MBE Torts Session #5

*(E IIED)* A woman is a paralegal at a law firm. One day, her boss screamed at her, telling her that because she forgot to file some important documents with the court, the law firm lost a particular case. He also exclaimed that if the paralegal made another mistake, he would fire her and make sure she never got hired as a paralegal at a firm ever again. Because the paralegal was the primary income earner for the family, she was particularly troubled by the exchange. Hours later, when she told her husband about the exchange, the paralegal broke down emotionally as a result of her boss's yelling at her. The paralegal has also sought therapy due to the ongoing emotional suffering she had as a result of the incident. If the paralegal files a claim against the boss for intentional infliction of emotional distress, who will prevail? Answers: The boss, because mere insults, threats, or indignities are not extreme or outrageous conduct. The boss, because the paralegal did not suffer physical harm as a result of the boss's conduct. The paralegal, because she suffered severe emotional distress as a result of the boss's conduct. The paralegal, because the boss acted recklessly as to

Answer choice A is correct. A defendant is liable for intentionally or recklessly acting with extreme and outrageous conduct that causes the plaintiff severe emotional distress. In this case, the paralegal clearly suffered emotional distress, but yelling mere insults, threats, or indignities at someone does not rise to the level of extreme and outrageous conduct, even when considering the power dynamic of an employer and employee. Answer choice B is incorrect. To recover for intentional infliction of emotional distress, physical harm or risk of physical harm need not be proven unless a bystander is trying to recover, which is not the case here. Answer choice C is incorrect. Although the paralegal did suffer severe emotional distress, the boss's conduct was not extreme and outrageous. Answer choice D is incorrect. Even if the boss was reckless as to the possibility of causing the paralegal severe emotional distress, his actions did not rise to the level of extreme and outrageous conduct, and thus, he will prevail.

(E strict products liability) A homeowner was using a six-foot stepladder to clean the furnace in his home. The homeowner broke his arm when he slipped and fell from the ladder. The furnace had no warnings or instructions on how it was to be cleaned. In a suit by the homeowner against the manufacturer of the furnace to recover for his injury, is the homeowner likely to prevail? Answers: No, because the danger of falling from a ladder is obvious. No, because the homeowner should have hired a professional to clean the furnace. Yes, because the furnace did not have a ladder attached to it for cleaning purposes. Yes, because the lack of warnings or instructions for how to clean the furnace made the furnace defective.

Answer choice A is correct. A manufacturer has no obligation to warn against obvious dangers. There appears to be nothing unique to the furnace that would add to the ordinary dangers of working on a ladder. Answer choice B is incorrect. Furnaces should be built for ordinary use, including routine maintenance by homeowners. In addition, there is no indication that a professional would be more adept than the homeowner in maintaining his balance on the ladder; maintaining one's balance on a six-foot stepladder is not a professional technical skill. The homeowner will likely not prevail, but the reason is that the manufacturer had no duty to warn of the obvious risks of working on a ladder. Answer choice C is incorrect. Because a ladder is an easily available household product that can be used for a variety of tasks, there is no reason to expect a furnace manufacturer to include a ladder with the furnace. Furthermore, there is no indication that the homeowner's fall was due to anything special about the ladder he used; he could just as easily have fallen from a ladder provided by the furnace manufacturer. Answer choice D is incorrect. A manufacturer is not obliged to include warnings about obvious or patent dangers; nor is a manufacturer obliged to include instructions about how to conduct ordinary activities such as working on a ladder. There is no indication that anything said by the manufacturer would have reduced the obvious risk that materialized here because the homeowner was working on a ladder.

*(E Nuisance)* A woman decided to take up beekeeping as a hobby. She purchased some beehive boxes, worker bees, and one queen bee, and began making honey in her backyard bee farm. The woman's bees did often leave the beehive boxes and occasionally ventured onto neighboring properties, but there were still fewer bees than one might encounter near a typical flower bush or in a park. A man that lived next door to the woman was extremely allergic to bee stings, and if stung, would immediately have to go to the hospital. Because of his extreme allergy, the man rarely left the house. When the man saw the beehive boxes in the woman's backyard, he sued her for private nuisance. Is the man likely to prevail? Answers: No, because the average person would not be inconvenienced by the beehive boxes. No, because the man rarely left his home due to the presence of the bees. Yes, because the man had an extreme allergic reaction to bee stings. Yes, because the beehive boxes were an unreasonable interference.

Answer choice A is correct. A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual's use or enjoyment of his land. A person with special sensitivities can recover only if the average person would be offended, inconvenienced, or annoyed. Here, since the beehives housed fewer bees than one might encounter near a typical flower bush or in a park, the average person would be unlikely to be inconvenienced, annoyed, or offended by the bees. Answer choice B is incorrect because even if the man rarely leaves his home, he has a possessory interest in his property. This would make him a proper plaintiff if there had also been a substantial interference that would be offensive, inconvenient, or annoying to a normal, reasonable person in the community. Answer choice C is incorrect because the man's sensitivity to bee stings does not change the standard that must be met to establish a substantial interference for a private nuisance tort. Answer choice D is incorrect. Here, the interference was not unreasonable because raising bees and making honey is a useful hobby, and outweighs the minor issue of a few bees occasionally visiting neighboring properties.

*(M Nuisance)* A plastics manufacturer opened a plant in a rural area. As a byproduct of the manufacturing, the plant emitted a harmless gas. The gas was odorless to all but a few individuals with a rare olfactory disorder. A few years after the plant opened, a man purchased a house near the plant. Soon after, the man developed the rare olfactory disorder. The odor of the gas caused the man to suffer from headaches and nausea. The man brought an action against the plastics manufacturer for nuisance, seeking to enjoin the plant's activity. Will the man's action be successful? Answers: No, because the gas emissions would not be considered offensive to an average person in the community. No, because the man moved to the area after the plant was already in operation. Yes, because the man suffered harm different in kind from that of the public at large. Yes, because the gas emissions substantially interfered with the man's use and enjoyment of his home.

Answer choice A is correct. A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual's use or enjoyment of his land. A substantial interference is one that would be offensive, inconvenient, or annoying to a normal, reasonable person in the community. A person with special sensitivities can recover only if the average person would be offended, inconvenienced, or annoyed. In this case, only persons with rare olfactory conditions could smell the otherwise harmless gas emitted by the plant. Because the gas emissions would not be offensive to a normal, reasonable person in the community, the interference is not substantial and thus the man's action will fail. Answer choice B is incorrect. Although the fact that the man "came to the nuisance" is relevant and is evidence that the jury may consider, it does not automatically preclude the man from recovering under a theory of private nuisance. Answer choice C is incorrect because it states one of the requirements for a public nuisance cause of action. Here, the claim is for a private nuisance because the public at large does not suffer ill effects from the gas emitted by the manufacturer. Answer choice D is incorrect. Although the gas emissions did significantly interfere with the man's use and enjoyment of his land, they are not offensive to a normal, reasonable person in the community. Thus, the man cannot recover in a private nuisance action.

