Torts I (eBook)
Q 88) Under contract with a large insurance underwriter, a local insurance company, for underwriting purposes, performed a property inspection of an insured's sugar refinery plant on a weekend when the plant was not operating. An explosion at the plant later injured two of the plant's workers. The condition that caused the explosion at the plant existed when the local insurance company performed its risk assessment. In a lawsuit by the injured workers against the local insurance company for negligently failing to find the condition that caused the explosion, which of the following is the most likely outcome?
A judge will grant summary judgment in favor of the local insurance company because the insurance company performed the inspection of the insured's business exclusively for underwriting purposes.
Q 47) A truck collided with several cattle which had escaped from a ranch pen and wandered onto a road. The truck driver sued the rancher for negligence and asked the trial judge to instruct the jury on the doctrine of res ipsa loquitur. The rancher argued that res ipsa loquitur could not apply, but the trial judge disagreed. Which of the following is most likely to be the proper instruction for the court to give to the jury about the effect of res ipsa loquitur?
Res ipsa loquitur creates a permissible inference of negligence, meaning that the truck driver has the burden of persuading the jury that it should infer that the rancher was somehow negligent.
Q 59) A twelve year-old took a walk to a nearby neighborhood and was drawn to a waterfall located in the back expanse of woods on a neighbor's property. The neighbor had cut some trees to create a trail up to the waterfall for his family. The child decided instead to climb up on the rocks at the sides of the waterfall. The rocks were slippery from the waterfall spray and the child thought that climbing slippery rocks would be more challenging and more fun. She slipped and fell, suffering serious injuries. In a suit by the child against the neighbor, which of the following is most accurate as to the application of the attractive-nuisance doctrine recognized in the jurisdiction?
The attractive nuisance doctrine does not apply because the neighbor did not maintain a dangerous artificial condition that injured the child.
Q92) A three year-old and seven year-old were playing soccer in the front yard of their house with their father. The seven year-old kicked the ball too hard and it went into the street. The three year-old ran to get it, despite her father and brother yelling at her to stop. The seven year-old, who was closer, ran after her. A driver who was driving under the speed limit hit both children, causing injuries to both. In the suit brought on behalf of the children, which of the following is most accurate about the contributory negligence of the children?
The three year-old is presumed incapable of negligence, while the conduct of the seven year-old of care will be measured by the conduct of reasonably careful child of same age, intelligence, maturity, training, and experience.
Q 19) A homeowner decided to put her house up for sale. She met a person who was interested in buying a house, and she invited this person over to visit her house and take a look at it. While touring the house, the visitor fell down a stairway leading to the basement and sustained serious injuries. The stairway did not have a handrail. If there had been a handrail, the fall and resulting injuries would not have occurred. The injured visitor sued the homeowner for negligence. The relevant county's building code prohibits anyone from constructing or maintaining a stairway in a house without a handrail. The homeowner was not aware that the building code required stairways to have handrails. Can the injured visitor prevail on a negligence per se claim against the homeowner?
Yes, because the homeowner violated the building code by maintaining a stairway without a handrail.
Q73) Driver 1 and Driver 2 are involved in a car accident. Driver 1 sues Driver 2 for negligent driving and Driver 2 files a counterclaim for Driver 1's negligent driving. Assume that the jury finds that Driver 1 is responsible for 50% of the damages and that Driver 2 is responsible for 50% of the damages. Driver 1 has suffered $100,000 in damages. Driver 2 has suffered $200,000 in damages. In a state with the following statute, what will Driver 2 recover from Driver 1 on the counterclaim? "In an action based on negligence, the jury should apportion the total damages resulting from the loss or injury according to the proportionate fault of each party. A plaintiff is not barred from recovering damages for loss or injury caused by the negligence of another as long as the plaintiff's negligence is less than the negligence of the person or persons against whom recovery is sought."
$0, because Driver 2 was equally at fault with Driver 1.
