TORTS MBE WORKSHOPS
IMPROVING MBE PERFORMANCE
. Pinpoint the specific subject matter that is problematic for you on the MBEs. 2. Go back to your outlines, Black Letter Law rules, Crunchtime, casebook or other class materials and review the doctrine, paying particular attention to the elements of the rules and the exceptions. 3. Set up MBE drills from questions in your class, Crunchtime and any other source of MBE questions, - around 10 questions, 2 minutes per question and keep track of your scores (percentage correct). Make sure you review the answer explanations for the questions that you got right and wrong. Any doctrine that you miss should have a prominent place in your outline. •Aim for 70-75% correct on successive drills.
TYPES OF STRICT LIABILITY & PRODUCTS LIABILITY QUESTIONS
1. DUTY- Absolute duty to make safe Reasonable care not relevant Duty to anyone harmed (personal injury or property damage) by the animal, activity or product 2. ANIMAL LIABILITY: Wild v domestic animals-dangerous propensities or dangerous species Trespassing animals-strict liability Harm caused by what makes the animal dangerous 3. ABNORMALLY DANGEROUS ACTIVITIES- Applying Rest 2nd 520 factors Harm caused by what makes the activity unreasonably dangerous 4. PRODUCTS LIABILITY-STRICT LIABILITY Proper Plaintiff- harmed by product-includes bystanders Proper Defendants- commercial suppliers, not casual sellers
IMPROVING MBE PERFORMANCE
1. Pinpoint the specific subject matter that is problematic for you on the MBEs. 2. Go back to your outlines, Black Letter Law rules, Crunchtime, casebook or other class materials and review the doctrine, paying particular attention to the elements of the rules and the exceptions. 3. Set up MBE drills from questions in your class, Crunchtime and any other source of MBE questions, - around 10 questions, 2 minutes per question and keep track of your scores (percentage correct). Make sure you review the answer explanations for the questions that you got right and wrong. Any doctrine that you miss should have a prominent place in your outline. Aim for 70-75% correct on successive drills.
STRATEGIES FOR MBES
1. READ THE CALL OF THE Q & ANSWER CHOICES FIRST 2. DETERMINE THE DOCTRINE OF TORTS BEING TESTED 3. THEN: *ELIMINATE ANY WRONG ANSWERS FIRST: 1. Those with erroneous legal statements 2. Correct statements but on areas of law not called for in the Q 3. READ THE HYPOTHETICAL FACTS TWICE AND THEN: * ELIMINATE ANSWERS UNTIL ONLY ONE REMAINS. THAT IS THE BEST ANSWER., *Disfavor Those answers citing absolute conclusions [always, never, only if], those with incomplete or erroneous statements of law and those that assume unstated facts or facts contradicted in the hypothetical *Favor THOSE WITH A CORRECT COMPLETE STATEMENT OF THE LAW THAT ANSWERS THE QUESTION
TYPES OF TORTS III MBE QUESTIONS
1.STRICT LIABILITY DUTY- Absolute duty to make safe Reasonable care not relevant Duty to anyone harmed (personal injury or property damage) by the animal, activity or product 2. ANIMAL LIABILITY: Wild v domestic animals-dangerous propensities or dangerous species Trespassing animals-strict liability Harm caused by what makes the animal dangerous 3. ABNORMALLY DANGEROUS ACTIVITIES- Applying Rest 2nd 520 factors Harm caused by what makes the activity unreasonably dangerous 4- PRODUCTS LIABILITY-STRICT LIABILITY Proper Plaintiff- harmed by product-includes bystanders Proper Defendants- commercial suppliers, not casual sellers
TYPES OF STRICT LIABILITY & PRODUCTS LIABILITY QUESTIONS
4. PRODUCTS LIABILITY- STRICT LIABILITY Types of defects and their definition- definition-what makes the product unreasonably dangerous Risk-Utility/Reasonable Alternative Design—design defect Consumer Expectation Test—manufacturing or design defect Warning defect—warning not required for obvious dangers Harm caused by the defect-actual & proximate cause 5. PRODUCTS LIABILITY- BREACH OF WARRANTIES Express Warranty- misrepresentation, reliance, causation & damages Implied Warranty of Merchantability- merchant, ordinary purpose Implied Warranty of fitness for Particular Purpose- merchant, face to face contact, reliance, causation & damages Damages- can be pure economic loss
TYPES OF TORTS III MBE QUESTIONS
