BAR REFRESHER - TORTS

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•Problem: Leaving a restaurant, B takes A's coat, mistaking it for his own. B returns it six months later. Were any torts committed?

-Conversion

•The National Inquirer publishes a story claiming that Tom Cruise is being treated by a psychiatrist. The paper bases its story on three anonymous tips and on the fact that Tom was seen entering a building that contains several psychiatrist offices. It turns out the story was untrue. Were any torts committed?

-Probably not, because there is no evidence of "actual malice." (not defamation but maybe negligence)

•Miller applied to the state liquor board for transfer of the license of Miller's Bar and Grill to a new site. The board held a hearing on the application. At that hearing, Hammond appeared without being subpoenaed and stated that Miller had underworld connections. Although Hammond did not know this information to be true, he had heard rumors about Miller's character and had noticed several underworld figures going in and out of Miller's Bar and Grill. In fact, Miller had no underworld connections. In a claim against Hammond based on defamation, Miller will •(A) not recover if Hammond reasonably believed his statement to be true. •(B) not recover if the board granted Miller's application. •(C) recover, because Hammond's statement was false. •(D) recover, because Hammond appeared before the board voluntarily.

•A was driving on a dark road, using her high beams. When a car driven by C approached, A tried to flip the handle to dim the headlights but, due to a manufacturing defect in the handle, it broke off in her hand, and the high beams stayed on. C was temporarily blinded and as a result lost control of the car and went off the road. P, a passenger in C's car, was badly injured in the accident. A purchased her car from a new car dealer several years ago. If P wishes to sue the car manufacturer, which of the following theories would offer P the best chance of succeeding in a jurisdiction that follows the majority view? •A. Implied warranty of merchantability. •B. Express warranty. •C. Strict liability in tort. •D. Each of the above theories has an equally good chance of success.

•A statute in Ohio prohibits drivers from crossing double yellow lines in the middle of highways. This statute is designed to prevent head-on collisions. While driving, A crosses a double yellow line and hits B's car head-on, injuring B. Is this negligence per se?

Yes

•Problem: Leaving a restaurant, B takes A's coat, mistaking it for his own. B returns it one hour later. Were any torts committed?

Trespass to chattels

•A, who is age 5 and weighs 35 pounds, takes a swing at Mike Tyson, the former heavyweight champion. Mike ducks, so the punch misses. Mike walks away laughing. Were any torts committed?

-Assault, because Mike had a reasonable expectation of battery; fear is not required.

•A intentionally locks B, a baby, in a room for 12 hours. Because of her age, B was unaware of the fact that she was confined, but she suffered dehydration and hypothermia during the confinement. Were any torts committed?

-False imprisonment because B was injured. (even though the baby did not know of the confinement)

: A intentionally locks B in a cell. The cell has a secret trap door, but B is unaware of this fact. B is trapped for ten minutes, but suffers no real injuries. Were any torts committed? -Would your answer change if B was asleep for the entire 10 minutes?

-False imprisonment because B was not aware of the exit and has no duty to search for it. •Yes. There is no false imprisonment because B was unaware of the confinement.

•Betsy had just received a new necklace for her birthday, and she loved showing it off to her friends. One day Norma told Betsy that Betsy's arms looked flabby. Betsy was surprised by Norma's comment, but felt compelled to answer Norma in a practical way. Therefore, to show how strong her arms were, Betsy took off her necklace, put the necklace over a tree branch, and started to do pull-ups holding on to only the strands of the necklace. Norma was impressed. If the necklace breaks while Betsy did pull-ups due to defective strands in the necklace, and Betsy suffers damages thereby, what is the likely result in a products liability action against Manufacturer?

-Manufacturer prevails, because Betsy's misuse was unreasonable and unforeseeable.

•Problem: A borrows B's car without permission and drives it for 15 minutes without any damage. Were any torts committed?

-Trespass to chattels

•A 12-year-old boy took his radio-controlled model airplane to the park to show his friends the stunts he could do with it. The weather that day was rainy, and the instruction manual for the plane warned against flying in the rain, but the boy was able to get the plane off of the ground. However, because of the rain, he had trouble controlling it with the transmitter. He tried to have the plane make a loop but it veered off course and crashed through the fabric roof of a convertible, which is parked nearby on the street. If the car owner sues the boy for damages to his car and prevails it will be because: •A. A child of the boy's age, education, intelligence, and experience would not have flown the airplane that day. •B. A reasonable person would not have flown the airplane that day. •C. The airplane instruction manual warned against flying in the rain. •D. The boy committed a trespass to chattel with his airplane.

•A car driven negligently by Doe collided with Preston's car. Preston brings an action against Doe for negligence. Which of the following statements is accurate? •(A) If Preston proves physical injury as a result of the collision, he may recover emotional distress damages regardless of the rule followed in the jurisdiction concerning the tort of negligent infliction of emotional distress. •(B) If emotional distress was not a reasonably foreseeable consequence of causing this collision, Preston cannot recover for the emotional distress. •(C) Because Preston's injuries did not result from observation of Doe's negligent injury of another person, Preston cannot recover for the emotional distress. •(D) If Preston had a preexisting condition that made him particularly susceptible to suffering emotional distress in an auto accident, Preston cannot recover for the emotional distress.

•A longshoreman fell to his death through an open hatch on the deck of a ship. The longshoreman was an employee of a company that had contracted with ship's owner to load and unload the ship. The fall occurred at night, when loading work was over for the day, and there was no reason for the longshoreman to have been near the hatch. A negligence action was filed against the ship's owner for the death of the longshoreman. In that action, the owner has moved for summary judgment and has provided unrebutted evidence that it is customary for the crews of ships to open the hatches for ventilation after the longshoremen have left the ships. How should the court respond to the motion? •A. Deny the motion and submit the case to the jury with instructions that the custom is relevant but not conclusive on the issue of negligence. •B. Deny the motion and submit the case to the jury with instructions that the ship's owner should win if the longshoreman was improperly near the hatch. •C. Deny the motion, because the probability of serious injury caused by falling down an open hatch clearly outweighs the burden of keeping the hatch closed. •D. Grant the motion, because the custom should be considered conclusive on the issue of negligence.

•A manufacturing plant located near 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 a passing car, damaging the hood and the windshield. The driver of the car brought a strict liability action against the owner of the plant to recover for the damage to the car. Is the driver likely to prevail? •(A) No, because the damage to the car 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 motorist purchased a new sport utility vehicle from his local dealer. Standard equipment on the vehicle included a set of top-of-the-line tires from a premium tire company. However, the motorist was able to save $400 on the purchase price by allowing the dealer to substitute lower priced tires manufactured by a discount tire manufacturer. Unbeknownst to the motorist and the dealer, the tire manufacturer had negligently designed the tires, with the result that a tire would occasionally blowout when the car was traveling at a high rate of speed in hot weather. On an exceptionally hot day, the motorist was traveling 80 mph in a 55 mphzone. A tire exploded, resulting in damage to the vehicle and injury to the motorist. If the motorist sues the dealer on a theory of strict liability, is he likely to prevail? •A. Yes, because the tire was in a dangerously defective condition when the motorist purchased the car. •B. Yes, because the dealer is responsible for the negligence of the tire manufacturer, because the dealer used its tires. •C. No, because the motorist assumed the risk when he substituted the discount tires in exchange for $400. •D. No, because the motorist was misusing the tire when he was traveling at 80 mph.

•A resort maintained an outside bar adjacent to its pool. When the bar was closed, it was secured by a metal gate that reached up towards the roof of the bar, but which left about a three-foot gap between the top of the gate and the roof. The resort had installed motion detectors inside the bar linked to an alarm system because of several previous thefts of liquor by persons climbing over the gate. Late one night, an intoxicated guest of the resort who wanted to keep partying after hours began to climb over the gate to get into the bar through the gap at the top, intending to take some bottles of wine. The brackets attaching the gate to the walls, which had been gradually deteriorating and pulling away from the walls for some time, suddenly gave way as he reached the top. The gate collapsed, causing him to fall back onto the concrete patio. He sustained a severe concussion and other serious injuries. If the guest sues the resort for his injuries, is he likely to prevail? •A. No, because the guest did not have invitee status when he was climbing over the gate. •B. No, because the guest intended to steal alcohol belonging to the resort. •C. Yes, because the resort operators were aware that persons had climbed over the gate in the past. •D. Yes, because the brackets attaching the gate to the walls were in a weakened condition that could of been detected by a routine inspection.

