Torts 2 Finale

Joint and Several Liability, Indemnity and Contribution, Actual Cause: The But for Test, Contributory Negligence and Comparative Negligence, Traditional Strict Liability, Strict Products Liability & defects, Misrepresentation, Products Liability

Lisa, a 13-year-old, sneaks onto Hillary’s property, which has access to a natural lake. Hillary has posted ‘‘no trespassing’’ posters all over her property. Lisa jumps into the lake and nearly drowns, suffering brain damage. Lisa sues Hillary for negligence. Hillary argues that the case cannot go forward because she owes Lisa no duty. The jurisdiction has replaced the traditional approach to landowner liability with the dichotomy approach (duty owed to Licensee and Invitee), and it recognizes the attractive nuisance doctrine of the Restatement (Second) of Torts.

How should the court rule on Hillary’s argument?

• court should reject Hillary’s argument under the attractive nuisance doctrine

• the court should reject Hillary’s argument, because a a duty is owed to trespassers under the dichotomy approach.

• the court should reject Hillary’s argument, because Lisa is a foreseeable p and Hillary was engaged in risk creation, unless there is compelling policy reason not to impose such a duty

• the court should accept Hillary’s argument.

• the court should accept Hillary’s argument

Under dichotomy, both licensees and invitees are treated to the normal duty rules. Trespassers continue to be governed by the willful and wanton misconduct approach. Though the jurisdiction recognizes the doctrine set forth in rst, it cannot help Lisa in this case. This is a natural condition of the lake, a lake, and not an artificial one.

Farah invites Sam over for dinner. Farah cleans up the house before Sam arrives and waxes the floor of the kitchen so that it shines. The floor is very slippery, although it is impossible to tell that just by looking at it. Sam walks into the kitchen, slips and breaks his collar bone. Sam sues Farah for negligence in a jurisdiction that uses the traditional “trichotomy” approach to landowner/land occupier liability. Farah argues she owes no duty to Sam. How should the court rule?

• Farah owes Sam no duty of care because he is a social guest

• Farah owes duty of care to Sam, if the danger from the slippery floor was not easily seen

• Farah owes the normal negligence duty of care to Sam, because he is foreseeable plaintiff and she was engaged in risk creation

• Farah owes Sam a duty only to avoid engaging in willful and wanton misconduct

• Farah owes duty of care to Sam, if the danger from the slippery floor was not easily seen

Under traditional approach, Sam is a social guest, meaning he counts as a licensee. Landowners do not owe a duty of reasonable care to licensees; instead landowners must simply warn of hidden dangers or traps. This choice correctly explains that Farah owes a duty of care to Sam only if the injury from the slippery floor came from a hidden danger.

Farah invites Sam over for dinner. Farah cleans up her house before Sam arrives and waxes the floor of the kitchen so that it shines. The floor is very slippery, although it is impossible to tell that just by looking at it. Sam walks into the kitchen, slips and breaks his collar bone. Sam sues Farah for negligence in a jurisdiction which has abandoned the “trichotomy” approach to landowner/land occupier liability. Farah argues she owes no duty to Sam. How should the court rule?

• Farah owes Sam no duty of care, because he is a social guest

• Farah owes a duty of care to Sam, if the danger from the slippery floor was not easily seen.

• Farah owes Sam the duty of reasonable care under the circumstances

• Farah Sam a duty only to avoid engaging in willful and wanton misconduct

• Farah owes Sam the duty of reasonable care under the circumstances

Under modern approach which abandons the traditional approach and presumes that there is a duty even from landowners or occupiers, unless there is a compelling policy reason not to impose a duty.

A student invites a classmate over to study for exams. He picks up his apartment before his classmate arrives, and moves a small rug to cover a stain on the floor. The floor is slippery, and the rug slips on the floor when people walk over it quickly. When the classmate arrives, she walks quickly across the rug, slips, fall, and breaks her arm. She sues the student for negligence in a jurisdiction that uses the traditional “trichotomy” approach to landowner/land occupier liability. The student argues he owes no duty to his classmate. How should the court rule?

• the student owes his classmate no duty of care because she is a social guest

• the student owes a duty of care to his classmate, if the danger from the rug on the slippery floor was not easily seen

• the student owes the normal negligence duty of care to his classmate, because she is a foreseeable p and the student was engaged in creating risk

• the student owes his classmate a duty only to avoid engaging in willful and wanton misconduct

• the student owes a duty of care to his classmate, if the danger from the rug on the slippery floor was not easily seen

Under traditional approach, the classmate is a social guest, she counts as a licensee. Landowners do not owe a duty of reasonable care to licensees; instead landowners must simply warn of hidden dangers or traps. Correct answer explains that the student owes a duty of care to his classmate only if the injury from the slippery floor came from a hidden danger

A student invites a classmate over to study for exams. He picks up his apartment before his classmate arrives, and moves a small rug to cover a stain on the floor. The floor is slippery and the rug slips on the floor when people walk over it quickly. When the classmate arrives, she walks quickly across the rug, slips, fall, and breaks her arm. She sues the student for negligence in a jurisdiction that has abandoned the “trichotomy” approach to landowner/land occupier liability. The student argues she owes no duty to her friend. How should the court rule?

• student owes his classmate no duty of care, because she is a social guest

• the student owes a duty of care to his classmate, if the danger from the rug on the slippery floor was not easily seen

• the student owes his classmate the duty of reasonable care under the circumstances

• the student owes his classmate a duty only to avoid engaging in willful and wanton misconduct

• the student owes his classmate the duty of reasonable care under the circumstances

Correctly explains that the normal duty rule apply under the modern approach, even for social guests, unless there is a compelling policy reason to hold that the d does not owe a normal duty to the p

A 10-year-old girl sneaks onto a landowner’s property, which has access to a natural rock cliff. The property owner has posted large “no trespassing” signs all over his property. The girl climbs the cliff and nearly reaches the top when she falls, breaking her neck. The girl sues the landowner for negligence. The landowner moves to dismiss the case, arguing that he owes the girl no duty. The jurisdiction has replaced the traditional approach to landowner liability with the dichotomy approach, and it recognizes the attractive nuisance doctrine of the Restatement (Second) of Torts. How should the court rule on the landowner’s argument?

• the court should reject the landowner’s argument, under the attractive nuisance doctrine

• the court should reject the landowner’s argument, because a duty is owed to trespassers under the dichotomy.

• the court should reject the landowner’s argument and impose a duty on the landowner was engaged in creating risk, unless there is a compelling policy reason not to impose such a duty

• the court should accept the landowners argument
  

• the court should accept the landowners argument

Under dichotomy, both licensees and invitees are treated to the normal duty rules. Trespassers continue to be governed by the willful and wanton misconduct approach. Though the jurisdiction recognizes the doctrine set forth in rst, it cannot help Lisa in this case. This is a natural condition on the land, a cliff, and not an artificial one.

Tonya gets great seats to see her favorite baseball team, the Brawlers, play at the Brawlers’ stadium. The seats were right behind the Brawlers’ dugout. Unfortunately, in the second inning her seat collapses, causing Tonya to break some bones. The seat collapses because the owners failed to properly maintain the stadium seats.

If Tonya sues the owners of the Brawlers’ stadium for negligence in a jurisdiction that accepts the primary implied assumption of risk doctrine,

• Tonya loses her prima facie case, because the owners owe Tonya no duty to use reasonable care

• Tonya loses her prima facie case, because the owners acted reasonably

• Tonya may win her prima facie case, because the owners owed her a duty

• Tonya may win her prima facie case, because she did not consent to injury

• Tonya may win her prima facie case, because the owners owed her a duty

Questions involves a risk that is not inherent in the sporting event and therefore the primary implied assumption of risk doctrine does not apply.

Tonya gets great seats to see her favorite baseball team, the Brawlers, play at the Brawlers’ stadium. The seats are right behind the Brawlers’ dugout. Unfortunately, in the second inning Tonya gets hit in the head with a line drive foul ball hit by one of the players, giving her a serious concussion.

If Tonya sues the owners of the Brawlers’ stadium for negligence in a jurisdiction that accepts the primary implied assumption of risk doctrine,

• Tonya loses her prima facie case, because the owners owe Tonya no duty to use reasonable care.

• Tonya loses her prima facie case, because the owners acted reasonably

• Tonya loses her prima facie, because of her consent

• Tonya loses her prima facie case, because of her negligence

• Tonya loses her prima facie case, because the owners owe Tonya no duty to use reasonable care.

Arises in a jurisdiction that recognizes the primary implied assumption of risk doctrine, a duty question. Under this approach, a person who injures another through negligence a sports or recreation context is not liable for injuries that are inherent in that activity. The court says that in such circumstances the injurer owes no duty to use reasonable care to co-participators or spectators.

Phil takes a job from Dan clearing debris from a roadside after a mudslide. He works for Dan as an independent contractor, not an employee (meaning that workers’ compensation rules do not apply). As he begins working, he sees that large rocks are still rolling down the hill. He complains to Dan, who responds: “If you want to be paid, keep working. If not, you can leave.” Phil keeps working and is soon hit by a boulder, giving him a concussion.

Phil sues Dan for negligence, and the jurisdiction follows traditional rules for (secondary implied) assumption of risk. What, if anything, can Phil recover from Dan in his negligence suit?

• Phil can recover nothing

• Phil can recover damages, reduced to account for his negligence

• Phil can recover damages, reduced to account for his consent

• Phil can recover all of his damages

• Phil can recover nothing

Under traditional approach, secondary implied assumption of risk (consent-like behavior on the part of the p) is a complete defense. In this case, Phil was aware of the risks and still chose to work in the area with the falling rocks. This will serve as a complete defense.

A person agrees to go skydiving with a company that operates near her home. Before going, she signs a form stating that she understands the risks of skydiving and agrees not to sue the company for negligence in the event of an accident arising out of the skydiving. The skydiver is injured on her first dive because of the negligence of the company in dropping her too close to the ground in time for her parachute to fully deploy.

Assume that the contract the skydiver signs is enforceable under state law.

The skydiver sues the skydiving company for negligence. What result?

• the skydiver will recover all of her damages from the skydiving company

• the skydiver will recover some of her damages from the skydiving company, depending on her negligence

• the skydiver will recover no damages from the skydiving company because she expressly assumed the risk

• the skydiver will recover no damages from the skydiving company because she consented to sky dive

• the skydiver will recover no damages from the skydiving company because she expressly assumed the risk

The facts here indicate that the skydiver contracted her right to sue the skydiving company for negligence. This is an express assumption of risk, and it completely bars the skydiver’s case if the contract is enforceable. The facts tells us this contract is enforceable under state law, and therefore the skydiver’s claim is completely barred.

Ron and his friends arrange a drag race in a quiet part of town late at night. Everyone has been drinking and they are driving erratically. Ron asks Cynthia if she would wave a flag to start the race and declare a winner by standing in the middle of the road in front of the two cars. Cynthia knows it is dangerous to be standing out there after seeing all the swerving cars, but she figures it would be fun. Soon after the race starts, Ron accidentally swerves into Cynthia, knocking her over and breaking her bones.

In a jurisdiction that has folded (secondary implied) assumption of risk into the comparative responsibility analysis, what should the jury compare in Cynthia’s negligence case in assigning shares of responsibility?

• the jury should compare Ron’s negligence with Cynthia’s negligence.

• the jury should compare Ron’s negligence with Cynthia’s consent

• the jury should compare Ron’s negligence with Cynthia’s negligence and consent.

• the jury should not compare, if Ron was more at fault than Cynthia

• the jury should compare Ron’s negligence with Cynthia’s negligence and consent.

Under modern comparative responsibility principles in which secondary implied assumption of risk has been folded into the comparative responsibility allocation, the jury comes up with a comparison of responsibility that compares the d’s negligence on the one hand, with p’s negligence and consent on the other.

Alexandra is driving cross-country to visit her best friend. She is in a hurry and is driving even while she is sleepy. Alexandra is so tired she decides to pull over. Unfortunately, she pulls over onto some railroad tracks.

Paula is the train conductor. She sees Alexandra’s car on the tracks, not moving, but assumes Alexandra will move the car. Once the train is very close to the car, and after it is too late to stop the train before hitting Alexandra, Paula blows the train horn. Alexandra wakes up, but it is too late for her to move the car, and she suffers serious personal injuries.

Can Alexandra prevail in a lawsuit against Paula and the train company for negligence in a jurisdiction which has maintained traditional contributory negligence rules and its traditional ameliorative doctrines?

