when the risk is a commonly known risk, the patient waives or refuses the information, the patient is incompetent (although the physician must make a reasonable attempt to secure informed consent from a guardian), or disclosure would be too harmful to the patient (e.g., it would upset the patient enough to cause extreme illness, such as a heart attack). Here, the man refused to hear about all the risks of the surgery before consenting to it. Thus, the doctor did not breach his duty to the man.

Front 8

A chemical company manufactured a liquid chemical product known as XRX. Some XRX leaked from a storage tank on the chemical company's property, seeped into the groundwater, flowed to a farmer's adjacent property, and polluted the farmer's well. Several of the farmer's cows drank the polluted well water and died.
If the farmer brings an action against the chemical company to recover the value of the cows that died, the farmer will
A. Prevail, because a manufacturer is strictly liable for harm caused by its products.
B. Prevail, because the XRX escaped from the chemical company's premises.
C. Not prevail, unless the farmer can establish that the storage tank was defective.
D. Not prevail, unless the chemical company failed to exercise reasonable care in storing the XRX.

Back 8

Answer choice B is correct. Under the traditional standard for res ipsa loquitur, the plaintiff must prove that (i) the accident was of a kind that ordinarily does not occur in the absence of negligence; (ii) it was caused by an agent or instrumentality within the exclusive control of the defendant; and (iii) it was not due to any action on the part of the plaintiff. Here, absent negligence, the seeping of XRX into the groundwater would not ordinarily occur in the absence of negligence, and the facility and chemical were under the exclusive control of the defendant. Finally, the accident was not due to any action on the part of the farmer.

Front 9

The plaintiff's father died in the hospital. The hospital maintains a morgue with refrigerated drawers a bit larger than a human body. The father's body was placed in such a drawer awaiting pickup by a mortician. Before the mortician called for the body, a hospital orderly placed two opaque plastic bags in the drawer with the father's body. One bag contained the father's personal effects, and the other contained an amputated leg from some other hospital patient. It is stipulated that the hospital was negligent to allow the amputated leg to get into the father's drawer. The mortician delivered the two opaque plastic bags to the plaintiff, assuming both contained personal effects. The plaintiff was shocked when he opened the bag containing the amputated leg. The plaintiff sued the hospital to recover for his emotional distress.

Back 9

At the trial, the plaintiff testified that the experience had been extremely upsetting, that he had had recurring nightmares about it, and that his family and business relationships had been adversely affected for a period of several months. He did not seek medical or psychiatric treatment for his emotional distress. Who should prevail?
A. The plaintiff, because of the sensitivity people have regarding the care of the bodies of deceased relatives.
B. The plaintiff, because hospitals are strictly liable for mishandling dead bodies.
C. The hospital, because the plaintiff did not require medical or psychiatric treatment.
D. The hospital, because the plaintiff suffered no bodily harm.

Front 10

A
Generally, a plaintiff may recover for negligent infliction of emotional distress from a defendant whose negligence creates a foreseeable risk of injury to the plaintiff, which causes a threat of physical impact that leads to emotional distress. In certain circumstances when the defendant's negligence is likely to result in severe emotional distress, a plaintiff can recover for negligent infliction of emotional distress without proving all of the usual requirements. These situations are typically limited to the mishandling of a human corpse and delivering of misinformation that the plaintiff's relative has died. It is likely that pulling out an amputated leg believing it to be the personal effects of a deceased family member would be sufficient to establish this claim.

Back 10

Answer choice B is incorrect because none of the areas in which strict liability are applicable (wild animals; ultrahazardous activities; and defective and dangerous products) are contemplated here. Answer choice C is incorrect. The plaintiff must merely establish severe distress, which can be emotional in nature. Although courts traditionally look to the intensity, duration, and any physical manifestations of the distress, it is not required that the emotional distress be medically diagnosable and medically significant. Answer choice D is incorrect because physical injury is not required when a negligent mishandling of a corpse has occurred.

Front 11

A college student purchased roller skates for a fraternity party encouraging guests to dress as “extinct partygoers.” She found bellbottoms and other appropriate attire to appear as an attendee at a disco roller rink. The costume was a hit, but the bellbottoms continuously got caught in the wheels of the skates. She therefore took them off, filled them with alcohol, and continually slid them across the bar to her friends throughout the night. The skates fell off the end of the bar many times. At one point as the skates slid across the bar, a wheel flew off and knocked out two of her teeth. She filed a products liability claim against the manufacturer of the skates on the basis that the skates were defectively manufactured. During trial, her attorney demonstrated that the wheels contained one less screw than should have been included according to the manufacturer’s design and that the skates were not tampered with after leaving the manufacturer.

Back 11

The other evidence at trial demonstrated that the repeated falls off of the bar caused the other screws to come loose, leading to the wheel coming off the skate; otherwise, the remaining screws would have kept the wheel in place.

Is the student likely to prevail in her claim?
A. Yes, because the wheel falling off is evidence of a design defect.
B. Yes, because the skates did not conform to the manufacturer’s own specifications.
C. No, because she was not using the skates in a reasonably foreseeable manner.
D. No, because the skates were not dangerous beyond the expectations of an ordinary consumer.

Front 12

C

Back 12

To prevail on a claim for strict products liability based on a manufacturing defect, the plaintiff must prove that: (i) the product was defective, (ii) the defect existed at the time the product left the defendant’s control, and (iii) the defect caused the plaintiff’s injury when used in an intended or reasonably foreseeable way. While misuse of a product is not an automatic bar to recovery, the particular misuse must be foreseeable. Here, the foreseeable use of the skates is to roll across surfaces. Sliding the skates across a surface (even a bar) might be reasonably foreseeable, but repeatedly crashing the skate onto the floor from a relatively tall height is not a foreseeable use. Although the student would be able to demonstrate that a defect exists, she could not meet all the elements of the claim for products liability based on a manufacturing defect.

Front 13

While the defendant was taking a leisurely spring drive, he momentarily took his eyes off the road to look at some colorful trees in bloom. As a result, his car swerved a few feet off the roadway, directly toward the plaintiff, who was standing on the shoulder of the road waiting for a chance to cross. When the plaintiff saw the car bearing down on him, he jumped backwards, fell, and injured his knee.
The plaintiff sued the defendant for damages, and the defendant moved for summary judgment. The foregoing facts are undisputed.
The defendant's motion should be
A. Denied, because the record shows that the plaintiff apprehended an imminent, harmful contact with the defendant's car.
B. Denied, because a jury could find that the defendant negligently caused the plaintiff to suffer a legally compensable injury.
C. Granted, because the proximate cause of the plaintiff's injury was his own voluntary act.
D. Granted, because it is not unreasonable for a person to be distracted momentarily.

Back 13

B. Here, the summary judgment should be denied as it is possible that the jury could find that the defendant breached his duty of care as an automobile driver and, due to that failure, caused the injury to the plaintiff. Answer choice A is incorrect because the facts above do not set forth a cause of action for assault. As an intentional tort, the defendant must have intended to instill in the defendant an apprehension of contact, which is not contemplated here.

Front 14

Using a path frequented by students, a college student decides to take a short cut through the back yard of a homeowner. The homeowner, who is unaware of the student's presence, is cleaning out the cage of a rattlesnake he is keeping at his house. The homeowner has carelessly allowed the snake to roam free. The snake, hidden from the student's view by a tree, is startled by the student as the student walks past and strikes the student. The student is seriously injured by the snakebite.
The applicable jurisdiction permits the keeping of a rattlesnake as a pet.

In a strict liability action by the student against the homeowner, who will prevail?
A. The student, because the homeowner possessed a wild animal.
B. The student, because the homeowner, aware that students frequently used the path, failed to act with reasonable care.
C. The homeowner, because the student was trespassing.
D. The homeowner, because the homeowner's possession of the rattlesnake is legal.

Back 14

C.
an owner of a wild animal is generally not strictly liable to an undiscovered trespasser who is injured by the wild animal, except for injuries caused by a vicious watchdog. Here, the student was an undiscovered trespasser and the homeowner’s animal was not a vicious watchdog. Answer choice A is incorrect because, while the possessor of a wild animal generally is strictly liable to a licensee or invitee who is injured by the wild animal, the possessor is not strictly liable to an undiscovered trespasser.

