Torts MBE

A man was drinking at a bar. He started arguing with the man sitting next to him, and the verbal argument quickly escalated into a physical altercation. The two men began punching each other, and then one of the men put on brass knuckles and started to hit the other man. The bartender quickly grabbed a knife from behind the bar, and tried to break up the fight between the two men. The man with the brass knuckles punched the bartender repeatedly. The bartender responded by trying to stab him. However, he accidentally stabbed a woman next to him instead. The woman has filed a battery claim against the bartender to recover damages for the stabbing. Who will prevail? (A) The bartender, because he was trying to protect himself from the man. (B) The bartender, because he did not intend to stab the woman with the knife. (C) The woman, because the bartender's intent to stab the man transferred to her. (D) The woman, because the bartender was required to retreat before using deadly force.

(A) The bartender, because he was trying to protect himself from the man. A defendant may use deadly force for the purpose of defending himself against the plaintiff only if the defendant reasonably believes that (i) the plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force upon the defendant, (ii) the defendant is thereby put in peril of either death, serious bodily harm, or rape by the use or threat of physical force or restraint, and (iii) the defendant can safely prevent the peril only by the immediate use of deadly force. When a person using force in self-defense unintentionally harms an innocent bystander, that person is not subject to intentional tort liability to the bystander. Here, the bartender's use of deadly force was reasonable to defend himself from the man's attack using brass knuckles. And since the bartender unintentionally harmed the woman while acting in self-defense, he is not liable for battery. Answer choice B is incorrect because although transferred intent would usually apply to a misdirected battery, one who acts in self-defense is not liable for injuries to bystanders that occur while he is acting in self-defense, so long as those injuries were accidental, rather than deliberate. Answer choice C is incorrect because the doctrine of transferred intent is negated if the bartender used force necessary to defend himself from serious bodily injury or death. As stated above, one who acts in self-defense is not liable for unintentional injuries to bystanders that occur while he is reasonably acting in self-defense. Answer choice D is incorrect. Under the majority rule, a person is not required to retreat before using deadly force.

A small town is well known for its abundance of silver, and many residents of the town are employed as underground miners. Warning signs are posted in various locations outside of and within the mines, including in front of dangerous equipment, warning of the dangerous nature of the work. The mines use the most current methods of extracting the silver, including modern conveyor equipment, and they recently passed an inspection conducted by engineers and mining experts to ensure the silver extraction is completed as safely as possible. One day, a journalist sneaked into the mine to investigate a local news station's allegations of labor violations at the mines. After being at the mine for a few hours, the journalist realized all miners are adequately trained, and all equipment and practices seemed to follow the most accepted safety standards. Instead of walking back the length of the tunnels to return to ground level, he decided to ride on a moving conveyor belt used to return silver and equipment to the surface. When he did so, his shoelace got caught in the conveyor belt, which then caught his foot. His foot was so severely mangled that it had to be amputated. He sued the company that owns the mines for his injury. Will the mining company be strictly liable for this accident? (A) Yes, because mining is an abnormally dangerous activity. (B) Yes, because the mining company knows or should have known that non-employees might be present at the mines. (C) No, because this is not the type of possible harm that made the activity subject to strict liability. (D) No, because the mines recently passed safety inspections.

(C) No, because this is not the type of possible harm that made the activity subject to strict liability. A defendant engaged in an abnormally dangerous activity may be held strictly liable for personal injuries and property damage caused by the activity, regardless of the precautions taken to prevent the harm. An abnormally dangerous activity is one that (i) creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised; and (ii) is not commonly engaged in. Strict liability for an abnormally dangerous activity exists only if harm that actually occurs results from the risk that made the activity abnormally dangerous in the first place. As is the case with superseding causes in negligence, the defendant's liability can be cut off by unforeseeable intervening causes. Here, the harm expected by mining might include damage resulting from the use of explosives, equipment used in a customary way, or even the caving in of mines. The unforeseeable use of the conveyor equipment as a means of human transport of an unauthorized and unforeseeable trespasser, along with the resulting injury, would likely absolve the company of liability. Answer choice A is incorrect because although strict liability is generally imposed when applied to dangerous activities, such liability is limited to the harm expected by the activity, and only to foreseeable plaintiffs. Here, an accident due to an uninvited guest running onto a conveyor belt meant to transport equipment and materials is unforeseeable. Answer choice B is incorrect because the journalist was an unforeseeable plaintiff and was using the conveyor equipment in an unforeseeable manner. It is not reasonable to assume the company could foresee every type of situation that might occur if someone trespasses into the mines and engages in a dangerous activity. Answer choice D is incorrect because even if the company had passed safety inspections, it would still be strictly liable if not for the unforeseeable nature of this accident, which also occurred to an unforeseeable plaintiff. The violation of safety regulations might demonstrate a violation of a certain standard, but passing safety inspections would not necessarily absolve a company of liability.

A defendant, intending to frighten the plaintiff, went to the plaintiff's place of work, a toy store. When the plaintiff was alone in the store, the defendant waved a knife at the plaintiff, saying, "I'm going to make sure you don't molest any more children!" It turns out that the defendant had mistaken the plaintiff for someone else, who the defendant believed to have molested his nephew. The plaintiff, however, assumed that the knife was just one of the toys from a shelf in the store and that the defendant was just making a tasteless joke, so he laughed it off and told the defendant to get lost. Only later did the plaintiff realize that the knife had been real and that he had actually been in serious danger. As a result of looking back on the distressing event, the plaintiff has suffered from severe anxiety, leading to illness, which has caused him to miss work. Which of the following tort doctrines offers the plaintiff the best chance to recover? (A) Intentional infliction of emotional distress. (B) Assault. (C) Battery. (D) Slander.

(A) Intentional infliction of emotional distress. A defendant is liable for intentional infliction of emotional distress(IIED) when the defendant, by extreme and outrageous conduct, intentionally or recklessly causes the plaintiff severe emotional distress. Conduct is considered extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society. Here, the defendant went to the plaintiff's place of work and threatened to harm him with a knife (extreme and outrageous conduct) based on a mistaken belief that he had molested the defendant's nephew. In doing so, the defendant knew (intent) or was indifferent to the obvious risk (recklessness) that his conduct would cause the plaintiff severe emotional distress. And because this conduct caused the plaintiff to experience severe anxiety and illness (severe emotional distress), IIED offers the plaintiff the best chance to recover.

A woman hired a personal trainer to help her lose weight. In addition to enforcing a rigorous workout regimen, the trainer gave the woman appetite suppressant pills that the trainer claimed to have formulated himself. The trainer told the woman that the pills contained a combination of natural herbs that would safely curb her food cravings. The trainer did not charge the woman for the pills. The woman took the pills for a week. Although she stopped having food cravings, she also started to feel dizzy and had a hard time breathing. The woman showed the pills to a pharmacist, who identified them as store-bought pills containing a drug that suppressed one's appetite but had potentially dangerous side effects such as dizziness, headaches, and respiratory difficulty. The woman immediately stopped taking the pills, and within a day she stopped feeling dizzy and having difficulty breathing. If the woman files suit against the trainer for intentional misrepresentation, will she succeed? (A) No, because she suffered no pecuniary loss. (B) No, because the pills suppressed her appetite. (C) Yes, because she relied on the trainer's statement that the pills were safe. (D) Yes, because she suffered dangerous side effects when she took the pills.

(A) No, because she suffered no pecuniary loss. Liability for intentional misrepresentation arises when (1) the defendant knowingly or recklessly misrepresents a material fact with the intent to induce the plaintiff's reliance and (2) the plaintiff reasonably relies on the misrepresentation; and (3) suffers pecuniary loss as a result. Here, the trainer knowingly misrepresented that he had formulated the pills and that they would safely curb the woman's food cravings, with the intent that she use the pills to lose weight. The woman reasonably relied on the trainer's statement when she took the pills for a week, which caused her to suffer dangerous side effects. However, the woman suffered no pecuniary loss (e.g., medical expenses) due to the misrepresentations, so she will not succeed in a suit for intentional misrepresentation against the trainer.

A man knew that his brother's most prized possession was his favorite hunting rifle. The man, who was very competitive with his brother, believed that he would achieve more hunting success with a rifle as nice as his brother's. One day when the brother was at work, the man went to the brother's house and borrowed the rifle. The man took it hunting, fired one shot, and shot an eight-point buck. He returned the rifle to the brother's house before the brother returned home from work. Later that night, the man told his brother that he had proved his theory about the rifle, and he explained what he had done. The brother was furious, and he sued the man for trespass to chattels. At trial, the brother testified that he was upset about the man's use of his rifle. He did not provide other evidence of damages. Is the brother likely to prevail on his claim? (A) No, because the brother cannot show that the man's interference caused him actual damages. (B) No, because the man borrowed the rifle and did not demonstrate the requisite intent. (C) Yes, because the brother need not prove actual damages. (D) Yes, because the man used the brother's chattel.

(A) No, because the brother cannot show that the man's interference caused him actual damages. Trespass to chattels occurs when the defendant intentionally interferes with the plaintiff's possession of a chattel through dispossession, use, or intermeddling (i.e., causing physical contact). Nominal harm is inferred when the interference is through dispossession. But when the interference is through use or intermeddling, the plaintiff must prove actual damages through: (1) actual harm to the chattel, (2) substantial loss of use of the chattel, or (3) bodily harm to the plaintiff. Here, the man intentionally interfered with his brother's possession of the hunting rifle (chattel) by using it to hunt without his brother's permission. However, the man neither damaged the rifle (no actual harm to chattel) nor caused the brother to suffer bodily harm. And the brother did not substantially lose use of the rifle since the man used it while the brother was at work. Therefore, he cannot show that the man's interference caused him actual damages, and the brother is not likely to prevail on his trespass-to-chattels claim.

To facilitate the plowing of major streets, a city ordinance prohibited parking on major streets, defined in the ordinance, weekdays between 4:00 a.m. and 9:00 a.m. on days when it snowed more than one inch. The defendant left his car parked on a major street near his house while he went on an overnight business trip during the middle of the week. Contrary to the weather forecast, it snowed five inches on the night the defendant was gone. The next morning, the plaintiff walked to work along the same busy major street. She decided to walk in the street, as it had been plowed but the sidewalks were still covered with snow in spots where residents had neglected to shovel. When the plaintiff walked around the defendant's car at around 8:00 a.m., she was hit by a city bus and injured. The plaintiff has sued the defendant for negligence for her injuries. The jurisdiction recognizes pure comparative negligence. Is the plaintiff likely to prevail? (A) No, because the defendant's act did not proximately cause the plaintiff's injuries. (B) No, because the plaintiff's negligence contributed to her injuries. (C) Yes, because the defendant's violation of the ordinance amounts to negligence per se. (D) Yes, because the jurisdiction recognizes pure comparative negligence.

(A) No, because the defendant's act did not proximately cause the plaintiff's injuries. To prove causation in a negligence action, the plaintiff must show that the defendant's actions were the actual and proximate cause of the plaintiff's injuries. Proximate cause occurs when the plaintiff's harm was a reasonably foreseeable consequence of the defendant's conduct. Here, the plaintiff would not have been hit by a city bus and injured but for the defendant leaving his car parked on a major street after it had snowed five inches (actual causation). However, the pedestrian's harm was not reasonably foreseeable since there was no snow in the weather forecast and parking on a major street does not generally increase the risk that a pedestrian would be hit by a vehicle (no proximate cause). Therefore, the plaintiff is unlikely to prevail.

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? (A) No, because the gas emissions would not be considered offensive to an average person in the community. (B) No, because the man moved to the area after the plant was already in operation. (C) Yes, because the man suffered harm different in kind from that of the public at large. (D) Yes, because the gas emissions substantially interfered with the man's use and enjoyment of his home.

(A) No, because the gas emissions would not be considered offensive to an average person in the community. A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual's use and 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. Here, 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.

A manufacturer of hot water heaters sold a unit to a commercial gym for use in their showers. The hot water heater was designed and built with a safety feature that prevented the water from reaching any temperature that would cause second- or third-degree burns to healthy adult skin. The manufacturer delivered and installed the water heater for the gym. After the gym received many complaints from patrons that the showers were always too cold, the gym discovered that the water from the water heater was cooling significantly in the pipes that connected the water heater to the showers. In response, the gym hired a plumber to bypass the safety feature, allowing for a much higher temperature. The showers worked perfectly for many months. However, that winter, the gym had new insulation installed around its plumbing to prevent the pipes from freezing and rupturing. As a result, the water from the hot water heater no longer cooled off in the pipes, and a patron suffered second-degree burns. If the patron sues the manufacturer for strict products liability, is she likely to recover damages? (A) No, because the gym intentionally bypassed the safety feature. (B) No, because the hot water heater was not unreasonably dangerous until the new insulation was installed. (C) Yes, because the manufacturer failed to warn the patron of the risks posed by the hot water heater. (D) Yes, because the patron, as a foreseeable user of the water from this hot water heater, was an appropriate plaintiff.

(A) No, because the gym intentionally bypassed the safety feature. If the product substantially changes between the time it is distributed by the manufacturer and the time it causes an injury, then this change may constitute a superseding cause that cuts off the liability of the original manufacturer. Here, the gym substantially changed the condition of the hot water heater by bypassing the safety feature. This will cut off the manufacturer's liability to the shower's foreseeable users. Therefore, the patron will not be able to recover from the manufacturer. Answer choice B is incorrect. The installation of the new insulation would not legally affect whether or not the water heater itself had a defect that made it unreasonably dangerous. Instead, the hot water heater became unreasonably dangerous when the gym substantially changed its condition, and that danger manifested itself when the insulation was added. Answer choice C is incorrect because there is no evidence that a defect existed in the hot water heater until the gym altered its condition. Therefore, the manufacturer would have no duty to warn anyone of a dangerous condition. Answer choice D is incorrect. Although the patron would have been a proper plaintiff if she could have established a claim against the manufacturer under a theory of strict products liability, the gym's conduct was a supervening cause of the hot water heater's dangerous condition and the patron's injuries. Therefore, she cannot maintain a claim against the manufacturer.

A man managed a small hotel. His ex-wife stopped at the hotel one day, demanding that he give her overdue child support. The hotel manager asked his ex-wife to leave because he did not wish to discuss their financial problems while he was at work. On her way out, she let herself into the manager's office with a key she had retained, unbeknownst to the manager, to use his private bathroom. The sink in the bathroom had stopped up and flooded the bathroom floor. Because she was upset and rushed, the ex-wife did not notice that the floor was wet, and she slipped and sprained her ankle. The ex-wife sued the hotel for negligence. The evidence at trial showed that neither the manager nor the other employees of the hotel knew that the bathroom had flooded. Is the ex-wife likely to prevail on her negligence claim in a jurisdiction that follows traditional rules of landowner liability? (A) No, because the hotel did not owe the ex-wife, an undiscovered trespasser, an affirmative duty of care. (B) No, because the hotel's only duty was to warn or protect the ex-wife from concealed, dangerous artificial conditions that involved risk of death or serious bodily harm. (C) Yes, because an innkeeper is held to the highest standard of care consistent with the practical operation of the business. (D) Yes, because the hotel owed a duty to conduct reasonable inspections of the property and make it safe for the protection of the ex-wife.

