Torts Midterm 2021 MBEs

While driving well within the speed limit, Mitchell came around a sharp curve in Rocky Mountain Park on a clear night and suddenly encountered an enormous elk. It was impossible for Mitchell to stop in time to avoid hitting the elk which was killed instantly. Mitchell recognized that the elk in the road posed a risk of additional collisions by subsequent drivers, but he made no attempt to remove it or set up some sort of warning device. Just as Mitchell was driving away, Chung, also proceeding within the speed limit, rounded the same curve in a subcompact car and being similarly unable to stop in time, slammed into the elk carcass and was seriously injured. Kingman was driving right behind Chung, heard Chun<s squealing brakes before he actually rounded the curve, and was able to avoid a third collision. Kingman ran to Chung's rescue, but having successfully removed Chung from the perilous position in the subcompact in the middle of the road, suffered a heart attack. If Kingman brings suit against Chung for his damages resulting from the heart attack, what will be the probable outcome? (A) Chung will win because he was not negligent. (B) Chung will win because Mitchell was the cause of Kingman's injuries. (C) Kingman will win because be saved Chung's life. (D) Kingman will win because rescuers are always foreseeable and therefore owed a duty of reasonable care.

(A) Chung will win because he was not negligent.

A woman ordered a hamburger at her favorite resburant. When she took a bite of it, she felt something hard and sharp pierce her tongue. Upon inspection, she discovered a shard of glass embedded in the burger paty. The woman needed stiches and she was unable to eat solid foods until the wound healed. The woman filed a negligence suit against the restaurant for damages stemming from the cut on her tongue. At trial, the woman introduced evidence establishing that the shard of glass was embedded in the burger patty when she bit into the burger. The woman also established that all of the burger patties were made in the restaurants kitchen and only the restaurant's employees had access to the kitchen. Following the presentation of the woman's case, the restaurant moved for a directed verdict. Is the restaurant's motion for a directed verdict likely to succeed? (A) No, because negligence will be inferred based upon the circumstantial evidence presented. (B) No, because the restaurant is strictly liable for the woman's injuries as a seller of the burger. (C) Yes, because the woman did not prove that the restaurant failed to use reasonable care when making the burger. (D) Yes, because the woman failed to produce direct evidence of the restaurant's negligence.

(A) No, because negligence will be inferred based upon the circumstantial evidence presented.

A bus passenger was seated next to a woman whom he did not know. The woman stood to exit the bus, leaving a package on the seat. The passenger lightly tapped the woman on the back to get her attention and to inform her that she had forgotten the package. Because the woman had recently had back surgery, the tap was painful and caused her to twist and seriously injure her back. If the woman sues the passenger to recover for the back injury, will she prevail? (A) No, because she is presumed to have consented to the ordinary contacts of daily life. (B) No, because she was not put in apprehension because of the touching. (C) Yes, because the passenger intentionally touched her. (D) Yes, because the passenger's intentional touching seriously injured her.

(A) No, because she is presumed to have consented to the ordinary contacts of daily life.

A woman told her friend that she believed she had a peanut allergy, although it had not been diagnosed. In an attempt to prove her long-held theory that peanut allergies do not really exist, the friend decided to surreptitiously give the woman some peanuts. The friend invited the woman over for lunch, assuring her that the lunch was peanut-free. In fact, the friend had substituted peanuts for pine nuts in the pesto on their sandwiches. After they were finished eating, the friend began to feel guilty and admitted to her plan. When the woman saw hives forming on her arm, she decided to go to the doctor. The doctor told the woman that the hives were likely due to anxiety, but that he would provide ointment. Due to a mix-up, the doctor ordered the nurse to provide the woman with an antibiotic to which the woman was allergic. The woman suffered a severe reaction to the antibiotic. The woman sued her friend and the doctor for negligence. The friend has filed a motion to dismiss the claims against her. Is the friend likely to succeed in having claims against her dismissed? (A) No, because the doctor's error and the resulting harm were foreseeable. (B) No, because the friend's actions were the direct cause of the woman's injuries. (C) Yes, because the doctor's error was the direct cause of the woman's injuries. (D) Yes, because the doctor's error was a superseding cause of the woman's injuries.

(A) No, because the doctor's error and the resulting harm were foreseeable.

A local health ordinance requires employees in any type of rebil establishment to wash their hands after using the restroom or eating at work to prevent the spread of bacteria. An employee at a tactical gear store started his shift at 9:00 AM. At 11:30 AM, the employee used the restroom but forgot to wash his hands. At noon, the employee ate a greasy hamburger and fries. While he was eating, a customer entered the store looking to purchase a gun. The customer was paicularly interested in a revolver that the employee showed him, but he did not know how to load bullets into it. The employee put down his lunch and demonstrated how to load bullets into the revolver's chamber. After he closed the chamber, the employee's greasy hand slipped on the revolver and he accidentally pushed the trigger, causing the revolver to fire a bullet. Luckily, the bullet only grazed the customer's arm, causing minor injury. If the customer files suit against the employee for damages relying solely upon the doctrine of negligence per se, is he likely to prevail? (A) No, because the ordinance was not designed to prevent the harm caused by the employee. (B) No, because the customer was not part of the class of people the ordinance was intended to protect. Yes, because the employee did not wash his hands after using the restroom. (D) Yes, because the employee should have washed his hands as they were greasy.

(A) No, because the ordinance was not designed to prevent the harm caused by the employee.