Front 15

6. (Question ID#1332)
The owner of pastureland permits a herder to keep several goats in the pasture. The goats wander off the land, leap over a fence properly maintained by a neighbor, and ramble into the neighbor's garden. Once in the garden, the goats eat the vegetables growing there.
In a strict liability action brought by the neighbor against the landowner and the herder, who is liable?
A. Only the landowner.
B. Only the herder.
C. Both the landowner and the herder.
D. Neither the landowner nor the herder.

Back 15

Answer choice B is correct because the owner of any animal, wild or domestic (other than a household pets) is strictly liable for any reasonably foreseeable damages caused by the animal while trespassing on another's land. Strict liability does not extend to the owner of the land on which the animals are kept, even when the animals are on the land with the landowner's permission, unless the landowner also has the right to possess the animals. Consequently, answer choices A, C, and D are incorrect.

Front 16

As designed by the manufacturer, an electric beater contained parts that could not safely handle the electric current over an extended period. The manufacturer used the parts, which were not defective, in order to marginally lower the cost of the beater below that of a competitor's beater. On the plastic body of the beater, the manufacturer placed a label clearly warning that the beater should not be run at its highest speed for more than five minutes and that failure to do so could result in the beater overheating and catching fire. A consumer purchased a beater that was manufactured in conformity with the design. The consumer failed to read the warning label, and used the beater on several occasions in the preparation of food without incident. On one occasion, however, the consumer used the beater to prepare a mix at high speed for more than seven minutes. The beater caught fire, badly burning the consumer's hands and resulting in damage to the consumer's kitchen.

Back 16

The consumer filed a strict products liability action against the manufacturer for personal injury and property damages. Will the consumer prevail?
A. Yes, because the beater was defectively designed.
B. Yes, because the beater had a manufacturing defect.
C. No, because the manufacturer warned the consumer about prolonged use of the blender at its highest speed.
D. No, because the consumer failed to read the warning.

Front 17

Answer choice A is correct. Under strict products liability, the manufacturer, retailer, or other distributor of a defective product may be liable for any harm to persons or property caused by such product. Using the risk-utility test, to prevail on a claim under a strict products liability design defect theory, the jury must determine whether the risks posed by the product outweigh its benefits. A plaintiff must prove that a reasonable alternative design was available to the defendant and the failure to use that design has rendered the product not reasonably safe. The alternative design must be economically feasible. Here, the beater as designed was not reasonably safe and could have been made reasonably safe at a slight cost. Therefore, the consumer will prevail.

Back 17

Answer choice B is incorrect because, since the beater was manufactured in conformity with its design, the defect was not a manufacturing defect. Answer choice C is incorrect because the manufacturer of a defectively designed product generally cannot escape liability for harms that result from the defect by warning about the defect. Otherwise, the manufacturer of a defectively designed product could escape liability by merely placing a warning on the product. Answer choice D is incorrect because, while a consumer's failure to read a warning can protect a commercial supplier from liability where the product is defective due to a failure to warn, a commercial supplier is generally not similarly shielded where the defect is due to a defective design.

Front 18

The defendant owned a shotgun that he used for hunting. The defendant knew that his old friend had become involved with a violent gang that recently had a shoot-out with a rival gang. The defendant, 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 defendant picked up his friend to give him a ride to another friend's house. After dropping off his friend at the other friend's house, the defendant proceeded to the farm, where he discovered that his shotgun was missing from his car. The defendant's old friend had taken the shotgun and, later in the day, he used it to shoot the plaintiff, a member of the rival gang. The plaintiff was severely injured.

Back 18

The plaintiff recovered a judgment for his damages against the defendant, as well as his friend, on the ground that the defendant was negligent in allowing his friend to obtain possession of the gun, and was therefore liable jointly and severally with his friend for the plaintiff'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 defendant fully satisfies the judgment, the defendant then will have a right to recover from his friend
A. Indemnity for the full amount of the judgment, because the old friend was an intentional tortfeasor.
B. Contribution only, based on comparative fault, because the defendant himself was negligent.
C. One-half of the amount of the judgment.
D. Nothing, because the defendant's negligence was a substantial proximate cause of the shooting.

Front 19

Answer choice A is correct. Indemnification is the shifting of the entire loss from one joint tortfeasor to another party. Indemnification generally applies when one tortfeasor is vicariously liable for the other’s wrongdoing. The tortfeasor who has discharged the liability is entitled to indemnity from the actual wrongdoer who was primarily responsible for the harm. Even though the old friend and the defendant are liable jointly and severally for the plaintiff's damages, the defendant will have the right to recover the full amount of the judgment from his old friend due to his status as an intentional tortfeasor. Although this jurisdiction permits contribution between tortfeasors of an amount paid in excess of the person's comparative share, contribution is irrelevant because his old friend will be 100% responsible for the judgment due to indemnification.

Back 19

Answer choice B is incorrect because contribution involves the sharing of the financial burden between joint tortfeasor when one pays more than his pro rata share. As the defendant can be indemnified, contribution is irrelevant. Answer choice C is incorrect because even though both the old friend and the defendant were negligent, the damages would not automatically be divided in half. Answer choice D is incorrect. When two defendants' negligence combine to cause an indivisible injury, the defendants are jointly and severally liable to each other. The defendant here would still be entitled to indemnification from his old friend.

Front 20

A business was founded by two partners. As the business grew, the two partners became increasingly busy. The partnership hired a limousine service, which provided a car and driver, to allow the partners to work en route to meetings. Both partners were on their way to a meeting when the limousine driver negligently ran a red light and crashed the car. One of the partners was not wearing a seat belt and suffered serious injury. The other partner was wearing a seat belt and did not suffer any injuries. The injured partner was unable to work for weeks due to his injuries, resulting in serious disruptions to the business. The partnership sued the limousine service on a negligence theory, alleging that it suffered significant losses due to the absence of the injured partner. The applicable state law recognizes a partnership as a separate legal entity that can sue and be sued.
Is the partnership likely to recover in its negligence suit?

Back 20

A. No, because the business suffered only economic losses, with no personal or property damage.
B. No, because the business may recover only from the driver, not his employer.
C. Yes, because the driver’s negligence caused the business to suffer actual damages.
D. Yes, because the driver owed a duty of care to the business and the individual partners.

Front 21

A

Back 21

A negligence plaintiff must prove actual injury. A plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover such loss through a negligence action. In this case, the business suffered only economic losses, and thus may not recover. Answer choice B is incorrect because the business may not recover from either the driver or his employer. Moreover, an employer is liable for the negligent actions of its employee committed in the scope of employment. Answer choice C is incorrect because the business suffered only economic loss, not actual damages. Answer choice D is incorrect because, even if the driver owed a duty of care to the business, the business cannot satisfy the elements of a negligence action because it cannot prove damages.

Front 22

The plaintiff and the defendant were passengers sitting in adjoining seats on a flight on an airline. There were many empty seats on the aircraft.

During the flight, a flight attendant served the defendant nine drinks. As the defendant became more and more obviously intoxicated and attempted to engage the plaintiff in a conversation, the plaintiff chose to ignore the defendant. This angered the defendant, who suddenly struck the plaintiff in the face, giving her a black eye.

If the plaintiff asserts a claim for damages against the airline based on battery, she will
A. Prevail, because she suffered an intentionally inflicted harmful or offensive contact.
B. Prevail, if the flight attendant acted recklessly in continuing to serve liquor to the defendant.
C. Not prevail, because the defendant was not acting as an agent or employee of the airline.

Back 22

C
Answer choice C is correct. Vicarious liability is a form of strict liability in which one person is liable for the tortious actions of another. It arises when one person has the right, ability, or duty to control the activities of another, even though the first person was not directly responsible for the injury. As the defendant here was not within the control of the airline, either as employee or agent, the airline cannot be liable for his conduct. Answer choice A is incorrect because, absent a relationship giving rise to vicarious liability, the airline would not be liable for the actions of the defendant. Answer choice B is incorrect. Even if the flight attendant acted recklessly, the airline would not be responsible for the defendant's actions absent a relationship giving rise to vicarious liability. The airline may be responsible for the actions of its own employees, but the flight attendant did not engage in a battery.