(A) No, because the hotel did not owe the ex-wife, an undiscovered trespasser, an affirmative duty of care. A land possessor owes a duty of reasonable care to foreseeable plaintiffs who enter the land. But a land possessor owes no duty to trespassers—i.e., persons who intentionally enter another's land without permission—unless the land possessor discovers or has reason to anticipate their presence. Although a land possessor generally owes no duty to undiscovered or unanticipated trespassers, the land possessor must not act in an intentional, willful, or wanton manner that causes physical harm—e.g., by setting a trap that causes death or serious bodily injury. Here, the hotel manager's ex-wife became an undiscovered trespasser when she intentionally sneaked into the manager's office—an area that was locked and off-limits to the public. Additionally, the manager had no reason to anticipate that the ex-wife might do so. As a result, the hotel owed no affirmative duty of reasonable care to the ex-wife, and she is unlikely to prevail on her negligence claim.

At a presentation for undergraduate students, a guest lecturer explained that even a small quantity of potassium metal can react explosively when exposed to water, igniting with purple flames and ricocheting wildly across the surface of the water. He showed the students a small demonstration of this reaction with a tiny fragment of potassium in a large beaker and then explained, "While this reaction is fascinating to observe, none of you should attempt to recreate this effect outside of a controlled laboratory setting, as this reaction can be dangerous and difficult to control." Inspired by the presentation, a student broke into a lab on campus, stole a large quantity of potassium metal, and put it in a lake on campus to simulate a fireworks display. The ensuing explosive reaction spread across the entire lake, causing massive property damage and injuring a professor who was feeding ducks beside the lake. The professor can establish that but for the lecturer's demonstration, the student would never have thought to put the potassium in the lake. The applicable jurisdiction has adopted a pure several-liability theory of recovery. Is the professor likely to prevail in a negligence action against the lecturer? (A) No, because the lecturer had no duty to control the student's conduct. (B) No, because the student was not an employee of the lecturer. (C) Yes, because the lecturer's demonstration gave the student this idea, making the lecturer a but-for cause of the professor's injuries. (D) Yes, but only for the lecturer's proportionate share of the professor's damages.

(A) No, because the lecturer had no duty to control the student's conduct. To establish a valid claim for negligence, a plaintiff must prove that the defendant breached a duty owed to the plaintiff. A defendant generallyhas no duty to control another's conduct and therefore is generally not liable for a plaintiff's harm that is attributable to that conduct. But such a duty can arise if the defendant, by virtue of a special relationship with the other (e.g., employer and employee), has the actual ability and authority to control the other's conduct. Here, no special relationship exists between the guest lecturer and the student that imposed a duty on the lecturer to control the student's conduct. Therefore, the professor cannot prevail in a negligence action against the guest lecturer.

A plaintiff was on a crowded subway train during rush hour. The subway line was undergoing significant renovations, resulting in frequent, sudden stops by the subway trains. The plaintiff was standing in the middle of one of the subway cars and holding onto a pole for stability. The defendant, also standing in the subway car, was texting on his cell phone and not holding onto anything. The subway train came to a sudden stop causing the defendant to fall toward the plaintiff. The defendant lightly grabbed the plaintiff's arm to stop himself from falling completely over. The plaintiff did not like being touched by anyone as she had been in an abusive relationship in the past. Although she was not injured by the defendant's conduct, the plaintiff subsequently brought an action for battery against the defendant. Will the plaintiff prevail? (A) No, because the plaintiff consented to the defendant's contact. (B) No, because the plaintiff did not suffer any actual harm. (C) Yes, because the defendant failed to exercise reasonable care. (D) Yes, because the defendant intentionally grabbed her arm.

(A) No, because the plaintiff consented to the defendant's contact. A defendant commits battery when the defendant (i) intends to cause contact with the plaintiff's person, (ii) the defendant's affirmative conduct causes such contact, and (iii) that contact causes bodily harm or is offensive to the plaintiff. However, under presumed consent (also known as "implied consent"), a defendant is not liable for otherwise tortious intentional conduct—e.g., battery—if (i) under prevailing social norms, the defendant is justified in engaging in the conduct in the absence of the plaintiff's actual or apparent consent, and (ii) the defendant has no reason to believe that the plaintiff would not have actually consented to the conduct if the defendant had requested the plaintiff's consent. Here, the plaintiff chose to ride a crowded subway train. By making that decision, she implicitly consented to the ordinary contacts that can occur in that situation. The defendant lightly grabbing her arm to prevent himself from falling is within the type of contact that is typical on a crowded subway train. And the defendant was justified in doing so in the absence of the plaintiff's actual or apparent consent. In addition, although the plaintiff found the contact offensive, a contact is only offensive when a person of ordinary sensibilities (i.e., a reasonable person) would find the contact offensive (objective test), which is not the case here. Therefore, the plaintiff will not prevail. Answer choice B is incorrect because proof of actual harm is not required to recover for battery. Answer choice C is incorrect. While the defendant's failure to exercise reasonable care would be relevant to a negligence claim, it is not relevant to a claim for battery. Answer choice D is incorrect. The fact that the defendant intentionally grabbed the plaintiff's arm to prevent his fall is not enough to impose liability for battery. Here, the contact was neither harmful nor offensive. In addition, the plaintiff impliedly consented to the contact.

A student visited a local library to finish a last-minute essay. The student lost track of time while poring over her research in the basement of the library, so she did not hear the announcement that the library was closing. The library security guard was supposed to walk through the library before locking up to ensure that no library patrons were accidentally trapped in the library overnight. However, because the security guard was in a hurry, he left and locked the doors without checking the basement. When the student finally noticed the time and tried to leave the library, she found all the exits locked. She was discovered, asleep and unharmed, on the library floor the next morning. If the student brings a claim of tortious false imprisonment against the security guard, is she likely to succeed? (A) No, because the security guard did not know she was in the library when he locked the door. (B) No, because the student was not harmed by the imprisonment. (C) Yes, because the security guard recklessly locked the library without checking the basement for patrons. (D) Yes, because the student was physically confined to the library with no reasonable means of escape.

(A) No, because the security guard did not know she was in the library when he locked the door. A defendant is subject to liability to a plaintiff for false imprisonment if (i) the defendant intends to confine the plaintiff within a limited area, (ii) the defendant's conduct causes the plaintiff's confinement or the defendant fails to release the plaintiff from a confinement despite owing a duty to do so, and (iii) the plaintiff is conscious of the confinement. The defendant must act with the purpose of confining the plaintiff or act knowing that the plaintiff's confinement is substantially certain to result. If the confinement is due to the defendant's negligence rather than the defendant's intentional acts, then the defendant may be liable for negligence, but not false imprisonment. Here, because the security guard did not act with the requisite intent—he did not intend to confine the student, the student cannot bring a successful claim against him for false imprisonment. Answer choice B is incorrect. A plaintiff may recover for false imprisonment if the plaintiff is conscious of the confinement, regardless of whether the plaintiff is harmed by it. Here, the student knew she was trapped, which is sufficient for a claim of tortious false imprisonment. But the security guard did not intend to confine the student. Therefore, the student will not succeed. Answer choice C is incorrect. As discussed above, the defendant in an action for tortious false imprisonment must intend to cause the imprisonment. Recklessness does not satisfy the requisite intent for this tort. Answer choice D is incorrect because it also overlooks the required intent for tortious false imprisonment.

A woman was driving at 55 miles per hour through a residential area in her pickup truck even though the posted speed limit was 40 miles per hour. Suddenly, a man driving a sport utility vehicle (SUV) negligently pulled out from an alley and in front of the woman. The woman was able to slow down and veer away from the SUV as soon as she saw it, but the two vehicles collided. Neither driver suffered serious physical injuries, but the accident caused $10,000 in damage to thewoman's truck and $1,000 in damage to the man's SUV. The woman filed a negligence action against the man to recover for the damage to her truck. In his answer, the man filed a counterclaim to recover for the damage to his SUV. At trial, the jury determined that the woman was 25% at fault and the man 75% at fault for the accident. Traditional defenses based on the plaintiff's conduct apply in the jurisdiction. What is the total amount of damages that the woman can recover? (A) Nothing. (B) $7,250. (C) $7,500. (D) $9,000.

(A) Nothing. Under traditional common-law rules, the plaintiff's contributory negligence (i.e., failure to exercise reasonable care for his/her own safety) is a complete defense to negligence and bars the plaintiff's recovery of damages. Here, the man negligently pulled his SUV out of the alley and in front of the woman's truck, causing the two vehicles to collide. However, the jury found that the woman contributed to her harm, likely because she was negligently speeding in a residential area when the accident occurred. Due to her contributory negligence, the woman can recover nothingfrom the man. Had the jurisdiction adopted pure comparative fault (the default on the MBE), the woman's recovery would be reduced by her proportionate share of fault ($10,000 - $2,500 = $7,500) and the man's recovery would be reduced by his proportionate share of fault ($1,000 - $750 = $250). The woman's recovery then would be reduced (i.e., offset) by the man's recovery, for a net recovery of $7,250 by the woman. Had the jurisdiction adopted modified comparative fault, the woman's recovery would have been reduced by her proportionate share of fault ($10,000 - $2,500 = $7,500). But the man's recovery would have been barred because he was more than 50% at fault. As a result, the total amount that the woman could recover in a modified comparative-fault jurisdiction is $7,500.

The owner of pastureland permitted a herder to keep several of the herder's goats in the pasture. The goats wandered off the land, leapt over a fence properly maintained by a neighbor, and rambled into the neighbor's garden. Once in the garden, the goats ate the vegetables growing there. In a strict liability action brought by the neighbor against the herder and the landowner, who is liable? (A) Only the herder. (B) Only the landowner. (C) Both the herder and the landowner. (D) Neither the herder nor the landowner.

(A) Only the herder. The owner of an animal—other than a dog or cat—that intrudes upon another's land is strictly liable for any reasonably foreseeable harm or damage caused by that intrusion (e.g., consumption of vegetation).* Here, the herder is the owner of the goats, so strict liability will be imposed upon the herder for damage to the neighbor's property caused by the goats. However, strict liability does not extend to the owner of the land on which the trespassing animals were kept—unless the landowner also had the right to possess the animals. Here, there is no indication that the owner of the pastureland had the right to possess the goats. Therefore, the owner is not liable for the damage caused by the goats' intrusion on the neighbor's property. *The exception to this rule for dogs and cats does not apply if the owner knows or has reason to know that the dog or cat is intruding on another's property in a way that has a tendency to cause substantial harm.

A woman placed an online order to purchase a unique tea kettle from a kettle manufacturer as a gift for her brother. The kettle was square-shaped and had two spouts. The kettle's shipping box stated the following: "Caution! The enclosed kettle is a novelty item and should not be used to pour boiling water. Use with boiling water may result in steam burns." Before using the kettle, the brother read some online reviews of the kettle. Many reliable reviews stated that steam burns were very common when using the kettle, because steam would escape from the second spout if the kettle was not held properly. However, many reviews suggested that the kettle could be used safely if it was held in a particular way. The first time the brother used the kettle, he carefully followed the instructions from the reviews on how to hold the kettle when filled with boiling water. However, while he was pouring the boiling water from one spout, scorching steam escaped from the other spout and burned the brother's skin. The jurisdiction applies the common-law rules for contributory negligence and assumption of the risk. If the brother files a strict-products-liability suit against the manufacturer, what is the manufacturer's best defense? (A) The brother assumed the risk of being burned. (B) The brother did not use the kettle properly. (C) The brother received the kettle as a gift. (D) The brother was negligent in using the kettle with boiling water.

(A) The brother assumed the risk of being burned. Under the doctrine of strict products liability, a seller of a product is liable for personal injuries caused by that product, even in the absence of fault, if the product was defective, the defect existed at the time the product left the defendant's control, and the defect caused the plaintiff's injury when the product was used in an intended or reasonably foreseeable way. However, a voluntary and knowing assumption of the risk is a complete bar to recovery in contributory-negligence jurisdictions if a plaintiff is aware of the danger and knowingly exposes himself to it. Here, the brother knew that steam burns were possible if the novelty kettle was used with boiling water, but decided to use the kettle with boiling water anyway. Accordingly, assumption of the risk provides the manufacturer with the strongest defense to the brother's strict-products-liability suit. Answer choice B is incorrect. Mere misuse will not constitute a defense to a strict products liability claim if the misuse is reasonably foreseeable. Here, the fact that the brother misused the kettle would likely be a foreseeable misuse of the kettle, especially based on the number of online reviews indicating users had used the kettle with boiling water. Therefore, this argument would not protect the manufacturer from liability. Answer choice C is incorrect. Anyone foreseeably injured by a defective product may bring a strict-liability action. Appropriate plaintiffs include not only purchasers, but also other users of the product. There is no requirement that the brother must be a purchaser in order to recover. Answer choice D is incorrect. In a contributory-negligence jurisdiction, the plaintiff's negligence generally is not a defense to a strict-products-liability action when the plaintiff negligently failed to discover the defect or misused the product in a reasonably foreseeable way. Ordinary contributory negligence by the plaintiff will not bar recovery based on strict products liability. Therefore, the manufacturer will only have a chance to succeed in defending against this action if it argues that the brother assumed the risk of steam burns.

A chef had long operated a restaurant in a building leased on a yearly basis from the owner. In addition to seating within the building, the restaurant had outdoor seating on a patio in the back of the building, which was permitted under the terms of the lease. Across the alley from the restaurant, a private residence was sold. The buyer, who occupied the premises, had two properly licensed dogs that he had acquired and trained for personal and home protection after being the victim of a home-invasion robbery in the same neighborhood. The buyer frequently permitted the dogs to run free within his fenced yard where the dogs, in addition to barking incessantly, would urinate and defecate within the view of the restaurant's patrons. The restaurant experienced a decrease in business attributable to the presence of the dogs. Without contacting the buyer, the chef initiated a lawsuit that alleges that the dogs constitute a private nuisance. Which of the following is the buyer's best argument against liability? (A) The buyer had acquired the dogs for personal and home protection. (B) The chef did not own the property on which the restaurant operated. (C) The chef did not suffer physical harm from the presence of the dogs. (D) The chef had not tried to resolve the matter before filing the action.

(A) The buyer had acquired the dogs for personal and home protection. A private nuisance claim requires the plaintiff to prove that the defendant's interference with the use and enjoyment of the plaintiff's property was substantial and unreasonable. An interference is unreasonable if the severity of the plaintiff's harm outweighs the utility of the defendant's conduct. Here, the buyer's dogs barked incessantly and would urinate and defecate within view of the restaurant's patrons. A normal person in the community would likely find that offensive, annoying, or intolerable, so the chef can likely establish that the buyer's interference with the use of the restaurant was substantial. But the chef must also establish that the interference was unreasonable. The degree to which the chef's restaurant was harmed due to the dogs' presence is unspecified. But since the buyer was the victim of a home invasion in the same neighborhood, his utility in owning the dogs for personal and home protection is high. Therefore, this is the buyer's best argument against liability.

