Torts 2

What are the four types of immunities that can apply to negligence claims?

(1) governmental immunity; (2) charitable immunity; (3) spousal immunity; and (4) parent-child immunity.

What are the three differences between professional negligence and ordinary negligence?

1) The standards of the profession are incorporated into the standard of care for duty and breach of duty in professional negligence, whereas they are not always relevant for ordinary negligence. 2) Professional negligence generally requires some type of relationship between the parties to create a duty of care like a doctor-patient relationship for medical malpractice or an attorney-client relationship for legal malpractice, or just a customer relationship for other professionals that provide services like electricians, plumbers, etc. The relationship, and the services provided as a result of it, is what creates the duty. Ordinary negligence does not require a relationship between the parties. 3) Experts are generally required to establish the standard of care and breach in professional negligence claims, whereas they are not always required to establish a standard of care and breach for ordinary negligence. They are also often used for causation and harm for professional negligence.

When does a defendant have a duty to act or rescue and care for a plaintiff?

: A duty can arise when: (1) the defendant created the peril; (2) there is a special relationship that requires a duty to act; (3) the defendant undertakes to rescue or to care for the plaintiff, which creates a duty to continue with the rescue or care; (4) an agreement or contract imposes a duty to act; and (5) state law creates a duty to act, like a state "Bad Samaritan" statute.

The last surviving member of a wealthy family lived on the largest parcel of residential real estate in town. He had had a falling out with his longtime best friend. Just prior to the wealthy man's death, the friend had returned to town, and they reportedly made amends. After the wealthy man's death, the friend bought the property. A reporter for the local newspaper was waiting in the office of his real estate lawyer when he saw the friend coming out of a conference room, shaking hands with the lawyer. Curious, the reporter went to the county clerk's office where he knew all deeds were recorded and learned that the friend had acquired the estate at a price substantially below the original asking price. The next day, the front page headline read, "Friend 'Steals' Estate for $250K." When the friend saw the headline, which was accompanied by his picture and photos of the late wealthy man and the main house on the estate, he became incensed, inasmuch as he had hoped to keep his return to town secret. Will the friend succeed in an invasion of privacy action against the newspaper? *a. No, because the newspaper printed public facts. b. No, because the newspaper story was true. c. Yes, if a

A The correct answer is a, no, because the newspaper printed public facts. Based on the facts presented, the friend's invasion of privacy action must lie in the tort of public disclosure of private facts. This form of invasion of privacy consists of the defendant's unreasonable public disclosure of private facts about the plaintiff. Given that all the information published was public information contained in recorded deeds, the friend cannot prevail in his action.

A cleaning company sold a water softener that caused a rusty discoloration of the water in a homeowner's home. The homeowner noticed the discoloration after she climbed into a full bathtub, and she suffered a heart attack that she claimed was a result of the shock. If the homeowner brings an action against the company for negligent infliction of emotional distress, which of the following is correct? *a. The homeowner may not recover, because a person normally would not suffer severe mental distress as the result of bathing in rusty water. b. The homeowner may not recover, because a heart attack is not a natural result of mental distress caused by bathing in rusty water. c. The homeowner may recover if the jury finds that the heart attack was in fact caused by the homeowner's mental distress in discovering the rusty water. d. The homeowner may recover even if her reaction was unusual, because the company is required to take the plaintiff as it finds her.

A The correct answer is a, the homeowner may not recover, because a person normally would not suffer severe mental distress as the result of bathing in rusty water. The infiltration of rust into household water is not an act which creates a foreseeable risk of severe mental distress to others. A person of ordinary sensibilities would not incur severe mental distress upon learning she had bathed in rusty water. If the mental distress could be said to be a foreseeable result of defendant's actions, and the defendant was thus negligent, then the homeowner could recover for both her emotional distress and the resulting heart attack.

A retired policeman was hired as a night watchman by a manufacturer of large construction machinery. During the watchman's orientation, the manager of the factory emphasized that in the event of any problem, the watchman was to keep himself out of danger and call the police immediately. The night watchman also was warned never to go outside the fence while on duty. One night a drug addict, whom the watchman recognized from his days on the police force, was walking past the yard. In a rare moment of lucidity, the addict also recognized the former police officer. The addict jeered, "Hey! You a rent-a-cop now?" The watchman ignored the addict for a while, but the addict continued to rant loudly and derisively about the watchman's new career. After several minutes of this, the watchman flew into a rage. He went outside the gate and chased the addict down. The watchman punched the addict several times, giving him a concussion. The addict files a lawsuit for battery against the watchman and the manufacturer. Which theory in defense of the manufacturer is most likely to succeed? *a. ​Respondeat superior b. Defense of property. c. Self-defense. d. Contributory negligence.

A The correct answer is a, ​respondeat superior. ​Under the doctrine of ​respondeat superior,​ an employer is liable for injuries caused by the negligence of an employee, if the tortious act occurred within the scope of the employment. Acts are within the scope of employment if they are so closely connected with what the employee was hired to do and so fairly and reasonably incidental to it that they may be regarded as methods, even though improper, of carrying out the objectives of the employment. If an employee uses force, even misguidedly, wholly or partly to further the employer's purpose, such use of force may fall within the scope of employment, resulting in vicarious liability for the employer. However, employers are generally not liable for the intentional torts of their employees. Here, although the watchman was on duty at the time of his assault on the addict, the addict was not threatening the employer or the employer's property. The watchman used force in response to the addict's verbal taunts and was not furthering the employer's purpose in any way when he did so, because the taunts were directed at the watchman personally and were not directed at the manufacturer. Under the theory of respondeat superior,​ the manufacturer should not be liable for the addict's injuries.

Penelope files a negligence claim against her mother for spending the proceeds from an acting job that Penelope did when she was 10 years old. Penelope is now 13 years old. Discuss the potential defenses Penelope's mother would raise.

A defense that would likely be raised is parent-child immunity. It precludes tort claims between parents and non-adult children. Parent-child immunity may apply here since Penelope is not an adult. It could provide immunity for Penelope's mom if the claims involved her mom's exercise of authority over Penelope, or parental discretion with respect to Penelope's care. Here, the claim is over the use of proceeds that Penelope earned as a minor from an acting job. If the use of the funds was for Penelope's care, then parent-child immunity would likely provide Penelope's mom with immunity. If the funds were used for other purposes, then parent-child immunity would likely not provide immunity.

What is negligence per se?

A doctrine of law whereby a statute or regulation is used to establish the duty of care.

Diego pulls out an unloaded gun and points it at Pauline intending to scare her. Pauline screams and runs away. Are the requirements for assault met?

Assault requires an intentional act that causes reasonable apprehension about imminent harmful or offensive contact. The plaintiff needs to perceive that the potential harmful or offensive contact is about to happen, and the defendant must have the apparent ability to cause the contact. Here, Diego intends to cause Pauline to fear being shot and Pauline sees the gun, screams and runs away, which shows that she was apprehensive about the imminent harmful contact. Pauline's apprehension is reasonable because she did not know that the gun was unloaded, so she reasonably believed that Diego was going to try to shoot her. As a result, the requirements for assault are met.

What are the requirements for the defense of assumption of the risk to apply?

Assumption of the risk has two components or elements: (1) knowledge of the risk; and (2) voluntary assumption of the risk.

Pat gets on a motorcycle with Dave who is getting ready to go jump the motorcycle on a course. Pat does not know that Dave is about to do that, but a reasonable person should have known that Dave was about to do so. The motorcycle crashes and Pat is injured. Pat sues Dave for negligence. Dave raises the defense of assumption of the risk. Does assumption of the risk bar Pat's recovery? Why or why not?

Assumption of the risk requires: (1) knowledge of the risk; and (2) voluntary assumption of the risk. The plaintiff must know of and fully appreciate the nature and extent of the specific risk that they are assuming to have knowledge of the risk for the defense of assumption of the risk to apply. Knowledge for assumption of the risk is the actual, subjective knowledge of the plaintiff, not the objective knowledge of a reasonable person. However, since a subjective approach to knowledge is used, courts guard against plaintiffs denying specific knowledge of the risk by looking at all of the circumstances and facts, as opposed to just relying on the plaintiff's word about what they knew. If something is obvious, a jury may choose to disbelieve the plaintiff and credit other facts that establish that the plaintiff did in fact know about the risk Here, Pat did not know that Dave was going to jump the motorcycle, so Pat did not know of and fully appreciate the nature and extent of the specific risk and did not have subjective knowledge for assumption of the risk. However,since courts guard against plaintiffs denying knowledge, if it was obvious that Dave was about to go jump the motorcycle based on all of the circumstances, then a jury may find that Pat did have the requisite knowledge and voluntarily assumed the risk of injury and Pat's recovery would be barred. If it was not obvious, then assumption of the risk would not bar Pat's recovery.

When is a plaintiff's exposure to risk not considered voluntary for the defense of assumption of the risk?

Assumption of the risk requiress: (1) knowledge of the risk; and (2) voluntary assumption of the risk. The plaintiff must voluntarily expose themselves to the risk, or choose to take the risk. If they are coerced or the conduct of the defendant has left them with no reasonable alternative, then it is not voluntary.

Assumption of the risk requires: 1) _________________ of the risk; and 2) ________________ _______________of the risk.

Assumption of the risk requiress: 1) knowledge of the risk; and 2) voluntarily assumption of the risk.

