Torts II Module Quizzes

As the holiday season approached, a homeowner decided to hang lights around his home. He set up a ladder, climbed it, and began to hang the lights along the edge of his roof. As the homeowner reached the corner of his roof he attempted to stretch to attach the lights to the corner rather than reposition the ladder. In so doing, he fell about 12 feet off the ladder. The homeowner felt some pain in his lower back but did not believe he was seriously injured. Shortly thereafter, the homeowner decided he needed more lights to hang on his home. While driving to the store to purchase additional lights, the homeowner purchased a hamburger and negligently began to eat it his car while driving when he was hit from the rear by another vehicle, which had negligently failed to stop. As a result of the collision the homeowner suffered paralysis. The homeowner brought suit against the other driver. At trial, medical experts testified that the homeowner would not have been paralyzed in the collision if he had not fallen off the ladder earlier that day and that the initial back injury could have been treated by any competent practitioner by immobilization in a brace if the homeowner had gone to the doctor immediately.

What is the driver's best argument for a reduction in the damages owed to the homeowner?

Damages should be reduced because the homeowner was comparatively negligent.

A businessman is the owner of a small winery. For several years he has been dumping grape sludge, the waste product of the fermenting process, in a pit about 100 yards from the neighbor's property. The sludge continues to ferment, giving off a highly pungent and offensive odor. The neighbor finds it impossible to enjoy any activities in her yard because of the odor.

If the neighbor's four-year-old daughter ran onto the businessman's land while chasing a butterfly, fell into the sludge pit, and was injured, would she recover?

Yes, if the businessman knew young children had entered his land before and were likely to be injured.

A man saw a worker lying unconscious in a ditch created by a company renovating the city's water supply system. The water in the ditch was rising rapidly, and the worker was in immediate danger of drowning. Under what circumstances is a court, applying the modern approach, most likely to hold that the man has a legal obligation to go to the worker's aid?

The worker fell into the trench when he unexpectedly stepped in front of the man, who was

riding a bicycle.

A man and a woman were involved in an automobile accident. When the man sued the woman, the jury determined that the man had suffered $100,000 in damages. The jury also determined that the man, the plaintiff, was 25 percent responsible for the accident and the woman, the defendant, was 75 percent responsible. After the jury verdict, the woman's attorney informed the judge that the man's insurance company had already paid the man $15,000.

Assuming this suit has occurred in a pure comparative negligence jurisdiction, what damages should the trial court award to the man?

$75,000

A property owner owns a vacant warehouse on the edge of downtown that is being renovated. The building had construction equipment, damaged floors with large holes, exposed beams, exposed wiring, and construction debris littered throughout the structure. For over a month, a group of homeless men would routinely enter the building late at night to sleep and eat. The owner periodically checked on his property, and noted the accumulation of trash and food scraps. Recently, one of the homeless men fell through a hole in the top floor and severely injured himself. The trial court entered summary judgment in favor of the property owner, ruling that he did not owe any duty to the homeless man. The homeless man has filed an appeal.

Should the appellate court affirm the trial court's ruling?

No, because the property owner owed a duty of care to protect the homeless man.

A cleaning company sold a water softener that caused a rusty discoloration of the water in a homeowner's home. The homeowner noticed the discoloration after she climbed into a full bathtub, and she suffered a heart attack that she claimed was a result of the shock.If the homeowner brings an action against the company for negligent infliction of emotional distress, which of the following is correct?

The homeowner may not recover, because a person normally would not suffer severe

mental distress as the result of bathing in rusty water.

One afternoon, a dog owner returned home from work to find a maintenance man in the apartment and her dog locked in a back bedroom. The maintenance man told the owner that he'd come to fix the plumbing and the dog had bitten him in the leg. The owner was astonished and assured the man that her dog must have been very upset to do so, because she was ordinarily such a well-behaved little dog. Four days later, the owner's sister-in-law and her two children came to visit. The children were young and not used to dogs. The little boy came up to the dog and yelled, "Doggie!" The dog immediately jumped on him and bit his ear. The owner told her sister-in-law that it was the boy's fault for yelling and asked them to leave. When they boy turned out to need extensive cosmetic surgery to repair the injury, the owner's sister-in-law filed a strict liability action against the owner for the boy's injuries. To prevail in her strict liability claim, the sister-in-law must prove that

the owner knew that the dog had a tendency to bite.

The defendant recently purchased a large, abandoned building in a prime location of the city. The defendant decided to turn the building into upscale lofts, which he can lease for a premium due to the building's prime location. As part of his renovations, the defendant needed to use dynamite to blow up a portion of the building. Prior to dynamiting, the defendant took all of the necessary precautions to prevent against injury. He also obtained all necessary permits from the city. On the day of the dynamiting, the defendant used the explosives at exactly 11:00 a.m. Several blocks away, at the city zoo, a zookeeper was in the lion enclosure for the lion's 11:00 feeding. When the lion heard the explosion, he became startled and agitated. As a result, he attacked the zookeeper, biting him several times. The zookeeper brought suit against the defendant.

Will the defendant be strictly liable to the zookeeper?

No, because the harm to the zookeeper did not result from the type of danger that justified

classifying dynamiting as an abnormally dangerous activity.

Priscilla went to Dr. Goodright for treatment of a painful ear disorder which had caused her to experience loss of balance, dizziness and nausea. While Dr. Goodright was examining her inner ear, he noticed a lump of wax. As Dr. Goodright was removing the lump with his hemostat (elongated medical instrument), he also noticed what appeared to be the rear legs of an insect. With utmost care, Dr. Goodright extracted the foreign object from Priscilla’s ear. Dr. Goodright then examined the substance, which proved to be a German cockroach. As he held the insect in front of Priscilla to see, she became hysterical, fainted, and fell to the floor, breaking her collarbone. The incident caused Priscilla to develop a phobia and she became deathly afraid of insects. In a suit for damages against Dr. Goodright, which of the following torts would provide Priscilla with her best theory of recovery?