•A young woman who attended a rock concert at a nightclub was injured when the band opened its performance with illegal fireworks that ignited foam insulation in the club's ceiling and walls. The young woman sued the radio station that sponsored the performance. The radio station has moved for summary judgment, claiming that it owed no duty to audience members. The evidence has established the following facts: -The station advertised its sponsorship on the radio and in print. -The station distributed free tickets to the concert. -The station staffed the event with the station's interns to assist with crowd control. -The station provided a station disc jockey to serve as master of ceremonies, who had the authority to stop or delay the performance at any time on the basis of any safety concern. -The station knew or should have known that the band routinely used unlicensed, illegal fireworks in its performances. •Should the court grant the radio station's motion for summary judgment? •A. No, because there is sufficient evidence of knowledge and control on the part of the station to impose on it a duty of care to audience members. •B. No, because under respondeat superior, the radio station is vicariously liable for the negligent actions of the band. •C. Yes, because it is the band and the nightclub owners who owed audience members a duty of care. •D. Yes, because the conduct of the band in setting off illegal fireworks was criminal and was a superseding cause as a matter of law.

•An off-duty mall security guard was at a bar with his girlfriend when he got into an argument with another patron. The argument escalated and the guard drew out his pistol he had been given at work and shot the patron in the chest, killing him. The survivors of the dead patron brought a wrongful death action against the security agency that hired the guard. At trial, they established that the guard had been required to fill out an application listing references and indicating whether he had any prior convictions for offenses involving violence or the use of a weapon, which would disqualify him by law from a position as a security officer. The guard had listed as references some aunts and uncles who had not seen him in some time, and he stated that he had no prior convictions. In fact, the guard had several times been convicted of violent assaults using firearms, and the records of these convictions were available in a public database. The agency, however, had not investigated the statements on his application. The survivors will likely: •A. Prevail, because a reasonable employer would have discovered the guard's prior convictions. •B. Prevail, because the agency employed the guard and gave him the pistolhe used to kill the patron. •C. Not prevail, because the agency owed no duty to the patron which was violated. •D. Not prevail, because the guard's actions occurred while he was acting outside the scope of his employment.

•Cab driver Jerry was in a hurry to drop off his passenger, George, so he could pick up his next customer. Jerry maneuvered his cab through busy downtown River City until he approached George's destination. As they neared the address, George said, "here's my building." Jerry switched from the left lane to the broad right lane, and stopped just before an intersection, about ten feet from the curb. George paid the fare and stepped out of the cab, directly into the path of a car driven by Elaine, who had just robbed a bank and was fleeing at high speed. George did not see Elaine's car coming and was not contributorily negligent. A statute makes it unlawful for a cab or bus to drop a passenger off more than six feet from a curb. The statute was enacted to protect passengers' safety and to prevent cabs and buses from tying up traffic. Violation carries a fine. George brings an action against Jerry for negligence, basing the duty on the statutory standard. If Jerry claims he should not be responsible for the accident, which of the following best represents the court's most likely response? •(A) Because the harm to George came about by a type of risk from which the statute was designed to protect him, George will prevail. •(B) Because George was immediately harmed by a party not within Jerry's control, Jerry cannot be held liable. •(C) Because the harm would have occurred regardless of Jerry's conduct, Jerry cannot be held liable. •(D) Because the harm came about as a result of the conduct of a criminal intervening actor, Jerry cannot be held liable.

•D was celebrating Independence Day by shooting a gun into the air in a sparsely populated area. One of the bullets fell through the roof of a neighbor's house striking P in the foot. P sues D for battery. Which of the following is a correct statement? •A. D has not committed a battery because, although he recklessly increased the risk of harming someone, he was not substantially certain that a harmful contact would occur. •B. D has not committed a battery against P because D's intent was celebratory. •C. D has not committed a battery because one must intend contact with a specific person. •D. Both B and C are correct.

•Dayton operates a collection agency. He was trying to collect a $400 bill for medical services rendered to Pratt by Doctor. Dayton went to Pratt's house and when Martina, Pratt's mother, answered the door, Dayton told Martina he was there to collect a bill owed by Pratt. Martina told Dayton that because of her illness, Pratt had been unemployed for six months, that she was still ill and unable to work, and that she would pay the bill as soon as she could. Dayton, in a loud voice, demanded to see Pratt and said that if he did not receive payment immediately, he would file a criminal complaint charging her with fraud. Pratt, hearing the conversation, came to the door. Dayton, in a loud voice, repeated his demand for immediate payment and his threat to use criminal process. If Pratt asserts a claim against Dayton based on intentional infliction of emotional distress, will Pratt prevail? •A. Yes, if Pratt suffered severe emotional distress as a result of Dayton's conduct. •B. Yes, unless the bill for medical services was valid and past due. •C. No, unless Pratt suffered physical harm as a result of Dayton's conduct. •D. No, if Dayton's conduct created no risk of physical harm to Pratt.

•Homeowner owns a house on a lake. Neighbor owns a house across a driveway from Homeowner's property. Neighbor's house sits on a hill and Neighbor can see the lake from his living room window. Homeowner and Neighbor got into an argument and Homeowner erected a large spotlight on his property that automatically comes on at dusk and goes off at sunrise. The only reason Homeowner installed the light was to annoy Neighbor. The glare from the light severely detracts from Neighbor's view of the lake. In a suit by Neighbor against Homeowner, will Neighbor prevail? •A. Yes, because Homeowner installed the light solely to annoy Neighbor. •B. Yes, if, and only if, Neighbor's property value is adversely affected. •C. No, because Neighbor's view of the lake is not always obstructed. •D. No, if the spotlight provides added security to Homeowner's property.

•In 1970, Cattle Company paid $130,000 for a 150-acre tract of agricultural land well suited for a cattle feedlot. The tract was 10 miles from the city of Metropolis, then a community of 50,000 people, and five miles from the nearest home. By 2016, the city limits extended to Cattle Company's feedlot, and the city had a population of 350,000. About 10,000 people lived within three miles of the cattle-feeding operation. The Cattle Company land is outside the city limits and no zoning ordinance applies. The Cattle Company land is now worth $800,000, and $75,000 has been invested in buildings and pens. Cattle Company, conscious of its obligations to its neighbors, uses the best and most sanitary feedlot procedures, including chemical sprays, to keep down flies and odors, and frequently removes manure. Despite these measures, residents of Metropolis complain of flies and odors. An action has been filed by five individual homeowners who live within half a mile of the Cattle Company feedlot. The plaintiffs' homes are valued currently at $95,000 to $140,000 each. Flies in the area are five to ten times more numerous than in other parts of Metropolis, and extremely obnoxious odors are frequently carried by the wind to the plaintiffs' homes. The flies and odors are a substantial health hazard. If plaintiffs assert a claim based on public nuisance, plaintiffs will •(A) prevail if plaintiffs sustained harm different from that suffered by the public at large. •(B) prevail if Cattle Company's acts interfered with any person's enjoyment of his property. •(C) not prevail, because only the state may bring an action based on public nuisance. •(D) not prevail, because plaintiffs came to the nuisance.

•John's father, Jeremiah, died in Hospital. Hospital maintains a morgue with refrigerated drawers a bit larger than a human body. Jeremiah's body was placed in such a drawer awaiting pickup by a mortician. Before the mortician called for the body, a Hospital orderly placed two opaque plastic bags in the drawer with Jeremiah's body. One bag contained Jeremiah's personal effects, and the other contained an amputated leg from some other Hospital patient. It is stipulated that Hospital was negligent to allow the amputated leg to get into Jeremiah's drawer. The mortician delivered the two opaque plastic bags to John, assuming both contained personal effects. John was shocked when he opened the bag containing the amputated leg. John sued Hospital to recover for his emotional distress. At the trial, John testified that the experience had been extremely upsetting, that he had had recurring nightmares about it, and that his family and business relationships had been adversely affected for a period of several months. He did not seek medical or psychiatric treatment for his emotional distress. Who should prevail? •(A) John, because of the sensitivity people have regarding the care of the bodies of deceased relatives. •(B) John, because hospitals are strictly liable for mishandling dead bodies. •(C) Hospital, because John did not require medical or psychiatric treatment. •(D) Hospital, because John suffered no bodily harm.

•Motorist arranged to borrow his friend Owner's car to drive for one day while Motorist's car was being repaired. Owner knew that the brakes on his car were faulty and might fail in an emergency. Owner forgot to tell Motorist about the brakes when Motorist picked up the car, but Owner did telephone Spouse, Motorist's wife, and told her about them. Spouse, however, forgot to tell Motorist. Motorist was driving Owner's car at a reasonable rate of speed and within the posted speed limit, with Spouse as a passenger. Another car, driven by Cross, crossed in front of Motorist at an intersection and in violation of the traffic signal. Motorist tried to stop, but the brakes failed, and the two cars collided. If the brakes had been in proper working order, Motorist could have stopped in time to avoid the collision. Motorist and Spouse were injured. If Motorist asserts a claim against Cross, Motorist will •(A) recover the full amount of his damages, because Motorist himself was not at fault. •(B) recover only a proportion of his damages, because Spouse was also at fault. •(C) not recover, because Spouse was negligent and a wife's negligence is imputed to her husband. •(D) not recover, because the failure of the brakes was the immediate cause of the collision.

