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Perguntas do quiz (138)
1A host pointed an unloaded revolver at her guest, threatening to shoot him. The guest knew that the revolver was not loaded, and that the ammunition for the revolver was stored in a locked basement closet, two stories below where the two were then standing.
In an action brought by the guest against the host for assault, will the guest be likely to prevail?- ANo, because the host did not intend to shoot her guest.
- BNo, because the host did not put her guest in apprehension of an imminent contact.
- CYes, because the ammunition was accessible to the host.
- DYes, because the host threatened her guest with a revolver.
2A car driven by the defendant entered land owned by and in the possession of the plaintiff, without the plaintiff's permission.
Which, if any, of the following allegations, without additional facts, would provide a sufficient basis for a claim by the plaintiff against the defendant?- AThe defendant intentionally drove his car onto the plaintiff's land.
- BThe defendant's car damaged the plaintiff's land.
- CThe defendant negligently drove his car onto the plaintiff's land.
- DThe defendant's car damaged the plaintiff's personal property.
3A plaintiff and a defendant were in the habit of playing practical jokes on each other on their respective birthdays. On the plaintiff's birthday, the defendant sent the plaintiff a cake containing an ingredient that he knew had, in the past, made the plaintiff very ill. After the plaintiff had eaten a piece of the cake, he suffered severe stomach pains and had to be taken to the hospital by ambulance. On the way to the hospital, the paramedic, who was driving the ambulance, suffered a heart attack, which caused the ambulance to swerve from the road and hit a tree. As a result of the collision, the plaintiff suffered a broken leg.
In a suit by the plaintiff against the defendant to recover damages for the plaintiff's broken leg, the plaintiff will- Aprevail, because the defendant knew that the cake would be harmful or offensive to the plaintiff.
- Bnot prevail, because the paramedic was not negligent.
- Cnot prevail, because the defendant could not reasonably be expected to foresee injury to the plaintiff's leg.
- Dnot prevail, because the paramedic's heart attack was a superseding cause of the plaintiff's broken leg.
4
A pedestrian was crossing a street at a crosswalk. A bystander, who was on the sidewalk nearby, thought he saw a speeding automobile heading in the pedestrian's direction. However, the automobile was obviously coming to a stop at the traffic light. Nevertheless, the bystander ran into the street and pushed the pedestrian onto the sidewalk. The pedestrian fell to the ground and broke her leg.
In an action for battery brought by the pedestrian against the bystander, will the pedestrian prevail?- AYes, because the bystander could have shouted a warning instead of pushing the pedestrian out of the way.
- BYes, because the pedestrian was not actually in danger and the bystander should have realized it.
- CNo, because the driver of the car was responsible for the pedestrian's injury.
- DNo, because the bystander's intent was to save the pedestrian, not to harm her.
5Unaware that a lawyer was in the county courthouse library late on a Friday afternoon, when it was unusual for anyone to be using the library, a clerk locked the library door and left. The lawyer found herself locked in when she tried to leave the library at 7 p.m. It was midnight before the lawyer's family could find out where she was and get her out. The lawyer was very annoyed by her detention but was not otherwise harmed by it.
Does the lawyer have a viable claim for false imprisonment against the clerk?- ANo, because it was unusual for anyone to be using the library late on a Friday afternoon.
- BNo, because the clerk did not intend to confine the lawyer.
- CYes, because the clerk should have checked to make sure no one was in the library before the clerk locked the door.
- DYes, because the lawyer was aware of being confined.
6A plaintiff suffered a serious injury while participating in an impromptu basketball game at a public park. The injury occurred when the plaintiff and the defendant, on opposing teams, each tried to obtain possession of the ball when it rebounded from the backboard after a missed shot at the basket. During that encounter, the plaintiff was struck and injured by the defendant's elbow. The plaintiff now seeks compensation from the defendant.
At the trial, evidence was introduced tending to prove that the game had been rough from the beginning, that elbows and knees had frequently been used to discourage interference by opposing players, and that the plaintiff had been one of those making liberal use of such tactics.
In this action, will the plaintiff prevail?- AYes, because the defendant intended to strike the plaintiff with his elbow.
- BYes, because the defendant intended to cause harmful or offensive contact with the plaintiff.
- CNo, because the plaintiff impliedly consented to violent play.
- DNo, because the defendant did not intentionally use force that exceeded the players' consent.
7A man tied his dog to a bike rack in front of a store and left the dog there while he went inside to shop. The dog was usually friendly and placid.
A five-year-old child started to tease the dog by pulling gently on its ears and tail. When the man emerged from the store and saw what the child was doing to the dog, he became extremely upset.
Does the man have a viable claim against the child for trespass to chattels?- ANo, because the child did not injure the dog.
- BNo, because the child was too young to form the requisite intent.
- CYes, because the child touched the dog without the man's consent.
- DYes, because the child's acts caused the man extreme distress.
8A plaintiff was walking peacefully along a public street when he encountered the defendant, whom he had never seen before. Without provocation or warning, the defendant picked up a rock and struck the plaintiff with it. It was later established that the defendant was mentally ill and suffered recurrent hallucinations.
If the plaintiff asserts a claim against the defendant based on battery, which of the following, if supported by evidence, will be the defendant's best defense?- AThe defendant did not understand that his act was wrongful.
- BThe defendant did not desire to cause harm to the plaintiff.
- CThe defendant did not know that he was striking a person.
- DThe defendant thought the plaintiff was about to attack him.
9A plaintiff owned a large tract of land on the shore of a lake. The defendant lived on a stream that ran along one boundary of the plaintiff's land and into the lake. At some time in the past, a channel had been cut across the plaintiff's land from the stream to the lake at a point some distance from the mouth of the stream. From where the defendant lived, the channel served as a convenient shortcut to the lake. Erroneously believing that the channel was a public waterway, the defendant made frequent trips through the channel in his motorboat. His use of the channel caused no harm to the land through which it passed. Once the defendant learned of the plaintiff's ownership of the channel, he stopped using it as a shortcut.
If the plaintiff asserts a claim for damages against the defendant based on trespass, which of the following would be a correct disposition of the case?- AJudgment for the plaintiff for nominal damages, because the defendant intentionally used the channel.
- BJudgment for the defendant, because he did not use the channel after learning of the plaintiff's ownership claim.
- CJudgment for the defendant, because he caused no harm to the plaintiff's land.
- DJudgment for the defendant, because when he used the channel he believed it was a public waterway.
10The defendant operates a collection agency. He was trying to collect a valid $400 bill for medical services rendered to the plaintiff by a doctor that was past due.
The defendant went to the plaintiff's house and when the plaintiff's mother answered the door, the defendant told her that he was there to collect a bill owed by the plaintiff. The mother told the defendant that because of the plaintiff's illness, the plaintiff had been unemployed for six months, that she was still ill and unable to work, and that she would pay the bill as soon as she could.
The defendant, in a loud voice, demanded to see the plaintiff and said that if he did not receive payment immediately, he would file a criminal complaint charging her with fraud. The plaintiff, hearing the conversation, came to the door. The defendant, in a loud voice, repeated his demand for immediate payment and his threat to use criminal process.
Assume that the plaintiff did not suffer physical harm as a result of the defendant's conduct, but did suffer severe emotional distress. If the plaintiff asserts a claim against the defendant based on intentional infliction of emotional distress, will the plaintiff prevail?- AYes, because the plaintiff suffered severe emotional distress as a result of the defendant's conduct.
- BNo, because the bill for medical services was valid and past due.
- CNo, because the plaintiff did not suffer physical harm as a result of the defendant's conduct.
- DNo, because the defendant's conduct created almost no risk of physical harm to the plaintiff.
11The plaintiff, a jockey, was seriously injured in a race when another jockey, the defendant, cut too sharply in front of her without adequate clearance. The two horses collided, causing the plaintiff to fall to the ground, sustaining injury. The State Racetrack Commission ruled that, by cutting in too sharply, the defendant committed a foul in violation of racetrack rules requiring adequate clearance for crossing lanes. The plaintiff has brought an action against the defendant for damages in which one count is based on battery.
Will the plaintiff prevail on the battery claim?- AYes, if the defendant was reckless in cutting across in front of the plaintiff's horse.
- BYes, because the State Racetrack Commission determined that the defendant committed a foul in violation of rules applicable to racing.
- CNo, unless the defendant intended to cause impermissible contact between the two horses or apprehension of such contact by the plaintiff.
- DNo, because the plaintiff assumed the risk of accidental injury inherent in riding as a jockey in a horse race.
12While an equestrian was riding her horse on what she thought was a public path, the owner of a house next to the path approached her, shaking a stick and shouting, "Get off my property." Unknown to the equestrian, the path on which she was riding crossed the private property of the shouting owner. When the equestrian explained that she thought the path was a public trail, the man cursed her, approached the equestrian's horse, and struck the horse with the stick. As a result of the blow, the horse reared, causing the equestrian to fear that she would fall. However, the equestrian managed to stay on her horse, and then departed. Neither the equestrian nor the horse suffered bodily harm.
If the equestrian brings an action for damages against the property owner, the result should be for- Athe equestrian, for trespass to her chattel property.
- Bthe equestrian, for battery and assault.
- Cthe defendant, because the equestrian suffered no physical harm.
- Dthe defendant, because he was privileged to exclude trespassers from his property.
13
The governor of a state signed a death warrant for a convicted murderer. Two protesters are active opponents of the death penalty. At a demonstration protesting the execution of the murderer, the protesters carried large signs that stated, "The governor - Murderer." A television station broadcasted news coverage of the demonstration, including pictures of the signs carried by the protesters.
If the governor asserts against the television station a claim of damages for intentional infliction of emotional distress, will the governor prevail?- AYes, because the broadcast showing the signs caused the governor to suffer severe emotional distress.
- BYes, because the assertion on the signs was extreme and outrageous.
- CNo, because the governor did not suffer physical harm as a consequence of the emotional distress caused by the signs.
- DNo, because the television station did not publish a false statement of fact with "actual malice."
14A plaintiff and a man were passengers sitting in adjoining seats on a flight on an airline. There were many empty seats on the aircraft.
During the flight, a flight attendant served the man nine drinks. As the man became more and more obviously intoxicated and attempted to engage the plaintiff in a conversation, the plaintiff chose to ignore the man. This angered the man, who suddenly struck the plaintiff in the face, giving her a black eye.
If the plaintiff asserts a claim for damages against the airline based on battery, she will- Aprevail, because she suffered an intentionally inflicted harmful or offensive contact.
- Bprevail, because the flight attendant acted recklessly in continuing to serve liquor to the man.
- Cnot prevail, because the man was not acting as an agent or employee of the airline.
- Dnot prevail, because she cannot establish some permanent injury from the contact.
15A bank vice president took substantial kickbacks to approve certain loans that later proved worthless. Upon learning of the kickbacks, the bank's president fired the vice president, telling him, "If you are not out of this bank in 10 minutes, I will have the guards physically throw you out." The vice president left at once.
If the vice president asserts a claim against the president based on assault, will the vice president prevail?- ANo, because the guards never touched the vice president.
- BNo, because the president gave the vice president 10 minutes to leave.
- CYes, because the president intended to cause the vice president severe emotional distress.
- DYes, because the president threatened the vice president with a harmful or offensive bodily contact.
16
A school bus driver reported to a middle school principal that a student had harassed other children on the bus. The principal informed the student’s parents of the bus driver’s report and told them that, because of the student’s behavior, the student could not ride the bus for the next week and would have to be driven to school by a parent.
The following Monday morning, after the bus driver had let the children off the bus in front of the school, but before she could close the door and drive away, the student’s father pulled his car directly in front of her bus, blocking the driver’s path. Because there was another bus right behind hers, the driver was unable to move her bus.
The father got out of his car and strode toward the open door of the bus, screaming at the driver: “You messed with the wrong family! I am going to get you!” Feeling threatened, the bus driver quickly closed the door. The father pounded on the door with enough force to dent it, screaming obscenities at the driver, until a school security guard intervened.
If the driver were to sue the father, which cause of action would give her the best chance of recovery?- ABattery.
- BIntentional infliction of emotional distress.
- CTrespass to chattels.
- DAssault.
17A wealthy elderly woman was repeatedly harassed by a debt collector over a period of two months. The debt collector was trying to collect a large debt owed to his client by the woman’s impoverished adult son.
Although the debt collector knew that the woman was not legally responsible for the son’s debt, he called the woman multiple times each day and threatened to destroy her credit. He also told her that he knew where she lived and that he was going to withdraw the money from her bank account. As a result, the woman suffered great mental anguish, was unable to sleep, and ultimately suffered serious health consequences.
Which of the following conclusions would best support a claim by the woman against the debt collector for intentional infliction of emotional distress?- AThe debt collector could reasonably have foreseen that the calls and threats might cause harm to the woman’s health.
- BThe debt collector’s conduct caused the woman to fear that he was someday going to physically attack her.
- CThe debt collector’s conduct failed to comply with industry custom.
- DThe debt collector’s conduct was extreme and outrageous
18The police in a large city notified local gas station attendants that a woman recently had committed armed robberies at five city gas stations. The police said that the woman was approximately 75 years old, had white hair, and drove a vintage, cream-colored Ford Thunderbird. Attendants were advised to call the police if they saw her, but to not attempt to apprehend her. Armed robbery is a felony under state law.
A traveler was passing through the city on a cross-country journey. The traveler was a 75-year-old woman who had white hair and drove a vintage, cream-colored Ford Thunderbird. When the traveler drove into a gas station, the owner of the station thought the traveler must be the robber wanted by the police. After checking the oil at the traveler's request, the owner falsely informed the traveler that she had a broken fan belt, that her car could not be driven without a new belt, that it would take him about an hour to replace it, and that she should stay in his office for consultation about the repair. The traveler was greatly annoyed that her journey was delayed, but she stayed in the owner's office while she waited for her car. The owner telephoned the police and, within the hour, the police came and questioned the traveler. The police immediately determined that the traveler was not the woman, and the traveler resumed her journey without further delay.
In the traveler's action for false imprisonment against the owner, the traveler will- Anot prevail, because the owner reasonably believed that the traveler was the wanted woman.
- Bnot prevail, because the traveler suffered no physical or mental harm.
- Cprevail, because the traveler reasonably believed she could not leave the owner's premises.
- Dprevail, because the owner lied to the traveler about the condition of her car.
19
A defendant, an inexperienced driver, borrowed a car from the plaintiff, a casual acquaintance, for the express purpose of driving it several blocks to the local drug store. Instead, the defendant drove the car, which then was worth $12,000, 100 miles to another city. While the defendant was driving in the other city the next day, the car was hit by a negligently driven truck and sustained damage that will cost $3,000 to repair. If repaired, the car will be fully restored to its former condition.
If the plaintiff asserts a claim against the defendant based on conversion, the plaintiff should recover a judgment for- A$12,000.
- B$3,000.
- C$3,000 plus damages for the loss of the use of the car during its repair.
- Dnothing, because the defendant was not negligent.
20In a plaintiff’s action for battery, the evidence established the following: the plaintiff was bad-tempered and, as the defendant knew, carried a gun and used it often; the plaintiff struck the defendant first; during the altercation, the plaintiff repeatedly tried to get to his gun; and the blows inflicted upon the plaintiff by the defendant resulted in the plaintiff being hospitalized.
