Torts Negligence PracticePerfect

Lanai leaves her car idling in the street while she runs into a convenience store to grab an iced tea. Tomeski steals the car, drives to a nearby foreign embassy, and crashes the car into the front of the embassy, to protest the treatment of a minority group in the embassy's country. Polito is injured by the crash and sues Lanai for negligence. The court will probably hold that Tomeski's act is a superseding cause, and that Lanai is therefore not liable for Polito's injury. A (A) True B (B) False

A court would likely hold that the risk of someone stealing the car and deliberately crashing into an embassy is beyond the ambit of the risks that Lanai should anticipate from leaving her car running for a few minutes. It is not impossible in these times but it is certainly beyond the ordinary risks from this negligent act. This seems much like the volcano damages in the Practice Perfect review—a bizarre result that the Reasonable Person would not point to if the O. R. P. were chastising Lanai as Lanai left her car idling at the curb.

Prima Pharmaceuticals is making a batch of 1,000 doses of a vaccine for a rare virus. Its testing of previous batches suggests that four out of the 1,000 recipients of the vaccine will probably suffer an adverse reaction, at an expected loss of $20,000 per adverse reaction. Prima could refreeze the batch and completely eliminate these expected adverse reactions, but this procedure would add $25,000 per batch to production costs. If reasonable care is determined by applying the Learned Hand formula: A (A) Prima should refreeze the batch. B (B) Prima may reasonably omit the refreeze.

A is correct. First, let's see if we can reason to this conclusion without doing all of the precise math required by the B B = $25,000 per batch of 1,000, or $25 per unit P = 4 reactions in a batch of 1,000, or 4/1000, which is .004 L = $20,000 per reaction PL = (.004)($20,000) = $80 Thus, when we use the precise math, we come to the same conclusion: Prima should refreeze, because B, the per-unit cost of refreezing ($25) would be less than PL, the expected amount of loss per unit ($80) if not refrozen.

Maria and Jason were hunting for deer in the woods. Maria was using a crossbow and Jason was using a rifle. They had gotten lost and failed to notice they were in an area near a hiking trail where hunting was prohibited. Jason saw something moving in the bushes. He thought it was a deer, but in fact it was Ralph, a hiker. Jason fired his rifle. His bullet hit Ralph, killing him instantly. A few seconds later, Maria fired her crossbow in the same direction, also striking Ralph. In a wrongful death action against Maria and Jason, A (A) only Jason will be liable. B (B) Jason and Maria will both be liable, because each of them was an actual cause of Ralph's death. C (C) Jason will be liable, and Maria will also be liable if the evidence shows that her arrow would have been sufficient to cause Ralph's death on its own. D (D) Jason and Maria will both be liable, because they both committed negligent acts, and fatally injuring a hiker was a foreseeable result of those acts.

A is correct. Jason's negligent act of shooting his rifle while in a no-hunting area caused Ralph's death: The facts say Jason's bullet killed him "instantly." B is wrong because although Maria was similarly negligent, Ralph was already dead when her crossbow bolt arrived. The causal effect of her negligent act was "preempted" by Jason's, which means that Maria's act was not an actual cause of Ralph's harm.

Johanna leaves a friend's apartment and stands out in the street. She calls Qwik Cab for a ride and is assured that the cab will be there in ten minutes. However, the cab never shows. Forty-five minutes later she is still standing there when a freak tornado comes through and blows her into a nearby building, injuring Johanna. If Johanna sues Qwik Cab for her injuries she will likely: A (A) not recover, because Qwik Cab was not negligent for failing to foresee the risk of Johanna being swept up by a tornado. B (B) not recover, because Qwik Cab's negligence in failing to pick her up was not an actual cause of her injury. C (C) recover, because Qwik Cab's negligence in failing to pick her up was an actual cause of her injury D (D) recover, because she would not have been there in the street when the tornado arrived if the cab had come on time.

A is the best answer in this example. If that obnoxious, compulsive nerd, the Reasonable Person, were sitting in the office with the Qwik Cab dispatcher, she would warn the dispatcher of various risks if he doesn't send a cab for Johanna. She might miss an important appointment, she might be mugged, she might alienate a friend who was expecting her. But it is hardly likely that even that tedious know-it-all, the Reasonable Person, would warn that a tornado would arrive and knock Johanna down. This risk is probably too far afield from the risks to be expected from a late cab to lead to liability.

Berry, the town animal control officer, captures Barney, a frisky young dog who had just bitten a pedestrian. A state statute required Berry to hold the dog for two weeks, to determine whether it has rabies. After Berry sends Barney home Barney gets loose and bites Wozniak. A neighbor tells Wozniak that Berry released Barney early because the dog pound was full. Wozniak, fearful of rabies, therefore takes a regimen of shots to prevent rabies. Wozniak sues Berry for negligence, and there is conflicting evidence as to whether Berry released Barney early. Berry stakes his defense on his testimony that he held Barney for the full two weeks. Which instruction would be appropriate in a negligence per se jurisdiction? A (A) 'If you find that the defendant released the dog after only one week, you must find that the defendant was negligent.' B (B) 'You must find that the defendant was negligent.' C (C) "If you find that the defendant violated the statute, you should next determine whether the statute was aimed at preventing the type of harm that the plaintiff suffered. If it was you must find that the defendant was negligent." D (D) 'If you find that the defendant violated the statute, but that the violation is excused, you should find the defendant not negligent.'

A is the best answer. B is wrong, because the jury should only find Berry negligent if he violated the statute, and there is a conflict in the evidence on that which the jury must resolve. D is wrong, because the question does not suggest that Berry offered any excuse for releasing Barney early: he based his defense on his denial that he violated the statute at all. C is wrong, because it is not the jury's job to decide whether the statute was aimed at the harm the plaintiff suffered. It is for the judge to decide what the purpose of the statute is, and if she decides that it was not aimed at the type of harm the plaintiff suffered, then to exclude evidence of the violation from the trial.

Rohan decided to prepare a pot of chili for dinner. He cooked up some onions and ground beef, then added a jar of diced tomatoes and a can of CanCo black beans. When the chili was ready, he spooned it from his pot into a bowl and dug in. As he was enjoying his meal, he bit into a small shard of metal, injuring the inside of his mouth. Rohan sued CanCo, asserting negligence. Which of the following facts, if supported by the evidence, would be relevant to the applicability of res ipsa loquitur to Rohan's case against CanCo? A (A) Rohan first sautéed his onions, after which he carefully stirred in the ground beef and then the tomatoes. He did not see any foreign objects in the chili at that point. The CanCo beans were quickly added as the last ingredient before Rohan covered his pot for the remainder of the cooking time. B (B) Rohan is a professional chef and is very selective in the ingredients he uses in his home cooking. C (C) CanCo recently laid off a large number of workers from its canning facilities in response to declining sales and profits. D (D) All of the facts above would be relevant to the applicability of res ipsa loquitur.

A is the best answer. The glaring weakness in the argument for applying res ipsa to Rohan's case is the "attribution" element, because the offending shard of metal might have come from any of several ingredients that Rohan used for his chili. The evidence described in answer A might not conclusively establish that the offending shard of metal came from CanCo's product, but it would surely be relevant to that claim. In contrast, the facts in B and C have no apparent relevance. Rohan's skills as a chef do not shed light on either of res ipsa's foundational pillars. CanCo's business woes might be faintly suggestive of fault, but such evidence would be relevant, if at all, to a theory of how CanCo was negligent (e.g., poor quality control in its production facilities due to understaffing). The foundational issue for res ipsa is whether, generally speaking, foreign objects are ordinarily found in canned food in the absence of negligence. CanCo's cost-cutting actions are not relevant to that issue.

Robert was hired to install an in-ground swimming pool in Smith's backyard. Robert knew that gas lines ran through the neighborhood, and he made notes on where those lines were located. However, on the first day of construction, Robert forgot to check his notes and mistakenly assumed that there were no underground lines in Smith's backyard. When Robert began excavation, he hit a natural gas line with his bulldozer, causing a large explosion. The blast toppled a heavy bookcase inside the home next door. The bookcase fell on the homeowner, Geraldine, injuring her. Geraldine sued Robert for negligence. If these are the undisputed facts, Geraldine will probably A (A) Prevail, because Robert was an actual and proximate cause of her injury. B (B) Lose, because she was not a foreseeable plaintiff. C (C) Lose, because Robert owed her no duty of care. D (D) Lose, because Geraldine's injury was caused by the falling bookcase, not by Robert's negligence.

A is the best choice. Robert's negligence was a but-for cause of the explosion that resulted in Geraldine's injury. Proximate cause is satisfied because indirect physical injuries like Geraldine's are a foreseeable result of Robert's negligent breakage of the gas line. D is wrong because Geraldine's injury was caused by both the bookcase and Robert's negligence.

Stokowski, a passerby, sees Cortez lying in the street after being hit by a negligent driver, who has left the scene. Stokowski rushes out to help Cortez. Stokowski and Cortez are both struck and rendered unconscious by another driver, Moreau. Which of the following statements is true? A (A) Moreau has a duty to take reasonable action to minimize the risk of further harm to Stokowski and Cortez. B (B) Because Stokowski was a voluntary rescuer, he will recover his damages from Moreau under the state's Good Samaritan statute. C (C) Stokowski will not recover from Moreau, because Stokowski had no duty to provide Cortez with assistance. D (D) All of the above statements are true.

A is the correct choice here. Moreau's conduct, whether tortious or not, placed Stokowski and Cortez in peril and at continuing risk of being run over yet again. Thus, under the prior conduct rule, Moreau has a duty to exercise reasonable care to minimize the risk of further harm, such as by calling for help or warning oncoming traffic. B is wrong because Good Samaritan statutes do not authorize recovery for injuries suffered by rescuers. Instead, they limit the liability of a voluntary rescuer. For example, some such statutes provide that a health care provider who helps at an accident scene would only be liable for gross negligence, rather than simple negligence. C also falls short. The absence of duty compelling Stokowski to assist Cortez has no bearing on Moreau's potential liability.

Tonya, a ninth-grade student at Central High, told her cousin Drake that she was going to sabo-tage Nancy's car. Tonya said she wanted to harm Nancy to get back at her for stealing her boy-friend. Drake was friends with Nancy but did not warn her or tell anyone else about Tonya's plot. Tonya went through with her plan, and Nancy was badly injured in an accident when her car stalled on the highway. If Nancy sues Drake for failure to warn, she will probably A (A) not recover, because Drake owed no duty to Nancy to warn her of Tonya's intent to harm her. B (B) recover, because Drake had a relationship to Tonya that would support a duty to warn Nan-cy. C (C) recover, because Drake had a special relationship to Nancy that would support a duty to warn her. D (D) recover, because the burden of warning Nancy was trivial compared to the much greater harm that would have been avoided.

A is the right choice. Drake did not have a legal duty to warn Nancy or anyone else about Tonya's plot in these circumstances. Drake is not the creator of the peril to Nancy, and friendship is not a recognized special relationship that gives rise to a legal duty. Thus, C is out. B should also be rejected, because Tonya and Drake being cousins is not the sort of re-lationship that could support imposing a duty on Drake to protect third parties from risks created by Tonya. The balancing of cost and benefits as suggested in D is generally not a relevant part of the analysis that most courts would use today to determine the existence of a duty in a simple case like this one.

Ricardo purchased a new house and hired John to help with his move. One of the last items to be unloaded from John's moving truck was a large, unmarked box. Exhausted from a hard day's work, John lifted the box from inside the truck and carelessly threw it onto Ricardo's lawn. Unbeknownst to John, the box contained some very powerful fireworks, which exploded upon hitting the ground. The concussive blast was so strong that it caused a loose chandelier inside Ricardo's new house to fall from the ceiling onto Ricardo's head. Is John liable to Ricardo for his personal injury? A (A) No, because a personal injury to someone inside Ricardo's house resulting from a falling object dislodged by an explosion was not the type of risk that made John's mishandling of Ricardo's box tortious. B (B) Yes, because Ricardo would not have been injured but for John's negligent handling of the box of explosives. C (C) Yes, because it was foreseeable that John's act of throwing Ricardo's belongings from the truck would result in harm of some kind, even if not the precise harm that Ricardo actually suffered. D (D) Yes, by application of the thin skull rule.

A is the way to go here. Because of the nature of John's activity, a personal injury to Ricardo while he was inside his house was not an expected risk of John's careless unloading of a box from his moving truck. Thus, Ricardo will be unlikely to establish that John's negligence was a proximate cause of his injury. C is problematic because the characterization, "harm of some kind," is far too general. If that level of generality were acceptable for application of the risk rule test, that test would fail to exclude unforeseeable types of harm from the scope of a tortfeasor's liability, which is the basic function of the requirement of proximate cause. B is wrong because it only addresses the element of actual causation. D is from left field, as the thin skull rule has no relevance to the facts here. The thin skull rule (also known as the eggshell skull rule) is discussed in the Practice Perfect review of Proximate Cause: Eggshell Skulls, Rescuers, and Foreseeable Plaintiffs.

Martin sues Herzog for negligence in a motor vehicle collision occurring in 1915. Martin alleges that Herzog was negligent because, in the dark of night, he crossed the center line of the road and ran into Martin's buggy, coming in the other direction. Herzog claims that Martin was contributorily negligent for failing to have a light on his buggy, as required by state law. Under the contributory negligence rule, a plaintiff is barred from recovery if her negligence was a cause of an accident. At trial, Herzog offers evidence that Martin did not have a light showing on his buggy at the time of the accident. Martin offers evidence that he was carrying a light at the time of the accident, but it had blown out three minutes before the collision, and the he was trying to find a place to pull over and re-light the lamp. On this state of the evidence the judge should instruct the jury as follows in a negligence per se jurisdiction: A (A) "If you find that Martin did not have a light showing on his buggy at the time of the accident, as required by the statute, then you should consider that fact, along with the evidence offered by Martin to excuse the violation, in deciding whether Martin acted as a reasonable person under the circumstances." B (B) "If you find that Martin did not have a light showing on his buggy at the time of the accident, as required by the statute, then you must find that Martin was negligent." C (C) "You must find that Martin was not negligent, because he has offered evidence of an excuse for violating the statute requiring a light on his buggy." D (D) "If you find that Martin did not have a light showing on his buggy at the time of the accident, and that Martin did not have any excuse for failing to show a light, you may find Martin was negligent in causing the accident."

A prevails here. Choice C tells the jury that, because Martin has offered evidence of an excuse for failing to show a light at the time of the accident, then they must find the Martin was not negligent. But in this circumstance, where there is evidence of a violation and evidence of an excuse, the jury must decide whether, in light of those facts, the defendant's conduct was reasonable. The instruction tells them that must find that Martin was reasonable, taking from them an issue of fact that they should decide.

Carl, a carpenter, was working on a scaffold, repairing some loose siding on a wooden building. The scaffold had been constructed earlier by Steven. Steven had built the structure in haste and had neglected to tighten the bolts on a critical set of joints. Those joints failed and the scaffold partially collapsed, leaving Carl dangling from one of the cross beams that had remained intact. Raoul, a passing pedestrian, saw Carl and tried to climb the scaffolding to help him. However, Raoul's additional weight caused the scaffold to collapse further, and both Carl and Raoul were injured. Which of the statements below provides the best analysis of Steven's likely liability? A (A) Steven will be liable to both Carl and Raoul, because his negligence was an actual and proximate cause of both their injuries. B (B) Steven will be liable only to Carl, because Raoul was an unforeseeable plaintiff. C (C) Steven will be liable only to Carl, because he was not an actual cause of Raoul's injuries. D (D) Steven will not be liable to Carl or Raoul, because the scaffold did not completely collapse until Raoul tried to climb it.

A prevails here. Most courts, following Justice Cardozo's dictum in Wagner v. International Railway Co., treat injury to rescuers as a foreseeable consequence of negligent conduct that places people in peril. Raoul's attempt to climb the faulty scaffolding to rescue Carl was a risk foreseeably created by Steven's negligent construction. Thus, B is wrong. For the same reason, in Carl's action against Steven, Steven will not be able to argue that Raoul's conduct was a superseding cause. C is false: Raoul would not have climbed the scaffold and been injured but for Steven's negligent construction. D is wrong because it suggests that only Raoul caused the scaffold to collapse; but as just noted, Steven was an actual cause as well. Finally, if Raoul himself was negligent in climbing the scaffold, this might reduce his recovery as a matter of comparative fault, but Steven would still be liable.

