Torts 2 MC ?s

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Bill and Sam were both salesmen. They were both trying to make a big sale to XYZ Corporation. Sam got the sale, and Bill got very angry. Bill called the employee of XYZ Corporation that was responsible for making the order and said several things about Sam. Bill said, "Sam is a liar and a cheat. Those goods he sold you are of low quality and will not hold up. Sam has cheated other companies, so you better watch him closely." All of the statements were false. Although the sale should have been final, XYZ Corporation cancelled the order with Sam. Sam found out what Bill had said, and wants to sue Bill. If Sam sues Bill for defamation, is the statement sufficiently defamatory to be actionable? A. Yes. It holds Sam up to ridicule, hatred, and/or loss of reputation. B. Yes. All false statements are defamatory. C. No. Only written statements can be defamatory. D. No. The statement may be a misrepresentation, but it is not defamatory.

The answer is A. A defamatory statement is one that harms the reputation of another. It may also need to be false in order to bring the action, but harm to reputation is the definition of defamatory.

Lorenzo suffered an injury to his back in a slip and fall accident at Monster Mart. Lorenzo incurred medical bills and was unable to work for six months. He brought an action for his injuries against Monster Mart. By the time of trial, Lorenzo had recovered from his back injury and had returned to full time employment at his old job. His proof of damages included $100,000 for medical and hospital bills, plus $40,000 in lost earnings. His calculation of lost earnings included a merit pay increase which his attorney showed he would have earned if not for the accident. At the time of trial the rate of interest on one year Certificates of Deposit was two percent, and inflation was at one percent. The suit was heard in federal court. What would be a proper discount rate for the proved $140,000 in damages? A. These damages should not be discounted. B. The court should use the "real rate of interest" approach. C. The discount rate should be based on the current rate for Certificates of Deposit. D. The discount rate should be based on the rate of inflation.

The answer is A. According to the facts of the problem, all the damages were incurred before trial. Lorenzo has recovered from the injury, so presumably the medical expenses have ceased, and he is back at work, so there are no future lost earnings. Accordingly, no discount should be applied. The discounting of damages to present value is only appropriate for awards of future economic losses, in cases in which the plaintiff will have ongoing medical expenses and is unable to work.

Resale, Inc. is a dealer in used and rebuilt equipment. Resale obtained a used crane originally manufactured by the Crane Co. The crane was designed for heavy lifting. Resale installed a new engine and a new lifting cable on the crane. The cable was manufactured by Cable Co. Resale then sold the crane "as is" to Contractor, in a contract of sale which disclaimed all express and implied warranties. Contractor then used the crane in construction work. While using the crane on the job six months later, an accident occurred. Employee, who was operating the crane at the time, was severely injured, and the construction job was delayed for a week while a replacement crane and operator were obtained. This accident occurred when the lifting cable proved to be defective and snapped, causing the steel beam that was being lifted to fall on the crane and injure Employee. If Employee successfully sues Resale in strict liability for the injury, would Resale have any claim for contribution or indemnity from any other party? A. An indemnity claim against Cable Co., assuming Resale was not itself negligent in inspecting the cable. B. A contribution claim against Crane Co. based on the manufacturing defect. C. An indemnity claim against Crane Co. based on the manufacturing defect. D. A contribution claim against Contractor, as the employer.

The answer is A. Because the crane did not have the defect when it was sold by Crane Co., Resale would have neither a contribution nor an indemnity claim against it. Similarly, Contractor would have no liability under a strict liability theory. However, since the defect occurred in the lifting cable, the manufacturer of the cable could be liable for contribution or indemnity. If Resale was itself responsible in some way, such as negligent failure to inspect the cable, Resale would still be entitled to contribution. If, however, Resale is strictly liable and had no actively tortious role in causing the injury, Resale would be entitled to indemnity from the manufacturer, Cable Co.

Biff was injured while driving when a vehicle driven by Dorf ran a red light and broadsided Biff's car. The car was badly damaged and Biff suffered a concussion and injuries to his back. The back injury left Biff in constant pain. The concussion has affected his balance. Biff now can walk only with the assistance of a cane. As a result, Biff can no longer work at his previous job as a construction worker on skyscraper projects. Use the same facts as Question 1. If, while awaiting trial, Biff in fact gets a full time office job and begins to earn a regular wage again, which of the following statements is most correct? A. The amount actually earned will be credited, dollar for dollar, against his claim for lost wages. B. These amounts would not reduce his claims because these earnings are from a collateral source. C. These earnings are irrelevant because the entire claim would be barred by workers compensation. D. Evidence of these amounts should be excluded as likely to confuse the jury, since his future ability to work is inherently speculative.

The answer is A. If the plaintiff actually earns money from a substitute job, these funds will reduce the amounts owing for past lost wages. This can be viewed as a form of avoidable consequences, or as a conclusion that the lost wages should include only the amount not actually earned. It is not regarded as a form of collateral source. Also, workers compensation has nothing to do with this claim; nothing in the facts would suggest that Dorf is Biff's employer, or connected with Biff's employer. Finally, while calculations of future damages are always somewhat speculative, there would be nothing speculative about the formulation contained in answer A. If Biff actually earned the money it is clear that this would be a non-speculative deduction from the lost earnings claim. In fact, however, courts often will make a similar adjustment for future lost earnings as well.

Logging Company was hauling logs along a state highway. One of their trucks dropped a full load of logs on the highway. The highway had to be closed for three days in order to get the logs cleared. Can a state attorney general bring an action for public nuisance for the damages caused by the accident? Carl drove to and from work using that public road. For the three days that the road was blocked, Carl had to driver an extra 25 miles a day to get to and from work. Carl wants to sue the Logging Company for the additional mileage. What is the likely result of his lawsuit? A. Carl cannot recover since his injury is merely different in degree from the general public. B. Carl cannot recover since his injury is merely different in kind from the general public. C. Carl can recover for a private nuisance for the harm he has suffered. D. Carl can recover since his injury is different in kind from the general public.

The answer is A. In order for a private citizen to bring an action for public nuisance, that citizen must suffer an injury different in kind from the general public. This injury to Carl is merely one of degree. The injury to the public is an inconvenience due to the blocked road. Carl has an injury greater in degree since he travels the road more often than many people.

Bill and Sam were both salesmen. They were both trying to make a big sale to XYZ Corporation. Sam got the sale, and Bill got very angry. Bill called the employee of XYZ Corporation that was responsible for making the order and said several things about Sam. Bill said, "Sam is a liar and a cheat. Those goods he sold you are of low quality and will not hold up. Sam has cheated other companies, so you better watch him closely." All of the statements were false. Although the sale should have been final, XYZ Corporation cancelled the order with Sam. Sam found out what Bill had said, and wants to sue Bill. If Sam wants to claim that the action is for slander per se, what will he need to show? A. The statements affect Sam's trade or business. B. The statements are false. C. The statements were written or read from a script. D. The statements attack the good moral character of Sam.

The answer is A. In order to prove that the statements are slander per se, Sam would have to show that they affected his trade or business. It does appear that they would. The other types of slander per se are statements that allege that the plaintiff has a loathsome disease, committed a serious crime, or lacks chastity.

The answer is A. In responding to questions regarding products liability it is crucial to pay close attention to the particular parties and theories of recovery referred to. In this case, the question asks about claims by Pat against Motorco in strict products liability. Under that theory, the defect in the bolt was a manufacturing defect: the bolt did not turn out the way it should have. This rules out design defect. Since Pat was wearing a seat belt, no issue of failure to warn about the importance of wearing the belt arises.

Filbert was injured in an automobile accident. He suffered an injury to his foot which resulted in an abscess that did not heal properly. This problem was worsened because Filbert suffered from diabetes and had poor blood circulation in his feet. At the time of trial Filbert had returned to full-time employment as an accountant, but was still suffering from problems with the sore on his foot. Doctors at the trial testified for Filbert that future operations would be necessary to try to heal this wound, explaining the likely type of procedure and when it would be needed. In the meantime, Filbert would continue to suffer pain and be limited in his ability to walk. Attorneys for the defendant object to evidence of the need for future operations on the ground that the need for these procedures was speculative and was caused by Filbert's pre-existing diabetes rather than the accident. How should the court rule on this objection? A. The court should overrule the objection based on the thin-skulled plaintiff rule and sufficient evidence of the need for the operation. B. The court should overrule the objection because questions of the amount of damages are for the jury. C. The court should grant the motion because the plaintiff cannot recover speculative damages. D. The court should grant the motion because of the plaintiff's pre-existing medical condition.

The answer is A. In this situation, the plaintiff's injury is not healing properly because of pre-existing problem with diabetes. Even though most victims would have healed without difficulty, the defendant must pay for injury actually incurred, even though unexpectedly severe. In other words, the thin skulled plaintiff doctrine would apply to these facts. As for the objection that future damages are speculative, the requirement is that the plaintiff present evidence of the existence and likely amount of such damages. Although somewhat speculative, such damages are recoverable if the plaintiff presents sufficient evidence. Here, the plaintiff has offered the testimony of experts regarding the need for and nature of future treatments. This evidence should satisfy the plaintiff's burden in this regard.

Joan and Tom own a home in a neighborhood that has some houses and some small stores. One of the stores, a small grocery, has flood lights in their parking lot. Some of the lights have, over time, shifted so that a substantial amount of the light shines in the windows of the house of Joan and Tom. Joan and Tom asked the store owner to please turn the lights back towards his own parking lot, but he responded, "That is too much trouble and will cost me money. I'm not going to do it." Joan and Tom would like to bring an action to get an injunction to force the store owner to redirect the floodlights. Will Joan and Tom be successful? A. Yes. Since a private nuisance protects a right in land, injunctive relief is available. B. No. Injunction are equitable remedies. Such remedies are only available when damages at law are inadequate. Since damages may be recovered in a nuisance action, that is the only recovery allowed for private nuisance. C. Yes. It will, however, require that the local attorney general decide that the lights are a public nuisance. D. No. Zoning laws must be consulted to determine if an injunction is allowed.

The answer is A. Injunctive relief is an equitable remedy. The courts will routinely say that equitable remedies are not available unless the remedy at law is inadequate. Since private nuisance protects a right in land, it is assumed that the remedy at law, that is damages, may be inadequate. The law assumes that land is unique and must be protected. All of that being true, an action for private nuisance may allow the plaintiffs to seek an injunction to prohibit the continuation of the nuisance causing behavior.

Jane Smith was driving a truck along a state highway. The truck was loaded with dirt. The loaded portion of thethe truck failed and dumped the whole load of dirt right in the middle of the highway. Jane was able to move her truck out of the highway, but the state police had to close the highway for several hours. A truck and a front end loader had to be brought from the state department of highways to clear the highway. The state wants to sue Jane for the cost of clearing the highway. If the state brings a nuisance action for that cost, the likely result would be: A. The action will proceed since interference with a public highway is a public nuisance B. The action will proceed only if the highway can prove that Jane's conduct was intentional C. The action will be barred since the state highway department is supported by tax money and Jane is a taxpayer. Jane has, therefore, already paid for the work of the highway department D. The action will barred unless an individual wants to sue Jane for a negligent automobile action

The answer is A. Interference with a public highway is a public nuisance. Nuisance can be based on intent, negligence or strict liability, so there is no need to require proof of intent.

The answer is A. Lawyers are not public figures just because they are "officers of the court." The rules that determine whether a person is a public figure also assume that unwilling public figures are rare. Being written about in the newspaper does not make one a public figure.

Motorco is a manufacturer of automobiles. The lowest priced model manufactured by Motorco, the Flimsey, comes equipped with both driver and passenger front air bags, as well as driver and passenger lap and shoulder seat belts. On the dashboard in front of the driver is a small sign, in small but readable type, which states: "Airbag equipped. Always fasten seat belt when car is in motion." On the sun visor on the passenger side is a sign, of similar size, which says the same thing. Driver purchased a Flimsey from Motorco. While operating the car, with Pat as a passenger in the front seat, Driver negligently ran a red light. Driver's car was hit on the driver's side by a vehicle driven by Bill, which was going about 45 miles per hour, 15 miles over the speed limit. Driver was not wearing a seat belt, and the force of the impact threw him through the side window of the car, causing severe injuries. The air bag did not open because it was designed to deploy only in head-on collisions. Pat was wearing the lap and shoulder belts, but one of the bolts anchoring the seat belt to the car broke, and she was thrown to the driver's side of the car. The impact with the side of the car caused severe injuries that she would not have suffered if the bolt had held. Analysis of the bolt that failed showed a defect in the metal that must have occurred during manufacture. Motorco buys these bolts from twenty different suppliers and tests samples from each batch. Motorco's records do not reveal that any defects of the type found in the bolt have ever been discovered during the inspection process. In an action based on negligence by Pat against Motorco, which of the following defenses would be most effective? A. Proof that Motorco performs reasonable inspections of the bolts used in seat belt anchors. B. Proof that Motorco relies on the bolt manufacturers to inspect the bolts. C. Proof that Driver's negligence was a legal cause of Pat's injuries. D. Proof that the bolts were properly designed.

The answer is A. Note that this question specifies that Pat is pursuing a negligence action against Motorco. For that reason, a different set of defenses are possible. Of those set out as choices, the best would be the one that suggests that Motorco was not negligent, because it met the standard of exercising due care by inspecting the bolts itself, rather than relying on someone else. Not so good is trying to defend by asserting that another party, namely Driver, is also liable. In this case, that might lead to a claim of contribution against Driver, but that is not as effective as a defense that could totally eliminate liability. Finally, the good design is not a defense, because the problem lay in the manufacture of the bolt.

Bill grows a rare strain of violets in his yard. They are very rare because of their vulnerability to almost everything. They are one of the most difficult plants to grow. One day Bill notices that his violets are beginning to wilt and die. He takes several soil and air samples before realizing what is causing the problem. It appears that Bill's neighbor, Carl, is cooking out on a grill approximately two Saturday nights a month. Although this does not seem like much, the small amount of smoke put in the air by the home grill is enough to harm the very rare type of violet. When Carl refuses to stop cooking hamburgers on his grill twice a month, Bill sues for private nuisance. What is the likelihood of success for Bill? A. Bad. The harm to the rare violets is not sufficiently substantial to force Carl to give up grilling twice a month. B. Good. Causing any disruption of the use and enjoyment of land is a private nuisance. C. Bad. Grilling hamburgers on a Saturday evening is a Constitutional right. D. Good, since this is a public nuisance and Bill suffers an injury different in kind.

The answer is A. Nuisance actions, both public and private require proof of "substantial harm." In some ways, this requirement is a balancing of the rights and obligations of all citizens to behave in a way that does not cause harm to others. Just because Bill opts to grow a very rare type of plant, that does not give him the right to force others in the neighborhood to give up normal activities.

Fred noticed that the small factory that was next to his warehouse, would, occasionally, emit a foul smelling smoke. Fred mentioned this to the owner of the factory. The factory owner was concerned and noted that the presence of the foul smell would indicate a particularly corrosive chemical was escaping. The owner promised to look into it. Fred didn't say anything for about a year, until he noticed that the shingles on his roof were falling apart. A chemical expert came to look at Fred's roof and identified the damage as caused by a corrosive chemical probably being emitted by the nearby factory. Fred wants to sue for the damage to his roof. In order to win, he must prove which of the following? A. The elements of private nuisance. B. The elements of private nuisance and negligence. C. The elements of private nuisance and intent. D. The elements of private nuisance and strict liability.

The answer is A. Nuisance is an area of the law and not a separate basis of liability. Public and private nuisance claims may be based on intention or negligent conduct. In addition, they may be based on conduct which gives rise to strict liability. The conduct that gives rise to nuisance may start as negligent or strict liability, but become intentional after the wrongdoer is notified of the harm that is being caused. In this question, for example, it appears that the escaping chemicals may be occurring due to negligence or even innocent conduct at the very beginning. Once Fred notified the factory owner of the problem, allowing the chemicals to escape becomes intentional. At that point, the factory owner knows, to a substantial certainty, that the chemicals are escaping.

