FREE Torts MBE Practice Test 2017

Question 1

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?

Accepted Answer

Yes, the association has a duty similar to a landlord because under the operating rules of the association, it had the responsibility for security, lighting, maintenance and improvements in all common areas.

Answer

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.

Question 2

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?

Accepted Answer

Yes, because he was absolved from further responsibility after he did take reasonable steps to have her warned.

Answer

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.

Question 3

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?

Accepted Answer

No, the court cannot order a party removed from an action; instead, that is a function of the jury.

Answer

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.

Question 4

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?

Accepted Answer

The defendants had a constitutional right to discuss and publish theories of politics and ideas that were not presented as truth but as theory of the current political system, and the case would be dismissed.

Answer

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.

Question 5

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?

Accepted Answer

Yes, because the mall owes a duty to its business invitees to inspect and discover dangerous artificial conditions on the premises; the mall must make these safe or post a conspicuous warning of the danger.

Answer

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.

Multistate Bar Exam Practice Test

Multistate Bar Exam Practice Test

FREE Torts MBE Practice Test 2017