Torts MBE

After consuming too much alcohol, an actor tripped over his own feet and smashed face first into a sidewalk. The actor delayed seeking medical attention for his facial injuries for several days, which aggravated those injuries. When the actor finally sought treatment from a plastic surgeon, the plastic surgeon negligently performed the operation on the actor's face. After surgery, the actor failed to follow the surgeon's post-operative instructions. All of the actor's actions coupled with the surgeon's negligence contributed to the actor's permanent facial scarring. The actor received reimbursement for some of his medical expenses from an insurer under a health insurance policy. The actor sued the plastic surgeon for damages attributable to the surgeon's medical treatment of the actor's facial injuries. The applicable jurisdiction has not modified the common law collateral-source rule. Assuming that the monetary effect of each of the following can be established with reasonable certainty, which can be taken into account to reduce the damages to which the actor would otherwise be entitled due to the surgeon's negligence? The plaintiff's negligent behavior that initially led to his facial injuries. The plaintiff's failure to promptly seek medical care. The plaintiff's failure to follow the surgeon's post-operative instructions. The reimbursement for medical expenses received by the plaintiff.

A + B. Wrong because P's conduct while contributing to P's injuries, produced the condition that D undertook to treat, so surgeon isn't liable for such injuries, but only for the harm caused by surgeon's negligent treatment of the injuries C. Correct. P must take reasonable steps to mitigate damages. Failure by P to mitigate his damages can be considered in calculating P's damages. D. Wrong because the jurisdiction follows the collateral source rule and D can't reduce his damages by amounts received by P from a third party

A chef and her friend were cooking dinner. As the friend handed a knife to the chef, the knife slipped and fell, slicing into the chef's foot. While the chef's foot was being treated at the hospital, the chef contracted a severe infection, which eventually necessitated the amputation of her foot. The chef sued the hospital and her friend in a jurisdiction that applies traditional joint and several liability rules, allows contribution, and uses a pure comparative negligence system. The jury determined that the chef suffered $1 million in damages, and apportioned the fault as follows: 30% to the chef, 55% to the friend, and 15% to the hospital. How much, if anything, may the chef collect from the hospital, and how much, if anything, may the hospital seek in contribution from the friend? The chef may collect $150,000 from the hospital, and the hospital may not seek contribution from the friend. The chef may collect $150,000 from the hospital, and the hospital may seek $150,000 in contribution from the friend. The chef may collect $700,000 from the hospital, and the hospital may seek $550,000 in contribution from the friend. The chef may collect $700,000 from the hospital, and the hospital may not seek contribution from the friend.

A + B. Wrong because chef can recover full judgment from H and paying D can seek contribution from other D's C. Correct. Traditional joint and several liability + pure comparative negligence = P can recover his damages reduced by the proportion of his own fault from any D. If the jurisdiction permits contribution, the paying D can seek contribution from other D's and recover anything paid in excess of his fair share. Here, Chef = 1m and 30% at fault. So she can collect $700k from either D. H was 15% at fault, so it can seek $550k from friend, who was 55% at fault. D. Wrong because this jurisdiction allows contribution among Ds

The owner of a lakefront home in a retirement community that greatly restricts access by nonresidents was aware that her dock needed repair, but was unable to afford the considerable expense to do so. The owner placed a large heavy chair at the entrance to the dock with a sign that read, "Please do not enter. Dock in need of repair." Two children, a six-year-old boy and a ten-year-old girl, entered the property without permission from, or knowledge of the owner. The children quickly discovered the dock. The girl read the sign aloud to the boy and advised him, "You shouldn't go out on the dock." The boy, responding "But it's not dangerous," climbed over the chair and walked out onto the dock. As the boy ran to the end of the dock, a rotten plank on which the boy stepped gave way, and he fell into the lake and drowned. As permitted by the applicable jurisdiction, the boy's parents sued the owner in a wrongful death action alleging that her negligence with respect to the dock caused the boy's death. At trial, the boy's parents argued that the dock constituted an attractive nuisance. Which of the following may protect the owner from liability that otherwise would arise under this doctrine? The owner lives in a retirement community that greatly restricts access by nonresidents. The boy was not attracted to the property by the presence of the dock. The boy was a trespasser. The boy was aware of the owner's warning.

A. Correct. Attractive nuisance doctrine requires that the landowner knows or has reason to know that the artificial condition is located in a place that children are likely to trespass. Since the owner lives in a retirement community that restricts access by nonresidents, this requirement isn't satisfied. B. Wrong because the attractive nuisance doctrine doesn't require that the child is enticed onto the property by presence of the condition C. Wrong because the purpose of the attractive nuisance doctrine is to permit a child trespasser to recover for a landowner's negligence D. Wrong because attractive nuisance requires that a child, due to his age, doesn't appreciate the danger presented by the condition

A fisherman who lived next to a lake owned a large sport-utility vehicle equipped with a trailer hitch. He used the vehicle primarily to tow his large fishing boat. One afternoon, a neighbor asked if she could borrow the fisherman's vehicle for a short time in order to tow her boat back from the dock, as her car was at the repair shop. The fisherman agreed to let the neighbor use the vehicle to tow her boat, but asked her to return the vehicle immediately afterward. The neighbor drove the vehicle to the dock and towed her boat back without incident. Before returning the vehicle, the neighbor decided to buy a gift for the fisherman as a token of appreciation. While the neighbor was driving the vehicle to the store to buy the gift, she was involved in a serious accident. The neighbor was not seriously hurt, but the vehicle was a total loss. If the fisherman sues his neighbor for conversion, will he prevail? Yes, because the neighbor exceeded the scope of consent. Yes, because the neighbor's use of the vehicle constituted a frolic rather than a mere detour. No, because the neighbor was acting for the fisherman's benefit. No, because the fisherman had consented to the activity and the damage was accidental.