4. PRODUCTS LIABILITY- STRICT LIABILITY Types of defects and their definition-what makes the product unreasonably dangerous Risk-Utility/Reasonable Alternative Design—design defect Consumer Expectation Test—manufacturing or design defect Warning defect—warning not required for obvious dangers Manufacturer liability- Defect must be present at the time the product leaves the manufacturer Harm caused by the defect-actual & proximate cause 5. ess Warranty- misrepresentation, reliance, causation & PRODUCTS LIABILITY- BREACH OF WARRANTIES Exprdamages Implied Warranty of Merchantability- merchant, ordinary purpose Implied Warranty of fitness for Particular Purpose- merchant, face to face contact, reliance, causation & damages Damages- can be pure economic loss
TYPES OF TORTS III MBE QUESTIONS
6. STRICT LIABILITY (NON-PRODUCTS) DEFENSES Assumption of the risk ONLY for non-products Knowledge of Risk must be specific-dangerous propensity of animal, risk of ADA 7. STRICT PRODUCTS LIABILITY DEFENSES Assumption of the risk Misuse- only unforeseeable misuse is a defense Open and obvious danger State of the art (Affirmative defense or part of prima facie case for warning defect) 8. MULTIPLE TORTFEASORS Indivisible injury (cannot allocate fault)- joint and several liability applies Indemnity claim by (non-negligent) retailer against manufacturer
TYPES OF STRICT LIABILITY & PRODUCTS LIABILITY QUESTIONS
6. STRICT LIABILITY (NON-PRODUCTS) DEFENSES Assumption of the risk ONLY for non-products Knowledge of Risk must be specific-dangerous propensity of animal, risk of ADA, risk of defect of product 7. STRICT PRODUCTS LIABILITY DEFENSES Assumption of the risk Misuse- only unforeseeable misuse is a defense Open and obvious danger State of the art (Affirmative defense or part of prima facie case for warning defect)
TORTS MBE WORKSHOP
St Francis Academic Excellence Program
PRODUCTS LIABILITY MBE A store owner hired a contractor to install an automatic door-opener while the store was closed for the night. The door-opener, purchased by the store owner from the manufacturer, included rubber step-plates to be installed on the floor on both sides of the door. The contractor read the instructions furnished by the manufacturer but disregarded a warning regarding testing the step-plates. When he finished installing the door, he did not test it by stepping on one of the step-plates, but advised the store owner that the job was complete. The next morning, a customer was injured by the door. In a claim by the customer against the manufacturer on the ground that the step-plate was defective when sold by the manufacturer, which of the following would be the manufacturer's most effective argument in defense? a.It was not foreseeable that a person installing the automatic door-opener would disregard the warning contained in the instructions. b.The manufacturer did not act unreasonably in designing or manufacturing the automatic door opener or in furnishing the instructions that came with it. c.The customer was not a purchaser of the automatic door-opener. d. The store owner was negligent in selecting the contractor to install the automatic door-opener
a.It was not foreseeable that a person installing the automatic door-opener would disregard the warning contained in the instructions.
A homeowner lives downhill from a metal fabrication facility. She sued the owner of the facility and the supplier of a solvent used at the facility for negligence, claiming that contaminants, consisting mainly of the solvent, were being released into the ground at the facility and migrated onto her property, contaminating the soil, the groundwater and her well. She claimed the facility owner was negligent for releasing the contaminants into the ground and the solvent supplier was negligent for frequently spilling some of the solvent onto the ground while filling a rooftop tank at the facility. The solvent supplier moved for summary judgment, arguing that if there was any contamination, the facility owner and the supplier independently contributed indeterminant amounts to the contamination and therefore, the homeowner cannot prove how much damage each had inflicted on her. There is no evidence that the facility owner and the solvent supplier acted in concert. Should the court grant the summary judgment motion? a.No, because concurrent tortfeasors are jointly and severally liable for an indivisible injury. b.No, because the solvent supplier is vicariously liable for damage inflicted by the facility owner. c.Yes, because there is no bases for allocating damages against the solvent supplier. d.Yes, because there is no evidence that the facility owner and the solvent supplier acted in concert.
a.No, because concurrent tortfeasors are jointly and severally liable for an indivisible injury. WHEN YOU CAN'T ALLOCATE FAULT. HOMEOWNER CAN SUE EITHER ONE.
