MBE - Torts

Patron ate a spicy dinner at Restaurant on Sunday night. He enjoyed the food and noticed nothing unusual about the dinner. Later that evening, Patron had an upset stomach. He slept well through the night, went to work the next day, and ate three meals. His stomach discomfort persisted, and by Tuesday morning he was too ill to go to work. Eventually, Patron consulted his doctor, who found that Patron was infected with a bacterium that can be contracted from contaminated food. Food can be contaminated when those who prepare it do not adequately wash their hands. Patron sued Restaurant for damages. He introduced testimony from a health department official that various health code violations had been found at Restaurant both before and after Patron's dinner, but that none of Restaurant's employees had signs of bacterial infection when they were tested one month after the incident. Restaurant's best argument in response to Patron's suit would be that" (A) no one else who ate at Restaurant on Sunday complained about stomach discomfort. (B) Restaurant instructs its employees to wash their hands carefully and is not responsible if any employee fails to follow these instructions. (C) Patron has failed to establish that Restaurant's food caused his illness. (D) Patron assumed the risk of an upset stomach by choosing to eat spicy food.

(A) is a good argument for Restaurant but it is not the best argument because it is only a partial response. The lack of complaints by others would not necessarily disprove that Patron was infected at Restaurant. Restaurant could be held vicariously liable for a failure of its employees to wash their hands, despite Restaurant's instructions, so (B) is incorrect. The best answer is (C). The burden is on Patron to make a causal connection between his illness and any health code violations at Restaurant, and in fact that he contracted the illness at Restaurant. The lack of other complaints from customers and the absence of signs of bacterial infection in Restaurant's employees when tested would deprive Patron of key elements of proof. (D) is incorrect as a factual matter. It was not the spicy food that caused Patron's upset stomach, so this would not help Restaurant.

In a trial to a jury, Owner proved that Power Company's negligent maintenance of a transformer caused a fire that destroyed his restaurant. The jury returned a verdict for Owner in the amount of $450,000 for property loss and $500,000 for emotional distress. The trial judge entered judgment in those amounts. Power Company appealed that part of the judgment awarding $500,000 for emotional distress. On appeal, the judgment should be (A) affirmed, because Power Company negligently caused Owner's emotional distress. (B) affirmed, because harm arising from emotional distress is as real as harm caused by physical impact. (C) reversed, because the law does not recognize a claim for emotional distress incident to negligently caused property loss. (D) reversed, unless the jury found that Owner suffered physical harm as a consequence of the emotional distress caused by his property loss.

(A) is incorrect because, although negligence and causation has been proved, the law imposes limitations on recovery for mental suffering or emotional distress not arising from physical harm to the plaintiff. (B) is incorrect because the law is somewhat cautious about awarding damages for emotional distress that was not caused by physical impact. (C) is the correct answer. The law does not recognize a claim for emotional distress incident to negligently caused property damage, regardless of whether the plaintiff also suffered physical harm as a consequence of the emotional distress. Where there has been no physical impact, the plaintiff must show both that he was physically endangered and suffered physical consequences from the emotional distress. Thus, (D) is incorrect.

Traveler was a passenger on a commercial aircraft owned and operated by Airline. The aircraft crashed into a mountain, killing everyone on board. The flying weather was good. Traveler's legal representative brought a wrongful death action against Airline. At trial, the legal representative offered no expert or other testimony as to the cause of the crash. On Airline's motion to dismiss at the conclusion of the legal representative's case, the court should (A) grant the motion, because the legal representative has offered no evidence as to the cause of the crash. (B) grant the motion, because the legal representative has failed to offer evidence negating the possibility that the crash may have been caused by mechanical failure that Airline could not have prevented. (C) deny the motion, because the jury may infer that the aircraft crashed due to Airline's negligence. (D) deny the motion, because in the circumstances common carriers are strictly liable.

(A) is incorrect because an airplane crash is a proper case for the use of the doctrine of res ipsa loquitur. The plaintiff need not prove the cause of the crash but only that (1) the occurrence is of a type that does not occur in the absence of negligence, (2) the defendant had exclusive control over the instrumentality, and (3) there was no fault of the plaintiff involved. See Newing v. Cheatham, 15 Cal.3d 351, 124 Cal. Rptr. 193 (1975). (B) is incorrect because the defendant is not entitled to a directed verdict where the plaintiff has made out a prima facie case based on the doctrine; the case must go to the jury, unless the defendant has positively ruled out the possibility of its own negligence. (C) is the correct answer. The jury may infer negligence when the res ipsa rule is applied. (D) is incorrect because common carriers are not held to a strict liability standard, although they are held to an enhanced duty, often called the highest duty of care. There must be a showing of negligence, if only slight.

Mom rushed her eight-year-old daughter, Child, to the emergency room at Hospital after Child fell off her bicycle and hit her head on a sharp rock. The wound caused by the fall was extensive and bloody. Mom was permitted to remain in the treatment room, and held Child's hand while the emergency room physician cleaned and sutured the wound. During the procedure, Mom said that she was feeling faint and stood up to leave the room. While leaving the room, Mom fainted and, in falling, struck her head on a metal fixture that protruded from the emergency room wall. She sustained a serious injury as a consequence. If Mom sues Hospital to recover damages for her injury, will she prevail? (A) Yes, because Mom was a public invitee of Hospital's. (B) Yes, unless the fixture was an obvious, commonly used, and essential part of Hospital's equipment. (C) No, unless Hospital's personnel failed to take reasonable steps to anticipate and prevent Mom's injury. (D) No, because Hospital's personnel owed Mom no affirmative duty of care.

