Torts Flashcards

Q35. Standard of Care — Children Operating Adult Activities

A 13-year-old girl was operating a high-speed motorboat. The boat was towing a 9-year-old boy in an inner tube tied to the rear of the motorboat by a rope. The rope became tangled around the boy’s foot, causing him to suffer severe injuries.

In a suit brought on the boy’s behalf against the girl, the boy has introduced uncontroverted evidence that the girl drove carelessly in such a way as to entangle the boy in the rope.

Is the boy likely to prevail?

A. Yes, because the girl will be held to an adult standard of care.

B. Yes, because children of the girl’s age should have the capacity to operate motorboats.

C. No, because the boy assumed the risk.

D. No, because the girl was too young to be expected to appreciate and avoid the risk she exposed the boy to.

Correct Answer: A. Yes, because the girl will be held to an adult standard of care.

Q36. Fraud — Intentional Misrepresentation

A seller sold his boat to a buyer. During negotiations, the buyer said that he planned to sail the boat on the open seas. The seller told the buyer that the boat was seaworthy and had never sustained any significant damage. In fact, the hull of the boat had been badly damaged when the seller had run the boat aground. The seller had then done a cosmetic repair to the hull rather than a structural repair.

The buyer relied on the seller’s representations and paid a fair price for a boat in good repair, only to discover after the sale was completed that the hull was in fact badly damaged and in a dangerous condition. The seller has refused to refund any of the buyer’s money, and the buyer is contemplating suing the seller.

Under which theory would the buyer be most likely to recover?

A. Strict products liability

B. Intentional endangerment

C. Negligent misrepresentation

D. Fraud

Correct Answer: D. Fraud.

Q37. Res Ipsa Loquitur

A patient in a hospital was placed in a wheelchair with his broken leg extended straight out in front of him. As a nurse employed by the hospital was pushing the wheelchair through a set of automatic doors at a normal pace, the doors closed on the patient’s foot, injuring it. The nurse attempted to pull the wheelchair back through the doors. This action caused the doors to close more tightly on the patient’s foot, injuring it further.

The patient sued the hospital, alleging improper maintenance of the doors. The patient has produced no evidence of specific conduct or neglect on the part of the hospital that would have caused the automatic doors to malfunction. The hospital has moved for summary judgment.

Should the court grant the hospital’s motion?

A. Yes, because proof of an accident, by itself, does not establish that an injured person was a victim of negligence.

B. Yes, because the nurse’s action was a superseding cause of the injury.

C. No, because a jury could find that there was a latent defect in the doors.

D. No, because a jury could find the hospital liable for negligence based on res ipsa loquitur.

Correct Answer: D. No, because a jury could find the hospital liable for negligence based on res ipsa loquitur.

Q38. Defense of Others — Battery and False Imprisonment

In a tavern, an intoxicated woman threatened to slash a man with a broken beer bottle. Another customer, who had not been threatened by the woman, forcefully grabbed the woman and locked her in the tavern storeroom until 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?

A. Yes, based on false imprisonment only.

B. Yes, based on battery only.

C. No, because the customer’s conduct was privileged as a defense of others.

D. Yes, based on both battery and false imprisonment.

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

Q39. Custom — Evidence of Negligence

A longshoreman fell to his death through an open hatch on the deck of a ship. The longshoreman was an employee of a company that had contracted with the ship’s owner to load and unload the ship. The fall occurred at night, when loading work was over for the day, and there was no reason for the longshoreman to have been near the hatch.

A negligence action was filed against the ship’s owner for the death of the longshoreman. In that action, the owner has moved for summary judgment and has provided unrebutted evidence that it is customary for the crews of ships to open the hatches for ventilation after the longshoremen have left the ships.

How should the court respond to the motion?

A. Grant the motion, because the custom should be considered conclusive on the issue of negligence.

B. Deny the motion and submit the case to the jury with instructions that the ship’s owner should win if the longshoreman was improperly near the hatch.

C. Deny the motion, because the probability of serious injury caused by falling down an open hatch clearly outweighs the burden of keeping the hatch closed.

D. Deny the motion and submit the case to the jury with instructions that the custom is relevant but not conclusive on the issue of negligence.

Correct Answer: D. Deny the motion and submit the case to the jury with instructions that the custom is relevant but not conclusive on the issue of negligence.

Q40. Strict Liability — Abnormally Dangerous Activities

A chemical company’s plant was located in a residential community. The manufacturing process used at the plant generated a toxic chemical as a byproduct. The chemical was stored in a state-of-the-art tank on the site before being moved to an off-site disposal facility. The on-site storage arrangement conformed to the requirements of reasonable care and to the applicable government regulations. However, the storage of the toxic chemical created a foreseeable and highly significant risk of physical harm even when reasonable care was exercised.

