NCBE Torts
A man was driving his new car along a dark road with the car's high-beam headlights on to illuminate the road. When he saw the headlights of another car appear in the distance, he reached to turn the high beams off. Instead of turning from high-beam to low-beam, the headlights on the car turned off completely. The man tried repeatedly to turn the lights on again but could not do so. He collided with the other car and suffered injuries. The man has brought an action against the manufacturer of the headlight controls in his car, the manufacturer of his car, and the retailer who sold him the car. If the man can establish that a defect in the controls caused the accident, from whom can he recover?
All three defendants. - To establish a prima facie case in products liability based on strict liability in tort, the following elements must be proved: (1) the defendant is a commercial supplier; (2) the defendant produced or sold a product that was defective when it left the defendant's control; (3) the defective product was the actual and proximate cause of the plaintiff's injury; and (4) the plaintiff suffered damages to person or property. A "commercial supplier" can include a manufacturer (including the manufacturer of a defective component part), retailer, assembler, or wholesaler. Here, all three defendants are commercial suppliers for purposes of the headlight controls if the man establishes that a defect in the controls caused the accident.
An attempt was made to hijack a commercial airliner while it was in flight from San Francisco to New Orleans. Within minutes, however, the hijacker was seized, and the plane proceeded to its destination. Upon the plane's arrival, television stations broadcast pictures of the passengers as they disembarked. Among the passengers pictured on television was a businessman who was supposed to be in Chicago on company business. The disclosure that the businessman was in New Orleans and not in Chicago at the time resulted in the loss of his position with his company and great humiliation and embarrassment for him If the businessman asserts a claim against the television stations for broadcasting his picture as he disembarked, is he likely to prevail?
No, because the scene shown on television was newsworthy.
While visiting at his son's home, a grandfather tripped on a toy left on the floor by his four-year-old grandson. The grandfather fell and was severely injured. The grandfather regularly visited his son's home and was aware that the grandson routinely left toys scattered about the house. The son had never warned the grandfather to look out for toys. The grandfather brought an action against his son to recover for his injuries. At trial, after the close of evidence, both the grandfather and the son have moved for judgment as a matter of law as to liability. The jurisdiction has abolished intra-family immunity and applies the traditional rules of landowner liability. What action should the court take?
Grant the son's motion, because the son had no duty to warn that the grandson might leave toys on the floor. - A licensee is one who enters on the land with the landowner's permission, express or implied, for her own purpose or business rather than for the landowner's benefit; social guests are considered licensees. Because the jurisdiction has abolished intra-family immunity and applies traditional rules of landowner liability, the grandfather will have the status of a licensee. The owner or occupier owes a licensee a duty to warn of or make safe a dangerous condition known to the owner or occupier that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover. Here, the facts state that the grandfather regularly visited his son's home and was aware that the grandson routinely left toys scattered about the house. Under these circumstances, the son had no duty to warn the grandfather about the toys and thus has not breached a duty to him. Accordingly, the son's motion should be granted.
A man entered a tavern in an obviously intoxicated condition, was refused service, and was ordered to leave and escorted out. Just after leaving the tavern, the man staggered across the road toward a liquor store. As he was crossing the road, the man was struck by a car and severely injured. The man sued the tavern for his personal injuries. At trial, the evidence established the facts as set out above. At the close of the evidence, both parties moved for judgment as a matter of law. How should the court rule on these motions?
Grant the tavern's motion, because there is no evidence that the tavern breached a duty to the man
A homeowner resides downhill from a metal fabrication facility. She has sued both the owner of the facility and the supplier of a solvent used at the facility. She contends that contaminants, consisting mostly of the solvent, were released into the ground at the facility and have migrated and continue to migrate to her property, contaminating the soil, the groundwater, and her well. She alleges various acts of negligence on the part of the facility owner in causing the release of the contaminants into the ground. She also alleges that employees of the solvent supplier were negligent in frequently spilling some of the solvent onto the ground while filling a rooftop tank at the facility. The solvent supplier has moved for summary judgment, arguing that if there was any contamination, the facility owner and the supplier independently contributed indeterminate amounts to the contamination and that therefore the homeowner cannot show how much damage each has inflicted on her. There is no evidence that the facility owner and the solvent supplier acted in concert. Should the court grant the summary judgment motion?