A manufacturing plant located by a busy highway uses and stores highly volatile explosives. The owner of the plant has imposed strict safety measures to prevent an explosion at the plant. During an unusually heavy windstorm, a large tile was blown off the roof of the plant and crashed into the windshield of a passing car, damaging it. The driver of the car brought a strict liability action against the owner of the plant to recover for the damage to the car's windshield. Is the driver likely to prevail? ● a.No, because the damage to the windshield did not result from the abnormally dangerous aspect of the plant's activity.. b.No. because the severity of the windstorm was unusual. c.Yes, because the plant's activity was abnormally dangerous. d.Yes, because the plant's location near a busy highway was abnormally dangerous.
a.No, because the damage to the windshield did not result from the abnormally dangerous aspect of the plant's activity..
A homeowner was using a six-foot stepladder to clean the furnace in his home. The homeowner broke his arm when he slipped and fell from the ladder. The furnace had no warnings or instructions on how it was to be cleaned. In a suit by the homeowner against the manufacturer of the furnace to recover for his injury, is the homeowner likely to prevail? a.No, because the danger of falling from a ladder is obvious. b.No, because the homeowner should have hired a professional to clean the furnace c.Yes, because the furnace did not have a ladder attached to it for cleaning purposes. d.Yes, because the lack of warnings or instructions for how to clean the furnace made the furnace defective.
a.No, because the danger of falling from a ladder is obvious.
An electrical engineer designed an electronic game. The electrical engineer entered into a licensing agreement with a toy company under which the toy company agreed to manufacture the electronic game according to the electrical engineer's specifications and to market it and pay a royalty to the electrical engineer. A girl, whose parents had purchased the electronic game for her, was injured while playing the game. The girl recovered a judgment against the toy company on the basis of a finding that the electronic game was defective because of the electrical engineer's improper design. In a claim for indemnity against the electrical engineer, will the toy company prevail? ● a.Yes, because as between the electrical engineer and the toy company, the electrical engineer was responsible for the design of the electronic game. b.Yes, because the toy company and the electrical engineer were joint tortfeasors. c.No, because the toy company, as the manufacturer, was strictly liable to the girl. d.No, if the toy company, by a reasonable inspection, could have discovered the defect in the design of the electronic game.
a.Yes, because as between the electrical engineer and the toy company, the electrical engineer was responsible for the design of the electronic game. INDEMNITY: ALL THE TOY MFR DID WAS USE THE DESIGN TO MANUFACTURE; SIMILAR TO RETAILER SELLING THE PRODUCT. MFR DID NOT KNOW IT WAS A DEFECTIVE DESIGN. STRICT LIABILITY APPLIED TO MFR ONLY BECAUSE THEY MANUFACTURED PRODUCT. MFR WAS PASSIVELY DELINQUENT.
ANIMAL LIABILITY MBE Zeke, a retired zoo keeper brought one of the animals from the zoo, an aged tiger, to live with him, keeping it in a fenced yard alongside his house. The tiger had been trained by Zeke and had always been tame and gentle, even when young. By the time Zeke had retired, the tiger was old, almost blind, somewhat slow-moving and the size of a dog. One day, a young girl from the neighborhood came to the home to sell cookies. Since she knew the tiger, the girl opened the gate and called the animal so she could pet him. The tiger ran over to the place from which the sound had come, but because the tiger was almost blind, he bumped into the girl. The girl fell to the ground, breaking her ankle. If the girl asserts a claim against Zeke based on strict liability in tort, the court should find for: a.Zeke, because the injury did not result from a trait that made it dangerous to keep a tiger. b.Zeke, because the tiger was not a wild animal. c.The girl, because it was unreasonable for Zeke to keep the tiger in his yard. d.The girl, because Zeke should have anticipated that a child would attempt to pet the tiger
a.Zeke, because the injury did not result from a trait that made it dangerous to keep a tiger.
ABNORMALLY DANGEROUS ACTIVITY? MBE A power company operated a nuclear power plant on the seashore just outside a city and sold the electricity generated to the city residents. To cool its equipment, the power company drew water from the ocean and piped it through portions of its plant. Because this operation made the water highly radioactive, the power company stored used water in several large concrete holding ponds. The stored water was subjected to a series of procedures designed to neutralize it by removing the radioactivity before it was returned to the ocean. Because of an earthquake, one of the concrete holding ponds cracked, permitting several million gallons of neutralized water to escape. Although the escaping water was not radioactive, it caused substantial damage to the fields of a farmer as it passed over them. If the farmer asserts a claim for damage to his property, the court should find for a. The farmer, because operating a nuclear power plant is an abnormally dangerous activity. b. The farmer, because water is a substance that is likely to do great harm if it should escape from captivity. c. The farmer, because it was unreasonable to operate a nuclear power plant in an area where an earthquake could occur. d. The power plant, because damage resulted from an Act of God.
b. The farmer, because water is a substance that is likely to do great harm if it should escape from captivity.