Which finding of fact would be most likely to result in a verdict for the defendant?- AThe defendant used no more force than he actually believed was necessary to protect himself against death or serious bodily harm.
- BThe defendant used no more force than he reasonably believed was necessary to protect himself against death or serious bodily harm.
- CThe defendant, in fact, feared death or serious bodily harm.
- DThe defendant was justified in retaliating against the plaintiff because the plaintiff struck the first blow.
21An intoxicated man who was standing on a fifth-floor apartment balcony threatened to jump off the building. A bystander pulled the man back into the building, pushed him into a bedroom, and locked the bedroom door from the outside. When the man became sober, the bystander released him from the bedroom.
Does the man have a claim against the bystander?- AYes, for battery, because the bystander pushed the man into the bedroom.
- BYes, for false imprisonment, because the bystander locked the man in the bedroom.
- CYes, for both battery and false imprisonment.
- DNo, because the bystander was privileged to act as he did.
22The manager of a department store noticed that a customer was carrying a scarf with her as she examined various items in the blouse department. The manager recognized the scarf as an expensive one carried by the store. The customer was trying to find a blouse that matched a color in the scarf, and, after a while, found one. The manager then saw the customer put the scarf into her purse, pay for the blouse, and head for the door. The manager, who was eight inches taller than the customer, blocked the customer's way to the door and asked to see the scarf in the customer's purse. The customer produced the scarf, as well as a receipt for it, showing that it had been purchased from the store on the previous day. The manager then told the customer there was no problem and stepped out of her way.
If the customer brings a claim against the store based on false imprisonment, the store's best defense would be that- Aby carrying the scarf in public view and then putting it into her purse, the customer assumed the risk of being detained.
- Bthe manager had a reasonable belief that the customer was shoplifting and detained her only briefly for a reasonable investigation of the facts
- Cthe customer should have realized that her conduct would create a reasonable belief that facts existed warranting a privilege to detain.
- Dthe customer was not detained, but was merely questioned about the scarf.
23In a tavern, an intoxicated woman threatened to slash a man with a broken beer bottle. Another customer, who had not been threatened by the woman, forcefully grabbed the woman and locked her in the tavern’s storeroom until the police could arrive. In the process, although the customer used reasonable force, the customer badly sprained the woman’s wrist.
Is the woman likely to recover in an action against the customer?- ANo, because the customer’s conduct was privileged as a defense of others.
- BYes, based on battery only.
- CYes, based on false imprisonment only.
- DYes, based on both battery and false imprisonment.
24
An 11-year-old boy was driving a full-size motorcycle on a private road, where the boy was a trespasser. The motorcycle hit a tire that had fallen off a truck driven by a delivery company employee who was making a delivery to an address on the private road. The boy was injured when his motorcycle went out of control after striking the tire.
In a negligence action brought on behalf of the boy against the delivery company, the company contends that the boy was contributorily negligent and that his damages, if any, should be reduced in conformance with the jurisdiction’s comparative negligence statute. The boy argues that his conduct should be judged according to the standard of a reasonable child of like age, intelligence, and experience under the circumstances.
Is the boy entitled to be judged according to the standard of care that he has argued for?- ANo, because the boy was driving a motorcycle.
- BNo, because the boy was trespassing on the private road.
- CYes, because comparative negligence applies.
- DYes, because the boy was 11 years old at the time.
25A male employee who worked at a psychiatric hospital had sexual relations with a patient in her room at the hospital. The patient was severely mentally disabled, and although the patient did not initiate the encounter, she did not protest.
A tort action was brought on the patient's behalf against the hospital. The hospital contends that the employee's actions were outside the scope of his employment.
Is the patient likely to prevail?- ANo, because the employee's actions were outside the scope of his employment.
- BNo, because the patient encouraged the employee's actions by not protesting.
- CYes, because the employee worked for the hospital.
- DYes, because the hospital failed to use reasonable care to protect the patient from such conduct.
26A man's car sustained moderate damage in a collision with a car driven by a woman. The accident was caused solely by the woman's negligence. The man's car was still drivable after the accident. Examining the car the next morning, the man could see that a rear fender had to be replaced. He also noticed that gasoline had dripped onto the garage floor. The collision had caused a small leak in the gasoline tank.
The man then took the car to a mechanic, who owns and operates a body shop, and arranged with the mechanic to repair the damage. During their discussion the man neglected to mention the gasoline leakage. Thereafter, while the mechanic was loosening some of the damaged material with a hammer, he caused a spark, igniting vapor and gasoline that had leaked from the fuel tank. The mechanic was severely burned.
The mechanic has brought an action to recover damages against the man and woman. The jurisdiction has adopted a pure comparative negligence rule in place of the traditional common law rule of contributory negligence. The jury found that while a reasonable person in the man's position would have warned the mechanic about the gasoline leak, the man had no actual knowledge of the risk that the gasoline leak presented.
In this action, will the mechanic obtain a judgment against the man?- ANo, because it was the mechanic's job to inspect the vehicle and repair whatever needed repair.
- BNo, because the man was not aware of the risk that the gasoline leak presented.
- CYes, because a reasonable person in the man's position would have warned the mechanic about the gasoline leak.
- DYes, because the car was unreasonably dangerous when the man delivered it to the mechanic
27A patient who had suffered a severe fracture of her leg was treated by an orthopedist, who set the patient’s leg and put it in a cast. When the leg continued to bother the patient six months later, she consulted a second orthopedist in the same town. The second orthopedist surgically inserted a pin to facilitate healing.
The patient brought a malpractice action against the first orthopedist, claiming that he should have surgically inserted a pin at the time of initial treatment.
The only evidence that the patient offered in support of her malpractice claim was the testimony of the second orthopedist, as follows:
In response to the question “Would you have inserted a pin initially?” the second orthopedist testified, “I personally would not have been satisfied that the leg would heal properly without a pin.”
At the close of the patient’s evidence, the first orthopedist moved for judgment as a matter of law. Should the motion be granted?- ANo, because the patient has introduced evidence that the first orthopedist failed to give the care that the second orthopedist would have provided.
- BNo, because the second orthopedist practices in the same town and field of specialty as the first orthopedist.
- CYes, because the patient has failed to introduce evidence that the first orthopedist’s care fell below the professional standard of care.
- DYes, because the second orthopedist also treated the patient and is thus not sufficiently objective to offer expert testimony.
28A company set up a website for the advertisement of goods and services offered by individuals, as well as other public notices.
One of the notices on the site announced that the furnishings in a home at a specified address were free for the taking. Within a few hours of the posting, all the furnishings had been taken.
The notice had been placed by the homeowner’s cousin without the homeowner’s knowledge. The cousin bore a grudge against the homeowner and had placed the notice while the homeowner was away and had left the door to the home unlocked.
In a negligence action brought by the homeowner against the company, what will be the company’s strongest defense?- AThe company had no duty to the homeowner.
- BThe cousin’s actions were a proximate cause of the homeowner’s loss.
- CThe First Amendment prohibits all tort actions based upon mere speech.
- DThere is no evidence of careless conduct by the company.
29A hiker, although acting with reasonable care, fell while attempting to climb a mountain and lay unconscious and critically injured on a ledge that was difficult to reach. The plaintiff, an experienced mountain climber, was himself seriously injured while trying to rescue the hiker. The plaintiff's rescue attempt failed, and the hiker died of his injuries before he could be reached.
The plaintiff brought an action against the hiker's estate for compensation for his injuries. In this jurisdiction, the traditional common-law rules relating to contributory negligence and assumption of risk remain in effect.
Will the plaintiff prevail in his action against the hiker's estate?- AYes, because his rescue attempt was reasonable.
- BYes, because the law should not discourage attempts to assist persons in helpless peril
- CNo, because the hiker's peril did not arise from his own failure to exercise reasonable care.
- DNo, because the plaintiff's rescue attempt failed and therefore did not benefit the hiker.
30A 13-year-old girl was operating a high-speed motorboat. The boat was towing a 9-year-old boy in an inner tube tied to the rear of the motorboat by a rope. The rope became tangled around the boy’s foot, causing him to suffer severe injuries.
In a suit brought on the boy’s behalf against the girl, the boy has introduced uncontroverted evidence that the girl drove carelessly in such a way as to entangle the boy in the rope.
Is the boy likely to prevail?- ANo, because the boy assumed the risk.
- BNo, because the girl was too young to be expected to appreciate and avoid the risk she exposed the boy to.
- CYes, because children of the girl’s age should have the capacity to operate motorboats.
- DYes, because the girl will be held to an adult standard of care.
31A vintner is the owner of a large vineyard and offers balloon rides to visitors who wish to tour the grounds from the air. During one of the rides, the vintner was forced to make a crash landing on his own property due to high winds. Without the vintner's knowledge or consent, a trespasser had entered the vineyard to camp for a couple of days. The trespasser was injured when he was hit by the basket of the descending balloon.
If the trespasser sues the vintner to recover damages for his injuries, will the trespasser prevail?- ANo, because there is no evidence that the crash landing was made necessary by the vintner's negligence.
- BNo, because the vintner was unaware of the trespasser's presence until after the injury had occurred.
- CYes, because even a trespasser may recover for injuries caused by an abnormally dangerous activity.
- DYes, because the accident occurred at a place which the vintner knew was frequented by intruders.
32A 14-year-old girl of low intelligence received her parents' permission to drive their car. She had had very little experience driving a car and did not have a driver's license. Although she did the best she could, she lost control of the car and hit a pedestrian.
The pedestrian has brought a negligence action against the girl. Is the pedestrian likely to prevail?- ANo, because only the girl's parents are subject to liability.
- BNo, because the girl was acting reasonably for a 14-year-old of low intelligence and little driving experience.
- CYes, because the girl was engaging in an adult activity.
- DYes, because the girl was not old enough to obtain a driver's license.
33
A trucker driving down an isolated country road late one night struck cattle that had escaped from a farmer’s pen and wandered into the road. The trucker was unable to stop before hitting the cattle but was not driving carelessly. While he was not injured in the collision, the trucker sustained damage to his truck and lost income during the time it took to repair the truck.
The trucker sued the farmer for his damages and invoked the doctrine of res ipsa loquitur. At trial, the farmer introduced evidence that his cattle pen was of a sufficient height to prevent cattle from stepping over it and was constructed of thick steel pipe sitting in concrete with a substantial top rail. A sturdy pen such as this one would be more difficult for cattle to break through than one constructed of barbed wire or electric wire.
Should the trial court allow the case to go to the jury with a res ipsa loquitur instruction?- ANo, because it is possible that a third party wrongfully let the cattle out of the pen.
- BNo, because the trucker must submit direct evidence of negligence in order to invoke the res ipsa loquitur doctrine.
- CYes, because the farmer is strictly liable for harm caused by his escaping cattle.
- DYes, because the jury could conclude that cattle would not ordinarily escape a strong, secure cattle pen in the absence of negligence.
34
A blasting company was conducting blasting operations in connection with a highway-widening project. Prior to setting off a charge, the blasting company supervisor posted a large warning sign and stationed a flagman to stop automobiles along the highway. Although a motorist saw and understood both the sign and the flagman’s instruction to stop, the motorist nonetheless continued past the flagman and the sign and was traveling along the highway at the moment of the blast. A flying rock from the blast hit and severely damaged the motorist’s car.
The jurisdiction follows the traditional common law rules governing contributory negligence and assumption of risk.
If the motorist pursues a claim against the blasting company to recover for the damage to the car, and all the foregoing facts are established, how much should the motorist recover?- AThe full value of the car.
- BThe full cost of restoring the car to its condition just before the accident.
- CThe full cost of restoring the car to its condition just before the accident, reduced by the percentage by which the motorist’s conduct contributed to the accident.
- DNothing.
35A hot-air balloon touring company operated near a golf course. The company’s property was separated from the golf course by a fence on which the company had posted signs warning people not to enter the property because of the dangers of balloons landing.
A golfer on the golf course hit an errant shot onto the company’s property, ignored the warning signs, and jumped over the fence to retrieve her golf ball. At about the same time, one of the company’s balloons experienced mechanical problems and had to make an emergency landing to avoid crashing. The balloon, which was out of control when it landed, struck the golfer and injured her.
The jurisdiction has decided that hot-air ballooning is an abnormally dangerous activity.
In an action by the golfer against the company, does the company have any affirmative defenses?- ANo, because the balloon was out of control when it struck the golfer.
- BNo, because the company was engaged in an abnormally dangerous activity.
- CYes, because the balloon landed to avoid crashing.
- DYes, because the golfer assumed the risk by coming onto the company’s property.
36A security guard, dressed in plain clothes, was working for a discount store when a customer got into a heated argument with a cashier over the store’s refund policy. Without identifying himself as a security guard, the security guard suddenly grabbed the customer’s arm. The customer attempted to push the security guard away, and the security guard knocked the customer to the floor, causing injuries. The customer sued the discount store for battery on a theory of vicarious liability for the injuries caused by the security guard.
The store filed an answer to the customer’s complaint, asserting the affirmative defense of contributory negligence. The customer has moved to strike the affirmative defense. Traditional rules of contributory negligence apply.
Should the trial court grant the customer’s motion?- ANo, because contributory negligence is an affirmative defense to a cause of action based on vicarious liability.
- BNo, because the customer should have known that his argument with the cashier might provoke an action by a security guard.
- CYes, because contributory negligence is not a defense to battery.
- DYes, because the customer did not know that he was pushing away someone who was employed as a security guard.
37Toxic materials being transported by truck from a manufacturer's plant to a warehouse leaked from the truck onto the street a few miles from the plant. A driver lost control of his car when he hit the puddle of spilled toxic materials on the street, and he was injured when his car hit a stop sign.
In an action for damages by the driver against the manufacturer based on strict liability, is the driver likely to prevail?- ANo, because the driver's loss of control was an intervening cause.
- BNo, because the driver's injury did not result from the toxicity of the materials.
- CYes, because the manufacturer is strictly liable for leaks of its toxic materials.
- DYes, because the leak occurred near the manufacturer's plant.
38
A plaintiff suffered a severe loss when his manufacturing plant, located in a shallow ravine, was flooded during a sustained rainfall. The flooding occurred because the city had failed to maintain its storm drain, which was located on city land above the plaintiff's premises, and because a railroad had failed to maintain its storm drain, which was located on railroad land below the plaintiff's premises. The flooding would not have occurred if either one of the two storm drains had been maintained properly.
The plaintiff sued the railroad to recover compensation for his loss. The evidence in the case established that the failures of the two drains were caused by the respective negligence of the city and the railroad. There is no special rule insulating the city from liability.
In his action against the railroad, the plaintiff should recover- Anothing, because he should have joined the city, without whose negligence he would have suffered no loss.
- Bnothing, because he did not introduce evidence that enables the court reasonably to apportion responsibility between the city and the railroad.
- Cone-half his loss, in the absence of evidence that enables the court to allocate responsibility fairly between the city and the railroad.
- Dall of his loss, because but for the railroad's negligence none of the flooding would have occurred.
39A landlord owns and operates a 12-story apartment building containing 72 apartments, 70 of which are rented. A pedestrian has brought an action against the landlord alleging that while he was walking along a public sidewalk adjacent to the landlord's apartment building a flower pot fell from above and struck him on the shoulder, causing extensive injuries. The action was to recover damages for those injuries.