A man and a woman were involved in an automobile accident. When the man sued the woman, the jury determined that the man had suffered $100,000 in damages. The jury also determined that the man, the plaintiff, was 25 percent responsible for the accident and the woman, the defendant, was 75 percent responsible. After the jury verdict, the woman's attorney informed the judge that the man's insurance company had already paid the man $15,000. Assuming this suit has occurred in a pure comparative negligence jurisdiction, what damages should the trial court award to the man? a. $100,000. *b. $75,000. c. $60,000. d. $63,750

B The correct answer is b, $75,000. In the majority of jurisdictions, the collateral source rule applies. Under the collateral source rule, payments made to a plaintiff under insurance which he has purchased are not deducted from the judgment the plaintiff receives against the defendant. If they were deducted, the defendant would get a windfall benefit from the plaintiff's foresight in purchasing his own insurance. Because the woman was found 75 percent responsible for the accident, a judgment will be entered against her for 75 percent of the man's damages, or $75,000, with no deduction for the payments received by the man from his own insurer.

A woman was injured when she used an electric toothbrush, which, when on the highest setting, caught fire and burned the woman's mouth. It appears that the defect was caused when the toothbrush was manufactured. The toothbrush was manufactured by a manufacturer, distributed to a retailer by a distributor, and sold in a store by the retailer. The retailer asked a dentist to put a display of the toothbrushes in his dental office to see if patients liked them. The woman bought the toothbrush from the dentist when she saw the display in his office after a routine cleaning. The woman now seeks to bring a strict products liability action against all possible parties for her injuries. Against whom may the woman file suit? a. Against the manufacturer, the distributor, the retailer, and the dentist. *b. Against the manufacturer, the distributor, and the retailer only. c. Against the manufacturer only. d. Against the manufacturer, the distributor, and the dentist only

B The correct answer is b, against the manufacturer, the distributor, and the retailer only. In a suit for strict products liability, commercial suppliers at all levels of the distribution chain (i.e., manufacturer, distributor, retailer) are all potential defendants. Therefore, it is true that, in this case, the manufacturer, distributor, and retailer of the toothbrush may be sued by the injured woman. Occasional sellers and those supplying services (such as the dentist in this case) cannot be strictly liable, but may be sued for negligence.

A man attended a fundraising party at the home of a friend. Since the friend was expecting a large crowd to attend, he purchased a number of chairs to use at the party. When the man sat in one of the chairs, it collapsed, injuring him. The chair in question was manufactured by a chair company. Analysis of the broken chair revealed that one of the legs of the chair, which the company had purchased from a supplier, had been defectively manufactured such that it could not hold the weight of a normal adult. The company randomly tested the chair legs it purchased from the supplier for strength. Such a test would have revealed the defect in this particular leg. If the man brings a negligence action against the company, which of the following most accurately states what he must show to make a ​prima facie​ case against the defendant? a. The man must prove that the chair leg was dangerously defective and that it had not been tested by the company. *b. The man must prove that the chair leg was dangerously defective and that the defect would have been discovered but for the company's failure to exercise due care. c. The man must prove that the chair leg was dangerously defective, that it had be

B The correct answer is b, the man must prove that the chair leg was dangerously defective and that the defect would have been discovered but for the company's failure to exercise due care. The minimum that the man would have to prove to establish a negligence action against the company would be that the chair leg was dangerously defective and that the defect would have been discovered in the exercise of reasonable care, whatever that entailed under the circumstances.

A man purchased a heavy-duty water heater to use as a backup to his solar water heater. The solar heater had no battery and only worked on sunny days, so the man wanted to link the water heater and the solar heater so that the water heater tank would hold solar-heated water when available, but activate to provide gas heated water on overcast days. The man asked his neighbor to assist him with the installation of the water heater. When the installation was complete, the man and the neighbor got a couple of beers and a couple of chairs and sat down in front of the heater to see how their efforts succeeded. The man opened the valve, which permitted water to enter the tank from the solar unit. Because of a defective pressure relief valve in the water heater, the valve failed to activate until the water from the solar unit entering the water heater became superheated. Then the link suddenly exploded, seriously scalding the man and the neighbor. The neighbor sued the manufacturer of the water heater for the physical injuries he suffered as a result of the water heater explosion. Who will prevail? a. The neighbor, unless the manufacturer can prove that their water heater was never intended to

B The correct answer is b, the neighbor, because he was injured by the defective water heater. The manufacturer of an unreasonably dangerous and defective product is strictly liable to foreseeable plaintiffs. Here, the facts say that the heater valve was defective, and a defect in something containing very hot water could obviously cause great harm. It is also foreseeable that a homeowner would be installing it with help from someone else.

While a man was cutting his front lawn with a rotary power lawn mower, his neighbor was coming home from work. The neighbor was walking past the man's front lawn when he was hit in the eye with a small rock discharged from the lawn mower. The neighbor lost the use of his eye. The lawn mower did not come with any protective device such as metal netting or a drag plate to prevent the ejection of projectiles such as rocks or pieces of wood. In a suit for damages based on strict liability against the manufacturer of the mower, will the neighbor prevail? a. Yes, because he will be able to prove a manufacturing defect. *b. Yes, because the lawn mower was defectively designed. c. No, because the neighbor is not a proper plaintiff in a strict liability action. d. No, because the neighbor was negligent in walking on the sidewalk while the lawn mower was being used.

B The correct answer is b, yes, because the lawn mower was defectively designed. A manufacturing defect is present when there is an unintended flaw in the product that renders the product unreasonably dangerous. In contrast, a design defect exists when the product is designed as intended but the design renders the product unreasonably dangerous. Because the lawn mower did not have as part of its design any protective device, it was sold in a condition that was far more dangerous than an ordinary consumer would contemplate. Consequently, the absence of any protective device made the product dangerously defective.

A businessman is the owner of a small winery. For several years he has been dumping grape sludge, the waste product of the fermenting process, in a pit about 100 yards from the neighbor's property. The sludge continues to ferment, giving off a highly pungent and offensive odor. The neighbor finds it impossible to enjoy any activities in her yard because of the odor. If the neighbor's four-year-old daughter ran onto the businessman's land while chasing a butterfly, fell into the sludge pit, and was injured, would she recover? a. Yes, but only if the businessman knew of her presence. *b. Yes, if the businessman knew young children had entered his land before and were likely to be injured. c. No, because she came on the land to look at the butterfly, not the sludge pit. d. No, because the sludge pit is not a nuisance ​per se​.

B The correct answer is b, yes, if the businessman knew young children had entered his land before and were likely to be injured. The neighbor's daughter was injured when she trespassed on the businessman's land. If the businessman knew or had reason to know children were likely to trespass and knew or had reason to know that there were conditions on the premises dangerous to children, he may owe the trespassing children a duty of reasonable care. Other factors to examine are whether the children, because of their age, could not recognize or appreciate the danger, and whether the burden of correcting the danger was small in relation to the risk to the children. Since this answer choice states two of these requirements, this answer choice is the best answer.

After noticing the paint peeling off of the north side of her house, a homeowner decided it was time to have her entire house painted. She contracted with a painter who worked frequently in the area, to do the job. The painter decided to start on the north side of the house and set up scaffolding along the north side so he could easily paint the top portions of the house. One day the painter was working on the scaffolding when he negligently kicked an empty paint can off the scaffolding. The can fell to the ground, bounced up and went through the window of the neighbor's house. If the neighbor obtains a judgment against the homeowner for damages to his window, is the homeowner entitled to indemnity from the painter? a. Yes, because the painter had the last clear chance to avoid the damages to the window. *b. Yes, if the homeowner was held vicariously liable for the painter's negligence. c. No, because the homeowner chose the painter to paint her house. d. No, because the homeowner assumed the risk of the painter's negligence when she hired him to paint her house.

B The correct answer is b, yes, if the homeowner was held vicariously liable for the painter's negligence. If the judgment against the homeowner was based upon her derivative liability for the painter's negligence rather than the homeowner's own negligence in hiring the painter, then the homeowner is entitled to indemnity from the painter. This allows the innocent plaintiff to be assured recovery, but a co-tortfeasor, who was not negligent in her own conduct, could shift the loss to the negligent party. The fact that principals are not held vicariously liable for the torts of independent contractors does not apply here, since the answer choice states that the homeowner would only recover from the painter if the court did decide to hold the homeowner vicariously liable.

A construction company is building a two-story plaza in town. The construction company has built a series of ramps that the carpenters and masons use to move materials from one level to another. These ramps remain set up even when the workers are not on-site. The teenage son of the site manager advises his father that many of his friends are using the ramps to jump into the air on their bicycles and skateboards. The next day, the site manager posts several prominent signs at the site which stated, "No Trespassing. Keep Off Ramps. Authorized Persons Only. No Skateboards or Bicycles." However, the site manager continued to find evidence that children had been riding bikes and skateboards on the property even after posting the signs. One week later, a 12-year-old boy who ignored the signs rode his skateboard over one of the ramps, fell, and suffered serious injuries. Is the construction company liable for the 12-year-old's injuries? a. No, because the 12-year-old boy was a trespasser. *b. No, because the 12-year-old boy was warned of the danger. c. Yes, if the construction company could have removed or disassembled the ramps at little cost. d. Yes, because the construction company created

B The correct answer is b. no, because the 12-year-old boy was warned of the danger. Because the 12-year-old boy saw the signs and was aware of the risk, he will be treated as an adult trespasser, and so the attractive nuisance doctrine will not apply. As such, the boy assumed the risk of injury when he ignored the posted warning signs.

Does a defendant have to actually touch a plaintiff for battery to occur?

Battery does not require that the defendant actually touch the plaintiff. Touching something reasonably close to the plaintiff will suffice if harmful or offensive contact results. [Examples include pushing something that makes contact with the plaintiff, or moving a chair that the plaintiff was about to sit in.Battery can also occur if the defendant makes contact with the plaintiff using some object like a rock.]

