Torts MBE Practice Questions Session 2 (34)
A plaintiff is a candidate for state treasurer. The defendant has held a long-standing grudge against the plaintiff. In an effort to dig up dirt on the plaintiff, the defendant hacked into the plaintiff's personal email account and found lewd pictures of the plaintiff engaging in sexual conduct with a former staff member, as well as email exchanges between the plaintiff and the staff member. The defendant called the plaintiff on the phone and said to the plaintiff, "I hate you. I have always hated you. I just emailed your wife and your two top advisors, telling them that you are an adulterer. And tomorrow, I am going to drive over to your house and punch you right in the nose." Which of the following tort doctrines offers the plaintiff the best chance of recovery?
Assault Intrusion upon seclusion Public disclosure of private facts Defamation B
The manufacturer of hot water heaters contacted the supplier of plastic resin about using the resin in the manufacturing of the heater. The supplier gave the manufacturer technical advice about how to mold the resin into a 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. The manufacturer designed and made the tank for its hot water heaters three-quarters of an 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. Due solely to the walls of the tank being too thin, the tank melted when used by the homeowner. The homeowner suffered both severe burns as well as substantial property damage as a consequence of the melted tank. The homeowner initiated a strict products liability action against the plastic supplier and the local plumbing store for damages suffered as a consequence of the melted hot water tank. Who will be liable?
Both the plastic supplier and the plumbing store The plastic supplier only The plumbing store only Neither the plastic supplier nor the plumbing store C
As a safety measure, a city enacted a code imposing a fine for trespassing on construction and roadwork sites marked with orange caution tape. The city's construction team marked a city block with orange caution tape to divert all cars and pedestrians while the team repaired potholes. A pedestrian wanted to walk down the marked-off street. The street was full of construction equipment, but because it appeared that construction had not yet started, the pedestrian stepped over the orange caution tape and walked down the street. Distracted by the equipment around him, the pedestrian stepped into an open manhole and landed on a construction worker who was inspecting the sewer under the construction site. Both parties were injured in the accident. The construction worker has sued the pedestrian for negligence to recover damages for his injuries in a jurisdiction that applies the minority approach to negligence per se. What is the legal effect of the pedestrian's walking on a street marked with caution tape?
It creates a conclusive presumption that the pedestrian breached a duty. It creates a rebuttable presumption that the pedestrian breached a duty. It will bar the pedestrian from recovering damages from the city. It will have no legal effect because the construction worker's act was the proximate cause of the accident. B
The manager of a restaurant was responsible for printing new dinner menus every day after speaking with the restaurant's chef in the morning. The menu always indicated in a footnote that all dishes were prepared in a kitchen that also worked with nuts and animal products. One morning, after speaking with the chef, the manager created a dinner menu that labeled a chicken dish as "soy, nut, and dairy free." However, the chicken dish contained pecan crumbs. That evening during dinner service, a patron of the restaurant told his waiter that he was allergic to nuts. Based upon the menu, the waiter suggested that he order the chicken dish. The patron noted the warning on the menu, but knowing that his own allergy was not severe enough to react to mere trace amounts of nuts, he ordered the chicken dish. After eating a few bites of the dish, he suffered a severe allergic reaction and was rushed to the hospital. The patron filed a negligence suit against the manager of the restaurant to recover damages for her injuries. The above facts are undisputed at trial, and at the close of the patron's case, the manager filed a motion for a directed verdict. Assuming no other evidence has been introduced, should the motion be granted?