No, because concurrent tortfeasors are jointly and severally liable for an indivisible injury. - When two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortfeasor is jointly and severally liable for that injury. This means that each is liable to the plaintiff for the entire damage incurred. Joint and several liability applies even though each tortfeasor acted entirely independently. Hence, the homeowner need not show how much damage each tortfeasor has inflicted on her; each of them may be liable to her for the entire amount of the damage. Accordingly, the summary judgment motion should be denied. - The solvent supplier and the facility owner are in a contractual relationship; there is no basis for imposing vicarious liability on the solvent supplier for the damage inflicted by the facility owne - When two or more tortfeasors act in concert and injure the plaintiff, each will be jointly and severally liable even if the injury is divisible and it could be determined what each torfeasor had done. However, joint and several liability also is available where the tortfeasors both contributed to an indivisible injury, as discussed above -*The plaintiff need not present a basis for allocating damages between the tortfeasors.*
In a tavern, an intoxicated woman threatened to slash a man with a broken beer bottle. Another customer, who had not been threatened by the woman, forcefully grabbed the woman and locked her in the tavern's storeroom until the police could arrive. In the process, although the customer used reasonable force, the customer badly sprained the woman's wrist. Is the woman likely to recover in an action against the customer?
No, because the customer's conduct was privileged as a defense of others. This is a defense to both *false imprisonment* and *battery* - When a person has reasonable grounds to believe that a third person is being, or is about to be, attacked, he may use such force as is reasonably necessary to protect the third person against the potential injury. Here, the customer intervened to prevent a man from being slashed with a broken beer bottle, and used only reasonable force against the woman. Hence, the customer's conduct was privileged as a defense of others. - Although the customer intentionally confined the woman to a bounded area, his conduct was privileged as a defense of others. He locked the woman in the storeroom just until the police could arrive so that she would not try to harm the man or anyone else in the tavern. - Although the customer intentionally used harmful force against the woman, his conduct was privileged as a defense of others. Although he badly sprained the woman's wrist, he used only reasonable force to prevent her from slashing someone with the broken beer bottle.
A homeowner was injured when an automatic cutoff switch failed to function on a snowblower he was using. The cutoff switch had functioned well for a year after he purchased the snowblower but failed after the machine had been improperly repaired by a mechanic. The snowblower's operating manual contained a clear and prominent warning against making the very alteration to the switch mechanism that was made by the mechanic. The mechanic, however, did not have a manual available when he repaired the snowblower. Does the homeowner have a viable claim against the manufacturer of the snowblower for damages?
No, because the injury resulted from a substantial alteration of the snowblower by a third party. - To hold a commercial supplier liable for a product defect, the product must be expected to, and must in fact, reach the user or consumer without substantial change in the condition in which it is supplied. Here, the cutoff switch that failed had functioned well for a year after the homeowner purchased the snowblower but failed after the machine had been improperly repaired by a mechanic. The mechanic's alteration to the switch mechanism, which the manual warned against making, will preclude the homeowner from recovering against the manufacturer. - Wrong answer: No, because the injury resulted from a substantial alteration of the snowblower by a third party. Even if the homeowner were arguably somewhat negligent in failing to furnish the manual to the mechanic, such negligence would be minimal and would not preclude the homeowner from having a claim against the manufacturer
A mother took her five-year-old child to a hospital emergency room for treatment. A doctor on the hospital staff molested the child while treating her. At the time, no one was in the treatment room except the doctor and the child; the mother had left the room to get a cup of coffee. Two weeks later, when the child told her mother what had occurred in the treatment room, the mother suffered severe emotional distress that caused her to become physically ill. In an action against the doctor by the mother on her own behalf to recover for intentional infliction of emotional distress, is the mother likely to prevail?