A. Correct. Consent is effective if P by words or actions manifests the willingness to submit to D's conduct, but D's conduct can't exceed scope of the consent. Here, fisherman consented to the use of the vehicle to tow the boat, but using the boat the second time exceeds the scope of the fisherman's consent B. Wrong because the concept of frolic and detour might be applicable to determine an employer's VL for an employees action, but it's not applicable in a non-employment situation C. Wrong because once the scope of consent has been exceeded, the purpose of D's conduct is irrelevant D. Wrong because the neighbor exceeded the scope of the fisherman's consent

A patron at a resort ranch took part in a supervised horseback trail ride. Prior to the ride, the patron executed a valid release that enumerated the inherent risks of horseback riding and, by its terms, relieved the resort from liability from any loss, damage, or injury to the guest's person or property suffered during the ride attributable to the negligence of the ranch or its employees. The patron was injured by a fall from the horse. The horse reared in response to negligent behavior of another rider who was also a patron at the ranch. The patron filed suit against the ranch and the other rider for damages resulting from his injuries that totaled $400,000. At trial, it was determined that the ranch was 75% at fault for the patron's injuries due to its selection and training of the horse, and that the other rider was 25% at fault. The applicable jurisdiction recognizes the validity of such releases and has enacted both a modified comparative negligence statute and a pure several liability statute. How much can the patron recover from the ranch?

A. Correct. Generally, parties can contract to disclaim liability for negligence. An exculpatory provision in a contract acts as a bar to recovery for harms arising from negligence of the party protected by the contract. The bar applies even where the state has adopted a comparative negligence statute. Here, patron entered into a valid agreement to exculpate the ranch from liability for its negligence, so BCD are incorrect Pure comparative fault would give the patron $400k because the patron wasn't negligent. Pure several liability would only give the patron the amount to which the defendant was negligent.

An avid runner was diagnosed with a serious heart condition. The runner's doctor advised her to avoid strenuous physical activity, including running, as such activity would create a substantial risk of cardiac arrest. The runner refrained from such activity for a month, but in that time she gained 15 pounds and felt very unhealthy. Deciding that the health benefits of running outweighed the risk involved, one morning she set out on her normal running path—the shoulder of a flat rural road. Five miles into the run, the runner suffered a heart attack, collapsed, and lapsed into a coma. Two minutes later, the runner's feet and legs—which were partially sticking out into the travel lane—were run over by a car. The driver of the car, who had been traveling at a reasonable speed, was aware of the runner but was unable to avoid her due to a locking up of the car's brakes that the driver had negligently failed to have repaired. The runner survived, but suffered serious injuries to both of her legs. The runner sued the driver for those injuries in a jurisdiction that applies traditional contributory negligence rules. Is the runner likely to prevail? No, because the runner was contributorily negligent. No, because the driver was aware of the runner's predicament before the accident occurred. Yes, because of the runner's helpless peril at the time of the accident. Yes, because the driver was negligent in driving the car with brakes in need of repair.

A. Correct. In a contributory negligence jurisdiction, P's contributory negligence is a complete bar to P's recovery. Here, runner was negligent in running against her doctor's advice, so despite the driver's negligence in failing to properly maintain the car which led to the accident, runner can't recover at all. B. Wrong because while driver was aware of the runner's issue before the accident, the driver couldn't avoid hitting the runner by acting reasonably. His negligence (repairing brakes) occurred prior to his awareness of the runner's predicament and couldn't be corrected after gaining awareness before the accident C. Wrong because while runner was unable to assess the situation because she was unconscious, driver might be liable if he had the last clear chance to avoid the accident. D. Wrong because in a contributory negligence jurisdiction, negligence of D isn't sufficient to permit P to recover where P is also negligent

After a man suffered a major epileptic seizure, he reported the seizure to his state's Motor Vehicle Administration, in compliance with the following statute: Driver's license holders diagnosed with epilepsy shall be required to report their epilepsy and seizures to the State Motor Vehicle Administration (SMVA). The SMVA shall refer their license applications to the Medical Advisory Board for review. The Board may, in its discretion, suspend or revoke a person's driver's license or refuse to renew a license for longer than 90 days if the person's driving may be adversely affected by a seizure. Pursuant to its authority, the Medical Advisory Board revoked the man's driver's license. Nonetheless, the man kept driving his car to work, and one morning, he hit a pedestrian with his car. The pedestrian was crossing the street in a crosswalk. There is no evidence that the man was suffering an epileptic seizure at the time of the incident. The pedestrian sued the man, and during trial, argued that the man's actions constituted negligence per se. Will the pedestrian's argument be successful? No, because the man was not suffering a seizure at the time of the accident. No, because the harm suffered by the pedestrian was not of the type contemplated by the statute. Yes, because the man was driving in violation of the Medical Advisory Board's order. Yes, because the pedestrian is in the class of persons intended to be protected by the statute.

