Quiz #2: Duty and Breach

Logan owns a boat that he uses to take people on international boating vacations. Logan does not own a satellite phone, which could be used to reach someone in the event of an emergency out at sea and far from shore. Logan takes a group of vacationers including Carrie on a trip around the world. While out at sea, Carrie has a medical emergency requiring immediate advice from a doctor. But far out at sea, and without a satellite phone, they cannot get advice from a doctor. As a result, Carrie's injuries are much worse. In assessing whether Logan is negligent in not having a satellite phone on board: (A) The jury should consider the cost of the satellite phone, balanced against the increased risk of injury from not having the phone. (B) The jury should consider only the cost of the phone in evaluating Logan's negligence. (C) The jury should consider only the risk of injury in not having the phone in evaluating Logan's negligence. (D) The jury should consider only whether other boats carry satellite phones, not the costs or benefits of having one.

(A) Rationale: A key aspect in evaluating breach is a balancing of the costs of taking precautions with the gravity of harm and severity of harm if the precaution is not taken. This is the balancing test (or Hand Formula or Carroll Towing test). Choice A states the proper balancing test. Choices B and C incorrectly focus on just one side of the balancing equation (costs or benefits) in evaluating negligence. Choice D is incorrect because it says that industry custom is the only relevant question for determining negligence. In fact, the modern approach is that balancing is a primary approach (aside from in medical malpractice cases), with evidence of custom also admissible.

Oliver is driving 75 miles per hour on Oak Street, taking his mother, who he suspects is having a heart attack, to the hospital. Unfortunately, in speeding Oliver crashes into Penny, who is crossing the street. A state statute sets the speed limit on streets including Oak Street at 35 miles per hour. Which statement is true about Penny's suit for negligence against Oliver? (A) A jury may find Oliver not negligent even though he violated the statute. (B) A jury must find Oliver negligent, because he violated the statute. (C) A jury may not consider the speed limit in evaluating Oliver's negligence. (D) A jury may not consider the speed limit in evaluating Oliver's negligence as applied to Penny, because Penny is a pedestrian, not another driver.

(A) Rationale: There is little doubt Penny could make out the elements of negligence per se: the statute required Oliver to comply with the speed limit; Oliver failed to comply; the statute is meant to protect everyone on the street, including pedestrians (making Choice D incorrect); to prevent these kinds of crashing accidents; and the speeding is a cause of Penny's injury. However, a jury may excuse violation of the statute for a number of reasons, including emergencies. This is not to say that the jury must excuse Oliver, only that it may. Choice A correctly states this rule, and Choices B and C are incorrect for this reason.

Sonia works as a jail guard with the county jail. One day Sonia takes three prisoners, including Mike, to work picking up trash on the side of the highway. Sonia sits in the jail van while the prisoners work. Sonia is supposed to be guarding the prisoners, but she falls asleep. Mike stops a car on the highway. Mike beats up Al, who was driving the car. If Al sues Sonia for negligence: (A) Al will win, because Sonia breached a duty of care to him. (B) Al will win, because prison guards are strictly liable for the torts of their prisoners. (C) Al will lose, because Sonia had no duty of care to him. (D) Al will lose, because Mike, not Sonia, battered him.

(A) Rationale: This question shows that a special relationship can create a duty to others. Here, the special relationship is between the jail guard and the prisoner. Jailers control the movement of inmates, and courts have recognized that this power creates the special relationship. But this means more than that the jailer must help an inmate in danger; it also means that a jailer has a responsibility to make sure that the inmate does not harm others. Here, Sonia's special relationship with Mike created a duty to those Mike might injure, including Al. Sonia falling asleep on the job when she should have been watching the prisoners constitutes a breach of care. For this reason, Choice A is correct. Choice B is incorrect because the question asks about negligence and because prison guards are not strictly liable for the torts of their prisoners. Choice C is incorrect because Sonia did have a duty of care. Choice D is incorrect because even though Mike committed an intentional tort, it was Sonia's negligence that gave Mike the opportunity to commit the battery.

Fran works as a therapist. One of her patients, Quincy, tells her he is having fantasies of killing a stranger. Fran works with Quincy to help him with his mental problems, but she does not go to the police or tell anyone else. The next day Quincy kills Tom. Tom's family sues Fran, alleging she was negligent in not going to the police. Under the famous case of Tarasoff v. Regents of University of California, could Fran be liable for failing to go to the police? (A) No, because therapists have an absolute privilege of confidentiality. (B) No, because Quincy did not mention the names of an identifiable victim or victims. (C) Yes, because therapists must warn the police when it is reasonably likely a patient will commit an act of violence. (D) Yes, because Tarasoff eliminated the privilege of confidentiality.

(B) Rationale: The Tarasoff case held that although therapists generally do have a privilege to keep conversations with patients confidential, that privilege ends when the patient makes a credible threat of violence to identifiable victim or victims. At that point, the special relationship between therapist and patient requires warning the victim or victims and the police. For this reason, Choices A and D are incorrect. In this case, unlike Tarasoff, there were not threats to an identifiable victim or victims, only a possible threat to strangers. Choice B correctly states this rule, while Choice C incorrectly leaves out the identifiability requirement.