(M/e damages)* An office worker who suffered from severe asthma was trapped in an elevator at work for over two hours. During that time, she experienced acute anxiety. After her rescue, she was taken to hospital where it was determined that she had suffered permanent damage to her airways, and that the damage would not have occurred had her asthma not been so severe. While the damage would never be fully repaired, expensive, ongoing treatments could improve the worker's condition. The office worker brought a personal injury suit against the owner of the building, seeking to recover compensation for the permanent damage to her airways; medical expenses, both past and future; pain and suffering during the ordeal; and attorney's fees. Which of the following is the office worker unable to recover? Answers: Attorney's fees Compensation for the permanent damage to her airways. Future medical expenses. Pain and suffering damages.

Answer choice A is correct. The measure of damages in a personal injury action includes all actual damages incurred, past and future pain and suffering (e.g., emotional distress), medical expenses, lost wages and any reduction in future earnings capacity, and loss of consortium. Under the "thin-skull" or "eggshell-plaintiff" rule, the defendant is liable for the full extent of the plaintiff's injuries due to the plaintiff's pre-existing physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable. Attorney's fees in a personal injury suit are not recoverable. In this case, the plaintiff may not obtain attorneys' fees. Answer choice B is incorrect because the fact that the worker's preexisting asthma exacerbated the damage to her airways is irrelevant, as a defendant is liable for the full extent of the plaintiff's injuries, even if increased by the plaintiff's preexisting physical or mental condition. Answer choices C and D are incorrect because both future medical expenses and pain and suffering damages are recoverable in a personal injury negligence action.

(M IIED) A journalist was writing an article about an infamous gang member who had recently been released from prison. The gang member had attracted significant media attention for a book he wrote while in prison that condemned gang violence. The gang member invited the journalist into his home for an interview. During the interview, the journalist received a phone call from his editor in chief, who notified him that he was fired. The journalist was so upset that he grabbed the first thing he saw, which he believed to be a vase, and smashed it onto the floor. The vase was actually an urn that contained the ashes of the gang member's best friend, who had been killed years earlier. The gang member was severely traumatized because the incident dredged up all of his old feelings of grief and sorrow over the death of his best friend. He had to take anti-depressants for months after the journalist broke the urn. The gang member sued the journalist for intentional infliction of emotional distress. If the gang member sues the journalist for intentional infliction of emotional distress, will he succeed? Answers: No, because the gang member was a public figure. No, because the journalist did not recklessly act with extreme and outrageous conduct. Yes, because the gang member suffered severe emotional distress. Yes, because the journalist's actions rose to the level of actual malice.

Answer choice B is correct. A defendant is liable for intentional infliction of emotional distress (IIED) if he intentionally or recklessly acts with extreme and outrageous conduct that causes the plaintiff severe emotional distress. Here, the gang member suffered severe emotional distress, but the journalist did not intend to cause this distress. In addition, since the journalist believed that the urn was a vase, his act is more likely to be characterized as negligent rather than reckless. Finally, while smashing what he believed to be a vase was certainly inappropriate, the journalist's behavior would likely not rise to the level of extreme and outrageous conduct. Answer choice A is incorrect because the gang member's status as a public figure is not what defeats his action for IIED in this fact pattern. Even if he were not a public figure, this behavior would not rise to the level of recklessness or extreme or outrageous conduct. Answer choice C is incorrect because although the gang member suffered severe emotional distress, the other elements of this tort have not been satisfied. Answer choice D is also incorrect. Public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. Here, the gang member is a public figure, but he is not suing the journalist for an article that he published. Rather, he is suing the journalist for the severe emotional distress he suffered when the journalist broke the urn. Thus, this distinction to the general rule for IIED is not applicable.

(E nuisance) A masseur operates a massage therapy parlor out of his home in a rural neighborhood, and clients regularly enjoyed receiving massages in the masseur's custom-built outdoor therapy room. The landowner's only neighbor, whose property was adjacent to the landowner's home, recently started a non-profit rescue program for mistreated farm animals. The neighbor built a number of small enclosures in her own yard to house the rescued animals until they could be rehomed. Although the animal rescue program was properly registered and in compliance with local zoning codes, the constant smell and noise from the animals interfered with the masseur's business. Many of the masseur's regular clients who benefited from the outdoor therapy room stopped coming because the stench and noise of the livestock were too distracting. As a result, the masseur has lost significant business. Which of the following actions gives the masseur the best chance to recover any economic damages from the neighbor? Answers: Attractive nuisance doctrine Private nuisance Strict liability for damages caused by animals Trespass to land

Answer choice B is correct. A private nuisance is a thing or activity that substantially and unreasonably interferes with another's use or enjoyment of her property. In this case, the masseur could argue that the animal rescue program created a substantial interference because it created a stench and noise that was annoying and disruptive to his clients. Answer choice A is incorrect because the attractive nuisance doctrine only applies when there has been an injury to a trespassing child, which is not relevant here. Answer choice C is incorrect. Regardless of whether these farm animals are classified as wild or domestic animals, to succeed in a strict liability action based on injuries caused by animals, the injury must be a result of either a dangerous propensity of the animal, or a plaintiff's fearful reaction to the sight of an unrestrained wild animal. Because no dangerous propensity of any animal caused the landowner's economic injuries in any way, this cause of ation is inappropriate. Answer choice D is incorrect because a trespass to land occurs when the defendant's intentional act causes a physical invasion of the land of another. A scent is not considered a physical invasion of land.

(B Tresspass to land) A man was barbecuing a whole chicken on a charcoal grill in his backyard. Inexperienced at grilling, he used too much lighter fluid on the charcoal and failed to properly clean the grate of excess grease and fat. When the man lit the charcoal, the charcoal and chicken burst into flames. Immediately after, the man's wife entered the backyard. She was afraid that the fire would spread to the ground, which was covered in synthetic lawn turf, and ultimately to their nearby home. Remembering that their neighbor had a pool, the wife rolled the entire grill into the neighbor's backyard and dumped the grill and the chicken into the neighbor's pool. In doing so, she pushed the grill through the neighbor's garden, destroying his crop of organic heirloom tomatoes. The neighbor sued the wife for trespass to land. What can the neighbor recover? Answers: Nothing, due to the doctrine of private necessity. Actual damages only. Actual and nominal damages. Actual, nominal and punitive damages.