Front 23

A woman told her friend that she believed she had a peanut allergy, although it had not been diagnosed. In an attempt to prove her long-held theory that peanut allergies do not really exist, the friend decided to surreptitiously give the woman some peanuts. The friend invited the woman over for lunch, assuring her that the lunch was peanut-free. In fact, the friend had substituted peanuts for pine nuts in the pesto on their sandwiches. After they finished eating, the friend began to feel guilty and admitted to her plan. When the woman saw hives forming on her arm, she decided to go to the doctor. The doctor told the woman that the hives were likely due to anxiety, but that he would provide an ointment. Due to a mix-up, the doctor ordered the nurse to provide the woman with an antibiotic to which the woman was allergic. The woman suffered a severe reaction to the antibiotic. The woman has sued her friend and her doctor for negligence. The friend has filed a motion to dismiss the claims

Back 23

Is the friend likely to succeed in having the claims against her dismissed?
A. No, because the doctor’s error and the resulting harm were foreseeable.
B. No, because the friend’s actions were the direct cause of the woman’s injuries.
C. Yes, because the doctor’s error was the direct cause of the woman’s injuries.
D. Yes, because the doctor’s error was a superseding cause of the woman’s injuries.

Front 24

Answer choice A is correct. To succeed on a negligence claim, the plaintiff must prove proximate causation. Proximate cause exists when the defendant’s actions are a direct cause of the plaintiff’s injuries. Or, if an intervening force occurs between the defendant’s act and the plaintiff’s injury, the defendant still may be liable if the intervening force was foreseeable. Medical malpractice is a foreseeable intervening force. In this case, the doctor’s error was foreseeable after the friend intentionally gave the woman a food to which she may have been allergic. Accordingly, the friend was the proximate cause of the woman’s injuries. Answer choice B is incorrect because the doctor’s negligence in providing the woman with the wrong medication was the direct cause of the woman’s injuries.

Back 24

Answer choice C is incorrect because, although the doctor’s error was the direct cause of the woman’s injuries, the doctor’s actions were a foreseeable intervening force. Accordingly, the friend is unlikely to succeed in having the claims dismissed. Answer choice D is incorrect because the doctor’s actions were not a superseding cause of the woman’s injuries. When an intervening cause is unforeseeable, it may become a superseding cause and cut off the defendant’s liability. Medical malpractice is foreseeable, however. Thus, the doctor’s actions were not a superseding cause.

Front 25

A car owner left her car at the garage to have repair work done. After completing the repairs, the mechanic took the car out for a test drive and was involved in an accident that caused damages to the plaintiff.
A statute imposes liability on the owner of an automobile for injuries to a third party that are caused by the negligence of any person driving the automobile with the owner's consent. The statute applies to situations of this kind, even if the owner did not specifically authorize the mechanic to test-drive the car.
The plaintiff sued the car owner and the mechanic jointly for damages arising from the accident. In that action, the car owner cross-claims to recover from the mechanic the amount of any payment the car owner may be required to make to the plaintiff. The trier of fact has determined that the accident was caused solely by negligent driving on the mechanic's part, and that the plaintiff's damages were $100,000.
In this action, the proper outcome will be that

Back 25

A. The plaintiff should have judgment for $50,000 each against the car owner and the mechanic; the car owner should recover nothing from the mechanic.
B. The plaintiff should have judgment for $100,000 against the mechanic only.
C. The plaintiff should have judgment for $100,000 against the car owner and the mechanic jointly, and the car owner should have judgment against the mechanic for 50 percent of any amount collected from the car owner by the plaintiff.
D. The plaintiff should have judgment for $100,000 against the car owner and the mechanic jointly, and the car owner should have judgment against the mechanic for any amount collected from the car owner by the plaintiff.

Front 26

Answer choice D is correct. Under the doctrine of joint and several liability, each of two or more defendants who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm. However, when one joint tortfeasor pays more than his fair share to the plaintiff, he may sue the other tortfeasor for contribution and recover whatever excess he paid to the plaintiff. In this case, the mechanic is liable due to his own negligence, while the car owner is liable to the plaintiff by virtue of the statute. As the car owner and the mechanic are joint tortfeasors, they are both jointly liable to the plaintiff, and the plaintiff can recover the entire amount from either of them. As there is a right of contribution among joint tortfeasors and the mechanic was the negligent driver, the car owner can recover from the mechanic any amount she had to pay the plaintiff.

Back 26

Answer choice A is incorrect because the car owner has a right of contribution from the mechanic, a joint tortfeasor. Answer choice B is incorrect as the car owner is liable on a negligence per se theory. Answer choice C is incorrect because the car owner can recover the entire amount she pays the plaintiff as she was not at all negligent.

Front 27

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 about. While shopping at the 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
A. The driver, for her broken leg only.
B. The driver, for both of her injuries, and the supermarket, for her broken arm only.
C. The supermarket, for both of her injuries.
D. The driver, for her broken leg only, and the supermarket, for her broken arm only.

Back 27

Answer choice B is correct. Generally, a defendant is liable for harm caused by foreseeable intervening forces that occur between the time of the defendant’s act and the plaintiff’s injury. When an intervening force is unforeseeable, a defendant will still be liable for his acts if the result was nevertheless foreseeable. Subsequent negligence usually is considered a foreseeable intervening force, but even if the supermarket’s negligence were not foreseeable, the result—plaintiff’s slipping and falling as a consequence of using crutches—was foreseeable. Therefore, answer choices A and D are incorrect. Answer choice C is incorrect because the supermarket’s negligence was not the actual cause of the pedestrian’s broken leg.

Front 28

Late one evening, an attorney, realizing that she had forgotten an important file at her office, returned to the office to retrieve the file. Upon entering her office, the attorney encountered an intruder wearing dark clothes and a ski mask rifling through her files. The attorney was carrying a loaded gun. She immediately drew her weapon, pointed it at the intruder, and yelled, "Leave now or I'll shoot." Instead of leaving, the intruder reached into his front pocket. Before the intruder removed his hand from the pocket, the attorney pulled the trigger and shot him in the chest. Later, it was determined that the intruder was not carrying a weapon. The intruder survived, but was seriously and permanently injured as a result of the shooting.
The intruder sued the attorney for battery. The attorney claimed that her actions were justified by self-defense. The intruder moved for summary judgment. How should the judge rule on the motion?

Back 28

A. Grant the motion, because the attorney failed to retreat.
B. Grant the motion, because the attorney was never in serious danger.
C. Deny the motion, because a reasonable fact finder could determine that the shooting was justified.
D. Deny the motion, based on the doctrine of unclean hands.

Front 29

C.

Back 29

The defendant may use deadly force only if he has a reasonable belief that force sufficient to cause serious bodily injury or death is about to be intentionally inflicted upon him. While the intruder was actually unarmed, a reasonable fact finder could conclude that the attorney, based on all the facts and circumstances, had a reasonable belief that she was in danger of death or serious bodily injury. This is particularly so because the intruder was reaching into his pocket immediately before the shooting. Answer choice A is incorrect because the majority of jurisdictions do not require retreat before engaging in self-defense. Answer choice B is incorrect because the attorney's mistaken belief that she was in danger does not necessarily invalidate the self-defense justification. Answer choice D is incorrect because the doctrine of unclean hands is a defense to an equitable action and therefore is irrelevant to this question.

Front 30

A light company is the sole distributor of electrical power in the city. The company owns and maintains all of the electric poles and equipment in the city. The light company has complied with the National Electrical Safety Code, which establishes minimum requirements for the installation and maintenance of power poles. The code has been approved by the federal and state governments. The light company has had to replace insulators on its poles repeatedly because unknown persons repeatedly shoot at and destroy them. This causes the power lines to fall to the ground. On one of these occasions, the plaintiff, a 5-year-old child, wandered out of his parents’ yard, intentionally touched a downed wire, and was seriously burned. If a claim on the plaintiff's behalf is asserted against the light company, the probable result is that the plaintiff will

Back 30

A. Recover if the light company could have taken reasonable steps to prevent the lines from falling when the insulators were destroyed.
B. Recover, because a supplier of electricity is strictly liable in tort.
C. Not recover unless the light company failed to exercise reasonable care to stop the destruction of the insulators.