If the pedestrian proves the foregoing facts and offers no other evidence explaining the accident, will his claim survive a motion for directed verdict offered by the defense?- AYes, because the pedestrian was injured by an artificial condition of the premises while using an adjacent public way.
- BYes, because such an accident does not ordinarily happen in the absence of negligence.
- CNo, because the landlord is in no better position than the pedestrian to explain the accident.
- DNo, because there is no basis for a reasonable inference that the landlord was negligent.
40A customer fell and injured himself when he slipped on a banana peel while shopping at a grocery store. The banana peel was fresh and unblemished except for a mark made by the heel of the customer’s shoe. In an action brought by the customer against the store, these are the only facts in evidence.
Should the trial judge permit the case to go to the jury?- ANo, because the customer had an obligation to watch where he stepped.
- BNo, because there is not a reasonable basis for inferring that the store knew or should have known of the banana peel.
- CYes, because it is more likely than not that the peel came from a banana offered for sale by the grocer.
- DYes, because the store could foresee that a customer might slip on a banana peel.
41A hiker sustained a head injury when he was struck by a limb that fell from a tree. At the time of his injury, the hiker was walking through a forest on private property without the property owner’s knowledge or permission. It was determined that the limb fell because the tree was infested with termites.
In an action by the hiker against the property owner to recover for his head injury, will the hiker be likely to prevail?- ANo, because the property owner could not foresee that anyone would be injured.
- BNo, because the property owner breached no duty to the hiker, who was a trespasser.
- CYes, because the property owner had a duty to prevent the trees on his property from becoming dangerous.
- DYes, because the property owner is liable for hidden dangers on his property.
42A defendant negligently caused a fire in his house, and the house burned to the ground. As a result, the sun streamed into the plaintiff's yard next door, which previously had been shaded by the defendant's house. The sunshine destroyed some delicate and valuable trees in the plaintiff's yard that could grow only in the shade. The plaintiff has brought a negligence action against the defendant for the loss of the plaintiff's trees. The defendant has moved to dismiss the complaint.
The best argument in support of this motion would be that- Athe defendant's negligence was not the active cause of the loss of the plaintiff's trees.
- Bthe defendant's duty to avoid the risks created by a fire did not encompass the risk that sunshine would damage the plaintiff's trees.
- Cthe loss of the trees was not a natural and probable consequence of the defendant's negligence.
- Dthe plaintiff suffered a purely economic loss, which is not compensable in a negligence action.
43A man's car sustained moderate damage in a collision with a car driven by a woman. The accident was caused solely by the woman's negligence. The man's car was still drivable after the accident. Examining the car the next morning, the man could see that a rear fender had to be replaced. He also noticed that gasoline had dripped onto the garage floor. The collision had caused a small leak in the gasoline tank.
The man then took the car to a mechanic, who owns and operates a body shop, and arranged with the mechanic to repair the damage. During their discussion the man neglected to mention the gasoline leakage. Thereafter, while the mechanic was loosening some of the damaged material with a hammer, he caused a spark, igniting vapor and gasoline that had leaked from the fuel tank. The mechanic was severely burned.
The mechanic has brought an action to recover damages against the man and woman. The jurisdiction has adopted a pure comparative negligence rule in place of the traditional common law rule of contributory negligence.
In this action, will the mechanic obtain a judgment against the woman?- ANo, because there is no evidence that the woman was aware of the gasoline leak.
- BNo, because the mechanic would not have been harmed had the man warned him about the gasoline tank.
- CYes, because the mechanic was not negligent in failing to discover the gasoline leak himself.
- DYes, because the mechanic's injury was a proximate consequence of the woman's negligent driving.
44A traveler was a passenger on a commercial aircraft owned and operated by an airline. The aircraft crashed into a mountain, killing everyone on board. The flying weather was good.
The traveler's legal representative brought a wrongful death action against the airline. At trial, the legal representative offered no expert or other testimony as to the cause of the crash.
On the airline's motion to dismiss at the conclusion of the legal representative's case, the court should- Agrant the motion, because the legal representative has offered no evidence as to the cause of the crash.
- Bgrant the motion, because the legal representative has failed to offer evidence negating the possibility that the crash may have been caused by mechanical failure that the airline could not have prevented.
- Cdeny the motion, because the jury may infer that the aircraft crashed due to the airline's negligence.
- Ddeny the motion, because in the circumstances common carriers are strictly liable.
45
The plaintiff was a passenger in a car that was struck in the rear by a car driven by a student. The collision resulted from the student's negligence in failing to keep a proper lookout. The plaintiff's physician found that the collision had aggravated a mild osteoarthritic condition in her lower back and had brought on similar, but new, symptoms in her neck and upper back.
Six months after the first accident, the plaintiff was a passenger in a car that was struck in the rear by a car driven by a doctor. The collision resulted from the doctor's negligence in failing to keep a proper lookout. The plaintiff's physician found that the second collision had caused a general worsening of the plaintiff's condition, marked by a significant restriction of movement and muscle spasms in her back and neck. The physician believes the plaintiff's worsened condition is permanent, and he can find no basis for apportioning responsibility for her present worsened condition between the two automobile collisions.
The plaintiff brought an action for damages against the student and the doctor. At the close of the plaintiff's evidence, as outlined above, each of the defendants moved for a directed verdict in his favor on the ground that the plaintiff had failed to produce evidence on which the jury could determine how much damage each defendant had caused. The jurisdiction adheres to the common law rules regarding joint and several liability.
The plaintiff's best argument in opposition to the defendants' motions would be that the defendants are jointly and severally liable for the plaintiff's entire harm, because- Athe wrongdoers, rather than their victim, should bear the burden of the impossibility of apportionment.
- Bthe defendants breached a common duty that each of them owed to the plaintiff.
- Ceach of the defendants was the proximate cause in fact of all of the plaintiff's damages.
- Dthe defendants are joint tortfeasors who aggravated the plaintiff's preexisting condition.
46A supermarket is in a section of town where there are sometimes street fights and where pedestrians are occasionally the victims of pickpockets and muggers. In recognition of the unusual number of robberies in the area, the supermarket posted signs in the store that read:
"Warning: There are pickpockets and muggers at work in this part of the city. The supermarket is not responsible for the acts of criminals."
Other than posting the signs, the supermarket took no other precautions to prevent criminal activity on the premises.
One evening, a customer drove to the supermarket to see about a special on turkeys that the supermarket was advertising. She decided that the turkeys were too large and left the store without purchasing anything. In the parking lot, she was attacked by an unknown man who raped her and then ran away.
If the customer sues the supermarket, the result should be for the- Aplaintiff, because the supermarket failed to take reasonable steps to protect customers against criminal attack in its parking lot.
- Bplaintiff, because the supermarket is liable for harm to business invitees on its premises.
- Cdefendant, because the warning signs were visible to the customer.
- Ddefendant, because the rapist was the proximate cause of the customer's injuries.
47A man rented a car from a car rental agency. Unbeknownst to the rental agency, the car had a bomb hidden in it at the time of the rental. The bomb exploded an hour later, injuring the man.
Immediately prior to renting the car to the man, the rental agency had carefully inspected the car to be sure it was in sound operating condition. The rental agency did not inspect for hidden explosive devices, but such an inspection would have revealed the bomb.
There had been no previous incidents of persons hiding bombs in rental cars.
In a negligence action by the man against the car rental agency, is the man likely to prevail?- ANo, because the rental agency could not have reasonably foreseen the likelihood of someone placing a bomb in the car it was about to rent to the man.
- BNo, because the rental agency did not hide the bomb in the car.
- CYes, because an inspection for explosive devices would have revealed the bomb.
- DYes, because the bomb made the car abnormally dangerous.
48While driving his pickup truck with a friend riding in the open bed, the driver swerved, throwing his friend to the pavement. The friend sustained severe injuries. The friend had often ridden in the open bed of the truck, and on some of those occasions the driver had swerved to frighten his friend. The friend sued the driver to recover both compensatory damages for his injuries and punitive damages.
Which cause of action would NOT permit the friend to recover punitive damages?- AAssault.
- BBattery.
- CNegligence.
- DRecklessness.
49A patron ate a spicy dinner at a restaurant on Sunday night. He enjoyed the food and noticed nothing unusual about the dinner.
Later that evening, the patron had an upset stomach. He slept well through the night, went to work the next day, and ate three meals. His stomach discomfort persisted, and by Tuesday morning he was too ill to go to work.
Eventually, the patron consulted his doctor, who found that the patron was infected with a bacterium that can be contracted from contaminated food. Food can be contaminated when those who prepare it do not adequately wash their hands.
The patron sued the restaurant for damages. He introduced testimony from a health department official that various health code violations had been found at the restaurant both before and after the patron's dinner, but that none of the restaurant's employees had signs of bacterial infection when they were tested one month after the incident.
The restaurant's best argument in response to the patron's suit would be that- Ano one else who ate at the restaurant on Sunday complained about stomach discomfort.
- Bthe restaurant instructs its employees to wash their hands carefully and is not responsible if any employee fails to follow these instructions.
- Cthe patron has failed to establish that the restaurant's food caused his illness.
- Dthe patron assumed the risk of an upset stomach by choosing to eat spicy food.
50A sporting goods shop was burglarized by an escaped inmate from a nearby prison. The inmate stole a rifle and bullets from a locked cabinet. The burglar alarm at the shop did not go off because the shop's owner had negligently forgotten to activate the alarm's motion detector.
Shortly thereafter, the inmate used the rifle ammunition stolen from the shop in a shooting spree that caused injury to several people, including the plaintiff.
If the plaintiff sues the shop's owner for the injury she suffered, will the plaintiff prevail?- AYes, because the plaintiff's injury could have been prevented had the motion detector been activated.
- BYes, because the shop's owner was negligent in failing to activate the motion detector.
- CNo, because the storage and sale of firearms and ammunition is not an abnormally dangerous activity.
- DNo, because there is no evidence of circumstances suggesting a high risk of theft and criminal use of firearms stocked by the shop's owner.
51A mother rushed her eight-year-old daughter to the emergency room at a local hospital after the child fell off her bicycle and hit her head on a sharp rock. The wound caused by the fall was extensive and bloody.
The mother was permitted to remain in the treatment room, and held the child's hand while the emergency room physician cleaned and sutured the wound. During the procedure, the mother said that she was feeling faint and stood up to leave the room. While leaving the room, the mother fainted and, in falling, struck her head on a metal fixture that protruded from the emergency room wall. She sustained a serious injury as a consequence.
If the mother sues the hospital to recover damages for her injury, will she prevail?- AYes, because the mother was a public invitee of the hospital's.
- BYes, because the fixture was not an obvious, commonly used, and essential part of the hospital's equipment.
- CNo, because there is no evidence that the hospital's personnel failed to take reasonable steps to anticipate and prevent the mother's injury.
- DNo, because the hospital's personnel owed the mother no affirmative duty of care.
52A plaintiff sustained personal injuries in a three-vehicle collision caused by the concurrent negligence of all three drivers. In the plaintiff's action for damages against the other two drivers, the jury apportioned the negligence 30% to the plaintiff, 30% to a truck driver, and 40% to a cab driver. The plaintiff's total damages were $100,000.
Assume that the state has retained the common-law rule pertaining to contribution and that the state's comparative negligence statute provides for a system of pure comparative negligence but abolishes joint and several liability.
If the plaintiff chooses to pursue the claim against the truck driver alone, she will be entitled to collect at most- A$70,000 from the truck driver, and then the truck driver will be entitled to collect $40,000 from the cab driver.
- B$30,000 from the truck driver, and then the truck driver will be entitled to collect $10,000 from the cab driver.
- C$30,000 from the truck driver, and then the truck driver will be entitled to collect nothing from the cab driver.
- Dnothing from the truck driver, because his percentage of fault is not greater than that of the plaintiff.
53A driver was driving his car near a homeowner's house when the homeowner's child darted into the street in front of the driver's car. As the driver swerved and braked his car to avoid hitting the child, the car skidded up into the homeowner's driveway and stopped just short of the homeowner, who was standing in the driveway and had witnessed the entire incident. The homeowner suffered from serious emotional distress from witnessing the danger to his child and to himself. Neither the homeowner nor his property was physically harmed.
If the homeowner asserts a claim for damages against the driver but is unable to establish that the driver was negligent, will the homeowner still be able to prevail?- AYes, because the driver's entry onto the homeowner's land was unauthorized.
- BYes, because the homeowner suffered serious emotional distress by witnessing the danger to his child and to himself.
- CNo, because the homeowner failed to show that the driver was negligent.
- DNo, because the homeowner's child was not exercising reasonable care.
54A graduate student who was moving needed cardboard boxes, so she went to her usual grocery store to look for some. The store regularly gave repeat customers empty boxes to promote goodwill. Seeing no boxes outside, the student entered the store and asked a store employee for help. The employee pointed toward the rear of the store and said that all the empty boxes were in the storeroom.
The student went into the storeroom through a door with a sign that said: “Keep Out. Employees Only.” While in the storeroom, she tripped on a fold in a floor mat and fell into a stack of wooden crates. The topmost crate fell on the student, causing a head injury.
The student has sued the store to recover for her injury.
Which statement below is the most appropriate characterization of the student and her conduct under traditional common law rules?- AThe student assumed the risk, because she knew that the storeroom was not normally accessible to the public.
- BThe student was a licensee in the store, because she had no intention of making a purchase at the store during the box-hunting visit.
- CThe student was a trespasser in the storeroom, because she ignored the sign on the door barring entrance to the storeroom.
- DThe student was an invitee in the storeroom, because she had permission to enter the storeroom consistent with the store’s policy of making its empty boxes available to repeat customers.
55A patient in a hospital was placed in a wheelchair with his broken leg extended straight out in front of him. As a nurse employed by the hospital was pushing the wheelchair through a set of automatic doors at a normal pace, the doors closed on the patient’s foot, injuring it. The nurse attempted to pull the wheelchair back through the doors. This action caused the doors to close more tightly on the patient’s foot, injuring it further.
The patient sued the hospital, alleging improper maintenance of the doors. The patient has produced no evidence of specific conduct or neglect on the part of the hospital that would have caused the automatic doors to malfunction. The hospital has moved for summary judgment.
Should the court grant the hospital’s motion?- ANo, because a jury could find that there was a latent defect in the doors.
- BNo, because a jury could find the hospital liable for negligence based on res ipsa loquitur.
- CYes, because proof of an accident, by itself, does not establish that an injured person was a victim of negligence.
- DYes, because the nurse’s action was a superseding cause of the injury.
56A driver negligently ran into a pedestrian who was walking along a road. The pedestrian sustained an injury to his knee, causing it to buckle from time to time. Several months later, the pedestrian sustained an injury to his shoulder when his knee buckled, causing him to fall down a flight of stairs. The pedestrian then brought an action against the driver for the injuries to his knee and shoulder.
In his action against the driver, for which of his injuries may the pedestrian recover damages?- AFor the injuries to his knee and shoulder, because the driver takes the victim as he finds him.
- BFor the injuries to his knee and shoulder, if the jury finds that the pedestrian’s fall down a flight of stairs was a normal consequence of his original injury.
- CFor the injury to his knee only, because the injury to the pedestrian’s shoulder is separable.
- DFor the injury to his knee only, if the jury finds that the driver could not have foreseen that his negligent driving would cause the pedestrian to fall down a flight of stairs.