Aliyah, Bob, and Chaz were hired to cut down a very large tree on Perez's property. The three of them took turns hacking away at the tree with an axe. Chaz struck the final blow before the tree fell. Unfortunately, the trio had failed to take the proper precautions to ensure that the tree would fall in a safe direction. It landed on Perez's house and caused significant damage. Perez sued Aliyah, Bob and Chaz for their negligence. Which of the following is the most likely result? A (A) Aliyah, Bob and Chaz will all be liable. B (B) Chaz will be liable, but Aliyah and Bob will not, because Chaz actually caused the tree to fall. C (C) The burden will shift to Chaz to prove that Aliyah and Bob were substantial factors in causing the tree to fall on Perez's house. D (D) The burden will shift to Aliyah, Bob and Chaz to disprove liability, and any defendant who fails to satisfy that burden will be held jointly and severally liable

A prevails here. This fact pattern should be a reminder that not all cases involving multiple negligent actors raise issues of duplicative, preemptive, or alternative causation. Often, as is true here, the analysis is much more straightforward. Aliyah, Bob and Chaz were each negligent in failing to exercise due care to ensure the tree would fall safely, and their negligence in chopping without such care was a but-for cause of Perez's damages. B is wrong because all three actors helped chop the tree down, and the fact that Chaz struck the final blow has no legal significance on these facts. (Though not essential to answering this question correctly, we note that Aliyah, Bob and Chaz are probably true joint tortfeasors—persons acting in concert to carry out a common plan—and as such are jointly and severally liable for the harms caused by their joint activity.)

Farmer Jane negligently starts a fire to burn brush off of her field on a windy day. Next door, Farmer Jack does the same thing. A heavy wind comes up and blows the fire towards Menlove's barn. Jane's fire reaches the barn first and burns it. Minutes later, Jack's fire arrives at the barn, which has just been burned. A (A) Only Jane is liable to Menlove for his lost barn. B (B) Both farmers are liable to Menlove for his lost barn because they were both negligent to burn brush on a windy day. C (C) Both farmers are liable to Menlove, because they both could have foreseen that their fire might escape and burn Menlove's barn. D (D) Both farmers are liable to Menlove for his lost barn because the negligence of each was sufficient to burn Menlove's barn.

A rules. Here, the two farmers did the same negligent act, starting a fire that got away. In one of the notorious cases on this problem, Anderson v. Minneapolis Railway Co., the railroad negligently started a fire which merged with another. After the fires merged the combined fire reached the plaintiff's building and burned it. The railroad would not be liable under the "but for" test, because the other fire, bearing down on the building, would have burned the building if the railroad's fire wasn't there. It was sufficient to burn the barn, but so was the railroad's, and they did it together. The Anderson court, unwilling to let two negligent actors off the hook, held that the jury could find the railroad liable for the loss if it concluded that the railroad's fire was a material or substantial factor in burning the building.

Yang had been hired three months ago as a lab assistant in a chemistry lab that works with flammable gases. One day he was preparing an experiment and scraped the counter near a container of flammable gas. The contact created a spark, which caused the nearby gas to explode, injuring Wilkins, a visitor to the lab. Consider these jury instructions in Wilkins' negligence suit against Yang for his injuries. Instruction #1: "In preparing the experiment with flammable gases at the time of the accident, the defendant was required to exercise the level of care of a reasonable lab assistant under the circumstances." Instruction #2: "Because the defendant was new to the work in which he was engaged, you should compare his conduct to that of the ordinary newly hired lab assistant." Instruction #3: "If you conclude that you would have acted more carefully than the defendant in preparing the new experiment, you should find that the defendant was negligent." Instruction #4: "If you find that the defendant was working with explosive agents at the time of the accident, the defendant owed a higher standard of care to the plaintiff because of that danger." Which of the statements below is a correct assessment of these instructions? A (A) Only instruction #1 is a proper instruction in Wilkins' case. B (B) None of the four instructions is a proper instruction in Wilkins' case. C (C) Instructions #1, 2, and 3 are proper instructions in Wilkins' case. D (D) All four instructions would be proper in Wilkins' suit against Yang.

A takes the cake here. Even though Yang was a relatively inexperienced lab assistant, he was acting as a lab assistant, and would be held to the standard of a reasonable person acting in that role. The negligence standard does not lower the care required based on a relative lack of experience at the work a person undertakes. A newly licensed driver is held to the standard of a reasonable driver under the circumstances. A surgeon performing her first appendectomy is held to the standard of a reasonable surgeon under the circumstances, and so on. Thus, Instruction #1 is correct, and Instruction #2 is not. B is wrong, because A is correct. C is wrong, because instructions #2 and #3 are both incorrect. Instruction #3 is wrong because it invites the jurors to ask what they personally would have done in the defendant's circumstances. That is not the test for due care! It is what the reasonable person would have done. Last, #4 is also an incorrect instruction. Yang would not be held to a higher standard of care because he works with explosive gases, but to the standard of a reasonable person in the circumstance of working with explosive gases. Thus, the reasonable person would be expected to use more care in the presence of such risk, but this is not a higher standard of care; it is the same standard in a particular set of circumstances.

Lobos and his friend Stein drove to the ball game together in Lobos's truck which Lobos knew had defective brakes. After the game they headed home, with Lobos driving. Suddenly Lobos's tire ran over a sliver of glass and blew out, causing the car to swerve instantly into an oncoming truck. The collision caused injuries to Stein. Stein will probably A (A) not recover from Lobos, even though his brakes were defective, because Lobos's negligence was not a "but for" cause of Stein's injury. B (B) recover fully from Lobos because Lobos was negligent in driving with defective brakes. C (C) recover fully from Lobos, because Lobos's defective brakes caused the accident. D (D) recover partial damages from Lobos, even if Stein knew that Lobos's brakes were defective.

A takes the cake here. The facts of the accident indicate that Lobos had no time to apply the brakes before hitting the truck. Thus, even though the brakes were defective, that act of negligence is not a but for cause of the accident. If the brakes had been in perfect condition, the same accident would have happened in the same way. So actual causation is lacking. If that is true, the fact that Lobos was negligent for driving with defective brakes will establish his negligence—element #2 in a claim for negligence—but absent causation, the claim falls one element short.

Marylou tripped on an elevated public platform and fell over the 28-inch high safety rail. Construction industry guidelines recommend that safety rails on public platforms be constructed at a height of 36 inches. Marylou sues the platform owner for negligence and the court instructs the jury as follows: "If you find that the defendant violated construction industry guidelines, you must find the defendant breached its standard of care." This instruction is: A (A) Incorrect because it requires the jury to find negligence. B (B) Incorrect because a jury can never rely on industry guidelines. C (C) Correct because industry guidelines proscribe a legislative standard of care. D (D) Correct because violating industry guidelines establishes negligence per se.

A wins first place. This instruction suggests that the jury must find that the defendant was negligent based upon a violation of industry guidelines. While such guidelines are some, and likely significant, of negligence, the jury still retains the discretion to evaluate all the evidence to determine whether the defendant was negligent. It is error to suggest that the jury must (rather than may) find negligence. B is wrong because jurors can and often do rely on industry guidelines. C and D are wrong because industry guidelines (unless formally adopted by law) are not legislative in nature, and violations of them therefore do not constitute negligence per se.

Albert was driving on the highway behind a car driven by Ed. A mattress that had been tied to the top of Ed's car came loose, flew off, and landed in the roadway. Albert swerved to avoid running over the mattress but lost control of his car, veering off the road and landing in a ditch. Albert files a negligence action against Ed to recover for his personal injuries. Albert has no evidence to explain how the mattress became unsecured from Ed's car but invokes the doctrine of res ipsa loquitur. Which of the following is the most accurate statement? A (A) The jury should not be permitted to apply res ipsa loquitur because it is possible that the mattress was tied onto Ed's car by someone other than Ed. B (B) Res ipsa loquitur does not apply if Albert could reasonably have avoided the mattress in the roadway without losing control of his car. C (C) The jury should be permitted to find negligence on the basis of res ipsa loquitur, but Ed may avoid liability if he is able to show that he was not personally negligent. D (D) Res ipsa loquitur is inapplicable if Ed has evidence suggesting that the mattress may have come loose due to a manufacturer's defect in the ropes that had been used to secure it.

Answer C is the most accurate statement. Mattresses do not fly off of car rooftops in the absence of negligence, and since the flying mattress came from Ed's car, that negligence can probably be attributed to Ed. Thus, both of the foundational elements of res ipsa loquitur are satisfied, and a jury should be permitted to infer negligence without requiring further evidence from Albert. However, Ed can try to rebut that inference by introducing facts tending to show that he did not actually breach a duty of care, for example, because he reasonably relied on the help of another person - perhaps an employee at the mattress store - to fasten the mattress to his car. Answer A is incorrect because it implies that the mere possibility that a third party was responsible for the accident makes res ipsa loquitur inapplicable. Negligence can be inferred on the basis of res ipsa loquitur so long as the negligence that caused the accident was probably that of the defendant. Answer D is incorrect for a similar reason. It is true that Ed may avoid liability if he can show that the accident was caused by a defect in the rope, not his own negligence, but this would not make res ipsa inapplicable, strictly speaking. Rather, the jury would have to weigh the inference of negligence based on res ipsa against Ed's evidence that he was not to blame. Answer B is incorrect because Albert's own lack of care or skill in attempting to avoid the mattress in the road might be a basis for Ed to assert an affirmative defense of comparative or contributory negligence, but in the circumstances here, that potential defense would have no bearing on the applicability of res ipsa loquitur.

Widget Co. manufactures the SuperWidget. Widget Co. estimates that every SuperWidget it sells carries a 10% risk of an accident at some point in its useful life. The expected injury cost is $8,000 per accident. Widget Co. can install a safety switch at a cost of $225 per machine and eliminate the risk. If reasonable care is determined by applying the Learned Hand formula: A (A) Widget Co. should install the safety switch. B (B) Widget Co. may reasonably omit the safety switch.

Applying the BA wins the prize. Plugging in the values for each valuable, "B" (the burden) is the cost of the safety switch, $225. "P" is the probability of accident occurrence in the absence of the precaution at issue, 10% here. "L" is the magnitude of the expected loss if it were to occur, $8,000. The math looks like this: B = $225 P = .10 L = $8,000 PL = (.10)($8,000) = $800 B is less than PL - i.e., the cost of installing the safety switch is less than the probable losses that would be occur without it - so, according to the Hand test, Widget Co. should reasonably install the safety switch.

Acme manufactures the Acme hacksaw. Acme estimates that every hacksaw it sells carries a 1% risk of an accident at some point in its useful life. The expected injury cost is $10,000 per accident. Acme can install a saw guard at a cost of $200 per machine and eliminate the risk. If reasonable care is determined by applying the Learned Hand formula: A (A) Acme should install the guard. B (B) Acme may reasonably omit the guard.

Applying the BB wins the prize. To use the formula, we plug the relevant values into each variable. "B" is defined as the "burden of precaution," which in this case would be the $200 cost of the saw guard. "P" is defined as the probability of accident occurrence in the absence of precaution, which we are told is 1%. And "L" is the expected cost of the accident, if it were to occur, or $10,000. Here's the math: B = $200 P = .01 L = $10,000 PL = (.01)($10,000) = $100 B is not less than PL, so the conclusion is that Acme may reasonably omit the guard.

Marylou tripped on an elevated public platform and fell over the 28-inch high safety rail. Numerous fact and expert witnesses testified that safety rails on public platforms are customarily built 36 inches in height. A court instructs the jury as follows: If you find that the defendant violated construction industry custom, you may find the defendant breached its standard of care. If you find the defendant breached its standard of care to the plaintiff, you must find the defendant liable for the plaintiff's damages. This instruction is: A (A) Correct B (B) Incorrect

B (incorrect) is right. This instruction incorrectly states that a finding of breach is equivalent to liability on the overall claim for negligence; however, a jury must still find that the negligence caused the plaintiff's injury (and that there were no applicable affirmative defenses) before the defendant will be held liable.

Bonus Question! Widget Co. manufactures the SuperWidget. Widget Co. estimates that every SuperWidget it sells carries a 12% risk of an accident at some point in its useful life. The expected injury cost is $10,000 per accident. Widget Co. can install a safety switch at a cost of $100 per machine and reduce the risk to 2%. If reasonable care is determined by applying the Learned Hand formula, which of the following states both the correct outcome on the question of negligence and cites the most relevant cost comparison? A (A) Widget Co. should install the safety switch because $100 is less than $10,000. B (B) Widget Co. should install the safety switch because $100 is less than $1,000. C (C) Widget Co. should install the safety switch because $100 is less than $1,200. D (D) Widget Co. may reasonably omit installation of the safety switch because $200 is not less than $1,200.

B is correct. To apply the Hand formula, we plug in the relevant values and test whether B (the cost of precaution) is less than P (the probability of accident without the precaution) times L (the expected cost of the loss, if it were to occur). This question is challenging because it is unclear what value we should use for P. The burden of precaution, B, is obviously $100, and L is $10,000. But what is P? We are given two probabilities: 12% or 2%. P is nominally defined as the probability of loss in the absence of precaution; but notice that in order for the Hand formula to do its economic magic, P strictly speaking must be set to the probability of loss that is attributable to the defendant's failure to take the precaution at issue. Otherwise, we would be inflating the PL side of the ledger by adding in background or "residual" costs that would be incurred no matter what the defendant did. To factor out this background risk of loss, we must subtract this residual risk of loss that would remain even if the precaution were implemented, here 2%, from the risk of loss in the absence of it, here 12%. So, with that adjustment, here's the math: B = $100 P = .12 - .02 = .10 L = $10,000 PL = (.10)($10,000) = $1,000 Thus, the Hand formula says that the safety switch should be installed, because B, the burden of precaution is $100, and that is less than PL, which is $1,000.

Which of the following statements about the requirement of proximate cause is false? A (A) A negligent act cannot be a proximate cause of a plaintiff's harm unless that act was also an actual cause of that harm. B (B) A negligent act cannot be a proximate cause of a plaintiff's harm if the negligent or intentional act of a third party was also an actual or proximate cause of that same harm. C (C) The requirement of proximate cause generally limits a negligent tortfeasor's liability to harms that result from the risks that made the actor's conduct tortious. D (D) A negligent act that causes a foreseeable injury in an unforeseeable way may nevertheless be found to be a proximate cause of that injury.

B is false. An injury can have multiple proximate causes, and a tortfeasor's negligent act can be a proximate cause of an injury even if the negligent or intentional acts of others are also proximate causes of that same injury. There are several examples of such scenarios in the Practice Perfect review of superseding causation. A is true, because the proximate causes of an injury are a subset of its actual causes. C is simply a statement of the risk rule test of proximate causation, and D is also a well-established doctrine.

Bibba, a city inspector, was visiting the construction site of an eight-story office building. The steel structure of the building had been erected, and the floors put down, but no rooms or dividers had yet been installed on the upper floors. Specialty Fire Coating Company was working on the sixth floor, putting fireproofing sealer on the floor. ABC Construction Company, the general contractor on the job, was supposed to string yellow caution tape around the exterior edge of each level, two feet above the floor, to warn workers to keep away from the edge and not leave heavy objects there. However, ABC had yet to do so on the sixth floor. While preparing to apply the sealer, a Specialty employee knocked a five-hundred-pound barrel of seal coating off of a hand truck. It rolled rapidly to the outer edge of the floor and fell on Bibba below. If Bibba sues ABC construction for negligence in failing to put up the caution tape, ABC will likely A (A) not be liable, because injury to Bibba down below was unforeseeable. B (B) not be liable, because its negligence was not the actual cause of Bibba's injury. C (C) be liable, because the ordinary reasonable construction company would have installed the caution tape and ABC did not. D (D) not be liable, because the Specialty employee's negligence was an actual cause of Bibba's injury.

B is the best answer here. Bibba will very likely be able to prove that ABC was negligent for failing to put up the required caution tape. (This is especially likely if state law required the tape to be in place, but probably also if it was just good practice to use the tape.) But ABC will not be held liable just because it failed to act like a reasonable contractor under the circumstances. That evidence establishes Element #2—failure to exercise due care—but there are other elements to the tort of negligence, and one is that the defendant's negligence caused the plaintiff's injury. In this case it is exceedingly unlikely that a delicate string of tape along the edge would have prevented a five-hundred-pound barrel from rolling off the edge. More likely it would have just rolled under the tape or broken it. If history would not have been any different had ABC exercised due care, then its negligence did not cause the injury—it would have happened whether or not ABC was negligent.