(A) is incorrect because it does not completely state the basis for Hospital's liability here. The fact that Mom was an invitee does not mean Hospital was strictly liable for any injuries she might incur on the property. There must have been some further oversight by Hospital. (D) is incorrect because it is untrue that the hospital owed Mom no affirmative duty of care. The owner or possessor of real property owes a business or public invitee a duty to protect the invitee against known defects and those which the invitor could have discovered with the exercise of reasonable care. Even though Child was the person needed Hospital's services, Hospital's duty to invitees extended to Mom, who accompanied Child. The correct answer is (C). Hospital owed Mom a duty of reasonable care.

Karen was crossing Main Street at a crosswalk. John, who was on the sidewalk nearby, saw a speeding automobile heading in Karen's direction. John ran into the street and pushed Karen out of the path of the car. Karen fell to the ground and broke her leg. In an action for battery brought by Karen against John, will Karen prevail? (A) Yes, because John could have shouted a warning instead of pushing Karen out of the way. (B) Yes, if Karen was not actually in danger and John should have realized it. (C) No, because the driver of the car was responsible for Karen's injury. (D) No, if John's intent was to save Karen, not to harm her.

(A) is incorrect because it goes to the reasonableness of John's conduct but this is not a negligence action. The fact that John could have shouted a warning is not relevant to Karen's recovery for battery. The correct answer is (B). John's best argument is that he had a privilege to attempt to rescue Karen. This privilege could not be invoked, however, if Karen was not in danger and John should have realized it. (C) is incorrect because Karen can sue John even if she could also sue the driver of the car. The driver of the car, by placing Karen in danger, may be held liable for injuries caused by John while attempting to rescue her, but Karen may choose to sue John for those injuries directly. (D) is incorrect because John's motive is irrelevant, so long as he intended to touch Karen in a way that would be harmful or offensive and was not privileged. A hard push is a battery even if done for a benevolent motive.

Vintner is the owner of a large vineyard and offers balloon rides to visitors who wish to tour the grounds from the air. During one of the rides, Vintner was forced to make a crash landing on his own property. Without Vintner's knowledge or consent, Trespasser had entered the vineyard to camp for a couple of days. Trespasser was injured when he was hit by the basket of the descending balloon. If Trespasser sues Vintner to recover damages for his injuries, will Trespasser prevail? (A) No, unless the crash landing was made necessary by negligence on Vintner's part. (B) No, unless Vintner could have prevented the injury to Trespasser after becoming aware of Trespasser's presence. (C) Yes, because even a trespasser may recover for injuries caused by an abnormally dangerous activity. (D) Yes, if the accident occurred at a place which Vintner knew was frequented by intruders

(A) is incorrect because negligence on Vintner's part would not render him liable to Trespasser without a duty toward Trespasser. (B) is the correct answer. The duty of a landholder to a discovered trespasser is to use ordinary care to avoid injury to him. If Vintner could not have prevented the injury to Trespasser with the use of ordinary care after discovering his presence, Trespasser will not prevail. (C) is incorrect because the operation of balloon rides is probably not an abnormally dangerous activity. Whether an activity is abnormally dangerous requires consideration of a number of factors, including a high degree of risk of harm, inability to eliminate the risk by the exercise of reasonable care, and inappropriateness of the activity to the place where it is carried on. These factors would not seem to weigh in favor of strict liability in this case. (D) is incorrect because it is not enough that Vintner knew or should have known of the presence of trespassers; it is also necessary that Vintner have been negligent.

Pat had been under the care of a cardiologist for three years prior to submitting to an elective operation that was performed by Surgeon. Two days thereafter, Pat suffered a stroke, resulting in a coma, caused by a blood clot that lodged in her brain. When it appeared that she had entered a permanent vegetative state, with no hope of recovery, the artificial life-support system that had been provided was withdrawn, and she died a few hours later. The withdrawal of artificial life support had been requested by her family, and duly approved by a court. Surgeon was not involved in that decision, or in its execution. The administrator of Pat's estate thereafter filed a wrongful death action against Surgeon, claiming that Surgeon was negligent in having failed to consult a cardiologist prior to the operation. At the trial the plaintiff offered evidence that accepted medical practice would require examination of the patient by a cardiologist prior to the type of operation that Surgeon performed. In this action, the plaintiff should (A) prevail, if Surgeon was negligent in failing to have Pat examined by a cardiologist prior to the operation. (B) prevail, if the blood clot that caused Pat's death was caused by the operation which Surgeon performed. (C) not prevail, absent evidence that a cardiologist, had one examined Pat before the operation, would probably have provided advice that would have changed the outcome. (D) not prevail, because Surgeon had nothing to do with the withdrawal of artificial life support, which was the cause of Pat's death.

(A) is incorrect because the failure to consult a cardiologist, even though a negligent act, would not result in liability for Surgeon unless such consultation would have prevented or changed the outcome of the operation. The correct answer is (C). (B) is incorrect because Surgeon will not be liable for Pat's death unless the blood clot was preventable by the exercise of due care. (D) is incorrect because the withdrawal of life support would not have been the cause of Pat's death without the earlier injury from the operation by Surgeon.

