Torts- Quiz Qs and Hypos

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) A jury may find Oliver not negligent even though he violated the statute. 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 (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) Al will win, because Sonia breached a duty of care to him. 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.

Alice is robbing Bill at gunpoint. Cindy, who is walking by, sees the robbery. Cindy yells at Alice to put the gun down. Alice ignores Cindy and cocks the trigger to shoot Bill. Cindy takes out her own gun and shoots at Alice, but Cindy misses Alice and shoots Bill as Bill suddenly runs in front of Alice to get away. If Bill sues Cindy for battery: (A) Bill will lose, because Cindy acted reasonably while defending Bill. (B) Bill will lose, because Cindy acted in self-defense. (C) Bill will win, because Cindy shot him. (D) Bill will win, because one cannot use deadly force to defend another.

(A) Bill will lose, because Cindy acted reasonably while defending Bill. Rationale: Under these facts, Cindy had the right to use deadly force if she reasonably believed Bill's life was in imminent danger. Had Cindy thereby shot Alice, this would be an easy case for the use of the defense of others defense. The twist here is that Cindy missed shooting Alice and shot Bill instead. In such a case, unless the risk to Bill in shooting at Alice was unreasonable, Cindy cannot be liable for mistakenly shooting Bill. Here, Bill is about to be shot by Alice, and for this reason it appears Cindy acted reasonably. Choice A most closely expresses this idea. Choice B is easily wrong because Cindy was acting to defend Bill, not in self-defense. Choice D is wrong because one may use deadly force to defend another when that other is threatened with deadly force. Choice C is wrong because it is not enough to establish battery to show Cindy shot Bill. Here, Cindy had the right to shoot at Alice and appeared to act reasonably.

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. Dr. Barry goes ahead with the surgery, and unfortunately Jessica's knee gets worse. Jessica sues Dr. Barry for medical malpractice, and Dr. Barry wishes to introduce evidence that the benefits of such surgery for patients such as Jessica exceed the risks. Jessica asks the judge for an order preventing the jury from hearing evidence of these costs and benefits. How should the judge rule? (A) Exclude the evidence as inadmissible because custom is dispositive over balancing in most medical malpractice cases (B) Exclude the evidence because Jessica consented to surgery (C) Allow the evidence because evidence of custom is admissible and probative but not dispositive in determining breach (D) Allow the evidence because Dr. Barry would be using it as a "shield," not a "sword," in disproving breach

(A) Exclude the evidence as inadmissible because custom is dispositive over balancing in most medical malpractice cases Rationale: Although the usual rule is that custom is admissible and probative but not dispositive in proving breach, the standard in most medical malpractice cases is different: custom is indeed dispositive in proving breach, whether used as a sword by the plaintiff or a shield by the defendant. When there is a custom in a medical malpractice case, evidence of balancing should be excluded by the judge as irrelevant. Choice A correctly sets forth this standard. Choice B is incorrect because consent to surgery does not bar a suit for negligence. Choice C is wrong because it states the general standard for custom in cases other than medical malpractice cases. Choice D is wrong because whether the evidence is used as a "sword" or "shield" is irrelevant to the question of custom's role in a negligence case.

Ava injures Ezra in an automobile collision that was completely Ava's fault. Ezra suffers serious back injuries, the result of which left Ezra able to move but unable to work. Doctors testify that unless Ezra has back surgery, he will never be able to work again. The back surgery is very risky, however, and if Ezra has the surgery, there is a 30 percent chance he would be left completely paralyzed. In Ezra's suit for negligence against Ava, which statement is most correct about the damages to which Ezra will be entitled? (A) Ezra will be able to get the value of his past lost wages, as well as future lost wages, discounted to present value. (B) Ezra will be able to get the value of his past lost wages, as well as his future lost wages, discounted to present value, but only up to the point at which he could have had the back surgery. (C) Ezra will be able to get the value of his past lost wages only. (D) Ezra will not be able to get any lost wages, because he breached his duty to mitigate.

(A) Ezra will be able to get the value of his past lost wages, as well as future lost wages, discounted to present value. Rationale: There is no question that Ezra is entitled to past lost wages, as well as future lost wages, discounted to present value. The only question is whether those future lost wages stop because of Ezra's failure to mitigate by having surgery. For this reason, we can eliminate Choices C and D. Choice A allows future lost wages, discounted to present value, while Choice B treats Ezra as if he took the step in mitigation for back surgery. Choice A is the better choice. While one must take reasonable steps in mitigation, one need not take all steps, including dangerous steps, in mitigation. This is a risky surgery, and Ezra need not go through with it.

A confronts B in a public place and makes offensive allusions to his moral character using very colorful and obscene language. Battery?

Not a battery, no contact

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) The jury should consider the cost of the satellite phone, balanced against the increased risk of injury from not having the phone. 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.

Eleven-year-old Harry is at a nursing home visiting his grandmother. He and his grandmother are in the facility's social hall. Harry sees a piano, which he has just started learning to play, and he gets very excited about playing for his grandmother. He walks over to the piano and grabs the piano bench out from under another resident, Frank, who is about to sit down to play the piano. Harry saw Frank starting to sit down, but Harry really wanted to play the piano. Harry sits down at the bench. Frank falls to the ground when Harry pulls the bench out from under him. Frank breaks his hip and sues Harry for battery. Can Frank prove that Harry had the requisite intent for battery? (A) Yes, because Harry acted with the knowledge that Frank was substantially certain to hit the floor. (B) Yes, but only if Harry could fully appreciate how harmful a fall can be to an old person. (C) No, because Harry did not act. (D) No, because Harry did not have the purpose to cause Frank to hit the floor.

(A) Yes, because Harry acted with the knowledge that Frank was substantially certain to hit the floor. Rationale: The question asks you to focus on intent, not on the rest of the prima facie case for battery. Choice C is therefore incorrect because the question whether Harry acted is separate from the question whether or not he had the requisite intent. Moreover, Harry did act because his moving of the bench was a voluntary muscular contraction. Choice D, though correctly focused on intent, is incorrect for a different reason: It is not necessary for Harry to have the purpose to cause Frank to hit the floor in order for Harry to have the intent necessary for battery. Choice B is wrong because it gives the wrong standard for intent. It is not necessary that Harry appreciate the harmfulness of his actions in order for him to have the requisite intent for battery. Note that the fact that Harry is a child does not relieve him of liability for battery. Only very small children who are too young to act with the knowledge (or have the purpose) that a consequence is substantially certain to result would be able to escape liability for battery on intent grounds. This leaves us with Choice A. Harry acted with the knowledge that Frank was substantially certain to make contact with the floor. We know that because the fact pattern tells us that Harry acted to move the bench despite the fact that he saw Frank starting to sit down. That's enough for the jury to infer that Harry had the knowledge that contact was substantially certain to occur. The fact that Harry did so for his own purposes—to be able to sit down to play the piano—and not for the purpose of causing Frank injury does not save Harry from liability for battery.

Callie and Sam are neighbors in a rural area. One day Sam is using reasonable care, shepherding his sheep to graze, when the sheep are spooked by a wolf in the area. They run in many directions, and some knock over Callie's fence, causing $1,500 in damage. Will Sam be strictly liable for damages caused by his sheep? (A) Yes, because Sam's sheep caused the damage. (B) Yes, because sheep are docile animals. (C) No, because Sam used reasonable care. (D) No, because livestock owners are never strictly liable for intruding livestock.

(A) Yes, because Sam's sheep caused the damage. Rationale: The owner of livestock is strictly liable to other property owners for physical harm caused by intruding cattle. For this reason, Choice A is correct and Choice D incorrect. Choice B is wrong because whether animals are docile (as opposed to domesticated) is irrelevant to the strict liability question. Choice C is incorrect because strict liability applies even when a defendant uses reasonable care.

It was one week before the class's Torts midterm. Kira is very competitive and is worried that Marco is going to outperform her on the midterm. When Marco isn't looking, Kira takes Marco's laptop, which has all of his Torts notes. Marco looks everywhere for the laptop and cannot find it. Without his notes, he does poorly on the examination. Right after the exam, Kira returns the laptop in perfect condition. Can Marco prove the prima facie case for conversion against Kira? (A) Yes, if the court believes that by Kira's actions Marco was a serious interference with Marco's property rights. (B) Yes, because any intentional intermeddling with another's chattels is actionable as conversion. (C) No, because Kira intended to return the laptop. (D) No, unless the laptop was damaged by Kira.

(A) Yes, if the court believes that by Kira's actions Marco was a serious interference with Marco's property rights. Rationale: This is a variation on the prior question, aimed at showing some differences between conversion and trespass to chattels. Choice B is incorrect. Many intermeddlings with others' property do not meet the stricter standards for conversion. There must be a serious interference with one's right to personal property. Choice C is wrong, but the second best choice. It is enough that Kira intended to cause a serious interference with Marco's enjoyment of his property; she need not intend to keep the item forever. Choice D is incorrect. Though damage to the laptop would be sufficient for the conversion claim, it is not necessary. It is enough if there is interference with a chattel for a substantial enough period of time. Once again, Choice A is therefore correct. If it is a serious enough interference, it could count as a conversion.

It was one week before the class's Torts midterm. Kira is very competitive and is worried that Marco is going to outperform her on the midterm. When Marco isn't looking, Kira takes Marco's laptop, which has all of his Torts notes. Marco looks everywhere for the laptop and cannot find it. Without his notes, he does poorly on the examination. Right after the exam, Kira returns the laptop in perfect condition. Can Marco prove the prima facie case for trespass to chattels against Kira? (A) Yes, if the court believes that by Kira's actions Marco was deprived of possession for a substantial period of time. (B) Yes, because any intentional intermeddling with another's chattel is actionable as trespass to chattels. (C) No, because Kira intended to return the laptop. (D) No, unless the laptop was damaged by Kira.

(A) Yes, if the court believes that by Kira's actions Marco was deprived of possession for a substantial period of time. Choice B overstates the law. Some intentional intermeddlings, such as picking up the laptop and immediately returning it, are not actionable as trespass to chattels. Choice C is wrong. It is enough that Kira intended to interfere substantially with Marco's use or enjoyment of his property; she need not intend to keep the item forever. Choice D is incorrect. Though damage to the laptop would be sufficient for the trespass to chattels claim, it is not necessary. It is enough if there is interference with a chattel for a substantial enough period of time. Choice A is therefore correct.

Sally is riding her snowmobile on public land when she unexpectedly sees a family of deer crossing in her path. If she had continued going straight, she would have crashed right into them, hurting or killing one or more of the deer, as well as injuring herself and damaging her snowmobile. Sally deliberately turns her snowmobile toward Gary's land, crashing into Gary's fence and thereby allowing Gary's flock of sheep to escape. Gary sues Sally for trespass to land. Can Gary make out the prima facie case for trespass to land? (A) Yes. (B) No, because by entering Gary's land Sally averted a greater loss to herself or others. (C) No, because Sally did not intend to enter Gary's land. (D) No, because Sally did not intend to cause harm.

(A) Yes. Rationale: Choice D is incorrect because one need not intend to cause harm in order to be liable for trespass to land; it is enough that Sally intended to enter the land. Choice C is a close second choice, but it is ultimately wrong. The facts tell us that Sally deliberately entered Gary's land. The fact that she had a good reason for doing so, or that she made the choice under the exigencies of the moment, does not defeat Gary's argument that Sally had the intent to enter her land. Choice B is tempting but wrong as well. Nothing in the prima facie case allows for such a balancing. Now you might find this terribly unfair because Sally did a good thing by choosing to hit the fence rather than the deer. Though that is undoubtedly true, that fact will be relevant to affirmative defenses and not to the prima facie case. In sum, Sally acted (she voluntarily drove the snowmobile and then steered it into Gary's fence), she intended to enter Gary's land, and she in fact entered it. Choice A is right.

Sally is riding her snowmobile on public land when she unexpectedly sees a family of deer crossing in her path. If she would have continued going straight, she would have crashed right into them, hurting or killing one or more of the deer, as well as injuring herself and damaging her snowmobile. Sally deliberately turns her snowmobile toward Gary's land, crashing into Gary's fence and thereby allowing Gary's flock of sheep to escape. Gary sues Sally for trespass to land. Can Gary recover damages for trespass to land? (A) Yes. (B) No, because by entering Gary's land Sally averted a greater loss to others. (C) No, because Sally did not intend to enter Gary's land. (D) No, because Sally did not intend to cause harm.

(A) Yes. Rationale: This is a reprise of an earlier question about trespass to land, but one that now brings in the element of necessity. First let's clear the brush by eliminating Choices C and D. Choice D is incorrect because one need not intend to cause harm in order to be liable for trespass to land; it is enough that Sally intended to enter the land. Choice C is a close second choice, but it is ultimately wrong. The facts tell us that Sally deliberately entered Gary's land. The fact that she had a good reason for doing so, or that she made the choice under the exigencies of the moment, does not defeat Gary's argument that Sally had the intent to enter her land. Choice B is where necessity comes in. This looks like a good case for necessity: Sally went into the land in order to avoid additional harm to herself and to the livestock. That means that had Gary had the opportunity, he could not have stopped Sally from entering the land. But—and this is the crucial part—even when necessity applies, one still has to pay damages for the injury caused to others. (This is true unless there is someone, like a public official, saving the public from harm, under the doctrine of public necessity.) Thus, A is the correct answer. Sally can assert necessity but still has to pay for the damages that she causes, in this case Gary's broken fence and loss of livestock.