Weaver was a tenant in a rooming house owned by Genda. His room was in the middle of a long hall on the third floor. State law required rooming houses to have an emergency staircase outside the window, but Genda had not provided one. The rooming house caught fire, due to negligence of another tenant who fell asleep smoking in bed. The fire did not waken Weaver, who died of smoke inhalation in his bed. His family sued Genda for wrongful death, alleging that Genda was negligent for failing to provide an emergency staircase outside the window. Genda will probably A (A) be liable for wrongful death of Weaver because he was negligent for failing to provide the emergency staircase. B (B) not be liable for wrongful death of Weaver, because the lack of a staircase was not an actual cause of Weaver's death. C (C) be liable for wrongful death of Weaver because he is a joint tortfeasor with the tenant who caused the fire. D (D) not be liable for wrongful death of Weaver, because Weaver would not have died "but for" the negligence of the other tenant

B is the best answer here. Even though Genda was negligent for failure to provide the emergency staircase, the facts strongly suggest that his negligence did not lead to Weaver's death. Because Weaver died in his bed, the lack of a staircase is not a "but for" cause of his death. It appears that Weaver never tried to escape, so the lack of a staircase made no difference to the outcome. We don't hold defendants liable solely because they are negligent (as A suggests); we hold them liable when their negligence causes harm.

William was walking on a city sidewalk while texting on his smartphone. Completely distracted by his phone, he proceeded into a crosswalk directly into the path of traffic that had a green light. An oncoming car swerved into the bicycle lane to avoid William, forcing an approaching bicyclist to steer onto the adjacent sidewalk. The bicyclist collided with Greta, who was carrying an expensive antique vase that she had just purchased. Greta dropped the vase, and it shattered. In an action by Greta against William to recover the value of her vase, William will probably: A (A) not be liable, because the exact sequence of events that resulted in the destruction of Greta's vase was not foreseeable. B (B) be liable, even though the exact sequence of events that resulted in the destruction of Greta's vase was not foreseeable. C (C) not be liable, because William's negligence was not the actual cause of Greta's damages. D (D) be liable because a tortfeasor takes the plaintiff as he finds him.

B is the best answer. While the exact sequence of events that resulted in Greta's damages was unforeseeable, one of the clear risks created by William's walking into a crosswalk without paying attention was that oncoming traffic might be forced to take evasive action, causing personal injuries and property damage not only to William but to others in the immediate vicinity. The destruction of Greta's vase may have happened in a series of unfortunate events, but it is well settled that a negligent act will generally be regarded as a proximate cause of a foreseeable harm, even if the harm resulted in an unforeseeable manner. C is wrong because William's negligence was an actual cause of Greta's damages. D is off the mark because that aphorism has no application to the facts here. The proper understanding of "the defendant takes the plaintiff as he finds him" is that if the actor is liable to the injured party, then the actor must ordinarily compensate that party for the full extent of their actual injuries. But proximate cause asks the antecedent question of whether the actor is liable at all.

Rohan decided to prepare a pot of chili for dinner. He cooked up some onions and ground beef, then added a jar of diced tomatoes and a can of CanCo black beans. When the chili was ready, he spooned it from his pot into a bowl and dug in. As he was enjoying his meal, he bit into a small shard of metal, injuring the inside of his mouth. Rohan sued CanCo, alleging negligence. Should Rohan be permitted to invoke res ipsa loquitur? A (A) No, because CanCo did not have control of Rohan's can of beans at the time of his injury. B (B) No, because sources of the metal shard other than CanCo's product have not been sufficiently eliminated. C (C) Yes, because shards of metal are not ordinarily found in canned food in the absence of negligence, and Rohan used CanCo's canned food for his chili. D (D) Yes, because shards of metal are not ordinarily found in canned food in the absence of negligence, and it is CanCo's burden to produce evidence showing that it was not responsible for the metal shard in Rohan's chili.

B is the best choice here. While it is true that shards of metal are not ordinarily found in packaged food in the absence of negligence, there is not enough information in the facts for us to say that this negligence can probably be attributed to CanCo. It seems just as likely that the metal shard came from the beef or the tomatoes; or it might even have been the result of a faulty can opener. Answer A incorrectly explains why res ipsa fails. CanCo did have control over the can of beans at the time any metal shards could have fallen in; the problem is that we cannot sufficiently eliminate other sources. As for D, courts in some jurisdictions might say that a burden of production does shift to the defendant once the foundation for res ipsa is established, but D would be incorrect even in such a jurisdiction, because that foundation has not been established here.

By court order, Boris, known to be violent when experiencing psychotic episodes, was involuntarily confined to the McCloud Psychiatric Hospital. Due to woeful understaffing and lax security, Boris wandered away from hospital grounds while suffering a psychotic episode. He attacked Natasha, a stranger, who happened to be out for a walk nearby. In a negligence action by Natasha against McCloud to recover for her injuries, Natasha will probably A (A) lose, because McCloud did not owe Natasha a duty of care. B (B) prevail, because Boris was in the custody of McCloud. C (C) prevail, but only if McCloud had a special relationship to Natasha. D (D) lose, because Natasha was not a foreseeable plaintiff.

B is the best option. McCloud and Boris stand in the relationship of custodian to person in custody. McCloud therefore has an affirmative duty to "protect" third parties from risks of harm created by Boris - especially when those risks are the reason for the custodial rela-tionship. C is mistaken because McCloud's relationship with Boris is what gives rise to the hospital's duty to prevent Boris from harming others; a relationship with the victim is not necessary. D is off base because the concept of a foreseeable plaintiff generally does not play a useful role in the determination of duty under the modern approach of the Third Restatement. Besides, D is simply false. People walking near the hospital are surely foreseeable victims in situations where a dangerous patient is permitted to leave the hospital grounds without supervision.

Frank, a piano mover, was hoisting a piano up to a sixth-floor apartment in the city. Because he was running late for this job, he negligently failed to inspect the system of ropes that he relied on to pull the piano up. After the piano had been raised high above the ground, some of the ropes that were holding it up came untied, and the piano slipped free from its harness. As this was happening, Cheryl came by on her bicycle, riding in the designated bike lane. However, Didi had negligently blocked the bike lane with her illegally parked van, forcing Cheryl to dismount and walk her bicycle onto the sidewalk to get by. At that moment, the piano came crashing down onto Cheryl, causing severe injuries. In an action by Cheryl against Frank and Didi to recover for her injuries, A (A) Frank and Didi will probably both be liable. B (B) Frank will probably be liable, but Didi will not. C (C) Didi will probably be liable, but Frank will not. D (D) Neither Frank nor Didi will be liable.

B is the most likely outcome. Frank's negligence is both an actual and proximate cause of Cheryl's injuries: she would not have been injured but for Frank's failure to secure the piano properly, and a person being crushed is certainly a risk that was foreseeably created by that failure. As for Didi, her negligent obstruction of the bike lane with her parked car is an actual cause of Cheryl's injury, because Cheryl would not have been on the sidewalk where the piano landed if the bike lane had been passable. Proximate cause in the case against Didi, however, is doubtful. The risks foreseeably created by blocking a bike lane might include a bicyclist crashing into the obstruction, a bicyclist being forced to ride into the roadway and getting hit by a car, or a bicyclist riding onto the sidewalk and getting into an accident with a pedestrian, etc. But Cheryl's harm resulted from a heavy falling object, which seems a different kind of risk altogether. The risk of being crushed by a heavy falling object while walking a bicycle onto the sidewalk was outside the scope of risks created by Didi's obstruction of the bike lane. Cheryl will therefore not be able to establish the element of proximate cause in her action against Didi.

Porter injured his hand while operating a "punch press," a machine designed to punch holes in sheet metal. Operation of the press required a user to manually insert the material to be punched into the machine and then depress a switch at the base of the machine with his foot. Porter's injury occurred when he accidentally depressed the foot switch while his hand was inside the press. He sued the manufacturer of the machine, Acme, for negligence. Porter's argument was that Acme should have implemented a safety mechanism that would have made it impossible to activate the press while an operator's hand was inside. The evidence showed that the average cost of a punch press accident was $10,000 per occurrence, and that there was a 25% probability that a punch press without a safety device would cause an accident at some point during its expected useful life. Evidence from Acme established that the cost of installing a safety device that would prevent such accidents would be $2,000 per machine. According to application of the Hand Formula, which of the following states both the correct outcome on the question of negligence and cites the most relevant cost comparison? Acme's failure to implement a safety device in the punch press machine was A (A) negligent, because $2,000 is less than $10,000. B (B) negligent, because $2,000 is less than $2,500. C (C) not negligent, because $2,500 is greater than $2,000. D (D) not negligent, because $10,000 is greater than $2500.

B states the numerical comparison that results from applying the B B = $2,000 P = .25 L = $10,000 PL = (.25)($10,000) = $2,500 Thus, according to the B negligent in failing to install the safety device, because B ($2,000) is less than PL ($2,500).

Keisha was an expert skier. Because she had been skiing for twenty-five years, she understood the risks of skiing considerably better than most skiers. One day she was skiing on an expert trail and noticed a sheen on the snow that indicated a dangerous risk of losing control. An "ordinary reasonable skier" would never have noticed this subtle danger, but Keisha, because of her unusual expertise, did. However, she proceeded down the trail anyway, lost control and ran into Bradley, injuring him. On these facts Keisha would likely A (A) not be found to have violated the standard of due care, because the ordinary reasonable skier would not have recognized the risk of losing control at this point in the trail. B (B) be found to have violated the standard of due care whether she saw the dangerous condition or not. C (C) be liable to Bradley, because she had a duty to act reasonably in light of her superior understanding of the risk, even if most skiers would not recognize that risk. D (D) be negligent for ignoring the risk, but not liable because the icy section of trail was a superseding cause

C accurately reflects negligence law. A does not. Keisha owes a duty of ordinary care to other skiers on the slopes, which requires that she exercise reasonable care under the circumstances. One of the circumstances is her expert knowledge of the peculiar risk posed by the icy slope. Even if the ordinary reasonable skier would not recognize this risk, Keisha does recognize it, and should take that fact into account in making her decision. B is wrong. If Keisha never saw (and should not reasonably have seen) the sheen on the slope, her knowledge of the risk would not come into play. A is wrong, because C is right: Keisha owes a duty to use the superior knowledge that she actually has about the risks of her conduct. D is also wrong: if Keisha saw and appreciated the risk of the icy slope, the resulting accident would be foreseeable.

Jack, a MotorBikeDelivery employee, was making a delivery on his motorcycle when he drove over a live electrical wire on Amy's property and was killed. Dr. Jones, the coroner, determined that Jack was electrocuted to death when the bike ran over the wire. Dr. Spock, Amy's medical expert, testified that in his opinion, Jack was alive when his bike contacted the wire, and Jack's death was caused when Jack's head hit the ground upon falling from his bike. Which of the following evidence would be relevant to whether Jack was acting negligently: A (A) Dr. Jones testifying that Jack's death was caused by electrocution. B (B) Dr. Spock testifying that Jack's death was caused by Jack's head hitting the ground. C (C) Witness Sara who testifies that Jack was not wearing a helmet at the time of the accident. D (D) All of the above.

C is correct and is the only response that relates to whether Jack reasonably acted. While expert witnesses can testify, and even offer contradictory opinions as Dr. Jones and Dr. Spock do, answers A and B relate to whether the negligence caused the injury, not about the negligence itself.

Richard sees Carla, a blind woman, waiting to cross the street. The audible crosswalk signal was not working. Richard saw no cars coming. "The street is clear. It's safe to cross," he told her. Just then, a car came out of a hidden alley and sped around the corner toward Carla. Does Richard have a duty to warn Carla or take other reasonable measures to help her avoid being hit by the oncoming car? A (A) No, because Richard and Carla were not in a legal "special relationship," and the law does not impose an affirmative duty on a stranger to come to the assistance of another. B (B) No, because a stranger who gives voluntary aid may choose to discontinue it at any time. C (C) Yes, because Richard was a cause of Carla's peril. D (D) Yes, but only if Richard was negligent in telling Carla it was safe to cross the street.

C is correct. Carla's peril resulted from a risk of harm created by Richard's act of assuring her that it was safe to cross the street. Under the "prior conduct" rule, Richard has a duty to exercise reasonable care to prevent or minimize the harm. D is wrong because this duty arises even if the prior conduct was not tortious. A is incorrect because the prior conduct rule imposes a duty on Richard, even though he is not specially related to Carla. B is inapplicable. Although the law does generally permit voluntary rescuers to discontinue aid if they do so without worsening the imperiled person's position, that rule pertains to cases in which the actor undertakes to save the victim from a risk of harm created by another, not the actor himself.

Herman was crossing the street when Joyce, driving too fast and not watching the road, hit him. As Herman lay in the road, Bob came along on his bicycle, also riding too fast and not paying attention. Bob ran over Herman, worsening his injuries. Herman sues Bob and Joyce, asserting negligence. At trial, the evidence showed that Herman's impact with Joyce's car caused several rib fractures, and that he suffered a punctured lung when Bob rode over him. However, Bob proves that his conduct would only have caused minor injuries to Herman's torso if his ribs had not already been broken by Joyce. If these are the jury's findings, then A (A) Joyce will be liable for the full extent of Herman's injuries, but Bob's liability will be limited to the injuries he would have caused if Joyce had not struck Herman first. B (B) Joyce will be liable only for Herman's broken ribs, and Bob will be liable only for Herman's punctured lung. C (C) Both Joyce and Bob will be liable for Herman's punctured lung. D (D) Joyce will be liable for the full extent of Herman's injuries, but Bob will not be liable at all.

C is correct. Joyce's negligent driving was clearly an actual and proximate cause of Herman's injuries, so she will be liable for all Bob's damages. Bob's proof that his own negligent conduct would only have caused minor injuries if Joyce had not already hit Herman does not provide a basis for reducing Bob's liability. Because a physical injury of the type that Herman suffered is a foreseeable risk of Bob's negligence, Bob is liable for the injury he actually caused, even if it was more severe than would have been expected in the absence of the pre-existing rib fractures. This is a straightforward application of the eggshell skull or thin skull rule.

On a family trip to an amusement park, Ginger decided after much coaxing by her children and husband to ride the park's newest and scariest towering, looping roller coaster. After the ride ended, Ginger agreed that it was quite a thrill but reported feeling a little queasy. It was nearing the end of the day, so the family decided to leave the park and go back home. In the car on the way home, Ginger began to feel tightness and pain in her back, which worsened considerably overnight. It was subsequently discovered that she had suffered a sprain of her lower back, causing her to miss over a month of work. Ginger sued the amusement park for negligence, claiming that its new roller coaster had negligently caused her injury. Does Ginger have a good basis for asserting res ipsa loquitur? A (A) Yes. Because Ginger and her family left the park right after riding the new roller coaster and Ginger began feeling pain on the way home, any causes of her back injury other than the amusement park are sufficiently eliminated. B (B) Yes, if Ginger can produce expert testimony linking her injury to the roller coaster ride. C (C) No, because the first foundational element of res ipsa is not satisfied. D (D) No, because Ginger's back sprain may have been caused by a pre-existing condition.

C is correct. Res ipsa does not apply here, because it cannot be said that injuries like Ginger's would not be expected to happen in the absence of negligence. Indeed, such injuries are likely an inherent risk of riding roller coasters that feature the sudden acceleration, twists and loops that make them thrilling and scary in the first place. Answer A is incorrect because while the proximity in time between the roller coaster ride and the onset of Ginger's pain may support causation, a likelihood of negligence (the first foundational element) must be present in order for res ipsa to apply. There is no apparent negligence here. Answers B is wrong for a similar reason. Expert testimony about the cause of Ginger's injury would not address the problem identified in answer C. Likewise, the issue of a preexisting condition is relevant to causation, but it misses the main problem with res ipsa here. D is therefore not the best answer.

Marylou tripped on an elevated public platform and fell over the 28-inch high safety rail. If Marylou sues the platform owner for negligence and the platform owner counterclaims for contributory negligence, which of the following evidence cannot be used to support or disprove negligence? A (A) The platform owner introduces a fact witness who testifies that he saw Marylou texting at the time she fell. B (B) Marylou introduces Dr. Brown, an expert who testifies that it is customary to place safety rails at a height of 36 inches. C (C) The platform owner introduces Dr. Smith, an expert who testifies that safety rails are customarily made of steel, yet this guard rail was in fact made of inferior strength wood. D (D) The platform owner introduces Dr. Jones, an expert who testifies that around 50% of public walkways have 28-inch high safety rails.