As the holiday season approached, a homeowner decided to hang lights around his home. He set up a ladder, climbed it, and began to hang the lights along the edge of his roof. As the homeowner reached the corner of his roof he attempted to stretch to attach the lights to the corner rather than reposition the ladder. In so doing, he fell about 12 feet off the ladder. The homeowner felt some pain in his lower back but did not believe he was seriously injured. Shortly thereafter, the homeowner decided he needed more lights to hang on his home. While driving to the store to purchase additional lights, the homeowner purchased a hamburger and negligently began to eat it his car while driving when he was hit from the rear by another vehicle, which had negligently failed to stop. As a result of the collision the homeowner suffered paralysis. The homeowner brought suit against the other driver. At trial, medical experts testified that the homeowner would not have been paralyzed in the collision if he had not fallen off the ladder earlier that day and that the initial back injury could have been treated by any competent practitioner by immobilization in a brace if the homeowner had gone to the doct

C The correct answer is c, damages should be reduced because the homeowner was comparatively negligent. This question requires that a distinction be drawn between the doctrines of avoidable consequences and comparative negligence. When a plaintiff is injured in an accident, plaintiff has an obligation to mitigate his damages. This includes taking all reasonable steps to limit the adverse consequences of the accident. If the plaintiff does not act as a reasonable person in limiting his injuries, his recovery against the individual causing the incident will not include damages for those consequences that could have been avoided. In this case the homeowner did not fail to mitigate damages after the tort, so the concept of avoidable consequences does not apply. Instead, he contributed to his injury because he was contributorily negligent by eating a hamburger while driving, which would make him comparatively negligent.

Priscilla went to Dr. Goodright for treatment of a painful ear disorder which had caused her to experience loss of balance, dizziness and nausea. While Dr. Goodright was examining her inner ear, he noticed a lump of wax. As Dr. Goodright was removing the lump with his hemostat (elongated medical instrument), he also noticed what appeared to be the rear legs of an insect. With utmost care, Dr. Goodright extracted the foreign object from Priscilla's ear. Dr. Goodright then examined the substance, which proved to be a German cockroach. As he held the insect in front of Priscilla to see, she became hysterical, fainted, and fell to the floor, breaking her collarbone. The incident caused Priscilla to develop a phobia and she became deathly afraid of insects. In a suit for damages against Dr. Goodright, which of the following torts would provide Priscilla with her best theory of recovery? a. Battery. b. Negligence *c. Negligent infliction of emotional distress. d. Intentional infliction of emotional distress.

C The correct answer is c, negligent infliction of emotional distress. By process of elimination, this is the only choice that would be correct. A is incorrect because when Priscilla consulted Dr. Goodright, she impliedly consented to his touching her for the purposes of medical treatment. D is incorrect because Dr. Goodright did not manifest any intent to inflict emotional distress, nor would his actions constitute recklessness. The tough choice is between B and C. B is not the best answer because, to recover for emotional distress inflicted through negligence, the emotional distress must follow some form of physical injury suffered by the plaintiff. Here, the emotional distress occurred before the plaintiff suffered physical injury. Therefore, C is the better answer.

The defendant recently purchased a large, abandoned building in a prime location of the city. The defendant decided to turn the building into upscale lofts, which he can lease for a premium due to the building's prime location. As part of his renovations, the defendant needed to use dynamite to blow up a portion of the building. Prior to dynamiting, the defendant took all of the necessary precautions to prevent against injury. He also obtained all necessary permits from the city. On the day of the dynamiting, the defendant used the explosives at exactly 11:00 a.m. Several blocks away, at the city zoo, a zookeeper was in the lion enclosure for the lion's 11:00 feeding. When the lion heard the explosion, he became startled and agitated. As a result, he attacked the zookeeper, biting him several times. The zookeeper brought suit against the defendant. Will the defendant be strictly liable to the zookeeper? a. Yes, because the lion is a wild animal and is therefore considered to have dangerous propensities. b. Yes, because dynamiting is considered an abnormally dangerous activity. *c. No, because the harm to the zookeeper did not result from the type of danger that justified classifying dy

C The correct answer is c, no, because the harm to the zookeeper did not result from the type of danger that justified classifying dynamiting as an abnormally dangerous activity. An abnormally dangerous activity is one that creates a risk of serious injury as to plaintiff, his land, or his chattels; this risk cannot be eliminated by the exercise of due care; and the activity is not usually conducted in that area. Such things as dynamiting, crop-dusting, and exterminating have been found to be abnormally dangerous. However, strict liability will not apply in this case. That is because in order for strict liability to apply, the harm to plaintiff must have resulted from the type of danger that justified classifying the activity or the animal as dangerous. Since a lion attack is not the type of danger that justifies dynamiting as a dangerous activity, the defendant will not be liable to the zookeeper under a theory of strict liability. As such, this answer choice is correct.

A property owner owns a vacant warehouse on the edge of downtown that is being renovated. The building had construction equipment, damaged floors with large holes, exposed beams, exposed wiring, and construction debris littered throughout the structure. For over a month, a group of homeless men would routinely enter the building late at night to sleep and eat. The owner periodically checked on his property, and noted the accumulation of trash and food scraps. Recently, one of the homeless men fell through a hole in the top floor and severely injured himself. The trial court entered summary judgment in favor of the property owner, ruling that he did not owe any duty to the homeless man. The homeless man has filed an appeal. Should the appellate court affirm the trial court's ruling? a. Yes, because the homeless man was a trespasser. b. Yes, because the homeless man was a licensee. *c. No, because the property owner owed a duty of care to protect the homeless man. d. No, because the homeless man acted out of necessity.

C The correct answer is c, no, because the property owner owed a duty of care to protect the homeless man. Generally, a landowner owes no duty of care to an unknown trespasser. Nor does a landowner have any duty to inspect to protect an unknown trespasser from injury. However, if a landowner is aware of that a particular plaintiff is a trespasser or there are sufficient facts that he should reasonably conclude that there is a trespasser, a landowner has a duty to exercise reasonable care to protect a known trespasser from injuries resulting from the landowner's activities. The duty does not extend to natural conditions. Here, the facts indicate that the landowner should have been aware of the presence of frequent trespassers, because he noted a growing accumulation of trash and food scraps (being left behind by the homeless people). For this reason, the landowner owed the homeless man a duty of reasonable care.

A homeowner owned a house with a spacious front yard. The homeowner also owned a cat, which tended to be rather aggressive and had once bitten the homeowner's neighbor. Although the cat stayed mostly indoors, it occasionally wandered outside, into the homeowner's yard. One day, a runner was jogging along the homeowner's street when his shoelace came untied. The runner, who lived on the other side of town and had never met the homeowner, stepped into the homeowner's front yard to tie his shoe. After tying his shoelace, the runner remained in the homeowner's front yard a few minutes longer to admire the homeowner's newly blooming rosebush. While the runner was admiring the roses, the homeowner's cat snuck up behind the runner, bit him on the ankle and clawed him severely. The runner was incensed, and subsequently filed a strict liability lawsuit against the homeowner for his medical expenses. Will the runner prevail in his action? a. Yes, because the cat had a known dangerous propensity. b. Yes, because the homeowner should have placed warnings about dangerous conditions on his land. *c. No, because the runner was a trespasser. d. No, because the runner was contributorily negligent.

C The correct answer is c, no, because the runner was a trespasser. A defendant can be strictly liable for personal injuries inflicted by his domesticated animal if it has known dangerous propensities. The classic example of a domestic animal with known dangerous propensities is a dog that has previously bitten someone. In this case, the facts indicated that the homeowner's cat had a known dangerous propensity, in that the cat had previously bitten the homeowner's neighbor. However, most jurisdictions do not impose any liability for injuries to unknown trespassers inflicted by defendant's animals while they are on a defendant's land, even as to animals with known dangerous propensities. In this case, the runner was an unknown trespasser bitten while on the homeowner's land, and the homeowner was not aware of the runner's presence. As such, the runner will not prevail in the action.

A well-known national news broadcaster has a reputation for ambush-type interviews designed to expose the target's hypocrisy. ​News Views,​ a political magazine, ran a feature article stating that the broadcaster had bought land near a proposed site for the new university a few years earlier. The article claimed that the broadcaster had inside information from members of the Board of Regents of the university as to where the school would be located and would now be able to sell the property to the state at a handsome profit. The reporter believed the story to be true because he got the information from a member of the Board of Regents, and he had not found any information to the contrary when he investigated. If the broadcaster sues ​News Views​ for defamation, he most likely will: a. prevail, because the story is false. b. prevail, because the story concerned a purely private matter. *c. not prevail, because the reporter exercised reasonable care in ascertaining whether the information was true or false. d. not prevail, because he is a public figure.

C The correct answer is c, not prevail, because the reporter exercised reasonable care in ascertaining whether the information was true or false. The broadcaster is a public figure because he has pervasive fame and uses his interviews to influence public opinion. To recover for defamation, a public figure must demonstrate that a media defendant published a statement with knowledge of its falsity or reckless disregard for its truth or falsity. Even if the story was wrong, ​News Views​ will not be liable because the reporter exercised reasonable care in ascertaining the truth or falsity of the statement. Not only did the reporter's conduct not reach the level of reckless disregard for the truth, but it may not even have been negligent.

