Tort Study Set (Post Midterm)

Martin sues Herzog for negligence in a motor vehicle collision occurring in 1915. Martin alleges that Herzog was negligent because, in the dark of night, he crossed the center line of the road and ran into Martin's buggy, coming in the other direction. Herzog claims that Martin was contributorily negligent for failing to have a light on his buggy, as required by state law. Under the contributory negligence rule, a plaintiff is barred from recovery if her negligence was a cause of an accident. At trial, Herzog offers evidence that Martin did not have a light showing on his buggy at the time of the accident. Martin offers evidence that he was carrying a light at the time of the accident, but it had blown out three minutes before the collision, and the he was trying to find a place to pull over and re-light the lamp. On this state of the evidence the judge should instruct the jury as follows in a negligence per se jur

(A) "If you find that Martin did not have a light showing on his buggy at the time of the accident, as required by the statute, then you should consider that fact, along with the evidence offered by Martin to excuse the violation, in deciding whether Martin acted as a reasonable person under the circumstances." Rationale: A prevails here. Choice C tells the jury that, because Martin has offered evidence of an excuse for failing to show a light at the time of the accident, then they must find the Martin was not negligent. But in this circumstance, where there is evidence of a violation and evidence of an excuse, the jury must decide whether, in light of those facts, the defendant's conduct was reasonable. The instruction tells them that must find that Martin was reasonable, taking from them an issue of fact that they should decide. B fails because Martin may not be negligent, even if he did violate the statute, if he had a good reason for doing so. This instruction tells the jury to ignore the evidence of the excuse, because it is irrelevant if the statute was violated. Not so; if Martin did violate the statute, the jury should assess whether the excuse made Martin's conduct reasonable. D is also wrong, because it tells the jury that, if they find that Martin violated the statute, and had no excuse, it was up to them to find Martin negligent for violating the statute or not to find him negligent. In a negligence per se jurisdiction, they do not have discretion to find that Martin act with due care even though he violated the statute. If they find that Martin violated the statute, and had no excuse for doing so, they must find the violation "negligence in itself."

Assume that the state of West Dakota has adopted comparative fault of the not-as-great-as variety. It compares the plaintiff's negligence to that of the defendants as a group and has switched from joint and several liability to several liability. Wilfred sues three defendants, Murray, Gonzalez and Feinstein for negligently causing his injuries. Before trial, Wilfred settles with Murray for $80,000. At trial, the jury finds that Wilfred was 20% at fault, Murray 10%, Gonzalez 20%, and Feinstein 50% at fault. It finds Wilfred's damages to be $100,000. Wilfred can collect. (A) $20,000 from Gonzalez and $50,000 from Feinstein. (B) $80,000 from either Gonzalez or Feinstein. (C) $20,000 from either Gonzalez or Feinstein. (D) nothing further from either Gonzalez or Feinstein.

(A) $20,000 from Gonzalez and $50,000 from Feinstein. Rationale: A is correct. Under several liability, each tortfeasor is responsible for his share. Murray settled his share before trial. Whatever he paid for it, he has sold his share to Wilfred and he is now out of the picture. The other two defendants, under several liability, are still liable for their shares of the $100,000 assessed damages. So, Wilfred collects $80,000 from Murray (from the settlement), $20,000 from Gonzalez, and $50,000 from Feinstein. While the jury said his damages were worth $100,000, he gets $150,000 altogether, because he made a good settlement with Murray.

Yarin is hit crossing Main Street by a car driven by Stamski. While lying in the road after the collision he is run into by Fleet, riding a bicycle down the street. Yarin sues Stamski and Fleet as codefendants in a jurisdiction that applies the traditional law of joint and several liability. The jury finds both defendants liable to Yarin. They find that Yarin suffered $100,000 in damages from the original collision and $20,000 from the second collision with Fleet's bike. How much may Yarin collect from Fleet? (A) $20,000. (B) $10,000. (C) $60,000. (D) $120,000.

(A) $20,000. Rationale: The key to this question is that Fleet and Stamski are joint tortfeasors as to part of Yarin's damages, but not all. Fleet played no part in Yarin's original injury and is not liable for that. He is liable for the $20,000 in additional damages from his collision with the prostrate Yarin, because he negligently caused the collision. He is jointly and severally liable with Stamski for $20,000. Choose A.

Berry, the town animal control officer, captures Barney, a frisky young dog who had just bitten a pedestrian. A state statute required Berry to hold the dog for two weeks, to determine whether it has rabies. After Berry sends Barney home Barney gets loose and bites Wozniak. A neighbor tells Wozniak that Berry released Barney early because the dog pound was full. Wozniak, fearful of rabies, therefore takes a regimen of shots to prevent rabies. Wozniak sues Berry for negligence, and there is conflicting evidence as to whether Berry released Barney early. Berry stakes his defense on his testimony that he held Barney for the full two weeks. Which instruction would be appropriate in a negligence per se jurisdiction? (A) 'If you find that the defendant released the dog after only one week, you must find that the defendant was negligent.' (B) 'You must find that the defendant was negligent.' (C) "If you find that the defe

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

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

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

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

(A) Amy will not be liable, because causing another driver to be smashed by a falling tree is not a foreseeable consequence of negligently backing out of a parking space without looking. Rationale: The best choice is A. Amy's negligence was an actual but-for cause of Hamish's damages because Hamish would not have been stopped at the precise place where the tree fell if Amy had not struck the cart, but she will not be liable because her negligence was not a proximate cause, for the reason stated in A. An imaginary reasonable person advising Amy at the time of her negligent conduct would not have listed the risk of trees falling on stopped traffic as a reason to look in her rear-view mirror before backing up. B merely states why Amy was an actual cause of Hamish's injury, but this falls short of proving liability, because proximate causation is absent. Both C and D are not good answers because they wrongly imply that Hamish's comparative fault is the critical issue. Contrary to C and D, Amy is not liable due to lack of proximate cause, whether or not Hamish could have avoided the falling tree or driven around the shopping cart.

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

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

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

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

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

(A) Prevail, because Robert was an actual and proximate cause of her injury. A is the best choice. Robert's negligence was a but-for cause of the explosion that resulted in Geraldine's injury. Proximate cause is satisfied because indirect physical injuries like Geraldine's are a foreseeable result of Robert's negligent breakage of the gas line. D is wrong because Geraldine's injury was caused by both the bookcase and Robert's negligence. C is also mistaken. Robert's negligent excavation created a significant risk of injury and property damage to surrounding homes, and Geraldine's injury resulted from that risk. So, Robert cannot argue no-duty to avoid liability to Geraldine. B should be rejected because the foreseeability of a plaintiff being injured by negligent conduct depends on the nature of the conduct. Here, Robert's lack of care to avoid hitting gas lines under Smith's property foreseeably placed all of the neighbors, including Geraldine at risk of a gas explosion.