• no if the jury believes Alexandra was negligent in stopping her car on the tracks

• no, because Alexandra was the actual cause of the accident

• yes even if the jury believes Alexandra was negligent in stopping her cars on the tracks

• yes because a p’s negligence is irrelevant in a negligence suit

• yes even if the jury believes Alexandra was negligent in stopping her cars on the tracks

Under traditional contributory negligence principles, a p’s own negligence is enough to bar a negligence lawsuit, even if the p is negligent. That rule can be harsh, and therefore certain ameliorative doctrines such as last clear chance work to allow p to recover even when negligent. Here, the d had the last clear chance to avoid the accident.

Alexandra is driving cross country to visit her best friend. She is in a hurry and is driving even while she is sleepy. Alexandra is so tired she decides to pull over. Unfortunately, she pulls over on the railroad tracks.

Paula is the train conductor. She sees Alexandra’s car on the tracks, not moving, but assumes Alexandra will move the car. Once the train is very close to the car, and after it is too late to stop the train, Paula blows the train horn. Alexandra wakes up, but it is too late for her to move the car, and she suffers serious personal injuries.

Can Alexandra prevail in a lawsuit against Paula and the train company for negligence in a jurisdiction which has adopted impure comparative negligence rules?

• yes and Alexandra is likely to recover all of her damages only if the jury determines she is less at fault than Paula

• yes but Alexandra will recover all of her damages only if the jury determines she is less at fault than Paula

• yes but Alexandra will recover only some of her damages, and only the jury determines if she is less at fault than Paula

• no she can’t, even though Paula was also at fault because the last clear chance doctrine has been abolished

• yes but Alexandra will recover only some of her damages, and only the jury determines if she is less at fault than Paula

Under modern comparative responsibility principles, the jury comes up with a comparison of responsibility between p and d when both are negligent. The ameliorative doctrines such as last clear chance do not stand on their own, but the facts related to last clear chance are relevant to the allocation. In addition, the jurisdiction has adopted the impure rule of comparative responsibility, meaning p can only recover d’s share of responsibility if the d is found more responsible for the injury than the p. (if the jury finds the d to be at least 51% at fault for the injuries)

An ice hockey fan gets great seats to see her favorite team play at their stadium. The seats are right behind the team’s goal. Unfortunately, during the game the fan gets hit in the head with a hockey puck hit by one of the players, giving her a serious facial injury. If the fan sues the owners of the stadium for negligence in a jurisdiction that accepts the primary implied assumption of risk doctrine,

• the fan loses her prima facie case, because the owners owe the fan no duty to use reasonable car

• the fan loses her prima facie case, because the owners acted reasonably

• the fan loses her prima facie case, because of her consent

• the fan loses her prima facie case, because of her negligence

• the fan loses her prima facie case, because the owners owe the fan no duty to use reasonable care

Arises in a jurisdiction that recognizes the primary implied assumption of risk doctrine, a duty question. Under this approach, a person who injures another through negligence a sports or recreation context is not liable for injuries that are inherent in that activity. The court says that in such circumstances the injurer owes no duty to use reasonable care to co-participators or spectators.

An ice hockey fan gets great seats to see her favorite team play at their arena. The seats are right behind the team’s bench. Unfortunately, during the game her seat collapses, causing the fan to break some bones. The seat collapses because the owners failed to properly maintain the arena seats. If the fan sues the owners of the arena for negligence in a jurisdiction that accepts the primary implied assumption of risk doctrine,

• the fan loses her prima facie case, because the owners the fan no duty to use reasonable care

• the fan loses her prima facie case, because the owners acted reasonably

• the fan may win her prima facie case, because the owners owed her a duty

• the fan may win her prima facie case, because she did not consent to injury

• the fan may win her prima facie case, because the owners owed her a duty

Questions involves a risk that is not inherent in the sporting event and therefore the primary implied assumption of risk doctrine does not apply.

A woman agrees to go bungie jumping with a friend. They go to an outdoor recreation company that provides bungie jumping in their state. Before taking her jump, the woman watches a video about the risks of bungie jumping and what it means to sign a waiver. The woman then signs a form stating that she understands the risks of bungie jumping and agrees not to sue the company for negligence in the event of an accident arising out of the bungie jumping. The woman is injured on her jump because of the negligence of the company in insecurely fastening her ankles to the bungie cord. Assume that the contract the woman signs is enforceable under state law. The woman sues the bungie jumping company for negligence. What result?

• the woman will recover all of her damages from the bungie jumping company

• the woman will recover some of her damages from the bungie jumping company, depending on her own negligence

• the woman will recover no damages from the bungie jumping company because she expressly assumed the risk

• the woman will recover no damage from the bungie jumping company because she consented to engage in bungie jumping

• the woman will recover no damages from the bungie jumping company because she expressly assumed the risk

The facts here indicate that the woman contracted away her right to sue the bungie jumping company for negligence. This is an express assumption of risk, and it completely bars the woman’s case if the contract is enforceable. The facts tell us this contract is enforceable under state law, and therefore, the woman’s claim is completely barred.

A hair stylist takes a job with a wedding planner styling the wedding party members hair. She works as an independent contractor, not an employee (meaning that workers’ compensation rules do not apply). As she begins working, the stylist inhales strong odors of chemicals from the hair products the wedding planner provided. The stylist herself no longer uses those products as she knows they contain chemicals that can irritate her lungs. The stylist has asthma, so she is particularly susceptible. She complains to the wedding planner, who states, “If you want to be paid, keep working. If not, you can leave.” The stylist keeps working and develops breathing problems. The stylist sues the wedding planner for negligence, and the jurisdiction follows traditional rules for (secondary implied) assumption of risk. What, if anything, can the stylist recover from the wedding planner in her negligence suit?

• the stylist can recover nothing

• the stylist can recover damages, reduced to account for her negligence.

• the stylist can recover damages, reduced to account for her consent

• the stylist can recover all her damages

• the stylist can recover nothing

Under traditional approach, secondary implied assumption of risk (consent-like behavior on the part of the p) is a complete defense. In this case, stylist was aware of the risks and still chose to work in the area with the strong chemical odors. This will serve as a complete defense.

A man in a motorboat is going through a narrow sea channel into a harbor. The sun is low on the horizon and its glare makes it hard for the man to see. A fishing boat enters the channel from the opposite direction. Because of the sun glare, the man doesn’t realize that he is moving toward the other side of the channel, straight at the fishing boat. The fisherman sees the man coming toward him, but decides to keep on course, hoping the man will move back to his right. The fisherman uses the sea channel multiple times a week and knows boaters coming in the man’s direction can have trouble seeing with the sun glare. A cloud passes in front of the sun, and the man suddenly sees that he and the fisherman are about to collide. He sharply turns the motorboat wheel to the right, but due to both boats’ speed and momentum, the front of the fisherman’s boat hits the man’s motorboat in the side. The man suffers severe bodily injury. Can the man prevail in a lawsuit against the fisherman for negligence in a jurisdiction which has maintained traditional contributory negligence rules and its traditional ameliorative doctrines?

• no if the jury believes the man was negligent in veering toward the fishing boat

• no because the man was an actual cause of the accident

• yes even if the jury believes the man was negligent in allowing his boat to veer toward the fishing boat

• yes because a p negligence is irrelevant in a negligence suit

• yes even if the jury believes the man was negligent in allowing his boat to veer toward the fishing boat

Under traditional contributory negligence principles, a p’s own negligence is enough to bar a negligence lawsuit, even if the p is negligent. That rule can be harsh, and therefore certain ameliorative doctrines such as last clear chance work to allow p to recover even when negligent. Here, the fisherman had the last clear chance to avoid the accident.

A man in a motorboat is going through a narrow sea channel into a harbor. The sun is low on the horizon, and its glare makes it hard for the man to see. A fishing boat enters the channel from the opposite direction. Because of the sun glare, the man doesn’t realize that he is moving toward the other side of the channel, straight at the fishing boat. The fisherman sees the man coming toward him, but decides to keep on course, hoping the man will move back to his right. The fisherman uses the sea channel multiple times a week and knows boaters coming in the man’s direction can have trouble seeing with the sun glare. A cloud passes in front of the sun, and the man suddenly sees that he and the fisherman are about to collide. He sharply turns the motorboat wheel to the right, but due to both boats’ speed and momentum, the front of the fisherman’s boat hits the man’s motorboat in the side. The man suffers severe bodily injury. Can the man prevail in a lawsuit against the fisherman for negligence in a jurisdiction which has adopted impure comparative negligence rules?

• yes and the man is likely to recover all his damages

• yes but the man will recover all his damages only if the jury determines he is less at fault than the fisherman

• yes but the man will recover only some of his damages, and only if the jury determines he is less at fault than the fisherman

• no he can’t, even though the fisherman was also at fault because the last clear chance doctrine has been abolished

• yes but the man will recover only some of his damages, and only if the jury determines he is less at fault than the fisherman

Under modern comparative responsibility principles, the jury comes up with a comparison of responsibility between p and d when both are negligent. The ameliorative doctrines such as last clear chance do not stand on their own, but the facts related to last clear chance are relevant to the allocation. In addition, the jurisdiction has adopted the impure rule of comparative responsibility, meaning p can only recover d’s share of responsibility if the d is found more responsible for the injury than the p. (if the jury finds the d to be at least 51% at fault for the injuries)

One night, an archer and her friends are at a party following an archery competition. Everyone has been drinking and is moving clumsily. They decide to hold their own competition, taking turns shooting arrows at a peach placed on one of their heads. The goal is to hit the peach in as few attempts as possible. The archer asks her friend if he would stand in front of a tree with a peach on his head for everyone to aim at. The friend knows it is dangerous to be standing out there after seeing everyone wobbling around, but he figures it would be fun and is thrilled by the risk. Soon after the competition begins, the archer negligently aims her arrow, which hits her friend in the shoulder. In a jurisdiction that has folded (secondary implied) assumption of risk into the comparative responsibility analysis, what should the jury compare in the friend’s negligence case against the archer in assigning shares of responsibility?

• jury should compare the archer’s negligence with the friend’s negligence

• the jury should compare the archer’s negligence with the friend’s consent

• the jury should compare the archer’s negligence with the friend’s negligence and consent

• the jury should not compare, if the archer was more at fault than the friend

• the jury should compare the archer’s negligence with the friend’s negligence and consent

Under modern comparative responsibility principles in which secondary implied assumption of risk has been folded into the comparative responsibility allocation, the jury comes up with a comparison of responsibility that compares the d’s negligence on the one hand, with p’s negligence and consent on the other.

Todd and Aaron are involved in a biking accident which injures George. George sues both for negligence. The jury finds that Todd was 60 percent at fault, Aaron was 10 percent at fault, George was 30 percent at fault, and that George’s damages were $9,000.

The jurisdiction uses a modified joint and several liability rule which provides that all parties, including plaintiffs, share responsibility for bankrupt plaintiffs’ portion of responsibility, based upon each of the remaining parties’ percentage of fault. Aaron is bankrupt. What is the most that George may recover from Todd?

• 5,400

• 6,000

• 6,300

• 9,000

• 6,000

  Todd is responsible for his share (60 percent of $9,000, or $5,400) plus a portion of Aaron’s share of $900 (10 percent of $9000). The $900 Aaron share is divided between Todd and George based on their relative share of responsibility. Their responsibility is 60 percent Todd to 30 percent George, which is 60:30 or 2:1. In this case, Aaron’s share is divided $600 for Todd (bringing his total including his own $5,400 share to $6,000), while George’s additional share is $300 (meaning he will end up bearing $3,000 of the total responsibility)

Pavel is riding his bike when Dino negligently hits Pavel with his car. Pavel breaks a rib. Dino calls an ambulance to take Pavel to the hospital. Alvin the ambulance driver picks up Pavel to take him to the hospital, but negligently crashes the ambulance, causing Pavel to get a concussion. If Pavel sues both Dino and Alvin for negligence:

Both parties are jointly and severally liable for the rib injury and concussion.

Dino is responsible for the rib injury and Alvin is responsible for the concussion.

Both parties are liable for both injuries depending upon their relative share of responsibility.

Dino is solely responsible for the rib injury, while Dino and Alvin are jointly and severally responsible for the concussion.

• Dino is solely responsible for the rib injury, while Dino and Alvin are jointly and severally responsible for the concussion.

