1L Tort Law Exam Prep

7 types of intentional torts

1 Battery

2 Assault

3 False imprisonment

4 Trespass to land

5 Trespass to chattels

6 Intentional infliction of emotional distress

7 Conversion

What is prima facie case?

And early screen for a court to determine whether the prosecution can go forward to try a defendant fully for a crime.

What are the 4 basic tests the courts have developed to deal with the issue of actual cause?

1 But for

2 Concurrent cause

3 Substantial cause

4 Alternate cause doctrine

What are the 7 classes of defendants that define the standard of care?

1 Reasonable person

2 Child

3 Physician/professional

4 Common carrier or inn keeper

5 Automobile driver

6 Bailor

7 Possessor or owner of land

What is the transferred intent doctrine?

If the D intents to commit an internal tort against a person, that D is liable even if a different tort results or a different person is impacted.

Which intentional tort occurs when defendant causes or is the substantial cause in bringing about the confinement or restraint of plaintiff in a bounded area with Specific general intent.

torf false imprisonment

Which intentional tort occurs when D acts with extreme or outrageous conduct which causes a substantial factor in bringing about the severe emotional distress in P with specific or general intent or with recklessness as to the risk of causing severe emotional distress?

IIED

Which intentional torts involve the interference with another's rightful possession of personal property?

trespass to chattel and conversion

Which intentional tort occurs when D causes or is a substantial factor in bringing about a physical invasion of the P’s land with specific or general intent?

trespass to land

What are the 3 categories of land owners?

1 Trespasser

2 Licensee

3 Invitees

What are the 4 types of actual damages as it relates to trespass to chattels and conversion?

1 Bodily (ex withhold meds)

2 Impairment of personal property (ex smash windows)

3 Dispossession/theft

4 Loss of use for substantial time

What are the 8 valid defenses to trespass to land?

1 Consent

2 Improper or no notice

3 Invitation

4 Mistake

5 Mistaken belief

6 Necessity

7 Police action

8 Public access

A valid defense of private necessity arises if it is necessary for the D to be on the P's land to _____________.

Prevent serious harm to the D or to D’s property

Private necessity gives the D the right to interfere with P’s property rights but the D must pay for damages caused to the property.

What are the 3 elements of consent?

1 Informed

2 Voluntary

3 Comprehension of Information/legal capacity

true/false

In order for there to be implied assumption of risk, the plaintiff subjectively understood the existence, nature, unreasonableness and magnitude of the risk posed by defendant’s conduct but nevertheless took action exposing him/herself to that risk under circumstances which manifest that the plaintiff was willing to accept the risk.

True

true/

The basic rule of proximate cause is that an actor should only be held liable for those harms arising from the risks that a reasonable person should have been able to foresee arising from that conduct.

true

What is confinement by duress?

When an actor essentially forces the victim to choose between remaining in a prefixed area or suffering some other adversity which a reasonable person in the victim's position would consider equally as undesirable as remaining confined.

Give 3 examples of lawful confinement.

1 police officer making a valid arrest

2 prison officials detaining a lawfully incarcerated inmate

3 shopkeeper exercising the shopkeeper’s privilege to detain a suspected shoplifter

What are the 5 elements that must be presented by the P to establish negligence per se?

1 there's a statute that imposed a duty of care

2 the D violated that statute

3 the P is in the class of ppl that the statute was designed to protect

4 the P sustained the type of harm the statute tries to prevent

5 the violation of statute is the actual and proximate cause of the harm suffered by P

What is Res Ipsa Loquitur and how is it established?

Res Ipsa Loquitur allows for a breach to be inferred absent direct evidence of the D's conduct so long as the accident resulting in harm was

1 of a kind that ordinarily does not occur in the absence of negligence

2 caused by an agent or instrumentally within the D’s exclusive control

3 NOT due to any action on the part of the P

What are the 4 elements of negligence torts?

1 Duty

2 Breach

3 Causation

4 Damage

What are the 3 defenses to contributory negligence?

1 D acted recklessly or intentionally (not just negligently)

2 rescuer's negligence

3 last clear chance

Define private nuisance. Provide examples.

The use of one's property in a manner that causes significant harm to another individual’s use or enjoyment of their private land.

Examples: vibrations, loud noise, pollution of streams or soil, smoke, offensive doors, excessive light.

What are the requirements to prove specific intent? Provide examples of specific intent crimes.

Specific intent crimes require prosecutor prove D had the desire to commit the act as well as the knowledge or intent that committing the act would achieve the end result.

Examples: 1st degree murder, robbery, burglary, conspiracy, solicitation, embezzlement, forgery, larceny, child molestation

What are the requirements to prove general intent? Provide examples of general intent crimes

General intent requires no further proof of a mental state than beyond a willingness to commit the act.

Ex: assault, battery, kidnapping, rape, involuntary manslaughter, false imprisonment, DUI

This tort principal holds that each tortfeasor may be jointly and severally liable for the harm suffered by the P. Each tortfeasor will be liable for their percentage of fault. Damages amongst tortfeasors will be apportioned according to their percentage of fault determined by the fact finder.

comparative negligence

What are the two types of comparative fault jurisdictions?

pure comparative fault & modified comparative fault.

Compare and contrast pure comparative fault & modified comparative fault

1 Pure comparative fault allows a P to recover regardless of if they are found more than 51% of fault.
2 Modified comparative fault bars the P from recovery if the P is found to be more (generally) than 51% at fault by the fact finder.

What theory applies when there are multiple negligent defendants. If the plaintiff is also at fault, in a comparative fault jurisdiction, the plaintiff's total recoverable damages are reduced by their percentage of fault. Can the plaintiff then sue one or more defendants to recover up to the full amount of these reduced damages?

Joint/several liability

True or False
With modified comparative fault, the recovery is modified to consider the amount of P’s fault.

False.
P is barred from recovery if P is as much at fault or more at fault than D.

What are the defenses to strict liability?

1 contributory negligence
2 assumption of risk

A product manufacturer/designer will be liable in negligence when they fall below the standard of care which causes a product to be defective and the P’s harm is caused due to the negligence.

What are the 4 elements P must prove in a product liability claim?

1 duty of reasonable care to protect foreseeable victims from foreseeable risks of harm
2 a breach of that duty
3 actual and proximate cause
4 damages

What are the defenses to product liability? (7)

1 alteration of product

2 assumption of risk

3 comparative fault

4 contributory negligence

5 misuse of product

6 product liability on negligence theory

7 product liability on warranty theory (express, implied, and/or implied merchantability warranty)

Defamatory message embodied in any relative permanent form. Reputational harm is presumed but damages have to be proven.

libel

What are the 4 common law + 2 constitutional elements a P must satisfy in a defamation action?

Defamation occurs when (1) the defendant caused (2) material harm and related injuries (3) to the plaintiff’s reputation (4) by publishing defamatory material Rest. 2d. §558

When the case involves a public concern or the P is a public official/figure the following additional constitutional elements are implicated.
5 - proof of the falsity and
6 - state of mind.

A woman suffered from delusions which rendered her insane. Despite suffering from a mental illness, she was able to engage in some daily activities and enjoyed riding a bicycle around the neighborhood. During one such ride, she experienced a delusion that distracted her and caused her to slam into a pedestrian. The pedestrian suffered a broken arm, which also affected his livelihood, and he sued the woman for the intentional tort of battery, defined as an intentional, nonconsensual contact with the plaintiff or his effects, which contact caused harm to the plaintiff. On the issue of the requisite state of mind to establish battery, which party will prevail?

A. The woman, because she is insane.
B. The woman, because she did not intend to hit the pedestrian.
C. The pedestrian, because insanity is not a defense to an intentional tort.
D. The pedestrian, because the woman intended to ride her bicycle.

B. The woman, because she did not intend to hit the pedestrian.
On the issue of the requisite state of mind to establish the intentional tort of battery, the woman will prevail, because she did not intend to hit the pedestrian. The woman unintentionally hit the pedestrian as a result of the distraction caused by a delusion.

If the woman had intended to hit the pedestrian, she would not have been insulated from tort liability simply because she was insane.

A sixteen-year-old high school student got into a fistfight with another student. When a teacher attempted to break up the fight, the student inadvertently punched the teacher instead of the other student. The required mental state for the tort of battery is intent. Did the student have the requisite mental state (intent) for the tort of battery against the teacher?

A. Yes, because the teacher intended to break up the fight.
B. Yes, because the student intended to punch the other student.
C. No, because minors lack the capacity to form intent.
D. No, because the student did not intend to hit the teacher.

B. Yes, because the student intended to punch the other student.

Under tort law, a person’s intent to harm one victim transfers to other, inadvertent victims of the intentional tortious act. This is sometimes referred to as the doctrine of transferred intent.

Here, the student intended to punch the other student. Under the doctrine of transferred intent, the student’s intent to punch the other student transfers to the teacher, the actual recipient of the punch. Therefore, the student had the requisite intent for the tort of battery against the teacher, even though the student actually intended to punch only the other student, not the teacher.

A commuter took the subway to work every day in a large city. The subway train was crowded one morning, and the commuter was standing on the train among a crowd of tourists. The train stopped suddenly, and one of the tourists grabbed the commuter’s arm for a moment in order to keep herself from falling. The contact did no lasting harm to the commuter. If the commuter brought an action for battery against the tourist, which of the following issues is most likely to be dispositive?

A. Whether the law implies consent to this type of contact as part of the social usages prevalent in a city subway.
B. Whether the commuter was unusually sensitive to this type of contact.
C. Whether the tourist could have steadied herself without grabbing the commuter.
D. Whether the commuter was offended by the contact.

A. Whether the law implies consent to this type of contact as part of the social usages prevalent in a city subway.

A defendant commits a tortious battery when he intends to, and does cause, a physical harmful or offensive contact with the plaintiff or with something connected to the plaintiff’s person, to which contact the plaintiff did not consent.

In a claim for battery based on offensive contact, the offensiveness of the contact is judged by the reasonable, ordinary person standard, unless the defendant knew of the plaintiff’s unusual sensitivity and took advantage of it.

There is a bit of overlap between the reasonable, ordinary person standard for when contact is offensive and a court’s determination to imply consent for a contact that social usages make prevalent in the time and place at which the contact is inflicted. The inquiry depends on context.

Here, on a crowded city subway train, brief contacts through the hustle and bustle of the crowd are likely to be deemed consensual.

A parent took her five-year-old daughter to the doctor for a physical before the daughter was slated to start elementary school. While the parent was out of the room, the doctor asked the daughter if she was up to date on all her immunizations. The daughter said, “Mommy said something about a booster shot, that I couldn’t start school without one.” Outside the parent’s presence, the daughter signed a consent form that fully described the risks posed by the booster shot, including the risk of an adverse allergic reaction. The doctor then injected the shot, again outside the parent’s presence. The daughter suffered a severe allergic reaction to the shot. The parent consulted an attorney about bringing an action for the tort of battery against the doctor. Does the doctor likely have a valid consent defense to a claim for the tort of battery?

A. Yes, because the daughter signed a consent form that fully described the risks of the shot.
B. Yes, because the daughter’s consent to the shot was implied at law.
C. No, because the harm that the daughter suffered exceeded the scope of the consent.
D. No, because the daughter was five years old.

D. No, because the daughter was five years old.

The tort of battery arises if the actor intentionally inflicts harmful or offensive physical contact on the victim.

A battery victim’s valid consent operates as an affirmative defense to battery, even if physical harm resulted from the contact. Valid consent may be either express or implied. Express consent involves an explicit statement that the victim agrees, or consents, to the defendant’s activity. The consent must be:

(1) informed;

(2) voluntary; and

(3) given by a person with the legal capacity to consent.

First, consent is informed if the victim knows everything a reasonable person would need or want to know in order to make an informed decision about whether to give consent—including the nature of the risk and the type of harm the victim might suffer.

Second, consent is voluntary if it is a product of the victim’s volition, procured without duress, coercion, or undue influence—but not necessarily free from pressure or persuasion.

Third, consent must be given by a person with the legal capacity to consent.

Minors and incompetents cannot usually give valid consent, nor arguably can those who are under the influence of drugs that significantly affect their capacity to make critical judgments.

Some jurisdictions permit older minors, such as those around 16 or 17 years old, to make their own medical decisions without input from their parents. Very young minors, though, need their parents’ consent for medical procedures such as the vaccination here.

Further, in the context of a medical procedure, a medical practitioner has a duty to obtain the patient’s informed, effective consent before performing the procedure. Accordingly, the practitioner is liable for battery, in an informed-consent case such as the case here, if three requirements are met: nondisclosure, causation, and harm.

Nondisclosure generally means that the practitioner fails to disclose some material risk of the treatment. Depending on the jurisdiction, a risk is material if either

(1) a reasonable person in the patient’s position would deem it relevant in deciding whether to undergo the treatment or

(2) a reasonable medical practitioner would disclose the risk to the patient. Either way, the facts indicate that the doctor disclosed all material risks here, including that of an allergic reaction.

Depending on the jurisdiction, causation requires that the particular patient, a reasonable person in the patient’s position, or both would have rejected the treatment upon knowing of the material risks.

Here, had the daughter been old enough to consent, causation would have failed here, for the daughter chose to undergo the vaccine after being informed of material risks. Yet here, the daughter was only five years old. Because the daughter was a very young minor, she could not give valid consent to the tort of battery nor make a valid independent decision to undergo the vaccine. Therefore, the doctor is not likely to have a valid consent defense in this situation.

A man who depended on a wheelchair for mobility was scheduled to travel by airplane. The man’s girlfriend had a dream that his flight would crash. The girlfriend urged the man not to take the flight, but the man dismissed the girlfriend’s fears.

On the night before the flight, after the man fell asleep, the girlfriend removed the wheelchair from the man’s bedroom, but did not lock the door. The man awoke seven hours later and insisted that the girlfriend return his wheelchair. The girlfriend gave in and returned the chair to the man after 30 minutes, but she pleaded and cried for the man not to leave. The man felt bad for the girlfriend, so he stayed with her in the bedroom for another 15 minutes before getting ready to go to the airport.