Q7) A pedestrian suffered significant physical injuries when he was struck by a car while crossing a street at an intersection. The pedestrian sued the driver of the car for negligence, alleging that the accident was the driver's fault. The pedestrian needed $10,000 worth of medical care right away in order to be able to recover fully from the injuries. The pedestrian had a health insurance policy that covered $8,000 of the medical costs. The driver denied that he was negligent, but he had an auto insurance policy that would cover the incident if the driver was found to be liable. Without admitting liability, the auto insurance company decided to voluntarily pay $2,000 for the medical care needed by the pedestrian, figuring that just in case the driver wound up being held liable, it would be better to make sure the pedestrian got the necessary care so that the pedestrian's injuries would not be worsened by the pe
$13,000.
Q2) Driver 1 and Driver 2 are involved in a car accident. Driver 1 sues Driver 2 for negligent driving and Driver 2 files a counterclaim for Driver 1's negligent driving. The jury found that Driver 1 is responsible for 40% of the damages and that Driver 2 is responsible for 60% of the damages. Driver 1 has suffered $50,000 in damages. Driver 2 has suffered $100,000 in damages. In a pure comparative state, what will Driver 2 recover from Driver 1 on the counterclaim?
$40,000, because Driver 1 is responsible for 40% of Driver 2's damages.
Q 39) A student was using her laptop computer in a coffee shop. An employee of the coffee shop accidentally spilled a pot of coffee into the computer. The employee apologized profusely and quickly tried to clean up the mess with a towel, but in doing so, the employee accidentally knocked the computer so that it fell to the floor. The student asserted a claim against the coffee shop for negligently causing harm to the computer, and the coffee shop admitted that it was liable, so the only issue to be resolved in court was the amount of damages for which the coffee shop was liable. Fortunately, all of the student's data was automatically backed up to an online service and could be recovered, so the injury suffered by the student was limited to the harm to the computer itself. The student presented undisputed evidence that the computer was severely damaged, it will not function at all unless it is repaired, and repairi
$500, because that is the value of a used computer of the same type and in the same condition as the student's computer before the accident at the coffee shop.
Q 49) A woman had wanted to shoot the rapids on a river near where she had lived since she was a little child. She was pleased to learn that some young men had started a company that offered rides down the rapids. The woman did not hesitate to hire the company for a ride down the rapids, even though she had seen many rafts flip on the rapids. The woman subsequently suffered serious injury when her raft flipped. She sued the company for negligence both in piloting the raft and failing to warn of the recreation's risks. The company's liability insurer assigned defense counsel to answer the woman's complaint on the company's behalf and further defend. Which of the following affirmative defenses should defense counsel plead and most prepare to argue in summary judgment and dismissal of the case?
Implied assumption of risk.
Q 13) A patient receiving radiation therapy for cancer was given an overdose of radiation by medical personnel in a hospital's cancer center. Before treatment, the patient had executed a consent to treatment form, which also contained a release for the physicians, staff, and hospital "from all suits, claims, liability, or demands of every kind and character which I or my heirs, executors, administrator's [sic] or assigns hereafter can, shall, or may have arising out of my participation in the radiation therapy treatment regimen." Will this exculpatory agreement relieve the hospital from liability in this case?
No, because a broadly phrased pre-injury exculpatory agreement in exchange for the provision of medical treatment contravenes public policy.
Q 10) A patient who had been injured in a single-car accident was brought to the hospital with a blood alcohol level of .20, twice the legal limit in many states. Over the next several days, while the physicians were treating him for fractures, he was going through alcohol withdrawal. The patient had to be sedated for a CT scan and given a paralytic agent and put on a ventilator to breathe for him. The nurse did not make sure the oxygen tank was sufficiently full. Without oxygen, the patient's heart stopped and he suffered severe brain damage. In a negligence lawsuit by the patient's family on his behalf, can the hospital raise the patient's prior intoxication and alcohol withdrawal as evidence of his comparative fault to diminish his damages?