No, because a judge cannot award judgment to the manager until he has put on his own case. No, because a jury could conclude that the manager breached his duty of reasonable care to the patron. Yes, because the patron assumed the risk by eating food in a restaurant that may contain nuts. Yes, because the patron consented to ordering the chicken dish based upon the waiter's suggestion. B
A professional football player was severely injured during a football game. During the game, a player from the opposing team crushed the football player's jaw when he ripped off his football helmet and intentionally kneed him in the head in order get possession of the football. The plaintiff-football player brought a battery action seeking compensation from the opposing player. During the trial, the defendant-football player introduced evidence demonstrating that all of the players, including the plaintiff, use rough tactics when tackling players on the opposing team in order to obtain possession of the ball. The plaintiff-football player introduced evidence that intentionally hitting a player once his helmet had been removed was beyond the scope of the game. Will the plaintiff-football player likely prevail in an action for damages against the defendant?
No, because having used rough tactics during the football game, he was estopped from suing. No, because the defendant did not intend to cause a harmful or offensive contact to the plaintiff. Yes, because the defendant's reckless disregard for the plaintiff's safety was not consented to. Yes, because the defendant intentionally pulled off the plaintiff's helmet. C
A mother sent her daughter, who had a severe peanut allergy, to a cooking camp that focused on teaching young children how to cook in healthy and fun ways. To protect children with food allergies, a local ordinance required that no food ingredients at any camp for children would contain soy or nuts. On the day the daughter went to the camp, the campers were going to learn how to make a shrimp stir-fry. The camp counselor on duty forgot about the ordinance and added soy sauce to the stir-fry. Later that day, the daughter was rushed to the hospital for severe abdominal pain. At the hospital, it was discovered that the bottle of soy sauce had been contaminated with an unusual strain of bacteria and the daughter had developed a bacterial infection. However, the daughter showed no signs of an allergic reaction to the soy sauce. If the mother sues the camp counselor under a theory of negligence per se for violation of the statute, is she likely to prevail?
No, because her daughter did not suffer harm that was intended to be prevented by the ordinance. No, because her daughter was not in the class of people intended to be protected by the ordinance. Yes, because the camp counselor put soy sauce into the food in violation of the ordinance. Yes, because the daughter was within the class of people intended to be protected by the ordinance. A
A successful politician suffered from chronic social anxiety that caused him to have debilitating panic attacks before any public speaking event. The politician was embarking on an extensive campaign tour across the country because it was an election year, so he asked his doctor about possible medications to alleviate his social anxiety. The doctor recommended a popular prescription drug called CalmX, which had successfully helped many of the doctor's patients to overcome their anxiety disorders. The makers of CalmX warned all doctors prescribing the drug of all problems associated with CalmX. One side effect—extreme flatulence—could occur, but only when combined with the excessive consumption of a very rare imported cheese. Due to that side effect's rarity, the CalmX manufacturers did not warn consumers about it. The politician successfully took CalmX for much of his campaign tour, but he combined it with the excessive consumption of the rare imported cheese on the day of a critical televised debate. During the debate, the politician experienced extreme flatulence. The video of the debate went viral and caused him to lose the election. The politician brought a strict products liability action against the CalmX manufacturers for failure to warn about the drug's side effect; will he prevail?
No, because the CalmX manufacturers informed the doctor about the side effects associated with the drug. No, because the consumers that might suffer from this particular side effect of CalmX were very few in number. Yes, because the CalmX manufacturers did not warn consumers about all of the side effects associated with CalmX. Yes, because the CalmX manufacturers are commercial suppliers, so they are liable for harm caused by the drug. A
To allow for the plowing of major streets, a city ordinance prohibited parking on major streets, defined in the ordinance, between 4 a.m. and 9 a.m. 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. Contrary to the weather forecast, it snowed five inches the night the defendant was gone. The next morning, the plaintiff walked to work along the same major street. He decided to walk in the street, as it had been plowed, while the sidewalks were still covered with snow. When he walked around the defendant's car at around 8 a.m., he was hit by a city bus. The plaintiff has sued the defendant for negligence. The plaintiff has moved for summary judgment, arguing that the defendant's conduct amounts to negligence per se. The jurisdiction recognizes pure comparative negligence. Is the plaintiff likely to prevail?