•Peter and Donald were in the habit of playing practical jokes on each other on their respective birthdays. On Peter's birthday, Donald sent Peter a cake containing an ingredient that he knew had, in the past, made Peter very ill. After Peter had eaten a piece of the cake, he suffered severe stomach pains and had to be taken to the hospital by ambulance. On the way to the hospital, the ambulance driver suffered a heart attack, which caused the ambulance to swerve from the road and hit a tree. As a result of the collision, Peter suffered a broken leg. In a suit by Peter against Donald to recover damages for Peter's broken leg, Peter will •A. prevail, because Donald knew that the cake would be harmful or offensive to Peter. •B. prevail, only if the ambulance driver was negligent. •C. not prevail, because Donald could not reasonably be expected to foresee injury to Peter's leg. •D. not prevail, because the ambulance driver's heart attack was a superseding cause of Peter's broken leg.

•Sarah and Elaine were shopping at a department store located in the mall. While Sarah was trying on a new dress in the dressing room, Elaine wedged a door stop under the dressing room door so that she could finish buying Sarah a surprise birthday present. The sales clerk took an extra minute to process the credit card purchase, so Sarah wound up pounding on the door, saying "Let me out!" After sixty seconds, Elaine took the door stop away and pretended that it got stuck. Did Elaine commit the tort of false imprisonment? •A. Yes, because Elaine intended to confine her. •B. Yes, but only if Sarah suffered severe emotional distress. •C. No, because Elaine did not intend to cause physical harm. •D. No, because the confinement only lasted a short period of time.

•Supermarket is in a section of town where pedestrians are occasionally the victims of pickpockets and armed robbers. In recognition of the unusual number of robberies in the area, Supermarket posted signs in the store and in its parking lot that read: Warning: There are pickpockets and muggers at work in this part of the city. Supermarket is not responsible for the acts of criminals. •One evening, Lerner drove to Supermarket to see about a special on turkeys that Supermarket was advertising. She decided that the turkeys were too large and left the store without purchasing anything. In the parking lot, she was attacked and robbed by an unknown man who then ran away. If Lerner sues Supermarket, the result should be for the •A. plaintiff, if Supermarket failed to take reasonable steps to protect customers against criminal attack in its parking lot. •B. plaintiff, because Supermarket is liable for harm to business invitees on its premises. •C. defendant, if the warning signs were plainly visible to Lerner. •D. defendant, because the robber was the proximate cause of Lerner's injuries.

•The police in City notified local gas station attendants that a woman, known as Robber, recently had committed armed robberies at five City gas stations. The police said that Robber was approximately 75 years old, had white hair, and drove a vintage, cream-colored Ford Thunderbird. Attendants were advised to call police if they saw her, but not to attempt to apprehend her. Armed robbery is a felony under state law. Traveler was passing through the City on a cross-country journey. Traveler was a 75-year-old woman who had white hair and drove a vintage, cream-colored Ford Thunderbird. When Traveler drove into Owner's gas station, Owner thought Traveler must be the robber wanted by police. After checking the oil at Traveler's request, Owner falsely informed Traveler that she had a broken fan belt, that her car could not be driven without a new belt, that it would take him about an hour to replace it, and that she should stay in his office for consultation about the repair. Traveler was greatly annoyed that her journey was delayed, but she stayed in Owner's office while she waited for her car. Owner telephoned the police and, within the hour, the police came and questioned Traveler. The police immediately determined that Traveler was not Robber, and Traveler resumed her journey without further delay. In Traveler's action for false imprisonment against Owner, Traveler will •A. Not prevail, if Owner reasonably believed that Traveler was Robber. •B. Not prevail, because Traveler suffered no physical or mental harm. •C. Prevail, if Traveler reasonably believed she could not leave Owner's premises. •D. Prevail, because Owner lied to Traveler about the condition of her car.

Employer retained Doctor to evaluate medical records of prospective employees. Doctor informed Employer that Applicant, a prospective employee, suffered from AIDS. Unbeknownst to Doctor, Employer informed Applicant of this and declined to hire her. Applicant was shocked by this news and suffered a heart attack as a result. Subsequent tests revealed that Applicant in fact did not have AIDS. Doctor had negligently confused Applicant's file with that of another prospective employee. If Applicant sues Doctor for damages, on which of the following causes of action would Applicant recover? I. Invasion of privacy. II. Negligent misrepresentation. III. Negligent infliction of emotional distress. •A. III only. •B. I and II only. •C. II and III only •D. I, II, and III.

A. •Why is "negligent misrepresentation" a wrong answer? -Woodruff v. Gitlow, 91 A.3d 805 (R.I. 2014) (liability of physician hired to review medical records for FAA was limited to loss suffered by the entity that engaged the physician (the FAA); physician was not liable for negligent misrepresentation to person whose medical records were reviewed).

A boater taking his new powerboat out on a large lake ran out of gas because of a defective seal in the gas tank. The defect was not discoverable by an ordinary inspection. His frantic signaling alerted the captain of a nearby sightseeing boat. The captain pulled up alongside to assist and attempted to restart the boat. A spark ignited a pool of gas that had leaked from the gas tank and collected in the lower part of the boat, causing an explosion and fire. The captain was severely burned and died from his injuries. The captain's estate brought a wrongful death action based on strict liability against the powerboat dealer and the manufacturer. Evidence at trial established that the dealer had sold the manufacturer's boats for years without any problems reported by customers. Can the captain's estate recover any damages from the dealer? (A) Yes, unless the jury finds that the boater was negligent in failing to investigate where the gas had gone. (B) Yes, because harm to someone in the captain's position was a foreseeable result of the gas leak. (C) No, because the dealer had no reason to anticipate the manufacturer assembled the gas tank improperly. (D) No, because the captain did not have a sufficient relationship to the boater to make the dealer liable for the captain's death.

• Motorco has manufactured an automobile with brakes that are prone to failing every third time a driver presses down on the pedal. P buys a car from a Motorco dealer and drives it off the lot. The first time she uses the brakes, she stops at a red light. The stop was complete and normal. While waiting at the red light, D, driving a sports car, rams into P's car, destroying the car and seriously injuring P. If P sues Motorco under the products liability law for her injuries, a court should rule: • A. P's case fails because her car was not defective. • B. P's case fails because the defect in the car was not the actual cause of her injuries. • C. P's case fails because D's actions were an intervening cause that broke the chain of causation. • D. P's case succeeds.

•A 10 year old boy and two other children were caught by the police while breaking the windows of and causing other damage to a woman's automobile one night. The damages totaled $2,000. By statute, the jurisdiction makes parents liable for up to $5,000 for the willful and intentional torts of their minor children. In a suit by the car owner against the boy for the damages to her automobile, the car owner should: •A. Prevail, because the boy, at the age of 10, should have been aware of the consequences of his actions. •B. Prevail, because the boy deliberately damaged her car. •C. Not prevail, because the boy is presumed to be under the care of his parents and, therefore, is not legally responsible for his tortious conduct. •D. Not prevail, because the jurisdiction makes parents liable for the intentional torts of the minor children.

•A driver negligently ran into a pedestrian who was walking along a road. The pedestrian sustained an injury to his knee, causing it to buckle from time to time. Several months later, the pedestrian sustained an injury to his shoulder when his knee buckled, causing him to fall down a flight of stairs. The pedestrian then brought an action against the driver for the injuries to his knee and shoulder. In his action against the driver, for which of his injuries may the pedestrian recover damages? •(A) For the injuries to his knee and shoulder, because the driver takes the victim as he finds him. •(B) For the injuries to his knee and shoulder, if the jury finds that the pedestrian's fall down a flight of stairs was a normal consequence of his original injury. •(C) For the injury to his knee only, because the injury to the pedestrian's shoulder is separable. •(D) For the injury to his knee only, if the jury finds that the driver could not have foreseen that his negligent driving would cause the pedestrian to fall down a flight of stairs.

•A driver negligently ran over a pedestrian. A bystander witnessed the accident from across the street. The bystander ran to the pedestrian, whom he did not know, and administered first aid, but the pedestrian died in the bystander's arms. The bystander suffered serious emotional distress as a result of his failure to save the pedestrian's life, but he experienced no resulting physical manifestations. The bystander has brought a negligence action against the driver. Is the bystander likely to prevail? •(A) No, because the bystander assumed the risk. •(B) No, because the bystander had no familial or other preexisting relationship with the pedestrian. •(C) Yes, because danger invites rescue. •(D) Yes, because the bystander was in the zone of danger.

•A man went into his neighbor's garage without permission and borrowed a chain saw to clear broken branches on the man's property. After he finished, the man noticed several broken branches on his neighbor's trees that were in danger of falling on his neighbor's roof. While the man was cutting his neighbor's branches, the saw broke. The neighbor sued the man for conversion. Will the neighbor recover? •(A) Yes, for the actual damage to the saw. •(B) Yes, for the value of the saw before the man borrowed it. •(C) No, because when the saw broke the man was using it to benefit his neighbor. •(D) No, because the man did not intend to keep the saw.