NIED

A homeowner owned a house with a spacious front yard. The homeowner also owned a cat, which tended to be rather aggressive and had once bitten the homeowner's neighbor. Although the cat stayed mostly indoors, it occasionally wandered outside, into the homeowner's yard. One day, a runner was jogging along the homeowner's street when his shoelace came untied. The runner, who lived on the other side of town and had never met the homeowner, stepped into the homeowner's front yard to tie his shoe. After tying his shoelace, the runner remained in the homeowner's front yard a few minutes longer to admire the homeowner's newly blooming rosebush. While the runner was admiring the roses, the homeowner's cat snuck up behind the runner, bit him on the ankle and clawed him severely. The runner was incensed, and subsequently filed a strict liability lawsuit against the homeowner for his medical expenses.

Will the runner prevail in his action?

No, because the runner was a trespasser.

While a man was cutting his front lawn with a rotary power lawn mower, his neighbor was coming home from work. The neighbor was walking past the man's front lawn when he was hit in the eye with a small rock discharged from the lawn mower. The neighbor lost the use of his eye. The lawn mower did not come with any protective device such as metal netting or a drag plate to prevent the ejection of projectiles such as rocks or pieces of wood. In a suit for damages based on strict liability against the manufacturer of the mower, will the neighbor prevail?

Yes, because the lawn mower was defectively designed.

A man attended a fundraising party at the home of a friend. Since the friend was expecting a large crowd to attend, he purchased a number of chairs to use at the party. When the man sat in one of the chairs, it collapsed, injuring him. The chair in question was manufactured by a chair company. Analysis of the broken chair revealed that one of the legs of the chair, which the company had purchased from a supplier, had been defectively manufactured such that it could not hold the weight of a normal adult. The company randomly tested the chair legs it purchased from the supplier for strength. Such a test would have revealed the defect in this particular leg. If the man brings a negligence action against the company, which of the following most accurately states what he must show to make a prima facie case against the defendant?

The man must prove that the chair leg was dangerously defective and that the defect would have been discovered but for the company's failure to exercise due care.

A novice rock climber was acquiring all of the equipment he needed to pursue his new favorite hobby. He saw an advertisement for a sale on Steel Strength heavy duty rope at a sporting goods store. The manufacturer's ad showed a photo of an athletic man standing next to a jagged rock face with a rope tied around his waist in rock-climbing fashion. The ad read: "Steel Strength rope helps me climb where I need to climb and go where I need to go." The rock climber bought a spool of Steel Strength rope at the store. He didn't discuss the rope with the sales clerk because, based on the ad, he was confident that it was what he needed. The climber brought the rope on his next climbing excursion. The climber's large friend, who had also just started climbing, came along, and he borrowed some of the Steel Strength rope. The rope, which really wasn't designed for supporting even an average-weight person, broke under his weight. He fell from the rock face, landing on a park ranger. The friend broke both of his legs, and the ranger broke her arm. The friend and the park ranger sue the manufacturer in product liability for their injuries.

Which of the following is correct?

Both the ranger and the friend can prevail against the manufacturer, because the

advertisement created an express warranty.

A bicycle manufacturer has been making the best bicycles around for three generations. The grandson of the founder takes great pride in the quality of the company's bicycles and personally supervises the assembly line eight hours a day to ensure quality and maintain his reputation in the industry. Despite careful inspections, the grandson is unaware that the bicycle seats he uses from a components company have been problematic. The seats fall off the bike when anyone over 150 pounds sits on them. The manufacturer sells its bicycles through a retailer. A man, who weighs 175 pounds, buys a bike assembled by the manufacturer from his local bike store. The man takes the bike out for a spin, and as he makes his first turn onto a busy street, the seat falls off. The man falls in front of oncoming traffic and is severely injured. The man sues the store and the manufacturer.

Which of the following is the most likely outcome of the suit?

The man will prevail against both the store and the manufacturer, regardless of whether the manufacturer broke the seat or the seat came that way from the components company.

A woman was injured when she used an electric toothbrush, which, when on the highest setting, caught fire and burned the woman's mouth. It appears that the defect was caused when the toothbrush was manufactured. The toothbrush was manufactured by a manufacturer, distributed to a retailer by a distributor, and sold in a store by the retailer. The retailer asked a dentist to put a display of the toothbrushes in his dental office to see if patients liked them. The woman bought the toothbrush from the dentist when she saw the display in his office after a routine cleaning. The woman now seeks to bring a strict products liability action against all possible parties for her injuries.

Against whom may the woman file suit?

Against the manufacturer, the distributor, and the retailer only.

A man and a woman were investment bankers who had known of each other for some time. They went for a business lunch at a trendy little place packed with other financial professionals. The woman said, "I've heard so many good things about you. What would it take to get you to come work at my office?" The man stated loudly, "I would never work with you! You're an unethical lowlife." Several other financial professionals who were eating lunch overheard his reply.

Will the female investment banker prevail in a defamation suit against the male investment banker?

Yes, because it was reasonably foreseeable that someone would overhear the statement.