A driver was traveling in his car one evening when he heard his cell phone ring. The phone was located on the console of the car, so the driver reached out to grab it. While the driver was looking at his caller identification display, a pedestrian walked into a crosswalk directly in front of his car. When the driver saw the pedestrian, he immediately swerved the car and slammed it into a utility pole. The utility pole crashed to the ground and caused a power outage in the area. One block away from the accident site, a child was watching television when the power went out, and her house became pitch black. The child, who was afraid of the dark, ran out of the house and into the street, where she was struck by a bicyclist and seriously injured. The child's parents have sued the driver for negligence to recover damages for the physical injuries suffered by the child. In a jurisdiction that follows the majority view on the duty of care, which party will likely prevail? (A) The driver, because he owed no duty of care to the child. (B) The driver, because his actions were not the cause in fact of the child's injuries. (C) The parents, because the driver owed a duty of care to the child. (D) The parents, because the driver's conduct was the legal cause of the child's injuries.

(A) The driver, because he owed no duty of care to the child. To prevail on a negligence claim, a plaintiff must establish all four elements of negligence: duty, breach, causation, and damages. The majority rule is that a defendant owes a duty of care to a plaintiff only if the plaintiff is a member of the class of persons who might be foreseeably harmed as a result of the defendant's negligent conduct (sometimes called "foreseeable plaintiffs"). Here, the driver owed a duty of care to persons who might be foreseeably harmed by his negligent driving (e.g., the pedestrian or other drivers). But the driver owed no duty of care to the child because it was not foreseeable that she would be injured by an accident that occurred one block away. Therefore, the driver will likely prevail.

A man was playing a round of golf at a miniature golf course. On the 13th hole, the man noticed that the golf course was developing a new hole that included a giant mechanical shark's jaws over a water pond. The new hole was marked off with a fence and a sign that stated, "Danger! Site Under Construction: Authorized Personnel Only." Curious to see the new hole, the man ignored the sign and climbed over the fence. The course manager happened to see the man enter the prohibited area on his security camera. Knowing that the electrical work for the new hole was incomplete and that the concealed live electrical wires made the construction site unsafe, the manager immediately went over to the new hole. The manager called over the fence and told the man to "come back here and don't touch anything!" When the man ignored the manager's command and reached down under the shark's jaws to touch the water pond, he received severe electrical burns due to a stray wire that was touching the water. The man sued the golf course for negligence to recover damages for his electrical burns. The jurisdiction applies the traditional rules of landownerliability. Who will likely prevail? (A) The golf course, because the man was a trespasser on the new hole. (B) The golf course, because the manager commanded the man to leave the construction site. (C) The man, because the golf course owed a duty to warn the man about or protect him from the live electrical wires. (D) The man, because the live electrical wires were defective.

(A) The golf course, because the man was a trespasser on the new hole. A land possessor owes a duty to known or anticipated trespassers to (1) warn them about, or protect them from, hidden, artificial dangers that are known to the land possessor but unlikely to be discovered by trespassers and (2) use reasonable care in activities conducted on the land. Here, the man was an invitee who became a trespasser when he entered the new hole, which was limited to authorized personnel. Nevertheless, the golf course anticipated the man's presence—as evidenced by the fence and the "Authorized Personnel Only" sign—so it owed him a limited duty of reasonable care. That duty was breached when the course failed to warn the man about or protect him from the live electrical wires, which he was unlikely to discover since they were concealed. Therefore, the man will likely prevail.

A manufacturer sells shoes with the manufacturer's brand name to two competing retailers. When the larger of the two retailers, a national retailer, learns that the manufacturer is also selling the same brand of shoes to the retailer's competitor, the retailer stops placing orders for the shoes with the manufacturer. In response to a query by the manufacturer as to the reason for the larger retailer's action, the larger retailer states that it does not want to carry the same brand-name shoes as the smaller regional retailer. Under no contractual obligation to sell the brand-name shoes to the regional retailer, the manufacturer stops doing so. The national retailer resumes ordering the brand-name shoes from the manufacturer. The regional retailer, while suffering a loss of income due to its inability to sell the brand-name shoes, continued to be profitable since shoe sales represented only a small fraction of its overall sales. In an action for intentional interference with a contract brought by the regional retailer against the national retailer, which of the following would be the national retailer's WEAKEST argument? (A) The national retailer did not substantially impact the regional retailer's overall business. (B) The national retailer was merely exercising its freedom to refuse to deal with another. (C) The regional retailer was a competitor. (D) There was no contract between the manufacturer and the regional retailer.

(A) The national retailer did not substantially impact the regional retailer's overall business. To prevail on a claim for intentional interference with a contract, a plaintiff must prove that: (1) a valid contract existed between the plaintiff and a third party; (2) the defendant knew of that contractual relationship; (3) the defendant intentionally and improperly interfered with the contract's performance; and (4) that interference caused the plaintiff pecuniary (monetary) loss. The plaintiff's pecuniary loss need not be substantial for it to prevail on an intentional interference with contract claim. A showing of any pecuniary loss is sufficient. Therefore, a defendant's argument that it did not substantially impact the plaintiff's overall business—i.e., that its interference caused only a small pecuniary loss—will not absolve the defendant of liability on such claims.

A professional football player injured his knee during a football game. The player delayed seeking medical attention for his injury for several days, which aggravated that injury. When the player finally sought treatment from an orthopedic surgeon, she negligently performed the operation on the player's knee. After surgery, the player failed to follow the surgeon's post-operative instructions. All of the player's actions, coupled with the surgeon's negligence, contributed to a permanent injury to the player's knee. As a consequence of the injury, the player's ability to continue to play professional football has been adversely affected and the player has suffered emotional distress which has not manifested itself as a physical injury. The player sued the orthopedic surgeon for damages attributable to the surgeon's medical treatment of the player's knee injury. Assume that each factor affecting the player's injury can be quantified as a dollar amount with reasonable certainty. If the player sues the surgeon for negligence, which of the following factors would the fact finder NOT consider in determining the player's damages? (A) The player's delay in seeking medical attention for his injury for several days. (B) The player's emotional distress. (C) The player's failure to follow the surgeon's post-operative instructions. (D) The player's inability to continue playing professional football due to his injury.

(A) The player's delay in seeking medical attention for his injury for several days. In a negligence action, a plaintiff can recover compensatory damages based on: (1) the plaintiff's initial physical harm, (2) any subsequent harm traceable to that initial harm, and (3) steps taken to mitigate the initial harm. But the plaintiff's actions prior to the defendant's negligent act are not a factor in determining damages. Here, the player suffered a permanent knee injury (initial physical harm) when the surgeon negligently performed the operation. This left the player unable to continue playing football, which caused him emotional distress (as well as economic harm) traceable to the initial harm. As a result, the fact finder will consider the player's inability to play football and his emotional distress in determining his damages. It will also consider his failure to mitigate the operation's harm by not following the surgeon's post-operative instructions. But the fact finder will not consider the player's failure to seek medical attention for several days after his knee was injured during the football game. That is because the plaintiff's actions prior to the defendant's negligent actare not a factor in determining the amount of compensatory damages a plaintiff can recover.

A reporter has a distinctive voice and uses a particular phrase in concluding his reports that has become identified with the reporter. A maker of a breakfast treat learned that the reporter enjoyed the treat every morning for breakfast. Without consulting the reporter, the maker hired an actor to mimic the reporter's voice saying the reporter's signature phrase after stating, "I eat them for breakfast every morning" in a radio advertisement for the treat. The advertisement did not identify the reporter by name. A friend of the reporter who heard the advertisement called the reporter and commented that the friend had been unaware of the reporter's preference for the breakfast treat. The reporter filed an action against the maker for misappropriation of the reporter's right to publicity. Who will prevail? (A) The reporter, because the maker used the reporter's identity for commercial advantage without the reporter's consent. (B) The reporter, because an advertisement is not a matter of public concern. (C) The maker, because the advertisement did not identify the reporter by name. (D) The maker, because the advertisement was truthful.

(A) The reporter, because the maker used the reporter's identity for commercial advantage without the reporter's consent. The misappropriation of the right to publicity is an invasion of privacy tort, which requires that the plaintiff prove: (1) the defendant's unauthorized appropriation of the plaintiff's name, likeness, or identity, (2) without the plaintiff's consent, for the defendant's commercial advantage, and (3) resulting in injury to the plaintiff. Here, the maker used the reporter's distinctive voice and signature phrase without the reporter's consent, to the maker's advantage, and to the financial detriment of the reporter. Answer choice B is incorrect because, while whether a matter is one of public concern may be relevant in a defamation action, it is irrelevant to a misappropriation tort. Answer choice C is incorrect because mimicking the reporter's distinctive voice and catch phrase is sufficient to identify the reporter. Answer choice D is incorrect because truth is not a defense to this tort.

A manufacturer produced an espresso machine with a minimalistic design that made it look like a simple square box. The manufacturer contemplated including a warning that the unit was an espresso machine that became very hot with use, but it determined that a label ruined the basic design aesthetic. Therefore, the only warning included was the one on the original box in which the machine was sold. A woman bought the espresso machine, delighted that it did not distract from the décor of her modern kitchen. After reading the warning on the original box, the woman placed the machine in her kitchen. During a dinner party, a curious guest touched the machine and burned herself severely. She sued the manufacturer of the machine in a strict products liability action on a theory of failure to warn. Is the guest likely to be successful in her suit? (A) Yes, because the injury might have been avoided if there had been a warning on the machine. (B) Yes, because the guest was a licensee in the woman's home. (C) No, because she voluntarily touched the machine. (D) No, because the owner of the machine had read the warning.

(A) Yes, because the injury might have been avoided if there had been a warning on the machine. An action brought under a failure to warn theory is essentially the same as a design defect claim, but the defect in question is the manufacturer's failure to provide an adequate warning related to the risks of using the product. A defect exists if there were foreseeable risks of harm, not readily recognized by an ordinary user of the product, which could have been reduced or avoided with reasonable instructions or warnings. Had the espresso machine included a visible warning that the unit could get dangerously hot, an ordinary user would have been on notice to treat the unit with caution. The warning on the packaging was insufficient to notify the guest of the risk of touching a simple square box. Answer choice B is incorrect. Although under the traditional rules, the guest is a licensee in the woman's home, and the woman thus has a duty to correct or warn her of concealed dangers that are either known to the woman or that should be obvious to her, the guest has brought a strict products liability action against the manufacturer of the espresso machine, not a negligence action against the woman. Answer choice C is incorrect. Although a voluntary assumption of the risk can be a defense to a strict products liability action in some jurisdictions and serve to reduce damages in most jurisdictions, to be viable, the plaintiff's assumption of the risk must be knowing. Here, the guest who touched the espresso machine that did not display a warning label did so without knowledge of the risk of that the machine was dangerous to touch. Answer choice D is incorrect because the warning, to be effective, must be directed to anyone who could be foreseeably injured by the machine (e.g., an ordinary user), not just the owner of the machine.

A man drove to his friend's house for a party and parked his car on the street in front of the house. The street had a steep incline, but the man failed to apply his emergency brake before exiting his car. A couple moments after exiting the car, the man stopped 20 feet behind the car to tie his shoes. The friend, who had come outside to greet the man, noticed that the man's car started to roll backward toward the man. The friend immediately ran toward the man and pushed him out of the way of the car, which slammed into a telephone pole a couple hundred feet down the street. The friend broke his hand in diving to the ground to protect the man. If the friend brings a negligence action against the man for his personal injury, will he succeed? (A) Yes, because the man was negligent in not applying the emergency brake. (B) Yes, because the friend prevented the man from being struck by the car. (C) No, because the friend had a duty to exercise reasonable care while saving the man. (D) No, because it was not foreseeable that the friend would injure himself while saving the man.

(A) Yes, because the man was negligent in not applying the emergency brake. A person who comes to the aid of another is a foreseeable plaintiff. If the defendant negligently puts either the rescued party or the rescuer in danger, then he is liable for the rescuer's injuries. Here, the man was likely negligent in failing to apply the emergency brake after parking his car on a steep incline. The friend was injured as a result of trying to protect the man from the moving car, which was caused by the man's failure to apply the emergency brake. Thus, he will likely be liable for the friend's injuries.

A personal ad appeared in a pornographic magazine that was published and distributed nationwide. The ad stated that an individual was willing to perform various, specified deviant sexual acts. At the end of the ad, the individual was identified by her first and last name. As a consequence, the individual received lewd and offensive communications from strangers. The individual filed an action based on invasion of privacy due to the public disclosure of private facts and the publication of facts placing her in a false light, both recognized in the jurisdiction. In the complaint, the individual alleged that she had neither submitted the ad to the magazine publisher nor had any desire to perform such acts and that the publisher had published the ad with reckless disregard for its truthfulness. The publisher moved to dismiss the complaint. How should the court rule on this motion? (A) Grant the motion as to both counts. (B) Grant the motion as to the public disclosure of private facts and deny it as to the publication of facts placing her in a false light. (C) Grant the motion as to the publication of facts placing her in a false light and deny it as to the public disclosure of private facts. (D) Deny the motion as to both counts.

(B) Grant the motion as to the public disclosure of private facts and deny it as to the publication of facts placing her in a false light.

A business was founded by two partners. As the business grew, the two partners became increasingly busy. The business 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. Neither partner was injured. However, as a result of the crash, they missed the meeting and lost out on a business deal worth $250,000. The business sued the limousine service on a negligence theory for the $250,000 loss. The applicable state law recognizes a partnership as a separate legal entity that can sue and be sued. Is the business likely to recover in its negligence suit? (A) No, because the business may recover only from the driver, not his employer. (B) No, because the business suffered only economic losses, with no personal or property damage. (C) Yes, because the driver owed a duty of care to the business and the individual partners. (D) Yes, because the driver's negligence caused the business to suffer actual harm.

(B) No, because the business suffered only economic losses, with no personal or property damage. Under a negligence theory, the plaintiff can recover damages resulting from any personal injury or damage to property. However, a claim for purely economic loss is not allowed. Here, the business suffered only economic loss—the lost business deal. As a result, the business is unlikely to recover in its negligence suit.

During a family cookout, a homeowner's new deck collapsed from the weight of the guests and the deck furniture. Many people, including the homeowner, suffered physical injuries as a result. The homeowner has sued the contractor who built the deck for negligence. At trial, it was established that the contractor used clearly rotted wood and rusted brackets that he had salvaged from a junkyard to construct the deck, and that he did not properly tighten many of the fastening elements of the deck. During her presentation of evidence, the homeowner entered local building-safety codes into evidence. These safety codes recommend the use of new materials to build weight-bearing structures, such as decks, but impose no penalty for failure to do so. In order to recover damages, is the homeowner required to present expert testimony regarding the standard of care to which the contractor should be held? (A) No, because the homeowner has conclusively established the applicable standard of care by offering the safety codes into evidence. (B) No, because the jury can objectively determine what an ordinary contractor would have done without expert testimony. (C) No, because the jury can rely on the judge to advise whether there was a breach. (D) Yes, because expert testimony is required to establish a standard of care when the defendant is a professional in his field.

(B) No, because the jury can objectively determine what an ordinary contractor would have done without expert testimony. Establishing a profession's applicable standard of care—and a defendant's deviation from that standard—typically requires expert testimony. But when the defendant's negligence is so apparent that a lay person could identify it—as seen here with the contractor's use of rotten wood and rusted brackets—expert testimony is not required. Therefore, the homeowner is not required to present expert testimony regarding the contractor's standard of care.