Plaintiff, a consumer, sues Defendant in breach of warranty for personal injuries suffered because ordinary consumer goods sold to Plaintiff by Defendant were unmerchantable. Defendant argues that under the Uniform Commercial Code, the contract of sale limited Plaintiff's remedy to replacement of the goods, and excluded liability for consequential damages for personal injury. A. Under the U.C.C., limits on damages for personal injury are prima facie unconscionable. B. Under the U.C.C., such limits on remedies are never enforced. C. Under the U.C.C., such limits on remedies are strictly upheld. D. Under the U.C.C., limits on damages for personal injury are prima facie commercially reasonable.

The answer is A. Pursuant to U.C.C. 2-719(3), limitations on the recovery of consequential damages for injuries resulting from consumer goods are "prima facie unconscionable."

Pharmo Drug Company manufactures an antibiotic drug called Killum, which is often effective against bacteria that are resistant to other antibiotics. Unfortunately, it has a side effect of causing numbness and loss of coordination of the hands. For this reason, Killum is not usually prescribed unless it is clear that conventional antibiotics are not working. It is also not prescribed, because of its toxicity, to women who are pregnant, may become pregnant, or are nursing; nor to children under age 18 and adults over 60; nor to anyone with glaucoma, liver or kidney problems, stomach ulcers, or irritable bowel syndrome. If a patient injured by one of the side effects of the drug brings suit on a design defect theory, who will prevail if the court uses the test adopted by the Third Restatement of Torts, Products Liability? A. Pharmo will prevail as long as the benefits outweigh the risks for some class of patients, and adequate warnings are given. B. Pharmo will prevail because there is no such thing as a defectively designed drug. C. The patient will prevail because so many risks show that the drug is unreasonably dangerous. D. The patient will prevail because the existence of other antibiotics shows that an alternative design exists.

The answer is A. The Third Restatement treats most cases involving prescription drugs under a failure to warn theory. If the patient is informed of the risks of the drug treatment, the manufacturer is not responsible simply because unavoidable and dangerous side effects are possible. The Third Restatement does recognize liability for prescription drugs under a design defect theory, but only in a limited circumstance. The risks must outweigh the benefits for all possible classes of patients. If some class of patients exists for whom a reasonable medical practitioner would prescribe the drug (because for that class, the benefits outweigh the risks) then drug is not defectively designed. At that point, the plaintiff would have to show that adequate warnings were not given. Under this approach, a drug that has severe risks for many classes of patient would not automatically be considered defective in design. As long as some class of patients would benefit, the design is not considered defective. This is true even if alternatives are available.

Fred owns a large farm in a rural area. He primarily raises cattle and pigs. His farm has substantial road frontage along a state highway. Sarah owns a small lot where she lives in a small house. That lot is on the corner of the state highway and the county highway intersection. This lot and house is the only lot that Fred does not own along the highway. If he could buy this lot, he would have continuous ownership of land along the state highway all the way to the intersection of the county highway. Fred has offered to purchase the land from Sarah numerous times, but she refuses. Fred has even offered more than the property is worth, but Sarah still refuses. Fred decided to put a feed lot right up beside the property owned by Sarah. A feed lot is a small plot that is fenced and holds a substantial number of livestock. The livestock are kept in the enclosed area in order to gain weight rapidly before taking to market. With a small number of livestock in a small area, the odor is horrible. Sarah asked Fred to move the feedlot, but Fred claims he has a right to put the feedlot anywhere he wants. If Sarah sues Fred for having to endure the odor, her best claim would be: A. Private nuisance. B. Public nuisance with an injury different in kind. C. To convince the local attorney general to bring an action for public nuisance. D. Strict liability.

The answer is A. The best action would be for a private nuisance. By placing the feedlot, with all of its odors, near Sarah's house, Fred is interfering with her use and enjoyment of her real estate. It would be possible to seek a public nuisance with an injury different in kind, but the private nuisance is better. Since Fred intentionally placed his feedlot next to her home, the nuisance action would be based on intent.

Acme Chemical Company was discovered to be dumping a toxic chemical into a river that ran near its plant. The state's attorney general wants to bring an action against the company to force it to stop dumping the chemical into the river. The best claim for relief would be: A. Nuisance. B. Negligence. C. Trespass to land. D. Strict liability.

The answer is A. The best claim for relief is in nuisance. It would actually be a public nuisance. Negligence is a basis of liability that may be used in nuisance, but nuisance would be the claim. The same holds true for strict liability. The nuisance claim may be based on strict liability. Trespass to land is an intentional tort to be brought by the person with the right of possession to the land. The attorney general would be the wrong party for such a claim.

Jane Jones is a very good trial attorney. She is representing a man who is accused of murder. The local newspaper ran an article that said, "Attorney Jane Jones is a dishonest crook. She knows that her client committed murder and yet she is trying to get him acquitted. Jane Jones is actually a member of organized crime and is representing this murderer as part of her job for the crime family." The story was false. Jane Jones is an honest, hardworking lawyer. She handles criminal cases on a regular basis. She is not part of organized crime. If Ms. Jones decides to sue the newspaper, she will have to face the issue of whether she is a public or private figure. Ms. Jones is somewhat amazed at the reaction of the public after the article runs. Although some of her friends try to avoid her and many members of the public are afraid that she is a member of organized crime, her legal business increased. It seemed that criminals wanted her to represent them. In short, she has lost some friends and her reputation, but she is making a lot more money. If she sues from defamation, what can she recover? A. Damages for her lost friends and reputation, but no loss of business. B. Nothing since she must prove "special damages" in order to recover any damages. C. Nothing since loss of friends and reputation is not sufficient to meet the "actual damages" requirement. D. Nothing since loss of reputation cannot be measured.

The answer is A. The modern constitutional decisions require that a plaintiff suffer "actual damages" before being allowed to recovery any damages. A plaintiff cannot recover "presumed damages." Loss of reputation, however, is sufficient for "actual damages."

Pittman took his car to Mega Lube for an oil and filter change. Mega Lube installed a defective new oil filter. The filter leaked oil, resulting in significant damage to the engine of Pittman's car. Pittman sues Mega Lube in strict products liability for selling him a defective filter. Who will prevail? A. Pittman will prevail because Mega Lube sold him the defective oil filter. B. Pittman will prevail only if reasonable inspection would have found the defect. C. Mega Lube will prevail only if it sold the filter "as is." D. Mega Lube will prevail because this situation represents the provision of services rather than the sale of a product.

The answer is A. The services rule only applies to "professional" services. In this situation Mega Lube would be regarded as a seller of the oil filter, and so would be strictly liable.

Motorco is a manufacturer of automobiles. The lowest priced model manufactured by Motorco, the Flimsey, comes equipped with both driver and passenger front air bags, as well as driver and passenger lap and shoulder seat belts. On the dashboard in front of the driver is a small sign, in small but readable type, which states: "Airbag equipped. Always fasten seat belt when car is in motion." On the sun visor on the passenger side is a sign, of similar size, which says the same thing. Driver purchased a Flimsey from Motorco. While operating the car, with Pat as a passenger in the front seat, Driver negligently ran a red light. Driver's car was hit on the driver's side by a vehicle driven by Bill, which was going about 45 miles per hour, 15 miles over the speed limit. Driver was not wearing a seat belt, and the force of the impact threw him through the side window of the car, causing severe injuries. The air bag did not open because it was designed to deploy only in head-on collisions. Pat was wearing the lap and shoulder belts, but one of the bolts anchoring the seat belt to the car broke, and she was thrown to the driver's side of the car. The impact with the side of the car caused severe injuries that she would not have suffered if the bolt had held. Analysis of the bolt that failed showed a defect in the metal that must have occurred during manufacture. Motorco buys these bolts from twenty different suppliers and tests samples from each batch. Motorco's records do not reveal that any defects of the type found in the bolt have ever been discovered during the inspection process. Use the same facts as Question 1. If Driver sues Motorco for a design defect for not equipping the Flimsey with a side curtain air bag in the door to protect against side impact collisions, how would the approach to design defect litigation of the Third Restatement of Torts, Products Liability, affect the cases of plaintiff and defendant? A. Driver would have the burden of proving that a reasonable alternative design would have reduced or avoided the injury and the failure to adopt the alternative made the product not reasonably safe. B. Driver would simply have to prove that some aspect of the design contributed to his injuries; Motorco would have the burden of showing that no other design was feasible. C. Driver would have the burden of proving that the design contributed to his injuries and that another design was technologically possible; Motorco would then have the burden of showing that the change would reduce the utility of the product. D. Driver would have the burden of proving that the custom in the industry was to put air bags in the doors.

The answer is A. Under the Third Restatement approach, the plaintiff must show that a reasonable alternative design, which would have eliminated or reduced the harm, was available, and that the failure to use the alternative design made the product not reasonably safe. The formula "not reasonably safe" invokes the risk- utility test for design defect developed under section 402A of the Second Restatement. The plaintiff has the burden of establishing both parts of this test, although not necessarily to prove all the risks and benefits of the product. Answer B reflects the approach of the California Supreme Court in Barker v. Lull Engineering Co., Inc., 573 P.2d 443 (Cal. 1978). It is not the approach adopted by the new Third Restatement. Finally, the plaintiff does not have to show that the alternative design is actually in use anywhere, much less that the use of the alternative design is customary. It is sufficient that the alternative was feasible.

Carol wants to sue her next door neighbor for making noise very late at night. Carol goes to an attorney in order to see what can be done. The attorney tells Carol that she can sue the neighbor for a private nuisance. What will Carol need to proof in order to bring the private nuisance action? A. The neighbor is creating a harm to the public's health or safety. B. The neighbor is creating interfering with Carol's use and enjoyment of her land. C. The neighbor is interfering with Carol's exclusive possession of her land. D. Carol cannot bring an action for private nuisance. It must be brought by the public representative.

The answer is B. A private nuisance is an action to recover for damages for the interference of a person's use and enjoyment of their land.

"Legal Moonshine" is, as the name suggests, distilled by a properly licensed and taxed distillery. The product claims to be just like real "moonshine" whiskey: grain alcohol highly distilled and bottled without aging or filtering. The product is bottled at 160 proof, which means that it is 80% pure grain alcohol, or twice as strong as ordinary whiskeys. Peter drank a pint bottle of Legal Moonshine and died of acute alcohol poisoning. The label contains no warning of this danger. Peter's wife wishes to bring a wrongful death claim against the manufacturer of Legal Moonshine based on failure to warn. In a wrongful death action by Peter's wife against the manufacturer of Legal Moonshine based on failure to warn, what is the strongest argument against imposing liability for failure to warn? A. Alcohol by definition is not unreasonably dangerous. B. The dangers of alcoholic beverages are well known to ordinary members of the community. C. Liability will increase the price of alcoholic beverages. D. No one actually reads warning labels.

The answer is B. As noted in the explanation to Question 16, a manufacturer is not required to warn against dangers that are already known to ordinary consumers. The defendants could argue that the dangers of alcohol, including the dangers of alcohol poisoning, are generally known. While alcohol poisoning is certainly not the most common danger of drinking, in fact enough unfortunate examples from initiations and such are publicized that the danger is probably known. Furthermore, the strength of the alcoholic beverage in this case would be printed on the label, so the fact that it was so strong was not hidden from the consumer. This is therefore the best of the available choices.

Marta, who was right handed, injured her left hand as the result of an accident caused by a defective glass coffee pot, which shattered and severed the nerves and tendons in her left wrist. At the time of trial the wound had healed and she was pain-free, but the injury substantially disabled the use of her left hand. As a result, Marta could no longer play the violin. Marta was not a professional, but she was a member of the local amateur symphony orchestra and several local chamber music groups. At trial, Marta asserts a claim for pain and suffering and hedonic damages for the loss of enjoyment of life as the result of the accident. Which of the following statements is most correct? A. Since Marta is no longer in pain, Marta cannot recover any future hedonic damages. B. Marta can recover damages for the pain of the injury and for loss of enjoyment of life. C. Marta cannot recover hedonic damages because these are disfavored by the courts as a separate element of recovery. D. Marta must develop new interests in order to mitigate her damages.

The answer is B. Courts are divided on whether damages for loss of enjoyment of life are a separate element of damages from pain and suffering, or on the other hand are simply a part of the general recovery for pain, suffering and other "psychic" harms. Whatever position the courts might take on this point, however, Marta would be allowed to recover for both under these facts. The pain and suffering from the original injury is clearly compensable, but since that pain has now ended there is no basis for recovery for future pain. The future harm is the loss of enjoyment of life resulting from the inability to continue her performance on the violin, which on the facts was a major part of her life. This form of loss is well recognized, and whether it is a separate item of recovery or part of a single award for pain and suffering, Marta can recover damages for it.

Resale, Inc. is a dealer in used and rebuilt equipment. Resale obtained a used crane originally manufactured by the Crane Co. The crane was designed for heavy lifting. Resale installed a new engine and a new lifting cable on the crane. The cable was manufactured by Cable Co. Resale then sold the crane "as is" to Contractor, in a contract of sale which disclaimed all express and implied warranties. Contractor then used the crane in construction work. While using the crane on the job six months later, an accident occurred. Employee, who was operating the crane at the time, was severely injured, and the construction job was delayed for a week while a replacement crane and operator were obtained. This accident occurred when the lifting cable proved to be defective and snapped, causing the steel beam that was being lifted to fall on the crane and injure Employee. Suppose Contractor attached a wrecking ball to the crane and used it to knock down an old building on the construction site by swinging the wrecking ball from side to side. If the accident occurred when the crane tipped over while being used in this fashion, and Employee brings a strict products liability claim against Crane Co. alleging a design defect, who will prevail? A. Crane Co. would prevail if it shows that the Crane was not designed to be used in this fashion. B. Crane Co. would prevail if it shows that such use was an unforeseeable misuse of the crane. C. Employee would prevail because the Crane tipped over. D. Employee would prevail if a design change would have prevented the accident.

The answer is B. Even if the crane was not specifically designed to be used in this way, it may be that such a use is in fact common and foreseeable enough that the crane should be designed so that it can be used safely for this purpose. On the other hand, a lot of machines are sufficiently specialized that they would never be used for any but their designed purpose. Accordingly, whether Crane Co. should have designed the crane to be safe for use with a wrecking ball will depend on what sorts of uses Crane Co. ought to have anticipated. It will not be sufficient to simply claim that the crane was not intended for this use if such use is foreseeable. On the other hand, Crane Co. would not be liable simply because the crane tipped over or because some design change could have prevented the accident, if Crane Co. was not obligated to anticipate such uses.

The answer is B. If the plaintiff is a public figure, the plaintiff must prove "actual malice." Answer C may have confused some students. "Actual malice" means that the defendant knew the statement was false or acted in reckless disregard of the truth. Answer C is more in the nature of old common law malice. That would not be adequate to form the basis of a defamation claim against a public figure.

Pam owned a small home in a rural area. A developer bought up a large tract of land and started making plans to build a large residential neighborhood on that tract. In order to put in streets, sidewalks and utilities, the developer had to do some blasting with dynamite. After a particularly long day of blasting about three miles from Pam's house, Pam noticed cracks had developed in the foundation of her house. An expert told Pam the cracks would have been caused by the blasting. When Pam asked the developer to help her pay for the damage to her home, he refused. He said that he was following all appropriate industry standards in using the explosives. He did nothing wrong. He was sorry her house foundations had cracks, but that was not his problem. Can Pam recovery for a private nuisance against the developer. A. No. It does not appear that the developer was negligent. B. Yes. This is a private nuisance and a private nuisance may be based on intent, negligence and strict liability. C. No. There was no intent to harm Pam's house. D. Yes. Developers are absolutely liable for harm they cause.

