MBE Torts Questions

A gardener's backyard, which is landscaped with expensive flowers and shrubs, is adjacent to a golf course.  While a golfer was playing golf on the course, a thunderstorm suddenly began.  As the golfer was returning to the clubhouse in his golf cart, lightning struck a tree on the course, and the tree began to fall in the golfer's direction.  To avoid being hit by the tree, the golfer deliberately steered his cart onto the gardener's property, causing substantial damage to the gardener's expensive plants.

In an action by the gardener against the golfer for damage to his plants, will the gardener likely prevail?

Answer: Yes, because the golfer's entry onto the gardener's property, though occasioned by necessity, was for the golfer's benefit.

A defendant is generally liable for trespass when he/she intentionally enters the plaintiff's property without permission.  A trespass may be excused by either of the following privileges:

• public necessity – an intrusion that is, or reasonably appears to be, necessary to protect a large number of people from a public disaster (eg, hurricane, oil spill, spreading fire)

• private necessity – an intrusion that is, or reasonably appears to be, necessary to protect oneself, third parties, or property

But when a trespass arises from private necessity, the trespasser remains liable for actual damages caused by the trespass unless the entry was for the plaintiff's benefit (eg, to protect the plaintiff's property).

Here, the golfer deliberately steered his cart onto the gardener's property without permission (trespass).  However, the golfer's trespass was privileged because he was trying to protect himself from a tree falling in his direction (private necessity).  But since the golfer's entry was for his own benefit—not the gardener's—the golfer is liable for damage his entry caused to the gardener's plants (actual damages).

A man and his friend, who were both adults, went to a party.  The man and the friend had many drinks at the party and became legally intoxicated.  They decided to play a game of chance called "Russian roulette" using a gun loaded with one bullet.  As part of the game, the man pointed the gun at the friend and, on her command, pulled the trigger.  The man shot the friend in the shoulder.

The friend has brought a negligence action against the man.  Traditional defenses based on the plaintiff's conduct apply.  What is likely to be the dispositive issue in this case?

Answer: Whether the friend could validly consent to the game.

In traditional common law jurisdictions (as seen here), contributory negligence is a complete defense to negligence when the plaintiff's failure to use reasonable care contributed to his/her injury.  Here, the man negligently shot his friend during a game of Russian roulette.  But the friend cannot recover from the man if she was contributorily negligent in becoming intoxicated at the party and agreeing to play the game.  Therefore, whether the friend was also negligent is likely to be the dispositive issue in her negligence action against the man.

A man and a woman were competing in an illegal drag race.  Both of them were driving over the speed limit but were otherwise driving very carefully.  However, when a tire on the woman's car suddenly blew out, she lost control of her car and crashed, injuring a pedestrian.

The pedestrian later sued the man, because the woman had no insurance or assets.

Will the pedestrian be likely to prevail in that action?

Answer: Yes, because the man and the woman were acting in concert in a dangerous activity

Tort claims for personal injury generally require proof that the defendant's tortious conduct actually and proximately caused the plaintiff's harm.  However, when two or more tortfeasors act pursuant to a common plan or design (ie, act in concert) AND one or more of them cause the plaintiff's harm, all of the tortfeasors are jointly and severally liable for 100% of the harm.

Here, the man and woman were competing in an illegal drag race (acting in concert) when the woman crashed her car and injured the pedestrian.  As a result, the man and woman are jointly and severally liable for the pedestrian's injury, and the pedestrian will prevail against the man—regardless of whether he also caused the injury (Choice A).

In a tavern, an intoxicated woman threatened to slash a man with a broken beer bottle she was holding.  Another customer, who had not been threatened by the woman, forcefully grabbed the woman and locked her in the tavern's storeroom until the police could arrive.  In the process, although the customer used reasonable force, the customer badly sprained the woman's wrist.

Is the woman likely to recover in an action against the customer?

Answer: No, because the customer's conduct was privileged as a defense of others.

The privilege to use reasonable force in the defense of others (i.e., third parties) exists when the defendant reasonably believes that:

• the circumstances are such that the third party has a privilege of self-defense and

• the defendant's action is immediately necessary to protect the third party.