Rios sues McCluskey, Yeltsin and Tichko in a state that applies pure comparative negligence. At trial, the jury finds Rios's damages to be $100,000, finds Rios 20% negligent, McCluskey 60% negligent, Yeltsin 5% negligent and Tichko 15% negligent. The state has switched from joint and several liability to several liability. Rios may recover $5,000 from Yeltsin. (A) True (B) False

(A) True Rationale: This is true. Under pure comparative fault a negligent defendant is entitled to recover reduced damages and may recover from a defendant who has a lower percentage of fault. If the jurisdiction applies several liability, that means that each defendant will be liable to the plaintiff in proportion to his or her percentage of fault. Yeltsin is liable for 5% of $100,000, or $5,000.

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

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

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

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

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

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

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

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

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

(A) not recover, because Qwik Cab was not negligent for failing to foresee the risk of Johanna being swept up by a tornado. Rationale: A is the best answer in this example. If that obnoxious, compulsive nerd, the Reasonable Person, were sitting in the office with the Qwik Cab dispatcher, she would warn the dispatcher of various risks if he doesn't send a cab for Johanna. She might miss an important appointment, she might be mugged, she might alienate a friend who was expecting her. But it is hardly likely that even that tedious know-it-all, the Reasonable Person, would warn that a tornado would arrive and knock Johanna down. This risk is probably too far afield from the risks to be expected from a late cab to lead to liability. B takes the position that Qwik Cab was not an actual cause of Johanna's injury, but it was, under "but for" analysis. If it had picked her up on time she would not have been there when the tornado came through. C holds (and D does as well) that she should recover because the company's failure to arrive was a cause of her harm. But the point of proximate cause analysis and (the related) concept of superseding cause is that actors are not always liable just because their negligence was the actual cause of injury to the plaintiff. Courts sometimes refuse to impose liability despite actual causation if the injury suffered is a consequence not to be expected from the defendant's negligent act.

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

(A) only Jason will be liable. Rationale: A is correct. Jason's negligent act of shooting his rifle while in a no-hunting area caused Ralph's death: The facts say Jason's bullet killed him "instantly." B is wrong because although Maria was similarly negligent, Ralph was already dead when her crossbow bolt arrived. The causal effect of her negligent act was "preempted" by Jason's, which means that Maria's act was not an actual cause of Ralph's harm. C misses the mark because this is a case of preemptive causation, not one of duplicative or multiple sufficient causes. The Third Restatement defines a duplicative or multiple sufficient causation scenario as a case in which multiple negligent acts would have been factual causes of the plaintiff's harm and were in operation at the same time that the plaintiff's harm occurs. In such a case, each act is regarded as an actual cause. Here, however, Maria's shot happened after Jason's, not at the same time. So, this is not a good case of duplicative or multiple sufficient causation. D is incorrect because it primarily addresses proximate causation, which is not at issue here.

Patient went to Doctor complaining of stomach pain and associated ailments. Doctor performed a cursory examination and simply told Patient to stop eating spicy food and to take antacids to alleviate his symptoms. Patient's symptoms worsened, and he returned to Doctor six months later. On this visit, Doctor ordered tests that revealed gastric cancer. The disease had progressed to a point where Patient had a 30% chance of survival. Patient died from the cancer several months later. In a wrongful death action against Doctor, the plaintiff (Patient's estate) proved that Doctor was negligent in failing to test Patient more thoroughly during his first visit, and that if the cancer had been detected at that earlier time, the probability of Patient's survival would have been 40%. In a jurisdiction that follows the traditional common law approach, the plaintiff's claim of negligence based on Doctor's failure to diag

(A) will probably fail, because the plaintiff cannot prove that Doctor's negligence was an actual cause of Patient's death. Rationale: A is correct. In a traditional jurisdiction that does not recognize a cause of action for loss of a chance, the plaintiff must prove that the defendant's negligence was an actual and proximate cause of the plaintiff's harm, and the plaintiff's harm is understood as the actual ultimate outcome. Here, because Patient would only have had a 40% chance of survival if Doctor had treated him properly, it cannot be said that Doctor's negligence was the actual cause of Patient's harm - i.e., his death. (Patient probably would have died of cancer (60% probability) even in the absence of negligence.) C is wrong because whether the decrease in the plaintiff's chance of recovery was substantial or not is not relevant in a traditional jurisdiction. D would be correct in a loss of chance jurisdiction, but the question stipulates that this is a traditional jurisdiction.

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

(B) A negligent act cannot be a proximate cause of a plaintiff's harm if the negligent or intentional act of a third party was also an actual or proximate cause of that same harm. Rationale: B is false. An injury can have multiple proximate causes, and a tortfeasor's negligent act can be a proximate cause of an injury even if the negligent or intentional acts of others are also proximate causes of that same injury. There are several examples of such scenarios in the Practice Perfect review of superseding causation. A is true, because the proximate causes of an injury are a subset of its actual causes. C is simply a statement of the risk rule test of proximate causation, and D is also a well-established doctrine.

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

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

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

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

Min is injured in an accident while a passenger in Lo's car, which collided with Whitman's truck. Min suffers internal injuries and sues Lo and Whitman in a jurisdiction that applies the traditional law of joint and several liability. Min gets a judgment against Lo and Whitman for $110,000. Lo has $50,000 in insurance coverage for accidents, and his insurer offers to pay $50,000 to Min to settle the claim against Lo. Min agrees, and releases Lo from any further liability for the accident. Min may still recover his full damages from Whitman. (A) True (B) False

(B) False Rationale: This is false. Min may still pursue Whitman to recover his full damages, but equity requires that Whitman will get a credit for the amount that Min has already collected toward his damages. Whitman will be liable for $60,000, after a credit for Lo's payment.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(B) Ralph can introduce evidence of the store policy along with any other evidence of negligence, and the jury may rely upon all of it to determine whether CostSaver was negligent. Rationale: Internal policies, along with other relevant evidence of negligence, may be introduced to prove breach. Thus, B is correct, is superior to choice A, and D is incorrect. C is wrong because the jury retains discretion to determine negligence and is not required to find it, even if the employee violated the policy.