Company designed and built a processing plant for the manufacture of an explosive chemical. Engineer was retained by Company to design a filter system for the processing plant. She prepared an application for a permit to build the plant's filter system and submitted it to the state's Department of Environmental Protection (DEP). As required by DEP regulations, Engineer submitted a blueprint to the DEP with the application for permit. The blueprint showed the entire facility and was signed and sealed by her as a licensed professional engineer. After the project was completed, a portion of the processing plant exploded, injuring Plaintiff. During discovery in an action by Plaintiff against Engineer, it was established that the explosion was caused by a design defect in the processing plant that was unrelated to the filter system designed by Engineer. In that action, will Plaintiff prevail? (A) Yes, if Engineer signed, sealed, and submitted a blueprint that showed the design defect. (B) Yes, because all of the plant's designers are jointly and severally liable for the defect. (C) No, because Engineer owed no duty to Plaintiff to prevent the particular risk of harm. (D) No, if Engineer was an independent contractor

(A) is incorrect. Engineer's signature on the blueprint submitted to DEP would make Engineer liable to Company for defects in the design, and might subject Engineer to sanctions from the state for any regulatory violations. It does not make Engineer liable to Plaintiff, however, absent a duty to Plaintiff. The correct answer is (C). Engineer owed no duty to Plaintiff with respect to harm from other parts of the plant that were unrelated to the filter system designed by Engineer. (D) is incorrect because regardless of whether Engineer was an employee or an independent contractor with respect to Company, Engineer could be sued for her design of a defective filter system. If she were an independent contractor, Plaintiff could only sue Engineer unless Company had a nondelegable duty. In any event, the issue here is whether Engineer can be held liable for a defect for which she was not directly responsible. Being an employee would not make her liable for the actions of other employees of Company.

Homeowner hired Arsonist to set fire to Homeowner's house so that Homeowner could collect the insurance proceeds from the fire. After pouring gasoline around the house, Arsonist lit the fire with his cigarette lighter and then put the lighter in his pocket. As Arsonist was standing back admiring his work, the lighter exploded in his pocket. Arsonist suffered severe burns to his leg. Arsonist brought an action against the manufacturer of the lighter based on strict product liability. Under applicable law, the rules of pure comparative fault apply in such actions. Will Arsonist prevail? (A) Yes, if the lighter exploded because of a defect caused by a manufacturing error. (B) Yes, if Arsonist can establish that the lighter was the proximate cause of his injury. (C) No, because the lighter was not being used for an intended or reasonably foreseeable purpose. (D) No, because Arsonist was injured in the course of committing a felony by the device used to perpetrate the felony.

(A) is the correct answer. (C) is incorrect because the purpose for which the lighter was being used is not relevant. It is the manner in which the lighter was used that must have been foreseeable. Here, the lighter was not even being used when it exploded. Arsonist used the lighter and then put it in his pocket, where it exploded. The same injury could have occurred if he had used the lighter to light a cigarette and then put the lighter in his pocket, or perhaps even if he had not used the lighter. (D) is incorrect because it is not a defense to a strict liability action that the plaintiff was committing a felony using the defective device.

Athlete, a professional football player, signed a written consent for his team's physician, Doctor, to perform a knee operation. After Athlete was under a general anesthetic, Doctor asked Surgeon, a world famous orthopedic surgeon, to perform the operation. Surgeon's skills were superior to Doctor's, and the operation was successful. In an action for battery by Athlete against Surgeon, Athlete will: (A) prevail, because Athlete did not agree to allow Surgeon to perform the operation. (B) prevail, because the consent form was in writing. (C) not prevail, because Surgeon's skills were superior to Doctor's. (D) not prevail, because the operation was successful.

(A) is the correct answer. A battery is a nonconsensual touching. Athlete's written consent was for Doctor to perform the operation, not Surgeon, so (B) is incorrect. The facts that Surgeon was more skilled and that the operation was successful do not negate the commission of a battery. Even if Athlete has suffered no actual damages he may still recover nominal damages for the battery. Thus, (C) and (D) are incorrect.

For ten years, Vacationer and Neighbor have owned summer vacation homes on adjoining lots. A stream flows through both lots. As a result of a childhood swimming accident, Vacationer is afraid of water and has never gone close to the stream. Neighbor built a dam on her property that has completely stopped the flow of the stream to Vacationer's property. In a suit by Vacationer against Neighbor, will Vacationer prevail? (A) Yes, if the damming unreasonably interferes with the use and enjoyment of Vacationer's property. (B) Yes, if Neighbor intended to affect Vacationer's property. (C) No, because Vacationer made no use of the stream. (D) No, if the dam was built in conformity with all applicable laws.

(A) is the correct answer. A substantial and unreasonable interference with the use and enjoyment of neighboring property constitutes an actionable tort. The plaintiff's intent to affect the defendant's property is irrelevant, so (B) is incorrect. The plaintiff is not entitled to deprive the defendant of potential uses of his property, regardless of whether the defendant actually makes such use of the property, so (C) is incorrect. (D) is incorrect because compliance with all applicable laws would not be a defense if Neighbor in fact were causing a substantial interference with the use and enjoyment of Vacationer's property.