The last surviving member of a wealthy family lived on the largest parcel of residential real estate in town. He had had a falling out with his longtime best friend. Just prior to the wealthy man's death, the friend had returned to town, and they reportedly made amends. After the wealthy man's death, the friend bought the property. A reporter for the local newspaper was waiting in the office of his real estate lawyer when he saw the friend coming out of a conference room, shaking hands with the lawyer. Curious, the reporter went to the county clerk's office where he knew all deeds were recorded and learned that the friend had acquired the estate at a price substantially below the original asking price. The next day, the front page headline read, "Friend 'Steals' Estate for $250K." When the friend saw the headline, which was accompanied by his picture and photos of the late wealthy man and the main house on the estate, he became incensed, inasmuch as he had hoped to keep his return to town secret.

Will the friend succeed in an invasion of privacy action against the newspaper?

No, because the newspaper printed public facts.

At a recent city council committee meeting, a city councilman stated on the record that, while he was on vacation in Hawaii, he happened to see his old high school friend cheating on his wife with a younger woman. Actually, the councilman had not seen his friend while on vacation in Hawaii. The friend sues the councilman for defamation.

Which of the following is most accurate?

The friend is not likely to prevail, because the councilman's statement was privileged.

About ten years ago, an agricultural company bought some rural land to start a new bioengineering division. They needed a great deal of land for the experimentation due to the extensive plantings and treatments of the plants that were needed. An unexpected by-product of the research process was the release of an extremely foul odor. The powerful fertilizers used also gave off a strong chemical odor. This was not a problem until recently. Although the company tried to be a good neighbor by doing all it could to suppress the odors, it was getting more and more complaints concerning the odors. There was housing within 400 yards of the property, as urban sprawl reached the area. The odor from the fertilizer contained toxins that were a health hazard. Three homeowners filed suit against the company. If plaintiffs file suit for public nuisance, what is the likely outcome?

Plaintiffs prevail only if they can show that they suffered some damage different from the

public at large.

An animal rights activist who avoided contact with any animal substances was a well-known speaker throughout the country on the subject of veganism and animal rights. Her local newspaper published a photo of the activist in a fast-food restaurant eating what appeared to be a hamburger, and it was picked up by multiple Internet sources. As a result, many of her friends reproached her, and many of her speaking engagements were cancelled. The activist seeks to sue the newspaper for invasion of privacy. The activist will not prevail in her invasion of privacy action unless:

she can show that a reasonable person would find the false light in which she was placed to be highly offensive.

A construction company is building a two-story plaza in town. The construction company has built a series of ramps that the carpenters and masons use to move materials from one level to another. These ramps remain set up even when the workers are not on-site. The teenage son of the site manager advises his father that many of his friends are using the ramps to jump into the air on their bicycles and skateboards. The next day, the site manager posts several prominent signs at the site which stated, "No Trespassing. Keep Off Ramps. Authorized Persons Only. No Skateboards or Bicycles." However, the site manager continued to find evidence that children had been riding bikes and skateboards on the property even after posting the signs. One week later, a 12-year-old boy who ignored the signs rode his skateboard over one of the ramps, fell, and suffered serious injuries. Is the construction company liable for the 12-year-old's injuries?

No, because the 12-year-old boy was warned of the danger.

A retired policeman was hired as a night watchman by a manufacturer of large construction machinery. During the watchman's orientation, the manager of the factory emphasized that in the event of any problem, the watchman was to keep himself out of danger and call the police immediately. The night watchman also was warned never to go outside the fence while on duty. One night a drug addict, whom the watchman recognized from his days on the police force, was walking past the yard. In a rare moment of lucidity, the addict also recognized the former police officer. The addict jeered, "Hey! You a rent-a-cop now?" The watchman ignored the addict for a while, but the addict continued to rant loudly and derisively about the watchman's new career. After several minutes of this, the watchman flew into a rage. He went outside the gate and chased the addict down. The watchman punched the addict several times, giving him a concussion. The addict files a lawsuit for battery against the watchman and the manufacturer.

Which theory in defense of the manufacturer is most likely to succeed?

Respondeat superior.

A man purchased a heavy-duty water heater to use as a backup to his solar water heater. The solar heater had no battery and only worked on sunny days, so the man wanted to link the water heater and the solar heater so that the water heater tank would hold solar-heated water when available, but activate to provide gas heated water on overcast days. The man asked his neighbor to assist him with the installation of the water heater. When the installation was complete, the man and the neighbor got a couple of beers and a couple of chairs and sat down in front of the heater to see how their efforts succeeded. The man opened the valve, which permitted water to enter the tank from the solar unit. Because of a defective pressure relief valve in the water heater, the valve failed to activate until the water from the solar unit entering the water heater became superheated. Then the link suddenly exploded, seriously scalding the man and the neighbor. The neighbor sued the manufacturer of the water heater for the physical injuries he suffered as a result of the water heater explosion.

Who will prevail?

The neighbor, because he was injured by the defective water heater.

A corporation manufactures all types of tar for contractors. Since moving to the city of Seawall, the company donated generously to various charities, and the corporation president sat on the city board of managers. As a result of a tear in the ceiling of the corporation's plant, the plant had been leaking tar into the atmosphere for several months and had not repaired the damage. In response to an inquiry by the city, the corporation asserted that there was no damage to the community from the "minute" amount of tar released by the leak. Numerous property owners in Seawall claimed that their property values had decreased dramatically over the time that the leak had existed and that many children were developing upper respiratory infections. The mayor of Seawall sued the corporation for public nuisance. The corporation filed a motion to dismiss.

How should the court rule on the motion to dismiss?

The court should deny the motion, because the corporation's plant has a leak that has

caused general damage to the area.