•A motorcyclist was injured in a collision and suffered $100,000 worth of injuries, including $20,000 in hospital and physician's bills. The motorcyclist's medical insurance company paid her $20,000 to cover hospital and medical expenses. Later, she filed suit against the driver of the car that struck her motorcycle. When the case came to trial, the jury agreed with the motorcyclist's contention that her injuries were worth $100,000. The jury also determined that the motorcyclist was 30% negligent and that the driver was 70% negligent. How much should the motorcyclist recover from the driver? •(A) $100,000. •(B) $70,000. •(C) $56,000. •(D) $50,000.

•A state statute required that anyone performing construction work for another in exchange for value must either have a contractor's license or work for someone who is licensed. A homeowner wishing to remodel his kitchen knew that a friend had previously worked for a licensed contractor for many years and was extremely knowledgeable about her trade, so he offered her money to assist in the project. When the friend explained that she would not be able to get a contractor's license in time to do the work, the homeowner responded that he did not care about her lack of a license. The friend began working in the homeowner's house, andparked her truck containing all her tools and materials in his driveway. Late in the day, a meteoroid fell from the sky and struck a can of solvent lying in the bed of her pickup. The solvent exploded from the force of the impact, setting the truck afire, which itself exploded when the gas tank caught fire, in turn igniting the homeowner's house. Is the friend liable for the damage to the house? •(A) No, because the homeowner assumed the risk of any property damage when he knowingly solicited her to work without a contractor's license. •(B) No, because no carelessness on her part was a legal or proximate cause of the property damage to the homeowner. •(C) Yes, because her lack of a contractor's license is negligence per se. •(D) Yes, because there would have been no damage to the homeowner's house but for the friend's decision to park her truck in his driveway.

•A tenant remained in possession of the house she was renting after her lease term had expired, prompting the landlord to begin eviction proceedings. While the tenant was still in the house, a heavy snowfall covered the driveway, requiring her to shovel the driveway so she could get her car out of the garage. Shortly after she finished shoveling, the tenant's neighbor used a snowblower to blow all of the snow from his driveway onto the tenant's driveway. Consequently the tenant had to shovel it again before she could get her car out. A trespass action against the neighbor can be brought by: •A. Just the landlord, because the tenant no longer had the right to possession of the property. •B. Just the tenant, because the neighbor blew the snow onto her driveway. •C. Just the tenant, because the neighbor interfered with her use of the driveway. •D. Both the landlord and the tenant.

•Abigail was scheduled to undergo surgery for removal of her appendix. Doctor Smith, her family doctor, agreed to perform the operation. The day of the surgery, Doctor Smith was called out of town because of a family illness. Even though there was no emergency, it was decided by the hospital to go ahead with the operation and substitute Doctor Michaels for Doctor Smith. Doctor Michaels is considered to be an expert in appendectomies. Abigail was not informed of the switch in doctors. If Abigail sues Doctor Michaels on a battery theory, who will prevail? •(A) Abigail, only if the operation did not improve her physical well-being. •(B) Abigail, regardless of whether the operation improved her physical well-being. •(C) Doctor Michaels, because he was at least as qualified as Doctor Smith. •(D) Doctor Michaels, if Doctor Smith approved the substitution of doctors.

•Adam and Barbara were walking on a public sidewalk that ran along the edge of Philip's rose garden. Adam thought it would be funny to push Barbara into the garden so that Barbara's shoes would get muddy. As they passed the garden, Adam shoved Barbara toward the garden. Barbara lost her balance for a moment, and one of her arms went into the air above some of the roses on Philip's side of the property line, but Barbara managed quickly to regain her balance and to avoid stepping off the sidewalk or touching anything with her arm. Philip was looking out the window, saw what happened, and was very angry that anyone was acting so silly around his beloved roses. If Philip files a lawsuit, what is the most likely result? •A. Adam and Barbara will both be liable for trespass to land. •B. Adam will be liable for trespass to land, but not Barbara. •C. Barbara will be liable for trespass to land, but not Adam. •D. Neither Adam nor Barbara will be liable for trespass to land.

•After leaving ceremonies at which the chief justice of a state supreme court had been named distinguished jurist of the year, an associate justice was interviewed by the press. The associate justice told the reporter that the chief justice "is a senile imbecile who lets his clerks write all of his opinions. He hasn't had a lucid thought in decades, and he became a judge by being on the payroll of the mob." Enraged, the chief justice brought an action for defamation against the associate justice. Which of the following, established by the chief justice in his defamation action, would permit recovery against the associate justice? •A. The associate justice negligently made the statements, which were false, and caused the chief justice actual injury. •B. The associate justice made the statements knowing they were false. •C. The associate justice made the statements because he hated the chief justice and wished to destroy his reputation in the legal community. •D. The associate justice made the statements in order to ensure that the chief justice's political career was nipped in the bud.

•An American tourist was visiting another country when he was warned by United States health authorities to go immediately to a hospital because he had a serious and extremely contagious disease that required him to be quarantined. He decided to ignore the warning and instead traveled on an airline flight back to the United States. Despite the tourist's belief that he would not be discovered and his best efforts to keep a low profile, the news media were tipped off to what he had done and publicized it. When a passenger who had been sitting next to the tourist on the plane learned about it, she became extremely upset, fearing that she would contract the disease. The passenger brought a negligence action to recover for the distress she suffered. If the passenger does not prevail, it will be because: •A. The tourist's conduct was not extreme and outrageous. •B. The passenger did not suffer physical injury from her distress. •C. The passenger did not contract the disease from the tourist. •D. The tourist could not have reasonably foreseen that other passengers would find out about what he had done.

•An elderly neighbor hired a 17-year-old boy with a reputation for reckless driving to drive the neighbor on errands once a week. One day the teenager, driving the neighbor's car, took the neighbor to the grocery store. While the neighbor was in the store, the teenager drove out of the parking lot and headed for a party on the other side of town. While on his way to the party, the teenager negligently turned in front of a moving car and caused a collision. The other driver was injured in the collision. The injured driver has brought an action for damages against the neighbor, based on negligent entrustment, and against the teenager. The jury has found that the injured driver's damages were $100,000, that the injured driver was 10% at fault, that the teenager was 60% at fault, and that the neighbor was 30% at fault for entrusting his car to the teenager. Based on these damage and responsibility amounts, what is the maximum that the injured driver could recover from the neighbor? •(A) $100,000. •(B) $90,000. •(C) $60,000. •(D) $30,000.

•An ice cream truck driver was driving at a safe speed. From the other direction, a tractor-trailer came around a curve and was confronted with a very slow movingred car just in front of him. To avoid colliding with the car, the tractor-trailer pulled to the left and crossed the center lane, where he bore down on the ice cream truck driver who was approaching from the opposite direction. The tractor-trailer driver did not yield and there were other vehicles (including the red car) to the ice cream driver's left. The ice cream truck driver's only option was to turn to the right, onto landowner's land. His truck caused damage to the landowner's property. Which of the following best describes the ice cream truck driver's liability to the landowner? •A. Ice cream truck driver is liable only for nominal damages. •B. Ice cream truck driver is liable for actual damage to the land. •C. Ice cream truck driver is liable for nothing because he reacted to an emergency situation that he did not create. •D. Ice cream truck is liable for nothing because the incident was not his fault and he acted in a reasonable and responsible manner.

•Cycle Company manufactured a bicycle that it sold to Bike Shop, a retail bicycle dealer, which in turn sold it to Roth. Shortly thereafter, while Roth was riding the bicycle along a city street, he saw a traffic light facing him turn from green to yellow. He sped up, hoping to cross the intersection before the light turned red. However, Roth quickly realized that he could not do so and applied the brake, which failed. To avoid the traffic that was then crossing in front of him, Roth turned sharply to his right and onto the sidewalk, where he struck Perez, a pedestrian. Both Perez and Roth sustained injuries. If Perez asserts a claim based on negligence against Cycle Company and if it is found that the brake failure resulted from a manufacturing defect in the bicycle, will Perez prevail? •(A) Yes, because Cycle Company placed a defective bicycle into the stream of commerce. •(B) Yes, if the defect could have been discovered through the exercise of reasonable care by Cycle Company. •(C) No, because Perez was not a purchaser of the bicycle. •(D) No, if Roth was negligent in turning onto the sidewalk.

•D is a six-year-old boy who has a well-deserved reputation for bullying younger and smaller children. His parents have encouraged him to be aggressive and tough. D, for no reason, knocked down, kicked and severely injured P, a four-year old. A claim for relief has been asserted by P's parents for their medical and hospital costs and for P's injuries. If the claim is asserted against D's parents, the most likely result is they will be •A. Liable, because parents are strictly liable for the torts of their children. •B Liable, because D's parents encouraged him to be aggressive and tough. •C. Not liable, because a six-year-old cannot commit a tort. •D. Not liable, because parents cannot be held liable for the tort of a child.