Answer choice B is correct. A trespass to land occurs when one's intentional act causes a physical invasion of another's land. A trespasser need only have the intent to enter the land (or to cause a physical invasion), not the intent to commit a wrongful trespass. Here, the wife committed trespass to land because she intentionally entered the neighbor's backyard. The privilege of necessity is available to a person who enters or remains on the land of another (or interferes with another's personal property) to prevent serious harm, which typically is substantially more serious than the invasion or interference itself. Private necessity is a qualified privilege to protect an interest of the defendant or a limited number of other persons from serious harm. The privilege applies if the interference was reasonably necessary to prevent a serious injury from nature or another force not connected with the property owner. Despite this privilege, the property owner is entitled to recover actual damages, but cannot recover nominal or punitive damages nor use force to eject the defendant. In this case, the privilege of private necessity is available to the wife because crushing the tomato plants and contaminating the neighbor's pool is less serious than the danger of her home burning down, and it was reasonably necessary to use the neighbor's pool to put out the fire. Despite the privilege, the neighbor is still entitled to recover actual damages. However, he cannot recover nominal or punitive damages. For this reason, answer choices A, C and D are incorrect.

(E strict products) A retail store sold a new coffee maker to a buyer. The coffee maker was defectively manufactured. It exploded when the buyer tried to use it, causing her to suffer severe injuries. The retail store had received the coffee maker from a distributor, which had received the coffee maker from the manufacturer. Neither the distributor nor the retail store had inspected the coffee maker. The buyer brought a strict products liability action against the manufacturer, the distributor, and the retail store. What is the likely outcome of the buyer's strict products liability claim? Answers: The buyer can recover from the manufacturer, but not the distributor or the retail store. The buyer can recover from the manufacturer, the distributor, or the retail store. The buyer can recover from the manufacturer, but not from the distributor or the retail store, unless she could prove that they were negligent in failing to inspect the coffee maker. The buyer can recover from the manufacturer, but only if she can prove that the manufacturer was negligent in the manufacture of the product.

Answer choice B is correct. As long as the seller is in the business of selling the product, she is subject to strict liability for a defective product, even if the seller was not responsible for the defect in any way and even when the product is not purchased directly from the seller. Included as a seller are the manufacturer of the product, its distributor, and its retail seller. In this case, the buyer can recover from the manufacturer, even though the coffee maker was not purchased directly from it, because the coffee maker was defective and the defect existed at the time the coffee maker left the manufacturer's control. Similarly, the buyer can also recover from the retail store or the distributor even though they were not responsible for the defect in any way. Thus, answer choice A is incorrect. Answer choice C is incorrect. The facts state that the buyer brought a strict products liability action against the manufacturer, the distributor, and the retail store. Thus, the negligence of any of the parties in failing to inspect the coffee maker is not relevant. Similarly, answer choice D is incorrect because the buyer's claim was based on strict liability, not negligence.

(M defamation) A newspaper published an editorial in which an editor asserted that a candidate for high political office was a user of illegal drugs. The accusation was untrue. The editor acted unreasonably in not investigating the accusation before publishing it; however, the editor honestly believed that the accusation was true. The candidate sued the editor for defamation. Is the candidate entitled to recover? Answers: No, because the accusation appeared in an editorial and was, therefore, merely an opinion. No, because the editor honestly believed that the accusation was true. Yes, because calling someone an illegal drug user is defamatory per se. Yes, because the accusation was false and was injurious to the candidate's reputation. Rationale:

Answer choice B is correct. In a defamation action brought by a candidate for public office, the plaintiff must establish more than mere negligence with regard to the truth or falsity of the allegedly defamatory statement of fact. The plaintiff must establish that the defendant acted with actual malice, that is, that the defendant in fact knew the statement to be false or entertained serious doubts as to the truth of the statement. Here, the candidate cannot establish actual malice on the part of the editor in publishing the statement. Answer choice A is incorrect. The assertion that the candidate used illegal drugs purported to be a statement of fact, not a statement of opinion. Defamation turns on what is conveyed in the statement published by the defendant. The context may influence what is conveyed, but facts may be stated in editorials or advertisements as well as in news reports. In this case, it is true that the candidate will not recover, but the reason is that he cannot show the actual malice required to defame a political candidate because the editor believed the statement about the candidate's drug use to be true. Answer choice C is incorrect. The plaintiff in a defamation action must establish that a statement is defamatory, and accusing someone of a criminal act is indeed "defamatory per se." However, a political candidate, like a political official, must also establish that the defendant acted with actual malice. Here, the candidate cannot establish that essential element of his case. Answer choice D is incorrect because the evidence does not support a finding of actual malice in this case.

(E Assault) A college student was asleep in his bed in a college dormitory when his roommate, in a drunken fury, entered their room intending to attack the student with an ice pick while he slept. Fortunately, the phone rang and awakened the student. The roommate retreated quickly and threw the ice pick under his own bed in the same room. The next day, the student heard from friends about the roommate's murderous plans and later found the ice pick under the roommate's bed. Even though the college expelled his roommate, the student remained extremely upset and afraid to sleep. In a suit against the roommate for assault, will the student prevail? Answers: No, because the roommate did not touch the student. No, because the student was not awake when the roommate entered the room and was unaware until later that the roommate was intending to attack him. Yes, because it was reasonable for the student to feel afraid of sleeping in his room afterward. Yes, because the roommate intended to inflict serious harm.

Answer choice B is correct. To establish a claim for assault, a plaintiff must demonstrate that he reasonably apprehended that a harmful or offensive touch was imminent. In this case, because he was asleep, the student did not have the apprehension necessary for an assault claim. Answer choice A is incorrect because contact or touching is not required to establish a claim of assault. Answer choice C is incorrect. Fear is neither necessary nor sufficient to establish a claim for assault. Proof of apprehension at the time of the defendant's act is necessary even given the fact that the student became fearful of future harmful contact. Answer choice D is incorrect. Proof that the roommate intended to inflict serious harm on the student would satisfy the intent element of a cause of action for assault, but the student cannot establish that he reasonably apprehended an imminent contact, which is another essential element of an assault claim.

(M Def of others) In what began as consensual roughhousing on a public sidewalk, a high school freshman refused to stop despite a request by the other, much larger participant, a college senior. As a consequence, the senior began to pummel the freshman. The freshman managed to escape from the senior, and fled screaming for help with the senior in pursuit. A deliveryman, who was unacquainted with either student, witnessed only the freshman's flight from the senior. The deliveryman, responding to the freshman's appeal, used reasonable force to trip the senior as he came running by the deliveryman. As a result, the senior suffered physical injuries. The senior brought suit against the deliveryman to recover damages for his injuries. Who will prevail? Answers: The senior, because the deliveryman purposefully caused the senior's injuries. The senior, because the deliveryman was not related to the freshman. The deliveryman, because he acted in defense of the freshman. The deliveryman, because the senior consented to the roughhousing.