To promote its new martial arts program for children, a martial arts school painted large murals of generic martial arts practitioners, Teenage Mutant Ninja Turtles, and Jackie Chan on its walls. The pictures depicted these famous characters fighting and wearing the martial arts school logo on their arms. Many children joined the martial arts school after seeing the murals. The martial arts school is being sued by the appropriate plaintiffs for the murals. Will the school be required to remove the murals and pay damages?

Yes, because the karate school appropriated likenesses without consent.

After noticing the paint peeling off of the north side of her house, a homeowner decided it was time to have her entire house painted. She contracted with a painter who worked frequently in the area, to do the job. The painter decided to start on the north side of the house and set up scaffolding along the north side so he could easily paint the top portions of the house. One day the painter was working on the scaffolding when he negligently kicked an empty paint can off the scaffolding. The can fell to the ground, bounced up and went through the window of the neighbor's house. If the neighbor obtains a judgment against the homeowner for damages to his window, is the homeowner entitled to indemnity from the painter?

Yes, if the homeowner was held vicariously liable for the painter's negligence.

A well-known national news broadcaster has a reputation for ambush-type interviews designed to expose the target's hypocrisy. News Views, a political magazine, ran a feature article stating that the broadcaster had bought land near a proposed site for the new university a few years earlier. The article claimed that the broadcaster had inside information from members of the Board of Regents of the university as to where the school would be located and would now be able to sell the property to the state at a handsome profit. The reporter believed the story to be true because he got the information from a member of the Board of Regents, and he had not found any information to the contrary when he investigated.

If the broadcaster sues News Views for defamation, he most likely will:

not prevail, because the reporter exercised reasonable care in ascertaining whether the

information was true or false.

A young lawyer was fired from his job with a major law firm, which caused him to develop severe depression. A few weeks after seeking treatment for his depression, the lawyer was beginning to feel better and started interviewing for jobs. The lawyer was on his way to an interview for an in-house position when he ran into the managing partner of his former firm on the street. The managing partner said, "Still looking for work? I see they're hiring at the fast food place around the corner. Flipping burgers is just the job for someone with your legal skills and intuition." The lawyer was overcome with shame and embarrassment, skipped his interview and went home immediately. His depression worsened to the point that he required hospitalization, and he was not able to work full time for almost a year.

In a lawsuit against the managing partner, the lawyer will prevail if

the managing partner knew about the lawyer’s depression

A businessman operates a small child-care facility on his land. He often lets the children run around in the front yard. His neighbor is an owner of a dog, and the neighbor often lets his dog play around in his front yard. Some of the children in the child-care facility are afraid of the dog and they ask their parents to move them to another facility. After losing several customers, the businessman decides to sue the neighbor for nuisance.

Which of the following is correct?

The neighbor is not liable for damages for private nuisance if the neighbor's activity is not

offensive or inconvenient to the average member of the community.

The defendant is the manufacturer of Roman Candle fireworks. The defendant packages the Roman Candles in a package which merely states, in very small font, "may be hazardous and cause burns" in the corner of the package. Assume that the defendant markets its products to children age 14 and under. The plaintiff's son, a 12-year-old boy, is badly burned when using one of the Roman Candles. The plaintiff sues the manufacturer on behalf of her son on a products liability theory, alleging absence of adequate warnings.

Will the plaintiff likely prevail?

No, because the fireworks are so obviously dangerous that a warning is unnecessary.

Able and Baker were each driving in their automobiles when they collided. Both parties were negligent because at the moment of impact, Able was speeding and Baker failed to signal when making a lane change. Able sues Baker for injuries sustained in the collision. If the jurisdiction where the lawsuit is filed adopted the pure form of comparative negligence, how should the court rule?

Judgment for Able, and Able may recover for all his injuries but his judgment will be reduced in direct proportion to the percentage of his fault

Questions 2 and 3 are based on the same fact pattern. Able and Baker were playing football in the street. Able threw a long pass to Baker. Baker ran into an automobile driven by Charlie while attempting to catch the pass and suffered from several broken bones and other internal injuries. Able saw the automobile approaching but threw the long pass anyway, believing that Charlie would see Baker and stop his automobile safely before reaching Baker. Baker brought suit against Able and Charlie to recover for his injuries. At the close of the trial, the jury determined that Baker had suffered $100,000 in damages and that Able was 40% at fault, Baker 10% at fault, and Charlie was 50% at fault for causing the injuries Baker sustained. Assume all parties are solvent and have sufficient assets and insurance to cover any judgment amount awarded. The jurisdiction where the lawsuit was filed uses contributory negligence, the last clear chance doctrine, and joint and several liability.
If Baker seeks to recover a portion of the $100,000 judgment from Charlie, will Baker succeed?

Yes, if Charlie could have avoided the harm.

Question 3 is based on the same fact pattern as Question 2. Able and Baker were playing football in the street. Able threw a long pass to Baker. Baker ran into an automobile driven by Charlie while attempting to catch the pass and suffered from several broken bones and other internal injuries. Able saw the automobile approaching but threw the long pass anyway, believing that Charlie would see Baker and stop his automobile safely before reaching Baker. Baker brought suit against Able and Charlie to recover for his injuries. At the close of the trial, the jury determined that Baker had suffered $100,000 in damages and that Able was 40% at fault, Baker 10% at fault, and Charlie was 50% at fault for causing the injuries Baker sustained. Assume all parties are solvent and have sufficient assets and insurance to cover any judgment amount awarded. The jurisdiction has adopted a pure form of comparative negligence, abolished both contributory negligence and the doctrine of last clear chance, but retains joint and several liability.
If Baker seeks to recover all of the $100,000 judgment from Charlie, how much will Baker be entitled to recover?