Joe was carefully driving when he came upon what appeared to be a serious accident on the other side of a divided highway. Ambulances and firetrucks were everywhere. Traffic on Joe's side of the highway had slowed as drivers saw the accident. As Joe passed the accident scene, one of the vehicles involved in the accident exploded. Joe couldn't help but be startled and in doing so crashed into the car ahead of him driven by Sam. Sam sues Joe for negligence. Which alternative best describes the likely outcome? (A) Joe has a good case because he was complying with all traffic laws at the time. (B) Joe has a good case because he was going slow and it was really hard to ignore the explosion. (C) Joe is more than likely to lose because he knew there were cars ahead of him. (D) Joe is more than likely to lose because he caused the injury to Sam.

(B) Rationale: The question involves application of the negligence standard and the balancing of risks and burdens. Choice A is incorrect because a person may still be negligent even if in compliance with all statutes. Choice C is not wrong and certainly Joe's behavior would be judged in assumption that he knew other cars were present. However, the question overstates the likelihood that one factor alone will support a case for negligence. His attention was distracted by the accident and a jury could conclude that distraction made his behavior reasonable. Thus, Choice B is the best choice. Choice D is not correct because causation without negligence does not create liability.

Gene loves to garden, though he's not very smart or good at gardening. He bought a lot of chemicals to kill weeds in his garden, and even though the labels on the chemicals explain that they should be stored in locations in which the temperature is below 90 degrees, Gene puts the chemicals in his unventilated shed, which gets well above 100 degrees during the summer. Gene's neighbor Mary sees Gene putting the chemicals in the shed. She warns him that this is dangerous, especially in the summer. Gene tells Mary that he will chance it. He honestly believes the chemicals would be okay in the shed. Unfortunately, the chemicals heat up in the shed and explode, killing Mary's dog. Mary sues Gene for negligence. Should the jury find that Gene breached his duty to Mary? (A) No, if the jury believes Gene honestly was as careful as he could be. (B) No, if the jury believes Gene acted like a reasonably prudent person under the circumstances. (C) Yes, if the jury finds that Gene was telling the truth. (D) Yes, if the jury finds that Gene acted reasonably.

(B) Rationale: This is a tricky question because of how it is worded, but it is not conceptually difficult. In order to be found to have breached a duty, a defendant must fail to act as a reasonably prudent person under the circumstances. If a defendant acts like a reasonably prudent person, then there is no breach. Choice B correctly explains that if the jury believes Gene acted reasonably, there is no breach. You may have been put off by this answer because on these facts you believe Gene acted unreasonably. I believe that too, but you have to pick the best choice, and here are the reasons why the other choices are worse: Choice A is wrong because honest subjective beliefs do not protect a defendant from a finding of breach if the defendant fails to act like a reasonable person. Choice C is doubly wrong: First, subjective beliefs are irrelevant. Second, a jury is not more likely to find breach if it finds that the defendant acted honestly. Choice D is wrong because a jury's finding that Gene acted reasonably provides grounds for concluding Gene did not breach, and not grounds for concluding that Gene did breach.

Dolly is driving down the street when, because of mental illness, she has a delusion she is being chased by aliens. She comes up too quickly upon Walid, who is in a wheelchair crossing the street. Although the traffic signal had already turned red, Walid was still in the intersection trying to cross the street. Dolly crashes into Walid, seriously injuring him. Walid sues Dolly for negligence. Dolly defends, in part, by arguing that Walid was negligent in crossing the street. In assessing the reasonableness of each party's conduct: (A) The jury should be instructed to take into account Dolly's disability. (B) The jury should be instructed to take into account Walid's disability. (C) The jury should be instructed to take into account both Dolly's disability and Walid's disability. (D) The jury should not be instructed to take into account either Dolly's or Walid's disability.

(B) Rationale: This question shows the contrast between whether juries may take into account physical disabilities (they may) and mental disabilities (they may not, unless the person with the mental disability is a minor). For those with physical disabilities, a jury should be instructed to consider whether the person acted as a reasonable person with the same physical disabilities would act. But mental disabilities are not treated the same way (a controversial distinction recently endorsed by the drafters of the Third Restatement of Torts). For this reason, Choice B is correct (because Walid had a physical disability) and the remaining three choices are incorrect.

Shortly after Juan's mother died, Juan goes with his best friend Carmen and Juan's father Ernesto to see a lawyer about Juan's mother's will. Juan had not seen Ernesto for many years, and they were not close. At the lawyer's office, a paralegal, Phil, brought them into the waiting area. Phil was carrying a gun, which accidentally went off, killing Juan. Both Carmen and Ernesto sue Phil for negligent infliction of emotional distress. Phil argues that he does not owe either Carmen or Ernesto a duty of care in such circumstances. In a majority of jurisdictions, how would the court rule? (A) Carmen can recover, if he experienced serious emotional distress. (B) Ernesto can recover, if he experienced serious emotional distress. (C) Both Carmen and Ernesto can recover, if each experienced serious emotional distress. (D) Neither Carmen nor Ernesto can recover because Phil owes a duty only to those in the zone of physical danger.