For what amount of time, if any, was the man falsely imprisoned?

A. Seven hours and 30 minutes.
B. 45 minutes.
C. 30 minutes.
D. No amount of time.

C. 30 minutes.

The man was falsely imprisoned for the 30 minutes during which the girlfriend deprived him of access to his wheelchair and he was awake.

The tort of false imprisonment requires: an act by an actor that is intended to, and that does in fact, cause the victim to be confined non-consensually within a fixed set of boundaries of the actor’s choosing for any appreciable length of time.

Further, the victim must either be aware of the confinement or be harmed by it, and the actor must confine the victim without any lawful authority to do so.

Finally, the confinement need not always be direct, physical confinement.

Here, the girlfriend never locked the bedroom. However, because the man relied on the wheelchair for his mobility, he was not able to move about freely without the wheelchair. Therefore, the girlfriend’s act of depriving the man of his wheelchair confined him non-consensually to his bedroom for an appreciable amount of time.

Further, the woman had no lawful authority to confine the man. Although the man was deprived of his wheelchair for seven hours and 30 minutes, for purposes of the tort of false imprisonment, the man’s confinement did not begin until he was aware of it—thus, not until he awakened. The man was not falsely imprisoned for the seven hours that he slept, unaware of the loss of his wheelchair. After the man woke up and became aware of the loss of his wheelchair, the man was aware that he was unlawfully confined, without his consent, for 30 minutes.

Two victims suffered injuries on privately owned property. Both victims brought a lawsuit for negligence against the property owner. This occurred in a jurisdiction that followed the majority law on negligence claims.

Under which of the following circumstances may the court find the property owner liable for negligence to one victim but not the other?

A. Only one victim suffered serious injuries.
B. The property owner intended to injure only one victim.
C. The property owner has liability insurance that covers only one victim.
D. The property owner owed a legal duty of care to only one victim.

D. The property owner owed a legal duty of care to only one victim.

The basic elements of a negligence claim are:

(1) duty,

(2) breach,

(3) actual causation,

(4) proximate causation, and

(5) a resulting, legal injury.

This means that, for a negligence claim, the actor must owe a duty to the particular victim to conform the actor’s behavior to a particular standard of care, the actor must breach that duty, and the breach must actually and proximately cause a legally cognizable injury to the victim. The majority of jurisdictions require that the actor owe a duty to the particular, foreseeable victim, not to everyone in the world.

In that situation, if the property owner did something negligently that injured both the guest and the trespasser, then the property owner could be held liable in a negligence claim for the injury to the guest but not liable for the same injury to the trespasser.

A new homeowner discovered that his basement flooded when it rained. The homeowner brought a negligence action against the contractor who had built the home, claiming that the flooding occurred because the contractor had improperly graded the lot.

In the negligence action, which of the following tests is the court most likely to apply to determine whether the contractor’s actions proximately caused the flooding?

A. Whether the improper grading was the sole cause of the flooding.
B. Whether the contractor complied with all applicable building codes.

C. Whether it was conceivable to a reasonable person in the contractor’s position that the improper grading would cause the flooding.

D. Whether a reasonable person in the contractor’s position would have foreseen that the improper grading would cause flooding.

D. Whether a reasonable person in the contractor’s position would have foreseen that the improper grading would cause flooding.

The basic elements of a negligence claim are:

(1) duty,

(2) breach,

(3) actual causation,

(4) proximate causation, and

(5) a resulting, legal injury.

For proximate causation (sometimes called legal causation) to exist, the causal relationship between the actor’s conduct and the victim’s injury must be close enough that it is fair to hold the actor liable for the injury. In other words, the proximate-causation element ensures that the causal nexus between the actor’s conduct and the victim’s injury is not too attenuated or remote to justify imposing liability on the actor for the victim’s injury.

The heart of proximate cause is foreseeability: if a reasonable person in the actor’s position would have foreseen that the victim would be hurt by the actor’s negligence, then that will generally establish proximate cause.

Accordingly, here, the test that the court should use for the proximate-causation element is whether a reasonable person in the contractor’s position would have foreseen that improper grading would cause flooding in the homeowner’s basement.

A brother and sister who could not swim well went to a public swimming pool. The sister pushed the brother into the deep end of the pool. The lifeguard on duty jumped in to rescue the brother. The brother was flailing frantically as the lifeguard pulled him to the side, and the brother hit the lifeguard several times. Another swimmer saw the incident and tried to help, but the swimmer fell and scraped her leg on the side of the pool in the process. The jurisdiction followed the Good Samaritan version of the rescue doctrine under negligence law.

In the negligence context, the sister most likely owed a duty of care to which of the following people?

A. Only her brother.

B. Only her brother and the lifeguard.

C. Only her brother and the other swimmer.

D. Her brother, the lifeguard, and the other swimmer.

C. Only her brother and the other swimmer.

In negligence law, a duty of care arises if a reasonable person in the actor’s position should perceive that his or her conduct places someone at an unreasonable risk of harm. The majority of jurisdictions apply the foreseeable-plaintiff rule.

Here, the sister pushed the brother into the water. This action foreseeably put the brother at risk of harm (drowning). Thus, the sister owed the brother a duty of care when she took the action. Further, under the rescue doctrine, the sister also owed a duty of care to rescuers who might try to help the brother escape the harm of drowning.

However, the jurisdiction had a Good Samaritan version of the rescue doctrine, limiting the sister’s duty of care to only people who attempted a rescue as a humanitarian gesture rather than out of a legal obligation.

Because the lifeguard was under a legal or contractual obligation to save swimmers from drowning, the sister likely did not owe any duty of care to the lifeguard.

However, the other swimmer did not have any legal obligation to try to help the brother and was helping as a Good Samaritan. This means that the sister likely did owe a duty of care to the other swimmer under the Good Samaritan version of the rescue doctrine.

Accordingly, the sister owed a duty of care to her brother and the other swimmer—but not to the lifeguard.

A 12-year-old child took his father’s car keys, got into the car, started it, and pulled out of the driveway onto a busy street. When the child came to an intersection, he failed to stop at a red light and collided with another car. The other driver was injured.

What is the standard of care that the child most likely owed to the other driver?

A. The care that would be used by a reasonable, prudent adult.

B. The care that would be used by a reasonable, prudent child.

C. The care of a child of the same age, intelligence, and experience.

D. The care of a reasonable, prudent adult in an emergency.

A. The care that would be used by a reasonable, prudent adult.

One of the elements of an ordinary negligence claim is whether the defendant acted with reasonable care under the circumstances.

This means, in a negligence action, courts generally measure the defendant’s conduct against that of a reasonable man.

If a child is engaged in an activity typically only engaged in by adults, and if the activity is one that creates a significant risk of harm to others, then the child is held to the adult standard of care. Adults are held to an objective reasonable-person standard of care in negligence lawsuits.

Here, driving a car is an activity that typically only adults do and that creates a significant risk of harm to others. Therefore, the child will be held to the adult standard of care while engaged in this typically adult activity: the care that would be used by a reasonable, prudent adult. Answer options B, C, and D are necessarily incorrect for the same reasons.

A manufacturing company provided all new employees with an employee manual that detailed the company’s internal operating procedures. An employee injured on the worksite sued the company for negligence. In the lawsuit, the employee asserted that the company had failed to follow its own internal operating procedures.

What relevance, if any, will the company’s internal operating procedures likely have in the negligence action?

A. The internal operating procedures will have no relevance in the negligence action.

B. The court will use the internal operating procedures as the applicable standard of reasonable care for the company.

C. The court will use the internal operating procedures to establish a rebuttable presumption of the applicable standard of reasonable care for the company.

D. The court will use the internal operating procedures to determine what the company itself viewed as reasonable care to inform the court’s ultimate decision about the applicable standard of reasonable care.

D. The court will use the internal operating procedures to determine what the company itself viewed as reasonable care to inform the court’s ultimate decision about the applicable standard of reasonable care.

One of the elements of an ordinary negligence claim is whether the defendant acted with reasonable care under the circumstances. A court will determine what is considered reasonable care in the circumstances of a particular case by looking at certain things.

However, if the emergency was the reasonably foreseeable result of the defendant’s own negligence, some courts will not consider the emergency situation in evaluating whether the defendant acted reasonably. Thus, courts will not be lenient in deciding what was reasonable conduct under emergency circumstances if the defendant himself negligently caused the emergency.

Here, the emergency situation has no impact on the standard of care that the court will use, but it could potentially impact whether or not the driver met that standard of care.

For example, if the driver had not caused the emergency situation, then the court would likely consider the existence of an emergency situation as part of the overall circumstances in determining whether the driver acted reasonably or not when the driver dove from the truck’s cab (and be more likely to find that the driver’s action was reasonable and met the standard of care).

However, here, the driver did cause the emergency situation. Specifically, the driver negligently failed to maintain an adequate level of hydraulic braking fluid, which foreseeably resulted in the brake loss and the emergency situation of a runaway truck.

Therefore, because the driver himself negligently caused the emergency situation, the emergency created by the brake failure is not likely to affect the court’s determination of whether the driver’s action of diving from the truck was reasonable or not.

A family with a 12-year-old lived in a gated, country-club community. Although it violated the state’s minimum driving-age laws, families often allowed their children to drive golf carts within the gated community. The 12-year-old caused an accident while driving the golf cart, causing injuries to a passenger. In the ensuing negligence action, the court found the 12-year-old negligent per se.

Which standard of care must the court have applied?

A. The reasonable-man standard of care.

B. The statutory standard of care.

C. The standard of care for children who undertake adult activities.

D. The standard of care established by local usage and custom.

B. The statutory standard of care.

One of the elements of an ordinary negligence claim is whether the defendant acted with reasonable care under the circumstances. This means, in a negligence action, courts generally measure the defendant’s conduct against that of a reasonable man.

However, if a person violates a standard of care set by a statute (e.g., a motor-vehicle statute), then the statutory standard of care may replace the common-law rule of reasonable care that courts apply in ordinary negligence actions.

Negligence that is established using a statutory standard of care is called negligence per se.

Therefore, here, because the court found that the driver was negligent per se, the court must have applied an applicable statutory standard as the standard of care (replacing the default, reasonable-man standard).

A homeowner had a party and invited several guests. It rained on the day of the party, and the homeowner’s driveway became slick in spots. One of the guests, who was a neighbor of the homeowner, walked several blocks through the rain to the homeowner’s house. Along the way, the guest encountered several slick patches on the guest’s own driveway and on the sidewalk. When the guest arrived at the homeowner’s house, he slipped and injured himself in the homeowner’s driveway.

Did the homeowner have a duty to warn the guest of the dangerous condition of the homeowner’s driveway?

A. No, because the condition was not caused by any activity of the landowner.

B. No, because the condition was obvious.

C. Yes, because the guest was an invitee.

D. Yes, because the guest was a licensee.

B. No, because the condition was obvious.

The guest would be considered a licensee. The duty a landowner owes to a licensee is to warn of unreasonably dangerous, nonobvious conditions of which the landowner actually knows or of which the landowner has been notified, and of which the landowner knows or should know the licensee is not likely to discover himself.

Here, slick patches caused by rain are obvious conditions that the homeowner could reasonably expect guests to discover on their own.

A woman threw a pool party in her backyard. The tile steps leading from the back door to the pool were soon wet and slippery from people coming in and out of the pool. Four people slipped and fell on the steps and suffered injuries.

To which of the following people did the woman owe the highest duty of care?

A. A guest that the woman invited to the party.

B. A caterer hired to cater the party.

C. A neighbor who was not invited to the party but stopped by and came into the back yard to introduce himself to the woman while the party was happening.

D. A party crasher who was not invited to the party and snuck in without the woman ever seeing him.

B. A caterer hired to cater the party.

An invitee is someone who is on the premises with the landowner’s permission either for a business-related purpose or because the premises are open to the public. A licensee is someone who is on the premises with the landowner’s permission for a nonpublic, nonbusiness purpose, like a party guest. A trespasser is anyone who is on the landowner’s property without permission. For invitees, the landowner must:

(1) use reasonable care to search for and anticipate dangerous conditions and

(2) warn the invitee about any dangerous condition and/or make the condition safe.

This is the highest duty of care that a landowner will potentially owe to someone on the landowner’s property. For a licensee, the landowner must warn of, or make safe, any dangerous conditions if the landowner knows or should know about both:

(1) the dangerous condition and

(2) that a licensee is not likely to discover the danger himself.

For a known trespasser, the landowner must use reasonable care to warn the known trespasser of a dangerous condition only if the landowner knows:

(1) about the dangerous condition,

(2) that the trespasser is dangerously close to it, and

(3) that the trespasser will not realize the risk involved.

Finally, for an unknown trespasser, unless the landowner knows that trespassers frequent an area, the landowner’s only duty is to refrain from intentionally or recklessly causing an injury with a dangerous condition.

Here, the woman invited the caterer to her house for a business purpose. Thus, the caterer is a business invitee. As the only invitee, the woman owed the highest duty of care to the caterer. Specifically, the woman owed the caterer a duty to proactively to inspect the property for dangerous conditions, like wet steps. The woman then also owed the caterer a duty to remedy, or at least warn, the caterer about the danger posed by the wet steps.

A landowner invited some friends to go hunting on his land. Which of the following most accurately describes the landowner’s duty of care to ensure his friends are not injured by dangerous conditions on his land?

A. The landowner must proactively inspect his land and either warn his friends of any dangerous conditions on the land or make those conditions safe.

B. The landowner must warn his friends of the existence of any dangerous conditions on his land that involve a risk of death or serious injury and the nature of the risk.

C. The landowner must refrain from intentionally or recklessly injuring his friends while they are on his land.

D. The landowner must either warn his friends about, or make safe, foreseeably dangerous conditions on his land that the landowner knows or reasonably should know about, and that the landowner’s friends are not likely to discover themselves.