$90,000

Dan the doctor operates on Paul the patient. He removes Paul’s gallbladder. Paul develops a variety of problems after the surgery and he sues Dan claiming that the surgery was not performed correctly. Which of the following is true?

Paul will need to provide expert testimony to establish the standard of care and that Dan breached that standard of care.

Paul was a passenger in Deke's car. Deke was driving and, while not paying attention to the road, collided with a car driven by Trudy. Trudy was late for work and was driving in excess of the posted speed limit when she collided with Deke's car. Paul suffered a broken leg and brought an action against Deke to recover for his injuries. At trial, evidence of all the above facts was introduced. Will Paul prevail?

Yes, if Deke was negligent and a cause in fact of Paul's injuries.

Doris was driving in her car to work with Peter, a coworker. Doris needed to drop off some clothing at a laundry so she pulled to the curb and got out, leaving Peter in the car with the key in the ignition and the engine running. Due to an increase in car thefts, the state had recently passed a new statute that made it illegal for the driver of an automobile to leave the automobile at any time or for any reason with the key in the ignition. While Doris was in the laundry, a car driven by Harold sped around the corner at an excessive rate of speed and struck Doris's car. The impact caused Doris's car transmission to engage and the car traveled for 50 feet and struck a power pole. Peter was injured when the car hit the power pole. If Peter asserts a claim against Doris to recover damages for his injuries, basing his claim on Doris's violation of the statute, will Peter prevail?

No, the purpose of the statute was not to protect against injuries occurring in this manner.

Paula goes into a federal building to obtain a permit. The building’s elevator is not working and the office she needs is at the top floor, which requires climbing 10 flights of stairs. On the way up the stairs, she slips and falls. She sues the federal agency that designed, owns, and operates the building under the Federal Tort Claims Act, alleging that designing the building to have stairs without handrails caused her to slip and fall. The federal agency moves to dismiss the case under discretionary immunity. The court should

Grant the motion because the decision to not include hand rails in the design of the building is a discretionary act.

Richard had always wanted to become a police officer but had been rejected each time he applied to law enforcement agencies throughout the county where he lived. After receiving his fifth rejection letter, Richard decided he would engage in law enforcement as a hobby by monitoring police radio calls and watching "America's Most Wanted Criminals" on television. On one television broadcast, the picture of an escaped prisoner was displayed. The prisoner was described as armed and dangerous. The following day, Richard was at the shopping mall when he spotted a man, Charles, who matched the description of the escaped prisoner. Richard casually walked near Charles to get a closer look. When Charles saw Richard approach, he turned and walked quickly toward the shopping mall exit to the parking lot. Richard ran after Charles and reached into his jacket and pulled out a gun and yelled at Charles to "stop…or I'll shoot!" When Charles appeared to reach into his jacket and turn to face Richard, Richard shot at Charles. The bullet missed and struck Sherman, another shopper who was entering the mall through the same doorway that Charles was attempting to use to exit the mall. The police arrived and it was determined that Richard was mistaken because Charles was not an escaped felon and he was not armed — although Charles did bear a strong resemblance to the escaped felon whose picture was broadcast on the television program Richard had seen the night before.
If Charles brings an action for assault against Richard, he will:

recover, if Charles reasonably suspected that he was about to be shot.

Fred the farrier goes to Sally’s horse barn to replace the shoes on Sally’s horses. One of the horses, named Millie, has a problem with her feet. Fred tells Sally he recognizes the cause of the problem and will give her some special shoes to help fix it. The special shoes make Millie’s feet worse and she has to be put down because she is in pain and cannot walk. Sally sues Fred alleging malpractice. Fred claims he should only be held to a reasonable person standard. The court will:

Find that a professional negligence standard of care applies if Fred went through training, uses judgment and discretion in his job, and is licensed

Johnny told his mother (Mom) that he wanted to go miniature golfing for his 6th birthday. When the day arrived, Mom took Johnny to the local miniature golf course. On the first two golf holes, Johnny became frustrated because he could not strike the ball with enough force to allow the ball to climb over the obstacle between the tee and the hole. Mom instructed Johnny to bring the club back farther and swing harder to drive the ball over the obstacle. Pell was playing miniature golf on an adjacent hole and watched with amusement as Mom was instructing Johnny. A short time later, Pell was struck in the back of the head by an errant golf shot struck by Johnny from an adjacent tee. Pell suffered a concussion and has now brought suit against Mom and Johnny to recover for his injuries. If Pell brings a negligence action against Johnny, he will:

Not prevail, if Johnny exercised the degree of care to be expected from a 6-year old child of the same experience and intelligence.

A violent flood washed out a road leading to a major highway. The government agency in charge of road maintenance contracted with Paver to construct a new road to replace the one damaged by the flood. In order to leave sufficient room for the road construction vehicles and workers, Paver closed the bike path that was adjacent to the damaged road. Biker had regularly used the path to bicycle to and from work each day. On the morning that Paver began construction, Paver blocked off the bike path. Persons using the bike path had to cross a busy highway to go around the construction area and resume use of the bike path on the other side. Paver did not provide any protective cones or traffic enforcement to assist persons traversing the highway to reach the bike path. Biker was injured while crossing the highway when struck by a vehicle driven negligently by Tom. If Biker brings suit against Paver to recover for his injuries, Biker will:

Recover, because Paver caused Biker's injuries

Biker was riding his bicycle on a four-lane divided highway in violation of a state law that restricted such highway uses to motor vehicles only. After riding for several miles, Biker tired and stopped at a public rest stop to use the restroom. While exiting the restroom, Biker tripped and fell when he stepped on a wet floor that had not been properly marked by state highway maintenance workers who had just cleaned the restroom. Assuming that the state in which the restroom is located and the action is tried retains the common law landowner/occupier rules which are based on the status of the plaintiff, which of the following would be the status designation that Biker should reasonably expect to achieve if he seeks to recover damages from the state?