A. Correct. Negligence Per Se: When a statute imposes a penalty for violation of a specific duty, if the defendant violates it by failing to perform, he's liable in negligence to anyone in the class of people intended to be protected by the statute for any harms of the type the statute was intended to protect against. After NPS is shown, for D to be liable, P must prove his injuries were proximately caused by D's violation of the statute. Here, the accident wasn't the statute was designed to protect against. It was designed to prevent consequences of a driver suffering a seizure behind the wheel, but there's no seizure here, so NPS won't apply. B. Incorrect because pedestrian hit by car, the harm is within the type contemplated by statute. C + D. Wrong because they ignore "manner of harm" requirement for NPS

A company owned and operated a private golf course. One of the fairways on the course ran parallel to a navigable body of water. The company was aware that golfers frequently but unintentionally hit golf balls into the water when playing that hole because there were no barriers to prevent the balls from going into the water. A 12-year-old child, while sailing on the water, was struck by one such ball and suffered a serious physical injury. The injured child's parent has filed a public nuisance action against the company, on behalf of his child, to recover for his injuries. Is the plaintiff precluded from recovering? No, because the child was seriously injured while on navigable water due to the company's negligence. No, because of the attractive nuisance doctrine. Yes, because the child did not have an ownership interest in land. Yes, because the golfer's action was unintentional.

A. Correct. Private citizens can maintain a public nuisance action if they suffer special injuries different in kind to that suffered by the general public. P's physical injury here constitutes a special injury. Regarding the public passageway, P's injury must arise from the use of that passageway and D's conduct must interfere with, obstruct, or render the passageway dangerous for passage. B. Attractive nuisance applies to child-plaintiff who trespasses on D's property ad is injured by an artificial condition on the property. Here, kid was injured while legally on the water, not while trespassing on D's property C. Wrong because unlike a private nuisance, public nuisance doesn't require P have possessory rights in real property D. Wrong because P's suit is against the company that operated the golf course, not the golfer personally. Nuisance actions whether public or private can be based on D's negligent conduct which doesn't need to be intentional

A pedestrian was walking next to a building under construction. Suddenly, he was hit in the head by a falling brick. As a consequence, the pedestrian suffered a skull fracture and a severe brain injury. The pedestrian sued the construction company. At trial, the pedestrian did not introduce any direct evidence of the construction company's negligence, but proved that the construction company's employees were in control of its bricks at all relevant times, and that a brick does not ordinarily fall from a building under construction without negligence. The construction company offered uncontroverted proof that the pedestrian was negligent by walking so close to an active construction site. The jurisdiction in which the lawsuit is proceeding applies pure comparative negligence rules. At the close of all evidence, the construction company moved for a directed verdict. Should the court deny this motion? Yes, because the pedestrian's negligence does not reduce the likelihood of the construction company being negligent. Yes, because res ipsa loquitur requires a finding of negligence. No, because a party who is negligent may not prevail under a res ipsa loquitur theory. No, because the pedestrian has not produced any direct evidence of the company's culpability.

A. Correct. To obtain res ipsa jury instruction, P has to prove i) his injury was caused by an instrumentality or agent within exclusive control of D, ii) accident was a kind that ordinarily doesn't occur absent negligence, and iii) the harm wasn't due to any action on part of P. The third requirement isn't satisfied if P's own negligence increases the likelihood of D's negligence. Here, pedestrian's negligence (proximity to construction site) had nothing to do with construction company's negligent control of the brick. B. Incorrect because res ipsa instruction allows jury to find negligence even in the absence of direct evidence, but it doesn't require jury to do so. C. Wrong because it's an inaccurate statement of the law. P's own negligence doesn't prevent him from recovering under res ipsa. D. Wrong because res ipsa allows a finding of negligence in the absence of direct evidence. Note: Courts in most jurisdictions adopted comparative fault are inclined to loosely apply third requirement because it'd be in tension with the law holding that P's contributory negligence is no longer a bar to recovery

A telephone company was removing wooden utility poles on a residential street and replacing them with new steel poles. The old poles were approximately 25 feet tall, and weighed several tons each. One morning, telephone company employees were removing an old pole. As a 10-year-old boy walked past the construction site, the old utility pole fell and crushed him to death. When the news was conveyed to the boy's mother, who was at work several miles away, she immediately fainted. For the next 48 hours, the mother was unable to function due to shock over the event. In the following months, the mother had difficulty sleeping due to nightmares as a result of the incident. The mother sued the telephone company for negligent infliction of emotional distress stemming from her son's death. She produced evidence at trial conclusively establishing that the telephone company was negligent in allowing the old utility pole to fall. The applicable jurisdiction has abandoned the zone of danger requirement for this type of action. Which party is likely to prevail? The mother, because she was closely related to the boy. The mother, because she suffered severe emotional distress. The telephone company, because the mother was not present at the scene of the accident. The telephone company, because its actions were not extreme and outrageous.

A. Incorrect because while a bystander must be closely related to the person directly harmed in order to recover, the existence of the relationship isn't the sole requirement for recovery B. Incorrect because while the mom's fainting, shock, and sleeping problems show emotional distress, it's not the sole requirement for recovery C. Correct. Someone who isn't within the zone of danger can recover under NIED if she's i) closely related to the person injured by D, ii) present at the scene of the injury, and iii) personally observe or perceive the injury D. Extreme and outrageous conduct is an element of IIED, not NIED

On a winter day, a youth, seeking refuge from the cold, entered a small neighborhood grocery store without the knowledge of the store's owner, who was standing at the cash register. Shortly thereafter, the only other person in the store approached the register and requested an item located on a shelf behind the owner. As the owner turned to retrieve the requested item, the individual drew a gun and commanded the owner to give him the money in the register. As the owner turned back toward the customer, the customer fired the gun at her and missed. The owner grappled with the customer and succeeded in knocking the gun out of the customer's hand. As the customer retrieved his gun, the owner grabbed her own gun, for which she had a valid license. They fired at each other, each missing the other. Although the owner's actions did not create an unreasonable risk of harm to the youth, the bullet from the owner's gun nevertheless struck and killed the youth. The estate of the youth filed a wrongful death action against the store owner. Who will prevail? The store owner, because the owner acted in self-defense. The store owner, because the owner's shooting of the youth was not negligent. The estate of the youth, because the youth was an invitee. The estate of the youth, because the youth was not a co-conspirator with the robber.

