FREE Torts MBE Practice Test 2017
A man was visiting his investment counselor on the 20th floor of an office building. After the meeting, he got on the elevator going down and pressed the button for the lobby. When the elevator got to the second floor it lost its momentum to stop and instead went into a freefall to the basement. The man sustained a broken back and is permanently disabled. Assume that the injured man was unable to uncover any evidence proving what caused the collapse of the elevator. He sues the building owner on a negligence theory. In order to survive a motion for summary judgment, what legal principle can he turn to for assistance?
Res ipsa loquitur allows for negligence to be inferred, or for a rebuttable presumption of negligence, from the mere fact that an accident has happened. This is based on it being the kind of occurrence that does not normally happen unless there has been negligence, and in this case the instrumentality causing the injury was in the exclusive control of the defendant. The remaining requirement is that the event must not have been contributed to in any way by the plaintiff.
Two teens were hired to assist the custodial staff at a high school over the summer as part of a summer youth program sponsored by the Board of Education. It was known that young children played and congregated on the outside school grounds over the summer. When their supervisors were on coffee break, the two teen assistants went into the unlocked chemistry lab where the confiscated magnesium and potassium nitrate, which they placed in sandwich baggies and hid outside the school in the bushes, where they intended to retrieve it later. An 8-year-old child came along and found the bags, and thinking them to be play dust, he played with the substances and with some matches he had found. The chemicals ignited and caused the boy severe burns over his hands, face and neck. His parents, on behalf of the boy, sued the school district for all proximately caused injuries, and a jury awarded damages to the boy. The school district appealed. Will the appellate court affirm the award based on negligence and negligent supervision of the teens?
There was a duty owed to the 8-year-old because his presence on school property over the summer was foreseeable, and there were other children on the grounds. The school district was negligent in not following its own rules and keeping the chemistry lab locked and inaccessible. It was foreseeable that chemicals would be sought out by teenagers allowed in the lab. To establish a prima facie case, plaintiff must show that defendant's negligence was a substantial cause of the events which produced the injury. An intervening act will be deemed a superseding cause and will serve to relieve defendant of liability when the act is of such an extraordinary nature or so attenuates defendant's negligence from the ultimate injury that responsibility may not be reasonably attributed to the defendant. When, however, the intervening act is a natural and foreseeable consequence of a circumstance created by defendant, liability will subsist. Prosser, Torts (4th Ed), § 44, pp 272-280.
A young man had a venereal disease called genital herpes. He had unprotected sexual relations with a young, married female co-worker but did not tell her of the disease. She later had relations with her husband, who became infected. The husband sued the young man for negligence in not telling the wife of the danger, thus being the cause of her passing it on to him. The defendant filed a motion to dismiss the complaint, alleging that the husband had no action against him because there was no legal causation. Will the court dismiss the complaint as a matter of law?
The law imposes a duty on those who have a venereal disease to protect others who might be in danger of being infected. By having unprotected sexual relations with the woman, the young man breached the duty of reasonable care imposed on him. By knowing that she was married, the young man tortfeasor was able to reasonably foresee that the young woman would have relations with her husband and that the husband could contract the disease in due course.
A patient calls his doctor and tells him personally on the phone that he is a “butcher” and one of the most incompetent money-grubbing doctors he has ever encountered. He accuses him of having botched up the caller’s recent appendectomy operation because the caller still has the same excruciating pain as before the surgery. He says that everyone knows that the doctor can’t “hold a scalpel steady” anymore, and that everyone knows that his new home is the bar at the Colonial Country Club. The caller hangs up. The doctor brings a slander per se action against the former patient based on the phone call. The defendant eventually moves for a summary judgment dismissal. What is the likely decision based on the foregoing given facts?
There must be a publication of the defamatory statement, meaning it must be communicated to a third person other than the doctor himself. There is nothing here to indicate that the caller said any of these things to anyone other than the doctor. If a nurse had been listening on an intercom or if the conversation was on speaker phone with others in the room than it could be asserted to be slander per se.
An article appeared in a magazine dealing with public issues. The article discussed the author’s “personal theory” that a small group of industrial magnates, called the American Illuminati, controlled the government of the United States, regardless of the political party in power. The article mentioned names, and described how they generally aggrandized their economic power by keeping the poor down and concentrating all wealth at the top. The author believed that as long as these “fascist” individuals were ruling behind the scenes, that children here would continue to be deprived of food, a quality education and the right to true freedom. He called the group the “murderers” of the American spirit that once lived free. He concluded that if his “theory” was true, then the country must rise up and “bring down” this system of non-democratic governance. One of the individuals mentioned in the article, a well-known billionaire philanthropist who supported various political movements and candidates, brought a libel action against the author and the magazine. The defendants asked the court to dismiss the action because it failed to state a valid legal claim. Which of the following is the most likely ruling of the court under these circumstances?
Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in "uninhibited, robust, and wide-open" debate on public issues. The author here presents his essay as a “theory” and calls for bringing down a “system of non-democratic governance” if such system is found to really exist. There is a constitutional privilege for statements of opinion. Gertz v. Welch, 418 U.S. 323. See also, New York Times Co. v. Sullivan, 376 U. S. 254 (1964), which would apply here to rule out a claim for libel. New York Times applied to public officials but the Supreme Court extended the protection against libel to include discussions of public figures. See Curtis Publishing Co. v. Butts and its companion, Associated Press v. Walker, 388 U. S. 130, 162 (1967). The well-known billionaire philanthropist in our question qualifies as a public figure.
A foreman in a slaughterhouse approached three female workers who were taking a proper 15-minute break and accused them of laziness, not doing their jobs, incompetency and taking an unauthorized break. He shouted profanities, various insults and accused them of “breaking the rules.” After a one-minute tirade, he left the area. One of the workers, a 69-year-old woman, became immediately ill, with complaints of chest pains, shortness of breath and anxiety. The employer transported her to a local hospital, where she remained for two days. Although all tests were negative, the doctor diagnosed severe panic attack. Despite no need for further treatment, and an apology from the foreman, she remained upset and stressed. She sued the foreman and the company for one count of intentional infliction of emotional distress, along with other claims. The defendants filed a motion to dismiss the intentional infliction count for failure to state a legal claim. Will the judge grant the motion and dismiss the intentional infliction count preliminarily?
See Howell v. New York Post Co., 81 NY 2d 115, 122 (NY Ct of Appeals 1993) (Liability is found only where the conduct has been so atrocious, outrageous and so extreme as to go beyond all possible bounds of decency, and must be “utterly intolerable in a civilized community”). See Murphy v. American Home Products, 58 N.Y.2d 293, 303, citing Restatement [Second] of Torts § 46, comment d (Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities). See also, Hoffmann-La Roche Inc. v. Zeltwanger, 144 SW 3d 438, 445 (TX Sup.Ct. 2004) (behavior must be so severe and outrageous that no reasonable person could be expected to endure it). The defendant must have intended to inflict emotional distress, and the plaintiff’s reaction must be very severe. The current facts just don’t qualify for that kind of outrageousness. If this type of somewhat common temper tantrum were given actionable status in the workplace, the flood-gates would be opened to an overflow of cases, which is frowned upon by the courts.
A waitress was opening a bottle of a popular soft drink to serve to a customer when the bottle broke into two jagged pieces and inflicted a deep and long cut that severed blood vessels, nerves and muscles of the thumb and palm of the hand. She later had to have several operations to restore use of and feeling in the hand. In a lawsuit against the manufacturer, the waitress alleged negligence and strict liability in tort, but found it difficult to prove the nature of the defect. She presented several witnesses familiar with the fact that some of the bottles would explode, but the cause was unknown. She proved that she did nothing wrong with the bottle and that it remained in the same condition as when it left the manufacturer’s plant. She also proved by expert testimony that there were tests that the manufacturer performs or can perform on the bottles to give a fairly foolproof determination whether the bottle is safe. The defendant moved for summary judgment for failure to prove a defect and failure to show causation. What legal theory can the plaintiff rely on to establish liability in this kind of a situation?
Res ipsa loquitur applies if the following exist: (1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not be due to any voluntary action or contribution on the part of the plaintiff and (4) evidence as to the true explanation of the event must be more readily accessible to the defendant than the plaintiff (Prosser, Torts [3d ed.], 218).
Plaintiff was a lifeguard at a summer day camp. The camp maintenance crew placed the lifeguard chair at the shallow end of the pool. They also carelessly set the water level slightly below its normal capacity. Plaintiff decided to help a swimmer by recklessly jumping from the lifeguard chair into the most shallow point of the pool. He suffered spinal cord damage and paralysis. He sued the camp owners for negligence and substantial damages. Plaintiff admitted that he knew the relative depths of the water at all points in the pool, and that he was an experienced and knowledgeable swimmer and diver, when he engaged in the unwise action of jumping into the shallow end. The camp proved through forensic engineering testimony that the lower water level caused by the maintenance crew was not a key factor in the accident or the injury. The camp filed a motion for summary judgment, claiming that the claim was precluded as a matter of law, and thus nothing for the jury to decide. What is the likely decision of the court on the motion?
