Torts as of January 20 2009

Question Review
Harley Barrales
Page 1
Question 68 Torts - Other Torts (1/18/2009)
You answered A. The correct answer is D.
The question was:
Leader is a labor leader in Metropolis. Ten years ago he was divorced. Both he and his first wife have since
married other persons. Recently, News, a newspaper in another city, ran a feature article on improper
influences it asserted had been used by labor officials to secure favorable rulings from government officials.
The story said that in 1960 Leader's first wife, with Leader's knowledge and concurrence, gave sexual favors
to the mayor of Metropolis and then persuaded him to grant concessions to Leader's union, with which
Metropolis was then negotiating a labor contract. The story named Leader and identified his first wife by her
former and current surnames. The reporter for News believed the story to be true, since it had been related to
him by two very reliable sources.
Leader's first wife suffered emotional distress and became very depressed. If she asserts a claim based on
defamation against News, she will
Answer A:
prevail, because the story concerned her personal, private life.
Answer B:
prevail if the story was false.
Answer C:
not prevail, because News did not print the story with knowledge of its falsity or with reckless disregard for its
truth or falsity.
Answer D:
not prevail if News exercised ordinary care in determining the story was true or false.
The explanation for the answer is:
D is correct. Leader's first wife is a private person suing for defamation on an issue of public concern. Since
first wife is not a public figure, she does not need to prove the New York Times (New York Times v. Sullivan)
standard of malice, but the Gertz (Gertz v. Robert Welch) standard: that News (1) published false information
and, that News (2) was negligent in investigating the accuracy of the information, resulting in (3) actual harm to
first wife. Consequently, D is the best answer because it gives the correct outcome if the plaintiff cannot meet
the Gertz burden of proof. C is incorrect because it gives the New York Times standard.
A is incorrect because the matter is of public concern and is therefore newsworthy, requiring the use of the
Gertz standard.
B is not the best answer because it is only the first element and plaintiff will not prevail on the fact that the story
was false unless she can also show that News was negligent in determining whether the story was true and,
that its negligence caused actual harm to first wife.

Question Review
Harley Barrales
Page 2
Question 69 Torts - Other Torts (1/14/2009)
Your answer is correct.
The question was:
In 1976, Utility constructed a new plant for the generation of electricity. The plant burns lignite, a low grade fuel
which is available in large quantities.
Although the plant was constructed in accordance with the best practicable technology, the plant emits a
substantial quantity of invisible fumes. The only way Utility can reduce the fumes is by the use of scrubbing
equipment that would cost $50,000,000 to install and would increase the retail price of generated electricity by
50 percent while reducing the volume of fumes by only 20 percent. Because of the expense of such equipment
and its relative ineffectiveness, no other generating plants burning lignite use such equipment.
The plant was located in a sparsely settled rural area, remote from the large city served by Utility.
Farmer owned a farm adjacent to the plant. He had farmed the land for forty years and lived on the premises.
The prevailing winds carried fumes from the new plant over Farmer's land. His 1975 crop was less than half
the average size of this crop over the five years immediately preceding the construction of the plant. It can be
established that the fumes caused the crop reduction.
Farmer's hay fever, from which he had long suffered, became worse in 1976. Physicians advised him that the
lignite fumes were affecting it and that serious lung disease would soon result unless he moved away from the
plant. He did so, selling his farm at its reasonable market value, which was then $10,000 less than before the
construction of the plant.
If Farmer asserts a claim based on nuisance against Utility for damages for personal injuries, will Farmer
prevail?
Answer A:
No, because there is no practicable way for Utility to reduce the fumes.
Answer B:
No, because Utility's acts constituted a public nuisance.
Answer C:
Yes, because Farmer's personal injuries were within the scope of the liability imposed on Utility.
Answer D:
Yes, because the generation of electricity is an ultra-hazardous activity.
The explanation for the answer is:
C is correct. This answer can be reached through the process of elimination. A does not address the facts -
farmer has already sold his farm. Likewise for D. That leaves B and C. B is inaccurate because although public
nuisances generally must be prosecuted by public authorities, action against a public nuisance is possible by a
private party if (1) the public nuisance is also a private nuisance in that it substantially and unreasonably
diminishes the private use and enjoyment of the plaintiff's land, or (2) the public nuisance causes a special
harm to plaintiff that differs from the general harm to the public. The facts, however, pointedly state that Utility
built plant far from the city, but it was adjacent to Farmer's land. This is a private nuisance situation, which
leaves C. Private nuisance is defined as a condition or activity that interferes with the possessor's use and
enjoyment of his land to such an extent that the landowner cannot reasonably be expected to bear without
compensation. The scope of interference is personal discomfort to the occupants and/or tangible harm to land
resulting in a diminution of its market value. Farmer's damages fall within this scope of nuisance liability and he
should prevail.