The Rapido is a sports car manufactured by the Rapido Motor Co. The Rapido has an excellent reputation for mechanical reliability with one exception, that the motor may stall if the engine has not had an extended warm-up. Driver had just begun to drive her Rapido in city traffic without a warm-up when the engine suddenly stalled. A car driven by Troody rear-ended Driver's car. Driver suffered no external physical injuries as a result of the collision. However, the shock of the crash caused her to suffer a severe heart attack. Driver brought an action against the Rapido Motor Co. based on strict liability in tort. During the trial, the plaintiff presented evidence of an alternative engine design of equal cost that would eliminate the stalling problem without impairing the functions of the engine in any way. The defendant moves for a directed verdict at the close of the evidence. This motion should be (A) denied, because the jury could find that an unreasonably dangerous defect in the engine was a proximate cause of the collision. (B) denied, if the jury could find that the Rapido was not crashworthy. (C) granted, because Troody's failure to stop within an assured clear distance was a superseding cause of the collision. (D) granted, if a person of normal sensitivity would not have suffered a heart attack under these circumstances.

(A) is the correct answer. Driver has put on sufficient evidence to support a finding of liability on the basis of defective design. (B) is incorrect because the plaintiff has not put on any evidence that the Rapido was not crashworthy, i.e., that Driver's injuries were caused by the Rapido's inability to withstand the crash. (C) is incorrect because Troody's failure to stop when the Rapido suddenly stalled in traffic was a foreseeable intervening cause, not a superseding cause. (D) is incorrect because it was foreseeable that some physical harm would come to Driver as a result of being rear-ended by Troody. Troody must take the plaintiff as he finds her and is liable for any injuries that are not extraordinary in hindsight.

Driver negligently drove his car into Pedestrian, breaking her leg. Pedestrian's leg was put in a cast, and she used crutches to get about. While shopping at Market, her local supermarket, Pedestrian nonnegligently placed one of her crutches on a banana peel that had been negligently left on the floor by the manager of Market's produce department. Pedestrian's crutch slipped on the peel, and she fell to the floor, breaking her arm. Had Pedestrian stepped on the banana peel at a time when she did not have to use crutches, she would have regained her balance. Pedestrian sued Driver and Market for her injuries. Pedestrian will be able to recover from: (A) Driver, for her broken leg only. (B) Driver, for both of her injuries. (C) Market, for both of her injuries. (D) Driver, for her broken leg only, and Market, for her broken arm only.

Driver can be held liable for both Pedestrian's broken leg and her broken arm. Driver's negligence is a "but for" cause of her broken arm as well as the broken leg because she would not have slipped if she had not been on crutches as a result of the broken leg caused by Driver. Although Market was also negligent, its negligence alone would not have been sufficient to cause the injury. Driver's negligence was a substantial factor in the injury to Pedestrian's arm. Thus, (B) is correct and (A) and (D) are incorrect. (C) is incorrect because Market has no liability for the broken leg. There is no causal relationship between the negligence of Market's produce manager and Pedestrian's broken leg.

Del's sporting goods shop was burglarized by an escaped inmate from a nearby prison. The inmate stole a rifle and bullets from a locked cabinet. The burglar alarm at Del's shop did not go off because Del had negligently forgotten to activate the alarm's motion detector. Shortly thereafter, the inmate used the rifle and ammunition stolen from Del in a shooting spree that caused injury to several people, including Paula. If Paula sues Del for the injury she suffered, will Paula prevail? (A) Yes, if Paula's injury would have been prevented had the motion detector been activated. (B) Yes, because Del was negligent in failing to activate the motion detector. (C) No, because the storage and sale of firearms and ammunition is not an abnormally dangerous activity. (D) No, unless there is evidence of circumstances suggesting a high risk of theft and criminal use of firearms stocked by Del.

Even though Del was negligent in failing to activate the motion detector on his security alarm, Del will not be liable to Paula if the inmate's criminal act is considered a superseding cause. Del's negligence constitutes a "but for" cause of Paula's injury, but it is also necessary to find that the inmate's act was not a superseding cause, so (A) is incorrect. (B) is incorrect because Del's negligence alone, if not the proximate cause of Paula's injury, will not render him liable to Paula. (C) is incorrect. The storage and sale of firearms is an activity that can be conducted reasonably safely and thus is not an abnormally dangerous activity as a matter of law. (D) is the correct answer. The inmate's criminal act will not supersede Del's liability if theft and use of Del's firearms by criminals was foreseeable.

The police in City notified local gas station attendants that a woman, known as Robber, recently had committed armed robberies at five City gas stations. The police said that Robber was approximately 75 years old, had white hair, and drove a vintage, cream-colored Ford Thunderbird. Attendants were advised to call police if they saw her, but not to attempt to apprehend her. Armed robbery is a felony under state law. Traveler was passing through City on a cross-country journey. Traveler was a 75-year-old woman who had white hair and drove a vintage, creamcolored Ford Thunderbird. When Traveler drove into Owner's gas station, Owner thought Traveler must be the robber wanted by the police. After checking the oil at Traveler's request, Owner falsely informed Traveler that she had a broken fan belt, that her car could not be driven without a new belt, that it would take him about an hour to replace it, and that she should stay in his office for consultation about the repair. Traveler was greatly annoyed that her journey was delayed, but she stayed in Owner's office while she waited for her car. Owner telephoned the police and, within the hour, the police came and questioned Traveler. The police immediately determined that Traveler was not Robber, and Traveler resumed her journey without further delay. In Traveler's action for false imprisonment against Owner, Traveler will (A) not prevail, if Owner reasonably believed that Traveler was Robber. (B) not prevail, because Traveler suffered no physical or mental harm. (C) prevail, if Traveler reasonably believed she could not leave Owner's premises. (D) prevail, because Owner lied to Traveler about the condition of her car.