A pedestrian was crossing a street at a crosswalk. A jogger who was on the sidewalk nearby, saw a speeding automobile heading in the pedestrian's direction. The jogger ran into the street and pushed the pedestrian out of the path of the car. The pedestrian fell to the ground and broke her leg. In an action for battery brought by the pedestrian against the jogger, will the pedestrian prevail? (A) Yes, because the jogger could have shouted a warning instead of pushing the pedestrian out of the way. (B) Yes, if the pedestrian was not actually in danger and the jogger should have realized it. (C) No, because the driver of the car was responsible for the pedestrian's injury. (D) No, if the jogger's intent Was to save the pedestrian, not to harm her.

(B) Yes, if the pedestrian was not actually in danger and the jogger should have realized it.

The manager at a dairy factory examined a giant spinning drum used to churn butter, concluding that a mechanism inside of the drum needed repair. He hired a mechanic to repair the drum. Per his managerial duties, the manager was required to post a "do not operate" sign to front of the drum, but he forgot to do so. While the mechanic was inside of the drum Wing to fix it, the door to the drum accidentally fell shut. The mechanic had no way of opening the drum from the inside. A factory worker assumed that the drum was functional beause the door was dosed, there was no sign of the mechanic, and the mandated "do not operate" sign was not posted on the drum. The factory worker tumed on the drum to see if it worked, and the drum started to spin with the mechanic still inside. The mechanic, who had passed out from a lack of oxygen, sustained serious injuries. The parties agree that the factory worker was negligent in operating the drum without first checking to ensure that it was empty. If the mechanic files a negligence suit against the manager, will he succeed? (A) Yes, because the actions of the factory worker were foreseeable. (B) Yes, because the manager is strictly liable for injuries resulting from an abnormally dangerous activity. (C) No, because the factory worker's conduct was a superseding cause of the mechanic's injuries. (D) No, because the extent of harm suffered by the mechanic was not foreseeable.

(A) Yes, because the actions of the factory worker were foreseeable.

A patient visited his physician to get an influenza vaccine. Before seeing his physician, the patient completed a form that, among other things, asked the patient to list his allergies. The patient, believing that the question referenced allergies to medication, listed the medication to which he was allergic. He did not list his food allergies, which include eggs. Before administering the vaccine, the physician had a discussion with the patient regarding various side effects associated with the vaccine. They did not specifically discuss the patient's allergies. The physician administered the vaccine, which is made with eggs. The patient had a severe allergic reaction, and died shortly after. Would the physician be liable in a negligence action for the patient's death? (A) Yes, because the physician did not obtain informed consent. (B) Yes, because the physician did not exhibit the same skill, knowledge, and care of a doctor of similar education and experience. (C) No because the physician exhibited the same skill, knowledge, and care as another physician in the community. (D) No, because the physician acted in a reasonably prudent manner.

(A) Yes, because the physician did not obtain informed consent.

As an encyclopedia salesman approached the grounds on which a house was situated, he saw a sign that said, "No salesmen. Trespassers will be prosecuted. Proceed at your own risk." Although the salesman had not been invited to enter, he ignored the sign and drove up the driveway toward the house. As he rounded a curve, a powerful explosive charge buried in the driveway exploded, and the salesman was injured. Can the salesman recover damages from the homeowner for his injuries? (A) Yes, if the homeowner was responsible for the explosive charge under the driveway. (B) Yes, unless the homeowner, when he planted the charge, intended only to deter, not to harm, a possible intruder. (C) No, because the salesman ignored the sign, which warned him against proceeding further. (D) No, if the homeowner reasonably feared that intruders would come and harm him or his family.

(A) Yes, if the homeowner was responsible for the explosive charge under the driveway.

A driver was traveling along a highway during an unusually heavy rainstorm when the roadway began to flood. To protect his car from water damage, the driver pulled his car up a steep, unmarked driveway abutting the highway that led to a homeowner's residence. The driver left his car parked in the driveway and walked home, intending to return when the floodwater had subsided. Shortly after the driver started to walk home, the homeowner carefully rolled the car back down his driveway and parked it on the highway shoulder. The floodwater continued to rise and caused damage to the driver's car. If the driver sues the homeowner to recover for damage to the car, is the driver likely to prevail? (A)Yes, because the driver was privileged to park his car on the homeowner's property. (B) Yes, because there were no "no trespassing" signs posted. (C)No, because the driver intentionally drove his car onto the homeowner's property. (D) No, because the homeowner was privileged to remove the car from his property

(A)Yes, because the driver was privileged to park his car on the homeowner's property.

A host pointed an unloaded revolver at her guest threatening to shoot him. The guest knew that the revolver was not loaded, and that the ammunition for the revolver was stored in a locked basement closet, two stories below where the two were then standing. In an action brought by the guest against the host for assault, will the guest prevail? (A) No, because the host did not intend to shoot her guest. (B) No, because the host did not put her guest in apprehension of an imminent contact. (C) Yes, because the ammunition was accessible to the host. (D) Yes, because the host threatened her guest with a revolver.

(B) No, because the host did not put her guest in apprehension of an imminent contact.

A college student was asleep in his bed in a college dormitory when his roommate, in a drunken fury, entered their room intending to attack the student with an ice pick while he slept. Fortunately, the phone rang and awakened the student. The roommate retreated quickly and threw the ice pick under his own bed in the same room. The next day, the student heard from friends about the roommate's murderous plans and later found the ice pick under the roommate's bed. Even though the college expelled his roommate, the student remained extremely upset and afraid to sleep. In a suit against the roommate for assault, will the student prevail? (A) No, because the roommate did not touch the student. (B) No, because the student was not awake when the roommate entered the room and was unaware until later that the roommate was intending to attack him. (c) Yes, because it was reasonable for the student to feel afraid of sleeping in his room afterward. (D) Yes, because the roommate intended to inflict serious harm.

(B) No, because the student was not awake when the roommate entered the room and was unaware until later that the roommate was intending to attack him.