Question Review
Harley Barrales
Page 3
Question 603 Torts - Other Torts (12/16/2008)
Your answer is correct.
The question was:
Doe, the governor of State, signed a death warrant for Rend, a convicted murderer. Able and Baker are active
opponents of the death penalty. At a demonstration protesting the execution of Rend, Able and Baker carried
large signs that state, "Governor Doe - Murderer." Television station XYZ broadcast news coverage of the
demonstration, including pictures of the signs carried by Able and Baker.
If Governor Doe asserts a defamation claim against XYZ, will Doe prevail?
Answer A:
Yes, because the signs would cause persons to hold Doe in lower esteem.
Answer B:
Yes, if Doe proves that XYZ showed the signs with knowledge of falsity or reckless disregard of the truth that
Doe had not committed homicide.
Answer C:
No, unless Doe proves he suffered pecuniary loss resulting from harm to his reputation proximately caused by
the defendants' signs.
Answer D:
No, if the only reasonable interpretation of the signs was that the term "murderer" was intended as a
characterization of one who would sign a death warrant.
The explanation for the answer is:
D is the correct answer. This is a tricky question that can be answered by process of elimination. Doe is a
governor, which makes him a public figure. A public figure cannot prevail in a claim for defamation unless
malice is shown. Malice is defined as making a false statement with knowledge or in reckless disregard of its
truth or falsity. Therefore, A and C can be eliminated immediately because they do not deal with the test a
public figure must meet. (C is incorrect for a number of reasons. TV broadcasts tend to be treated as libel,
which would mean special damages are not necessary. Even as a test for slander, however, this choice is
incorrect because the accusation is a criminal one. A criminal accusation is slander per se and does not need
proof of special damages to prevail). B can also be discarded because, while it states the test for malice, it
misstates the facts of the question. Doe is the plaintiff. He is being called a murderer for signing off on Rend's
(a convicted murderer) death sentence. The issue of homicide, while relevant, is not accurate under the facts.
That leaves D, which approaches the question's real issue of whether a defamatory meaning is understood. A
claim for defamation must prove that the defendant was at fault; that the information was a false and
defamatory communication of fact about the plaintiff, published to a third person who understood it was
defamatory and which, as a result, caused harm to the plaintiff. Facts indicate that the news broadcast is
covering opponents of the death penalty who are protesting under free speech rights against a public figure
and a policy. To prevail in defamation, a finding must be made that there is no innocent interpretation of the
term 'murderer.' Therefore, D is the best answer and A, B and C are incorrect.