No, because even though the plaintiff's negligence caused the need for treatment, the plaintiff was still entitled to be treated non-negligently.
Q 15) An investor believed that he had been cheated out of a large amount of money by a stockbroker. The investor was very angry about this. One night, he went to the stockbroker's home and tried to talk to her, but she told him to go away. The investor walked to a gas station near the stockbroker's home. He looked through a trash can at the gas station and found an empty white plastic bucket. The investor used one of the gas pumps to put gasoline into the bucket. The gas station attendant saw the investor doing this and asked why he was doing this. The investor said that he had run out of gas nearby and needed only a small amount of gas to start his car and drive it to the gas station. After purchasing the gas, the investor went back to the stockbroker's home and used the gas to start a fire. The stockbroker was severely injured in the fire and her home was destroyed. These events occurred in a state that has
No, because the gasoline container statute was intended to address dangers other than arson.
Q 55) The plaintiff was drinking at a bar with his friend. The friend saw another patron with whom he had a longstanding rivalry. Several weeks previously, the tavern owner had told the bartender to keep an eye on the other patron, who had been yelling at another person. The bartender had ejected this patron several weeks ago. The patron had been at the tavern a couple of times since then without incident. On the night in question, the patron started making snide comments to the plaintiff's friend. The bartender was at the other end of the bar when the verbal exchange occurred. The friend and the patron took their heated discussion outside to the front yard of the bar and began to fight. The plaintiff was injured when he interceded on behalf of his friend. The plaintiff sued the tavern owner and the bartender, saying that they had failed to provide a reasonably safe place to drink. In the previous year, there had b
No. Since the tavern had only experienced two incidents of actual violence, and neither involved the patron, and the bartender had no knowledge of the heated discussion, the bartender did not have or breach any duty to the plaintiff.
Q79) Children attending after-school daycare played outside in the snow and then came in to the daycare building and walked across a smooth tile floor. The daycare had no mat near the door on which the children could dry their feet. The children washed their hands at a communal sink. There was no floor mat near the sink. The last child to wash his hands slipped on some water on the tile floor and broke his leg. Which of the following is the best statement of law that the court is likely to apply when the parents of the child who was injured sue the daycare on his behalf?
Since the cause of the injury was not a condition of the property, the question is whether the daycare had actual or constructive notice of the water and should have taken steps to protect the children.
Q 11)A bar owner had problems with patrons leaving his bar drunk and driving home with their blood alcohol content over the legal limit for driving. He implemented a policy that required patrons to hand over their keys upon arrival and upon departure take a breathalyzer test to determine blood-alcohol level. One evening a bar patron took the test, passed, and left. Unbeknownst to either the bar patron or owner, the machine was not working, and the patron had a blood-alcohol content well over the legal limit. The patron drove home without incident, but stumbled on his front steps and cut his head after he got out of his car. In a negligence suit by the patron against the bar owner, will the bar owner be liable?
The bar owner will not be liable because the breathalyzer test was not intended to prevent all injuries arising from becoming intoxicated in his bar.
Q 22) A county needed a new courthouse facility, and it engaged a construction company to build the courthouse. The construction company began to build and ordered a large quantity of shingles to be used in making the roof of the courthouse. The building materials vendor that supplied the shingles agreed to have several of its employees deliver the shingles to the construction site. As the employees of the building materials vendor were in the process of unloading the shingles and stacking them on the partially unfinished roof of the courthouse building, one of the vendor's employees stepped on a piece of loose plywood covering a hole in the unfinished roof. He fell through the hole and suffered serious injuries when he landed on the concrete floor below. The injured worker sued the construction company, alleging that his injuries resulted from the construction company negligently maintaining the unfinished roof in
The court should grant summary judgment for the construction company only on Count One of the complaint, because the state's construction safety statute was to have no effect on tort law and therefore negligence per se should not apply.