P is injured in an accident involving A and B. A and B are equally at fault in causing the accident. P's damages are $10,000. P settles with B for $1,000 and gives B a release. P sues A in a jurisdiction that has adopted pure comparative negligence. If the jurisdiction uses a pro rata credit based on comparative fault, P will recover from B: (A) $3,333 (B) $5,000 (C) $9,000 (D) Nothing

(B) $5,000 Rationale: Under the pro rata credit system, the remaining defendant pays only that proportion of the damage award for which he or she is proportionately responsible. Thus, C will be able to recover $5,000 from B (50% of 10,000). Thus, Choice B is correct.

Cary is walking down the street late at night when Larry jumps out of nowhere. Larry holds a knife in front of Cary and yells, "Give me your wallet or else!" Cary reaches into his pocket, and pulls out a gun. Cary shoots Larry in the leg, an injury that eventually causes Larry to lose the use of his leg. If Larry sues Cary for battery: (A) Cary will lose, because he used disproportionate force. (B) Cary will win, because he used proportionate force. (C) Cary will lose, because he did not act in self-defense. (D) Cary will win, because one has the right to use deadly force to protect property.

(B) Cary will win, because he used proportionate force. Rationale: Under these facts, Cary was assaulted when being threatened with a knife. Cary can take actions in self-defense. Choice C is therefore incorrect. Between Choices A and B, the question is whether Cary used proportionate or disproportionate force. A knife attack is a threat of deadly force from Larry, and therefore Cary's shooting Larry in the leg appears to be proportionate (it does not appear to be an attempt to use deadly force, but even that may be allowed by a jury under these circumstances). Choice B is therefore correct. Choice D is an incorrect statement of law; one cannot use deadly force to protect property.

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) Ernesto can recover, if he experienced serious emotional distress. 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) Farah owes a duty of care to Sam, if the danger from the slippery floor was not easily seen. 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.

Connor works as a substitute school teacher. One day Connor gets a call to be a substitute teacher in a kindergarten classroom. Connor, who also makes fireworks as a hobby, brings a box of powdered explosive materials into the classroom so it will not get stolen from his car. If dropped the box could easily explode. Connor leaves the box on the desk of the kindergarten classroom. A few children are playing during recess near the box, and one of them knocks the box over. The powdered materials in the box spread all over the floor, and Joan, a child in the classroom, slips on the materials and breaks her elbow. Fortunately, there is no explosion. Joan sues Connor for negligence in a jurisdiction which follows the Third Restatement's approach to scope of liability/proximate cause. Which statement is true about Joan's case? (A) Joan cannot prove that Connor's bringing the box into the classroom was an actual cause of her injury. (B) Joan has a stronger case based upon bringing a slippery substance in the classroom than bringing explosives in the classroom. (C) Joan's slipping was a harm within the risk of bringing explosives into the classroom. (D) Because Joan can prove negligence and actual cause, she will necessarily prove her entire prima facie case.

(B) Joan has a stronger case based upon bringing a slippery substance in the classroom than bringing explosives in the classroom. Rationale: This question raises a proximate cause problem: the harm within the risk of bringing explosives into the classroom is that they will explode, not that they might lead someone to slip. To the extent Joan premises her case on this negligence, she will lose. A stronger argument is based on negligence in bringing a slippery substance into the classroom. For this reason, Choice B is correct. Choice A is incorrect because but for Connor bringing the explosives the classroom, Joan's injury would not have occurred. Choice C is wrong because slipping is not a harm within the risk of bringing explosives in the classroom. Choice D is wrong because plaintiff also must prove proximate cause.

George gets lost on a walk through the woods and ends up entering Elaine's property. George is in a panic because it is going to get dark soon, and he starts running toward Elaine's house. Elaine sees George coming toward her home and she takes out a BB gun and shoots at George. Although Elaine tries to shoot George in the shoulder, she hits him in the eye. George sues Elaine for battery. Can Elaine successfully raise the defense of defense of property? (A) No, because one can never use a weapon to defend property. (B) No, because Elaine failed to warn George before shooting. (C) No, because Elaine reasonably feared for her life. (D) Yes, because George deliberately trespassed.

(B) No, because Elaine failed to warn George before shooting. Rationale: On these facts, Elaine would be justified in using reasonable force to keep George from going onto her property, but only if she first tried to give a warning to leave (unless she reasonably believed the warning would be useless or substantial harm would be done before the warning was made). Choice A is incorrect because in appropriate circumstances one can use a weapon to defend property, including after a warning is ignored. Choice D is incorrect because Elaine still needed to give a warning (given no indication on these facts that the warning would be ignored or substantial harm done before the warning is made.) Choice C is incorrect because fear of one's life is relevant for self-defense not defense of property, and the call of the question asked about defense of property. This leaves us with Choice B, the requirement that Elaine give a warning to George.

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) No, because Quincy did not mention the names of an identifiable victim or victims. 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.

Xeni and Lana are at a concert where there is a lot of pushing to get closer to the stage. Someone shoves Xeni into Lana. Lana gets very angry and says to Xeni, "If I weren't such a nice person, I'd push you to the ground and watch you get trampled." In response to the comment, Xeni pushes Lana to the ground and watches her get trampled. Assuming Lana can prove all the elements of battery, can Xeni successfully raise the affirmative defense of self-defense? (A) No, because Xeni used disproportionate force. (B) No, because Xeni was not justified in using any force. (C) Yes, because Lana assaulted Xeni first. (D) Yes, because Xeni did not use deadly force.

(B) No, because Xeni was not justified in using any force. Rationale: A court is almost certainly going to find that Xeni was the aggressor here. Though Lana did suggest she might push Xeni to the ground, it was not a threat of imminent contact because of the hedging words "If I were not a nice person." Given that Lana has not assaulted Xeni—given Lana's words there was no basis for Xeni to be apprehensive of imminent harmful contact—Xeni cannot commit what would otherwise be a battery against Lana. For this reason, Xeni cannot use any force and therefore Choices A, C, and D are incorrect. Choice B correctly states the law on these facts.

Felice detests her classmate Penelope. Every day for a month Felice leaves a flaming bag of dog poop on the front door of Penelope's apartment. A security camera shows Felice in the act. Penelope confronts Felice, who says that she will keep doing it until police drag her away in handcuffs. Penelope sues Felice for intentional infliction of emotional distress. Penelope has not gone to therapy or missed any class, but she's understandably angry with Felice. Can Penelope prove the prima facie case for IIED? (A) No, because she did not have any objectively verifiable proof that she suffered severe emotional distress. (B) No, because she did not suffer severe emotional distress. (C) Yes, if the jury concludes Felice's actions were outrageous. (D) Yes, so long as Penelope was angry.

(B) No, because she did not suffer severe emotional distress. Rationale: It seems plausible t that a jury would consider the conduct of Felice to be extreme and outrageous, and it appears to have been done with the requisite intent: Even if Penelope cannot prove purpose or knowledge, she should be able to prove at least that Felice acted recklessly about causing emotional distress. The problem is that the facts don't show that Penelope suffered any severe emotional distress, only that she's angry with Felice. This question is best answered by eliminating the weakest choices. Choice A is incorrect because one need not have objectively verifiable proof to recover for IIED; it is enough that the jury believes the plaintiff has suffered severe emotional distress. Choice C is incorrect because outrageousness is a necessary element of IIED but outrageousness without severe emotional distress is insufficient. Choice D is incorrect because being angry is not enough for IIED; there must be severe emotional distress, otherwise every insult would become a tort. This leaves us with Choice B, the best choice. There is neither objectively verifiable evidence of severe emotional distress (such as going to therapy or missing class) nor any other evidence of severe emotional distress. Again, being angry is not enough.

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) No, if the jury believes Gene acted like a reasonably prudent person under the circumstances. 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.

Frank runs Frank's factory, which makes leather goods. The factory spews smoke, which contains a chemical that causes some people to contract a rare lung disease. Barney, Frank's competitor, runs a nearby factory making the same type of leather goods and spewing the same smoke which contains the same chemical that can cause the rare lung disease. Roger, who lives near Frank's and Barney's factories, contracts the rare lung disease, and there is no question that Roger got the disease from the smoke emitted from the factories. An expert testifies that Roger got sick either from Frank's factory smoke or Barney's factory smoke but not both. The expert cannot tell which one. Assume Barney was negligent in spewing the smoke but Frank was not. Barney argues to the court that he cannot be liable because Roger cannot prove actual cause. How should the court rule? (A) The court should agree with Barney because it is not more likely than not that the smoke came from Barney's factory. (B) The court should agree with Barney because Barney's actions were not a but-for cause of injury and the alternative liability doctrine is inapplicable on these facts. (C) The court should disagree with Barney and hold Barney liable unless he can prove it is more likely than not that the smoke from his factory did not cause the injury. (D) The court should disagree with Barney because he was negligent to spew the smoke.

(B) The court should agree with Barney because Barney's actions were not a but-for cause of injury and the alternative liability doctrine is inapplicable on these facts. Rationale: This question is a variation on application of the alternative liability theory of Summers v. Tice. The doctrine does not apply in this case because one of the parties that may have caused the injury, Frank, was not negligent. Nor can Roger prove but-for causation because it is equally likely the smoke came from Frank's factory. For this reason, Choice B is correct and the other choices are incorrect.

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) The jury should be instructed to take into account Walid's disability. 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.

Many hunters are out on the first day of duck hunting season. It is very crowded and Maria, a hunter, is unlucky enough to be shot twice. Alice shoots Maria in the left arm, causing very serious injuries. Janet shoots Maria in the right leg, causing a minor flesh wound. The three people had never met before the shooting. Assume that both Alice and Janet were negligent in shooting Maria, and that Maria was not negligent. Alice has left town and is nowhere to be found. If Maria sues Janet for negligence, she will be able to recover for: (A) The arm injury. (B) The leg injury. (C) Both the arm and the leg injury. (D) Both the arm and the leg injury, but only if Janet was at least as at fault as Maria.

(B) The leg injury. Rationale: Traditional joint and several liability rules apply only when multiple defendants cause a single, indivisible injury. In this case, the injuries are divisible: Alice cause the arm injury and Janet caused the leg injury. In these circumstances Janet is completely responsible for the leg injury and not at all responsible for the arm injury, regardless of the relative fault of Alice and Janet. For this reason, Choice B is correct and the other choices are incorrect.

John owns a bookstore, which used to be a Victorian mansion. It has lots of small rooms, and there are books for sale in each room. Usually at closing time John goes to the top of the mansion and works his way down, making sure that there are no customers left in the store. But one night, John is lazy, and he doesn't bother to check if anyone is still in the store when he locks it up at 8 pm. Unfortunately, Tom is up in one of the rooms and cannot get out. Tom is a diabetic who needs insulin. He suffers physical injuries because he cannot get out until John opens the store the next day. If Tom sues John for false imprisonment: (A) Tom's claim will fail, because John did not act. (B) Tom's claim will fail, because John lacked the intention to confine John. (C) Tom's claim will succeed, because John was harmed by the confinement. (D) Tom's claim will succeed, if he can prove he was actually confined.

(B) Tom's claim will fail, because John lacked the intention to confine John. Rationale: Tom's claim for false imprisonment has a problem: John did not know that Tom was locked in the store. Without such knowledge, we cannot say that John had the purpose to confine Tom or that he had the substantial certainty that he was confining Tom. John might well be negligent but the question relates to the intentional tort of false imprisonment. Choice B reflects the correct answer. Choice A fails because John did act when he locked the doors to his store: Be sure not to confuse the act and intent requirements. Choice C fails because whether or not Tom was harmed by the confinement does not solve Tom's problem with proving that John had the requisite intent. Choice D fails for a similar reason: It won't be a problem for Tom to prove he was actually confined, but that does not solve Tom's problem with proving John's intent.

P is injured in an accident involving A, B and C. All three parties are equally at fault in causing the accident. P's damages are $10,000. P settles with B for $1,000 and gives B a release. P sues C in a jurisdiction that has adopted pure comparative negligence. If the jurisdiction uses a pro tanto credit, P will recover from C: (A) $3,333 (B) $5,000 (C) $9,000 (D) Nothing

(C) $9,000 Rationale: Under the pro tanto credit system, the remaining defendant will get a credit for the amount of money paid by the settling defendant against the amount determined to be owed at trial. Thus, C will be able to recover $9,000 from C ($10,000 - $1,000). Thus, Choice C is correct. C may be able to sue A for contribution.