No, because the mother was neither the direct victim of the doctor's conduct nor a contemporaneous witness. - When the defendant intentionally causes severe, physical harm to a third person and the plaintiff suffers severe emotional distress because of her relationship to the injured person, the elements of intent and causation in an action for intentional infliction of emotional distress may be harder to prove. To establish these elements in such cases, the plaintiff is generally required to show the following: (1) the plaintiff was present when the injury occurred to the other person; (2) the plaintiff was a close relative of the injured person; and (3) the defendant knew that the plaintiff was present and a close relative of the injured person. Here, the mother was not present when the doctor molested her child, so she cannot recover under these criteria. Note that the plaintiff does not need to establish presence or a family relationship if she shows that the defendant had a design or purpose to cause severe distress to the plaintiff, but there is no evidence of that in the facts.
A man has four German shepherd dogs that he has trained for guard duty and that he holds for breeding purposes. The man has "Beware of Dogs" signs clearly posted around a fenced-in yard where he keeps the dogs. The man's next-door neighbor frequently walks past the man's house and knows about the dogs' ferocity. One summer day, the neighbor entered the man's fenced-in yard to retrieve a snow shovel that the man had borrowed during the past winter. The neighbor was attacked by one of the dogs and was severely injured. In a suit against the man, is the neighbor likely to prevail?
No, because the neighbor knew that the man had dangerous dogs in the yard
A 15-year-old boy was killed during a gang fight. Two days after his funeral, the boy's mother saw a television program about gang violence and was shocked to see video of herself weeping over the boy's body. The video had been shot by the television reporting team while the boy's body was still lying on a public street. The mother suffered severe emotional distress as a result of seeing the video. If the mother sues the television station for invasion of her privacy and that of her son, will the mother be likely to prevail?
No, because the street was open to the public and the subject was newsworthy. - The tort of invasion of privacy includes the following four kinds of wrongs: (i) appropriation by the defendant of the plaintiff's picture or name for the defendant's commercial advantage; (ii) intrusion by the defendant on the plaintiff's affairs or seclusion; (iii) publication by the defendant of facts placing the plaintiff in a false light; and (iv) public disclosures of private facts about the plaintiff by the defendant. The first branch is not applicable because the fact that the defendant is using the plaintiff's image for profit (such as television program ratings) is not sufficient; liability is generally limited to the use of plaintiff's picture or name in connection with the promotion or advertisement of a product or service. The second branch is not applicable because the intrusion must be into something private; taking video of someone on a public street is not actionable. The third branch is not applicable because nothing suggests that the video placed the plaintiff in a false light. The fourth branch is not applicable because, again, the video was taken on a public street, so the mother's weeping is not likely to be considered a private fact. Furthermore, the First Amendment likely prohibits recovery for this branch of invasion of privacy when the published matter is newsworthy unless the plaintiff establishes that the defendant acted with actual malice (knowledge of falsity or reckless disregard for the truth), which is not the case here.
A construction worker was working at the construction site of a new building. An open elevator, which had been installed in the building by the elevator manufacturer, was used to haul workers and building materials between floors. While the worker was riding the elevator, it stalled between floors due to a manufacturing defect in the elevator. The worker called for assistance and was in no danger, but after waiting 15 minutes for help, he became anxious and jumped 12 feet to get out. He severely injured his back when he landed. In an action by the worker against the elevator manufacturer to recover for his back injury, is the worker likely to obtain a judgment for 100% of his damages?
No, because the worker was not in danger while on the stalled elevator. - Under contributory negligence principles, a plaintiff is required to act as a reasonably prudent person, the same as the defendant. A plaintiff who fails to act reasonably and who negligently contributes to his injury will have his recovery reduced in jurisdictions following a pure comparative negligence rule (which is the rule applicable to MBE questions). In a case where contributory negligence is shown, the trier of fact weighs the plaintiff's negligence against that of the defendant and reduces the plaintiff's damages accordingly. Here, the worker was in no danger in the stalled elevator but nevertheless jumped 12 feet to the ground after waiting 15 minutes. The trier of fact is likely to find that the worker was at least partly at fault for his injury by jumping from that height. Hence, he will not obtain a judgment for 100% of his damages.