PRODUCTS LIABILITY PROPER PLAINTIFF MBE Which of the following persons is most likely to recover in an action against the manufacturer of a hypodermic needle? a.A doctor's child, who found the needle in the doctor's medical bag and was injured when a defect caused it to break while the child was playing with it. b.A doctor's patient, who was injured when a defect caused the needle to break while the doctor was injecting him with it. c.A dentist, who lost profits when she was unable to inject a patient with the needle and perform a procedure because a defect caused it to break. d.A narcotics addict, who contracted hepatitis because the needle was infected with a microbe that caused that disease.
b.A doctor's patient, who was injured when a defect caused the needle to break while the doctor was injecting him with it.
PRODUCTS LIABILITY MBE A store owner hired a contractor to install an automatic door-opener while the store was closed for the night. The contractor read the instructions furnished by the manufacturer but disregarded a warning related to its installation. The next morning, a customer was injured by the door when it short-circuited. In a claim by the customer against the contractor, which of the following would be the customer's most effective argument? a.The contractor's liability is established by res ipsa loquitur. b.It was unreasonable for the contractor to disregard the warning contained in the instructions furnished by the manufacturer. c.The automatic door-opener was installed in a way that made it unfit for ordinary use d.The short circuit made the automatic door-opener defective
b.It was unreasonable for the contractor to disregard the warning contained in the instructions furnished by the manufacturer.
A homeowner was injured when an automatic cutoff switch failed to function on a snowblower he was using. The cutoff switch had functioned well for a year after he purchased the snowblower but failed after the machine had been improperly repaired by a mechanic. The snowblower's operating manual contained a clear and prominent warning against making the same alteration to the switch mechanism made by the mechanic. The mechanic, however, did not have a manual available when he repaired the snowblower. Does the homeowner have a viable claim against the manufacturer of the snowblower for damages? a.No, because the homeowner was comparatively negligent in failing to furnish the snowblower's manual to the mechanic. b.No, because the injury resulted from a substantial alteration of the snowblower by a third party.. c.Yes, because a defect in the snowblower caused the homeowner's injury. d.Yes, because the manufacturer should have made the manual available to repair personnel.
b.No, because the injury resulted from a substantial alteration of the snowblower by a third party.. STRICT LIABILITY CLAIM: COMPARATIVE NEGLIGENCE IS NOT A DEFENSE; AOR IS ONLY DEFENSE IF PRODUCT IS SUBSTANTIALLY ALTERED, THEN MFR IS NOT STRICTLY LIABLE..
A company designed and built a processing plant for the manufacture of an explosive chemical. An engineer was retained by the company to design a filter system for the processing plant. As part of the permit process, the engineer submitted a blueprint with an application for the permit. The blueprint showed the entire facility and was signed by the engineer. After the project was completed, a portion of the processing plant exploded, injuring the plaintiff. During the investigation, it was discovered that the explosion was caused by a design defect in the processing plant that was unrelated to the filter system designed by the engineer. In plaintiff's action against the engineer, will the plaintiff prevail? a. Yes, if the engineer signed and submitted a blueprint that showed the design defect. b. Yes, because all of the plant's designers are jointly and severally liable for the defect. c. No, because the engineer owed no duty to the plaintiff to prevent the particular risk of harm. d. No, if the engineer was an independent contractor
c. No, because the engineer owed no duty to the plaintiff to prevent the particular risk of harm. ENGINEER DID NOT DESIGN ANYTHING THAT CAUSED THE HARM.
PRODUCTS LIABILITY MBE The plaintiff had a headache and took two headache tablets from a bottle that had been purchased by his wife at the grocery store. The tablets had been manufactured by the drug company, which had sold them to the grocery store for resale. Because of a toxic ingredient that the tablets contained, the plaintiff became seriously ill as a result of taking them. If the plaintiff asserts a claim against the grocery store based on negligence, the court should find for a. Plaintiff, if the grocery store did not open the bottle and examine the tablets before selling them. b. plaintiff, because a retailer has an absolute duty to provide safe products c. The grocery store, because the bottle containing the tablets was sealed when the grocery store received it. d. The grocery store, because the tablets had been purchased by the plaintiff's wife.
c. The grocery store, because the bottle containing the tablets was sealed when the grocery store received it.