Patient agreed to an operation on his left ear. After he was placed under anesthesia, Doctor examined the left ear and determined that it did not need the operation after all. The doctor then examined the right ear and determined that it was diseased and needed an operation. The doctor operated. The operation was successful, and the condition of the ear was improved as a result of the operation. If Patient sues Doctor for battery, Patient will: (A) Win, only if doctor intended to operate on the right ear before putting Patient to sleep and failed to ask permission. (B) Win, because Patient did not consent to the operation on his right ear. (C) Lose, because Patient impliedly consented that Doctor could extend the operation to remedy any abnormal or diseased condition which Doctor, in the exercise of her professional judgment, determined to require such an operation. (D) Lose because the touching was beneficial, not harmful.

(B) Win, because Patient did not consent to the operation on his right ear. Rationale: This case involves the facts of Mohr v. Williams. Patient can win if Doctor exceeded the scope of his consent. The correct answer, Choice B, recognizes that surgery to a different part of the body exceeds the consent given Choice A only contemplates liability if the doctor intended to operate on the right ear prior to the surgery. This is too narrow. Because the right ear is a different part of the body and would involve a different surgical site, Patient has not impliedly consented to that surgery, making Choice C incorrect. Finally, the benefits of surgery are not relevant to an action for battery and the right of Patient to consent or not consent to the touching, making Choice D incorrect.

The Acme Blasting Company has the worst safety record in the blasting business. It takes no steps to clear the blasting area, in direct violation of state laws and industry practice. As a result, Brennan, who is walking down the street near an Acme blast site, is seriously injured. The jurisdiction in which the accident took place imposes strict liability for personal injuries occurring through blasting. Assume Brennan succeeds in proving his prima facie case against Acme for injuries as the result of blasting. May Brennan also obtain punitive damages? (A) Yes, but only if Acme intended to harm Brennan (B) Yes, even though blasting is a strict liability tort (C) No, unless Acme intended to harm Brennan (D) No, because one need not prove fault to recover damages for blasting in the jurisdiction

(B) Yes, even though blasting is a strict liability tort Rationale: The question about whether conduct is bad enough to merit punitive damages differs from the question about what conduct is necessary to prove the tort. For this reason, punitive damages may be available even if it is a strict liability tort, making Choice D incorrect. Generally, a plaintiff must prove bad conduct which is worse than negligence, but there is no need to prove intent to harm. For this reason, Choice B is correct and Choices A and C are incorrect.

Nikki and Karen are involved in an automobile accident which injures Sima. Sima sues both of them for negligence. The jury finds that Nikki was 80 percent at fault and Karen was 20 percent at fault, and that Sima's damages were $100,000. The jurisdiction uses traditional joint and several liability rules. What is the most that Sima may recover from Karen? (A) $20,000 (B) $80,000 (C) $100,000 (D) $100,000, but only if Nikki refuses to pay her fair share

(C) $100,000 Rationale: Under traditional joint and several liability rules, a plaintiff can recover all of her damages from any one defendant, until full satisfaction of judgment. In this case, it means that Sima may look to Karen to pay all of her damages, even though Karen was found by the jury to be only 20 percent at fault. There is no requirement for Sima to first try to get some funds from Nikki. For this reason, Choice C is correct and the other choices are incorrect.

Keith and Amy are involved in a boating accident that injures Chris. The jury finds that Keith is 70 percent at fault, Amy is 20 percent at fault, and Chris is 10 percent at fault. The jury finds that Chris suffered $10,000 in damages. Amy has paid Chris $9,000. How much may Amy recover from Keith? (A) $0 (B) $6,300 (C) $7,000 (D) $9,000

(C) $7,000 Rationale: A tortfeasor who fully satisfies the judgment may seek to recover part of the money paid to the plaintiff based upon the tortfeasors' relative percentage of responsibility. In this case, the tortfeasors together were 90 percent responsible for Chris's $10,000 injury, collectively owing $9,000. After Amy pays $9,000, she can seek 70/90 or 7/9 of what she paid from Keith, or $7,000; Amy remains responsible for 2/9 of the share, or $2,000. Choice C is therefore correct, and the other choices are incorrect.

Todd and Aaron are involved in a biking accident which injures George. George sues both for negligence. The jury finds that Todd was 60 percent at fault, Aaron was 20 percent at fault, George was 20 percent at fault, and that George's damages were $10,000. The jurisdiction uses a pure comparative negligence rule and a modified joint and several liability rule which provides that all parties, including plaintiffs, share responsibility for bankrupt plaintiffs' portion of responsibility, based upon each of the remaining parties' percentage of fault. Aaron is bankrupt. What is the most that George may recover from Todd? (A) $4,000 (B) $6,000 (C) $7,500 (D) $10,000

(C) $7,500 Rationale: Under this modified joint and several liability rule, Todd is responsible for his share (60 percent of $10,000, or $6,000) plus a portion of Aaron's share of $2,000 (20 percent of $10,000). The $2,000 Aaron share is divided between Todd and George based on their relative share of responsibility. Their responsibility is 60 percent Todd to 20 percent George, which is 60:20 or 3:1. In this case, Aaron's share is divided $1,500 for Todd (bringing his total including his own $6,000 share to $7,500), while George's additional share is $500 (meaning he will end up bearing $2,500 of the total responsibility). This means Choice C is correct and the other choices are incorrect.

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) A reasonably prudent mechanic. 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.

Frank runs Frank's factory, which makes leather goods. The factory spews smoke, which contains a chemical that some people claim increases the risk of lung cancer. According to epidemiological statistics, 10 people in the neighborhood around Frank's factory are expected to contract lung cancer, but there are 13 cases of lung cancer there. If any of the 13 people with lung cancer sue Frank in tort for their cancers based upon the smoke from Frank's factory: (A) Each plaintiff would have to prove that the chemical in the smoke from Frank's factory can cause lung cancer. (B) Each plaintiff would have to prove, assuming the chemical can increase the risk of lung cancer, that the chemical in the smoke from Frank's factory caused the plaintiff's lung cancer. (C) Each plaintiff would have to prove both A and B. (D) Assuming Frank's spewing of the smoke was tortious, each plaintiff could get damages equal to 3/13ths of his or her injuries.

(C) Each plaintiff would have to prove both A and B. Rationale: The plaintiffs must prove both general causation (that the substance can cause plaintiff's injury) and specific causation (that the substance caused the injury in this plaintiff). For this reason, Choice C is correct and better than Choices A or B, which are both also right. Choice D is wrong because we require matching: we do not let all of the plaintiffs (the majority of whom likely were not injured by Frank's smoke) to recover absent proof that but for Frank's conduct, they never would have contracted lung cancer.

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) Farah owes Sam a duty of reasonable care under the circumstances. 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.

Phil has a heart attack while sitting on a park bench. Jane is passing by and starts to perform CPR on Phil while Phil is unable to talk or otherwise communicate his wishes. Phil is okay, but Jane broke one of Phil's ribs trying to perform CPR. If Phil sues Jane for battery: (A) Phil will win, because he did not give express consent to being touched. (B) Phil will win, because he did not give consent in fact to being touched. (C) Phil will lose, because he consented to being touched. (D) Phil will lose, even though he gave neither express consent nor consented in fact.

(D) Phil will lose, even though he gave neither express consent nor consented in fact. Rationale: This is a straightforward question about the law excusing the lack of consent because of an emergency. In this situation of an emergency, where Phil has neither expressly consented (with words) nor impliedly consented in fact through his actions, Jane still may touch Phil to provide first aid. The case for battery will fail and Choice D is correct and Choices A and B are incorrect. Choice C fails because there is no evidence Phil gave implied-in-fact consent to being touched; he was unable to talk or communicate his wishes.

A locks B, an athletic young man, in a room with an open window at a height of four feet from the floor and from the ground outside. False imprisonment?

Not false imprisonment, can go out the window

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) Jane may win, even though Felicia was not negligent in dropping the bananas. 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.

Robert is obsessed with superstar actor Jodi. He sends her notes about how one day he will take her away and they will spend the rest of their lives together. Because of these letters, as well as disturbing communications from others, Jodi is surrounded by bodyguards. One day, when Jodi was coming out of a movie premiere, Robert jumped out of a crowd to try to grab Jodi and kiss her. As he lunges, Jodi's bodyguards tackle Robert before he can make any contact with Jodi. Jodi sees the whole thing and is very shaken up. If Jodi sues Robert for assault: (A) Jodi should lose, because her bodyguards were able to take evasive action to avoid harmful or offensive contact. (B) Jodi should lose, because she was not afraid of Robert's attempted contact. (C) Jodi should win, because she was put in imminent apprehension of offensive contact. (D) Jodi should win, if she can prove she was actually afraid of being touched.

(C) Jodi should win, because she was put in imminent apprehension of offensive contact. Rationale: To succeed on assault, a plaintiff must prove that she had an immediate expectation of a harmful or offensive contact to herself. It does not matter if the plaintiff can take evasive maneuvers to avoid the contact. Here, Robert attempted to make an offensive contact with the person of the other; the fact that Jodi's bodyguards took evasive action is irrelevant. Choice A is therefore incorrect. Nor does it matter whether or not Jodi was actually afraid of the contact; it is enough that Jodi had an immediate expectation of contact. Assault requires apprehension of contact not necessarily fear of contact. For this reason, Choices B and D are wrong. Choice C correctly explains that Jodi wins, so long as she had an immediate expectation of offensive contact.

Kira is an armed security guard on her way home after her shift at a bank. She sees a large dog trying to bite passers-by. The dog looks out of control, and Kira worries the dog has rabies. Kira takes out her gun and shoots the dog to death, to the cheers of those in the crowd. The owner of the dog sues Kira for trespass to chattels. (A) Kira will lose, unless the dog was actually rabid. (B) Kira will lose, because one cannot take property without providing "just compensation." (C) Kira will win, and not have to pay damages. (D) Kira will win, but will still have to pay damages.

(C) Kira will win, and not have to pay damages. Rationale: Kira has acted out of necessity in shooting a dog that is attacking people, whether or not the dog is rabid. For this reason, Choice A is wrong. Choice B is wrong because the "just compensation" standard from the Constitution's Takings Clause does not apply to private actors. This leaves us with Choices C and D. The question is whether Kira would have to pay damages. Because she is protecting the public at large, this would count as public necessity and she would not have to pay damages, making Choice C correct. This is true even though Kira is a private individual.

Megan is about to board an airplane when Caitlyn negligently bumps into her, causing Megan to get some cuts and scrapes. After Megan cleans up, she goes to board her plane, but it has already departed. Megan gets on the next plane, but that plane has a malfunction and crashes, seriously injuring Megan. If Megan sues Caitlyn for negligence, what is the most likely result? (A) Megan will recover for all of her injuries actually caused by Caitlyn's negligence. (B) Megan will recover only for those injuries actually caused by Caitlyn's negligence. (C) Megan is likely to recover for the cuts and scrapes but not for injuries related to the plane crash. (D) Megan is likely to recover nothing from Caitlyn.

(C) Megan is likely to recover for the cuts and scrapes but not for injuries related to the plane crash. Rationale: The facts tell us Caitlyn was negligent in bumping into Megan. We know that but for the bumping, Megan would not have suffered the cuts and scrapes nor the later airplane-related injuries. The problem for Megan is that the airplane crashing could be seen as so important and unforeseeable as to be outside the scope of liability. In other words, a jury could well conclude it is not fair to hold Caitlyn liable for the airplane-related injuries. A jury is therefore likely to hold Caitlyn liable only for the cuts and scrapes, making Choice C correct and Choice D incorrect. Choices A and B are incorrect because all of the injuries were actually caused by Caitlyn's conduct but not necessarily proximately caused by Caitlyn's conduct.

Gwen works as a security guard at Shopco, a warehouse grocery store. Gwen is supposed to patrol the store for four hours straight and then take a half hour for lunch. Gwen is tired, so she goes into the restroom and takes a snooze in a bathroom stall. While Gwen is sleeping, Robbie the robber comes in to steal money from the cash drawers. In the course of the robbery, Robbie shoots a customer, Mike, who tried to get up and tackle him during the robbery. Mike sues Shopco for negligence, arguing that Gwen was negligent in sleeping on the job (assume Shopco is vicariously liable for Gwen's actions). What is the strongest intervening cause argument Shopco can make against liability for negligence? (A) Gwen falling asleep on the job was a superseding cause which breaks the chain of causation. (B) Robbie robbing the store was a superseding cause which breaks the chain of causation. (C) Mike trying to tackle Robbie was a superseding cause which breaks the chain of causation. (D) Robbie shooting Mike was a superseding cause which breaks the chain of causation.

(C) Mike trying to tackle Robbie was a superseding cause which breaks the chain of causation. Rationale: For an intervening cause to count as a superseding cause to "break the chain of causation" and let a tortious defendant off the hook for liability, the intervening cause must come after the defendant's tortious conduct and be so important and unforeseeable so that a factfinder could conclude it is not fair to hold the defendant liable for plaintiffs' injuries. In this case, Choice A is incorrect because this is the tortious conduct, not something that comes after the tortious conduct. Choices B and D are incorrect because it is entirely foreseeable that there could be independent criminal conduct which could occur if the defendant fails to provide adequate security. The strongest answer, though by no means a certain argument, is that Mike's own conduct in trying to attack the robber should let the defendant off the hook for liability. Choice C is therefore the strongest answer.