Front 31

A

Back 31

The plaintiff must establish all four elements of negligence (duty, breach, causation, and damage). A breach of duty occurs when the defendant departs from the conduct expected of a reasonably prudent person acting under similar circumstances. The evidence must show a greater probability than not that (i) the defendant failed to meet the required standard of care, (ii) the failure was the proximate cause of the injury, and (iii) the plaintiff suffered damages. If the light company could have taken reasonable steps to prevent the lines from falling and failed to do so, the light company breached its duty. Answer choice B is incorrect because the areas in which strict liability is applicable are not contemplated here. The supply of energy is not considered an ultrahazardous activity.

Front 32

A restaurant was poorly managed. The owner failed to ensure that the kitchen complied with the applicable health and safety regulations, including the regular clearing of the exhaust system. Due to the buildup of grease in the exhaust system, a fire started in the kitchen late one night. Responding to the fire alarm, a firefighter, searching the premises for individuals, sustained injuries due to smoke inhalation. The firefighter filed a negligence action against the owner of the restaurant to recover for his injuries.
Is the firefighter likely to prevail in his claim?
A. No, because the doctrine of res ipsa loquitor would not apply.
B. No, because the firefighter was an emergency professional.
C. Yes, because the restaurant did not comply with the health and safety regulations.
D. Yes, because the firefighter was a foreseeable plaintiff.

Back 32

B
Look this up - I thought the firefighter's rule was no longer applicable in most jurisdictions - or is it just in NY? or am I not remembering correctly?

Front 33

A man owned a pet store in which all animals were in a cage, but he often left some of the cages of his favorite dogs unlocked. During a parade in town, the loud noises made the animals behave uncharacteristically, and all of the man’s dogs escaped. A dog bit a woman on the street near the pet store. Though no one saw exactly which dog bit the woman, witnesses did state that the dog that bit the woman was one of a pack that was running down the street around the time the man later claimed his dogs had escaped. The woman brought a negligence claim against the man, who filed for a directed verdict after no one was able to determine whether any evidence might link any of his dogs in particular to the dog bite. The jurisdiction has no specific dog-bite statute.
How should the court rule on the man’s motion?

Back 33

A. Grant the motion, as there is no direct evidence the man was negligent.
B. Grant the motion, as there is no direct evidence demonstrating which, if any, of the man’s dogs bit the woman.
C. Deny the motion, as the issue of the man’s negligence must be decided by the trier of fact.
D. Deny the motion, as there is no dog-bite statute in the jurisdiction.

Front 34

Answer choice C is correct. Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of negligence in the absence of direct evidence of such negligence. Traditionally, for the doctrine of res ipsa loquitur to apply, the plaintiff must prove that: i) the accident is of the kind that would not ordinarily occur in the absence of negligence, ii) it was caused by an instrumentality within the exclusive control of the defendant, and iii) it was not due to any action of the plaintiff. To avoid a directed verdict, the plaintiff need only establish an inference of negligence. In this case, the woman would easily be able to prove the first and third elements of res ipsa loquitur, and would therefore only need to show that the dogs were in the exclusive control of the owner. While the dogs were not in the control of the man at the time that they bit the woman (as they had escaped), they were in his control when they escaped due to the unlocked cages.

Back 34

Therefore, although it remains to be seen whether the woman will be ultimately successful in her claim, she will likely survive a motion for a directed verdict. Answer choice A is incorrect because the doctrine of res ipsa loquitur exists specifically to infer the existence of negligence when no direct evidence exists. Answer choice B is incorrect because there’s sufficient evidence to suggest that one of the man’s dogs bit the woman, even though there’s no evidence as to which specific dog bit the woman. Answer choice D is incorrect because a dog-bite statute would be relevant to whether the man is strictly liable for the actions of his dogs; the absence of the statute would not be relevant to the woman’s negligence claim.

Front 35

A journalist received information from a credible source that a large corporation had used child labor in foreign countries to produce electronics. The corporation had previously criticized its main competitor for using unethical labor practices in foreign countries. The journalist published an article in a nationally distributed newspaper repeating the charges against the corporation, which resulted in boycotts of the corporation’s products. The corporation sued the journalist for defamation and produced records showing that no child labor was ever used in the production of its products. The journalist’s source testified at trial that she knew the statements she made were false. The journalist testified that the article was based solely on the source’s statements, and that no other research was conducted into the veracity of her statements.

Back 35

He further testified that he believed the source, and never doubted the truthfulness of her information. The trier of fact found the testimony of the source and the journalist to be credible.
Is the corporation likely to prevail in its defamation suit against the journalist?
A. Yes, because the journalist repeated the source’s defamatory statement.
B. Yes, because the source acted with malice in making the statement.
C. No, because only an individual, and not a corporation, may maintain a defamation action.
D. No, because the journalist did not act with malice.

Front 36

Answer choice D is correct. A plaintiff may bring an action for defamation if the defendant’s defamatory language is of or concerning the plaintiff, is published to a third party who understands its defamatory nature; and damages the plaintiff’s reputation. For matters of public concern, the plaintiff must prove fault on the part of the defendant as well as the falsity of the statement. The standard for establishing the defendant’s fault depends on the plaintiff’s status as a public or private figure. A public figure is someone who is known to the general public and includes any person who has voluntarily injected himself into the public eye. If the statement relates to a public figure, the plaintiff must prove actual malice on the part of the defendant, as well as the falsity of the language. Malice means that the defendant knew that the statement or language was false, or he recklessly disregarded its truthfulness.

Back 36

To establish a reckless disregard for the truthfulness of a statement, the defendant must have entertained serious doubts about its truthfulness; mere failure to check facts is not sufficient. In this case, the corporation was a public figure, and thus would need to prove malice. Because the journalist testified credibly that he did not doubt the truthfulness of the statement, the corporation is unlikely to succeed in demonstrating malice, and thus would not prevail in its defamation claim. Answer choice A is incorrect because the corporation cannot show that the journalist acted with malice in repeating the statement. Answer choice B is incorrect because the corporation must show that the journalist, and not just the source, made the statement with malice. Answer choice C is incorrect because corporations and groups may maintain defamation actions.

Front 37

Essay questions on NY Torts Distinctions:
(1)(a) The issue is whether the federal district court in New York hearing a diversity action was correct in applying New York’s choice of law rules to decide Fast Corp.’s motion. In diversity cases, the Erie doctrine requires federal courts to apply the substantive law of the state in which the district court is located. The procedural laws to be applied under Erie depend on whether an applicable federal law exists and whether there is a conflict between state and federal law. Where a federal procedural law exists, it will be applied even if there is a conflict with state law. If no federal law exists, the court may ignore a state procedural law in certain circumstances. Generally, federal courts in diversity actions apply the conflict of laws rules of the forum state, to the extent that they comply with the U.S. Constitution.

Back 37

Here, the diversity action is in federal court located in New York. Consequently, the court was correct in applying New York’s choice of law approach in resolving any conflict of law issues.

Front 38

(1)(b) The issue is whether the federal district court in New York was correct in applying New York substantive law to determine Fast Corp.’s motion. In the context of tort law, New York applies the governmental interest approach to determine which of two competing jurisdictions has the greater interest in having its law applied in the litigation, and the Neumeier case sets forth specific rules to be applied in tort cases. Specifically, under Neumeier, where parties are domiciled in the same state, but the accident happened in another, the laws of the parties’ domicile applies. Otherwise, the law of the site of the accident controls.

Back 38

Here, Del Corp., a New York resident, initiated a third party action for contribution against Plaintiff’s employer Fast Corp, a State X resident. There is a conflict between the laws of New York and State X: State X does not allow contribution claims against an employer while New York permits contribution claims against an employer when there is a grave injury. The choice of which loss-allocating rule to apply will determine whether Del Corp. can proceed with its third party action. (continued)

Front 39

continued:
Plaintiff is a resident of State X and defendant Del Corp. is a resident of New York. Del Corp’s third party action is against Fast Corp. which is a resident of State X; thus, in the action between Del Corp and Fast Corp. there is diversity because the parties have different domiciles, and the law of the site of the accident controls. Because the accident took place in New York, New York law will apply.