Public invitee

Fran drove her car to a downtown parking garage owned and operated by Garage. Fran entered and parked her car, leaving her keys with the garage attendant. For the next 3 hours, Fran visited several bars and consumed a large number of alcoholic beverages. When Fran returned to the parking garage she was visibly intoxicated. The attendant, a Garage employee, saw Fran and asked her, "Do you want me to call a taxi?" Fran said no and grabbed the keys from the attendant's hand. On the way home, Fran struck another car with hers and injured Paul, the driver of the other vehicle. Paul brought suit against Garage and the attendant, attempting to collect for his injuries. Which of the following will provide the best defense for Garage and the attendant in this suit?

Neither Garage nor the attendant owed any duty of care to Paul to refuse Fran's request for her car keys.

Perry was on vacation at the Paradise Isle Hotel (Hotel) in Hawaii. One day while dining in the Hotel restaurant, Perry swallowed a large piece of food that became lodged in his throat. Perry began to gasp for breath and his face turned bright red as he struggled to remove the piece of food from his throat. Doctor, another restaurant patron on vacation at Hotel, saw Perry but chose not to assist Perry when a restaurant employee began to administer a commonly used medical anti-choking technique of standing directly behind the choking person, wrapping both arms around the choking person's chest, and quickly pushing in on the chest to try to expel the lodged food item. After several minutes of failed attempts, paramedics arrived and rushed Perry to the hospital for an emergency operation. Perry survived, but suffered from reduced brain function due to the length of time he was deprived of sufficient oxygen before the operation extracted the food item lodged in Perry's throat. If Perry brings suit against Doctor to recover for his injuries, Perry will:

Not recover, because Perry cannot prove that his injury was caused by any negligent affirmative act on Doctor's part.

Dorman decided to construct a fish pond in his backyard. When completed, the pond was located on the boundary of Dorman's property and located next to a public trail used by joggers and others when traveling through the woods. Dorman stocked the pond with fish, but he became angry when he discovered that some local children had been feeding candy and other snacks to the fish and many fish were dying as a consequence. To prevent the children from reaching the pond, Dorman constructed a barbed wire fence around the pond and bordering the public trail. The fence was posted every 20 feet with a sign warning of the dangers of coming into contact with the barbed wire fence. Rider was out riding on horseback on the trail when his horse was injured when it brushed against the barbed wire fence. Rider was not aware of the existence of the barbed wire fence and had not seen any of the warning signs because the local school children had recently stolen most of the signs installed by Dorman. If Rider brings suit against Dorman for the injuries suffered by his horse, Rider will:

Prevail, if Dorman failed to use reasonable care to warn of the dangers presented by the fence.

Niteclub is an evening entertainment establishment featuring live music and other entertainment which includes a restaurant, bar, and dance floor. The police department informed the management of Niteclub that several of Niteclub's customers had complained that they had been robbed or found their cars stolen after leaving the club late at night. In response, Niteclub posted large well-lit signs at the entrances and in the restrooms of Niteclub warning that "Niteclub does not ensure the safety of the property or persons of those who enter Niteclub" and that "Customers should be careful to watch for thieves and robbers who may try to rip you off in the parking lot." Piddle entered Niteclub one evening to meet some friends. Piddle entered the club, but left less than 5 minutes later when he discovered that his friends were not inside. When Piddle returned to the parking lot, his car had been stolen. If Piddle brings a lawsuit against Niteclub to recover damages, Piddle will:

Recover, if Niteclub failed to take reasonable steps to protect against the harm suffered by Piddle

Shopper was shopping in a grocery store owned and operated by Grocer with her small child. After shopping on several aisles, the child told Shopper she needed to use the restroom. Shopper took the child to the public restroom in the grocery store, but there was a sign posted on the entrance stating that all the restrooms were temporarily out of service due to a plumbing problem. Shopper looked at the child and knew that the child could not wait until they left the grocery store to find another rest room. Shopper led the child into the back area of the grocery store in search of an employee restroom. Shopper continued walking into the back area of the grocery store past a sign that read, "Loading Area — Off limits to unauthorized personnel." Shopper read the sign, but continued walking briskly with the child in search of the employee restroom. As Shopper turned a corner, she saw an employee restroom sign in the distance. As she walked toward the restroom, Shopper saw an employee of Grocer who smiled as Shopper walked past with the child. Shopper pointed to the child and said, "We need to use the restroom." The employee said nothing but pointed to the employee restroom off in the distance. The employee also saw that there was a forklift carrying a large pallet of groceries heading toward Shopper and her child, but the employee did not believe it was necessary to warn Shopper because the employee assumed that Shopper saw the large forklift approaching. Shopper was looking down at the child attempting to comfort the child when she was struck by the approaching forklift. If Shopper brings an action against Grocer to recover for her injuries, Shopper will

Recover, if the employee should have reasonably determined that Shopper did not see the forklift.