Miriam agrees to go skydiving with Skyco. Before going, Mary signs a form stating that she understands the risks of skydiving and agrees not to sue Skyco for negligence in the event of an accident arising out of the skydiving. Mary is injured on her first dive because of the negligence of Skyco in dropping her too close to the ground in time for her parachute to fully deploy. Assume that the contract Miriam signs is enforceable under state law. Miriam sues Skyco for negligence. What result? (A) Miriam will recover all of her damages from Skyco. (B) Miriam will recover some of her damages from Skyco, depending on her negligence. (C) Miriam will recover no damages from Skyco because she expressly assumed the risk. (D) Miriam will recover no damages from Skyco because she consented to sky dive.

(C) Miriam will recover no damages from Skyco because she expressly assumed the risk. Rationale: The facts here indicate that Miriam contracted her right to sue Skyco for negligence. This is an express assumption of risk, and it completely bars Miriam's case if the contract is enforceable. (Many courts, under the Tunkl doctrine, hold that such exculpatory contracts affecting the public interest, such as for food or shelter, are not enforceable.) The facts tell us this contract is enforceable under state law, and therefore Mary's claim is completely barred. Choice C is therefore correct and Choices A and B are incorrect. Choice D is incorrect because consent to sky diving is not the same as agreeing not to sue for negligence.

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) No, because Carol cannot prove all of the elements of the tort of negligence by a preponderance of the evidence. 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.

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 negligence 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) No, because bad driving was not a harm within the risk of violating the statute. 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.

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) Not recover if the area was closed to visitors. 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.

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) Both A and B are correct. 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.

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) Selena will win, because Lance owed her a duty to come to her aid if he could do so easily. 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.

Owner raised a pet squirrel from infancy. The animal was perfectly tame and always stayed on Owner's unfenced backyard, where Owner provided food and water. On one occasion the animal left unexpectedly for a week. It was next seen by Pedestrian who was walking along a public sidewalk in Owner's neighborhood. Pedestrian recognized the animal as belonging to Owner. He tried to pet the animal, and was bitten. The animal turned out to have rabies, and Pedestrian had to take a long series of painful shots in order to avoid getting the disease. Prior to petting the animal, Pedestrian had seen a small amount of foam at the edges of the animal's mouth, but he failed to associate the foam as a symptom of rabies. The animal had exhibited no signs of having rabies prior to leaving Owner's property. However, because of the time span involved, he must have already contracted the disease. In an action by Pedestrian against Owner for damages caused by the bite, Pedestrian's best theory of recovery is: (A) Negligence (B) Strict liability for keeping domesticated animals (C) Strict liability for keeping wild animals (D) Strict liability for permitting a dangerous animal to escape from Owner's land

(C) Strict liability for keeping wild animals Rationale: A claim for strict liability for keeping wild animals would only require Plaintiff to show that Owner was the keeper of a wild animal (the squirrel). Thus, Choice D is the best option. Negligence would require Pedestrian to show that Owner acted unreasonably. And the squirrel did not show any sign of having rabies. Therefore, Choice A is not the best answer. Squirrels are not domesticated animals like cats or dogs, nor is there evidence that Owner knew the squirrel was abnormally dangerous, so choice B is not the best answer. Choice D is not the best answer as the squirrel was not an abnormally dangerous domestic animal or livestock that had escaped Owner's property.

At the end of a defamation trial in which Alex accused Gina of lying about Alex taking steroids while working as a professional baseball player, the jury finds for Gina, accepting the defense that the statement is true. Alex walks over to Gina and spits in her eye. Gina sues Alex for battery. The jury awards Gina $500 in compensatory damages and $10,000 in punitive damages. Alex earned $8 million last year as a baseball player. Alex challenges the amount of punitive damages in the case as unconstitutional. What is the strongest argument to support the constitutionality of the amount of the punitive award? (A) Alex is rich. (B) Alex's conduct may have been similar to other bad acts he has engaged in. (C) The amount of the compensatory damages was very low. (D) The ratio complies with a single-digit multiplier.

(C) The amount of the compensatory damages was very low. Rationale: Ordinarily speaking, the Supreme Court has held that punitive damages must be within a single-digit multiplier, meaning that with an award of $500, the punitive damages must be below $5,000. For this reason, we can eliminate Choice D as simply constitutionally incorrect. The Supreme Court has said, however, that it may be possible to exceed the ratio in cases of very low actual damages for reprehensible conduct. This case may fit into that category, making Choice C correct. Choice A is incorrect because the Supreme Court has said that the wealth of the defendant is not a reason to justify an otherwise unconstitutional award. Choice B is incorrect because the Supreme Court has said that other conduct may be considered for reprehensibility purposes but not for direct punishment; even if there were other similar conduct, the Court has not said this would be a reason to exceed the single-digit multiplier.

Frank runs Frank's factory, which makes leather goods. The factory spews smoke, which contains a chemical that causes some people to contract a rare lung disease. Barney, Frank's competitor, runs a nearby factory making the same type of leather goods and spewing the same smoke which contains the same chemical that can cause the rare lung disease. Roger, who lives near Frank's and Barney's factories, contracts the rare lung disease, and there is no question that Roger got the disease from the smoke emitted from one of the factories. An expert testifies that Roger got sick either from Frank's factory smoke or Barney's factory smoke. The expert cannot tell which one. Assume both Frank and Barney were negligent in spewing this smoke. Barney argues to the court that he cannot be liable because Roger cannot prove actual cause. How should the court rule? (A) The court should agree with Barney because it is not more likely than not that the smoke came from Barney's factory. (B) The court should agree with Barney because Barney's actions were not a but-for cause of injury, and the alternative liability doctrine is inapplicable on these facts. (C) The court should disagree with Barney and hold Barney liable unless he can prove it is more likely than not that the smoke from his factory did not cause the injury. (D) The court should disagree with Barney because he was negligent to spew the smoke.

(C) The court should disagree with Barney and hold Barney liable unless he can prove it is more likely than not that the smoke from his factory did not cause the injury. Rationale: This question is a classic application of the alternative liability theory of Summers v. Tice. Here you know you have two wrongdoers in court, and you know that one of the wrongdoers committed the negligent act, but you don't know which one caused the injury. In such circumstances the burden shifts to each defendant to prove he or she did not cause the injury. Choice C correctly states this standard and Choices A and B do not. Choice D is wrong because it is not enough to be negligent; there must be proof of actual causation (either through but-for causation or an alternative) for Barney to be liable.

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) 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. 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.

Blastco has the best safety record in the state of Pacifica. Blastco has been asked to take down the old bridge going across the river that runs through town in order to build a new one. Unfortunately, despite Blastco's use of all reasonable care, one of the blasts causes debris to fly and causes an eye injury to Charles. The state follows the approach of the Restatement (Third) of Torts to classify which activities count as "abnormally dangerous" activities subject to a strict liability rule. Charles sues Blastco. In determining whether or not Blastco's activities should be subject to strict liability, which factor should the court not consider? (A) The inability of Blastco to eliminate risk by exercising reasonable care (B) The extent to which blasting is a matter of common usage (C) The social utility of the blasting to the community (D) The high likelihood of serious injury if there is an accident

(C) The social utility of the blasting to the community Rationale: This question is quite straightforward for anyone familiar with the two-part test of the Third Restatement's approach to abnormally dangerous activities. Choices A, B, and D each list factors that are part of the Restatement's test (inability to eliminate the danger through the exercise of reasonable care, common usage, and significant risk of harm). Only Choice C, the social utility of the blasting to the community, is not a factor listed in the Third Restatement (making the Third Restatement's approach to this issue different from the approach of the Second Restatement). Choice C is correct.

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 negligent in speeding: (A) Violation of the statute is relevant to the question of negligence. (B) Violation of the statute is inadmissible on the question of negligence. (C) Violation of the statute is conclusive proof of negligence, unless excused. (D) Violation of the statute is the best evidence of negligence.

(C) Violation of the statute is conclusive proof of negligence, unless excused. Rationale: Negligence per se involves using violation of a criminal statute to prove negligence. When the statute is violated, unless excused, it is conclusive proof of negligence. 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 negligence.

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) Yes in some jurisdictions, because emotional distress in such circumstances is particularly foreseeable. 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.

Chloe is crossing the street when she has a sudden seizure. She collapses in the crosswalk. Barbara is driving down the street and is not paying attention to the road as she talks on her cell phone. Barbara runs over Chloe, causing Chloe serious injuries. Barbara concedes her conduct was negligent but argues that Chloe cannot prove actual causation saying, "If I didn't run Chloe over, someone else would have eventually." Is a factfinder likely to find that Barbara's conduct was an actual cause of Chloe's injury? (A) Yes, because Chloe would eventually have been run over by someone. (B) No, because Chloe would have eventually been run over by someone. (C) Yes, because but for Barbara's negligence, this injury to Chloe would not have occurred. (D) No, because even with Barbara's negligence, an injury to Chloe would have occurred.

(C) Yes, because but for Barbara's negligence, this injury to Chloe would not have occurred. Rationale: The usual test for causation is the "but for" test: but for the defendant's tortious conduct in doing whatever it is that the defendant did tortuously, the injury would not have occurred. In this case, but for Barbara's driving, Chloe would not have been run over in this accident. It does not matter that she might have been run over in a different accident. The question is what the world would be like if everything were exactly the same, if Barbara did not engage in negligent driving. Because the answer is that this accident would not have occurred, Barbara's conduct is a but-for cause of Chloe's injury. Choice C correctly states this principle, and Choices A, B, and D incorrectly state the but-for test.

Alexandra is driving cross country to visit her best friend. She is in a hurry and is driving even while she is sleepy. Alexandra is so tired she decides to pull over. Unfortunately, she pulls over on the railroad tracks. Paula is the train conductor. She sees Alexandra's car on the tracks, not moving, but assumes Alexandra will move the car. Once the train is very close to the car, and after it is too late to stop the train, Paula blows the train horn. Alexandra wakes up, but it is too late for her to move the car, and she suffers serious personal injuries. Can Alexandra prevail in a lawsuit against Paula and the train company for negligence in a jurisdiction which has adopted the 49% modified comparative negligence rule? (A) Yes, and Alexandra is likely to recover all of her damages. (B) Yes, but Alexandra will recover all of her damages only if the jury determines she is less at fault than Paula. (C) Yes, but Alexandra will recover only some of her damages, and only if the jury determines she is less at fault than Paula. (D) No, even though Paula was also at fault because the last clear chance doctrine has been abolished

(C) Yes, but Alexandra will recover only some of her damages, and only if the jury determines she is less at fault than Paula. Rationale: Under modern comparative responsibility principles, the jury comes up with a comparison of responsibility between plaintiff and defendant when both are negligent. The ameliorative doctrines such as last clear chance do not stand on their own, but the facts related to last clear chance (in this case, that Paula had the last clear chance to avoid the accident) are relevant to the allocation. For this reason, Choice D is incorrect. In addition, the facts tell you that the jurisdiction has adopted the 49% modified rule of comparative responsibility, meaning plaintiff can only recover defendant's share of responsibility if the defendant is found to be equal or more responsible for the injury than the plaintiff (i.e., if the jury finds the defendant to be at least 50% at fault for the injuries). Only Choice C correctly states this principle. Choice B incorrectly states that if Paula is more at fault, Alexandra gets all of her damages; in fact, they are reduced by her share of responsibility. Choice A is incorrect because it ignores the rules of comparative responsibility.

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) Lose, unless a medical expert testifies that he would have told the patient about this risk. 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.

Alexandra is driving cross-country to visit her best friend. She is in a hurry and is driving even while she is sleepy. Alexandra is so tired she decides to pull over. Unfortunately, she pulls over onto some railroad tracks. Paula is the train conductor. She sees Alexandra's car on the tracks, not moving, but assumes Alexandra will move the car. Once the train is very close to the car, and after it is too late to stop the train before hitting Alexandra, Paula blows the train horn. Alexandra wakes up, but it is too late for her to move the car, and she suffers serious personal injuries. Can Alexandra prevail in a lawsuit against Paula and the train company for negligence in a jurisdiction which has maintained traditional contributory negligence rules and its traditional ameliorative doctrines? (A) No, if the jury believes Alexandra was negligent in stopping her car on the tracks (B) No, because Alexandra was the actual cause of the accident (C) Yes, even if the jury believes Alexandra was negligent in stopping her car on the tracks (D) Yes, because a plaintiff's negligence is irrelevant in a negligence suit

(C) Yes, even if the jury believes Alexandra was negligent in stopping her car on the tracks Rationale: Under traditional contributory negligence principles, a plaintiff's own negligence is enough to bar a negligence lawsuit, even if the plaintiff is negligent. This fact makes Choice D incorrect. That rule can be harsh, and therefore certain ameliorative doctrines such as "last clear chance" work to allow plaintiff to recover even when negligent. Here, the defendant had the last clear chance to avoid the accident, and therefore Choice C is correct and Choice A incorrect. Choice B is incorrect because the last clear chance doctrine can apply even if plaintiff's conduct is an actual cause of the injury.