Back 39

Thus, the court was correct in applying New York’s choice of law rules because the forum of the litigation was in New York, and the court was correct in applying New York substantive law to determine Fast Corp’s motion because there was diversity between the parties, and New York was the location of the accident.

Front 40

(2) The issue is whether a court could submit a negligence action to a jury without direct evidence of defendant’s specific acts of negligence. A prima facie case for negligence consists of proving that the defendant owed a duty to plaintiff, that the duty was breached, and that the breach caused damages. Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of negligence in the absence of direct evidence of such negligence. In order successfully assert res ipsa, a plaintiff must prove that: (i) plaintiff’s injury or damage was caused by an instrumentality or condition which was under the defendant’s exclusive control, (ii) plaintiff’s harm would not have occurred if defendant had used ordinary care while the instrumentality was under his control, and (iii) plaintiff was not responsible for his injuries. The doctrine of res ipsa does not require that the trier of fact find that the defendant was negligent; (cont)

Back 40

it merely establishes an inference of negligence to avoid dismissal.

Here, Plaintiff suffered an injury by an elevator that was manufactured, installed, and serviced exclusively by Defendant Del Corp. Del Corp. was therefore in exclusive control of the elevator. Additionally, Plaintiff’s injury would not have occurred if Del Corp. had maintained the elevator in such a way that would prevent it from suddenly dropping two floors. Finally, there is no evidence to suggest that Plaintiff was responsible for his injuries. As a result, the negligence of Del Corp. may be inferred under a theory of res ipsa loquitur, and the matter may be properly submitted to a jury without direct evidence of Del Corp.’s negligence.

Front 41

If two or more tortfeasors are subject to liability to the same plaintiff, and one of the tortfeasors has paid the plaintiff more than his fair share of the common liability, he may sue any of the other joint tortfeasors for contribution, and recover anything paid in excess of his fair share. A tortfeasor seeking contribution from another joint tortfeasor must establish that the joint tortfeasor was responsible for part of the harm.

Back 41

In this case, Del Corp. would have to prove that Fast Corp. was negligent. In other words, Del Corp. will have to establish by a preponderance of the evidence, that Fast Corp. owed a duty to Plaintiff, that Fast Corp. breached that duty, and that the breach actually and proximately caused Plaintiff’s injury.

Front 42

A patient had been under the care of a cardiologist for three years prior to submitting to an elective operation that was performed by a surgeon. Two days thereafter, the patient suffered a stroke, resulting in a coma, caused by a blood clot that lodged in her brain. When it appeared that she had entered a permanent vegetative state, with no hope of recovery, the artificial life-support system that had been provided was withdrawn, and she died a few hours later. The withdrawal of artificial life support had been requested by her family, and duly approved by a court. The surgeon was not involved in that decision, or in its execution.
The administrator of the patient's estate thereafter filed a wrongful death action against the surgeon, claiming that the surgeon was negligent in having failed to consult a cardiologist prior to the operation.

Back 42

At the trial, the plaintiff offered evidence that accepted medical practice would require examination of the patient by a cardiologist prior to the type of operation that the surgeon performed.
In this action, the plaintiff should
A. Prevail, if the surgeon was negligent in failing to have the patient examined by a cardiologist prior to the operation.
B. Prevail, if the blood clot that caused the patient's death was caused by the operation which the surgeon performed.
C. Not prevail, absent evidence that a cardiologist, had one examined the patient before the operation, would probably have provided advice that would have changed the outcome.
D. Not prevail, because the surgeon had nothing to do with the withdrawal of artificial life support, which was the cause of the patient's death.

Front 43

Answer choice C is correct. If the plaintiff proves that the patient would not have died if the surgeon had consulted a cardiologist, then the surgeon was negligent in failing to consult, and his negligence was the cause of the patient's death. However, absent evidence that it was the failure to consult a cardiologist that caused the patient's death, then plaintiff cannot succeed. Answer choice A is incorrect because even if the surgeon was negligent, that negligence must have been the cause of the patient's death in order for the plaintiff to prevail, which this option does not include.

Back 43

Answer choice B is incorrect because even if the blood clot was caused by the operation, the plaintiff can only succeed if the surgeon's alleged breach of duty (the failure to consult a cardiologist) was the actual cause of the patient's death. Answer choice D is incorrect because the withdrawal of life support is not a superseding cause that would break the causal chain of the surgeon's negligence, if he were in fact negligent.

Front 44

At a country auction, the plaintiff acquired an antique cabinet that he recognized as an extremely rare and valuable collector's item. Unfortunately, the plaintiff's cabinet had several coats of varnish and paint over the original finish. Its potential value could only be realized if these layers could be removed without damaging the original finish. Much of the value of this furniture depends on the condition of a unique oil finish, the secret of which died with its inventor. A professional restorer of antique furniture recommended that the plaintiff use Restorall to remove the paint and varnish from the cabinet. The plaintiff obtained and read a sales brochure published by the manufacturer which contained the following statement: "This product will renew all antique furniture. Will not damage original oil finishes." The plaintiff purchased some Restorall and used it on his cabinet, being very careful to follow the accompanying instructions exactly.

Back 44

Despite the plaintiff's care, the original finish was irreparably damaged. When finally refinished, the cabinet was worth less than 20% of what it would have been worth if the original finish had been preserved. If the plaintiff sues the manufacturer to recover the loss he has suffered as a result of the destruction of the cabinet's finish, will the plaintiff prevail?
A. Yes, unless no other known removal technique would have preserved the finish.
B. Yes, if the loss would not have occurred had the statement in the brochure been true.
C. No, unless the product was defective when sold by the manufacturer.
D. No, if the product was not dangerous to persons.

Front 45

Answer choice B is correct. A failure to warn defect exists if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which risks could have been reduced or avoided by providing reasonable instructions or warnings. The failure to include the instructions or warnings renders the product not reasonably safe. Here, the plaintiff will be able to recover if the loss would not have occurred had the statement in the sales brochure that the product would "renew all antique furniture and would not damage original oil finishes" been true, because the plaintiff relied on the statement when he used the product and the manufacturer failed to warn the user of the foreseeable risks of ruining the finish, even when the instructions were followed exactly.

Back 45

Answer choice A is incorrect because it does not state a valid legal defense. Answer choice C is incorrect because the risk of harm could have been reduced or avoided by providing reasonable warnings. Under these facts an ordinary user, the plaintiff, reasonably relied upon the language in the sales brochure. The manufacturer breached its duty to warn of foreseeable risk of harm because the statement in the brochure was not in fact true. Answer choice D is incorrect because a product need not be dangerous to persons in order for the plaintiff to recover damages.

Front 46

When the defendant heard that his neighbor, the plaintiff, intended to hire a painter to paint the plaintiff’s house a shocking yellow color, the defendant told the plaintiff that the plaintiff and his wife and children would meet with “accidents” if he did so. The plaintiff then called the painter and told him that he no longer wanted the painter to paint his house. If the plaintiff asserts a claim against the defendant for intentional infliction of emotional distress the plaintiff will

Back 46

A. Recover if the plaintiff suffered severe emotional distress as a consequence of the defendant's conduct.
B. Recover, because the defendant intended to frighten the plaintiff.
C. Not recover, because the defendant made no threat of immediate physical harm to the plaintiff or his family.
D. Not recover if the plaintiff suffered no physical harm as a consequence of the defendant's conduct.

Front 47

Answer choice A is correct. Intentional infliction of emotional distress is the use of extreme and outrageous conduct to intentionally or recklessly inflict severe emotional distress. Here, the defendant’s comments constitute extreme and outrageous conduct, which was said with the intent to cause the plaintiff emotional distress. The only element which is missing is whether the plaintiff suffered severe emotional distress, which is indicated in the answer choice. Answer choice B is incorrect. Even if the defendant intended to frighten the plaintiff, it does not address the missing element of whether the plaintiff suffered extreme emotional distress. Moreover, language intended to frighten is an element of an assault claim, not one for intentional infliction of emotional distress.