(B) Rationale: This question tests you on the bystander factor of immediate family relationship under the Dillon v. Legg case and similar tests. The father is an immediate family member; he can recover damages for witnessing the death of his son if he suffered serious emotional distress. (Because the two were estranged, he might have trouble proving this element.) The best friend, however, cannot recover, no matter how serious his emotional distress (and even if it is much more severe than the father's), because he is not an immediate family member. Because Ernesto may recover and Carmen cannot, Choice B is correct and Choices A and C are incorrect. Choice D is incorrect because most jurisdictions agree that in some circumstances someone outside the zone of physical danger may recover as a bystander for negligently inflicted emotional distress.

Farah invites Sam over for dinner. Farah cleans up the house before Sam arrives and waxes the floor of the kitchen so that it shines. The floor is very slippery, although it is impossible to tell that just by looking at it. Sam walks into the kitchen, slips and breaks his collar bone. Sam sues Farah for negligence in a jurisdiction that uses the traditional "trichotomy" status category approach to landowner/land occupier liability. Farah argues she owes no duty to Sam. How should the court rule? (A) Farah owes Sam no duty of care because he is a social guest. (B) Farah owes a duty of care to Sam, if the danger from the slippery floor was not easily seen. (C) Farah owes the normal negligence duty of care to Sam, because he is a foreseeable plaintiff and she was engaged in risk creation. (D) Farah owes Sam a duty only to avoid engaging in willful and wanton misconduct.

(B) Rationale: Under the traditional approach, Sam is a social guest, meaning he counts as a licensee. Landowners do not owe a duty of reasonable care to licensees; instead landowners must simply warn of hidden dangers or traps. Choice A is wrong because it incorrectly states that no duty of care is owed to social guests. Choice C is wrong because the normal duty rules do not apply either, even though if this were outside the context of landowners and land occupiers, Farah would owe Sam a duty for this reason. Choice D applies the "willful and wanton" standard applicable to trespassers, not licensees. Choice B correctly explains that Farah owes a duty of care to Sam only if the injury from the slippery floor came from a hidden danger.

Bob is driving carefully, but nonetheless runs over Carol's foot, causing her medical bills and lost work. Carol sues Bob for negligence, but concedes she cannot prove that Bob breached any duty to her. Can Carol successfully make out the prima facie case for negligence against Bob? (A) Yes, because Carol can prove a preponderance of the elements: duty, actual cause, proximate cause, and damages. (B) Yes, because Bob caused Carol's damages. (C) No, because Carol cannot prove all of the elements of the tort of negligence by a preponderance of the evidence. (D) No, because Carol may also have been at fault.

(C) Rationale: Carol's case will fail because she cannot prove all of the elements of the tort of negligence (duty, breach, actual cause, proximate cause, and damages) by a preponderance of the evidence (the more likely than not standard). She concedes she cannot prove breach. Choice C is therefore correct. Choice A is wrong because it is not enough to prove most of the elements; plaintiff must prove all of the elements under the preponderance standard. Choice B is wrong because someone could cause damage and not be liable for negligence. There is only liability for negligence if plaintiff can prove all of the elements of the prima facie case. Choice D is wrong because Carol's conduct may go to the question of affirmative defenses, and the call of this question asked only about whether Carol can prove the prima facie case against Bob.

A worker in a commercial amusement park backed a truck over a park visitor who was lying unconscious on the ground. The worker did not see the visitor because he did not look behind him prior to backing up. If he had looked, he would have seen the visitor lying on the ground. In an action by the visitor against the amusement park in a jurisdiction that maintains the traditional common-law entrant status distinctions, the visitor will: (A) Recover only if the visitor paid for admission to the park. (B) Recover if the worker knew that visitors sometimes entered the area where the accident occurred, even though that area was not open to visitors. (C) Not recover if the area was closed to visitors. (D) Not recover unless the worker had the last clear chance to avoid the accident.

(C) Rationale: In a jurisdiction that maintains the common-law entrant status distinctions, the duty owed will turn on the category of entrant the visitor is. If the visitor paid admission to the park, the visitor would be an invitee and owed a duty of reasonable care. But the park's duties are not limited to invitees, so Choice A is incorrect because it is too narrow. If the visitor was in an area that was not open to visitors, the visitor would be a trespasser and not owed a duty of reasonable care. The fact that visitors sometimes entered the area is not enough to make the visited a known trespasser. Thus, if the area was closed the visitors, the visitor would be a trespasser and not owed a duty of reasonable care, making Choice C the most likely outcome. Choice B is therefore incorrect. Most jurisdictions have now abolished the last clear chance rule. Choice D is incorrect.