•Daniel and a group of his friends are fanatical basketball fans who regularly meet at each other's homes to watch basketball games on television. Some of the group are fans of team A, and others are fans of team B. When the group has watched televised games between these two teams, fights sometimes have broken out among the group. Despite this fact, Daniel invited the group to his home to watch a championship game between teams A and B. During the game, Daniel's guests became rowdy and antagonistic. Fearing that they would begin to fight, and that a fight would damage his possessions, Daniel asked his guests to leave. They refused to go and soon began to fight. Daniel called the police, and Officer was sent to Daniel's home. Officer sustained a broken nose in his efforts to stop the fighting. Officer brought an action against Daniel alleging that Daniel was negligent in inviting the group to his house to watch this championship game. Daniel has moved to dismiss the complaint. The best argument in support of this motion would be that •A. a rescuer injured while attempting to avert a danger cannot recover damages from the endangered person. •B. a police officer is not entitled to a recovery based upon the negligent conduct that created the need for the officer's professional intervention. •C. as a matter of law, Daniel's conduct was not the proximate cause of Officer's injury. •D. Daniel did not owe Officer a duty to use reasonable care, because Officer was a mere licensee on Daniel's property.

•Drew, the owner of a truck leasing company, asked Pat, one of Drew's employees, to deliver $1,000 to the dealership's main office. The following week, as a result of a dispute over whether the money had been delivered, Drew instructed Pat to come to the office to submit to a lie detector test. When Pat reported to Drew's office for the test, it was not administered. Instead, without hearing Pat's story, Drew shouted at him, "You're a thief!" and fired him. Drew's shout was overheard by several other employees who were in another office, which was separated from Drew's office by a thin partition. The next day, Pat accepted another job at a higher salary. Several weeks later, upon discovering that the money had not been stolen, Drew offered to rehire Pat. In a suit for slander by Pat against Drew, Pat will •(A) Prevail, because Pat was fraudulently induced to go to the office for a lie detector test, which was not, in fact, given. •(B) Prevail, if Drew should have foreseen that the statement would be overheard by other employees. •(C) Not prevail, if Drew made the charge in good faith, believing it to be true. •(D) Not prevail, because the statement was made to Pat alone and intended for his ears only.

•Fran, who was driving at an excessive speed, applied her brakes to stop at a traffic light. Due to damp, fallen leaves, her car skidded and came to a halt perpendicular to the roadway. Sid, who was also driving at an excessive speed and was immediately behind Fran, saw Fran's car perpendicular to the roadway. Although Sid had sufficient distance to come to a slow, controlled stop, he decided not to slow down but, rather, to swerve to the left in an effort to go around Fran's car. Due to oncoming traffic, the space was insufficient and Sid's car collided with Fran's car, severely injuring Fran. Fran filed a personal injury action against Sid in a jurisdiction in which contributory negligence is a bar to recovery. Will Fran prevail? •A. Yes, if the jury finds that Sid was more than 50% at fault. •B. Yes, if the jury finds that Sid has the last clear chance. •C. No, if the jury finds that Fran's conduct was in any way a legal cause of the accident. •D. No, if the jury finds that, in speeding, Fran assumed the risk.

•H and W, walking on a country road, were frightened by a large bull running loose on the road. To avoid the bull, they climbed over a fence to get onto the adjacent property, which was owned by Grower. After climbing the fence, H and W damaged some of Grower's plants which were near the fence. The fence was posted with a large sign, "No Trespassing." Grower saw H and W trying to escape from the bull and came toward them with a large watchdog on a long leash. The dog rushed at H and W. Grower had intended only to frighten H and W, but the leash broke, and before Grower could restrain the dog, the dog bit W. If H asserts a claim based on assault against Grower, will H prevail? •A. No, because the landowner could use deadly force to protect his farm land. •B. Yes, if H believed that the dog would bite him. •C. No, because the dog bit W. •D. No, if Grower was trying to protect his property.

•Landco purchased a large tract of land intending to construct residential housing on it. Landco hired Poolco to build a large in-ground swimming pool on the tract. The contract provided that Poolco would carry out blasting operations that were necessary to create an excavation large enough for the pool. The blasting caused cracks to form in the walls of the Plaintiff's home in a nearby residential neighborhood. In Plaintiff's action for damages against Landco, Plaintiff should •(A) Prevail, only if Landco retained the right to direct and control Poolco's construction of the pool. •(B) Prevail, because the blasting that Poolco was hired to perform damaged Plaintiff's home. •(C) Not prevail, if Poolco used reasonable care in conducting the blasting operations. •(D) Not prevail, if Landco used reasonable care to hire a competent contractor.

•Palmco owns and operates a beachfront hotel. Under a contract with City to restore a public beach, Dredgeco placed a large and unavoidably dangerous stone-crushing machine on City land near Palmco's hotel. The machine creates a continuous and intense noise that is so disturbing to the hotel guests that they have canceled their hotel reservations in large numbers, resulting in a substantial loss to Palmco. Palmco's best chance to recover damages for its financial losses from Dredgeco is under the theory that the operation of the stone-crushing machine constitutes •(A) an abnormally dangerous activity. •(B) a private nuisance. •(C) negligence. •(D) a trespass.

•Patten suffered from a serious, though not immediately life-threatening, impairment of his circulatory system. Patten's cardiologist recommended a cardiac bypass operation and referred Patten to Dr. Cutter. Cutter did not inform Patten of the 2% risk of death associated with this operation. Cutter defended his decision not to mention the risk statistics to Patten because "Patten was a worrier and it would significantly lessen his chances of survival to be worried about the non-survival rate." Cutter successfully performed the bypass operation and Patten made a good recovery. However, when Patten learned of the 2% risk of death associated with the operation, he was furious that Cutter had failed to disclose this information to him. If Patten asserts a claim against Cutter based on negligence, will Patten prevail? •(A) No, if Cutter used his best personal judgment in shielding Patten from the risk statistic. •(B) No, because the operation was successful and Patten suffered no harm. •(C) Yes, if Patten would have refused the operation had he been informed of the risk. •(D) Yes, because a patient must be told the risk factor associated with a surgical procedure in order to give an informed consent.

•The driver of a Zamboni machine at an ice rink began to clean the ice without making sure that all of the doors to the rink were closed, contrary to established procedures. A young child who had just completed a skating lesson went back onto the ice through an open door to retrieve a water bottle from the bench. A bystander saw what was happening and worried that the Zamboni driver would not see the child, and the machine's engines were too loud to yell to the driver or child. Intending to get the child off ofthe ice, the bystander darted through another door to the rink just in front of the approaching Zamboni machine, but she slipped and fell in front of it. She suffered serious injuries when she was struck by the machine. The bystander sued the ice rink to recover damages for her injuries in a jurisdiction that has adopted a modified form of comparative negligence. The trier of fact determined that the bystander was 45% at fault and the Zamboni driver was 55% at fault. The Zamboni driver was employed by a reputable rink maintenance company that contracted with the ice rink for its services. The bystander will: •A. Recover 45% of her damages from the ice rink because she was less at fault than the Zamboni driver. •B. Recover 55% of her damages from the ice rink because she was less at fault than the Zamboni driver. •C. Not recover damages from the ice rink because she assumed the risk of falling by going onto the ice. •D. Not recover damages from the ice rink because the Zamboni driver was employed by a rink maintenance company rather than the rink itself.

•The manager of a department store noticed that Paula was carrying a scarf with her as she examined various items in the blouse department. The manager recognized the scarf as an expensive one carried by the store. Paula was trying to find a blouse that matched a color in the scarf, and, after a while, found one. The manager then saw Paula put the scarf into her purse, pay for the blouse, and head for the door. The manager, who was eight inches taller than Paula, blocked Paula's way to the door and asked to see the scarf in Paula's purse. Paula produced the scarf, as well as a receipt for it, showing that it had been purchased from the store on the previous day. The manager then told Paula there was no problem, and stepped out of her way. If Paula brings a claim against the store based on false imprisonment (or assault), the store's best defense would be that •(A) By carrying the scarf in public view and then putting into her purse, Paula assumed the risk of being detained. •(B) The manager had a reasonable belief that Paula was shoplifting and detained her only briefly for a reasonable investigation of the facts. •(C) Paula should have realized that her conduct would create a reasonable belief that facts existed warranting a privilege to detain. (D) Paula was notdetained, butwas merely questioned about the scarf.