PRODUCTS LIABILITY-DEFECTVE PRODUCT MBE A company manufactured a leash for training dogs. The leash had been submitted to all reasonable tests and inspections before being marketed. A professional dog trainer was working with a dog in her unfenced front yard and was using a brand new leash. The dog was of average size and strength. A walker was walking past the yard when the dog began to snarl and lunge at him. When the trainer yanked on the leash, it suddenly broke, freeing the dog. The dog sprang forward, biting the walker. If the walker asserts a claim against the company alleging that the leash used by the trainer was defective, the court should find for a.The company, because the walker was not a purchaser or consumer of the product. b.The company, because the leash had been submitted to all reasonable tests and inspections before being marketed. c.The walker, because the dog was a dog of average size and strength. d.The walker, because it was foreseeable that the leash would eventually weaken and break when used as it was meant to be used.
c.The walker, because the dog was a dog of average size and strength.
When a tire of a motorist's car blew out, the car rolled over and the motorist was badly injured. Vehicles made by the manufacturer of the motorist's car have been found to be negligently designed, making them dangerously prone to rolling over when they suffer blowouts. A truck driver who was driving behind the motorist when the accident occurred stopped to help. Rescue vehicles promptly arrived and the truck driver walked along the side of the road to return to his truck As he approached his truck, he was struck and injured by a speeding car. The truck driver has sued the manufacturer of the injured motorists' car. Is the truck driver likely to prevail in a suit against the car manufacturer? a. No, because the car manufacturer's negligence was not the proximate cause of the truck driver's injuries.. b. No, because the truck driver assumed the risk of injury when he undertook to help the motorist. c. Yes, because it is foreseeable that injuries can result from rollovers. d. Yes, because the car manufacturer's negligence caused the dangerous situation that invited the rescue by the truck driver.
d. Yes, because the car manufacturer's negligence caused the dangerous situation that invited the rescue by the truck driver.
ABNORMALLY DANGEROUS ACTIVITY? MBE Company was a manufacturer of explosives. Its warehouse, which stores large quantities of explosives, was located a short distance from a town. A group of political extremists who were planning to set off bombs in public places in the town, broke into Company's warehouse to steal explosives for use in making bombs. Their entry set off an alarm that brought the police. Rather than surrender to the police, one of the extremists committed suicide by detonating the explosives he had stolen. The blast caused the entire warehouse to explode. A house located a half mile away was damaged by the explosion. If the homeowner asserts a claim for damages against company on the ground that storing explosives is an abnormally dangerous activity, which of the following would be Company's most effective defense? a.The explosion did not result from unreasonable conduct by Company. b.The damage did not occur from a physical invasion of the homeowner's property by an object under the control of Company. c.The conduct of the extremist was an intervening cause of harm. d.It was not foreseeable that extremists would deliberately detonate explosives in the warehouse.
d.It was not foreseeable that extremists would deliberately detonate explosives in the warehouse.
A hot-air balloon touring company operated near a golf course. The company's property was separated from the golf course by a fence on which the company had posted signs warning people not to enter the property because of the dangers of balloon landing. A golfer on the golf course hit an errant shot onto the company's property, ignored the warning signs, and jumped over the fence to retrieve her golf ball, At about the same item, one of the company's balloons experienced mechanical problems and had to make an emergency landing to avoid crashing. The balloon, which was out of control when it landed, struck the golfer and injured her. The jurisdiction has decided that hot-air ballooning is an abnormally dangerous activity. In an action by the golfer against the company, does the company have any affirmative defenses? a.No, because the balloon was out of control when it struck the golfer. b.No, because the company was engaged in an abnormally dangerous activity. c.Yes, because the balloon landed to avoid crashing. d.Yes, because the golfer assumed the risk by coming onto the company's property.
d.Yes, because the golfer assumed the risk by coming onto the company's property.
STRICT LIABILITY PRIMA FACIE CASE
• STRICT LIABILITY-ELEMENTS OF PRIMA FACIE CASE- •1. The nature of defendant's activity/animal/product imposes an absolute duty to make safe; •2. The dangerous aspect/defect of the activity/animal/product is the actual and proximate cause of plaintiff's injury; •3. The plaintiff suffered damage to person or property. • •4. No assumption of the risk defense