David is driving 65 miles per hour down Main Street and gets into an accident, injuring his friend and passenger, Harry. The posted speed limit is 30 miles per hour, and an ordinance in the jurisdiction provides that going twice the speed limit is a misdemeanor punishable by a fine and up to six months in prison. In proving whether David was breached a duty of reasonable care in speeding: (A) Violation of the statute is relevant to the question of breach. (B) Violation of the statute is inadmissible on the question of breach. (C) Violation of the statute is conclusive proof of breach, unless excused. (D) Violation of the statute is the best evidence of breach.

(C) Rationale: Negligence per se involves using violation of a criminal statute to prove breach of the duty of reasonable care. When the statute is violated, unless excused, it is conclusive proof of breach. For this reason, Choice C is correct and the other choices are incorrect. Violation is admissible and relevant, and it is more than the "best" evidence of breach.

Felicia is biking through the park with a box of bananas to bring to her smoothie shop. A huge gust of wind suddenly comes through the park and blows some bananas off of the back of the bike and onto the path runners use. Felicia does not notice the bananas falling. Lance is sitting nearby and sees the bananas fall. Even though it would be quite easy for Lance to pick up the bananas, and even though Lance knows that if he does not pick up the bananas, someone, including his 15-year-old daughter Selena, could slip, he does nothing. Selena is out on a run in the park, doesn't see the bananas in time and slips, breaking her leg. If Selena sues Lance for negligence: (A) Selena will lose, because Felicia, not Lance, dropped the bananas. (B) Selena will lose, because Lance acted reasonably in not picking up the bananas. (C) Selena will win, because Lance owed her a duty to come to her aid if he could do so easily. (D) Selena will lose, because Lance owed her no duty to come to her aid even if he could do so easily.

(C) Rationale: The facts here are similar to the earlier Jane/Lance question. But there is one crucial difference: Selena is Lance's 15-year-old daughter. He had a duty to act because of their special relationship and because he knew she would be running in the park, even in the absence of risk creation. He had to save her from peril because of the special relationship between parent and minor child. Choice C correctly states this rule and Choice D incorrectly states this rule. Choice A is incorrect because even though Felicia dropped the bananas, Lance still had to come to Selena's aid. Choice B is incorrect because the facts tell us Lance could quite easily pick up the bananas, making his failure to do so appear negligent.

Walter, an eccentric inventor, invented a device for an automobile that could sense approaching vehicles even in a dense fog. Walter lived in an area with dense fog and had installed it on his own vehicle. Driving on one particularly foggy night he collided with an oncoming vehicle. Wendy, a passenger in the other vehicle, was injured and sues Walter. At the time of the accident, Walter had not turned on his device. Which of the alternatives is the most likely outcome? (A) Walter is unlikely to be negligent for failing to turn on his device because he can show that it was not the custom in the automobile industry to have devices such as the one he invented. (B) Walter is unlikely to be negligent for failing to turn on his device because he is to be judged by the standard of a "reasonable person" and reasonable persons would not have access to a device such as his. (C) Walter might be negligent for failing to turn on his device if it can be shown the device might have allowed him to avoid the accident. (D) Walter is unlikely to be negligent because it would be unfair to hold him for not using a device unavailable to the other driver.

(C) Rationale: The normal rule of negligence requires individuals to use any special knowledge or equipment they might possess. It is an exception to the "reasonable person" standard. Thus, Choice C is correct. While he would not be negligent for not having such a device, if he had it, he may be negligent for not using it. Choices A and B are not correct because the "special equipment" rule contemplates that you might be unreasonable to not use equipment that is non-customary or not available to a reasonable person. Choice D is similarly incorrect.

Farah invites Sam over for dinner. Farah cleans up her house before Sam arrives and waxes the floor of the kitchen so that it shines. The floor is very slippery, although it is impossible to tell that just by looking at it. Sam walks into the kitchen, slips and breaks his collar bone. Sam sues Farah for negligence in a jurisdiction which has abandoned the "trichotomy" status category approach to landowner/land occupier liability. Farah argues she owes no duty to Sam. How should the court rule? (A) Farah owes Sam no duty of reasonable care, because he is a social guest. (B) Farah owes a duty of reasonable care to Sam, if the danger from the slippery floor was not easily seen. (C) Farah owes Sam a duty of reasonable care under the circumstances. (D) Farah owes Sam a duty only to avoid engaging in willful and wanton misconduct.

(C) Rationale: This example tracks the last question but asks about resolving the facts under the modern approach, which abandons the traditional approach and presumes that there is a duty even from landowners or occupiers, unless there is a compelling policy reason not to impose a duty. Because the modern approach abandons the trichotomy of "invitee, licensee, and trespasser," Choices A, B, and D are all incorrect. Choice C correctly explains that the normal duty rules apply under the modern approach, even for social guests, unless there is a compelling policy reason to hold that the defendant does not owe a normal duty to the plaintiff.

Noah works for a company running halfway houses for convicted sex offenders. A state statute prohibits knowingly transporting sex offenders within 500 feet of any school. Noah drives a van full of sex offenders right in front of Mills Elementary School. Unfortunately, because of Noah's poor driving, he runs over and injures three Mills' students crossing in a crosswalk. The students sue Noah for negligence. May the students prove breach through violation of the statute? (A) No, because Mills' students were not in the class of people the statute was designed to protect. (B) No, because violating the statute was not an actual cause of the students' injuries. (C) No, because bad driving was not a harm within the risk of violating the statute. (D) No, because the students have other ways of proving negligence.