A man and his friend decided to drive downstate to watch the homecoming football game at their alma mater. The man drove the friend to the game and refused any compensation from her. On the way home, the man failed to notice a stoplight and ran it, which caused a collision with another vehicle. The friend was severely injured as a result of the collision and sued the man for her injuries. The jurisdiction where the friend's suit was filed recently enacted a guest statute with regard to a driver's duty to persons riding in the driver's vehicle. Will the friend be likely to recover damages for her injuries? (A) No, because a driver is only liable for injuries to paying passengers. (B) No, because the man was merely negligent. (C) Yes, because the man owed his friend a duty to exercise ordinary care. (D) Yes, because the man was strictly liable for the friend's injuries.

(B) No, because the man was merely negligent. In most jurisdictions, automobile drivers owe a duty of ordinary care to guests (who ride free) and passengers (who pay money for the ride). But a minority of jurisdictions have enacted "guest statutes," under which an automobile driver's only duty to guests is to refrain from gross or wanton and willful misconduct. Here, the friend was a guest because she rode in the man's car for free. In most jurisdictions, the man would have owed the friend a duty to exercise ordinary care. However, since this jurisdiction enacted a guest statute, he only owed her a duty to refrain from gross or wanton and willful misconduct. And since the man was merely negligent when he failed to notice the stoplight and ran it, the friend is unlikely to recover damages for her injuries from the car accident.

The owner of an abandoned building knew that many persons experiencing homelessness stayed in the building for shelter. Because he sympathized with their plight, the owner decided not to have the homeless removed from the building and left it in its current state because he had no plans to remodel it. Despite knowing that the building had dilapidated, rotting, and uneven floors, the owner never posted signs or informed those who stayed in the building about its uneven floors. A man experiencing homelessness who tripped on an uneven floor and sprained his ankle brought suit against the owner to recover damages for his injury. In his defense, the owner argues that he had no obligation to take action to provide a safe environment to the man. The jurisdiction has abolished traditional rules of landowner liability. Will the owner's defense likely be successful? (A) No, because the owner did not prohibit trespassers from entering the building. (B) No, because the owner had a duty to protect the man from unsafe conditions. (C) Yes, because the floors did not involve a risk of serious harm or death. (D) Yes, because the owner did not have a duty to protect trespassers.

(B) No, because the owner had a duty to protect the man from unsafe conditions. To be liable for negligence, the defendant must owe a duty of care to the plaintiff. Traditionally, the duty owed to land entrants depended on their status on the land (e.g., trespasser). But under the modern approach, land possessorsowe all land entrants—except flagrant trespassers—a duty of reasonable care to protect them from foreseeable risk of harm. A flagrant trespasser is one who enters another's land without permission and whose entry is particularly egregious—e.g., entry that results in commission of a crime. Here, the man was a trespasser because he intentionally entered the building without the owner's permission. However, the man was not a flagrant trespasser because he entered the building to seek shelter—not commit a crime. And since the owner knew that the building's floors were dilapidated, the risk of injury to the man was foreseeable. As a result, the owner owed a duty to protect the man (and other trespassers) from the building's unsafe conditions, so the owner's defense will likely be unsuccessful.

The owner of an older home sold the property to a buyer. The owner and the buyer conducted a reasonable inspection of the home prior to the sale and did not identify any dangerous conditions. A few days after the sale, the kitchen caught on fire while the buyer made dinner. The buyer was able to escape before the entire house burned down, but she suffered burns and damage to her lungs from smoke inhalation. Afterward, it was determined that an electrical fire had been caused by an unreasonably dangerous amount of faulty wiring behind the kitchen walls. The owner apologized to the buyer upon finding out about the fire and truthfully told her that because the home had been unoccupied for many years, he had been unaware of the faulty wiring. Despite the owner's apology, the buyer has sued him for negligence to recover damages for her physical harm. Is the buyer likely to prevail in her action against the owner? (A) No, because the owner conducted an inspection of the home with the buyer. (B) No, because the owner was not aware of the faulty wiring. (C) Yes, because the buyer was unlikely to have discovered the faulty wiring upon reasonable inspection. (D) Yes, because the faulty wiring was an unreasonably dangerous condition.

(B) No, because the owner was not aware of the faulty wiring. A land seller must disclose unreasonably dangerous conditions if (1) the condition exists at the time of the sale, (2) the seller knows or has reason to know of the condition and its risk, (3) the buyer does not know or have reason to know of the condition or risk, and (4) the seller has reason to believe that the buyer would not discover or realize it. Here, the buyer suffered physical harm after unreasonably dangerous faulty wiring caused an electrical fire. The faulty wiring existed when the home was sold, but the owner was unaware of the faulty wiring and had no reason to know of it because the home had been uninhabited for many years. Therefore, the owner did not breach a duty to the buyer, and the buyer is unlikely to prevail.

A skier at a ski resort wanted to take one more trip down the mountain before the resort closed the slopes. The ski lift automatically turned off at the end of business hours, and the ski-lift operator, assuming that the skier had reached the top, left his post without confirming that nobody was left on the lift. In fact, the skier was stuck 30 feet above the ground until well after dark and became convinced that no one was coming to find him. Afraid he would soon suffer hypothermia, the skier lifted the bar on the ski-lift seat and jumped to the ground. He broke his arm and collarbone, but he was able to reach the bottom of the mountain without further injury. Asserting that the ski resort is vicariously liable for the ski-lift operator's negligence, the skier has sued the ski resort to recover damages for the injuries he sustained when he jumped from the ski lift. The ski resort has argued that it should not be liable because the skier assumed the risk of injury by leaping off of the ski lift. Assuming that the jurisdiction recognizes assumption of the risk as an affirmative defense, is the resort's defense likely to succeed? (A) No, because the resort, as the operator of a recreational ski slope for profit, must have a written disclaimer of liability to establish assumption of the risk. (B) No, because the ski-lift operator left the skier without a reasonable alternative to escape the lift. (C) Yes, because a reasonable person would have recognized the risk of falling that is inherent in riding a ski lift. (D) Yes, because the skier's assumption of a risk of injury was implied by his participation in a sport such as skiing.

(B) No, because the ski-lift operator left the skier without a reasonable alternative to escape the lift. Assumption of the risk—i.e., the plaintiff's voluntary acceptance of a known risk of harm—is an affirmative defense to negligence that can reduce or bar the plaintiff's recovery. But acceptance of a risk is not voluntary if the defendant's tortious conduct left the plaintiff with no reasonable alternative but to proceed despite that risk. Here, the ski-lift operator negligently left the skier stuck on the lift 30 feet above the ground. And although the skier likely knew the risk of jumping to the ground, he did not voluntarily accept that risk since jumping was the only reasonable way of getting off the ski lift before hypothermia set in. Therefore, because the operator left the skier without a reasonable alternative to escape, the resort's assumption of the risk defense is not likely to succeed.

A pool cleaner at a country club used chlorine purchased from a company to kill the harmful bacteria that grew in his customers' pools. The company sold its chlorine in plastic containers with plastic screw-tops. The containers had a warning that stated, "Caution: Chlorine," but the warningdid not specifically state that chlorine fumes were harmful if inhaled. The label also warned that the containers may leak if not stored upright. Despite the warning, the pool cleaner haphazardly stacked the containers on their sides and stored them in a small shed. A maintenance worker assigned to organize the shed sustained injuries after inhaling excess fumes that had built up in the shed from the leaking containers. The maintenance worker filed suit against the company under a theory of strict products liability. At trial, the company established that a completely leak-free container for the chlorine was too expensive to manufacture and that an ordinary user of its product would be aware of the dangers of chlorine fumes, without an additional warning. The jurisdiction applies the risk-utility test to determine whether a design defect exists. Is the maintenance worker likely to succeed on his claim? (A) No, because the maintenance worker was not the appropriate plaintiff to bring this action. (B) No, because there was no economically feasible alternative design for the containers. (C) Yes, because the pool cleaner's negligence contributed to the maintenance worker's injury. (D) Yes, because the warning label did not warn of the dangers of chlorine fumes.

(B) No, because there was no economically feasible alternative design for the containers. To succeed on a claim for strict products liability, the plaintiff must prove that a commercial supplier (e.g., manufacturer, wholesaler, retailer) produced or sold a defective product that caused the plaintiff harm. Under the risk-utility test, a product is defective by design when: (1) the design creates a foreseeable risk of physical harm and (2) that risk could have been mitigated by a reasonable alternative design—e.g., a safer design available at a reasonable cost. Here, the company's plastic containers posed a foreseeable risk of leaking chlorine, which is harmful when its fumes are inhaled. However, that risk of harm could not be mitigated by an economically feasible reasonable alternative design because it was established at trial that a completely leak-free container for the chlorine was too expensive to manufacture. As a result, the plastic containers were not defective, so the maintenance worker is not likely to succeed on his strict products liability claim.

A retail company hires an accountant to conduct an independent audit of its books and records. The accountant is specifically informed that the company intends to use the opinion to obtain goods from a supplier. Due to inadvertent miscalculations, the accountant erroneously provides the company with a favorable, unqualified opinion. The company gives the accountant's opinion to the supplier. Impressed by the opinion, the supplier decides to purchase the company instead of merely supplying it with goods. Subsequently, after learning of the true condition of the company, the supplier sells the company at a loss. The supplier brings an action against the accountant for negligent misrepresentation. Who will prevail? (A) The accountant, because his false opinion was based on inadvertent mistakes. (B) The accountant, because the accountant's liability does not extend to the supplier's use of the accountant's opinion. (C) The supplier, because the accountant was aware that the supplier was the intended user of the opinion. (D) The supplier, because the supplier relied on the accountant's opinion.

(B) The accountant, because the accountant's liability does not extend to the supplier's use of the accountant's opinion. Negligent misrepresentation is based upon a breach of the duty to supply correct information and often arises in the context of accountants and other suppliers of commercial information (e.g., attorneys). This tort requires proof of the following elements: (1) the defendant negligently provided false information during the course of his/her business or profession; (2) the plaintiff justifiably relied upon the false information and suffered pecuniary (i.e., financial) loss as a result; and (3) the plaintiff was in a contractual relationship with the defendant or was a third party known by the defendant as one for whose benefit the information was supplied. However, a defendant who negligently provides information for a particular purpose is not liable for the plaintiff's financial loss if the plaintiff used the information for a different purpose. Here, the accountant negligently provided false information during the course of his business that was relied upon by the supplier. The accountant knew that the information was intended to benefit the supplier. However, his opinion was prepared to help the supplier determine whether to sell goods to the retail company—not whether to purchase the company. Therefore, the accountant is not liable for the supplier's resulting financial loss and will prevail in this action for negligent misrepresentation.

An on-duty firefighter responded to a 911 call from a tenant about a fire in his apartment. The fire was caused by the tenant when he fell asleep while smoking a cigarette in his bed. The firefighter who responded to the tenant's call injured her ankle when she slipped and fell on a defective walkwayoutside the apartment building. The maintenance of the walkway was the responsibility of the apartment building owner, who knew the walkway needed to be repaired. Despite her ankle injury, the firefighter entered the tenant's apartment to extinguish the fire, where she was further injured when a section of the apartment wall that was burned by the fire fell on her. If the firefighter files an action for negligence against the tenant and the owner, which of the following best describes the likely outcome? (A) The firefighter can recover from the owner or the tenant. (B) The firefighter can recover from the owner, but not the tenant. (C) The firefighter can recover from the tenant, but not the owner. (D) The firefighter cannot recover from the owner or the tenant.

(B) The firefighter can recover from the owner, but not the tenant. Under the rescue doctrine, persons who negligently endanger themselves or others are liable for injuries sustained by rescuers. But the rescue doctrine is limited by the firefighter's rule, which applies to all professional rescuers (e.g., firefighters, police officers). This rule bars professional rescuers from recovering for harm that resulted from the special dangers of their jobs—e.g., a firefighter extinguishing a fire. Here, the firefighter was injured after she entered the tenant's apartment to extinguish the fire and a section of the apartment wall that was burned by the fire fell on her. However, the firefighter's rule bars recovery because the firefighter's injury resulted from a special danger of her job. Therefore, the firefighter cannot recover from the tenant on her negligence claim. However, the firefighter's rule does not bar recovery for harm that resulted from a land possessor's failure to warn professional rescuers about concealed dangers known to the land possessor. That is because professional rescuers are considered licensees. As a result, a land possessor who breaches this duty and causes the professional rescuer physical harm is liable for negligence. Here, the owner owed the firefighter a duty to warn her about concealed dangers that were known to the owner, such as the defective walkway. The owner breached this duty by failing to warn the firefighter about the walkway—e.g., by posting a warning sign. This breach caused the firefighter to slip and fall on the walkway and suffer physical harm. Therefore, the firefighter can recover from the owner.

A manufacturer of hot water heaters contacted a supplier of a new type of plastic resin about using the resin to line the water heaters. The supplier gave the manufacturer technical advice about how to mold the resin lining for the hot water tank. The supplier told the manufacturer that, in order to withstand the temperatures specified by the manufacturer, the resin would need to be at least one-inch thick. The manufacturer ordered the resin from the supplier but made the liner for the hot water tanks only one-half-inch thick using the supplier's resin. A plumber purchased a hot water heater made by the manufacturer from a local plumbing supply store and installed it in a homeowner's residence. The homeowner used the tank for a short time during which, due solely to the lining of the tank being too thin, the tank melted, allowing the chlorine and flouride in the water to come in contact with and corrode the metal tank. One day, as a consequence of the compromised tank, scalding water burst out of the tank, causing the homeowner to suffer severe burns as he tried to shut off the tank and substantial property damage when he was unable to do so. The homeowner initiated a strict products liability action against the manufacturer of the water tank, the resin supplier, and the local plumbing store for damages suffered as a consequence of the melted hot water tank. The manufacturer of the water tank admitted liability and settled with the homeowner. Of the remaining parties, which is likely to be held liable for the homeowner's injuries and property damage? (A) Both the store and the supplier. (B) The store only. (C) The supplier only. (D) Neither the store nor the supplier.

(B) The store only. Here, the hot water heater tank's thin lining caused the tank to corrode, which allowed scalding water to burst out of it. The homeowner suffered injuries and damage to his property when he attempted but failed to shut off the tank. Although the store neither created nor knew about this manufacturing defect, it existed at the time the store sold the water heater to the plumber for installation in the homeowner's residence. Therefore, the store is likely to be held liable for the homeowner's injuries and property damage. The commercial supplier of a component that is integrated into a defective product is subject to strict liability when (1) the component is defective or (2) the supplier substantially participated in the process of integrating the component into the product's design and the component's integration caused that product to be defective. Here, there is no indication that the plastic resin the manufacturer ordered from the supplier was defective. And though the supplier provided the manufacturer technical advice about how to mold the tank's resin lining, the tank was defective because the manufacturer failed to follow the supplier's advice—not because of the resin's integration into the tank. Therefore, the supplier likely is not strictly liable for the homeowner's injuries and property damage.