Back 47

Answer choice C is incorrect. As with answer choice B, the “threat of immediate physical harm” is assault language, not intentional infliction of emotional distress. The call of the question clearly indicates that the plaintiff is asserting an intentional infliction of emotion distress claim. Answer choice D is incorrect because physical harm is not a required element of an intentional infliction of emotional distress claim. The plaintiff must merely prove damages, which can be emotional in nature. The foregoing NCBE MBE question has been modified to reflect current NCBE stylistic approaches; the NCBE has not reviewed or endorsed this modification.

Front 48

A manufacturing plant emitted a faint noise even though the owner had installed state-of-the-art sound dampeners. The plant operated only on weekdays and only during daylight hours. A homeowner who lived near the plant worked a night shift and could not sleep when he arrived home because of the noise from the plant. The other residents in the area did not notice the noise.
Does the homeowner have a viable nuisance claim against the owner of the plant?
A. No, because the homeowner is unusually sensitive to noise during the day.
B. No, because the plant operates only during the day.
C. Yes, because the noise is heard beyond the boundaries of the plant.
D. Yes, because the operation of the plant interferes with the homeowner's quiet use and enjoyment of his property.

Back 48

Answer choice A is correct. A landowner is liable for nuisance only when his invasion of another's use and enjoyment is both substantial and unreasonable. Under the norms of the area, the plant owner is not imposing an unreasonable degree of noise upon his neighbors. An unusually noise-sensitive neighbor will not be permitted to block the plant owner's use of his own land.

Front 49

A pedestrian started north across the street in a clearly marked north-south crosswalk with the green traffic light in her favor. The pedestrian was in a hurry, and so before reaching the north curb on the street, she cut to her left diagonally across the street to the east-west crosswalk and started across it. Just after reaching the east-west crosswalk, the traffic light turned green in her favor. She proceeded about five steps further across the street to the west in the crosswalk when she was struck by a car approaching from her right that she thought would stop, but did not. The car was driven by the driver, who failed to stop his car after seeing that the traffic light was red against him. As a result of the impact, the pedestrian suffered a broken leg and the destruction of her family heirloom, an antique vase that she was taking to an antique store for an appraisal. The pedestrian has filed suit against the driver.

Back 49

The driver’s attorney has alleged that the pedestrian violated a state statute requiring that pedestrians stay in crosswalks, and that if the pedestrian had not violated the statute she would have had to walk 25 feet more to reach the impact point and therefore would not have been at a place where she could have been hit by the driver. The pedestrian’s violation of the crosswalk statute should not be considered by the jury because
A. There is no dispute in the evidence about factual cause.
B. As a matter of law the violation of the statute results in liability for all resulting harm.
C. As a matter of law, the driver's conduct was an independent intervening cause.
D. As a matter of law, the injury to the pedestrian was not the result of a risk the statute was designed to protect against.

Front 50

Answer choice D is correct. Negligence per se occurs when a defendant violates a safety statute and the act caused a member of the class of people intended to be protected by the statute to suffer the kind of accident or harm the statute was designed to prevent. In the pedestrian’s case, if the statute was not intended to protect against the harm that occurred, the pedestrian would not be found negligent under a negligence per se theory. If the pedestrian was not negligent, then her violation of the statute would be irrelevant and should not be considered by the jury. Answer choice A is incorrect. Both the pedestrian and the driver are arguing about the cause of the accident; as a result there is still an ongoing dispute.

Back 50

Answer choice B is incorrect because it is an incorrect statement of law. One can violate a statute and not be negligent if the statute did not seek to prevent the type of harm that occurred. Additionally, at most, the violation of a statute would establish a duty and a breach of that duty. Answer choice C is incorrect because the driver’s conduct was not an intervening cause. An independent intervening cause occurs between the defendant’s negligent act or nonfeasance and the plaintiff’s injury. Here, no third party acts were contemplated.

Front 51

A patient received anesthesia while giving birth. Upon awakening from the anesthesia, she discovered a severe burn on the inner portion of her right knee. The patient has brought a medical malpractice action in which she has joined all of the physicians and nurses who exercised control over her person, the delivery room, the medical procedures, and the equipment used during the period in which she was unconscious.

The defendants have jointly moved for summary judgment. The patient has produced affidavits that establish that the applicable professional standard of care was violated.

Back 51

What would be the patient’s best argument against the motion?
A. At least one of the defendants had control over whatever agency or instrumentality caused the patient’s injury.
B. The defendants were acting in concert.
C. The patient has produced affidavits that establish that the applicable professional standard of care was violated.
D. The patient was in no way responsible for her injury.

Front 52

Answer choice A is correct. Ybarra v. Spangard and cases that follow its approach have relied on this extension of res ipsa loquitur to establish causation in situations in which the plaintiff was treated by a medical team that, as a group, had exclusive control of the patient and in which the patient, because she was unconscious, cannot identify what went wrong. The doctrine may be limited to medical cases in which there may be a concern that none of the medical professionals would be willing to testify against another. Answer choice B is incorrect. “Acting in concert” refers to jointly engaging in negligent activity. There is no evidence here that the mishap that caused the injury was the result of any joint negligent activity; a single actor may have caused the burn.

Back 52

Answer choice C is incorrect. Even though the plaintiff can establish that there was negligence by someone, she must also establish that the defendants caused her injury. It is proof that the defendants caused the injury that seems to be lacking here. Evidence that the standard of care was breached establishes that someone was negligent, but it does not establish that all the defendants or any particular defendant was responsible. The plaintiff must make an additional argument that would either establish causal responsibility or justify loosening the normal requirement that cause be established. Answer choice D is incorrect. In Ybarra v. Spangard, the court rested its decision to hold the group of medical professionals liable in part on the fact that the patient was unconscious during his treatment. That meant that the patient was clearly not responsible for his own injury and that he was not in a position to identify what went wrong. But excluding the patient as a cause is ordinarily

Front 53

Generally, a plaintiff can recover for negligent infliction of emotional distress only by showing that the defendant negligently creates a foreseeable risk of physical injury to the plaintiff resulting in emotional distress. Under the majority rule, damages for negligent infliction of emotional distress without physical symptoms are not recoverable; however, an exception exists for the negligent __________________________.

Back 53

mishandling of a corpse

Front 54

A free-lance photographer took a picture of a player in front of the shoe store. The player was a nationally known amateur basketball star who had received much publicity in the press. At the time, the window display in the shoe store featured "Jumpers," a well-known make of basketball shoes. The photographer sold the picture, greatly enlarged, to the shoe store and told the shoe store that the photographer had the player's approval to do so and that the player had consented to the shoe store's showing the enlarged picture in the window. The shoe store made no effort to ascertain whether the player had given his consent to the photographer. In fact, the player did not even know that the photographer had taken the picture. The shoe store put the enlarged picture in the window with the display of "Jumpers" shoes. The college that the player attended believed that the player had intentionally endorsed the shoe store and "Jumpers" shoes, and the college cancelled his athletic scholarship.

Back 54

A. Yes, if the shoe store was reckless in accepting the photographer's statement that the photographer had the player's approval.
B. Yes, because the defamatory material was in printed form.
C. No, if the shoe store believed the photographer's statement that the photographer had the player's approval.
D. No, because the picture of the player was not defamatory per se.

Front 55

Answer choice A is correct. To prove defamation, the player must show that the shoe store’s statements concerning the player were published to another, thereby damaging the player’s reputation. Here, because the player is a public figure, he must prove that the shoe store acted with actual malice or in reckless disregard as to the information's truth or falsity. The photo damages the player’s reputation as it makes the appearance that he is endorsing a product in violation of the amateur athletics rules.

Back 55

Answer choice A states that the shoe store’s failure to make any inquiry into the player's alleged permission to use the photograph constitutes sufficient recklessness, which fulfills the requirements and will allow the player to prevail. Answer choice B is incorrect because it is irrelevant, in this particular case, whether the defamation is printed. Answer choice C is incorrect because the shoe store must do more than merely rely on the photographer's word. Answer choice D is incorrect because defamation per se occurs when the allegations of defamation in itself are presumed to cause damage to the plaintiff. Here, the player's damages have been established as he lost his athletic scholarship.