It was not foreseeable that an experienced, seasoned lifeguard would jump into shallow water at the shallow section of the pool. It is also not that unusual for a lifeguard chair to be place at that location and many other locations – this should not interfere with the lifeguard’s experienced discretion in knowing where and how to enter the pool. Therefore, this was a highly extraordinary act that was not within the sphere of the foreseeable risk created by the defendant’s careless acts. The plaintiff’s admitted knowledge of all factors made his actions reckless under the circumstances. Thus, the unforeseeable act by the plaintiff was an intervening, superseding event that cut off the chain of liability. See Boltax v. Camp, 67 NY 2d 617, 618-19(NY Ct. of Appeals 1986). Note that the Court of Appeals of New York is the highest appellate court in that state.
A man died in a hospital of a fatal, highly contagious disease. A hospital clerk neglected the set protocol of marking the body with warnings that there was a communicable disease involved. The funeral director embalmed the body without taking extra precautions, which caused him to have a great deal of contact with the corpse’s blood and fluids. When he found out about the disease, he sued the hospital for damages, including severe emotional distress. Which of the following is the most likely tort theory that the plaintiff can successfully assert against the hospital?
With respect to battery, there is a lack of proof of actual intent by the hospital. The same defense would apply to the tort of assault. Intentional infliction of emotional distress also fails on the intent issue, and the actions were not outrageous enough to establish the kind of egregious behavior necessary for that tort. Intent with respect to these torts is defined in the Restatement in effect that the actor intends to cause the consequences of his act or that he believes that the consequences are substantially certain to result. It is much more likely that negligence, being the lack of due care under the circumstances, is the tort action that has the best chance of being successful. The danger to a funeral home personnel, who are often required to embalm bodies, was foreseeable. The hospital had a duty to prevent that kind of injury to a company that it did business with regularly.
A customer was shopping at a large retail mall. She slipped and broke her hip on a patch of clear oily residue. It had accumulated over a two-day period in front of a massage kiosk, and spread several feet onto the main walking area for customers. There was a small sign as a part of the massage kiosk display on the front counter that said, “Beware of slippery floors.” The customer had been looking ahead and walking when her feet slid wildly off of the floor and sent her body somersaulting into the air and down onto the concrete foundation. After learning that she would be disabled permanently, she sued the mall and the massage company. Will she likely prevail in her negligence claim against the mall?
The highest duty is owed to the business invitee. In this case a customer shopping for goods was a business invitee, as opposed to a trespasser or mere licensee. The duty owed to a business invitee includes inspecting for dangers, and making them safe, or posting a noticeable warning of the danger. Here, the oil had spread out into the main walkway and, although the kiosk had a duty to clean it up, the mall also was responsible, particularly for its main walkways.
A motorist is making a left turn at a traffic light. When the light turns yellow he waits a second and decides to try and rush through the left turn. He is hit broadside by a car traveling through the intersection with the right of way. The investigating police officer points out the sign above the light that informs motorists to make a “left turn on signal only,” meaning that there was a left turn arrow that he was supposed to wait for prior to negotiating the turn. The officer gives him a ticket for “improper left turn.” The motorist pays the ticket. The other driver was severely injured and sues the motorist for negligence. The injured driver asserts in the complaint that the violation of the traffic ordinance is proof of “negligence per se.” Will the court instruct the jury that there was negligence per se?
Negligence per se is generally applied as a presumption of negligence where a violation of law results in the precise type of injury that the legal provision seeks to prevent and protect against. The violation that the defendant receives must be directly related to the actions that caused the accident. If the ticket is for not having operating brake lights, but the accident is caused while making a left turn then there is no negligence per se. The plaintiff must be one of the category of persons intended to be protected by the particular law. If the defendant is making an improper left turn but she rear ends another vehicle after the left turn is completed, then the injured person is not within the purview of the persons intended to be protected by the 'improper left turn' violation that the defendant received. In that event, there can be no negligence per se because it is irrelevant in these facts whether the defendant made a proper left turn.