•Vintner is the owner of a large vineyard and offers balloon rides to visitors who wish to tour the grounds from the air. During one of the rides, Vintner was forced to make a crash landing on his own property. Without Vinter'sknowledge or consent, Trespasser had entered the vineyard to camp for a couple of days. Trespasser was injured when he was hit by the basket of the descending balloon. If Trespasser sues Vintner to recover damages for his injuries, will Trespasser prevail? •A. No, unless the crash landing was made necessary by negligence on Vintner's part. •B. No, unless Vintner could have prevented the injury to Trespasser after becoming aware of Trespasser's presence. •C. Yes, because even a trespasser may recover for injuries caused by an abnormally dangerous activity. •D. Yes, if the accident occurred at a place which Vintner knew was frequented by intruders.

•Mike decided to excavate a large portion of his property in preparation for adding a new building on the land. He did not illuminate the excavated site or post a warning sign. Mike's land is not fenced and, although he has not noticed any trespassers on his property, he has done nothing to keep them away. One night, Tommy, age 17, took a shortcut through Mike's land to hurry home after breaking curfew. Tommy fell into the excavation and was injured. An action by Tommy against Mike should •A. Fail, because Tommy assumed the risk. •B. Fail, because Tommy was not a discovered trespasser. •C. Succeed, because it was negligent for Mike not to illuminate his property or warn visitors. •D. Succeed, because Tommy's trespassing was foreseeable. • •Would an action by Tommy succeed if Mike actually knewthat trespassers were cutting through his land?

B -Yes, if it was negligent for Mike not to illuminate his property or warn visitors.

•Diggers Construction Company was engaged in blasting operations to clear the way for a new road. Diggers had erected adequate barriers and posted adequate warning signs in the vicinity of the blasting. Although Paul read and understood the signs, he entered the area to walk his dog. As a result of the blasting, Paul was hit by a piece of rock and sustained head injuries. The jurisdiction follows the traditional common-law rules governing the defenses of contributory negligence, assumption of risk, and last clear chance. In an action by Paul against Diggers to recover damages for his injuries, Paul will •(A) Not prevail, if Diggers exercised reasonable care to protect the public from harm. •(B) Not prevail, because Paul understood the signs and disregarded the warnings. •(C) Prevail, because Paul was harmed by Digger's abnormally dangerous activity. •(D) Prevail, unless Paul failed to use reasonable care to protect himself from harm. • •Would your answer change if Paul negligently failed to see the warning signs?

B -Yes, now (C) is correct.

Plaintiff expressly consents to an operation on his nose. While plaintiff is on the operating table (and unconscious), the defendant decides to perform an unrelated, non-emergency face-lift on plaintiff. Were any torts committed?

Battery (exceeded scope)

• A is a professional hockey player. During a game, A is pushed to the ice by B while the two are struggling for the puck. While A is down, C intentionally hits A in the mouth with his stick, breaking A's jaw. Were any torts committed?

Battery by C

•A farmer kept a pet bear at his farm. The bear was very old and had no teeth, no claws, and very little energy, but people liked to see the bear when they visited the farmer because no one else in the region had a pet bear. When the farmer first obtained the bear many years ago, he had a large steel cage constructed to house the animal. The cage had an electronic lock that only opened with a security code. Even though the bear was now old and harmless, it was always kept locked in the cage. One night during a severe storm while the farmer was out of town, a bolt of lightning hit the cage and the door opened. The bear left the cage and wandered off. The next morning, a 10-year-old girl was waiting on a country road for her school bus. The bear emerged from a wooded area about 100 feet from where the girl was standing and headed towards her. She screamed and turned to run, tripping on the road and breaking her arm when she fell. If the girl sues the farmer on a theory of strict liability for her bodily harm, will she prevail? •A. No, because the bear was in fact a non-dangerous animal. •B. No, because the damage she suffered was not the type of damage that a bear would normally cause. •C. Yes, because the bear is a wild animal. •D. Yes, because pet bears were not commonly kept in the community.

•A hockey player who was playing in the final game of the season before a hostile crowd in the opponent's packed stadium had an opportunity to get his team into the playoffs, but he missed a shot into an open net as the horn sounded, ending the game. As the crowd cheered and jeered, the puck bounced back to him and he shot it in anger toward the stands. A fan who had been looking the other way turned back toward the rink just in time to be struck in the face by the puck. He suffered a broken nose and a severe gash under his eye. After the game, the league commissioner fined the player for violating league rules by intentionally directing the puck out of the playing area. If the fan sues the player for battery, will the fan likely prevail? •A. No, because by attending a hockey game, the fan assumed the risk of pucks being shot into the stands. •B. No, because the player did not have the intent to strike the fan with the puck. •C. Yes, because the player knew that it was substantially certain that a fan would be hit by the puck. •D. Yes, because the player violated league rules by intentionally shooting the puck out of the playing area

•A missile company was engaged in research and development of an interplanetary space shuttle, under a contract with the United States government. Over a period of years, it developed a prototype of a huge, solid-fuel rocket engine for use in this program. To evaluate the performance of this engine, it conducted a static test of the engine at a remote desert site. The rocket engine was mounted on a concrete test stand, with the thrust of the engine directed downward into the ground. When the engine was fired up, huge clouds of flame and smoke filled the air, and particles of debris from the rocket fell onto an adjoining farm. If the farmer files an action against the company for trespass, which of the following facts, if proved, would be most helpful to the company in avoiding liability? •A. The farmer bought and operated his farm knowing that the company used the adjoining property for testing its rocket engines. •B. Neither the company nor anyone in its employee set foot upon the farmer's land. •C. The company had no reason to anticipate that the tests would cause any of the results that occurred. •D. The rocket testing program is essential to national security, so the company's conduct was completely privileged as a public necessity.

•A motorist lapsed into unconsciousness while driving. Her car crossed the centerline, which was marked with a double yellow line. A statute made it illegal for any person operating a motor vehicle on the highways of the state to cross a double yellow line. The motorist's car collided with another vehicle, and the driver of that vehicle was seriously injured. The driver sued the motorist for his injuries. At trial, the parties stipulated to the above facts. The motorist testified that she had not previously lapsed into unconsciousness while driving. At the close of the evidence, the driver moves for a directed verdict in his favor. The court should: •A. Grant the motion, because the motorist's vehicle crossed the driver's lane and caused the driver's injuries. •B. Grant the motion, because the driver has established negligence per se from the violation of an applicable statute that was intended to prevent the type of harm that occurred. •C. Deny the motion, because the jury could find that the motorist had no reason to believe that she would lapse into unconsciousness. •D. Deny the motion, because it was impossible for the motorist to comply with the statute.

•A recently established law school constructed its building in a quiet residential neighborhood. The law school had obtained all the necessary municipal permits for the construction of the building, which included a large clock tower whose clock chimed every hour. The chimes disturbed only one homeowner in the neighborhood, who had purchased her house prior to the construction of the building. The homeowner was abnormally sensitive to ringing sounds, such as bells and sirens, and found the chimes to be extremely annoying. In a nuisance action by the homeowner against the law school, will the homeowner be likely to prevail? •(A) Yes, because the chimes interfere with the homeowner's use and enjoyment of her property. •(B) Yes, because the homeowner purchased her house prior to the construction of the building. •(C) No, because the chimes do not disturb the other residents of the neighborhood. •(D) No, because the law school had obtained the requisite municipal permits to erect the clock tower.

•An automobile, a truck, and a motorcycle were involved in a three vehicle accident. The automobile driver sued the trucker and the motorcyclist, each of whom countersued the driver and sued each other. At trial, it was determined by the trier of fact that the driver suffered $10,000 in damages, the trucker suffered $1,000 in damages, and the motorcyclist suffered $100,000 in damages. It was also determined that the driver was 45% at fault, the trucker was 35% at fault, and the motorcyclist was 20% at fault. How would damages be assessed in a jurisdiction that has adopted a modified or "partial" form of comparative negligence? •A. The motorcyclist has a claim for $80,000, and the driver and the trucker have no claims. •B. The motorcyclist has a claim for $80,000, which she can collect from either the driver or the trucker, the trucker has a claim for $650, which he can collect only from the driver, and the driver has no claim. •C. The driver has a claim for $5,500, the trucker has a claim for $650, and the motorcyclist has a claim for $80,000. •D. The driver has a claim for $10,000, the trucker has a claim for $1,000, and the motorcyclist has a claim for $100,000.

•At the end of the season, the owner of a private beach stacked up his rental canoes onto a trailer, and arranged for them to be moved the next day into a storage shed for the winter. That evening, two nine-year-old boys came onto the owner's property even though they knew that the lake was closed to the public for the season. Both of them had used the canoes (with an adult) several times during the past summer and had always worn life vests. They unhooked one of the canoes from the rack, lifted it down, and pushed it into the water. Although life vests were sitting in an open bin nearby, neither boy put one on. When they were out in the middle of the lake with the canoe, they tried to switch seats and caused the canoe to capsize. They both tried to swim to shore. One was able to make it, but unfortunately the other boy could not make it and he drowned. Had he been wearing a life vest, he would have survived. The boy's parents bring a wrongful death action against the beach owner. If the beach owner prevails, it will be because: •A. A reasonably prudent adult would not take the canoe out without a life vest. •B. The owner took precautions to make the canoes inaccessible. •C. The boy appreciated the risk of taking the canoe out onto the lake without a life vest. •D. The boy was not lured onto the owner's property by the canoes.