Johnny told his mother (Mom) that he wanted to go miniature golfing for his 6th birthday. When the day arrived, Mom took Johnny to the local miniature golf course. On the first two golf holes, Johnny became frustrated because he could not strike the ball with enough force to allow the ball to climb over the obstacle between the tee and the hole. Mom instructed Johnny to bring the club back farther and swing harder to drive the ball over the obstacle. Pell was playing miniature golf on an adjacent hole and watched with amusement as Mom was instructing Johnny. A short time later, Pell was struck in the back of the head by an errant golf shot struck by Johnny from an adjacent tee. Pell suffered a concussion and has now brought suit against Mom and Johnny to recover for his injuries. If Pell brings a negligence action against Mom, Pell will:

Prevail, if Mom did not reasonably supervise Johnny's conduct.

Drew owned a home in a residential neighborhood. At the request of his teenage son, Drew built a wooden skateboard ramp for use by Drew's son and other children in the neighborhood in the driveway in front of Drew's home. Drew always insisted that children using the skateboard ramp wear helmets and other protective safety pads when using the skateboard ramp. When Drew took his family on a weekend trip to visit relatives, he disassembled the ramp and placed the skateboard ramp against the side of the garage. On that same weekend, Paul moved into the house next door to Drew. Paul was 11 years old and loved to ride his skateboard. When he looked out of his second-story bedroom window over the fence at Drew's house, he saw something that appeared to be a wooden skateboard ramp leaning against the side of Drew's garage. When he climbed over the fence to take a closer look, he knew exactly what he was going to do. Paul took the ramp and placed it in Drew's driveway and began skating up and down the ramp. On the third attempt, Paul fell off the top of the ramp and broke his wrist. If he had been wearing a wrist pad, he would not have been injured. If a lawsuit is brought on Paul's behalf against Drew, Paul will:

Not prevail, if the children likely to be attracted to the skateboard ramp would normally realize the risks of using the ramp without wearing protective equipment

Pam is walking across the street and she is almost hit by a car. It frightens her and she screams out of fear, but she is not harmed or contacted by the car. Will Pam prevail in a claim for negligent infliction of emotional distress against the driver of the car?

No, because she does not have physical manifestations from the emotional distress

Dennis loved animals and owned several dogs and cats. One of his dogs ran out of the door chasing a rabbit that had paused to eat some grass on Dennis' front lawn. Dennis saw his dog run out the door and called the dog to return to the house. The dog did not return immediately even though Dennis had given the dog the proper command to return to the house. The fact that the dog did not immediately obey was very unusual because Dennis had spent a great deal of time training each of his dogs, and this particular dog had never been disobedient before. When Dennis ran out the door to chase after the dog, he found Pedestrian lying on the sidewalk. Pedestrian had been knocked down by the dog as it chased after the rabbit. If Pedestrian brings suit against Dennis seeking damages for injuries sustained in the fall, Pedestrian will

Not prevail, because the dog was well-trained and unexpectedly ignored Dennis on this occasion

Alan is an advocate of animal rights. Doctor engages in medical research that uses rabbits and mice for testing to develop medical treatments for human diseases. Alan believes that all uses of any animals for medical testing are unethical and cruel. Alan discovered that Doctor would be collecting a group of animals for use in testing a new cancer drug. Alan believed that many animals would be killed as a result of Doctor's testing procedures. When Alan learned where Doctor's medical lab was located, Alan marched outside holding up signs with pictures of tortured animals with the caption "Doctor is engaged in cruelty to animals!" Doctor saw Alan and the sign.
If Doctor brings a suit claiming that Alan's conduct amounts to intentional infliction of emotional distress, which of the following (if proven by Doctor) best supports Doctor's claim?

The signs constitute extreme and outrageous behavior.

Doris was driving in her car to work with Peter, a co-worker. Doris needed to drop off some clothing at a laundry so she pulled to the curb and got out, leaving Peter in the car with the key in the ignition and the engine running. Due to an increase in car thefts, the state had recently passed a new statute that made it illegal for the driver of an automobile to leave the automobile at any time or for any reason with the key in the ignition. While Doris was in the laundry, a car driven by Harold sped around the corner at an excessive rate of speed and struck Doris' car. The impact caused Doris' car transmission to engage and the car traveled for 50 feet and struck a power pole. Peter was injured when the car hit the power pole. If Peter asserts a claim against Doris to recover damages for his injuries, basing his claim on Doris' violation of the statute, will Peter prevail?

No, the purpose of the statute was not to protect against injuries occurring in this manner.

Purch went to a hardware store owned and operated by Storeco and purchased some paint and supplies Purch needed to paint his kitchen. One of the items purchased was a box of cotton balls manufactured by Paintco that Paintco had chemically treated with odorless paint remover to be used to clean up paint drips or other unintended painting errors. Purch used some of the Paintco cotton balls to remove excess paint and put the remainder back in the box and stored them in the garage. Two weeks later, while Purch was out of town on a business trip, Purch's child (Child) asked Purch's wife (Wife) to help her create a costume for a birthday party she had been invited to. Child wanted to go to the party dressed as "Suzy Snowflake," a popular children's television character. Wife agreed to create the costume and glued some of the Paintco cotton balls to Child's costume to create the appearance of snow. When Child was at the party wearing the costume, the paint removal chemical in the cotton balls ignited when Child stood close to the lit birthday candles. Child was severely burned and Purch brought a lawsuit based on strict liability against Storeco on behalf of Child. Will Purch prevail in this lawsuit?

Yes, if neither StoreCo nor Paintco warned Purch of the danger.