D. The landowner must either warn his friends about, or make safe, foreseeably dangerous conditions on his land that the landowner knows or reasonably should know about, and that the landowner’s friends are not likely to discover themselves.

For a dangerous condition on the landowner’s property, the landowner’s duty to occupants on the property varies based on whether the occupants are classified as:

(1) invitees,

(2) licensees, or

(3) trespassers.

A licensee is someone who is on the premises with the landowner’s permission, but for some gratuitous, nonpublic, nonbusiness purpose (like a party guest).

With respect to licensees, the landowner must warn of, or make safe, foreseeably dangerous conditions which are or should be known to the landowner, and which the landowner knows or should know that the licensee is not likely to discover himself.

In other words, a landowner must make the property as safe as it appears to be to a reasonable person in the licensee’s position, or at least warn licensees about any dangers that both the landowner should know about and would not be obvious to the licensee.

Here, friends who the landowner invites on the property to go hunting have permission to be on the property for social, nonbusiness reasons. Thus, the landowner’s hunting friends would be considered licensees.

This means that if the landowner knows about or reasonably should know about any dangerous condition on his land, and the landowner’s friends are not likely to discover that dangerous condition themselves, then the landowner must either warn his hunting friends about the dangerous condition or make the condition safe.

The manager of a nuclear power plant investigated a new technology developed in a foreign country. The technology would reduce the chance of a nuclear meltdown in a plant like hers by 95%. The manager’s research revealed that installing the technology would cost the equivalent of five years of the plant’s revenue, and she decided it was not commercially viable to install the technology. A few years later, there was a meltdown at the plant and an employee was injured. The technology would almost certainly have prevented this exact type of accident. The employee sued the plant and the manager for negligence.

Which of the following states the defendants’ best argument on the issue of breach?

A. The potential harm from a nuclear meltdown is large.

B. The cost of installing the technology was prohibitive.

C. Work in a nuclear plant is inherently dangerous, and the employee assumed the risk.

D. Even with the technology, there was still a chance for an accident.

B. The cost of installing the technology was prohibitive.

The guest would be considered a licensee. The duty a landowner owes to a licensee is to warn of unreasonably dangerous, nonobvious conditions of which the landowner actually knows or of which the landowner has been notified, and of which the landowner knows or should know the licensee is not likely to discover himself.

Here, the defendants’ best argument is that the cost of installing the technology was prohibitive. We do not expect that a reasonable person (including a company or other entity) will incur exorbitant costs in order to prevent foreseeable harm.

A man fell on ice in a parking lot. The man brought a negligence action against the property owner, claiming that the owner had breached the applicable standard of care by simply sprinkling sand on ice that had accumulated in the parking lot, instead of actually removing the ice.

Which of the following most accurately describes what the man must show to establish that the property owner breached a duty of care to the man?

A. The owner had a reasonable, alternative way to address the ice danger that would have actually prevented the man’s injury.

B. The owner had a reasonable, alternative way to address the ice danger that would have actually prevented or mitigated the man’s injury.

C. The owner had a reasonable, alternative way to address the ice danger that more likely than not would have prevented the man’s injury.

D. The owner had a reasonable, alternative way to address the ice danger that more likely than not would have prevented or mitigated the man’s injury.

D. The owner had a reasonable, alternative way to address the ice danger that more likely than not would have prevented or mitigated the man’s injury.

To show that a defendant breached a duty, typically, a negligence plaintiff must show that the defendant had a reasonable alternative course of action available that more likely than not would have prevented, or at least mitigated, the plaintiff’s injury.

For the defendant’s failure to take the alternative course of action to constitute a breach, the plaintiff must show that the alternative was reasonable under the circumstances. See United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947).

Here, that means that the man must show that the property owner had a reasonable alternative way to address the ice danger that more likely than not would have prevented or mitigated the man’s injury.

A municipal ordinance required that all commercial building owners keep their properties’ adjacent sidewalks, driveways, and parking lots free from snow and ice. Violations were punishable by a criminal fine.

A motorist’s car skidded on a hardware store’s icy driveway and collided with a retaining wall, causing damage to the car. The motorist brought a negligence action against the hardware store.

The motorist invoked negligence per se, arguing that the ordinance requiring that driveways be kept free from ice should replace the general standard of reasonable care in the case.

Which of the following factors is one element that the motorist must prove to successfully invoke negligence per se?

A. The motorist was within the particular class of persons that the statute was designed to protect.

B. Compliance with the ordinance would not have caused more danger than noncompliance.

C. Compliance with the ordinance was not beyond the hardware store’s control.

D. The hardware store’s staff knew that the driveway was icy.

A. The motorist was within the particular class of persons that the statute was designed to protect.

Broadly speaking, a negligence claim requires that

(1) the actor owe the victim a duty to conform to

(2) a particular standard of care,

(3) breach that duty and, in so doing,

(4) actually and

(5) proximately cause the victim

(6) harm.

In most negligence cases, the applicable standard of care is that of a reasonable person under the circumstances.

But under the doctrine of negligence per se, if certain elements are met, the specific requirements of a statute, ordinance, or other law may replace the general reasonable-person standard in a given case.

Negligence per se requires several elements.

First, the statute must set forth a mandatory, specific command, as opposed to a general or abstract directive that could be satisfied in any number of ways.

Second, some jurisdictions require that the law impose some penalty, at least a criminal fine, for violating its command.

Third, the victim must be within the class of persons the law was designed to protect.

Fourth and finally, the law must have been intended to prevent the particular type of accident that occurred.

Here, to invoke negligence per se, the motorist must prove (among other things) that she was within the class of persons that the ordinance was meant to protect.

A patient underwent surgery to remove a damaged tooth. The patient awoke from surgery to discover that the wrong tooth had been removed. The patient learned that multiple actors had been involved in the surgery. Which of the following legal theories may the patient use to bring a negligence action against the actors involved in the surgery?

A Only res ipsa loquitur, because the patient was unconscious at the time of the injury.

B Only negligence per se, because no statute proscribes the conduct at issue.

C Only negligence per se, because removing the wrong tooth is negligent as a matter of law.

D Either res ipsa loquitur or negligence per se, because multiple actors were involved in the surgery.

Answer option A is correct.

Here, the removal of a wrong tooth is the kind of harm that tends to occur only if someone involved in the surgery was negligent. However, the patient has no idea which person (or people) involved in the surgery was negligent because the patient was unconscious at the time of the injury. Therefore, the patient may establish a rebuttable presumption that one or more of the people involved in the surgery was negligent using the theory of res ipsa loquitur. See Restatement (Third) of Torts § 17 (2010).

A woman consulted an attorney about bringing a negligence claim against a friend who had said untrue things about the woman on several internet websites. The friend had repeated untrue rumors about the woman, without checking their accuracy. The friend had made these statements on both social and work-related websites, where the comments could negatively impact the woman’s career. The attorney explained that to establish the elements of a negligence claim, the woman must show that the friend’s comments had caused the woman a certain kind of harm. For the woman to be able to bring a valid negligence claim, the friend’s comments must have caused which of the following kinds of harm?

A Physical harm.

B Economic harm.

C Prima facie harm.

D Recoverable harm.

Answer option C is correct.

Not all types of damages will support a claim for negligence. Rather, only certain types of damages will satisfy the injury element of a prima facie (i.e., initial) negligence claim. The type of harm that will satisfy the injury element of a negligence claim and allow a plaintiff to bring a valid claim for negligence is referred to as prima facie harm.

Here, to be able to bring a valid negligence claim against the friend, the woman must have suffered a prima facie harm that will satisfy the injury element of the negligence claim.

A patient went to a doctor complaining of a variety of symptoms. The doctor correctly determined that the patient was suffering from an advanced form of cancer from which the patient had a 40% chance of survival with the course of chemotherapy that was most often prescribed by doctors in the field. The doctor instead prescribed an obscure vitamin-based treatment, which had no effect.

Four months into this treatment, the patient learned that the delay in chemotherapy had changed the chance of survival from 40% to 0%.

A month later, the patient died. The patient’s estate brought a tort action against the doctor. The doctor moved to dismiss. What is likely to be the dispositive issue for the court to resolve in ruling on the motion to dismiss?

A Whether the doctor breached the duty of care owed to the patient.

B Whether the suit alleges any economic or emotional harm.

C Whether the jurisdiction recognizes lost opportunity harm.

D Whether any reasonable jury could find that, more likely than not, the doctor’s negligence (as alleged) caused the patient’s death.

Answer option C is correct.

Some jurisdictions recognize “lost opportunity” harm, which is defined as the loss of a chance for a better outcome, as both a prima facie harm and as a basis upon which to recover damages.

Here, because the patient’s original chance of survival was only 40%, the lost opportunity doctrine is likely the only avenue by which the estate could recover for the patient’s death, because no matter what the doctor did, the patient had a more-than-likely, 60% chance of dying.

A manufacturer negligently discharged toxic waste into a holding pond. The pond occasionally seeped into the groundwater during heavy rains. During the next heavy rain, some of the toxic waste contaminated the groundwater and ultimately the drinking water of a nearby town. The town sued the manufacturer for negligence. What is the town’s best argument on the element of actual causation?

A But for the manufacturer’s negligent discharge of toxic waste, the town’s drinking water would not have been contaminated.

B But for the manufacturer’s failure to foresee the heavy rainfall, the town’s drinking water would not have been contaminated.

C The manufacturer’s negligent discharge of toxic waste was a substantial factor in the contamination of the town’s drinking water.

D The manufacturer’s negligent discharge of toxic waste and the heavy rainfall were alternative causes of the contamination of the town’s drinking water.

Answer option A is correct.

The but-for causation test applies where the defendant’s negligent conduct happened before the injury, and where the injury would not have occurred absent the negligent conduct.

Here, the defendant was negligent in discharging toxic waste into the pond, which later contaminated the town’s drinking water after a heavy rain. Absent the prior discharge of toxic waste, the drinking water would not have been contaminated.

If the heavy rainfall is viewed as a concurrent cause of the contamination, this does not change the nature of the but-for argument with respect to the case against the manufacturer. In other words, in concurrent cause cases, the plaintiff still must argue that the plaintiff’s injury would not have happened but for the defendant’s contribution to the overall confluence of acts and forces that caused the injury.

A manufacturer produced a particular car model with a defective gas tank that exploded in a rear-end collision. A businessman was texting on his cell phone while driving that model car when a drunk stumbled into the street. Because he was texting, the businessman did not see the drunk until the last second, then had to slam on his brakes. The woman in the next car was watching a dog in her rearview mirror and not paying attention to the car in front of her. The woman rear-ended the businessman, causing the gas tank to explode, resulting in serious injuries and property damage. In the ensuing lawsuit, who will the court most likely consider an actual cause of the explosion?

A The manufacturer and the woman, under the but-for test.

B The manufacturer, the drunk, the businessman, and the woman, under the concurrent-causes test.

C The manufacturer, the drunk, the businessman, and the woman, under the alternative-causes test.

D The manufacturer, the drunk, the businessman, and the woman under the substantial-factor test.

Answer option B is correct.

One of the elements of an ordinary negligence claim is actual causation, or whether the defendant actually caused the plaintiff’s injury. There are multiple possible tests to determine the existence of actual causation. The concurrent-causes test applies to determine actual causation if:
(1) multiple acts or forces combined to cause an injury and

(2) none of the forces, standing alone, would have been sufficient to cause the injury.

If the concurrent-test applies, then any actor whose action contributed to the injury will be considered an actual cause of the injury.

Here, the injuries were caused by the exploding gas tank. The gas tank exploded due to a combination of multiple causes: the defective tank, the stumbling drunk, the texting driver, and the woman watching the dog, none of which was enough to cause the explosion by itself.

Therefore, the court will apply the concurrent-causes test.

Under that test, because each of the actors performed a negligent act that contributed to the explosion happening, all the actors will be considered an actual cause of the resulting injuries and property damage.

A lifeguard was the sole employee in charge of supervising the safety of patrons at a community swimming pool for a 45-minute shift. With 15 minutes left in her shift, the lifeguard decided that because the swimmers in the pool were all adults and seemed to be competent, she would go into the guard shack and get a snack. While the lifeguard was gone, an argument broke out between two teenagers on the pool deck that escalated into a shoving match. One of the teenagers shoved the other teenager onto a lounge chair. The lounge chair then toppled over, jettisoning the teenager onto the pool deck. During the fall, the teenager’s gold bracelet broke free from his wrist and was flung into the pool, where it was lost in the pool’s filtration system. The teenager sued the lifeguard for negligence to recover for his lost bracelet.

Assuming that the teenager was not contributorily negligent and that there are no applicable statutes, is the lifeguard likely to be found the proximate cause of the teenager’s lost bracelet?

A Yes, because the teenagers’ misbehavior was reasonably foreseeable.

B Yes, because even though the precise sequence of events was not known, harm to pool patrons was reasonably foreseeable.

C No, because the loss resulted from an unforeseeable, supervening event.

D No, because the loss of the bracelet was not a foreseeable risk arising out of the lifeguard’s negligence.

Answer option D is correct.

Here, the lifeguard had a duty to stay at her post to ensure the safety of the patrons at the pool and abandoning her post was a breach of that duty. Therefore, the lifeguard’s conduct in leaving her post was negligent.

However, the reasonably foreseeable risks arising from the lifeguard’s negligence involve risks to the patrons’ personal safety—not the safety of the patrons’ belongings.

The risk of a teenager losing a bracelet was not a reasonably foreseeable risk of the lifeguard’s negligence in leaving the pool patrons unsupervised. Therefore, the lifeguard’s negligence is the not proximate cause of the teenager’s lost bracelet.

However, note that had the teenagers’ misbehavior resulted in one of them drowning or being injured in the pool, then that would have been a reasonably foreseeable risk of the lifeguard’s negligence—and the lifeguard would likely be the proximate cause of that type of injury.