  This case involves two distinct injuries, and so it would appear that each defendant would be liable for the injury he caused: Dino for the rib injury and Alvin for the concussion. There is not a single indivisible injury. However, subsequent negligent medical care (in this case, the crashing of the ambulance) is a foreseeable consequence of negligently getting into an accident, and so the injury caused by the ambulance is an injury for which both Dino (the original wrongdoer) and Alvin (the ambulance driver) are jointly responsible.

Nikki and Karen are involved in an automobile accident which injures Sima. Sima sues both of them for negligence. The jury finds that Nikki was 80 percent at fault and Karen was 20 percent at fault, and that Sima’s damages were $100,000. The jurisdiction uses traditional joint and several liability rules. What is the most that Sima may recover from Karen?

• 20,000

• 80,000

• 100,000

• 100,000 but only if Nikki refuses to pay her fair share

• 100,000

  Under traditional joint and several liability rules, a plaintiff can recover all of her damages from any one defendant, until full satisfaction of judgment. In this case, it means that Sima may look to Karen to pay all of her damages, even though Karen was found by the jury to be only 20 percent at fault. There is no requirement for Sima to first try to get some funds from Nikki.

Many hunters are out on the first day of duck hunting season. It is very crowded and Maria, a hunter, is unlucky enough to be shot twice. Alice shoots Maria in the left arm, causing very serious injuries. Janet shoots Maria in the right leg, causing a minor flesh wound. The three people had never met before the shooting. Assume that both Alice and Janet were negligent in shooting Maria, and that Maria was not negligent. Alice has left town and is nowhere to be found. If Maria sues Janet for negligence, she will be able to recover for:

The arm injury.

The leg injury.

Both the arm and the leg injury.

Both the arm and the leg injury, but only if Janet was at least as at fault as Maria.

• The leg injury.

  Traditional joint and several liability rules apply only when multiple defendants cause a single, indivisible injury. In this case, the injuries are divisible: Alice caused the arm injury and Janet caused the leg injury. In these circumstances Janet is completely responsible for the leg injury and not at all responsible for the arm injury, regardless of the relative fault of Alice and Janet.

Sal works as a hospital technician at Good Friend Hospital and is a hospital employee. Mary comes to the hospital pregnant, complaining of early contractions. An emergency room doctor tells Sal to give Mary an ultrasound examination. Sal takes Mary alone into the ultrasound room, and then sexually assaults her. Mary sues the hospital based solely upon Sal’s conduct. What is the result?

Mary can recover from Good Friend, because employers are always strictly liable for the torts of their employees.

Mary cannot recover from Good Friend, because employers are never strictly liable for the intentional torts of their employees.

Mary might not be able to recover from Good Friend, even though Sal was a Good Friend employee.

Mary might not be able to recover from Good Friend if Sal is in jail and unable to pay damages.

• Mary might not be able to recover from Good Friend, even though Sal was a Good Friend employee.

  In many states, given the egregious nature of this conduct, which is startling and in many states beyond the scope of employment, the hospital may not be strictly liable for Sal’s sexual assault.

Keith and Amy are involved in a boating accident that injures Chris. The jury finds that Keith is 70 percent at fault, Amy is 20 percent at fault, and Chris is 10 percent at fault. The jury finds that Chris suffered $10,000 in damages. Amy has paid Chris $9,000.

The jurisdiction has adopted a rule of partial equitable indemnity. How much may Amy recover from Keith?

$0

$6,300

$7,000

$9,000

• 7,000

  Under partial equitable indemnity, a tortfeasor who fully satisfies the judgment may seek to recover part of the money paid to the plaintiff based upon the tortfeasors’ relative percentage of responsibility. In this case, the tortfeasors together were 90 percent responsible for Chris’s $10,000 injury, collectively owing $9,000. After Amy pays $9,000, she can seek 70/90 or 7/9 of what she paid from Keith, or $7,000; Amy remains responsible for 2/9 of the share, or $2,000.

A delivery truck driver is tired in the middle of his shift from all of his driving, so he stops by a coffee shop to get a latte. While in the shop, the truck driver, in a hurry and not acting carefully, accidentally spills his hot coffee on another customer in the store, causing her serious burns.

If the other customer sues the truck driver's employer for her injuries arising out of the coffee spill:

She may recover only if the trucking company was negligent in hiring or supervising the truck driver.

She may recover only if the truck driver was negligent while acting in the course and scope of employment with the trucking company.

She may not recover, because the truck driver, not the trucking company, injured her.

She may not recover if the truck driver was negligent.

• She may recover only if the truck driver was negligent while acting in the course and scope of employment with the trucking company.

  Vicarious liability in the employment context (respondeat superior) makes an employer strictly liable for the torts of its employees committed in the course and scope of employment.

Farah and Jackie are involved in an auto accident which injures Barry. The jury finds that Farah was 70 percent at fault and Jackie was 30 percent at fault, and that Barry suffered $100,000 in damages. After Barry collects $40,000 from Jackie, Jackie sues Farah seeking contribution or indemnity, in a jurisdiction applying the traditional rules of joint and several liability.

How much may Jackie recover from Farah?

$0

$10,000

$70,000

$100,000

• $0

  Under traditional rules of contribution and indemnity, one tortfeasor may not seek funds from another tortfeasor until the tortfeasor seeking contribution or indemnity had fully satisfied the judgment by paying the plaintiff all damages. In this case, Jackie paid only $40,000 of a $100,000 judgment, so neither contribution nor indemnity would be available.

Dr. Sara is an emergency room doctor at Happy Valley Hospital. Sara is an independent contractor for the hospital, not an employee. Unfortunately, Dr. Sara misdiagnoses Fred’s heart attack symptoms as indigestion, and Fred suffers serious heart damage. Dr. Sara’s conduct was negligent. If Fred seeks to recover damages from Happy Valley Hospital based solely on Dr. Sara’s negligence:

Fred cannot recover, because Dr. Sara was an independent contractor.

Fred may recover, even though Dr. Sara was an independent contractor, if he reasonably thought, based on the hospital’s actions, that Dr. Sara was an employee.

Fred may recover, because hospitals are strictly liable for the torts of their employees.

Fred may recover, unless he was partially at fault.

• Fred may recover, even though Dr. Sara was an independent contractor, if he reasonably thought, based on the hospital’s actions, that Dr. Sara was an employee.

  This rule is subject to some exceptions, including one that applies to situations in which the person paying the independent contractor holds out the contractor as an employee and the person injured by the contractor reasonably relies on that representation.

Albert is an employee of Superfast, a delivery service. Albert, while delivering goods for Superfast, negligently injures Melissa. Melissa sues Superfast for the negligent conduct of Albert. Superfast was not negligent in hiring or training Albert. Melissa can prove her actual damages were $125,000 but the jury found her 20% at fault and thus gave her an award against Superfast of $100,000. Superfast now sues Albert for the $100,000. In a jurisdiction with traditional joint and several liability rules, what is the most likely amount Superfast will recover from Albert?

$0

$50,000

$100,000

$125,000

• $100,000

  This is a case of indemnity rather than contribution because Superfast is the passive tortfeasor who was not negligent. $100k is the correct answer because indemnity allows recovery for the full amount the employer has paid

Clara is walking across the street when she is struck by an automobile negligently driven by Wallace. Her left leg and right arm are severely injured. As she lay in the street waiting for an ambulance, she is run over by Turner who is also negligent. Her left leg is further injured by this second accident. Clara brings suit against Wallace and Turner as joint tortfeasors. The jurisdiction permits contribution between joint tortfeasors. The jury renders a special verdict which awards Clara $100,000 compensatory damages for the injury to her leg and $20,000 for the injury to her arm. What is the most likely outcome?

Either Wallace or Turner can be required to pay $120,000.

Turner can be required to pay no more than $100,000.

Wallace can be required to pay no more than $20,000.

Neither Wallace nor Turner can be required to pay more than $60,000.

• Turner can be required to pay no more than $100,000.

  Turner is responsible for the leg but not the arm and thus his liability is capped at $100,000.

Andrea is driving, and Allan is a passenger in her car. They collide with a car driven by Bob. Allan sues both Andrea and Bob, and in the course of preparation for trial, Allan settles with Bob’s insurance company for $60,000. Andrea’s insurance company refuses to settle and the lawsuit proceeds to judgment. The jury determines that Andrea was 60% at fault and Bob was 40% at fault and that Allan’s total damages were $100,000. In a pure comparative fault jurisdiction that has abolished joint and several liability between joint tortfeasors, how much is Allan likely to recover from Andrea?

$100,000

$60,000

$40,000

$20,000

• $60,000

  The normal rule is that a party is bound by a settlement whether it is greater or lesser than what is ultimately attributable to him. In this case, Allan is allowed to recover more than his actual damages. Andrea was determined to be 60% at fault and must pay 60% of the loss, notwithstanding that Allan will be more than fully compensated.

Trina has a fish farm which raises salmon. She grows the salmon in human-made lakes on the land. Growing salmon requires using a number of chemicals to keep the balance in the water appropriate for salmon farming, and to avoid spreading disease among the fish. Trina follows standard procedure in using the chemicals. Harry, also a farmer, lives near Trina. The chemicals Trina used in farming have seeped into Harry’s water supply, making it unsafe for drinking.

Is Trina strictly liable for Harry’s property damage under the rule of Rylands v. Fletcher?

Yes, if the jurisdiction applies Lord Cairns’s “non-natural use” test.

Perhaps, if the jurisdiction applies Lord Cairns’s “non-natural use” test.

No, because Rylands did not involve fishing.

No, under the rule set out by Judge Blackburn in Rylands.

• Perhaps, if the jurisdiction applies Lord Cairns’s “non-natural use” test.

  The Rylands rules are confusing. “Non-natural” might mean either not naturally occurring on the land or unreasonable. Under the “non-natural as unreasonable” interpretation, there would not necessarily be liability under Rylands, though under “non-natural as artificial” there could well be liability.

Celebrate Inc. is running a fireworks show at the annual Fourth of July picnic. Billy, an 11-year-old boy, sneaks past security guards to get a close look at the operation. He gets too close, and suffers hearing damage because he is not wearing protective earplugs. The jurisdiction treats the lighting of fireworks as an abnormally dangerous activity and applies the Third Restatement’s approach to strict liability for abnormally dangerous products.

What is the relevance, if any, of Billy’s conduct in evaluating who bears responsibility for Billy’s injury?

Billy’s conduct is irrelevant, because this is a case governed by strict liability principles.

Billy’s assumption of risk is relevant, but not any negligence on his part.

Any negligence by Billy is relevant, but not his assumption of risk.

Both Billy’s negligence and assumption of risk are relevant for the allocation of responsibility for the injury.

• Both Billy’s negligence and assumption of risk are relevant for the allocation of responsibility for the injury.

  This question concerns affirmative defenses under the Third Restatement. The approach is to consider both a plaintiff’s negligence and the plaintiff’s assumption of risk (consent) in determining the plaintiff’s share of responsibility.

Callie and Sam are neighbors in a rural area. One day Sam is using reasonable care, shepherding his sheep to graze, when the sheep are spooked by a wolf in the area. They run in many directions, and some knock over Callie’s fence, causing $1,500 in damage.

Will Sam be strictly liable for damages caused by his sheep?

Yes, because Sam’s sheep caused the damage.

Yes, because sheep are docile animals.

No, because Sam used reasonable care.

No, because livestock owners are never strictly liable for intruding livestock.

• Yes, because Sam’s sheep caused the damage.

  The owner of livestock is strictly liable to other property owners for physical harm caused by intruding cattle.

Blastco has the best safety record in the state of Pacifica. Blastco has been asked to take down the old bridge going across the river that runs through town in order to build a new one. Unfortunately, despite Blastco’s use of all reasonable care, one of the blasts causes debris to fly and causes an eye injury to Charles. The state follows the approach of the Restatement (Third) of Torts to classify which activities count as “abnormally dangerous” activities subject to a strict liability rule.

Charles sues Blastco. In determining whether or not Blastco’s activities should be subject to strict liability, which factor should the court not consider?

The inability of Blastco to eliminate risk by exercising reasonable care

The extent to which blasting is a matter of common usage

The social utility of the blasting to the community

The high likelihood of serious injury if there is an accident

• The social utility of the blasting to the community

  This question is quite straightforward for anyone familiar with the two-part test of the Third Restatement’s approach to abnormally dangerous activities.

Which of the following doctrines was not used traditionally as a defense to plaintiffs’ claims against product manufacturers or sellers for injuries arising out of the use of those products?