A customer fell and injured himself when he slipped on a banana peel while shopping at a grocer's store. The banana peel was fresh and clean except for a mark made by the heel of the customer's shoe. In an action brought by customer against the grocer, these are the only facts in evidence. Should the trial judge permit the case to go to the jury? (A) No, because the customer had an obligation to watch where he stepped. (B) No, because there is not a reasonable basis for inferring that the grocer knew or should have known of the banana peel. (C) Yes, because it is more likely than not that the peel came from a banana offered for sale by the grocer. (D) Yes, because the grocer could foresee that a customer might slip on a banana peel.

(B) No, because there is not a reasonable basis for inferring that the grocer knew or should have known of the banana peel.

A warehouse located in an urban area had been vacant for several years. Although the warehouse was not being used, the owner of the warehouse maintained the building in conformity with all state and local laws and regulations. One evening, thieves entered the warehouse and stripped the copper wiring from the building. In the process, the thieves damaged a stone cornice above the warehouse's main entryway. Shortly thereafter, the cornice collapsed and injured a pedestrian. The pedestrian initiated a negligence suit against the warehouse owner, and the warehouse owner filed a motion to dismiss the case. Which of the following findings would be sufficient to support the warehouse owner's motion to dismiss? (A)The theft of the copper wiring was an unforeseeable intervening cause of the cornice collapse. (B) The copper wire theft and the cornice collapse were unforeseeable. (C) The pedestrian was more than half at fault for the injuries sustained. (D) The warehouse owner had maintained the building in conformity with state and local laws and regulations.

(B) The copper wire theft and the cornice collapse were unforeseeable.

As a result of her neighbor's negligence, a baker's shoulder and eye were both injured. The baker immediately went to her eye doctor who treated the injury to the baker's eye but suggested that she see an orthopedist for treatment of her shoulder. The following day, the baker visited an orthopedist who treated baker's shoulder. Because of the negligent treatment by the eye doctor, baker's nose became infected and, because of negligent treatment by the orthopedist, she lost the use of her elbow. In an action by baker against the eye doctor, what is the court most likely to hold the eye doctor liable for? (A) Nothing, since all the injuries were caused by the negligence of the neighbor. (B) The injury to baker's nose, since it was the only one of her injuries which was caused by his negligence. (C) In injury to bakers nose and the injury to baker's elbow, since both were caused by his negligence. (D) The injuries to baker's nose, shoulder, and elbow since all were caused by his negligence.

(B) The injury to baker's nose, since it was the only one of her injuries which was caused by his negligence.

An adult amateur baseball player was practicing hitting baseballs on a tee in his backyard. Although the player had set up a net right in front of the tee in order to stop the ball after each swing, and a six-foot tall solid wooden fence surrounded the player's backyard, his wife had pointed out that a reasonable person would have practiced elsewhere. At the same time that the player was taking batting practice, unbeknownst to him, his next-door neighbor was in his own back yard, preparing to cook dinner on his charcoal grill while chatting with an uninvited guest. The player made a poor swing and popped the ball up over the top of the net. The ball headed toward the neighbor's yard, where the neighbor had lit the charcoal grill and was standing over the flame holding a half-bottle of lighter fluid. As the ball sailed over the fence, the neighbor's guest saw it. The guest lunged for the ball and caught it, but in the process accidently hit the neighbor's arm, which made the neighbor drop the bottle of lighter fluid into the grill. The grill exploded into a huge fireball, and the neighbor suffered severe burns. If the neighbor sues the player for his injuries, what is the most likely outcome? (A) The neighbor prevails, because the guest, as a licensee, is not liable to the neighbor. (B) The neighbor prevails, because the player's actions were the actual and proximate cause of the neighbor's injuries. (C) The neighbor prevails, because the guest's conduct was the superseding cause of the neighbor's injuries . (D) The player prevails, because he had no actual knowledge of the neighbor's activities.

(B) The neighbor prevails, because the player's actions were the actual and proximate cause of the neighbor's injuries.

An isolated community on a remote U.S. island used underwater spikes to catch a certain local type of fish. An international resort chain built a resort not far from the community's most prolific fishing area, which was maintained by an association of local fisherman. One of the resort's guests inadvertently stepped on one of the spikes, injuring his foot. The guest sued both the resort and the association. The association's defense is based on the fact that the fishing technique is a longstanding custom in the community. Is the court likely to consider the association's defense? (A) Yes, because traditional activities sanctioned by the relevant community as a whole will not be considered unreasonable (B) Yes, because evidence of a community custom may be considered in establishing a standard of care (C) No, because the special standard of care applied to innkeepers would apply in this case. (D) No, because evidence of the tradition is inadmissible to establish a standard of care.

(B) Yes, because evidence of a community custom may be considered in establishing a standard of care

A child was playing mini-golf at a recreation center when she went into an artificial creek to retrieve a lost ball. A high fence with a childproof lock surrounded the creek, but, the child's mother opened the lock to let her daughter into the creek area to quickly retrieve the ball. When the girl reached into the creek, she was electrically shocked by a live wire from a motorized windmill that had fallen in the creek. She suffered from long-term disability because of the electric shock. The family of the child filed a claim against the recreation center. The recreation center filed a response claiming it was not liable for the accident because it posted warnings that the creek was dangerous and surrounded it with a high fence that could not be opened without the intervention of an adult. Under the traditional approach, is the recreation center likely to be successful in defending the suit? (A) Yes, because the child entered a prohibited area. (B) Yes, because the creek was surrounded by a locked fence with warnings. (C) No, because the creek was abnormally dangerous. (D) No, because the creek was an attractive nuisance.

(B) Yes, because the creek was surrounded by a locked fence with warnings.