C is correct. Testimony about the type or strength of materials customarily used to create safety rails is not relevant to this particular allegation of negligence: the failure to have a safety rail of sufficient height. Both B and D relate to the customary height of the safety rails and can be introduced as evidence to prove or disprove breach, even if the experts' opinions conflict. A fact witness may also introduce evidence of the plaintiff's contributory negligence, like the evidence in choice A.

Due to the negligence of Zoe, a zookeeper, a wild baboon escaped from the zoo and found its way onto Main Street. Trent, a passerby, stepped into the street to check on the animal, which had apparently been injured. Chandra approached the scene in her car, but she was texting while driving and failed to notice Trent and the animal until it was too late. She was unable to stop in time and hit Trent, breaking his leg. Trent was taken to the hospital. The next day, Trent suffered an eye injury when he was attacked by a visitor to the hospital who suffered a sudden psychotic break. In an action by Trent against Chandra, Chandra will probably A (A) be liable for Trent's leg and eye injury because she was the actual cause of both. B (B) not be liable for either injury, because Zoe's negligence was a superseding cause. C (C) be liable for Trent's leg injury but not his eye injury. D (D) not be liable for either of Trent's injuries, because it was unforeseeable that a person would be tending to a baboon in the middle of Main Street.

C is correct. When a plaintiff's injuries are divisible and caused by separate tortfeasors, each injury may have different actual and proximate causes. Here, Chandra's negligence was an actual cause of Trent's leg and eye injuries: neither would have happened but for her careless driving. But only Trent's leg injury was within the scope of risks that made her conduct tortious. The possibility of being attacked by a psychotic person while hospitalized is surely outside that scope. Chandra's negligence was therefore a proximate cause of Trent's leg injury, but not his eye injury; she will probably be liable for the former but not the latter. So, A is incorrect. D should also be rejected. Chandra's inattentive driving was negligent because it created a risk that she would cause harm to anyone or anything in the roadway, regardless of the reason why they might have been there. Trent's harm resulted from precisely that risk. Finally, B is wrong. Zoe was also an actual cause of Trent's injuries and a proximate cause of his leg injury, too, but her negligence was not a superseding cause. For further discussion of this point, you should consult the Practice Perfect review of superseding causation.

Vega was driving down Main Street. His cell phone rang and he was distracted by looking at it as he approached the intersection with Maple Street. Newman wanted to cross Main Street at the corner of Maple Street. The "WALK" sign lit up for him and Newman started out from the sidewalk to cross. Vega looked up from his phone, saw Newman in front of him, but couldn't stop in time and hit Newman. Newman was taken to the hospital with a broken leg, where the leg was mis-set by Dr. Kildare. As a result, the leg had to be re-set, a painful operation. If Newman sues Vega and Kildare A (A) Vega will be liable for the initial injury to Newman's leg only and Kildare will be liable for the additional injury because he caused that injury. B (B) Both defendants will be liable to Newman for all of his injuries, because they are both "but for" causes of his injury. C (C) Vega will likely be liable to Newman for Newman's initial leg injury and for the additional injuries from having the leg re-set, because he is the "but for" cause of both injuries. D (D) Vega will be solely liable for Newman's injury, because neither of Newman's injuries would have happened "but for" Vega running into Newman.

C is the best choice here. In this case, Vega was the "but for" cause of the original injury to Newman's leg, and also of the additional damage from having to re-set the leg. Thus, A is wrong: If Vega had not run into him, Newman would not have a broken leg, and it would not have had to be re-set. Take away Vega's negligence, and neither of these consequences ensues. So Vega's negligent act is the actual cause of both consequences. B is clearly wrong: Dr. Kildare had no part in causing Newman's initial injury, so he is not a cause of that. He is the actual cause of the additional damages suffered due to the mis-setting of his leg—but for him doing it wrong the first time it would not have had to be done again. He is liable for that but not for the initial break. D fails because, as to the additional damage from mis-setting the leg, Vega and Kildare are joint tortfeasors; they are both but for causes of that additional injury.

While skiing separately down a busy trail, Laverne and Wilbur came to a ledge overhanging another section of the slope. They simultaneously launched themselves over the ledge without stopping to see if the area below was clear. Unfortunately, Simon was standing where Laverne and Wilbur landed. One of their ski poles struck Simon's shoulder, causing a single discrete wound. Simon sued Laverne and Wilbur to recover for his injury. In a jurisdiction that follows Summers v. Tice, if Simon establishes that either Laverne or Wilbur must have caused his injury, but there was no evidence to prove which one actually did, A (A) Simon will lose, because he has the burden of proving that at least one individual defendant was more likely than not the actual cause of his damages. B (B) each defendant will be severally liable for 50% of Simon's damages. C (C) Laverne and Wilbur will be jointly and severally liable to Simon for his injury unless one of them can disprove his or her own responsibility. D (D) either Laverne or Wilbur will be liable, but not both, because only one of them was an actual cause of Simon's damages.

C is the best choice. This is a close copy of the fact pattern of Summers v. Tice. There, as here, the plaintiff can establish that one of two negligent actors must have caused the plaintiff's harm, but it was not possible to determine which. In such a case, the rule of Summers is that the burden shifts to the defendants to disprove actual causation, and if they cannot, they are held jointly and severally liable. A, B, and D should all be rejected because they are incorrect statements of the outcome if Summers v. Tice is applied.

Scott is dining alone in Angelo's Bar and Grill when he clutches at his chest and tells a waiter that he is having a heart attack. The waiter tells Angelo, but Angelo ignores Scott's distress. Ten minutes later, another diner notices Scott slumped over at his table and calls an ambulance. Scott survives but his heart is permanently damaged. Scott sues Angelo, alleging that Angelo was negligent in failing to call for help as soon as he learned of Scott's distress. Which element or elements of Scott's negligence claim can Angelo plausibly argue are not satisfied, and why? A (A) Duty, because Angelo owed Scott no duty of care. B (B) Breach of duty (negligence), because the jurisdiction's Good Samaritan statute will likely require Scott to prove gross negligence in order to recover. C (C) Causation, because if Angelo can show that Scott would have suffered permanent heart damage even if an ambulance had been called immediately, Angelo's delay was not a cause of Scott's harm. D (D) Angelo cannot plausibly argue that any of the elements of negligence are not satisfied.

C is the best pick. Cases like this one tend to focus on whether the defendant had a duty to the plaintiff, but don't forget that once duty is established, the plaintiff must still prove that the duty was breached, and that this breach caused the plaintiff's harm. Here, causation is at least potentially problematic, because Scott may have suffered the damage to his heart from the original attack, not from the delay in treatment. A is erroneous because Angelo and Scott are in the special relationship of business to patron on the premises. B is incorrect because Scott's claim here is not that Angelo rendered negligent aid; it is that Angelo failed to do anything at all.

Which of the following statements is most accurate: A (A) The Learned Hand formula is a legal tool that the plaintiff can use to prove unreasonable behavior by the defendant. B (B) The Learned Hand formula is a legal tool that the defendant can use to prove unreasonable behavior by the plaintiff. C (C) Both A and B are correct. D (D) Neither A nor B are correct.

C is the clear winner here. The Hand formula may be used by a plaintiff in a claim for negligence, or by the defendant in a counter or cross-claim for negligence.

The town of Coopersville wants to build a little league baseball field and has two possible locations in mind. One location would be very secluded but would require some expensive tree cutting and excavation. The other location would be far less expensive but would be adjacent to a moderately busy road. If this second location were chosen, the town could position the field such that a batted baseball would have to travel 500 feet on the fly in order to present a danger to traffic, which is farther than most professional players can hit a baseball. Louis, the town manager, consults Marsha, a lawyer, for advice. Louis asks Marsha whether the town is required to choose the more expensive, secluded location, since doing so would eliminate any risk of a ball landing in the road. Which of the following answers to Louis's question would be legally accurate? (A) The town is required to choose the more secluded location, because the cost of eliminating a known risk of injury is not relevant to the determination of whether an actor has a duty to do so. B (B) The town is required to choose the more secluded location as long as there is a risk, no matter how small, that a batted baseball at the busier location could travel 500 feet and land in the road. C (C) The town may choose the busier location if it positions the field and takes other precautions that would lead a reasonable person to conclude that baseball games conducted at that location would not pose an unreasonable risk for drivers on the adjacent road. D (D) The town may choose the busier location if it positions the field and takes other precautions that would lead a reasonable person to conclude that baseball games conducted at that location would not be unsafe for drivers on the adjacent road; but the town assumes the risk of, and will be liable for, any injuries resulting from a ball landing in the road.

C is the most accurate response. If, taking all relevant considerations into account, a reasonable person would conclude that it would be safe to locate the little league field next to the road, then it would not be negligent for the town to do so, and the town will not be liable if a little leaguer later does manage to hit a once-in-a-lifetime home run that lands in the roadway and causes an accident. D is wrong because it implies that the town will be liable even if it exercises reasonable care, but this is not possible, since an injured plaintiff must prove a breach of duty to recover in a negligence action. A is false: cost is in fact relevant to the reasonableness of an available precaution. (This is one of the takeaways of U.S. v. Carroll Towing and the Hand Formula. See the separate Practice Perfect review of that topic.) B is mistaken because it overstates the duty of due care. The law of negligence requires actors to take reasonable care to avoid injuring others, not to eliminate all risks of injury no matter what the cost.

Jenny, age thirteen, was driving an all-terrain vehicle with Rashad riding on the back. An inexperienced rider, she went too fast over a large bump in the trail and threw Rashad off, injuring him. Rashad's lawyer, Darrow, knows that courts have used different formulations of the standard of care for children. Which of the standards of care below would be both legally supportable and most favorable to Rashad's case? A (A) A standard that compares Jenny's conduct to that of a child of like age, experience, maturity and intelligence. B (B) The adult standard of care, because Jenny was engaging in an activity generally engaged in only by adults. C (C) The adult standard of care, because Jenny was engaging in an inherently dangerous activity. D (D) A standard that compares Jenny's conduct to that of a child of thirteen years of age.

C is the most legally supportable standard for Rashad's case and has been adopted in some states. A is a typical standard of care applied to children, but it is not the one that Darrow would argue for, as it would have the jury compare Jenny to other inexperienced all-terrain vehicle drivers of a similar age—not a very strict standard for Jenny. D is also a child standard, and not very helpful to Rashad. B is doubtful, because in many parts of the country riding ATV's is not a solely adult activity . . . witness the fact that Jenny is doing it at thirteen! C is the most favorable standard of care for Rashad. It would require Jenny to live up to the adult standard of care of the ordinary reasonable all-terrain vehicle driver, because driving an ATV is an activity that imposes substantial risks of injury. A number of courts have accepted this argument for children driving cars, boats or snowmobiles, so Darrow has a reasonable argument that the court should also apply it to an ATV.

Dr. Bertrand, unable to find a parking space and in a hurry to see a patient, double parked in violation of state law and left her car running. Jack came out, found his car blocked by Bertrand's, and got in Bertrand's car to move it forward. Jack put the car in reverse by mistake and suffered a neck sprain when the car lurched backwards and he jammed on the brake. In an action by Jack against Bertrand, Bertrand's violation of the double-parking statute will probably: A (A) establish her negligence. B (B) establish her negligence, if the jury concludes that her visit to the patient is not an adequate excuse. C (C) not establish her negligence, because the statute was not aimed at the type of harm suffered by Jack. D (D) not establish her negligence, because stopping to see a patient is reasonable conduct.

C is the strongest answer. The likely purpose of the double-parking ban is to facilitate the flow of traffic, not to prevent whiplash accidents like the one Jack suffered when he decided to move Bertrand's car. If we ask, "why would the legislature write this law?" it seems clear that it was to keep drivers from blocking travel lanes in the highway and leading to traffic jams.

Vega was driving down Main Street. His cell phone rang and he was distracted by looking at it as he approached the intersection with Maple Street. Newman was waiting to cross Main Street at the corner of Maple and Main Streets. The "WALK" sign lit up for him and Newman started out from the sidewalk to cross. Vega looked up from his phone, saw Newman in front of him at the last second, and swerved into the sidewalk, hitting and injuring Diller, who was looking in a store window at the time. A (A) Both Vega and Newman are actual causes of Diller's injuries and therefore will be liable to Diller. B (B) Only Vega is a cause of Diller's injury, so only he will be liable. C (C) Both Vega and Newman are actual causes of Diller's injuries, but Newman will probably not be liable to Diller. D (D) Vega is a negligent cause of Diller's injury, but will not be liable to Diller if Newman could have avoided the accident.

C prevails. Of course, both Vega and Newman are causes of Diller's injury, in the actual cause sense of the term. If Vega hadn't been driving down Main Street, he wouldn't have swerved into Diller. If Newman had not been crossing Main Street, Vega would not have swerved to avoid him and run up on the sidewalk. So "but for" Vega's conduct and Newman's conduct, the accident would not have happened.

Judge Fudd presides over a negligence trial in which a central issue is whether the defendant owed the plaintiff a duty of care. At the conclusion of the trial Judge Fudd instructs the jury, "if you find that the defendant had a special relationship to the plaintiff, then you should find that he owed the plaintiff a duty of care in this case." Judge Fudd's instruction A (A) is proper, as long as there is enough evidence for the jury to find a special relationship. B (B) is proper, as long as the question of whether the defendant owed the plaintiff a duty is a genuine issue in the case. C (C) is improper. D (D) may be proper or improper, but this cannot be determined without additional context.

C prevails. The jury is not the right decision maker on whether a duty of care exists; Judge Fudd is. If he concludes that there is a special relationship, he should instruct the jury that the defendant owed a duty of care. If he concludes that there is no special relationship (and no other basis for a duty of care) he should dismiss the case.

While skiing separately down a busy trail, Laverne and Wilbur came to a ledge overhanging another section of the slope. They simultaneously launched themselves over the ledge without stopping to see if the area below was clear. Unfortunately, Simon was standing where Laverne and Wilbur landed. One of their ski poles struck Simon's shoulder, causing a single discrete wound. Video footage provided by Simon's friend, who happened to be recording Simon at the time, clearly established that it was Wilbur's pole that struck Simon's shoulder, and that Laverne did not contact Simon at all. If Simon sues both Laverne and Wilbur for his injury in a jurisdiction that follows Summers v. Tice, A (A) Laverne and Wilbur will both be liable because they were both actual causes of his injury. B (B) Laverne and Wilbur will both be liable to Simon, because they committed identical actions that were equally negligent and equally likely to result in harm. C (C) only Wilbur will be liable. D (D) Laverne and Wilbur will both be liable, but Wilbur's share of liability will likely be greater than Laverne's, since she did not actually hit Simon.

C takes the prize. B is mistaken. The facts bear a superficial resemblance to Summers v. Tice, but the very important difference is that in this case, there is no question that Wilbur's pole was the one that caused Simon's harm. That Laverne and Wilbur committed identical negligent acts only satisfies one of the conditions for Summers to be applicable. Another is that the evidence must show that one of the negligent actors must have actually caused the plaintiff's harm, but it is not possible to determine which one did so. That is not the case here, so Summers is inapplicable. A is wrong because Wilbur was clearly an actual cause, and Laverne was not. D is erroneous because the legal consequence of Laverne not hitting Simon's shoulder is that Laverne will not be liable, not that her liability will be reduced.

A plaintiff in a personal injury case introduced evidence showing that his injury was caused by a type of accident that would not happen without negligence, and that the negligence, if there was any, was probably the defendant's. Which of the following would be the correct instruction for the judge to give to the jury on the effect of res ipsa loquitur in most jurisdictions? A (A) "If you find that the plaintiff has established by a preponderance of the evidence that the accident plaintiff suffered was the type of accident that would not happen without negligence, and that the negligence, if there was any, was probably the defendant's, then you may infer from those facts that the defendant was negligent." B (B) "If you find that the plaintiff has established by a preponderance of the evidence that the accident plaintiff suffered was the type of accident that would not happen without negligence, and that the negligence, if there was any, was probably the defendant's, then you should infer that the defendant was negligent." C (C) "If you find that the plaintiff has established by a preponderance of the evidence that the accident plaintiff suffered was the type of accident that would not happen without negligence, and that the negligence, if there was any, was probably the defendant's, then you must find for plaintiff, unless the defendant has shown by a preponderance of the evidence that he was not negligent." D (D) "If you find that the plaintiff has established by a preponderance of the evidence that the accident plaintiff suffered was the type of accident that would not happen without negligence, and that the negligence, if there was any, was probably the defendant's, then you should find the defendant liable for the plaintiff's injury."