The answer is B. Nuisance actions may be based on intent, negligence or strict liability. Damage from blasting is a classic example of strict liability. This damage from blasting was an interference with Pam's use and enjoyment of her real estate.

Joan Roe wants to open as small grocery/convenience store near an area that appears to be primarily residential. She figures that the residents will come to her store since there are no other commercial properties in the area. Joan discovers that this area happens to have no zoning laws, so she opens her business. The state attorney general brings a nuisance action and seeks to close her business. The best answer would be: A. The state must pass zoning laws for this area or anyone can feel free to make any use of the property. B. An action in nuisance is the best way to resolve the dispute. Prior to zoning laws, nuisance actions were the way to resolve land use issues. C. Zoning is necessary since an action to close the business would be a taking without just compensation. D. Although there are no zoning laws, the state attorney general will need to find some other criminal law that Joan Roe is violating in order to close her down.

The answer is B. Prior to the enactment of zoning laws, actions in nuisance were used to resolve land use disputes. It is frequently said that a nuisance is merely a thing in the wrong place. It is sometimes stated that a nuisance is a "pig in a parlor." Placing a commercial enterprise in a residential area may be placing a thing in the wrong place. The courts will have to resolve the issue in a nuisance action.

Pearson, a state prison guard, brought his pet rattlesnake, Fang, to work one day. Although Pearson honestly believed the snake would not bite, his supervisor objected to the idea that the snake should be allowed to just slither around all day. To satisfy the supervisor's concerns, Pearson decided to put Fang into a cell. After some searching, Pearson found a cell with only one occupant, a man named Crookshank who had been convicted of forgery. Assuring Crookshank that Fang never bit anyone, Pearson put Fang into the cell with Crookshank and departed. At the end of his shift he noticed a commotion around the cell, and discovered that Fang, against all his expectations, had in fact bitten Crookshank. Crookshank sued Pearson, seeking both compensatory and punitive damages. Pearson moves to strike the claim for punitive damages. What is the proper ruling on this motion? A. The motion should be denied because Pearson's actions created an unreasonable risk of harm. B. The motion should be denied because Pearson acted with reckless disregard of the safety of the prisoner. C. The motion should be granted because under federal law state prison guards are immune from awards of punitive damages. D. The motion should be granted because punitive damages are awarded only upon a showing of actual malice, which requires a subjective intent to cause harm, which Pearson lacked.

The answer is B. Punitive damages are warranted when the defendant has an actual desire to cause harm, but they are usually also awarded when the defendant's conduct evidences a reckless disregard of the safety of others. Putting a live rattlesnake in a small enclosed space with a human being would qualify under that standard.

The answer is B. Running for public office, especially that of governor, is sufficient to make one a public figure.

Dudley Armaments manufactures cheap, easily concealed handguns. Felon purchased a Dudley handgun from Gunshop, a local retailer, using a false identification. Felon showed the new gun to Bud and Lou, friends of his. Bud asked to handle the gun. Felon carefully engaged the safety on the gun, which is supposed to prevent the gun from firing accidentally. In handing the gun to Bud, however, it slipped out of his hands and fell to the floor. The gun went off, wounding Lou in the leg. Investigation reveals that the type of safety used on the gun is ineffective when the gun receives a sharp impact, as in being dropped. If Lou sues Felon, who will prevail? A. Lou can prevail on both negligence and strict products liability theories. B. Lou can only prevail on a negligence theory. C. Lou can only prevail on a strict products liability theory. D. Lou will have no claim on either a negligence or a strict products liability theory.

The answer is B. Strict products liability is not a viable theory because Felon is not a seller of the gun.

Resale, Inc. is a dealer in used and rebuilt equipment. Resale obtained a used crane originally manufactured by the Crane Co. The crane was designed for heavy lifting. Resale installed a new engine and a new lifting cable on the crane. The cable was manufactured by Cable Co. Resale then sold the crane "as is" to Contractor, in a contract of sale which disclaimed all express and implied warranties. Contractor then used the crane in construction work. While using the crane on the job six months later, an accident occurred. Employee, who was operating the crane at the time, was severely injured, and the construction job was delayed for a week while a replacement crane and operator were obtained. This accident occurred when the lifting cable proved to be defective and snapped, causing the steel beam that was being lifted to fall on the crane and injure Employee. If Employee sues Crane Co. based on strict products liability, who will prevail? A. Crane Co. will prevail because there is no privity of contract between Crane and Employee. B. Crane Co. will prevail because the defect was not present when the crane was manufactured. C. Employee will prevail because Crane Co. placed the Crane in the stream of commerce. D. Employee will prevail because the mere passage of time will not relieve Crane of responsibility for a defective product.

The answer is B. The facts state that Resale replaced the cable, so the cable was not original equipment on the crane. In order for a product seller to be liable in strict product liability, the product must be defective when sold. Here the defective component, the cable, was introduced later when the crane was refurbished. Therefore the manufacturer will not be liable in strict products liability.

The corporation owns a factory in a town. The factory has discharged chemicals into the local river for approximately 30 years. Unfortunately, the chemicals have also gotten into the town's water supply. Recently the state health department has determined that the chemicals have polluted the river, caused deformities in the fish in that river and cancer in a large number of the town's residents. The state attorney general has brought an action for public nuisance to seek an injunction to force the factory to stop dumping the chemical in the river. Can the state get that injunction? A. No. Injunctive relief is available for private nuisance but not public nuisance. B. Yes. Injunctive relief is available for private nuisance and public nuisance. C. No. Damages to clean up the water supply can be awarded, but there is nothing unique about public health to allow the use of equitable remedies. D. Yes. Injunctive relief is available if the chemical is on the Federal Banned Substances lists.

The answer is B. The use of injunctive relief is available for public nuisance as well as private nuisance.

Barkly suffered a knee injury due to the negligence of Fister. The injury prevented him from working at his profession as a long distance truck driver. As a result, Barkly's income was greatly reduced. A simple arthroscopic surgical procedure, using local anesthetic, has a high probability of repairing the knee injury and restoring Barkly's leg to full function, enabling him to return to his profession. Barkly, however, has refused to undergo the operation, claiming that he distrusts surgeons. Fister's attorneys will argue that Barkly's refusal to undergo the operation should prevent Barkly from recovering future lost earnings. Fister's attorneys will cite which doctrine? A. The thin-skulled plaintiff rule. B. The avoidable consequences rule. C. The credit for benefit rule. D. The last clear chance rule.

The answer is B. This rule is sometimes called "mitigation of damages," but the more correct term is "avoidable consequences." This is a general rule of damages that requires the plaintiff to make reasonable efforts to limit the extent of any injury received as the result of the defendant's conduct. It applies to both situations of economic loss as well as to cases of personal injury. In personal injury cases, the rule may require the plaintiff to obtain medical treatment of injuries so that they do not become disabling or require more expensive treatment later.

The Daily News, a local newspaper, wrote an editorial. It seems that the author of the editorial had been doing some checking and found out that there were several ethical violations against several lawyers in the state. In a state of 5000 lawyers, 100 lawyers had been found guilty of ethical violations during a 10-year period. The violations ranged from not completing the required number of CLE credits to actually stealing a client's money. The editorial said, "The situation in this state is serious. All of the lawyers in this state are crooks. They are all engaging in ethical violations. The problem is, not all of them have been caught." Susan Doe, a lawyer in that state, sued the newspaper for defamation. Ms. Doe had never been found guilty of an ethical violation. The best answer concerning this action is: A. She will win since she is a member of the class that was defamed. B. She will lose since the defamation concerns all members of a large class, even though she is a member of that class. C. She will win since the statement is defamatory and false. Not all of the lawyers had committed ethical violations. D. She will lose since it is impossible to prove she has not committed some type of ethical violation over the whole course of her career.

The answer is B. When a defendant defames a large group and includes all or most of the members of that group, no one member of that group can sue.

Bill and Sam were both salesmen. They were both trying to make a big sale to XYZ Corporation. Sam got the sale, and Bill got very angry. Bill called the employee of XYZ Corporation that was responsible for making the order and said several things about Sam. Bill said, "Sam is a liar and a cheat. Those goods he sold you are of low quality and will not hold up. Sam has cheated other companies, so you better watch him closely." All of the statements were false. Although the sale should have been final, XYZ Corporation cancelled the order with Sam. Sam found out what Bill had said, and wants to sue Bill. Assume that the story of Bill and Sam's problem gets picked up and written about in the newspaper. Publication in a newspaper is: A. Libel per quod. B. Libel. C. Slander. D. Slander per se.

The answer is B. Written defamation is libel.

Jim was in a hurry to get to an appointment and was driving his automobile along a city street. He approached an intersection where the light was yellow so he speeded up to get through that intersection. In fact, by the time he reached the intersection, the light turned red. Jim, however, went through anyway. On the cross street, a car driven by Charles went through the intersection since Charles noted that his light had just turned green. Charles hit Jim's car and caused substantial injury to Jim. Charles was not hurt. An ambulance was called to take Jim to the hospital, but the ambulance got lost on the way to the accident location. The operator taking the call made a few mistakes. The operator did not keep the caller on the line, wrote down the wrong address and did not read the address back to the caller to check that address. By the time that the ambulance found the accident, Jim was in much worse shape from loss of blood. Jim was taken to the hospital where emergency surgery was completed. Although Jim lived for 24 hours, he ultimately died. The evidence will show that Jim would have had a better chance to live if the ambulance had arrived on time. Jim was not married but had lived with the same woman, Jill, for 4 years. Jim and Jill had a son that is now 2 years of age. Jim was an accountant with a major accounting firm. Jill has consulted an attorney and would like to bring an action against Charles for the injury and death of Jim. Using the same set of facts as Question 14, a proper plaintiff brings an action for the death of Jim against Charles. Charles wants to raise the issue of intervening cause because of the conduct of the ambulance service. The issue of causation will be: A. Ignored since causation is not an element of wrongful death or survival. B. Be considered just as in any other tort claim. C. Be ignored since the conduct of all of the parties was negligent. D. Be considered only if Charles' conduct was intentional.

The answer is B. Wrongful death and survival claims are just like other tort claims. Issues such as causation must be considered.

Bob and Carol own a house in a residential area. Their home is a short distance from the corner. The corner lot remained vacant for some years. A corporation bought the corner lot and had it rezoned for a commercial use. The corporation then built a large grocery store on the lot. The grocery store is open 24 hours a day. The increased traffic around the store has started to cause noise in the area. In addition, the store employees do not do a good job of cleaning up the parking lot. Bob and Carol constantly have to pick up debris that is left in the grocery store parking lot and then blows into their yard. If Bob and Carol want to get some recovery, the likelihood of success is: A. Good, if they can get the local attorney general to sue for public nuisance. B. Bad, since the zoning change bars any action against the grocery store. C. Good, if they sue for the blowing debris as a private nuisance. D. Bad, since zoning is a non-reviewable governmental function.

The answer is C. After the zoning change, the corporation is allowed to place a commercial use on the property. Bob and Carol cannot sue because of the location of the grocery store. They can, however, sue to protect from inappropriate uses of the property. Although the corporation has the right to run a grocery store, they must run it correctly. Allow garbage to blow around the neighborhood would be a private nuisance.

Motorco is a manufacturer of automobiles. The lowest priced model manufactured by Motorco, the Flimsey, comes equipped with both driver and passenger front air bags, as well as driver and passenger lap and shoulder seat belts. On the dashboard in front of the driver is a small sign, in small but readable type, which states: "Airbag equipped. Always fasten seat belt when car is in motion." On the sun visor on the passenger side is a sign, of similar size, which says the same thing. Driver purchased a Flimsey from Motorco. While operating the car, with Pat as a passenger in the front seat, Driver negligently ran a red light. Driver's car was hit on the driver's side by a vehicle driven by Bill, which was going about 45 miles per hour, 15 miles over the speed limit. Driver was not wearing a seat belt, and the force of the impact threw him through the side window of the car, causing severe injuries. The air bag did not open because it was designed to deploy only in head-on collisions. Pat was wearing the lap and shoulder belts, but one of the bolts anchoring the seat belt to the car broke, and she was thrown to the driver's side of the car. The impact with the side of the car caused severe injuries that she would not have suffered if the bolt had held. Analysis of the bolt that failed showed a defect in the metal that must have occurred during manufacture. Motorco buys these bolts from twenty different suppliers and tests samples from each batch. Motorco's records do not reveal that any defects of the type found in the bolt have ever been discovered during the inspection process. In an action based on strict products liability by Pat against Motorco, which of the following defenses would be most effective? A. Proof that Motorco performs reasonable inspections of the bolts used in seat belt anchors. B. Proof that the defect in the bolt could not have been detected by any known test before it failed. C. Proof that the bolt that failed was a replacement bolt supplied by an auto repair shop after the car left Motorco's manufacturing plant. D. Proof that the forces in the accident exceeded the design specifications for the bolt.

The answer is C. Again, it is important to note that the question specifically asks about defenses to strict products liability. Under this theory, the amount of care expended by the defendant in inspecting the bolts does not matter. Even if the defect was not detectable, the defendant would still be liable; that is what strict liability for manufacturing defects means. Furthermore, the case involves a manufacturing defect, so proper design of the offending bolt would not defeat liability either. What would defeat liability is proof that the defect did not exist in the product when the defendant sold it. In other words, the product must be defective when it leaves the factory in order for the manufacturer to be liable. Defects introduced after the product is sold by the manufacturer are not that party's responsibility. For that reason, if the bolt was installed later as a replacement, the manufacturer would not be liable.

Resale, Inc. is a dealer in used and rebuilt equipment. Resale obtained a used crane originally manufactured by the Crane Co. The crane was designed for heavy lifting. Resale installed a new engine and a new lifting cable on the crane. The cable was manufactured by Cable Co. Resale then sold the crane "as is" to Contractor, in a contract of sale which disclaimed all express and implied warranties. Contractor then used the crane in construction work. While using the crane on the job six months later, an accident occurred. Employee, who was operating the crane at the time, was severely injured, and the construction job was delayed for a week while a replacement crane and operator were obtained. This accident occurred when the lifting cable proved to be defective and snapped, causing the steel beam that was being lifted to fall on the crane and injure Employee. If Employee sues Cable Co. based on strict products liability, who will prevail? A. Employee will prevail only if Cable Co. failed to inspect the cable properly. B. Employee will prevail as long as the cable was defective when Resale sold the crane to Contractor. C. Cable Co. will prevail unless Employee can prove that the defect was present when the cable was manufactured. D. Cable Co. will prevail because there is no privity of contract between Cable and Employee.

The answer is C. As above, the answers regarding a failure to use due care are a distraction here, since once again the question specifies strict liability. The crucial requirement for the plaintiff will be to prove that the cable was defective when this defendant, the Cable manufacturer, sold the product. If the defect was introduced later, perhaps as a result of mishandling by Resale, Crane Co. would not be liable.

Motorco is a manufacturer of automobiles. The lowest priced model manufactured by Motorco, the Flimsey, comes equipped with both driver and passenger front air bags, as well as driver and passenger lap and shoulder seat belts. On the dashboard in front of the driver is a small sign, in small but readable type, which states: "Airbag equipped. Always fasten seat belt when car is in motion." On the sun visor on the passenger side is a sign, of similar size, which says the same thing. Driver purchased a Flimsey from Motorco. While operating the car, with Pat as a passenger in the front seat, Driver negligently ran a red light. Driver's car was hit on the driver's side by a vehicle driven by Bill, which was going about 45 miles per hour, 15 miles over the speed limit. Driver was not wearing a seat belt, and the force of the impact threw him through the side window of the car, causing severe injuries. The air bag did not open because it was designed to deploy only in head-on collisions. Pat was wearing the lap and shoulder belts, but one of the bolts anchoring the seat belt to the car broke, and she was thrown to the driver's side of the car. The impact with the side of the car caused severe injuries that she would not have suffered if the bolt had held. Analysis of the bolt that failed showed a defect in the metal that must have occurred during manufacture. Motorco buys these bolts from twenty different suppliers and tests samples from each batch. Motorco's records do not reveal that any defects of the type found in the bolt have ever been discovered during the inspection process. If Driver sues Motorco for failure to warn of the dangers of driving without a seat belt even in a car equipped with an air bag, the sign on the dashboard will have what effect? A. It will have no effect if Driver never saw it B. .It will have no effect since Driver did not obey it. C. It will force Driver to prove that it was inadequate. D. It will defeat the action as a matter of law.