Here, the customer was privileged to grab the woman and lock her in the tavern's storeroom (reasonable force) to defend the man.  That is because the customer could have reasonably believed that (1) the man had the privilege to defend himself from the woman's threat to slash him with the broken beer bottle in her hand and (2) the customer's actions were immediately necessary to protect the man from the woman.  Therefore, the woman likely will not recover in an action against the customer.

During a deer-hunting season open to rifle hunters, a hunter saw a deer in the forest.  He shot his rifle at the deer, hoping to hit and kill it.  Instead, he hit and injured a hiker.  The hunter had not realized that the hiker was there.

Does the injured hiker have an actionable battery claim against the hunter?

Answer: No, because the hunter did not intend to shoot the hiker

Battery requires that the defendant act with the intent to cause contact with the plaintiff's person.  Intent exists when the defendant acts with either:

• the purpose of causing contact with the plaintiff or

• the knowledge that such contact is substantially certain to occur.

If the intentional act causes contact that is harmful or offensive to the plaintiff, then the defendant is liable for battery.

Here, the hunter shot his rifle with the purpose of hitting the deer—not the hiker.  Additionally, the hunter had no knowledge that the hiker was there, so the hunter could not have been substantially certain that he would hit the hiker when he shot his rifle.  And since the hunter did not shoot his rifle with the intent to hit the hiker, the hiker does not have an actionable battery claim against the hunter.

A bartender was removing the restraining wire from a bottle of champagne produced and bottled by a wine company when the plastic stopper suddenly shot out of the bottle.  The stopper struck and injured the bartender's eye.  The bartender had opened other bottles of champagne, and occasionally the stoppers had shot out with great force, but he had not been injured.

The bartender brought an action against the wine company, and the jury found that the bottle that caused his injury was defective and unreasonably dangerous because its label did not warn that the stopper might suddenly shoot out during opening.  The state has merged contributory negligence and unreasonable assumption of risk into a pure comparative-fault system that is applied in strict products liability actions.

Will the bartender recover a judgment in his favor?

Answer: No, if the jury finds that even with a legally sufficient warning, the bartender would have opened the bottle the same way he had in the past.

Under products liability law, commercial suppliers are required to provide adequate warnings (or instructions) when:

• their product poses a foreseeable and unobvious risk of physical harm and

• reasonable warnings could reduce that risk.

Failure to provide adequate warnings renders a product defective and subjects a commercial supplier to strict liability when that defect causes the plaintiff harm.  To prove that the defect caused his/her harm, the plaintiff must show that the harm would not have occurred had a legally sufficient warning been provided.

Here, the bartender was injured by a champagne bottle stopper.  The jury found that the bottle was defective due to its lack of warning about the stopper.  But if the jury also finds that a legally sufficient warning would not have prevented the bartender's injury—e.g., that even with a warning, the bartender would have opened the bottle the same way he had in the past—then the bottle's absent warning did not cause his injury and he will not prevail.

While throwing warm-up pitches on the sidelines during a professional baseball game, a pitcher was continuously heckled by some spectators seated behind a wire mesh fence in the stands above the dugout.  On several occasions, the pitcher turned and looked directly at the hecklers with a scowl on his face, but the heckling continued.  The pitcher then wound up as though he was preparing to pitch in the direction of his catcher, but he threw a fastball toward the hecklers instead.  The ball passed through the wire mesh fence and struck a woman who was one of the hecklers.

The woman brought an action against the pitcher and the team to recover damages for negligence and battery.  The trial court entered judgment as a matter of law in favor of the defendants on the battery claim.  The jury found for the defendants on the negligence claim because the jury determined that the pitcher could not foresee that the ball would pass through the wire mesh fence.

The woman has appealed the judgment on the battery claim, contending that the trial court erred in entering judgment as a matter of law in favor of the defendants.

On appeal, should the court affirm the judgment as a matter of law entered in favor of the pitcher on the battery claim?

Answer: No, if a jury could find on the evidence that the pitcher intended to cause the hecklers to fear being hit.