A young woman who attended a rock concert at a nightclub was injured when the band opened its performance with illegal fireworks that ignited foam insulation in the club's ceiling and walls. The young woman sued the radio station that sponsored the performance. The radio station has moved for summary judgment, claiming that it owed no duty to audience members. The evidence has established the following facts: The station advertised its sponsorship on the radio and in print, distributed free tickets to the concert, staffed the event with the station's interns to assist with crowd control, and provided a station disc jockey to serve as master of ceremonies. The master of ceremonies had the authority to stop or delay the performance at any time on the basis of any safety concern. The station knew or should have known that the band routinely used unlicensed, illegal fireworks in its performances. Should the court grant the radio station's motion for summary judgment?
No, because there is sufficient evidence of knowledge and control on the part of the station to impose on it a duty of care to audience members. - Here, based on all of the facts, the court could find that a duty of care extends from the radio station to the audience members. The station knew or should have known that the band routinely used unlicensed, illegal fireworks in its performances, and the station's disc jockey had the power to stop or delay the performance for safety reasons. Given the radio station's extensive control over the concert, its motion for summary judgment should be denied
A security guard, dressed in plain clothes, was working for a discount store when a customer got into a heated argument with a cashier over the store's refund policy. Without identifying himself as a security guard, the security guard suddenly grabbed the customer's arm. The customer attempted to push the security guard away, and the security guard knocked the customer to the floor, causing injuries. The customer sued the discount store for battery on a theory of vicarious liability for the injuries caused by the security guard. The store filed an answer to the customer's complaint, asserting the affirmative defense of contributory negligence. The customer has moved to strike the affirmative defense. Traditional rules of contributory negligence apply. Should the trial court grant the customer's motion?
Yes, because contributory negligence is not a defense to battery. - Contributory negligence is a defense to negligence actions but not to intentional torts actions. Battery is an intentional tort for which contributory negligence is not a defense. Hence, the court should grant the customer's motion to strike the affirmative defense.
A fumigation company was hired to eliminate pests in one of two buildings in a condominium complex that shared a common wall. The owners of the complex told the fumigation company that the common wall separating the infested building from the uninfested building was an impenetrable fire wall. The fumigation company did its own thorough inspection and determined that the buildings were indeed completely separated by the wall. Residents of the condominium units in the building that was to be sprayed were told to evacuate, but the residents of the uninfested building were told that they could remain while the other building was treated. During and shortly after the fumigation, in which a highly toxic chemical was used, many residents of the uninfested building became sick. It was determined that their illnesses were caused by the fumigation chemical. In fact, there was a hole in the fire wall separating the two buildings, but because it could only be observed from a specific position in the crawl space underneath the floor of the uninfested building, it had not been discovered by either the fumigation company or any previous building inspector. Are the residents of the uninfested building likely to prevail in a tort action against the fumigation company?
Yes, because the fumigation company can be held strictly liable for its activity. - The courts generally impose two requirements for finding an activity to be abnormally dangerous: (i) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and (ii) the activity is not a matter of common usage in the community. Fumigating is commonly held to be an abnormally dangerous activity for which strict liability is imposed - no neg claim: met duty of care. The fumigation company did its own thorough inspection of the buildings and did not rely on the information from the condominium complex owners. Even had that been the case, the fumigation company would be strictly liable for the harm that occurred.
A golfer on the golf course hit an errant shot onto the company's property, ignored the warning signs, and jumped over the fence to retrieve her golf ball. At about the same time, one of the company's balloons experienced mechanical problems and had to make an emergency landing to avoid crashing. The balloon, which was out of control when it landed, struck the golfer and injured her. The jurisdiction has decided that hot-air ballooning is an abnormally dangerous activity. In an action by the golfer against the company, does the company have any affirmative defenses?
Yes, because the golfer assumed the risk by coming onto the company's property. - A plaintiff who knowingly and voluntarily assumes the risk of injury caused by the defendant's conduct may be subject to the defense of assumption of risk. In a strict liability action, conduct constituting assumption of risk is an affirmative defense; depending on the jurisdiction, it may be a complete defense or it may reduce the plaintiff's recovery under comparative fault principles. Here, the golfer ignored the signs warning of the dangers of balloons landing and jumped over the fence to retrieve her golf ball. Accordingly, even though the company's activity is deemed abnormally dangerous and subject to strict liability, the company can defend on the basis that the golfer assumed the risk by coming onto the company's property.