A child was playing mini-golf at a recreation center when she went into an artificial creek to retrieve a lost ball. A high fence with a childproof lock surrounded the creek, but the child's mother opened the lock to let her daughter into the creek area to quickly retrieve the ball. When the girl reached into the creek, she was electrically shocked by a live wire from a motorized windmill that had fallen in the creek. She suffered long-term disability because of the electric shock. The family of the child filed a claim against the recreation center. The recreation center filed a response claiming it was not liable for the accident because it posted warnings that the creek was dangerous and surrounded it with a high fence that could not be opened without the intervention of an adult. Under the traditional approach, is the recreation center likely to be successful in defending the suit? (A) Yes, because the child entered the prohibited area. (B) Yes, because the creek was surrounded by a locked fence with warnings. (C) No, because the creek was abnormally dangerous. (D) No, because the creek was an attractive nuisance.

(B) Yes, because the creek was surrounded by a locked fence with warnings. Although the creek was likely an attractive nuisance, the recreation center exercised reasonable care by surrounding the creek with a high, childproof-locked fence and warnings that the creek was dangerous. Therefore, the recreation center is likely to succeed in defending the suit.

A daughter purchased an airplane ticket for her elderly mother. The daughter also signed up with the airline's text message emergency alert system. Before the mother's airplane was scheduled to land, the daughter received a text message from the airline stating that the airplane had just made an emergency landing because one of the passengers required immediate medical assistance. The daughter called the airline to ask whether the passenger was her mother. The airline representative refused to disclose the name of the passenger, but disclosed that the passenger matched the daughter's description of her mother, was sitting in her mother's seat, and had just died of a heart attack. The daughter went into shock and fainted, hitting her head on the ground. The mother had actually traded seats with another woman who matched her physical description. The daughter sued the airline to recover damages under a theory of negligent infliction of emotional distress. At trial, the daughter established that she had been traumatized by the airline's misinformation, and suffered ongoing chronic headaches as a result of her fall. Is the daughter's claim likely to succeed? (A) Yes, because the daughter'

(B) Yes, because the daughter has a special relationship with the airline as a relative of its passenger. A plaintiff can recover for negligent infliction of emotional distress from a defendant whose tortious conduct placed the plaintiff in harm's way if the plaintiff demonstrates that: (i) he was within the "zone of danger" of the threatened physical impact—that he feared for his own safety because of the defendant's negligence; and (ii) the threat of physical impact caused emotional distress. However, the duty to avoid infliction of emotional distress also exists without any threat of physical impact in cases in which there is a special relationship between the plaintiff and the defendant, such as when a common carrier mistakenly reports the death of a relative. Here, the airline representative mistakenly told the daughter that her mother had passed away. Thus, even in the absence of any threat of physical impact, the daughter can still recover under a theory of NIED. Answer choice A is incorrect. Although intentional infliction of emotional distress requires extreme and outrageous conduct by the defendant, extreme and outrageous conduct is not required in a claim for negligent infliction of emotional distress. Regardless, the airline representative's conduct was likely not extreme and outrageous, especially since the physical descriptions of the mother and the passenger who died were the same. Answer choice C is incorrect because the airline is a common carrier with a special duty to the daughter, and the daughter may recover for the trauma of being mistakenly informed of her mother's death without being in the zone of danger. Answer choice D is incorrect because when a common carrier mistakenly reports the death of a relative, the plaintiff need not observe any injury to recover under NIED.

A mother left her three-year old child by himself while she was showering. During this time, the unsupervised child went into the kitchen and tried to get water out of a water cooler. The water cooler lever included a spring intended by the manufacturer to stop the water from running when not in use. However, because the spring in the lever was installed incorrectly, it failed to work properly when the child released the lever. As a result, the water cooler quickly flooded the kitchen floor with gallons of water. The amount of water caused the refrigerator to short-circuit, and when the child stepped in the puddle, he suffered a minor electric shock. The mother sued the water cooler manufacturer under a theory of strict products liability to recover damages for the child's injuries. At trial, it was established that the water cooler was delivered directly from the manufacturer to the mother's home and that the refrigerator was not defective. Is the mother likely to succeed in her action against the manufacturer? (A) Yes, because the manufacturer was negligent in its installation of the spring. (B) Yes, because the lever on the water cooler failed to work as intended by the manufacturer. (C) No, because the water cooler was not used in a reasonably foreseeable way by the unsupervised child. (D) No, because the mother's failure to supervise her child was a superseding and intervening cause of any injury.

(B) Yes, because the lever on the water cooler failed to work as intended by the manufacturer. To recover under a theory of strict products liability, the mother needs to prove that: (1) the water cooler lever was defective, (2) the defect existed when it left the manufacturer's control, and (3) the faulty lever caused the child's injury when the water cooler was used in an intended or reasonably foreseeable way. Here, the spring in the lever malfunctioned because the spring had been installed incorrectly, and the water cooler was in the manufacturer's control prior to being used by the child. In addition, the defect caused the child's injuries in a reasonably foreseeable way when the overflow of water due to the malfunction caused the refrigerator to short-circuit and electrocute the child. Therefore, answer choice B is correct. Answer choice A is incorrect because the mother is suing the manufacturer under a strict liability theory, so the negligence of the manufacturer is not relevant. Answer choice C is incorrect because the water cooler was used in a reasonably foreseeable way; the fact that the child was unsupervised does not mean that the use of the lever by the child was unreasonable. Answer choice D is incorrect. If the mother had sued the manufacturer under a negligence theory, then there may have been an argument for a superseding and intervening causation issue. However, because the mother sued the manufacturer under a strict liability theory, this argument is irrelevant.

A man liked to exercise late at night in the gym located in his condominium. As he entered the gym one night, he heard a woman screaming for help. The man rushed over to the woman, who was trapped under an 80-pound barbell. The man lifted the barbell off the woman, but injured his back in his rush to help the woman. The woman thanked the man, and told him that she knew she should not have been lifting the barbell by herself because it was too heavy for someone her size. The man has brought a negligence action against the woman to recover for his back injury. Will he prevail? (A) Yes, because the man's actions were reasonable given the woman's need for help. (B) Yes, because the woman failed to exercise reasonable care. (C) No, because the man had no affirmative duty to help the woman. (D) No, because the man's own negligence was the cause of his injury.

(B) Yes, because the woman failed to exercise reasonable care. A person who comes to the aid of another is a foreseeable plaintiff, and a person who negligently puts herself in danger is liable for her rescuer's injuries. Here, the woman negligently put herself in danger because she was lifting a barbell that was too heavy for her size by herself. Answer choice A is incorrect because a rescuer who takes significant risks when attempting a rescue may also be permitted to recover, despite the rescuer's negligence, although the rescuer's recovery may be reduced. Answer choice C is incorrect. Generally, there is no affirmative duty to act. However, this rule would not prevent the man from recovering damages from the woman because she negligently put herself in danger. Answer choice D is incorrect. To the extent that a rescuer's efforts are unreasonable, comparative responsibility should be available to reduce, rather than to bar, recovery by a rescuer. Here, the man's rush to help the woman may have contributed to his back injury, but this fact will not completely bar the man from recovering.

A musician's brother borrowed the musician's electric guitar. The brother told the musician that he was going to use it the next day to teach the children in his second-grade class about different musical instruments. Instead, the brother went to a rowdy bar that evening and played the electric guitar with his rock band all night long. A drunk bar patron got on stage during one of the songs, grabbed the guitar from the brother, and smashed it against the ground. The brother took the guitar to a repair shop the next day and was told that it would cost $750 to restore the guitar to its original condition. At the time of the incident, the guitar was worth $1,500. The musician asserts a claim against his brother for conversion. What is the musician entitled to recover? (A) Nothing. (B) $750. (C) $1,500. (D) $1,500 plus damages for loss of use.

(C) $1,500. Conversion is an intentional exertion of dominion or control over the plaintiff's chattel that so seriously interferes with the plaintiff's ownership rights that the defendant is liable for the fair market value of the chattel at the time of the conversion. A defendant who initially uses the plaintiff's chattel with permission commits conversion when the defendant: (1) intentionally uses the chattel in a manner that exceeds the scope of permission; and (2) seriously violates the plaintiff's right to control the chattel. Here, the brother had the musician's permission to borrow his guitar to teach second-grade students about musical instruments. But the brother intentionally exceeded the scope of permission when he took the guitar to a rowdy bar and played it with his rock band. Then, the musician's right to control the guitar was seriously violated when a bar patron smashed it against the ground. Therefore, the brother committed conversion, and the musician can recover the fair market value of the guitar at the time the conversion occurred—$1,500.

A plaintiff purchased a new car from a car dealer. A computer chip in the engine of the car had been defectively manufactured, such that the plaintiff lost control of the car, causing the plaintiff to suffer injuries. Several entities were involved in the process through which the defective chip ended up in the plaintiff's car. The defective computer chip was manufactured by a component company and then purchased by an engine builder. The engine builder then incorporated the chip into the engine and sold the engine to a car manufacturer. The car manufacturer then incorporated the engine into the car and sold the car to the car dealer. The plaintiff brought an action for strict products liability against the component company, the engine builder, the car manufacturer, and the car dealer. From whom can the plaintiff recover for his injuries? (A) The car dealer only, because the plaintiff was not in privity with the other parties. (B) Any of the parties who had negligently failed to inspect the product. (C) Any of the parties, regardless of whether the party was negligent. (D) The component company only, because the component company is the party that manufactured the defective chip.

(C) Any of the parties, regardless of whether the party was negligent. Any commercial seller in the distribution chain—e.g., manufacturer, distributor, retailer—is subject to strict products liability if (1) the commercial seller's product was defective when it left the commercial seller's control and (2) that defect caused the plaintiff harm. Strict liability is imposed even if the commercial seller did not create or know about that defect. Here, a manufacturing defect in the computer chip caused the plaintiff to lose control of his car and suffer injuries. That defect existed at the time the component company manufactured the chip, and the defect continued to exist when it left the engine builder's, the car manufacturer's, and the car dealer's control. As a result, all four defendants are strictly liable for the plaintiff's injuries—regardless of whether they were negligent.

A consumer bought a can of chicken soup from her neighborhood grocery store. The soup was manufactured by a large food company. Approximately two weeks later, the consumer's son ate the soup and soon became violently ill. At the hospital, the attending physician diagnosed the illness as botulism poisoning, a serious disease that can arise from defects in the manufacturing process of canned foods or be brought on after manufacturing through temperature fluctuations in storage of the canned foods. Tests later confirmed that the can of soup was tainted with botulinum bacteria. The consumer sued the large food company for negligence on behalf of her son. At trial, she produced no direct evidence of negligence on the part of the food company, but invoked the doctrine of res ipsa loquitur to prove liability. The applicable jurisdiction has adopted a traditional standard for res ipsa loquitur and a comparative-negligence standard. The food company filed a motion for a directed verdict. How should the trial judge rule on the motion? (A) Deny the motion, because canned goods do not contain bacteria in the absence of negligence. (B) Deny the motion, because the food company was along the chain of distribution. (C) Grant the motion, because there is no evidence that the food company was negligent. (D) Grant the motion, because the doctrine of res ipsa loquitur has been abolished in comparative-negligence jurisdictions.

(C) Grant the motion, because there is no evidence that the food company was negligent. Under the traditional standard for res ipsa loquitur, negligence is inferred if (1) the plaintiff's harm would not normally occur unless someone was negligent, (2) the defendant had exclusive control over the thing that caused the harm, and (3) the plaintiff did nothing to cause the harm. The modern trend among many courts is to ignore the exclusivity requirement when applying the traditional standard for res ipsa loquitur in negligence actions that involve products liability. Here, the son was poisoned with botulism after he ate a can of soup manufactured by the food company. Although soup is not normally tainted with botulism absent negligence, the company did not have exclusive control over the defective can. The grocery store and the consumer both possessed it after manufacturing, when improper storage could have caused botulism. Therefore, the company's negligence cannot be inferred. And since there is no evidence that the company was negligent, it should be granted a directed verdict.

The owner of a convenience store was in the back of his store when he heard a loud noise. When he walked to the front of the store to determine the cause of the commotion, he saw that a large pile of canned goods had just fallen. Around that time, a woman walked into the store wearing a large coat despite the warm weather outside. The woman was bedraggled and smelled of liquor. The owner correctly ascertained that the woman neither caused the canned goods to fall nor stole anything. However, he assumed that she entered the store intending to steal. The owner therefore ordered the woman to go to the back office, where he questioned her for two hours. While he left the door to both the office and the store unlocked, he continually threatened that if the woman did not comply with questioning or left the room, he would have her arrested the next time he saw her around his store. The woman was obviously confused and anxious but never left or asked to leave the room at any point. Would the owner's actions constitute false imprisonment? (A) Yes, because the questioning lasted for over two hours. (B) Yes, because the owner's actions were not reasonable. (C) No, because the woman was not confined or restrained. (D) No, because the woman was a suspected shoplifter.

(C) No, because the woman was not confined or restrained. A defendant is subject to liability to a plaintiff for false imprisonment if (i) the defendant intends to confine the plaintiff within a limited area, (ii) the defendant's conduct causes the plaintiff's confinement or the defendant fails to release the plaintiff from a confinement despite owing a duty to do so, and (iii) the plaintiff is conscious of the confinement. The defendant may confine the plaintiff by the use of physical barriers, physical force or restraint or the threat of physical force or restraint, duress other than by threat of physical force or restraint, or by the assertion of legal authority. The defendant's use of moral pressure or future threats does not constitute confinement or restraint by duress, and a plaintiff is not imprisoned if she willingly submits to confinement. Here, the door was unlocked for the woman to leave at any time, and the only threats exhibited were future threats. Therefore, the owner's actions do not constitute false imprisonment because the woman was not confined or restrained. Answer choice A is incorrect because even if the questioning lasted longer than was reasonable, no confinement actually occurred. Answer choice B is incorrect because the woman was not confined or restrained, and therefore it is not necessary to determine whether the owner's actions were reasonable, and thus whether he may be protected by the shopkeeper's privilege. Answer choice D is incorrect because there was no confinement, and thus the shopkeeper's privilege is not implicated. Moreover, the owner could not validly assert the privilege, which allows a shopkeeper to reasonably detain a suspected shoplifter, because the woman was not a suspected shoplifter.

A plaintiff was injured when a roller coaster she was riding at an amusement park ran off the rails and crashed. After conducting a thorough investigation of the accident, the plaintiff was unable to determine what had caused the accident, but she did learn that the amusement park had failed to register with the county tax commission as required by state law. Which of the following would be the strongest basis for the plaintiff's tort claim? (A) Negligence per se. (B) Public nuisance. (C) Res ipsa loquitur. (D) Strict products liability.

(C) Res ipsa loquitur. Land possessors (the amusement park) generally have a duty to keep their premises safe for invitees (the plaintiff here). A land possessor who breaches this duty and causes the plaintiff physical harm is liable for negligence. If there is no direct evidence of negligence, then the doctrine of res ipsa loquitur permits an inference of negligence when the plaintiff's harm was the type usually caused by negligence and evidence tends to eliminate other potential causes of that harm, meaning the instrumentality that caused the plaintiff's harm was under the defendant's exclusive control. Here, the plaintiff was injured when the roller coaster ran off the rails and crashed. The plaintiff's investigation was unable to discover any direct evidence of the park's negligence, but a roller coaster would not typically derail absent the operator's negligence. Additionally, the roller coaster was under the park's exclusive control, thereby eliminating other potential causes for its derailment. Therefore, the strongest basis for the plaintiff's claim is that the park's negligence can be inferred under res ipsa loquitur.