As a gas-station employee was filling a customer’s fuel tank with gasoline, the employee noticed that she had spilled gasoline onto the asphalt near the gas pump. Instead of attending to the spill, the employee went inside the service station to get a drink of water. Five minutes later, a truck driver was pulling into the gas station to fuel his vehicle and tossed a lit cigarette butt out of his truck’s window. The cigarette butt landed in the gasoline puddle and ignited it, severely burning a bystander. Was the gas-station employee the proximate cause of the bystander’s injury?

A No, because the truck driver’s negligent act of tossing his cigarette butt out of his vehicle window was an intervening cause of the bystander's harm.

B No, because the gasoline ignition was an unforeseeable force of nature.

C Yes, because the employee had a special duty to protect those on the gas station property from the foreseeable risk of gas explosions.

D Yes, because the truck driver’s negligent act of tossing his cigarette butt out of his vehicle window was a reasonably foreseeable intervening cause of the injury.

Answer option D is correct.

Here, it is reasonably foreseeable that a puddle of gasoline on the premises of a gas station presents a fire hazard, and that various drivers, passengers, and bystanders at a gas station smoke cigarettes. It is likewise foreseeable that various bystanders will be standing near gas pumps at a gas station.

Therefore, the harm to the bystander from a puddle of gasoline was a type of harm that was a foreseeable risk of the gas-station employee’s negligence.

In addition, the truck driver’s negligence in throwing the cigarette butt out the truck window was a foreseeable action that, although an intervening cause, does not relieve the gas-station employee of liability for the employee’s original negligence.

A stuntman asked the crowd for a volunteer to participate in a motorcycle stunt. The stuntman had the volunteer lie down on the ground in front of a ramp and told the crowd that he was going to jump the motorcycle over the volunteer.

The stuntman asked the volunteer if the volunteer agreed to this risky maneuver, winking at the volunteer and the crowd as if the request was a jest. The volunteer laughed and nodded his head. Unfortunately, the stuntman had negligently set the jump ramp at slightly the wrong angle. The motorcycle did not clear the volunteer completely and injured the volunteer.

The volunteer had not signed an express, written assumption of risk of injury before participating in the stunt. The volunteer sued the stuntman for negligence. As a defense to the volunteer’s negligence claim, the stuntman asserted that the volunteer had assumed the risk of injury by volunteering to participate in the stunt. The volunteer argued that he thought the stunt was fake, and that the volunteer subjectively had no idea that he could actually be hit by the motorcycle. The jurisdiction recognized the defense of assumption of the risk to negligence.

If the stuntman’s defense of assumption of the risk fails, which of the following is the most likely reason why?

A A reasonable person would not have understood that the stunt necessarily involved a risk of being hit by the motorcycle.

B The stuntman was negligent when he set the jump ramp at slightly the wrong angle.

C The volunteer did not sign an express, written assumption of risk of injury.

D The volunteer thought that the stunt was fake and did not know that the motorcycle might actually hit him.

Answer option D is correct.

Here, even though the volunteer did not sign an exculpatory clause or other express, written assumption of the risk of injury, a writing is not necessary for a victim to have assumed the risk of a particular injury. Thus, the stuntman may still argue that the volunteer assumed the risk of injury based on the circumstances.

However, the stuntman will need to show both elements of the defense, which can be difficult without a written expression of these elements. Indeed, the first element of the defense is that the volunteer subjectively knew about the risks involved.

However, the volunteer says that he did not actually, subjectively know of the nature and magnitude of the risk (although perhaps a reasonable person should have). Thus, the stuntman cannot establish the first element of an assumption-of-the-risk defense, and the defense fails for that reason.

Two teenagers were driving around town with a baseball bat. One teenager was driving over the speed limit, while the other leaned out the window with the bat and swung at mailboxes. The teenager with the bat decided to sit on the car windowsill and lean even farther out of the car to make contact with mailboxes set back a few feet from the road. When the driver rounded a slight curve in the road, the teenager with the bat fell out of the car, suffering injuries. The injured teen brought a lawsuit against the driver. If the court finds that the injured teen is absolutely, not just partially, barred from recovering against the driver for his injuries, which of the following legal doctrines most likely explains why?

A Primary assumption of the risk.

B Secondary assumption of the risk.

C Exculpatory assumption of the risk.

D Exculpatory negligence.

Answer option A is correct.

Assumption of the risk may be a defense in a negligence claim. Primary assumption of the risk applies if the plaintiff's disregard of a clear risk is so unforeseeable that it defeats the negligence elements of duty and/or proximate cause. If a defendant can establish primary assumption of the risk, then this finding absolutely bars the plaintiff’s recovery in a negligence claim.

Here, a driver owes a duty of care to his passengers, and this driver was negligent because he was driving at excessive speeds. However, the injured teen knowingly sat on the windowsill of a speeding vehicle and leaned out to swing at mailboxes.

If the injured teen disregarded a clear risk (which is likely), then the doctrine of primary assumption of the risk could completely bar the injured teen from recovering in negligence against the driver.

Accordingly, if the court found that the injured teen in this case was barred from any recovery, the doctrine of primary assumption of the risk would explain that finding.

An intoxicated man riding a bicycle did not notice a large pothole in the road and rode into it, causing him to crash. The man was injured in the crash and sued the city to recover for his injury. In a pure comparative-fault jurisdiction, assuming there is no sovereign immunity, what is the legal significance of the man’s negligence?

A His negligence will not reduce his damages.

B His negligence will reduce his damages by the amount of his fault.

C His negligence will reduce his damages by the amount of his fault, but will bar his recovery if he is found to be more at fault than the city.

D His negligence will completely bar his recovery of damages.

Answer option B is correct.

In a pure comparative-fault jurisdiction, the fact finder allocates a percentage of fault for the injury among all parties, including the plaintiff. The plaintiff will recover for his injuries regardless of the plaintiff’s own percentage allocation of fault, but the plaintiff’s recovery is reduced by the plaintiff’s percentage allocation of fault. See Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983).

Here, therefore, the man will be able to recover from the city for his injuries, but the man's own negligence will reduce his damages by the amount of his fault.

Two drivers were involved in a car accident. One driver sued the other driver for negligence. A court found that the plaintiff driver was negligent and was 51 percent at fault for the accident. In which type of jurisdiction, if any, may the plaintiff driver still recover against the other driver who was found only 49 percent at fault for the accident?

A Only a pure comparative-fault jurisdiction.

B Only a modified comparative-fault jurisdiction.

C Only a contributory-fault jurisdiction.

D No type of jurisdiction.

Answer option A is correct.

If a plaintiff brings a negligence claim, but the plaintiff’s own negligence contributed to the plaintiff’s injuries, then the defendant may be able to raise the plaintiff’s contribution to the injuries as a defense to the negligence claim. However, the specific type of defense and its effect will vary depending on the type of jurisdiction.

In a pure comparative-fault jurisdiction, the plaintiff may still potentially recover something for his injuries, regardless of how the plaintiff’s percentage of fault is allocated. In a pure comparative-fault jurisdiction, the plaintiff’s recovery is merely reduced by the percentage of fault that was allocated to the plaintiff.

Thus, if the plaintiff is 51 percent at fault, and the defendant is 49 percent at fault, then the plaintiff may still recover, but only recovers 49 percent of his damages. In contrast, any contributory negligence on the part of the plaintiff completely bars recover in a contributory-negligence jurisdiction. Likewise, a modified comparative-fault jurisdiction retains some of this same harshness.

In a modified comparative-fault jurisdiction, if the plaintiff’s own percentage of fault is equal to (or, in some jurisdictions, greater than) the combined percentage fault of all the defendants in the case, then the plaintiff is completely barred from any recovery.

However, in a modified comparative-fault jurisdiction, if the plaintiff’s fault is less than the combined percentage of fault of all defendants in the case, then the plaintiff still recovers, but his recovery is diminished in proportion to his own fault.

Here, the plaintiff driver was 51 percent at fault. In a contributory-negligence jurisdiction, because the driver was at least 1 percent at fault, the driver would be completely barred from any recovery. In a modified comparative-fault jurisdiction, because the plaintiff driver was more at fault than the other driver, the plaintiff driver would again be completely barred from any recovery.

However, in a pure comparative-fault jurisdiction, the plaintiff driver will still be allowed to recover something against the other driver, although the plaintiff driver’s recovery will be reduced in proportion to the plaintiff driver’s own fault.

A pet owner kept a tiger cub on her property. One day the tiger cub chewed through its harness, escaped out an open window, and ran to a nearby park where it bit someone. What additional fact, if any, would the injured person need to prove in order to prevail in an action against the pet owner based on strict liability?

A That harnessing the tiger cub was not a reasonable way of restraining it.

B That the pet owner knew or should have known that the tiger cub might bite someone if it escaped.

C That the jurisdiction has a law prohibiting pet owners from keeping tigers.

D No additional facts need to be proved.

Answer option D is correct. Under the common law, a party who carries on an abnormally dangerous activity is subject to liability for an injury to another resulting from the activity, even if the party exercised the utmost care to prevent the harm. Restatement (Second) of Torts § 519 (Am. Law Inst. 1965).

Strict liability frequently arises in the context of injuries caused by animals. See also Restatement (Second) of Torts § 506 (Am. Law Inst. 1965).

Answer option D is correct because keeping a tiger is likely to be seen as the kind of abnormally dangerous activity giving rise to strict liability, particularly because a tiger would be considered a dangerous wild animal, and any injury caused by the tiger’s dangerous propensities would give rise to strict liability no matter how much care is taken by the pet owner to restrain it. See Restatement (Second) of Torts § 519 cmt. e (Am. Law Inst. 1965).

The owner of a piece of forest property wanted to clear a large amount of underbrush from her property. She chose to clear the underbrush by starting a controlled fire. She took all the proper precautions and acted with due care, but the fire still spread to a neighbor’s property. The neighbor sued the property owner. If the court finds that using a fire to clear underbrush is an abnormally dangerous activity, which element of negligence will the neighbor NOT have to prove?

A Duty.

B Breach.

C Causation.

D Proximate Causation.

Answer option B is correct.

If the court determines that using fire to clear underbrush is an abnormally dangerous activity, the case falls under strict liability rather than negligence. Under strict liability, the defendant is automatically liable for harm caused by the activity, even if they exercised due care.

See Restatement (Third) of Torts § 20 (2010).

Why is “Breach” not required?

Negligence requires proving that the defendant failed to act with reasonable care (breach of duty). However, in strict liability cases, breach of duty is irrelevant—the plaintiff only needs to show that:

1. The activity was abnormally dangerous.

2. The defendant engaged in the activity.

3. The activity caused the harm.

Why the other options are still required:

• A. Duty → The duty is inherent because engaging in an abnormally dangerous activity imposes an automatic duty to prevent harm.

• C. Causation → The plaintiff must still prove that the fire actually caused the damage.

• D. Proximate Causation → The harm must still be a foreseeable result of the defendant’s activity.

Thus, in strict liability cases, breach is the element that does not need to be proven.

Here, the man’s goats escaped and caused damage to the neighbor’s rose garden. The man will be held strictly liable for the damages caused by his trespassing animals.

A group exercise instructor was leading an exercise class at a private fitness facility when a class participant fell and broke his ankle. The injured participant wants to sue both the instructor and the facility for compensation. Which of the following, if true, would be most helpful to prove that the fitness facility is vicariously liable for the instructor’s alleged negligence?

A That the instructor’s employment contract stated that she was an employee.

B That the instructor had been leading classes at the facility once a week for five years.

C That the facility trained and required the instructor to teach a scripted fitness routine.

D That the instructor’s pay was based on participant attendance at each class.

Answer option C is correct.

In order to hold the fitness facility vicariously liable for the instructor’s alleged negligence, the participant must prove that the instructor was the facility’s employee (or servant).

The primary criterion in evaluating whether a master-servant relationship exists is the degree to which the master can control the moment-to-moment actions of the servant in the performance of his duties.

See Restatement (Third) of Agency § 7.07.

Here, the fact that the facility trained and required the instructor to teach a specifically scripted routine is the most helpful fact to demonstrate the facility’s control over the instructor.

A teacher was backing out of his parking spot in the teacher parking lot at school when his vehicle struck a skateboarding student, injuring him. Which of the following facts, if true, would be most helpful to demonstrate that the teacher’s actions were within the scope of his employment?

A That he was leaving school at the end of the day.

B That he was leaving school to go home for lunch.

C That he was leaving school to go on a school field trip.

D That he was leaving school to go to a dentist appointment.

Answer option C is correct.

An employee acts within the scope of employment when, among other things, he engages in a course of conduct subject to the employer’s control. See Restatement (Third) of Agency § 7.07 (2).

Here, attending a school field trip falls within a course of conduct subject to the employer’s control, and is the most helpful answer.

A man was injured when explosives that were stored in a warehouse exploded. The man sought to recover for his injuries under a theory of strict liability. Which of the following facts, if true, would NOT serve to defeat a claim of strict liability?

A The explosion was caused by an earthquake of unprecedented magnitude.

B A state law required the warehouse to store the explosives.

C The man was trespassing in the warehouse when he was injured.

D The man chose to work with the explosives, knowing of their danger.

Answer option A is correct.

Strict liability does not apply to activities carried on in pursuance of a public duty, harm to trespassers, or when the plaintiff has assumed the risk. Id. at §§ 520B, 521, 523 (1977). However, strict liability still applies even when the harm occurs due to the acts of a third party, an animal, or operation of a force of nature. Id. at § 522.

Here, if the explosion were caused by an earthquake, it would not serve as a defense to strict liability, even if the earthquake was of an unprecedented magnitude. Strict liability applies even for unforeseeable acts of nature.