About ten years ago, an agricultural company bought some rural land to start a new bioengineering division. They needed a great deal of land for the experimentation due to the extensive plantings and treatments of the plants that were needed. An unexpected by-product of the research process was the release of an extremely foul odor. The powerful fertilizers used also gave off a strong chemical odor. This was not a problem until recently. Although the company tried to be a good neighbor by doing all it could to suppress the odors, it was getting more and more complaints concerning the odors. There was housing within 400 yards of the property, as urban sprawl reached the area. The odor from the fertilizer contained toxins that were a health hazard. Three homeowners filed suit against the company. If plaintiffs file suit for public nuisance, what is the likely outcome? a. The company prevails, because plaintiffs moved to the nuisance. b. The company prevails, because only a government can use public nuisance for recovery *c. Plaintiffs prevail only if they can show that they suffered some damage different from the public at large. d. Plaintiffs prevail if the company's activity interfered

C The correct answer is c, plaintiffs prevail only if they can show that they suffered some damage different from the public at large. A private person can file a claim for public nuisance if he sustained a harm different from that of the community at large. If the landowners can show they suffered a harm different from that of the community at large, they can prevail against the company under a public nuisance theory.

At a recent city council committee meeting, a city councilman stated on the record that, while he was on vacation in Hawaii, he happened to see his old high school friend cheating on his wife with a younger woman. Actually, the councilman had not seen his friend while on vacation in Hawaii. The friend sues the councilman for defamation. Which of the following is most accurate? a. The friend is likely to prevail, because the councilman's statement had nothing to do with the councilman's duties, nor any city matters. b. The friend is likely to prevail, because the councilman's statement was false. *c. The friend is not likely to prevail, because the councilman's statement was privileged. d. The friend is not likely to prevail, because the only person who actually heard the statement was the councilman's ex-wife.

C The correct answer is c, the friend is not likely to prevail, because the councilman's statement was privileged. A legislator (federal, state or local) is not liable for a defamatory message uttered while on the floor of the legislature or during hearings, committee proceedings, or the like. The nature or content of the defamatory message or its relationship to any matter before the legislature is immaterial to availability of this privilege. Even though the councilman's statement had nothing to do with city matters, the immunity still applies, and the friend will not prevail in his defamation action.

A bicycle manufacturer has been making the best bicycles around for three generations. The grandson of the founder takes great pride in the quality of the company's bicycles and personally supervises the assembly line eight hours a day to ensure quality and maintain his reputation in the industry. Despite careful inspections, the grandson is unaware that the bicycle seats he uses from a components company have been problematic. The seats fall off the bike when anyone over 150 pounds sits on them. The manufacturer sells its bicycles through a retailer. A man, who weighs 175 pounds, buys a bike assembled by the manufacturer from his local bike store. The man takes the bike out for a spin, and as he makes his first turn onto a busy street, the seat falls off. The man falls in front of oncoming traffic and is severely injured. The man sues the store and the manufacturer. Which of the following is the most likely outcome of the suit? a. The man cannot recover against the store, because the store only sold the bicycle. b. The man will not prevail against the manufacturer, because the manufacturer exercised due care and the faulty bike seat was the fault of the components company. *c. The man

C The correct answer is c, the man will prevail against both the store and the manufacturer, regardless of whether the manufacturer broke the seat or the seat came that way from the components company. A person who assembles component parts into a finished product is strictly liable for defects in the components used. Further, one who sells any product in a defective condition unreasonably dangerous to the consumer is subject to liability for physical harm if the seller is in the business of selling such a product, and it is expected that no change will occur in the product by the time it reaches the end user. Here, the bike seat was sold in an unreasonably dangerous condition in that the seat should have been able to support a person weighing more than 150 pounds, and a reasonable purchaser would not have expected the seat to present the danger that resulted in the man's injury. Thus, it is irrelevant whether the manufacturer exercised due care; the manufacturer is liable on a strict products liability theory for the defective bicycle.

A young lawyer was fired from his job with a major law firm, which caused him to develop severe depression. A few weeks after seeking treatment for his depression, the lawyer was beginning to feel better and started interviewing for jobs. The lawyer was on his way to an interview for an in-house position when he ran into the managing partner of his former firm on the street. The managing partner said, "Still looking for work? I see they're hiring at the fast food place around the corner. Flipping burgers is just the job for someone with your legal skills and intuition." The lawyer was overcome with shame and embarrassment, skipped his interview and went home immediately. His depression worsened to the point that he required hospitalization, and he was not able to work full time for almost a year. In a lawsuit against the managing partner, the lawyer will prevail if. a. the lawyer sues the managing partner for defamation. b. the lawyer sues the managing partner for intentional infliction of emotional distress *c. the managing partner knew about the lawyer's depression. d. the managing partner did not communicate his opinion of the lawyer's skills to other potential employers.

C The correct answer is c, the managing partner knew about the lawyer's depression. Intentional infliction of emotional distress is extreme and outrageous conduct that causes a plaintiff severe mental distress. Conduct is extreme and outrageous if it is beyond the bounds of decency. Offensive or insulting language is generally not considered outrageous, except in cases involving defendants who are common carriers or innkeepers, or as to plaintiffs with known sensitivities. Here, the managing partner's comments, standing alone, do not rise to the level of outrageous conduct required to maintain an action for intentional infliction of emotional distress. However, if the managing partner knew of the lawyer's condition and that his comments could cause the lawyer's condition to become even more severe, the managing partner may be liable for intentional infliction of emotional distress.

One afternoon, a dog owner returned home from work to find a maintenance man in the apartment and her dog locked in a back bedroom. The maintenance man told the owner that he'd come to fix the plumbing and the dog had bitten him in the leg. The owner was astonished and assured the man that her dog must have been very upset to do so, because she was ordinarily such a well-behaved little dog. Four days later, the owner's sister-in-law and her two children came to visit. The children were young and not used to dogs. The little boy came up to the dog and yelled, "Doggie!" The dog immediately jumped on him and bit his ear. The owner told her sister-in-law that it was the boy's fault for yelling and asked them to leave. When they boy turned out to need extensive cosmetic surgery to repair the injury, the owner's sister-in-law filed a strict liability action against the owner for the boy's injuries. To prevail in her strict liability claim, the sister-in-law must prove that a. the owner was negligent in not leashing the dog. b. the boy did not yell at the dog. *c. the owner knew that the dog had a tendency to bite. d. the boy and sister-in-law were invited guests.

C The correct answer is c, the owner knew that the dog had a tendency to bite. An owner of a domesticated animal may be strictly liable for injuries caused by the animal if the animal has "known dangerous propensities." Where strict liability applies, the animal owner will be liable regardless of whether he or she exercised due care in restraining the animal. Under the "one-bite rule," every dog (or other companion animal) is permitted one "free" bite; however, following this first bite, the law presumes that a reasonable owner would realize that the animal presents a danger of death or injury. Here, the owner knew that the dog had recently bitten the maintenance man for an unknown reason. Thus, if the sister-in-law shows that the owner was aware that the dog had a tendency to bite, the owner will be strictly liable for the boy's injuries.

Peter slips and falls on ice when walking on property owned by a non-profit charitable organization. He sues the organization for negligence. The organization asks the court to dismiss the claims on the grounds of charitable immunity. How should the court rule on the motion?

Charitable immunity protects non-profit charitable organizations from common law claims like torts. It is dependent on the organization's status as a non-profit, charitable organization. Here, the charitable organization is a non-profit and Peter's claim is a tort, so immunity would likely apply if the state where Peter filed his lawsuit maintains charitable immunity. If that is the case, then the court should grant the motion to dismiss However, most states have eliminated immunity for charitable organizations by statute or common law. If the state where Peter filed his lawsuit has eliminated charitable immunity, then the court should deny the motion to dismiss.

What is the name of the defense that reduces a plaintiff's recovery by their percentage of fault for their injuries?

Comparative negligence.

David runs a red light and hits Peter causing serious bodily injuries to Peter. Peter spends several weeks in the hospital in severe pain and two months going through rehabilitation to help recover from injuries. He still has some pain and limitations a year after the incident. Peter's hospital bills are $300,000. His rehabilitation bills are another $100,000. Peter sues David and the jury awards her $800,000 in compensatory damages and $8,000,000 in punitive damages. David challenges the jury's award. Analyze how the appellate court should rule on David's case.

Compensatory damages Compensatory damages fall into two categories: (1) economic or pecuniary damages that are based on actual economic losses, and (2) non-economic or non-pecuniary damages that are based on harm such as pain and suffering. Awarding damages in negligence cases is often part of the role of the jury and the amount of non-economic damages to award can be difficult to determine. A jury is usually instructed to award damages that are "just and reasonable in the light of the evidence." The standard for a court to review a jury award is "whether a jury of reasonable [persons] could have returned that verdict.​" ​ A court may set aside a jury award for non-economic damages as too high or too low if it "deviates materially from what would be reasonable compensation." Here, Peter had $400,000 in economic losses, so the jury awarded Peter $400,000 in non-economic damages. That amount is more than likely "just and reasonable in the light of the evidence" given the period of time that Peter was in the hospital and in rehabilitation, the amount of pain he experienced, and that he still currently has some issues from her injuries. In reviewing the award, it's likely that a court would find that a jury of reasonable persons could have returned that verdict and that the award does not "deviate materially from what would be reasonable compensation." Therefore, the appellate court is likely to uphold the award of compensatory damages. Punitive damages Punitive damages are meant to punish the defendant and to deter future wrongdoing. They are generally available only when the defendant's conduct is found to be intentional, malicious, outrageous, or otherwise aggravated beyond mere negligence. Here, the facts do not mention such behavior. The facts state only that David ran a red light, which would generally just be negligent behavior. As a result, the appellate court is likely to overturn the award of punitive damages. If there was some conduct beyond negligence to support some award of punitive damages, then the other issue would be if the award of $8,000,000 is excessive under the Due Process Clause of the United States Constitution, which requires fairness and prohibits "grossly excessive or arbitrary

What is the difference between "hard" and "soft" damages?