No, because the defendant's act did not proximately cause the plaintiff's injury. No, because the plaintiff's negligence contributed to his injury. Yes, because the defendant's violation of the ordinance amounts to per se negligence. Yes, because the jurisdiction recognizes pure comparative negligence. A
Two college roommates were driving back to their dorm room after attending a fraternity party. The driver drank two beers at the fraternity party, but she believed that she could safely drive home and that she had waited the appropriate amount of time for her blood alcohol level to be below the legal limit. The passenger had drunk four beers and was clearly intoxicated and unable to drive. Part of the drive home included a stretch of winding road with poor lighting. As the car rounded a tight corner, a deer jumped out into the road, the driver swerved out of the way, and the car veered off of the road and ran into a tree. The driver was uninjured, but the passenger had struck her head on the dashboard. She had passed out from the impact and did not appear to be breathing. The driver called 911, and then she pulled the passenger out of the car and performed CPR on her. The EMTs were able to revive the passenger, but she suffered rib fractures. The passenger subsequently sued the driver for damages. At trial, it was established that the primary cause of the passenger's rib fractures was the driver's improper CPR techniques. Is the driver liable to the passenger for damages?
No, because the driver did not owe the passenger an affirmative duty to render aid to her after the car accident. No, because the driver exercised reasonable care when she rendered aid to the passenger after the car accident. Yes, because the driver had a unique relationship with the passenger and was under a duty to render aid to her. Yes, because the driver was under a duty to prevent further harm when she rendered aid to the passenger. D
A mother and her two children shopped and browsed at a large discount store for approximately an hour before paying for their purchases. As they left the store, two store employees stepped in front of the family and blocked their path to the exit. They employees told the mother that her children were suspected of shoplifting on a prior occasion, that they had called the police, and that the children would go to juvenile hall for the rest of their childhood based upon the videotape evidence they had of the children stealing store items. In reality, the employees only called the store security officer, and they did not have any videotape surveillance. After a few minutes, the security officer arrived and told the employees that the children were not the kids that had been caught shoplifting earlier. The employees apologized for their mistake, and the family left the store. If the mother brings a claim for false imprisonment against the employees, will she likely be successful?
No, because the employees only detained the mother and her children for a few minutes. No, because the employees' detention was a reasonable and valid use of their authority. Yes, because the children were cleared of any wrongdoing and the employees made a mistake. Yes, because a threat or claim of lawful authority to detain is sufficient to show confinement. D
A homeowner who lived in a residential area raised two chickens in her backyard so she could have fresh eggs for breakfast every morning. The chickens were kept in a chicken coop made of solid wood and galvanized wire mesh. Because the chickens were protective of their eggs, they would oftentimes peck the homeowner's hands, so the homeowner wore protective gloves when she gathered eggs. One morning when the homeowner opened the coop door to gather eggs, one of the chickens escaped. The escaped chicken went into the front yard and pecked at a mailman's hand as he was attempting to put mail into the homeowner's mailbox. If the mailman sues the homeowner, will he prevail?
No, because the homeowner exercised reasonable care when building the chicken coop. No, because the escaped chicken lived in a chicken coop and was a domesticated animal. Yes, because the chicken was the legal and proximate cause of the mailman's injury. Yes, because the chicken had the propensity to peck at the homeowner's hands in the past. D
A mother and father had recently divorced, and the mother had remarried a man she met while the couple was separated. Although the mother's husband did not like children, the mother had fought for primary custody of the son she had with the father. The judge had awarded the mother primary custody and granted the father weekend visitations. The father was extremely angry with this result, believing that the mother fought for custody of the son solely to upset him. The father decided to get back at the mother. The father showed up at the mother's house alone when he was supposed to return the son from one of their weekend visits. When the mother and her husband answered the door, the father told the mother that the son had been in an accident and was in a coma. In fact, the son was playing happily at his grandmother's house. The mother and her husband, who each suffered severe emotional distress but no bodily harm as a consequence of the father's false report, have sued the father for intentional infliction of emotional distress. The father has moved to dismiss the husband's claim, arguing that his conduct was directed at the mother alone. Should the judge grant the father's motion to dismiss the husband's claim?