Q 96) A car dealer sold a car to two roommates, a male and a female. The male presented the car dealer with a state voter identification card and the female presented the dealer with her driver's license. A week later, when he was driving the car, the male struck a motorcyclist, causing injuries. Later information revealed that the male roommate had lost his license due to unsafe driving. In a suit by the motorcyclist against the car dealer for negligent entrustment, the court is most likely to determine that:
The car dealer did not owe a duty to the motorcyclist to inquire into the purchaser's driving record before selling him a car and summary judgment should be awarded to the car dealer.
Q71) Several residents of a small town organized a summer picnic as a social event for the people living in the town. They needed a large amount of food for the picnic, including three dozen apple pies. Because they were ordering so much food, they decided to split the order among three different catering companies. They ordered a dozen apple pies from each of the three companies. All of the pies were delivered to the picnic and placed together on a table. All of the pies were in the same type of disposable foil pie tin, and all of the pies were very similar in appearance and taste. Shortly after the pies were served at the picnic, several people who ate pieces of one of the pies became very sick. Doctors determined that they were suffering from food poisoning. Officials from the health department gathered samples of food from the picnic, including leftover remnants of the apple pies. Tests of these leftovers reveale
The catering companies will not be liable, because the evidence indicates that only one of the catering companies provided a pie containing harmful bacteria.
Q 29) An nineteen-year-old athlete led a group of nine-year-old girls in physical fitness training as part of a private suburban mentor program. At the conclusion of strenuous exercises, the athlete planned some unstructured recreation and play time. To get the girls engaged in active play, the athlete chased, tagged, tickled, and wrestled with the girls. In one instance, though, the athlete tackled one of the girls a little more roughly than the athlete intended, breaking the girl's arm. In a negligence suit that the girl's parents brought against the athlete on the girl's behalf, which of the following most accurately states the athlete's standard of care?
The factfinder will judge the athlete by the standard of a reasonably prudent person under like circumstances, without respect to the athlete's age.
Q 98) A seventy-eight year-old father and his forty year-old son were emotionally close and lived together and shared a motorcycle. The son helped take care of his father. The son was riding the motorcycle when a driver negligently turned in front of him, causing the son to hit the car and suffer fatal injuries. Thirty minutes later, the father was watching television and the news reported a fatal accident at a nearby intersection. Although the news program showed no pictures, the father had a bad feeling and went to the intersection. When he arrived, from a distance of about thirty feet, he saw his son's motorcycle next to a sheet-covered body on a stretcher. A police officer led him to a nearby restaurant to talk, and the officer confirmed the body was his son's. When the father left the restaurant to go home, the scene had been cleared. Since the accident the father has suffered severe depression, for which he
The father cannot recover for negligent infliction of emotional distress because he was not within the zone of danger of the accident and did not have contemporaneous awareness of it or involvement on the scene.
Q 23) A woman was severely allergic to peanuts. She was careful to eat only food that was marketed as being free of nuts and safe for people with nut allergies. One evening, the woman stopped at a restaurant and placed a take-out order for a container of soup. A member of the restaurant's staff assured the woman that the soup was nut free. As the woman left the restaurant with the soup, she noticed the smell of fresh bread in the air and she saw a bakery nearby. She went in and told the baker about her allergy, and she was assured that the bread was nut free. The woman purchased the bread, and then walked to a nearby park to sit down and eat. She ate the bread first, and then the soup. A few moments later, she started to feel bad, had an allergic reaction, and stopped breathing. Emergency medical personnel responded to the scene but were unable to revive her. The woman's family undertook an investigation and foun
The court should deny both motions, because the soup and the bread were each sufficient to cause the woman's death.
Q43) A pedestrian suffered severe injuries when he was struck by a pickup truck. The truck was stopped by the edge of a street when it accelerated suddenly, hit the pedestrian, and pinned the pedestrian's legs between the front of the truck and a parked car. A driver and a passenger were in the truck at the time of the accident. The driver and the passenger admitted that the truck accelerated suddenly and hit the plaintiff, but they disagreed about what caused the truck to move. The driver claimed that the passenger negligently stepped on the truck's accelerator pedal when she moved over on the front seat, toward the driver, to make room in the truck for another person who was going to get into the truck. The passenger denied that her foot touched the accelerator and insisted that the driver must have stepped on the accelerator. The injured pedestrian brought a lawsuit against the pickup truck driver and the pass
The court should deny the motion and allow the case to proceed to trial, because there is a genuine issue of material fact as to who hit the accelerator.