Question Review
Harley Barrales
Page 4
Question 769 Torts - Other Torts (1/13/2009)
You answered A. The correct answer is C.
The question was:
Jones and Smith, who were professional rivals, were attending a computer industry dinner where each was to
receive an award for achievement in the field of data processing. Smith engaged Jones in conversation and
expressed the opinion that if they joined forces, they could do even better. Jones replied that she would not
consider Smith as a business partner and when Smith demanded to know why, told him that he, Smith, was
incompetent. The exchange was overheard by Brown, who attended the dinner. Smith suffered emotional
distress but no pecuniary loss. If Smith asserts a claim against Jones based on defamation, will Smith prevail?
Answer A:
No, because Smith suffered no pecuniary loss.
Answer B:
No, because Jones's statement was made to Smith and not to Brown.
Answer C:
No, unless Jones should have foreseen that her statement would be overheard by another person.
Answer D:
No, unless Jones intended to cause Smith emotional distress.
The explanation for the answer is:
C is the correct answer. Smith and Jones were two private individuals engaging in a personal conversation
about a matter of Smith's business competence. While facts state that Jones' statement was made to him
alone as part of the conversation, their conversation took place in a room filled with professionals in the same
line of work as Smith and Jones. A claim for defamation between private parties must meet a negligence
standard. Smith must prove that Jones was at fault; that her statement about him was a false and defamatory
communication of fact, published knowingly or foreseeably to a third person who understood it was defamatory
and which, as a result, caused harm to Smith. Smith does not need to show Jones intended to cause him
emotional distress. Thus D is incorrect. Because the statement was verbal (slander), Smith would also
normally need to plead and prove special damages (pecuniary). Jones' comment fell into one of four
categories of exceptions, however, which do not require special damages. Thus A is incorrect. (Exceptions
include allegations regarding (1) criminal activity; (2) misconduct or incompetence in plaintiff's trade or
occupation; (3) sexual misconduct; and (4) plaintiff having a "loathsome" disease.) Choices B and C
appropriately address the determinative issue of publication, but C utilizes the negligence standard, which is
the correct test under the facts. A, B and D are incorrect.

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Page 5
Question 772 Torts - Other Torts (1/12/2009)
You answered A. The correct answer is C.
The question was:
The Pinners, a retired couple, had lived in their home in a residential neighborhood for 20 years when the
Darleys moved into the house next door and built a swimming pool in the back yard. The four young Darley
children frequently played in the pool after school. They often were joined by other neighborhood children. The
Pinners were in the habit of reading and listening to classical music in the afternoons. Sometimes they took
naps. The boisterous sounds of the children playing in the pool disturbed the Pinners' customary enjoyment of
quiet afternoons.
In the Pinners' nuisance action for damages against the Darleys, the Pinners should
Answer A:
prevail, if the children's noise constituted a substantial interference with the Pinner's use and enjoyment of
their home.
Answer B:
prevail, because the Pinners' interest in the quiet enjoyment of their home takes precedence in time over the
Darleys' interests.
Answer C:
not prevail, unless the noise constituted a substantial and unreasonable disturbance to persons of
normal sensibilities.
Answer D:
not prevail, because the children's interest in healthy play has priority over the Pinners' interest in peace and
quiet.
The explanation for the answer is:
C is the correct answer. Private nuisance is defined as a substantial, unreasonable interference with another
private individual's use or enjoyment of their own property. Substantial interference is something that would be
offensive, inconvenient, or annoying to an average person of the same community.
Unreasonable interference is determined by balancing the severity of the injury against the utility of the
defendant's conduct. Choice A is incorrect because nuisance is measured to an objective standard- the
Darley's behavior must constitute a substantial interference to the reasonable person, not just to the Pinner's.
Choice B and D are incorrect because one side would not automatically trump another, rather a balancing test
would be applied. Choice C is correct because it takes into account the correct standard, the balancing test
that would be applied, and is a determinable element for a nuisance action.

Question Review
Harley Barrales
Page 6
Question 907 Torts - Other Torts (1/9/2009)
Your answer is correct.
The question was:
Dumont, a real estate developer, was trying to purchase land on which he intended to build a large commercial
development. Perkins, an elderly widow, had rejected all of Dumont's offers to buy her ancestral home, where
she had lived all her life and which was located in the middle of Dumont's planned development. Finally,
Dumont offered her $250,000. He told her that if she rejected it, state law authorized him to have her property
condemned.
Perkins then consulted her nephew, a law student, who researched the question and advised her that Dumont
had no power of condemnation under state law. Perkins had been badly frightened by Dumont's threat, and
was outraged when she learned that Dumont had lied to her.
If Perkins asserts a claim based on misrepresentation against Dumont, will she prevail?
Answer A:
Yes, if Dumont knew he had no legal power of condemnation.
Answer B:
Yes, if Dumont tried to take unfair advantage of a gross indifference between himself and Perkins in
commercial knowledge and experience.
Answer C:
No, if Dumont's offer of $250,000 equaled or exceeded the market value of Perkins's property.
Answer D:
No, because Perkins suffered no pecuniary loss.
The explanation for the answer is:
D is the correct answer. In her claim for misrepresentation against Dumont, Perkins will have to prove that
Dumont made a misrepresentation of a material fact for the purpose of inducing Perkins to rely on the
misrepresentation to her detriment. Dumont's claim that he could have the widow's property condemned and
confiscated for his development was clearly a false statement made to induce the widow to sell her land to
him. Perkins did not, however, sell. Instead she contacted her nephew to verify Dumont's claim. Since she did
not rely on Dumont's misrepresentation, she was not harmed and her claim will not prevail. D is the best
choice because it is the only element that is not met by the facts. Thus, A is incorrect.
B is incorrect. Dumont did try to take advantage of Perkins by misrepresenting the law. A claim for
misrepresentation of law, however, must be premised upon the solicited confidence of the party defrauded or if
the party misrepresenting the law stands in a fiduciary-type of special relationship with the plaintiff. Dumont
was never in a position of trust and confidence with Perkins. This is not a claim for misrepresentation of law.
C is not the issue. Even if Dumont offered Perkins fair value for her property, the issue is that he
misrepresented his power to obtain her land without her consent as a means of inducing her to sell to him.