A. See B. B. Correct. When someone uses self-defense and unintentionally harms a third party, the person isn't liable for injuries to the third party that occur while the person is acting in self-defense if the injuries were accidental, not deliberate, and the person wasn't negligent to the third party C. Wrong. While the kid was an invitee, the owner's duty towards him wasn't to act with reasonable care. The shooting of the kid was accidental and not negligent under the circumstances, and owner didn't breach his duty to the kid D. Wrong because the mere fact that the youth wasn't a co-conspirator with the robber isn't enough to impose liability on the store owner. The estate of the kid would have to prove that the store owner was negligent WRT the kid while acting in self-defense or that the store owner intentionally shot the kid

A borrower owed a substantial sum of money to an unsavory lender. One afternoon, the lender knocked on the borrower's door. When the borrower opened the door, the lender was holding a baseball bat and said, "If you don't get me the money you owe within the next two hours, I'll break your legs." The borrower was extremely frightened, and immediately gave the lender the cash needed to satisfy the debt. If the borrower later sues the lender for assault, will the borrower prevail? Yes, because the lender threatened the borrower with harmful or offensive bodily contact. Yes, because the lender intended to place the borrower in apprehension of harmful or offensive bodily contact. No, because the lender's words alone cannot give rise to an assault claim. No, because the lender gave the borrower two hours to deliver the money.

A. See D. The threat wasn't imminent. B. See D C. Words alone can give rise to assault, but here they didn't because it wasn't imminent. D. Correct. To recover for assault, P must prove D's intentional action or threat caused P to experience reasonable apprehension of imminent harmful or offensive bodily conduct. Here, the lender threatened the borrower with harm two hours later in time, so the threatened harmful bodily contact wasn't imminent, so an assault claim can't prevail

Over the course of one night, an attorney went to three different bars: Bar A, Bar B, and Bar C. The attorney stayed at each bar for roughly equal amounts of time, and each bar served him enough liquor to make him legally intoxicated. At the end of the night, the attorney left Bar C and was driving home erratically. A block away from his home, the attorney lost control of his car, careened into oncoming traffic, and collided with his neighbor's car. The attorney died in the collision, and his neighbor was permanently disfigured. The neighbor sued Bar A in a jurisdiction that has adopted standard dram shop laws. Bar A filed a motion to dismiss the suit for failing to state a claim upon which relief can be granted. How should the court rule on the motion? Deny the motion, and order Bar B, Bar C, and the attorney's estate joined as defendants. Deny the motion, because a reasonable fact finder could determine that the neighbor's injuries were a continuing consequence of Bar A's actions. Grant the motion, because the attorney's criminal act of driving drunk was a superseding cause that cut off Bar A's liability. Grant the motion, because Bar A's negligence was not the "but-for" cause of the neighbor's injuries.

A. Wrong because Bar A was a substantial factor in causing neighbors injuries so it can be held liable for all his damages B. Correct. D's drunk driving was a foreseeable continuing consequence of Bar A's negligent activities, so Bar A can be held liable, because its actions were a substantial factor in causing the neighbors injuries. Bar A can't escape liability because other negligent factors exist. C. Wrong because attorney's drunk driving was foreseeable and thus was not a superseding cause D. Wrong because Bar A's actions were a substantial factor in causing the neighbor's injuries and thus are considered a cause in fact

A pregnant mother and a soccer coach of the mother's young child were involved in a serious verbal altercation. The argument continued escalating until the coach suddenly punched the mother in the face and pushed her to the ground. The coach immediately fled the area. The mother did not suffer serious physical injury. Nonetheless, the incident greatly traumatized her. In the weeks following the attack, she had many sleepless nights and suffered several panic attacks. The mother brought suit against the coach for intentional infliction of emotional distress. The coach filed a motion for summary judgment. How should the court rule on the motion? Grant the motion, because the coach did not intend to cause severe emotional distress. Grant the motion, because the mother did not suffer a significant physical injury. Deny the motion, because a jury could find that the coach was reckless as to the risk of causing emotional distress. Deny the motion, because the doctrine of transferred intent applies.

A. Wrong because IIED can either be intentional or reckless B. Wrong because IIED doesn't require physical injury, physical injury only applies to bystanders C. Correct. IIED requires P to show that she suffered severe emotional distress from D's conduct, that D intended to cause severe emotional distress, or acted with recklessness as to the risk of causing such distress and D's conduct was extreme and outrageous. Thus court should deny SJ D. Transferred intent doesn't apply to IIED when D intended to commit a different intentional tort like battery against a different victim. Transferred intent might apply to IIED if instead of harming the intended person, D harmed another

An adult woman was vacationing at a friend's house on a lake. One afternoon, the woman watched her friend maneuver his motorized personal watercraft around the lake; the friend took a particularly violent spill that temporarily knocked the wind out of him but left him otherwise unharmed. The next morning, without the friend's knowledge, she decided to take the personal watercraft out on the lake herself. Due to her inability to control the vehicle, it flipped over. As a consequence, the woman suffered serious physical injuries. The woman brought a lawsuit against the friend to recover damages for her injuries. The applicable jurisdiction has adopted comparative negligence rules. Prior to the submission of the case to the jury, the friend requested that the court specifically instruct the jury on the assumption of the risk defense. Should the court grant this request? Yes, because the woman voluntarily assumed the risk of being injured. Yes, because assumption of the risk is an absolute bar to recovery. No, because the defendant did not have the requisite knowledge for this defense. No, because assumption of the risk is not recognized as a separate defense.