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

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

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

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

Porter injured his hand while operating a "punch press," a machine designed to punch holes in sheet metal. Operation of the press required a user to manually insert the material to be punched into the machine and then depress a switch at the base of the machine with his foot. Porter's injury occurred when he accidentally depressed the foot switch while his hand was inside the press. He sued the manufacturer of the machine, Acme, for negligence. Porter's argument was that Acme should have implemented a safety mechanism that would have made it impossible to activate the press while an operator's hand was inside. The evidence showed that the average cost of a punch press accident was $10,000 per occurrence, and that there was a 25% probability that a punch press without a safety device would cause an accident at some point during its expected useful life. Evidence from Acme established that the cost of installing a safety device that would prevent such accidents would be $2,000 per machine. According to application of the Hand Formula, which of the following states both the correct outcome on the question of negligence and cites the most relevant cost comparison? Acme's failure to implement

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

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

(B) recover, because Acme's negligence was an actual cause of foreseeable injury to Derdiarian. Rationale: Choose B. This example is based on a case frequently found in Torts casebooks on superseding cause. Because the events themselves were so unusual, the construction company argued that the accident was unforeseeable, and the driver's seizure was a superseding cause of the accident. Its argument is reflected in choice A. The court rightly rejected the argument. Although the exact events are highly unusual, analysis under Section 34 of the Third Restatement should focus on the general risks the company should have anticipated by its failure to erect a barrier. Surely one of those risks is that a vehicle would somehow veer into the work site and cause an accident. That's what happened, though the details are unusual—as they are in almost all accidents. C is clearly wrong here. If a barrier had been in place, Hubbard would have hit that instead of Derdiarian, so "but for" the lack of a barrier the accident would have been avoided. And D is wrong because, when a later risk is foreseeable, it is not a superseding cause.

Doris, a doctor, examines Pierre, and determines that he has a severe bacterial infection in his leg. However, Doris negligently prescribes an antibiotic that is far too weak. Pierre's infection worsens, and he suffers permanent loss of leg function. Pierre sues Doris for her negligence. At trial, Pierre proves that the antibiotic prescribed by Doris was so weak that it had only a 10% likelihood of curing his infection, and that the total costs of his loss of leg function are $1,000,000. However, Doris proves that at the time she examined him, Pierre's leg infection was already so advanced that he had a 60% probability of suffering permanent loss of leg function, even with an appropriate antibiotic. If these facts are accepted, Pierre's recovery in a jurisdiction that recognizes claims for loss of a chance will be (A) $500,000 (B) $300,000 (C) $100,000 (D) $0

(B) $300,000 Rationale: The correct answer is B. To calculate the value of the plaintiff's loss of chance, we multiply the total cost of his ultimate harm (permanent loss of leg function) by the decreased likelihood of recovery caused by the defendant's negligence. The decreased likelihood of recovery is measured by calculating the difference between the probability that the plaintiff would have experienced a better outcome with proper treatment and plaintiff's probability of the better outcome with negligent treatment. Here are the numbers: Total cost of actual outcome: $1,000,000 Probability of recovery with proper antibiotic: 40% Probability of recovery with weak antibiotic: 10% Decrease in probable recovery caused by defendant's negligence: 30% Value of lost chance of recovery: (.30) ($1,000,000) = $300,000 If you answered A, you probably calculated the value of Pierre's lost chance by subtracting 10% from 60% and multiplying that by $1,000,000. This is wrong, because 60% is Pierre's probability of suffering the worse outcome when Doris examined him. To calculate Pierre's lost chance of recovery correctly, it is the probability of the better outcome in the absence of negligence, here 40%, that should be used as the baseline for measuring the plaintiff's loss of chance.

Epstein is injured in an accident with four drivers, Able, Baker, Charlie and Dog. He sues all four in a jurisdiction that applies the traditional law of joint and several liability. The jury renders a verdict for Epstein awarding him $60,000 in damages. Able, however, is insolvent. Baker owes Epstein. (A) $45,000. (B) $15,000. (C) $60,000. (D) None of the above.

(C) $60,000 Rationale: C is correct. The jury found all four defendants liable, so they are all jointly and severally liable for Epstein's damages. So, Epstein can collect the whole judgment from any one of them. The fact that Able is insolvent does not change Baker's liability. From a plaintiff's point of view, one of the glories of joint and several liability is that each tortfeasor is on the hook for the whole judgment, so if one or more is insolvent or uninsured, the plaintiff can still be fully compensated from those with assets.

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

(C) Both A and B are correct. Rationale: C is the clear winner here. The Hand formula may be used by a plaintiff in a claim for negligence, or by the defendant in a counter or cross-claim for negligence.

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

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

Paul made an appointment to see an eye doctor, Diane, to check on some vision problems he had begun experiencing. Diane performed a simple vision check and gave Paul a stronger prescription for his eyeglasses. However, Paul's vision rapidly worsened over the next several months. He was diagnosed by another doctor with a retinal disease that had reached an irreversible stage that would lead to blindness. Paul has become legally blind and now sues Diane, asserting that she negligently failed to test him for retinal disease, and had she done so, the progression of his disease might have been halted. In a jurisdiction that recognizes claims for loss of a chance for a better outcome, in order to prevail, Paul must prove that (A) Diane's failure to test Paul for retinal disease was negligent, and that Paul would not have become blind but for that negligence. (B) Diane's failure to test Paul for retinal disease was ne

(C) Diane's failure to test Paul for retinal disease was negligent, that this negligence reduced Paul's chances of halting the progression of the disease, and the percentage by which Paul's chance were reduced.

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

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

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

(C) The platform owner introduces Dr. Smith, an expert who testifies that safety rails are customarily made of steel, yet this guard rail was in fact made of inferior strength wood. Rationale: C is correct. Testimony about the type or strength of materials customarily used to create safety rails is not relevant to this particular allegation of negligence: the failure to have a safety rail of sufficient height. Both B and D relate to the customary height of the safety rails and can be introduced as evidence to prove or disprove breach, even if the experts' opinions conflict. A fact witness may also introduce evidence of the plaintiff's contributory negligence, like the evidence in choice A.

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

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

Upton was going up the stairs in Jimenez's apartment building when he was bumped by Peters. Upton was knocked off balance and grabbed the handrail to break his fall. But the rail was loose and pulled away from the wall. Upton tumbles down the stairs and breaks his leg. Just before the two-year statute of limitations on tort claims expires, Upton sues Peters for his injury in a jurisdiction that applies the traditional law of joint and several liability. The jury renders a verdict for Upton for $40,000. However, Peters declares bankruptcy and does not pay the judgment. Upton now brings a new action against Jimenez for negligence in maintaining the stairs. (A) The action may proceed against Jimenez. If she is found negligent, she will be liable to Upton for his injuries. (B) The action is barred, because Upton already brought a law suit against Peters for his damages in the fall. (C) Upton may sue Jimenez for the inj

(C) Upton may sue Jimenez for the injury but will lose if Jimenez asserts the statute of limitations as a defense. Rationale: In this case, the injured party sued one tortfeasor and got a judgment but couldn't collect it. Under joint and several liability, he is not barred from bringing a new action against another tortfeasor, since his judgment has not been satisfied. So, B and D are wrong. Choice A would ordinarily be the right answer, but in this case Upton sued Peters just before the limitations period for torts expired. Surely it has passed long since, and, while Upton may have a valid cause of action for negligence against Jimenez, it will be barred for failure to bring it on time if Jimenez raises the limitations period as a defense. Choose C.