Q42) A farmer owned property that included a small pond of water. The farmer built a wooden dock over a portion of the pond and occasionally used the dock as a place to sit while fishing in the pond. One spring, the farmer decided to have the pond stocked with fish. He called a company that provides fish stocking services. A sales representative from the company came out to visit the farm to see the pond and recommend the type and quantity of fish that the farmer should order. A couple of steps onto the dock, the boards underneath the sales representative's feet gave way, and her left leg plunged through the dock up to her hip. As a result of the fall, the sales representative suffered a fracture of a bone in her leg. Shortly after this incident, the farmer had the dock removed because he decided that he would prefer to fish from the shore of the pond and so it was not worth it to have the dock repaired. A few mont
The court should deny the motion, because a reasonable jury could infer that the farmer was somehow negligent in building or maintaining the dock.
Q6) A skydiver who had made more than five hundred dives in seven years went up for a jump with three other skydivers. They executed a series of aerial maneuvers together between 13,000 and 10,000 feet. At about 2,500 feet, the skydiver disengaged from the group and aimed himself toward the ocean. At between 50 and 100 feet above the ocean, he disconnected his parachute harness. He was killed by the impact with the water. Two years before this jump, after watching a required video on the risks of skydiving, the skydiver had signed a release with the parachuting company, which provided that the skydiver "forever releases and discharges the company from any and all liabilities, claims, demands or causes of action arising out of participation in parachuting activities, including, but not limited to, losses caused by the passive or active negligence of the company, and expressly and voluntarily assumes all risk of deat
The court will hold that this release is enforceable because the experienced skydiver expressly assumed the risks of this extreme sport.
q 39) During the seventh inning stretch at a baseball game, the costumed team mascot threw prizes such as t-shirts and hot dogs into the crowd. One spectator was hit in the eye with a hot dog and sued the team for damages. The team defended that the spectator was both comparatively negligent in not seeing and catching, or otherwise defending against, the hot dog and, in any event, was barred from suit by the doctrine of primary implied assumption of risk. How would a court rule on these defenses?
The court would find that while comparative negligence should be submitted to a jury, the risk of injuries from a hotdog toss is not an inherent risk of watching a baseball game and the court should disallow that defense.
Q 56) A police officer who was the first on the scene in responding to a fire call from the property owner was seriously burned as she tried to rescue the family's dog. A later inspection revealed that the fire was started by faulty electrical wiring. To avoid the building permit process and suspicion about his unlawful activities, the owner himself had installed a ventilation fan and growth lights that operated about 18 hours a day in a room that grew marijuana for illegal bulk sales. In a suit by the police officer against the owner for her burns in a jurisdiction recognizing the firefighter's rule, which of the following is the most accurate about the application of that rule?
The firefighter's rule does not apply because the injury was caused by the willful or wanton activity of the property owner, so the police officer can sue the owner.
Q 46) A doctor negligently failed to realize that a patient was suffering from a very serious disease. The only causation evidence shows beyond dispute that if the patient had been properly diagnosed and treated, he would have had a 50% chance of surviving the disease. Without proper diagnosis and treatment, the odds of surviving this disease are zero. As a result of the doctor's negligence, the patient received no treatment and died from the disease. A lawsuit was brought against the doctor on behalf of the deceased patient's family. These events occurred in a state that adheres to all traditional rules concerning proof of causation. What is the most likely result of the lawsuit?
The doctor will not be liable for any damages, because the patient's estate cannot prove by a preponderance of the evidence that the patient was likely to survive the disease but for the doctor's negligence.