Choice A would be the correct instruction in most jurisdictions. When the foundational facts of res ipsa loquitur are established, the result is that the jury is permitted to infer from those facts that the defendant was negligent. But the jury is also free to reject that inference and conclude that, despite the probability of negligence, the defendant was not actually negligent in this particular case. Thus, B is wrong. D is even more wrong than B, because it incorrectly states not only that the jury should find the defendant negligent, but liable. Even after a jury decides to make the res ipsa inference, it would still need to consider any affirmative defenses asserted by the defendant before coming to a decision on liability. C is also incorrect. In most jurisdictions, the application of res ipsa does not cause any burden to shift to the defendant. Courts in some jurisdictions will say that when res ipsa is applied, the defendant then has the burden of producing evidence to rebut the inference of negligence (a "burden of production"). Even then, the ultimate burden of proof (sometimes called the "burden of persuasion") would always remain with the plaintiff, and the ultimate question for the jury would still be whether the plaintiff has succeeded in proving negligence by a preponderance of the evidence, not whether the defendant has succeeded in proving non-negligence, as erroneously stated in C.

Weaver was a tenant in a rooming house owned by Genda. His room was in the middle of a long hall on the third floor. State law required rooming houses to have an emergency staircase outside the window, but Genda had not provided one. The rooming house caught fire because Weaver fell asleep smoking in bed. Weaver was found dead halfway down the hall between his room and the window at the end of the hall. The window was open. Weaver's family sued Genda for wrongful death, alleging that Genda was negligent for failing to provide an emergency staircase outside the window. On these facts a jury A (A) might reasonably conclude that Genda's negligence was a cause of Weaver's death. B (B) could not find that Genda's negligence was a cause of Weaver's death, because he did not die right inside the window. C (C) could not find Genda liable for Weaver's death, because Weaver's negligence was a "but for" cause of his own death. D (D) should find Genda liable for Weaver's death, because Genda violated an applicable statute requiring an emergency staircase.

Choose A here. Once again, the question is whether the jury could reasonably conclude that the absence of the staircase was a "but for" cause of Weaver's death. Given that the window was open, a jury might reasonably infer that Weaver had gone to the window, realized that there was no escape staircase, and ran back down the hall, where he was overcome by the smoke. That inference is not ironclad, but it is reasonable. B is weak, because it is quite possible, since the window was open, that Weaver had reached it, realized there was no escape, and turned to escape another way.

Valdalia, a city on the Mississippi River, has an elegant historic district subject to special statutory restrictions on outdoor uses. The statute bars coin-operated newspaper dispensers in the historic district. The Valdalia Sentinel, the local paper, places a dispenser on the sidewalk within the district. Marie, while alighting from a bus, trips as the bus jerks forward, falls from the bus and is cut when her face hits the corner of the dispenser. If Maria sues the Sentinel in a negligence per se jurisdiction, the violation will: A (A) not establish its negligence. B (B) not establish negligence, but may be introduced as evidence of negligence. C (C) create a presumption of negligence. D (D) establish the defendant's negligence unless it offers an acceptable excuse.

Choose A here. This statute was pretty clearly enacted to maintain the aesthetic beauty of the historic district, not to prevent injuries caused by persons falling into newspaper dispensers. If that were its purpose, why would the legislature make it applicable only in the historic district? The risk of injuries like Marie's would likely be the same all over the city. Because the statute was not aimed at the type of harm that Marie suffered, Marie cannot introduce it to establish negligence of the Sentinel.

Acme Construction Company was replacing gas mains in a public street. However, it had negligently failed to put a barrier in place to prevent cars from entering the work site. Hubbard, who suffered from epilepsy, failed to take his medication in the morning, had a seizure while driving and careened into the work site. His car hit Derdiarian, threw him into the air and he landed on a vat of hot enamel used to seal the gas mains, suffering severe burns. If Derdiarian sues Acme for his injuries, based on its failure to block the work site from traffic, he will: A (A) not recover, because it is unforeseeable that a driver suffering from epilepsy would forget to take medication and veer into the worksite, causing Derdiarian's freakish injuries from hot enamel. B (B) recover, because Acme's negligence was an actual cause of foreseeable injury to Derdiarian. C (C) not recover, because Acme's failure to barricade the work site was not an actual cause of the accident. D (D) not recover, because Hubbard's negligence was a superseding cause of his injury.

Choose B. This example is based on a case frequently found in Torts casebooks on superseding cause. Because the events themselves were so unusual, the construction company argued that the accident was unforeseeable, and the driver's seizure was a superseding cause of the accident. Its argument is reflected in choice A.

Effron was refinishing the floor in Perkins's barn, coating the floor with linseed oil. At the end of the first day of the work he left the rags he was using to apply the linseed oil in a pile in a corner of the barn. That night the barn burned down. The destruction was so complete that the fire marshal could not determine exactly where the fire started. If Perkins sues Effron for the damage to the barn A (A) he will lose, because a plaintiff cannot establish causation based on "post hoc, ego propter hoc"—the fact that the fire came after Effron worked in the barn does not establish that Effron's work caused it. B (B) he will recover because the interval between the work and the fire was short. C (C) he may recover if he finds an expert who testifies that, based on complex experiments she has performed, oil rags can ignite and cause a fire. D (D) he may recover if jurors, based on their general experience, could conclude that Effron should have known that oily rags can ignite and cause a fire.

Choose D. It is true that Perkins cannot establish causation based on the fact that the barn burned shortly after Effron worked in it. But there is more here that would support an inference of negligence by Effron. It is probably common knowledge that oily rags will ignite if left in a pile. The fact that Effron did that, and that the fire happened shortly after he did, should be enough to support a reasonable inference that the rags caused the fire. If the fire risk is common knowledge, the jury is in a position to reason to a conclusion that the rags ignited. Their conclusion would not be based solely on "this came after that, therefore that must have cause this." They would understand why the early act could lead to the later consequence, and it is this understanding that would support a finding of causation. The jury will have a basis on which to infer causation from their general understanding about the causes of fires.

Gerard, a police officer, lived next door to Jonny. Gerard knew that Jonny, a teenager, had an extensive history of getting into fights with other youths in the neighborhood. Nevertheless, Gerard found Jonny to be good company and often allowed him to come over his house to watch sporting events with him on his big-screen TV. One day, while Jonny and Gerard were watching a baseball game, Gerard fell asleep. Jonny went into Gerard's kitchen for a snack and noticed that Gerard had left his handgun on the counter. Jonny took the gun and used it to shoot another neighborhood teen, Vince, later that night. Vince suffered serious wounds but survived. If Vince sues Gerard for negligence, Vince will probably A (A) lose, because Jonny's criminal act constitutes a superseding cause of Vince's injuries. B (B) lose, because Gerard had no affirmative duty to protect Vince from being harmed by Jonny. C (C) win, because Jonny caused Vince's injuries, not Gerard. D (D) win, if it was unreasonable for Gerard to leave his gun in an unsecured state in light of the risk that Jonny might come to possess it.

Choose D. The particular circumstances are always relevant to the risks that an actor should foresee. Here, Jonny's past behavior suggests that Gerard should be careful not to leave a firearm where Jonny could reach it. Surely, that Odious Character, the Reasonable Person would not do so under these circumstances, because Jonny's use of the weapon is a significant risk. C fails here, because leaving the weapon where Jonny could grab it surely is a "but for" cause of Vince's injury.

Ricardo purchased a new house and hired John to help with his move. One of the last items to be unloaded from John's moving truck was a large box marked, "DANGER - EXPLOSIVES!!" Exhausted from a hard day's work, John lifted the box from inside the truck and carelessly threw it onto Ricardo's lawn. The box, which contained powerful fireworks, exploded upon hitting the ground. The concussive blast was so strong that it shattered the windows of the house next door. Its resident, Helen, was injured by flying shards of glass. Helen brought an action against John for negligence, and both parties agreed to a bench trial. On the issue of proximate cause, the judge should find that A (A) John's negligence was not a proximate cause of Helen's injuries, because she was physically situated in a location far removed. B (B) The issue of proximate cause is moot because John owed a duty of care only to Ricardo. C (C) Ricardo's negligence in allowing John to transport his explosives was a superseding cause of Helen's injuries. D (D) John's negligence was a proximate cause of Helen's injuries.

D is correct. This fact pattern is somewhat reminiscent of Palsgraf v. Long Island Railroad Co., in which a pair of train conductors negligently caused a passenger attempting to board a moving train to drop an unmarked bundle of explosives, indirectly causing injury to the plaintiff, who was standing some distance away. The very significant difference here, however, is that the explosive package tossed by John was clearly marked to warn of its dangerous contents. A reasonable person would know that explosives can cause damage to persons and property at a distance. Helen's injuries here resulted from the same risk (an explosion) that made it negligent for John to throw the box out of his truck. Answer choice A is therefore not a good pick. C is incorrect: Ricardo's negligence was an actual cause, to be sure, but not a superseding one. B is wrong because John created the risk that resulted in Helen's injury, so he cannot assert he lacked a duty of due care to her. Further discussion of the Palsgraf case, can be found in the Practice Perfect review of Proximate Cause: Eggshell Skulls, Rescuers, and Foreseeable Plaintiffs.

Bonus Question! Mary is injured when an intruder enters the motel where she is staying, knocks her unconscious in the hallway as she is about to enter her room, and takes her jewelry. Mary argues that the motel was negligent for failing to have a security guard at the unlocked entrance. The evidence showed a guard would have received a yearly salary of $30,000. With the security guard there was a 5% chance of intruder-related loss per year; without the security guard, there was a 15% chance of such loss; and each intruder-related incident carries an average loss of $100,000. If reasonable care is determined by applying the Learned Hand formula, which of the following states the correct outcome and cites the most relevant cost comparison? The motel should be found: A (A) to have breached a duty because $30,000 is less than $100,000. B (B) to have breached a duty, because 5% x $100,000 is less than 15% x $100,000. C (C) not to have breached a duty, because $30,00 is greater than $15,000. D (D) not to have breached a duty, because $30,000 is greater than $10,000.

D is correct. To apply the Hand formula, we plug in the relevant values and test whether B (the cost of precaution) is less than P (the probability of accident without the precaution) times L (the expected cost of the loss, if it were to occur). This question is challenging because we are given two probabilities, and it may be unclear which value we should plug in for P. The burden of precaution, B, is clearly $30,000 and L is $100,000. But what is P? By definition, P is the probability of loss in the absence of precaution. But strictly speaking, in order for the Hand formula to work as intended, P must be set to equal the probability of loss that is attributable to the defendant's failure to take the precaution at issue. Otherwise, we would be inflating the PL side of the equation ledger by adding in inherent, "residual" costs that could not be eliminated even if the relevant precaution were implemented. To factor out this residual risk of loss, we must subtract the probability of loss that would remain even if the precaution were implemented, here 5%, from the risk of loss in the absence of precaution, here 15%. Once we understand P in this way, the rest should be familiar: B = $30,000 P = .15 - .05 = .10 L = $100,000 PL = (.10)($100,000) = $10,000 Thus, on the facts and values as stated, the Hand formula says that it was not negligent for the motel to hire a security guard, because the cost of that precaution, $30,000, would exceed the amount of probable losses that could be attributed to the failure to have a guard on duty, or $10,000.

Amy negligently backed out of her space in a shopping center parking lot without looking. Phineas, who was walking behind Amy's car, dashed forward to get out of the way. In doing so, he stepped into a deep pothole and severely injured his knee. If Phineas sues Amy for his injury, will he be likely to establish that Amy's negligence was a proximate cause of his injury? A (A) No, because Amy did not actually hit Phineas. B (B) No, because Phineas's injury was proximately caused by his own act of stepping into the pothole. C (C) Yes, because Phineas would not have been injured but for Amy's negligent act of backing up without looking. D (D) Yes, because injuries to others resulting from their sudden actions to avoid being hit are within the scope of risks that made Amy's conduct negligent.

D is correct. Under the "risk rule" formulation of proximate cause, a negligent act is a proximate cause of a party's harm if that harm resulted from the risks that made the actor's conduct negligent. A is incorrect because it assumes that the only such risk is actually hitting someone. But another clear risk of reversing a car without looking is that people behind the car will be forced to make sudden evasive movements without having time to look where they are going. This risk is one that any reasonable driver would anticipate. Thus, Amy's negligence was a proximate cause of Phineas's injury. C is not a good choice because the "but for" test pertains to actual, not proximate, cause and both are needed to prevail on a cause of action of negligence. As for B, any injury can have multiple proximate causes. Phineas's own conduct may have been a proximate cause of his own injury, but that does not disprove that Amy's negligence was also a proximate cause.

Barber, a Quick Mart owner, mopped the floor in the soft drinks aisle but failed to put up a sign warning that the floor was wet. Timmons entered the store to buy a drink and slipped, injuring her knee. An ambulance took Timmons to the emergency room at the local hospital. While she was waiting to be seen, an intruder entered the ER swinging a knife and stabbed Timmons. If Timmons sues Barber for her injury, Barber will probably: A (A) be held liable for her knee injury and her stabbing injury, because his negligence was an actual cause of both. B (B) be held liable for her knee injury and her stabbing injury, because his negligence risked causing personal injury to Timmons, and she suffered both personal injuries as a result of Barber's negligence. C (C) be liable for her knee injury, but not for the stabbing injury, because he was not the cause of the stabbing injury. D (D) be liable for the knee injury only because the stabbing injury was beyond the scope of the risk he should have foreseen from failing to warn of the wet floor.

D is the best answer here. Barber should have anticipated that failing to warn of a slippery floor could result in someone slipping and getting injured. That risk actually occurred, and Barber is liable for the injury he should have foreseen. But an actor in Barber's position would not anticipate violent attack at the emergency room. To hold him liable for the stabbing wound would seem excessive, because he could not have reasonably anticipated such an unlikely event would result from failing to warn of a wet floor.

Mario, delivering a package for an important corporate meeting, pulls onto Main Street. No parking spaces are free, so he parks in front of a fire hydrant for the five minutes it will require to deliver the package. A state statute bars parking within fifteen feet of a fire hydrant. Unfortunately, a fire had broken out in a building near the fire hydrant. While Mario was making his delivery, a fire engine pulled up to fight the fire, which had spread throughout the building. Since the car in the parking space nearest the hydrant had left before the firefighters arrived, they drove through that space up onto the sidewalk and connected their hoses to the hydrant from the other side. The building was completely burned. Vernon, the owner of the building, sues Mario in a negligence action for the loss of the building. Vernon will probably: A (A) be able to establish Mario's liability for the loss of the building because he violated a state statute, and the statute was aimed at preventing the type of harm which he suffered. B (B) not be able to establish Mario's liability based on the violation of the statute, because it was not aimed at the type of harm Vernon suffered. C (C) not be able to establish Mario's liability based on the violation, because Mario will be able to establish an excuse for the violation. D (D) be able to establish Mario's negligence based on the violation but will probably not be able to establish that the violation caused the harm.

D is the best answer. C is a loser, because Mario's hurry is hardly a viable excuse for the violation. And B fails, because the statute barring parking near a hydrant was intended to assure access to the hydrants in case of fire, so it is relevant to injury in this case and Mario clearly violated it. A seems strong, but in this case the fire trucks were able to drive right to the hydrant up and hook up, so Mario's violation is almost certainly not a "but for" cause of the loss of the building. If his car had not been there the same loss would have happened.