Compensatory damages fall into two categories: 1) economic or pecuniary, and 2) non-economic or non-pecuniary. Economic or pecuniary damages are sometimes referred to as "hard" damages and non-economic or non-pecuniary damages as "soft" damages. The reason for this is that economic damages are based on actual dollar figures, or "hard" numbers. They include things like medical expenses and lost wages where there are actual economic losses that can be calculated by the amount of money spent on expenses and lost in wages. By contrast, with non-economic or "soft" damages, there is not a concrete monetary loss to measure. Rather, these damages include things to address the physical and emotional losses from the injury like pain and suffering and the inability to do certain activities.

What is the name of the defense that bars a plaintiff from any recovery when they are partially to blame for their injuries?

Contributory negligence.

A novice rock climber was acquiring all of the equipment he needed to pursue his new favorite hobby. He saw an advertisement for a sale on Steel Strength heavy duty rope at a sporting goods store. The manufacturer's ad showed a photo of an athletic man standing next to a jagged rock face with a rope tied around his waist in rock-climbing fashion. The ad read: "Steel Strength rope helps me climb where I need to climb and go where I need to go." The rock climber bought a spool of Steel Strength rope at the store. He didn't discuss the rope with the sales clerk because, based on the ad, he was confident that it was what he needed. The climber brought the rope on his next climbing excursion. The climber's large friend, who had also just started climbing, came along, and he borrowed some of the Steel Strength rope. The rope, which really wasn't designed for supporting even an average-weight person, broke under his weight. He fell from the rock face, landing on a park ranger. The friend broke both of his legs, and the ranger broke her arm. The friend and the park ranger sue the manufacturer in product liability for their injuries. Which of the following is correct? a. Neither the ranger nor

D The correct answer is d, both the ranger and the friend can prevail against the manufacturer, because the advertisement created an express warranty. The ad that the rock climber saw, as well as the name of the product itself, amounted to an express warranty that the rope was useful for rock climbing. In addition, anyone who could reasonably be expected to be affected by particular goods is entitled to the benefit of any associated warranties. Both the ranger and the friend could reasonably be expected to be affected by rope that is advertised as useful for rock climbing but is not. They need only show that the defendant made a warranty as to the quality or nature of the product and that the product did not conform to the warranty.

The defendant is the manufacturer of Roman Candle fireworks. The defendant packages the Roman Candles in a package which merely states, in very small font, "may be hazardous and cause burns" in the corner of the package. Assume that the defendant markets its products to children age 14 and under. The plaintiff's son, a 12-year-old boy, is badly burned when using one of the Roman Candles. The plaintiff sues the manufacturer on behalf of her son on a products liability theory, alleging absence of adequate warnings. Will the plaintiff likely prevail? a. Yes, because the warnings were inadequate to warn a user of the dangers of the product. b. Yes, because the warnings were inadequate to warn a child of the dangers of the product. c. No, because the product was accompanied by a warning. *d. No, because the fireworks are so obviously dangerous that a warning is unnecessary.

D The correct answer is d, no, because the fireworks are so obviously dangerous that a warning is unnecessary. It is true that a product may be considered dangerously defective when it is accompanied by an inadequate warning. However, certain products (such as knives) are regarded as so obviously dangerous that a warning is considered unnecessary. Here, the products at issue are Roman Candle fireworks, which are obviously dangerous. The court will likely rule that no warning is necessary, and therefore, the plaintiff will not prevail in a products liability action based on failure to provide adequate warning.

A corporation manufactures all types of tar for contractors. Since moving to the city of Seawall, the company donated generously to various charities, and the corporation president sat on the city board of managers. As a result of a tear in the ceiling of the corporation's plant, the plant had been leaking tar into the atmosphere for several months and had not repaired the damage. In response to an inquiry by the city, the corporation asserted that there was no damage to the community from the "minute" amount of tar released by the leak. Numerous property owners in Seawall claimed that their property values had decreased dramatically over the time that the leak had existed and that many children were developing upper respiratory infections. The mayor of Seawall sued the corporation for public nuisance. The corporation filed a motion to dismiss. How should the court rule on the motion to dismiss? a. The court should grant the motion, because the corporation has exercised due care. b. The court should grant the motion, because not all of the community has been harmed. c. The court should deny the motion, because the corporation refused to negotiate with the community. *d. The court should

D The correct answer is d, the court should deny the motion, because the corporation's plant has a leak that has caused general damage to the area. A public nuisance is an unreasonable interference with a right common to the general public. In determining whether an interference with a public right is unreasonable, courts will consider a number of factors, including (1) whether the conduct significantly interferes with the public health, safety, peace, comfort, or convenience; (2) whether the conduct is proscribed by a statute, ordinance, or administrative regulation; and (3) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right. Here, the leak in the corporation's building is allowing tar to enter the atmosphere, which has caused a community-wide reduction in property value as well as serious health problems to numerous children. Therefore, a ​prima facie ​case for public nuisance exists, and it would be improper to dismiss the action upon the corporation's motion.

A businessman operates a small child-care facility on his land. He often lets the children run around in the front yard. His neighbor is an owner of a dog, and the neighbor often lets his dog play around in his front yard. Some of the children in the child-care facility are afraid of the dog and they ask their parents to move them to another facility. After losing several customers, the businessman decides to sue the neighbor for nuisance. Which of the following is correct? a. The neighbor is liable for damages for public nuisance because the neighbor's activity substantially and unreasonably interferes with the businessman's use of his land. b. The neighbor is liable for damages for private nuisance because the neighbor's activity substantially and unreasonably interferes with the businessman's use of his land. c. The neighbor is not liable for damages for public nuisance because the businessman does not have authority as a public official. *d. The neighbor is not liable for damages for private nuisance if the neighbor's activity is not offensive or inconvenient to the average member of the community.

D The correct answer is d, the neighbor is not liable for damages for private nuisance if the neighbor's activity is not offensive or inconvenient to the average member of the community. A private nuisance is a thing or activity that substantially and unreasonably interferes with plaintiff's use and enjoyment of his land. The nuisance must be offensive, inconvenient, or annoying to an average person in the community. Plaintiff cannot, by devoting his land to an unusually sensitive use, complain of a nuisance based on conduct that would otherwise be relatively harmless. Here, the neighbor lets his dog play around in his front yard. If it was not for the businessman's child-care center and his policy of letting children play in his front yard, the neighbor's activity would be harmless. Therefore the neighbor will not be liable for private nuisance.

A man saw a worker lying unconscious in a ditch created by a company renovating the city's water supply system. The water in the ditch was rising rapidly, and the worker was in immediate danger of drowning. Under what circumstances is a court, applying the modern approach, most likely to hold that the man has a legal obligation to go to the worker's aid? a. The man's sister struck the worker with a bicycle, causing the worker to fall into the trench. b. The worker is the man's neighbor, who was bumped into the ditch by a passing car driven by an unknown person. c. The worker is the man's aunt, who tripped into the trench while being chased by a mugger. *d. The worker fell into the trench when he unexpectedly stepped in front of the man, who was riding a bicycle.

D The correct answer is d, the worker fell into the trench when he unexpectedly stepped in front of the man, who was riding a bicycle. Generally speaking, a bystander has no duty to come to the aid of someone in peril. However, if the bystander has created the peril, even if utterly accidentally and without intent or negligence, the bystander has a duty to use reasonable care to attempt a rescue. Thus, if the man, even through no fault of his own, caused the worker to fall into the ditch, the man would have a legal obligation to attempt to go to the worker's aid.

A man and a woman were investment bankers who had known of each other for some time. They went for a business lunch at a trendy little place packed with other financial professionals. The woman said, "I've heard so many good things about you. What would it take to get you to come work at my office?" The man stated loudly, "I would never work with you! You're an unethical lowlife." Several other financial professionals who were eating lunch overheard his reply. Will the female investment banker prevail in a defamation suit against the male investment banker? a. No, because there was no publication. b. No, because only the two investment bankers were parties to the conversation. c. Yes, if the male investment banker knew that the comment would be overheard *d. Yes, because it was reasonably foreseeable that someone would overhear the statement

D The correct answer is d, yes, because it was reasonably foreseeable that someone would overhear the statement. To prevail in a defamation action, a plaintiff must establish that a defendant published defamatory material concerning that plaintiff, which caused damage. The message must be communicated to a third person, either intentionally or negligently. Given that the male investment banker loudly stated his defamatory remarks at a crowded lunch spot, it was reasonably foreseeable that his statement might be overheard. Therefore, there was publication, and the female investment banker is likely to prevail.

To promote its new martial arts program for children, a martial arts school painted large murals of generic martial arts practitioners, Teenage Mutant Ninja Turtles, and Jackie Chan on its walls. The pictures depicted these famous characters fighting and wearing the martial arts school logo on their arms. Many children joined the martial arts school after seeing the murals. The martial arts school is being sued by the appropriate plaintiffs for the murals. Will the school be required to remove the murals and pay damages? a. No, because the karate school did not use professional artists to draw the murals. b. No, if the karate school is not known throughout the country. c. Yes, if the karate school did not draw the characters in a favorable light to the public. *d. Yes, because the karate school appropriated likenesses without consent.