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

(C) Witness Sara who testifies that Jack was not wearing a helmet at the time of the accident.

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

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

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

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

Wilfred sues Murray, Gonzalez and Feinstein for injuries suffered in an airplane accident. The suit is brought in a jurisdiction that applies modified comparative negligence (of the "not greater than" variety) and joint and several liability. It compares the negligence of the plaintiff to that of each defendant individually. At trial, the jury finds that Wilfred was 20% at fault, Murray 10%, Gonzalez 20%, and Feinstein 50% at fault. It finds Wilfred's damages to be $100,000. Gonzalez will (A) not be liable to Wilfred. (B) be liable to Wilfred for $20,000. (C) be liable to Wilfred for $80,000. (D) be liable to Wilfred for $70,000.

(C) be liable to Wilfred for $80,000. Rationale: Choose C. Because the jurisdiction allows recovery against a tortfeasor as long as his or her negligence is not greater than the plaintiff's, Wilfred is eligible to recover from Gonzalez, whose negligence is equal to his. The amount that Gonzalez owes to Wilfred in a joint and several liability jurisdiction is determined by reducing the assessed damages ($100,000) by Wilfred's percentage of fault. That brings it down to $80,000. Both Gonzalez and Feinstein are liable for that amount to Wilfred. Of course, they don't both pay it (for a total of $160,000); if one pays then the judgment is satisfied.

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

(C) not establish her negligence, because the statute was not aimed at the type of harm suffered by Jack. C is the strongest answer. The likely purpose of the double-parking ban is to facilitate the flow of traffic, not to prevent whiplash accidents like the one Jack suffered when he decided to move Bertrand's car. If we ask, "why would the legislature write this law?" it seems clear that it was to keep drivers from blocking travel lanes in the highway and leading to traffic jams. There is a similarity between the statutory purpose doctrine and the concept of proximate cause. The statutory purpose doctrine asks, "what problem did the legislature foresee and try to avoid by enacting the statute?" Proximate cause asks the similar question, "what types of risks would the reasonable person see that would lead her to avoid the act that caused the injury?" Here, the foreseeable harm is a traffic back-up. That is the risk that that Odious Character, the Reasonable Person would warn Bertrand about as she leaves her car in the street, not Jack's injury.

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

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

Patient went to Doctor complaining of stomach pain and associated ailments. Doctor performed a cursory examination and simply told Patient to stop eating spicy food and to take antacids to alleviate his symptoms. Patient's symptoms worsened, and he returned to Doctor three months later. On this visit, Doctor ordered tests that revealed gastric cancer. The disease had progressed to a point where Patient had a 10% chance of survival. Patient died from the cancer several months later. In a wrongful death action brought by Patient's estate against Doctor, the plaintiff proved that Doctor was negligent in failing to test Patient more thoroughly during his first visit, and that if the cancer had been detected at that earlier time, the probability of Patient's survival would have been 40%. If the plaintiff brings an action for lost chance of recovery in a jurisdiction that recognizes such a claim and proves wrongful d

(C) $300,000 Rationale: C hits the mark. In a loss of chance jurisdiction, the plaintiff recovers for the value of his lost chance of recovery, which is calculated as the total amount of damages resulting from the plaintiff's actual outcome—here, $1,000,000—multiplied by the reduction in the plaintiff's probability of avoiding that outcome that was caused by the defendant's negligence—here, 30% (40% minus 10%). The value of the plaintiff's lost chance of beating his cancer was therefore $1,000,000 x .3, which is $300,000.

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

(C) No, because Ted's negligence was not a proximate cause of Patterson's burns. Rationale: Your Practice Perfect authors agree that C is the best analysis. The facts are a slightly modified version of Palsgraf; the differences are that Patterson here is located close to the conductor and passenger carrying the explosive package, and Patterson suffers burn injuries rather than blunt trauma. Though Patterson may be a "foreseeable plaintiff" in the simple sense that he was placed at risk of being physically injured by Ted's negligent conduct (e.g., Harriet could have fallen onto Patterson), the type of harm that Patterson suffered—burns—was not a foreseeable consequence of that negligence. Proximate causation therefore fails, and Patterson will probably lose for that reason.

Min is injured in an accident while a passenger in Lo's car, which collided with Whitman's truck. Min suffers internal injuries and sues Lo and Whitman in a jurisdiction that applies the traditional law of joint and several liability. In his suit he added a second claim against Lo for a burn injury to his hand, which he suffered when they were barbecuing together before a soccer match. The jury found both defendants liable for Min's collision injuries and also found Lo liable for the burn. They awarded Min $160,000 in damages for the internal injuries, and $20,000 for the burn. How much Min may collect from Whitman? (A) $180,000. (B) $80,000. (C) $90,000. (D) $160,000.

(D) $160,000. Rationale: D takes the prize. Whitman and Lo are joint tortfeasors as to the collision injury, so they are both liable for the $160,000 resulting from that. But the burn injury is entirely distinct. Whitman had no part in that and is not liable for it. Even though the rules of claim joinder would allow Min to add this claim along with his collision claim, Whitman is not a joint tortfeasor with Lo as to this claim. So, Whitman can be made to pay the $160,000 only. Note, though, that he is fully liable for that. B is not right, because under joint and several liability Whitman is liable for Min's full damages, not half of them.

Paul made an appointment to see an eye doctor, Diane, to check on some vision problems he had begun experiencing. Diane performed a simple vision check and gave Paul a stronger prescription for his eyeglasses. However, Paul's vision rapidly worsened over the next several months. He was diagnosed by another doctor with a retinal disease that had reached an irreversible stage that would lead to blindness. Paul has become legally blind and now sues Diane, asserting that she negligently failed to test him for retinal disease, and had she done so, the progression of his disease might have been halted. In a jurisdiction that follows a "relaxed causation" approach to claims for loss of a chance, which of the following is the most accurate statement of what Paul must prove in order to prevail? (A) If Diane had tested Paul for retinal disease and prescribed the appropriate course of treatment, Paul would probably have a

(D) Diane's failure to test Paul for retinal disease was negligent, and this negligence was a substantial factor that contributed to the progression of his disease. Rationale: The winner here is D. A describes what Paul would have to prove in a traditional jurisdiction, and B describes the required proof in a loss-of-chance jurisdiction. C is interesting insofar as a negligent act that decreases a patient's chance of a favorable outcome by at least 50% would probably be regarded as "substantial," but what counts as substantial is generally left to the judgment of the trier of fact, and is not defined by a minimum percentage. While the difficulty of defining substantiality has led a number of courts and scholars to criticize its use as a standard of actual causation (whether in the context of lost chance cases or elsewhere), in a jurisdiction that has adopted a "relaxed causation" approach, D reflects Paul's standard of proof.