Answer choice C is correct because one is justified in using reasonable force in defense of others upon reasonable belief that the defended party would be entitled to use self-defense. Here, the deliveryman acted to protect the freshman from an assault by the senior and used reasonable force to do so. Although the freshman became the aggressor by refusing to stop roughhousing despite the senior's request, the senior, by chasing the freshman, was acting in retaliation rather than in self-defense. Answer choice A is incorrect because, although the deliveryman did intentionally cause the senior's physical injuries, the deliveryman was acting in defense of the freshman. Answer choice B is incorrect because the defense of others is not limited to actions to protect a family member. Answer choice D is incorrect because, although the senior did initially consent to the roughhousing, that consent was vitiated by the senior's request to terminate the roughhousing.

(M causation)** A homeowner hired a landscaper to move a number of large boulders from the bottom of a hill on her property to the Zen garden she had built at the top of the hill. Unknown to the landscaper, the homeowner was a regular practitioner of fire poi, a unique performance art that involved swinging burning weights on long chains in a complex rhythmic and geometric choreography. The night after the landscaper placed the boulders, it rained heavily on the homeowner's property. The rain eroded some of the sand at the base of each boulder, leaving them unstable. The next morning, the homeowner went outside to practice poi while standing on one of the boulders. She lost her balance when an unstable boulder shifted, and she suffered severe burns. The homeowner sued the landscaper for negligence, and established at trial that the rain would not have affected the stability of the boulders if the landscaper had placed them slightly deeper into the sand. She has also established that she was very proficient at fire poi, and would not have burned herself if the boulder had been steady. On these facts, which of the following is the landscaper's strongest defense? Answers: The homeowner assumed a risk of injury by practicing poi on a boulder. The homeowner was engaged in an abnormally dangerous activity. The landscaper could not reasonably foresee the homeowner's injuries. The rain was a superseding cause of the homeowner's injuries.

Answer choice C is correct. A defendant is liable for the reasonably foreseeable consequences resulting from his conduct. The type of harm must be foreseeable, and a defendant's liability is limited to those harms that result from the risks that made the defendant's conduct tortious. The homeowner is suing the landscaper for the negligent placement of the boulders. Foreseeable consequences of such negligence may have included damage caused if the boulders rolled, of even damages sustained in a fall from the boulder. However, burns are not a foreseeable type of harm within the scope of the risk created by poor placement of the boulders. Therefore, the landscaper should argue that he is not liable for these unforeseeable injuries. Answer choice A is incorrect. Traditionally, a plaintiff's voluntarily encountering a known, specific risk is an affirmative defense to negligence that affects recovery. Most courts hold that the voluntary encountering must also be unreasonable. Here, given the level of proficiency the homeowner has established, it is unlikely that her practice was unreasonable, or that she carried out her practice in the face of a known risk that the boulder would shift. Additionally, in most comparative-fault jurisdictions, this form of assumption of the risk merely reduces recovery. Therefore, answer choice C offers a stronger defense. Answer choice B is incorrect because, even if fire poi is an abnormally dangerous activity, that alone does not bar the homeowner from recovering damages. Instead, it may have made her strictly liable to bystanders, and it may qualify as contributory negligence. However, in pure comparative negligence jurisdictions (which is the default on the MBE), her negligence would not bar her recovery. Answer choice D is incorrect. Examples of unforeseeable superseding causes include extraordinary acts of nature ("act of God"), criminal acts, and intentional torts of third parties. However, normal forces of nature, including rain, are considered foreseeable intervening causes, and will not limit the defendant's liability.

*(M Consent)* A mountain climber and his friend were scaling down a steep mountain side when one of the mountain climber's harnesses broke; although still connected to his safety rope, he dropped down the mountain a few feet. He screamed out in pain because he scraped his legs and arms badly, but when his safety rope broke his fall, he immediately saw that he was safe and in no further danger of injuring himself. Concerned that the mountain climber may be injured, the friend offered to slacken the safety rope to try to get the mountain climber down to the nearest ledge. The mountain climber adamantly refused the help because he was in no danger of being injured any further. The friend ignored the mountain climber's protestations and loosened the safety rope to drop the mountain climber down to the nearest ledge. In the process, the mountain climber sprained his ankle. The mountain climber subsequently sued the friend for battery. Can the friend be held liable for battery? Answers: No, because the friend did not intend to cause a harmful contact to the mountain climber. No, because the friend had implied-in-fact consent to assist the mountain climber due to an emergency. Yes, because the friend ignored the mountain climber's protestations that he was not in danger of being injured any further. Yes, because the mountain climber was in no actual danger.

Answer choice C is correct. A defendant is liable to the plaintiff for battery when he causes a harmful or offensive contact with the person of another, and acts with the intent to cause such contact or the apprehension of such contact. The plaintiff's consent to physical contact can be implied by silence in a situation in which a reasonable person would object to the defendant's actions, but even in an emergency situation, a competent and conscious person's right to refuse treatment must be respected. Here, the mountain climber s competently and consciously refused help or treatment from the friend, which the friend ignored. Because the friend ignored the mountain climber's protestations, he can be held liable for battery. Answer choice A is incorrect because even if the friend did not have the intent to harm the mountain climber, he exceeded the limits of acceptable contact by loosening the role despite the mountain climber's protestations. Answer choice B is incorrect. When immediate action is required to save the life or health of a person who is incapable of consenting to treatment, such consent is generally "implied in fact." However, as stated above, in this situation the mountain climber was able to refuse help from his friend. Therefore, there was no implied-in-fact consent, and the friend may be liable for battery. Answer choice D is incorrect because even if the mountain climber had been injured or in danger, he was competent and conscious enough to refuse assistance. Therefore, even real danger to the mountain climber would not have prevented the friend's liability in this situation.

*(E Self- D)* An elderly woman moved from her home in a rural community into an assisted living facility in the city. The woman was partially deaf, but was otherwise in good health. She walked from the living facility to the grocery store every day, despite her irrational but honestly held belief that she would be mugged. To protect herself, the woman kept pepper spray in her purse on her walks. One day, when the woman was walking back to the facility with her groceries, the bag tore and her produce rolled all over the sidewalk. A young man walking on the other side of the street saw what happened and called out "Hold on miss, I'll help!" The woman did not hear what he said, but did see him look both ways and then jog across the busy street. The man slowed and smiled as he approached her. Honestly believing she was being attacked, the woman pepper sprayed the man in the face. The man has sued the woman for battery, and the woman has asserted that she acted with the privilege of self-defense. If the man succeeds in his action, what is the most likely reason? Answers: There is no evidence that the woman attempted to retreat before using force. The woman's partial deafness was not taken into account in her claim of self-defense. The woman's belief, while honestly held, was not reasonable. As the initial aggressor, the woman is not entitled to claim self-defense unless the other party responded with deadly force.