A neighborhood residents group sued a non-profit Community Services organization, which sponsored a free meal program for indigent persons from throughout the city. The lawsuit asked the court to issue an injunction against the program because it was a nuisance. The program was so successful that the large numbers of indigent persons coming into the neighborhood had visibly changed its residential character. The patrons did not come for their meals and leave in an orderly manner. Instead, they remained in the neighborhood, often urinating on neighbors lawns, throwing litter on the private properties, and drinking alcoholic beverages. Some of the patrons of the program began panhandling on the sidewalks and approaching neighbors as they entered and exited their homes. The police were called regularly, and certain unoccupied buildings had been entered by the patrons. Will the court likely issue an injunction closing the free meal program?
The organization can have certain activities enjoined due to the acts of patrons who inflict damage to surrounding residential properties and interfere with people’s right to use and enjoy their land. An injunction to protect and preserve these rights is an appropriate measure, after a balancing test of the factors is made. The mere fact that the police might be able to provide relief is not sufficient to eliminate the need for an injunction. See Armory Park Neighborhood Assn v. Episcopal Community Services, 712 P.2d 914 (Ariz. 1985). Here, the interference was clearly substantial and unreasonable.
Two union representatives got in an argument at work. The male rep told the female rep that he was running for president of the local union in the next election. The female rep told him that she had been planning to run. He told her, while pointing a finger in her face, “I could whip you in an election any time, or I could beat you silly right here and now.” The female rep walked away, feeling very apprehensive about the male rep’s threat. The next day, they discussed union politics again, and the male rep once again stated that he could beat her “by votes or by a horse whipping, whichever you prefer.” She became very upset, and a few days later brought a civil action against him for assault. Has the man likely committed an actionable assault?
An assault for civil action damages consists basically of an action or movement with the intent to cause a harmful or offensive contact, or to cause apprehension of such contact, where the victim is put in reasonable apprehension of an imminent harmful or offensive contact. Here, all the elements are clearly met and the female rep would have an assault claim in civil court. That doesn’t mean that the claim would be worth much, or worth the trouble of suing, but if the threats became repetitive, the long-term emotional trauma to a defendant could become significant.
An industrial manufacturing plant was producing large volumes of a new chemical combination to be marketed worldwide that was guaranteed to instantly and humanely kill death row inmates receiving their executions. The plant was blowing the exhaust fumes from the manufacturing process out into the atmosphere through massive industrial fans, apparently to help protect employees inside the complex. On days with a wind in the air, the invisible particles were traveling to adjacent neighborhoods and creating a permanent, invisible coating that was detectable by scientific testing. The highly dangerous chemical film had destroyed a number of residential homes – consulting experts advised the residents to move out of the homes and to raze the structures. These residents brought actions against the manufacturing plant for the damages they suffered, including pain, suffering and distress. What is the likely successful theory that they will assert against the manufacturer?
There is absolute liability for the creation and use of an abnormally dangerous condition or activity that the defendant is aware of and that directly causes damages. This is a strict liability tort so that negligence does not have to be proved.
A group of high school teenagers attended an all-night rave party at a local dance hall. The driver of the group purchased and took several ecstasy pills while there. When she attempted to drive home the next morning, she fell asleep and crashed into a tree, killing one passenger. She tested positive for ecstasy. The owner had rented the facility for the evening to a private group of college students. The owner kept its employees on the premises for security. The owner took numerous steps to prevent drug use, including searching attendees, confiscating drugs, and evicting drug dealers. The estate of the deceased teen sued the owner of the dance hall. The owner filed a motion to dismiss because it asserted no legal duty owed to the decedent. The plaintiff argued that the owner should not be allowed to use its facility for an all-night party, and that it was highly foreseeable that teen drivers and passengers would be put at risk. Will the court likely grant the motion to dismiss?
Simply providing the venue for a party without actively providing intoxicants or drugs is not enough to raise a legal duty to the attendees. See Sakiyama v. AMF Bowling Centers, Inc., 1 Cal. Rptr. 3d 762, 768, 110 Cal.App.4th 398 (CA Ct. of Appeal, 2d App. Distr. 2003). Foreseeability does not alone establish a legal duty; there are other factors to weigh, including public policy factors. Thus, defendants who simply provide venues for drinking alcohol or raves where ecstasy may be used do not owe a duty of care to plaintiffs killed or injured by guests despite the foreseeability of car accidents. Id. 772-73. Furnishing drugs would make a difference but that did not happen here. Accord, Looby v. Local 13 Productions, 751 A.2d 220 (Pa.Super. 2000).