D The correct answer is d, yes, because the karate school appropriated likenesses without consent. One who appropriates the name or likeness of another for commercial advantage is subject to liability. The tort of appropriation requires the use of the plaintiff's name or picture in connection with the promotion or advertisement of a product or service for commercial advantage. Therefore, if he did not consent to the martial arts school's use of his likeness, Jackie Chan would prevail in an action against the martial arts school. However, inasmuch as the "Teenage Mutant Ninja Turtles" are fictional, the only appropriate action arising from the school's use of their likenesses would be an infringement action by the trademark holder.

What is the distinction between discretionary functions and ministerial acts for the waiver of governmental immunity?

Discretionary functions are protected by immunity, whereas ministerial acts are not. Discretionary functions are considered policy making decisions where government officials should be free to exercise their judgment and discretion without being subjected to judicial intervention, so as to allow the political and democratic process to oversee these decisions. Ministerial acts can be thought of as decisions or actions that implement the policy decisions and generally do not involve the exercise of judgment or discretion.

Why are experts generally required in professional negligence cases?

Experts are generally required in professional negligence cases like malpractice because of the complicated nature of practicing professions such as medicine and law. The expert's role is to help the judge and jury understand the medical and legal standards that are part of the standards of care so that the judge and jury can make determinations about whether they were met or not.

Janelle joins an indoor soccer league. When she registers to play for the league, she is required to sign a form that releases the league and the facility where the league plays from any liability for any injury she suffers while playing. The form is an example of what type of assumption of the risk?

Express assumption of the risk, which simply means that the plaintiff expressly assumes the risk of harm from an activity. It often comes in the form of a release from liability, a waiver form, or some type of a consent form.

Penelope sues her attorney Danforth for malpractice. Penelope claims that Danforth failed to assert certain defenses when representing Penelope in a claim that Penelope's former business partner brought against Penelope. What does Penelope have to establish to be successful with her claim?

First, Penelope will have to establish an attorney/client relationship because it is a prerequisite for a legal malpractice claim. The relationship is what establishes that the attorney owes Penelope a duty to represent her in a manner that meets the standard of care requirements. Here, the attorney represented Penelope in a lawsuit brought against her and that establishes an attorney/client relationship, so this requirement is met. Next, Penelope will need to establish that the attorney did not meet the standard of care. The standard is what a minimally competent attorney would do in similar circumstances. The standards of the profession help establish what that means through customary or accepted practices, along with ethical requirements and state bar requirements. Expert testimony is generally required to help explain these standards in a case so that the factfinder can determine whether or not the standards were met. Here, Penelope's expert would need to establish that the attorney's failure to assert certain defenses falls below the customary or accepted practices of what a minimally competent attorney would do in similar circumstances, as opposed to just being some strategic decision, or a decision that is within the range of what a minimally competent attorney would do based on the facts and law involved in the case against Penelope. If Penelope is able to establish that the standard of care was breached, then she will need to provide evidence that she suffered harm and the failure to raise the defenses was the actual and proximate cause of her harm.

For the defense of assumption of the risk to apply. the plaintiff must ____________ and _________ __________ appreciate the ___________ and ____________ of the _______ risk that they are assuming to have knowledge of the risk.

For the defense of assumption of the risk to apply, .the plaintiff must know of and fully appreciate the nature and extent of the specific risk that they are assuming to have knowledge of the risk

When is governmental action considered to be a discretionary function and protected by immunity?

Government action is considered to be a discretionary function and protected by immunity if the policy making action was governed by a mandatory statute, regulation, or policy that required some course of action, and Congress intended to shield the action with immunity because it is susceptible to social, economic, or political analysis.

When is an intervening force not considered superseding for proximate cause?

If the intervening force is within the scope of foreseeable risk, or has a reasonable connection to the defendant's actions, it is not superseding and does not break the chain of causation.

What is the distinction between the intent to cause harmful contact and the intent to harm for battery?

Intent to harm means a defendant intended to contact a person and intended the contact to harm the person. Intent to cause harmful contact means the defendant intended to contact the person and harm resulted, but the defendant did not necessarily intend for harm to result.

Pamela is in a car accident with Darlene. A jury determines that she is 75 percent to blame for the accident and her injuries. Can Pamela recover any damages from Darlene?

It depends on whether state law follows a contributory negligence, a pure comparative negligence approach, or a modified comparative negligence approach. Under contributory negligence, the defendant is not responsible for providing any compensation when the plaintiff is at fault. Here, that would mean that Pamela cannot recover any amount from Darlene. Under a pure comparative negligence approach, the plaintiff can still recover even if they are mostly to blame for what happened. Here, that would mean that Pamela can recover 25 percent of her injuries. With a modified comparative approach, a plaintiff generally can only recover if they are equally or less to blame than the defendant. Here, that would mean that Pamela cannot recover because she is more to blame than Darlene.

A plaintiff is having shortness of breath. She calls 911 and asks for an ambulance to come get her and take her to the hospital. The 911 dispatcher declines, saying it was not an emergency. The plaintiff lives in the city. She walks outside to try to catch an Uber/Lyft to the hospital. While doing so, she trips down the stairs of her apartment complex, breaks her neck and dies. Is the plaintiff's harm foreseeable?

It is likely not foreseeable. Harm is foreseeable when a defendant should have reasonably foreseen that type of harm as a risk of their conduct. The analysis is focused on what harm could reasonably result from the risks that the defendant's action created. Here, the plaintiff falling down the stairs while trying to go to the hospital is not likely something a reasonable person would see as the result of not sending an ambulance to take the person to the hospital. There is some argument that given the plaintiff's condition of having shortness of breath that she would be distracted and that could make it more likely that she could fall down some stairs. But even that evidence likely does not make it something that a defendant should have reasonably foreseen, because there are too many unknown variables for the defendant, and falling down stars is not generally the type of harm that occurs in that situation. Therefore, the plaintiff's harm is likely not foreseeable. If reasonable minds could disagree over that issue, then that becomes a question for a jury to resolve. The example is based on ​Adams v. City of Chicago​ . In ​Adams​ , the court ruled that it was not foreseeable that the plaintiff would be harmed in a car accident by refusing to send an ambulance.

. How does the standard of care change in an emergency situation?

It is modified to determine what a reasonable person would do given the emergency.

Paul lives in the United States. He purchases a rare bottle of scotch from another country. The scotch is packaged for shipment by a packaging company, transported to the airport by a local courier, put on a private plane by a pilot, and delivered to Paul's home by Dan's Delivery Company. When it arrives, the bottle is broken. Can Paul use res ipsa loquitur to establish a breach of duty?

No, Paul cannot use res ipsa loquitur to establish a breach of duty. Res ipsa loquitur applies when there is not direct evidence of a breach of duty and (1) the incident that caused harm would not ordinarily occur without negligence; (2) the defendant was responsible for or in control of whatever caused the harm; and (3) other factors likely did not cause the harm, including actions by the plaintiff. The general rule is that res ipsa loquitur is not used when there are multiple defendants who had consecutive or sequential control, but it can be used if there is shared control or responsibility, or some uncertainty about who was in control at what time. Here, there were various potential defendants involved in the packaging and transportation of the scotch from where it was purchased to Paul's home, and the defendants had consecutive or sequential control without shared control or responsibility. Therefore, Paul cannot use res ipsa loquitur to establish a breach of duty.

Pat goes to the Roadhouse bar and grill late at night with some friends to drink and dance. Roadhouse closes at 1:00 am. Right before closing, Pat goes to the bathroom and passes out in a stall. As the owner is closing down Roadhouse, she goes into the bathroom and looks around for people and yells out, "Closing time. I am locking all the doors and leaving." Pat is unconscious and does not hear the owner. A few minutes later, Pat wakes up and tries to leave Roadhouse and realizes there is no way out. The doors are all locked and the windows have metal bars on them. Are the requirements for false imprisonment met?

No, because the Roadhouse owner did not intend to confine Pat to a bounded area. False imprisonment requires an intentional act, that is unlawful, and confines or restrains the plaintiff in a bounded area. The defendant must desire or be substantially certain that his or her action will cause the confinement to a bounded area. Accidentally causing such confinement is not sufficient. Here, the owner did not know Pat was in the bathroom and the confinement was accidental. Additionally, for part of the time, Pat was unconscious and the plaintiff must be aware of their confinement or harmed by it for false imprisonment to occur. Pat was not harmed by the confinement. As a result, the requirements of false imprisonment are not met.

Paul gets drunk and agrees to take a road trip with Dan. As they go to the car, Dan opens up the trunk and Paul gets in. Half-way through the trip, Paul sobers up, realizes that he is trapped, and tries to get out. Paul sues for false imprisonment. Dan claims Paul consented. Will Dan's defense be successful?

No, it likely will not be successful. Consent is a defense to false imprisonment. It can be express or implied consent. Implied consent must be "objectively manifested" meaning the person does something that a reasonable person would rely on as permission or consent. Here, Paul's actions of getting into the trunk on his own would objectively manifest consent. However, consent can be invalidated for a number of reasons. Invalidated means that even though the person gave consent, it is not valid and does not protect the defendant from liability for the underlying tort. One of the bases for invalidation is incapacity, which can be temporary from drugs or alcohol. Here, Paul's intoxication likely made him incapable of consenting to what could otherwise be false imprisonment. As soon as he sobered up, he tried to get out of the trunk, which indicates that he would not have consented to being in the trunk had he been sober and had the capacity to decide. Some courts have held that in some circumstances, the other person must be aware of the incapacity, so if Dan was not aware that Paul was intoxicated the defense of consent may be viable. Therefore, Dan's defense will likely not be successful unless the court requires Dan to have knowledge of the incapacity and the facts establish that Dan did not have such knowledge.

Diego intends to shoot Pauline. He pulls out a gun and shoots at her, but misses and hits Marsha instead. Pauline does not see Diego or the gun or the gunshot, but Marsha did. Does Pauline have a claim for assault against Diego?