Privity of contract

Loss spreading

Open and obvious defect

Limitation of warranty

• Loss spreading

Janine is injured while using a circular saw manufactured by Toolco. The blade detaches from the saw, slicing off her finger. Expert evidence indicates that the blade came off because the screws holding the blade in place were not tightened to Toolco’s own specifications.

Janine’s best cause of action against Toolco is a claim for:

Negligence.

Manufacturing defect.

Design defect.

Warning defect.

• Manufacturing defect

Fareed buys a new car from his local Carco dealership. As he drives out of the dealership, the car’s engine catches on fire and he is badly burned. The car is destroyed in the fire. Fareed wants to sue Carco for a products liability tort in a jurisdiction which has adopted the Third Restatement’s products liability sections.

What is Fareed’s easiest means of proving his case?

Through failure of consumer expectations

Through design defect under the reasonable alternative design test

Through circumstantial evidence raising an inference of product defect

Through strict liability for a manufacturing defect

• Through circumstantial evidence raising an inference of product defect

  The Third Restatement, in Section 3, allows for the use of circumstantial evidence raising an inference of product defect even without proof of a specific defect when the kind of incident causing the injury is one which ordinarily would not occur in the absence of a product defect. A new car catching fire after leaving the dealership would be a classic example of this res ipsa approach to establishing a defect.

Brian uses NightRelief, an over-the-counter medication for cold and flu symptoms. NightRelief contains acetaminophen, the same active ingredient in Tylenol and many pain relievers. Brian takes both NightRelief and doses of acetaminophen for a week while he is sick, damaging his liver. NightRelief states in fine print on the bottle that it should not be taken with any other products containing acetaminophen. Brian sues the manufacturer of NightRelief complaining that the warning on the product is inadequate, and arguing that the warning should have been in larger typeface on the bottle. During his deposition, he admits that he never reads labels on products that he buys. What is the manufacturer’s strongest argument against liability to Brian?

Many people read fine print.

Many people know that NightRelief contains acetaminophen.

Brian cannot prove actual causation.

Brian cannot prove there is an alternative warning.

• Brian cannot prove actual causation.

  Brian’s deposition testimony indicates that he never reads warning labels on products. Thus, he cannot prove actual causation: even if the warning was bigger, he would not have read it (whether or not other people would have)

As part of a remodel, Katy decides to replace her old shingled roof with more attractive slate tiles. A representative from RoofCo comes out to give a bid. The representative inspects and measures the roof. Before Katy can explain her project, the RoofCo representative states: “Your roof is in terrible shape. It won’t make it through the next rainstorm.” This was a false statement. The roof was in fine shape. The representative made the statement to pressure Katy into a sale. Katy signs a contract with RoofCo at a fair price (which was the lowest price of all bidders) to replace the roof. She later learns that the RoofCo representative lied to her.

On these facts, which element of Katy’s fraud claim will be hardest for her to prove?

That the representative made a false statement.

That the representative knew the statement was false at the time.

That the statement was made by a fiduciary.

That Katy relied on the representation about the condition of the roof.

• That Katy relied on the representation about the condition of the roof.

  Katy could have a big problem with reliance because she was planning on replacing the roof anyway, and there is nothing in the fact pattern indicating that she did the job sooner or decided to use RoofCo because of the false statement.

Hain Manufacturing manufacturers a power saw. It distributes its saws through Power Tools, Inc., a wholesaler, who supplies them to King Hardware, a retailer. Dennis purchased one of Hain’s power saws from King Hardware for home use. He bought the saw “on sale” with the understanding he was purchasing it “as is.” Shortly after he began using the saw, the blade came loose and injured his hand. Dennis finds expert testimony tending to prove that although the fasteners holding the blade to its housing were the ones commonly used in the industry, they were inadequately sized, which caused the blade to disengage. Dennis has no evidence that Hain, Power Tools, or King Hardware were negligent in using the particular fasteners. Prior to the adoption of strict products liability, which is the most likely outcome?

Dennis can recover from Hain because it was obvious the product was defective when it distributed the saw to Power Tools.

Dennis can recover from Hain on the basis of res ipsa loquitor.

Dennis can recover from Hain if the contract between Hain and Power Tools contained an agreement that Hain would indemnify Power Tools for any liability.

Dennis most likely does not have a claim for relief in tort

• Dennis most likely does not have a claim for relief in tort

  correct because tort law did not ordinarily provide a remedy in such circumstances prior to strict liability.

Jamie and Sally are neighboring landowners. Jamie sings opera late at night, practicing for a concert. The singing bothers Sally, but Sally has never told Jamie, and Jamie reasonably believes that his neighbors cannot hear his singing. Sally sues Jamie for private nuisance in a jurisdiction that follows the Second Restatement’s approach to private nuisance. Can Sally recover damages for Jamie’s past singing?

No, because Jamie did not intentionally invade Sally’s interests and his conduct does not constitute negligence or engagement in an abnormally dangerous activity.

No, because Jamie did not commit a trespass to land.

Yes, because the singing invaded Sally’s interest in the use and enjoyment of her land.

Yes, because landowners are strictly liable for any invasions of others’ interests in the use and enjoyment of land.

• No, because Jamie did not intentionally invade Sally’s interests and his conduct does not constitute negligence or engagement in an abnormally dangerous activity.

Jake refinishes old cars as a hobby in his garage. He uses many paints and chemicals which produce a strong, unpleasant smell. Lori moves next door, even though when she looked at the house she could smell the unpleasant odors spreading from Jake’s property. Lori has bad allergies and the smells give her awful headaches, worse than someone without allergies would get. Lori has complained repeatedly to Jake about the smell but he has done nothing.

Lori sues Jake, alleging that his conduct constitutes a private nuisance. In response, Jake argues (a) Lori cannot recover any damages because she assumed the risk when she bought the house and (b) the court should not consider her allergies in assessing damages, if any. How should the court, following the Second Restatement, rule on these two arguments?

• Lori's coming to the nuisance is a factor the court will consider in determining whether to find this is a private nuisance, but the court will not consider damages for Lori’s allergies.

• The court will not consider Lori’s coming to the nuisance as a factor in determining whether to find this is a private nuisance; nor will the court consider damages for Lori’s allergies.

• The court will not consider Lori’s coming to the nuisance as a factor in determining whether to find this is a private nuisance, but the court will consider damages for Lori’s allergies.

• Lori's coming to the nuisance is a factor the court will consider in determining whether to find this is a private nuisance and the court will consider damages for Lori’s allergies.

• Lori's coming to the nuisance is a factor the court will consider in determining whether to find this is a private nuisance, but the court will not consider damages for Lori’s allergies.

  Coming to the nuisance is a factor the courts will consider in determining whether or not to consider the smell from Jake’s garage to be a private nuisance. But, unlike the normal thin-skulled or egg-shell plaintiff rule in Torts, the court will not consider extrasensitivity of the plaintiff in assessing damages

Jake refinishes old cars as a hobby in his garage, in a house that is next to a public park. He uses many paints and chemicals which produce a strong, unpleasant smell. The smell from the activity makes many people sick, and people have stopped coming to the park, causing a decline in business in the entire area. If Jake is sued for creating a public nuisance:

The court should reject the claim, because no one's land interest has been invaded.

The court should reject the claim, because people have the right to do whatever they want on their own property.

The court should consider whether Jake’s conduct significantly interferes with the public’s comfort.

The court should consider Jake’s conduct a public nuisance only if a statute or ordinance bars such conduct on private property.

• The court should consider whether Jake’s conduct significantly interferes with the public’s comfort.

  Jake's conduct could be a public nuisance, if the court determines that the conduct unreasonably burdens the public's enjoyment of the public park.

While walking through the park on his way to meet a friend for dinner, James came across Lindsay, sitting on the ground in obvious pain. James asked if she was okay, and Lindsay responded that she had stepped in a hole and broken her ankle. She was unable to walk and did not have a phone with her. James called 911 and provided Lindsay’s exact location. The dispatcher told James that help would arrive in 10 minutes. James told Lindsay that help was on the way and then left to meet his friend. A few minutes later, but before help arrived, Lindsay was attacked and injured by another stranger. Lindsay sued James for negligence, arguing that he should have stayed with her until help arrived, and that she would not have been attacked if he had stayed. Lindsay’s claim will probably

fail, because James owed Lindsay no duty to help her and did not worsen her position when he stopped rendering assistance.

fail, because James did not cause Lindsay’s harm.

prevail, by application of the voluntary undertaking exception to the no duty rule.

prevail, by application of the prior conduct rule.

• fail, because James owed Lindsay no duty to help her and did not worsen her position when he stopped rendering assistance.

Helena wanted to get back at Shaun for breaking up with her. Over the course of six months, Helena terrorized Shaun. She made numerous crank telephone calls to Shaun disguising her voice, threatened Shaun, slashed Shaun’s tires, followed Shaun in her car, and posted malicious things about Shaun online. Shaun was severely emotionally distressed. In an action by Shaun against Helena for negligent infliction of emotional distress,

Shaun will likely recover in a jurisdiction that applies the Third Restatement zone-of-danger approach to direct negligent infliction recovery

Shaun will likely recover in a jurisdiction that applies the Third Restatement approach to indirect bystander recovery.

Both A and B are correct.

None of the above are correct.

• None of the above are correct

  Helena acted with the desire or purpose of causing Shauna to suffer emotional distress. Thus, while an action for intentional infliction of emotional distress might possibly be successful, an action for negligent infliction will not.

Jones was standing on the deck of a building when it started to collapse. His brother Day was in the building and heard the thundering crash of the deck breaking away from the building, and he heard Jones scream in terror and pain. Day ran to the window and saw Jones severely injured on the ground. Day suffered extreme distress from seeing his brother injured, and to this day is depressed and anxious. An expert determined that the building owner did not properly secure the deck to the building’s foundation. In an action by Day against the building owner for negligent infliction of emotional distress,

Day will likely recover in a jurisdiction that applies the Third Restatement zone-of-danger approach to direct negligent infliction recovery.

Day will likely recover in a jurisdiction that applies the Third Restatement approach to indirect bystander recovery.

Both A and B are correct.

None of the above are correct.

• Day will likely recover in a jurisdiction that applies the Third Restatement approach to indirect bystander recovery.

  Under the Third Restatement approach to indirect bystander recovery, a close family member located near the scene of an accident who contemporaneously perceives the event may recover. Here, Day heard the accident and saw his brother injured on the ground.

Which of the following scenarios presents the strongest claim for negligent infliction of emotional distress?

A funeral home mishandled Marsha’s mother’s remains, mixing her mother’s ashes with the ashes of a stranger. The funeral home discovered the error during a procedural audit. Marsha suffered severe emotional harm knowing she did not have, and would likely not be able to recover, her mother’s ashes. Marsha sues the funeral home for negligent infliction of emotional distress.

A vision-impaired woman is walking next to her sister when the sister falls into a sinkhole in the ground caused by a sudden earthquake. The vision-impaired woman did not see her sister fall, but heard her scream and felt her hand slip away. The vision-impaired woman sues the owner of the property containing the sinkhole for negligent infliction of emotional distress in a jurisdiction that applies the Third Restatement approach to indirect bystander recovery

A father is watching the evening news and is shocked to learn that his son, a firefighter, was badly burned earlier that day when a car negligently driven by Jones caught fire. The news showed video of the car’s gas tank exploding and the son’s body on fire. The father experienced shock, depression, and still suffers from anxiety. The father sues Jones for negligent infliction of emotional distress.

• A funeral home mishandled Marsha’s mother’s remains, mixing her mother’s ashes with the ashes of a stranger. The funeral home discovered the error during a procedural audit. Marsha suffered severe emotional harm knowing she did not have, and would likely not be able to recover, her mother’s ashes. Marsha sues the funeral home for negligent infliction of emotional distress.

  The vision impaired one does not work because the sinkhole was caused by an earthquake, not the premises owner’s negligence.

Angela and Bart work for Cathy’s landscaping company. Because Cathy failed to properly secure a safety shield on her wood chipper, Angela was sucked into the machine while Bart, standing a short distance away, looked on in horror. In an action by Bart against Cathy for negligent infliction of emotional distress,

Bart might recover in a jurisdiction that applies the Third Restatement zone-of-danger approach to direct negligent infliction recovery.

Bart might recover in a jurisdiction that applies the Third Restatement approach to indirect bystander recovery.

Both A and B are correct.

None of the above are correct.