(C) Rationale: This is a tough question. Negligence per se requires proving that the statute imposed a duty on the defendant; the defendant failed to conform with the statutory duty; plaintiff is within the class of those whom the statute was designed to protect; the injuries were those that the statute was designed to prevent; and the failure to comply with the statute was an actual cause of the injury. In this case, the students were precisely the people the legislature likely had in mind in passing a statute preventing the transportation of sex offenders near schools, making Choice A incorrect. But if it wasn't for Noah bringing the van of sex offenders near the school, the injury never would have occurred, making Choice B incorrect. The problem for the students is that the kind of harm that one would expect from violating the statute is attacks from sex offenders, not a car accident, making Choice C correct. Choice D is incorrect because even if there are other ways of proving negligence, a plaintiff can choose to use the negligence per se doctrine to prove it.

Ava gets into an elevator at the train station to go down to the station's passenger lounge. Suddenly the elevator loses control and goes crashing to the bottom of the building, causing Ava to fall over and break her arm. The train station performs all of its own maintenance. The train station argues that the negligence case cannot go to the jury because Ava presented no proof of breach. How should the court rule on the train station's argument? (A) The court should accept the argument, because a plaintiff must show how a defendant failed to use ordinary care to avoid a reasonably foreseeable risk to the plaintiff. (B) The court should accept the argument, because Ava fell and no one pushed her. (C) The court should reject the argument if the jury could decide that this kind of elevator malfunction ordinarily does not occur in the absence of the negligence of the entity in charge of keeping the elevator in good repair. (D) The court should reject the argument, because it is the defendant, not the plaintiff, that bears the burden of proof in all negligence cases.

(C) Rationale: This question implicates the doctrine of res ipsa loquitur (inference of negligence). Under the facts of the question, Ava has presented no evidence as to how the accident happened or as to what precaution the train station could have taken to prevent this accident from occurring. So if Ava is going to succeed in proving breach, it is going to have to be through res ipsa loquitur. The operative question is whether incidents in which elevators fall uncontrollably ordinarily is because of the negligence of the elevator's owner or for some other reason. (Ava was a passive plaintiff here, so it doesn't look like she could have done anything to cause the accident.) Choice A is incorrect because it says that a plaintiff must always show how an accident happened and what precaution could be taken to have avoided injury to the plaintiff. The doctrine of res ipsa shows that this is an incorrect statement of the law. Choice B is the easiest one to eliminate. That fact that no one pushed Ava says nothing about whether it might be possible to prove negligence through res ipsa or otherwise. Choice C is correct in stating that the court should let the issue go to a jury if the jury might determine that these kinds of incidents ordinarily do not occur in the absence of negligence. Choice D is incorrect. It is the plaintiff, not the defendant, who bears the burden of proof in negligence cases. Res ipsa loquitur is an exception that shifts the burden of proof.

Alexis was attending the funeral of her father at Jimmy's Funeral Home. Unfortunately, Jimmy mishandled her father's body, causing the body to fall out of the casket in the middle of the service. Alexis has been very distraught about the incident and has had trouble sleeping at night. Alexis sues Jimmy's Funeral Home for negligence. Can she successfully bring her case? (A) No in any jurisdiction, because Alexis was not in the zone of physical danger from Jimmy's conduct. (B) No in any jurisdiction, unless Jimmy at some point touched Alexis. (C) Yes in some jurisdictions, because emotional distress in such circumstances is particularly foreseeable. (D) Yes in all jurisdictions, because persons are always liable for emotional distress they negligently cause.

(C) Rationale: This question is meant to get you to recognize that jurisdictions handle these negligent infliction of emotional distress claims differently. Some courts, seeing that emotional distress could be particularly foreseeable from a negligent mishandling of human remains, will allow such a claim to go forward. Other courts, worrying about an explosion of emotional distress cases, could hold that the case cannot go forward. Because this is jurisdiction-specific, we can eliminate Choices A and D. Choice B is a bit tricky. Even assuming Jimmy touched Alexis, her emotional distress was not from the touching. He was not negligent in relation to the touching. Instead, his negligence was in mishandling her father's remains. For this reason, even in jurisdictions following the impact rule, this impact would not count. Choice C correctly explains that some jurisdictions will allow this case to go forward because emotional distress in these circumstances is particularly foreseeable.