Bill and Jennifer start arguing in a bar over a football game on television. Their tempers flare. Jennifer tries to punch Bill in the face. Bill gets out of the way and Jennifer's fist almost hits Phil, who sees the whole thing. Though Jennifer's fist does not touch Phil, it comes within an inch of his face, upsetting Phil greatly. Can Phil make out the the prima facie case for assault against Jennifer? (A) No, because Jennifer did not make contact with Phil. (B) No, because Jennifer did not intend to make contact with Phil. (C) Yes, even though Jennifer did not intend to make contact with Phil. (D) Yes, unless Jennifer's fist actually made contact with Phil.

(C) Yes, even though Jennifer did not intend to make contact with Phil. Rationale: This question shows transferred intent across people (Jennifer tried to hit Bill but instead assaulted Phil) and across torts (Jennifer tried to commit a battery but ended up causing an assault). In this case, Jennifer acted by voluntarily taking a swing at Bill. From the facts (we know there is an argument where tempers are flaring), it sounds like Jennifer intended to make a harmful contact with Bill. Though Bill is not the plaintiff, to meet the intent requirement of battery it is enough for the defendant to intend contact with a third person. It appears that Phil was put in imminent apprehension of contact. Thus, it appears that Phil can make out the prima facie case for assault. Choice C accurately explains that Jennifer can be liable for assault even if she did not intend to make contact with Phil. Choices A and D are incorrect because contact is not necessary for an assault. Choice B is incorrect because, though intent to make contact with Phil would be sufficient to meet the intent requirement for assault, it is not necessary.

Tom and Jerry are friends who often play practical jokes on one another. Sometimes the jokes get out of hand. One day, Tom goes to a novelty store and buys a toy rat. Tom douses the toy rat in gasoline, lights it on fire, picks it up and puts it in Jerry's face. Tom wants Jerry to think Tom will touch him with the rat, but actually he does not intend to touch Jerry. Jerry backs up to get out of the way and trips over a chair, breaking his nose. Can Jerry make out the intent element in a battery claim against Tom? (A) No, because Tom did not intend contact with Jerry. (B) No, unless Jerry feared the rat would cause him physical harm. (C) Yes, even though Tom did not intend that Jerry have a harmful contact with the rat. (D) Yes, because Tom intended that Jerry have an offensive or harmful contact with the rat.

(C) Yes, even though Tom did not intend that Jerry have a harmful contact with the rat. Rationale: Choice A is wrong because a defendant need not intend to make any contact in order to be liable for battery - given transferred intent. It is enough that the plaintiff is put in imminent apprehension of contact. Choice B is wrong because it is enough for a plaintiff to have an immediate expectation of offensive contact if not harmful contact. In any case, that fact does not speak to whether Tom had the right intent. Choice D is incorrect because the facts tell us that Tom did not intend a contact, much less an offensive contact. Choice C is therefore correct because Tom can be liable for battery if he intended to put Jerry in imminent apprehension of an offensive contact. Now one might have been thrown off because the ultimate contact that resulted in this question resulted from the trip and fall rather than touching the actual object held by Tom. That question is relevant to a different part of the prima facie case: whether contact resulted directly or indirectly. But look at the call of the question. It asks only if Tom can make out the intent element for battery, not whether Jerry can prove the entire prima facie case for battery.

Celebrate Inc. is running a fireworks show at the annual Fourth of July picnic. Billy, an 11-year-old boy, sneaks past security guards to get a close look at the operation. He gets too close, and suffers hearing damage because he is not wearing protective earplugs. The jurisdiction treats the lighting of fireworks as an abnormally dangerous activity and applies the Third Restatement's approach to strict liability for abnormally dangerous products. What is the relevance, if any, of Billy's conduct in evaluating who bears responsibility for Billy's injury? (A) Billy's conduct is irrelevant, because this is a case governed by strict liability principles. (B) Billy's assumption of risk is relevant, but not any negligence on his part. (C) Any negligence by Billy is relevant, but not his assumption of risk. (D) Both Billy's negligence and assumption of risk are relevant for the allocation of responsibility for the injury.

(D) Both Billy's negligence and assumption of risk are relevant for the allocation of responsibility for the injury. Rationale: This question concerns affirmative defenses under the Third Restatement. The approach is to consider both a plaintiff's negligence and the plaintiff's assumption of risk (consent) in determining the plaintiff's share of responsibility. For this reason, Choice D is correct and Choices B and C are incorrect as incomplete. Choice A is incorrect because even in some strict liability cases, such as those governed by the Third Restatement, the plaintiff's conduct is relevant for the allocation of responsibility.

Pavel is riding his bike when Dino negligently hits Pavel with his car. Pavel breaks a rib. Dino calls an ambulance to take Pavel to the hospital. Alvin the ambulance driver picks up Pavel to take him to the hospital, but negligently crashes the ambulance, causing Pavel to get a concussion. If Pavel sues both Dino and Alvin for negligence: (A) Both parties are jointly and severally liable for the rib injury and concussion. (B) Dino is responsible for the rib injury and Alvin is responsible for the concussion. (C) Both parties are liable for both injuries depending upon their relative share of responsibility. (D) Dino is solely responsible for the rib injury, while Dino and Alvin are jointly and severally responsible for the concussion.

(D) Dino is solely responsible for the rib injury, while Dino and Alvin are jointly and severally responsible for the concussion. Rationale: This case involves two distinct injuries, and so it would appear that each defendant would be liable for the injury he caused: Dino for the rib injury and Alvin for the concussion. There is not a single indivisible injury. However, subsequent negligent medical care (in this case, the crashing of the ambulance) is a foreseeable consequence of negligently getting into an accident, and so the injury caused by the ambulance is an injury for which both Dino (the original wrongdoer) and Alvin (the ambulance driver) are jointly responsible. Choice D correctly states this rule, and Choices A and B are incorrect. Choice C is incorrect because this division does not depend upon shares of responsibility.

Frank and Stein met in the park with a bunch of other people interested in playing touch football. In order to stop a play under the usual touch football rules in the park, a defensive player must get both hands on an offensive player while that offensive player is in the possession of the football. Stein had just caught the ball when Frank, on defense, touches him with both hands consistent with the rules, thereby ending the play. Stein is unhappy that Frank stopped the play, so he pushes him to the ground as hard as he can, breaking three of Frank's ribs. If Frank sues Stein for battery: (A) Frank will lose, because Frank touched Stein first. (B) Frank will lose, because he consented to play football. (C) Frank will win, because no one can ever consent to sharp physical contact. (D) Frank will win, because Stein exceeded the scope of Frank's consent.

(D) Frank will win, because Stein exceeded the scope of Frank's consent. Rationale: This question tests the scope of consent. One cannot be liable for battery if the plaintiff who was touched consented to the touching. From these facts, it appears that Stein granted consent implied in fact to Frank touching him during the football game, and Frank granted consent implied in fact for Stein to touch him. But consent to one kind of touching does not mean consent to any kind of touching. In this case, Stein consented to Frank touching him with two hands to end the play. That is consistent with the park's rules. But Frank did not consent to being pushed so hard by Stein during the game. This went beyond the scope of consent. For this reason, Choice D is correct and Choice B is incorrect. Choice A is incorrect because Frank's touching of Stein was within the scope of Stein's consent. (If Frank had pushed Stein very hard first, then Stein could possibly have pushed Frank back hard in self-defense.) Choice C is incorrect because it is possible that a person would consent to sharp physical contact, as in a game of tackle football.

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) Jane will lose, because Lance owed her no duty to come to her aid even if he could do so easily. 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.

Dennis works as a clown at a children's pizza restaurant. All day he hears kids screaming as they jump in the ball pit and play games around the restaurant. He hates it. Two particularly obnoxious seven-year-old boys keep coming over and hitting Dennis with soft toy swords that they won as prizes at the restaurant. When Dennis sees the two boys, Sam and Max, go into the bathroom, he locks them in. They bang on the door, crying for help and pleading to get out. After 15 minutes, Dennis lets them out on the condition that they promise to behave. The boys tell their parents, who are very upset. If Max sues Dennis for false imprisonment: (A) Max cannot prove the prima facie case, because he did not suffer physical harm. (B) Max cannot prove the prima facie case, because children are not aware of confinement. (C) Max can prove the prima facie case, only if his parent's distress counts as harm. (D) Max can prove the prima facie case, whether or not the crying counts as physical harm.

(D) Max can prove the prima facie case, whether or not the crying counts as physical harm. Rationale: To answer this question, first consider each element of the prima facie case for false imprisonment. Dennis acted by locking the door. Dennis intended to confine Sam and Max to the boundaries of the bathroom. Sam and Max were not allowed out for 15 minutes, showing actual confinement. Finally, Sam and Max were conscious of the confinement; they were crying and asking to get out. There seems no question Max (and Sam) can prove the tortious conduct portion of the prima facie case. Choice A is wrong: It is not necessary to prove physical harm if the plaintiff can prove consciousness of the confinement. Choice B is incorrect because though there may be very small infants who are unaware of their confinement, on these facts Max was well aware of his confinement as indicated by his crying and pleading. Choice C is wrong because what Max's parents suffered is irrelevant. It is enough that Max himself has suffered this dignitary and emotional harm to be entitled to compensation for false imprisonment. Choice D is correct: Max can recover even without physical harm because of his awareness of the confinement.

Alice is at a party having a conversation with Betty and Crissandra. Crissandra accidentally spills her drink on Betty and Betty gets angry. Betty pushes Alice into Crissandra. Crissandra falls to the ground and breaks her tooth. Both Betty and Crissandra sue Alice for battery. Will the lawsuits be successful? C (A) Yes as to Crissandra's suit against Alice, because Betty was the aggressor. (B) Yes as to Betty's suit against Alice, if Crissandra provoked Betty. (C) Yes as to both Betty's and Crissandra's suits against Alice. (D) No as to both suits against Alice.

(D) No as to both suits against Alice. Rationale: Alice was a passive instrument of Betty. Alice did not act because she made no voluntary muscular contraction. Without such an act, Alice cannot be liable for battery because neither Betty nor Crissandra can make out the first element of the prima facie case for battery. For this reason, Choice D is right. Choices A, B, and C are each wrong. Choices A and B are wrong because it is irrelevant who the aggressor is between Betty and Crissandra for purposes of figuring out Alice's liability. (It could be very relevant if they sue each other for battery.) Choice C is wrong because Alice cannot be liable for battery absent an act.

Tina is very excited to take part in a Civil War reenactment taking place in Patriot Park next weekend. She takes her antique gun, unloaded, to the park for practice. She practices marching with the gun and pointing it at "the enemy." When Tina practices, she picks a secluded place in the park. Carlos suddenly rides on his bicycle right in front of Tina as Tina picks up the gun and holds it out for practice against her imaginary opponent. Carlos becomes very afraid he was going to be shot and he nearly crashes his bike. Carlos sues Tina for the tort of assault. Can Carlos make out the the prima facie case for assault? (A) Yes, because contact is not required for an assault. (B) Yes, unless Carlos's bike actually crashed. (C) No, because Tina did not act. (D) No, because Tina did not have the requisite intent.

(D) No, because Tina did not have the requisite intent. Rationale: When Tina held up the gun, she was certainly committing an act. It was a voluntary muscular contraction; she was not sleepwalking or responding to a reflex. For this reason, Choice C is incorrect. Though it was an act, Tina did not act with the requisite intent. When she held out the gun, she did not see anyone around. Therefore, she did not have the purpose and did not act with the knowledge that she was substantially certain to make a harmful or offensive contact with Carlos or a third person. Nor did she have the purpose or act with the knowledge that she would put Carlos or a third person in imminent apprehension of such contact. Thus, Choice D is correct. Choice A is incorrect because, though it states a correct proposition of law (contact is not required for an assault), the assault claim fails because of a lack of intent. Choice B is wrong because whether or not Carlos's bike crashed could be relevant to Carlos's cause of action for battery, not assault. It would be enough for him to be put in imminent apprehension of a harmful or offensive contact.

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) No, unless B kept the dog for the purpose of attacking intruders. 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.

Lisa, a 13-year-old, sneaks onto Hillary's property, which has access to 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) The court should accept Hillary's argument. 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.