• none of the above are correct

  Bart was not in the zone of danger, thus, he will not be entitled to direct recovery under the zone-of-danger rule. Moreover, because Bart was not a close family member, Bart will not be able to recover indirectly as a bystander to Angela’s injury. This is true even though Bart contemporaneously observed Angela’s injury.

Dr. Xavier mixed up Catherine’s laboratory results with another patient’s and mistakenly told Catherine that she had terminal cancer. Catherine was severely emotionally distressed thinking she had a serious illness. Dr. Xavier soon figured out his mistake and less than 24 hours later told Catherine about the mix-up. In an action by Catherine against Dr. Xavier for negligent infliction of emotional distress,

Catherine will likely recover because of the doctor’s special relationship with Catherine.

Catherine will recover if the court applies the Third Restatement approach to indirect bystander recovery.

Catherine will not recover because Dr. Xavier did not owe her a duty of care to avoid emotional distress.

Catherine will not recover because she did not suffer severe emotional distress after less than one day.

• Catherine will likely recover because of the doctor’s special relationship with Catherine.

  This is a situation where a doctor and patient are in a legal “special relationship” and a doctor’s negligent diagnosis is especially likely to cause serious emotional harm.

Elizabeth was excited to attend her son Daniel’s high school graduation but her happiness quickly turned to extreme distress when Daniel tripped over a teacher’s notebook negligently left on the stage floor. Daniel suffered a scratch on his knee and he was mortified to fall in front of an audience. Elizabeth suffered extreme anxiety and depression from the incident. Elizabeth will succeed in a negligent infliction of emotional distress claim on a theory of indirect bystander recovery if a reasonable person would also have suffered serious emotional harm from the teacher’s negligence.

True

False

• False

  Even if Elizabeth’s emotional distress was reasonable and serious (and here that is also in question), she still will not be able to recover because the teacher’s negligence did not cause “sudden serious bodily injury” to Daniel. Here, Daniel suffered a scratch on his knee which is not the level of serious bodily harm to a third person required for Elizabeth to sustain an indirect bystander claim.

Yarin is hit crossing Main Street by a car driven by Stamski. While lying in the road after the collision he is run into by Fleet, riding a bicycle down the street. Yarin sues Stamski and Fleet as codefendants in a jurisdiction that applies the traditional law of joint and several liability. The jury finds both defendants liable to Yarin. They find that Yarin suffered $100,000 in damages from the original collision and $20,000 from the second collision with Fleet’s bike. How much may Yarin collect from Stamski?

$100,000.

$120,000.

$60,000.

$110,000.

• $120,000.

  Rationale:

  The key to this question is that Stamski is liable for all of Yarin’s damages, but Fleet played no part in Yarin’s original injury and is not liable for that. Stamski’s negligence is a “but for” cause of both the original injury and the collision with Fleet’s bike: If Stamski had not knocked Yarin down, he would not have been in harm’s way when Fleet came along not looking carefully. So Stamski is liable for the entire injury and owes Yarin $120,000.

Yarin is hit crossing Main Street by a car driven by Stamski. While lying in the road after the collision he is run into by Fleet, riding a bicycle down the street. Yarin sues Stamski and Fleet as codefendants in a jurisdiction that applies the traditional law of joint and several liability. The jury finds both defendants liable to Yarin. They find that Yarin suffered $100,000 in damages from the original collision and $20,000 from the second collision with Fleet’s bike. How much may Yarin collect from Fleet?

$20,000.

$10,000.

$60,000.

$120,000.

• $20,000.

  Fleet played no part in Yarin’s original injury and is not liable for that. He is liable for the $20,000 in additional damages from his collision with the prostrate Yarin, because he negligently caused the collision.

Wescott is injured in an accident due to the negligence of Summers, Tice and Ybarra. He sues the three of them, in a jurisdiction that applies the traditional law of joint and several liability. The jury renders a verdict for Wescott for $150,000. Summers pays $150,000 to Wescott. How much may Wescott now recover from Tice?

$75,000.

Nothing.

$150,000.

$50,000.

• Nothing.

  Wescott is entitled to one full satisfaction of his judgment.

Brandon is injured in an accident and sues Riveira for negligently causing his injuries by leaving a sack of concrete near the edge of a scaffold. Brandon also sues Mazzola, a visitor on the work site who bumped the scaffold, causing the perilously perched sack to fall onto Brandon, working below.

Before trial, Brandon settles with Mazzola for $20,000. At trial, the jury finds both Riveira and Mazzola negligent and assesses Brandon’s damages to be $90,000. If traditional joint and several liability applies and the Uniform Contribution among Tortfeasors Act.

Brandon may collect $90,000 from Riveira.

Brandon may collect $45,000 from Riveira.

if Riveira pays Brandon the amount he is liable for, he may collect $45,000 in contribution from Mazzola.

if Reveira pays the amount he is liable for, he will collect no contribution from Mazzola.

• if Reveira pays the amount he is liable for, he will collect no contribution from Mazzola.

  Mazzola is not liable for contribution, because he has settled with Brandon. The Uniform Act, §4(b), bars recovery of contribution from a settling tortfeasor.

You are the trial judge in the following case:

Williams is injured in a boating accident when riding in a boat piloted by Rusk, which collides with two other boats, one piloted by Longo and the other piloted by Duchnowski. He sues Rusk, Longo and Duchnowski for his injuries, claiming that they all were negligent. He then settles with Duchnowski for $10,000, the limit of Duchnowski’s available insurance coverage. At trial the jury finds both Rusk and Longo liable, and Williams’ damages to be $120,000. The jurisdiction applies traditional joint and several liability and the Uniform Contribution among Tortfeasors Act.

Rusk pays the amount he owes to Williams. He now seeks an order for contribution from Longo. How much should the judge order Longo to pay in contribution? Please apply common sense in answering this question!

$30,000 in contribution.from Duchnowski and $40,000 from Longo.

$60,000 in contribution from Longo only.

$40,000 in contribution from Longo only.

$55,000 in contribution from Longo only.

• $55,000 in contribution from Longo only.

Rina arrived home distressed to find her entire house engulfed in flames. Knowing she left a cherished family photo album on the coffee table; Rina went in to recover it. Rina was badly burned upon entry. The fire was caused by ElectricCo’s faulty electrical wiring job. A jury assessed Rina’s personal injury at $1,000,000 and found ElectricCo 49% at fault and Rina 51% at fault. In a pure comparative fault jurisdiction that treats unreasonable assumption of risk as fault and reasonable assumption of risk as a complete bar to recovery, how much will Rina likely recover:

$0

$490,000

$510,000

$1,000,000

• $490,000

  Rina voluntarily encountered a known risk when she entered her flaming home. Her assumption of the risk was unreasonable because Rina ran into a burning building for the purpose of recovering a photo album. No matter how good or precious the pictures, that was an unreasonable decision for Rina to make. In this comparative fault jurisdiction, unreasonable assumption of risk is folded into fault along with any contributory negligence, and the jury allocates an appropriate percentage of fault to the parties.

Three days after a severe snowstorm, Jack went shopping at a public mall. Jack exited out a different door than the one he used to enter into the mall knowing it was closer to his car. Jack took one step outside and quickly discovered that the exit was not shoveled and was covered in ice. Jack had a decision to make: keep going on the icy terrain or turn around, go back into the building, and leave the same way he entered the building – i.e., through the main door. Jack knew the main door led to a shoveled path that would have required him to walk a slightly longer distance. Jack was holding two heavy bags, however, and could see car in the distance. He decided to continue on and walk carefully. A few steps later, Jack slipped on the ice and broke his jaw, requiring surgery, causing pain, and miss work - $10,000 in damages. In a negligence action by Jack against the mall, which of the following is the most likely result:

Jack will recover $10,000 in a pure comparative fault jurisdiction that folds assumption of risk into comparative fault.

Jack will not recover anything in a traditional common law jurisdiction.

Jack will not recover anything in a pure comparative fault jurisdiction that folds assumption of risk into comparative fault.

Jack will recover $10,000 a pure comparative fault jurisdiction that treats unreasonable assumption of risk as fault and reasonable assumption of risk as a complete bar to recovery.

• Jack will not recover anything in a traditional common law jurisdiction.

  correct because a traditional common law jurisdiction bars recovery when a plaintiff assumed a risk, as Jack did in this case.

Martin sends his daughter Teresa to their local public elementary school. Each year, Teresa comes home from the first day of school with a bunch of paperwork that Martin has to fill out by the end of the first week, including emergency contact forms, medical paperwork, and a document entitled “Release of Liability and Waiver of Negligence Claims” waiving “any and all negligence claims” against the school and “agreeing not to sue for any injury” Teresa might suffer while in school. Because Martin wants Teresa to go to school, and because the forms stated that they are required to be filled out, Martin completed all forms including the waiver. One day during normal school hours, Teresa was injured when Teresa slipped and broke her ankle on the slick hallway floor. The floor was slick because the school’s maintenance crew overly-waxed it the previous evening. In a negligence action by Martin (on behalf of Teresa) against the school:

The school will be able use the waiver of liability to exculpate itself because Martin (on behalf of Teresa) expressly assumed the risk.

The school will be able to use the waiver of liability to exculpate itself because public schools are generally exempt from liability for negligence under the common law.

The school will not be able to use the waiver of liability to exculpate itself because courts will never enforce liability waivers in any context involving a public school.

The school will not be able to use the waiver of liability to exculpate itself because the school is performing an essential public function.

• The school will not be able to use the waiver of liability to exculpate itself because the school is performing an essential public function.

  The school is providing a public service – mandatory public education – and a court will likely decide it is against public policy to enforce such a broad liability waiver.

Marcia decided to go skydiving and selected Jack’s SkyDiving Company because it had a stellar reputation for safety. Marcia knew there were risks involved, but still wanted to experience the thrill of free-falling. Marcia signed a document entitled “Release of Liability and Waiver of Negligence Claims” waiving “any and all negligence claims” against Jack’s SkyDiving Company and “agreeing not to sue for any injury” Marcia might suffer while skydiving. As it turns out, Jack got extremely drunk the night he assembled Marcia’s parachute and in his inebriated state failed to untangle the knotted ropes before stuffing the parachute inside its bag. In his drunken state, Jack also failed to notice there was no backup parachute attached. As a result, Marcia’s parachute emerged hopelessly tangled with no backup. Marcia died when she hit the ground. In an action by Marcia’s next of kin against Jack’s SkyDiving Company, which of the following outcomes is most likely:

Jack’s SkyDiving Company will be able use the waiver of liability to exculpate itself because Marcia expressly assumed the risk.

Jack’s SkyDiving Company will be able to use the waiver of liability to exculpate itself and will also succeed in arguing that Marcia impliedly assumed the risk of injury.

Jack’s SkyDiving Company will not be able to use the waiver of liability to exculpate itself because courts will never enforce general liability waivers.

Jack’s SkyDiving Company will not be able to use the waiver of liability to exculpate itself because Jack’s conduct was willful and egregious.

• Jack’s SkyDiving Company will not be able to use the waiver of liability to exculpate itself because Jack’s conduct was willful and egregious.

  A court will not enforce a waiver of negligence in a situation like this where Jack so willfully and egregiously violated his professional standard of care toward Marcia.

Lourdes, a successful billionaire, wants to fund a private solo excursion to outer space. She knows that SpaceSprocket is a company that has recently begun such space missions; however, SpaceSprocket informs Lourdes that such missions are extremely dangerous, involve a high risk of death, and that anything could happen to her if she goes. Lourdes, eager to be a space pioneer, is asked to sign a detailed, 15-page document entitled “Release of Liability and Waiver of Claims” waiving “any and all negligence claims, including gross negligence” against SpaceSprocket and “agreeing not to sue for any injury” Lourdes might suffer while on the mission. The document goes into great detail about the risks involved, including the potential that “a component part of the rocket might not be solidly affixed such that it will sustain itself against the forces of space travel.” Lourdes is also recorded on video being told that “space travel is novel and fraught with danger,” that “anything could happen,” and that “the rocket could blow up, crash upon landing or worse.” The mission and its associated contractual documents including the waiver of liability involved lengthy negotiations between Lourdes, SpaceSprocket, and their respective legal teams. After many months of legal work, Lourdes signed the paperwork and Lourdes began 6 months of training that involved coursework, reading, simulations and examinations. Finally the day of the mission arrived. All went well until the rocket reentered the earth’s atmosphere. Because an insulation tile was not properly affixed, it fell off and SpaceSprocket’s internal rocket temperature heated up far more than it should have. As a result, Lourdes was severely burned. In an action by Lourdes against SpaceSprocket for negligence:

SpaceSprocket will likely be able use the waiver of liability to exculpate itself because Lourdes freely entered into the agreement and understood the risks.