Sports Equipment, Inc. (SEI) manufactures and sells exercise equipment. One of their products is a treadmill used for running or walking. SEI has incorporated an electronic sensor in its treadmill so that if a runner falls off, the sensor immediately shuts down the machine. Dave is injured when the sensor failed just as he tripped and fell from the machine. The treadmill kept running causing Dave significantly more injury than he otherwise would have incurred from the fall. Dave sues SEI for negligence and introduces into evidence the fact that every other treadmill manufacturer incorporates a cord that connects the runner's clothing to a Deadman's switch which shuts the machine down if the runner falls. The negligence alleged is solely failure to use a cord instead of the sensor. Which of the following statements is most correct? (A) SEI is likely to lose because its treadmill departed from the custom of the industry in not having the cord and Deadman's switch. (B) SEI is likely to lose because its machine caused Dave's injuries. (C) SEI is likely to win if it can show that 9 out of 10 users of treadmills do not connect the Deadman's cord to their clothing. (D) SEI is likely to win if it can show that the sensor is cheaper than the Deadman's cord.

(C) Rationale: This question tests for understanding that departure from custom is not negligence if the departure is safer than the custom. Choice A is not correct. Choice B is not correct because causation alone is not a basis for liability. Choice C is correct because safer departures from custom are not negligent and the evidence of nonuse of the Deadman's cord would suggest an automatic sensor was safer. Choice D is not correct because while it suggests that there is added cost to adding a Deadman's cord, this alone would not prevent a finding of negligence if the expected risk of the cord was reduced.

Faith starts her new job as a certified auto mechanic, after going to the best training program in the state. Unfortunately, Faith botches her first brake job on Molly's car. Soon after Molly leaves Faith's garage after the repair, Molly's brakes fail, causing Molly's car to crash. Molly suffers serious personal injuries and property damage. In determining whether Faith breached in the repair, she should be judged under which standard? (A) A reasonably prudent novice mechanic. (B) A reasonably prudent person. (C) A reasonably prudent mechanic. (D) An honest mechanic.

(C) Rationale: We ratchet up for those who are experts, such as mechanics. They are held to a higher standard when they are doing their work compared to the work done by a reasonable person. Therefore, Choice B is wrong. We do not cut slack to beginners, unless those beginners are minors (and nothing in the facts indicates that Faith is a minor). Choice A is therefore wrong. Choice D is incorrect because it offers a subjective standard. This leaves the correct choice, Choice C: Faith will be judged to the standard of a reasonably prudent mechanic.

Felicia is biking through the park with a box of bananas to bring to her smoothie shop. A huge gust of wind suddenly comes through the park and blows some bananas off of the back of the bike and onto the path runners use. This happened even though Felicia acted reasonably. "Oh well," Felicia says, as she leaves the bananas right on the park's running path as runners come by. It would have been very easy for her to pick them up. Jane, out on a run in the park, doesn't see the bananas in time and slips, breaking her leg. If Jane sues Felicia for negligence: (A) Jane will lose, because Felicia owed her no duty to come to her aid even if she could do so easily. (B) Jane will win, because Felicia was negligent in dropping the bananas. (C) Jane may win, even though Felicia was not negligent in dropping the bananas. (D) Jane will lose, because Felicia was not negligent.

(C) Rationale: While it is ordinarily true that an individual has no duty to rescue a stranger, even when one can do so easily, one does have a duty to act when one increases the risk to another, even if one does so non-negligently. In this case, the bananas fell even though Felicia was careful. This face makes Choice B incorrect. But dropping those bananas on the path increased the risk to runners like Jane. She therefore had a duty to runners like Jane, making Choice A incorrect. In this case, Felicia was not negligent in dropping the bananas, but she had a duty to Jane once she dropped them. She easily could have picked them up, making her negligent (and making Choice D incorrect). Felicia may be liable for negligence because she had a duty which she breached by not picking up the bananas. Choice C correctly explains this choice.

A discovered an automobile accident involving very serious injuries as she drove along the highway. She immediately went to the only nearby residence in order to use the phone to report the accident and call ambulances for the victims. She found that no one was home at the house, and decided to forcefully enter the house in order to gain access to the phone. In the course of doing so she damaged the door to the house. A dog inside the house bit A. B owns the house and the dog that was kept in the Can A make out a prima facie case for battery against B for the harm caused by the dog? (A) Yes, because it is foreseeable that a dog would bite an intruder. (B) Yes, if the dog did not have its rabies vaccination as required by statute. (C) No, because A had no permission to enter the house. (D) No, unless B kept the dog for the purpose of attacking intruders.

(D) Rationale: Foreseeability is a negligence standard, not the rule for intent for battery. Similarly, the statute is relevant to the breach element of negligence. So Choice A and Choice B are incorrect. Even if A had no permission to enter, she could still suffer a battery, so Choice C is incorrect. Choice D is correct. Keeping the dog for the purpose of attacking intruders is evidence of intent to commit a battery.

Erica was on a flight on Cheapo Airlines when she had a heart attack. The plane made an emergency landing, but Erica suffered serious permanent damage to her heart. Doctors agree that if the plane had a defibrillator on board and flight attendants trained to use it, Erica's injuries would have been much less severe. Cheapo Airlines did not have defibrillators onboard; only two of the top ten airlines in the country do. What is the relevance, if any, of the fact that eight of the top ten airlines do not travel with defibrillators onboard? (A) The lack of defibrillators is conclusive proof of negligence. (B) The custom of not having defibrillators is conclusive proof of no negligence. (C) The fact that two airlines had defibrillators proves Cheapo is negligent. (D) The custom of not having defibrillators is relevant to whether Cheapo is negligent.