Answer choice C is correct. A person may use reasonable force to defend against an offensive contact or bodily harm that he reasonably believes is about to be intentionally inflicted upon him. A person's mistaken belief that he is in danger, so long as it is a reasonable mistake, does not invalidate the defense. Under the circumstances, it is probably not reasonable to assume that a man who jogged across a busy street and smiled at the woman after she had dropped her groceries planned to attack her. Answer choice A is incorrect because the majority of jurisdictions do not require an attempt to retreat before the use of force. Answer choice B is incorrect. A person's particular physical characteristics, such as blindness or deafness, are taken into account when determining the reasonableness of their actions. However, even taking the elderly woman's deafness into account here does not make her reaction reasonable; further, even a person on average hearing ability may not have been able to hear the man across the busy street. Therefore, even considering this physical characteristic, the woman's belief was not reasonable. Answer choice D is incorrect. When a defendant was the initial aggressor because she was responding to an honest and reasonable belief that an offensive contact or bodily harm was about to be inflicted upon her, she could claim self-defense. Therefore, even though the elderly woman attacked the man first, she could have claimed self-defense if her belief was reasonable. There is no requirement of a threat of deadly force.

M/E D of strict A mining company that operated a copper mine in a remote location kept dynamite in a storage facility at the mine. The storage facility was designed and operated in conformity with state-of-the-art safety standards. In the jurisdiction, the storage of dynamite is deemed an abnormally dangerous activity. Dynamite that was stored in the mining company's storage facility and that had been manufactured by an explosives manufacturer exploded due to an unknown cause. The explosion injured a state employee who was at the mine performing a safety audit. The employee brought an action in strict liability against the mining company. What would be the mining company's best defense? Answers: The mine was in a remote location. The mining company did not manufacture the dynamite. The state employee assumed the risk of injury inherent in the job. The storage facility conformed to state-of-the-art safety standards.

Answer choice C is correct. Assumption of risk can be an affirmative defense to strict liability, and in this case, the state employee willingly took on auditing duties in potentially dangerous environments. Answer choice A is incorrect. The location of the activity and whether the activity is common for the area are factors that might be considered in determining whether an activity is "abnormally dangerous," but the facts specify that the state has already determined that the activity of storing dynamite is abnormally dangerous without reference to the location at which it is conducted. Moreover, the storage of dynamite even in remote locations is often considered to be abnormally dangerous. Answer choice B is incorrect. In a products liability action, the defendant's status as a manufacturer or other "seller" of the product would be important, but this strict liability action is based on an abnormally dangerous activity rather than on a defective product. In a strict liability action based on engaging in an abnormally dangerous activity, a defendant can be held liable for all the risks inherent in the activity, whatever other actors might be involved in creating those risks. Answer choice D is incorrect. The storage facility's conformity to the highest safety standards would be relevant if the action were based on negligence. But in an action based on strict liability for engaging in an abnormally dangerous activity, the defendant will be held responsible even for those risks that could not have been avoided through the use of extraordinary care.

(E breach of duty)** An older sister was helping her younger sister move into her new apartment on the fourth floor of an old building without an elevator. The two sisters, who were not accustomed to moving large items of furniture, attempted to carry a 250-pound couch up the four flights of stairs while wearing high heels. Prior to moving the couch, the sisters had also shared a bottle of wine. An elderly woman waited at the bottom of the stairs as they struggled. When the sisters reached the top of the first flight of stairs, the elderly woman ascended the stairs behind them. One of the sisters then lost her footing, and both sisters lost control of the couch. As the couch started to slide down the stairs, the elderly woman jumped out of the way but ended up tripping and falling down the stairs. The sisters were able to regain control of the couch, but the elderly woman suffered serious injury when she fell down the stairs. The elderly woman filed a negligence suit against the sisters. At trial, the above facts were undisputed, and the sisters moved for judgment as a matter of law. Should the court grant the motion for judgment as a matter of law? Answers: Yes, because the elderly woman voluntarily climbed the stairs behind the sisters. Yes, because the elderly woman was the legal cause of her own injuries when she jumped out of the way. No, because the jury could conclude that the sisters negligently caused harm to the elderly woman. No, because the elderly woman was reasonably apprehensive of an imminent harmful contact.

Answer choice C is correct. Negligence occurs when a defendant owes a duty of care to the plaintiff, breaches that duty of care, and the breach of the duty of care actually and legally caused the plaintiff's harm, resulting in damages. Here, the court should not grant the motion for judgment as a matter of law, as it is possible that the jury could find that the sisters breached their duty of reasonable care to the elderly woman, who was a foreseeable plaintiff. The sisters were not accustomed to lifting heavy furniture, they wore high heels while moving the couch, and they had shared a bottle of wine prior to doing so. It was foreseeable that they could lose control of the couch, which could result in injury to someone climbing the stairs behind them. Answer choice A is incorrect. The elderly woman may have assumed the risk of being harmed by the falling couch by following behind the sisters. However, even if assumption of the risk was applicable here, it would not prevent her from recovering damages in a pure comparative negligence jurisdiction (applies when no other type of jurisdiction is specified), although the elderly woman's recovery would be reduced. Answer choice B is incorrect. If the sisters had not lost control of the couch, the elderly woman would not have tried to jump out of the way. The injury the elderly woman received is sufficiently related to the sisters' act that they may be liable, and is not so remote that the sisters cannot be found to be the legal cause of the injury. Answer choice D is incorrect because the elderly woman brought an action for negligence. Therefore, the elderly woman's apprehension of imminent harmful contact is not relevant and is not determinative of the success of the motion for judgment as a matter of law.

(E vicarious liability) In an action by a man against a pharmacy, the man offered only the following evidence: The man took a clearly written prescription to a pharmacy. The pharmacy's employee filled the prescription by providing pills with 30 milligrams of the active ingredient instead of 20 milligrams, as was prescribed. Shortly after taking the pills as directed, the man, who had no previous history of heart problems, suffered a heart attack. Overdoses of the active ingredient had previously been associated with heart problems. Does the man have a valid claim against the pharmacy? Answers: No, because pharmacies are not strictly liable for injuries caused by incorrectly filled prescriptions. No, because the man offered no specific proof as to the pharmacy's negligence. Yes, because a jury could reasonably conclude that the man would not have suffered a heart attack had the pharmacy provided the correct dosage. Yes, because by providing the 30-milligram pills rather than the 20-milligram pills, the pharmacy sold the man a defective product.

Answer choice C is correct. There is sufficient circumstantial evidence to support a conclusion that the pharmacy's employee was negligent in filling the prescription and that the consequent overdose caused the heart attack. The pharmacy would be vicariously liable for its employee's negligence under respondeat superior principles. Answer choice A is incorrect. Under some theories, pharmacies might be held strictly liable for incorrectly filled prescriptions. That fact is irrelevant here, however, because in this case, the evidence of the employee's negligence, while circumstantial, is sufficient to support a negligence claim against the pharmacy under respondeat superior principles. Answer choice B is incorrect. Although the evidence does not specify exactly how the pharmacy's employee erred, it is sufficient to support a claim of negligence against the pharmacy under respondeat superior principles. Answer choice D is incorrect. It is not necessary to establish that a product was defective in order to establish a claim in negligence. Here, there is no evidence demonstrating that the product itself was defective. If the pill bottle had been improperly labeled, the product would have been considered defective, but there is no mention of mislabeling in the facts.