No. Assault requires an intentional act that causes reasonable apprehension about imminent harmful or offensive contact. Since Pauli did not see Diego or the gun, she did not apprehend the contact. Marsha would have a claim for assault as she did see Diego and likely apprehended the harmful or offensive contact and Diego's intent to harm Pauline transfers to Marsha.

Are physical manifestations required for emotional distress to be considered severe for a claim of intentional infliction of emotional distress?

No. Physical manifestations are not required for intentional infliction of emotional distress, but are sometimes part of the harm alleged. The distress just has to be severe enough that "no reasonable person could be expected to endure it."

. Is fear of harmful contact required for assault?

No. The plaintiff just needs to perceive that the potential harmful or offensive contact is about to happen, and the defendant must have the apparent ability to cause the contact. The plaintiff does not have to be afraid of the contact, but does have to be aware of the imminent harmful or offensive contact.

Are intentional or criminal acts always considered to be superseding, intervening forces for proximate cause?

No. While courts can find that an intentional or criminal act is superseding, that is not always the case. If the intentional or criminal act is foreseeable, it is still not a superseding intervening cause. It is just an intervening cause of force that does not break the chain of causation for the original defendant.

What is parent-child immunity?

Parent-child immunity precludes tort claims between parents and non-adult children. It is dependent upon the relationship between the plaintiff and the defendant. Many states still have some form of parent-child immunity for situations where the claims involved a parent's exercise of authority over a child, or parental discretion with respect to the child's care.

Dana and Paula are in an accident. Dana is 45% to blame and Paula is deemed to be a legally contributing cause and 55% to blame. Can Paula recover damages under contributory negligence, a pure comparative negligence approach, or a modified comparative negligence approach?

Paula could not recover under a contributory negligence, because she is considered a legally contributing cause so she is barred from recovery. She could recover 45% of her damages under a pure comparative negligence approach. She could not recover any damages under a modified comparative negligence approach since the modified approach bars recovery if the plaintiff is more to blame than the defendant.

Dana and Paula are in an accident. Dana is 95% to blame and Paula is deemed to be a legally contributing cause and 5% to blame. Can Paula recover damages under contributory negligence, a pure comparative negligence approach, or a modified comparative negligence approach?

Paula could not recover under a contributory negligence, because she is considered a legally contributing cause so she is barred from recovery. She could recover 95% of her damages under a pure comparative negligence approach and under a modified comparative negligence approach, since the modified approach only bars recovery if the plaintiff is more to blame than the defendant.

Peter visits a branch of the Veteran's Administration (VA) to file a claim for veteran's benefits. On the way into the building, he slips on some ice and hurts his back and head. Peter sues the VA, claiming that the agency was negligent in failing to properly maintain its parking lot and remove ice. Is the claim barred under sovereign immunity?

Peter's claim would not be barred under sovereign immunity. The Federal Tort Claims Act (FTCA) would likely apply here and it waives the federal government's immunity for certain claims. It allows individuals to bring claims against the federal government for certain torts "under circumstances where the United States, if a private person, would be liable." Not all tort claims are permitted under the statute, but negligence claims are if the alleged negligent act happened as part of a ministerial act, as opposed to a discretionary function. Ministerial acts are decisions or actions that implement the policy decisions and generally do not involve the exercise of judgment or discretion. Government action is considered to be a discretionary function and protected by immunity if the policy making action was governed by a mandatory statute, regulation, or policy that required some course of action, and Congress intended to shield the action with immunity because it is susceptible to social, economic, or political analysis. Here, the failure to maintain a parking lot would be a ministerial act because it is an act, or failure to act, that is implementing policy decisions as opposed to a policy making decision. It is not an act that was mandated by statute, regulation, or policy that Congress intended to shield the action with immunity because it is susceptible to social, economic, or political analysis. Rather, it was simply an alleged failure by the agency to properly maintain its parking lot to keep it safe for people to enter the building. Therefore, Peter's claim is not barred by sovereign immunity.

Piper wants to join a sorority at her college. Dana tells Piper that she has to drink a bottle of liquor and then go jump on a trampoline for 10 minutes in order to become a member and, if she does not, Dana will tell everyone at school that Piper has a sexually transmitted disease, which is not true. Piper drinks the liquor and tries to jump on the trampoline, but soon falls off and is injured. Are her potential negligence claims against various defendants barred under assumption of the risk?

Piper's claims are likely not barred by assumption of the risk. Assumption of the risk requiress: (1) knowledge of the risk; and (2) voluntary assumption of the risk. The plaintiff must voluntarily expose themselves to the risk, or choose to take the risk. If they are coerced or the conduct of the defendant has left them with no reasonable alternative, then it is not voluntary. Here, Dana coerced Piper into drinking and jumping on the trampoline by telling her that she had to do it in order to join the sorority and that Dana would spread a false statement about Piper having a sexually transmitted disease around school if she did not. Therefore, Piper did not voluntarily choose to take the risk and her claims would not be barred by the defense of assumption of the risk.

What is the difference between the public and private necessity defenses to intentional torts

Public necessity means the potential harm is widespread such as protecting the community. Private necessity is just protecting another private interest such as the person's own property or other personal interests. With private necessity, the defendant must compensate the owner for the property harmed. With public necessity the actor does not. For that reason, private necessity is considered an incomplete defense and public necessity a complete defense.

When can punitive damages be awarded to a plaintiff?

Punitive damages are generally available only when the defendant's conduct is found to be intentional, malicious, outrageous, or otherwise aggravated beyond mere negligence.

When does ​res ipsa loquitur apply?

Res ipsa loquitur applies when there is not direct evidence of a breach of duty, and (1) the incident that caused harm would not ordinarily occur without negligence; (2) the defendant was responsible for or in control of whatever caused the harm; and (3) other factors likely did not cause the harm, including actions by the plaintiff.

What is spousal immunity?

Spousal immunity provides immunity to defendants from claims by their spouse. It is dependent on the spousal relationship between the plaintiff and the defendant. The majority of states have eliminated spousal immunity and those that have kept it have imposed limitations on its use.

​How does the minority view for the general duty of care for negligence differ from the majority view, and what is it called?

The Andrews view (the minority view) is that the duty flows to all foreseeable plaintiffs, meaning that if the actor's conduct could reasonably, foreseeably harm someone, then a duty flows to anyone the negligence harms.

What is the majority view for the general duty of care for negligence?

The Cardozo view imposes a duty only insofar as the conduct creates reasonably foreseeable risk of harm to someone in the zone of danger. Others, even if injured, are owed no duty.

An animal rights activist who avoided contact with any animal substances was a well-known speaker throughout the country on the subject of veganism and animal rights. Her local newspaper published a photo of the activist in a fast-food restaurant eating what appeared to be a hamburger, and it was picked up by multiple Internet sources. As a result, many of her friends reproached her, and many of her speaking engagements were cancelled. The activist seeks to sue the newspaper for invasion of privacy. The activist will not prevail in her invasion of privacy action unless a hamburger, and it was picked up by multiple Internet sources. As a result, many of her friends reproached her, and many of her speaking engagements were cancelled. The activist seeks to sue the newspaper for invasion of privacy. The activist will not prevail in her invasion of privacy action unless a. she can prove that the photo is false. b. she can prove that the paper did not research what it printed. c. she proves that she was injured by the publication. *d. she can show that a reasonable person would find the false light in which she was placed to be highly offensive.

The correct answer is d, she can show that a reasonable person would find the false light in which she was placed to be highly offensive. To prevail in an invasion of privacy action based on false light portrayal, the plaintiff must prove that the light in which she was placed would be highly offensive to a reasonable person.

wo hunters both shoot in the same direction and one of the shots hits Parker in the eye. The hunters had the same kind of guns and ammunition. Parker sues both of the hunters. The hunters move to dismiss, claiming that Parker cannot prove that either of them are the but for cause of Parker's harm, so Parker cannot establish actual cause. They move to dismiss the claims against them. Should the court grant their motion to dismiss? Why or why no

The court should deny the motion to dismiss. While the "but for" test is the standard or general test that is used for actual cause, alternative causation can be used when there are two or more defendants that could have caused the plaintiff's harm, but only one of them did so, and there is uncertainty as to which one did so. In this situation, courts can shift the burden to the defendants to prove that they are not the actual cause. Here, alternative causation would apply because there are two defendants that could have caused Parker's harm and only one of them did so. Therefore, the court should deny the motion to dismiss and shift the burden to the defendants to prove that they are not the actual cause of Parker's injuries.

What is wrong with this statement? "Trespass to chattel requires possession of personal property and interference with that property that causes actual harm."

The intent requirement is missing. The defendant must intend the interference, which can be established by showing the defendant intended to damage or take possession of some personal property that belongs to someone else, or that their actions make it substantially certain that it will occur.

What is the "last clear chance doctrine?"

The plaintiff's contributory negligence does not bar recovery if the defendant's negligence occurred after the plaintiff's contributory negligence and the defendant had a chance to avoid causing the harm.

What is the standard of care for a medical malpractice claim?

The standard of care requirement for medical malpractice is what a minimally competent health care provider with the same general facilities, services, equipment, and options would do in similar circumstances using reasonable diligence, skill, competence, and prudence. The standards of the profession, like customary or accepted medical practices, and clinical or practice guidelines, can help establish what a minimally competent health care provider would do in a given circumstance by providing a medical standard of care. Expert testimony is generally required to help establish and explain these medical standards in a case and whether or not the standards were met to aid the factfinder in making a decision.

What is the substantial factor test for actual cause?