False imprisonment is an intentional tort. If the defendant intentionally confined the plaintiff without her consent, the tort of false imprisonment has been committed, regardless of whether the defendant had a reasonable belief that he was privileged to do so. (A) is incorrect. Owner would have had a defense if making a lawful arrest, but since it was in fact unlawful, Owner has no defense. There can usually be no liability for false imprisonment unless the person confined is aware of her confinement. So, if Traveler reasonably believed she could not leave the Owner's gas station, then she may have an action. Therefore (C) is correct. The nature of false imprisonment lies in the confinement of the plaintiff, not in physical or mental harm, so (B) is incorrect.

As Seller, an encyclopedia salesman, approached the grounds on which Hermit's house was situated, he saw a sign that said, "No salesmen. Trespassers will be prosecuted. Proceed at your own risk." Although Seller had not been invited to enter, he ignored the sign and drove up the driveway toward the house. As he rounded a curve, a powerful explosive charge buried in the driveway exploded, and Seller was injured. Can Seller recover damages from Hermit for his injuries? (A) Yes, if Hermit was responsible for the explosive charge under the driveway. (B) Yes, unless Hermit, when he planted the charge, intended only to deter, not to harm, a possible intruder. (C) No, because Seller ignored the sign, which warned him against proceeding further. (D) No, if Hermit reasonably feared that intruders would come and harm him or his family.

Hermit would have a defense of defense of property if he used only enough force to protect the property. The owner must first make a verbal demand that the intruder stop before using force, particularly where the intruder is merely a trespasser rather than a burglar. Potentially deadly force is not appropriate in defense of property alone; the property owner must believe that he or she is in imminent danger of death or serious bodily harm. (A) is the correct answer. Proof of intent to harm intruders is not necessary since planting an explosive device was likely to cause serious bodily harm or death. See Katko v. Briney, 183 N.W.2d 657 (Iowa 1971) [loaded spring gun]. Thus, (B) is incorrect. (C) is incorrect. The sign was not an effective warning since it referred only to prosecution, not physical harm. Furthermore, where the defensive device installed by the homeowner could inflict serious bodily harm or death, even a clear warning would likely not justify the use of such force unless the homeowner was in fact in apparent danger of the same. (D) is incorrect because Hermit's fear of harm had to be a fear of imminent bodily harm before he would be justified in using potentially deadly force.

While approaching an intersection with the red light against him, Motorist suffered a heart attack that rendered him unconscious. Motorist's car struck Child, who was crossing the street with the green light in her favor. Under the state motor vehicle code, it is an offense to drive through a red traffic light. Child sued Motorist to recover for her injuries. At trial it was stipulated that (1) immediately prior to suffering the heart attack, Motorist had been driving within the speed limit, had seen the red light, and had begun to slow his car; (2) Motorist had no history of heart disease and no warning of this attack; (3) while Motorist was unconscious, his car ran the red light. On cross motions for directed verdicts on the issue of liability at the conclusion of the proofs, the court should (A) grant Child's motion, because Motorist ran a red light in violation of the motor vehicle code. (B) grant Child's motion, because, in the circumstances, reasonable persons would infer that Motorist was negligent. (C) grant Motorist's motion, because he had no history of heart disease or warning of the heart attack. (D) deny both motions and submit the case to the jury, to determine whether, in the circumstances, Motorist's conduct was that of a reasonably prudent person.

If Motorist had been conscious and in control of the vehicle at the time his car ran the red light, the code violation would constitute negligence per se. However, violations of this nature may be excused by circumstances such as the fact that Motorist was unconscious and had not intended to run the red light before he passed out. Thus, (A) is incorrect. Under the circumstances, reasonable persons could not conclude that Motorist was negligent, so (B) is incorrect. Without a conscious violation of a criminal law, there is no evidence of negligence by Motorist. Because there is no evidence of negligence, the court must grant Motorist's motion for a directed verdict and should not submit the case to the jury. Thus, (C) is correct and (D) is incorrect.

Orderly, a male attendant who worked at Hospital, had sexual relations with Patient, a severely retarded person, in her room at Hospital. In a tort action brought on Patient's behalf against Hospital, Patient will (A) not prevail, if Orderly's actions were outside the scope of his employment. (B) not prevail, if Patient initiated the relationship with Orderly and encouraged his actions. (C) prevail, if Orderly was an employee of Hospital. (D) prevail, if Hospital failed to use reasonable care to protect Patient from such conduct.

Orderly committed a criminal act. Thus, vicarious liability would not ordinarily be imposed on his employer for such act. (A) is merely another way of saying that Hospital could be vicariously liable, so (A) is incorrect. Because Orderly's status as an employee of Hospital is not sufficient to impose liability on Hospital, (C) is incorrect. The correct answer is (D). Hospital's liability here is direct, not vicarious. It is the duty of an employer in the hiring and retention of employees. If Hospital was negligent in hiring and supervising Orderly, and could have protected Patient from such conduct with the exercise of reasonable care, Hospital can be held liable. Hospitals have a duty to screen and monitor their staff to prevent sexual misconduct with patients. O'Shea v. Phillips, 746 So.2d 1105 (Fla. App. 1999).