No, because the husband is a member of the mother's immediate family. No, because the target of a defendant's conduct is irrelevant for such a claim. Yes, because the father intended to cause distress to the mother alone. Yes, because the husband did not sustain a physical injury. A
A hotel owner ran an open-air bar for hotel patrons only, but locals would frequently sneak into the bar at night. The hotel owner knew that locals were drinking at his bar, but he did not object because it generated more revenue for his hotel. As winter approached and temperatures dropped at nighttime, the hotel owner installed high-powered heat lamps so the bar patrons would stay warm. The hotel owner did not want the heat lamps to distract from the aesthetic beauty of the open-air bar, so he had the heat lamps camouflaged by heat-proof plastic plants and installed in very discreet locations so that bar patrons could not see them in the dark without close inspection. One night, one of the locals accidentally backed into one of the concealed heat lamps and suffered third-degree burns. If the local brings a negligence claim against the hotel owner, will he prevail?
No, because the local was not a hotel patron when he frequented the open-air bar. No, because the heat lamps were not an abnormally dangerous condition in the open-air bar. Yes, because the heat lamps were a hazard that the local was not likely to discover. Yes, because the aesthetic benefit of having the lamps hidden does not outweigh the possible harm. C
A man and his friend decided to drive downstate to watch the homecoming football game at their alma mater. The man offered to drive and refused any compensation from the friend. On the way, the man negligently ran a stoplight and collided with another vehicle. The friend was severely injured. The friend sued the man for injuries sustained in the accident. The applicable jurisdiction recently enacted a guest statute with regard to automobile passengers. Will the friend prevail in her suit against the man?
No, because the man was merely negligent. No, because a driver is liable only for injuries caused to passengers that have provided monetary compensation. Yes, because the man was strictly liable for injuries he caused to any passenger, including a guest. Yes, because the man owed his friend a duty to exercise ordinary care. A
A woman consulted with a plastic surgeon in order to get liposuction. The plastic surgeon reviewed the cost, procedure, and risks associated with liposuction with the woman. However, the plastic surgeon did not tell the woman that many patients who undergo liposuction feel numbness for many months afterwards in the area of the procedure. The woman underwent the liposuction procedure and did not suffer any numbness. When the woman told one of her girlfriends that she had underwent liposuction, the girlfriend told her she was lucky that she had not suffered any numbness, which is a side effect of liposuction. Outraged by the plastic surgeon's failure to disclose all of the risks of liposuction, the woman filed a negligence suit against him. Is the woman likely to prevail?
No, because the plastic surgeon did not breach his standard of care. No, because the plastic surgeon's conduct did not result in damages to the woman. Yes, because the plastic surgeon was the proximate cause of the woman's outrage. Yes, because the plastic surgeon failed to disclose the risk of numbness following the procedure. B
A woman wanted to reduce the wrinkles on her face and consulted a dermatologist for advice. The dermatologist recommended a new prescription cream with a high level of lactic acid. After the woman used the cream for two weeks per her dermatologist's instructions and the label on the skin cream, she developed first-degree burns all over her face. The woman brought a strict products liability claim against the manufacturer of the skin cream under a failure-to-warn theory. At trial, it was revealed that in order to avoid burns, the skin cream must be used in conjunction with a sunscreen with a Sun Protection Factor ("SPF") of 40 or higher. The woman only used a sunscreen with an SPF of 25. The SPF requirement was not listed on the skin cream label, and the manufacturer did not directly inform the dermatologist or the woman of the SPF requirement. Is the woman likely to succeed in a strict products liability action against the manufacturer?