• SpaceSprocket will likely be able use the waiver of liability to exculpate itself because Lourdes freely entered into the agreement and understood the risks.

  Lourdes, a sophisticated business person, was well aware of the danger involved and willingly encountered it. She negotiated this trip and its associated documents, including the liability waiver, at arms-length with legal assistance. That document contained a number of provisions alerting her to this type of danger. A court will likely uphold this agreement.

One day during normal school hours, Teresa was injured when she entered the building and promptly slipped and broke her ankle on the slick hallway floor. The floor was slick because the school’s maintenance crew overly-waxed it the previous evening, and there were no signs warning of the danger. In an action by Teresa against the school for negligence, in a traditional common law jurisdiction, Teresa will be barred from bringing her action based on her assumption of the risk.

True

False

• False

  This is false. On these facts, Teresa did not assume the risk. She walked in the building and slipped. There was nothing to alert her to the slick condition of the floors, thus she did not voluntarily encounter a known risk and will not be barred by the doctrine of assumption of risk.

Archie is employed as a security receptionist in the lobby of the offices of Winsom & Lewsom, an accounting firm. In which of the following scenarios is the employer least likely to be held liable for Archie’s conduct under the doctrine of respondeat superior?

• An angry client who has been barred from the premises tries to force his way into the firm’s offices. Archie escorts the client to the exit and pushes him to the ground in an effort to force him out the door.

• After taking a smoke break in the alley next to the firm’s building, Archie negligently discards his cigarette in a dumpster. The dumpster catches fire, which spreads and damages a building next door.

• Archie goes to a coffee stand across the lobby to get a latte and a donut. He spills his drink while trying to hold both items in one hand and his phone in the other. A visitor slips on the liquid and suffers injury.

• On a very slow day, Archie extends his mid-afternoon coffee break by going to the cinema across the street to watch a 2-hour movie. Not seeing anyone else in the theater, he smokes a cigarette and discards it in the trash, causing a fire that burns the building.

• On a very slow day, Archie extends his mid-afternoon coffee break by going to the cinema across the street to watch a 2-hour movie. Not seeing anyone else in the theater, he smokes a cigarette and discards it in the trash, causing a fire that burns the building.

  Taking in a full-length movie in the middle of the workday is a clear example of a “frolic” that takes the employee out of the scope of employment. Employers are not liable for the torts of employees committed while on a frolic.

Jinho was driving to work one morning and ran into unusually heavy traffic. About a block away from his office at Intercorp, Jinho intentionally drove through a red light without stopping in order to arrive at work on time. He crashed into Marge, who had entered the intersection under a green light. Marge suffered a neck injury and sued Intercorp, invoking respondeat superior.

True or false? Intercorp is liable to Marge under the doctrine of respondeat superior, because Jinho ran the red light in an attempt to arrive at work on time, in furtherance of Intercorp’s interests.

True

False

• False

  Jinho’s negligence occurred during his commute to the workplace. Under the generally accepted going and coming rule, employers are not liable for the torts of employees committed while traveling to or from the workplace at the beginning and end of the workday.

Mona was employed by Tasty Bistro as a valet parking attendant. Lucy drove up to the restaurant’s entrance and handed Mona her keys. Because the restaurant’s main valet parking area was full, Mona had to drive Lucy’s car to an auxiliary lot a few blocks away. Mona drove the car carefully, but an oncoming car with an intoxicated driver at the wheel suddenly swerved into Mona’s lane and crashed into her. Lucy’s car was badly damaged. If Lucy sues Tasty Bistro to recover for the damage to her car, will she be likely to prevail?

Yes, because the going and coming rule does not apply on these facts.

Yes, because Mona’s job was to park Lucy’s car safely.

No, because Lucy must sue both Tasty Bistro and Mona in order for respondeat superior to be applied.

No, because Mona was not negligent.

• No, because Mona was not negligent.

  Although Mona’s accident occurred while she was acting in the scope of employment, the facts do not suggest any negligence.

While dining at Tina’s Café, Jolene had a severe allergic reaction when she ate a dish containing peanuts that her server, Mary, had assured her was nut-free. Jolene sued Tina to recover the costs of her emergency medical treatment. At trial, Jolene proved that Tina failed to provide her waitstaff, including Mary, with information about potential allergens contained in the food served by the café, and that Tina did not provide training to employees about the importance of accurately answering customer questions about menu ingredients.

True or false? Tina will be liable to Jolene under the doctrine of respondeat superior, because Tina failed to exercise due care to minimize the risk of serving food containing nuts to customers with nut allergies.

True.

False.

• False

  Tina’s failure to provide proper training to her waitstaff could support a claim that Tina herself was negligent, and that Tina’s negligence caused Jolene’s harm. But the claim that Tina’s negligent training of Mary caused Jolene’s harm is a claim of direct liability against Tina herself, not a claim of vicarious liability under respondeat superior.

Jane sets off explosives in her backyard. The explosives cause Dan’s dog Rex, who has known vicious propensities, to get agitated to the point of breaking through a screen door and running away. Rex ran wildly across the street, straight into Mary’s car, causing Mary to crash and break her back. In an action by Mary against Dan and Jane for strict liability, Mary will likely:

succeed against Jane but lose against Dan.

succeed against Dan but lose against Jane.

succeed against both Jane and Dan.

lose against both Jane and Dan.

• lose against both Jane and Dan.

  proof of proximate cause is a requirement for any plaintiff. The chances that neighboring animals will get agitated and run into the road was hardly in the foreseeable scope of risk that made the activity of blasting explosives abnormally dangerous, thus Jane will not be strictly liable to Mary. Similarly, Dan is not strictly liable to Mary because Mary’s injury did not occur because of Rex’s propensity to cause harm. It would be different if Rex bit Mary, but here Rex ran out into the roadway. Dan is not strictly liable for this type of injury.

Albert was at Barney’s house when Barney’s cat, Claws, without provocation, suddenly hissed and launched at Albert, severely scratching him. Barney tells Albert that Claws previously scratched a visitor to the house who had been dangling a mouse on string, and Claws scratched while reaching for the toy in the midst of play. Moreover, Claws is kept in a spare guest room that also serves as Barney’s young son’s playroom. In an action by Albert against Barney, Barney will most likely be

strictly liable

negligent

both

neither

• neither

  Barney would be strictly liable for Claws if Barney knew, or had reason to know, that Claws had the propensity to harm others. Here, the context in which Claws had previously scratched is important: Claws scratched a prior visitor while playing, not out of any sort of vicious propensity. The fact that Claws is kept in the spare bedroom could carry weight if it tended to reflect that Barney knew he had a vicious cat that needed to be isolated from others; but, here the fact that his young child also uses the room suggests that no one is knowingly isolating a danger to others.

Is the following statement TRUE or FALSE: Every dog “gets one bite” before the owner will be strictly liable.

True

False

• False

  A dog owner will be strictly liable the first time a dog bites if an owner should know that an animal has “vicious propensities.” For example, if the dog owner knows her dog acts aggressively toward others, baring its teeth, growling, trying to attack and in need of restraint, the owner likely has reason to know the animal has vicious propensities toward others, even if the dog has not yet bitten anyone.

Which of the following scenarios presents the STRONGEST claim for strict liability:

• A child gets bitten by a dog while sticking his hands through the neighbor’s fence to pet the dog.

• A child gets bitten by a wild bear wandering through his neighbor’s property.

• A child’s skin is burned when he plays in the neighbor’s pool, when the neighbor accidentally added twice the recommended amount of chlorine.

• A child dies when he hops a small fence onto his neighbor’s property, and is electrocuted electrical substation.

• A child dies when he hops a small fence onto his neighbor’s property, and is electrocuted electrical substation

  maintaining such a strong electrical force is likely an abnormally dangerous activity. It is extremely dangerous, because contact with exposed power lines is likely to be fatal. Anyone coming into contact with such an electrical force will likely die.

Mary was hit by a car driven by Umberto as she was crossing the street in a crosswalk. Immediately after she is knocked down, while lying in the street with a broken leg from the collision, Beth, a bicyclist, negligently runs into her, breaking one of Mary’s ribs. Mary’s medical expenses for setting the leg are $2,500. The medical expenses for treating the rib injury are $1,000. Because of the combined injuries, Mary is out of work for five weeks due to the combined injuries and loses $6,000 in wages. The case is brought in a jurisdiction that applies joint and several liability. In determining the liability of Umberto and Beth for lost wages and medical expenses, Mary should recover

$9,500 against both Umberto and Beth.

$1,000 only from Beth.

$7,000 from Beth and $8500 from Umberto.

$7,000 from Beth and $9,500 from Umberto.

• $7,000 from Beth and $9,500 from Umberto.

  To determine the two defendants’ liability for lost earnings and medical expenses, we have to ask how much each caused. Beth caused the rib injury, so she owes $1,000 for medical expenses. She and Umberto were both causes of Mary’s five weeks of lost earnings, so they are both jointly liable for that. So Beth is liable for $6,000 plus $1,000, a total of $7,000. Umberto is liable for the medical expenses for treating the broken leg—$2,500—and for the medical expenses for treating the broken rib—$1,000—because Umberto is a cause of both injuries: If he had not knocked Mary down in the street she would not have been hit by Beth. So, Umberto owes $3,500 for medical expenses and $6,000 in lost earnings, a total of $9,500.

Luis, a renowned professor of Chemistry, had retired at age seventy-two. Two years after he retired, he was injured in an accident due to the negligence of Summers. Luis no longer drew a salary; he lived on withdrawals from his pension plan and his social security benefits. Until the accident Luis continued to engage in research, but not for pay, just because he enjoyed the challenge of his experiments. Luis suffered significant pain from the injury, though he recovered fully after six months. After the accident, however, he has found it hard to concentrate and has given up his research. The accident takes place in a jurisdiction that allows pain and suffering damages but does not allow a separate instruction to the jury on loss of enjoyment of life. If Summers is held liable for Luis’s injury the jury should award him damages for

lost income and lost earning capacity only.

lost earning capacity only.

pain and suffering from his injury and also for impairment of his ability to engage in his Chemistry research.

pain and suffering but no separate damages for impairment of his ability to engage in his Chemistry research.

• pain and suffering from his injury and also for impairment of his ability to engage in his Chemistry research

  However, that does not mean that a plaintiff cannot recover for impairment to his ability to engage in pleasurable activities that he enjoyed before. The plaintiff may still submit evidence that he has lost the ability to do so, and the jury may still award a sum to compensate for this consequence. The jury will not be given a separate “loss of enjoyment” instruction, but the plaintiff may still prove such consequences and the jury may consider them under the more general instruction on pain and suffering.

Severin, a forty-two-year-old landscaper, was injured when a car driven by Santos swerved off the road while Severin was mowing a lawn. He is now permanently disabled. He has a life expectancy of thirty-four more years. The jury should determine Severin’s average earnings per year and multiply that times thirty-four to calculate Severin’s lost earning capacity.

True

False

• False

  Using Severin’s life expectancy as the basis for awarding lost earning capacity would lead to too high a figure; instead, the jury should determine his work life expectancy and award damages only for the years until his expected retirement.

Ralph, a nine-year old boy, is permanently disabled in an accident caused by Cano’s negligence. There is no evidence of what he would have done for work had he not been disabled. He might have been an unemployable misfit or he might have made millions as a basketball forward or a venture capitalist . . . who knows. The jury should award damages to Ralph for pain and suffering and medical expenses, but not for future lost earnings.

True

False

• False

  However, the loss is real, is a profound economic loss caused by the tort, and should be compensated. The jury will have to make a rough estimate, probably based mainly on statistical averages but also on any evidence about the plaintiff’s character, circumstances or abilities that sheds light on his likely earning capacity before the accident.

Firenze was seriously injured in an accident caused by Zhou. She survived for six months but then died of her injuries. The relevant wrongful death statute allows recovery for both pecuniary and loss of society damages to the eligible survivors. The eligible survivors in the first tier are spouse and children; in the second, parents and siblings. The state also has a survival statute, allowing recovery for pre-death damages to the decedent. Firenze is survived by her husband, Renaldo, her only close relative. The personal representative of Firenze’s estate will probably recover damages for

Firenze’s medical damages, loss of income and pain and suffering incurred between the injury and her death in a survival action.

Renaldo’s loss of society with Firenze for the period between Firenze’s injury and her death in a survival action.