*(E Nuisance)* A gas company built a large refining facility that conformed to zoning requirements on land near a landowner's property. The landowner had his own home and a mini-golf business on his property. In a nuisance action against the gas company, the landowner established that the refinery emitted fumes that made many people feel quite sick when they were outside on his property for longer than a few minutes. The landowner's mini-golf business had greatly declined as a consequence, and the value of his property had gone down markedly. Is the landowner likely to prevail? Answers: No, because the landowner has offered no evidence demonstrating that the gas company was negligent. No, because the refinery conforms to the zoning requirements. Yes, because the refinery has substantially and unreasonably interfered with the landowner's use and enjoyment of his property. Yes, because the value of the landowner's property has declined.

Answer choice C is correct. To prevail on a nuisance claim, the plaintiff must show that the defendant's activity has substantially and unreasonably interfered with the plaintiff's use and enjoyment of his property. The evidence that there has been a significant decrease in the value of the landowner's property and that his business is suffering a marked decline would support a claim that the intrusion by the gas company is both substantial and unreasonable. Answer choice A is incorrect because a showing of negligent behavior on the part of the defendant is not required to prevail on a nuisance claim. Answer choice B is incorrect. The character of the neighborhood may be considered in evaluating whether a property owner has created a nuisance, but compliance with zoning requirements does not defeat a nuisance claim if the defendant's activity substantially and unreasonably interferes with the landowner's use and enjoyment of his property, which appears to have happened in this case. Answer choice D is incorrect because a mere decline in property value is not enough to establish a nuisance claim.

(E Standard of care)* A fire that started in the defendant's warehouse spread to the plaintiff's adjacent warehouse. The defendant did not intentionally start the fire, and the plaintiff can produce no evidence as to how the fire started. However, the defendant had failed to install a sprinkler system, which was required by a criminal statute. The plaintiff can produce evidence that had the sprinkler system been installed, it could have extinguished the fire before it spread. In an action by the plaintiff against the defendant to recover for the fire damage, is it possible for the plaintiff to prevail? Answers: No, because the statute provides only for criminal penalties. No, because there is no evidence that the defendant negligently caused the fire to start. Yes, because a landowner is strictly liable for harm to others caused by the spread of fire from his premises under the doctrine of Rylands v. Fletcher. Yes, because the plaintiff was harmed as a result of the defendant's violation of a statute that was meant to protect against this type of occurrence.

Answer choice D is correct. A criminal statute can be used to set the standard of care in a negligence action if it was meant to protect against the type of harm that occurred by specifying preventive steps that should be taken. In that case, violation of the statute is negligence per se. For these reasons, answer choice A is incorrect. Answer choice B is incorrect because even though there is no evidence that the defendant intentionally or negligently started the fire, his failure to take preventive steps to stop the spread of fires was a but-for cause of the plaintiff's loss. Answer choice C is incorrect. At earlier periods of the common law, cases held landowners strictly liable for the spread of fire. Today, these cases are evaluated under negligence standards. Also, the modern interpretation of Rylands v. Fletcher limits the precedent to a category of "abnormally dangerous activities." There is no indication that the defendant here engaged in an abnormally dangerous activity.

*(E D of prop)* A woman had been followed by a stalker for many months. The stalker always maintained a respectable distance, and the woman was never in fear for her safety. After months of following the woman from home to work, the stalker also started hiring delivery services to send various gifts to her home. The gifts were always innocuous in nature; the woman left all of the gifts unaccepted at the curb in front of her yard, and still did not fear for her safety. One day, the stalker dressed up like a deliveryman, hid his face behind a large bouquet of flowers, and walked through the woman's front yard to ring her doorbell. The woman opened the door, and when the stalker moved the flowers away from his face, he said "I just wanted to bring you some flowers in person." The woman was not afraid, but was infuriated that the stalker had the audacity to trespass on her property to deliver more unsolicited gifts. Instead of asking him to leave, the woman grabbed a stun gun and immediately discharged it at the stalker, intending to frighten him off her property. The stalker had a preexisting heart condition and died from cardiac arrest triggered by the stun gun. The executor of the stalker's estate sued the woman for wrongful death. If the court finds that the use of the stun gun constituted deadly force, is the executor likely to prevail? Answers: No, because deadly force can be used to defend property if one's personal safety is threatened. No, because the woman did not set a trap to defend her property from trespassers. Yes, because the woman did not ask the stalker to leave her property before shooting him. Yes, because the woman did not believe her personal safety was threatened by the stalker.

Answer choice D is correct. A person may use reasonable force to defend her property if she reasonably believes it is necessary to prevent tortious harm to her property. However, deadly force may not be used in defense of property unless one's personal safety is threatened. Based upon the facts, there is no evidence that the woman was in fear for her life. She only wanted the man to leave her property. Thus, the use of deadly force was not appropriate in this instance. Answer choice A is incorrect because the facts provide that the woman did not fear for her own safety. Answer choice B is incorrect. Although the use of a spring-gun or other trap set to expose a trespasser to a force likely to inflict death or grievous bodily injury will lead to liability for the land possessor, this is not the only way that the woman could have been liable for an injury to a trespasser. Here, the woman is liable because, regardless of her duties as a landowner, she used deadly force to protect her property when she was not in fear for her physical safety. Answer choice C is incorrect. In general, a landowner is entitled to use reasonable force only after making a request that the trespasser desist and the trespasser ignores the request. However, because such a request is not required if the landowner reasonably believes that a request will be useless or that substantial harm will be done before it can be made, the woman would have been permitted to use reasonable force without asking him to leave if she feared for her personal safety. However, even then, the use of force may only be reasonable, and deadly force was not reasonable in this case.

*(M Duty)* A police officer was on patrol in his police car when he noticed a pickup truck that appeared to be dangerously overloaded with bales of hay, speeding on an expressway. The policeman drove behind the pickup truck to get a closer look. When the driver of the pickup truck saw the police car behind him, the driver slowed down and swerved abruptly from the fast lane into the slow lane. The sudden swerve caused the load of hay to shift and a bale to fall out. The bale of hay struck the window of the police officer's car, causing him to lose control of the car and crash into a sign post. The policeman suffered significant injuries in the crash. Should the police officer be able to recover from the driver for his injuries? Yes, but only if the driver was actually speeding. Yes, but only if the driver had been negligent in loading the pickup truck. Yes, but only if the policeman was not comparatively negligent in following the pickup truck. No.