The substantial factor test is when more than one defendant materially contributed to the plaintiff's harm, or were a substantial factor in causing the harm. It is generally used when the two sources of harm are redundant, meaning that they each were sufficient by themselves to cause the harm. As a result, the defendants may try to escape liability under the "but for" standard, by saying that the other defendant is the reason for the harm. Under the substantial factor test, both can be the actual cause as long as they were a substantial factor, or materially contributed, to the plaintiff's harm

What type of harm is required for trespass to chattel?

Trespass to chattel requires actual harm to the personal property, depriving the owner of use of the property, or taking it from the owner altogether, which is called dispossession.

Trespass to land requires _____________ or ________________ interest in land, an ______________ invasion of that interest, and _____________ to the interest.

Trespass to land requires ownership or possessory interest in land, an intentional invasion of that interest, and harm to the interest.

What duty of care applies to a defendant who attempts to rescue, or to take care of, a plaintiff?

Under common law, the defendant has an obligation to use due care and to act reasonably when they attempt a rescue, or when they care for the plaintiff. The defendant cannot leave the plaintiff worse off than they found the plaintiff, which means that they cannot increase the danger, mislead the plaintiff into believing the danger has been removed, or deprive the plaintiff of possible help from others. Good Samaritan statutes may offer some protection from liability for defendants attempting to rescue, or care for, a plaintiff in an emergency situation. These laws vary from state to state in terms of the protection that they provide to the good samaritan.

How are contributory and comparative negligence different?

Under contributory negligence a defendant is not responsible for providing any compensation if the plaintiff is negligent, whereas comparative negligence is more of a shared blame approach. The defendant may still be responsible for some compensation to the plaintiff depending on the percentage of fault that is allocated to the plaintiff by the judge or jury, and what comparative negligence approach is followed by the state.

Paul crosses the street without first looking both ways and he is hit by Dan who is driving down the street. Paul sues Dan for negligence. At trial, the facts establish that Dan saw Paul in time to stop before hitting Paul, or to steer his car in a way that would avoid Paul, but did not do so. The court is in a state that applies contributory negligence. Is Paul's recovery for damages barred by contributory negligence?

Under contributory negligence, a plaintiff is barred from recovery if they are a legally contributing cause cooperating with the negligence of the defendant in bringing about their harm. Here, Paul likely was a legally contributing cause because he crossed the street without looking both ways, which is not what a reasonable person would do under the circumstances. However, under the last clear chance doctrine, a plaintiff's contributory negligence does not bar recovery if the defendant's negligence occurred after the plaintiff's contributory negligence and the defendant had a chance to avoid causing the harm. Here, Dan's negligence of hitting Paul occurred after Paul's negligence of crossing the street without looking and Dan had time to stop before hitting Paul, or to steer his car in a way that would avoid Paul, but did not do so. Therefore, the last clear chance doctrine likely applies and Paul's recovery is not barred under contributory negligence.

What is the difference between contributory and comparative negligence?

Under contributory negligence, the defendant is not responsible for providing any compensation, whereas comparative negligence is more of a shared blame approach. The defendant may still be responsible for some compensation to the plaintiff under comparative negligence depending on the percentage of fault that is allocated to the plaintiff by the judge or jury, and what comparative negligence approach is followed by the state.

What is breach of duty?

When a defendant fails to meet the relevant standard of care.

When is a defendant's conduct considered extreme and outrageous for intentional infliction of emotional distress?

When it is "beyond the bounds of decency" and regarded as "utterly intolerable in civilized society." Courts look at the context of the conduct and the relationship of the parties along with the severity and regularity of the conduct.

When is the defense of consent for intentional torts implied?

When it is "objectively manifested" meaning the person does something that a reasonable person would rely on as permission or consent. Consent can also be implied by law in some emergency circumstances.

When is a misrepresentation considered material in a fraudulent misrepresentation claim

When it is a false statement of fact that is important to some decision that the plaintiff makes. Material means that either a reasonable person would attach importance to it in making decisions about the proposed transaction, or the person that made the statements knows or should know the other person will regard it as important.

When can an opinion be a material misrepresentation in a fraudulent misrepresentation claim?

When it is made by an expert, or when there is a fiduciary relationship between the parties, or when the defendant misleads a plaintiff about their objectivity over the transaction.

What are the exceptions to negligence per se?

When obeying the statute/regulation would cause greater harm than disobeying; or if the actor is (1) unable to comply despite reasonable efforts; (2) unable to comply due to incapacity; or (3) confronted with an emergency that is not her fault.

When can a defendant cause intentional infliction of emotional distress to a third person?

When the defendant acted with deliberate disregard of a high degree of probability that severe mental distress to a third person would result, their actions were extreme and outrageous and cause severe mental distress to the third person, and three additional requirements are met :1) the third person is a close relative of the intended victim; 2) the third person is present at the scene of the outrageous conduct; and 3) the defendant knows the third person is present.

When is an injury to a plaintiff foreseeable for proximate cause?

When the injury is something that a reasonable person would see as a likely result of his or her conduct. The analysis is focused on what types of harm could reasonably result from the risks that the defendant's action created.

What are the defenses of contributory and comparative negligence?

When the plaintiff is partially to blame for his or her injuries, the defendant should not be responsible for compensating the plaintiff for the full amount of the damages caused by the injuries. Under contributory negligence, the defendant is not responsible for providing any compensation. Under comparative negligence, the defendant may still be responsible for some compensation to the plaintiff depending on the percentage of fault that is allocated to the plaintiff by the judge or jury, and what comparative negligence approach is followed by the state.

Stanley is an electrician. He puts in some electrical wiring from Petra's house to a pool in the backyard. A few weeks later, there is a heavy rainstorm causing the wires to short out and the pool does not work. Petra sues Stanley for negligence. At trial, the evidence establishes that the short occurred because the wires were not deep enough in the ground. Stanley testifies that he followed the customary practice and he had done many jobs the same way. Can a jury find Stanley breached the duty of care? Why or why not?

Yes, a jury could find Stanley breached the duty of care. A breach of duty of reasonable care can be established if the defendant did not act reasonably under the circumstances and foreseeable harm resulted from the defendant's actions or inactions. A well-established custom that the defendant knew or should have known about can be used to establish what a reasonable person would do under the circumstances. The judge or jury then determines the importance of the compliance or non-compliance with the custom as part of its determination of what a reasonable person should do in that situation. Here, Stanley is relying on compliance with a customary practice to establish that he did not breach the standard of care. A judge or jury may agree, but they could also find that compliance with that custom does not satisfy the standard of care if a reasonable person would have acted differently given the specific circumstances and foreseeable risks. Therefore, a jury could find Stanley breached the duty of care.

Paul injured his elbow years ago, which causes him occasional pain. Dan invites Paul over to Dan's house and Dan leaves a bunch of his tools in his yard. Paul does not see the tools, trips over them, and lands on his elbow. Because of the preexisting injury, the damage to Paul's elbow is much greater than it would have been otherwise. Paul has to have surgery which increases his harm and his damages. Is Paul's harm foreseeable if Dan was not aware of the elbow condition?

Yes. Harm is foreseeable when a defendant should have reasonably foreseen that type of harm as a risk of their conduct. The general rule is that you take your plaintiff as you find them, which means that the defendant is still liable for the extent of harm to a plaintiff when it is worse than expected because the plaintiff has some preexisting injury that causes the harm to be worse than it ordinarily would have been, or the plaintiff is more easily injured than ordinary people. The defendant does not need to be aware of the preexisting injury. Here, the type of harm Paul suffered, falling from tripping over tools left in the yard and hurting his elbow is reasonably foreseeable because a reasonable person should foresee that Paul could have tripped over tools left in the yard and hurt his elbow. As a result, Paul's harm is foreseeable and Dan is liable for the harm even though the extent of the harm may be greater than expected and Dan was not aware of the preexisting condition.

Pauline rents a house. Her agreement gives her the sole right to occupy the property where the house is located. Can she successfully bring a trespass to land claim against her neighbor who comes onto the property without permission to admire Pauline's garden?

Yes. Trespass to land requires ownership or possessory interest in land, an intentional invasion of that interest, and harm to the interest. The interest protected by trespass to land is the right to ownership or possession of land. It can come from owning the land or from some other agreement that gives the plaintiff exclusive possession of the land. Here, Pauline's rental agreement provides her with the right to exclusively possess the property. The neighbor in invading that interest and harming that interest by coming on to the property without permission. Though the neighbor is not causing physical or actual harm to the land, the protected interest here is the right to ownership or exclusive possession, so the harm comes from the invasion of that interest. Actual harm to the property is generally not required under common law.

Dante and Pauline are in Dante's boat. There is a jet-ski with two people on it heading toward Dante's boat. Dante's options are to try to move forward very quickly to try to avoid the jet-ski, or to slow down and hope the jet-ski changes its course. Dante chooses to move forward quickly. He pushes the throttle down hard and the boat moves forward very quickly. Pauline is sitting on some railing on the edge of the boat where she should not be sitting. The quick motion results in Pauline falling out of the boat into the water. Does Dante have a duty to rescue Pauline?

Yes. When a defendant knows or should know that their conduct has caused harm to another, then the defendant has a duty to render assistance to prevent further harm. The duty can arise even when the defendant's conduct is not negligent, and even if the plaintiff is partially to blame for the peril. Here, even though Dante was not negligent, and Pauline may have been partially to blame for falling out of the boat, Dante has an obligation to make reasonable efforts to rescue Pauline because his actions caused the peril.

What does ​res ipsa loquitur​ mean?

es ipsa loquitur​ means "the thing speaks for itself."