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.

(C) The homeowner, because the student was trespassing. Answer choice C is correct because an owner of a wild animal is generally not strictly liable to a trespasser who is injured by the wild animal, except for injuries caused by a vicious watchdog. Here, the student was a 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 a trespasser. Answer choice B is incorrect because the action brought by the student was based on strict liability, not negligence. Consequently, the homeowner's failure to act with reasonable care is irrelevant. Answer choice D is incorrect because, even though the homeowner's possession of the rattlesnake is legal, the rattlesnake is a wild animal. As such, the possessor of a wild animal may be strictly liable for harm caused by the animal, unless the individual harmed is a trespasser.

A weightlifter traveled on an airplane in order to participate in a weightlifting competition in a neighboring state. The airplane had less space than usual between each row in order to fit more seats into the plane. During some foreseeable turbulence, the weightlifter's seat collapsed backwards and crushed the legs of a woman sitting directly behind him. The woman sued the manufacturer of the airplane seats based on strict products liability for failure to warn, seeking damages and recovery of her medical costs. At trial, it was established that the seats were manufactured properly and had been properly installed. It was also established that there was an undisclosed weight limit of 250 pounds per seat and, at the time of the accident, the weightlifter weighed 325 pounds. Who should succeed in the woman's strict products liability action? (A) The manufacturer, because the benefit of having more seats available to passengers outweighs the risk of a seat collapsing. (B) The manufacturer, because the injuries sustained by the woman were not foreseeable as she was not in the seat that collapsed. (C) The woman, because a weight-limit warning would have avoided the foreseeable risk of the seat collapsing. (D) The woman, because no benefit outweighed the foreseeable risk of the seat collapsing.

(C) The woman, because a weight-limit warning would have avoided the foreseeable risk of the seat collapsing. To avoid strict products liability based on a failure to warn, a commercial seller must provide reasonable warnings or instructions regarding any nonobvious, foreseeable risk of harm posed by its product if doing so will reduce that risk. Failure to provide adequate warnings or instructions renders the product defective. Here, the woman was injured when the weightlifter's airplane seat—which was designed to hold only 250 pounds—collapsed. That risk of harm was foreseeable since many people weigh over 250 pounds and a seat collapse could easily cause injury to people nearby. Additionally, the risk was not obvious to an ordinary user. And since the risk of injuries like the woman's could have been avoided by providing a warning, the seat was defective. Therefore, the woman should succeed in her strict products liability action against the manufacturer.

A celebrity and her neighbor were constantly arguing over the celebrity's dog, which incessantly barked during the day when the celebrity was not home. One afternoon, the celebrity was followed by paparazzi while she walked her dog. When she returned from her walk, the neighbor came out of his house and screamed at her, "You abuse your dog; that's the only reason she would bark all day like that!" A paparazzo broadcast a video of the incident on his celebrity gossip website with the following headline: "Celebrity accused by neighbor of animal abuse." The broadcast caused the celebrity severe emotional distress. If the celebrity sues the paparazzo for intentional infliction of emotional distress, will the celebrity likely prevail? (A) No, because the celebrity did not suffer any physical harm from the video broadcast. (B) No, because the paparazzo did not act with actual malice. (C) Yes, because the celebrity suffered severe emotional distress after the video was broadcast. (D) Yes, because the neighbor's conduct was extreme and outrageous.

(C) Yes, because the celebrity suffered severe emotional distress after the video was broadcast. A public figure may recover for IIED based on the defendant's publication if the defendant (1) acted in an extreme and outrageous manner, (2) intentionally or recklessly caused the public figure severe emotional distress, and (3) published a false statement of fact with actual malice. Here, the celebrity (public figure) can show that the paparazzo's broadcast caused her severe emotional distress. But the broadcast merely published the neighbor's opinion (no false statement of fact) with a headline that clarified the neighbor's claim was merely an accusation (no actual malice). Therefore, the celebrity will not prevail on her IIED claim.

A husband and wife decided to take a luxury cruise. On the last night of the cruise, the husband passed away in his sleep. The next morning, a temporary coffin was brought onto the ship to transport the husband's body to a mortuary. The cruise line used a crane to transport the coffin from the upper deck of the ship to the dock. The crewmembers negligently attached the crane straps to the coffin, and as the coffin was transported over the water, the straps loosened, and the husband's body fell out of the coffin and into the harbor. The wife, who watched her husband's body fall into the water, was horrified and traumatized by the incident but suffered no physical symptoms because of her trauma. The wife filed suit against the cruise line for damages resulting from her emotional distress. Will the wife likely prevail? (A) No, because the crewmembers' actions were not extreme and outrageous. (B) No, because the wife did not suffer any physical symptoms due to her emotional distress. (C) Yes, because the crewmembers did not properly secure the coffin. (D) Yes, because the wife watched her husband's body fall into the harbor.

(C) Yes, because the crewmembers did not properly secure the coffin. A plaintiff can recover for negligent infliction of emotional distress (NIED) under three theories: (1) zone of danger, (2) bystander, or (3) special situations. Liability under the special-situations theory arises when the plaintiff suffers serious emotional distress because the defendant negligently: (1) delivered an erroneous announcement of death or illness; (2) mishandled the corpse or bodily remains of a loved one; or (3) contaminated food with a repulsive foreign object. An NIED plaintiff who alleges that the defendant mishandled the corpse or bodily remains of a loved one need not have witnessed the mishandling to prevail. Additionally, unlike with NIED claims under the zone-of-danger and bystander theories, a plaintiff alleging the mishandling of a corpse or bodily remains can recover in the absence of physical manifestations of emotional distress. Here, the cruise line negligently attached the crane straps to the husband's coffin before transporting it over the water. This allowed the straps to loosen, and the husband's body fell out of the coffin and into the harbor. The crewmembers' negligent mishandling of the husband's corpse horrified and traumatized the wife (serious emotional distress). And though the wife suffered no physical manifestations of her trauma, this will not bar recovery on her NIED claim. Therefore, the wife will likely prevail against the cruise line.

A rancher kept his cows in a pasture beside a busy road. One evening, a cow knocked down a short portion of the fence separating the pasture from the road and wandered down the street. A motorist driving down the road turned the corner and saw the cow. Even though the motorist was driving at a reasonable speed, he knew he could not stop before he would hit the cow. Knowing that hitting an animal that size could cause a fatal car accident, the motorist veered off of the road and into a beet farm, damaging a long stretch of the beet farmer's fence in the process. If the beet farmer sues the motorist for trespass to land to recover damages, is he likely to succeed? (A) No, because the motorist can claim the privilege of private necessity. (B) No, because the motorist can claim the privilege of public necessity. (C) Yes, because the motorist caused actual damage to the farmer's fence. (D) Yes, because the motorist voluntarily entered the farmer's property.

(C) Yes, because the motorist caused actual damage to the farmer's fence. When a trespass arises from private necessity, the property owner cannot recover nominal or punitive damages from the trespasser. But the trespasser remains liable for actual damages caused by the trespass unless the entry was for the property owner's benefit (e.g., to protect the owner's property). Here, the motorist intentionally veered off the road and into the beet farm without permission (trespass). That trespass was privileged because the motorist was trying to protect himself from a collision with a cow (private necessity). But since the motorist's entry was for his own benefit—not the farmer's—the motorist is liable for damage his entry caused to the farmer's fence (actual damages). Therefore, the beet farmer is likely to succeed.

A police officer was on foot patrol in a high-crime area. The police officer was walking on the sidewalk near a number of mobile food carts. While speaking with a pedestrian, the police officer was struck from behind by one of the food carts, resulting in a serious injury to his leg. The owner of the food cart had negligently failed to secure the food cart in place. The police officer brought an action for negligence against the owner. Can the police officer recover for his injury from the food-cart owner? (A) No, because the injury did not arise from a risk inherent to police patrol. (B) No, because the police officer was on duty when he sustained the injury. (C) Yes, because the owner was negligent in failing to secure his food cart. (D) Yes, because the police officer's injury was serious.

(C) Yes, because the owner was negligent in failing to secure his food cart. The firefighter's rule bars emergency professionals from recovering for harm that resulted from a risk inherent to their jobs—e.g., a firefighter injured while extinguishing a fire caused by another's negligence cannot recover. However, an emergency professional may recoverfor harm caused by another's negligence if that harm did not result from a risk inherent to the professional's job. This is true even if the harm occurred while the professional was on duty. Here, the police officer was on duty when he was stuck by an unsecured food truck, but this risk was not inherent to his job patrolling the street. Therefore, the firefighter's rule does not apply. And since the cart owner was negligent in failing to secure the cart, the officer may recover for his injury.

A patient who was experiencing severe back pain saw his family physician, who prescribed a drug to alleviate the pain. The physician told the patient to call her immediately if he had any problems with the drug. The patient took the drug and experienced an allergic reaction. Despite this reaction, the patient waited two weeks to contact the physician, during which time he continued to take the drug. When the patient called the physician, she ordered him to stop taking the drug immediately. The patient sustained permanent liver damage from taking the drug. The patient sued the physician for negligence. At trial, the patient established that the physician was negligent in prescribing the medication because she did not exhibit the same skill, knowledge, and care as an ordinary practitioner. The physician established that the patient's injuries were significantly exacerbated by the length of time that he took the drug. The jurisdiction recognizes pure comparative negligence. Can the patient prevail in his claim against the physician? (A) No, because the patient failed to mitigate his damages by continuing to take the drug after suffering an allergic reaction. (B) No, because the patient was required to show that the physician did not exhibit the same skill, knowledge, and care as an ordinary physician with similar experience. (C) Yes, because the patient's failure to mitigate his damages does not completely bar him from recovery against the physician. (D) Yes, because the physician did not act as a reasonably prudent person would under the circumstances.

(C) Yes, because the patient's failure to mitigate his damages does not completely bar him from recovery against the physician. Under the doctrine of avoidable consequences (duty to mitigate), a plaintiff seeking to recover under a theory of negligence must take reasonable steps to mitigate damages after the defendant commits a tort. In pure comparative-negligence jurisdictions (default rule on the MBE), the plaintiff's failure to mitigate damages reduces the plaintiff's recovery by the amount of damages that could have been avoided had the plaintiff used reasonable care after the defendant's tort was committed. Here, the patient suffered permanent liver damage from taking a drug negligently prescribed by his physician. The patient failed to mitigate the drug's harm by continuing to take it for two weeks after he experienced an allergic reaction. Since this is a pure comparative-negligence jurisdiction, the patient's recovery will be reduced by the amount of damages that could have been avoided by not taking the drug for those two weeks. However, the plaintiff can still prevail because the failure to mitigate damages does not bar recovery.

A man hired a painter to paint the interior of his home. The man gave the painter very specific instructions about which rooms to paint and explicitly told him to stay out of his tool shed. The painter began painting the man's home, but realized he had forgotten the tool he needed to unscrew a drape rod in the living room. The painter decided to quickly pop into the tool shed and grab a screwdriver. When he entered the tool shed, he realized that the interior walls of the tool shed were covered with hundreds of pictures of the man dressed up in a variety of evocative clown costumes. The painter took pictures of the walls and later published them on a highly trafficked social media website because he thought they were funny. The man discovered the pictures on the website. If the man sues the painter for the public disclosure of private facts, is he likely to succeed? (A) No, because the man had already publicized the pictures by using them to decorate his tool shed. (B) No, because the painter did not publish the pictures with malice. (C) Yes, because the pictures were of a kind that would be highly offensive to a reasonable person if publicized. (D) Yes, because the pictures of the man in clown costumes placed him in a false light.

(C) Yes, because the pictures were of a kind that would be highly offensive to a reasonable person if publicized. To recover under a theory of the public disclosure of private facts about someone, the plaintiff must show that (i) the defendant gave publicity to a matter concerning the private life of another, and (ii) the matter publicized is of a kind that would be highly offensive to a reasonable person and is not of legitimate concern to the public. Here, the painter publicized the private pictures of the man in evocative clown costumes. These pictures would be highly offensive to a reasonable person due to the quantity of pictures and the fact that he was wearing costumes in all of them. In addition, because the man told the painter to stay out of the tool shed, he apparently intended the pictures to remain private. Therefore, the elements of public disclosure of private facts appear to be met. Answer choice A is incorrect because the pictures were inside of the man's tool shed, he told the painter to stay out of it, and there is no other indication that the pictures had already been publicized. Answer choice B is incorrect because it is irrelevant whether the painter did or did not publish the pictures with malice for this tort. Answer choice D is incorrect because it states the rule for the false light invasion of privacy tort rather than the tort of public disclosure of private facts.

The president of a closely held corporation personally purchased an inn from a seller. In addition to a small down payment, the president executed a note for the remainder of the purchase price. The note was secured by a mortgage on the property. The mortgage and related deed were timely and properly recorded. The note contained a due-on-sale clause, which required the president to obtain the seller's consent in order to transfer the inn. The president deeded the inn to her corporation without the seller's permission or knowledge, and promptly recorded the deed.For several years, the president continued to make timely payments on the note from her personal bank account in order to conceal the transfer from the seller, until shortly before the president filed for personal bankruptcy, at which time the seller learned of the transfer. In the bankruptcy proceeding, the note is subject to discharge unless the seller's failure to exercise his rights under the due-on-sale clause is due to intentional misrepresentation by the president. The current value of the inn is less than the outstanding balance owed on the note. Does the president's conduct constitute intentional misrepresentation? (A) No, because the president's statement was not in writing. (B) No, because the recorded deed gave the seller constructive knowledge of the transfer. (C) Yes, because the president, who was under a duty to disclose the transfer, failed to do so and the seller justifiably relied on that failure to his detriment. (D) Yes, because the transaction involved the sale of land rather than goods.

(C) Yes, because the president, who was under a duty to disclose the transfer, failed to do so and the seller justifiably relied on that failure to his detriment. A misrepresentation can arise from: (1) nondisclosure by a person who is under a duty to disclose; or (2) conduct and from the concealment of a fact. A person may generally rely on a misstatement unless the falsity of the misstatement is obvious. Here, the president had a duty to disclose based on the terms of the due-on-sale clause. Answer choice A is incorrect because, as noted, a misrepresentation need not be in writing. Answer choice B is incorrect because a person is not under a duty to investigate the truthfulness of a misrepresentation. Answer choice D is incorrect because intentional misrepresentation is not confined to real property transactions, but can arise in any type of transaction in which the plaintiff suffers actual economic loss due to the defendant's misrepresentation.

A woman kept a wolf as a pet in her yard in the city. One day, the wolf escaped and wandered down the road. The woman's neighbor was walking on the same road when he saw the wolf. The wolf growled at the neighbor, which frightened the neighbor. In his attempt to get away from the wolf, the neighbor tripped and broke his leg. Is the woman liable for her neighbor's injuries? (A) No, because the injury the neighbor suffered is not of the type normally caused by a wolf. (B) No, because the wolf was not on the woman's property. (C) Yes, because the woman was strictly liable for harm caused by the wolf. (D) Yes, because the wolf menaced the neighbor.