Perry suffered a serious injury while participating in an impromptu basketball game at a public park. The injury occurred when Perry and Dever, on opposing teams, each tried to obtain possession of the ball when it rebounded from the backboard after a missed shot at the basket. During that encounter, Perry was struck and injured by Dever's elbow. Perry now seeks compensation from Dever. At the trial, evidence was introduced tending to prove that the game had been rough from the beginning, that elbows and knees had frequently been used to discourage interference by opposing players, and that Perry had been one of those making liberal use of such tactics. In this action, will Perry prevail? (A) Yes, if Dever intended to strike Perry with his elbow. (B) Yes, if Dever intended to cause a harmful or offensive contact with Perry. (C) No, because Perry impliedly consented to rough play. (D) No, unless Dever intentionally used force that exceeded the players' consent.

Participating in an impromptu basketball game, knowing that the game will be rough, constitutes an implied assumption of the risk by Perry. Assumption of the risk bars a plaintiff's recovery unless the defendant intentionally used force that exceeded the players' consent. (D) is thus the best answer. (A) is the wrong choice because intentional touching with the elbow was within the players' implied consent in this game. (B) is incorrect because what would otherwise be a battery may be comprehended within Perry's implied consent. (C) is not the best choice because it does not state the exception to the rule. (D) is a more complete statement of the applicable law.

The warden of State Prison prohibits the photographing of the face of any prisoner without the prisoner's consent. Photographer, a news photographer, wanted to photograph Mobster, a notorious organized crime figure incarcerated at State Prison. To circumvent the warden's prohibition, Photographer flew over the prison exercise yard and photographed Mobster. Prisoner, who was imprisoned for a technical violation of a regulatory statute, happened to be standing next to Mobster when the photograph was taken. When the picture appeared in the press, Prisoner suffered severe emotional distress because he believed that his business associates and friends would think he was consorting with gangsters. Prisoner suffered no physical harm as the result of his emotional distress. Prisoner brought an action against Photographer for intentional or reckless infliction of emotional distress. What is the best argument that Photographer can make in support of a motion for summary judgment? (A) No reasonable person could conclude that Photographer intended to photograph Prisoner. (B) Prisoner did not suffer any physical injury arising from the emotional distress. (C) As a news photographer, Photographer was privileged to take photographs that others could not. (D) No reasonable person could conclude that Photographer's conduct was extreme and outrageous as to Prisoner.

The Restatement of Torts 2d §46 provides: "One who, by extreme and outrageous conduct, intentionally or recklessly causes severe emotional distress to another, is subject to liability for such emotional distress, and if bodily harm results from it, for such bodily harm." Intent to photograph Prisoner would not be required if Photographer acted in reckless disregard of the probable consequences of his behavior, so (A) is incorrect. Physical injury is not a necessary element of the cause of action for intentional or reckless infliction of emotional distress, so (B) is incorrect. The New York Times rule of privilege to report newsworthy events and about public figures has been applied to invasion of privacy cases but not to intentional torts such as infliction of emotional distress. If the tort is proven, no news privilege would protect Photographer. The correct answer is (D). Photographer's best argument is that, under all the circumstances, his conduct was not extreme and outrageous.

Because of Farmer's default on his loan, the bank foreclosed on the farm and equipment that secured the loan. Among the items sold at the resulting auction was a new tractor recently delivered to Farmer by the retailer. Shortly after purchasing the tractor at the auction, Pratt was negligently operating the tractor on a hill when it rolled over due to a defect in the tractor's design. He was injured as a result. Pratt sued the auctioneer, alleging strict liability in tort. The jurisdiction has not adopted a comparative fault rule in strict liability cases. In this suit, the result should be for the (A) plaintiff, because the defendant sold a defective product that injured the plaintiff. (B) plaintiff, if the defendant failed to inspect the tractor for defects prior to sale. (C) defendant, because he should not be considered a "seller" for purposes of strict liability in tort. (D) defendant, because the accident was caused in part by Pratt's negligence.

The auctioneer was not a seller or supplier in the normal chain of distribution of this product, so he should not be held liable under a strict products liability theory. Liability for the sale of a defective product by one not in the chain of distribution would require negligence on the part of the seller. Thus, (A) is incorrect, and (C) is correct. (B) is incorrect because the defendant auctioneer did not have a duty to inspect the tractor. One who buys items second-hand at auction is expected to know that such items are sold "as is" unless a warranty is expressly given. The seller is not a merchant in the business of selling goods of that kind, so no implied warranty of merchantability arises. (D) is incorrect because in a comparative negligence jurisdiction Pratt's own negligence would not completely bar his recovery.

Powell, who was an asbestos insulation installer from 1955 to 1965, contracted asbestosis, a serious lung disorder, as a result of inhaling airborne asbestos particles on the job. The asbestos was manufactured and sold to Powell's employer by the Acme Asbestos Company. Because neither Acme nor anyone else discovered the risk to asbestos installers until 1966, Acme did not provide any warnings of the risks to installers until after that date. Powell brought an action against Acme based on strict liability in tort for failure to warn. The case is to be tried before a jury. The jurisdiction has not adopted a comparative fault rule in strict liability cases. In this action, an issue that is relevant to the case and is a question for the court to decide as a matter of law, rather than for the jury to decide as a question of fact, is whether (A) a satisfactory, safer, alternative insulation material exists under today's technology. (B) the defendant should be held to the standard of a prudent manufacturer who knew of the risks, regardless of whether the risks were reasonably discoverable before 1966. (C) the defendant should reasonably have known of the risks of asbestos insulation materials before 1966, even though no one else had discovered the risks. (D) the asbestos insulation materials to which the plaintiff was exposed were inherently dangerous.