57
A patient received anesthesia while giving birth. Upon awakening from the anesthesia, she discovered a severe burn on the inner portion of her right knee. The patient has brought a medical malpractice action in which she has joined all of the physicians and nurses who exercised control over her person, the delivery room, the medical procedures, and the equipment used during the period in which she was unconscious.
The defendants have jointly moved for summary judgment. The patient has produced affidavits that establish that the applicable professional standard of care was violated.
What would be the patient’s best argument against the motion?- AAt least one of the defendants had control over whatever agency or instrumentality caused the patient’s injury.
- BThe defendants were acting in concert.
- CThe patient has produced affidavits that establish that the applicable professional standard of care was violated.
- DThe patient was in no way responsible for her injury.
58A surgeon performed a sterilization operation on a patient. After the surgery, the surgeon performed a test that showed that the patient's fallopian tubes were not severed, as was necessary for sterilization. The surgeon did not reveal the failure of the operation to the patient, who three years later became pregnant and delivered a baby afflicted with a severe birth defect that will require substantial medical care throughout its life. The birth defect resulted from a genetic defect unknown to, and undiscoverable by, the surgeon. The patient brought an action on her own behalf against the surgeon, seeking to recover the cost of her medical care for the delivery of the baby, and the baby's extraordinary future medical expenses for which the patient will be responsible.
Which of the following questions is relevant to the lawsuit and currently most difficult to answer?- ADid the surgeon owe a duty of care to the baby with respect to medical services rendered to the patient three years before the baby was conceived?
- BCan a person recover damages for a life burdened by a severe birth defect based on a physician's wrongful failure to prevent that person's birth from occurring?
- CDid the surgeon owe a duty to the patient to inform her that the sterilization operation had failed?
- DIs the patient entitled to recover damages for the baby's extraordinary future medical expenses?
59While driving his car, the plaintiff sustained injuries in a three-vehicle collision. The plaintiff sued the drivers of the other two vehicles, a truck and a bus, and each defendant crossclaimed against the other for contribution. The jurisdiction has adopted a rule of pure comparative negligence and allows contribution based upon proportionate fault. The rule of joint and several liability has been retained.
The jury has found that the plaintiff sustained damages in the amount of $100,000, and apportioned the causal negligence of the parties as follows: The plaintiff 40%, the truck driver 30%, and the bus driver 30%.
How much, if anything, can the plaintiff collect from the truck driver, and how much, if anything, can the truck driver then collect from the bus driver in contribution?- ANothing, and then the truck driver can collect nothing from the bus driver.
- B$30,000, and then the truck driver can collect nothing from the bus driver.
- C$40,000, and then the truck driver can collect $10,000 from the bus driver.
- D$60,000, and then the truck driver can collect $30,000 from the bus driver.
60A man and his friend, who were both adults, went to a party. The man and the friend had many drinks at the party and became legally intoxicated. They decided to play a game of chance called "Russian roulette" using a gun loaded with one bullet. As part of the game, the man pointed the gun at the friend and, on her command, pulled the trigger. The man shot the friend in the shoulder.
The friend has brought a negligence action against the man. Traditional defenses based on plaintiff's conduct apply. What is likely to be the dispositive issue in this case?- AWhether the game constituted a joint venture.
- BWhether the friend could validly consent to the game.
- CWhether the friend was also negligent.
- DWhether the man was legally intoxicated when he began playing the game.
61A trucking company employed nine salaried dispatchers to ensure that its truck fleet operated according to schedule. Two years ago, as a cost-saving measure, the company reduced the number of dispatchers to six, and each of the remaining dispatchers had to work substantially longer hours.
One of the remaining dispatchers complained to his supervisor that the stress and fatigue associated with the new working conditions were too much for him to handle. The supervisor told the dispatcher that he should quit if he couldn’t handle the increased hours.
Over the next three months, the dispatcher continued to complain about the working conditions, to no effect. The dispatcher suffered severe emotional distress from the working conditions, but no physical injury. He eventually was hospitalized and had to miss several months of work as a result of the emotional distress.
The dispatcher sued the trucking company for negligence. The company has moved for summary judgment, based on the undisputed facts set out above. Assume that there is no applicable workers’ compensation statute.
How should the court rule on the motion?- ADeny the motion, because the jury must determine the extent of the emotional distress suffered by the dispatcher.
- BDeny the motion, because there is evidence from which a jury could reasonably conclude that the supervisor failed to act with ordinary care.
- CGrant the motion, because the dispatcher suffered no physical injury.
- DGrant the motion, because there is no evidence from which a jury could reasonably conclude that the supervisor acted carelessly with respect to the dispatcher’s emotional well-being.
62
A man's father died in a hospital. The hospital maintains a morgue with refrigerated drawers a bit larger than the human body. The decedent's body was placed in such a drawer awaiting pickup by a mortician. Before the mortician called for the body, a hospital orderly placed two opaque plastic bags in the drawer with the decedent's body. One bag contained the decedent's personal effects, and the other contained an amputated leg from some other hospital
patient. It is stipulated that the hospital was negligent to allow the amputated leg to get into the decedent's drawer. The mortician delivered the two opaque plastic bags to the man, assuming both contained personal effects. The man was shocked when he opened the bag containing the amputated leg. The man sued the hospital to recover for emotional distress. At the trial, the man testified that the experience had been extremely upsetting, that he had had recurring nightmares about it, and that his family and business relationships had been adversely affected for a period of several months. He did not seek medical or psychiatric treatment for his emotional distress.
Who should prevail?- AThe man, because of the sensitivity people have regarding the care of the bodies of deceased relatives.
- BThe man, because hospitals are strictly liable for mishandling dead bodies.
- Cthe hospital, because the man did not require medical or psychiatric treatment.
- Dthe hospital, because the man suffered no bodily harm.
63A pedestrian was crossing a street in a crosswalk when a woman walking just ahead of him was hit by a truck. The pedestrian, who had jumped out of the way of the truck, administered CPR to the woman, who was a stranger. The woman bled profusely, and the pedestrian was covered in blood. The woman died in the ambulance on the way to the hospital. The pedestrian became very depressed immediately after the incident and developed physical symptoms as a result of his emotional distress.
The pedestrian has brought an action against the driver of the truck for negligent infliction of emotional distress. In her defense, the driver asserts that she should not be held liable, because the pedestrian's emotional distress and resulting physical symptoms are not compensable.
What is the strongest argument that the pedestrian can make in response to the driver's defense?- AThe pedestrian saw the driver hit the woman.
- BThe pedestrian was acting as a Good Samaritan.
- CThe pedestrian was covered in the woman's blood and developed physical symptoms as a result of his emotional distress.
- DThe pedestrian was in the zone of danger.
64A plaintiff entered a drug store to make some purchases. As he was searching the aisles for various items, he noticed a display card containing automatic pencils. The display card was on a high shelf behind a cashier's counter. The plaintiff saw a sign on the counter that read, "No Admittance, Employees Only." Seeing no clerks in the vicinity to help him, the plaintiff went behind the counter to get a pencil. A clerk then appeared behind the counter and asked whether she could help him. He said he just wanted a pencil and that he could reach the display card himself. The clerk said nothing further. While reaching for the display card, the plaintiff stepped sideways into an open shaft and fell to the basement, 10 feet below. The clerk knew of the presence of the open shaft, and had reason to believe that the plaintiff had not noticed it when stepping behind the counter.
The plaintiff sued the drug store to recover damages for the injuries he sustained in the fall. The jurisdiction has adopted a rule of pure comparative negligence, and it follows traditional common-law rules governing the duties of a land possessor.
Will the plaintiff recover a judgment against the drug store?- ANo, because the plaintiff was a trespasser.
- BNo, because the plaintiff's injuries did not result from the defendant's willful or wanton misconduct.
- CYes, because the premises were defective with respect to a public invitee.
- DYes, because the clerk had reason to believe that the plaintiff was unaware of the open shaft.
65A man's father died in a hospital. The hospital maintains a morgue with refrigerated drawers a bit larger than the human body. The decedent's body was placed in such a drawer awaiting pickup by a mortician. Before the mortician called for the body, a hospital orderly placed two opaque plastic bags in the drawer with the decedent's body. One bag contained the decedent's personal effects, and the other contained an amputated leg from some other hospital
patient. It is stipulated that the hospital was negligent to allow the amputated leg to get into the decedent's drawer. The mortician delivered the two opaque plastic bags to the man, assuming both contained personal effects. The man was shocked when he opened the bag containing the amputated leg. The man sued the hospital to recover for emotional distress. At the trial, the man testified that the experience had been extremely upsetting, that he had had recurring nightmares about it, and that his family and business relationships had been adversely affected for a period of several months. He did not seek medical or psychiatric treatment for his emotional distress.
Who should prevail?- AThe man, because of the sensitivity people have regarding the care of the bodies of deceased relatives.
- BThe man, because hospitals are strictly liable for mishandling dead bodies.
- Cthe hospital, because the man did not require medical or psychiatric treatment.
- Dthe hospital, because the man suffered no bodily harm.
66An eight-year-old child went to the grocery store with her mother. The child pushed the grocery cart while her mother put items into it. The child's mother remained near the child at all times. Another customer in the store noticed the child pushing the cart in a manner that caused the customer no concern. A short time later, the cart the child was pushing struck the customer in the knee, inflicting serious injury.
If the customer brings an action, based on negligence, against the grocery store, the store's best defense will be that- Aa store owes no duty to its customers to control the use of its shopping carts.
- Ba store owes no duty to its customers to control the conduct of other customers.
- Cany negligence of the store was not the proximate cause of the customer's injury.
- Da supervised child pushing a cart does not pose an unreasonable risk to other customers.
67During a comprehensive evaluation of an adult patient’s psychiatric condition, a psychiatrist failed to diagnose the patient’s suicidal state. One day after the misdiagnosis, the patient committed suicide. The patient’s father, immediately after having been told of his son’s suicide, suffered severe emotional distress, which resulted in a stroke. The patient’s father was not present at the patient’s appointment with the psychiatrist, nor did he witness the suicide. The father has brought an action against the psychiatrist to recover for his severe emotional distress and the resulting stroke.
Is the father likely to prevail?- ANo, because the father did not sustain a physical impact.
- BNo, because the psychiatrist’s professional duty did not extend to the harms suffered by the patient’s father.
- CYes, because the father was a member of the patient’s immediate family.
- DYes, because the psychiatrist reasonably could have foreseen that a misdiagnosis would result in the patient’s suicide and the resulting emotional distress of the patient’s father.
68A schizophrenic patient who was institutionalized in a psychiatric facility pushed a nurse down a stairwell at the facility. The nurse, a paid employee of the facility who was trained to care for schizophrenic patients, was injured. The patient is an indigent whose care is paid for by the government.
The jurisdiction generally follows the rule that a person with a mental deficiency is held to the standard of a reasonable person. In a negligence action brought by the nurse against the patient, the patient’s lawyer will argue that the patient should not be held responsible for the nurse’s injury.
Which of the following facts will be LEAST helpful to the patient’s lawyer’s argument?- AThe nurse was a professional caregiver.
- BThe nurse was trained to care for patients with schizophrenia.
- CAt the time she pushed the nurse, the patient thought she was being attacked by an elephant.
- DThe patient is an indigent whose care is paid for by the government.
69An eight-year-old child went to the grocery store with her mother. The child pushed the grocery cart while her mother put items into it. The child's mother remained near the child at all times. Another customer in the store noticed the child pushing the cart in a manner that caused the customer no concern. A short time later, the cart the child was pushing struck the customer in the knee, inflicting serious injury.
If the customer brings an action, based on negligence, against the child, the child's best argument in defense would be that- AThe child exercised care commensurate with her age, intelligence, and experience.
- BThe child is not subject to tort liability.
- CThe child was subject to parental supervision.
- DThe customer assumed the risk that the child might hit the customer with the cart.
70A fire that started in the defendant’s warehouse spread to the plaintiff’s adjacent warehouse. The defendant did not intentionally start the fire, and the plaintiff can produce no evidence as to how the fire started. However, the defendant had failed to install a sprinkler system, which was required by a criminal statute. The plaintiff can produce evidence that had the sprinkler system been installed, it could have extinguished the fire before it spread.
In an action by the plaintiff against the defendant to recover for the fire damage, is it possible for the plaintiff to prevail?- ANo, because the statute provides only for criminal penalties.
- BNo, because there is no evidence that the defendant negligently caused the fire to start.
- CYes, because a landowner is strictly liable for harm to others caused by the spread of fire from his premises under the doctrine of Rylands v. Fletcher.
- DYes, because the plaintiff was harmed as a result of the defendant’s violation of a statute that was meant to protect against this type of occurrence.
71A recently installed elevator suddenly started free-falling down the elevator shaft while carrying passengers. Frightened, a passenger pried the inside doors open and impulsively stuck his arm through them to try to stop the fall. As a result, his arm was broken. The elevator eventually stopped without causing further injuries.
In a negligence action brought by the injured passenger against the company that installed and maintained the elevator, the injured passenger has asked the trial judge to instruct the jury that it may find the company negligent on a theory of res ipsa loquitur. In response, the company has argued that the passenger’s conduct caused his injuries.
How should the judge rule?- AThe judge should deny the passenger’s request, because it is possible that the company was not negligent.
- BThe judge should deny the passenger’s request, because the jury could find that the conduct of the passenger contributed to his injuries.
- CThe judge should grant the passenger’s request but should also instruct the jurors to consider any carelessness of the passenger in awarding damages if they find the company liable.
- DThe judge should grant the passenger’s request, because the passenger acted reasonably considering the stress of the situation.
72In an action brought against a defendant by a pedestrian's legal representative, the only proof that the legal representative offered on liability were that: (1) the pedestrian was killed instantly while walking on the shoulder of the highway; (2) the defendant was driving the car that struck the pedestrian; and (3) there were no living witnesses to the accident other than the defendant, who denied negligence.
The jurisdiction has adopted a rule of pure comparative negligence.
If, at the end of the plaintiff's case, the defendant moves for directed verdict, the trial judge should- Agrant the motion, because the legal representative has offered no specific evidence from which reasonable jurors may conclude that the defendant was negligent.
- Bgrant the motion, because it is just as likely that the pedestrian was negligent as that the defendant was negligent.
- Cdeny the motion, because the pedestrian was in violation of the state highway code.
- Ddeny the motion, because, in the circumstances, negligence on the part of the defendant may be inferred.
73
While visiting at his son’s home, a grandfather tripped on a toy left on the floor by his four-year- old grandson. The grandfather fell and was severely injured. The grandfather regularly visited his son’s home and was aware that the grandson routinely left toys scattered about the house. The son had never warned the grandfather to look out for toys.
The grandfather brought an action against his son to recover for his injuries, and both the grandfather and the son have moved for directed verdicts as to liability.
The jurisdiction has abolished intra-family immunity and applies the traditional rules of landowner liability. What action should the court take?- ADeny both motions and submit the case to the jury based on negligence.
- BDeny both motions and submit the case to the jury based on strict liability.
- CGrant the grandfather’s motion, because the son is liable as a matter of law for failing to warn about the risk of toys being left on the floor.
- DGrant the son’s motion, because the son had no duty to warn that the grandson might leave toys on the floor.
74An eight-year-old child went to the grocery store with her mother. The child pushed the grocery cart while her mother put items into it. The child's mother remained near the child at all times. Another customer in the store noticed the child pushing the cart in a manner that caused the customer no concern. A short time later, the cart the child was pushing struck the customer in the knee, inflicting serious injury.