Question Review
Harley Barrales
Page 7
Question 969 Torts - Other Torts (1/16/2009)
You answered A. The correct answer is B.
The question was:
Allen and Bradley were law school classmates who had competed for the position of editor of the law review.
Allen had the higher grade point average, but Bradley was elected editor, largely in recognition of a long and
important note that had appeared in the review over her name. During the following placement interview
season, Allen was interviewed by a representative of a nationally prominent law firm. In response to the
interviewer's request for information about the authorship of the law review note, Allen said that he had heard
that the note attributed to Bradley was largely the work of another student. The firm told Bradley that it would
not interview her because of doubts about the authorship of the note. This greatly distressed Bradley. In fact
the note had been prepared by Bradley without assistance from anyone else. If Bradley asserts a claim against
Allen based on defamation, Bradley will
Answer A:
recover, because Allen's statement was false.
Answer B:
recover, if Allen had substantial doubts about the accuracy of the information he gave the interviewer.
Answer C:
not recover, unless Bradley proves pecuniary loss.
Answer D:
not recover, because the statement was made by Allen only after the interviewer inquired about the authorship
of the note.
The explanation for the answer is:
B is the correct answer. The facts indicate clearly that Allen made a false statement about Bradley, which was
published to a potential employer, and which damaged Bradley. The issue is what level of proof Bradley needs
to prevail in her claim. Bradley and Allen are, at first glance, private parties. Allen, however, is speaking to a
potential employer and within his position as a member of the law review staff. As such, Allen will most likely
be found to have had a conditional privilege to talk about Bradley's authorship during his job interview. Bradley
can only overcome conditional privilege if she can show Allen made the statement with knowledge that it was
false or with reckless disregard for its truth. (Thus A is incorrect.) Recklessness is shown by providing
sufficient evidence to permit a finding that Allen in fact entertained serious doubts about the truth of his
allegation as he made it. A is incorrect. C is incorrect. A claim for slander generally requires special proof of
pecuniary damages. The allegation against Bradley, however, is one of trade or professional misconduct, and
special damages are presumed. D is incorrect. The question by the interviewer triggered the conditional
privilege, but the privilege is not absolute. Bradley will still prevail if she can show that Allen made the
statement with knowledge or in reckless disregard of its truth or falsity.