No, because the risk of burns was a foreseeable harm that would be obvious to an ordinary user of the skin cream. No, because under the learned intermediary rule, it was the dermatologist's duty to inform the woman about the necessity to use sunscreen with an SPF of 40 or higher. Yes, because the manufacturer could have avoided the foreseeable and non-obvious risk of burns by providing a warning about the SPF requirement. Yes, because the manufacturer did not warn the woman directly of potential problems with the skin cream, and the woman suffered an injury. C
In the parking lot of a mall, two drivers, while simultaneously backing up, each carelessly struck the other's car. Neither suffered physical injuries, but the damages to the plaintiff's car totaled $10,000; damages to the defendant's car were $1,000. The plaintiff sued to recover the damages to his car and the defendant counterclaimed for the damages to her car. At trial, it was determined that the plaintiff was 70% at fault and the defendant 30% at fault for the accident. The applicable jurisdiction has enacted a modified (i.e., partial) comparative negligence statute. After taking into account his own liability to the defendant, how much may the plaintiff recover from the defendant?
Nothing $2,300 $3,000 $9,000 A
In the parking lot of a mall, two drivers, while simultaneously backing up, each carelessly struck the other's car. Neither suffered physical injuries, but the damages to the plaintiff's car totaled $10,000; damages to the defendant's car were $1,000. The plaintiff sued to recover the damages to his car and the defendant counterclaimed for the damages to her car. At trial, it was determined that the plaintiff was 70% at fault and the defendant 30% at fault for the accident. The applicable jurisdiction has enacted a pure comparative negligence statute. After taking into account his own liability to the defendant, how much may the plaintiff recover from the defendant?
Nothing $2,300 $3,000 $9,000 B
In the parking lot of a mall, two drivers, while simultaneously backing up, each carelessly struck the other's car. Neither suffered physical injuries, but the damages to the plaintiff's car totaled $10,000; damages to the defendant's car were $1,000. The plaintiff sued to recover the damages to his car and the defendant counterclaimed for the damages to her car. At trial, it was determined that the plaintiff was 70% at fault and the defendant 30% at fault for the accident. The applicable jurisdiction has enacted a modified (i.e., partial) comparative negligence statute. After taking into account her own liability to the plaintiff, how much may the defendant recover from the plaintiff?
Nothing $300 $700 $1,000 C
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?
Strict liability Negligence per se Res ipsa loquitur Public nuisance C
An acrobat went to a chiropractor when he pinched a nerve in his neck while practicing an acrobatic routine. The chiropractor had the acrobat lay down on a custom-made chiropractic table. The table could be tilted such that the acrobat was angled with his head towards the floor, allowing the chiropractor deeper access to the acrobat's neck muscles. During the session, the table malfunctioned due to a manufacturing defect and tilted all the way down, causing the acrobat to bang his head on the floor. As the acrobat tried to pull himself up, he frantically reached out and grabbed the chiropractor's shoulder, wrenching it and causing serious injury. If the chiropractor brings a strict liability action against the manufacturer of the table to recover damages for his shoulder injury, who will prevail?
The chiropractor, because he was within the zone of danger of a threatened physical impact. The chiropractor, because the chiropractic table was used for its intended purpose. The manufacturer, because the chiropractor is not the proper plaintiff for this action. The manufacturer, because the chiropractor's shoulder injury did not occur in a reasonably foreseeable way. B
A vending machine company contacted a manufacturer about leasing space in the business's employee lunchroom for its machines. The company, unaware that the business had entered into a similar lease with a competitor, offered the manufacturer terms that were much more favorable than the competitor's terms. The manufacturer, breaching its oral two-year contract with the competitor, entered into a contract with the company. Upon learning of the manufacturer's action, the competitor sued the company for intentional inference with a contract. Who will prevail?