Renaldo’s loss of society with Firenze for the period after her death and for the period between the injury and her death, in a wrongful death action.

Renaldo’s loss of society with Firenze for the period after her death, in a survival action.

• Firenze’s medical damages, loss of income and pain and suffering incurred between the injury and her death in a survival action.

  Recovery for Firenze’s pre-death damages from the tort may be recovered in a survival action. If Firenze had lived, she could have recovered these damages herself. The right to recover damages for these pre-death damages “survives” to the estate, which may recover them from the tortfeasor. B and C are wrong, because any claim for loss of society that Renaldo has for the interference with his relationship to Firenze during the six months prior to her death is his own personal claim. He may recover for it in an “action for loss of consortium.” He is the plaintiff in that action, and the damages go to him personally. D is wrong, because any recovery for Renaldo for loss of society with Firenze for the period after her death must be sought under the wrongful death statute. A survival claim is for pre-death damages suffered by Firenze herself.

Rosales suffered serious injury in a construction accident negligently caused by Morris. He was hospitalized for four months, incurring medical expenses, lost wages, and other damages. He was recovering from his injuries when he drowned in a flood. The relevant wrongful death statute allows recovery for both pecuniary and consortium-type losses to the eligible survivors. The eligible survivors in the first tier are the spouse and children; in the second, parents and siblings. The state also has a survival statute authorizing the personal representative of the decedent’s estate to recover for pre-death damages suffered by a decedent. The executor or administrator of Rosales’s estate may bring a survival action to recover for Rosales’s pre-death damages, even though he did not die from the accident.

True

False

• True

  A survival action allows the decedent’s personal representative to recover damages suffered by an injured person caused by a tort, where the injured person was unable to collect those damages before dying (either from her injury or from an unrelated cause). The right to recover for those tort damages suffered before death “survives” the death of the tort victim in either case and can be enforced by the decedent’s estate. Rosales’s estate has a good “survival claim” for his lost income, medical expenses and other tort damages suffered before he drowned in an unrelated accident.

Jenkins was injured in a boating accident. He lived for four months and then died of his injuries from the accident. The relevant wrongful death statute allows recovery for both pecuniary and loss of society damages to the eligible survivors. The eligible survivors in the first tier are spouse and children; in the second, parents and siblings. The state also has a survival statute, allowing recovery for pre-death damages to the decedent. Jenkins is survived by his wife, from whom he is estranged, and his sister, who is financially independent but to whom he is very close emotionally. In most states

both the wrongful death recovery and the proceeds of the survival claim will go into Jenkins’ estate.

both the wrongful death recovery and the proceeds of the survival claim will go directly to Jenkins’ wife as the eligible beneficiary under the wrongful death statute.

the wrongful death recovery will go to Jenkins’ wife. The proceeds of the survival claim will be distributed to both Jenkins’ wife and his sister.

the wrongful death recovery will go to Jenkins’ wife. The proceeds of the survival claim will be paid to Jenkins’ estate.

• the wrongful death recovery will go to Jenkins’ wife. The proceeds of the survival claim will be paid to Jenkins’ estate.

  Most states distinguish between the wrongful death claim and the claim for pre-death damages authorized by the survival statute. Wrongful death damages go to the eligible beneficiaries, here Jenkins’ wife. The damages awarded in the survival action for pre-death losses—medical expenses, lost income, pain and suffering—go into the decedent’s estate, and will be distributed to the beneficiaries of his will (if he leaves a will) or to his heirs if he doesn’t . . . or to Jenkins’ creditors if needed to pay his debts.

Danica is injured in an accident with Epstein. She suffers for six months and then dies of her injuries. Stanley, her husband, suffered loss of society with Danica during the six months before her death; they were unable to engage in many activities together that they enjoyed before she was injured. Stanley will recover for his loss of society with Danica for the six-month period in a survival action.

True

False

• False

  Stanley’s claim for loss of society (often called loss of consortium, if for interference with the spousal relationship) is his own claim. He may recover for it in an action for loss of consortium brought by him, as the plaintiff because it is for his loss, not Danica’s. It is not a survival claim, which is a claim of tort damages suffered by a deceased person prior to death.

Firenze was seriously injured in an accident caused by Zhou. She survived for six months but then died of her injuries. The relevant wrongful death statute allows recovery for both pecuniary and loss of society damages to the eligible survivors. The eligible survivors in the first tier are spouse and children; in the second, parents and siblings. The state also has a survival statute, allowing recovery for pre-death damages to the decedent. Firenze is survived by her husband, Renaldo, her only close relative.

In his answer Zhou raises the affirmative defense that Firenze was partly at fault in causing the accident. Under relevant law—the doctrine of contributory negligence—Firenze would have been barred from recovering if she had survived and sued Zhou herself for her injuries. In a majority of jurisdictions Firenze’s negligence

• will bar recovery on the survival claim, but not the wrongful death claim.

• will bar recovery on the wrongful death claim, but not the survival claim.

• will bar recovery on both the wrongful death claim and the survival claim.

• will not bar recovery on either claim.

• will bar recovery on both the wrongful death claim and the survival claim.

  In a contributory negligence jurisdiction Firenze could not have recovered damages from Zhou if her negligence was a cause of her injury. If Firenze had survived, her negligence would have barred her from recovering damages from Zhou in a contributory negligence jurisdiction, so the same defense will bar recovery in the survival action.

Jenkins was killed instantly in a boating accident caused by Flynn. The relevant wrongful death statute allows recovery for both pecuniary losses and loss of society damages to the eligible survivors. The eligible survivors in the first tier are spouse and children; in the second, parents and siblings. Jenkins is survived by his wife, Jacklyn, from whom he is estranged. Jenkins left a will leaving all of his estate to Candice, a woman with whom he had had an ongoing relationship. If Jenkins’s personal representative sues Flynn for wrongful death and recovers damages, the damages recovered will be those suffered by Jacklyn, not Candice.

True

False

• True

  Most wrongful death statutes specify that the recovery is for the benefit of the survivors in the tiers specified in the statute. Jenkins’s will is irrelevant to the assessment and distribution of damages in the wrongful death suit. Because Jacklyn is in the first tier of beneficiaries, the wrongful death damages will be assessed based on her pecuniary and loss of society damages only.

Jenkins was killed instantly in a boating accident. The relevant wrongful death statute allows recovery for both pecuniary losses and loss of society damages to the eligible survivors. The eligible survivors in the first tier of the statute are spouse and children; in the second, parents and siblings. Jenkins is survived by his wife, Jacklyn, his mother, Maria, whom he supports, and a sister, Alicia, who is financially independent but to whom he is very close emotionally.

• Because she is in the first tier, Jacklyn may bring suit to recover both pecuniary and loss of society damages suffered by herself, Maria and Alicia.

• Jacklyn may recover pecuniary and loss of society damages for herself, but only pecuniary losses from Maria and Alicia

• Jacklyn may recover both pecuniary and loss of society damages for herself but is probably not the proper plaintiff in the action.

• Maria and Alicia may recover both pecuniary and loss of society damages but will have to bring the action for their losses separately.

• Jacklyn may recover both pecuniary and loss of society damages for herself but is probably not the proper plaintiff in the action.

  Because Jacklyn, as Jenkins’s wife, is in the first tier of survivors under the wrongful death statute, she may recover her pecuniary damages and loss of society damages under the statute. However, Jacklyn is not the proper person to bring the suit; under most wrongful death statutes it is the personal representative of the estate, appointed by the court, who brings the action

Jose was killed instantly in a traffic accident. The relevant wrongful death statute allows recovery for both pecuniary and consortium-type losses to the eligible survivors. The eligible survivors in the first tier are the spouse and children; in the second, parents and siblings. Jose was survived by his wife and by a brother, Raul, who was very close to Jose. Raul brings an “action for negligence” against Faith, who caused the accident that led to Jose’s death, claiming a right to recover for the loss of his relationship with Jose. Raul alleges that Faith owed a duty of care while driving, that she breached that duty by driving negligently, that her negligent driving caused Jose’s death, and, as a consequence, Raul’s relationship to Jose was destroyed. The court will probably dismiss Raul’s claim for failure to state a claim upon which relief can be granted.

True

False

• True

  Here, the statute limits recovery to Jose’s wife, because she is in the first tier of beneficiaries. Consequently, Raul is not entitled to recover damages for Jose’s wrongful death, no matter what losses he has suffered from it.

Vega brings suit against Marshall for injuries in an accident. He also asserts a claim for loss of consortium suffered by his wife, Maria, as a result of the injury. This claim is improper because Vega is not the proper plaintiff on the claim.

True

False

• True

  The claim for loss of consortium is Maria’s claim, not Vega’s. Maria should sue on this claim in her own name as plaintiff because the claim is for an injury suffered by her. In some states the uninjured spouse must join his or her loss of consortium claim with the primary claim of the directly injured spouse. Either way however, this is a separate claim for the uninjured spouse

Which of the following loss of consortium claims is least likely to be recognized by American courts?

The claim of a minor child for loss of consortium with an injured parent.

The claim of a sibling for loss of consortium with an injured sibling.

The claim of a parent for loss of consortium with an injured minor child.

The claim of a sibling for indirect infliction of emotional distress at witnessing injury to a sibling.

• The claim of a sibling for loss of consortium with an injured sibling.

  Not all states recognize the right of a child to recover for loss of consortium with an injured parent, but a fair number do. The same is true in the converse case of loss of consortium for a parent due to the injury of a minor child. And most states extend the right to recover for negligent indirect infliction of emotional distress to siblings. Very few, however, allow siblings to recover for loss of consortium with an injured sibling.

Winston is injured in an accident and completely incapacitated for six months. He sues the other driver for his injury and his wife, Olivia, asserts a claim in the same suit for loss of consortium. Which consequences of Winston’s injury would be proper elements of damages on Olivia’s claim in most states?

Damages for loss of financial support that Winston provided from his income.

Damages for Winston’s inability to play tennis with their son Jack, one of his favorite activities.

Damages for nursing care that Olivia chooses to provide to Winston while he is incapacitated.

Damages for Olivia’s sadness that Winston has been badly injured.

None of the above.

• None of the above.

  Olivia’s loss of consortium claim is not—in most jurisdictions—for her sadness that Winston is injured. The claim is for the effect of his incapacity on their relationship, the loss of the activities and comfort they shared before the injury. True, a jury will have a hard time separating Olivia’s sadness at watching Winston suffer from separate interference that the injury has caused to their relationship. But analytically they should; in a good many jurisdictions instructing the jury that they may award consortium damages for Olivia’s grief at the injury would constitute reversible error.

Winston is in a motor vehicle accident with Potempkin and is incapacitated for most of a year. Winston sues Potempkin for personal injury damages, alleging that the accident was caused by Potempkin’s negligence. Potempkin answers, alleging that the accident was caused by Winston’s negligence. At trial the jury finds that Winston was forty percent negligent in causing the accident and Potempkin was sixty percent negligent. Under the relevant comparative negligence statute, Winston would recover sixty percent of his damages.

Winston’s wife Olivia sues as a coplaintiff with Winston, seeking recovery for loss of consortium. Olivia was not with Winston at the time of accident. The jury finds that Olivia has suffered $100,000 in consortium damages. Olivia will

recover her full consortium damages in any jurisdiction

recover her consortium damages reduced by forty percent in any jurisdiction.

will not recover for loss of consortium, because Winston was partly at fault in causing the accident.

None of the above is accurate.

• None of the above is accurate.

  right because none of the others are. States differ on whether the negligence of an injured spouse in causing the accident should affect the consortium recovery of the uninjured spouse. Some would reduce Olivia’s consortium recovery by Winston’s percentage of negligence; others will not reduce it at all, on the theory that the uninjured spouse’s consortium claim is independent and should not be reduced, because Olivia was not a negligent cause of the injury.

Vega was driving down Main Street. His cell phone rang and he was distracted by looking at it as he approached the intersection with Maple Street. Newman was waiting to cross Main Street at the corner of Maple and Main Streets. The “WALK” sign lit up for him and Newman started out from the sidewalk to cross. Vega looked up from his phone, saw Newman in front of him at the last second, and swerved into the sidewalk, hitting and injuring Diller, who was looking in a store window at the time.

Both Vega and Newman are actual causes of Diller’s injuries and therefore will be liable to Diller.

Only Vega is a cause of Diller’s injury, so only he will be liable.

Both Vega and Newman are actual causes of Diller’s injuries, but Newman will probably not be liable to Diller.