(C) Yes, because the woman was strictly liable for harm caused by the wolf. Strict liability applies to an injury caused by a plaintiff's fearful reaction to the sight of an unrestrained wild animal, in addition to injuries caused directly by the wild animal. The woman is strictly liable for injuries caused by the neighbor's fearful reaction to the sight of an unrestrained wolf. Answer choice A is incorrect because the possessor of a wild animal is also strictly liable for injuries caused by a plaintiff's fearful reaction to the sight of an unrestrained wild animal. Answer choice B is incorrect because it misstates the law. The woman was the owner of the wolf, and therefore responsible for harm it caused, even though it was not on her property. Answer choice D is incorrect because, even if the wolf had not exhibited a dangerous propensity, the woman is nonetheless strictly liable for any injury incurred as a result of a fearful reaction to her wolf.

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? (A) Denied, because the money was taken by a thief. (B) Denied, because there is no duty to protect a stranger from criminal activity. (C) Allowed, because the plaintiff is unable to recover from the thief. (D) Allowed, because the defendant's conduct had left the plaintiff vulnerable to the thief.

(D) Allowed, because the defendant's conduct had left the plaintiff vulnerable to the thief. 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.

A woman in great pain from a toothache made an emergency appointment with a dentist. The dentist removed her tooth. Later, she returned and the dentist implanted a new tooth. This tooth, which was made from synthetic materials by a dental laboratory, contained a defect. The dentist was unaware of the defect because he failed to exercise reasonable care in examining the tooth before implanting it. Several weeks later, when the woman bit down on an apple, the implanted tooth broke. A piece of the broken tooth caused substantial damage to her mouth. The woman brought a strict products liability action against the dentist. Is the woman likely to prevail? (A) Yes, because the dentist did not exercise reasonable care. (B) Yes, because the implanted tooth was defective. (C) No, because the dentist did not know that the implanted tooth was defective. (D) No, because the dentist was a service provider.

(D) No, because the dentist was a service provider. Strict products liability claims can only be brought against commercial suppliers or sellers. This means that the defendant must be in the business of manufacturing, selling, or otherwise distributing the type of defective product that harmed the plaintiff. Accordingly, those in the business of providing services are not subject to strict products liability. Here, the woman was injured by a manufacturing defect in the implanted tooth. But since the dentist is a service provider—not in the business of manufacturing or selling implanted teeth—the woman is unlikely to prevail on her strict products liability claim.

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? (A) Yes, but only if the driver was actually speeding. (B) Yes, but only if the driver had been negligent in loading the pickup truck. (C) Yes, but only if the policeman was not comparatively negligent in following the pickup truck. (D) No.

(D) No. 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.

A 12-year-old boy had trouble controlling his temper and was prone to violence. The boy and his father attended family therapy together to address the issue, where their therapist stressed the importance of parental supervision while the boy learns to apply new skills for handling anger. As part of his treatment plan, the boy was also required to take medication on a daily basis. The boy's father filled the boy's monthly prescription, but he did not check to make sure that the boy took the pills. The boy soon decided that he did not like taking the medication and stopped taking it entirely. Shortly thereafter, the father dropped the boy off at a bowling alley and drove to meet his coworkers at a nearby bar. While unsupervised at the bowling ally, the boy got into a fight with a man in the next lane and intentionally dropped a bowling ball on the man's foot, resulting in a broken foot. If the man brings a negligence action against the boy's father, who will likely prevail? (A) The father, because he did not know that the boy was not taking his medication. (B) The father, because the boy intentionally harmed the man. (C) The man, because parents are vicariously liable for the torts of their minor children. (D) The man, because the father failed to adequately supervise the boy.

(D) The man, because the father failed to adequately supervise the boy. A defendant generally has no duty to control another's conduct unless the parties have a special relationship. Since parents and children have a special relationship, parents have a duty to exercise reasonable care to prevent their minor child from causing foreseeable harm to others. Therefore, parents are liable for negligence if they breach this duty and cause the plaintiff harm. Here, the father had a duty to use reasonable care to prevent the 12-year-old boy from harming others since the father knew that the boy had trouble controlling his temper and was prone to violence (i.e., it was foreseeable that he might harm others). The father breached that duty when he failed to take reasonable steps to confirm that the boy took his medication or supervise him at the bowling alley (Choice A). And since the father's negligence caused the man's injuries, the man will likely prevail.

A homeowner owned a cat that had a dangerous propensity to try to attack individuals who attempted to play with it. Although the cat had never injured anyone, the homeowner warned his neighbor not to play with the cat because it had a history of wandering the neighborhood and trying to attack other neighbors. One day, despite the homeowner's best efforts to confine the cat in his home, the cat escaped. When the neighbor walked into her yard and saw the cat sitting there, she attempted to play with it. As a result, the neighbor sustained lacerations on her arms. If the neighbor brings an action in strict liability against the homeowner, which of the following is the homeowner's best defense? (A) The animal trespassing on the neighbor's property was a cat. (B) The cat had not previously injured anyone. (C) The homeowner was not at fault for the cat's escape. (D) The neighbor was aware of the cat's dangerous propensities.

(D) The neighbor was aware of the cat's dangerous propensities. The owner of a domestic animal is strictly liable (i.e., liable without proof of fault) for bodily harm caused by his/her domestic animal if: (1) the owner knew or had reason to know about the domestic animal's dangerous propensities (i.e., behavior uncommon for its species) and (2) the plaintiff's harm arose from those dangerous propensities. However, in a pure comparative-negligence jurisdiction (default rule on the MBE), assumption of the risk is a defense to strict liability claims based on injuries caused by wild or abnormally dangerous domestic animals. Assumption of the risk arises when the plaintiff voluntarily engages the animal despite knowing of its dangerous propensities. Here, the homeowner knew that the cat had a dangerous propensity to try to attack individuals who attempted to play with it. Since the neighbor's injuries arose from that same dangerous propensity, the homeowner normally would be strictly liable for those injuries. However, since the neighbor attempted to play with the cat despite knowing of its dangerous propensities, she assumed the risk of injury. Therefore, this is the homeowner's best defense.

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? (A) Neither party (B) Only the park (C) Only the man (D) The park and the man

(D) The park and the man 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.

The owner of an apartment complex employed a pest control company as an independent contractor to remove unwanted insects from one of the two buildings in the complex. The pest control company fumigated the building with a toxic gas. Even though the company exercised reasonable care, the gas escaped into the owner's other building, which adjoined the fumigated building, where the gas caused serious illness to a tenant therein. The tenant had received a written advance notice about the fumigation that advised the tenant of the need to vacate his apartment during the hours the fumigation was conducted. The tenant had intended to leave his apartment, but he fell asleep just prior to the fumigation due to a medication he was taking for a medical condition. The applicable jurisdiction treats fumigation as an abnormally dangerous activity and adheres to the rule of contributory negligence. The tenant brought a strict liability action against the owner of the apartment complex to recover damages for his harm. Who will likely prevail? (A) The owner, because the fumigation was conducted by an independent contractor. (B) The owner, because the pest control company exercised reasonable care. (C) The owner, because the tenant's own negligence bars recovery. (D) The tenant, because the owner is vicariously liable for the harm that resulted from the fumigation.

(D) The tenant, because the owner is vicariously liable for the harm that resulted from the fumigation. A person who hires an independent contractor is generally not vicariously liable for torts committed by the independent contractor. However, vicarious liability will be imposed when the independent contractor's work involved a nondelegable duty, such as when the independent contractor performed an abnormally dangerous activity. Here, the owner of the apartment complex hired the pest control company (independent contractor) to fumigate (abnormally dangerous activity) the building that adjoined the building where the tenant lived. Although the owner normally would not be vicariously liable for the pest control company's torts, the company's work involved a nondelegable duty. This means that the owner is vicariously liable for the harm caused by the fumigation. Therefore, the tenant will likely prevail.

A man and his neighbor were involved in an increasingly serious dispute. One afternoon, the man backed his car out of his driveway, and headed down the street past the neighbor's house. Suddenly, the man heard two "pop" sounds coming from his right. Looking in that direction, the man saw his neighbor standing on his porch, tossing a gun into the bushes. The man drove away as quickly as possible. Once he was a safe distance away, he got out of his car and surveyed the damage. He immediately noticed a bullet hole in the front right fender. Later, he repaired his vehicle, at a substantial cost. Based on the foregoing facts, which intentional tort claim by the man is most likely to result in the greatest monetary recovery? (A) Intentional infliction of emotional distress (B) Conversion (C) Assault (D) Trespass to chattels

(D) Trespass to chattels A defendant commits trespass to chattels if the defendant intentionally interferes with the plaintiff's right of possession by dispossessing the plaintiff of the chattel or using or intermeddling with the plaintiff's chattel. Intermeddling with a plaintiff's chattel requires the defendant to make physical contact, whether direct or indirect, with the chattel. In cases of use or intermeddling, the plaintiff may recover only when there are actual damages. Here, the neighbor intermeddled with the man's chattel (i.e., his car) by firing shots that caused damage to the car. Furthermore, punitive damages may be available, as the neighbor's conduct was willful and wanton. Answer choice A is incorrect because the facts do not indicate that the man suffered severe emotional distress as a result of the incident. Answer choice B is incorrect because the man was able to repair the car, and therefore he wasn't totally deprived of the benefit of the property. Answer choice C is incorrect because an assault requires the plaintiff to anticipate an imminent, and harmful or offensive, contact. The plaintiff must be aware of or have knowledge of the defendant's act. Here, the man did not see the neighbor until after the shooting had occurred.

A consumer purchased a ladder from a hardware store for use around the house. Due to a defect in the design of the ladder, the consumer fell from the ladder and was seriously injured. The manufacturer of the ladder had affixed a notice to the ladder that limited consequential damages from any defect in the ladder or from a breach of the implied warranty of merchantability. The consumer had read the notice prior to purchasing the ladder. The consumer brought an action based on both a products liability claim and breach of the implied warranty of merchantability claim against the manufacturer to recover damages for his personal injuries. Can either claim support the consumer's recovery? (A) No, as to either type of claim. (B) Yes, as to the products liability claim, but no, as to the implied warranty of merchantability claim. (C) Yes, as to the implied warranty of merchantability claim, but no, as to the products liability claim. (D) Yes, as to both types of claims.

(D) Yes, as to both types of claims. A plaintiff injured by a defective product can bring a products liability action against the commercial seller of the product (e.g., a manufacturer). A products liability action can be based on a variety of claims, including strict products liability and breach of the implied warranty of merchantability. Under both claims, the plaintiff can recover damages resulting from: ---Physical Harm: Personal injury or damage to property ---Economic Losses: Those that stem from the alleged physical harm, including consequential damages (e.g., lost profits) The commercial seller of the product may generally disclaim or limit the remedies and warranties available in a products liability action. But any such disclaimer or limitation does not bar or reduce an injured plaintiff's recovery for physical harm. And in the case of consumer goods, any limitation of consequential damages for personal injuries is unconscionable and therefore invalid. Here, the consumer seeks to recover damages for his personal injuries caused by the manufacturer's defective ladder under both a products liability and a breach of the implied warranty of merchantability claim. Although the manufacturer posted a notice limiting consequential damages for such claims, that limitation does not bar the consumer's recovery for his personal injuries. Additionally, the ladder is a consumer good, so the limitation is unconscionable and invalid. Therefore, both of the consumer's claims support his recovery . *Purely economic losses do not stem from any physical harm and are available only in breach of implied warranty claims—not other products liability claims.

A man and his friend were on a cruise ship. While in their cabin preparing for dinner, they got into an argument because the man accused his friend of cheating during a heated game of shuffleboard. The man decided to have dinner alone and, on his way out of the cabin, slammed the door behind him. The friend tried to follow the man, but the locking mechanism on the door, which had been broken for days, was jostled by the slam and rendered the door unable to be opened. The friend, who was severely claustrophobic, experienced an extreme panic attack that lasted until the man returned to the room and forced the door open from the outside. The friend was so distraught by the incident that he started seeing a therapist to cope with the months of nightmares and stress-related ulcers caused by his ordeal. The friend subsequently filed a negligence suit against the operators of the cruise ship for the costs of the claustrophobia-related therapy he required after the cruise. At trial, it was established that the cruise ship operators knew that the lock was not working and could cause the door to lock shut at any point. On these facts, will the friend succeed in his negligence suit against the cruise ship operators? (A) No, because the cruise ship did not have an affirmative duty to rescue the friend. (B) No, because the malfunctioning lock was not the proximate cause of the friend's damages. (C) Yes, because common carriers are strictly liable for any injuries suffered by passengers during transit. (D) Yes, because failing to repair the lock breached the duty of care consistent with the practical operation of the business.

(D) Yes, because failing to repair the lock breached the duty of care consistent with the practical operation of the business. To prevail in a negligence action, a plaintiff must prove duty, breach, causation, and damages. A common carrier owes a heightened duty of care to its passengers due to its special relationship with those passengers. At common law, that duty was described as one requiring the highest level of care consistent with the practical operations of the business. This approach is still used in a majority of jurisdictions.* A common carrier that breaches its duty of care to a passenger is liable for the harm caused by that breach. Causation requires a showing that the harm would not have occurred but for the carrier's conduct (actual cause) and was a foreseeable consequence of that conduct (proximate cause). Here, the cruise ship operators owed the highest level of care consistent with the practical operation of the business to the friend. The operators breached that duty of care by failing to repair a lock that they knew was not working and could cause the door to the cabin to lock shut at any time. The friend's harm would not have occurred but for the operator's conduct and was a foreseeable consequence of that conduct, so the friend can establish actual and proximate causation. Therefore, the friend will succeed in his negligence suit. *Under the modern approach (minority rule), common carriers are negligent if they fail to use reasonable care to protect passengers from harm that arises within the scope of that relationship.

The plaintiff and his friend were walking on a city sidewalk. The friend jokingly pushed the plaintiff after the plaintiff started making fun of the friend's taste in music. This caused the plaintiff to trip over his own feet and stumble into the bike lane of the street. The defendant driver, who was involved in a heated argument on his cell phone, had veered into the bike lane and did not see the plaintiff. He hit the plaintiff, causing the plaintiff numerous injuries. The plaintiff has sued the driver. The evidence at trial shows that the plaintiff's injuries were caused by the negligence of both the friend and the defendant. The state has adopted a system of pure several liability. Is the plaintiff likely to prevail in a negligence claim against the defendant? (A) No, because the plaintiff's injuries were caused by multiple tortfeasors. (B) No, because the state does not recognize joint and several liability. (C) Yes, because the defendant and the friend were independent tortfeasors. (D) Yes, because the defendant's conduct was the actual cause of the plaintiff's injury.

(D) Yes, because the defendant's conduct was the actual cause of the plaintiff's injury. In order to prove negligence, the plaintiff must establish that the defendant's actions were both the actual cause and the proximate cause of the plaintiff's injury. Generally, the plaintiff must show that his injury would not have occurred but for the defendant's conduct. When multiple defendants have contributed to the plaintiff's injury, the plaintiff may establish causation by showing that the defendant's conduct was a substantial factor in causing the plaintiff's injury. Here, the defendant and the friend were both the actual causes of the plaintiff's injury, and the plaintiff could recover against either or both of them. Answer choice A is incorrect because a plaintiff may recover against a single tortfeasor when his injuries were caused by multiple tortfeasors so long as the plaintiff can show that the defendant's conduct was the "but for" cause or a substantial factor in causing the injuries. Answer choice B is incorrect because, under joint and several liability, when two or more persons are responsible for a plaintiff's harm, the plaintiff may sue any one of them and obtain a full judgment. Under a system of pure several liability, a tortfeasor is generally only liable for his comparative share of the plaintiff's damages. In this case, the plaintiff could likely collect only a share of the full damages from the defendant. This does not, however, prevent the plaintiff from successfully pursuing a negligence action against the defendant alone. Answer choice C is incorrect because when more than one individual is the cause of a plaintiff's harm, the plaintiff may choose to sue only one defendant regardless of whether the defendants acted in concert with one another or were independent tortfeasors.