The company, because it enjoys an absolute privilege to compete. The company, because it was unaware of the competitor's dealings with the manufacturer. The competitor, because the manufacturer's defense to the contract between the manufacturer and the competitor based on violation of the Statute of Frauds is not available to the company. The competitor, because the manufacturer breached its contract with the competitor. B
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, and the driver reached out to grab it. While the driver was looking at his caller identification display, a pedestrian walked into the crosswalk straight ahead of the vehicle. When the driver saw the pedestrian in the crosswalk, he swerved to the right to avoid the collision; in doing so, he slammed his car into a utility pole. The utility pole crashed to the ground. A power line attached to the utility pole snapped in two, resulting in power outage within the surrounding 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 scared of the dark, ran out of the house and into the street where the child was struck by a bicyclist and seriously injured. The child's parents sued the driver of the car that crashed into the utility pole, claiming that the child's injury was attributable to the driver's negligence. Who should prevail?
The driver, because his actions were not the cause in fact of the child's injuries. The driver, because he owed no duty to the child. The parents, because the driver's conduct was the legal and proximate cause of the child's injuries. The parents, because the driver owed a duty of reasonable care to the child. B
A construction company was removing air conditioning equipment from a truck parked on a residential street, using a crane. The equipment weighed several hundred pounds. A half-block away, the mother of a seven-year-old boy was standing on her front porch, watching her son walk to the school bus stop at the end of the block. As the boy walked past the construction site, the air conditioning equipment fell, landing mere inches away from the boy, who calmly continued walking to his bus. While the boy suffered no ill effects from the incident, the boy's mother, who had a clear view of the incident, immediately fainted after seeing her son so close to certain death. For the next 48 hours, the mother was unable to function due to shock over the event. In the following months, the mother had difficulty sleeping due to nightmares as a result of the incident. The mother sued the construction company on behalf of her son for negligent infliction of emotional distress, and produced evidence at trial conclusively establishing that the construction company was negligent in allowing the air conditioning equipment to fall. Which of the following is the construction company's best defense against this action?
The mother was outside the zone of danger. The mother did not suffer a physical impact to her person. The son did not suffer an injury. The construction company's actions were not extreme and outrageous. C
A professional football player injured his knee during a football game. The player delayed seeking medical attention for his injuries for several days, which aggravated those injuries. When the player finally sought treatment from an orthopedic surgeon, the orthopedic surgeon 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 injuries. Assuming that the monetary effect of each of the following can be established with reasonable certainty, which would a fact finder not take into account in determining the amount, if any, of the damages to which the player would otherwise be entitled due to the surgeon's negligence?
The plaintiff's inability to continue playing professional football due to his knee injury. The plaintiff's failure to promptly seek medical care. The plaintiff's emotional distress. The plaintiff's failure to follow the surgeon's post-operative instructions. B
A skier was skiing down a mountain at a ski resort. As she turned a corner, she noticed an injured snowboarder lying unconscious and half-covered with snow at the edge of a difficult trail. Due to her reasonable speed, she was able to approach the snowboarder and stop without hitting him. She saw that he appeared to have suffered a compound fracture in his leg. The skier also recognized that the snowboarder was in grave peril, but because she had no cell phone and did not know how to administer first aid, she simply continued to ski down the mountain. Less than an hour later, another skier came down the trail. Because he was skiing at an unsafe speed, he was unable to stop and struck the snowboarder. The injured snowboarder suffered a concussion from the crash. It was later established that the snowboarder broke his own leg when he recklessly tried to do a flip on the difficult trail. If the snowboarder sues the first skier to recover damages for his concussion, what is the skier's best defense?