Front 56

The privilege of necessity is available to a person who enters onto the land of another or interferes with another’s personal property in order to ______________________________________________. Here, the plaintiff entered the owner’s land in order to prevent his boat from sinking. The owner had no defense to releasing the boat and will be liable for the damages incurred.

Back 56

prevent injury that is substantially more serious than the invasion or interference itself

Front 57

A traveler was a passenger on a commercial aircraft owned and operated by an airline. The aircraft crashed into a mountain, killing everyone on board. The flying weather was good.
The traveler's legal representative brought a wrongful death action against the airline. At trial, the legal representative offered no expert or other testimony as to the cause of the crash.
On the airline's motion to dismiss at the conclusion of the legal representative's case, the court should

Back 57

A. Grant the motion, because the legal representative has offered no evidence as to the cause of the crash.
B. Grant the motion, because the legal representative has failed to offer evidence negating the possibility that the crash may have been caused by mechanical failure that the airline could not have prevented.
C. Deny the motion, because the jury may infer that the aircraft crashed due to the airline's negligence.
D. Deny the motion, because under the circumstances common carriers are strictly liable.

Front 58

Answer choice C is correct. Under the traditional standard for res ipsa loquitur, the plaintiff must prove that (i) the accident was of a kind that ordinarily does not occur in the absence of negligence; (ii) it was caused by an agent or instrumentality within the exclusive control of the defendant; and (iii) it was not due to any action on the part of the plaintiff. Plane crashes in good weather generally do not occur without negligence, and there are no facts to suggest that the plane was not in the exclusive control of the airline or that the traveler was responsible for the crash. Therefore, the matter should go to the jury.

Back 58

Answer choice A is incorrect because causation is not a required element of res ipsa loquitur. Answer choice B is incorrect because, again, causation is not a required element, and because plaintiff need not disprove possible defenses in order to make a prima facie case. Answer choice D is incorrect because common carriers are not strictly liable to their passengers.

Front 59

If the acts of two or more persons combine to produce a single indivisible harm, each is liable for the entire amount of damages under joint and several liability rules, even if the persons act independently of each other without a common design. The plaintiff's best argument is that the first and second defendants should ____________________ as they produced the indivisible harm.

Back 59

bear the impossibility of apportionment

Front 60

A surgeon performed a sterilization operation on a patient. After the surgery, the surgeon did not reveal that he knew the procedure was unsuccessful. Three years later, the patient became pregnant and delivered a baby afflicted with a severe birth defect requiring substantial medical care throughout its life. The birth defect resulted from a genetic defect unknown to, and undiscoverable by, the surgeon. The patient brought an action on her own behalf against the surgeon, seeking to recover the cost of her medical care for the delivery of the baby and the baby's extraordinary future medical expenses. Which of the following questions is relevant to the lawsuit and most difficult to answer?

Back 60

A. Did the surgeon owe a duty of care to the baby for medical services rendered to patient three years before the baby was conceived?
B. Can a person recover damages for a life burdened by a severe birth defect based on a physician's wrongful failure to prevent that person's birth from occurring?
C. Did the surgeon owe a duty to the patient to inform her that the sterilization operation had failed?
D. Is the patient entitled to recover damages for the baby's extraordinary future medical expenses?

Front 61

Answer choice D is correct. In a negligence action, a defendant's liability is limited to those results that are of a foreseeable nature (proximate cause). A defendant should not be automatically liable for all consequences of his acts, especially those that are remote or improbable. Here, the surgeon did not perform a sterilization procedure properly. While it is foreseeable that the patient may conceive as a result of his failure, it is not necessarily foreseeable that she would have a child with a defect that was undiscoverable, and the extent of future medical expenses are the most difficult if not impossible to answer. Answer choice A is incorrect because the baby is not a foreseeable plaintiff to whom the surgeon owed a duty, nor is the baby the plaintiff seeking recovery in this lawsuit, and thus, the question is not difficult to answer.

Back 61

Answer choice B is incorrect for the same reason as A, that is, a surgeon has no duty to an unforeseeable plaintiff. Answer choice C is incorrect because this question is not a difficult one to answer, that is, that the surgeon did, in fact, owe a duty to patient to inform her of the failed sterilization operation. Note to students: This question highlights the importance of carefully reading the call of the question. Here, the examiners are not asking whether a surgeon was negligent, but rather, the question centers around which determination is most difficult to ascertain.

Front 62

The plaintiff, who was an asbestos insulation installer from 1955 to 1965, contracted asbestosis, a serious lung disorder, as a result of inhaling airborne asbestos particles on the job. The asbestos was manufactured and sold to the plaintiff's employer by the defendant. Because neither the defendant nor anyone else discovered the risk to asbestos installers until 1966, the defendant did not provide any warnings of the risks to installers until after that date. The plaintiff brought an action against the defendant based on strict liability in tort for failure to warn. The case is to be tried before a jury. The jurisdiction has not adopted a comparative fault rule in strict liability cases. In this action, an issue that is relevant to the case and is a question for the court to decide as a matter of law, rather than for the jury to decide as a question of fact, is whether

Back 62

A. A satisfactory, safer, alternative insulation material exists under today's technology.
B. The defendant should be held to the standard of a prudent manufacturer who knew of the risks, regardless of whether the risks were reasonably discoverable before 1966.
C. The defendant should reasonably have known of the risks of asbestos insulation materials before 1966, even though no one else had discovered the risks.
D. The asbestos insulation materials to which the plaintiff was exposed were inherently dangerous.

Front 63

Answer choice B is correct. The issue in a failure to warn case is whether there were foreseeable risks of harm, not readily recognized by an ordinary user of the product, which risks could have been reduced or avoided by providing reasonable instructions or warnings. The standard to which the defendant should be held is a question of law, to be determined by the court. Answer choice A is incorrect because whether there was a safer alternative is a question of fact for the jury to determine.

Back 63

Answer choice C is incorrect because whether the defendant should reasonably have known the risks is a question of fact for the jury to determine, not a question of law for the court. Answer choice D is incorrect because whether something is inherently dangerous is a question of fact for the jury, not a matter of law.

Front 64

In 1970, a pork producer paid $30,000 for a 1500 acre tract of agricultural land well suited for a pig feed lot. The tract was ten miles from the city of Urban, then a community of 50,000 people, and five miles from the nearest home. By 2006, the city limits extended to the pork producer's feedlot, and the city had a population of 350,000. About 10,000 people lived within three miles of the pig-feeding operation.
The pork producer's land is outside the city limits and no zoning ordinance applies. The pork producer's land is now worth $300,000, and $25,000 has been invested in buildings and pens. The pork producer, conscious of its obligations to its neighbors, uses the best and most sanitary feedlot procedures, including chemical sprays, to keep down flies and odors and frequently removes manure. Despite these measures, residents of Urban complain of flies and odors. An action has been filed by five individual homeowners who live within half a mile of the pork producer's feedlot.

Back 64

The plaintiffs' homes are valued currently at $25,000 to $40,000 each. Flies in the area are five to ten times more numerous than in other parts of Urban, and extremely obnoxious odors are frequently carried by the wind to the plaintiffs' homes. The flies and odors are a substantial health hazard.
If plaintiffs assert a claim based on private nuisance, plaintiffs will
A. Prevail, because the pork producer's activity unreasonably interfered with plaintiffs' use and enjoyment of their property.
B. Prevail, because the pork producer's activity constitutes an inverse condemnation of their property.
C. Not prevail, because the pork producer had operated the feed lot for more than 25 years.
D. Not prevail, because the pork producer uses the most reasonable procedures to keep down flies and odors.

Front 65

Answer choice A is correct. A private nuisance occurs when one substantially and unreasonably interferes with another individual's use or enjoyment of his property. Answer choice B is incorrect because an inverse condemnation can only be performed by a government entity. Answer choice C is incorrect because the length of time in operation is not, by itself, determinative. The court may, however, consider this factor in determining the outcome of the claim. Answer choice D is incorrect because even if reasonable procedures are used, it can still create a nuisance if there is a substantial and unreasonable interference with the use and enjoyment of plaintiff's property.