A retail store sales person was accused of taking money from the cash register. She was taken into a back room and interrogated by the manager and two security guards. They told her that she was caught on camera, there was a customer who witnessed her theft, and she should confess. She refused, persisting in her innocence. She became highly agitated and tried to leave twice but each time the security guards stood in her way, saying they would call the police if she chose to leave. She eventually broke down and started sobbing, still claiming innocence. They then revealed that there was no customer witness and no video. It was simply a test to see if she was the thief. They now believed she was innocent, and allowed her to go home. The hour-long ordeal caused her emotional trauma, headaches, and nightmares, all of which required medication and treatment. She sued for false imprisonment. Does she have a liability case for that tort?
The tort consists of the nonconsensual, intentional confinement of a person, without lawful privilege or cause, for an appreciable length of time, however short. That length of time can be as brief as 15 minutes. Restraint may be effectuated by means of physical force, threat of force or of arrest, confinement by physical barriers, or by means of any other form of unreasonable duress. (See Rest.2d Torts, § 40A.). See Fermino v. Fedco, Inc., 872 P. 2d 559 (Calif. Sup. Ct. 1994). Here, the employer appears to have had no good reason for the confinement – it was fishing expedition, and an emotionally brutal one at that.
A motorist was in a fierce head-on collision with another vehicle at an intersection. The other driver was negligent and caused the collision. The motorist sustained a fractured back along with a severe head injury that caused her to have brain damage and paraplegia. She was adjudicated incompetent and placed in a nursing home. A guardian was appointed who sued the other driver and the manufacturer of the motorist’s automobile. The other driver settled early for policy limits of $100,000. The case then went to trial against the auto maker. The claim was for strict liability in tort charging that the seats, dash and assist grip installed in the vehicle were defectively designed, unreasonably dangerous and caused the plaintiff enhanced injuries. The manufacturer claimed that it did not cause the accident and that it was not the cause of any enhanced injuries. It argued that the plaintiff had to prove precisely what injuries he sustained that were caused by the manufacturer. Based on the traditional Restatement rule, what is the causation standard that the court will instruct the jury to use in its decision?
Defendants are deemed concurrent tortfeasors because their independent acts combine to cause a single injury. Under this theory, plaintiff has the burden of presenting sufficient evidence to prove to the jury that each defendant's act (the original tortfeasor's negligence and the manufacturer's defective product) was a substantial factor in producing the plaintiff's injuries. Should the plaintiff's injuries be indivisible, the defendants are held jointly and severally liable as concurrent tortfeasors for plaintiff's total damage. If reasonable minds could differ on whether the plaintiff's injuries are divisible, the trier of fact determines whether the injury can be reasonably apportioned among the defendants and the extent of each defendant's liability.
An industrial truck sales and service center had a wide variety of rigs, trucks and tractors in its multi-acre gated main parking lot. There was a set of keys in each vehicle. The entrance gate was intentionally left open during the day for convenient ingress and egress. A gang member from a nearby gang headquarters walked into the parking lot during work hours, and drove off with a very large state-of-the-art industrial tow truck. He had difficulty managing the gear shifts and other knobs while accelerating, and was so distracted that within a few minutes he ran over and killed an elderly woman in a cross walk. The woman’s estate sued the truck center for negligence. The defendant service center filed a motion to dismiss, in which it asserted that it had no duty to third persons to protect them from truck thieves. It argued that even if it had a duty, the interceding act of the thief was a superseding cause of the accident. Will the court allow the plaintiff’s wrongful death negligence action against the truck center to go forward?
Here, the powerful nature of the vehicle and the difficulty in operating it without training created “special circumstances”, which is an exception to the general rule that simply leaving the keys in the vehicle is not enough for foreseeability. See Palma v. U.S. Industrial Fasteners, Inc., 36 Cal. 3d 171, 183-86, 203 Cal. Rptr. 626, 681 P.2d 893 (1984). In Palma, defendant parked a large flatbed truck overnight in an unfenced lot in a high-crime area with keys inside, door unlocked, and window open. This was held to be a triable issue of foreseeability. Id. at 186. In a negligence case, a plaintiff must prove that the defendant’s act created a foreseeable zone of danger of such magnitude that the defendant owes a duty to the plaintiff to refrain from engaging in the act. Herrera v. Quality Pontiac, 134 N.M. 43, 73 P.3d 181, (2003).