A. Wrong because even assuming that the woman did voluntarily assume the risk, the defense isn't recognized as a separate defense in a comparative negligence jurisdiction B. Wrong because AOR is only an absolute bar to recovery in a contributory negligence jurisdiction, not comparative negligence jurisdiction C. Wrong because AOR requires P, not D, to be aware of the risk of P's conduct D. Correct. In comparative negligence jurisdictions, assumption of the risk isn't recognized as a separate defense, it's merged into the comparative fault analysis and reduces recovery. P's awareness of the risk of her conduct is taken into account in determining the degree to which she's at fault but can be considered in determining the reasonableness of P's or D's actions

In reporting on the death of a city official whose bullet-ridden body was found in a barren apartment, a newspaper attributed the death to a "drug deal that went sour." The newspaper reporter who filed the report had serious doubts about the official's involvement with drugs. Later, the newspaper determined that the official neither used nor sold illegal drugs, but instead was killed because he had been involved in a fraud scheme that went awry. The executor of the official's estate brought an action for defamation against the newspaper. The executor is unable to establish special damages. Who will prevail? The executor, because presumed damages are permitted for a libel action. The executor, because the newspaper acted with malice. The newspaper, because the city official was dead. The newspaper, because the statement regarding the city official's involvement in criminal activity was substantially true.

A. Wrong because even though presumed damages are permitted in a libel action, there's no basis for such under these facts. B. Wrong because even though the newspaper acted with reckless disregard for the truth of tis statement about the official's involvement in illegal drug activity, sufficient to constitute malice, the statement was made about a deceased person C. Correct. Dead people can't be legally defamed. The estate of the deceased official can't maintain an action for defamation because the defamatory statement was made after the official's death. D. Wrong because a statement that a person has engaged in conduct substantially different from the conduct in which the person did in fact engage, such as different kinds of crime, is not considered to be true

The maker of a prescription drug provides physicians who prescribe the drug with detailed instructions regarding its use. The instructions include a warning about the possibility of an allergic reaction that could result in serious physical harm if the drug is taken with a common over-the-counter medication. However, the allergic reaction is only likely to occur in a very small portion of the population, so the drug maker does not provide this warning to consumers of the drug in the instructions that accompany the drug. A physician who had received the detailed instructions from the drug maker prescribed the drug for a patient. The physician did not warn the patient about the possible allergic reaction. The patient experienced an allergic reaction from taking the drug in combination with the over-the-counter medication and suffered a debilitating injury. The patient brought a strict products liability action against the drug maker based on its failure to warn the patient of the possibility of an allergic reaction. Who will prevail? The patient, because the drug maker failed to warn the patient of the allergic reaction. The patient, because the drug maker, as a commercial supplier, is liable for harm done by the drug. The drug maker, because it warned the prescribing physician of the allergic reaction. The drug maker, because the number of persons at risk was very limited.

A. Wrong because for drugs that can't be legally obtained without a prescription, the drug maker isn't generally required to provide a warning directly to the patient, but can rely on the learned intermediary rule B. Wrong because the patient sought to base the defective nature of the product on the maker's failure to warn, the drug maker isn't liable because it satisfied its duty to warn by warning the physician C. Correct. Under the learned intermediary rule, the manufacturer of a prescription drug or medical device satisfies its duty to warn by informing the prescribing physician of problems with the drug or device rather than informing the patient taking the drug D. Wrong because the manufacturer can be liable for a failure to warn when a small number of persons are at risk if the severity of the potential harm is great

A college student entered the back yard of a zoology professor to attend a social gathering for students that was to be held there. The professor was cleaning out the cage of his pet porcupine and had carelessly allowed the porcupine to roam free. The porcupine, well camouflaged in a pile of leaves, was sunning itself. The student didn't see the porcupine, tripped over it, and broke his hand. The applicable jurisdiction permits the keeping of a porcupine as a pet. In a strict liability action by the student against the professor, who will prevail? The student, because the professor possessed a wild animal. The student, because the professor, aware that students were coming to a social gathering, failed to act with reasonable care. The professor, because the student was only a licensee, not an invitee. The professor, because the student was not injured as a consequence of a dangerous propensity of the animal

A. Wrong because possessor of a wild animal isn't strictly liable when the injury doesn't result from the dangerous propensity of the animal B. Wrong because the action brought by the student was based on SL, not negligence C. Wrong because the exception to strict liability for a possessor of a wild animal applies only to a trespasser injured by the wild animal on the possessor's property. Doesn't extend to a licensee, social guest, or an invitee D. Correct. Possessor of a wild animal generally strictly liable for injuries caused by the animal, but strict liability doesn't apply to injuries that do not result from the dangerous propensities from the animal. Here, student tripped over and fell the porcupine.