(D) Rationale: In cases aside from medical treatment cases, evidence of custom is relevant, admissible, and probative of negligence, but not dispositive—and this is true whether the evidence is being used as a sword (plaintiff using lack of custom as evidence of defendant's negligence) or a shield (defendant using compliance with custom as evidence that the defendant was not negligent). Choice D correctly states the standard, and Choices A, B, and C state incorrect standards. In medical treatment cases, evidence of custom is generally dispositive, whether used as a sword or a shield.

Dr. Barry, a surgeon, recommends knee surgery for Jessica after examining Jessica's knee. Most doctors would not have recommended surgery for Jessica, opting instead for physical therapy first to see if it would alleviate Jessica's pain. However, doctors following a recognized school of thought, like Dr. Barry, opt for surgery because mobility is likely to be greater if the surgery is successful. Dr. Barry goes ahead with the surgery and does not explain to Jessica the greater risks of surgery compared to physical therapy or that most doctors would not recommend surgery. Unfortunately, Jessica's knee gets worse. Jessica sues Dr. Barry claiming lack of informed consent. Dr. Barry explains she did not want to tell Jessica about the risks of surgery because she thought it might upset Jessica and she therefore might have decided to not have the surgery. Is Dr. Barry liable for failing to secure informed consent? (A) No, because Jessica consented to surgery (B) No, because Dr. Barry was genuinely concerned Jessica might not have surgery which Dr. Barry believed to be beneficial (C) Yes, because doctors must disclose all risks of surgery (D) Yes, because doctors generally must disclose material risks of surgery

(D) Rationale: In informed consent cases, doctors generally must disclose all material risks of surgery. Choice D is therefore correct. Choice C is incorrect because the statement there is not limited to material risks, nor does it recognize the exceptions. Choice A is incorrect because consent to surgery does not prevent a patient from bringing an informed consent claim, claiming the consent was based upon incomplete information. Choice B is incorrect because this is not a recognized exception and reflects a rejected paternalistic attitude of doctors to make decisions as to what is in the patient's best interest.

Felicia is biking through the park with a box of bananas to bring to her smoothie shop. A huge gust of wind suddenly comes through the park and blows some bananas off of the back of the bike and onto the path runners use. Felicia does not notice the bananas falling. Lance is sitting nearby and sees the bananas fall. Even though it would be quite easy for Lance to pick up the bananas, and even though Lance knows that if he does not pick up the bananas someone will likely slip, he does nothing. Jane, out on a run in the park, doesn't see the bananas in time and slips, breaking her leg. If Jane sues Lance for negligence: (A) Jane will win, because Lance acted negligently in not picking up the bananas. (B) Jane will lose, because Lance acted reasonably in not picking up the bananas. (C) Jane will win, because Lance owed her a duty to come to her aid if he could do so easily. (D) Jane will lose, because Lance owed her no duty to come to her aid even if he could do so easily.

(D) Rationale: Lance did not engage in risk creation in relation to Jane. He did not engage in any conduct that increased the risk to Jane. Further, they are strangers without any special relationship between them. There is no duty to come to the rescue of strangers, even if it is easy to do so. Although Lance may be a moral monster, he does not have to do anything to help Jane. For this reason, Choice D is correct and Choice C is incorrect. Choices A and B are wrong because even if we could say Lance acted negligently, she cannot win for a different reason: the absence of duty. If Lance has no duty, the question of breach is irrelevant.

York County Hospital, a private outpatient hospital, serves the needs of a small community of 7000 persons. It provides basic medical services but did not ordinarily perform surgery except in emergency circumstances. Stan was seriously injured in an accident and was brought to York County Hospital. The doctor on-call determined Stan needed immediate surgery to stop the bleeding and prepared to operate when the lights went out in the hospital. The hospital did not have an emergency generator. The surgery was delayed causing Stan considerably enhanced complications for which he sues the hospital. Which of the following facts offered as evidence is likely to be the least relevant in proving the hospital's negligence? (A) The number of emergency surgeries at the hospital over the last three years (B) The nature of the emergency surgeries performed at the hospital during the last three years (C) The cost of an emergency generator (D) The testimony of the York mayor that he used to live in Missouri in a town the size of York and its hospital had an electrical generator

(D) Rationale: The question tests an understanding of the Hand formula for determining negligence. Choice A is relevant to the probability of injury in not having an emergency generator. Choice B is relevant to the seriousness of the risk of not having the generator. Choice C is relevant to the burden of adequate precautions. So, Choice D is the correct answer and the least likely to be relevant because one example of another hospital with a generator would not establish a custom.