Nick worked at a ship yard during World War II as a welder. He was exposed to asbestos on the job in many different forms and from many different products. Years later, Nick develops asbestosis, a disease one can only get from exposure to asbestos. Nick wants to sue asbestos manufacturers who made asbestos products that might have been in the ship yard during the years he worked as a welder. (Assume all manufacturers selling asbestos at the time could be found negligent and that the claims are not barred by any statute of limitations.) Nick cannot identify who made any of the products he was exposed to, and different products raised different risks of causing asbestosis. He cannot sue all of the manufacturers of asbestos products made at the time because some are out of business. The manufacturers he sues argue that his claim fails on actual causation grounds. How should the court rule on the manufacturers' argument? (A) The court should reject it because Nick can prove causation of each manufacturer as concurrent causes. (B) The court should reject it because Nick can shift the burden using alternative liability. (C) The court should reject it because Nick can prove his case using market share liability. (D) The court should accept it under existing accepted theories of causation.

(D) The court should accept it under existing accepted theories of causation. Rationale: Nick's case will fail on actual causation grounds. First Nick cannot use but-for causation because he does not know which manufacturer's products caused his injury. He cannot show that any single manufacturer's product would have caused his injury. He cannot use alternative liability because he cannot show he has the actual wrongdoer in court. And he cannot use market share liability because the products are not fungible (some created greater risk of asbestosis than others). Nor has he shown that he sued a significant share of the market at the time. This means that Choice D is correct, and the other choices are incorrect.

Torey is driving drunk after leaving a friend's house. Torey is stopped at a red light, not breaking any other traffic laws, when Erin crashes into her. Erin concedes she was negligent in causing the crash, as she was texting when the crash occurred. But she wants to have her negligence reduced on account of Torey's drunk driving. The jurisdiction allows for comparative responsibility allocations between plaintiffs and defendants when both are negligent. How should the court handle Erin's argument? (A) The court should allow Erin to make the argument to the jury, because drunk driving is negligence per se. (B) The court should allow Erin to make the argument to the jury, because Torey could have injured many people by driving drunk (C) The court should bar Erin's argument, because Erin was negligent. (D) The court should bar Erin's argument, because Torey's negligent conduct was not an actual cause of the accident.

(D) The court should bar Erin's argument, because Torey's negligent conduct was not an actual cause of the accident. Rationale: Even though Torey was driving drunk, on these facts there is no indication Torey's drunkenness contributed to the injury. It was not a but-for cause: if you imagine everything in the fact pattern is exactly the same, but Torey is sober, the accident comes out the same way. For this reason, Choice D is correct. Choice C is incorrect because a defendant's negligence does not prevent sharing responsibility with a negligent plaintiff in a jurisdiction using comparative responsibility. Choice A is incorrect because even if drunk driving is negligence under a statute, the violation of the statute must be causally related to the injury. Choice B is incorrect because responsibility depends upon contribution to the plaintiff's injury, not the potential to cause injury to others.

Frank runs Frank's factory, which makes leather goods. The factory spews smoke, which contains a chemical that causes some people to contract a rare lung disease. Barney, Frank's competitor, runs a nearby factory making the same type of leather goods and spewing the same smoke which contains the same chemical that can cause the rare lung disease. Roger, who lives near Frank's and Barney's factories, contracts the rare lung disease, and there is no question that Roger got the disease from the smoke emitted from the factories. An expert testifies that each factory alone emitted enough smoke to give Roger this disease, and he is no worse off having been exposed to smoke from both factories. Barney argues to the court that he cannot be liable because Roger cannot prove actual cause. How should the court rule? (A) The court should agree with Barney because two people can never both be actual causes of the same injury. (B) The court should agree with Barney because Barney's actions were not a but-for cause of injury. (C) The court should reject Barney's argument because Barney's actions were a but-for cause of injury. (D) The court should reject Barney's argument because even though Barney's actions were not a but-for cause of injury, a jury could find causation under the multiple sufficient cause doctrine.

(D) The court should reject Barney's argument because even though Barney's actions were not a but-for cause of injury, a jury could find causation under the multiple sufficient cause doctrine. Rationale: Under these facts, neither factory's smoke is a but-for cause of the injury: if Frank's smoke did not cause the injury, then Barney's would have, and vice versa. Choice C is incorrect. But once one concludes that but-for causation does not work, one should consider alternative approaches to causation, including multiple sufficient causation: when there are two independent causes, either one of which would have been enough to cause the same indivisible injury to the plaintiff, both defendants are liable for the damage. That works in this case. Therefore, Choice D is correct, and choices A and B are incorrect.

Talia and Sammy are neighbors who dislike each other. Every afternoon, Talia sends her dog to go to the bathroom near the line between their adjoining properties. Talia insists the dog is on her side of the property line. Sammy insists the dog is crossing the line. To resolve the case, Sammy sues Talia for trespass to land, seeking $1 in damages for the invasion. Talia responds by stating that, even if Sammy is right that Talia's dog has crossed into Sammy's property, Sammy cannot prove his prima facie case for trespass to land because he has neither requested nor proven any damages. How should the court rule on Talia's argument? (A) The court should accept Talia's argument because plaintiffs must always prove damages as part of the prima facie case. (B) The court should reject Talia's argument because Talia was acting intentionally. (C) The court should reject Talia's argument because plaintiffs never need to prove damages as part of the prima facie case. (D) The court should reject Talia's argument because Sammy could seek nominal damages as a means of declaring the rights between the two parties.

(D) The court should reject Talia's argument because Sammy could seek nominal damages as a means of declaring the rights between the two parties. Rationale: Generally speaking, plaintiffs must prove damages as part of the prima facie case for all torts. However, this rule is subject to some exceptions, such as trespass to land where nominal damages are available. For this reason, Choices A (plaintiffs must always prove damages) and C (plaintiffs never need to prove damages) are both incorrect. Choice B is wrong because whether or not Talia was acting intentionally is irrelevant to Talia's argument. That is, even if Talia concedes she has acted intentionally in entering Sammy's land, Talia is claiming that Sammy's failure to prove damages should doom his case. Choice D is the best answer: For certain kinds of cases, such as trespass to land, a person can seek nominal damages as a means of declaring the rights between the parties. Sammy wants to use nominal damages as a way of telling Talia to keep off his land. If Talia continues to do so after the case, Sammy might seek an injunction or punitive damages for later violations.

Liam was injured in a terrible automobile accident, which left him with limited ability to feel pleasure and pain. He has had and will continue to have extensive medical expenses and will never be able to work again. Alexa, who caused the accident, argues that she need not pay any damages because the plaintiff has limited ability to feel pain. How should a court respond to the Alexa's argument? (A) The court should accept it, ruling that Liam can recover no damages for his injuries. (B) The court should accept it in part, ruling that Liam can recover no noneconomic damages. (C) The court should accept it in part, ruling that Liam can recover no economic damages. (D) The court should reject it.

(D) The court should reject it. Rationale: To answer this question, you first must know the difference between economic and noneconomic damages. In this case, economic damages would include the medical expenses to take care of Liam as well as lost wages. In this case, the noneconomic damages would be any pain and suffering. Generally speaking, courts bar noneconomic damages when a plaintiff is incapable of experiencing pain or emotional distress, but allow damages when, as here, the plaintiff has at least some ability to experience pleasure and pain. Given all of this, Liam should be able to recover for both economic and noneconomic damages. Choice D correctly gives this option, and it follows that Choices A, B, and C are incorrect.

Carla is running late, trying to catch a ferry to attend a July 4th picnic. She is carrying a box of fireworks for celebration that evening. The box is clearly marked as fireworks and it says in big red letters "DANGER! EXPLOSIVE." Carla arrives just as the ferry is about to pull away from the dock. One ferry worker pulls her on the ferry while the other pushes her from the dock. In doing so, Carla drops the package of fireworks, which explodes. Therese, who is just arriving at the dock in her car, gets injured as the wood slats on the dock buckle from the explosion. Therese sues the ferry company for negligence (assume the ferry company is responsible for the actions of its employees). The ferry company responds by stating it owes Therese no duty. How should a court following the analysis of Justice Cardozo in Palsgraf rule on the duty question? (A) The court should rule that the ferry company owes no duty to Therese if it concludes that the employees used reasonable care to avoid a reasonably foreseeable risk. (B) The court should rule that the ferry owes a duty to Therese because its employees failed to use reasonable care when they shoved the woman with fireworks on the ferry. (C) The court should rule that the question of the ferry company's duty is a factual one to be decided by the jury. (D) The court should rule that the ferry company owed a duty to Therese.

(D) The court should rule that the ferry company owed a duty to Therese. Rationale: The difference between the actual facts of the famous Palsgraf case and this hypothetical is that in the actual case, the train station employees did not know and had no reason to know that the man being pushed onto the train was carrying explosives. In this question, the ferry company employees either knew or should have known of the fireworks, given the prominent warning on the box carried by Carla boarding the ferry. The relevance of that warning to the duty question is to expand the "zone of danger" to more plaintiffs. Though shoving a person carrying newspapers onto a train creates a small zone of danger (confined to the man and the people immediately around him), shoving a person knowing they are carrying explosive materials endangers more people and creates more foreseeable plaintiffs. Under the facts of the hypothetical, Choice D is the correct choice: The court should rule that the defendant owes a duty to Therese because she is a foreseeable plaintiff. Choice A is incorrect because it confuses the question of duty with the question of breach: Whether or not the ferry company failed to use reasonable care is a breach question, not a duty question. Choice B fails for the same reason. Choice C misunderstands the nature of the duty inquiry. The court is not deciding facts when it considers duty; it is making a policy choice.

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) The custom of not having defibrillators is relevant to whether Cheapo is negligent. 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) Yes, because doctors generally must disclose material risks of surgery 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.

Zilla is sitting in the front seat of her car, with the door open. Kong, an old enemy, sees her from 100 yards down the street and charges at her with a knife. Zilla steps out of the car with a baseball bat, swings hard at Kong with the bat, and hits her. Self defense?

100 yards away-- Zilla had option-- close car door, drive away, etc-- speaks to imminent harm aspect Apply Restatement, 2nd, of Torts § 65: Serious Harm. Under this, privilege of self-defense does not exist if can retreat and not in your home Zilla should retreat and had the time to retreat (not attacked in her home); Zilla cannot claim self-defense § 63 does not apply—this is a serious harm

A is burning brush on his farm, at a place one hundred feet from a public highway. A high wind blows smoke from the brush fire in a thick curtain across the highway, obstructing the view of passing motorists. As a result, B and C collide in the smoke and are injured even though they exercised reasonable care in driving their cars. Duty?

Are the plaintiffs on or off property? off property Burning bush-- activity Duty owed for an activity that causes accident off the premises.

Fassoulas v. Ramey Hypo: The fact that the operation was not successful was not apparent to anyone at the time. Edith soon became pregnant but all concerned thought that the cause was Dr. Ramey's negligent instructions to the couple about how long to wait before resuming intercourse and how long to use birth control because of the presence of residual pockets of sperm. In any event, Maria made her appearance nine months later and was congenitally deformed. . . . Time passed. Dr. Ramey once again erred in his professional conduct, this time by negligently confusing sperm viability with sperm motility in his examination of John's sperm samples. John and Edith were told that John was sterile when in fact he was not. Believing that Maria was born because of the residual sperm pockets extant after the initial operation and that John was now sterile, the couple resumed sexual relations. Again, there resulted a surprise, this time Roussi's birth.

At trial, the jury found in favor of the plaintiffs, finding the defendants 100% negligent with reference to Maria and 50% negligent with reference to Roussi. The plaintiffs were found to be comparatively negligent as to the birth of Roussi. Damages were assessed in the amount of $250,000 for the birth of Maria and $100,000 for the birth of Roussi, the latter sum being reduced to $50,000 because of the plaintiffs' comparative negligence.

A, known to be a resolute and desperate character, threatens that he will waylay B on his way home on a lonely road on a dark night. Assault?

Not imminent What about tonight? Is that imminent enough? No—you can take steps to avoid the harm

A and B negligently started separate fires. The fire started by A reached C's property and burned C's house to the ground. Moments later, the fire started by B reached C's property. Either fire alone would have been sufficient to completely burn C's house. Causation?

B did not cause the harm—A's fire burnt down C's home NOT a twin fires scenario—same harm at same time! A fully liable here

A invites B to lunch. A knows that his private road has been so damaged by recent rains as to be dangerous, but does not warn B of this condition, reasonably believing that B will see the bad condition of the road and will drive with sufficient care to avoid harm. B's attention, however, is diverted from the road, he fails to see the bad condition of the road, and he skids off the road into a tree. Duty? Variant: road is dangerous because it has been undermined by erosion at a point where it runs along an embankment

B is a licensee A thinks condition isn't obvious and doesn't warn—if obvious, no duty owed to B Variant: Erosion of road—you cant see—not obvious, A owes duty to warn B Change facts: A does not know of the condition of the road, but could have easily discovered it · A does not owe duty to B even if it was easy to warn

A owns land on which there is a wooded area in which he knows that people occasionally trespass during hunting season. A fires at a bird in some underbrush without looking to see if any trespasser is there, and shoots B, a trespasser, whose presence A could have discovered if he had taken even the slightest pains to do so. Duty?

B is a trespasser Known trespasser? No, occasional, hunting season is a long amount of time

A locks B, who is suffering from a disease which makes any considerable exertion dangerous to him, in the same room as above (room with an open window at a height of four feet from the floor and from the ground outside). False imprisonment?

