FYLSX Torts: Negligence and Causation 3 — Questions and Answers
Question 1: A statute requires all swimming pools to be enclosed by a fence of at least four feet. A pool owner builds a three-foot fence. A child climbs it and drowns. The court applies negligence per se. What must the plaintiff still prove?
- Nothing — negligence per se establishes complete liability
- That the child was an invitee, not a trespasser
- That the statutory violation caused the plaintiff's damages and that plaintiff is in the class the statute protects (Correct answer)
- That the defendant had subjective knowledge of the risk
Correct answer: That the statutory violation caused the plaintiff's damages and that plaintiff is in the class the statute protects
Negligence per se establishes the breach element, but plaintiff must still prove causation, damages, and that they belong to the class the statute was designed to protect.
Question 2: A surgeon operates on the wrong knee due to a pre-operative marking error by a nurse. The plaintiff cannot prove exactly what happened during surgery. Which doctrine may allow the case to proceed?
- Assumption of risk
- Res ipsa loquitur (Correct answer)
- Negligence per se
- Last clear chance
Correct answer: Res ipsa loquitur
Res ipsa loquitur permits an inference of negligence when the injury would not ordinarily occur without negligence, the instrumentality was in defendant's control, and plaintiff did not contribute.
Question 3: A defendant negligently starts a fire that destroys a plaintiff's house. Unbeknownst to either party, a separate arsonist had also set a fire that would have destroyed the same house at the same time. Which causation test applies?
- But-for test — defendant is not liable because the house would have burned anyway
- Substantial factor test — defendant is liable because their fire was a substantial factor in the destruction (Correct answer)
- Market share liability — liability is split based on contribution
- Alternative liability — burden shifts to defendant to disprove causation
Correct answer: Substantial factor test — defendant is liable because their fire was a substantial factor in the destruction
When two independent sufficient causes each would have caused the harm, courts use the substantial factor test because the but-for test would exonerate both tortfeasors.
Question 4: A school fails to supervise students during recess. One student hits another with a stick, injuring her eye. What is the most accurate statement regarding the school's duty?
- Schools owe no duty for students' spontaneous acts during recess
- Schools owe a duty to supervise students and prevent foreseeable harm from student conduct (Correct answer)
- The school is strictly liable for all injuries on its premises
- Duty only arises if the school had prior notice of that specific student's violent behavior
Correct answer: Schools owe a duty to supervise students and prevent foreseeable harm from student conduct
Schools stand in loco parentis and owe students a duty of reasonable supervision, including protection from foreseeable harm caused by other students.
Question 5: A plaintiff sues for emotional distress after witnessing her child struck by a negligently driven car. She was not in the zone of physical danger herself. Under the majority bystander rule (Thing v. La Chusa factors), what must she show?
- Only that she suffered severe emotional distress
- That she was present at the scene, closely related to the victim, and personally observed the injury (Correct answer)
- That she was within the foreseeable zone of danger
- That she required medical treatment for her emotional distress
Correct answer: That she was present at the scene, closely related to the victim, and personally observed the injury
Under the majority bystander NIED rule, recovery requires close relationship to the victim, contemporaneous presence at the scene, and direct sensory observation of the injury.
Question 6: A contractor negligently cuts a gas line, causing an explosion at a nearby restaurant. The restaurant owner suffered property damage and lost profits for three months. Can the owner recover lost profits under negligence?
- No, purely economic losses are not recoverable in negligence absent physical harm to property
- Yes, because the property damage provides the hook for all consequential losses (Correct answer)
- No, only personal injury damages are recoverable in tort
- Yes, but only if the contractor had a contractual relationship with the restaurant owner
Correct answer: Yes, because the property damage provides the hook for all consequential losses
Where the plaintiff suffers physical property damage, consequential economic losses flowing from that damage are recoverable as part of total damages.
Question 7: Under the rescue doctrine, a firefighter is injured while rescuing victims from a negligently caused building fire. The building owner argues the firefighter assumed the risk. What is the most likely result?
- The firefighter recovers because the rescue doctrine abolishes assumption of risk for rescuers responding to the tortfeasor's negligence (Correct answer)
- The firefighter cannot recover because professional rescuers assume all occupational risks
- The firefighter can only recover if the building owner's negligence was intentional
- The firefighter recovers only workers' compensation, not tort damages
Correct answer: The firefighter recovers because the rescue doctrine abolishes assumption of risk for rescuers responding to the tortfeasor's negligence
The rescue doctrine holds that a negligent defendant who endangers a person is liable to rescuers injured in the rescue, and assumption of risk is typically unavailable against rescuers.
FYLSX Torts: Negligence and Causation 3
A statute requires all swimming pools to be enclosed by a fence of at least four feet.
A pool owner builds a three-foot fence.
A child climbs it and drowns.
The court applies negligence per se.
What must the plaintiff still prove?