Candy is driving drunk at 80 miles per hour on a residential street. Shelly is crossing Main Street and is in the middle of the crosswalk when Candy's car comes out of nowhere. Shelly gets out of the way just in the nick of time, barely avoiding being run over by Candy. Shelly has nightmares all the time about the incident and is afraid to cross the street. Shelly has been seeing a therapist over these problems. Shelly sues Candy for negligence. Candy responds that Candy cannot be liable for negligence because Shelly suffered no physical harm. How should the court rule? (A) In a jurisdiction following the traditional approach to negligent infliction of emotional distress, the court should rule for Candy. (B) In a jurisdiction following the modern approach, Shelly's case should go forward because Shelly was in the zone of physical danger of Candy's negligence. (C) In all jurisdictions Shelly cannot recover, because she suffered no physical injury. (D) Both A and B are correct.

(D) Rationale: This is a straightforward question meant to point out the split between the traditional approach and the modern approach to negligent infliction of emotional distress. Under the traditional approach, Shelly would have to show physical impact to recover, which is not present here. That's Choice A. Under the modern approach, Shelly could recover even absent physical impact if she was in the zone of danger of such impact. That's Choice B. (Some jurisdictions would allow recovery even outside the zone of physical danger.) Because Choices A and B are both right, Choice D is the best answer. Choice C incorrectly states the traditional rule as though it applied in all jurisdictions.

Doctor prescribed a drug without telling patient that there was a 10% chance that she would develop impaired vision as a result of using the drug. The patient's vision was impaired by the use of the drug. The patient sues the doctor for failing to inform her of the risk. In a jurisdiction that applies the physician standard, the patient will: (A) Win, if a reasonable person would consider the information important. (B) Win, if plaintiff thought the information was important. (C) Lose, unless the patient shows that the doctor was not justified in withholding the information because of concern for the patient's condition. (D) Lose, unless a medical expert testifies that he would have told the patient about this risk.

(D) Rationale: This is an informed consent professional negligence case. In a jurisdiction that applies the physician standard, the plaintiff must show that a reasonable physician would have told the patient about the risk. This will be shown through expert testimony. Thus, Choice D is correct. Neither a reasonable person or the particular plaintiff's view of the information goes to the physician standard, so Choice A and Choice B are wrong. Choice C refers to a defense that the doctor could raise -- but the doctor would have the burden of proof, not the plaintiff.

Lisa, a 13-year-old, sneaks onto Hillary's property, on which sits a natural lake. Hillary has posted ''no trespassing'' posters all over her property. Lisa jumps into the lake and nearly drowns, suffering brain damage. Lisa sues Hillary for negligence. Hillary argues that the case cannot go forward because she owes Lisa no duty. The jurisdiction has replaced the traditional approach to landowner liability with the dichotomy approach, and it recognizes the attractive nuisance doctrine of the Restatement (Second) of Torts. How should the court rule on Hillary's argument? (A) The court should reject Hillary's argument, under the attractive nuisance doctrine. (B) The court should reject Hillary's argument, because a duty is owed to trespassers under the dichotomy approach. (C) The court should reject Hillary's argument, because Lisa is a foreseeable plaintiff and Hillary was engaged in risk creation, unless there is a compelling policy reason not to impose such a duty. (D) The court should accept Hillary's argument.

(D) Rationale: Under the dichotomy, both licensees and invitees are treated to the normal duty rules. Trespassers continue to be governed by the willful and wanton misconduct approach. For this reason, Choice B is incorrect. Choice C is incorrect because it states the modern approach, which rejects the trichotomy and dichotomy approaches.So the question comes down to Choice A or Choice D, and application of the attractive nuisance doctrine. Though the jurisdiction recognizes the doctrine as set forth in the Restatement, it cannot help Lisa in this case. This is a natural condition on the land, a lake, and not an artificial one. The correct answer is Choice D. Hillary should win on her motion to have the case dismissed on grounds that she owes Lisa no duty.

Acme Trucking owns a fleet of semitrucks that transport goods across the country. Acme publishes a "Driver's Manual" that provides rules its drivers must follow. One of those rules provides that no driver may drive for more than 10 hours without stopping for at least 8 hours of rest. This standard was more restrictive than the general industry practice, which allowed 12 hours of continuous driving before taking a 7-hour rest. Sam Reynolds, an Acme driver, was late on his route and decided to make up time. On Thursday he drove 12 hours, stopped at a motel for 7 hours, and then continued on his way. After he had driven for 9 hours, he lost control of his truck and crashed into the plaintiff. Which alternative best explains the likely outcome? (A) Sam is negligent per se because he did not follow his own company's rules. (B) Sam is not negligent as a matter of law because he followed the industry custom. (C) Sam's violation of Acme's rules is not relevant to the outcome because they have no bearing on what might be reasonable care under the circumstances. (D) Sam's compliance with industry custom is evidence that disproves Sam's negligence.

(D) Rationale: While company rules may or may not be admitted, they do tend to show what the company regarded as reasonable care as long as they were adopted for safety purposes. But they do not, by themselves, establish a standard of care. Thus, Choices A and C are incorrect. Choice B is not correct because compliance with custom is not an absolute bar to negligence. The custom itself might be negligent. Choice D is the best argument because compliance with custom is evidence that the party was not negligent, even though the issue remains one of fact.