Ron was paddling his canoe down a river where boating was very common. Just after passing under a bridge, he was struck by a rock that had been dropped from above. Security footage from a nearby building showed four individuals simultaneously dropping rocks from the bridge where Ron was struck, but it was impossible to determine which one dropped the rock that actually injured him. Authorities were able to identify two of the four possible culprits, Matt and Keith. Ron sued them both. In a jurisdiction that follows Summers v. Tice, the most likely outcome is that A (A) Matt and Keith will be jointly and severally liable to Ron for the full amount of his damages unless one of them can disprove his or her own responsibility. B (B) Matt and Keith will each be severally liable for one-fourth of Simon's total damages. C (C) Matt and Keith will be jointly and severally liable, unless they can prove that the rock that hit Ron was thrown by one of the other two people seen in the security footage. D (D) Ron will lose. Ra

D is the best answer. The facts resemble the pattern of Summers v. Tice, but the burden-shifting rule of Summers only applies if all of the potential tortfeasors who could have caused the plaintiff's injury have been added as defendants in the action. Only then can it be said that one of the negligent defendants must have caused the plaintiff's harm. Here, since two of the four negligent actors seen in the security footage have not been named as defendants, Ron cannot even say that the named defendants are more likely to have caused his injury than the absent ones. Thus, it would be improper to apply Summers here, and A is therefore incorrect. Without the benefit of the Summers v. Tice framework, Ron is unfortunately left with no way of proving that either Matt or Keith was the likely cause of his injuries. B and C may sound like plausible outcomes in the abstract, but the fact that they sound good doesn't make them correct statements of the law; and neither answer choice is supported by Summers.

Gupta had the rear gate of his pick-up truck repaired by Pirone, but because Pirone did a bad job in the repair and it still would flop open occasionally while Gupta was driving. Gupta knew this but he was busy and didn't take it back in for further repair. Five months later, while he was driving on the interstate, the rear gate fell open and a lawn mower rolled out the back of the truck into the path of Ling's car, causing an accident in which Ling was injured. If Ling sues Gupta and Pirone for her injuries, A (A) they will both be "but for" causes of Ling's injury, but only Gupta will be liable, because he should have taken the truck back in for further repair. B (B) only Gupta is a "but for" cause of Ling's injury because he did nothing about the broken gate for five months. C (C) only Pirone is a "but for" cause of Ling's injury because the gate fell due to his faulty repair work. D (D) both Gupta and Pirone will be liable for Ling's injury because they are both "but for" causes of her injury.

D is the best answer. The negligent acts of both Gupta and Pirone contributed to causing Ling's injury. If Pirone had fixed the gate well, it would not have fallen open while Gupta was driving. If Gupta had not ignored the danger of the faulty gate, but had had it properly repaired, the gate would not have fallen open and caused the mower to roll out. Both are actual causes of Ling's injury and will be liable for it.

Pablo was an elderly gentleman who suffered from Alzheimer's and was paralyzed from the waist down and confined to a wheelchair. He lived with his daughter Cara, who provided comprehensive care for him day and night. On one recent weekend, Cara needed to take a brief trip out of town. She made arrangements for two private nurses, Greg and Ling, to care for Pablo at Cara's home while she was away. Cara hired Greg to take care of Pablo on Saturday, and for Ling to take the Sunday shift. After Cara returned from her weekend trip, she noticed a bruise on Pablo's lower left leg. X-rays revealed a fracture, which doctors estimated to be very recent. Greg and Ling denied any knowledge of the injury, and Pablo himself was unable to remember how it had happened. Cara, acting as Pablo's legal guardian, sued both Greg and Ling for negligence. Unable to obtain any evidence of specific negligence by either party, Cara now seeks to invoke res ipsa loquitur against both defendants. In the absence of facts indicating that either defendant was more likely than the other to have caused Pablo's injury, the court should A (A) permit res ipsa to be applied as to Ling, but not Greg, because Ling was the last actor responsible for Pablo's care before Cara discovered his injury. B (B) permit res ipsa to be applied to both defendants because both were responsible for Pablo's care. C (C) shift the burden to Greg and Ling to prove that they had each adhered to the applicable standard of care at all times. D (D) not permit res ipsa to be applied to either defendant.

D is the best option. The attribution element of res ipsa fails in the action against each individual defendant. In Cara's suit against Greg, she cannot sufficiently eliminate Ling as a "responsible cause," and in her suit against Ling, she cannot eliminate Greg. The fact that Ling was responsible for Pablo's care on the day after Greg does not seem probative. If the facts were different—for example, if one of the nurses had cared for Pablo for a significantly longer duration than the other—Cara might be able to argue that the jury should be able to decide the attribution element on a probabilistic basis. But here, any such assignment of probability would be arbitrary. Thus, both A and B are incorrect. C should be rejected because there would be no basis to shift a burden of proof to Greg and Ling if the foundation for res ipsa against them cannot be established.

Carl, a carpenter, was working on a scaffold, repairing some loose siding on a wooden building. He negligently dropped his hammer, and it fell onto the ground below. Instead of retrieving it, he switched to a spare hammer in his toolbox and forgot about the dropped hammer. The hammer lay on the ground for hours, exposed to the mid-day sun, and became extremely hot. Jackson later came by and saw the hammer lying on the ground. He picked it up and suffered severe burns to his hand due to a condition that made his skin unusually sensitive to heat. A person with ordinary skin would not have suffered any significant injury. Will Carl be liable to Jackson for his burned hand? A (A) Yes, because Carl's negligence was the actual cause of Jackson's injury. B (B) Yes, because the eggshell skull rule holds Carl liable for Jackson's injury, even if it was far worse than what would have been suffered by a person with ordinary skin. C (C) No, because Jackson voluntarily picked up the hammer and was therefore the sole cause of his own injury. D (D) No, because a burn injury was not a foreseeable risk of negligently dropping and failing to pick up a hammer.

D is the winning answer. A is wrong because actual causation is only one element of the negligence cause of action. Jackson's challenge on these facts is proximate causation. B is an incorrect application of the eggshell skull rule. The eggshell or thin skull rule allows a plaintiff with a preexisting vulnerability to recover for the full extent of an injury that was proximately caused by the defendant's negligent conduct. But the presence of an eggshell skull condition does not allow the plaintiff to skip the element of proximate cause. Here, Carl has a strong argument that burn injuries were not a foreseeable risk of his negligence in dropping and failing to retrieve his hammer. Thus, Jackson will probably not be able to prove proximate cause, and the issue of his sensitive hand is a moot point.

Mac climbed to a high ledge over a popular swimming spot, intending to dive in. Mac saw a few swimmers below but decided to jump anyway without warning them or waiting for them to move away. Mac landed on Wendy, breaking her arm. Wendy sues Mac for negligence, and Mac moves to dismiss Wendy's claim on the grounds that he owed her no duty of care. Mac's motion will A (A) succeed, because Mac and Wendy were not in a special relationship that could support finding that Mac had a duty to warn. B (B) succeed, as long as jumping from the ledge was not in violation of any law. C (C) fail, because Mac actually caused Wendy's injury. D (D) fail, because Mac had a duty to exercise reasonable care to minimize the risks he created by jumping from the ledge.

D is the winning answer. This is not a case that raises the no-duty rule in any meaningful way. Instead, this is a garden-variety negligence case where an actor carelessly engaged in dangerous conduct without failing to take reasonable precautions to minimize the risk of harm. An actor always has a duty to exercise reasonable care when the actor's conduct cre-ates a risk of physical harm. A is not right, because there is no need to find a special rela-tionship in a case like this, where the defendant's negligent conduct was the source of risk that resulted in the plaintiff's harm. B and C simply miss the point: the fact that Mac's dive may have been legal does not disprove that it was negligent, and causation has nothing to do with why Mac's motion will fail.

Frank, a piano mover, was hoisting a piano up to a sixth-floor apartment in the city. Because he was running late for this job, he negligently failed to inspect the system of ropes that he relied on to pull the piano up. After the piano had been raised high above the ground, some of the ropes that were holding it up came untied, and the piano slipped free from its harness. Olivia, walking on the narrow sidewalk below, saw the piano begin to fall. She darted into the street to avoid being crushed. At that moment, Drake came by on his motorcycle, traveling at 60 miles per hour in a 25 mile per hour zone. Due to his speed, he was unable to avoid hitting Olivia, and she was severely injured. Olivia sued both Frank and Drake for her injuries. Which of the following statements provides the most accurate analysis of each defendant's liability? A (A) Drake will be liable, but Frank will not, because Drake was a superseding cause of Olivia's injuries. B (B) Frank will be liable, but Drake will not, because Olivia would not have been injured but for Frank's negligence in securing the piano harness. C (C) Neither Drake nor Frank will be liable because Olivia's injuries were caused by her decision to dart into the street. D (D) Both Drake and Frank will be liable because each defendant's negligence was an actual and proximate cause of Olivia's injuries.

D is your best bet here. B is wrong because it suggests that only Frank was an actual cause, but both Drake and Frank committed negligent acts that were but-for, actual causes of Olivia's injuries. C is a non-starter: Olivia's reaction was a risk foreseeably created by Frank's negligence. As to Drake's speeding, hitting Olivia in the street - no matter the reason why she was there - was surely the type of risk that made his conduct negligent. In the analysis of Frank's liability, Drake should not be regarded as a superseding cause, because a clear risk created by Frank's negligence was that someone might be injured by traffic as a result of being forced to flee to the street. A is wrong for that reason. For further discussion of superseding causation, we refer you to the Practice Perfect review of that topic.

The last train of the day was departing a very busy station. Harriet, still on the platform, ran to an open door and attempted to board. Ted, a conductor on the train, reached out and grabbed Harriet by the arm, even though he should have known that it was dangerous to allow passengers to board a moving train. As Ted tried to pull Harriet aboard, he lost his grip, and Harriet tumbled back onto the platform and rolled into Patterson, badly injuring his knee. Patterson brings an action for negligence against Ted to recover for his knee injury. Will Patterson prevail? A (A) No, because Patterson was not a foreseeable plaintiff. B (B) No, because Ted did not owe a duty of care to Patterson. C (C) Yes, by application of the eggshell skull doctrine. D (D) Yes, because Ted's negligence was an actual and proximate cause of Patterson's injury.

D is your best bet here. In this reimagined version of the facts of Palsgraf, the two circumstances that drove the outcome in the actual cause—the exploding package and the plaintiff's distance from the physical commotion—are absent. Here, because the plaintiff, Patterson, was right near the events, it was foreseeable that he would suffer an injury from Ted's conduct. Patterson should not have any problem establishing a case of negligence against Ted because she suffered a harm that was a readily foreseeable consequence of the conductor's negligent attempt to help the passenger board the train.

Which of the jury instructions below is accurate? A (A) "In considering whether the defendant was negligent in driving as he did, you should consider whether he acted reasonably in light of his best judgment and experience." B (B) "If you find that the defendant did not know that driving with badly under-inflated tires could cause an accident, you should find that she was not negligent for doing so." C (C) "If the defendant's conduct was in response to a sudden emergency, you should find that the defendant is not liable for the plaintiff's injury." D (D) "If you find that the defendant was not aware of an unreasonable risk of skidding as a result of driving at full speed in heavy rain, but should have known of that risk, you may find him negligent for doing so."

D prevails here. A is wrong, because it suggests that the defendant will be held to a lower standard of care if he lacks good judgment. The negligence standard is a unitary, objective standard, which makes no allowance for an actor's poor judgment. See the classic case of Vaughan v. Menlove. B fails, because it suggests that, if an actor is unaware of a danger associated with the activity she engages in, she should not be found negligent if that danger causes an injury. Negligence law holds that an actor who engages in risk-creating activity "must know" of the basic dangers created by the activity. As a result, juries are regularly instructed (as in D here) that the actor will be liable for negligence if she "knew or should have known" of a basic risk created by her conduct. C is a loser, too. The "sudden emergency" doctrine is a basic application of the standard of due care, which requires that the actor use the care of a reasonable person under the circumstances. It does not mean that the actor is relieved of the duty to exercise reasonable care, but instead it means that, in judging whether the actor was negligent, the jury may take into account the circumstance that she had to respond quickly to an unexpected emergency.

Darwin had a serious medical condition that put him at high risk of suffering a sudden, debilitating heart attack. His doctors had warned him on numerous occasions that it was unsafe for him to drive a car by himself. Unfortunately, Darwin also happened to suffer from early stages of Alzheimer's disease, unrelated to his heart condition. Because of his Alzheimer's, he often experienced episodes of forgetfulness and disorientation. One evening, when Darwin was experiencing one such episode, he forgot about his heart condition, and he decided to drive to the supermarket. While on his way, he suffered a sudden heart attack, which caused him to lose control of his car and crash into Preston. Which of the following statements is the most accurate analysis of whether Darwin breached a duty of care to Preston? A (A) Darwin did not breach his duty of care, because his heart attack was a physical impairment, and no reasonable person with that impairment could have been expected to avoid losing control of his car. B (B) Darwin did not breach his duty of care, if a person with his mental impairment would also have forgotten that he was not supposed to drive by himself. C (C) Darwin breached his duty of care, because a person of ordinary mental and physical functioning would not have lost control of his car. D (D) Darwin breached his duty of care, because a person of ordinary mental functioning with Darwin's heart condition would not have tried to drive his car to the supermarket.

D wins here. Darwin has an unusual combination of physical and mental impairments. The law of negligence requires actors with physical disabilities to exercise the care that would be taken by a reasonable person with like disabilities; but an actor with a mental impairment is held to the standard of a reasonable person with ordinary mental functioning. A is incorrect because it overlooks the fact that Darwin's doctors had warned him that he should not drive by himself, and a reasonable person with Darwin's heart condition would have heeded that warning. C is not quite right, because it suggests that Darwin's negligence was in losing control of his car. The better analysis is that he was negligent in driving on his own against the advice of his doctors, foreseeably putting himself at risk of losing control of his car. And, unfortunately for Darwin, B should be rejected because it incorrectly evaluates Darwin's conduct by comparing him to others with the same mental impairment. Negligence law holds him to the standard of an ordinary reasonable person, not that of a person with Alzheimer's.

CostSaver Superstore requires its personnel to fill out a log documenting the date and time of all premises inspections. The inspection log reflects that CostSaver's employee Al did an inspection at 9:00 A.M., and then no one did another inspection until noon. At 11:45 A.M., Ralph slipped on a puddle of oil in an aisle and injured himself. If Ralph sues CostSaver for negligence, which of the following evidence can be used to demonstrate the presence or absence of negligence: A (A) The inspection log. B (B) The testimony of CostSaver employee Beth who states she conducted inspections at 10:00 A.M. and 11:00 A.M. but never filled out the log. C (C) The testimony of an expert supermarket hygienist, who states that it is standard practice for superstores like CostSaver to inspect the premises once every hour. D (D) The testimony of the CostSaver manager Lordes who states that it was internal CostSaver policy to inspect the premises once every half hour. E (E) All of the above.

E is correct. Internal policies, fact and expert witness testimony, evidence that reflects customary industry practice, and other circumstantial evidence of breach like the inspection log, may all be introduced to show evidence of breach. None are conclusive proof of negligence but, rather, provide evidence upon which a jury may find breach.

Mello is injured in an accident with Swift. She sues Swift for negligence and proves at trial that Swift was driving at fifty-nine miles per hour in a zone with a fifty-five mile per hour speed limit. If the case arises in a state that applies the negligence per se doctrine, which of the following might Swift assert as an adequate excuse for the violation? A (A) That the day was dry and traffic was light. B (B) That her speedometer was broken. C (C) That she thought the speed limit on that stretch of road was sixty miles per hour. D (D) That it was very sunny and hard for her to read her speedometer through her sunglasses. E (E) None of the above.

E is the best choice. In a negligence per se jurisdiction violating the statute will constitute negligence, even if it seemed perfectly safe to go faster. That's just what negligence per se means—that the legislature dictates how to behave, not the individual's judgment, and ignoring the statutory command is "negligence in itself." So, A fails. B is a clear loser; Swift is bound to obey the law and should keep her speedometer working so that she can. Choice C—being mistaken about what the law requires—is also not a viable excuse. We are all held to know what the law is, so we should inquire if unsure rather than guess. D would very likely also fail as an excuse. The reasonable person would take off her sunglasses and put down the sunshade to see the speedometer better rather than proceed without being able to monitor her speed. E is the best answer.

Vega was driving down Main Street. His cell phone rang and he was distracted by looking at it as he approached the intersection with Maple Street. Newman, in a hurry to get to a meeting, ran into Main Street to cross although the light was still green for drivers on Main. Vega could have stopped in time if he had been watching the road, but looked up too late and had to swerve into the sidewalk, hitting and injuring Diller. Only Newman is liable for the injury to Diller, because the accident would not have happened, even though Vega was distracted, if Newman had not then run into the street in front of his car. A (A) True B (B) False

False. Newman was indeed negligent to run out into the street, but so was Vega not to be looking. (One reason to exercise care on the roads is that others may not!) The negligence of both Newman and Vega are "but for" causes of Diller's injury. Take away Newman's negligence, and Vega would not have had to swerve. Take away Vega's negligence and he would have been able to stop before getting so close to Newman. They are both negligent "but for" causes of Diller's injury and will both be liable for it.