Q 35) While exiting a clothing store and heading to her car, a shopper stumbled and fell as she stepped from the concrete sidewalk to the asphalt parking lot surface. The shopper suffered a broken arm and brought a negligence action against the company that owns and operates the clothing store. The shopper's attorney sought to present the expert testimony of a construction safety engineer. This expert would testify that it was customary for retail stores and shopping centers to alert patrons to the step from the sidewalk to the parking lot pavement by marking the curb with yellow paint. In the expert's opinion, the clothing store's failure to mark its curb with warning paint was negligent and was the proximate cause of the shopper's accident. The clothing store objects to this evidence about the practices of other retail businesses. Should the court admit the expert's testimony?
The evidence should be admitted, because evidence of what is customary in an industry is relevant to determining whether a particular company in that industry acted with reasonable care.
Q78) A trial court heard the defendant's motion to dismiss for lack of a duty, in each of four separate negligence cases. In the first case, a candy store defendant had inadequate ventilation for an underground gas tank that started a fire, injuring a responding firefighter. In the second case, a football-player defendant failed to shout a warning to a referee whom the player disliked, about a grounds truck backing toward the referee. In the third case, a high school failed to prevent one student from bullying another student in between classes. In the fourth case, a nightclub owner escorting a drunken patron allowed her to stagger and fall over a balcony. In which one of these cases would the court be most likely to grant the motion because no duty of care exists?
The football-player case.
Q 31) An art collector purchased a valuable antique porcelain vase. The art collector displayed the vase in his home. He decided to have a dinner party so that his friends could come over to see the vase. Many guests attended the party. One of the guests got up very close to the vase to examine it, and this guest accidentally bumped the vase. The vase tipped over and fell to the floor, shattering into a hundred pieces. The vase was ruined beyond any possible repair. Later that night after the party had ended, a fire occurred in the art collector's home. The fire began because a chef who had been hired to prepare food for the party negligently forgot to turn off a stove in the kitchen when he left that night after the party. No one was injured in the fire, but a substantial portion of the art collector's home was destroyed by the fire, including everything in the room in which the vase had been displayed. The art
The guest will be held liable for the destruction of the vase, but the chef will not because his negligence occurred after the vase had already been destroyed.
Q69) A hotel owner was working to renovate a dilapidated old hotel. The rehabbing of the hotel had not brought the hotel up to fire code compliance level. The hotel owner rented out two rooms in an area that was up to code. An unknown person started an arson fire in the unfinished portion of the hotel and the fire spread to the two rented rooms. Although the fire department got the hotel guests out safely, some of each of their property was destroyed. Which of the following is the most accurate about the hotel owner's liability when the guests sue for property damage?
The hotel owner is liable because a fire, whether started by accident or arson, was within the scope of the risks of the noncompliance with the fire code.
Q 83) A truck was driving in the fog on a slippery road, followed by a car, driven by a little person who was 2 feet 10 inches tall. The car driver had pedal extenders on the brake and gas pedals so that he could operate the vehicle. When the truck braked sharply on the slick road, the car driver was not able to stop in time and hit the back end of the truck. The trial judge has asked you, her law clerk, to advise her on the appropriate standard of care instruction. Which of the following is the best summary of how the judge should instruct the jury on the standard of care applicable in this case?
The judge should instruct the jury that drivers should exercise reasonable care under the circumstances, but if someone has a physical disability, that disability and the accommodation of it are among the circumstances the jury should consider in determining whether ordinary care was exercised.
Q 44) The driver of a car was seriously injured when he crashed into a metal divider fence on the side of a highway. The impact of the collision caused the door on the driver's side of the car to be thrown open, and the driver was thrown from the vehicle. It is undisputed that if the driver had remained inside the car, his injuries would have been relatively minor. The driver was intoxicated at the time of the crash, and he was not wearing a seat belt. The driver brought a strict tort liability claim against the manufacturer of the car. The evidence at trial established that the car door opened in the crash because the door latches on the car had a dangerously defective design that allowed the door latches to be activated by the impact of a crash. If the case is governed by the law of a state that has adopted pure comparative fault, what is the most likely result?