The answer is C. Because a warning was given, plaintiff will have to show that it was somehow insufficient. For example, the plaintiff could argue that it was not prominent enough, not worded properly, or not urgent enough given the significance of the risk involved. It will not be enough for Driver to say he never saw the warning if it was, in fact, sufficiently prominent that he should have seen it. On the other hand, the mere existence of the warning is not automatically dispositive if the warning was not sufficiently clear or prominent.

A small town has a factory that employs most of the residents of the town. The factory is also the largest tax paying entity in the town. The owners of the factory estimate that it cost several millions of dollars to build the factory 20 years ago and still require around two hundred thousand dollars a year for maintenance. The factory, unfortunately, is noisy. The humming and banging from the factory can be heard all over town. Fred worked at the factory for 10 years until he was fired about a year ago. Fred sued the owners of the factory for firing him, but his case was dismissed. The owners had the right to fire Fred under the employment contract. Since Fred still lives in the town, Fred now wants to sue the factory owners for private nuisance. Fred wants to claim that the noise is an interference with the use and enjoyment of his home. Fred wants an injunction to force the factory to be quiet. Can Fred get that injunction? A. Probably no. Fred could only get an injunction if he could prove that the noise was conduct that would lead to strict liability. B. Probably yes. A private nuisance is an interference with an interest in land. Injunctions are available to protect the natural resource. C. Probably no. The "balance of the equities" favors the factory over Fred. D. Probably yes. The courts must protect the individual over large corporations.

The answer is C. Before a court will grant an injunction, it must "balance the equities." The court looks to see whether the injunction is justified and will serve the ends of the community. In this case, the factory is the chief employer and financial asset of the community. If the court forces the factory to be quiet, the factory will probably have to close. Closing the factory would mean a substantial financial loss to the factory owners, the employees and the town. The court will probably deny Fred's request for an injunction.

Acme Chemical Company was dumping chemicals in a local stream. The chemicals were getting into the local water supply. It became obvious that people in the town were coming down with a greater than average percentage of cancers. The attorney general sued to get an injunction to stop the pollution by Acme Chemical. Should the attorney general be successful in the action? A. Yes. If, but only if, there is a specific federal regulation that prohibits the pollution of the specific chemical that the company dumped in the stream. B. No. Some incidence of cancer in a small community is not sufficient harm to justify a nuisance action. C. Yes. The increased risk of cancer is sufficient harm for an action for public nuisance. D. No. Although there is some increase in cancer, there is no interference with anyone's use and enjoyment of land.

The answer is C. Both public and private nuisance actions require some proof of substantial harm. This would be a public nuisance action since it threatens the public health. An increased risk of cancer would be a sufficient "substantial harm."

Motorco is a manufacturer of automobiles. The lowest priced model manufactured by Motorco, the Flimsey, comes equipped with both driver and passenger front air bags, as well as driver and passenger lap and shoulder seat belts. On the dashboard in front of the driver is a small sign, in small but readable type, which states: "Airbag equipped. Always fasten seat belt when car is in motion." On the sun visor on the passenger side is a sign, of similar size, which says the same thing. Driver purchased a Flimsey from Motorco. While operating the car, with Pat as a passenger in the front seat, Driver negligently ran a red light. Driver's car was hit on the driver's side by a vehicle driven by Bill, which was going about 45 miles per hour, 15 miles over the speed limit. Driver was not wearing a seat belt, and the force of the impact threw him through the side window of the car, causing severe injuries. The air bag did not open because it was designed to deploy only in head-on collisions. Pat was wearing the lap and shoulder belts, but one of the bolts anchoring the seat belt to the car broke, and she was thrown to the driver's side of the car. The impact with the side of the car caused severe injuries that she would not have suffered if the bolt had held. Analysis of the bolt that failed showed a defect in the metal that must have occurred during manufacture. Motorco buys these bolts from twenty different suppliers and tests samples from each batch. Motorco's records do not reveal that any defects of the type found in the bolt have ever been discovered during the inspection process. If Pat identifies the manufacturer who supplied the defective bolt that caused her seatbelt to fail, can Pat sue the bolt manufacturer in strict products liability? A. No, because the bolt manufacturers are not in privity of contract with Pat. B. No, because the bolt manufacturer is not a seller of the automobile. C. Yes, because the bolt was defective when it was manufactured. D. Yes, but only if the contract of sale of the bolt permits such actions.

The answer is C. Component part manufacturers can be liable to injured consumers if the component part itself was defective when manufactured, and the defect was a cause of the plaintiff's harm. In this situation, the relevant sale is the sale of the component to the company that assembled the final product. This claim does not, however, rule out the possibility of also suing the manufacturer of the car.

Drugco introduced a new prescription drug that provided great benefits to most people but caused serious side effects in a few individuals. Patient took the drug and suffered injuries from the side effects. Assume that the risk was not known until Patient's illness. only for the purposes of this question assume that the risks were known in advance to Drugco but were not disclosed to Patient on the packaging for the drug, Drugco would probably defend a failure to warn case by relying on the following doctrine: A. Imputed negligence. B. Risks known to the ordinary consumer. C. Learned Intermediary. D. Unforeseeable misuse.

The answer is C. For most prescription drugs, the duty of the manufacturer is to provide full warnings to the learned intermediary, usually the doctor. It is then up to the doctor to provide appropriate warning to the patient. For this reason, the absence of warnings on the package is not decisive here, as long as proper warnings were provided to the physician.

The answer is C. General damages are usually defined as those that follow inherently and necessarily from the wrong. In personal injury cases, this definition would include damages for pain and suffering. All the other losses named in this question would be examples of special damages, sometimes referred to as consequential damages. Special damages are the pecuniary losses that follow as the result of the injury. In many jurisdictions this distinction would be significant because more stringent pleading requirements are often put on claims for special damages.

John jones operates a small cafe where he sells sodas, candy, and newspapers. He also runs an illegal gambling game known as "the numbers." When the police find out about the gambling, John is arrested. If the local public prosecutor also wants to sue John for public nuisance to recover damages, what is the likely result? A. The nuisance action will be barred since the criminal action supersedes it. B. The nuisance action will be barred since allowing the civil action would be double jeopardy. C. The nuisance action can proceed as a protection of the public rights. D. The nuisance action can proceed only if the criminal action fails.

The answer is C. Public nuisance claims are to protect the public's right to health and safety. Many public nuisance claims are based on the violation of minor criminal laws. Bringing the criminal action to punish the wrongdoer and seeking civil damages for the harm to the public would be appropriate.

Bill and Sam were both salesmen. They were both trying to make a big sale to XYZ Corporation. Sam got the sale, and Bill got very angry. Bill called the employee of XYZ Corporation that was responsible for making the order and said several things about Sam. Bill said, "Sam is a liar and a cheat. Those goods he sold you are of low quality and will not hold up. Sam has cheated other companies, so you better watch him closely." All of the statements were false. Although the sale should have been final, XYZ Corporation cancelled the order with Sam. Sam found out what Bill had said, and wants to sue Bill. If Sam is unable to prove that the statements are slander per se, will he be able to prove special damages? A. No. Special damages are for pain and suffering. B. No. Special damages are for disfigurement. C. Yes. Special damages are some economic loss. D. Yes. Special damages are harm to reputation.

The answer is C. Special damages are some form of economic loss. In this example, Sam lost the sales contract. The other suggested answers would be different forms of general damages.

Motorco is a manufacturer of automobiles. The lowest priced model manufactured by Motorco, the Flimsey, comes equipped with both driver and passenger front air bags, as well as driver and passenger lap and shoulder seat belts. On the dashboard in front of the driver is a small sign, in small but readable type, which states: "Airbag equipped. Always fasten seat belt when car is in motion." On the sun visor on the passenger side is a sign, of similar size, which says the same thing. Driver purchased a Flimsey from Motorco. While operating the car, with Pat as a passenger in the front seat, Driver negligently ran a red light. Driver's car was hit on the driver's side by a vehicle driven by Bill, which was going about 45 miles per hour, 15 miles over the speed limit. Driver was not wearing a seat belt, and the force of the impact threw him through the side window of the car, causing severe injuries. The air bag did not open because it was designed to deploy only in head-on collisions. Pat was wearing the lap and shoulder belts, but one of the bolts anchoring the seat belt to the car broke, and she was thrown to the driver's side of the car. The impact with the side of the car caused severe injuries that she would not have suffered if the bolt had held. Analysis of the bolt that failed showed a defect in the metal that must have occurred during manufacture. Motorco buys these bolts from twenty different suppliers and tests samples from each batch. Motorco's records do not reveal that any defects of the type found in the bolt have ever been discovered during the inspection process. In an action based on strict products liability by Pat against Motorco, what is the effect of the negligence of Driver? A. It will be a complete defense for Motorco. B. Motorco will be entitled to complete indemnity from Driver. C. Motorco and Driver will be jointly liable. D. Pat must sue both Driver and Motorco in one action.

The answer is C. That another party also committed a tort and could be liable is not a complete defense; rather, it creates a joint tortfeasor situation. In situations like this, it does not matter that one party is liable on the basis of negligence and the other on the basis of strict liability, because most jurisdictions have rules of joint responsibility that will allow both to be held liable to the plaintiff. On the other hand, Motorco would not be entitled to indemnity because it is not a purely passive defendant. Motorco's defective bolt contributed to the injuries, and so it would be entitled in most jurisdictions to some form of contribution from Driver if both are held jointly and severally liable.

Biff was injured while driving when a vehicle driven by Dorf ran a red light and broadsided Biff's car. The car was badly damaged and Biff suffered a concussion and injuries to his back. The back injury left Biff in constant pain. The concussion has affected his balance. Biff now can walk only with the assistance of a cane. As a result, Biff can no longer work at his previous job as a construction worker on skyscraper projects. Use the same facts as Question 1. Biff has medical insurance provided by his employer which paid a portion of the medical bills Biff incurred for treatment of his injuries. Under the traditional collateral source rule, which of the following statements is most correct? A. The amounts received would be deducted dollar for dollar by the trial judge from the jury's award to prevent a windfall for Biff. B. The amounts received would be deducted dollar for dollar by the jury, provided that Dorf's attorney made a proper proof of the amounts at trial. C. Proof of the amounts received would be inadmissible at trial because these payments would not affect the amount of damages that Biff could recover. D. These amounts would be paid directly to Biff's medical insurer by the defendant upon the medical insurer's motion to intervene.

The answer is C. The collateral source rule says that amounts received by the plaintiff from medical or disability insurers and the like do not reduce the amount of damages for which the defendant is liable. This rule has been changed by statute in a number of states, in part because of arguments about the rule creating a windfall for plaintiffs. In fact, in many cases the insurer will have rights of subrogation or reimbursement which allow them to recoup their payments to the plaintiff out of the tort recovery. When this occurs no windfall recovery occurs.

Jim was in a hurry to get to an appointment and was driving his automobile along a city street. He approached an intersection where the light was yellow so he speeded up to get through that intersection. In fact, by the time he reached the intersection, the light turned red. Jim, however, went through anyway. On the cross street, a car driven by Charles went through the intersection since Charles noted that his light had just turned green. Charles hit Jim's car and caused substantial injury to Jim. Charles was not hurt. An ambulance was called to take Jim to the hospital, but the ambulance got lost on the way to the accident location. The operator taking the call made a few mistakes. The operator did not keep the caller on the line, wrote down the wrong address and did not read the address back to the caller to check that address. By the time that the ambulance found the accident, Jim was in much worse shape from loss of blood. Jim was taken to the hospital where emergency surgery was completed. Although Jim lived for 24 hours, he ultimately died. The evidence will show that Jim would have had a better chance to live if the ambulance had arrived on time. Jim was not married but had lived with the same woman, Jill, for 4 years. Jim and Jill had a son that is now 2 years of age. Jim was an accountant with a major accounting firm. Jill has consulted an attorney and would like to bring an action against Charles for the injury and death of Jim. Using the same set of facts as Question 14, if the action for Jim's death generates a substantial judgment, who will receive the money from that judgment? A. Jill will receive all of the money and will be expected to share it with the child. B. Jill and the child will receive the money jointly. C. The child will receive the money. D. Since Jim had no spouse, Jim's parents or other next of kin will receive the money.

The answer is C. The distribution of the judgment of a wrongful death action is determined by specific state statutes. The proceeds of such an action do not pass under a will or through the estate. Most of those statutes speak of "spouse" as a possible beneficiary of the award. Most of those statutes do not recognize a right to recovery any portion of the award by a "significant other" that is not married to the deceased. This would mean, therefore, that neither an "opposite sex" nor "same sex" significant other would be able to recover any of the proceeds. In this set of facts, the likely beneficiary of the money would be the biological child of the deceased.

Barkly suffered a knee injury due to the negligence of Fister. The injury prevented him from working at his profession as a long distance truck driver. As a result, Barkly's income was greatly reduced. A simple arthroscopic surgical procedure, using local anesthetic, has a high probability of repairing the knee injury and restoring Barkly's leg to full function, enabling him to return to his profession. Barkly, however, has refused to undergo the operation, claiming that he distrusts surgeons. Fister's attorneys will argue that Barkly's refusal to undergo the operation should prevent Barkly from recovering future lost earnings. Use the same facts as Question 5. Barkly's duty to undergo the surgical procedure would be determined on what basis? A. On Barkly's own personal assessment of the risks and benefits of the surgery. B. On whether Fister offered to pay for the surgery. C. On whether a reasonable person under the same circumstances would agree to undergo the surgery. D. No such duty exists out of respect for the personal autonomy of the plaintiff.

The answer is C. The duty here is essentially one of reasonable conduct. Although personal autonomy is an important value, the rule does not allow the plaintiff to decline medical treatment on purely personal whims or fears. (The one caveat to this rule may arise when the plaintiff declines treatment out of religious scruples, a situation in which the courts seem to be in disagreement about the proper approach.) Instead, the plaintiff will be required to undergo treatment if a reasonable person would do so. On the facts of this problem, for example, the procedure seems to be low risk with a good prognosis for fixing the knee injury. When the procedure has high risks of negative outcomes with uncertain chances of improvement, the balance would be struck in favor of allowing the plaintiff to refuse to undergo the operation.

Homer was repainting his basement. He needed to open a can of paint, but found that he did not have any sort of tool handy with which to pry off the lid of the paint can. Fortunately, his fishing tackle box was stored in the basement, so Homer looked in there to find a likely implement. The only thing he could find, however, was his filleting knife, which has a thin flexible blade used for filleting fish. He tried to pry the lid off with the filleting knife, but the blade snapped and a piece struck him in the eye. Homer then sued Bladz, Inc., the manufacturer of the knife, in strict products liability, claiming that the blade of the knife was defective because it snapped. The trial court granted Bladz's motion for summary judgment. Which of the following is the best explanation for why the trial court's decision was correct? A. Homer was contributorily negligent in his use of the defective product. B. Homer's misuse of the defective product is a superseding cause of the harm. C. The knife was not defective. D. Homer assumed the risk.