An automotive enthusiast owned a sports car that was the fastest production car available in the United States. The enthusiast was friendly with a neighbor, who was 25 years old and had a clean driving record. The neighbor wanted to borrow the sports car to drive to a social event and impress some clients. The enthusiast allowed the neighbor to borrow the sports car, but told him very clearly and sternly that he was to drive very carefully, that he was not to exceed the speed limit, and that he was to bring the sports car back as soon as the event concluded. After the event concluded, the neighbor drove the car around for an additional two hours, often at very high speeds. Eventually, he slammed into another car while driving over 100 miles per hour. The driver of the other car survived, but sustained serious injuries in the accident. The driver of the other car sued the enthusiast in a jurisdiction without an owner liability statute, claiming that the enthusiast negligently entrusted his neighbor with the vehicle. The foregoing facts are undisputed. If the enthusiast files a motion for a directed verdict, which party is likely to prevail?

A. Wrong because specific instructions, no matter how clearly or sternly worded, doesn't protect a vicariously liable party from being held accountable B. Correct. tort of negligent entrustment allows the owner of a vehicle to be held liable for the negligent acts of a driver to whom the car was entrusted if the owner knows or should know of the driver's negligent propensities. Thus, a negligent entrustment claim won't lie, and D is incorrect C. Wrong because an operative owner liability statute would've vested liability in the enthusiast. In jurisdictions with owner liability statutes, the owner of a car can be liable for tortious acts of anyone driving the car with permission D. See B

A pest control company fumigated one of two buildings in an apartment complex with a toxic gas in order to eliminate unwanted insects. Even though the company exercised reasonable care, the gas escaped into the other building, which adjoined the fumigated building, where the gas caused serious illness to a tenant in that building. The tenant had received a written advance notice about the fumigation that advised the tenant of the need to vacate his apartment during the hours the fumigation was conducted. The tenant chose instead to remain there in order to watch a favorite television program. The applicable jurisdiction treats fumigation as an ultrahazardous activity. The injured tenant filed an action against the pest control company. Who will prevail? The tenant, because the pest control company is strictly liable for the harm that resulted from the fumigation. The tenant, because the pest control company was negligent in conducting the fumigation. The pest control company, because the tenant was not a resident of the fumigated building. The pest control company, because the tenant assumed the risk.

A. Wrong because the company is SL but AOR is a defense to SL. B. Wrong because the company exercised reasonable care in fumigating the building C. Wrong because company's SL to the tenant is not based on residency in the fumigated building D. Correct. While the pest control company engaged in an abnormally dangerous activity is strictly liable for harm resulting from the conduct of that activity, AOR is a defense to SL. Tenant's decision to remain there and exposing himself to the gas was knowing and voluntary.

Engrossed in a cell phone conversation, a pedestrian in a rural area failed to look out for traffic while crossing a road. The driver of an oncoming car noticed the pedestrian and began to brake, which caused a cake sitting on the front passenger seat to slide off the seat and onto the floor of the car. Distracted by the cake, the driver, who was 17 years old and properly licensed to operate the car without supervision, momentarily forgot about the pedestrian. When the driver's attention returned to the road, the driver did not have sufficient time to avoid striking the pedestrian, who suffered serious physical injuries as a result. The applicable jurisdiction has adopted a modified comparative negligence statute. The pedestrian brings a negligence action against the driver for damages stemming from the pedestrian's physical injuries, which total $200,000. The jury determines that the driver was 80% at fault and the pedestrian was 20% at fault. How much will the pedestrian be permitted to recover? Nothing, because the pedestrian was negligent. $160,000, because the pedestrian's damages are reduced by the percentage that the pedestrian was at fault. $200,000, because the driver had the last clear chance to avoid the accident. $200,000, because the driver was engaged in an adult activity.

A. Wrong because unlike a contributory negligence regime, P who's negligent isn't automatically barred from recovering damages B. Correct. Under modified comparative negligence, P's damages are reduced by the % that P is at fault and can recover as long as their % of negligence is not larger than D's. Here, since pedestrian is 20% at fault, the pedestrian's damages ($200k) are reduced by $40k ($200k*20%). Pure comparative fault is the default C. Last clear chance been abolished in jurisdictions that adopted comparative negligence, and it only applies in contributory negligence anyways D. Minor who engages in high risk activity usually done by adults is held to the adult standard in determining whether the minor has acted negligently. It doesn't prevent application of comparative negligence rules in determining the extent to which the minor is liable for damages

In a well-trafficked downtown location, a voyeur concealed a video camera near a sidewalk grate. As the voyeur was aware, a natural spurt of air coming up from the grate would occasionally lift a woman's skirt and reveal her underwear. In reviewing the video taken one day, the voyeur discovered a short sequence involving a prominent female politician who at the time was not wearing underwear. The voyeur contacted the politician and demanded a substantial payment in exchange for not posting the video on the Internet. The politician sued the voyeur in an invasion of privacy action based on intrusion upon her seclusion. The voyeur moved to dismiss the action for failure to state a cause of action. Should the court grant this motion? No, because the politician did not consent to the video. No, because the video intruded into her privacy in a manner highly offensive to a reasonable person. Yes, because the video was made in a public place. Yes, because the video was not revealed to a third party.