The defendant in a strict liability failure-to-warn case is required to warn only of dangers that were known or reasonably should have been known to the defendant at the time of delivering the product. (A) is incorrect because today's technology is not relevant where the failure to warn occurred decades ago. (B) is correct because the standard to which the defendant should be held is a question of law for the court. This standard is relevant even if the defendant argues that the state of the art was such that most manufacturers did not know of the danger because a duty to warn may be imposed even where the defendant cannot be charged with knowledge of the risk, so long as the risk was reasonably discoverable. (C) is incorrect because, although this is a relevant question, the issue of whether the defendant should have known of the risks of asbestos at that point in time is a fact issue that would go to the jury. (D) is incorrect because, although the danger posed by the insulation materials is relevant to the application of strict liability and the duty to warn, it is a fact question that should be posed to the jury. Asbestos itself may be deemed an obvious danger of which there is no duty to warn, but the extent to which these insulation materials posed an actual risk to the plaintiff as a result of their asbestos content would be a fact question for the jury.

The day after Seller completed the sale of his house and moved out, one of the slates flew off the roof during a windstorm. The slate struck Pedestrian, who was on the public sidewalk. Pedestrian was seriously injured. The roof is old and has lost several slates in ordinary windstorms on other occasions. If Pedestrian sues Seller to recover damages for his injuries, will Pedestrian prevail? (A) Yes, because the roof was defective when Seller sold the house. (B) Yes, if Seller should have been aware of the condition of the roof and should have realized that it was dangerous to persons outside the premises. (C) No, because Seller was neither the owner nor the occupier of the house when Pedestrian was injured. (D) No, if Pedestrian knew that in the past slates had blown off the roof during windstorms.

The fact that the roof was defective when Seller sold the house might give rise to a cause of action by the purchaser if the defect is one that should have been disclosed. However, this theory would not help Pedestrian, and the fact that the roof was defective would not in itself render Seller liable to Pedestrian without negligence, so (A) is incorrect. The correct answer is (B). The general rule is that there is no liability on the part of a seller to the buyer or to third persons for any condition present at the time possession was surrendered to the buyer. There are exceptions, however. If the land was sold with dangerous conditions known to the seller, the mere transfer of title may not terminate the seller's responsibility, especially where the danger was created by the seller's negligence. The seller may remain liable for foreseeable injuries, including to persons outside the premises, at least until the buyer has had a reasonable opportunity to discover the dangerous condition and repair it. Seller's duty to Pedestrian was not that of a landholder, since he did not own the house at the time of the injury, and Pedestrian was injured outside the property on a public sidewalk. However, Seller can be liable on a negligence theory to any foreseeable plaintiff injured by his negligence, so (C) is incorrect. (D) is too narrow. Pedestrian need not have known of the danger to be barred from recovery.

Neighbor, who lived next door to Homeowner, went into Homeowner's garage without permission and borrowed Homeowner's chain saw. Neighbor used the saw to clear broken branches from the trees on Neighbor's own property. After he had finished, Neighbor noticed several broken branches on Homeowner's trees that were in danger of falling on Homeowner's roof. While Neighbor was cutting Homeowner's branches, the saw broke. In a suit for conversion by Homeowner against Neighbor, will Homeowner recover? (A) Yes, for the actual damage to the saw. (B) Yes, for the value of the saw before Neighbor borrowed it. (C) No, because when the saw broke Neighbor was using it to benefit Homeowner. (D) No, because Neighbor did not intend to keep the saw.

The tort of conversion or trespass to chattels is committed when the defendant exercises dominion over the plaintiff's personal property, interfering with the plaintiff's possessory interest in the property. It is irrelevant that the defendant was acting in good faith or intended to return the chattel after using it, so (C) and (D) are incorrect. Where there has been a conversion of personal property, the remedy is to award the plaintiff actual damages. (A) does not explain how such damages are to be measured, however, so (B) is a better answer. The measure of damages when an item of personal property is completely destroyed as a result of a conversion is the fair market value of the item before the conversion. Here the saw is broken and we are not told that it can be repaired, so (B) is the best answer.

Fran, who was driving at an excessive speed, applied her brakes to stop at a traffic light. Due to damp, fallen leaves, her car skidded and came to a halt perpendicular to the roadway. Sid, who was also driving at an excessive speed and was immediately behind Fran, saw Fran's car perpendicular to the roadway. Although Sid had sufficient distance to come to a slow, controlled stop, he decided not to slow down but, rather, to swerve to the left in an effort to go around Fran's car. Due to oncoming traffic, the space was insufficient and Sid's car collided with Fran's car, severely injuring Fran. Fran filed a personal injury action against Sid in a jurisdiction in which contributory negligence is a bar to recovery. Will Fran prevail? (A) Yes, if the jury finds that Sid was more than 50% at fault. (B) Yes, if the jury finds that Sid had the last clear chance. (C) No, if the jury finds that Fran's conduct was in any way a legal cause of the accident. (D) No, if the jury finds that, in speeding, Fran assumed the risk.