The answer is C. The issue of misuse of the product can affect the analysis of several of the elements of the strict product liability case. It could indicate contributory negligence or assumption of risk. It can also act as a superseding cause. In this case, however, the best analysis would be that the knife was not defective at all. As the facts make clear, the knife was thin and flexible so it would serve to fillet fish. Such an implement is clearly not intended for use as a pry bar. The fact that a thin bladed knife snapped when used in this fashion is therefore no indication of defect. So the most accurate analysis of this scenario is that the knife was not defective at all.

"Legal Moonshine" is, as the name suggests, distilled by a properly licensed and taxed distillery. The product claims to be just like real "moonshine" whiskey: grain alcohol highly distilled and bottled without aging or filtering. The product is bottled at 160 proof, which means that it is 80% pure grain alcohol, or twice as strong as ordinary whiskeys. Peter drank a pint bottle of Legal Moonshine and died of acute alcohol poisoning. The label contains no warning of this danger. Peter's wife wishes to bring a wrongful death claim against the manufacturer of Legal Moonshine based on failure to warn. Which of the following is the strongest argument for imposing a duty to warn of this danger? A. Peter did not in fact realize the danger of acute alcohol poisoning. B. Peter did not know any of the dangers of drinking alcoholic beverages. C. Legal Moonshine poses unusually severe risks of alcohol poisoning because of its unusual strength. D. Legal Moonshine's manufacturers were aware of the risk.

The answer is C. The problem here is that it is not necessary to warn against dangers that are generally known and recognized, as comment j to section 402A states, giving the dangers of overconsumption of alcoholic beverages as an example. For this reason, the distillers in this question would not be required to warn against the ordinary dangers of excessive drinking. What could trigger a duty to warn, however, would be a danger that the ordinary consumer would not expect to encounter. In this case, the whisky is twice as strong as usual, and a consumer who knew the general dangers of over consumption might not be aware of how quickly a beverage like that could lead not only to intoxication, but also to acute alcohol poisoning. The fact that Peter did not in fact know of the danger is not the strongest argument for a warning because the test is whether the danger is generally known. Also, awareness of the risk by itself does not require a warning, unless the risk is one that the ordinary consumer would not also know.

Dudley Armaments manufactures cheap, easily concealed handguns. Felon purchased a Dudley handgun from Gunshop, a local retailer, using a false identification. Felon showed the new gun to Bud and Lou, friends of his. Bud asked to handle the gun. Felon carefully engaged the safety on the gun, which is supposed to prevent the gun from firing accidentally. In handing the gun to Bud, however, it slipped out of his hands and fell to the floor. The gun went off, wounding Lou in the leg. Investigation reveals that the type of safety used on the gun is ineffective when the gun receives a sharp impact, as in being dropped. If Lou sues Dudley in strict products liability, what type of product defect will he attempt to establish? A. Manufacturing Defect. B. Marketing Defect. C. Design Defect. D. Failure to Inspect.

The answer is C. The problem with the gun is not that it was put together improperly, but that the safety mechanism does not work properly. Because this problem would be shared by all examples of this particular type of handgun, the problem is one of design.

Barta suffered from terminal lung cancer. Doctors reliably estimated that he had about six months to live. The day after this diagnosis, a drunk driver ran down Barta and killed her. In a wrongful death action against the drunk driver, the defendant argued that future lost wages should be based on a six month working life expectancy, at most. The plaintiffs oppose this suggestion, claiming that it would violate the thin skulled plaintiff rule, in which you must take the victim as you find her. Which of the following statements is most correct? A. By virtue of the thin skulled plaintiff rule, the damages for future lost wages should be based on a normal working life expectancy for someone of Barta's age. B. By virtue of the thin skulled plaintiff rule, the damages for future lost wages should be based on a normal working life expectancy for someone of Barta's age, but should be discounted using current market rates of interest. C. Damages for future lost wages should be based on the plaintiff's actual working life expectancy, if it can reliably be shown that this would be shorter than normal. D. Damages for future lost wages are not recoverable in wrongful death actions.

The answer is C. The question illustrates the other side of the thin skulled plaintiff rule. Although it is no answer to a claim for damages that the plaintiff suffered unforeseeably severe injury, this principle is offset by the rule that requires the trier of fact to consider whether a preexisting condition would have produced the harm even if no accident had occurred. In this case, the preexisting cancer had shortened the victim's expected life span to six months, which the facts state is a reliable estimate. In this situation the amount of future earnings would have been limited by circumstances that had nothing to do with the defendant's tort.

Plaintiff's hand was crushed while using a punch-press machine at work one day. The machine was manufactured by Presto Pressco. Presto offered the machine either in a basic configuration without safety devices or with a variety of optional safety features including interlocks and guards. Presto's catalogue recommends the model without safety devices "for automated operations only." Plaintiff's employer, Speedy Tool & Die, purchased the basic model even though it would be fed by hand, because the machine was more productive if operated without the safety devices. Plaintiff sued Presto based on strict products liability for a design defect because of the lack of safety features, and Presto defends by asserting that Plaintiff's failure to use due care for his own safety is a complete bar to recovery: A. The defense will succeed because contributory negligence represents misuse by the Plaintiff. B. The defense will succeed because contributory negligence negates the existence of a design defect. C. The defense will be rejected because the whole purpose of safety features is to protect against Plaintiff's carelessness. D. The defense will be rejected because the Plaintiff's conduct is irrelevant in strict liability actions.

The answer is C. The reason why machines need safety mechanisms is that we recognize that a moment of inattention can result in serious injury. Such moments of inattention do not represent misuse of the machine, nor do they negate the possibility of defect. To put it another way, it would be pointless to argue that the absence of a safety feature is a design defect, if the plaintiff's foreseeable carelessness, which makes the safety feature necessary in the first place, could at the same time defeat any cause of action. On the other hand, the plaintiff's conduct is not irrelevant, although courts have disagreed on what kind of conduct by the plaintiff can in fact bar or reduce recovery.

Dudley Armaments manufactures cheap, easily concealed handguns. Felon purchased a Dudley handgun from Gunshop, a local retailer, using a false identification. Felon showed the new gun to Bud and Lou, friends of his. Bud asked to handle the gun. Felon carefully engaged the safety on the gun, which is supposed to prevent the gun from firing accidentally. In handing the gun to Bud, however, it slipped out of his hands and fell to the floor. The gun went off, wounding Lou in the leg. Investigation reveals that the type of safety used on the gun is ineffective when the gun receives a sharp impact, as in being dropped. If Lou sues Gunshop in strict products liability, who will prevail? A. Gunshop will prevail because Lou is not in privity of contract. B. Gunshop will prevail because the test for a design defect is basically a negligence standard, and Gunshop committed no negligence with regard to the design. C. Lou will prevail because Gunshop sold the product to Felon.D. Lou will prevail on the theory of respondeat superior.

The answer is C. The retailer, as a seller of the product, is strictly liable if the product proves to have a defect that injures a person. This is true even where the retailer has no responsibility for causing the product to be defective, as in this scenario in which the problem lies in the manufacturer's design of the safety mechanism of the gun. The retailer probably had no ability to control the design of the gun, but is liable for putting the defective product in the hands of consumers. The lack of privity of contract is no barrier to this tort claim, so Lou will be able to recover from the seller even though the seller committed no negligence (if that be the case). If the retailer is truly innocent here, the retailer can obtain indemnity from the manufacturer.

Resale, Inc. is a dealer in used and rebuilt equipment. Resale obtained a used crane originally manufactured by the Crane Co. The crane was designed for heavy lifting. Resale installed a new engine and a new lifting cable on the crane. The cable was manufactured by Cable Co. Resale then sold the crane "as is" to Contractor, in a contract of sale which disclaimed all express and implied warranties. Contractor then used the crane in construction work. While using the crane on the job six months later, an accident occurred. Employee, who was operating the crane at the time, was severely injured, and the construction job was delayed for a week while a replacement crane and operator were obtained. This accident occurred when the lifting cable proved to be defective and snapped, causing the steel beam that was being lifted to fall on the crane and injure Employee. If Contractor sues Resale based on breach of warranty for damages caused by the delay in the construction project, who will prevail? A. Contractor should prevail because contract disclaimers are ineffective in tort law. B. Contractor should prevail because the Crane was defective. C. Resale should prevail because the Crane was sold "as is." D. Resale should prevail because economic loss is not recoverable in breach of warranty.

The answer is C. This is a claim for the economic loss caused by the failure of the crane to perform as the contractor desired. As such, these are the sort of pure economic loss typically not recoverable under strict products liability or negligence. Losses of this type are more properly sought in a suit for breach of warranty. However, warranty claims are subject to the limitations of commercial law, including the ability to limit or disclaim warranties and to limit remedies. In this case, the crane was sold "as is" and with disclaimers of all warranties. Although courts often scrutinize such clauses in consumer transactions, it would seem unlikely that the courts would find any unfairness in such clauses in a contract for the sale of used construction equipment between a reseller of used products and a contractor.

Jane Jones is a very good trial attorney. She is representing a man who is accused of murder. The local newspaper ran an article that said, "Attorney Jane Jones is a dishonest crook. She knows that her client committed murder and yet she is trying to get him acquitted. Jane Jones is actually a member of organized crime and is representing this murderer as part of her job for the crime family." The story was false. Jane Jones is an honest, hardworking lawyer. She handles criminal cases on a regular basis. She is not part of organized crime. If Ms. Jones decides to sue the newspaper, she will have to face the issue of whether she is a public or private figure. Assume that Ms. Jones is not running for mayor, but had some reputation before trying this case. In attending the university in this city, she was the star center on the University women's basketball team. Before law school, she played for 5 years on a well-known professional women's basketball team. During those years, she became known as the spokesperson for several athletic apparel companies and several charitable organizations. While attending law school, she kept her name before the public by advertising for the athletic apparel companies and the charitable organizations. Her name constantly appears in Sports Magazines as one who comments on women's basketball. For purposes of her career as a lawyer, would she be a public or private figure? A. She would be a private figure. B. She would be a public figure since the newspaper wrote about her. C. She would be a public figure since she gained general notoriety. D. She would be a public figure since she is a lawyer.

The answer is C. This question is a little harder. A person who gains general notoriety is considered a public figure. It is easy to imagine that sports stars, entertainment celebrities, and other such well known people are public figures. Whether Ms. Jones should be a public figure in her law practice because of her previous general notoriety is a little more difficult.

Drugco introduced a new prescription drug that provided great benefits to most people but caused serious side effects in a few individuals. Patient took the drug and suffered injuries from the side effects. Assume that the risk was not known until Patient's illness. If Patient sues Drugco based on strict products liability, what theory of defect, if recognized by the court, will give Patient the best chance of success? A. Failure to warn. B. Defect based on the risk-utility balance. C. Defect based on the consumer expectation test. D. Manufacturing defects.

The answer is C. To be clear, most jurisdictions would not adopt a pure consumer expectations test for a drug side effect tort like this. Nevertheless, it is the only one of the named theories that would give the plaintiff the slightest chance of success. Failure to warn will not work because the side effect was not known before Patient took the drug, and most courts do not require drug companies to warn about risks of which they are unaware. The risk utility balance would not help the plaintiff, because on the facts it appears that the drug's benefits outweigh the risks of harm. Finally, nothing in the facts indicate that the drug was improperly manufactured. What has occurred is that the drug proved to be more dangerous than Patient expected, which is basically the consumer expectation test.

The answer is C. Written defamation is libel. The slander per se issues are irrelevant.

Bill and Edna had lived in a city for their whole lives. Upon retirement, they wanted to move to a rural area. It was a dream they had always had. They drove out into the country looking for a new home. They found a small house on a one-acre lot in the country. They loved the setting. The house was situated between two farms. Bill and Edna bought the house and went back into town to begin preparations to move. Bill and Edna retired from their jobs, sold their condo in the town, and had all of their belongings moved to the country home. It did not take long before Bill and Edna got upset. It appears that one farm near them was a pig farm and the other farm was a chicken farm. The pig farm would tend to give off a bad odor on warm days and the roosters on the other farm would begin to crow around 5:00 each morning. Bill and Edna could not get any sleep because of the chickens and they felt the odor from the pigs was unbearable. When no one else in the area seemed to even understand what their concern was, they wanted to sue to stop the odor and the chickens. If they consulted a lawyer about the matter, which of the following is the most accurate advice the lawyer could give them? A. "Moving to a nuisance" is a form of assumption of risk. It will bar any recovery for nuisance.. B. "Moving to a nuisance" is a form of assumption of risk. It will bar injunctive relief but allow the plaintiffs to get damages. C. "Moving to a nuisance" is a form of assumption of risk. It will bar money damages but allow plaintiffs to get an injunction. D. "Moving to a nuisance" is not a bar to recovery, but will be a factor to determine whether there is substantial harm and where the "balances of the equities" lie.

The answer is D. A "move to the nuisance" does look like assumption risk. It appears that the plaintiffs knew and understood the nature of the surroundings and chose to live there anyway. In addition, if there is an unpleasant condition near real property, the value and price of the real property for sale will probably reflect, in a lower price, the nature of that unpleasant condition. If the plaintiff is allowed to purchase property at a lower price because of unpleasant conditions and then remove the conditions by an action for nuisance, the plaintiff has gained a windfall. On the other hand, the law will not allow a nuisance to create some type of prescriptive right to continue just because it was there first. In fact, as times and circumstances change, the courts would like to see property uses be able to change to maintain property in its highest and best use. If a person was able to get to an area first, create foul conditions so that no one else could come, there would not be progress. Because of these conflicting issues, the "move to the nuisance" is not a complete bar to recovery. It is a circumstance that the courts will review in determining whether there is a nuisance and the type of remedy that should be available.

Dudley Armaments manufactures cheap, easily concealed handguns. Felon purchased a Dudley handgun from Gunshop, a local retailer, using a false identification. Felon showed the new gun to Bud and Lou, friends of his. Bud asked to handle the gun. Felon carefully engaged the safety on the gun, which is supposed to prevent the gun from firing accidentally. In handing the gun to Bud, however, it slipped out of his hands and fell to the floor. The gun went off, wounding Lou in the leg. Investigation reveals that the type of safety used on the gun is ineffective when the gun receives a sharp impact, as in being dropped. If Lou sues Dudley in strict products liability, who will prevail? A. Dudley will prevail because Lou was neither a user nor consumer. B. Dudley will prevail because dropping the gun constitutes misuse. C. Lou will prevail because Dudley is vicariously liable for Gunshop's conduct in selling the handgun to Felon. D. Lou will prevail because he is a foreseeable victim.

The answer is D. Although the Second Restatement originally took no position on the ability of bystanders like Lou to recover for defective products, the courts soon extended the right to recover. And while it might be considered "misuse" to drop the gun, it is the sort of foreseeable mistake that a gun designer should anticipate and do something about, such as designing a safety mechanism that will prevent the gun from firing even if dropped. That is, after all, part of the point of having a safety mechanism on a gun. Lou can recover because he is exactly the sort of potential victim a properly designed safety would protect.

When a chemical company dumps toxic chemicals in a river, the action of public nuisance is appropriate since the chemicals will cause: A. the river to smell bad. B. the river to be polluted. C. the fish in the river to die. D. all of the above.

The answer is D. An action for public nuisance can be brought to protect the public from an interference with the public's right to health, safety, convenience, or morals. The pollution of the river, together with the smell and dead fish, would qualify.