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Harley Barrales
Page 8
Question 1075 Torts - Other Torts (1/18/2009)
You answered D. The correct answer is C.
The question was:
When Parents were told that their child, Son, should repeat second grade, they sought to have him evaluated
by a psychologist. The psychologist, who charged $300, determined that Son had a learning disability. Based
upon the report, the school board placed Son in special classes. At an open meeting of the school board,
Parents asked that the $300 they had paid to the psychologist be reimbursed by the school district. A reporter
attending the meeting wrote a newspaper article about this request, mentioning Son by name. In a privacy
action brought by Son's legal representative against the newspaper, the plaintiff will
Answer A:
recover, because the story is not newsworthy.
Answer B:
recover, because Son is under the age of consent.
Answer C:
not recover, if the story is a fair and accurate report of what transpired at the meeting.
Answer D:
not recover, if Parents knew that the reporter was present.
The explanation for the answer is:
C is the correct answer. While the call of the question does not specify which claim it intends, there are only
two possible privacy torts available under the facts. The first is defamation, which is defendant's false and
defamatory communication of fact, published knowingly or foreseeably to a third person who understood it was
defamatory and which, as a result, caused harm to the plaintiff. Truth, however, is an absolute defense to
defamation. The second claim would be for public disclosure of private facts. To prevail, the plaintiff must show
that the defendant gave publicity to a matter concerning the private life of the plaintiff that was highly offensive
to a reasonable person and which is not of legitimate public concern. This tort does not require that the
information be false, only offensive and non-newsworthy. The facts do not indicate that the information was
offensive such that it would violate ordinary decency standards. The facts also state that the school board
meeting was "open;" which would make the child's name a matter of public record. (Thus D is incorrect.) The
Supreme Court has held that a newspaper cannot be held liable for publicizing a name that is a matter of
public record. (Thus B is incorrect.) Choice A is not the best choice because it only addresses the
newsworthiness issue but not the element of offensiveness. C is the better response because it addresses the
most likely cause of action, defamation, but would be an appropriate response for either claim. A, B and D are
incorrect.

Question Review
Harley Barrales
Page 9
Question 1099 Torts - Other Torts (1/16/2009)
Your answer is correct.
The question was:
Farmer owns a small farm with several head of cattle, which are kept in a fenced grazing area. One day the
cattle were frightened by a thunderstorm, an occasional occurrence in the area. The cattle broke through the
fence, entered onto Neighbor's property, and severely damaged Neighbor's crops. Under the law of the state,
landowners are not required to erect fences to prevent the intrusion of livestock.
If Neighbor sues Farmer to recover for the damage done to his crops, will Neighbor prevail?
Answer A:
Yes, because Farmer's cattle caused the damage to Neighbor's crops.
Answer B:
Yes, if Farmer's cattle had panicked during previous thunderstorms.
Answer C:
No, unless the fence was negligently maintained by Farmer.
Answer D:
No, because the thunderstorm was a force of nature.
The explanation for the answer is:
A and C were both given credit by the Examiners. The difference in answers reflects the different ways
trespassing cattle have been treated in jurisdictions across America. Many courts today allow a plaintiff to
assert her claim under either a negligence, or strict liability theory, or both.
Some states required landowners bordering cattle grazing lands to erect fences by passing "fence-out"
statutes; as a result, those states would only hold the cattle owner liable for intentionally driving his cattle onto
the land of another, but not in strict liability or negligence. C addresses the fact pattern statement that
Neighbor was not required to erect a fence to prevent intrusions by cattle, leading to the inference that Farmer
was.
Others required cattle owners to protect crop-growers from cattle trespass, creating strict liability. A reflects the
common law response to a livestock trespass.
B is incorrect. Despite the fact that the Restatement (Second) classifies cattle as domestic animals, thus
making Farmer liable only for an intentional tort or ordinary negligence, strict liability would still be imposed
upon Farmer for a foreseeable harm resulting from a known, (by the farmer) abnormally dangerous propensity
by his cattle. The propensity would have to be beyond what is considered normal behavior for cattle in general.
This standard is irrelevant under the facts of this question, which does not indicate that the behavior of the
cattle was abnormal and thus a dangerous propensity.
D is incorrect. The thunderstorm was not a superseding "Act of God" that will cut short Farmer's liability for the
actual damages caused by his cattle. The facts indicate that storms were an "occasional occurrence." The
storms were not unforeseeable. The determinative issue is whether Farmer's fence was constructed to
adequately confine his cattle, despite their agitation. If not, Farmer would be liable under a claim for
negligence. In a claim for strict liability, Neighbor would prevail in an action for his actual crop damages.