After her husband died in a hospital, a widow directed the hospital to send her husband's body to a funeral home for burial. The hospital negligently misidentified the husband's body and sent it to be cremated. When she was informed of the hospital's mistake, the widow suffered serious emotional distress. She has sued the hospital. Is the hospital likely to be held liable to the widow?
Yes, because the negligent handling of the husband's body was especially likely to cause his widow serious emotional distress. - In the usual action for negligent infliction of emotional distress, the plaintiff must be within the "zone of danger" and must suffer physical symptoms from the distress. However, the plaintiff may be able to recover without proving these requirements in special situations where the defendant's negligence creates a great likelihood of severe emotional distress, such as when the defendant mishandles the corpse of a family member of the plaintiff. Here, the hospital negligently sent the body of the widow's husband to be cremated, contrary to her wishes. This conduct caused her serious emotional distress, for which the hospital is likely to be liable.
A patient who had suffered a severe fracture of her leg was treated by an orthopedist, who set the patient's leg and put it in a cast. When the leg continued to bother the patient six months later, she consulted a second orthopedist in the same town. The second orthopedist surgically inserted a pin to facilitate healing. The patient brought a malpractice action against the first orthopedist, claiming that he should have surgically inserted a pin at the time of initial treatment. The only evidence that the patient offered in support of her malpractice claim was the testimony of the second orthopedist, as follows: In response to the question "Would you have inserted a pin initially?" the second orthopedist testified, "I personally would not have been satisfied that the leg would heal properly without a pin." At the close of the patient's evidence, the first orthopedist moved for judgment as a matter of law. Should the motion be granted?
Yes, because the patient has failed to introduce evidence that the first orthopedist's care fell below the professional standard of care. - For doctors, most courts will apply a national standard of care to evaluate their conduct. This standard of care generally is established by expert testimony. Here, the only evidence the patient offered in support of her malpractice claim was the testimony of the second orthopedist. However, that orthopedist stated only that he personally would have inserted a pin to make sure the leg healed properly. He did not testify as to what treatment conforms to the requisite standard of care or whether the first orthopedist had failed to conform to that standard of care by not inserting a pin initially. Hence, the patient has not presented sufficient evidence of breach of duty to withstand a motion for judgment as a matter of law. - wrong answer: No, because the second orthopedist practices in the same town and field of specialty as the first orthopedist. *Wrong because for malpractice we apply national, not local standard of care*
A pedestrian was injured when hit by a chair that was thrown from an upper-story hotel window. The pedestrian sued the occupants of all the rooms from which the chair might have been thrown. At trial, the pedestrian has been unable to offer any evidence as to the exact room from which the chair was thrown. The defendants have filed a motion for a directed verdict. Should the court grant the motion?
Yes, because the pedestrian has failed to offer evidence that the defendants jointly engaged in tortious conduct. - n a negligence action, the plaintiff has the burden of proving that the defendant breached a duty owed to the plaintiff and that the breach of duty caused the plaintiff's injury. If multiple defendants are acting in concert or jointly engaging in tortious conduct, all of the defendants can be held jointly and severally liable for the injury. Here, the pedestrian has offered no evidence which of the particular defendants threw the chair out the window and has offered no evidence that the defendants were jointly engaged in tortious conduct. Because the pedestrian has failed to establish a prima facie case for negligence, the court should grant the defendants' motion for a directed verdict. - In situations where the fact that a particular injury occurred may tend to establish a breach of the duty owed, the plaintiff may be able to rely on res ipsa loquitur to create an inference of liability. However, the plaintiff generally must establish evidence connecting a particular defendant to the negligent conduct to rely on this doctrine. Unless the defendants were jointly engaged in the tortious conduct (which is not the case here), res ipsa loquitur generally may not be used to establish a prima facie case of negligence against any individual party. - Under the doctrine of alternative liability or alternative causes, which applies when two or more persons have been negligent but uncertainty exists as to which one caused the plaintiff's injury, once the plaintiff proves that harm has been caused to him by one of the defendants, the burden of proof shifts to defendants, and each must show that his negligence is not the actual cause of the harm. Here, the pedestrian has not shown that all of the defendants were negligent, so this doctrine is inapplicable.