The second skier had the last clear chance to avoid injury to the snowboarder. The second skier's negligence caused the snowboarder's concussion. The first skier took no action to place the snowboarder in greater peril than when she found him. The snowboarder recklessly put himself in peril by tried to do a flip on a difficult trail. C
A famous singer hired a bodyguard to protect her before and after her music concerts. Their employment contract authorized the bodyguard to use reasonable force to protect the singer from any dangerous situations that put her safety at risk. However, the singer also told the bodyguard that she preferred that he only use a reasonable amount of force to get fans out of the way if they were within a one-foot radius of her. Otherwise, the singer told him he should just help her maneuver her way through crowds and watch for anyone that might try to harm her. After one of her concerts, the bodyguard guided the singer through a heavily crowded area of her fans. Most fans moved out of the way. However, one man kept pushing his way towards the singer and would not relent when the bodyguard politely asked him to move back. Suddenly, the man lurched forward towards the singer. The bodyguard punched the man in the face before he entered a one-foot radius of the singer. The man filed a claim for battery against the singer, seeking to recover damages caused by the bodyguard's punch. Assuming the bodyguard's actions were not a reasonable exercise of the right of self-defense or defense of others, who will prevail?
The singer, because she is not liable for the intentional tort of the bodyguard, her employee. The singer, because she gave the bodyguard specific instructions that he did not follow. The man, because the singer will always be held responsible for any tortious conduct by the bodyguard as force is inherent in the job. The man, because the bodyguard's conduct was within the scope of his employment. D
Immediately before leaving a party, a college student ate a cookie that, unknown to her, was laced with a hallucinogen. On the drive home, she lost control of her car as a consequence of the hallucinogen and struck another vehicle. The driver of the other vehicle sued the student under a negligence theory to recover for damages caused by the accident. At trial, the judge instructed the jury that, under the reasonable person standard, the student's driving was to be judged in light of the care that a sober person in her situation would have exercised. Has the judge correctly instructed the jury?
Yes, because a sober person is a reasonable person. Yes, because the student's physical characteristics cannot be considered in determining whether she violated the reasonable person standard. No, because the student unknowingly ingested the hallucinogen. No, because the student was intoxicated at the time of the accident. C
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 she used very strong chemicals, she always experimented with her windows open to keep fresh air circulating in her home. A computer programmer, who lived a few doors down on the same road as the chemist, had lived in the neighborhood for 15 years. The programmer worked from home, and because he had many computers and other hardware that generated a lot of heat, he also kept his windows open to keep the house cooler. Since birth, the programmer had suffered from a rare disease known as anosmia, which prevented him from smelling anything. As a result, the programmer could not smell the noxious, though ultimately harmless, fumes emanating from the chemist's home, but he knew of them based upon community gossip. Setting aside the issue of damages, should the programmer prevail in a private nuisance action against the chemist?
Yes, because other neighbors in the community were able to smell the fumes coming from the chemist's home. Yes, because the programmer suffered harm that is different from that suffered by other community members. No, because the programmer cannot smell the noxious odors emanating from the chemist's home. No, because he assumed the risk of encountering the malodorous smells by keeping his windows open. A
A shopper was a frequent customer of a local handbag store. One afternoon, she went into the store, carrying a handbag she had purchased from the manufacturer's online site two weeks earlier. She looked around in the store for 30 minutes, but decided to not buy anything, and started to leave the store. The store's security guard noticed that the shopper was walking out of the store carrying a handbag. The security guard was aware that that particular model of handbag was sold locally only by the store. The security guard stopped the shopper and asked her discreetly if she had purchased the handbag she had in her possession from the store. When the shopper replied that she had not, the guard threatened that she would be arrested for shoplifting if she didn't follow him into the back of the store. The guard detained the shopper for only 10 minutes in a locked office while the guard reviewed the security tapes. Determining that the shopper had entered the store with the handbag, the guard released the shopper. If the shopper sues the guard for false imprisonment, will she prevail?