Vega is a negligent cause of Diller’s injury, but will not be liable to Diller if Newman could have avoided the accident.

• Both Vega and Newman are actual causes of Diller’s injuries, but Newman will probably not be liable to Diller.

  Of course, both Vega and Newman are causes of Diller’s injury, in the actual cause sense of the term. If Vega hadn’t been driving down Main Street, he wouldn’t have swerved into Diller. If Newman had not been crossing Main Street, Vega would not have swerved to avoid him and run up on the sidewalk. So “but for” Vega’s conduct and Newman’s conduct, the accident would not have happened.

  However, the facts suggest that Newman was exercising due care. He waited for the light to change and had the walk signal, so he probably was not negligent to be where he was when Vega saw him. If that is true, Newman is a cause of Diller’s injury, but not a negligent cause of it, so he will not be liable to Diller.

Weaver was a tenant in a rooming house owned by Genda. His room was in the middle of a long hall on the third floor. State law required rooming houses to have an emergency staircase outside the window, but Genda had not provided one. The rooming house caught fire, due to negligence of another tenant who fell asleep smoking in bed. The fire did not waken Weaver, who died of smoke inhalation in his bed. His family sued Genda for wrongful death, alleging that Genda was negligent for failing to provide an emergency staircase outside the window. Genda will probably

• be liable for wrongful death of Weaver because he was negligent for failing to provide the emergency staircase.

• not be liable for wrongful death of Weaver, because the lack of a staircase was not an actual cause of Weaver’s death.

• be liable for wrongful death of Weaver because he is a joint tortfeasor with the tenant who caused the fire.

• not be liable for wrongful death of Weaver, because Weaver would not have died “but for” the negligence of the other tenant.

• not be liable for wrongful death of Weaver, because the lack of a staircase was not an actual cause of Weaver’s death.

Waver was a tenant in a rooming house owned by Genda. His room was in the middle of a long hall on the third floor. State law required rooming houses to have an emergency staircase outside the window, but Genda had not provided one. The rooming house caught fire because Weaver fell asleep smoking in bed. Weaver was found dead halfway down the hall between his room and the window at the end of the hall. The window was open. Weaver’s family sued Genda for wrongful death, alleging that Genda was negligent for failing to provide an emergency staircase outside the window. On these facts a jury

might reasonably conclude that Genda’s negligence was a cause of Weaver’s death.

could not find that Genda’s negligence was a cause of Weaver’s death, because he did not die right inside the window.

could not find Genda liable for Weaver’s death, because Weaver’s negligence was a “but for” cause of his own death.

should find Genda liable for Weaver’s death, because Genda violated an applicable statute requiring an emergency staircase.

• might reasonably conclude that Genda’s negligence was a cause of Weaver’s death.

Gupta had the rear gate of his pick-up truck repaired by Pirone, but because Pirone did a bad job in the repair and it still would flop open occasionally while Gupta was driving. Gupta knew this but he was busy and didn’t take it back in for further repair. Five months later, while he was driving on the interstate, the rear gate fell open and a lawn mower rolled out the back of the truck into the path of Ling’s car, causing an accident in which Ling was injured. If Ling sues Gupta and Pirone for her injuries,

• they will both be “but for” causes of Ling’s injury, but only Gupta will be liable, because he should have taken the truck back in for further repair.

• only Gupta is a “but for” cause of Ling’s injury because he did nothing about the broken gate for five months.

• only Pirone is a “but for” cause of Ling’s injury because the gate fell due to his faulty repair work.

• both Gupta and Pirone will be liable for Ling’s injury because they are both “but for” causes of her injury.

• both Gupta and Pirone will be liable for Ling’s injury because they are both “but for” causes of her injury.

  The negligent acts of both Gupta and Pirone contributed to causing Ling’s injury. If Pirone had fixed the gate well, it would not have fallen open while Gupta was driving. If Gupta had not ignored the danger of the faulty gate, but had had it properly repaired, the gate would not have fallen open and caused the mower to roll out. Both are actual causes of Ling’s injury and will be liable for it.

  It is true that Pirone’s negligence took place five months before the accident. But it is still a cause of the accident.

The Edison Company mounted a heavy transformer on one of its light poles. However, the installer failed to tighten the bolts that hold the transformer to the pole. Three months later, while Luran is waiting for the school bus on the sidewalk, Foster negligently crashes into the pole. The transformer—because it is loose—falls on Luran’s head, causing an injury. If Luran sues the Edison Company, it will not be liable to Luran, because the transformer fell due to the negligence of Foster in crashing into the pole.

True

False

• False

Lobos and his friend Stein drove to the ball game together in Lobos’s truck which Lobos knew had defective brakes. After the game they headed home, with Lobos driving. Suddenly Lobos's tire ran over a sliver of glass and blew out, causing the car to swerve instantly into an oncoming truck. The collision caused injuries to Stein. Stein will probably

not recover from Lobos, even though his brakes were defective, because Lobos’s negligence was not a “but for” cause of Stein’s injury.

recover fully from Lobos because Lobos was negligent in driving with defective brakes.

recover fully from Lobos, because Lobos’s defective brakes caused the accident.

recover partial damages from Lobos, even if Stein knew that Lobos’s brakes were defective.

• not recover from Lobos, even though his brakes were defective, because Lobos’s negligence was not a “but for” cause of Stein’s injury.

Farmer Jane negligently starts a fire to burn brush off of her field on a windy day. Next door, Farmer Jack does the same thing. A heavy wind comes up and blows the fire towards Menlove’s barn. Jane’s fire reaches the barn first and burns it. Minutes later, Jack’s fire arrives at the barn, which has just been burned.

Only Jane is liable to Menlove for his lost barn.

Both farmers are liable to Menlove for his lost barn because they were both negligent to burn brush on a windy day.

Both farmers are liable to Menlove, because they both could have foreseen that their fire might escape and burn Menlove’s barn.

Both farmers are liable to Menlove for his lost barn because the negligence of each was sufficient to burn Menlove’s barn.

• Only Jane is liable to Menlove for his lost barn.

  Jane’s fire reached the barn and burned it. Her fire caused the loss, not Jack’s. True, Jack’s would have done the job if hers were not around, but it was and did burn the barn. Jack’s did not; his fire is a “preempted cause,” one which could have caused the loss but did not.

Effron was refinishing the floor in Perkins’s barn, coating the floor with linseed oil. At the end of the first day of the work he left the rags he was using to apply the linseed oil in a pile in a corner of the barn. That night the barn burned down. The destruction was so complete that the fire marshal could not determine exactly where the fire started. If Perkins sues Effron for the damage to the barn

• he will lose, because a plaintiff cannot establish causation based on “post hoc, ego propter hoc”—the fact that the fire came after Effron worked in the barn does not establish that Effron’s work caused it.

• he will recover because the interval between the work and the fire was short.

• he may recover if he finds an expert who testifies that, based on complex experiments she has performed, oil rags can ignite and cause a fire.

• he may recover if jurors, based on their general experience, could conclude that Effron should have known that oily rags can ignite and cause a fire.

• he may recover if jurors, based on their general experience, could conclude that Effron should have known that oily rags can ignite and cause a fire.

  If the fire risk is common knowledge, the jury is in a position to reason to a conclusion that the rags ignited. Their conclusion would not be based solely on “this came after that, therefore that must have cause this.” They would understand why the early act could lead to the later consequence, and it is this understanding that would support a finding of causation.

While skiing separately down a busy trail, Laverne and Wilbur came to a ledge overhanging another section of the slope. They simultaneously launched themselves over the ledge without stopping to see if the area below was clear. Unfortunately, Simon was standing where Laverne and Wilbur landed. One of their ski poles struck Simon’s shoulder, causing a single discrete wound. Simon sued Laverne and Wilbur to recover for his injury. In a jurisdiction that follows Summers v. Tice, if Simon establishes that either Laverne or Wilbur must have caused his injury, but there was no evidence to prove which one actually did,

• Simon will lose, because he has the burden of proving that at least one individual defendant was more likely than not the actual cause of his damages.

• each defendant will be severally liable for 50% of Simon’s damages.

• Laverne and Wilbur will be jointly and severally liable to Simon for his injury unless one of them can disprove his or her own responsibility.

• either Laverne or Wilbur will be liable, but not both, because only one of them was an actual cause of Simon’s damages.

• Laverne and Wilbur will be jointly and severally liable to Simon for his injury unless one of them can disprove his or her own responsibility.

  There, as here, the plaintiff can establish that one of two negligent actors must have caused the plaintiff’s harm, but it was not possible to determine which. In such a case, the rule of Summers is that the burden shifts to the defendants to disprove actual causation, and if they cannot, they are held jointly and severally liable.

Maria and Jason were hunting for deer in the woods. Maria was using a crossbow and Jason was using a rifle. They had gotten lost and failed to notice they were in an area near a hiking trail where hunting was prohibited. Jason and Maria saw something moving in the bushes. They thought it was a deer, but in fact it was Ralph, a hiker. Jason and Maria fired their weapons, and both of their shots struck Ralph simultaneously. Investigation showed that the wounds from Ralph’s bullet and Maria’s crossbow bolt would each have been fatal to Ralph on its own. In a wrongful death action against Maria and Jason,

the burden of proof will shift to Maria and Jason to disprove causation.

Jason and Maria will be found to be actual causes of Ralph’s death, and both will be liable.

neither Maria nor Jason will be liable, because neither was a but-for cause of Ralph’s death.

either Jason or Maria will be liable, but not both.

• Jason and Maria will be found to be actual causes of Ralph’s death, and both will be liable.

Ron was paddling his canoe down a river where boating was very common. Just after passing under a bridge, he was struck by a rock that had been dropped from above. Security footage from a nearby building showed four individuals simultaneously dropping rocks from the bridge where Ron was struck, but it was impossible to determine which one dropped the rock that actually injured him. Authorities were able to identify two of the four possible culprits, Matt and Keith. Ron sued them both. In a jurisdiction that follows Summers v. Tice, the most likely outcome is that

• Matt and Keith will be jointly and severally liable to Ron for the full amount of his damages unless one of them can disprove his or her own responsibility.

• Matt and Keith will each be severally liable for one-fourth of Simon’s total damages.

• Matt and Keith will be jointly and severally liable, unless they can prove that the rock that hit Ron was thrown by one of the other two people seen in the security footage.

• Ron will lose.

• Ron will lose

  the burden-shifting rule of Summers only applies if all of the potential tortfeasors who could have caused the plaintiff’s injury have been added as defendants in the action.

Aliyah, Bob, and Chaz were hired to cut down a very large tree on Perez’s property. The three of them took turns hacking away at the tree with an axe. Chaz struck the final blow before the tree fell. Unfortunately, the trio had failed to take the proper precautions to ensure that the tree would fall in a safe direction. It landed on Perez’s house and caused significant damage. Perez sued Aliyah, Bob and Chaz for their negligence. Which of the following is the most likely result?

• Aliyah, Bob and Chaz will all be liable.

• Chaz will be liable, but Aliyah and Bob will not, because Chaz actually caused the tree to fall.

• The burden will shift to Chaz to prove that Aliyah and Bob were substantial factors in causing the tree to fall on Perez’s house.

• The burden will shift to Aliyah, Bob and Chaz to disprove liability, and any defendant who fails to satisfy that burden will be held jointly and severally liable.

• Aliyah, Bob and Chaz will all be liable.

  Aliyah, Bob and Chaz were each negligent in failing to exercise due care to ensure the tree would fall safely, and their negligence in chopping without such care was a but-for cause of Perez’s damages. All three actors helped chop the tree down, and the fact that Chaz struck the final blow has no legal significance on these facts.

Maria and Jason were hunting for deer in the woods. Maria was using a crossbow and Jason was using a rifle. They had gotten lost and failed to notice they were in an area near a hiking trail where hunting was prohibited. Jason saw something moving in the bushes. He thought it was a deer, but in fact it was Ralph, a hiker. Jason fired his rifle. His bullet hit Ralph, killing him instantly. A few seconds later, Maria fired her crossbow in the same direction, also striking Ralph. In a wrongful death action against Maria and Jason,

only Jason will be liable.

Jason and Maria will both be liable, because each of them was an actual cause of Ralph’s death.

Jason will be liable, and Maria will also be liable if the evidence shows that her arrow would have been sufficient to cause Ralph’s death on its own.

Jason and Maria will both be liable, because they both committed negligent acts, and fatally injuring a hiker was a foreseeable result of those acts.

• only Jason will be liable