A neighbor, who lived next door to another homeowner, went into the homeowner's garage without permission and borrowed the homeowner's chainsaw. The neighbor used the saw to clear broken branches from the trees on the neighbor's own property. After he had finished, the neighbor noticed several broken branches on the homeowner's trees that were in danger of falling on the homeowner's roof. While the neighbor was cutting the homeowner's branches, the saw broke. In a suit for conversion by the homeowner against the neighbor, will the homeowner recover? (A) Yes, for the actual damage to the saw. (B) Yes, for the value of the saw before the neighbor borrowed it. (C) No, because when the saw broke the neighbor was using it to benefit the homeowner. (D) No, neighbor did not intend to keep the saw.

(B) Yes, for the value of the saw before the neighbor borrowed it.

A customer fell and injured himself when he slipped on a banana peel while shopping at a grocer's store. The banana peel was fresh and clean except for a mark made by the heel of the customer's shoe. In an action brought by the customer against the grocer, these are the only facts in evidence. Should the trial judge permit the case to go to the jury? (A)No because the customer had an obligation to watch where he stepped. (B)No because there is not a reasonable basis for inferring that the grocer knew or should have known of the banana peel. (C)Yes because it is more likely than not that the peel came from a banana offered for sale by the grocer. (D)Yes because the grocer could foresee that a customer might slip on a banana peel.

(B)No because there is not a reasonable basis for inferring that the grocer knew or should have known of the banana peel.

Statutes in the state provide that persons under the age of 20 are incompetent to enter into contracts, may not marry, without written consent of their parents, may not lawfully purchase alcoholic beverages, and are subject to local curfew regulations. A 19-year-old girl was fishing for pleasure from a pier in the state when she accidentally struck a fisherman in the eye with a fishhook on the end of her line. The fisherman commenced a negligence action against the girl. Why should the trial court find that the girl was negligent? (A) She failed to act like a reasonable 19-year-old with her experience and intelligence. (B) Fishing is an adult activity. (C) At 19 she is old enough to be treated as an adult by the law of torts. (D) The risk of injury caused by her use of the fishhook outweighs the utility of fishing for pleasure.

(C) At 19 she is old enough to be treated as an adult by the law of torts.

A traveler was flying on a commercial aircraft owned and operated by an airline. The aircraft crashed into a mountain, killing everyone on board. The flying weather was good. The traveler's legal representative brought a wrongful death action against the airline. At trial, the legal representative offered no expert or other testimony as to the cause of the crash. On the airline's motion to dismiss at the conclusion of the legal representative's case, the court should: (A)Grant the motion because the legal representative has offered no evidence as to the cause of the crash. (B) Grant the motion because the legal representative has failed to offer evidence negating the possibility that the crash may have been caused by a preventable mechanical failure. (C) Deny the motion because the jury may infer that the aircraft crashed due to the airline's negligence. (D)Deny the motion because in the circumstances common carriers are strictly liable.

(C) Deny the motion because the jury may infer that the aircraft crashed due to the airline's negligence.

A man owned a pet store in which all animals were in a cage, but he often left some of the cages of his favorite dogs unlocked. During the parade in town, the loud noises made the animals behave uncharacteristically, and all of the man's dogs escaped. A dog bit a woman on the street near the pet store. Though no one saw exactly which dog bit the woman, witnesses did state that the dog that bit the woman was one of a pack that was running down the street around the time the man later claimed his dogs had escaped. The woman brought a negligence claim against the man, who filed for a directed verdict after no one was able to determine whether any evidence might link any of his dogs in particular to the dog bite. The jurisdiction has no specific dog-bite statute. How should the court rule on the man's motion? (A) Grant the motion, as there is no direct evidence the man was negligent. (B) Grant the motion, as there is no direct evidence demonstrating which, if any, of the man's dogs bit the woman. (C) Deny the motion, as the issue of the man's negligence must be decided by the trier of fact. (D) Deny the motion, as there is no dog-bite statute in the jurisdiction.

(C) Deny the motion, as the issue of the man's negligence must be decided by the trier of fact.

A nine-year-old boy's parents decided to use him to help publicize their motorcycle shop. They built a custom motorcycle and entered him in several off-road motorcycle racing events. At one such event, the boy is overwhelmed by the noise and by the presence of so many spectators that he becomes confused. He mishandles his motorcycle and drives off the course into a crowd of spectators. One spectator is injured and brings a lawsuit against the boy for negligence. At trial, a psychiatric expert testifying for the defense says that the boy's reactions were normal for a nine-year-old, and he did nothing most children his age would not have done. The boy's attorney argues that this shows that the boy was not negligent because he acted reasonably given his age. Will the attorney's argument be successful? (A) No, because common care is not necessarily reasonable care. (B) Yes, because the boy acted as a reasonable person of his age would have acted under the circumstances. (C) No, because the boy's actions must be judged according to the standard of care for adults. (D) Yes, because the negligence that caused the accident was the negligence of the boy's parents in entering him in the race.

(C) No, because the boy's actions must be judged according to the standard of care for adults.

The driver was driving at an unreasonably fast rate of speed, when, as a result, he collided with a hunter's car that was standing unattended against the curb. The impact caused a loaded rifle that the hunter had left in the back seat of the car to fire. The bullet went through the car window and traveled four blocks before striking a painter who was leaving a paint factory after work. Although the painter had lost the sight in his left eye in an accident that occurred when he was a child, he was employed by the paint factory as a color coordinator. As a result of being stuck by the bullet from the hunter's rifle, the painter lost the sight in his right eye. This rendered him totally blind, causing him to lose his job. The painter subsequently asserted a negligence claim against the driver, alleging permanent loss of earning capacity in addition to other items of damage. Which of the following is the driver's most effective argument in defense against the painter's claim for permanent loss of earning capacity? (A) The painter was a super-sensitive plaintiff, since he was already blind in his one eye. (B) The hunter acted unreasonably by leaving a loaded rifle in the back seat of his car. (C) The painter was outside the foreseeable zone of danger. (D) The reasonable person would not have expected that the driver's conduct would cause any person to be rendered blind.