Answer choice D is correct. An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional's injury if the injury results from a risk inherent in the job ("firefighter's rule"). Here, the police officer's injury resulted from a risk inherent in the job. The driver's abrupt swerving of his truck in response to the police officer's presence was a risk involved in a police pursuit/investigation. Therefore, the injuries sustained by the police officer in the crash as a result of the driver's actions were inherent to his job and, consequently, the police officer cannot recover from the driver for his injuries. Answer choice A is incorrect because the rule bars recovery even if the driver was negligent. Answer choice B is incorrect for the same reason. Answer choice C is incorrect because the rule precludes recovery even when the plaintiff was not comparatively negligent.

(E vicarious liability) The zoo at which a zookeeper worked permitted patrons to feed certain animals while on guided zoo tours. The zoo gave the zookeeper explicit instructions that on these tours, the zoo patrons were only allowed to feed the giraffes, elephants, and zebras. In addition, the zookeeper could only allow one zoo patron to feed each animal at a time in order to prevent the animal from becoming overwhelmed and harming someone. One day, the zookeeper took a couple on a tour to feed the giraffes. The couple wanted to have a picture of themselves feeding the giraffe together. The zookeeper permitted them to do so while he took the picture. The giraffe suddenly became agitated and bit the man's hand. The man sustained injuries, including a severe infection from the wound, and sued the zoo for damages under a theory of vicarious liability. If the court finds that the zookeeper's negligence caused the man's injuries, can the zoo be held liable? Answers: No, because the zoo gave the zookeeper explicit instructions to only allow one person to feed an animal at a time. No, because the zookeeper was engaged in frolic when he took a picture of the couple feeding the giraffe. Yes, because the zoo is liable for any tortious conduct of its employees towards an invitee. Yes, because the zookeeper was acting within the scope of his employment when the giraffe bit the man.

Answer choice D is correct. An employer is liable for the tortious conduct of an employee that is within the scope of employment. If the employee is acting within the scope of employment, even careful instructions directed to the employee do not insulate the employer from liability. Here, the zookeeper was clearly an employee of the zoo. Even though the zookeeper acted counter to the zoo's instructions, the zoo will remain liable because the zookeeper was acting within the scope of his employment as a zookeeper when he led zoo patrons a tour and allowed them to feed animals. Answer choice A is incorrect because if the employee is acting within the scope of employment, careful instructions directed to the employee do not insulate the employer from liability, even if the employee acts directly counter to those instructions. Answer choice B is incorrect. A frolic is an unauthorized and substantial deviation from an employee's scope of employment. Merely taking a picture of a couple at a zoo during an authorized tour is not an unauthorized and substantial deviation from the zookeeper's scope of employment. Answer choice C is incorrect because it is too broad. An employer is not liable for all tortious conduct by an employee towards an invitee; employers are generally not liable if the employee exceeds the scope of his employment.

*(E conversion)* A customer pledged a stock certificate to a bank as security for a loan. A year later, when the customer fully repaid the loan, the bank refused the customer's demand to return the stock certificate because the officer dealing with the loan had the mistaken belief that there was still a balance due. No one at the bank reviewed the records until two months later, at which time the error was discovered. The bank then offered to return the stock certificate. However, the customer refused to accept it. At the time the customer pledged the certificate, the shares were worth $10,000; at the time the customer repaid the loan, the shares were worth $20,000; and at the time the bank offered to return the certificate, the shares were worth $5,000. If the customer brings an action against the bank based on conversion, how much, if anything, should the customer recover? Answers: Nothing, because the bank lawfully came into possession of the certificate. $5,000, because that was the value of the shares when the customer refused to accept the certificate back. $10,000, because that was the value of the shares when the bank came into possession of the certificate. $20,000, because that was the value of the shares when the customer was entitled to the return of the certificate.

Answer choice D is correct. Conversion is equivalent to a forced sale of the chattel to the defendant, who is liable for the full value of the chattel at the time of the tort. The tort occurred when the bank refused to relinquish the stock certificate in response to the customer's lawful demand, and at that time the shares were worth $20,000. Answer choice A is incorrect. Someone who refuses to surrender a chattel to another person who is entitled to its immediate possession is liable for conversion even if the one holding the chattel originally came into possession lawfully. The bank is liable to the customer for the value of the shares at the time the bank refused the customer's lawful demand for return of the certificate - $20,000. Answer choices B and C are incorrect because the defendant is liable for the full value of the chattel at the time of the tort - when the bank refused to relinquish the stock certificate in response to the customer's lawful demand, and at that time the shares were worth $20,000.

(E causation)** A boy was swinging on a swing set at a local park. The boy's motion caused the base of the swing set to come loose and topple over onto the boy's leg. A nearby man saw what happened, so he rushed over and tried to lift the frame off the boy's leg. In doing so, he pulled too hard on the frame, loosened one of the bars, and the bar fell on top of the boy's arm. The boy sustained a broken leg caused by the initial fall, and a broken arm from the second falling bar. The mother of the boy sued both the park and the man for negligence on behalf of the boy. At trial, it is established that the park's negligent maintenance of the swing set allowed the swing set to come loose and topple onto the boy. It was also established that the man was negligent in his attempt to lift the frame off the boy's leg, but that the swing set would not have fallen apart and broken the boy's arm but for the park's negligent maintenance. Based on these facts, from whom can the mother recover damages? Answers: Neither party Only the park Only the man The park and the man

Answer choice D is correct. It is foreseeable that a child would swing on a swing set and that a negligently maintained swing set may malfunction and cause an injury. Therefore, the park is liable for negligently maintaining the safety of the swing set, and the man's intervening negligence does not affect the park's liability. A foreseeable intervening cause, such as the negligence of a rescuer, will not cut off a defendant's liability. As a general guideline, negligent intervening acts are usually regarded as foreseeable and do not prevent the original defendant from being held liable to the plaintiff. Here, the park's negligent maintenance is the actual and proximate cause of both of the boy's injuries. The man's subsequent negligence was a foreseeable intervening force, so it did not break the chain of causation started by the park's negligent maintenance of the swing set. Accordingly, the park will remain liable for the boy's injuries. Further, the man is liable for any additional injuries caused by his own negligent actions, even if the situation would not have arisen absent the park's prior negligence. However, he would be liable for only those injuries beyond those that would have come about due to the park's negligence alone. Because the park remains liable for its negligence despite the man's intervention, and because the man may be liable for worsening the boy's injuries, answer choices A, B, and C are incorrect.

*(E Defense of property)* A farmer kept antiques in an uninhabited farmhouse on his property. The farmhouse had been broken into several times in the past, and some of the farmer's goods had been stolen. Instead of posting "No Trespassing" signs, the farmer decided to install an alarm system to deter intruders. While the farmer was in the farmhouse installing the alarm system, he heard a window open in the adjoining room. The farmer crept very quietly to the door of the room, threw the door open, and found an intruder, a young child. The farmer immediately struck the child, a 10-year-old girl, very hard in the face, breaking her nose. In an action on behalf of the child against the farmer to recover for the injury to her nose, is the child likely to prevail? Answers: No, because the farmer did not use deadly force. No, because the farmer had probable cause to believe that the child was a thief. Yes, because the farmer should have posted a "No Trespassing" sign. Yes, because the farmer used excessive force.