A. Wrong because while P's consent to D's intrusion into a secluded area is a defense to this type of invasion of privacy action, the absence of such consent doesn't give rise to a cause of action B. Correct. D's act of intruding, physically or otherwise, into P's private seclusion if the intrusion is highly offensive to a reasonable person establishes liability. Here, video pried into a matter over which P retained a privacy interest and the manner in which the voyeur did so was highly offensive to a reasonable person. C. Wrong because while this type of invasion of privacy generally doesn't protect P in a public place, there are some matters like the ones here, about which P retains an expectation of privacy in a public place. D. Wrong because unlike other types of invasion of privacy actions, intrusion upon seclusion doesn't require that the private info about P be published to a third party.

A manufacturer of hot water heaters contacted a supplier of plastic resin about using the resin in the manufacturing of a heater. The supplier gave the manufacturer technical advice about how to mold the resin into a hot water tank. The supplier told the manufacturer that, in order to withstand the temperatures specified by the manufacturer, the resin would need to be at least one inch thick. The manufacturer ordered the resin from the supplier. The manufacturer designed and made the tank for its hot water heaters three-quarters of an inch thick using the supplier's resin. A homeowner purchased a hot water heater made by the manufacturer from a local plumbing supply store. Due solely to the walls of the tank being too thin, the tank melted when used by the homeowner. The homeowner did not suffer physical injury, but experienced substantial property damage as a consequence of the melted tank. The homeowner initiated a strict products liability action against the plastic supplier for damages suffered as a consequence of the melted hot water tank. Who will prevail? The homeowner, because the supplier was a commercial seller of the plastic resin. The homeowner, because the melting of the material provided by the supplier caused the homeowner's harm. The supplier, because the homeowner did not suffer a physical injury. The supplier, because the defect in the hot water heater was not attributable to the supplier.

A. Wrong because while a supplier who's a commercial seller of a defective product can be liable in a strict products liability action, the supplier in question, as the maker of a component of the defective hot water heater, wasn't liable, because of (D) B. Wrong because the melted plastic in the tank caused the homeowner's harm but the supplier of the plastic wasn't responsible for the defective product C. Wrong because P can recover in a strict products liability action for damage to P's property caused by a defective product, even though P doesn't suffer a physical injury D. Correct. Supplier of a component that's integrated into a product during its manufacture isn't liable unless the component itself is defective or the supplier substantially participates in the integration process and the integration of the component causes the product to be defective

An employee at a toy store intervened in a dispute between two unrelated customers, a mother and a grandfather, over who was entitled to a particular hard-to-come-by doll, which was the only remaining one at the store. The employee arbitrarily determined that the mother had possession of the doll first and awarded her the right to purchase the doll. When the grandfather protested the employee's decision, the mother threatened to inflict physical harm on the grandfather and raised her arm to strike him. Fearful that the mother would do so, the grandfather looked to the employee for help. The employee, who because of his size could easily have forestalled the mother's attack, simply shrugged his shoulders. Before the mother made contact with the grandfather, he crumpled to floor, the victim of a stroke caused by the mother's threat. The grandfather initiates a lawsuit against the mother, the employee, and the owner of the store on the grounds of assault for damages attributable to his stroke. The owner of the store moves to dismiss the complaint against herself for failure to state a cause of action. How should the court rule? Deny the motion, because the grandfather was reasonably apprehensive of an immediate battery. Deny the motion, because the employee failed to act to protect the grandfather. Grant the motion, because the owner is not vicariously liable for assault by one customer upon another. Grant the motion, because respondeat superior does not apply to an employee's intentional torts.

A. Wrong because while grandfather was reasonably apprehensive of an imminent battery by the mother, neither the employee, nor vicariously the owner, committed an assault WRT the grandfather. B. Wrong because neither the employee nor owner is liable for grandfather's injuries on the basis of assault C. Correct. Store owner isn't VL for an assault committed by one customer upon another. Any liability that the owner might have from the incident would arise from the employee's negligence for failure to prevent the assault D. Wrong because while employer's generally not liable for an employee's intentional torts, employer can be liable for such a tort if the employer authorized the use of force or force is inherent in the nature of employment

A man played in a recreational ice hockey league that had a well-known reputation for aggressive play. The games often became quite physical, and injuries were common. In one game, the man scored the winning goal as time expired in the game. After the referee had blown his whistle, ending play, the man launched into a particularly exuberant celebration. An opposing player, angered by the celebration, hit the man on the forearm with a hockey stick, but did not intend to cause serious injury. The man collapsed in pain; tests later revealed that he suffered a severe forearm fracture as a result of the incident. If the man sues the opposing player for battery, will the man prevail? Yes, because the opposing player's conduct was willful and wanton. Yes, because the opposing player intended to bring about a harmful or offensive contact. No, because the man impliedly consented to rough play. No, because the opposing player did not intend to break the man's arm.

A. Wrong because willful and wanton conduct is a requirement for obtaining punitive damages but isn't necessary to establish a battery claim B. Correct. Man is victim of battery, only question is whether his implied consent serves as a defense. Consent is implied in situations where contact is common, but the battery in question isn't a routine contact, the game already ended before the battery took place C. See B D. Wrong because the intent required for a battery is the intent to bring a harmful or offensive bodily contact, whether D intended the specific outcome is irrelevant

A man owned a fleet of small airplanes available for charter within the region. He was flying with customers one day when he was forced to make an emergency landing in a field. A farmer on the land tried to prevent the man from landing on his field and destroying his crops by standing in the landing path of the plane and waving the plane into an adjacent barren field. While the farmer was gesturing to the airplane, a piece of metal from the plane came loose and struck his shoulder, injuring him. The farmer sued the man, who in his answer contended that the farmer's actions barred recovery. The farmer's attorney provided evidence that the man had not completed an inspection on the plane for nearly two years and that an inspection would have quickly notified him of the loose piece of metal on the plane. Is the owner of the airplane likely liable to the farmer for the injury? Yes, because he owned the plane that injured the farmer. Yes, because he had not had the plane inspected for two years. No, because he acted as a reasonable person would have acted in an emergency landing. No, because the farmer stood in the landing path.