(C) The painter was outside the foreseeable zone of danger.

While approaching an intersection with the red light against him, a motorist suffered a heart attack that rendered him unconscious. The motorist's car struck a child, who was crossing the street with the green light in her favor. Under the state vehicle code, it is an offense to drive through a red traffic light. The child sued motorist to recover for her injuries. At trial it was stipulated that 1) immediately prior to suffering the heart attack, the motorist had been driving within the speed limit, had seen the red light, and had begun to slow his car; 2) the motorist had no history of heart disease and no warning of the attack; 3) while the motorist was unconscious, his car ran the red light. On motions made by both the motorist and the child for directed verdicts, the court should (A) grant the child's motion, because the motorist ran a red light in violation of the motor vehicle code. (B) grant the child's motion, because in the circumstances, reasonable persons would infer that the motorist was negligent. (C) grant the motorist's motion, because he had no history of heart disease or warning of the heart attack. (D) deny both motions and submit the case to the jury, to determine whether, in the circumstances, the motorist's conduct was that of a reasonably prudent person.

(C) grant the motorist's motion, because he had no history of heart disease or warning of the heart attack.

A thief was in the act of siphoning gasoline from his neighbor's car in the neighbor's garage and without his consent when the gasoline exploded and a fire followed. A rescuer, seeing the fire, grabbed a fire extinguisher from his car and put out the fire, saving the thief's life and the neighbor's car and garage. In doing so, the rescuer was badly burned. If the rescuer asserts a claim against the neighbor for personal injuries, the rescuer will (A) prevail, because she saved the neighbor's property. (B) prevail, because she acted reasonably in an emergency. (C) not prevail, because the neighbor was not at fault. (D) not prevail, because the rescuer knowingly assumed the risk.

(C) not prevail, because the neighbor was not at fault.

A customer pledged a stock certificate to a bank as security for a loan. A year later, when the customer fully repaid the loan, the bank refused the customer's demand to return the stock certificate because the officer dealing with the loan had the mistaken belief that there was still a balance due. No one at the bank reviewed the records until two months later, at which time the error was discovered. The bank then offered to return the stock certificate. However, the customer refused to accept it. At the time the customer pledged the certificate, the shares were worth $10,000; at the time the customer repaid the loan, the shares were worth $20,000; and at the time the bank offered to return the certificate, the shares were worth $5,000. If the customer brings an action against the bank based on conversion, how much, if anything, should the customer recover? (A) Nothing, because the bank lawfully came into possession of the certificate. (B) $5,000, because that was the value of the shares when the customer refused to accept the certificate back. (C) $10,000, because that was the value of the shares when the bank came into possession of the certificate. (D) $20,000, because that was the value of the shares when the customer was entitled to the return of the certificate.

(D) $20,000, because that was the value of the shares when the customer was entitled to the return of the certificate.

Defendant is the supplier of telephone service to the city. Many of the wooden poles from which defendant's wires are strung have been standing for more than 40 years and are in a rotted condition. A driver lost control of his vehicle, because he was driving while intoxicated, and he collided with one of defendant's rotten poles. As a result of the collision, the pole fell over, striking a parked car an injuring the plaintiff, who was sitting in it. The force of the collision would have caused even a reasonably good pole to fall. In an action by the plaintiff against defendant, should the court find in plaintiffs favor? (A) Yes, because it was unreasonable for defendant to permit its poles to become rotten. (B) Yes, because it was foreseeable that if a pole fell, it would injure a person sitting in a parked car. (c) No, because the driver's conduct either amounted to gross negligence or was criminal. (D) No, because the force of the collision would have caused even a reasonably good pole to fall.

(D) No, because the force of the collision would have caused even a reasonably good pole to fall.

A man was hospitalized with chest pain. His physician ran diagnostic tests that revealed that the man was suffering an acute heart attack that required immediate surgical intervention. The physician informed the man of the need of surgery, and began to explain that the risks included surgical site infection. Before the doctor could explain other risks, the man stopped him and stated, "Please don't tell me anymore. I know I need the surgery, no matter the risks." The man underwent the surgery immediately thereafter. Due to an unforeseen complication, the man died on the operating table. The man's estate sued the physician for failure to inform the man of the risks of the surgery. The physician responded with the defense that the man had given informed consent for the surgery. Will the man's estate prevail in its action against the physician? (A) Yes, because the physician was bound to inform the patient of all potential risks of the surgery. (B) Yes, because the man did not give informed consent for the surgery. (C) No, because the physician was only required to inform the patient of the commonly known risks of the surgery. (D) No, because the man consented to the surgery after refusing to hear about all the risks

(D) No, because the man consented to the surgery after refusing to hear about all the risks

A basketball player suffered a serious injury while participating in an impromptu basketball game at a public park. The injury occurred when the player and his opponent each tried to obtain possession of the ball when it rebounded from the backboard after a missed shot at the basket. During that encounter, the player was struck and injured by the opponent's elbow. The player now seeks compensation from the opponent. At the trial, evidence was introduced tending to prove that the game had been rough from the beginning, that elbows and knees had frequently been used to discourage interference by opposing players, and that the player had been one of those making liberal use of such tactics. In this action, will the player prevail? (A) Yes, if the opponent intended to strike the player with his elbow. (B) Yes, if the opponent intended to cause a harmful or offensive contact with the player. (C) No, because the player impliedly consented to rough play. (D) No, unless the opponent intentionally used force that exceeded the player's consent.

(D) No, unless the opponent intentionally used force that exceeded the player's consent.