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

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

Carl, a carpenter, was working on a scaffold, repairing some loose siding on a wooden building. He negligently dropped his hammer, and it fell onto the ground below. Instead of retrieving it, he switched to a spare hammer in his toolbox and forgot about the dropped hammer. The hammer lay on the ground for hours, exposed to the mid-day sun, and became extremely hot. Jackson later came by and saw the hammer lying on the ground. He picked it up and suffered severe burns to his hand due to a condition that made his skin unusually sensitive to heat. A person with ordinary skin would not have suffered any significant injury. Will Carl be liable to Jackson for his burned hand? (A) Yes, because Carl's negligence was the actual cause of Jackson's injury. (B) Yes, because the eggshell skull rule holds Carl liable for Jackson's injury, even if it was far worse than what would have been suffered by a person with ordinary s

(D) No, because a burn injury was not a foreseeable risk of negligently dropping and failing to pick up a hammer. Rationale: D is the winning answer. A is wrong because actual causation is only one element of the negligence cause of action. Jackson's challenge on these facts is proximate causation. B is an incorrect application of the eggshell skull rule. The eggshell or thin skull rule allows a plaintiff with a preexisting vulnerability to recover for the full extent of an injury that was proximately caused by the defendant's negligent conduct. But the presence of an eggshell skull condition does not allow the plaintiff to skip the element of proximate cause. Here, Carl has a strong argument that burn injuries were not a foreseeable risk of his negligence in dropping and failing to retrieve his hammer. Thus, Jackson will probably not be able to prove proximate cause, and the issue of his sensitive hand is a moot point.

Rios sues McCluskey, Yeltsin and Tichko in a state that applies pure comparative negligence. At trial, the jury finds Rios's damages to be $100,000, finds Rios 20% negligent, McCluskey 60% negligent, Yeltsin 5% negligent and Tichko 15% negligent. The state retains joint and several liability. (A) Yeltsin and Tichko are not liable to Rios. (B) Only McClusky is liable to Rios. (C) Yeltsin is liable to Rios for $5,000. (D) Yeltsin is liable to Rios for $80,000. (E) None of the defendants are liable to Rios

(D) Yeltsin is liable to Rios for $80,000. Rationale: D is correct. Under pure comparative negligence, a plaintiff is eligible to recover damages even though she was negligent. So E is wrong. If the jurisdiction retains joint and several liability, then the plaintiff may recover from any defendant who is found negligent. The amount she recovers will be determined by reducing the plaintiff's damages by her percentage of negligence. Thus, Rios is entitled to recover $80,000, and each of the defendants is liable for that amount. Rios may collect that amount from any one of the defendants.

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

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

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

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

Mario, delivering a package for an important corporate meeting, pulls onto Main Street. No parking spaces are free, so he parks in front of a fire hydrant for the five minutes it will require to deliver the package. A state statute bars parking within fifteen feet of a fire hydrant. Unfortunately, a fire had broken out in a building near the fire hydrant. While Mario was making his delivery, a fire engine pulled up to fight the fire, which had spread throughout the building. Since the car in the parking space nearest the hydrant had left before the firefighters arrived, they drove through that space up onto the sidewalk and connected their hoses to the hydrant from the other side. The building was completely burned. Vernon, the owner of the building, sues Mario in a negligence action for the loss of the building. Vernon will probably: (A) be able to establish Mario's liability for the loss of the building because he

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

Chen was taken to the emergency room for X-rays after being involved in a car accident. Due to the inattention of Smith, the X-ray technician, the machine's settings were not properly adjusted, and Chen was subjected to an extremely high dose of radiation. Although Chen did not suffer any present injury, he sued Smith for his negligence, alleging that due to the excessive radiation exposure caused by Smith, Chen now had a 20% increased risk of developing cancer in the future. Chen's action will probably (A) fail in a traditional common law jurisdiction but succeed in a jurisdiction that recognizes claims for loss of a chance. (B) succeed in a jurisdiction that follows a "relaxed causation" approach to claims for loss of a chance. (C) succeed in any jurisdiction. (D) fail in any jurisdiction.

(D) fail in any jurisdiction. Rationale: D is the best choice. Although these facts may be conceptually similar on some level to cases in which a defendant's negligence causes a plaintiff to suffer a decreased chance of a better outcome, this question does not present a loss of chance case at all. Chen seeks to recover for a risk of future harm, as opposed to the decreased chance of avoiding an actual harm. Courts have generally refused to recognize claims based on the imposition of a risk of future harm in the absence of some present physical injury.

Assume that the state of West Dakota has adopted comparative fault of the not-as-great-as variety. It compares the plaintiff's negligence to that of the defendants as a group and has switched to from joint and several liability to several liability. Wilfred sues three defendants, Murray, Gonzalez and Feinstein for negligently causing his injuries. At trial, the jury finds that Wilfred was 20% negligent, Murray 10%, Gonzalez 20%, and Feinstein 50%. It finds Wilfred's damages to be $100,000. Murray is (A) not liable to Wilfred, because her negligence is less that Wilfred's. (B) liable to Wilfred for $80,000, his assessed damages reduced by 20%. (C) liable to Wilfred for $10,000 but will be liable for more if the other defendants cannot pay their share of the damages. (D) liable to Wilfred for $10,000.

(D) liable to Wilfred for $10,000. Rationale: In this example Murray is liable, even though his fault is less than Wilfred's, because the jurisdiction compares the plaintiff's fault to that of the defendants as a group. However, since the jurisdiction has switched to several liability, Murray only pays in proportion to his fault.