A defendant is entitled to judgment as a matter of law if the evidence presented at trial is not legally sufficient to support every element of the plaintiff's claim—i.e., no reasonable jury could find in the plaintiff's favor.  Therefore, an appellate court should affirm the trial court's judgment on the battery claim if no reasonable jury could find that:

• the defendant intended to cause contact with the plaintiff's person

• the defendant's affirmative conduct caused such contact (throwing a baseball that struck the woman) and

• the contact caused bodily harm or was offensive to the plaintiff (being struck with a baseball is harmful contact).

Under the doctrine of transferred intent, intent for battery also exists if the defendant intended to commit an assault—i.e., to cause anticipation of imminent, and harmful or offensive, contact—but instead committed a battery.

Therefore, a reasonable jury could find that the pitcher acted with the requisite intent if the jury concludes that the pitcher intended to hit the hecklers (intent for battery) OR intended to cause them to fear being hit (intent for assault that resulted in battery).  If so, then the appellate court should reverse the judgment as a matter of law and remand the case for a jury to decide whether a battery occurred.

An associate professor in the pediatrics department of a local medical school was denied tenure.  He asked a national education lobbying organization to represent him in his efforts to have the tenure decision reversed.  In response to a letter from the organization on the professor's behalf, the dean of the medical school wrote to the organization explaining truthfully that the professor had been denied tenure because of reports that he had abused two of his former patients.  Several months later, after a thorough investigation, the allegations were proven false, and the professor was granted tenure.  He had remained working at the medical school at full pay during the tenure decision review process and thus suffered no pecuniary harm.

In a suit for libel by the professor against the dean of the medical school, will the professor be likely to prevail?

Answer: No, because the professor invited the libel

Libel is a defamatory statement that appears in written or other physical form.  To prevail in a suit for libel, the plaintiff must prove all of the following:

• The defendant knowingly made a false statement about the plaintiff or negligently failed to determine its falsity.

• That type of statement would tend to harm the plaintiff's reputation.

• The defendant intentionally or negligently communicated that statement to a third party (the key to a defamation claim).

However, consent (apparent, actual, or implied) is a complete defense to defamation.  Apparent consent exists when the plaintiff's words or conduct were reasonably understood by the defendant as consent to the defamatory communication.

Here, the dean's written response to the organization may have been libelous since it contained false allegations that the professor had abused patients.  But since the professor had authorized the organization to investigate his case, it was reasonable for the dean to understand that the professor had invited a response to the organization's inquiry (apparent consent).  Therefore, the dean has a valid defense and the professor's claim will likely fail.

(Choice B)  Although pecuniary loss is an element of slander (spoken defamation), it is not required for libel (written defamation) since harm is presumed.  Therefore, the fact that the professor suffered no pecuniary loss would not defeat his libel claim.

A food company contracted with a delivery service to supply food to remote areas around the world.  The contract between the food company and the delivery service was terminable at will.  The delivery service then entered into a contract with an airline to provide an airplane to deliver the food.  The contract between the delivery service and the airline was also terminable at will.

The food company was displeased with the airline because of a previous business dispute between them.  Upon learning of the delivery service's contract with the airline, the food company terminated its contract with the delivery service in order to cause the airline to lose the business.  After the food company terminated the delivery service's contract, the delivery service had no choice but to terminate the airline contract.

If the airline sues the delivery service for tortious interference with contract, will the airline prevail?

Answer: No, because the airline and the delivery service were the parties to the contract.

To prevail on a tortious interference with contract claim, the plaintiff must prove all of the following:

• A valid contract existed between the plaintiff and a third party.

• The defendant intentionally and improperly interfered with the contract's performance—eg, using physical violence or economic pressure to prevent or hinder performance of the contract.

• The interference caused the plaintiff pecuniary (monetary) loss.

Therefore, the plaintiff can only prevail if the defendant interfered with a contract between the plaintiff and a third party—not a contract between the plaintiff and the defendant.

Here, the delivery service (defendant) entered into a contract with the airline (plaintiff).  Although the delivery service terminated that contract, the delivery service is not liable for tortious interference with contract because the delivery service interfered with its own contract with the airline—not a contract between the airline and a third party (eg, the food company).  Therefore, the airline will not prevail.