Every evening a bill collector would call the plaintiff every 30 minutes throughout the night. The caller would make threats about collecting the money owed but would also mention personal facts about the plaintiff’s private life, such as the names of his two prior spouses, the names of his children, his prior jobs, a prior lawsuit against him, and many other personal matters. Then packets of mail would arrive with photos indicating that the bill collector was following plaintiff and taking photos of him in his yard, outside with his dog, at family picnics and doing odd jobs around his house, and even inside his house, leading plaintiff to suspect and believe that a micro-video device was planted in his home. The plaintiff felt that nothing was sacrosanct and that the harasser seemed to know everything he did and everything from his past. He finally obtained information on the identity and address of the company engaging in the activities, and sued it for invasion of privacy and violations of federal and state fair debt collections practices acts. With respect to the invasion of privacy tort, will the court grant the motion to dismiss filed by the defendant company?
The tort prohibits spying, probing, peering and such stealthy activities into one’s private life and activities. The activities are judged by an objective standard of what would be offensive to a reasonable person under the circumstances. These activities are so intrusive and continuous as to constitute a true interference with the plaintiff’s right to privacy and the peaceful enjoyment of his life.
A patient confided to his psychologist that he was having urges to kill his former girlfriend. The psychologist notated those urges in his office notes and called the referring customer, the security department of the patient’s employer, asking them to take care of warning the potential victim and taking any other necessary action. The security department did nothing. The patient continued to repeat the urges in therapy sessions but the psychologist felt assured that his notifying the employer was sufficient protective action. About 30 days after first sharing the homicidal urges, the patient shot and killed his former girlfriend in her parents’ home. The parents sued the psychologist and the security department of the employer for negligence. The psychologist filed a motion to dismiss, alleging no legal duty to the victim and, despite having no duty to her, that he took reasonable steps to warn and protect her. Will the court likely dismiss the case as a matter of law against the psychologist?
Once a therapist does determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. While the discharge of this duty of due care will necessarily vary with the facts of each case, in each instance the adequacy of the therapist's conduct must be measured against the traditional negligence standard of the rendition of reasonable care under the circumstances. That is usually a decision for the jury to make after all of the factual evidence is in.
A woman gets a phone call from a man representing himself to be a disabled veteran, asking for funding for the charitable group, “Veterans Welfare United,” that contributes its funds to disabled veterans of the Iraq and Afghanistan wars. He tells her that it is an established and respected national organization that has helped thousands of veterans. He tells her that a good 80% of the funds collected go directly to disabled veterans. She agrees to enter a program for automatic payments from her checking account of $500 per month. After one year, she discovers that the organization is only 20 months old, it provides 40% of its funds directly to disabled veterans and it has helped no more than a few dozen people since it started its operation. She sues the organization for misrepresentation, and includes the foregoing facts in the complaint. The organization files a motion to dismiss, arguing that the complaint fails to allege the elements of misrepresentation and the case should be dismissed as a matter of law. Will the court likely dismiss the action for failing to state a legal claim? No, because the organization made material misstatements of fact in an attempt to mislead the woman into making an investment. No, because the tort of misrepresentation is based on negligence, and the organization was negligent in making the claims that it made. Yes, the organization was merely engaging in “puffing” and exaggerating its claims for general effect. Yes, the telemarketer who called her was exercising his first amendment right to express an opinion; it is always up to the buyer to research a telephone solicitation for accuracy and truthfulness.
The tort of misrepresentation is an intentional tort that includes the making of statements of material fact, with the intent to mislead, that are false, and that are justifiably relied by the victim in suffering actual damages.
A 35-year-old married man who worked for many years as a roofing and siding installer for a contractor was rear-ended by an 18-wheeler while stopped at a stop light. He sustained multiple fractures and lesions along his spinal cord and was declared by his doctors and the trucking company’s doctors to be totally and permanently disabled. In his suit against the trucking company, the damages include a demand for compensation for the permanent loss of earnings of the plaintiff for the remainder of his work life. How does the plaintiff best prove what amount he is entitled to receive for future lost wages, i.e., permanent and total loss of earning capacity?
An actuarial expert gets on the stand and explains in a step-by-step process how to compute the figure of lost earnings for the remainder of the man’s life. The appropriate expert for this is an economist or actuary. The figure must be reduced to present value so the defendant gets that discount and the plaintiff must invest it to get the extra interest that has been deducted by the discount rate.