Question Review
Harley Barrales
Page 10
Question 3 Torts - Intentional Torts (1/14/2009)
Your answer is correct.
The question was:
Lender met Borrower on the street, demanded that Borrower pay a debt owed to Lender, and threatened to
punch Borrower in the nose. A fight ensued between them. Mann came upon the scene just as Lender was
about to kick Borrower in the head. Noting that Lender was getting the better of the fight, Mann pointed a gun
at Lender and said, "Stop, or I'll shoot." If Lender asserts a claim against Mann based on assault, will Lender
prevail?
Answer A:
Yes, because Mann threatened to use deadly force.
Answer B:
Yes, unless Mann was related to Borrower.
Answer C:
No, if it was apparent that Lender was about to inflict serious bodily harm upon Borrower.
Answer D:
No, because Lender was the original aggressor by threatening Borrower with a battery.
The explanation for the answer is:
C is the best answer. Mann has a privilege to defend Borrower as long as Mann reasonably believes that
Borrower would also have the privilege of self-defense. In addition, the use of force in defense of another
cannot exceed the force that the victim is being threatened with. The key issue here is whether Mann's use of
threatened deadly force (the gun) to defend against a kick by Lender would exceed that privilege. C is the best
answer because it clearly follows the test that Mann must meet to justify his use of deadly force.
A is incorrect. Mann's threat alone will not cause Lender to prevail because Mann can assert the privilege of
defense of another, which, if successful, would negate Mann's liability.
B is not the best answer. B refers to the now largely obsolete requirement that only family members or those
with a special duty to protect the victim were allowed the privilege of defense. Today anyone with a reasonable
belief in the victim's imminent harm is privileged to intervene.
D is incorrect because it incompletely states the rule of self-defense. Lender could still have brought a claim if
Lender had retreated and Borrower subsequently became the aggressor. Remember to choose an answer that
most closely deals with the rule as applied to the facts given.

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Harley Barrales
Page 11
Question 13 Torts - Intentional Torts (1/11/2009)
Your answer is correct.
The question was:
Professor Merrill, in a lecture in her psychology course at a private university, described an experiment in
which a group of college students in a neighboring city rushed out and washed cars stopped at traffic lights
during rush hour. She described how people reacted differently-with shock, joy, and surprise. At the conclusion
of her report, she said, "You understand, of course, that you are not to undertake this or any other experiment
unless you first clear it with me." Four of Merrill's students decided to try the same experiment but did not clear
it with Merrill.
One subject of their experiment, Carr said, "I was shocked. There were two people on each side of the car. At
first I thought negatively. I thought they were going to attack me and thought of driving away. Then I quieted
down and decided there were too many dirty cars in the city anyway."
Charitable immunity has been abolished in the jurisdiction.
If Carr asserts a claim against the students who washed his car, his best theory is
Answer A:
assault.
Answer B:
negligence.
Answer C:
invasion of privacy.
Answer D:
false imprisonment.
The explanation for the answer is:
A is correct as it most closely resembles the facts given. Here, the key words are "I thought they were going to
attack me." Apprehension of imminent harm is the issue. The facts do not fit any other cause of action and the
call of the question pointedly asks for a theory against the students, not the university.
B is incorrect. Carr is asserting a claim against the students, so there are no grounds for vicarious liability.
Instead, Carr would need to show a duty on the part of the students not to act in a way that would cause the
unreasonable risk of foreseeable harm to Carr. There must then be breach of that duty, causation, harm and
damages. There was no harm done to Carr. The question asks for the best theory, and the elements of assault
are much more easily and clearly met.
C is not correct. The only possible privacy tort applicable would be intrusion into seclusion, which does not
require harm or publication - only offensive intrusion upon the solitude of another. While Carr was alone in the
vehicle, the facts state that the experiment took place at stoplights during rush hour; a time and place when
privacy in one's car (if ever) would not be expected by the reasonable person. It is not the best theory
available.
D is not the best answer. Carr was not falsely imprisoned. Note the key words "I thought of driving away."
False imprisonment requires belief that one is confined and, consequently,is not the best theory available to
Carr.