Back 65

Wait! They "came to the nuisance!"

Front 66

The defendant has a small trampoline in his backyard which, as he knows, is commonly used by neighbor children as well as his own. The trampoline is in good condition, is not defective in any way, and normally is surrounded by mats to prevent injury if a user should fall off. Prior to leaving with his family for the day, the defendant leaned the trampoline up against the side of the house and placed the mats in the garage. While the defendant's family was away, the plaintiff, aged 11, a new boy in the neighborhood, wandered into the defendant's yard and saw the trampoline. The plaintiff had not previously been aware of its presence, but, having frequently used a trampoline before, he decided to set it up, and started to jump. He lost his balance on one jump and took a hard fall on the bare ground, suffering a serious injury that would have been prevented by the mats.

Back 66

An action has been brought against the defendant on the plaintiff's behalf to recover damages for the injuries the plaintiff sustained from his fall. In this jurisdiction, the traditional common-law rules pertaining to contributory negligence have been replaced by a pure comparative negligence rule. In his action against the defendant, will the plaintiff prevail?
A. No, if children likely to be attracted by the trampoline would normally realize the risk of using it without mats.
B. No, if the plaintiff failed to exercise reasonable care commensurate with his age, intelligence, and experience.
C. No, because the plaintiff entered the defendant's yard and used the trampoline without the defendant's permission.
D. No, because the plaintiff did not know about the trampoline before entering the defendant's yard and thus was not "lured" onto the premises.

Front 67

Answer choice A is correct. The attractive nuisance doctrine provides that a landowner may be liable for injuries to children trespassing on the land if an artificial condition that poses an unreasonable risk of serious injury exists in a place that children are likely to trespass, and the children are unable to appreciate the potential risk from the hazardous object or condition on the land. If the children would normally realize the risk associated with using the trampoline without the mats, the plaintiff would not prevail.

Back 67

Answer choice D is incorrect because most courts have rejected the original common law requirement that the child must be attracted or lured by the particular condition that injured him.

Front 68

A person who comes to the aid of another is a foreseeable plaintiff, and a defendant who negligently puts himself in danger is liable for his rescuer’s injuries.

Back 68

This is the case of the expert mountain climber who is injured trying (and failing) to rescue a guy. He can recover against the dead guy's estate if the dead guy negligently put himself in peril.

Front 69

Essay question:  A kid is injured at a daycamp because the director had them play baseball when the grass was wet (even though the handyman who works there said not to play because it was dangerous when wet.)  There was a waiver.  

Back 69

1.   Can Bobby’s father bring timely claims for his son for his injuries and for himself for medical expenses associated with the softball accident?  This was the first question, but there was nothing about statutes of limitations.  Note, that a question that asks about "timely claims" wants to know about statutes of limitations, even though this isn't an issue in the fact pattern.  The answer is:

Front 70

(1)  At issue is the statute of limitations for a negligence action, and whether a father and son can timely bring claims for causes of action based in negligence.

Personal injury actions based in negligence have a three year statute of limitations from the date of injury.  However, if the plaintiff seeking recovery is less than 18 years of age at the time of the injury, the statute of limitations is tolled for three years after the infant’s 18th birthday, or until the age of 21.

Thus, here, Bobby’s father will have three years from the date of the injury to bring an action based in negligence against the Camp; however, his son Bobby, who was 10 years of age at the time of the injury, will have until his 21st birthday to bring his personal injury action based in negligence.

Back 70

(2)  The issue is whether Camp was negligent in allowing children to play softball on a grassy field that was wet from recent heavy rain.  A prima facie case for negligence consists of four elements: (i) the duty to foreseeable plaintiffs to protect against foreseeable injuries, (ii) breach of that duty, (iii) causation, and (iv) damages.

Duty

In New York, in determining the duties of an owner or occupier of land, New York courts do not distinguish whether a plaintiff is an invitee, licensee, or trespasser.  Instead, courts apply the general rule under which a landowner owes a duty to exercise reasonable care in maintaining his property in a safe condition to all persons that are at foreseeable risk.  Although the status of the plaintiff is not determinative, it may be relevant in establishing whether the plaintiff was foreseeable or not.

Here, Golden Sunshine Camp is a business that either owned or occupied the grassy field on which it was scheduled to hold a baseball game.  The campers were the patrons of its business, and as such, were both foreseeable plaintiffs and individuals to whom Golden Sunshine owed a duty.

Front 71

Breach of Duty

A duty is breached when a defendant fails to exercise the care that a reasonable person under the circumstances would recognize as necessary to avoid or prevent an unreasonable risk of harm.

Under the facts, the grass on which the campers were scheduled to play was soaked with rain.  Rain, and the consequences of rain, are risks foreseeable to an ordinary prudent person.  Further, at least one member of the camp staff put the director on notice that the wet grass presented a risk of someone slipping and falling.  Thus, Golden Sunshine Camp breached its duty to Bobby and the other campers to prevent them from being harmed.

Back 71

Causation

In order to hold a defendant responsible for negligence, any breach of the defendant’s duty must be both the actual cause and proximate cause of plaintiff’s injury.  Actual cause requires demonstrating that “but for” the plaintiff’s conduct, the injury would not have occurred.  Proximate cause requires showing the plaintiff was within the foreseeable zone of danger created by defendant’s unreasonable conduct.

Here, were it not for the decision to proceed with playing softball, Bobby’s injury would not have occurred.  Further, the duty that was breached, was the failure to postpone a game on the wet grass; and the injury that occurred while participating in that game occurred on the wet grass, which was the zone of danger created by Golden Sunshine Camp’s negligent conduct.  Thus, Golden Sunshine Camp was the actual and proximate cause of injury.

Front 72

Damages

Finally, in order to make out a claim for negligence, a plaintiff must demonstrate damages in the form of an actual injury.  Here, Bobby sustained a fracture of his left arm, thereby constituting an actual injury.

Thus, under the facts presented, Bobby would have a claim for negligence against Golden Sunshine Camp.

Back 72

3.   Assuming Bobby is ruled competent to testify at trial, discuss the admissibility of his testimony regarding Don's statement.

Front 73

(3)  Whether Bobby can testify to the camp handyman’s statement that he told the camp director not to let the children play on the wet grass because it was an admission.  In order to be admissible, evidence must be relevant.  However, relevant evidence that is in the form of an out of court statement offered to prove the truth of the matter asserted is inadmissible unless it falls within an exception to the hearsay prohibition.  In New York, an admission by a defendant is an exception to the hearsay rule, however, New York does not allow admissions made on behalf of a defendant by employees or other agents, unless they have been authorized by the defendant or an authorized supervisor.

Here, Bobby’s testimony relating Don’s statement that he told the camp director not to allow the children to play because of the risk of injury is hearsay and an admission of wrongdoing.  However, because the admission is made by Don, an employee, without any indication that such statement was authorized by the Camp or its supervisor, it will be deemed inadmissible hearsay, rather than an admissible admission.

Back 73

(4)  The issue is whether a signed release assuming risk of injury bars any claim for negligence.

In order to be enforceable, a contract between parties requires mutual assent, consideration, and no defense to enforcement.  Consideration is a bargained for legal exchange, and can include the promise to not do something that is otherwise legally permitted, including bringing a lawsuit under circumstances in which a prospective plaintiff reasonably believes they have a cause of action.

Here, Bobby’s father agreed to forego the right to seek recovery from the Camp for injuries sustained in the course of participating in camp activities.  The agreement was made in consideration of the child being able to participate in camp activities.  There do not appear to be any defenses available to Bobby’s father to invalidate the contract and he has released claims against the camp.  However, the father is unable to release Bobby.  Bobby is an infant because he is under 18 and he is incapable of waiving his rights.  The mere fact that his father signed a release form did not waive his rights.  A party cannot waive all liability.  Thus, absent a defense to the contract, it appears that the release is enforceable to bar the father’s claim but Bobby may be able to bring his own claim when he reaches majority.