A. Wrong, mere ownership insufficient to create liability. Actions must elevate owner's behavior to negligence B. Correct. While owners of planes used to be SL for damages caused by them, the modern trend applies negligence to accidents in which objects falling from the airplane or airplane itself harms persons or objects on the ground. Plane owners have a duty to keep the plane in repair. Here, the fact that he didn't inspect the plane in two years shows he was negligent in repairing and operating the plane. C. Wrong because the applicable standard to emergency situations is that of a reasonable person in the same situation, the owner still had the responsibility to maintain his aircraft in a non-negligent manner D. Wrong because the farmer's comparative fault would be relevant in considering the amount of damages, not absolving the owner of liability

A man was having an affair with a woman. The man and the woman had been seen together many times in public enjoying romantic dinners. One evening, when the man claimed to be going out with friends, his wife followed him. Instead of going to meet his friends, the man met the woman at a secluded restaurant. The two sat in a dark booth, and the wife snuck in and sat unseen in the booth next to them. During their conversation, which the wife recorded using her cell phone, the woman admitted that she was pregnant with the man's child. The wife was so upset about the news that she ran out of the restaurant and forgot her cell phone. A waiter found the phone and gave it to his son, who sold used cell phones for a living. While clearing out the contents of the phone, the son discovered the recorded conversation between the man and the woman regarding her pregnancy. The son anonymously posted the recording on a popular video-sharing website. The woman's attorney eventually figured out who posted the video. Now the woman wants to sue the son for invasion of privacy. If all of the following torts are recognized in the relevant jurisdiction, which of the following causes of action would provide the woman with her best chance of recovery against the son? Intrusion upon seclusion Misappropriation of the right to publicity Public disclosure of private facts False light

A. Wrong. D's act of intruding, physically or otherwise, into P's private affairs, solitude, or seclusion if the intrusion is highly offensive to a reasonable person establishes liability under this COA. Here, the man's wife, not son, intruded into private affairs by recording the conversation B. Wrong because misappropriation of the right to publicity is D's unauthorized appropriation of Ps name, likeness, or identity for D's advantage without P's consent, resulting in injury to P. Here, no evidence that son gained an advantage, commercial or otherwise C. Correct. Public disclosure of private facts requires P to show i) D gave publicity to a matter concerning the private life of another and ii) the matter publicized is of a kind that would be highly offensive to a reasonable person and isn't of legitimate concern to the public. Here, the woman is pregnant with the child of a married man and the son disclosed it to the public, and a reasonable person would find it highly offensive to have this info disclosed D. Wrong. proving false light requires D i) made public facts about P that ii) placed P in false light iii) which false light would be highly offensive to a reasonable person, and most jurisdictions require P prove actual malice by D.

In a bicycle race with a $5,000 prize for the winner, a cyclist was leading by a significant margin. A spectator at the race was married to the second place rider. Sensing that her husband would not win unless she took action, the spectator drove to a point two miles ahead on the course, scattered several nails in the middle of the course, and then left the area. Soon thereafter, the cyclist approached the area and noticed the nails. He attempted to swerve around the obstruction but a nail punctured his tire. He fell off his bike, suffered significant physical injuries, and was unable to complete the race. If the cyclist sues the spectator, under what theory is the cyclist LEAST LIKELY to recover maximum punitive damages? Assault Intentional infliction of emotional distress Trespass to chattels Battery

B. IIED requires P to prove that D intended to cause severe emotional distress OR act with recklessness to the risk of causing such distress. The recklessness must be extreme and outrageous and P must suffer emotional distress. Here no evidence that cyclist suffered emotional distress. P can recover punitive damages under assault, battery, and trespass to chattels, if D's behavior is willful and wanton, reckless, or D acted with malice, which is all suggested by the facts. Thus, A, C, and D are incorrect

In December, a contractor was hired by a power utility company to perform repair work on a large transformer. The contractor performed the work negligently and as a result severely damaged one of the conducting coils in the transformer. The damage resulted in a two-day power outage in a town with a large industrial park. An electronics manufacturer was a tenant in the industrial park, and the power outage crippled its ability to meet the strong demand for its products during the critical holiday buying season. While none of the electronic manufacturer's machines were damaged, it can prove with certainty that the power outage directly caused it to lose $750,000 in business. The electronics manufacturer sued the power utility company and the contractor for negligently causing its sales losses. If, at the end of the plaintiff's case, both defendants move for summary judgment, and all the foregoing facts are undisputed, how should the court rule on the motions? Deny both motions, because both parties were substantial factors in the electronics manufacturer's loss. Deny both motions, because the burden of proof has shifted to both defendants to exonerate themselves. Grant the motion as to the contractor, but deny the motion as to the power utility company, because liability is assigned to the principal under the respondeat superior doctrine. Grant both motions, because the electronics manufacturer suffered no tangible injury to its equipment or employees.

D. Correct. P who only suffers economic loss without related personal injury or property damage can't recover such loss through negligence action. Here, electronics manufacturer's $750k loss is purely economic, so any negligence claim is improper. Thus, ABC are incorrect

you got this bro don't give up

you're so right bro i won't give up