•Because of Farmer's default on his loan, the bank foreclosed on the farm and equipment that secured the loan. Among the items sold at the resulting auction was a new tractor recently delivered to Farmer by the retailer. Shortly after purchasing the tractor at the auction, Pratt was negligently operating the tractor on a hill when it rolled over due to a defect in the tractor's design. He was injured as a result. Pratt sued the auctioneer, alleging strict liability in tort. The jurisdiction has not adopted a comparative fault rule in strict liability cases. In this suit, the result should be for the •A. plaintiff, because the defendant sold a defective product that injured the plaintiff. •B. plaintiff, if the defendant failed to inspect the tractor for defects prior to sale. •C. defendant, because he should not be considered a "seller" for purposes of strict liability in tort. •D. defendant, because the accident was caused in part by Pratt's negligence.

•Boater owned a power boat that he was operating on Lake, a large body of water, on a clear calm day. He approached Sailer whose sailboat was disabled by a broken rudder. Sailer asked Boater to tow his sailboat to shore but Boater refused because he feared the tow might damage the paint on his power boat. Sailer was unable to bring his sailboat in and became severely ill as a result of exposure before he was rescued. If Sailer asserts a claim against Boater for damages based on Boater's refusal to provide assistance, will Sailer prevail? •A. Yes, if Boater's failure to rescue made a bad situation worse. •B. Yes, if the probability of harm to Sailer outweighed the probability of damage to Boater's property. •C. No, unless there was some special relationship between Sailer and Boater. •D. No, if Boater reasonably believed that towing Sailer's sailboat might damage the paint on Boater's power boat.

•D saw his classmate P carrying a pile of books he suspected P had stolen from D's locker a few days ago. The books in fact belonged to P. D said to P "Let me see those books." When P refused, D reached out to grab them, but P who was a black belt in karate and not afraid of D, scowled and dodged away from D without being touched. Based on these facts •A. D has committed no tort against P because he was privileged to use reasonable force to recover chattel he reasonably believed to be his. •B. D has committed no tort against P because P suffered no fear of a harmful or offensive contact. •C. D has committed an assault on P because P experienced anticipation of a harmful or offensive bodily contact. •D. D has committed no tort against P because he attempted only to grab books P was holding, not to harm or offend P himself.

•David built in his backyard a garage that encroached two feet across the property line onto property owned by his neighbor, Prudence. Thereafter, David sold his property to Drake. Prudence was unaware, prior to David's sale to Drake, of the encroachment of the garage onto her property. When she thereafter learned of the encroachment, she sued David for damages for trespass. In this action, will Prudence prevail? •(A) No, unless David was aware of the encroachment when the garage was built. •(B) No, because David no longer owns or possesses the garage. •(C) Yes, because David knew where the garage was located, whether or not he knew where the property line was. •(D) Yes, unless Drake was aware of the encroachment when he purchased the property.

•Plaintiff is at Airport riding up an escalator to reach the gates. Plaintiff is holding on to the handrail when the escalator malfunctions. The handrail stops moving, but the stairs keep moving, causing plaintiff to lose her balance and fall, breaking her leg. Plaintiff sues Airport for negligence, but presents no proof of why the handrail malfunctioned. Airport argues that the negligence case cannot go to the jury because Plaintiff presented no proof of breach. How should the court rule on Airport's argument? •A. The court should accept the argument because a plaintiff must show how a defendant failed to use ordinary care to avoid a reasonably foreseeable risk to the plaintiff. •B. The court should accept the argument because Plaintiff fell and no one pushed her. •C. The court should reject the argument if the jury could believe that this kind of escalator malfunction ordinarily does not occur in the absence of negligence of the person in charge of keeping the escalator in good repair. •D. The court should reject the argument because it is the defendant, not the plaintiff, that bears the burden of proving breach in a negligence case.

•Purvis purchased a used car from Daley, a used car dealer. Knowing that they were false, Daley made the following statements to Purvis prior to the sale: -Statement 1. This car has never been involved in an accident. -Statement 2. This car gets 25 miles to the gallon on the open highway. -Statement 3. This is as smooth-riding a car as you can get. •If Purvis asserts a claim against Daley based on deceit, which of the false statements made by Daley would support Purvis' claim? •(A) Statement 1 only. •(B) Statement 2 only. •(C) Statements 1 and 2 only. •(D) Statements 2 and 3 only.

•The day after Seller completed the sale of his house and moved out, one of the slates flew off the roof during a windstorm. The slate struck Pedestrian, who was on the public sidewalk. Pedestrian was seriously injured. The roof is old and has lost several slates in ordinary windstorms on other occasions. If Pedestrian sues Seller to recover damages for his injuries, will Pedestrian prevail? •A. Yes, because the roof was defective when Seller sold the house. •B. Yes, if Seller should have been aware of the condition of the roof and should have realized that it was dangerous to persons outside the premises. •C. No, because Seller was neither the owner nor the occupier of the house when Pedestrian was injured. •D. No, if Pedestrian knew that in the past slates had blown off the roof during windstorms.

•When Parents were told that their child, Son, should repeat second grade, they sought to have him evaluated by a psychologist. The psychologist, who charged $300, determined that Son had a learning disability. Based upon the report, the school board placed Son in special classes. At an open meeting of the school board, Parents asked that the $300 they had paid to the psychologist be reimbursed by the school district. A reporter attending the meeting wrote a newspaper article about this request, mentioning Son by name. In a privacy action brought by Son's legal representative against the newspaper, the plaintiff will •A. recover, because the story is not newsworthy. •B. recover, because Son is under the age of consent. •C. not recover, if the story is a fair and accurate report of what transpired at the meeting. •D. not recover, if Parents knew that the reporter was present.

•While driving at a speed in excess of the statutory limit, Dant negligently collided with another car, and the disabled vehicles blocked two of the highway's three northbound lanes. When Page approached the scene two minutes later, he slowed his car to see if he could help those involved in the collision. As he slowed, he was rear-ended by a vehicle driven by Thomas. Page, who sustained damage to his car and was seriously injured, brought an action against Dant to recover damages. The jurisdiction adheres to the traditional common law rules pertaining to contributory negligence. If Dant moves to dismiss the action for failure to state a claim upon which relief may be granted, should the motion be granted? •A. Yes, because it was Thomas, not Dant, who collided with Page's car and caused Page's injuries. •B. Yes, if Page could have safely passed the disabled vehicles in the traffic lane that remained open. •C. No, because a jury could find that Page's injury arose from a risk that was a continuing consequence of Dant's negligence. •D. No, because Dant was driving in excess of the statutory limit when he negligently caused the first accident.

•Dumont, a real estate developer, was trying to purchase land on which he intended to build a large commercial development. Perkins, an elderly widow, had rejected all of Dumont's offers to buy her ancestral home, where she had lived all her life and which was located in the middle of Dumont's planned development. Finally, Dumont offered her $250,000. He told her that it was his last offer and that if she rejected it, state law authorized him to have her property condemned. Perkins then consulted her nephew, a lawyer, who researched the question and advised her that Dumont had no power of condemnation under state law. Perkins had been badly frightened by Dumont's threat, and was outraged when she learned that Dumont had lied to her. If Perkins sues Dumont for damages for emotional distress, will she prevail? •A. Yes, if Dumont's action was extreme and outrageous. •B. Yes, because Perkins was frightened and outraged. •C. No, if Perkins did not suffer emotional distress that was severe. •D. No, if it was not Dumont's purpose to cause emotional distress. • •If Perkins asserts a claim based on misrepresentation against Dumont, will she prevail? •A. Yes, if Dumont knew he had no legal power of condemnation. •B. Yes, if Dumont tried to take unfair advantage of a gross difference between himself and Perkins in commercial knowledge and experience. •C. No, if Dumont's offer of $250,000 equaled or exceeded the market value of Perkins's property. •D. No, because Perkins suffered no pecuniary loss.

C D

•Problem: A borrows B's car without permission and intends to return it 15 minutes later. Two minutes after borrowing the car, A is involved in an accident that seriously damages B's car. A was not at fault in the accident. Were any torts committed?

Conversion

•A boy was playing softball in a neighborhood park when a ball was hit over the fence and into a neighbor's yard. The boy knocked on the neighbor's door and obtained permission from her to retrieve the ball from her yard. As he bent to retrieve the ball in some bushes, the boy brushed against an exposed electric wire that was partially hidden by the bushes and received a severe electric shock and burns. The neighbor has failed to maintain the bushes, allowing them to become overgrown, and was not aware of the exposed wire. In a suit by the boy against the neighbor for these injuries: •A. The neighbor is liable because the boy entered with her permission. •B. The neighbor is liable because she failed to repair a dangerous condition on her property. •C. The neighbor is liable because she failed to reasonably inspect the property, which would have made her aware of the dangerous condition of the wire. •D. The neighbor is not liable because she did not know of the condition of the wire.