Motorco is a manufacturer of automobiles. The lowest priced model manufactured by Motorco, the Flimsey, comes equipped with both driver and passenger front air bags, as well as driver and passenger lap and shoulder seat belts. On the dashboard in front of the driver is a small sign, in small but readable type, which states: "Airbag equipped. Always fasten seat belt when car is in motion." On the sun visor on the passenger side is a sign, of similar size, which says the same thing. Driver purchased a Flimsey from Motorco. While operating the car, with Pat as a passenger in the front seat, Driver negligently ran a red light. Driver's car was hit on the driver's side by a vehicle driven by Bill, which was going about 45 miles per hour, 15 miles over the speed limit. Driver was not wearing a seat belt, and the force of the impact threw him through the side window of the car, causing severe injuries. The air bag did not open because it was designed to deploy only in head-on collisions. Pat was wearing the lap and shoulder belts, but one of the bolts anchoring the seat belt to the car broke, and she was thrown to the driver's side of the car. The impact with the side of the car caused severe injuries that she would not have suffered if the bolt had held. Analysis of the bolt that failed showed a defect in the metal that must have occurred during manufacture. Motorco buys these bolts from twenty different suppliers and tests samples from each batch. Motorco's records do not reveal that any defects of the type found in the bolt have ever been discovered during the inspection process. Driver sues Motorco for a design defect for not equipping the Flimsey with a side curtain air bag in the door to protect against side impact collisions. Driver then shows that side curtain airbags were technologically feasible at the time the Flimsey was manufactured. Does this proof, by itself, establish that the Flimsey was defectively designed? A. Yes, because the failure to incorporate any available safety feature in a product is per se unreasonable. B. Yes, because manufacturers must keep up with the state of the art. C. No, as long as Driver was aware at the time of purchase that the car lacked side curtain air bags. D. No, because the omission of this safety feature does not necessarily mean that the Flimsey was not reasonably safe.

The answer is D. Because the design defect is judged on a risk utility standard, merely showing that an alternative safer design was feasible is not enough. Many other factors come into play in determining the question of safer design, including the relative advantages and disadvantages of the actual design and the proposed safer design. In this problem, it may be of significance that the car was designed to be a basic and inexpensive vehicle. The jury would have to consider whether the increased cost of the side curtain air bags would in fact by offset by the gains in safety from the air bags. In any event, it is certainly not the case that a particular product must include every possible safety feature in order to be "reasonably safe."

Logging Company was hauling logs along a state highway. One of their trucks dropped a full load of logs on the highway. The highway had to be closed for three days in order to get the logs cleared. Can a state attorney general bring an action for public nuisance for the damages caused by the accident? Betty was driving along the same highway as the logging truck, just as the truck lost its load of logs. Betty was right behind the logging truck and the logs hit Betty's car. Betty wants to sue for the injuries she suffered to her car. What is the likely result of that lawsuit? A. Betty cannot recover since her injury is merely different in degree from the general public. B. Betty cannot recover since her injury is merely different in kind from the general public. C. Betty can recover for a private nuisance for the harm she has suffered. D. Betty can recover since her injury is different in kind from the general public.

The answer is D. Betty's injury is different in kind from the general public. Although the public suffered an injury of inconvenience in travel, Betty suffered damage to personal property. Also note that this cannot possibly be a private nuisance, because it did not interfere with Betty's use and enjoyment of her real property.

The answer is D. Blocking a public road is a public nuisance. A representative of the public can bring an action for damages caused by that conduct.

A road building company was working to widen a major highway. In order to complete the work, it was necessary to use dynamite to remove some of the rock and stone in the way of the project. During the first day of blasting, a farmer that lived 2 miles away from the blasting zone, felt his house tremble every time the explosions went off. Before the blasting started on the second day, the farmer notified the company of the problem with the blasting and the shock of the blast. The company owner realized that the workers had been a little careless the day before, but really didn't care. The owner decided that the work was a little behind schedule and he wasn't going to do anything to slow it down. The blasting from the second day's work caused structural damage to the farmer's home. If the farmer sues the company for private nuisance for the interference to the use and enjoyment of his land, what would be an appropriate basis of liability? A. Intent. B. Negligence. C. Strict liability. D. Any of the above.

The answer is D. Nuisance actions can be based on intent, negligence or strict liability. In this case, blasting is a classic example of conduct that may lead to strict liability. Strict liability would, therefore, be an appropriate basis of liability. The facts state, however, that the owner understood that some carelessness had occurred. That appears to allow the use of negligence in this case. When the owner realized that the blasting was causing harm to the farmer's home, the conduct become intentional. Intent would be an appropriate basis of liability.

A factory owned by Joyce allowed toxic chemicals to escape from a smokestack. A nearby warehouse owned by Fred suffered roof damage due to the corrosive nature of the chemical. Joyce has remedied the problem to make sure that the factory no longer allows the chemical to escape. Fred would like to recovery sufficient money in damages to repair his warehouse roof. Can he recovery that money in a nuisance action? A. No. Nuisance claims are only designed to stop the continuation of the nuisance. No damages are allowed. B. Yes. If Fred can prove that the escape of the chemical was due to the intentional conduct of Joyce, damages are recoverable. C. No. Nuisance claims only allow recovery by the representative of the public, not by individual members of the public. D. Yes. Nuisance claims allow recovery of damages for harm caused.

The answer is D. Nuisance claims, whether based in intent, negligence or strict liability allow recovery of money damages. This is a private nuisance in that Fred suffered an interference with the use and enjoyment of his land. He would be entitled to recover damages for the harm he suffered.

Bill and Sam were both salesmen. They were both trying to make a big sale to XYZ Corporation. Sam got the sale, and Bill got very angry. Bill called the employee of XYZ Corporation that was responsible for making the order and said several things about Sam. Bill said, "Sam is a liar and a cheat. Those goods he sold you are of low quality and will not hold up. Sam has cheated other companies, so you better watch him closely." All of the statements were false. Although the sale should have been final, XYZ Corporation cancelled the order with Sam. Sam found out what Bill had said, and wants to sue Bill. Use the same facts as Question 1. If Sam sues Bill for defamation, the action will be based on which of the following? A. Libel, since it harms Sam's reputation. B. Libel, since it is spoken. C. Slander, since it harms Sam's reputation. D. Slander, since it is spoken.

The answer is D. Oral or spoken defamation is slander.

Which of the following is a type of damage that can be recovered in breach of warranty but usually not in strict products liability? A. Medical expenses. B. Property damage. C. Lost wages. D. Pure economic loss.

The answer is D. Pure economic loss in product liability usually represents loss resulting from the disappointing performance of the product. It is distinguished from damages, including economic damages, stemming from personal injury or damage to other property. The latter damages are of course recoverable in an action based on the tort theory of strict products liability. For pure economic loss, however, a party usually has to resort to the remedies available under commercial law, which is designed to deal with private allocation of risks.

Filbert was injured in an automobile accident. He suffered an injury to his foot which resulted in an abscess that did not heal properly. This problem was worsened because Filbert suffered from diabetes and had poor blood circulation in his feet. At the time of trial Filbert had returned to full-time employment as an accountant, but was still suffering from problems with the sore on his foot. Doctors at the trial testified for Filbert that future operations would be necessary to try to heal this wound, explaining the likely type of procedure and when it would be needed. In the meantime, Filbert would continue to suffer pain and be limited in his ability to walk. Attorneys for the defendant object to evidence of the need for future operations on the ground that the need for these procedures was speculative and was caused by Filbert's pre-existing diabetes rather than the accident. Use the same facts as Question 7. Which of the following items of damage would most properly be discounted to present value? A. Medical expenses up to the time of trial. B. Future pain and suffering. C. Lost wages. D. Future medical expenses for treatment of his foot.

The answer is D. Recall that future damages are reduced to present value, past damages are not. On the other hand, the majority rule is that this rule applies only to economic losses. Most jurisdictions do not reduce future pain and suffering to present value.

Bill and Sam were both salesmen. They were both trying to make a big sale to XYZ Corporation. Sam got the sale, and Bill got very angry. Bill called the employee of XYZ Corporation that was responsible for making the order and said several things about Sam. Bill said, "Sam is a liar and a cheat. Those goods he sold you are of low quality and will not hold up. Sam has cheated other companies, so you better watch him closely." All of the statements were false. Although the sale should have been final, XYZ Corporation cancelled the order with Sam. Sam found out what Bill had said, and wants to sue Bill. If Sam does sue for defamation, which of the following is most accurate? A. Sam will have to prove special damages since the action is slander. B. Sam will not have to prove special damages since the action is libel. C. Sam will have to prove special damages since the action is libel. D. Sam will not have to prove special damages since the action is slander per se.

The answer is D. Special damages are, ordinarily, required for slander actions. Special damages are not necessary where the action is for slander per se. This claim would be one for slander per se.

Hallie was the owner and operator of a small hotel in a rural community. In the fall, many deer hunters stayed at her establishment. One of these deer hunters actually brought the carcass of a deer into the hotel room, which angered Hallie very much. Hallie discovered that the room was now infested with deer ticks, which can transmit a serious illness called Lyme disease. In spite of this discovery she rented the room out to another party the next day, because it was her busy season and she wanted to make the most of it. The next morning, one of the guests who had stayed in this room discovered a tick attached to his arm. He also discovered other ticks on the furniture and carpet. Further inquiry disclosed the facts about how the room came to be infested. The guest had to seek medical treatment after he contracted Lyme disease as the result of the bite. (The treatment for Lyme disease is a three week course of antibiotics.) The guest sued Hallie seeking compensatory and punitive damages. The compensatory damages consisted of $1,000 for doctor and pharmacy bills. The jury also awarded $15,000 in punitive damages. Hallie moved to strike the punitive damage award as a violation of due process under the standards set forth in recent decisions of the United States Supreme Court., because the ratio of punitive damages to compensatory damages exceeded ten to one. Which of the following would be the best argument in support of the award of punitive damages? A. The ratio of punitive damages to compensatory damages is irrelevant to due process analysis of the propriety of a punitive award. The due process clause only requires understandable jury instructions, which the jurisdiction in fact has. Punitive damages should be higher because the jurisdiction in question has only minor civil penalties for such conduct by innkeepers. D. Hallie's conduct was particularly reprehensible, because it involved knowingly exposing others to a risk of serious illness.

The answer is D. The Supreme Court, in developing its due process rules for punitive damages, has stated that the ratio of punitive to compensatory damages is a significant guidepost in determining whether the amount awarded is constitutionally excessive. Without stating a bright line limitation on the ratio, the Court also suggested that ratios in excess of ten to one should be looked at carefully. However, another guidepost is how reprehensible the defendant's conduct is. Recent Supreme Court decisions have involved mostly economic harms, but the facts in this problem involve the knowing creation of a serious risk of physical harm from the disease. Arguably this sort of conduct is more reprehensible than simply causing an economic injury, and might justify a somewhat higher ratio of punitive damages.

Resale, Inc. is a dealer in used and rebuilt equipment. Resale obtained a used crane originally manufactured by the Crane Co. The crane was designed for heavy lifting. Resale installed a new engine and a new lifting cable on the crane. The cable was manufactured by Cable Co. Resale then sold the crane "as is" to Contractor, in a contract of sale which disclaimed all express and implied warranties. Contractor then used the crane in construction work. While using the crane on the job six months later, an accident occurred. Employee, who was operating the crane at the time, was severely injured, and the construction job was delayed for a week while a replacement crane and operator were obtained. This accident occurred when the lifting cable proved to be defective and snapped, causing the steel beam that was being lifted to fall on the crane and injure Employee. If Employee sues Resale based on strict products liability, Employee's best argument for prevailing on this theory would be the following: A. Resale put the crane into the stream of commerce and should be responsible for any defects it contains. B. Resale must be held to a duty of due care when it resells. C. Resale must be held to a duty of due care when it refurbishes equipment. D. Resale did more than simply resell and therefore is more like a manufacturer.

The answer is D. The general rule is that sellers of used products are not strictly liable in tort if the product proves to be defective. The rationale seems to be that such sellers are not in a good position to spread losses that result from product defects, and that consumers do not have the same expectations of quality with respect to many types of used goods. The exceptions to this rule are phrased in various ways. First, the seller must use due care or be liable in negligence. However, this question specifies a claim based on strict products liability. The Third Restatement of Torts, Products Liability, would also make the reseller liable if the product is marketed as being as good as new. (See section 8(b).) Finally, many jurisdictions as well as the Third Restatement will hold the reseller liable if the reseller remanufactures or refurbishes the product. The argument would particularly strong in this case, because it is the very part that Reseller replaced (the lifting cable) that proved to be defective and caused the accident.

Motorco is a manufacturer of automobiles. The lowest priced model manufactured by Motorco, the Flimsey, comes equipped with both driver and passenger front air bags, as well as driver and passenger lap and shoulder seat belts. On the dashboard in front of the driver is a small sign, in small but readable type, which states: "Airbag equipped. Always fasten seat belt when car is in motion." On the sun visor on the passenger side is a sign, of similar size, which says the same thing. Driver purchased a Flimsey from Motorco. While operating the car, with Pat as a passenger in the front seat, Driver negligently ran a red light. Driver's car was hit on the driver's side by a vehicle driven by Bill, which was going about 45 miles per hour, 15 miles over the speed limit. Driver was not wearing a seat belt, and the force of the impact threw him through the side window of the car, causing severe injuries. The air bag did not open because it was designed to deploy only in head-on collisions. Pat was wearing the lap and shoulder belts, but one of the bolts anchoring the seat belt to the car broke, and she was thrown to the driver's side of the car. The impact with the side of the car caused severe injuries that she would not have suffered if the bolt had held. Analysis of the bolt that failed showed a defect in the metal that must have occurred during manufacture. Motorco buys these bolts from twenty different suppliers and tests samples from each batch. Motorco's records do not reveal that any defects of the type found in the bolt have ever been discovered during the inspection process. In an action based on strict products liability by Pat against Motorco, the proof needed to establish a prima facie case is: A. Only that a defect existed in the automobile. B. That a defect existed that was not discovered by reasonable inspection. C. That a defect existed that was not discovered by reasonable inspection and that her injuries were not contributed to by the negligence of Driver. D. That a defect existed and that the defect was a cause in fact and proximate cause of her injuries.

The answer is D. This answer most accurately states the prima facie case of strict products liability. A defect by itself is not sufficient; the plaintiff must show that the defect was a cause of the harm. On the other hand, this is strict liability, so the reasonableness of the inspections performed and the failure of those inspections to discover the defect are not relevant. The important fact is that the defect in fact existed in the product and contributed to causing Pat's injuries.

Tolbert lost his leg in an industrial accident. Ortho Hospital treated the original injury, and then provided and fitted a prosthetic leg. Ortho also trained Tolbert in the use of the prosthesis. After his release from Ortho, Tolbert was injured while out walking because his prosthesis broke due to a defect in the materials. Tolbert fell and suffered injuries. Tolbert now sues Ortho Hospital in strict products liability for selling him a defective prosthetic leg. Who will prevail? A. Tolbert will prevail because Ortho sold him the defective prosthesis. B. Tolbert will prevail because strict liability is applied to the provision of hospital services. C. Ortho will prevail only if it sold the prosthesis "as is." D. Ortho will prevail because this situation represents the provision of services rather than the sale of a product.

The answer is D. This is an example of professional services, which are judged under a professional negligence standard rather than a strict liability standard, even if products are supplied in the course of providing the services.

Peggo manufactures toy building sets containing many small, interlocking bricks. Parents purchase a set for their twelve-year-old son, Bobby. The box contained a prominent warning that the building set is not safe for children under three years of age because of the danger that a young child might swallow one of the bricks and choke to death. Unfortunately Bobby's little brother, Tim, who was two years old, got into Bobby's room, swallowed one of the bricks, and suffered a severe injury from choking. In an action brought on behalf of Tim against Peggo based on strict liability for a design defect, A. Tim would prevail because a different design would have prevented the accident. B. Tim will prevail because the building set was more dangerous than the ordinary three-year-old would expect. C. Peggo will prevail because Tim assumed the risk. D. Peggo will prevail because making the bricks too large for a two-year-old to swallow would destroy its utility for older children.