A yoga instructor, whose yoga license met the highest standards for the yoga profession, established her own studio in a building that abuts a large park. She became so popular that there was a waiting list to attend her classes. 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 and mimicked 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 a morning class, she explained the situation to her paying students and warned them that she planned to perform silly poses that were not part of the normal lesson in the hope that the potential student would stop observing the class. The instructor asked the paying students not to perform the silly poses because they could result in injury. The potential student mimicked the instructor's silly poses and sustained a serious back injury as a result. The potential student has sued the instructor for negligence. In a jurisdiction that follows the majority view of the duty of care, will the potential student likely prevail? (A) No, because the instructor never physically touched or directly spoke to the potential student. (B) No, because the potential student was not a paying customer. (C) Yes, because the instructor is a licensed professional in her field and, as such, is strictly liable for harm caused in her professional capacity. (D) Yes, because the instructor was aware that the potential student was copying her poses, and the resulting harm was foreseeable.

(D) Yes, because the instructor was aware that the potential student was copying her poses, and the resulting harm was foreseeable. To recover in a negligence action, the plaintiff must establish four elements: duty, breach, causation, and damages. The majority rule (Cardozo) is that the defendant owes a duty of care to the plaintiff only if the plaintiff is a member of the class of persons who might be foreseeably harmed as a result of the defendant's negligent conduct (sometimes called "foreseeable plaintiffs"). Here, the instructor owed a duty of care to persons who might be foreseeably harmed by her negligent yoga instruction. The potential student was not a paying customer and the instructor had never physically touched or directly spoken to him. However, it was reasonably foreseeable that he would mimic her silly poses (since she knew that he had previously copied her poses) and that he would be harmed thereby (since she knew that the poses could result in injury). Therefore, the potential student will likely prevail.

A man lived in a politically competitive district within a swing state, and was therefore constantly approached by political canvassers. The man was annoyed with never-ending knocks on his door, and put up a "No Soliciting" sign. One day, a canvasser knocked on the man's door, despite the sign, and when the man yelled through the door at the canvasser to read the sign, the canvasser rang the doorbell. The man was not afraid, but was infuriated that the canvasser had the audacity to ring his doorbell despite the sign. Instead of asking him to leave, the man grabbed a stun gun, opened the front door, and immediately discharged it at the canvasser, intending to frighten him off the property. The canvasser had a preexisting heart condition and died from cardiac arrest triggered by the stun gun. The executor of the canvasser's estate sued the man for wrongful death. If the court finds that the use of the stun gun constituted deadly force, is the executor likely to prevail? (A) No, because deadly force can be used if one's personal safety is threatened. (B) No, because the man did not set a trap to defend his property from trespassers. (C) Yes, because the man did not ask the canvasser to leave his property before shooting him. (D) Yes, because the man did not believe his personal safety was threatened by the canvasser.

(D) Yes, because the man did not believe his personal safety was threatened by the canvasser. A defendant is privileged to engage in conduct that would otherwise constitute a battery, assault, or false imprisonment to prevent a plaintiff's imminent intrusion or to terminate a plaintiff's intrusion on the defendant's land or personal property if: (i) the intrusion is not privileged; (ii) the defendant reasonably believes that the plaintiff is intruding or imminently will intrude on the defendant's property and the intrusion can be prevented or terminated only by the means used; (iii) the defendant first asks the plaintiff to desist and the plaintiff disregards the request, or the defendant reasonably believes that a request will be useless or dangerous or that substantial harm will be done before the request can be made; (iv) the means used are reasonably proportionate to the value of the interest the defendant is protecting; and (v) the means used are not intended or likely to cause death or serious bodily injury. Deadly force may not be used unless one's personal safety is threatened. Here, there is no evidence that the man was in fear for his life. He only wanted the canvasser to leave his property. Thus, the use of deadly force was not appropriate. Answer choice A is incorrect because the facts provide that the man did not fear for his 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 man could have been liable for an injury to a trespasser. Here, the man is liable because, regardless of his duties as a landowner, he used deadly force when he was not in fear for his 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 man would have been permitted to use reasonable force without asking the canvasser to leave if he feared for his personal safety. However, even then, the use of force may only be reasonable, and deadly force was not reasonable in this case.

A neighbor of a married couple overheard the husband and wife arguing loudly about the wife's alleged extramarital affair. A few hours later, the neighbor heard police sirens approaching, so he went outside to see what was happening. Two police cars pulled up in front of the married couple's home, and a few minutes later the coroner appeared. The neighbor later found out that the wife had died that evening under suspicious circumstances. The next day, while he was having breakfast with his friend, the neighbor told the friend that the husband had found out that the wife was having an extramarital affair, and in the heat of passion, the husband had killed his wife. In fact, the husband had left his house shortly after having the argument with his wife that the neighbor overheard. While he was gone, a burglar had broken into his home and murdered his wife when she tried to call the police. The friend knew the husband, and informed the husband of the neighbor's statement. (A) No, because the husband will not be able to prove that he suffered any pecuniary loss due to the neighbor's defamatory statement. (B) No, because the neighbor's statement was merely an opinion. (C) Yes, because the neighbor acted with actual malice. (D) Yes, because the neighbor told his friend that the husband murdered his wife due to her extramarital affair.

(D) Yes, because the neighbor told his friend that the husband murdered his wife due to her extramarital affair. A plaintiff may bring an action for defamation if the defendant's defamatory language of or concerning the plaintiff is published to a third party who understands its defamatory nature, and it damages the plaintiff's reputation. Here, the neighbor's statement that was communicated to the friend was defamatory, and would damage the husband's reputation because the neighbor claimed that the husband killed his own wife in the heat of passion after finding out that she was allegedly having an extramarital affair. Answer choice A is incorrect. Pecuniary loss, also referred to as special damages, is only required when the defamatory statement is not slander per se. Here, the neighbor accused the husband of committing a crime involving moral turpitude (i.e., voluntary manslaughter), which constitutes slander per se. Therefore, the husband will not have to show pecuniary loss to recover. Answer choice B is incorrect. A defamatory opinion is actionable if the defendant implies that there is a factual basis for that opinion. Here, the neighbor's statement to his friend clearly implies a factual basis for making the statement. Answer choice C is incorrect because the husband is not a public figure and is not required to prove that the neighbor acted with actual malice. Moreover, there is no evidence to indicate that the neighbor entertained serious doubts about the truthfulness of his statement to the friend; he merely failed to confirm the factual accuracy of his statements. Thus, the neighbor did not act with actual malice.

The parents of a four-year-old child knew that the child was aggressive and had a tendency to hit others. The parents hired an experienced babysitter, who was unfamiliar with the child's reputation for violence, to watch the child one evening. Fearing that the babysitter would not watch the child if she knew of the child's tendency to be violent, the parents did not mention the child's behavioral problems. That evening, the child hit the babysitter in her eye, permanently damaging the eye. Are the parents likely liable for the babysitter's injuries? (A) No, because parents are not liable for the intentional torts of their minor children. (B) No, because the parents had no duty to warn the babysitter of the child's violence. (C) Yes, because parents are strictly liable for the intentional torts of their minor children. (D) Yes, because the parents knew that the child was violent.

(D) Yes, because the parents knew that the child was violent. A defendant generally has no duty to control another's conduct unless the parties have a special relationship. Since parents and children have a special relationship, parents have a duty to exercise reasonable care to prevent their minor child from causing foreseeable harm to others. Therefore, parents are liable for negligence if they breach this duty and cause the plaintiff harm. Here, the parents had a duty to use reasonable care to prevent their four-year-old child from harming others since they knew that the child was aggressive and had a tendency to hit (i.e., it was foreseeable that the child might harm others). The parents breached that duty when they failed to take reasonable steps to prevent the child from harming the babysitter—e.g., by at least warning the babysitter of the child's violent tendencies. Therefore, the parents are likely liable for the babysitter's injuries.

During a football game, the plaintiff was severely injured by the defendant, a player on the opposing team, when the defendant ripped off the plaintiff's helmet and intentionally elbowed the plaintiff in the head to obtain possession of the football. The plaintiff brought a battery action seeking compensation from the defendant. During the trial, the defendant introduced evidence demonstrating that all of the players, including the plaintiff, use rough tactics when tackling players on the opposing team to obtain possession of the ball. The plaintiff introduced evidence that intentionally hitting a player once his helmet has been removed is beyond the scope of the game and does not typically occur because it poses a significant risk of causing a severe head injury. Will the plaintiff likely prevail in an action for damages against the defendant? (A) No, because having used rough tactics during the football game, the plaintiff was estopped from recovering damages. (B) No, because the defendant did not intend to cause harmful or offensive contact with the plaintiff. (C) Yes, because the defendant intentionally removed the plaintiff's helmet. (D) Yes, because the plaintiff did not consent to the defendant's rough play.

(D) Yes, because the plaintiff did not consent to the defendant's rough play. Battery occurs when a defendant intended to cause contact with the plaintiff's person, the defendant's affirmative contact caused such contact, and that contact caused bodily harm or was offensive to the plaintiff. However, consent (actual, apparent, presumed, or emergency) is a defense to battery. And a plaintiff's participation in an athletic activity (e.g., football) may amount to apparent or presumed consent unless: (1) The defendant's conduct violates a safety rule of the sport; (2) The conduct does not typically occur during the activity and/or (3) The conduct involves significant risk of very serious injury or death. Here, the defendant intentionally pulled off the plaintiff's helmet and elbowed him in the head, causing an injury (Choice C). That conduct violated a safety rule of the sport of football and does not typically occur during play because it poses a significant risk of causing a severe head injury. As a result, the plaintiff did not consent to the defendant's rough play and will likely prevail in a battery action for damages.

A storeowner hired a flooring company to retile the floors in the aisles of his store. During the retiling, the employees of the flooring company clearly roped off the area where the retiling was being performed and marked the retiling area with signs. On the last day of the retiling, a tiler, who was an employee of the flooring company, finished up the last area of tile. The area, however, needed a couple of hours to dry and set before it would be safe to walk on it. Nonetheless, the tiler removed the ropes and signs from the last area and left the store. A customer walked over the unmarked area and tripped because the tiles were slightly uneven, as they had not yet set into place. The customer broke his wrist as a result of tripping on the uneven tiles. In an action brought against the tiler, the flooring company, and the store, the trier of fact found that the tiler was liable in negligence for the damages incurred as a consequence of the broken wrist and the flooring company was vicariously liable for such damages. Can the storeowner also be vicariously liable for these damages? (A) No, because the flooring company was an independent contractor. (B) No, because the tiler was hired by the flooring company, not the storeowner. (C) Yes, because the customer suffered injury due to the negligence of the tiler, an employee. (D) Yes, because the storeowner's duty to keep the premises safe could not be delegated.

(D) Yes, because the storeowner's duty to keep the premises safe could not be delegated. A principal (employer) is generally not vicariously liable for torts committed by its independent contractor—i.e., one who performs work for another outside an employment relationship. However, vicarious liability will be imposed if the independent contractor's work breaches a nondelegable duty owed by the principal. A nondelegable duty is a duty of care that cannot be assigned to a third party to avoid liability. This includes the duty of a land possessor who holds his/her land open to the public to keep the premises safe for business visitors. Here, the flooring company was likely an independent contractor since it was hired for a onetime job—to retile the floors in the store aisles. The storeowner ordinarily would not be liable for an independent contractor's torts, but the owner had a nondelegable duty to maintain safe conditions for his customers. And since the tiler's act of removing ropes and signs from an area not yet safe to walk on breached that duty, the storeowner is vicariously liable for the customer's injuries and resulting damages.

Two college students, dressed as robbers for Halloween, were playing hide-and-seek outside of their dormitory. One of the students hid behind a shrub and waited to surprise the other. Before the other student appeared, an elderly woman passed the shrub. The student, hearing footsteps and thinking it was the other student, jumped in front of her and shouted, "Got you!" The elderly woman shrieked and jumped backward. She dropped a bag of groceries but was otherwise unharmed. The woman sued the student for assault. Will the woman likely prevail in her suit against the student? (A) No, because the student did not have the necessary intent to commit a tort. (B) No, because the woman sustained no damages that she could collect. (C) Yes, because the student's conduct was extreme and outrageous. (D) Yes, because the woman was placed in anticipation of imminent contact.

(D) Yes, because the woman was placed in anticipation of imminent contact. Under the doctrine of transferred intent, a defendant's intent to commit an assault (or battery or false imprisonment) against one person transfers to the defendant's commission of that intended tort against a different person. Here, the student intended to frighten the other student by hiding behind a shrub and waiting to surprise him (intent to commit assault). The two students were playing hide-and-seek and thereby consented to the tortious conduct. However, the student still had the intent to commit an assault, and the woman did not consent because she was not playing the game. Because the student frightened the woman instead, the student's intent to commit assault against the other student transferred to the woman. And since the student frightened the woman—thereby placing her in anticipation of imminent contact—the woman will likely prevail in her suit against the student for assault.

A newly retired chemist bought a house in a small but densely populated rural town. The chemist still enjoyed conducting experiments in her spare time. Because the chemist used very strong chemicals, she always experimented with her windows open to keep fresh air circulating in her home. A computer programmer who lived next door to the chemist kept his home office windows open as well because his network of servers and computers generated a lot of heat when he worked. The programmer suffered from a rare disease known as anosmia, which blocked his sense of smell. As a result, the programmer could not smell the unpleasant, but ultimately harmless, fumes when they entered his office after the chemist conducted an experiment. However, visitors to the programmer's home and his neighbors regularly complained about the loathsome smell. Ignoring the issue of damages, could the programmer prevail in a private nuisance action against the chemist? (A) No, because the programmer assumed the risk of encountering fumes by keeping his windows open. (B) No, because the programmer could not smell the fumes emanating from the chemist's home. (C) Yes, because the programmer suffered harm that is different from that suffered by other community members. (D) Yes, if the fumes unreasonably interfered with the programmer's use and enjoyment of his home.

(D) Yes, if the fumes unreasonably interfered with the programmer's use and enjoyment of his home. Private nuisance is a substantial and unreasonable interference with the use and enjoyment of the plaintiff's property. An interference is substantial if a normal person in the community would find the interference offensive, annoying, or intolerable—even if the plaintiff is not personally bothered by it. Here, the fumes from the chemist's experiments interfered with the use and enjoyment of the programmer's home by entering his office while he worked. Although the programmer could not smell the fumes, the interference was substantial since a normal person in the densely populated rural town would likely find their smell offensive, annoying, or intolerable, as evidenced by the reactions of his visitors and neighbors. Therefore, the programmer will prevail if the interference was also unreasonable.