Yes, because she had no reasonable means of escape. Yes, because the confinement resulted from an improper threat. No, because the detention was reasonable. No, because she impliedly consented to the detention. C
A married man had an affair with a woman, which he abruptly ended when his wife found out about it. The woman was livid and began calling the couple's shared home to speak to the man at all hours of the night, harassing whoever answered. She also sent the man letters to the couple's home and places of work threatening to expose the affair to the couple's family and friends to destroy their reputation as a happy couple. During this time, the woman knew that the couple was still living together. After two months of harassment, the man was able to get a restraining order to prohibit any further contact by the woman. Due to the woman's conduct and the effect it had on their marriage, the couple suffered severe emotional distress and went to couple's therapy for many months. If the wife sues the woman for intentional infliction of emotional distress, is the wife likely to prevail?
Yes, because she suffered severe emotional distress due to the woman's intentional behavior. Yes, because the woman's harassment of the married man negligently caused the wife emotional distress. No, because transferred intent does not apply to intentional infliction of emotional distress. No, because the woman's behavior did not rise to the level of extreme or outrageous conduct. A
Jumping Land is an indoor playground full of giant inflatable houses and slides upon which children can play and bounce. Large, electric air machines blow air through tubes connected to the inflatables to keep them filled. The managers of Jumping Land do a safety check of the inflatables every morning, and they also inspect the air machines to make sure that the electric motors are running correctly and that the air tubes are securely attached. The air machines are kept behind childproof gates and the owners posted signs warning that the air machines are dangerous. However, to keep them from being an eyesore, the air machines were painted in bright colors so that they fit into the festive motif of Jumping Land. A child happily jumped in the bouncy houses for a while, but eventually he got bored, and asked his father if he could take a closer look at the air machines because he enjoyed learning about how motors worked. The father acquiesced because he would be there to supervise, and unlocked the gate so his son could look at the air machine's motor. When the son got close to the air machine, the air tube suddenly disconnected and whipped the boy in the face, causing permanent damage to one of his eyes. The child's father filed a claim against Jumping Land on his son's behalf for negligence, and Jumping Land responded that it was not liable because the air machines were behind childproof gates and warning signs had been posted. Under the traditional approach regarding invitees and trespassers, is the child's father likely to be successful in the suit against Jumping Land?
Yes, because the air machines used to fill the inflatables were abnormally dangerous. Yes, because the air machines painted in bright colors were an attractive nuisance. No, because the child went into an area from which he was prohibited to enter. No, because the air machine was bounded by a childproof gate and warning signs. D
The owner of an abandoned building in an urban section of town knew that many homeless people were staying in the building for shelter. Because he sympathized with their plight, he decided not to have them removed from the building and left the building in its current state, as he had no plans to remodel the building. The owner knew the building had dilapidated and uneven floors but never posted signs or informed those staying there of the uneven floors. A homeless man tripped on the uneven floor and sprained his ankle. A legal aid attorney filed suit against the owner on behalf of the injured man. The owner defended on the basis that he had no obligation to take action to provide a safe environment to the man. Under the Restatement, is the defense outlined by the owner likely to be successful?
Yes, because the floors did not involve a risk of serious harm or risk of death. Yes, because the owner did not have a duty to protect these trespassers. No, because the owner had a duty to protect the man from unsafe conditions. No, because the owner did not prohibit the people from entering the building. C
Ten treadmills line the windows in a designated area of a popular gym. Eight of the treadmills are modern and fully functional, while two of them periodically stop for unknown reasons. No runner has ever been injured as a result of any fall on the two treadmills. The gym had originally posted warnings on the two treadmills indicating the nature of the problem, but after realizing the high demand for the extra two treadmills, management removed the warnings and decided to keep the malfunctioning treadmills until they were able to purchase replacements. One day, one of the treadmills stopped abruptly. The runner using the treadmill had been reaching down to retrieve his dropped headphones, and the sudden stop caused him to pitch forward, breaking his outstretched hand. Is the gym liable for the damage resulting from the runner's broken hand?
Yes, because the runner's broken hand was a foreseeable injury. Yes, because the gym owned the treadmill. No, because the injury was not caused by the malfunction. No, because the runner was not using the treadmill properly. A