A sporting goods shop was burglarized by an escaped inmate from a nearby prison. The inmate stole a rifle and bullets from a locked cabinet. The burglar alarm at the sporting goods shop did not go off because the shop owner had negligently forgotten to activate the alarm's motion detector. Shortly thereafter, the inmate used the rifle and ammunition in a shooting spree that caused injury to a victim. If the victim sues the shop owner for the injury she suffered, will the victim prevail? (A) Yes, if the victim's injury would have been prevented had the motion detector been activated. (B) Yes, because the shop owner was negligent in failing to activate the motion detector. (C) No, because the storage and sale of firearms and ammunition is not an abnormally dangerous activity. (D) No, unless there is evidence of circumstances suggesting a high risk of theft and criminal use of firearms stocked by the shop owner.

(D) No, unless there is evidence of circumstances suggesting a high risk of theft and criminal use of firearms stocked by the shop owner.

A woman underwent gall bladder surgery, which was performed by the hospital's head surgeon. An intern observed the surgery and provided time updates to the surgical team, since the team had a limited time in which to complete the operation. The woman experienced significant pain following the surgery, and returned to her doctor. An X-ray revealed that a hemostat, which is an instrument typically used in gall bladder surgery, had been left in the woman's gall bladder. After the hemostat was removed, the woman continued to experience pain due to permanent injuries caused by a hemostat. The woman sued the head surgeon and the intern involved in her surgery. At trial, the woman did not provide any direct evidence that the surgeon or the intern had left the hemostat in her gall bladder. At the close of evidence, the intern moved for a directed verdict. The judge granted the motion. What is the most likely reason that the judge granted the intern's notion? (A) A negligence plaintiff must provide direct evidence of negligence. (B) The doctrine of res ipsa loquitur is inapplicable to medical malpractice claims. (C) The head surgeon was vicariously responsible for the intern's actions. (D) The intern did not have exclusive control over the hemostat.

(D) The intern did not have exclusive control over the hemostat.

A smoker and a nonsmoker were seated at adjoining tables in a small restaurant. The smoker's table was in the smoking section, and the nonsmoker's table was in the nonsmoking section. When the smoker lit a cigarette, the nonsmoker politely requested that he not smoke, explaining that she had a severe allergy to cigarette smoke. The smoker ignored the nonsmoker's request and continued to smoke. As a result, the nonsmoker was hospitalized with a severe allergic reaction to the smoke. The nonsmoker brought a battery action against the smoker. Which of the following questions will NOT be an issue in the battery action? (A) Did the smoker intend to cause the nonsmoker's contact with the cigarette smoke? (B) Does smoke have the physical properties necessary for making the kind of contact required for battery? (C) Is contact with cigarette smoke from a lawful smoking section in a restaurant the kind of contact one must endure as a voluntary restaurant patron? (D) Was the smoker's conduct unreasonable under the circumstances?

(D) Was the smoker's conduct unreasonable under the circumstances?

A restauranteur purchased a very old home, intending to do a substantial amount of work to modernize it and turn it into a restaurant. The restauranteur's final project was to have the living room, which he used as special event space, rewired because there were no overhead lights in the room, and it had to be lit solely by lamps. The homeowner hired a highly-recommended electrician. A few hours into the project, the electrician noticed some wiring that had been originally installed incorrectly. He realized that the project would take more work than he thought, and that there would be a possibility that even a small misstep would result in the temporary loss of electricity for the entire building. He notified the restauranteur, who told him to complete the project. During the second day of the project, the electrician made a mistake that resulted in the entire building losing electricity for 24 hours, causing significant amount of lost sales for the restauranteur. What standard applied to determine whether the electrician is liable? (A)Whether the electrician obtained informed consent from the restaurateur to complete the project. (B) Whether the electrician exercised the care of a reasonable electrician of similar intelligence, education, and experience. (C) Whether the electrician exercised the care of a reasonably prudent person under the same circumstances. (D) Whether the electrician exercised the same skill, knowledge, and care as another electrician in the community.

(D) Whether the electrician exercised the same skill, knowledge, and care as another electrician in the community.

Michael and Barbara were preparing to climb the sheer face of El Capitan in Yosemite Valley. At the top of the first traverse, they sat on a ledge while Michael retied a knot on the safety rope they were using, Michael climbed another 50 feet beyond Barbara and braced himself to hold the safety rope while Barbara covered that distance. Suddenly, Barbara fell and the knot in the safety rope slipped because Michael had tied it improperly. Rather than being caught immediately by the rope, Barbara fell ten feet and was dangling on the sheer face in an area where no hand or foot holds were available. Michael frantically tried to find a way to lower her to a small ledge approximately five feet below her, but in his haste slackened his tension on the safety rope, causing Barbara to fall to that ledge. Barbara broke her leg and had to be airlifted by helicopter off the face of the mountain. If Barbara initiates a negligence action against Michael, she will: (A) Lose, because Michael was acting under an emergency situation. (B) Lose, because she expressly assumed the risk by participating in an inherently dangerous activity. (C) Win, but only if Michael was negligent in lowering her to the ledge after she had fallen. (D) Win, if Michael was negligent in tying the safety rope knot.

(D) Win, if Michael was negligent in tying the safety rope knot.

The plaintiff and his friend were walking on a city sidewalk. The friend jokingly pushed the plaintiff after the plaintiff started making fun of the friend's taste in music. This caused the plaintiff to trip over his own feet and stumble into the bike lane of the street. The defendant driver, who was involved in a heated argument on his cell phone, had veered into the bike lane and did not see the plaintiff. He hit the plaintiff, causing the plaintiff numerous injuries. The plaintiff has sued the driver. The evidence at trial shows that the plaintiffs injuries were caused by the negligence of both the friend and the defendant. The state has adopted a system of pure several liability. Is the plaintiff likely to prevail in a negligence claim against the defendant? (A) No, because the plaintiffs injuries were caused by multiple tortfeasors. (B) No, because the state does not recognize joint and several liability. (C) Yes, because the defendant and the friend were independent tortfeasors. (D) Yes, because defendant's conduct was the actual cause of the plaintiffs injury.