The manufacturer will be liable, but the damages will be reduced under comparative fault to account for the driver's negligence.
Q 91) A gardener purchased a shovel at a local hardware store. The shovel had a metal blade and a wooden handle. While the gardener was using the shovel to dig out a tree stump, the handle broke in half, causing the gardener to fall and injure his back. Seeking to recover damages for his back injury, the gardener brought a negligence claim against the manufacturer of the shovel. He proved that the shovel broke because of a manufacturing defect that made the handle too weak. While conceding that the handle had a defect that caused it to break, the manufacturer proved that if the gardener had been reasonably careful in using the shovel, he would not have fallen down and would not have been injured when the shovel broke. If the case is governed by the law of a jurisdiction that follows traditional contributory negligence rules, who is most likely to prevail?
The manufacturer, because the gardener's negligence in the way he used the shovel was one of the causes of his injury.
Q 30) A car collided with a bicycle, causing the rider of the bicycle to fall and suffer a serious injury. The accident occurred when the car and the bicycle were heading in the same direction on a street. The bicycle was ahead of the car, and the driver came up behind the bicycle but did not see the bicycle and the car's front right end struck the bicycle's rear wheel. The accident occurred a half hour after sunset. Visibility at the time of the accident was limited by fog and moderate rain. State law requires bicycles operated at night to have a white headlight and a red rear light or reflector. The bicyclist complied with this law by having a white headlight and a red rear reflector. The speed limit on the street was 35 miles per hour. At the time of the accident, the car was travelling at just under 35 miles per hour and the bicycle was moving at approximately 10 miles per hour. The bicyclist sued the driver
The motion should be denied, because a jury could decide that the driver was negligent even if he complied with the speed limit and all other applicable statutes and regulations.
Q95) A parolee who had served seven years for committing a convenience store robbery was released early. His parole officer incorrectly calculated his risk assessment by failing to include two juvenile burglary convictions in the calculation of his risk score. This assessment meant that she miscalculated his need for supervision, and he had not been seen by his parole officer for ten months when he murdered his domestic partner. In a lawsuit by the estate of the domestic partner against the parole officer, ignoring issues of state immunity, which of the following is most accurate about the parole officer's duty?
The parole officer owed a duty of care only where she knew, or should have known, that the parolee posed a foreseeable risk to a particular individual or identifiable group.
Q 16) A pedestrian got hit by a car while crossing a street. The driver of the car suffered no harm, but the pedestrian was badly injured and filed a lawsuit against the driver. The pedestrian claims that the driver was driving too fast and should have seen the pedestrian and had time to stop or swerve to avoid the pedestrian. The driver denies that he was negligent. The driver also argues that even if he was negligent, it did not make a difference because he would have been unable to avoid hitting the pedestrian even if he was driving in a reasonably careful manner. Which of the following is the most accurate statement about the burden of proof on the actual cause element in this case?
The pedestrian will have the burden of proving that her injuries would not have occurred but for the driver's negligence.
Q 36) An oil company was delivering thousands of gallons of gasoline to a convenience store. An employee of the oil company brought the gasoline in a large tanker truck, and he was transferring the gasoline from the tanker truck to fill up the store's underground gas storage tanks when he spilled a large quantity of the gasoline onto the ground in the parking lot area in front of the store. A few moments after the gas spilled, flammable vapors from the spilled gas ignited and created an enormous burst of flames. The evidence will establish that three people were standing near the gas pumps at the time, each was smoking a cigarette, and the vapors from the spilled gasoline were ignited by one or more of the cigarettes they were smoking. The fire caused severe burns to a teenager who happened to be walking across the parking lot at that moment. Seeking to recover damages for the injuries, negligence claims were asser
The smokers may be held liable even if the teenager cannot prove specifically which cigarette or cigarettes started the fire.