•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 balloons 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 time, 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. 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.

•A man sued his neighbor for defamation based on the following facts: The neighbor told a friend that the man had set fire to a house in the neighborhood. The friend, who knew the man well, did not believe the neighbor's allegation, which was in fact false. The friend told the man about the neighbor's allegation. The man was very upset by the allegation, but neither the man nor the neighbor nor the friend communicated the allegation to anyone else. Should the man prevail in his lawsuit? •(A) No, because the friend did not believe what the neighbor had said. •(B) No, because the man cannot prove that he suffered pecuniary loss. •(C) Yes, because the man was very upset at hearing what the neighbor had said. •(D) Yes, because the neighbor communicated to the friend the false accusation that the man had committed a serious crime.

•A newspaper printed in a news article that a successful businessman running for the state legislature had attempted suicide and had just been released from the hospital, where he had undergone intensive psychotherapy. Actually, thebusinessman had been hospitalized because he had contracted hepatitis. The businessman's opponent, the incumbent legislator, read the story into the legislative record the next day. The businessman sued the incumbent for defamation. At trial, the businessman established that the incumbent had serious doubts as to the accuracy of the story when she read it into the record. The businessman will likely: •A. Recover, because he established that the incumbent acted with actual malice. •B. Recover, because the statement was slander per se. •C. Not recover, because the incumbent was relying on the veracity of the newspaper article. •D. Not recover, because the incumbent was privileged to make the defamatory statements.

•A patient sought psychiatric treatment from a psychiatrist. During the treatment, which consisted of hour-long analysis sessions twice a week, the psychiatrist, unbeknownst to the patient, videotaped her. No sound recording was made of the sessions, but the psychiatrist was conducting a study on "body language" and planned to use the videotapes in those experiments. The patient learned that the psychiatrist had been videotaping their analysis sessions and brought an action against him on a theory of invasion of privacy. Which of the following arguments best supports the patient's claims in this action? •A. The psychiatrist has placed the patient in a false light. •B. The psychiatrist has publicly displayed private facts of the patient's life. •C. The psychiatrist has misappropriated the patient's likeness. •D. The psychiatrist has intruded upon the patient's physical seclusion.

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

•A young man borrowed his mother's car to go to a job interview. He was running late and made a left turn directly in front of a taxicab without looking. The cab driver was busy talking on his cell phone and did not see the man until it was too late, so the two cars collided. Had the cabdriver been paying proper attention, he could have avoided the accident. The cab's passenger was injured in the accident. The cab's passenger asserted a claim against the young man's mother for personal injuries. The jurisdiction retains the common law rule pertaining to the liability of car owners for the conduct of drivers. The passenger will: •A. Recover, because a car owner is vicariously liable for the tortious acts of the driver. •B. Recover, because the cab driver's negligence will not be imputed to the passenger. •C. Not recover, because the immediate cause of the collision was the cab driver's cell phone use. •D. Not recover, because the jurisdiction retains the common law rule.

•After being notified by Dr. Josephs that Nurse Norris's employment with his office was terminated, Norris applied for a position with Hospital. In her application, Norris listed her former employment with Josephs. Josephs, in response to a telephone inquiry from Hospital, stated that "Norris lacked professional competence." Although Josephs believed that to be a fair assessment of Norris, his adverse rating was based on one episode of malpractice for which he blamed Norris but which in fact was chargeable to another doctor. Because of the adverse comment on her qualifications provided by Josephs, Norris was not employed by Hospital. If Norris asserts a claim based on defamation against Josephs, will Norris prevail? •(A) Yes, because Josephs was mistaken in the facts on which he based his opinion of Norris's competence. •(B) Yes, because the statement of Josephs reflected adversely on Norris's professional competence. •(C) No, if Norris authorized Hospital to make inquiry of her former employer. •(D) No, if Josephs had reasonable grounds for his belief that Norris was not competent.

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

•Huckleberry was a passenger on a tour bus owned and operated by Bus Co. (not a common carrier). At one point, the driver pulled over to the side of the road so she could fix something on her uniform, which had become uncomfortable. While the bus was stopped, it was struck from the rear by another vehicle. Huckleberry was injured when the collision caused him to hit his head on a metal bar. Huckleberry sues Bus Co. for negligence, alleging that the driver had a duty not to stop the bus except at designated rest stops and that she breached her duty by stopping when she did. Bus Co. regulations provide that drivers must stop only at designated rest stops. Which of the following statements is accurate? •(A) Because the driver's conduct violated company regulations, her actions were a superseding cause of Huckleberry's harm, defeating Huckleberry's claim. •(B) The driver's conduct, if negligent, would be viewed as a superseding cause, defeating Huckleberry's claim. •(C) Because the driver's conduct constituted an intentional tort, Bus Co. may not be held vicariously liable. •(D) If the driver's conduct was unreasonable, Huckleberry can recover against Bus Co.

•Leader is a labor leader in Metropolis. Ten years ago he was divorced. Both he and his first wife have since married other persons. Recently, News, a newspaper in another city, ran a feature article on improper influences it claims had been used by labor officials to secure favorable rulings from government officials. The story said that in 1997 Leader's first wife, with Leader's knowledge and concurrence, gave sexual favors to the mayor of Metropolis and then persuaded him to grant concessions to Leader's union, with which Metropolis was then negotiating a labor contract. The story named Leader and identified his first wife by her former and current surnames. The reporter for News believed the story to be true, since it had been related to him by two very reliable sources. Leader's first wife suffered emotional distress and became very depressed. If she asserts a claim based on defamation against News, she will •A. Prevail, because the story concerned her personal, private life. •B. Prevail if the story was false. •C. Not prevail, because News did not print the story with knowledge of its falsity or with reckless disregard for its truth or falsity. •D. Not prevail if News exercised ordinary care in determining whether the story was true or false.

•Ohner owns the Acme Hotel. When the International Order of Badgers came to town for its convention, its members rented 400 of the 500 rooms, and the hotel opened its convention facilities to them. Badgers are a rowdy group, and during their convention they littered both the inside and the outside of the hotel with debris and bottles. The hotel manager knew that objects were being thrown out of the hotel windows. At his direction, hotel employees patrolled the hallways telling the guests to refrain from such conduct. Ohner was out of town and was not aware of the problems which were occurring. During the convention, as Smith walked past the Acme Hotel on the public sidewalk, he was hit and injured by an ashtray thrown out of a window in the hotel. Smith sued Ohner for damages for his injuries. Will Smith prevail in his claim against Ohner? •(A) Yes, because a property owner is strictly liable for acts on his premises if such acts cause harm to persons using the adjacent public sidewalks. •(B) Yes, if the person who threw the ashtray cannot be identified. •(C) No, because Ohner had no personal knowledge of the conduct of the hotel guests. •(D) No, if the trier of fact determines that the hotel employees had taken reasonable precautions to prevent such an injury.

•P suffered a severe loss when his manufacturing plant, located in a shallow ravine, was flooded during a sustained rainfall. The flooding occurred because City had failed to maintain its storm drain, which was located on City land above P's premises, and because Railroad had failed to maintain its storm drain, which was located on Railroad land below P's premises. The flooding would not have occurred if either one of the two storm drains had been maintained properly. P sued Railroad to recover compensation for his loss. The evidence in the case established that the failures of the two drains were caused by the respective negligence of City and Railroad. There is no special rule insulating City from liability. In his action against Railroad, P should recover •(A) nothing, because he should have joined City, without whose negligence he would have suffered no loss. •(B) nothing, unless he introduces evidence that enables the court reasonably to apportion responsibility between City and Railroad. •(C) one-half his loss, in the absence of evidence that enables the court to allocate responsibility fairly between City and Railroad. •(D) all of his loss, because but for Railroad's negligence none of the flooding would have occurred.

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

•Problem: Plaintiff expressly consents to an operation on his nose. While plaintiff is on the operating table (and unconscious), the defendant performs emergency heart bypass surgery on plaintiff. If the defendant had waited, the plaintiff would have died. Were any torts committed?

No, consent is implied by law

•A statute in Ohio prohibits drivers from crossing double yellow lines in the middle of highways. This statute is designed to prevent head-on collisions. While A is driving her car on the highway, a small child runs into A's path, causing A to cross a double yellow line and hit B's car head-on, injuring B. Is this negligence per se?

No...violation is excused

D, a bus company, is involved in a two-vehicle accident in which A, a passenger on the bus, and B, the driver of the other vehicle, are hurt. -Duty to A -Duty to B

•D has a heightened duty of care; D is liable for even slight negligence •D will be held to the reasonable person standard

BAR REFRESHER - TORTS

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