Despite the chemical company’s proper use and care of the storage tank, toxic fumes escaped from the tank and made residents of the area seriously ill.

No state or federal statutes address the issue of the company’s liability.

In an action by one of the affected residents against the chemical company, will the resident be likely to prevail?

A. Yes, because the storage of toxic chemicals in a residential community created a highly significant risk of physical harm even when reasonable care was exercised.

B. No, because the chemical company used a state-of-the-art storage tank.

C. Yes, because the chemical company is strictly liable in tort for any harm caused by the toxic chemicals it produced.

D. No, because the chemical company conformed to the requirements of reasonable care and to the applicable government regulations.

Correct Answer: D. No, because the chemical company conformed to the requirements of reasonable care and to the applicable government regulations.

Q41. Premises Liability — Duty to Warn and Known Conditions

While visiting his son’s home, a grandfather tripped on a toy left on the floor by his four-year-old grandson. The grandfather fell and was severely injured. The grandfather regularly visited his son’s home and was aware that the grandson routinely left toys scattered about the house. The son had never warned the grandfather to look out for toys.

The grandfather brought an action against his son to recover for his injuries, and both the grandfather and the son have moved for directed verdicts as to liability.

The jurisdiction has abolished intra-family immunity and applies the traditional rules of landowner liability.

What action should the court take?

A. Grant the grandfather’s motion, because the son is liable as a matter of law for failing to warn about the risk of toys being left on the floor.

B. Grant the son’s motion, because the son had no duty to warn that the grandson might leave toys on the floor.

C. Deny both motions and submit the case to the jury based on negligence.

D. Deny both motions and submit the case to the jury based on strict liability.

Correct Answer: B. Grant the son’s motion, because the son had no duty to warn that the grandson might leave toys on the floor.

Q42. Premises Liability — Trespassers

A farmer owns a large farm on which he allows his friends to hunt during quail-hunting season. He does not provide his friends with any instructions about gun safety. The neighbor who owns property adjacent to the farm knows of the friends’ use of the property during the hunting season. One day during the hunting season, without the farmer’s knowledge or permission, the neighbor took a shortcut across the farm to visit an acquaintance. The neighbor was wounded by a shot fired by one of the farmer’s friends, who was shooting at a quail and carelessly failed to see the neighbor.

Traditional rules of landowners’ and occupiers’ liability apply.

In an action by the neighbor against the farmer to recover for the injuries, will the neighbor be likely to prevail?

A. Yes, because the careless friend was permitted to hunt without safety training.

B. No, because the farmer is not responsible for his friends’ conduct.

C. Yes, because the use of firearms is an abnormally dangerous activity.

D. No, because the neighbor was trespassing.

Correct Answer: D. No, because the neighbor was trespassing.

Q43. Negligent Infliction of Emotional Distress (NIED)

After her husband died in a hospital, a widow directed the hospital to send her husband’s body to a funeral home for burial. The hospital negligently misidentified the husband’s body and sent it to be cremated. When she was informed of the hospital’s mistake, the widow suffered serious emotional distress. She has sued the hospital.

Is the hospital likely to be held liable to the widow?

A. No, because the widow did not witness the cremation.

B. Yes, because hospitals are strictly liable if they do not properly dispose of corpses.

C. No, because the widow was never in any danger of bodily harm.

D. Yes, because the negligent handling of the husband’s body was especially likely to cause his widow serious emotional distress.

Correct Answer: D. Yes, because the negligent handling of the husband’s body was especially likely to cause his widow serious emotional distress.

Q44. Concert of Action — Joint and Several Liability

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?

A. No, because the man was driving very carefully.

B. No, because the man did not cause the injury.

C. Yes, because the man and the woman were acting in concert in a dangerous activity.

D. Yes, because the man was exceeding the speed limit.

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

Q45. Private Nuisance — Coming to the Nuisance

A buyer bought a large, nicely kept house near a university campus. She was able to buy the house for a very good price because it was located directly across the street from a fraternity house known for its frequent late-night parties. The buyer knew of the fraternity’s reputation before she bought the house.

The reputation was well deserved, and the buyer found the noise from the parties extremely unpleasant and disruptive.

The buyer has asked an attorney for legal advice regarding a possible nuisance claim against the fraternity.

Which of the following would best express the applicable law?

A. “You will be able to recover damages in a nuisance action, because the late-night activities of the fraternity members violate your right to the quiet enjoyment of your property.”

B. “You have no nuisance claim, because the fraternity members have the right to use their property as they please.”

C. “You might have a nuisance claim, but the fact that you bought the house fully aware of the fraternity’s habitual late-night activities will count against your claim and could help defeat it.”

D. “You have no nuisance claim, because you came to the nuisance.”

Correct Answer: C. “You might have a nuisance claim, but the fact that you bought the house fully aware of the fraternity’s habitual late-night activities will count against your claim and could help defeat it.”