A truck driver, employed by a shipping company, negligently drove his truck on a public highway, destroying a section of fence on the side of the road. The destruction of the fence allowed a herd of pigs owned by a farmer to escape. The pigs ran onto the property of a nearby woman, trampling the woman’s front yard. Among the truck driver, the farmer, and the shipping company, from whom will the woman be able to recover for the damage to her front yard?

A. The truck driver, the shipping company, and the farmer.

B. Only the truck driver and the shipping company.

C. Only the truck driver and the farmer.

D. Only the shipping company.

B. Only the truck driver and the shipping company.

A person is liable for the foreseeable consequences of their negligent conduct. Additionally, under respondeat superior, an employer is vicariously liable for the torts of its employee committed within the scope of employment.

A farmer is not strictly liable for animal trespass unless:

• The animals are known to be dangerous, or

• The farmer was negligent in containing them.

The truck driver, while acting within the scope of his employment, negligently destroyed a fence. It is reasonably foreseeable that this could allow animals to escape and cause damage nearby. Therefore, the truck driver is liable, and the shipping company is vicariously liable for his negligence.

The farmer, however, did not act negligently. The pigs escaped due to someone else's negligence (the broken fence), not because the farmer failed to properly contain them. Without negligence or knowledge of dangerous propensities, the farmer is not liable for their trespass.

A factory owner purchased a piece of industrial equipment for use in his manufacturing process. The equipment was defective and started a fire in the factory, which injured the factory owner. The factory owner had to shut down the factory for two days while he obtained a replacement piece of equipment. Which damages, if any, will the factory owner be able to recover under a tort-based theory of products liability?

A Only his injuries from the fire.

B Only his injuries from the fire and the cost of the replacement piece of equipment.

C Only his injuries from the fire and the lost profits from shutting down the factory for two days.

D His injuries from the fire, the cost of the replacement equipment, and the lost profits from shutting down the factory for two days.

Answer option A is correct.

Under a tort-based theory of products liability, a plaintiff cannot recover for economic loss. In order to recover economic loss, a plaintiff must pursue a contract-based theory of products liability.

Economic loss includes damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits, together with the diminution in value of the product because it is inferior in quality and does not work for the purposes for which it is manufactured and sold. Restatement (Third) of Torts: Liab. for Econ. Harm § 2 TD No 1 (2012).

Here, the factory owner suffered injuries due to the defective equipment. Personal injury due to a defect is not considered economic loss and will therefore be compensable under a tort-based theory of products liability.

However, the cost of replacing the equipment, as well as the lost profits from having to shut down the factory for two days, are mere economic loss. The factory owner will only be able to recover those damage, if at all, under a breach-of-contract claim, not a tort-based products liability claim.

A young child started a fire while playing with a cigarette lighter that he had found in his parents’ nightstand. The fire destroyed the family home. The parents sued the manufacturer of the cigarette lighter under a theory of products liability. The parents argued that the cigarette lighter should have been equipped with a child-safety mechanism so that small children would have been unable to operate the lighter. Which of the following best describes the nature of the defect that the parents are alleging?

A A manufacturing defect.

B A design defect, under the consumer-expectation test.

C A design defect, under the risk-utility test.

D An informational defect.

Answer option C is correct.

A product has a design defect if the product physically conforms to the manufacturer’s intended design and, in that state, is unreasonably dangerous. Restatement (Third) of Torts: Products Liability § 2(b) (1998).

Courts employ one of two tests to determine whether a product is unreasonably dangerous as designed: the consumer-expectation test and the reasonable-alternative-design test, otherwise known as the risk-utility test.

The consumer-expectation test provides that a product is unreasonably dangerous if, as designed, it is more dangerous than a consumer of ordinary prudence could foresee, when used (or misused) in a reasonably foreseeable manner. See id. cmt. g.

Under the risk-utility test, a product is unreasonably dangerous if the danger associated with foreseeable use of the product outweighs the product’s utility, and there exists a reasonable alternative design to the one that caused the plaintiff’s injury. Id. cmt. b.

Here, the parents are alleging that the cigarette lighter should have been equipped with a child-safety mechanism. This is an allegation of a design defect.

Specifically, they are claiming that the lighter is defective under the risk-utility test. The claim is that a reasonable alternative design exists that would decrease the risk posed by the product while still maintaining its utility.

A consumer purchased a switchblade from a retailer. A switchblade is a type of knife with a sliding blade contained in the handle that is opened automatically when a button on the handle is pushed. Unbeknownst to both the consumer and the retailer, a previous shopper at the store had accidentally damaged the spring mechanism while examining the knife, before returning the knife to its display case. As a result, when the knife was held at a certain angle, the blade would slide out of the handle even when the user had not pressed the button. While the consumer was handling the knife, the blade slid out of the handle without him pressing the button, slicing open his hand. The consumer sued the retailer, alleging a manufacturing defect. Is the consumer likely to succeed?

A Yes, because the defect rendered the switchblade more dangerous than a consumer of ordinary caution and prudence could foresee.

B Yes, because the knife should have warned the consumer to inspect it for damage prior to use.

C No, because the product did not depart from its intended design at the time of manufacture.

D No, because the defect in the product was caused by a third party.

Answer option A is correct.

A manufacturing defect occurs when a product physically departed from its intended design and by that means became unreasonably dangerous.

A product may depart from its intended design at the time of manufacture, or as a result of subsequent events, such as misuse, normal wear and tear, or an accident.

A product is unreasonably dangerous if the product is more dangerous than a consumer of ordinary caution and prudence could foresee, when the product is used in a reasonably foreseeable manner.

Restatement (Third) of Torts: Products Liability § 2 (1998).

Here, the switchblade had a manufacturing defect because the blade would slide out of the handle even without pressing the button. This defect rendered the product more dangerous than an ordinary consumer could foresee. Therefore, the consumer will likely succeed in his lawsuit against the retailer.

A woman suffered an injury while operating a 20-year-old machine at a factory. The woman sued the machine manufacturer in a jurisdiction that employs the risk-utility test, alleging that the machine had a design defect. The woman provided evidence that, at an increased cost of $1,000,000 per year to the manufacturer, the machine could be designed with safety features to prevent injuries like the one that she had suffered. The woman also demonstrated that the improved design would prevent $5,000,000 per year in injuries. Finally, the woman’s proposed alternative design did not increase the danger of the machine in other aspects or substantially impair the machine’s utility. Has the woman made a sufficient showing of a reasonable alternative design?

A No, because she must demonstrate that the proposed alternative design was feasible 20 years ago, when the machine was manufactured.

B No, because she must demonstrate that the proposed alternative design is actually being implemented in the marketplace today.

C No, because she must demonstrate that the proposed alternative design was actually being implemented in the marketplace 20 years ago.

D Yes, the woman’s proof is sufficient.

Answer option A is correct.

Under the risk-utility test, a product is unreasonably dangerous, even if it satisfies ordinary consumer expectations, if the design embodies excessive, preventable danger, or the risk of danger inherent in the challenged design outweighs any benefits of the design. The plaintiff must prove that there was a reasonable alternative design available. The elements of a reasonable alternative design are:

(1) the design must actually be safer, generally, than the allegedly defective design;

(2) the design would have prevented the injury without substantially impairing the product’s utility; and

(3) the design was feasible when it left the control of the manufacturer or designer. For this third element, the design must be both economically and technically feasible. Restatement (Third) of Torts: Products Liability § 2(b) (1998).

Here, the woman has met the first two elements. Her proposed alternative design is generally safer because it would prevent the type of injuries that she suffered, while not increasing the danger of the machine in any other aspect. Her proposed design would not substantially impair the product’s utility. The only remaining issue is that of feasibility.

A man ordered a chicken Caesar salad from a restaurant. The menu described the salad as containing grilled skinless, boneless chicken breast. The salad arrived at the table with the chicken breast already sliced into ten strips. Each strip was about an inch wide, less than half an inch thick, and varied between one inch and two inches long. While eating the salad, the man choked on a piece of bone after attempting to chew and swallow an entire strip of chicken breast. Is the man likely to prevail in a products liability action against the restaurant based on a strict liability theory?

A No, because bones occur naturally in meat and cannot render it unreasonably dangerous.

B No, because a reasonably prudent consumer would have cut the chicken breast strips into smaller pieces and discovered the bone before choking on it.

C Yes, because the menu described the salad as containing boneless chicken breast.

D Yes, because the restaurant should have cut the chicken breast into smaller pieces.

Answer option C is correct.

Some jurisdictions apply the consumer-expectation test in evaluating whether food products are unreasonably dangerous; others apply the foreign-natural test. See Mexicali Rose v. Superior Court, 822 P.2d 1292 (Cal. 1992).

Under the consumer-expectation test, a food product is unreasonably dangerous if it is more dangerous than a consumer of ordinary caution and prudence could foresee when it is consumed.

Under the foreign-natural test, a food’s naturally occurring characteristics that cause injury are not unreasonably dangerous. While bones do occur naturally in meat and would therefore not usually render a meat product unreasonably dangerous under the foreign-natural test, the restaurant’s menu described the chicken in this case as boneless.

A volunteer at a food pantry was working in the kitchen with the cook. The volunteer truthfully told the cook that she had heard that a particular server at the pantry had been arrested for drunk driving several years earlier. The volunteer had never sought to verify this history; she had heard it as gossip and repeated it as such.

Unbeknownst to the volunteer, the cook was listening to music through ear buds, and the cook never heard the volunteer’s statement. No one else was in the kitchen and no one overheard the volunteer’s statement. The server, in fact, had never been arrested for drunk driving. When the volunteer told the server that she (the volunteer) had made this statement to the cook, the server sued the volunteer for defamation.

Is the server’s lawsuit likely to succeed?

A Yes, because the volunteer made a defamatory statement “of and concerning” the server to the cook.

B Yes, because the volunteer made a defamatory statement “of and concerning” the server to the server.

C No, because the volunteer did not publish the defamatory statement to anyone other than the server.

D No, because the statement was true; the volunteer had in fact heard that the server had been arrested for drunk driving.

Answer option C is correct.

The common-law elements of defamation are:

(1) the defendant published

(2) defamatory material

(3) “of and concerning” the plaintiff,

(4) which caused harm to the plaintiff; traditionally harm was sometimes presumed, but this is rare in modern cases.

A defendant “published” a statement when he or she negligently or intentionally communicated (or caused to be communicated) any kind of written or oral statement to at least one person, other than the plaintiff, who understood it.

Here, there was no publication to anyone other than the plaintiff server, because the cook never perceived or understood the volunteer’s statement.

While at work, a woman wrote a letter to her sister, defaming a mutual acquaintance. The woman placed the letter in a stamped, sealed, and addressed envelope.

She then reconsidered sending the letter and decided to sleep on the matter for the night. She left the letter on her desk along with several other pieces of outgoing mail. After the woman left work for the day, the woman’s secretary came by the woman’s desk and mailed all of her outgoing mail, including the defamatory letter. The woman had no idea that her secretary had done so until the woman arrived at work the next morning. The woman’s sister received and read the defamatory letter.

Between the woman and her secretary, which party, if either, is liable for committing defamation?

A. Both the woman and her secretary.

B. Only the secretary.

C. Only the woman.

D. Neither the woman nor her secretary.

C. Only the woman.

Here, the woman published a defamatory statement by sending the letter to her sister. Although the woman did not actually mail the letter, she negligently allowed it to be published when she left a sealed, stamped, and addressed envelope on her desk at work, among other outgoing mail. Under those circumstances, it is reasonably foreseeable that a third party may see the envelope and decide to mail it. By contrast, if the envelope had been placed in a locked drawer and stolen, then the woman would likely not be liable.

A woman was arguing with her neighbor over the use of their shared driveway. When pointing to the boundary line between their properties, the neighbor accidentally struck the woman with a broom that he was holding. The neighbor apologized, and the parties continued their argument. The next day, the woman told everyone she saw that the neighbor (who was never a public figure) had committed the serious crime of assault and battery against her, even though she knew that this allegation was false. Because of these statements, the neighbor lost standing and esteem in the community, causing him to suffer emotional distress. The neighbor sued the woman for defamation. Does the neighbor have a prima facie cause of action for defamation against the woman?

A Yes, for libel.

B Yes, for slander.

C No, because the neighbor cannot prove harm.

D No, because the neighbor is not a public figure.

Answer option B is correct.

The neighbor can make out a prima facie case that the woman slandered him. The common-law elements of defamation are:

(1) the defendant published

(2) false and defamatory material

(3) of and concerning the plaintiff,

(4) which caused reputational harm to the plaintiff. In addition, the statement must be one of fact and not mere opinion.

Further, the common law presumed that any defamatory statement was false, requiring the defendant to establish truth as an affirmative defense. These days, however, the First Amendment often requires the plaintiff to prove falsity as part of his prima facie case. In that vein, if the subject matter of the defamatory statement is a matter of public concern, the First Amendment requires that a defamation plaintiff who is a private individual (not a public official or public figure) prove that the statement was false and that the defendant was at least negligent with respect to the falsity of the statement. The requirement that the defendant publish a defamatory statement may, at first blush, seem to require wide dissemination. Yet in defamation, the publication requirement is satisfied if the defendant communicates the statement to even one third party who understands it.

Here, the woman communicated the statement about the neighbor to several people who understood it (as evidenced by the neighbor’s loss of esteem in the community). Hence, the publication element is satisfied here.

The governor of a state was accused of misappropriating public money for her own use. She was impeached by the state legislature and tried in the state senate. During the course of the impeachment trial, the governor’s attorney held a press conference.

He told the press that the key witness against the governor was a known liar with a reputation for dishonesty. The attorney further stated that once the witness’s disreputable nature was fully exposed, the impeachment trial would vindicate the governor’s innocence.

The witness sued the attorney for defamation. The attorney moved to dismiss the lawsuit, arguing that his statements were privileged.

If the court finds that a privilege applies to the attorney’s statements, which privilege will the court most likely apply?

A An absolute privilege for statements made in the course of judicial proceedings.

B A qualified privilege for reports about public proceedings.