(D) Yes, because defendant's conduct was the actual cause of the plaintiffs injury.

A rancher and his neighbor were involved in a boundary dispute. In order to resolve their differences, each drove his truck to an open pasture area on his land where the two properties were separated by a fence. The rancher was accompanied by four friends, and the neighbor was alone. The neighbor got out of his truck and walked toward the fence. The rancher got out but simply stood by his truck. When the neighbor came over the fence, the rancher shot him, inflicting serious injury. In a battery action brought by the neighbor against the rancher, the rancher testified that he actually thought his neighbor was armed, although he could point to nothing that would have reasonably justified this belief. Is the neighbor likely to prevail? (A) No, because the rancher was standing on his own property and had no obligation to retreat. (B) No, because the rancher suspected that the neighbor was armed. (C)Yes, because deadly force is never appropriate in a property dispute. (D) Yes, because it was unreasonable for the rancher to consider the use of a gun necessary for self-defense.

(D) Yes, because it was unreasonable for the rancher to consider the use of a gun necessary for self-defense.

A farmer kept antiques in an uninhabited farmhouse on his property. The farmhouse had been broken into several times in the past, and some of the farmer's goods had been stolen. Instead of posting "No Trespassing" signs, the farmer decided to install an alarm system to deter intruders. While the farmer was in the farmhouse installing the alarm system, he heard a window open in the adjoining room. The farmer crept very quietly to the door of the room, threw the door open, and found an intruder, a young child. The farmer immediately struck the child, a ten-year-old girl, very hard in the face, breaking her nose. In an action on behalf of the child against the farmer to recover for the injury to her nose, is the child likely to prevail? (A) No, because the farmer did not use deadly force. (B) No, because the farmer had probable cause to believe that the child was a thief. (C)Yes, because the farmer should have posted a "No Trespassing" sign. (D) Yes, because the farmer used excessive force.

(D) Yes, because the farmer used excessive force.

A law student rented a furnished apartment. His landlord began to solicit his advice about her legal affairs, but he refused to provide it. The landlord then demanded that he vacate the apartment immediately. The landlord also engaged in a pattern of harassment, calling the student at home every evening and entering his apartment without his consent during times when he was at school. During these unauthorized visits she removed the handles from the bath room and kitchen sinks, but did not touch anything belonging to the student. The lease has a year to run, and the student is still living in the apartment. The student has sued the landlord for trespass to land. Is he likely to prevail? (A) No, because he has no standing to sue for trespass. (B) No, because the landlord caused no damage to his property. (C) Yes, for compensatory damages only. (D) Yes, for injunctive relief, compensatory damages, and punitive damages.

(D) Yes, for injunctive relief, compensatory damages, and punitive damages.

A city has an ordinance that makes it an offense, punishable by fine, for the owner of a dog to permit the dog to run unleashed on a public way. A police officer observed a small dog running loose in the street. As he picked up the dog, an onlooker who was seated in her car lawfully parked at the curb, called out, "Oh, thank you, Officer, for retuming Fido." The officer asked the onlooker whether the dog was hers, and when she acknowledged ownership, he asked her to see her driver's license. The onlooker gave her name and address, but she refused to produce a driver's license. The officer then told her to produce her driver's license if she did not want to go to jail. The onlooker responded by saying, "Isn't this ridiculous?" The officer took her by the arm and said, "Let's go. You are under arrest." The onlooker cried out that the officer was hurting her but he refused to release her arm, and she struck him with her free hand. The officer then dragged the onlooker from her car, forced her into his squad car, and took her to the police station. The incident took place on the street in front of the apartment where the onlooker and her aged father lived. The officer did not know that the aged father had observed what took place from a window in the apartment. If the onlooker's aged father asserts a claim against the officer for intentional infliction of emotional distress, will the aged father prevail? (A) Yes, if the officer's acts caused the aged father severe emotional distress. (B) Yes, if it is found that the officer's behavior was extreme and outrageous with respect to the onlooker. (c) No, because the officer did not know that the aged father was watching. (D) No, because the aged father was not within the zone of physical danger.

(c) No, because the officer did not know that the aged father was watching.

Hugh was collecting beaver pelts for his employer when he got separated from the rest of the group deep in the forest in the middle of winter. As he stumbled through the forest a blizzard began, obscuring his vision as the sun began to fall. Right as he was beginning to think he wouldn't survive the night, Hugh came across a log cabin in the middle of the woods. Thankfully the door was unlocked, and he found the cabin unoccupied but well stocked with cans of beans. He ate two cans of beans and waited out the blizzard until leaving the next morning. The owner of the cabin wants to bring action against Hugh, claiming damages from the eaten food and the use of his log cabin. Will he recover anything? A) Hugh will have to pay for the two cans of beans, but that is all. B) Hugh will have to pay for the two cans of beans and the value of a night's rent of the cabin. C) Hugh will not have to pay for anything because of the life-and-death circumstances of his use. D) Hugh will have to pay the value of a night's rent of the cabin, but that is all.

A) Hugh will have to pay for the two cans of beans, but that is all.

A tenant invited a friend over for dinner. On his arrival, the friend stepped on a split board on the front steps and the board broke, causing him to lose his balance amd break his ankle. If the friend sues the tenant for his injuries and does not prevail, it will be because: A. the friend should have noticed the dangerous condition himself. B. the friend arrived an hour earlier than his invitation specified. C. the tenant stayed beyond the lease term and no longer had the legal right to occupy the premises. D. in the lease, the landlord had undertaken the duty to discover and repair dangerous conditions on the premises.