Answer choice D is correct. The farmer was privileged to use reasonable force to prevent or end a trespasser's intrusion upon his land or to protect his property, but he was not privileged to use force that threatened serious bodily injury unless he was himself in danger of serious bodily harm. The force the farmer used was sufficient to and did in fact cause serious bodily injury. The child appeared to pose no threat of bodily harm to the farmer and could have been deterred by less forceful means. Answer choice A is incorrect. The child can state a claim for battery because there was an intentional infliction of a harmful contact. To support a battery action, the contact need not involve force so great as to threaten death. Answer choice B is incorrect because even if the child had been a thief, the privilege to use reasonable force to protect one's property does not extend to the use of force likely to cause serious bodily harm when there is no threat of such harm to oneself. As previously stated, the child appeared to pose no threat of bodily harm to the farmer and could have been deterred by less forceful means. Answer choice C is incorrect. The farmer was not required to have posted a warning in order to have had a privilege to protect his property by the use of reasonable force, although the absence of a warning sign may become a factor in determining whether the steps he took were in fact reasonable. In evaluating whether his actions were reasonable as a defense of his property, the court will ask whether the force he used was excessive. Because the force the farmer used was greater than necessary and was intended to cause serious bodily harm, it was excessive as a defense of property.

(E Sharing liability among defendant) The driver of a car and a motorcyclist collided at an intersection. Debris from the accident struck and injured a nearby pedestrian. The pedestrian sued both drivers for his injury. It was determined that the motorcyclist was 75% responsible for the injury and the car driver 25%. The driver of the car filed a motion to dismiss the claim against him. The applicable jurisdiction has adopted pure several liability. How should the court rule on the driver's motion? Answers: Grant the motion, because the motorcyclist is liable for the full amount of damages. Grant the motion, because the pedestrian may not collect damages from both parties. Deny the motion, because the pedestrian may sue the driver of the car for the entire amount of her damages. Deny the motion, because the plaintiff may sue the driver of the car for 25% of the damages she suffered.

Answer choice D is correct. Unlike in a joint and several liability jurisdiction, in which each tortfeasor who causes a single indivisible harm is jointly and severally liable for the entire amount of damages suffered by the plaintiff, in a pure several liability jurisdiction, such a tortfeasor is only liable for that tortfeasor's comparative share of the plaintiff's damages. Accordingly, since the jurisdiction has adopted pure several liability, the pedestrian may sue the car driver for the portion of the pedestrian's damages attributable to the driver's fault. Answer choice A is incorrect because, even though the motorcyclist was more at fault than the car driver, each is liable for the proportion of damages that he caused. Answer choice B is incorrect because the pedestrian may collect from each defendant the proportion of total damages that that defendant caused. Answer choice C is incorrect because the pedestrian cannot sue the car driver for the entire amount of her damages since the jurisdiction follows the pure several liability rule.

(E D of neg) A schizophrenic patient who was institutionalized in a psychiatric facility pushed a nurse down a stairwell at the facility. The nurse, a paid employee of the facility who was trained to care for schizophrenic patients, was injured. The patient is an indigent whose care is paid for by the government. The jurisdiction generally follows the rule that a person with a mental deficiency is held to the standard of a reasonable person. In a negligence action brought by the nurse against the patient, the patient's lawyer will argue that the patient should not be held responsible for the nurse's injury. Which of the following facts will be LEAST helpful to the patient's lawyer's argument? Answers: The nurse was a professional caregiver. The nurse was trained to care for patients with schizophrenia. At the time she pushed the nurse, the patient thought she was being attacked by an elephant. The patient is an indigent whose care is paid for by the government.

Answer choice D is correct. Whether the patient has the resources to satisfy an adverse judgment is irrelevant to the judgment itself and should not be a subject of argument on the issue of liability in the case, although the patient's financial situation might affect a lawyer's decision to take on the case. Answer choice A is incorrect. The nurse's professional role is relevant because it might support a defense based on assumption of risk. Answer choice B is incorrect. The nurse's specialty training is relevant because it might support a defense based on either assumption of risk or contributory negligence. The patient could argue that a professional with the nurse's training should have foreseen the risk of this happening and taken steps to protect herself. Answer choice C is incorrect. The patient's mental state is relevant because the patient's actions were no doubt caused by the mental illness and thus fell within the risks likely assumed and anticipated by the nurse.

*(m/e duty)* A plaintiff owns and operates a food truck. The defendant, a construction worker, negligently backed some heavy machinery into the plaintiff's food truck, damaging it. The impact caused the plaintiff, who was in the food truck at the time, to fall over and hit his head on the counter, rendering him temporarily unconscious. While the plaintiff was out, the defendant watched as a thief entered the food truck and rifled through the cash register, stole several hundred dollars, and disappeared. Although she could have easily and safely thwarted the theft, the defendant took no action. The plaintiff brought an action against the defendant. In addition to claims for the injury to himself and the damage to his food truck, the plaintiff is seeking to recover the money that was stolen, since the plaintiff has been unable to identify the thief. Which of the following best describes the likely outcome of the plaintiff's claim to recover the stolen money from the defendant? Answers: Denied, because the money was taken by a thief. Denied, because there is no duty to protect a stranger from criminal activity. Allowed, because the plaintiff is unable to recover from the thief. Allowed, because the defendant's conduct had left the plaintiff vulnerable to the thief.

Answer choice D is correct. While a person is generally not liable for the criminal acts of another, and has no duty to prevent such acts, a person who places another in peril is under a duty to exercise reasonable care to prevent further harm by rendering care or aid. Here, the defendant's negligent conduct rendered the plaintiff unconscious and placed him at the mercy of the thief. Consequently, the defendant had a duty to exercise reasonable care to prevent the theft. Since she did not, she is liable to the plaintiff for his loss of property (i.e., cash) that occurred as a result. Answer choice A is incorrect because, although the thief is certainly liable to the plaintiff for conversion, since the defendant placed the plaintiff in peril, she was under a duty to exercise reasonable care to prevent further harm by rendering care or aid, which she failed to do. Answer choice B is incorrect because, while generally there is no affirmative duty to act, such as to protect a stranger from criminal activity, since the defendant placed the plaintiff in peril, she was under a duty to exercise reasonable care to prevent further harm by rendering care or aid, which she failed to do. Answer choice C is incorrect because the defendant's liability to the plaintiff is independent of the thief's liability to the plaintiff. Even if the plaintiff was aware of the identity of the thief and could bring suit against the thief, the plaintiff can elect to pursue his claim for the stolen cash against the defendant instead.