In a negligence case arising out of a motor vehicle accident, the judge instructs the jury, "you must first determine whether the defendant owed the plaintiff a duty of care at the time of the accident. Then, if you find that the defendant caused injury to the plaintiff by failing to exercise reasonable care in driving, you must find the defendant liable to the plaintiff." Is this instruction correct or erroneous? A (A) Correct B (B) Erroneous

Go with B. This is an erroneous instruction, because it tells the jury that the determination of whether the defendant owed the plaintiff a duty of due care is up to them. But that question is for the judge as a matter of law—and of course, in driving a car, an actor does owe a duty of due care under negligence law. There are four elements to the claim for negligence: duty, breach (failure to exercise due care), causation, and damages. Most are factual issues, but duty is a legal question. A negligence case should not go to a jury unless the court has concluded that the defendant did owe a duty of care to the plaintiff at the time of the injury.

CostSaver Superstore policy requires its personnel to inspect the store grounds once every hour to determine whether any food, debris, or other unsafe conditions are present. Ralph slipped on a puddle of oil in an aisle and injured himself. If Ralph sues CostSaver for negligence, which of the following statements is the most accurate: A (A) Ralph can introduce evidence of the CostSaver policy, and the jury may rely upon it to determine whether CostSaver was negligent. B (B) Ralph can introduce evidence of the store policy along with any other evidence of negligence, and the jury may rely upon all of it to determine whether CostSaver was negligent. C (C) Ralph can introduce evidence of the store policy and the jury must rely upon it to determine whether CostSaver was negligent. D (D) Ralph cannot introduce evidence of an internal store policy to demonstrate whether CostSaver was negligent.

Internal policies, along with other relevant evidence of negligence, may be introduced to prove breach. Thus, B is correct, is superior to choice A, and D is incorrect. C is wrong because the jury retains discretion to determine negligence and is not required to find it, even if the employee violated the policy.

Whipple drives around town with a broken muffler, making a loud and obnoxious noise as he goes. He is in violation of a statute that requires working mufflers on all vehicles. He has an accident with Beale, who sues Whipple for negligence and seeks to introduce the muffler statute to prove that Whipple was negligent. Whipple files a motion in limine—a motion to prevent Beale from introducing evidence of the violation at trial, on the ground that the statute was aimed at noise reduction, keeping peace in the neighborhoods, not accidents. Judge Fudd concludes, after briefing by the parties and research, that the statute has two purposes: to prevent obnoxious noise on the streets and to make sure that drivers can hear warning honks from other cars to prevent an accident. In a negligence per se jurisdiction the Honorable Fudd should grant the motion in limine because the statute was aimed in part on the unrelated problem of noise reduction. A (A) True B (B) False

It is not unusual for a statute to have more than one purpose, as this one apparently does. However, as long as one of the aims of the statute was to prevent the kind of harm that the plaintiff suffered, a court may allow its use to prove negligence pers se. Of course, if Beale proves that Whipple violated the statute, Beale will also have to prove that the accident he suffered was caused by the violation. Beale could do that by showing that he honked his horn at Whipple just before the accident, and that Whipple had time to stop if he heard the honk, but that he didn't hear it because of the noise of the muffler. If Beale never honked, then Whipple violated the statute, but his noisy muffler would not be a "but for" cause of the accident.

Martin sues Herzog for negligence in a motor vehicle collision occurring in 1915. Martin alleges that Herzog was negligent because, in the dark of night, he crossed the center line of the road and ran into Martin's buggy, coming in the other direction. Herzog claims that Martin was contributorily negligent for failing to have a light on his buggy, as required by state law. Under the contributory negligence rule, a plaintiff is barred from recovery if her negligence was a cause of an accident. At trial, Herzog offers evidence that Martin did not have a light on his buggy at the time of the accident. Martin offers evidence that he was carrying a light at the time of the accident. On this state of the evidence the judge should instruct the jury as follows in a negligence per se jurisdiction: A (A) "If you find that Martin did not have a light showing on his buggy at the time of the accident, you may find that Martin was negligent." B (B) "If you find that Martin did not have a light showing on his buggy at the time of the accident you must find that Martin was negligent." C (C) "You must find that Martin was negligent in this case." D (D) "If you find that Martin did not have a light showing on his buggy at the time of the accident, you should consider that fact along with all the other evidence in determining whether Martin was negligent."

Opt for B here. In this case there is evidence that Martin, the plaintiff, violated the light-on-the-buggy statute. Surely that statute is intended to assure that travelers on the highway can be seen by other vehicles, so violation of the statute would constitute negligence per se in Martin's case. So, the jury should be told that they must find Martin negligent if he violated the statute. Yet C is wrong, because the jury still has to determine whether in fact Martin did show a light; that is a contested fact, so the jury has to resolve it before a violation can be given per se effect. A is wrong, because it gives the jury the option to find Martin negligent if he violated the statute. But in a negligence per se jurisdiction a party who violates a relevant statutory standard of care is negligent, and the jury must be told that she is. They are not entitled (in the language of Martin v. Herzog) to treat the violation "as lightly or gravely as they will;" they must honor the statutory command by finding the violator negligent.

Lanai leaves her car idling in the street while she runs into a convenience store to grab an iced tea. Jasper, a fifteen-year-old, sees her go into the store, steals the car and crashes it into Yarin's car a block away. Yarin sues Lanai for negligence in leaving the keys in the car. The court will likely hold that Jasper's act of stealing the car is a superseding cause that bars recovery from Lanai. A (A) True B (B) False Rationale: False. One of the common risks of leaving a car unattended, especially if it is running, is that someone will steal it. Surely it is also quite foreseeable that the thief will be a bad driver, or a non-driver (as in Jasper's case) and in his haste to get away might have an accident.

Rationale: False. One of the common risks of leaving a car unattended, especially if it is running, is that someone will steal it. Surely it is also quite foreseeable that the thief will be a bad driver, or a non-driver (as in Jasper's case) and in his haste to get away might have an accident.

While shopping at her local grocery store, Cheryl slipped on a broken egg on the floor in the dairy section. She fell and suffered a broken wrist. Cheryl sued the grocery store to recover for her injuries. Due to a glitch in the store's video recording system, there is no video evidence to show how or when the egg that caused her fall had been dropped on the floor, and no relevant witnesses have been identified. The grocery store now moves for summary judgment in its favor on the grounds that Cheryl lacks any evidence creating a triable issue of negligence. Cheryl responds by invoking res ipsa loquitur. The judge should A (A) deny the motion because both of the foundational elements of res ipsa are satisfied. B (B) deny the motion, because the grocery store is in a better position than Cheryl to produce evidence shedding light on the origin of the dropped egg. C (C) deny the motion, because, in the absence of negligence, eggs do not fall to the floor where shoppers can slip on them. D (D) grant the motion, because one or both of the foundational elements of res ipsa are not satisfied.

The best answer choice here is D. There are two ways of understanding why res ipsa does not apply here. First, we could say that although broken eggs aren't ordinarily found on grocery store floors unless someone has been negligent, there is no factual basis here for attributing that negligence to the store.

Antoine took his car to his mechanic, Josh, to fix his car's automatic transmission. Antoine told Josh that the car would sometimes fail to go into "park," and Antoine had to rely on the parking brake to keep the car stationary. After completing the work, Josh told Antoine that he had repaired the problem and that he should no longer have any issues with getting his car into "park." On the way home from Josh's shop, Antoine stopped to pick up some groceries. He put the car in "park" but did not engage the parking brake. As he walked away, he looked back and noticed to his surprise that the car had started rolling. He dashed back and tried to get back in the car while it was still moving to try to pull the emergency brake. Antoine got one leg in but then tumbled out, badly injuring his knee. The car continued to roll until it hit another parked car. Antoine sued Josh to recover for his personal injury and the damage to his car. In an action by Antoine against Josh for negligence, A (A) Antoine can rely on res ipsa loquitur to establish that Josh was negligent in his repair of Antoine's car. B (B) Antoine cannot rely on res ipsa loquitur because Josh was not in control of Antoine's car at the time of the accident. C (C) Antoine cannot rely on res ipsa loquitur to prove Josh's negligence if Antoine was also negligent in attempting to enter his car while it was in motion. D (D) Antoine cannot rely on res ipsa loquitur to prove Josh's negligence for the purpose of recovering for his personal injury, because Josh was not a cause of that particular injury.

The best answer here is A. Both of the foundational elements of res ipsa are likely satisfied: unoccupied cars placed in "park" don't roll away from their parking spaces in the absence of negligence; and here that negligence can be attributed to Josh's failure to repair the problem with Antoine's transmission. Choice B is incorrect because the attribution element of res ipsa does not depend on literal, physical "control" at the time of injury, but rather on whether responsible causes other than the defendant can be sufficiently eliminated, and here, there is no problem with attributing the failure of Antoine's car to remain parked to Josh's attempted repair.

While excavating a residential backyard to install an in-ground pool, Robert negligently hit a natural gas line, causing a large explosion. Jones, who was watching from a neighboring house and was unhurt, saw that the explosion had overturned Robert's bulldozer. Jones went out to help Robert. However, as Jones approached, he was attacked and mauled by a vicious stray dog that had been agitated by the explosion. If Jones sues Robert for the injuries caused by the dog, A (A) Robert will probably not be liable, because Jones was not a foreseeable plaintiff. B (B) Robert will probably not be liable, because the injuries caused by the dog were unrelated to the risks of rescuing Robert. C (C) Robert will probably be liable, because Jones was a foreseeable rescuer. D (D) Robert will probably be liable, because Jones would not have been injured if Robert had not negligently caused the explosion.

The best answer is B. Jones is a rescuer, and rescuers are generally foreseeable as a matter of law. Thus, A gives the right result but for the wrong reason. The significant wrinkle here is that the injuries suffered by Jones are entirely unrelated to the risks that would be expected to arise from a rescue attempt in the aftermath of an explosion. His injuries are beyond the scope of liability for Robert's negligent creation of a situation inviting rescue.

Amy negligently backed out of her space in a shopping center parking lot without looking. She hit a shopping cart, causing it to roll into the street, directly in the path of a car being driven by Hamish. Hamish stopped to avoid hitting the shopping cart. At that moment, a strong gust of wind toppled a large rotting tree on the side of the road. The tree fell onto Hamish's car. Hamish was able to identify Amy as the person responsible for the runaway shopping cart and sued her for negligence. Which of the following provides the best analysis of Amy's potential liability for the damage to Hamish's car? A (A) Amy will not be liable, because causing another driver to be smashed by a falling tree is not a foreseeable consequence of negligently backing out of a parking space without looking. B (B) Amy will be liable, because the tree would not have fallen onto Hamish's car if he had not been forced to stop in the roadway. C (C) Amy will be liable if a reasonable person in Hamish's position could not have avoided the falling tree. D (D) Amy may not be liable, but only if she can prove that Hamish could have avoided the shopping cart by driving around it rather than coming to a complete stop.

The best choice is A. Amy's negligence was an actual but-for cause of Hamish's damages because Hamish would not have been stopped at the precise place where the tree fell if Amy had not struck the cart, but she will not be liable because her negligence was not a proximate cause, for the reason stated in A. An imaginary reasonable person advising Amy at the time of her negligent conduct would not have listed the risk of trees falling on stopped traffic as a reason to look in her rear-view mirror before backing up. B merely states why Amy was an actual cause of Hamish's injury, but this falls short of proving liability, because proximate causation is absent. Both C and D are not good answers because they wrongly imply that Hamish's comparative fault is the critical issue. Contrary to C and D, Amy is not liable due to lack of proximate cause, whether or not Hamish could have avoided the falling tree or driven around the shopping cart.

Maria and Jason were hunting for deer in the woods. Maria was using a crossbow and Jason was using a rifle. They had gotten lost and failed to notice they were in an area near a hiking trail where hunting was prohibited. Jason and Maria saw something moving in the bushes. They thought it was a deer, but in fact it was Ralph, a hiker. Jason and Maria fired their weapons, and both of their shots struck Ralph simultaneously. Investigation showed that the wounds from Ralph's bullet and Maria's crossbow bolt would each have been fatal to Ralph on its own. In a wrongful death action against Maria and Jason, A (A) the burden of proof will shift to Maria and Jason to disprove causation. B (B) Jason and Maria will be found to be actual causes of Ralph's death, and both will be liable. C (C) neither Maria nor Jason will be liable, because neither was a but-for cause of Ralph's death. D (D) either Jason or Maria will be liable, but not both.

The best choice is B. These facts present a case of duplicative or multiple sufficient causes, where the usual but-for test of actual causation produces the absurd result that neither Maria nor Jason was a cause of Ralph's death. According to the Third Restatement, in these circumstances, where the plaintiff proves each negligent act would have been a cause-in-fact of the plaintiff's harm at the same time in the absence of the other, each act is regarded as an actual cause. C and D are therefore wrong. A is incorrect because it attempts to apply the burden-shifting approach of Summers v. Tice to a situation where it does not apply. Although the facts may seem reminiscent of Summers, this case is different because both Maria's and Jason's shots struck Ralph, while the critical problem in Summers was that one and only one of the negligent actors actually caused the plaintiff's injury, but the plaintiff was unable to determine which one it was.

Which of the following is not generally recognized as a "special relationship" that can give rise to an affirmative duty of care? A (A) School and student B (B) Business and patron on the premises C (C) Brother and sister D (D) Common carrier and passenger

The right answer is C. The sibling relation is not generally recognized as a source of affirmative duty.. All the other choices are named in the Third Restatement as special relationships that give rise to an affirmative duty of care.

A house owned by Hugo burned down due to a fire negligently started by Dickerson. A few days later, a strong hurricane passed through the area and destroyed all the houses in Hugo's neighborhood. Hugo brought a claim of negligence against Dickerson to recover his losses. All parties agree that Dickerson's fire destroyed Hugo's house, and also that the house would have been destroyed by the hurricane if it had not been burned by Dickerson's fire. On these facts, Dickerson will probably: A (A) not be liable, because his negligence was not an actual cause of the destruction of Hugo's house. B (B) not be liable, because the causal effect of the fire was preempted by the hurricane. C (C) not be liable, because Hugo would have suffered the same losses even if Dickerson's fire had not occurred. D (D) be liable because Dickerson's fire, not the hurricane, actually caused the destruction of Hugo's house.

The right answer is D. The hurricane occurred after Dickerson's fire had already destroyed Hugo's house, so the hurricane was not a cause of the destruction. It might seem a bit unfair (to Dickerson, anyway) that Dickerson could be liable for losses that would have occurred anyway shortly thereafter due to natural causes. But the proper outlet for this argument is the issue of damages, not actual causation. In other words, Dickerson will be liable to Hugo for the destruction caused by the fire, but the fact that the house would have been destroyed by the hurricane may limit Hugo's recovery to items such as having to pay for alternative living space during the interim between the fire and the hurricane, and the value of property destroyed by the fire that could have been salvaged after just a hurricane. In some ways, the facts are similar to a case in which a negligent actor causes the premature death of a plaintiff who had terminal cancer. The fact that the cancer would have caused the person's death does not negate actual causation, but it could limit the amount that could be recovered, given the victim's shortened life expectancy. Thus, C is incorrect.

True or false? If an actor actually causes physical injury to a person with a pre-existing special vulnerability to that condition, the injured party can always invoke the eggshell or thin skull doctrine to establish proximate cause. A (A) True B (B) False

The statement is false. The eggshell or thin skull rule allows a plaintiff with a preexisting vulnerability to recover for the full extent of an injury that was proximately caused by the defendant's negligent conduct. But the presence of an eggshell skull condition does not allow the plaintiff to skip the element of proximate cause. An eggshell skull plaintiff, like any other plaintiff, must prove that the defendant actually caused the plaintiff's harm and that the harm resulted from a risk that made the defendant's conduct negligent.