The answer is D. Toys that are intended for infants and toddlers certainly need to take into account the dangers of choking, but to enforce such a rule on toys intended for older children would render them useless. Part of the interest for the older child would lie in the construction of intricate designs using the smaller and more versatile bricks. Requiring toys intended for older children to be safe even for the youngest child would probably also rule out such common items as chemistry sets and electronics. A warning, if prominent and clear, is probably the best that can be done in this situation.

Ted and Alice live in a residential area. They have had some problems with their neighbor, Carl. Carl is difficult to live near. Carl likes to play loud music all night long. Ted and Alice finally got tired of being kept awake and asked Carl if he would please turn off the music earlier in the evening or use ear phones to listen to his music after ten in the evening. Carl got terribly mad at Ted and Alice for even suggesting such a thing. Carl began to use ear phones to listen to music, but began to put flood lights in his back yard. Once a week, Carl would purchase and mount another flood light in his back yard. After about a month, the whole neighbor seemed to glow from the amount of light shining from Carl's yard. Needless to say, Ted and Alice now had a problem with all of the light coming into their area. They tried heavier shades with thick curtains. Carl just added more floodlights. After a while, Ted and Alice wanted to sue. What would be their best claim? A. Trespass to land. B. Trespass to chattels. C. Public nuisance with an injury different in kind. D. Private nuisance.

The answer is D. Trespass to land is a tort that is used to remedy interference with the exclusive right of possession of land. It usually requires some physical invasion of the property. Light would not qualify in law as a physical invasion. Private nuisance is intended to protect against the interference with the use and enjoyment of land. This appears to be a private nuisance.

The answer is D. When a plaintiff is a private figure, the courts may use any basis of liability as long as it is not strict liability. In this case, the answer D suggests that negligence would be an adequate basis of liability. Merely proving falsity of the statement alone would not be enough.

Farmer Joan knew that the county garbage and debris clean up service would be around the following morning picking up debris. She cut up several logs and placed them just on the road in front of her farm. During the night, Fred was trying to drive home along that same road. Unfortunately, a fog had settled in and it was hard to see the road. Fred hit the logs that Joan had left in the road and had an accident. Fred wants to sue Joan. This appears to be a public nuisance with Fred suffering an injury different in kind. Joan believes she should have a defense since Fred should have been more careful. Which is the best answer? A. Joan would have to prove that Fred consented to the contact since Joan's conduct was intentional. B. Joan can bar Fred's recovery since his conduct was contributorily negligent. C. Since Joan's conduct is subject to strict liability there is no defense. D. Fred's conduct will bar recovery since he knew or in the exercise of reasonable care should have known of the garbage and debris collection in the county the next morning.

The best answer is A. Nuisance actions can be based on intent, negligence or strict liability. Defendants can raise defenses in a nuisance action that is appropriate to the underlying basis of the claim. In this question, the defendant intentionally placed the logs on the road. Blocking a public road is a public nuisance. Since the underlying basis is intent, defenses appropriate to intent could be used. As an extra comment, many states have moved from contributory negligence to comparative fault. In those states, comparative fault would be used in a nuisance claim that had negligence as the underlying basis of the claim.

Leslie was driving her car with using all appropriate care along major street when Mike, while driving another car, rammed the car that Leslie was driving. Mike had run a stop sign just prior to hitting Leslie's car. Leslie was wearing her seat belt, but suffered major injuries due to the crash. The emergency response technicians had to cut open the door to the car to get to Leslie. She was then rushed to the hospital for emergency treatment. The hospital staff had to do emergency first aid in the emergency room and then rush Leslie to the operating room. The staff surgeon performed emergency surgery to repair the internal injuries. Although the whole hospital staff performed excellently, Leslie lived for two weeks and then died of the injuries from the automobile wreck. During that two-week period, Leslie was conscious and in great pain. The hospital staff and the doctors had to constantly administer medical treatment to try to keep Leslie alive. Upon Leslie's death, Leslie's husband Fred consulted an attorney to try to determine if there was some way that he could recover damages. It may be important to note that Fred and Leslie had two children. Those children were ages 6 and 8. Using the same set of facts as Question 3, Fred would like to bring an action for loss of consortium for the loss of his wife and loss of parental care for the loss of the mother of the two children. Fred's attorney should: A. Closely check the wrongful death and survival statutes to see if recovery is allowed for those claims in that state. B. Assume that loss of consortium and loss of parental services are always recoverable even when the injured party dies. C. Assume that loss of consortium and loss of parental services are never recoverable when an injured party dies. D. Assume that loss of consortium is recoverable but loss of parental services is not recoverable when an injured party dies.

The best answer is A. Since survival and wrongful death is a matter of state law, the law may differ among the many states. Loss of consortium and loss of parental services are two of the areas where the law lacks uniformity. It would be important to closely research the local state law to determine if those measures of loss were recoverable.

The best answer is B. Running for public office would make someone a public figure. Answer D is one that could also be considered. Someone who thrust themselves into the public eye to have an impact on decisions is also a public figure. In this case, the fact that Ms. Jones is running for public office is probably enough to make her a public figure.

John Jones was running for governor of his state. For a two-day period, just before the election, Mr. Jones seemed to have disappeared. No one knew where he was. The local newspaper wrote the following article. "We have just been informed that Mr. John Jones, candidate for governor, spent two days having a romantic weekend with his girlfriend. We understand that Mr. Jones' wife is extremely upset, but is denying that her husband has a girlfriend." Although John Jones had been leading in the polls, his numbers fell dramatically. The election came so suddenly after the story appeared in the newspaper, Mr. Jones did not really have time to refute it. It turns out that the story was false. Mr. Jones was, in fact, checking on his elderly mother who lived in a different state. His mother had several health problems and needed some attention. The newspaper had gotten the story from a source within the opposing candidate's party. The source promised the story was true. The newspaper then contacted Mr. Jones' party and asked where he was. Mr. Jones' party just said, "No comment." The newspaper called Mr. Jones' wife and asked the same question. She knew where her husband was, but did not want him bothered. Mrs. Jones said, "I'm not sure where he is." Since the election was coming up quickly, the newspaper wrote the story on that basis. Which of the following is the best answer? A. Mr. Jones will probably win the lawsuit since the newspaper failed to sure reasonable care to determine whether the story was true. B. Mr. Jones will probably lose the lawsuit since the newspaper did not know the story was false. C. Mr. Jones will probably win the lawsuit since the story was false. D. Mr. Jones will probably lose the lawsuit since his own party failed to confirm or deny the truth.

The best answer is B. Since Mr. Jones is a public figure, he will have to prove "actual malice." "Actual malice" means that the defendant knew the statement was false or acted in reckless disregard of the truth. The standard of care is fairly strict. From these facts, it does not appear that the newspaper knew the statements were false. They got the statements from a fairly reliable source and they tried to check the facts from Mr. Jones' own party and family. With the election coming quickly, it appears they could write the story.

Logging Company was hauling logs along a state highway. One of their trucks dropped a full load of logs on the highway. The highway had to be closed for three days in order to get the logs cleared. Can a state attorney general bring an action for public nuisance for the damages caused by the accident? Linda owns real property (a farm) along the highway where the logging truck dropped a load of logs. On the day it happened, Linda needed to get to her farm. When she got near the gate, she discovered that the highway was closed and she could not get to her farm. Although she explained her problem to the police and they were very sympathetic, there was no way that Linda could get past the logs to her farm gate. Linda wants to sue the Logging Company for the damages she suffered by being unable to get to her farm for three days. What is the likely result of that lawsuit? A. Linda cannot recover since her injury is merely different in degree from the general public. B. Linda cannot recover since her injury is merely different in kind from the general public. C. Linda can recover for a private nuisance for the harm she has suffered. D. Linda can recover since her injury is different in kind from the general public.

The best answer is C. Linda is prevented from entering her real property. She is suffering and interference with the use and enjoyment of her land. That is a private nuisance. Answer D would also be a good answer. Linda may also be able to claim a public nuisance for an injury different in kind from that suffered by the general public The interference with her real property rights is different in kind and not merely degree from the general public.

A company is releasing toxic chemicals in the air. John Smith wants to sue the company for a public nuisance. John claims that the chemicals in the air make his eyes burn. Can John sue the company for a public nuisance? A. Yes. Anyone injured by a public nuisance can sue. B. Yes. If John's injury is greater in degree of harm than other people's injury by this private nuisance. C. No. The action should be brought by a representative of the public like an attorney general. D. No. A private individual can never bring an action for public nuisance.

The best answer is C. Ordinarily, a public representative should bring an action for public nuisance. There are exceptions to this rule, however. Because of the exception to that rule, answer D is not correct.

Carl was cutting grass in his pasture near a railroad track. A train passing nearby threw out a hot piece of coal and struck Carl in the chest. The hot coal caused a trauma injury and a severe burn. Carl lived for three weeks in serious pain and then died. Carl's wife has consulted an attorney to see if there is some remedy for the loss. At common law, the appropriate remedy would be: A. Damages for Carl's death if negligence on the part of the railroad could be proven. B. Damages for Carl's pain and suffering prior to death if negligence on the part of the railroad could be proven. C. Damages could be recovered for death only if intentional conduct on the part of the railroad could be proven. D. No damages could be recovered in this example at common law.

The best answer is D. At common law, there was no recovery when the injured party died. There were two reasons for this result. The law assumed that the personal injury action was personal with the injured partied and died with that person. In addition, it was assumed that the tort and the crime merged at the death. Any action would be a criminal action against the wrongdoer. As a result of this condition at common law, most states have passed statutes to allow recover for both the injuries suffered by the injured party prior to his or her death and also for damages suffered by surviving family members as a result of the death. Damages for the injuries suffered by the party prior to death are recoverable under a "survival statute." Damages for injuries suffered due to the death are recoverable under a "wrongful death statute." Since this area of the law is usually governed by specific state statutes, there are differences among the states. These questions and answer try to highlight the common principles.

John Jones was running for governor of his state. For a two-day period, just before the election, Mr. Jones seemed to have disappeared. No one knew where he was. The local newspaper wrote the following article. "We have just been informed that Mr. John Jones, candidate for governor, spent two days having a romantic weekend with his girlfriend. We understand that Mr. Jones' wife is extremely upset, but is denying that her husband has a girlfriend." Although John Jones had been leading in the polls, his numbers fell dramatically. The election came so suddenly after the story appeared in the newspaper, Mr. Jones did not really have time to refute it. It turns out that the story was false. Mr. Jones was, in fact, checking on his elderly mother who lived in a different state. His mother had several health problems and needed some attention. If Mr. Jones is able to prove that, in addition to the facts appearing above, the newspaper had also endorsed the opposing candidate for governor, what impact will that have on the case? A. It will prove "actual malice" since it is evidence that the newspaper wanted to opposing candidate to win. B. It will show common law malice which is necessary for a public figure to win a defamation action. C. It will show that the newspaper failed to use reasonable care to determine the truth of the story which is necessary for a public figure to win an action for defamation. D. The evidence will have very little impact on the case.

The best answer is D. For a public figure to win a defamation action against a news media, that plaintiff must prove "actual malice." Actual malice means that the defendant knew the statement was false or acted in reckless disregard of the truth. The mere fact that the newspaper was supporting the other candidate does not show that they knew the statement was false.

Dr. Pam was standing across the street corner across from the hospital. Since she was the chief of surgery in the hospital, she had crossed this street many times. Dr. Pam carefully looked both ways before crossing the street and then started to walk forward. A car pulled around the corner, speeding and running a red light, and hit Dr. Pam. The driver of that automobile was named Jack. Several other doctors saw the accident and immediately ran to Dr. Pam's aid. The automobile had crushed most of her body including her skull. Unfortunately, Dr. Pam appeared to have died instantly from the injuries. Dr. Pam was married to Bill. Bill was a local investment banker and had substantial income of his own. Bill and Dr. Pam had three children. The children were ages 2, 5, and 7. Bill will seek recovery from Jack for medical bills and pain and suffering suffered by Dr. Pam. Using the same set of facts as Question 9, Bill will want to consult with his attorney about how the damages for Dr. Pam's future lost wages will be determined. Since Bill earns a substantial annual salary himself, he has not used Dr. Pam's income. Dr. Pam's income was invested to pay for future education expenses for their three children. What advice should Bill's attorney give him? A. Since Bill earns a substantial income there can be no recovery for Dr. Pam's future lost wages. B. Some jurisdictions would determine the total amount of future lost wages for the recovery and then divide it among the beneficiaries. C. Some jurisdictions would determine the amount of damages for future lost wages based upon the amount that individual beneficiaries actually lost. Under such a determination, the children would receive a substantial recovery and Bill would receive nothing. D. Both B and C.

The best answer is D. There are two different rules that are applied. The majority of jurisdictions apply a "loss to beneficiary" rule. Under such a rule, the plaintiff must prove what each beneficiary would have enjoyed over a lifetime and the damages are based on those figures. A few jurisdictions apply a "loss to estate" rule. Such jurisdictions determine the total amount of wages that the deceased would have earned over a lifetime and that amount of money is the basis for the award.

Leslie was driving her car with using all appropriate care along major street when Mike, while driving another car, rammed the car that Leslie was driving. Mike had run a stop sign just prior to hitting Leslie's car. Leslie was wearing her seat belt, but suffered major injuries due to the crash. The emergency response technicians had to cut open the door to the car to get to Leslie. She was then rushed to the hospital for emergency treatment. The hospital staff had to do emergency first aid in the emergency room and then rush Leslie to the operating room. The staff surgeon performed emergency surgery to repair the internal injuries. Although the whole hospital staff performed excellently, Leslie lived for two weeks and then died of the injuries from the automobile wreck. During that two-week period, Leslie was conscious and in great pain. The hospital staff and the doctors had to constantly administer medical treatment to try to keep Leslie alive. Upon Leslie's death, Leslie's husband Fred consulted an attorney to try to determine if there was some way that he could recover damages. It may be important to note that Fred and Leslie had two children. Those children were ages 6 and 8. Using the same set of facts as Question 3, when the action is brought to recover for Leslie's injuries under the survival statute, the proper party to name as the plaintiff is: A. Most likely Leslie. B. Most likely the two children. C. Most likely Leslie's parents. D. Most likely Fred, if he is the representative of Leslie's estate.

The best answer is D. This question raises a problem with state law. Obviously Leslie is probably not going to be the proper party to name as a plaintiff. She is dead. It is unlikely that the children would be named as plaintiffs since they are minors. The most likely named plaintiff would be the husband, Fred. State law will designate who is the proper party plaintiff in the action. The state law may frequently note that the "personal representative of the estate" is the proper party. The husband could, of course, be named that representative.

Dr. Pam was standing across the street corner across from the hospital. Since she was the chief of surgery in the hospital, she had crossed this street many times. Dr. Pam carefully looked both ways before crossing the street and then started to walk forward. A car pulled around the corner, speeding and running a red light, and hit Dr. Pam. The driver of that automobile was named Jack. Several other doctors saw the accident and immediately ran to Dr. Pam's aid. The automobile had crushed most of her body including her skull. Unfortunately, Dr. Pam appeared to have died instantly from the injuries. Dr. Pam was married to Bill. Bill was a local investment banker and had substantial income of his own. Bill and Dr. Pam had three children. The children were ages 2, 5, and 7. Bill will seek recovery from Jack for medical bills and pain and suffering suffered by Dr. Pam. Using the same set of facts as Question 9, Bill would like to recover from Jack for the funeral expenses and the cost of administering the estate of Dr. Pam. What is the likelihood of that recovery? A. Bill should not be able to recover either of those costs. B. Bill should be able to recover the funeral expenses but not the cost of administering the estate. C. Bill should be able to recover the cost of administering the estate but not the funeral expenses. D. Bill should be able to recover both funeral expenses and the cost of administering the estate.