Three seven-year-old boys crawled through a hole in a fence at the end of a school playground, and entered an active railroad switching yard. They climbed on top of a freight car and one of them was electrocuted by a high voltage wire. The fence they crawled through was owned and maintained by the local school district, which owned the playground. The rail yard was owned by the Penn Central Co. The deceased boy’s father brought a wrongful death action against both the city and the railroad company. There were several holes in the fence that were used by kids to come and go from the railroad yard. There were four prior incidents at the railroad yard where young children were electrocuted or seriously injured by high-tension wires. Both defendants filed motions to dismiss as a matter of law because the children were trespassers to whom they asserted that they owed no duty of care. The trial court agreed and dismissed the claim against both defendants. An appeal was filed. Will the appellate court affirm the dismissal?
The attractive nuisance doctrine exists in some form or another in most jurisdictions. All states place a duty on landowners for young children when it is foreseeable to the defendant that young children will come on the land and be exposed to danger from an abnormal condition which young children cannot see or cannot appreciate. The rule does not apply to an obvious danger that children can appreciate. The older the child the less likely it is that the rule will be applied. The duty is triggered on the landowner to protect the children when it is not an obvious danger, especially to children under 12. In this case, the four prior incidents make it foreseeable, and due to their young age, the children cannot be held to the maturity or understanding to appreciate the danger. The defendants both knew that there was an unreasonable risk of serious injury or death to trespassing children in this situation. The burden of taking safety measures to eliminate the burden would be minimal in comparison to the risk to the children. See Restatement of Torts 2d Sec. 339. Before a duty will be imposed on an owner or party in possession, therefore, it must be shown that he knows or should know that children frequent the premises and it must be that the cause of the child's injury was a dangerous condition on the premises. Unless these two prerequisites are met, the harm to the child will not be deemed sufficiently foreseeable such that the law will impel the owner or party in possession to remedy the condition. Logan v. Old Enterprise Farms, 139 Ill.2d 229, 236, 564 NE 2d 778 (Ill Supreme Court 1990).
A consumer purchases a lawn mower from a retail store. It contains a tag that says the purchaser should read the instruction book that is included. He reads the book, which contains a warning not to use the mower over gravel or stones or grassy areas mixed with rock or stone. The consumer remembers the warning but when he sees how smoothly the mower operates and how effortlessly it goes over a few small stones mixed in the grass, he decides to continue using the mower in areas filled with loose stones and rocks. One day a rock flies up and shatters the consumers face, causing him to lose an eye and suffer a broken nose and jawbone. He sues the manufacturer for putting out a defective product unreasonably dangerous to the consumer. What defense may give the manufacturer the best chance of having the case dismissed?
Assumption of the risk is a defense to strict liability in tort. This refers to the voluntary encountering of a risk that is explained and warned, yet the consumer proceeds to go forward. Using the product despite knowing of the stated danger.
A female condominium owner was concerned about security lighting in the large condo complex at night, and more particularly, about the lack of lighting in and around the entrances to the units, including her unit. There had been numerous prior robberies and rapes reported by condo owners in the past several years. She demanded that the homeowners’ association install security measures, including lights and security patrols, to protect the residents. The association took it under advisement but ultimately voted to take no action. She installed her own lighting system and the association demanded that she take it down or suffer costs and penalties, because only the association could control the common areas and how they looked and were lighted. She complied, and shortly thereafter she was robbed and brutally raped one evening as she entered the dark, deserted contours of her front hallway after unlocking her front door. She sued the homeowners’ association for negligence. The association countered that it had no duty to the owner, and that it was not similar to a for-profit landlord who did owe a duty for the security of common areas. The trial court dismissed the complaint as failing to state a claim and she appealed. Will the appellate court recognize that the association had a duty to use due care to protect the homeowners?
The function of the homeowners association is analogous to that of a landlord and the association owed a duty to plaintiff to protect her from the foreseeable criminal acts of others. The plaintiff alleged facts sufficient to show the existence of a duty, that defendant may have breached that duty of care by refusing to improve the lighting, and by ordering her to disconnect her additional lights, and that this negligence, if proved, was the legal cause of her injuries.
A married couple had an agreement to purchase land from a developer. The couple at the same time signed a contract with a builder to build a home on the land, construction to start immediately after closing on the land purchase. When the developer learned of the contract with the builder, he told the couple that he would not sell them the land. The developer told the couple that he would sell the land only if they contracted with him to build the home, and based on his experience and knowledge of the codes, inspections, permits and other requirements, the job would be done far quicker than the builder. He drew up a contract for the same specifications, but the price was 10% less than the one with the builder. Can the builder successfully sue the developer for his losses?