Assume that the child was negligent and the child's mother did not adequately supervise the child. If the customer brings an action, based on negligence, against the child's mother, will the customer prevail?- AYes, because the child was negligent.
- BYes, because the child's mother is responsible for any harm caused by the child.
- CYes, because the child's mother assumed the risk of her child's actions.
- DYes, because the child's mother did not adequately supervise the child's actions.
75
In a civil action, a plaintiff sued a decedent’s estate to recover damages for injuries she suffered in a collision between her car and one driven by the decedent. At trial, the plaintiff introduced undisputed evidence that the decedent’s car had swerved across the centerline of the highway into oncoming traffic, where it had collided with the plaintiff’s car. The decedent’s estate introduced undisputed evidence that, before he swerved across the centerline, the decedent had suffered a fatal heart attack, which he had no reason to foresee, and that, just prior to the heart attack, the decedent had been driving at a reasonable speed and in a reasonable manner. A statute makes it a traffic offense to cross the centerline of a highway.
In this case, which party is likely to prevail?- AThe decedent’s estate, because its rebuttal evidence is undisputed.
- BThe decedent’s estate, because the plaintiff has not established a prima facie case of liability.
- CThe plaintiff, because the accident was of a type that does not ordinarily happen in the absence of negligence on the actor’s part.
- DThe plaintiff, because the decedent crossed the centerline in violation of the statute.
76A longshoreman fell to his death through an open hatch on the deck of a ship. The longshoreman was an employee of a company that had contracted with the ship’s owner to load and unload the ship. The fall occurred at night, when loading work was over for the day, and there was no reason for the longshoreman to have been near the hatch.
A negligence action was filed against the ship’s owner for the death of the longshoreman. In that action, the owner has moved for summary judgment and has provided unrebutted evidence that it is customary for the crews of ships to open the hatches for ventilation after the longshoremen have left the ships.
How should the court respond to the motion?- ADeny the motion and submit the case to the jury with instructions that the custom is relevant but not conclusive on the issue of negligence.
- BDeny the motion and submit the case to the jury with instructions that the ship’s owner should win if the longshoreman was improperly near the hatch.
- CDeny the motion, because the probability of serious injury caused by falling down an open hatch clearly outweighs the burden of keeping the hatch closed.
- DGrant the motion, because the custom should be considered conclusive on the issue of negligence.
77A defendant and a group of his friends are fanatical basketball fans who regularly meet at each others' houses to watch basketball games on television. Some of the group are fans of the home team, and others are fans of the rival team. When the group has watched televised games between these two teams, fights sometimes have broken out among the group. Despite this fact, the defendant invited the group to his house to watch a championship game between the home team and the rival team.
During the game, the defendant's guests became rowdy and antagonistic. Fearing that they would begin to fight, and that a fight would damage his possessions, the defendant asked his guests to leave. They refused to go and soon began to fight. The defendant called the police, and a police officer was sent to the defendant's home. The officer sustained a broken nose in his efforts to stop the fighting.
The officer brought an action against the defendant alleging that the defendant was negligent in inviting the group to his house to watch this championship game. The defendant has moved to dismiss the complaint.
The best argument in support of this motion would be that- Aa rescuer injured while attempting to avert a danger cannot recover damages from the endangered person.
- Ba police officer is not entitled to a recovery based upon the negligent conduct that created the need for the officer's professional intervention.
- Cas a matter of law, the defendant's conduct was not the proximate cause of the officer's injury.
- Dthe defendant did not owe the officer a duty to use reasonable care, because the officer was a mere licensee on the defendant's property.
78A bright 12-year-old child attended a day-care center after school. The center was located near a man-made duck pond on the property of a corporation. During the winter, the pond was used for ice-skating when conditions were suitable. At a time when the pond was obviously only partially frozen, the child sneaked away from the center’s property and walked out onto the ice over the pond. The ice gave way, and the child fell into the cold water. He suffered shock and would have drowned had he not been rescued by a passerby. At the time of the incident, the pond was clearly marked with numerous signs that stated, “THIN ICE—KEEP OFF.” When the child sneaked away from the day-care center, the center was staffed with a reasonable number of qualified employees, and the employees were exercising reasonable care to ensure that the children in their charge did not leave the premises. There had not been a previous instance of a child coming onto the corporation’s property from the day-care center. The jurisdiction follows a rule of pure comparative negligence.
In a suit brought on the child’s behalf against the day-care center and based only on the facts above, who is likely to prevail?- AThe child, because he left the center while he was under the center’s care.
- BThe child, because the day-care center is located near a pond.
- CThe day-care center, because it was not negligent.
- DThe day-care center, because the child was a trespasser.
79A trucking company employed nine salaried dispatchers to ensure that its truck fleet operated according to schedule. Two years ago, as a cost-saving measure, the company reduced the number of dispatchers to six, and each of the remaining dispatchers had to work substantially longer hours.
One of the remaining dispatchers complained to his supervisor that the stress and fatigue associated with the new working conditions were too much for him to handle. The supervisor told the dispatcher that he should quit if he couldn’t handle the increased hours.
Over the next three months, the dispatcher continued to complain about the working conditions, to no effect. The dispatcher suffered severe emotional distress from the working conditions, but no physical injury. He eventually was hospitalized and had to miss several months of work as a result of the emotional distress.
The dispatcher sued the trucking company for negligence. The company has moved for summary judgment, based on the undisputed facts set out above. Assume that there is no applicable workers’ compensation statute.
How should the court rule on the motion?- ADeny the motion, because the jury must determine the extent of the emotional distress suffered by the dispatcher.
- BDeny the motion, because there is evidence from which a jury could reasonably conclude that the supervisor failed to act with ordinary care.
- CGrant the motion, because the dispatcher suffered no physical injury.
- DGrant the motion, because there is no evidence from which a jury could reasonably conclude that the supervisor acted carelessly with respect to the dispatcher’s emotional well-being.
80During a comprehensive evaluation of an adult patient’s psychiatric condition, a psychiatrist failed to diagnose the patient’s suicidal state. One day after the misdiagnosis, the patient committed suicide. The patient’s father, immediately after having been told of his son’s suicide, suffered severe emotional distress, which resulted in a stroke. The patient’s father was not present at the patient’s appointment with the psychiatrist, nor did he witness the suicide. The father has brought an action against the psychiatrist to recover for his severe emotional distress and the resulting stroke.
Is the father likely to prevail?- ANo, because the father did not sustain a physical impact.
- BNo, because the psychiatrist’s professional duty did not extend to the harms suffered by the patient’s father.
- CYes, because the father was a member of the patient’s immediate family.
- DYes, because the psychiatrist reasonably could have foreseen that a misdiagnosis would result in the patient’s suicide and the resulting emotional distress of the patient’s father.
81A man's car sustained moderate damage in a collision with a car driven by a woman. The accident was caused solely by the woman's negligence. The man's car was still drivable after the accident. Examining the car the next morning, the man could see that a rear fender had to be replaced. He also noticed that gasoline had dripped onto the garage floor. The collision had caused a small leak in the gasoline tank.
The man then took the car to a mechanic, who owns and operates a body shop, and arranged with the mechanic to repair the damage. During their discussion the man neglected to mention the gasoline leakage. Thereafter, while the mechanic was loosening some of the damaged material with a hammer, he caused a spark, igniting vapor and gasoline that had leaked from the fuel tank. The mechanic was severely burned.
The mechanic has brought an action to recover damages against the man and woman. The jurisdiction has adopted a pure comparative negligence rule in place of the traditional common law rule of contributory negligence.
In this action, will the mechanic obtain a judgment against the woman?- ANo, because there is no evidence that the woman was aware of the gasoline leak.
- BNo, because the mechanic would not have been harmed had the man warned him about the gasoline tank.
- CYes, because the mechanic was not negligent in failing to discover the gasoline leak himself.
- DYes, because the mechanic's injury was a proximate consequence of the woman's negligent driving.
82While visiting at his son’s home, a grandfather tripped on a toy left on the floor by his four-year- old grandson. The grandfather fell and was severely injured. The grandfather regularly visited his son’s home and was aware that the grandson routinely left toys scattered about the house. The son had never warned the grandfather to look out for toys.
The grandfather brought an action against his son to recover for his injuries, and both the grandfather and the son have moved for directed verdicts as to liability.
The jurisdiction has abolished intra-family immunity and applies the traditional rules of landowner liability. What action should the court take?- ADeny both motions and submit the case to the jury based on negligence.
- BDeny both motions and submit the case to the jury based on strict liability.
- CGrant the grandfather’s motion, because the son is liable as a matter of law for failing to warn about the risk of toys being left on the floor.
- DGrant the son’s motion, because the son had no duty to warn that the grandson might leave toys on the floor.
83A driver negligently drove his car into a pedestrian, breaking her leg. The pedestrian's leg was put in a cast, and she used crutches to get around. While shopping at her local supermarket, the pedestrian non-negligently placed one of her crutches on a banana peel that had been negligently left on the floor by the manager of the supermarket's produce department. The pedestrian's crutch slipped on the peel, and she fell to the floor, breaking her arm. Had the pedestrian stepped on the banana peel at a time when she did not have to use crutches, she would have regained her balance.
The pedestrian sued the driver and the supermarket for her injuries. The pedestrian will be able to recover from- Athe driver, for her broken leg only.
- Bthe driver, for both of her injuries.
- Cthe supermarket, for both of her injuries.
- Dthe driver, for her broken leg only, and the supermarket, for her broken arm only.
84
As a shopper was leaving a supermarket, an automatic door that should have opened outward opened inward, striking and breaking the shopper’s nose. The owner of the building had installed the automatic door. The lease, pursuant to which the supermarket occupied the building, provided that the supermarket was responsible for all maintenance of the premises.
The shopper sued the supermarket. At trial, neither the shopper nor the supermarket offered any testimony, expert or otherwise, as to why the door had opened inward. At the close of evidence, both the shopper and the supermarket moved for judgment as a matter of law.
How should the trial judge rule?- AGrant judgment for the shopper, because it is undisputed that the door malfunctioned.
- BGrant judgment for the supermarket, because the shopper failed to join the owner of the building as a defendant.
- CGrant judgment for the supermarket, because the shopper failed to offer proof of the supermarket’s negligence
- DSubmit the case to the jury, because on these facts negligence may be inferred.
85
A hiker, although acting with reasonable care, fell while attempting to climb a mountain and lay unconscious and critically injured on a ledge that was difficult to reach. The plaintiff, an experienced mountain climber, was himself seriously injured while trying to rescue the hiker. The plaintiff's rescue attempt failed, and the hiker died of his injuries before he could be reached.
The plaintiff brought an action against the hiker's estate for compensation for his injuries. In this jurisdiction, the traditional common-law rules relating to contributory negligence and assumption of risk remain in effect.
Will the plaintiff prevail in his action against the hiker's estate?- AYes, because his rescue attempt was reasonable.
- BYes, because the law should not discourage attempts to assist persons in helpless peril.
- CNo, because the hiker's peril did not arise from his own failure to exercise reasonable care.
- DNo, because the plaintiff's rescue attempt failed and therefore did not benefit the hike
86A construction company was digging a trench for a new sewer line in a street in a high-crime neighborhood. During the course of the construction, there had been many thefts of tools and equipment from the construction area. One night, the construction company’s employees neglected to place warning lights around the trench. A delivery truck drove into the trench and broke an axle. While the truck driver was looking for a telephone to call a tow truck, thieves broke into the truck and stole $350,000 worth of goods. The delivery company sued the construction company to recover for the $350,000 loss and for the damage to its truck. The construction company has stipulated that it was negligent in failing to place warning lights around the trench and admits liability for damage to the truck, but it denies liability for the loss of the goods.
On cross-motions for summary judgment on the claim for the goods, how should the court rule?- ADeny both motions, because there is evidence to support a finding that the construction company should have realized that its negligence could create an opportunity for a third party to commit a crime.
- BGrant the construction company’s motion, because no one could have foreseen that the failure to place warning lights could result in the loss of a cargo of valuable goods.
- CGrant the construction company’s motion, because the criminal acts of third persons were a superseding cause of the loss.
- DGrant the delivery company’s motion, because but for the construction company’s actions, the goods would not have been stolen.
87A college student purchased a large bottle of No-Flake dandruff shampoo, manufactured by a shampoo company. The box containing the bottle stated in part: "CAUTION - Use only one capful at most once a day. Greater use may cause severe damage to the scalp." The college student read the writing on the box, removed the bottle, and threw the box away. The college student's roommate asked to use the No-Flake, and the college student said, "Be careful not to use too much." The roommate thereafter used No-Flake twice a day, applying two or three capfuls each time, notwithstanding the label statement that read: "Use no more than one capful per day. See box instructions." The more he used No-Flake, the more inflamed his scalp became, the more it itched, and the more he used.
After three weeks of such use, the roommate finally consulted a doctor who diagnosed his problem as a serious and irreversible case of dermatitis caused by excessive exposure to the active ingredients by No-Flake. These ingredients are uniquely effective at controlling dandruff, but there is no way to remove a remote risk to a small percentage of persons who may contract dermatitis as the result of applying, for prolonged periods of time, amounts of No-Flake substantially in excess of the directions. This jurisdiction adheres to the traditional common-law rules pertaining to contributory negligence and assumption of risk.
If the roommate asserts a claim against the college student for his dermatitis injuries, the college student's best defense will be that- Athe roommate was contributorily negligent.
- Bthe roommate assumed the risk.
- Cthe college student had no duty toward the roommate, who was a gratuitous donee.
- Dthe college student had no duty toward the roommate, because the shampoo company created the risk and had a nondelegable duty to foreseeable users.
88A plaintiff sustained personal injuries in a three-car collision caused by the concurrent negligence of a trucker and a bus driver. In the plaintiff's action for damages against the other two drivers, the jury apportioned the negligence 30% to the plaintiff, 30% to the trucker, and 40% to the bus driver. The plaintiff's total damages were $100,000.
A state statute provides for a system of pure comparative negligence, joint and several liability of concurrent tortfeasors, and contribution based upon proportionate fault.
If the plaintiff chooses to pursue the claim against the trucker alone, she will be entitled to collect at most- A$70,000 from the trucker, and then the trucker will be entitled to collect $40,000 from the bus driver.
- B$30,000 from the trucker, and then the trucker will be entitled to collect $10,000 from the bus driver.
- C$30,000 from the trucker, and then the trucker will be entitled to collect nothing from the bus driver.
- Dnothing from the trucker, because the percentage of fault for the trucker is not greater than that of the plaintiff.
89
A plaintiff's three-year-old daughter was killed in an automobile accident. At the plaintiff's direction, the child's body was taken to a mausoleum for interment. Normally, the mausoleum's vaults are permanently sealed with marble plates secured by "tamper-proof" screws. After the child's body was placed in a mausoleum, however, only a fiberglass panel secured by caulking compound covered her vault. About a month later, the child's body was discovered in a cemetery located near the mausoleum. It had apparently been left there by vandals who had taken it from the mausoleum.
As a result of this experience, the plaintiff suffered great emotional distress.
If the plaintiff sues the mausoleum for the damages arising from her emotional distress, will she prevail?- ANo, because the plaintiff experienced no threat to her own safety.
- BNo, because the mausoleum's behavior was not extreme and outrageous.