B is confined Does A know B has this disease? Could affect intent If knows of disease, yes, false imprisonment

D, while engaged in a conversation with a passenger takes his eyes off the road momentarily and strikes P, a pedestrian. Intent?

Not intent for battery Factors?—location Riskiness is not enough for this (battery)—could argue maybe negligence "could" is not enough "harm" does not only apply to the pedestrian—could be passenger

A is a veterinarian and B is bringing his dog to the vet for shots. Duty?

Business purpose—invitee, duty owed to reasonable care

Caudle v. Betts Hypo: At car dealership's office holiday party, some of the employees engaged in horseplay with an electric automobile condenser. They discovered that the condenser could be charged by touching one end on a car's sparkplug wire and turning the engine over. Once charged, the condenser would deliver a slight electric shock. Several employees played catch with the charged condenser. Defendant shocked the back of Plaintiff's neck with the condenser and chased him with it until he escaped by locking himself in an office. As a result of the incident, Plaintiff's suffered severe damage to his occipital nerve. Defendant "intended the contact to be offensive and at least slightly painful or harmful. The fact that he did so as a practical joke and did not intend to inflict actual damage does not render him immune from liability. . . . [Plaintiff] is entitled to recover for all consequences of the battery, even those that [Defendant] did not intend and could not reasonably have foreseen." Intent?

Can't say D intended nerve damage, but D did desire contact with P's body Single intent jurisdiction? Yes, liable Dual intent? What does harm mean? Is shocking him enough? What about substantial certainty?

A terrible fire negligently started by defendant destroys most of a city block. Plaintiff and her business are spared damage. However, as a result of the fire, no customers come to plaintiff's business for 2 weeks. Can plaintiff recover for lost profits (i.e., economic loss)?

Cannot recover. No harm to person or building, purely economic loss (just a loss of business). No duty, so cannot recover

Plaintiff, a carpenter, was hired to rebuild some seats at the football stadium. He found an outlet near the scoreboard and used it to plug in his power saw. The outlet had outdated wiring, lacking a third grounding wire to prevent electrical shock. Plaintiff plugged in his saw using an extension cord that had only two prongs; it lacked the third grounding prong that plugs into the third wire in modern outlets to prevent shock. He turned on the saw and was electrocuted. Causation?

Causation? If he was going to use the 2-prong extension cord no matter what, then would have been shocked anyway If he was going to use the 3-prong cord then it is the outdated outlet that caused the harm

Larson v. St. Francis Hotel Hypo: While walking along the sidewalk in front of St. Francis Hotel on V-J Day, Plaintiff was struck on head by a chair that was apparently thrown out hotel window. Plaintiff sued defendant Hotel, charging negligence. Res ipsa loquitur?

Chair usually does not fly out of window without someone acting carelessly But is the hotel liable? Not sure defendant is relevant member Plaintiff fails in their proof; hotel may not be responsible-- usually cannot use res ipsa loquitur when have multiple potential defendants

Plaintiff (P) sues 2 defendants (D1 and D2) for injuries arising out of a hang-gliding accident. A jury finds that the plaintiff suffered $100,000 in damage. The jury also finds that the plaintiff was 45% at fault, D1 was 15% at fault, and D2 was 40% at fault. Under contributory? Pure comparative? 50% rule? 49% rule?

Contributory: plaintiff recovers nothing Pure Comparative: plaintiff recovers 55% 50% rule: plaintiff recovers 55% ($55K) (100-45=55) 49% rule: plaintiff recovers 55% ($55K) Some states compare plaintiff's negligence to each defendant separately Here, 45 > 15 and 45 > 40 so plaintiff would not recover

A West Dakota statute requires a fence at least 4 feet high around private pools. Beverly has such a pool, with a 4 foot fence. Allen, a child of 7, climbs over the fence, jumps in the pool, and drowns. Allen's parents sue Beverly for negligence in failing to prevent children from entering the pool area.

Complied with statute-- statute is relevant BUT NOT determinative Compliance does not mean not negligent Statutes are the minimum standard of care, but a reasonable person might take additional precautions

Plaintiff sues defendant for injuries arising out of a skiing accident. Defendant files a counterclaim against plaintiff for injuries sustained in the same accident. A jury finds that plaintiff suffered $75,000 in damages in the incident and that defendant suffered $30,000 in damages. The jury also finds that the plaintiff was 2/3 at fault and that the defendant was 1/3 at fault. Under contributory? Pure comparative? 50% rule? 49% rule?

Contributory: no one recovers Pure comparative: Plaintiff: 75K - 50K = $25K Defendant: 30K - 10K = $20K 50% rule: Plaintiff cannot recover, defendant gets $20K 49% rule: plaintiff cannot recover, defendant gets $20K

Whittaker Hypo: P was a member of a religious sect with a colony across the Atlantic. P decided to leave the sect and return to the U.S. D offered P and her children passage back to the U.S. on his yacht and assured her he would not detain them. Upon arrival in a port outside Maine, D refused to furnish her a boat so that she could leave the yacht and get to shore, although he did allow her to go to shore accompanied by members of the sect. For nearly a month, P remained on board as D attempted to persuade her to stay with the sect. False imprisonment?

Could argue False Imprisonment, depends on conditions Conditions? Water, sharks, etc—adds to creating a fixed boundary

D, not desiring to hit anyone, dumps a pail full of water from a fourth story window in Manhattan during the lunch hour when the street is crowded with people. P is hit. Intent?

Could argue substantial certainty is there (desire is not) Single intent: enough If could show he did not realize contact would happen—he did not have required intent for battery for dual intent jurisdiction

North Pacific Seafood COVID example—forced employees to quarantine in a hotel. Quarantine or you lose your job. False imprisonment?

Could potentially argue FI (we will never know, case settled)

Sindell v. Abbott Labs Hypo: Suit against 5 manufacturers of DES = 90% of the market 195 other manufacturers not sued plaintiff could not prove which manufacturer made the DES her mother took Clear DES caused reproductive cancer in the daughters Plaintiff has to bring case against substantial share of the market then the burden of causation shifts to defendants to show they did not supply the DES in question

Court was not going to impose joint and several liability—impose liability based on that manufacturers % of DES in the market Courts do not expand this ruling outside of these facts/scenarios-- Has not caught outside drugs/products liability context

Plaintiff was seriously injured during a riding lesson when her foot caught in some PVC pipe that was negligently stored along the wall of the arena. Prior to the lesson, plaintiff had expressly assumed the risk of injury of horseback riding by signing a release. Assumption of the risk?

Expressly assumed risk of injury when signed release

A is playing golf. B, his caddie, is inattentive and A becomes angry. Intending to frighten but not to harm B, A aims at him with a golf club which he stops eight inches from B's head. Owing to the negligence of the club maker, the rivet which should have secured the head is defective, though A could not have discovered the defect without removing the head. The head of the club flies off and strikes B in the eye, putting it out. Intent?

Didn't have desire to hit B—stops before B's head and subjectively, was not substantially certain the club would hit B because he was stopping it D does not have requisite intent No 3rd party so no transferred intent for intentional tort Potentially can transfer intent for a diff tort

D shoots an arrow at P. D wants to hit P with the arrow, but because he doesn't have much experience using the bow, is fairly certain that he will miss. The arrow hits P and P is injured. Intent?

Desire is there—wants to hit him D has requisite intent

Rush v. Commercial Realty Co. Case: Plaintiff was a tenant in a house with an outhouse with a floor in disrepair. Plaintiff entered the outhouse knowing of the condition of the outhouse floor. Plaintiff fell through the floor into the accumulation at the bottom and was seriously injured. Assumption of the risk?

Did Plaintiff impliedly assume the risk of her injury? Plaintiff knows, but did not voluntarily agree because a bathroom is necessary

A boy fell off a bridge. The bridge was so high that he would have certainly been killed as a result of plunging into the gorge. However, in his fall, he reached for the defendant's electrical wires, which were charged and uninsulated. The charge electrocuted him and he died instantly. Causation?

Did defendant's conduct cause the harm? Yes, the wires did kill him—had he not hit the wires, he would not have died AT THAT POINT E.g.: someone has terminal disease, but hit by negligent driver and died—driver caused the death

Joanne, a physician, provides medication to her patient, Mark. Because Joanne has confused one medication with another, the medication she gives Mark is certain to harm Mark. Such harm ensues. Intent?

Did not desire harmful contact Not substantial certainty—she did not know because she mixed up meds However, in a single intent could argue desire to cause CONTACT, but just not harmful contact D does not have requisite intent Could prob argue negligence

C, a three-year old toddler, comes home from day care. Throughout the evening, he complains of a sore arm. His parents finally take him to the emergency room, where an x-ray reveals that his left arm is broken. The parents sue the day care center for negligence. Res ipsa loquitur?

Not negligent, tons of ways a 3 year old can break their arm

Hawkins v. King County Hypo: S was appointed criminal defense counsel for H, who was charged with possession of marijuana. H expressed a desire to be released on bail pending his trial. An attorney retained by H's mother (who wanted her son committed) and H's psychiatrist both told S that H was mentally ill and dangerous. Vowing to zealously advocate on behalf of his client, S succeeded in getting H out on bail. A week later, H assaulted his mother and attempted suicide by jumping off a bridge, which resulted in injuries requiring amputation of both legs. Relying on Tarasoff, H's mother sued S, alleging that he negligently failed to control H or to warn her. Duty to rescue?

Disclosure to attorney Distinguish from Tarasoff: mom knows of son's potential threat, no information about assaulting someone in particular For duty: potential victim must be unknowing 3rd party (aka they are not aware of threat) and the defendant must have the target in mind

Jessica and Mary are antique gun collectors. They meet in a public park to show each other their latest acquisitions. The guns are unloaded. In order to get the feel for one of the guns, Mary picks it up and holds it out toward Jessica as if she were going to shoot it. Assault?

Does Jessica know the gun is unloaded? If no, can have grounds for assault because would be fearful Mary's intent? Intended to point gun, but did not intend harm because gun isn't loaded Intent for assault? Mary substantially certain Jessica would anticipate harmful or offensive contact

First responder gets to scene of crime, takes photos and posts them on social media. Parents of victim see photos for first time online. NIED?

Emotional harm or bystander? Emotional harm Impact, zone of danger, or physical manifestation? Physical manifestation is best bet to have duty owed to them

A suffers a heart attack while driving and hits P, a pedestrian. Battery?

Have harmful contact, but not a battery because don't have the offensive contact

Duck Hunter, standing on his own property, shot at wild birds over Plaintiff's land. Plaintiff sued Duck Hunter for $1. Trespass to land?

How far does the ownership extend into airspace? Assume low enough What does unauthorized entry mean? Does the bullet violate this? "Causing an entry"-- yes, bullet is sufficient for trespass to land Why just sue for $1 (nominal damages)? Plaintiff wants defendant to STOP, if defendant continues then could get punitive damages Principle: stop doing it under protection of court

A sends B a box of chocolates. One out of every six chocolates is poisoned with arsenic. B eats several of the non-poisoned chocolates and is unaware that poisoned chocolates are in the box. Later, A informs B that poisoned chocolates were in the box. Battery?

IT: Battery Can seek remedy even if found out about it later Battery—requires offensive contact NOT offensive conduct Distinguish from Brzoska, higher chance of eating the poison and being exposed vs. less than 1% chance of being exposed to HIV Possible points of contact: giving the box, eating the chocolates (choose latter for better case of battery) Eating the chocolates: rate of exposure increases as B eats a chocolate Distinguish from Brzoska, diff intent, A takes more active role Offensive contact? Eating the chocolates, odds are high, policy differences (no AIDS phobia)—knew exact chances of eating the poison More likely a battery than Brzoska case

A, a stranger, comes up to B and caresses her cheek. Battery?

IT: Battery Probably offensive contact Yes, a battery—intends to cause contact, affirmative conduct causes such a contact, conduct is offensive, the other does not consent Yes, in a single intent jurisdiction Dual intent: need more information—subjective to A—was it his culture? If so, maybe did not know it is harmful

When she picks up the gun, Mary does not see anyone around. However, Henry is riding by on his bicycle. He becomes very afraid and nearly crashes his bicycle. assault?

Intent to assault? Not on Henry, doesn't know he is there (could potentially transfer intent if Mary was aiming/intending harm to someone else)

Dexter Hypo: A, a butcher, was driving some sheep he had purchased, toward the city upon the highway, when they became mixed with twenty-two of B's sheep, which were running at large upon the highway. B had not maintained the fence around his pasture and had allowed his sheep to roam unsupervised on the road. A drove the whole flock into a yard near the road, for the purpose of separating them, separated out those that were not his, and continued on his way with the remainder to the slaughterhouse, where the sheep were slaughtered. Four of B's sheep remained in the flock and were slaughtered by A. Intent?