C A qualified privilege for the protection of an important interest.

D A qualified privilege for statements made in the public interest.

Answer option C is correct.

An otherwise defamatory statement may be privileged under certain circumstances. One such circumstance is a statement made in defense of one’s own legally protected interests, or those of a third party. This privilege attaches when:

(1) there is information that affects a sufficiently important interest of the publisher, and

(2) the recipient’s knowledge of the defamatory matter will be of service in the lawful protection of the interest. Restatement (Second) of Torts § 594 (1977).

The important interest to be protected includes a defense of one’s own reputation against the defamation of another, “including the statement that [the] accuser is an unmitigated liar.” Id. at § 594 cmt. k.

Here, the witness was accusing the governor of wrongdoing. The governor’s attorney possessed a qualified privilege to publish information that would protect the governor’s interest in her reputation against such allegations, including calling the witness a liar.

In the last election, a state experienced extremely long voting lines due to numerous malfunctioning voting machines. The secretary of state, who was responsible for running elections in the state, issued a press release explaining the problems with the previous election and outlining steps that his office would take to ensure that future elections ran more smoothly. In the press release, the secretary of state blamed several local officials for the problems, alleging that the local officials had incorrectly set up and programmed the voting machines. The secretary of state knew that the allegations were false but made them in an attempt to deflect blame from his own office. The local officials sued the secretary of state for defamation. Are the local officials likely to succeed in their lawsuit?

A No, because the statements are protected by an absolute executive privilege.

B No, because the statements are protected by a qualified executive privilege.

C Yes, because the secretary of state abused his executive privilege by making the statements with actual malice.

D Yes, because the secretary of state did not make the statements in the performance of his official duties.

Answer option A is correct.

Executive officials enjoy an absolute privilege to defame, so long as the defamatory statement is made in the course of communications that the officials are required or permitted to make in performance of their duties.

Restatement (Second) of Torts § 591 (1977).

The privilege extends to any executive or administrative officer of the United States, and to the governor or other superior executive officer of a state. Id.

Here, the secretary of state is a superior officer of a state. He issued the press release in the course of the performance of his duties as secretary of state. Although his official job duties likely do not require him to issue press releases, it is permissible for him to do so.

The press release is reasonably related to his job duties and therefore enjoys an absolute privilege against defamation.

See Barr v. Matteo, 360 U.S. 564 (1959) (absolute executive privilege extends to actions taken “within the outer perimeter” of defendant’s job duties).

An employee’s coworker told her that he had found evidence that their boss was stealing money from the company that they both worked for. The employee then told her best friend about the conversation. The friend then wrote a blog post accusing the boss of embezzling from the company. The friend’s blog had 1,500 followers. When the blog post came to the attention of the company’s board of directors, the boss was fired and investigated by the police, who subsequently cleared him of any wrongdoing. At all relevant times, all parties knew that the coworker’s accusations against the boss were false. Against whom would the boss likely be successful in a defamation action?

A Only against the coworker who originally made the defamatory statement.

B Only against the friend who republished the defamatory statement on her blog.

C Only against either the coworker or the friend.

D Against the coworker, the employee, and the friend.

Answer option D is correct.

The common-law elements of defamation are:

1) the defendant published

(2) defamatory material

(3) of and concerning (that is, about) the plaintiff, and

(4) that material harmed the plaintiff's reputation and caused related injuries.

The publication element is satisfied if the defendant communicates the defamatory material to even one person who understands it. One who hears a defamatory statement and then repeats it to others may be liable as a republisher—even if he merely quotes the statement and accurately attributes it to the original defamer.

Here, the coworker published the statement about the boss by orally conveying it to the employee, who then republished it to the friend. The friend, in turn, republished the statement to the 1,500 blog followers.

Defamatory material contains false statements that tend to injure the plaintiff's reputation and that are based on specific express or reasonably inferable facts and not mere opinion.

Here, the coworker's statement, which everyone knew to be false, conveyed a concrete fact about the boss—that the boss embezzled from the company. Such a fact, if true and known, would surely tend to injure someone's reputation.

A defamatory statement is of and concerning the plaintiff if it is about the plaintiff. That is, a defamatory statement is of and concerning the plaintiff if a reasonable hearer would understand the statement to refer to the plaintiff. This requirement is met, of course, if the statement expressly mentions the plaintiff.

This requirement may also be satisfied if the statement does not expressly mention the plaintiff, but considered in light of relevant contextual facts, the statement is reasonably perceived to refer to the plaintiff.

Here, each publication or republication expressly referred to the boss, so the of-and-concerning requirement is met.

In addition, if the plaintiff is a private individual, and if the subject matter of the defamatory statement is of public concern (a very broad concept that implicates social and political concern, or else involves public health, safety, morals, welfare, and policy), the First Amendment requires that the plaintiff must prove that the defendant was at least negligent as to the truth or falsity of the statement at issue.

Here, all parties knew that the statement was false, so the level of culpability here exceeds mere negligence and satisfies the much higher culpability threshold of actual malice. Actual malice arises if the defendant knew the defamatory statement was false, or else published the statement with reckless disregard of its truth or falsity.

Finally, liability in defamation requires damages. Usually, damages take the form of actual harm to the plaintiff's reputation and related injuries.

In defamation, there are two types of damages: general damages and special damages.

General damages consist of reputational harm and related emotional anguish.

Special damages consist of concrete financial injuries flowing from a damaged reputation, such as lost business.

Sometimes, general damages may be presumed, but special damages are never presumed.

Here, there is no need to presume general damages, for the boss can prove special damages. Namely, the boss lost his job and had to endure a police investigation into his conduct. Hence, the damages element of defamation is satisfied here.

In sum, the coworker, employee, and friend all published or republished a false, defamatory statement about the boss, which caused the boss to suffer concrete reputational, financial, and emotional harm. Hence, all three defendants can be liable for defamation. Answer option D, then, is correct.

A tabloid newspaper ran a salacious story about a celebrity. The reporter who wrote the story did not know whether the story was true but had no particular reason to suspect that it was not.

A woman purchased the tabloid and read the story. The woman was a friend of the celebrity and knew that the story was false. However, the woman showed a copy of the story to her husband, without making any statements as to her belief about the truth or falsity of the story.

Assuming the story about the celebrity is false and defamatory, which party, if any, will be liable for defamation?

A Both the tabloid reporter and the woman.

B Only the tabloid reporter.

C Only the woman.

D Neither the tabloid reporter nor the woman.

Answer option D is correct.

A public figure cannot recover damages for defamation related to his official conduct unless he proves

(1) that the statement was false and

(2) that it was made with actual malice.

New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

Actual malice means that the statement was made either

(1) with knowledge of its falsity or

(2) with reckless disregard as to its truth or falsity.

Reckless disregard requires an unreasonable disregard of a high probability or risk of falsity, or that the publisher entertains serious doubts as to the truthfulness of the statement, or a high degree of awareness of probable falsity.

An otherwise defamatory statement may be privileged under certain circumstances. One such circumstance is a statement made to one’s spouse. Restatement (Second) of Torts § 592 (1977).

Here, the actual-malice standard will apply because the celebrity is a public figure. The reporter did not know whether the story was true but had no reason to suspect that it was not. This fact does not meet the standard for actual malice, which requires at least reckless disregard as to the statement’s truth or falsity. Therefore, the reporter will not be liable for defamation.

A woman discovered that her garden had suddenly died. Because the garden ran along a fence shared with a neighbor, the woman decided that her neighbor must have used lawn chemicals on his lawn just before it rained, and the rain washed the chemicals under the fence and into the garden. However, the neighbor denied having used any chemicals and pointed out that a driveway separated his lawn from the woman’s fence, making it unlikely that anything would have washed off the neighbor’s lawn and under the fence to the woman’s garden. The woman consulted an attorney about bringing a negligence claim against her neighbor. The attorney explained that the woman could likely prove one element required to recover for negligence, but that she might have difficulty proving the other elements. Which of the following elements of negligence will be the easiest for the woman to establish?

A Breach.

B Actual causation.

C Proximate causation.

D Injury.

Answer option D is correct.

The basic elements of a negligence claim are:

(1) duty,

(2) breach,

(3) actual causation,

(4) proximate causation, and

(5) a resulting, legal injury.

This means that, to have a valid negligence claim, the actor must owe a duty to the particular victim to conform the actor’s behavior to a particular standard of care, the actor must breach that duty, and the breach must actually and proximately cause a legally cognizable injury to the victim.

Here, the only element evident from the facts is that the woman has suffered a legally cognizable harm or injury. Typically, any actual harm to the victim’s person or property will be enough to be a legal injury. The woman can clearly demonstrate harm to her property because of the dead garden.

In contrast, the woman has only assumptions to support her belief that the neighbor did something that caused her garden to die. The woman has no direct evidence that the neighbor actually failed to use due care when using chemicals on the neighbor’s own lawn (breach), that the supposed failure actually caused her garden to die (actual causation), or that it was foreseeable that the garden would die as a result of the neighbor using lawn chemicals (proximate causation).

Therefore, the woman can easily satisfy the injury element of a possible negligence claim against her neighbor. However, the woman will likely have difficulty proving the elements of breach, actual causation, and proximate causation because she will need to both obtain more information and convince a jury to believe her version of alleged events instead of her neighbor’s version.

A hiker in the woods entered private property without realizing it. The hiker fell into an abandoned mineshaft and suffered injuries because the mineshaft was unmarked and partially hidden. The hiker brought a negligence claim against the property owner. The hiker asserted that the mineshaft posed an unreasonable, foreseeable risk of injury that the property owner could have prevented by placing warning markers or filling in the abandoned mineshaft. However, the property owner had no idea that anyone had ever entered the property. The property was so remote and isolated that the property owner had no reason to expect that someone might trespass there. The court found that the hiker could not prove negligence and dismissed the lawsuit. This occurred in a jurisdiction that followed the majority law on negligence claims. Which of the following is the most likely reason for the court’s ruling?

A. The hiker could not show that the property owner owed a duty to the hiker to place warning markers or fill in the abandoned mineshaft.

B. The hiker could not show that the property owner’s failure to place warning markers or fill in the abandoned mineshaft actually caused the hiker’s injuries.

C. The hiker could not show that the property owner’s failure to place warning markers or fill in the abandoned mineshaft proximately caused the hiker’s injuries.

D. The hiker could not show that he had suffered a legally recognizable injury.

A. The hiker could not show that the property owner owed a duty to the hiker to place warning markers or fill in the abandoned mineshaft.

Under the majority rule, a landowner generally owes no duty of care to undiscovered trespassers, except to refrain from willful or wanton harm. There is no duty to make the land safe or warn of hidden dangers unless the trespasser is known or anticipated.

Because the hiker was a trespasser and the landowner had no reason to expect anyone would enter the remote property, the landowner owed no duty to warn about or remedy the hidden mineshaft. Without a duty, there can be no negligence.

A painter was on a ladder painting the side of the second story of a building adjacent to a sidewalk. The painter failed to use reasonable care to secure his tools. The painter’s paint bucket fell from the ladder and struck a pedestrian walking by on the sidewalk below. A neighbor across the street saw this happen and rushed to the pedestrian’s aid. The painter then dropped his paintbrush as well, which struck and injured the neighbor. A driver passing by at the time saw these events and became distracted as a result. Five blocks further down the road, the driver negligently ran a red light, causing a collision that injured a motorcyclist. The pedestrian, the neighbor, and the motorcyclist sued the painter for negligence. The painter’s attorney moved to dismiss each of the negligence claims on the ground that the painter did not owe a duty of care to any of the plaintiffs. The state follows the majority view of the duty of care. Which of the motions to dismiss, if any, is likely to be granted?

A The motion to dismiss the motorcyclist’s case only.

B Both the motion to dismiss the neighbor’s case and the motion to dismiss the motorcyclist’s case.

C All three motions are likely to be granted, because the painter did not owe a duty to any of the three plaintiffs.

D None of the motions is likely to be granted, because the painter owed a duty to each of the three plaintiffs.

Answer option A is correct.

In jurisdictions that follow the majority or Cardozo view, a duty of care is owed only to reasonably foreseeable victims. This means that a duty of care is owed if a defendant engages in conduct that creates a risk of foreseeable harm to a person in the particular plaintiff’s position.

In addition, if a defendant’s negligent act injures someone or places someone in danger, the defendant generally owes a duty not only to that person, but also to any rescuer who attempts to help the injured or imperiled person. This is because it is always foreseeable that someone will come to the aid of another who is in distress.

Exceptions to this rule are sometimes made if the rescuer recklessly disregards his or her own safety, or if the rescuer is obligated to assist the person in distress (e.g., firefighters or police officers are injured aiding someone in the course of their duties).

Here, the painter’s activity of painting the building from a height above the sidewalk created a foreseeable risk to those passing by on the sidewalk below. Accordingly, the painter owed a duty to the pedestrian, who was doing just that, and the painter’s motion to dismiss the pedestrian is not likely to be granted.

Next, the neighbor across the street was likely not among the original group of passersby who might foreseeably be harmed by the painter’s activity. However, the neighbor became part of the group of foreseeable plaintiffs by rushing onto the scene to assist the pedestrian as a foreseeable rescuer. None of the potential exceptions for rescuers apply, and the painter’s motion do dismiss the neighbor is unlikely to be granted.

In contrast to the neighbor, the motorcyclist five blocks away was almost certainly not in the group of people nearby and using the sidewalk who were foreseeably at risk from the painter’s activity of painting above the sidewalk. Further, neither the driver who hit the motorcyclist nor the motorcyclist were involved in rescuing anyone that the painter had injured. Therefore, it is likely that the motorcyclist’s case would be dismissed on the painter’s motion. Note that the motorcyclist was certainly owed a duty by the driver who caused the collision and is likely to prevail in a negligence action against the driver.