This is not a comparative negligence jurisdiction, so (A) is incorrect. Fran could recover if she were 49% at fault in a comparative negligence jurisdiction, but not in a contributory negligence jurisdiction. In a contributory negligence jurisdiction, the plaintiff's contributory negligence in any degree generally constitutes a complete bar to her recovery. However, most states mitigate the harshness of this result by allowing the plaintiff to recover despite her own negligence if she can establish that the defendant had the last clear chance to avoid causing the plaintiff's injury. Thus, (B), which takes last clear chance into consideration, is a better answer than (C), which would apply the strict contributory negligence doctrine. (D) is incorrect because assumption of the risk is inapplicable. Fran did not know of or consent to Sid's active negligence in speeding as well.

Farmer owns a small farm with several head of cattle, which are kept in a fenced grazing area. One day the cattle were frightened by a thunderstorm, an occasional occurrence in the area. The cattle broke through the fence, entered onto Neighbor's property, and severely damaged Neighbor's crops. Under the law of the state, landowners are not required to erect fences to prevent the intrusion of livestock. If Neighbor sues Farmer to recover for the damage done to his crops, will Neighbor prevail? (A) Yes, because Farmer's cattle caused the damage to Neighbor's crops. (B) Yes, if Farmer's cattle had panicked during previous thunderstorms. (C) No, unless the fence was negligently maintained by Farmer. (D) No, because the thunderstorm was a force of nature.

Under the Restatement of Torts, 2d, §504, the possessor of livestock is strictly liable for damage done by the animals' trespass. Thus, (A) is correct. Farmer's prior knowledge or reason to know of the animals' propensity to panic during thunderstorms is not required, so (B) is incorrect. Some jurisdictions require that the plaintiff in an action for trespass by livestock have built a fence to prevent intrusions on his property by cattle; other jurisdictions impose a duty on those keeping cattle to fence them in. This jurisdiction does not have such a requirement, but if Farmer undertook to build a fence, he could be found liable for negligent maintenance. Section 504(3)(c) of the Restatement 2d says that strict liability under this section does not extend to harm "brought about by the unexpectable operation of a force of nature." The illustration in the official Comments indicates that where lightning strikes the fence and destroys part of it, so the defendant's cattle escape, the defendant will not be held liable. The thunderstorm did not create the breach in the fence in this case, however; this was done by the defendant's livestock. Therefore, Farmer cannot use the "force of nature" defense and will be held strictly liable

Actor, a well-known movie star, was drinking Vineyard wine at a nightclub. A bottle of the Vineyard wine, with its label plainly showing, was on the table in front of Actor. An amateur photographer asked Actor if he could take his picture and Actor said, "Yes." Subsequently, the photographer sold the photo to Vineyard. Vineyard, without Actor's consent, used the photo in a wine advertisement in a nationally circulated magazine. The caption below the photo stated, "Actor enjoys his Vineyard wine." If Actor sues Vineyard to recover damages as a result of Vineyard's use of the photograph, will Actor prevail? (A) No, because Actor consented to being photographed. (B) No, because Actor is a public figure. (C) Yes, because Vineyard made commercial use of the photograph. (D) Yes, unless Actor did, in fact, enjoy his Vineyard wine.

When Actor consented to being photographed by an amateur photographer, he may have reasonably assumed that the photograph was being taken for non-commercial use. Consent to being photographed did not constitute consent to its commercial use without Actor's knowledge, so (A) is incorrect. (B) is incorrect because the fact that Actor is a public figure does not mean that his name and likeness is in the public domain for all purposes. Actor has a property right in his name and likeness and may sue for their unauthorized use for commercial advertising purposes. Some courts now call this a "right of publicity" where the plaintiff is a celebrity, to distinguish it from the tort of invasion of privacy by appropriation of the name and likeness of an ordinary, nonpublic plaintiff. The right of publicity includes the right of certain plaintiffs, such as entertainers and other public personalities, to control the commercial use of their names and likenesses. See Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983). The correct answer is (C). Actor may recover for the tort of invasion of privacy by appropriation of his name and likeness (or the right of publicity) because Vineyard used these to advertise Vineyard's product without Actor's consent. The fact that the statement made in the advertisement was true would not constitute a defense to the tort of invasion of privacy, so (D) is incorrect.

Employer retained Doctor to evaluate medical records of prospective employees. Doctor informed Employer that Applicant, a prospective employee, suffered from AIDS. Employer informed Applicant of this and declined to hire her. Applicant was shocked by this news and suffered a heart attack as a result. Subsequent tests revealed that Applicant in fact did not have AIDS. Doctor had negligently confused Applicant's file with that of another prospective employee. If Applicant sued Doctor for damages, on which of the following causes of action would Applicant recover? I. Invasion of privacy. II. Negligent misrepresentation. III. Negligent infliction of emotional distress. (A) III only. (B) I and II only. (C) II and III only. (D) I, II, and III.

to Employer, with whom Applicant was applying for a job. In conducting the examination of her records and reporting to Employer, Doctor did not intrude upon Applicant's seclusion, publish materials obtained unlawfully, or give unreasonable publicity to her private life. Thus, (B) and (D) may be eliminated because they include this cause of action. (C) is incorrect because it includes negligent misrepresentation. This cause of action would not be available to Applicant as a plaintiff because Doctor did not supply erroneous information to Applicant on which Applicant relied to her detriment. The correct answer is (A). The only viable cause of action for Applicant is negligent infliction of emotional distress. Doctor's negligence caused emotional distress and resulting physical injury to Applicant.