- CYes, because the mausoleum failed to use reasonable care to safeguard the body.
- DNo, because the plaintiff suffered no physical harm as a consequence of her emotional distress.
90A plaintiff entered a drug store to make some purchases. As he was searching the aisles for various items, he noticed a display card containing automatic pencils. The display card was on a high shelf behind a cashier's counter. The plaintiff saw a sign on the counter that read, "No Admittance, Employees Only." Seeing no clerks in the vicinity to help him, the plaintiff went behind the counter to get a pencil. A clerk then appeared behind the counter and asked whether she could help him. He said he just wanted a pencil and that he could reach the display card himself. The clerk said nothing further. While reaching for the display card, the plaintiff stepped sideways into an open shaft and fell to the basement, 10 feet below. The clerk knew of the presence of the open shaft, and had reason to believe that the plaintiff had not noticed it when stepping behind the counter.
The plaintiff sued the drug store to recover damages for the injuries he sustained in the fall. The jurisdiction has adopted a rule of pure comparative negligence, and it follows traditional common-law rules governing the duties of a land possessor.
Will the plaintiff recover a judgment against the drug store?- ANo, because the plaintiff was a trespasser.
- BNo, because the plaintiff's injuries did not result from the defendant's willful or wanton misconduct.
- CYes, because the premises were defective with respect to a public invitee.
- DYes, because the clerk had reason to believe that the plaintiff was unaware of the open shaft.
91A defendant has a small trampoline in his backyard which, as he knows, is commonly used by neighbor children as well as his own. The trampoline is in good condition, is not defective in any way, and normally is surrounded by mats to prevent injury if a user should fall off. Prior to leaving with his family for the day, the defendant leaned the trampoline up against the side of the house and placed the mats in the garage.
While the defendant and his family were away, the plaintiff, aged 11, a new boy in the neighborhood, wandered into the defendant's yard and saw the trampoline. The plaintiff had not previously been aware of its presence, but, having frequently used a trampoline before, he decided to set it up, and started to jump. He lost his balance on one jump and took a hard fall on the bare ground, suffering a serious injury that would have been prevented by the mats.
An action has been brought against the defendant on the plaintiff's behalf to recover damages for the injuries the plaintiff sustained from his fall. In this jurisdiction, the traditional common-law rules pertaining to contributory negligence have been replaced by a pure comparative negligence rule.
In his action against the defendant, will the plaintiff prevail?- ANo, because children likely to be attracted by the trampoline would normally realize the risk of using it without mats.
- BNo, because the plaintiff failed to exercise reasonable care commensurate with his age, intelligence, and experience.
- CNo, because the plaintiff entered the defendant's yard and used the trampoline without the defendant's permission.
- DNo, because the plaintiff did not know about the trampoline before entering the defendant's yard and thus was not "lured" onto the premises.
92A mother rushed her eight-year-old daughter to the emergency room at a local hospital after the child fell off her bicycle and hit her head on a sharp rock. The wound caused by the fall was extensive and bloody.
The mother was permitted to remain in the treatment room, and held the child's hand while the emergency room physician cleaned and sutured the wound. During the procedure, the mother said that she was feeling faint and stood up to leave the room. While leaving the room, the mother fainted and, in falling, struck her head on a metal fixture that protruded from the emergency room wall. She sustained a serious injury as a consequence.
If the mother sues the hospital to recover damages for her injury, will she prevail?- AYes, because the mother was a public invitee of the hospital's.
- BYes, because the fixture was not an obvious, commonly used, and essential part of the hospital's equipment.
- CNo, because there is no evidence that the hospital's personnel failed to take reasonable steps to anticipate and prevent the mother's injury.
- DNo, because the hospital's personnel owed the mother no affirmative duty of care.
93An 11-year-old boy was driving a full-size motorcycle on a private road, where the boy was a trespasser. The motorcycle hit a tire that had fallen off a truck driven by a delivery company employee who was making a delivery to an address on the private road. The boy was injured when his motorcycle went out of control after striking the tire.
In a negligence action brought on behalf of the boy against the delivery company, the company contends that the boy was contributorily negligent and that his damages, if any, should be reduced in conformance with the jurisdiction’s comparative negligence statute. The boy argues that his conduct should be judged according to the standard of a reasonable child of like age, intelligence, and experience under the circumstances.
Is the boy entitled to be judged according to the standard of care that he has argued for?- ANo, because the boy was driving a motorcycle.
- BNo, because the boy was trespassing on the private road.
- CYes, because comparative negligence applies.
- DYes, because the boy was 11 years old at the time.
94A patient who had suffered a severe fracture of her leg was treated by an orthopedist, who set the patient’s leg and put it in a cast. When the leg continued to bother the patient six months later, she consulted a second orthopedist in the same town. The second orthopedist surgically inserted a pin to facilitate healing.
The patient brought a malpractice action against the first orthopedist, claiming that he should have surgically inserted a pin at the time of initial treatment.
The only evidence that the patient offered in support of her malpractice claim was the testimony of the second orthopedist, as follows:
In response to the question “Would you have inserted a pin initially?” the second orthopedist testified, “I personally would not have been satisfied that the leg would heal properly without a pin.”
At the close of the patient’s evidence, the first orthopedist moved for judgment as a matter of law. Should the motion be granted?- ANo, because the patient has introduced evidence that the first orthopedist failed to give the care that the second orthopedist would have provided.
- BNo, because the second orthopedist practices in the same town and field of specialty as the first orthopedist.
- CYes, because the patient has failed to introduce evidence that the first orthopedist’s care fell below the professional standard of care.
- DYes, because the second orthopedist also treated the patient and is thus not sufficiently objective to offer expert testimony.
95A patient in a hospital was placed in a wheelchair with his broken leg extended straight out in front of him. As a nurse employed by the hospital was pushing the wheelchair through a set of automatic doors at a normal pace, the doors closed on the patient’s foot, injuring it. The nurse attempted to pull the wheelchair back through the doors. This action caused the doors to close more tightly on the patient’s foot, injuring it further.
The patient sued the hospital, alleging improper maintenance of the doors. The patient has produced no evidence of specific conduct or neglect on the part of the hospital that would have caused the automatic doors to malfunction. The hospital has moved for summary judgment.
Should the court grant the hospital’s motion?- ANo, because a jury could find that there was a latent defect in the doors.
- BNo, because a jury could find the hospital liable for negligence based on res ipsa loquitur.
- CYes, because proof of an accident, by itself, does not establish that an injured person was a victim of negligence.
- DYes, because the nurse’s action was a superseding cause of the injury.
96A car owner washed her car while it was parked on a public street, in violation of a local ordinance that prohibits the washing of vehicles on public streets during specified hours. The ordinance was enacted only to expedite the flow of automobile traffic. Due to sudden and unexpected cold weather, the car owner’s waste water formed a puddle that froze in a crosswalk. A pedestrian slipped on the frozen puddle and broke her leg. The pedestrian sued the car owner to recover for her injury. At trial, the only evidence the pedestrian offered as to negligence was the car owner’s admission that she had violated the ordinance. At the conclusion of the evidence, both parties moved for a directed verdict.
How should the trial judge proceed?- ADeny both motions and submit the case to the jury, because, on the facts, the jury may infer that the car owner was negligent.
- BDeny both motions and submit the case to the jury, because the jury may consider the ordinance violation as evidence that the car owner was negligent.
- CGrant the car owner’s motion, because the pedestrian has failed to offer adequate evidence that the car owner was negligent.
- DGrant the pedestrian’s motion, because of the car owner’s admitted ordinance violation.
97A patient had been under the care of a cardiologist for three years prior to submitting to an elective operation that was performed by a surgeon. Two days thereafter, the patient suffered a stroke, resulting in a coma, caused by a blood clot which formed after the operation. When it appeared that she had entered a permanent vegetative state, with no hope of recovery, the artificial life-support system that had been provided was withdrawn, and she died a few hours later. The withdrawal of artificial life support had been requested by her family, and duly approved by a court. The surgeon was not involved in that decision, or in its execution.
The administrator of the patient's estate thereafter filed a wrongful death action against the surgeon, claiming that the surgeon was negligent in having failed to consult a cardiologist prior to the operation. At the trial the plaintiff offered evidence that accepted medical practice would require examination of the patient by a cardiologist prior to the type of operation that the surgeon performed. In this action, the plaintiff should- Aprevail, because the surgeon was negligent in failing to have the patient examined by a cardiologist prior to the operation.
- Bprevail, because the blood clot that caused the patient's death was caused by the operation which the surgeon performed.
- Cnot prevail, because there is no evidence that a cardiologist would have provided advice that would have changed the outcome if one had examined the patient before the operation.
- Dnot prevail, because the surgeon had nothing to do with the withdrawal of artificial life support, which was the cause of the patient's death.
98
A company designed and built a processing plant for the manufacture of an explosive chemical. An engineer was retained by the company to design a filter system for the processing plant. She prepared an application for a permit to build the plant's filter system and submitted it to the state's Department of Environmental Protection (DEP). As required by DEP regulations, the engineer submitted a blueprint to the DEP with the application for permit. The blueprint showed the entire facility and was signed and sealed by her as a licensed professional engineer.
After the project was completed, a portion of the processing plant exploded, injuring the plaintiff. During discovery in an action by the plaintiff against the engineer, it was established that the explosion was caused by a design defect that was unrelated to the filter system designed by the engineer. However, the defect was present in the blueprint signed by the engineer.
In that action, will the plaintiff prevail?- AYes, because the engineer signed, sealed, and submitted a blueprint that showed the design defect.
- BYes, because all of the plant's designers are jointly and severably liable for the defect.
- CNo, because the engineer owed no duty to the plaintiff to prevent the particular risk of harm.
- DNo, because the engineer was an independent contractor.
99
A vintner is the owner of a large vineyard and offers balloon rides to visitors who wish to tour the grounds from the air. During one of the rides, the vintner was forced to make a crash landing on his own property due to high winds. Without the vintner's knowledge or consent, a trespasser had entered the vineyard to camp for a couple of days. The trespasser was injured when he was hit by the basket of the descending balloon.
If the trespasser sues the vintner to recover damages for his injuries, will the trespasser prevail?- ANo, because there is no evidence that the crash landing was made necessary by the vintner's negligence.
- BNo, because the vintner was unaware of the trespasser's presence until after the injury had occurred.
- CYes, because even a trespasser may recover for injuries caused by an abnormally dangerous activity.
- DYes, because the accident occurred at a place which the vintner knew was frequented by intruders.
100A man, who was driving his car at night, stopped the car and went into a nearby tavern for a drink. He left the car standing at the side of the road, projecting three feet into the traffic lane. The lights were on and his friend, the plaintiff, was asleep in the back seat. The plaintiff awoke, discovered the situation, and went back to sleep. Before the man returned, his car was hit by an automobile approaching from the rear and driven by the defendant. The plaintiff was injured.
The plaintiff sued the defendant and the man jointly to recover the damages he suffered resulting from the accident. The jurisdiction has a pure comparative negligence rule and has abolished the defense of assumption of risk. In respect to other issues, the rules of the common law remain in effect.
The plaintiff should recover- Anothing, because the plaintiff was more negligent than either the defendant or the man.
- Bnothing, because the total of the defendant's and the man's negligence was not greater than the plaintiff's.
- Cfrom the defendant and the man, jointly and severally, the amount of damages the plaintiff suffered reduced by the percentage of the total negligence that is attributed to the plaintiff.
- Dfrom the defendant and the man, severally, a percentage of the plaintiff's damages equal to the percentage of fault attributed to each of the defendants.
101The personnel director of an investment company told a job applicant during an interview that the company was worth millions of dollars and that the company’s portfolio would triple in the next several months. The applicant was very excited about the company’s prospects and accepted an offer to work for the company. Two days later, the applicant read in the newspaper that the investment company had filed for bankruptcy reorganization. As a result of reading this news, the applicant suffered severe emotional distress, but he immediately found another comparable position.
Is the applicant likely to prevail in an action for negligent misrepresentation?- ANo, because the applicant did not suffer any physical injury or pecuniary loss.
- BNo, because the personnel director’s statement was purely speculative.
- CYes, because the applicant relied on the personnel director’s misrepresentations about the investment company.
- DYes, because the personnel director should have foreseen that his misrepresentations would cause the applicant to be distressed.
102A bright 12-year-old child attended a day-care center after school. The day-care center was located near a man-made duck pond on the property of a corporation. During the winter, the pond was used for ice-skating when conditions were suitable. At a time when the pond was obviously only partially frozen, the child sneaked away from the center’s property and walked out onto the ice over the pond. The ice gave way, and the child fell into the cold water. He suffered shock and would have drowned had he not been rescued by a passerby. At the time of the incident, the pond was clearly marked with numerous signs that stated, “THIN ICE—KEEP OFF.” When the child sneaked away from the day-care center, the center was staffed with a reasonable number of qualified employees, and the employees were exercising reasonable care to ensure that the children in their charge did not leave the premises. There had not been a previous instance of a child coming onto the corporation’s property from the day-care center. The jurisdiction follows a rule of pure comparative negligence.
In a suit brought on the child’s behalf against the corporation and based only on the facts above, who is likely to prevail?- AThe child, because the corporation owes a duty to keep its premises free of dangerous conditions.
- BThe child, because the pond was an attractive nuisance.
- CThe corporation, because the danger of thin ice may reasonably be expected to be understood by a 12- year-old child.
- DThe corporation, because the day-care center had a duty to keep the child off the ice.
103A male employee who worked at a psychiatric hospital had sexual relations with a patient in her room at the hospital. The patient was severely mentally disabled, and although the patient did not initiate the encounter, she did not protest.
A tort action was brought on the patient's behalf against the hospital. The hospital contends that the employee's actions were outside the scope of his employment.
Is the patient likely to prevail?- ANo, because the employee's actions were outside the scope of his employment.
- BNo, because the patient encouraged the employee's actions by not protesting.
- CYes, because the employee worked for the hospital.
- DYes, because the hospital failed to use reasonable care to protect the patient from such conduct.
104A surgeon performed a sterilization operation on a patient. After the surgery, the surgeon performed a test that showed that the patient's fallopian tubes were not severed, as was necessary for sterilization. The surgeon did not reveal the failure of the operation to the patient, who three years later became pregnant and delivered a baby afflicted with a severe birth defect that will require substantial medical care throughout its life. The birth defect resulted from a genetic defect unknown to, and undiscoverable by, the surgeon. The patient brought an action on her own behalf against the surgeon, seeking to recover the cost of her medical care for the delivery of the baby, and the baby's extraordinary future medical expenses for which the patient will be responsible.
Which of the following questions is relevant to the lawsuit and currently most difficult to answer?- ADid the surgeon owe a duty of care to the baby with respect to medical services rendered to the patient three years before the baby was conceived?
- BCan a person recover damages for a life burdened by a severe birth defect based on a physician's wrongful failure to prevent that person's birth from occurring?
- CDid the surgeon owe a duty to the patient to inform her that the sterilization operation had failed?
- DIs the patient entitled to recover damages for the baby's extraordinary future medical expenses?
105
A plaintiff suffered a severe loss when his manufacturing plant, located in a shallow ravine, was flooded during a sustained rainfall. The flooding occurred because the city had failed to maintain its storm drain, which was located on city land above the plaintiff's premises, and because a railroad had failed to maintain its storm drain, which was located on railroad land below the plaintiff's premises. The flooding would not have occurred if either one of the two storm drains had been maintained properly.