The intentional tort of interference with contract must allege (1) a valid contract, (2) defendant’s knowledge of the contract, (3) defendant’s intentional interference with the contract and a resulting breach, and (4) damages. All of these elements can be fairly found in the stated facts.
Two women are married in a state that recognizes same-sex marriages. One of them is driving home from work one day when a man in a pickup truck goes through a red light and rams into the woman’s car. She has to be extricated and is taken to the hospital. This puts a terrible strain on her spouse, and numerous functions in their life are disrupted. The injured woman sues the pickup driver for tort damages. Her spouse joins as a plaintiff. The defendant objects, arguing that there is no legal basis for allowing the marital partner to join in the case. Will the court order the spouse to be dismissed from the action?
The parties in almost all states must be married, for a loss of consortium claim to be made. Generally, the spouse joins in the action and asserts a separate count in his or her name alone, for loss of companionship, affection, love, sexual relations and household services. There is no justification for denying a loss of consortium claim to a spouse who is in a same-sex marriage.
A mother was called by a witness to the scene of an accident in which her son was involved. She did not observe the accident, and arrived about 15 minutes later. When she arrived the cars had been towed away and the scene was substantially cleared of debris. However, she saw her son, conscious but on an oxygen ventilator, being lifted onto the rear of an ambulance and driven away. She suffered emotional distress, thinking that her son was severely injured and not knowing at that moment whether he would survive or not. The son did survive the accident and recover. She later sued the other driver who had caused the accident by his negligent driving. She asserted the tort of negligent infliction of emotional distress in her complaint. The defendant filed a motion to dismiss, asserting that he had no duty to compensate the victim’s mother and that the mother did not observe the accident. Under the view expressed by the majority of state court decisions, will the court likely grant the motion and dismiss the case?
In most states, the action is allowed but there are restrictions. The plaintiff must be closely related to the victim, and she must be present at the time of the accident and witness the trauma to the son. She must then suffer severe emotional distress, which is the kind of distress that a normal person would be unable to adequately cope with. A minority view says that she can arrive immediately after the accident, before any changes occur, and before the victim’s location is changed; but in our example above the victim was moved and mother arrived after the scene had been cleared away. See Thing v. La Chusa, 48 Cal.3d 644, 667-68, 771 P. 2d 814 (CA Supreme Ct. 1989); Portee v. Jaffee, 84 N.J. 88, 101, 417 A. 2d 521(NJ: Supreme Ct. 1980); Clohessy v. Bachelor, 237 Conn. 31, 52-53 (CT Supreme Ct. 1996).
A female driver approached an intersection and went through just as the yellow light appeared. She accelerated to make sure she made it through in time. She collided into a car driven by a male motorist coming from the intersecting street who was getting a jump on his red light that was in the process of turning green. The two cars collided, and the male motorist was seriously injured. He sued the other motorist for negligence. A jury assessed the man’s damages award at $100,000. It found that female driver was 40 percent at fault whereas the male driver was 60 percent at fault. What, if anything, can he collect from this verdict in a pure comparative negligence state?
In pure comparative negligence, plaintiff’s recovery is limited to the percentage attributed to the defendant, even if the plaintiff was more than 50 percent at fault. Thus, plaintiff collects that percentage of the damages attributed to the defendant, which in this case is 40 percent of $100,000, for a recover of $40,000 from the defendant.
A man purchased a new car with 8 miles on the odometer. In the first week after the purchase, the gas pedal got stuck when depressed, and the car accelerated uncontrollably, eventually crashing into the front of a strip mall jewelry store and killing the cashier. The cashier’s family filed an estate, and sued not only the driver for negligence, but also the automobile manufacturer in strict liability. The manufacturer tried to defend on the basis of having no privity with the cashier. The jury returned a verdict of $3.5 million against the auto manufacturer. The manufacturer appealed, stating that strict liability for a defective product could not be extended to bystanders. Based on the more generally accepted principles of modern tort law, what will the appellate court decide regarding the right of the decedent’s estate to collect from the manufacturer?
If anything, bystanders should be entitled to greater protection than the consumer or user where injury to bystanders from the defect is reasonably foreseeable. Consumers and users, at least, have the opportunity to inspect for defects and to buy only from reputable manufacturers and reputable retailers, whereas the bystander ordinarily has no such opportunities. In short, the bystander is in greater need of protection from defective products which are dangerous.
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