Q 41) A sixteen year-old employee worked at a local ice cream parlor. In the back of the store, there was a container filled with a chemical used to make dry ice. The employee had heard a rumor that inhaling the chemical caused an intoxicating "high" feeling. While the manager of the ice cream parlor was out running errands, the employee inhaled the chemical, attempting to get high. Instead of any intoxicating effect, the employee suffered severe lung damage. Which of the following best describes the store's liability?
The store cannot be held liable because it is not obligated to guard against a teenage employee trying to get high on a chemical used to make dry ice.
Q 67) Toxic waste escaped from a plant overnight due to unforeseeable circumstances, causing damage to a neighboring property. While the waste's escape was unforeseeable, investigation showed it preventable if the plant had hired an employee on duty overnight to observe conditions. The owner of the neighboring property sued in negligence. The jurisdiction applies the formula that Judge Learned Hand developed in United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947), for determining when a defendant has been negligent. Which of the following would the court properly consider when applying the Hand formula?
Whether the defendant plant's burden to take precautions is greater or less than the probability of loss times the amount of loss. *If B on defendant < P x L = negligence *If B on defendant > P x L = no negligence
Q 20) A doctor wrote a prescription for medication for a patient who was suffering from a minor illness. The medication was available in pills containing several different levels of the medication's active ingredient. The prescription provided for the patient to receive seven pills, each containing 20 milligrams of the active ingredient, and the prescription instructed the patient to take one pill each day for a week. The pharmacist who filled the prescription negligently made a mistake and gave the patient seven pills that each contained 50 milligrams of the active ingredient. The patient took the medication and had a severe adverse reaction to it. The patient has sued the pharmacist for negligence. What additional information would be needed to determine whether the patient can prove the actual cause element of the patient's claim?
Would the patient have suffered the same adverse reaction if she had taken pills containing only 20 milligrams of the medication's active ingredient?
Q 89) The plaintiff was slowing his car and signaling to make a right hand turn. Driver number one, driving behind him, could not slow his car down in time and rear ended him, but only caused a small amount of damage to the rear bumper of the plaintiff's car. The plaintiff drove his car twenty or thirty feet ahead and stopped close to the curb. Driver number one pulled into an alleyway. The plaintiff got out to see what damage had been done to his bumper. As he was inspecting the left rear bumper, driver one saw driver two headed toward the plaintiff and immediately yelled "Watch out!" The plaintiff decided to run toward the median instead of the curb, and driver number two hit him, causing a broken leg. The time between the two accidents was about four minutes. In a lawsuit by the plaintiff against driver number one for the broken leg, driver number one argues that he was not the proximate cause of the broken
Yes, because driver number one exposed the plaintiff to a number of risks, including that of a post-accident collision.
Q 100) Because a woman was going to undergo chemotherapy for breast cancer, she and her husband had five fertilized embryos cryogenically frozen to implant after she recovered from cancer. Six years later, when the woman and her husband were ready to have a family, they discovered that the hospital had inadvertently discarded the embryos. Both the woman and her husband were distraught that they had lost the only possibility to conceive their own child naturally. The husband, in particular, became severely depressed and required continuing therapy and medication to address his deepening depression. Would the husband have a good claim against the hospital for negligent infliction of emotional distress?
Yes, because the hospital's negligence deprived the couple of their only chance to conceive a child together and the husband's severe emotional distress was foreseeable.
Q 52) A patient had surgery to repair an injured tendon in her shoulder. Three doctors were involved in performing the surgery. The patient was anesthetized and unconscious throughout the surgery. In the recovery room after the surgery, the patient discovered that she had a burn on one of her legs. The burn was not there prior to the surgery. The patient brought a medical malpractice action against each of the three doctors involved in the surgery. The patient argues that res ipsa loquitur should apply, and the doctors dispute this. Can res ipsa loquitur apply to the patient's claims against the doctors?
Yes, because the operating room and all the instrumentalities in it that could have caused the injury were under the joint control of the three doctors.