A teenager shot a bottle rocket at his sister. The sister was standing with a group of other children at a backyard barbecue. The teenager meant to hit his sister with the bottle rocket, but he did not intend to hurt her or anyone else. However, unbeknownst to the teenager, the bottle rocket had a defect. The rocket shot backward (instead of the direction that the teenager had it pointed), ricocheted off a wall, and hit an unseen neighbor standing in the next yard, injuring the neighbor. The jurisdiction applied the minority view with respect to the duty of care under negligence law. In the negligence context, when he shot the bottle rocket, the teenager most likely owed a duty of care to which of the following people (if anyone)?

A Nobody, because the teenager did not intend to hurt anyone.

B Only the sister, because the teenager intended to hit only her.

C Only the sister and the group of other children who were standing in the expected zone of danger when the teenager shot the bottle rocket.

D The sister, the group of other children, and the unseen neighbor.

Answer option D is correct.

In negligence law, a duty of care arises if a reasonable person in the actor’s position should perceive that his or her conduct places someone at an unreasonable risk of harm. The majority of jurisdictions apply the foreseeable-plaintiff rule. Under the foreseeable-plaintiff rule, the actor owes a duty of care to only those people that the actor can reasonably foresee hurting. Typically, that means any people in the foreseeable zone of danger created by unreasonably risky conduct are foreseeable plaintiffs, and the actor owes a duty of care to only these people. However, the minority rule is that the actor owes a duty to everyone—the world at large.

Here, a court applying the majority rule (the zone-of-danger rule) would likely find that sister and the other children were in the foreseeable zone of danger because the teenager meant to shoot the rocket in their direction. However, the neighbor was not a foreseeable victim. Indeed, the neighbor was not even a seen victim. The neighbor was harmed only because the teenager unintentionally shot the bottle rocket backward, it ricocheted, and then it hit the unseen neighbor in the next yard. Thus, under the majority rule, the teenager would likely not owe any duty of care to the neighbor. However, this jurisdiction applied the minority rule. The minority rule extends the duty of care to everyone, whether the person is a foreseeable victim or not. Therefore, here, the teenager owed a duty to everyone to use reasonable care when setting off the bottle rocket, including the unseen neighbor.

A woman possessed extraordinary strength but significantly below-average intelligence. The woman worked at a job that required her to manually unload very heavy pipes from a delivery truck. Which of the following best describes the standard of care that the woman owes to people who could foreseeably be injured if she were negligent in the performance of this work?

A The care that would be used by a reasonable, prudent person of average strength and intelligence.

B The care that would be used by a reasonable, prudent person of average intelligence with the woman’s strength.

C The care that would be used by a reasonable, prudent person of average strength with the woman’s intelligence.

D The care that would be used by a reasonable, prudent person with the woman’s strength and intelligence.

Answer option B is correct.

In the law of negligence, the general standard of care owed by a defendant to a plaintiff is to conform his or her conduct to that of a reasonable person of average intelligence, knowledge, and skill, and with the defendant’s physical attributes. This is true regardless of whether the physical attribute would be a benefit or a detriment to the defendant, therefore answer option B is correct.

A man became lost in the woods at night and inadvertently wandered onto a landowner’s property without permission to be there. The landowner looked out her window and saw the man on her property. The landowner was an enthusiast for exotic fish. She had modified her in-ground swimming pool to make it a suitable habitat for man-eating piranha fish. The modified pool was surrounded by a five-foot-tall fence. Numerous signs on the fence, which were lit at night, warned that the pool was full of man-eating fish and that any entry into the pool could result in death or serious bodily harm. The landowner watched the lost man walk toward the pool but did nothing to warn the man about the fish. The man could not speak or read English, so he could not understand the warnings on the signs. When he saw the pool, he climbed over the fence and jumped in. The fish attacked and injured him, and he subsequently sued the landowner. The landowner’s attorney moved for summary judgment. Which of the following issues is likely to be dispositive in the court’s ruling on the motion?

A Whether keeping piranha fish is such an unreasonably dangerous activity that the risk of death or serious bodily harm posed by this activity is foreseeable regardless of the man’s status as a trespasser.

B Whether the landowner had reason to know that trespassers often visited the pool.

C Whether the fence around the pool should have been taller in order to prevent trespassers from easily climbing it.

D Whether the landowner knew or reasonably should have known that the man could not read the signs or otherwise could not reasonably have been expected to appreciate the danger.

Answer option D is correct.

The man was a known trespasser and a landowner’s duty to known trespassers is very limited.

With respect to dangerous conditions on the property, the landowner must usually use reasonable care to warn of man-made conditions, which the landowner knows about or has reason to know about, and which involve a risk of death or serious injury.

Here, the placement of the fence and signs would likely be considered reasonable warning unless the landowner knew or had reason to know that the man would not understand the signs.

A fraternity pledge passed out from drinking. Several fraternity members took the pledge and left him in the middle of a sorority house’s lawn after the sorority had locked its doors for the night. When the sprinklers came on, the pledge woke up, tried to run out of the sprinklers, and tripped and fell on a broken sidewalk. The pledge brought a negligence claim against the sorority, claiming that the sidewalk was a dangerous condition and the sorority had failed to meets its duty of care regarding the dangerous condition. The sorority brought a counterclaim for trespass to land. The sorority lost its counterclaim. The court found that the pledge was not on the sorority’s property through the pledge’s own intentional act and, therefore, that the pledge had not committed the tort of trespassing on the sorority’s land. The court then turned to whether the pledge had a negligence claim against the sorority for violating a duty of care towards the pledge. Which of the following most accurately describes the duty of care that the sorority owed to the pledge regarding dangerous conditions on the sorority’s property, if any?

A The duty of care owed to a public invitee.

B The duty of care owed to a licensee.

C The duty of care owed to an unknown trespasser.

D No duty of care, because the pledge had not intentionally entered the sorority’s land.

Answer option C is correct.

For a dangerous condition on the landowner’s property, the landowner’s duty to occupants varies depending on whether the occupants are classified as:

(1) invitees,

(2) licensees, or

(3) trespassers.

In this context, a trespasser is anyone who is on the landowner’s property without the landowner’s consent. This definition is broader than the definition of a trespasser who commits the tort of trespass to land.

To be a trespasser in a claim for the tort of trespass, a person must commit an intentional act that results in the person entering the property. However, for purposes of determining a landowner’s duty of care to someone on the landowner’s property in a claim for the tort of negligence, a person can be a trespasser even if the person ended up on the property without committing any intentional act.

For example, if someone shoves another person onto private property, the shoved person is not a trespasser who committed the tort of trespass. However, the shoved person may be a trespasser for purposes of bringing a negligence claim against the landowner.

Here, the pledge ended up on the sorority’s lawn through no intentional act of his own. That lack of intent is why the court found that the pledge was not liable for the tort of trespass. However, the pledge’s lack of intent is irrelevant to determining whether the sorority owed the pledge a duty of care once the pledge was on the property. Because the pledge was on the sorority’s property without the sorority’s consent or knowledge, the pledge was an unknown trespasser for purposes of the negligence claim.

A builder was building a house in a state that had not had a tornado in 100 years. Due to that fact, the builder decided not to use special roofing nails that were rated to withstand the most severe tornado winds. The special nails would have added $100 to the total cost of the project. The homeowner moved into the house after it was built. A few weeks later, a tornado struck, the nails failed, and the roof was destroyed. The homeowner sued the builder for negligent construction of the roof. On the issue of breach, the builder is only likely to prevail if the court weighs which of the following factors most heavily?

A The probability of harm from the builder’s conduct.

B The severity of the potential harm from the builder’s conduct.

C The burden on the builder of following a course of conduct that would have prevented the harm.

D The severity of the actual harm suffered by the homeowner.

Answer option A is correct.

 

To establish breach, a plaintiff must generally prove three things:

(1) what actually transpired at the time of the alleged breach;

(2) the standard of care to which the defendant should have conformed his conduct; and

(3) that the defendant's conduct was unreasonable (usually proved by establishing that an alternative course of conduct suggested by the plaintiff is reasonable).

To determine if a plaintiff’s suggested alternative course of conduct is reasonable, most courts will engage in an equitable balancing of factors; the classic version of this analysis is the three-factor test laid out by Judge Learned Hand, which weighs

(1) the probability of harm from the defendant’s conduct,

(2) the potential severity of the harm from the defendant’s conduct, and

(3) the costs or burden that would have been incurred by the defendant (and society) from conforming to the suggested alternative.

Here, the low probability of harm from the builder’s course of conduct, because the state had not had a tornado in 100 years, weighs heavily in the builder’s favor on the issue of whether the builder breached a duty owed to the homeowner.

The manager of a nuclear power plant investigated a new technology developed in a foreign country.

The technology would reduce the chance of a nuclear meltdown in a plant like hers by 95%. The manager’s research revealed that installing the technology would cost the equivalent of five years of the plant’s revenue, and she decided it was not commercially viable to install the technology.

A few years later, there was a meltdown at the plant and an employee was injured. The technology would almost certainly have prevented this exact type of accident. The employee sued the plant and the manager for negligence.

Which of the following states the defendants’ best argument on the issue of breach?

A The potential harm from a nuclear meltdown is large.

B The cost of installing the technology was prohibitive.

C Work in a nuclear plant is inherently dangerous, and the employee assumed the risk.

D Even with the technology, there was still a chance for an accident.

B The cost of installing the technology was prohibitive.

To determine if a plaintiff’s suggested alternative course of conduct is reasonable, most courts will engage in an equitable balancing of factors; the classic version of this analysis is the three-factor test laid out by Judge Learned Hand, which weighs

(1) the probability of harm from the defendant’s conduct,

(2) the potential severity of the harm from the defendant’s conduct, and

(3) the costs or burden that would have been incurred by the defendant (and society) from conforming to the suggested alternative.

Here, the defendants’ best argument is based on this third factor. We do not expect that a reasonable person (including a company or other entity) will incur exorbitant costs in order to prevent foreseeable harm.

A homeowner’s refrigerator, which was still under warranty, stopped cooling. The manufacturer sent a repair technician to the house. While state law required licensure for all appliance-repair technicians, this particular technician was not licensed.

The technician disassembled the refrigerator and replaced a failing part which she suspected was causing the issue. The technician instructed the homeowner to allow the refrigerator to cool overnight before refilling it with food.

Before leaving, the technician provided the homeowner with an invoice; however, the invoice did not itemize parts and labor costs, which was also required under state law.

The next morning, the homeowner discovered coolant leaking from underneath the refrigerator, staining the kitchen’s hardwood floors. While on the phone with customer support, the manufacturer’s representative offered that such leaks were usually attributable to normally aging parts or to technician errors.

Which of the following facts would be most helpful to the homeowner’s negligence claim against the technician?

A The invoice did not itemize parts and labor costs.

B The technician was not licensed.

C Coolant leaks can be attributable to normally aging parts.

D The refrigerator was still under warranty.

Answer option B is correct.

Violating a statute establishes negligence per se if:

(1) the statute prohibits or requires some conduct,

(2) the plaintiff is within the class of persons that the statute was designed to protect, and

(3) the particular injury that the plaintiff suffered was the specific harm the statute was designed to prevent. See, e.g., Wright v. Brown, 356 A.2d 176 (Conn. 1975).

Here, the fact that the technician was unlicensed, in violation of state law, is most helpful to the homeowner’s negligence claim. The statutory violation helps the homeowner make a negligence per se argument. The homeowner may argue that licensure requirements help ensure competency.

Such statutes protect consumers of the licensed technician’s repair services from faulty repair jobs. Therefore, the homeowner is within the class of persons the state licensure law is designed to protect. The homeowner’s damaged floors resulted from an arguably shoddy repair executed by an unlicensed technician.

Therefore, the particular injury the homeowner suffered was the type of harm the statute was designed to prevent.

A pedestrian was crossing the street when a motorist negligently struck her. The pedestrian sued the motorist in negligence for her injuries. The jurisdiction espoused the doctrine of contributory negligence. Which of the following is NOT one of the elements that the pedestrian must prove to make out a prima facie case for negligence?

A That the motorist’s negligence actually caused the pedestrian’s injury.

B That the motorist’s negligence proximately caused the pedestrian’s injury.

C That the pedestrian was not negligent in crossing the street when and where she did.

D That the motorist owed the pedestrian a duty to conform to a particular standard of care when the accident occurred.

Answer option C is correct.

To establish a prima facie case for negligence, a victim must prove that

(1) the actor owed the victim a duty to conform to

(2) a particular standard of care,

(3) the actor breached that duty by failing to conform to the applicable standard of care and, in so doing,

(4) actually and

(5) proximately caused the victim to suffer

(6) legally cognizable harm.

In a jurisdiction espousing the doctrine of contributory negligence, the actor may prove that the victim’s own negligence contributed to the injury.

If the actor can make this showing, and the victim cannot establish an exception to contributory negligence, then the victim can recover nothing. Today, most jurisdictions do not espouse contributory negligence. In the majority of those that do, the doctrine of contributory negligence is an affirmative defense.

Hence, it is the actor’s burden to plead and prove contributory negligence. It is not the victim’s burden to disprove her own negligence.

In sum, then, to establish a prima facie case for negligence, the pedestrian here must prove (among other things)

(1) actual causation,

(2) proximate causation, and

(3) the existence of a duty of care. The pedestrian does not need to disprove her own contributory negligence; rather, the burden of proving the pedestrian’s contributory negligence rests on the motorist.

An electrician went to a home to install a ceiling fan. Posted near the home’s front door was a sign stating, “BEWARE OF DOG.” The homeowner let the electrician into the house, where there was no sign of a dog. The electrician inquired about the warning sign, stating that she would not work in a home with dogs. The homeowner, who had been attempting to hire an electrician for months, lied and responded that he had posted the sign to deter solicitors. In fact, there was a dog in the home. The homeowner led the electrician to the bedroom where she was to install the fan, and the homeowner left the room. The electrician installed the fan and was gathering up her equipment when the homeowner's dog charged into the room, lunged at the electrician, and bit her on the leg multiple times, causing significant injury. The homeowner believes that his “beware of dog” sign protects him from a negligence action by the electrician. According to the common law of negligence, is the homeowner correct?