Is desire there?—he tried to separate them out. BUT he did desire to slaughter his sheep Under Ranson v. Kitner, requisite intent is there. A intended to harm sheep, doesn't matter that he mistakenly killed B's sheep as well B could be committing tort of conversion

Parker, an animal control officer, quarantines a dog who had bitten a child. Parker allows the owner to take the dog home after a week, in violation of a quarantine statute that requires her to hold the dog for fourteen days. The next day, the dog runs in front of Jones' car. Jones swerves to avoid the dog and is injured. Breach?

Jones is not the protected class here Statute is not to prevent dogs from running out into the street

A is throwing rocks at a tree in her yard. B rides by on a bicycle and is hit by one of the rocks. Intent?

No transfer—cannot transfer a battery or assault because it's a tree In her own yard—no trespass of land or goods Did not intend to hit B—no intent (maybe negligence)

A, a roofer, is working on the roof of a townhouse on a city street. Like most roofers, he is not wearing a safety harness, though effective harnesses are available. He is startled by a flying pigeon, steps back, and falls from the roof, hitting B, a passing pedestrian. Jury instructed "must find" D not negligent if was customary for roofers to work without safety harnesses. Is this instruction correct?

Jury instructed "must find" D not negligent if was customary for roofers to work without safety harnesses—false · Does this jury instruction correctly state the law? NO- language of "must find" is incorrect · Custom is relevant, but not required

Hammontree v. Jenner: While driving, Jenner fell unconscious due to an epileptic seizure. He knew that he had epilepsy, but successfully controlled his seizures for a decade and a half. He crashed into Hammontree's bike shop, injuring her and doing damage to her shop. Breach?

L-- risk of injury: magnitude of potential injury is very high P-- probability is low, seizures under control for 15 years But what does "successfully controlled" mean? Seizure free? Once a year? Is he on medication? Side effects? Did he take it? Did his doctor ok him to drive? B-- Burden Where does he live—city, etc? Are there alternatives to driving? (burden of not driving may depend on where he lives) What about if felt the seizure coming? (changes the burden, just need to pull over) How do his seizures manifest? Do we make a hardline rule: if you have epilepsy, you cannot drive. OR Do we make it specific (manifesting in a certain way), etc? On these facts, court said driver was not negligent here—burden is too high, because otherwise man cannot drive at all Underlying point: we are going to take into account the physical characteristics of the person

A statute specifies that an automobile operator must, immediately upon observing an emergency vehicle, pull safely to the side of the road, bringing the automobile gradually to a complete stop, remaining stopped there until the emergency vehicle has passed safely. Driver observed an ambulance approaching with its lights flashing and sirens sounding, but failed to comply with this statute. Plaintiff, a passenger in Driver's vehicle, is injured in the resulting collision. Breach?

May say this statute is not about collisions but about protecting people from delays in emergency care

Easton is in a motorcycle accident and is brought to the hospital. Because he has sustained internal injuries, Dr. Rogers concludes that surgery is appropriate. Easton is unconscious, however, and cannot consent. Valid defense of consent?

Medical emergency scenario: 3 elements- 1) unable to consent 2) urgent need for treatment and 3) serious bodily injury If unconscious, presume you consent to life-saving procedure

A, while walking in a densely crowded street, deliberately, but not discourteously pushes against B in order to pass him. Battery?

No, not a battery This contact is expected in a crowded society—not offensive Intent is there, but not offensive

Plaintiff, entering defendant's premises in the dark, does not know that they are dangerous, fails to exercise ordinary caution to find out, and is injured. Assumption of the risk?

No implied risk-- did not know dangerous Plaintiff was negligent-- did not exercise caution to protect self

D says, "Watch me scare Fred by throwing this rock nearby." Unfortunately, D did not have good aim and he struck Barney. Intent?

No intent to harm Barney No intent to harm Fred BUT intended to assault Fred (scare him) Transferred intent from assault to battery on Barney

McGuire v. Almy Hypo: Private duty nurse was taking care of a woman with a mental illness in the woman's home. The patient became "ugly, violent, and dangerous" and began destroying furniture in the room. She told the nurse that if he came in, she would kill him. Fearful that she might injure herself, the nurse entered the room and attempted to calm her. The nurse was injured when the patient struck him with a leg from furniture that she had broken. Intent?

No privilege for mental illness Will probably be found liable Desire there "I will kill you" D has requisite intent Why? Need to compensate the P—essentially two innocent parties, people could abuse mental illness and claim and fake it Deterrent and compensation arguments Courts do not have a special rule for mental illness-- but you need to know implications of the mental illness to know mental state

UIUC: Guy had expressed violent thoughts (fantasies about committing murder) and disclosed to UIUC Social Workers

Parents sued UIUC Social workers asked him if he was going to act on it and if he had a target in mind—answered no to both Distinguish from Tarasoff: no specific target in mind, said he was not going to act on his thoughts. Here Yingying was a random victim, unlike Tatiana Tarasoff

Plaintiff (P) injured by negligence of 2 defendants (D1 and D2) Assume: joint and several liability D1 and D2 equally at fault (each 50% responsible) injury is indivisible Assume that D1 settles with P for $200,000 Result under pro tanta credit? Result under pro rata credit? VARIANT: Assume jury verdict of $300K

Pro tanta credit: D2 pays P $800,000 [$1 million - $200,000] D1 already paid $200,000; P receives $1 million Pro rata credit: D2 pays P $500,000 [50% share of $1 million] D1 already paid $200,000; P receives $700,000 VARIANT: Pro tanta credit: D2 pays $100,000 [$300,000 - $200,000] D1 already paid $200,000; P receives $300,000 Pro rata credit: D2 pays $150,000 [50% of $300,000] ( pro rata) D1 paid $200,000; P receives $350,000

United Novetly Co. v. Daniels Case Hypo: Flaming rat case Defendant had its employee clean a coin-operated machine with gasoline in a small room in which there was a lighted gas heater with an open flame. While he was working, a rat escaped from the machine and ran to take refuge under the heater, where its fur, impregnated with gasoline fumes, caught fire from the flame. The rat "returned in haste and flames to its original hideout," and exploded the gasoline vapor inside the machine, killing the employee. Prox. cause?

Rat not foreseeable, but small room and open flame—fire/explosion is foreseeable Court decided foreseeable—harm has to be foreseeable, not necessarily the manner it happens

Kituskie v. Corbman Hypo: While on vacation in CA, Kituskie was injured by a speeding drunk driver on the wrong side of the road. Kituskie hired Corbman, a lawyer from his hometown in PA. Corbman filed a claim with the drunk driver's insurance company and learned that the policy limit was $25K. Corbman assumed that CA's statute of limitations was 2 years, the same as PA. In fact, the limit was 1 year, and Corbman missed the deadline. Corbman advised Kituskie to retain new counsel and sue him.

Require plaintiff to prove he would have won underlying case, how much the judgment would have been, and that those damages are collectable (attorney malpractice)

A calls an employee, B, into his office to explain his connection with speculations which have been going on in A's business and stations a guard at the door with instructions not to let B leave the room unless A sounds a buzzer. B does not know of these instructions. B's explanations are satisfactory. The buzzer is sounded and B is allowed to pass unhindered. False imprisonment under Restatement 2nd? 3rd?

Restatement 2nd: B is unaware—not conscious of confinement or harmed by it so no false imprisonment Restatement 3rd: Conscious of confinement is now a minority element (most courts follow Restatement 3rd) conduct intentionally causing the unlawful confinement of another against his or her will Yes, false imprisonment

Snowball/Snow shovel hypo: A throws snowball at B. B hits A with snow shovel. Self defense?

Self-defense? No Snow shovel is not proportional to snowball. Also hit with snow shovel after snowball, not imminent harm, more of a retaliation

D fires a bullet into a dense crowd, knowing that it is almost unavoidable that the bullet will hit someone, but praying fervently that it will not. Intent?

Substantial certainty bullet would hit someone Desire is not there D has the requisite intent

A's front tire blows out while he is driving down Sunset Boulevard. He sues Firewall Tire, the manufacturer of the tire. Res ipsa loquitur?

Sue tire manufacturer—probably not negligent—you are required to check tire pressure, could have blown because of your driving, etc

Ida is also in the park and observes Mary holding the gun. She believes that Mary is going to shoot Jessica and becomes very upset. Intentional tort?

Tort is IIED Don't know if Mary intends to cause Ida emotional distress and IIED cannot transfer intent Would be hard to show Mary is liable, prob not successful claim

D says, "Watch me scare Fred by throwing this rock nearby." Unfortunately, D did not have good aim and he struck Barney. Wilma, standing nearby, sees Barney struck in the face resulting in profuse bleeding. Wilma becomes emotionally upset for weeks. Intent?

Transfer of emotional distress D does not intend to cause Wilma emotional distress Intended assault on Fred—can't be transferred to emotional distress on Wilma Emotional distress is not on the list of transferrable torts

A terrible fire negligently started by defendant destroys most of a city block. Plaintiff business owner suffers burns. As a result, plaintiff must shut down her business for 2 weeks. Can plaintiff recover for lost profits (i.e., economic loss)?

Yes, can recover. Physical harm as well, not just economic harm Can recover for medical bills, pain and suffering, AND loss of income

A locks B, a child six days old, in the vault of a bank. B is not conscious of the confinement, but the vault cannot be opened for two days, and during that time B suffers from hunger and thirst, and his health is affected. False imprisonment under Restatement 2nd? 3rd?

Under Restatement 2nd: Harmed by confinement—suffers from hunger and thirst so yes false imprisonment Under Restatement 3rd: conduct intentionally causing the unlawful confinement of another against his or her will Yes, false imprisonment

D aims a rifle at B and, just as he pulls the trigger, his arm is pushed by a Good Samaritan, and the bullet misses B, but strikes P. Intent?

Under Talmage, intent for battery can be transferred from B to P D has desired to intend harm to B

On 9/11, you have a family member working in the tower and you watch it fall on live TV. NIED?

Under bystander—does watching live TV count as being at the scene and witnessing accident? We might not be aware of the injury to the particularly relevant person

P comes at D to attack him. D, in self-defense, hits P over the head with a lamp. Intent?

Yes, has requisite intent for battery Desire is there in both single and dual intent Could prob argue substantial certainty May not be liable though if you argue self defense

Defendant, a stranger, stood 10 feet away from a toddler playing on the railroad tracks while a train approached from 200 yards away. Rather than remove the toddler, defendant stood by and watched the train roll over the toddler. Assume there is no legal precedent on point. Should the defendant owe the toddler a duty of reasonable care? Why or why not?

Why not duty? 1) potential harm to self 2) strangers (no relationship) Why owed duty? 1) it is a child, they cannot help themselves 2) moral/ethical to help 3) prevent harm-- also seems like an easy rescue in this case Courts in this case would say no duty to intervene

Plaintiff, fully aware of an unreasonable risk, voluntarily proceeds to encounter it. He consents to ride with a drunken driver on a dark night. Assumption of the risk?

Yes assumes the risk-- fully aware and voluntarily proceeds Yes plaintiff was negligent

Pedestrian crosses the street knowing that she is crossing against the light and seeing oncoming traffic approaching. She does so because she sees a toddler somehow separated from his parents walk into the street and is attempting to prevent him from being hit by a car. She is hit by a car and injured.

Yes assumption of risk No not negligent-- burden? Costs of not doing it very high (child gets hit)

D, a five-month old infant, comes home from day care. Throughout the evening, he shows discomfort on his left side. His parents finally take him to the emergency room, where an x-ray reveals that his left arm is broken. The parents sue the day care center for negligence. Res ipsa loquitur?

Yes res ipsa loquitur—5 month old cannot break arm on their own Daycare is one entity—just sue the daycare

A, knowing that B, a customer, is in his shop, locks its only door in order to prevent a third person from entering. False Imprisonment?

Yes, FI. Intent to lock door

A terrible fire negligently started by defendant destroys most of a city block. Plaintiff's business suffers smoke damage. As a result, plaintiff must shut down her business for 2 weeks. Can plaintiff recover for lost profits (i.e., economic loss)?

Yes, can recover. Physical damage to property constitutes recovery even though no harm to owner

A comes around a corner and sees B pointing a revolver at C and announcing his intention to shoot C. A, to protect C, knocks B down. Valid defense of others? Variant: Unbeknownst to A, B and C were actors in a movie being shot on location.

Yes, reasonable to believe C was in imminent harm and used proportionate force Variant: Depends on jurisdiction Some courts allow privilege if mistaken belief was reasonable, other courts don't allow it even if mistaken belief was sincere and reasonable

2/2000 births: no known cause 1/2000 births: caused by Bendectin results in limb reduction in 3/2000 births Causation issue?

problem: we don't know to which group plaintiff belongs 2/3 or 67% chance the limb reduction was "naturally" occurring 1/3 or 33% chance the limb reduction was caused by Bendectin therefore, can't prove that plaintiff's limb reduction was more likely than not caused by Bendectin can only prove that plaintiff's limb reduction was more likely than not caused by Bendectin IF can show Bendectin causes more than 2 cases in 2000 births (i.e., doubles the rate of limb reduction)