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

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

Gerard, a police officer, lived next door to Jonny. Gerard knew that Jonny, a teenager, had an extensive history of getting into fights with other youths in the neighborhood. Nevertheless, Gerard found Jonny to be good company and often allowed him to come over his house to watch sporting events with him on his big-screen TV. One day, while Jonny and Gerard were watching a baseball game, Gerard fell asleep. Jonny went into Gerard's kitchen for a snack and noticed that Gerard had left his handgun on the counter. Jonny took the gun and used it to shoot another neighborhood teen, Vince, later that night. Vince suffered serious wounds but survived. If Vince sues Gerard for negligence, Vince will probably (A) lose, because Jonny's criminal act constitutes a superseding cause of Vince's injuries. (B) lose, because Gerard had no affirmative duty to protect Vince from being harmed by Jonny. (C) win, because Jonny cause

(D) win, if it was unreasonable for Gerard to leave his gun in an unsecured state in light of the risk that Jonny might come to possess it. Rationale: Choose D. The particular circumstances are always relevant to the risks that an actor should foresee. Here, Jonny's past behavior suggests that Gerard should be careful not to leave a firearm where Jonny could reach it. Surely, that Odious Character, the Reasonable Person would not do so under these circumstances, because Jonny's use of the weapon is a significant risk. C fails here, because leaving the weapon where Jonny could grab it surely is a "but for" cause of Vince's injury.

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

(D) be liable for the knee injury only because the stabbing injury was beyond the scope of the risk he should have foreseen from failing to warn of the wet floor. Rationale: D is the best answer here. Barber should have anticipated that failing to warn of a slippery floor could result in someone slipping and getting injured. That risk actually occurred, and Barber is liable for the injury he should have foreseen. But an actor in Barber's position would not anticipate violent attack at the emergency room. To hold him liable for the stabbing wound would seem excessive, because he could not have reasonably anticipated such an unlikely event would result from failing to warn of a wet floor. It is true, as A asserts, that Barber's negligence was an actual cause of both the knee injury and the stabbing injury. But tort law does not hold an actor liable for all injuries that he causes, even if they were negligently caused. As a matter of policy, courts limit liability to the types of injuries that made the actor's conduct negligent—the types that he should have foreseen and therefore taken steps to prevent.

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

(D) be liable to Menlove for reduced damages due to its negligence. Rationale: We opt for D as the best answer. This case, like most superseding cause cases, involves an act by the defendant (here, Lynn Ladder) and then a later act by another actor that may be unexpected, intentional or radically unwise. In this case, the later actor who does the unexpected is the plaintiff, Menlove, who used the flimsy paint shelf as a step. Lynn Ladder may well have been negligent for failing to warn about stepping on the shelf. It is probably not unheard of for do-it-yourselfers to misuse a ladder in this way (so C fails). But it is a pretty klutzy and unlikely thing to do, so Lynn Ladder argues that Menlove's choice to do it is a superseding cause. The court will very likely reject the argument, on the ground that Menlove's act, while truly evidencing bad judgment, is not so outlandish as to be unforeseeable. The court will instead allow the jury to account for Menlove's negligence by allocating a percentage of negligence to Menlove for making that choice. A is wrong, because the failure to warn probably is a "but for cause" of the accident. Presumably if there were a warning on the shelf Menlove would have seen and heeded it. B suggests that, if Menlove was very negligent, that his negligence would bar liability of Lynn Ladder. In a comparative negligence jurisdiction, it is likely that it would instead go the jury, who would assign a high percentage of negligence to Menlove—perhaps high enough to bar his recovery in a modified comparative negligence state.

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

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

McGonigle is injured in a collision with Wojcik and Peron and sues for his damages. The jury finds each of the parties was 33.333% negligent and that McGonigle suffered $100,000 in damages in the accident. The jurisdiction has retained joint and several liability in tort cases. McGonigle will (A) not recover in any modified comparative negligence jurisdiction. (B) recover $66,666.66 in any comparative negligence jurisdiction. (C) recover $33,333.33 in any comparative negligence jurisdiction. (D) lose in any "not-as-great-as" jurisdiction. (E) recover $66,666.66 in some "not-as-great-as" jurisdictions.

(E) recover $66,666.66 in some "not-as-great-as" jurisdictions. Rationale: Choose E. If the jurisdiction applies comparative negligence of the "not-as-great-as" variety and compares McGonigle's negligence to that of each defendant individually, McGonigle would lose, since her negligence equals that of each defendant. But if the jurisdiction compares McGonigle's fault to that of the defendants as a group she is eligible to recover, and her recovery will be her assessed damages reduced by her percentage of fault, ($100,000 reduced by 33.333% = $66,666.6).

Yang had been hired three months ago as a lab assistant in a chemistry lab that works with flammable gases. One day he was preparing an experiment and scraped the counter near a container of flammable gas. The contact created a spark, which caused the nearby gas to explode, injuring Wilkins, a visitor to the lab. Consider these jury instructions in Wilkins' negligence suit against Yang for his injuries. Instruction #1: "In preparing the experiment with flammable gases at the time of the accident, the defendant was required to exercise the level of care of a reasonable lab assistant under the circumstances." Instruction #2: "Because the defendant was new to the work in which he was engaged, you should compare his conduct to that of the ordinary newly hired lab assistant." Instruction #3: "If you conclude that you would have acted more carefully than the defendant in preparing the new experiment, you should find that the defendant was negligent." Instruction #4: "If you find that the defendant was working with explosive agents at the time of the accident, the defendant owed a higher standard of care to the plaintiff because of that danger." Which of the statements below is a correct assess

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

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

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

Carl, a carpenter, was working on a scaffold, repairing some loose siding on a wooden building. The scaffold had been constructed earlier by Steven. Steven had built the structure in haste and had neglected to tighten the bolts on a critical set of joints. Those joints failed and the scaffold partially collapsed, leaving Carl dangling from one of the cross beams that had remained intact. Raoul, a passing pedestrian, saw Carl and tried to climb the scaffolding to help him. However, Raoul's additional weight caused the scaffold to collapse further, and both Carl and Raoul were injured. Which of the statements below provides the best analysis of Steven's likely liability? (A) Steven will be liable to both Carl and Raoul, because his negligence was an actual and proximate cause of both their injuries. (B) Steven will be liable only to Carl, because Raoul was an unforeseeable plaintiff. (C) Steven will be liable only

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

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

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

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

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

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

B) Robert will probably not be liable, because the injuries caused by the dog were unrelated to the risks of rescuing Robert. Rationale: The best answer is B. Jones is a rescuer, and rescuers are generally foreseeable as a matter of law. Thus, A gives the right result but for the wrong reason. The significant wrinkle here is that the injuries suffered by Jones are entirely unrelated to the risks that would be expected to arise from a rescue attempt in the aftermath of an explosion. His injuries are beyond the scope of liability for Robert's negligent creation of a situation inviting rescue.