Sam purchased a brand new car from Dealer. The car was manufactured by National Motors. Sam drove the car for two weeks without incident, but he noticed that the car had a tendency to pull to the left when driven at speeds in excess of 65 mph. Unknown to Sam, the car was sold with a defective steering mechanism that could cause the driver to suddenly lose all ability to steer the car. Sam was annoyed by the car pulling to the left, but chose not to bring the car in for an inspection because he rarely drove in excess of the speed limit. Two months later, Sam lost his job and needed to sell the car to obtain money. Sam sold the car to Phil, without informing Phil about the problem with the car's steering mechanism. One month later, Sam received a recall notice from National Motors which had just discovered the defect and sent warnings to Sam and all other owners of the same model car about the steering mechanism defect. The notice told them to stop driving the cars immediately and to have the cars towed in (at National Motor's expense) for inspection and repair. Sam called Phil to warn him, but Phil was not at home. At the time of the call, Phil was driving the car and suffered a severe injury when the steering mechanism defect caused the car to veer into another vehicle. If Phil brings an action based on strict liability against Dealer to recover for injuries he sustained in the accident, Phil will

Recover, because the car was defective when sold to Sam.

Original fact pattern: Sam purchased a brand new car from Dealer. The car was manufactured by National Motors. Sam drove the car for two weeks without incident, but he noticed that the car had a tendency to pull to the left when driven at speeds in excess of 65 mph. Unknown to Sam, the car was sold with a defective steering mechanism that could cause the driver to suddenly lose all ability to steer the car. Sam was annoyed by the car pulling to the left, but chose not to bring the car in for an inspection because he rarely drove in excess of the speed limit. Two months later, Sam lost his job and needed to sell the car to obtain money. Sam sold the car to Phil, without informing Phil about the problem with the car's steering mechanism. One month later, Sam received a recall notice from National Motors which had just discovered the defect and sent warnings to Sam and all other owners of the same model car about the steering mechanism defect. The notice told them to stop driving the cars immediately and to have the cars towed in (at National Motor's expense) for inspection and repair. Sam called Phil to warn him, but Phil was not at home. At the time of the call, Phil was driving the car and suffered a severe injury when the steering mechanism defect caused the car to veer into another vehicle. 
Assume for purposes of this question only that Phil brought an action against National Motors and that the parties both agreed to the following findings of fact: (1) the steering mechanism defect was so apparent, that a normal driver would have discovered the existence of defect; and (2) Phil did not discover the defect. In this action, based on these findings, Phil will

Prevail, because Phil did not discover the defect.

Original fact pattern: Sam purchased a brand new car from Dealer. The car was manufactured by National Motors. Sam drove the car for two weeks without incident, but he noticed that the car had a tendency to pull to the left when driven at speeds in excess of 65 mph. Unknown to Sam, the car was sold with a defective steering mechanism that could cause the driver to suddenly lose all ability to steer the car. Sam was annoyed by the car pulling to the left, but chose not to bring the car in for an inspection because he rarely drove in excess of the speed limit. Two months later, Sam lost his job and needed to sell the car to obtain money. Sam sold the car to Phil, without informing Phil about the problem with the car's steering mechanism. One month later, Sam received a recall notice from National Motors which had just discovered the defect and sent warnings to Sam and all other owners of the same model car about the steering mechanism defect. The notice told them to stop driving the cars immediately and to have the cars towed in (at National Motor's expense) for inspection and repair. Sam called Phil to warn him, but Phil was not at home. At the time of the call, Phil was driving the car and suffered a severe injury when the steering mechanism defect caused the car to veer into another vehicle.
Assume for purposes of this question that Phil brings a strict liability action against Sam. Will Phil prevail?

No, because Sam is not a commercial supplier of cars.

Dave had a medical condition that caused him to have poor blood circulation. As a result he always felt very cold, even in the summer. To remedy this, Dave installed a heater on the outside of his bedroom window to blow warm air into his house. Dave had to run the heater day and night to maintain a comfortable temperature in his home. Pat lived next door to Dave and Pat's bedroom window was only 15 feet away from Dave's heater. Pat is a light sleeper and complained to Dave about the noise generated by the heater. Dave refused to turn off the heater. After several sleepless nights and a resulting decline in his health, Pat brought suit to recover damages for the sleep disturbance and health problems caused by the noise from Dave's heater.
Will Pat prevail?

No, if the noise generated by the heater is not unreasonable

SmokeCo operates a chemical refinery near Pleasanton, a small residential community. As a necessary part of its operations, SmokeCo's refinery emits a chemical pollutant into the air. SmokeCo has chosen to use state of the art cleansing screens on the refinery smokestacks to minimize the amount of pollutants that are released into the air. Nevertheless, a measurable quantity of the pollutant drifts into the community of Pleasanton each day. As a result, nearly all of the residents of Pleasanton are forced to wash and repaint the exterior of their homes and businesses every few years to remove the chemical residue caused by SmokeCo's operations, which leaves an unsightly discoloration on their homes and businesses.
One such resident is Pell. Can Pell bring an action against SmokeCo seeking damages for public nuisance.

Yes, if Pell also suffered some other injury distinct from the other residents and businesses in Pleasanton.

Danzig is a dance instructor who provided free one-hour introductory lessons to prospective students in his dance academy. Prancer participated in one of Danzig's free introductory lessons. At the end of the lesson, Danzing told Prancer that "for a beginner, you have excellent grace and style -- with a few lessons, you could be winning some dance competitions." Prancer was so excited that he immediately signed up for Danzig's 100 hour dance instruction program at a cost of $5,000. After about 50 hours of lessons, Prancer signed up for a dance competition and was humiliated when he was the first contestant eliminated by the judges based on his lack of dancing talent and skill. Prancer then brought suit against Danzig for misrepresentation.
In this lawsuit, which of the following would present Danzig with his best defense?

Prancer was going to sign up for the dance instruction and try some competitions even before Danzig made the statements.