A. the friend should have noticed the dangerous condition himself.

Joey Wheeler, a young boy, was playing cards with a friend on the front porch while his father was inside the house. Their next door neighbor was Seto, who had a prized set of rare lawn gnomes lining his concrete patio. After winning the game, Joey excitedly threw a single card across the patio. It twirled and twirled until colliding with a single lawn gnome with just enough force to send it crashing to the concrete, shattering. Seto ran outside and, in a fit of rage, threatened to kill Joey. Joey ran inside and told his father how he broke the gnome, and the threat that was made. Joey himself was actually not terribly troubled, but his father was severely disturbed by the threat made by Seto. He had a serious emotional breakdown as a result, requiring extensive therapy. The father wants to recover for emotional distress. Can he? A) No, because Seto did not physically touch or harm Joey. B) No, because the father was not on the porch when the threat occurred. C) Yes, despite the father not being on the porch when the threat occurred. D) Yes, because the father would not have suffered emotional distress but for the threats made by Seto to Joey.

B) No, because the father was not on the porch when the threat occurred.

A camper at a state park built a campfire within a fire ring on calm day according to approved procedures. Just as a sudden strong wind arrived and blew some embers onto the grass, a large bear came out of the woods and charged at the camper. The camper ran to his car, which was some distance away, with the bear in close pursuit. By the time the bear left and the camper was able to exit his car and summon assistance, the embers in the grass had started a brush fire. The fire destroyed another camper's equipment and autombile at a nearby campsite before it could be extinguished. The other camper sued the camper who started the fire. At trial, the parties sitpulated to the above facts. The plaintiff introduced into evidence a state statute that prohibited leaving any campfires unattended and required them to be extinguished immediately if any embers were blown out of the fire ring. At the conclusion of the proofs, both parties moved for a directed verdict. The court should: A. Deny both motions, because the jury should make the factual determination of whether the defendant was negligent. B. Grant the defendant's motion, because the plaintiff has not established a prima facie case of negligence. C. Grant the plaintiff's motion because a brush fire caused by a campfire does not ordinarily happen inthe absence of negligence by the camper. D. Grant the plaintiff's motion, because the statute was intended to prevent the type of harm that occurred, making the statutory standard applicable.

B. Grant the defendant's motion, because the plaintiff has not established a prima facie case of negligence.

A pedestrian crossed the street at a crosswalk without looking for oncoming traffic. He was struck first by a car and then by a truck. The pedestrian sued both the driver of the car and the driver of the truck for negligence. The jury determined that the pedestrian was 60% at fault, the driver of the car 30% at fault, and the truck driver 10% at fault. The jury also determined that the pedestrian suffered damages of $100,000. The driver of the car is insolvent. In a pure comparative negligence jurisdiction retaining traditional joint liability rules, how much can the pedestrian collect from the driver of the truck? A. $100,000 B. Nothing C. $10,000 D. $40,000

D. $40,000

A driver traveling the speed limit in the evening on a quiet county road rounded a curve and struck a bicyclist who was riding in the same lane. The driver stopped the car and inspected the bicyclist, who had a broken leg. The driver thought it best not to try to move the bicyclist, so he told him that he would go to get help. The driver drove away and left the bicyclist by the side of the road. After the driver left the scene, he realized that he had forgotten his wife's birthday, so he stopped to buy a gift and hurried home. He did not remember the bicyclist until a few hours later, but assumed that by that time, someone would have come along to render assistance. However, the bicyclist was not rescued until the following morning. By then he had contracted pneumonia as a result of exposure. The bicyclist sued the driver to recover damages for his broken leg and pneumonia. If the jury finds that the driver was not negligent in his operation of his automobile, the bicyclist will most likely: A. Recover for both the leg injury and the pneumonia. B. Recover for the leg injury but not the pneumonia. C. Not recover for either the leg injury or the pneumonia. D. Recover for the pneumonia but not the leg injury.

D. Recover for the pneumonia but not the leg injury.

A teenager who was totally blind in one eye and had only 10% vision in the other could not obtain a driver's license. Nevertheless, on his 18th birthday, he borrowed his father's car and took his girlfriend for a ride. With his 10% vision in one eye, he was able to stay in the correct lane and avoid oncoming traffic, but he failed to see a jogger on the edge of the highway. The teenager's car hit the jogger, causing serious injury. If the jogger prevails in a negligence suit against the teenager, it will be because: A. The teenager failed to exercise ordinary and reasonable care under the circumstances. B. The teenager violated the law when he drove without a license. C. The teenager failed to exercise the amount of care that an 18-year old of like education, intelligence, and experience would have exercised. D. The teenager failed to exercise the ordinary and reasonable care that a person with the teenager's disability would have exercised.

D. The teenager failed to exercise the ordinary and reasonable care that a person with the teenager's disability would have exercised.

Daryl drove his motorcycle to a street taco stand. When he rode up to the window, Carl the Cashier told him that they had just run out of tacos. Daryl got very upset and produced a crossbow from his bag. He aimed the crossbow and let loose a bolt with the intention of hitting Carl Cashier, instead, the bolt flew past Carl and instead hit Terry, who had just ordered the last taco. Terry is seeking an action against Daryl for battery. Can he succeed? A. No, because Daryl didn't intend to hit Terry with the crossbow bolt. B. No, because he did not know that Terry was nearby, and could not have foreseen any harm to him. C. Yes, because the proximity of Terry to the taco stand made his harm a near certainty. D. Yes, because Daryl intended to shoot Carl.

D. Yes, because Daryl intended to shoot Carl.