Upon arriving at the scene of a car accident, Abdul, a paramedic, found Juanita, who had been injured in the accident, still sitting in her car. She said that her neck hurt and that she felt a tingling in her fingers and toes but could move them. Abdul helped pull Juanita from her car but negligently failed to use a brace to immobilize her neck before placing her on a stretcher and into the ambulance. Juanita was jostled during the bumpy ride to the emergency room, and her head frequently rolled from side to side. After arriving at the hospital, Juanita said that she could no longer feel or move her fingers or toes. Examination at the hospital revealed a spinal cord injury. Juanita never regained full use of her arms and legs. Juanita sued Abdul for his negligent failure to immobilize her neck before placing her in the ambulance. Juanita's expert testified that if her neck had been immobilized in a brace prior to h

B) A standard claim of negligence, in a traditional common law jurisdiction. Rationale: B is the right choice. Although the cause of action for lost recovery can sometimes help plaintiffs obtain recovery on facts that would not provide a basis for relief in traditional jurisdictions, the plaintiff's recovery will always be higher in a traditional jurisdiction if the facts do support liability. This is why the traditional approach has been called "all or nothing." On the facts of this question, in a traditional jurisdiction, Juanita would win because she would be able to prove the straightforward proposition that Abdul was probably an actual cause of her paralysis: but for his negligent failure to place Juanita in a neck brace, it is more likely than not that she would have avoided that outcome (60% probability). Juanita would then recover for the full amount of damages associated with that outcome. In contrast, in a loss of chance jurisdiction, Juanita would only recover for the specific value of her lost chance of recovery, which would be calculated as the total damages tied to her paralysis multiplied by the decreased chance of avoiding paralysis that was caused by Abdul's negligence—here, 40%. That amount is necessarily less than what Juanita would recover in a traditional jurisdiction, even though we don't know what that amount may be.

Yarin is hit crossing Main Street by a car driven by Stamski. While lying in the road after the collision he is run into by Fleet, riding a bicycle down the street. Yarin sues Stamski and Fleet as codefendants in a jurisdiction that applies the traditional law of joint and several liability. The jury finds both defendants liable to Yarin. They find that Yarin suffered $100,000 in damages from the original collision and $20,000 from the second collision with Fleet's bike. How much may Yarin collect from Stamski? (A) $100,000. (B) $120,000. (C) $60,000. (D) $110,000.

B. $120,000 Rationale: The key to this question is that Stamski is liable for all of Yarin's damages, but Fleet played no part in Yarin's original injury and is not liable for that. Stamski's negligence is a "but for" cause of both the original injury and the collision with Fleet's bike: If Stamski had not knocked Yarin down, he would not have been in harm's way when Fleet came along not looking carefully. So Stamski is liable for the entire injury and owes Yarin $120,000. Choose B.

Molinari sues Quinn and Gomez in a single action for injuries suffered in an auto accident. The jury returns a verdict for Molinari against both defendants and awards damages of $160,000. The jurisdiction applies the traditional law of joint and several liability. Quinn pays Molinari $80,000 and refuses to pay anything further. Quinn has properly satisfied the judgment against her. (A) True (B) False

B. False Rationale: This is false. Under joint and several liability each defendant who is found liable for the injury is liable for the plaintiff's full damages. Thus, Quinn is liable to Molinari for $160,000, not $80,000. He cannot avoid paying the full damages by arguing that Gomez is liable too. Naturally, Quinn would like Gomez to pay half of the damages, but she can't force Molinari to seek the second half from Gomez. However, if Quinn pays the $160,000, she would have a right to "contribution" from Gomez in most jurisdictions, which Quinn could enforce in a second action. Under traditional contribution schemes, Quinn could recover $80,000 in contribution from Gomez.

Wescott is injured in an accident due to the negligence of Summers, Tice and Ybarra. He sues the three of them, in a jurisdiction that applies the traditional law of joint and several liability. The jury renders a verdict for Wescott for $150,000. Summers pays $150,000 to Wescott. How much may Wescott now recover from Tice? (A) $75,000. (B) Nothing. (C) $150,000. (D) $50,000.

B. Nothing Rationale: B is right; Wescott is entitled to one full satisfaction of his judgment. He may collect it from whichever defendant he chooses. Summers was held liable for Wescott's full damages—and paid them, as joint and several liability requires him to do. Wescott's claim has been satisfied, and he has no right to recover more from Tice or Ybarra. They got off easy, which seems unfair. However, most states provide, often by statute, that the paying tortfeasor has a "right of contribution" from the others, allowing a tortfeasor like Summers to redistribute the judgment by an order for the other defendants found liable to reimburse him for their share of the damages.

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

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

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

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

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

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

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

D. "If you find that the defendant was not aware of an unreasonable risk of skidding as a result of driving at full speed in heavy rain, but should have known of that risk, you may find him negligent for doing so."

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

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

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

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

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

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

Lanai leaves her car idling in the street while she runs into a convenience store to grab an iced tea. Jasper, a fifteen-year-old, sees her go into the store, steals the car and crashes it into Yarin's car a block away. Yarin sues Lanai for negligence in leaving the keys in the car. The court will likely hold that Jasper's act of stealing the car is a superseding cause that bars recovery from Lanai. (A) True (B) False

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

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

False Rationale: These days, this is likely to be false. In an earlier time, a good many courts in this unfortunately common scenario held that a bar that overserved a patron was not liable for injuries caused by her subsequent driving under the influence. Often these courts would hold that the antisocial act of intoxicated driving was a "superseding cause" of the injury to others on the road. Today, however, most courts would recognize that a patron driving away from a roadside bar and causing an accident is the very paradigm of the risk to be anticipated from overserving. Consequently, courts today would likely hold the bar liable for its negligence when it leads to an accident when the patron drives under the influence after leaving the bar.

Wilfred sues Murray, Gonzalez and Feinstein for injuries suffered in an airplane accident. The suit is brought in a jurisdiction that applies modified comparative negligence (of the "not as great as" variety) and joint and several liability. It compares the negligence of the plaintiff to that of each defendant individually. At trial, the jury finds that Wilfred was 20% at fault, Murray 10%, Gonzalez 20%, and Feinstein 50% at fault. It finds Wilfred's damages to be $100,000. Gonzalez will be liable to Wilfred for $20,000. (A) True (B) False

False Rationale: This is false. In this case, Wilfred's negligence was as great as that of Gonzalez, so Gonzalez is not liable at all. Wilfred's negligence bars him from recovering from a defendant if he (Wilfred) was as negligent as that defendant. Wilfred could still recover from Feinstein.

Wescott is injured in an accident due to the negligence of Summers, Tice and Ybarra. He sues the three of them, in a jurisdiction that applies the traditional law of joint and several liability. The jury renders a verdict for Wescott for $150,000. Summers pays $80,000 to Wescott. Tice now owes Wescott $50,000, his one-third share of their joint liability. (A) True (B) False

False Rationale: This is false. Tice has been held jointly liable for Wescott's damages. If Summers had not paid anything to Wescott, Summers could have been made to pay Wescott $150,000. Because Summers paid part of the judgment, Tice owes Wescott the remaining $70,000; he will get a deduction (a "credit") for the amount paid by another tortfeasor.