The plaintiff sued the railroad to recover compensation for his loss. The evidence in the case established that the failures of the two drains were caused by the respective negligence of the city and the railroad. There is no special rule insulating the city from liability.
In his action against the railroad, the plaintiff should recover- Anothing, because he should have joined the city, without whose negligence he would have suffered no loss.
- Bnothing, because he did not introduce evidence that enables the court reasonably to apportion responsibility between the city and the railroad.
- Cone-half his loss, in the absence of evidence that enables the court to allocate responsibility fairly between the city and the railroad.
- Dall of his loss, because but for the railroad's negligence none of the flooding would have occurred.
106
Toxic materials being transported by truck from a manufacturer's plant to a warehouse leaked from the truck onto the street a few miles from the plant. A driver lost control of his car when he hit the puddle of spilled toxic materials on the street, and he was injured when his car hit a stop sign.
In an action for damages by the driver against the manufacturer based on strict liability, is the driver likely to prevail?- ANo, because the driver's loss of control was an intervening cause.
- BNo, because the driver's injury did not result from the toxicity of the materials.
- CYes, because the manufacturer is strictly liable for leaks of its toxic materials.
- DYes, because the leak occurred near the manufacturer's plant.
107A supermarket is in a section of town where there are sometimes street fights and where pedestrians are occasionally the victims of pickpockets and muggers. In recognition of the unusual number of robberies in the area, the supermarket posted signs in the store that read:
"Warning: There are pickpockets and muggers at work in this part of the city. The supermarket is not responsible for the acts of criminals."
Other than posting the signs, the supermarket took no other precautions to prevent criminal activity on the premises.
One evening, a customer drove to the supermarket to see about a special on turkeys that the supermarket was advertising. She decided that the turkeys were too large and left the store without purchasing anything. In the parking lot, she was attacked by an unknown man who raped her and then ran away.
If the customer sues the supermarket, the result should be for the- Aplaintiff, because the supermarket failed to take reasonable steps to protect customers against criminal attack in its parking lot.
- Bplaintiff, because the supermarket is liable for harm to business invitees on its premises.
- Cdefendant, because the warning signs were visible to the customer.
- Ddefendant, because the rapist was the proximate cause of the customer's injuries.
108
A patient received anesthesia while giving birth. Upon awakening from the anesthesia, she discovered a severe burn on the inner portion of her right knee. The patient has brought a medical malpractice action in which she has joined all of the physicians and nurses who exercised control over her person, the delivery room, the medical procedures, and the equipment used during the period in which she was unconscious.
The defendants have jointly moved for summary judgment. The patient has produced affidavits that establish that the applicable professional standard of care was violated.
What would be the patient’s best argument against the motion?- AAt least one of the defendants had control over whatever agency or instrumentality caused the patient’s injury.
- BThe defendants were acting in concert.
- CThe patient has produced affidavits that establish that the applicable professional standard of care was violated.
- DThe patient was in no way responsible for her injury.
109A man's car sustained moderate damage in a collision with a car driven by a woman. The accident was caused solely by the woman's negligence. The man's car was still drivable after the accident. Examining the car the next morning, the man could see that a rear fender had to be replaced. He also noticed that gasoline had dripped onto the garage floor. The collision had caused a small leak in the gasoline tank.
The man then took the car to a mechanic, who owns and operates a body shop, and arranged with the mechanic to repair the damage. During their discussion the man neglected to mention the gasoline leakage. Thereafter, while the mechanic was loosening some of the damaged material with a hammer, he caused a spark, igniting vapor and gasoline that had leaked from the fuel tank. The mechanic was severely burned.
The mechanic has brought an action to recover damages against the man and woman. The jurisdiction has adopted a pure comparative negligence rule in place of the traditional common law rule of contributory negligence.
In this action, will the mechanic obtain a judgment against the woman?- ANo, because there is no evidence that the woman was aware of the gasoline leak.
- BNo, because the mechanic would not have been harmed had the man warned him about the gasoline tank.
- CYes, because the mechanic was not negligent in failing to discover the gasoline leak himself.
- DYes, because the mechanic's injury was a proximate consequence of the woman's negligent driving.
110A trucking company employed nine salaried dispatchers to ensure that its truck fleet operated according to schedule. Two years ago, as a cost-saving measure, the company reduced the number of dispatchers to six, and each of the remaining dispatchers had to work substantially longer hours.
One of the remaining dispatchers complained to his supervisor that the stress and fatigue associated with the new working conditions were too much for him to handle. The supervisor told the dispatcher that he should quit if he couldn’t handle the increased hours.
Over the next three months, the dispatcher continued to complain about the working conditions, to no effect. The dispatcher suffered severe emotional distress from the working conditions, but no physical injury. He eventually was hospitalized and had to miss several months of work as a result of the emotional distress.
The dispatcher sued the trucking company for negligence. The company has moved for summary judgment, based on the undisputed facts set out above. Assume that there is no applicable workers’ compensation statute.
How should the court rule on the motion?- ADeny the motion, because the jury must determine the extent of the emotional distress suffered by the dispatcher.
- BDeny the motion, because there is evidence from which a jury could reasonably conclude that the supervisor failed to act with ordinary care.
- CGrant the motion, because the dispatcher suffered no physical injury.
- DGrant the motion, because there is no evidence from which a jury could reasonably conclude that the supervisor acted carelessly with respect to the dispatcher’s emotional well-being.
111A company set up a website for the advertisement of goods and services offered by individuals, as well as other public notices.
One of the notices on the site announced that the furnishings in a home at a specified address were free for the taking. Within a few hours of the posting, all the furnishings had been taken.
The notice had been placed by the homeowner’s cousin without the homeowner’s knowledge. The cousin bore a grudge against the homeowner and had placed the notice while the homeowner was away and had left the door to the home unlocked.
In a negligence action brought by the homeowner against the company, what will be the company’s strongest defense?- AThe company had no duty to the homeowner.
- BThe cousin’s actions were a proximate cause of the homeowner’s loss.
- CThe First Amendment prohibits all tort actions based upon mere speech.
- DThere is no evidence of careless conduct by the company.
112A company operates a factory that requires the use of very high voltage electricity. A neighbor owns property adjacent to the factory where he has attempted to carry on a business that requires the use of sensitive electronic equipment. Occasionally, the effectiveness of the neighbor's electronic equipment is slightly impaired by electrical interference arising from the high voltage currents used in the company's factory. The neighbor has complained to the company several times, with no result. There is no way that the company, by taking reasonable precautions, can avoid the interference with the neighbor's operation that arises from the high voltage currents necessary to the company's operation.
In the neighbor's action against the company to recover damages for the economic loss caused to him by the electrical interference, will the neighbor prevail?- AYes, because the company's activity is abnormally dangerous.
- BYes, for loss suffered by the neighbor after the company was made aware of the harm its activity was causing to the neighbor.
- CNo, because the company did not cause a substantial and unreasonable interference with the neighbor's business.
- DNo, because the neighbor's harm was purely economic and did not arise from physical harm to his person or property.
113For 10 years, a vacationer and a neighbor have owned summer vacation homes on adjoining lots. A stream flows through both lots. As a result of a childhood swimming accident, the vacationer is afraid of water and has never gone close to the stream.
The neighbor built a dam on her property that has completely stopped the flow of the stream to the vacationer's property. The dam unreasonably interferes with the use and enjoyment of the vacationer's property but was built in conformity with all applicable laws.
In a suit by the vacationer against the neighbor, will the vacationer prevail?- AYes, because the damming unreasonably interferes with the use and enjoyment of the vacationer's property.
- BYes, because the neighbor intended to affect the vacationer's property.
- CNo, because the vacationer made no use of the stream.
- DNo, because the dam was built in conformity with all applicable laws.
114
A 15-year-old boy was killed during a gang fight. Two days after his funeral, the boy’s mother saw a television program about gang violence and was shocked to see video of herself weeping over the boy’s body. The video had been shot by the television reporting team while the boy’s body was still lying on a public street. The mother suffered severe emotional distress as a result of seeing the video.
If the mother sues the television station for invasion of her privacy and that of her son, will the mother be likely to prevail?- ANo, because a person has no right to privacy after his or her death.
- BNo, because the street was open to the public and the subject was newsworthy.
- CYes, because the mother did not give permission to have the video used in the program.
- DYes, because the mother suffered severe emotional distress as a result of viewing the video.
115A farmer owns a small farm with several head of cattle which are kept in a fenced grazing area. One day the cattle were frightened by a thunderstorm, an occasional occurrence in the area. The cattle broke through the fence, entered onto the neighbor's property, and severely damaged the neighbor's crops. Because the farmer's cattle had panicked during past thunderstorms, the farmer had been diligent in maintaining the fence. Under the law of the state, landowners are not required to erect fences to prevent the intrusion of livestock.
If the neighbor sues the farmer to recover for the damage done to his crops, will the neighbor prevail?- AYes, because the farmer's cattle caused the damage to the neighbor's crops.
- BYes, because the farmer's cattle had panicked during previous thunderstorms.
- CNo, because the fence was not negligently maintained by the farmer.
- DNo, because the thunderstorm was a force of nature.
116A manufacturer entered into a five-year contract with a distributor to supply the distributor with products to be distributed in State A. The manufacturer reserved the right to enter into additional such contracts with other State A distributors. The manufacturer knew that the distributor would, on the basis of the agreement, invest in an expansion of its distribution centers in State A in order to handle the distribution of the manufacturer’s products to retail sellers in that state.
At the time the manufacturer entered into the contract, it had already firmly decided to withdraw from the State A market in two years. Because the distributor had heard rumors of such a plan, its chief executive officer, before signing the contract, asked a representative of the manufacturer whether such a plan was in place. The representative denied the existence of any such plan.
Two years into the contract, the manufacturer announced that it no longer intended to sell products in State A and canceled its contract with the distributor. The manufacturer did not thereafter supply products for distribution or sale in State A.
Does the distributor have a viable fraud claim against the manufacturer?- ANo, because the distributor’s exclusive remedy is for breach of contract.
- BNo, because the manufacturer did not misstate any material facts when entering into the contract.
- CYes, because the manufacturer denied that it had a withdrawal plan when the distributor asked about it at the time the contract was formed.
- DYes, because the manufacturer reserved the right to do business with other State A distributors.
117An associate professor in the pediatrics department of a local medical school was denied tenure. He asked a national education lobbying organization to represent him in his efforts to have the tenure decision reversed. In response to a letter from the organization on the professor’s behalf, the dean of the medical school wrote to the organization explaining truthfully that the professor had been denied tenure because of reports that he had abused two of his former patients. Several months later, after a thorough investigation, the allegations were proven false, and the professor was granted tenure. He had remained working at the medical school at full pay during the tenure decision review process and thus suffered no pecuniary harm.
In a suit for libel by the professor against the dean of the medical school, will the professor be likely to prevail?- ANo, because the professor invited the libel.
- BNo, because the professor suffered no pecuniary loss.
- CYes, because the dean had a duty to investigate the rumor before repeating it.
- DYes, because the dean’s defamatory statement was in the form of a writing.
118An established cemetery sells “pre-need” funeral plans, which include funeral services, a casket, and a burial plot, in exchange for advance payment. By state statute, any purchaser of a funeral plan of this sort can cancel the purchase at any time, subject to a penalty imposed by the seller of up to 15% of the purchase price.
A former high-level employee of the cemetery, who knew of the limitations specified in the state statute, recently built a new cemetery near the established cemetery. To promote the new cemetery, the former employee sent postcards to local residents asserting that anyone who had already purchased a pre-need funeral plan had “an unlimited right to cancel that plan at any time, for any reason, without penalty.” The postcard also offered a $100 rebate on a pre-need funeral plan with the new cemetery to anyone who canceled an existing plan elsewhere.
Shortly after the promotion began, several purchasers of funeral plans with the established cemetery canceled their plans and purchased plans from the new cemetery. When the established cemetery withheld penalties from the refund amounts, the purchasers objected and threatened to notify the state consumer protection bureau.
The established cemetery has sued the former employee for tortious interference with contract. The former employee has moved for summary judgment, based on the foregoing facts.
Should the court grant the motion?- ANo, because a reasonable jury could conclude that the former employee bribed purchasers in order to take business from the established cemetery.
- BNo, because the former employee could be found by a jury to have intentionally and improperly interfered with the established cemetery’s contracts.
- CYes, because the established cemetery’s contracts with purchasers were terminable at the option of the purchasers.
- DYes, because the former employee was simply competing with the established cemetery.
119A homeowner owns a house on a lake. A neighbor owns a house across a driveway from the homeowner's property. The neighbor's house sits on a hill and the neighbor can see the lake from his living room window.
The homeowner and the neighbor got into an argument and the homeowner erected a large spotlight on his property that automatically comes on at dusk and goes off at sunrise. The only reason the homeowner installed the light was to annoy the neighbor. The glare from the light severely detracts from the neighbor's view of the lake.
In a suit by the neighbor against the homeowner, will the neighbor prevail?- AYes, because the homeowner installed the light solely to annoy the neighbor.
- BYes, but only because the neighbor's property value was adversely affected.
- CNo, because the neighbor's view of the lake is not always obstructed.
- DNo, because the spotlight provides added security to the homeowner's property.
120
The plaintiffs, a retired couple, had lived in their home in a residential neighborhood for 20 years when the defendants, a family of six, moved into the house next door and built a swimming pool in the back yard. The family's four young children frequently played in the pool after school. They often were joined by other neighborhood children. The plaintiffs were in the habit of reading and listening to classical music in the afternoons. Sometimes they took naps.
The boisterous sounds of the children playing in the pool disturbed the plaintiffs' customary enjoyment of quiet afternoons.
In the plaintiffs' nuisance action for damages against the defendants, the plaintiffs should- Aprevail, because the children's noise constituted a substantial interference with the plaintiffs' use and enjoyment of their home.
- Bprevail, because the the plaintiffs' interest in the quiet enjoyment of their home takes precedence in time over the defendants' interests.
- Cnot prevail, because the noise did not constitute a substantial and unreasonable disturbance to persons of normal sensibilities.
- Dnot prevail, because the children's interest in healthy play has priority over the plaintiffs' interest in peace and quiet.
121A plaintiff, who was an asbestos insulation installer from 1955 to 1965, contracted asbestosis, a serious lung disorder, as a result of inhaling airborne asbestos particles on the job. The asbestos was manufactured and sold to the plaintiff's employer by an asbestos company. Because neither the asbestos company nor anyone else discovered the risk to asbestos installers until 1966, the company did not provide any warnings of the risks to installers until after that date.
The plaintiff brought an action against the asbestos company based on strict liability in tort for failure to warn. The case is to be tried before a jury. The jurisdiction has not adopted a comparative fault rule in strict liability cases.
In this action, an issue that is relevant to the case and is a question for the court to decide as a matter of law, rather than for the jury to decide as a question of fact, is whether- Aa satisfactory, safer, alternative insulation material exists under today's technology.
- Bthe defendant should be held to the standard of a prudent manufacturer who knew of the risks, regardless of whether the risks were reasonably discoverable before 1966.
- Cthe defendant should reasonably have known of the risks of asbestos insulation materials before 1966, even though no one else had discovered the risks.
- Dthe asbestos insulation materials to which the plaintiff was exposed were inherently dangerous.