Tippler, a frequent patron at Roadside Bar on a rural street, entered the bar and had five drinks over a short period. When he called for a sixth in slurred speech the bartender filled him up again. Tippler than drove off from the bar and collided with Diego, injuring him. If Diego sues Roadside Bar for his injury, he will probably not recover, because Tippler's act of driving drunk is a superseding cause of Diego's injury. A (A) True B (B) False

These days, this is likely to be false. In an earlier time, a good many courts in this unfortunately common scenario held that a bar that overserved a patron was not liable for injuries caused by her subsequent driving under the influence. Often these courts would hold that the antisocial act of intoxicated driving was a "superseding cause" of the injury to others on the road.

Harriet wanted to build a large wooden platform deck extending out over her home's sloped backyard. She hired Boris to do the work, as he was an experienced builder who came highly recommended by Harriet's friends. Immediately after Boris completed the project, it rained steadily for two days. On the next sunny day, Harriet went out onto her new deck to enjoy the sun. While sitting in a chair reading a book, the deck collapsed. Harriet suffered serious injuries and sued Boris, alleging negligence in the construction of her deck. Her initial investigation failed to determine the exact cause of the deck's collapse. Harriet seeks to invoke res ipsa loquitur to infer Boris's negligence. Which of the following statements provides the most accurate analysis? A (A) Harriet may rely on res ipsa loquitur because both of the doctrine's foundational elements are satisfied. B (B) Harriet may rely on res ipsa loquitur only if she proves that the heavy rains did not contribute to the deck's collapse. C (C) Harriet may not rely on res ipsa loquitur, because any inference of negligence is negated by Boris's experience and reputation. D (D) Harriet may not rely on res ipsa loquitur if Boris produces evidence that he adhered to all applicable building codes.

These facts describe a fairly standard scenario for the proper application of res ipsa loquitur, so A is the correct answer here. Newly built decks do not ordinarily collapse (even after bad weather!) in the absence of negligence, and that negligence can readily be attributed to Boris here. Choice B should be rejected. A plaintiff invoking res ipsa does need to "sufficiently eliminate" responsible causes other than the defendant's negligence, but surely it was Boris's responsibility to build a footing for the deck that could withstand rain. Both C and D conflate the fact finder's ultimate determination of liability with the foundational elements of res ipsa. Boris's reputation, experience, and his own testimony about the degree of care he exercised could be introduced to rebut the inference of negligence permitted by application of res ipsa, but those considerations would not render the doctrine inapplicable, as is suggested by C and D. The jury could still infer that —as careful as Boris ordinarily is—he must have done something negligent this time, since a properly constructed deck does not collapse two days after completion.

The Edison Company mounted a heavy transformer on one of its light poles. However, the installer failed to tighten the bolts that hold the transformer to the pole. Three months later, while Luran is waiting for the school bus on the sidewalk, Foster negligently crashes into the pole. The transformer—because it is loose—falls on Luran's head, causing an injury. If Luran sues the Edison Company, it will not be liable to Luran, because the transformer fell due to the negligence of Foster in crashing into the pole. A (A) True B (B) False

This is false. Perhaps the transformer would not have fallen if Foster hadn't hit the pole. But presumably it would not have fallen, even if Foster had hit the pole, if it were tightly secured. Thus, history would have been different if the Edison installer had been careful. True, it would also have been different if Foster had used due care and not run into the pole. But that is not a defense for Edison—it cannot defend on the ground that, even though it was negligent, someone else had to be negligent as well to cause the injury. That makes Foster's negligence another "but for" cause of Luran's injury, but Edison is as well.

Acme manufactures the Acme table saw. Acme estimates that every table saw it sells carries a 20% risk of an accident at some point in its useful life due to a hand contacting the saw while in operation. The expected injury cost is $3,000 per accident. Acme can install a saw guard at a cost of $750 per machine and eliminate the risk. The plaintiff's injury occurred when he accidentally tripped over the machine's cord and hit her head on the workshop floor. True or False: If the Learned Hand formula is used to determine reasonable care, the jury should find Acme liable for negligence due to its failure to equip its machines with saw guards. A (A) True B (B) False

This is false. The Hand formula is used to establish breach of the standard of due care. A plaintiff must still establish that the breach caused damages in order to find a defendant liable. Here, the plaintiff's injury was caused by tripping over the table saw's cord. Thus, even if Acme installed a saw guard, the plaintiff's injury would still have occurred, and Acme's saw guard omission is not a cause of the plaintiff's harm.

A defendant's act can be a proximate cause of an injury to the plaintiff even if the act is not an actual cause of the plaintiff's injury. A (A) True B (B) False

This is false. The requirement of proximate causation places a limit on the scope of an actor's liability for harms that are actually caused by the actor's negligence. Harms that are proximately caused by an actor's negligence are therefore a subset of the harms that are actually caused by that negligence. This means that an act can be an actual cause of an injury yet not be a proximate cause, but the opposite cannot be true. If the defendant's negligence was not an actual cause of the plaintiff's harm, the question of proximate cause is moot.

True or false? A negligent act that would have been sufficient, by itself, to cause the plaintiff's harm is always an actual cause of that harm. A (A) True B (B) False

This is false. The statement is not true in cases of preempted causation. For example, suppose A and B both negligently start fires that would have been sufficient to burn C's house, but B's fire reaches C's house after A's blaze has already reduced it to ashes. B's fire would have been sufficient to destroy C's house, yet is not an actual cause, because its destructive potential was preempted by A's fire doing the damage first.

Mello is injured in an accident with Swift. She sues Swift for negligence and proves at trial that Swift was driving at fifty-nine miles per hour in a fifty-five mile per hour speed limit zone. If the case arises in a state that treats violation of a statute as admissible evidence of negligence (rather than as negligence per se), the jury would be instructed to find Swift negligent if they conclude that Swift was exceeding the statutory speed limit and offered no evidence of an excuse for doing so. A (A) True B (B) False

This is false. There are a few states that do not treat even an unexcused violation of a statute as negligence per se. In those states, a party who wants to use a statute to prove that another party was negligent may introduce evidence of the violation at trial. The jury may hear that evidence and consider it in judging whether the violator acted like a reasonable person under the circumstances. However, they remain free to find that the violator's conduct was reasonable, even if she did fail to comply with the statutory standard. In one of these states, a jury might very well hear uncontradicted evidence that Swift drove at fifty-nine miles per hour in a fifty-five-mile per hour speed limit zone, yet conclude that, under the circumstances, Swift's conduct was reasonable. They are licensed—in words quoted in Martin v. Herzog, 126 N.E. 814 (1920), a core case on negligence per se—to treat the violation "as lightly or gravely" as they choose. This is quite different from the automatic finding of negligence for an unexcused violation in a negligence per se jurisdiction.

Jack, a MotorBikeDelivery employee, was making a delivery on his motorcycle when he drove over a live electrical wire on Amy's property and was killed. The coroner determined that Jack was electrocuted to death when the bike ran over the wire. While Jack had a valid delivery license, he was not carrying it at the time of the incident, even though it is customary for delivery operators to do so. True or False: Amy can introduce evidence that Jack was not carrying a delivery license at the time of the electrocution to help prove that Jack was contributorily negligent. A (A) True B (B) False

This is false. While Jack might be violating an industry custom, this custom is not relevant to the type of risk at issue. Jack was killed by a live electrical wire, a risk entirely unrelated to carrying a delivery license, and there is nothing about carrying such a license that would have minimized or avoided the harm to Jack.

Collapse Barber, a Quick Mart owner, mopped the floor in the soft drinks aisle but failed to put up a sign warning that the floor was wet. Timmons entered the store to buy a drink and slipped, injuring her knee. An ambulance took Timmons to the emergency room at the local hospital. She was treated there but unfortunately contracted a rare infection at the site of her wound while waiting in the emergency room, which incapacitated her for four months. Barber, who had quit school at sixteen doesn't read much and had no understanding of infections. He claims that the infection is a superseding cause, cutting off his liability for the four months of disability. Barber will probably be liable for both Timmons's knee injury and her infection damages. A (A) True B (B) False

This is true. Although Timmons's infection is rare, getting an infection while being treated in a hospital is unfortunately not unforeseeable. Even if it doesn't usually happen, it happens often enough to be thought a natural, predictable consequence of treatment in a hospital. Even if Barber doesn't know about infections, the jury should determine whether the reasonable person would foresee the general risk of an infection and find Barber liable for this one.

Berry, the town animal control officer, captures Barney, a frisky young dog who had just bitten a pedestrian. A state statute required Berry to hold the dog for two weeks, to determine whether it has rabies. However, the kennel was crowded, so Berry sends Barney home after a week. The next morning Barney gets loose while on a walk and runs into the street, causing an accident in which Lopez is injured. Lopez sues Berry for negligence in releasing Barney early. Before trial Berry makes a motion in limine—a motion to exclude any reference to the quarantine statute at trial. This motion should be granted. A (A) True B (B) False

This is true. The statute here is clearly aimed at preventing the spread of disease, not at frisky dogs running in the street. Because the statute is not aimed at the type of accident that lead to Lopez's injury, it is irrelevant and the jury should not hear of the violation. Evidence of a statutory violation should only be admitted at trial if the violation satisfies the statutory purpose doctrine, that it was meant to prevent the type of injury that the plaintiff suffered. That is not the case here.

Barney's infant son Bill was burned in a house fire. Barney introduces uncontroverted evidence that Florence, Bill's babysitter, left Bill alone in a room with a lit candle. A jury may still decide that the Florence acted reasonably. A (A) True B (B) False

This is true. There are many potential reasons why Florence may have acted reasonably. Perhaps a jury will find that she only left Bill alone for a brief second to answer the phone, for example. If reasonable minds can differ as to whether Florence acted reasonably—and here they can—Florence's negligence is a question for the jury.

BONUS QUESTION! Bolt and Owens, two Olympic level sprinters, were competing in the USA track finals. After the race Bolt went up to Owens and angrily claimed that Owens had cut him off just before the finish line. Owens, insulted, gave Bolt a push, and Bolt fell over, injuring his ankle. He was taken to the hospital and admitted. The next day, he suffered smoke inhalation when a fire broke out on the ward. Owens will probably not be liable for this injury, even though he is the actual cause of it. A (A) True B (B) False

This is true. Unlike malpractice in treating the tort victim, a court would likely hold that suffering damages from a fire in the hospital is not a risk that Owens would anticipate from injuring Bolt, that—in the language of the Third Restatement §34—it is not "one of the risks that made [Owens's conduct] tortious." Note that in this case Owens committed an intentional tort. It is often said that an intentional tortfeasor is liable for all the consequences of the intentional tort. This is a bit of an overstatement. Even for intentional torts, a court would probably balk at imposing liability for the fire injury, on the ground that it is too different from the kinds of consequences Owens should have anticipated from his fairly innocuous battery on Bolt. See Restatement (Third) of Torts, § 35(b) Scope of Liability for Intentional and Reckless Tortfeasors:

Berwick, a blind man of twenty-seven, was walking down a public street with his cane, but bumped into Bielski and knocked her down, injuring her. She sued Berwick for negligence, and the case was tried to a jury. The evidence showed that Berwick was answering a cell phone call at the time of the accident and may have stopped probing ahead for a moment with his cane. The judge instructs the jury as follows: The defendant, as a person with a physical disability, must exercise the care that a reasonable person with the same disability would exercise under the circumstances. If you find that the defendant did not act as a reasonable blind person would have acted at the time and in the circumstances of the accident, then you should find that he was negligent in injuring Bielski. If you find that the defendant did live up to that standard of care then he would not be negligent, even if his conduct posed a greater risk to others than would be posed by a person without his disability. Is this is an accurate instruction concerning the duty of care that Berwick owed to the plaintiff at the time of the accident? A (A) Yes, it is accurate. B (B) No, it is inaccurate.

This is true; it accurately explains the duty of care owed by a person with a physical disability . . . that is, to exercise the same level of care that a similarly situated person with the same disability would exercise. It may be that Berwick posed a greater risk, even if he acted with the care of reasonable blind person, than a sighted person would pose. But, as the authorities have said, "the blind have to live in the world" just as others and must be made some allowances for their disability.

Is the following statement true or false? When res ipsa loquitur is invoked, the two foundational elements present questions of law for the judge to decide. Once the judge decides that both elements are satisfied, only then may the jury be instructed on drawing the relevant inference of negligence in the plaintiff's favor. A (A) True B (B) False

This statement is false. Courts generally treat the foundation for res ipsa as a matter of fact for the jury to decide. In cases where there is a dispute of fact as to one or both of res ipsa's foundational conditions, the plaintiff will need to provide evidence to show those conditions have been satisfied, even though the plaintiff may lack evidence of specific negligence.

In a negligence case arising out of a motor vehicle accident, if the jury finds that the defendant drove in a negligent manner, it must find the defendant liable for the plaintiff's injuries. A (A) True B (B) False

This statement is false. First, keep in mind that the term "negligence" is commonly used in two ways. It can refer either to the breach-of-duty element of a claim for negligence (the failure to exercise due care), or it can refer to the entire tort action (consisting of the elements of duty, breach, causation and damages). In the statement here, the term "negligence case" refers to the tort action, while "drove in a negligent manner" is an assertion that the defendant failed to exercise due care. Thus, the statement under review is false because it essentially claims that if the jury finds that the defendant breached the duty of due care, it must find for the plaintiff. But breach of the duty of due care is one element of the claim for negligence, not the sole element. The defendant would not be liable if the plaintiff failed to prove actual or proximate causation (or actual damages). For example, if the defendant drove negligently with the plaintiff as a passenger and got into an accident, but the passenger died of an unrelated heart attack just before the accident, the defendant should not be held liable for the plaintiff's death, because his negligent driving did not cause it.

Lynn Ladder Company markets a step ladder with a lightly built shelf near the top, to put tools or paint on while using the ladder. Menlove buys the ladder and uses it to paint the ceiling of his living room. Because he was having a hard time reaching into the corner of the ceiling, Menlove—an optimist in the extreme—climbed to the top of the ladder and set one foot on the flimsy paint shelf, which promptly collapsed, injuring Menlove. Menlove sues Lynn Ladder for his injury, in a jurisdiction that applies pure comparative fault. Menlove claims that Lynn Ladder was negligent for failing to print a warning on the paint shelf not to stand on it. If the jury finds that Lynn Ladder was negligent for failing to have a warning on the shelf, and the jurisdiction applies modified comparative negligence Lynn Ladder will probably A (A) not be liable, because its negligence was not an actual cause of the accident. B (B) not be liable to Menlove because Menlove was negligent in standing on the shelf. C (C) not be liable, because it was unforeseeable that a user would use the shelf as a step to reach the ceiling. D (D) be liable to Menlove for reduced damages due to its negligence.

We opt for D as the best answer. This case, like most superseding cause cases, involves an act by the defendant (here, Lynn Ladder) and then a later act by another actor that may be unexpected, intentional or radically unwise. In this case, the later actor who does the unexpected is the plaintiff, Menlove, who used the flimsy paint shelf as a step. Lynn Ladder may well have been negligent for failing to warn about stepping on the shelf. It is probably not unheard of for do-it-yourselfers to misuse a ladder in this way (so C fails). But it is a pretty klutzy and unlikely thing to do, so Lynn Ladder argues that Menlove's choice to do it is a superseding cause.

The last train of the day was departing a very busy station. Harriet, still on the platform, ran to an open door and attempted to board. Ted, a conductor on the train, reached out and grabbed Harriet by the arm, even though he knew that it was dangerous to allow passengers to board a moving train. As Ted tried to pull Harriet aboard, Harriet dropped an unmarked package of explosives onto the platform. The resulting explosion caused Patterson, who was standing nearby, to suffer serious burns. Patterson brings an action for negligence against Ted to recover for his burn injuries. Will Patterson prevail? A (A) Yes, because Patterson was standing nearby and was therefore a foreseeable plaintiff. B (B) Yes, because Ted knew that it was dangerous to allow passengers to board a moving train. C (C) No, because Ted's negligence was not a proximate cause of Patterson's burns. D (D) No, because Ted's negligence was not an actual cause of Patterson's burns.

Your Practice Perfect authors agree that C is the best analysis. The facts are a slightly modified version of Palsgraf; the differences are that Patterson here is located close to the conductor and passenger carrying the explosive package, and Patterson suffers burn injuries rather than blunt trauma. Though Patterson may be a "foreseeable plaintiff" in the simple sense that he was placed at risk of being physically injured by Ted's negligent conduct (e.g., Harriet could have fallen onto Patterson), the type of harm that Patterson suffered—burns—was not a foreseeable consequence of that negligence. Proximate causation therefore fails, and Patterson will probably lose for that reason.