Lopez has an accident with Wilensky and Lee. She sues them as codefendants in a jurisdiction that applies pure comparative fault and has switched from joint and several liability to several liability. At trial the jury finds Lopez 40% negligent, Wilensky 30% at fault, and Lee 30% at fault. The jury assesses Lopez's damages at $100,000. Lopez may collect $30,000 from either Wilensky or Lee, but not from both. (A) True (B) False

False Rationale: This is false. Under pure comparative fault, Lopez's recovery will be reduced forty percent to account for her fault. Under pure comparative negligence the defendants will be liable to Lopez even though their fault was less than hers. Because the jurisdiction has adopted several liability, each defendant will be liable to Lopez in proportion to their separate percentage of fault. Each of them would be liable to Lopez for $30,000.

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

False Rationale: The statement is false. The eggshell or thin skull rule allows a plaintiff with a preexisting vulnerability to recover for the full extent of an injury that was proximately caused by the defendant's negligent conduct. But the presence of an eggshell skull condition does not allow the plaintiff to skip the element of proximate cause. An eggshell skull plaintiff, like any other plaintiff, must prove that the defendant actually caused the plaintiff's harm and that the harm resulted from a risk that made the defendant's conduct negligent. For example, suppose Lewis negligently fails to maintain his brakes in working condition, and they squeal loudly whenever he applies them. While driving down Main Street, Lewis brakes for a traffic light. Wanda was walking her dog on a sidewalk nearby. The loud screeching of Lewis's worn brakes startles the dog, who jumps in front of Wanda. She trips and fractures a hip due to a brittle bone condition. On these facts, if Lewis is liable, then the eggshell skull doctrine would allow Wanda to recover for her injury, even if a person with normal bones would have suffered a more minor harm. But to establish liability, the element of proximate cause must be satisfied. Here, it probably is not, because Wanda's harm did not result from a risk that made Lewis's conduct tortious. (The risk of harmful reactions to loud noises is not what makes it negligent to drive with bad brakes.) Because Lewis is not liable, the eggshell skull doctrine is of no help to Wanda.

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

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

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

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

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

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

Assume that the state of West Dakota has adopted comparative fault of the not-as-great-as variety. It compares the plaintiff's negligence to that of the defendants as a group and has switched to several liability. Wilfred sues three defendants, Murray, Gonzalez, and Feinstein for negligently causing his injuries. At trial, the jury finds that Wilfred was 20% at fault, Murray 10%, Gonzalez 20%, and Feinstein 50% at fault. It finds Wilfred's damages to be $100,000. It turns out that Feinstein is insolvent, and cannot pay his share, which is $50,000. Wilfred will not be able to collect Feinstein's share of the judgment from Murray or Gonzalez. (A) True (B) False

True Rationale: This is true. In a several liability jurisdiction any defendant who is found negligent will be liable for its percentage share of the damages. Gonzalez's share is twenty percent of the assessed damages, or $20,000. Murray's share is ten percent of the assessed damages, or $10,000. So, Wilfred recovers a total of $30,000, but loses Feinstein's $50,000 share, because the jurisdiction has adopted several liability; the other defendants are not liable for Feinstein's share. It is not hard to see why plaintiffs lament the switch from joint and several to several liability. This example is a little tricky, because here the defendants are viewed as a group in deciding who is liable to Wilfred. But once that question is answered, the amount that each owes is determined by each defendant's percentage of fault.

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

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

Lin is injured in a boating accident involving three sailboats, piloted by Moe, Larry and Curly. Lin sues Larry only because her lawyer learns that Moe is insolvent and uninsured, and that Curly is not subject to personal jurisdiction in the state where Lin sues. The suit is filed in a jurisdiction that applies the traditional law of joint and several liability. The jury renders a verdict for Lin for $200,000. Lin can collect $200,000 from Larry. (A) True (B) False

True Rationale: This is true. Under joint and several liability, each tortfeasor owes the plaintiff her full damages. The fact that other actors may have been negligent, and therefore are jointly liable for the damages, does not protect Larry from liability for the entire judgment. Larry is "severally" liable for it; if Lin sues Larry only, she can recover her full damages from him. If she sued Larry with other defendants also found liable for the damages, they would be "jointly" liable for the judgment.

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

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

A doctor examines a patient presenting symptoms of a cancerous condition but negligently fails to order appropriate tests under the applicable standard of care. Due to the doctor's negligence, the patient's cancer is discovered only after it has advanced to a terminal stage, and the patient dies. Evidence shows that the doctor's negligence reduced the plaintiff's chances of survival from 60% to near 0%. In what type of jurisdiction would a wrongful death action against the doctor for his negligent failure to test the patient for cancer be likely to prevail? (A) A traditional common law jurisdiction. (B) A jurisdiction that recognizes claims for loss of a chance. (C) Both (A) and (B). (D) Neither (A) nor (B).

c Rationale: C is the best choice. On these facts, the patient would probably have survived (60% chance) if the doctor had ordered the appropriate tests at the initial visit. Thus, in a traditional jurisdiction, a jury could find that the doctor probably caused the patient's death—i.e., it is more likely than not that he would have survived but for the doctor's negligence. Similarly, in a loss of chance jurisdiction, the patient would prevail, because the doctor's negligence clearly caused a decrease in the patient's odds of recovering from his cancer. The value of the patient's lost chance of recovery is economically less than the full amount of damages tied to the patient's death, so the patient's recovery on these facts would actually be greater under the traditional approach than the loss-of-chance approach, but the plaintiff would prevail in either type of jurisdiction.

Wilfred sues Murray, Gonzalez and Feinstein for injuries suffered in an airplane accident. The suit is brought in a jurisdiction that applies modified comparative negligence (of the "not as great as" variety) and joint and several liability. It compares the negligence of the plaintiff to that of each defendant individually. At trial, the jury finds that Wilfred was 20% at fault, Murray 10%, Gonzalez 20%, and Feinstein 50% at fault. It finds Wilfred's damages to be $100,000. Feinstein will be liable to Wilfred for (A) $50,000. (B) $100,000 (C) $80,000. (D) not liable.

c. $80,000 Rationale: C rules. In this example Murray and Gonzalez will not be liable to Wilfred, because Wilfred's negligence is as great as theirs, when compared individually. (Wilfred's is greater than Murray's and as great as Gonzalez's.) Feinstein is liable, however. Again, the amount Feinstein is liable for is determined by reducing Wilfred's damages by Wilfred's percentage of fault, that is, by 20% to $80,000.

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

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