A Yes, because the homeowner’s only duty was to warn the electrician.

B Yes, because the homeowner’s only duty was to refrain from intentional or reckless harm to the electrician.

C No, because the homeowner’s duty was to warn about abnormally dangerous conditions.

D No, because the homeowner’s warning was not effective.

Answer option D is correct.

A landowner’s duty to occupants depends on the occupant’s status as a licensee, invitee, or trespasser. There are two types of invitees: public invitees and business invitees.

A business invitee is someone who is on the premises with the landowner’s permission, and for some business-related purpose.

A landowner owes to an invitee a duty to warn of, or make safe, foreseeably dangerous conditions that are or should be known to the landowner, and that the landowner knows or should know the invitee is not likely to discover herself. The landowner also owes invitees the duty to affirmatively inspect the property for dangerous conditions. Restatement (Second) of Torts § 343.

Here, the electrician is in the home with the homeowner’s permission, for a business-related purpose, namely, to install a ceiling fan. The electrician is therefore a business invitee.

As such, the homeowner owes the landlord a duty to warn of, or make safe, foreseeably dangerous conditions that are or should be known to the homeowner, and that the homeowner knows or should know that the electrician is not likely to discovery herself. The landowner also owes the electrician the duty to affirmatively inspect the home for dangerous conditions.

The homeowner is not correct that his “beware of dog sign” protects him from a negligence action by the electrician. While the sign alone is likely an adequate warning, the homeowner’s lie that the sign was only there to deter solicitors negates the warning’s efficacy.

Note that the homeowner’s lie, as intentional conduct, might also support a claim based on the homeowner’s intentional or reckless conduct, in addition to simple negligence.

A shopper in a supermarket slipped and fell in a puddle of spilled soda that the shop owner had not yet cleaned. The shopper thought she felt pain in her leg as a result of the fall, and she immediately went to a nearby hospital emergency room. The emergency-room doctor found no physical injury from the fall, but an x-ray revealed a previously undetected mass in the shopper’s leg. Further testing revealed that the mass was a malignant tumor. The shopper paid for and underwent surgery to remove the mass, which, having been discovered early, had not yet spread to any other region of her body. After the surgery, the shopper’s doctors determined that she was cancer-free. Still angry about her fall in the supermarket, the shopper brought a negligence action against the shop owner. Is the shopper likely to establish the element of harm in her negligence action against the shop owner?

A Yes, because the shopper suffered physical harm.

B Yes, because the shopper suffered recoverable damages.

C No, because the shopper did not suffer prima facie harm.

D No, because the shopper did not suffer recoverable damages.

Answer option C is correct.

The shopper did not suffer a prima facie harm. Not all types of harm will support a claim for negligence. Rather, only certain types of harm will satisfy the injury element of a prima facie (i.e., initial) negligence claim. The type of harm that will satisfy the injury element of a negligence claim and allow a plaintiff to bring a valid claim for negligence is referred to as prima facie harm.

Physical harm is always prima facie harm. Physical harm includes the physical impairment of the human body, like a physical injury, illness, disease, impairment of bodily function, or death.

However, in an ordinary negligence case, mere emotional harm, without any accompanying physical injury, is not a prima facie harm. Rather, emotional harm is typically recoverable only if the victim can show a related physical harm that will support bringing the negligence claim in the first place. Similarly, outside the context of professional-malpractice claims, economic harm, by itself, will rarely be a prima facie harm that can sustain a negligence claim.

Here, the shopper’s fall in the supermarket resulted in pain in her leg only—no actual physical injury. Indeed, to the extent that the fall had any impact on the shopper’s physical health, the early detection of the shopper’s cancer actually made her physically better off than she was before the fall. Thus, for purposes of establishing a negligence claim, the shopper did not suffer a physical harm.

Because the shopper thought she felt a physical pain, this pain might qualify as an emotional harm (i.e., the pain part of pain and suffering). However, because the doctor found no accompanying physical injury, the shopper's emotional harm from any pain is not likely to be enough to be a prima facie harm. In addition, because the fall caused the shopper to pay for an x-ray, the shopper suffered an economic loss as a result of the fall.

However, without an accompanying physical injury, this economic loss is also unlikely to be a prima facie harm that will sustain a negligence claim. Without a prima facie harm, the shopper will not be able to establish the element of harm in her negligence action against the shop owner. Answer option A is necessarily incorrect for the same reasons.

A man hired an accountant to prepare the man’s personal income tax returns. The accountant prepared the tax returns and delivered them to the man, who timely filed them. Thereafter, the man received a notice from the Internal Revenue Service (IRS) identifying numerous material errors in the tax returns and requiring the man to pay additional taxes and penalties. The man learned that the accountant had mistakenly prepared the tax returns using documentation from another client. The man hired a different accountant for $500 to correct the erroneous tax returns. He then refiled the returns and remitted the outstanding balance to the IRS. Did the man suffer actual harm for purposes of establishing a prima facie case of negligence against his original accountant?

A Yes, because he suffered economic harm caused by the accountant’s professional negligence.

B No, because he suffered only economic harm.

C No, because the harm he suffered, if any, arises from the accountant’s breach of contract.

D No, because he did not suffer physical harm.

Answer option A is correct.

Although economic loss alone is generally not prima facie harm in a typical negligence case, here, where the lawsuit is based on professional negligence (malpractice), economic loss is sufficient.

A father transported his two-year-old daughter to her preschool and left her in the custody and care of her teacher. At the end of the school day, the father returned to pick up his daughter and discovered that her teacher had been unable to locate the daughter for the past half hour. The father joined the teacher and other school personnel to search for the missing daughter. As time passed, the father became increasingly concerned and upset at their inability to locate the child. After searching for an hour, one of the school’s teachers found the daughter napping in a closet, oblivious to the scene around her. The father, while relieved, was so upset by the incident that he brought a negligence action against the teacher and the preschool. Assuming the facts do not support a claim of negligent infliction of emotional distress, is the father likely to prevail in his negligence action?

A Yes, because he suffered emotional harm.

B No, because emotional harm alone is not prima facie harm.

C No, because it was the daughter, rather than the teacher or preschool, who caused the harm.

D No, because he suffered no recoverable damages.

Answer option B is correct because, in most cases, mere emotional harm is not prima facie harm.

In negligence actions, “harm” generally means “actual loss or detriment to a person, object, or thing.” Restatement (Second) of Torts § 7 (1965).

Here, the father suffered no “actual loss or detriment.”

Two motorists were drag-racing down a rural road when both cars skidded on a slick section of the road and ran onto private property adjacent to the road. In the course of this crash, one of the cars hit and damaged a tool shed on the property.

Both cars came to rest, completely totaled, in roughly the same location a little past the shed. The car's impact into the shed had sparked a fire, ultimately burning the remnants of both cars and the shed before the flames could be extinguished. The final damage to the cars and the shed was so complete that it was not possible to determine which car had hit the shed by looking at the physical evidence.

Both motorists denied being the one whose car had hit the shed. The property owner brought a negligence action against both motorists for the loss of the shed and the tools that had been inside it. In the negligence lawsuit, which of the following causation doctrines will the court most likely apply to determine actual causation?

A But-for causation.

B Concurrent causation.

C Substantial-factor causation.

D Alternative causation.

Answer option D is correct.

If there are multiple defendants who were negligent, only one of the defendants caused the plaintiff’s injury, but it is impossible for the plaintiff to determine which defendant actually caused the injury, then courts will typically apply the alternative-causes doctrine to determine the actual-cause element of a negligence claim.

In these cases, the plaintiff bears the initial burden of proving that one of the defendants must have caused the plaintiff’s injury. After the plaintiff makes that showing, then the burden shifts to each defendant to show that his particular act of negligence was not the actual cause of the injury.

If a defendant can prove that he was not an actual cause of the injury, then that defendant will not be held responsible for the injury. However, the court will find that all defendants who cannot exculpate themselves (i.e., show that they did not cause the injury) are jointly responsible for actually causing the injury.

Here, both motorists were negligent, and one of the two motorists clearly caused the injury to the tool shed. However, it is impossible to tell which motorist caused the damage. Thus, the court will likely shift the burden to the motorists to absolve themselves of liability. See Summers v. Tice, 33 Cal.2d 80 (1948). If neither motorist can prove that he did not hit the shed, then both motorists will be held jointly liable for the property owner’s injury.

While carelessly handling a gun, a hunter shot and mortally wounded a hiker. After being rushed to the hospital, the hiker was declared brain dead. The hiker was an organ donor. Before the hospital was able to harvest the hiker’s organs for donation, a doctor negligently administered a lethal dose of pain medication to the hiker, who died shortly thereafter. If the hiker’s estate sues the hunter for the hiker’s death, which of the following is the most likely result?

A The hunter is liable as a substantial factor in the hiker’s death.

B The hunter is liable as an alternative cause of the hiker’s death.

C The hunter is liable as a but-for cause of the hiker’s death.

D The hunter is liable as a concurrent cause of the hiker’s death.

Answer option C is correct.

The but-for test for actual causation applies where

(1) the defendant’s negligent conduct happened before the injury, and

(2) the injury would not have occurred absent the defendant’s negligent conduct.

Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 26.

Here, the hunter’s negligence in handling the gun mortally wounded the hiker. Absent the hunter’s negligence, the hiker would not have suffered a mortal injury and died. Therefore, the hunter is liable for the hiker’s death under the but-for test.

An apartment building tenant determined that the carbon monoxide detector in her apartment was defective. The tenant alerted the apartment manager, who removed the detector and told the tenant that he would replace the detector later that day.

Two weeks passed, and despite the tenant’s repeated reminders to the apartment manager, the manager still had not replaced the device. During the third week after the detector had been removed, the tenant awoke in the middle of the night feeling disoriented and dizzy.

The tenant left her apartment to get help from a friend in the building. On her way to the friend’s apartment, the tenant collapsed and fell down a flight of stairs, sustaining an injury. It was later determined that the tenant’s disorientation and dizziness were caused by toxic levels of carbon monoxide in the tenant’s apartment coming from a leak in the tenant’s gas stove.

Neither the tenant nor the manager had any previous knowledge of the leak. The tenant sued the apartment manager to recover for her injury. Assume that the manager had a duty to supply all apartments with functioning carbon monoxide detectors, and that the jurisdiction does not have any statute or ordinance that alters the common-law causation tests applicable to the tenant’s case.

Is the tenant likely to prevail?

A Yes, because the tenant’s injuries were a reasonably foreseeable consequence of the manager’s failure to replace the carbon monoxide detector.

B No, because the manager did not know that the tenant’s gas stove was leaking.

C No, because the tenant’s decision to leave her apartment to seek help was an unforeseen, supervening cause of her injuries.

D No, because the manager’s failure to replace the carbon monoxide detector did not cause the carbon monoxide leak.

Answer option A is correct.

Defendants are held liable in negligence for injuries that emanate from the unreasonable, but reasonably foreseeable, risk that their conduct actually created.

See Restatement (Third) of Torts § 29 (2010); Dan B. Dobbs & Paul T. Hayden, Torts and Compensation: Personal Accountability and Social Responsibility for Injury 234-35 (2005).

Except in cases of unforeseeable supervening causes, in most states the doctrine of proximate cause does not cut off a defendant’s liability for harms that arose out of a sequence of events that was unforeseeable; as long as a harm arose from a generally foreseeable risk, the precise manner in which the harm occurred or the sequence of events linking the defendant’s conduct to the harm will not shield the defendant from liability.

Here, it is reasonably foreseeable that without a carbon monoxide detector, a carbon monoxide leak would go undetected and cause injury. Indeed, that is the whole purpose of the detector.

On a cold January night, a driver was taking his friend home after a night out. The driver, wishing to avoid a serious traffic accident on the most direct route, selected an alternate route that he knew went through a high-crime area.

During the drive, the driver grew fearful when he saw groups of people on the street corners in the high-crime area. The driver got lost and stopped the car on the side of the road in order to regain his bearings. Without the driver’s permission, his friend rolled down the window and asked a group of men for directions.

The driver panicked and drove to the next block to get away from the men. At that point he pulled over again, got out of the car, and, furious with his friend, pulled the friend out of the car and told him that the ride was over. The driver got back into the car and sped away, leaving the friend behind.

The friend was robbed at gunpoint and experienced an acute hysterical event triggered by post-traumatic stress disorder from a previous violent assault. The friend collapsed on the street and remained there until the next morning, when police officers found him and took him to a nearby hospital. At the hospital, the friend was treated for frostbite from exposure and admitted for psychiatric distress.

The friend sued the driver to recover for his injuries. Assuming the driver was unaware of the friend’s post-traumatic stress disorder, what is the driver’s likely liability, if any?

A The driver will not be liable for any of the friend’s injuries, because the driver did not actually cause any of the injuries.

B The driver will not be liable for any of the friend’s injuries, because the robbery was an unforeseeable, supervening event.

C The driver will be liable only for the friend’s exposure, because the psychiatric distress was not reasonably foreseeable.

D The driver will be liable for all of the friend’s injuries.

Answer option D is correct.

The driver will likely be liable for the friend’s exposure, because that was a reasonably foreseeable consequence of abandoning the friend in the middle of the night in cold weather.

The driver will also likely be liable for the friend’s psychiatric distress. Although the friend’s post-traumatic stress disorder made him much more susceptible than others to harm from being abandoned and then robbed, the general type of harm—emotional trauma—was a reasonably foreseeable risk of abandoning someone in a high-crime area under these circumstances.

“When an actor’s tortious conduct causes harm to a person that, because of a preexisting physical or mental condition or other characteristics of the person, is of a greater magnitude or different type than might reasonably be expected, the actor is nevertheless subject to liability for all such harm to the person.” Restatement (Third) of Torts § 31 (2010).