The best answer to the question is D. Again, it should be remembered that wrongful death actions are matter of state statutory law. It would be necessary to research the particular state law to make sure of the correct answer in any particular jurisdictions. Many jurisdictions, however, allow recovery of funeral expenses and the costs to administer the estate.

Jim was in a hurry to get to an appointment and was driving his automobile along a city street. He approached an intersection where the light was yellow so he speeded up to get through that intersection. In fact, by the time he reached the intersection, the light turned red. Jim, however, went through anyway. On the cross street, a car driven by Charles went through the intersection since Charles noted that his light had just turned green. Charles hit Jim's car and caused substantial injury to Jim. Charles was not hurt. An ambulance was called to take Jim to the hospital, but the ambulance got lost on the way to the accident location. The operator taking the call made a few mistakes. The operator did not keep the caller on the line, wrote down the wrong address and did not read the address back to the caller to check that address. By the time that the ambulance found the accident, Jim was in much worse shape from loss of blood. Jim was taken to the hospital where emergency surgery was completed. Although Jim lived for 24 hours, he ultimately died. The evidence will show that Jim would have had a better chance to live if the ambulance had arrived on time. Jim was not married but had lived with the same woman, Jill, for 4 years. Jim and Jill had a son that is now 2 years of age. Jim was an accountant with a major accounting firm. Jill has consulted an attorney and would like to bring an action against Charles for the injury and death of Jim. Using the same set of facts as Question 14, a proper plaintiff may bring the action to recover for the death of Jim against Charles. Charles, of course, under this set of facts will want to claim that Jim was contributory negligent in driving through the red light. If the issue of contributory negligence or comparative fault is raised in this action, it will: A. Be considered to reduce or bar recovery. B. Be ignored since the award would not go to Jim, but ultimately to a beneficiary of the action. C. Be considered but only if it can be shown that the beneficiary of the award was also negligent. D. Be ignored since there are no defenses to wrongful death.

The correct answer is A. All of the usual defenses are applied in actions for wrongful death and survival. Although it is true that the deceased will not be enjoying the proceeds of the action, the deceased's conduct will still be used to reduce or bar recovery.

Dr. Pam was standing across the street corner across from the hospital. Since she was the chief of surgery in the hospital, she had crossed this street many times. Dr. Pam carefully looked both ways before crossing the street and then started to walk forward. A car pulled around the corner, speeding and running a red light, and hit Dr. Pam. The driver of that automobile was named Jack. Several other doctors saw the accident and immediately ran to Dr. Pam's aid. The automobile had crushed most of her body including her skull. Unfortunately, Dr. Pam appeared to have died instantly from the injuries. Dr. Pam was married to Bill. Bill was a local investment banker and had substantial income of his own. Bill and Dr. Pam had three children. The children were ages 2, 5, and 7. Bill will seek recovery from Jack for medical bills and pain and suffering suffered by Dr. Pam. Using the same set of facts as Question 9, Bill is concerned about who should bring the action for the death of his wife, Dr. Pam. He is concerned that someone might believe that he and his children have a conflict of interest. Who should bring the action? A. Bill should bring the action if he is appointed under the appropriate state statute. 139 B. Bill and the children must bring separate actions for the death of Dr. Pam. C. A third party should be appointed to bring the action to avoid a conflict of interest. D. Any of the above is correct.

The correct answer is A. In many states, statutes will designate who is to bring the action. A likely person is the personal representative of the estate. Under this set of facts, it is likely that Bill, as the husband, will serve as the representative of the estate.

Leslie was driving her car with using all appropriate care along major street when Mike, while driving another car, rammed the car that Leslie was driving. Mike had run a stop sign just prior to hitting Leslie's car. Leslie was wearing her seat belt, but suffered major injuries due to the crash. The emergency response technicians had to cut open the door to the car to get to Leslie. She was then rushed to the hospital for emergency treatment. The hospital staff had to do emergency first aid in the emergency room and then rush Leslie to the operating room. The staff surgeon performed emergency surgery to repair the internal injuries. Although the whole hospital staff performed excellently, Leslie lived for two weeks and then died of the injuries from the automobile wreck. During that two-week period, Leslie was conscious and in great pain. The hospital staff and the doctors had to constantly administer medical treatment to try to keep Leslie alive. Upon Leslie's death, Leslie's husband Fred consulted an attorney to try to determine if there was some way that he could recover damages. It may be important to note that Fred and Leslie had two children. Those children were ages 6 and 8. If Fred sues Mike seeking to recover for all of the medical bills that are now due for the treatment given Leslie, the most likely result is: A. Fred can recover the medical bills if the state has a survival statute. B. Fred can recover the medical bills if the state has a wrongful death statute. C. Fred can recover the medical bills only if it can be proven that Mike's conduct was intentional. D. Fred cannot recover the medical bills.

The correct answer is A. Modern survival statutes allow recovery for those damages that the injured party could have recovered had the injured party survived the injuries. Modern survival statutes allow recovery whether the claim is in negligence, intent or strict liability. There is, therefore, no requirement that Mike's conduct be intentional.

Jim was in a hurry to get to an appointment and was driving his automobile along a city street. He approached an intersection where the light was yellow so he speeded up to get through that intersection. In fact, by the time he reached the intersection, the light turned red. Jim, however, went through anyway. On the cross street, a car driven by Charles went through the intersection since Charles noted that his light had just turned green. Charles hit Jim's car and caused substantial injury to Jim. Charles was not hurt. An ambulance was called to take Jim to the hospital, but the ambulance got lost on the way to the accident location. The operator taking the call made a few mistakes. The operator did not keep the caller on the line, wrote down the wrong address and did not read the address back to the caller to check that address. By the time that the ambulance found the accident, Jim was in much worse shape from loss of blood. Jim was taken to the hospital where emergency surgery was completed. Although Jim lived for 24 hours, he ultimately died. The evidence will show that Jim would have had a better chance to live if the ambulance had arrived on time. Jim was not married but had lived with the same woman, Jill, for 4 years. Jim and Jill had a son that is now 2 years of age. Jim was an accountant with a major accounting firm. Jill has consulted an attorney and would like to bring an action against Charles for the injury and death of Jim. Who is the proper party to act as plaintiff in the action? A. Jim will be the named plaintiff. B. A personal representative will have to be appointed to bring the action. C. The child will be the named plaintiff. D. Jill will be the plaintiff since she lived with Jim for 4 years.

The correct answer is B. A personal representative will have to be appointed. It is possible that Jill could be appointed the personal representative to bring the action. The law will not assume that appointment, however, just because Jill and Jim lived together and had a child.

Dr. Pam was standing across the street corner across from the hospital. Since she was the chief of surgery in the hospital, she had crossed this street many times. Dr. Pam carefully looked both ways before crossing the street and then started to walk forward. A car pulled around the corner, speeding and running a red light, and hit Dr. Pam. The driver of that automobile was named Jack. Several other doctors saw the accident and immediately ran to Dr. Pam's aid. The automobile had crushed most of her body including her skull. Unfortunately, Dr. Pam appeared to have died instantly from the injuries. Dr. Pam was married to Bill. Bill was a local investment banker and had substantial income of his own. Bill and Dr. Pam had three children. The children were ages 2, 5, and 7. Bill will seek recovery from Jack for medical bills and pain and suffering suffered by Dr. Pam. Using the same set of facts as Question 9, it should be obvious that Dr. Pam was earning a substantial income every year. It should also be obvious, however, that her husband bill also earned a substantial income every year. Bill will want to recover from Jack a judgment that includes damages for Dr. Pam's future lost wages. In determining whether those damages ought to be recovered, the court will probably limit those damages to the following: A. The future lost wages will be limited to one year's wages since the statute of limitations for most torts is usually one year. B. The future lost wages will be limited to that period of time in which reasonable people would assume that Bill will remarry. C. The future lost wages will be limited to that period of time from the date of death to the date when Dr. Pam would be expected to retire and stop working. D. Future lost wages are not recoverable in a wrongful death claim.

The correct answer is C. Future lost wages is the primary measure of loss in a wrongful death claim. The beneficiaries are entitled to recoup what they would have enjoyed had the deceased lived. The normal period for determining the lost wages is to figure the number of years from the date of death to the end of the deceased's working life.

Leslie was driving her car with using all appropriate care along major street when Mike, while driving another car, rammed the car that Leslie was driving. Mike had run a stop sign just prior to hitting Leslie's car. Leslie was wearing her seat belt, but suffered major injuries due to the crash. The emergency response technicians had to cut open the door to the car to get to Leslie. She was then rushed to the hospital for emergency treatment. The hospital staff had to do emergency first aid in the emergency room and then rush Leslie to the operating room. The staff surgeon performed emergency surgery to repair the internal injuries. Although the whole hospital staff performed excellently, Leslie lived for two weeks and then died of the injuries from the automobile wreck. During that two-week period, Leslie was conscious and in great pain. The hospital staff and the doctors had to constantly administer medical treatment to try to keep Leslie alive. Upon Leslie's death, Leslie's husband Fred consulted an attorney to try to determine if there was some way that he could recover damages. It may be important to note that Fred and Leslie had two children. Those children were ages 6 and 8. Using the same set of facts as Question 3, consider one more possible measure of damages. In addition to some of the losses noted in the above questions, which of the following would be the best measure of loss to also seek recovery under the survival statute? A. Future pain and suffering. B. Future medical bills. C. Future lost wages. D. None of the above.

The correct answer is D. This is something of a trick question. Survival statutes allow recovery for the damages suffered by the injured party from the time of injury until that person's death. Depending on the local state statute, that may include the medical bills, pain and suffering, or wages lost during that period of injury. Survival statutes, however, will not allow recover for "future" injuries. The person who was injured is dead. The law now allows for recovery based upon suffering or wages after death. The damages for injuries suffered due to the death must be recovered under the wrongful death statute.

Jim was in a hurry to get to an appointment and was driving his automobile along a city street. He approached an intersection where the light was yellow so he speeded up to get through that intersection. In fact, by the time he reached the intersection, the light turned red. Jim, however, went through anyway. On the cross street, a car driven by Charles went through the intersection since Charles noted that his light had just turned green. Charles hit Jim's car and caused substantial injury to Jim. Charles was not hurt. An ambulance was called to take Jim to the hospital, but the ambulance got lost on the way to the accident location. The operator taking the call made a few mistakes. The operator did not keep the caller on the line, wrote down the wrong address and did not read the address back to the caller to check that address. By the time that the ambulance found the accident, Jim was in much worse shape from loss of blood. Jim was taken to the hospital where emergency surgery was completed. Although Jim lived for 24 hours, he ultimately died. The evidence will show that Jim would have had a better chance to live if the ambulance had arrived on time. Jim was not married but had lived with the same woman, Jill, for 4 years. Jim and Jill had a son that is now 2 years of age. Jim was an accountant with a major accounting firm. Jill has consulted an attorney and would like to bring an action against Charles for the injury and death of Jim. Using the same set of facts as Question 14, a proper plaintiff brings an action for the death of Jim against Charles and the ambulance company. In order to recover against either Charles or the ambulance company, the plaintiff must prove: A. The defendants were acting intentionally. B. The defendants were acting negligently. C. The defendants were acting in such a way as to be subject to strict liability. D. Any of the above.

The correct answer is D. Wrongful death and survival claims are merely ways to assure that normal tort claims are available when the injured party dies. The underlying bases of such claims are still the usual bases of liability that are used in all other tort claims. The plaintiff may recover by using intent, negligence or strict liability.

The most likely answer is A. The facts state that Dr. Pam appears to have died instantly from the injury. As such, Dr. Pam did not suffer any injures between the time of the accident and her death. Medical bills and pain and suffering are usually recoverable under a survival statute. Since Dr. Pam did not suffer any losses which can be recovered under such a statute, none can be recovered. Due to the instantaneous nature of Dr. Pam's death, Bill's claim will be limited to a wrongful death claim.

Leslie was driving her car with using all appropriate care along major street when Mike, while driving another car, rammed the car that Leslie was driving. Mike had run a stop sign just prior to hitting Leslie's car. Leslie was wearing her seat belt, but suffered major injuries due to the crash. The emergency response technicians had to cut open the door to the car to get to Leslie. She was then rushed to the hospital for emergency treatment. The hospital staff had to do emergency first aid in the emergency room and then rush Leslie to the operating room. The staff surgeon performed emergency surgery to repair the internal injuries. Although the whole hospital staff performed excellently, Leslie lived for two weeks and then died of the injuries from the automobile wreck. During that two-week period, Leslie was conscious and in great pain. The hospital staff and the doctors had to constantly administer medical treatment to try to keep Leslie alive. Upon Leslie's death, Leslie's husband Fred consulted an attorney to try to determine if there was some way that he could recover damages. It may be important to note that Fred and Leslie had two children. Those children were ages 6 and 8. Using the same set of facts as Question 3, assume that the litigation under the survival statute produces a substantial judgment based upon the injuries suffered by Leslie during the two weeks between the accident and her death. Who will actually receive the money from that judgment? A. The money will be payable to Leslie's estate. B. Leslie's husband. C. Leslie's children. D. Leslie's husband and children.

The most likely answer to this question is A. The award of damages from a survival action is usually payable to the deceased's estate, and is subject to the claims of creditors of the estate.

Leslie was driving her car with using all appropriate care along major street when Mike, while driving another car, rammed the car that Leslie was driving. Mike had run a stop sign just prior to hitting Leslie's car. Leslie was wearing her seat belt, but suffered major injuries due to the crash. The emergency response technicians had to cut open the door to the car to get to Leslie. She was then rushed to the hospital for emergency treatment. The hospital staff had to do emergency first aid in the emergency room and then rush Leslie to the operating room. The staff surgeon performed emergency surgery to repair the internal injuries. Although the whole hospital staff performed excellently, Leslie lived for two weeks and then died of the injuries from the automobile wreck. During that two-week period, Leslie was conscious and in great pain. The hospital staff and the doctors had to constantly administer medical treatment to try to keep Leslie alive. Upon Leslie's death, Leslie's husband Fred consulted an attorney to try to determine if there was some way that he could recover damages. It may be important to note that Fred and Leslie had two children. Those children were ages 6 and 8. Using the same set of facts as Question 3 above, assume that Fred also wants to recover for the pain and suffering that Leslie endured during the two weeks that she was alive in the hospital. If Fred wants to recover for the pain and suffering, he will: A. Have to show that the state allows such recovery under the wrongful death statute. B. Have to show that the state allows such recovery under the survival statute. C. Not be allowed to recover for the pain and suffering since that recovery is personal with the injured party and dies with that party. D. Have to prove that he actually suffered some monetary loss that justifies the pain and suffering damages.

B is the correct answer. Recovery for the pain and suffering of the injured party, now deceased, would fall under the state survival statute. In order to recover that loss, the plaintiff would have to show that the state survival statute allowed pain and suffering damages. Many state survival statutes do allow such recovery.

Carl was cutting grass in his pasture near a railroad track. A train passing nearby threw out a hot piece of coal and struck Carl in the chest. The hot coal caused a trauma injury and a severe burn. Carl lived for three weeks in serious pain and then died. Carl's wife has consulted an attorney to see if there is some remedy for the loss. assume that Carl's wife has consulted an attorney in the present day. If that attorney consulted the state's modern statutes, which of the following best represents the likelihood of recovery? A. There should be a recovery for the injuries suffered by Carl prior to his death. B. There should be a recovery for the damages caused by Carl's death. C. There should be a recovery for both A and B above. D. No damages could be recovered in this example.

C is the correct answer. As noted in the answer to the above question, there was no recovery allowed at common law when the injured party died. Modern state statutes, however, have changed that condition. Most states now have both "survival" and "wrongful death" statutes. The survival statutes allow recovery for those injuries suffered by the injured party prior to death. The wrongful death statute allows recovery for those damages caused by the death.

Torts 2 MC ?s

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