122A car driven by the defendant entered land owned by and in the possession of the plaintiff, without the plaintiff's permission.
Which, if any, of the following allegations, without additional facts, would provide a sufficient basis for a claim by the plaintiff against the defendant?- AThe defendant intentionally drove his car onto the plaintiff's land.
- BThe defendant's car damaged the plaintiff's land.
- CThe defendant negligently drove his car onto the plaintiff's land.
- DThe defendant's car damaged the plaintiff's personal property.
123The defendant operates a collection agency. He was trying to collect a valid $400 bill for medical services rendered to the plaintiff by a doctor that was past due.
The defendant went to the plaintiff's house and when the plaintiff's mother answered the door, the defendant told her that he was there to collect a bill owed by the plaintiff. The mother told the defendant that because of the plaintiff's illness, the plaintiff had been unemployed for six months, that she was still ill and unable to work, and that she would pay the bill as soon as she could.
The defendant, in a loud voice, demanded to see the plaintiff and said that if he did not receive payment immediately, he would file a criminal complaint charging her with fraud. The plaintiff, hearing the conversation, came to the door. The defendant, in a loud voice, repeated his demand for immediate payment and his threat to use criminal process.
Assume that the plaintiff did not suffer physical harm as a result of the defendant's conduct, but did suffer severe emotional distress. If the plaintiff asserts a claim against the defendant based on intentional infliction of emotional distress, will the plaintiff prevail?- AYes, because the plaintiff suffered severe emotional distress as a result of the defendant's conduct.
- BNo, because the bill for medical services was valid and past due.
- CNo, because the plaintiff did not suffer physical harm as a result of the defendant's conduct.
- DNo, because the defendant's conduct created almost no risk of physical harm to the plaintiff.
124A plaintiff owned a large tract of land on the shore of a lake. The defendant lived on a stream that ran along one boundary of the plaintiff's land and into the lake. At some time in the past, a channel had been cut across the plaintiff's land from the stream to the lake at a point some distance from the mouth of the stream. From where the defendant lived, the channel served as a convenient shortcut to the lake. Erroneously believing that the channel was a public waterway, the defendant made frequent trips through the channel in his motorboat. His use of the channel caused no harm to the land through which it passed. Once the defendant learned of the plaintiff's ownership of the channel, he stopped using it as a shortcut.
If the plaintiff asserts a claim for damages against the defendant based on trespass, which of the following would be a correct disposition of the case?- AJudgment for the plaintiff for nominal damages, because the defendant intentionally used the channel.
- BJudgment for the defendant, because he did not use the channel after learning of the plaintiff's ownership claim.
- CJudgment for the defendant, because he caused no harm to the plaintiff's land.
- DJudgment for the defendant, because when he used the channel he believed it was a public waterway.
125
A plaintiff suffered a serious injury while participating in an impromptu basketball game at a public park. The injury occurred when the plaintiff and the defendant, on opposing teams, each tried to obtain possession of the ball when it rebounded from the backboard after a missed shot at the basket. During that encounter, the plaintiff was struck and injured by the defendant's elbow. The plaintiff now seeks compensation from the defendant.
At the trial, evidence was introduced tending to prove that the game had been rough from the beginning, that elbows and knees had frequently been used to discourage interference by opposing players, and that the plaintiff had been one of those making liberal use of such tactics.
In this action, will the plaintiff prevail?- AYes, because the defendant intended to strike the plaintiff with his elbow.
- BYes, because the defendant intended to cause harmful or offensive contact with the plaintiff.
- CNo, because the plaintiff impliedly consented to violent play.
- DNo, because the defendant did not intentionally use force that exceeded the players' consent.
126A plaintiff and a defendant were in the habit of playing practical jokes on each other on their respective birthdays. On the plaintiff's birthday, the defendant sent the plaintiff a cake containing an ingredient that he knew had, in the past, made the plaintiff very ill. After the plaintiff had eaten a piece of the cake, he suffered severe stomach pains and had to be taken to the hospital by ambulance. On the way to the hospital, the paramedic, who was driving the ambulance, suffered a heart attack, which caused the ambulance to swerve from the road and hit a tree. As a result of the collision, the plaintiff suffered a broken leg.
In a suit by the plaintiff against the defendant to recover damages for the plaintiff's broken leg, the plaintiff will- Aprevail, because the defendant knew that the cake would be harmful or offensive to the plaintiff.
- Bnot prevail, because the paramedic was not negligent.
- Cnot prevail, because the defendant could not reasonably be expected to foresee injury to the plaintiff's leg.
- Dnot prevail, because the paramedic's heart attack was a superseding cause of the plaintiff's broken leg.
127A plaintiff was walking peacefully along a public street when he encountered the defendant, whom he had never seen before. Without provocation or warning, the defendant picked up a rock and struck the plaintiff with it. It was later established that the defendant was mentally ill and suffered recurrent hallucinations.
If the plaintiff asserts a claim against the defendant based on battery, which of the following, if supported by evidence, will be the defendant's best defense?- AThe defendant did not understand that his act was wrongful.
- BThe defendant did not desire to cause harm to the plaintiff.
- CThe defendant did not know that he was striking a person.
- DThe defendant thought the plaintiff was about to attack him.
128
A company set up a website for the advertisement of goods and services offered by individuals, as well as other public notices.
One of the notices on the site announced that the furnishings in a home at a specified address were free for the taking. Within a few hours of the posting, all the furnishings had been taken.
The notice had been placed by the homeowner’s cousin without the homeowner’s knowledge. The cousin bore a grudge against the homeowner and had placed the notice while the homeowner was away and had left the door to the home unlocked.
In a negligence action brought by the homeowner against the company, what will be the company’s strongest defense?- AThe company had no duty to the homeowner.
- BThe cousin’s actions were a proximate cause of the homeowner’s loss.
- CThe First Amendment prohibits all tort actions based upon mere speech.
- DThere is no evidence of careless conduct by the company.
129In a civil action, a plaintiff sued a decedent’s estate to recover damages for injuries she suffered in a collision between her car and one driven by the decedent. At trial, the plaintiff introduced undisputed evidence that the decedent’s car had swerved across the centerline of the highway into oncoming traffic, where it had collided with the plaintiff’s car. The decedent’s estate introduced undisputed evidence that, before he swerved across the centerline, the decedent had suffered a fatal heart attack, which he had no reason to foresee, and that, just prior to the heart attack, the decedent had been driving at a reasonable speed and in a reasonable manner. A statute makes it a traffic offense to cross the centerline of a highway.
In this case, which party is likely to prevail?- AThe decedent’s estate, because its rebuttal evidence is undisputed.
- BThe decedent’s estate, because the plaintiff has not established a prima facie case of liability.
- CThe plaintiff, because the accident was of a type that does not ordinarily happen in the absence of negligence on the actor’s part.
- DThe plaintiff, because the decedent crossed the centerline in violation of the statute.
130A man's father died in a hospital. The hospital maintains a morgue with refrigerated drawers a bit larger than the human body. The decedent's body was placed in such a drawer awaiting pickup by a mortician. Before the mortician called for the body, a hospital orderly placed two opaque plastic bags in the drawer with the decedent's body. One bag contained the decedent's personal effects, and the other contained an amputated leg from some other hospital
patient. It is stipulated that the hospital was negligent to allow the amputated leg to get into the decedent's drawer. The mortician delivered the two opaque plastic bags to the man, assuming both contained personal effects. The man was shocked when he opened the bag containing the amputated leg. The man sued the hospital to recover for emotional distress. At the trial, the man testified that the experience had been extremely upsetting, that he had had recurring nightmares about it, and that his family and business relationships had been adversely affected for a period of several months. He did not seek medical or psychiatric treatment for his emotional distress.
Who should prevail?- AThe man, because of the sensitivity people have regarding the care of the bodies of deceased relatives.
- BThe man, because hospitals are strictly liable for mishandling dead bodies.
- Cthe hospital, because the man did not require medical or psychiatric treatment.
- Dthe hospital, because the man suffered no bodily harm.
131A recently installed elevator suddenly started free-falling down the elevator shaft while carrying passengers. Frightened, a passenger pried the inside doors open and impulsively stuck his arm through them to try to stop the fall. As a result, his arm was broken. The elevator eventually stopped without causing further injuries.
In a negligence action brought by the injured passenger against the company that installed and maintained the elevator, the injured passenger has asked the trial judge to instruct the jury that it may find the company negligent on a theory of res ipsa loquitur. In response, the company has argued that the passenger’s conduct caused his injuries.
How should the judge rule?- AThe judge should deny the passenger’s request, because it is possible that the company was not negligent.
- BThe judge should deny the passenger’s request, because the jury could find that the conduct of the passenger contributed to his injuries.
- CThe judge should grant the passenger’s request but should also instruct the jurors to consider any carelessness of the passenger in awarding damages if they find the company liable.
- DThe judge should grant the passenger’s request, because the passenger acted reasonably considering the stress of the situation.
132A security guard, dressed in plain clothes, was working for a discount store when a customer got into a heated argument with a cashier over the store’s refund policy. Without identifying himself as a security guard, the security guard suddenly grabbed the customer’s arm. The customer attempted to push the security guard away, and the security guard knocked the customer to the floor, causing injuries. The customer sued the discount store for battery on a theory of vicarious liability for the injuries caused by the security guard.
The store filed an answer to the customer’s complaint, asserting the affirmative defense of contributory negligence. The customer has moved to strike the affirmative defense. Traditional rules of contributory negligence apply.
Should the trial court grant the customer’s motion?- ANo, because contributory negligence is an affirmative defense to a cause of action based on vicarious liability.
- BNo, because the customer should have known that his argument with the cashier might provoke an action by a security guard.
- CYes, because contributory negligence is not a defense to battery.
- DYes, because the customer did not know that he was pushing away someone who was employed as a security guard.
133
An eight-year-old child went to the grocery store with her mother. The child pushed the grocery cart while her mother put items into it. The child's mother remained near the child at all times. Another customer in the store noticed the child pushing the cart in a manner that caused the customer no concern. A short time later, the cart the child was pushing struck the customer in the knee, inflicting serious injury.
If the customer brings an action, based on negligence, against the grocery store, the store's best defense will be that- Aa store owes no duty to its customers to control the use of its shopping carts.
- Ba store owes no duty to its customers to control the conduct of other customers.
- Cany negligence of the store was not the proximate cause of the customer's injury.
- Da supervised child pushing a cart does not pose an unreasonable risk to other customers
134
A customer fell and injured himself when he slipped on a banana peel while shopping at a grocery store. The banana peel was fresh and unblemished except for a mark made by the heel of the customer’s shoe. In an action brought by the customer against the store, these are the only facts in evidence.
Should the trial judge permit the case to go to the jury?- ANo, because the customer had an obligation to watch where he stepped.
- BNo, because there is not a reasonable basis for inferring that the store knew or should have known of the banana peel.
- CYes, because it is more likely than not that the peel came from a banana offered for sale by the grocer.
- DYes, because the store could foresee that a customer might slip on a banana peel.
135A sporting goods shop was burglarized by an escaped inmate from a nearby prison. The inmate stole a rifle and bullets from a locked cabinet. The burglar alarm at the shop did not go off because the shop's owner had negligently forgotten to activate the alarm's motion detector.
Shortly thereafter, the inmate used the rifle ammunition stolen from the shop in a shooting spree that caused injury to several people, including the plaintiff.
If the plaintiff sues the shop's owner for the injury she suffered, will the plaintiff prevail?- AYes, because the plaintiff's injury could have been prevented had the motion detector been activated.
- BYes, because the shop's owner was negligent in failing to activate the motion detector.
- CNo, because the storage and sale of firearms and ammunition is not an abnormally dangerous activity.
- DNo, because there is no evidence of circumstances suggesting a high risk of theft and criminal use of firearms stocked by the shop's owner.
136A plaintiff sustained personal injuries in a three-vehicle collision caused by the concurrent negligence of all three drivers. In the plaintiff's action for damages against the other two drivers, the jury apportioned the negligence 30% to the plaintiff, 30% to a truck driver, and 40% to a cab driver. The plaintiff's total damages were $100,000.
Assume that the state has retained the common-law rule pertaining to contribution and that the state's comparative negligence statute provides for a system of pure comparative negligence but abolishes joint and several liability.
If the plaintiff chooses to pursue the claim against the truck driver alone, she will be entitled to collect at most- A$70,000 from the truck driver, and then the truck driver will be entitled to collect $40,000 from the cab driver.
- B$30,000 from the truck driver, and then the truck driver will be entitled to collect $10,000 from the cab driver.
- C$30,000 from the truck driver, and then the truck driver will be entitled to collect nothing from the cab driver.
- Dnothing from the truck driver, because his percentage of fault is not greater than that of the plaintiff
137The plaintiff was a passenger in a car that was struck in the rear by a car driven by a student. The collision resulted from the student's negligence in failing to keep a proper lookout. The plaintiff's physician found that the collision had aggravated a mild osteoarthritic condition in her lower back and had brought on similar, but new, symptoms in her neck and upper back.
Six months after the first accident, the plaintiff was a passenger in a car that was struck in the rear by a car driven by a doctor. The collision resulted from the doctor's negligence in failing to keep a proper lookout. The plaintiff's physician found that the second collision had caused a general worsening of the plaintiff's condition, marked by a significant restriction of movement and muscle spasms in her back and neck. The physician believes the plaintiff's worsened condition is permanent, and he can find no basis for apportioning responsibility for her present worsened condition between the two automobile collisions.
The plaintiff brought an action for damages against the student and the doctor. At the close of the plaintiff's evidence, as outlined above, each of the defendants moved for a directed verdict in his favor on the ground that the plaintiff had failed to produce evidence on which the jury could determine how much damage each defendant had caused. The jurisdiction adheres to the common law rules regarding joint and several liability.
The plaintiff's best argument in opposition to the defendants' motions would be that the defendants are jointly and severally liable for the plaintiff's entire harm, because- Athe wrongdoers, rather than their victim, should bear the burden of the impossibility of apportionment.
- Bthe defendants breached a common duty that each of them owed to the plaintiff.
- Ceach of the defendants was the proximate cause in fact of all of the plaintiff's damages.
- Dthe defendants are joint tortfeasors who aggravated the plaintiff's preexisting condition.
138While visiting at his son’s home, a grandfather tripped on a toy left on the floor by his four-year- old grandson. The grandfather fell and was severely injured. The grandfather regularly visited his son’s home and was aware that the grandson routinely left toys scattered about the house. The son had never warned the grandfather to look out for toys.
The grandfather brought an action against his son to recover for his injuries, and both the grandfather and the son have moved for directed verdicts as to liability.
The jurisdiction has abolished intra-family immunity and applies the traditional rules of landowner liability. What action should the court take?- ADeny both motions and submit the case to the jury based on negligence.
- BDeny both motions and submit the case to the jury based on strict liability.
- CGrant the grandfather’s motion, because the son is liable as a matter of law for failing to warn about the risk of toys being left on the floor.
- DGrant the son’s motion, because the son had no duty to warn that the grandson might leave toys on the floor.
Informações
- Descrição
- Quiz sobre T, criado por LCN LCN em 20-04-2023.
- Autor
- LCN LCN
- Idioma
- English
- Visualizações
- 9
- Histórico
- Criado em 20 abr 2023 · atualizado em 28 abr 2023
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