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Harley Barrales
Page 12
Question 14 Torts - Intentional Torts (1/18/2009)
Your answer is correct.
The question was:
Professor Merrill, in a lecture in her psychology course at a private university, described an experiment in
which a group of college students in a neighboring city rushed out and washed cars stopped at traffic lights
during rush hour. She described how people reacted differently-with shock, joy, and surprise. At the conclusion
of her report, she said, "You understand, of course, that you are not to undertake this or any other experiment
unless you first clear it with me." Four of Merrill's students decided to try the same experiment but did not clear
it with Merrill.
One subject of their experiment, Carr said, "I was shocked. There were two people on each side of the car. At
first I thought negatively. I thought they were going to attack me and thought of driving away. Then I quieted
down and decided there were too many dirty cars in the city anyway."
Charitable immunity has been abolished in the jurisdiction.
If Carr has a valid claim against the students, will he also prevail against the university?
Answer A:
Yes, if the students would not have performed the experiment but for Merrill's lecture.
Answer B:
Yes, if Carr's claim against the students is based on negligence.
Answer C:
No, because the students were not Merrill's employees.
Answer D:
No, because Merrill did not authorize the car wash as a class project.
The explanation for the answer is:
D is the best response. The call of the question asks for possible vicarious liability claims against the
university. Of the various theories available to Carr, none match the facts that are given. The students were
not employees or agents of the university and were not authorized or substantially encouraged to try the
experiment without first clearing it with the professor.
A is incorrect. These are college students and there are no facts raising the issue of undue influence or
substantial encouragement. The students are responsible for their own actions.
B will fail. This answer alludes to the understanding that most respondeat superior claims against employers
for the intentional torts of their employees will fail unless the employment itself includes a proclivity for the act
in question or if the employer knew of the employee's propensity for the particular type of wrongful conduct but
failed to act. This is a red-herring. Neither situation fits the facts of this question. These are college students,
not employees, and they were not authorized or encouraged by the university (through the professor) to do the
experiment. The elements of duty, breach, causation and damages, even if met, would not incur vicarious
liability here.
C is not the best answer. While it is correct, it is also incomplete as there could have been vicarious liability if
the professor had knowingly provided substantial encouragement to the students' actions. The professor would
also have had to know that the actions intended were tortious; a claim which the facts of this question do not
support.

Question Review
Harley Barrales
Page 13
Question 495 Torts - Intentional Torts (1/11/2009)
You answered C. The correct answer is A.
The question was:
When Denton heard that his neighbor, Prout, intended to sell his home to a minority purchaser, Denton told
Prout that Prout and his wife and children would meet with "accidents" if he did so. Prout then called the
prospective purchaser and told him that he was taking the house off the market.
If Prout asserts a claim against Denton for intentional infliction of emotional distress Prout will
Answer A:
recover if Prout suffered severe emotional distress as a consequence of Denton's conduct.
Answer B:
recover, because Denton intended to frighten Prout.
Answer C:
not recover, because Denton made no threat of immediate physical harm to Prout or his family.
Answer D:
not recover if Prout suffered no physical harm as a consequence of Denton's conduct.
The explanation for the answer is:
A is the correct answer. The elements of intentional infliction of emotional distress are: (1) defendant's
intentional (with purpose or knowledge to a substantial certainty) or recklessly (2) extreme and outrageous
conduct (3) causes plaintiff severe emotional distress. Severe emotional distress can be evidenced physically,
but is not required. (Thus D is incorrect.) Facts clearly indicate that Denton's threats were intentional as well as
extreme and outrageous. The issue would then be if Prout suffered severe emotional distress as a result of
Denton's conduct. A appropriately addresses this issue. D is incorrect. B is a true statement, but not the best
answer as it does not address the issue of this question, which is whether the intentional statements caused
Prout severe emotional distress. Facts clearly indicate that Denton's threats were intentional as well as
extreme and outrageous. C is not the correct answer. The apparent present ability to carry out a threat is an
element of assault and the call of the question here is for intentional infliction of emotional distress.

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Question 765 Torts - Intentional Torts (1/12/2009)
Your answer is correct.
The question was:
In the course of a bank holdup, Robber fired a gun at Guard. Guard drew his revolver and returned the fire.
One of the bullets fired by Guard ricocheted, striking Plaintiff. If Plaintiff asserts a claim against Guard based
upon battery, will Plaintiff prevail?
Answer A:
Yes, unless Plaintiff was Robber's accomplice.
Answer B:
Yes, under the doctrine of transferred intent.
Answer C:
No, if Guard fired reasonably in his own defense.
Answer D:
No, if Guard did not intend to shoot Plaintiff.
The explanation for the answer is:
C is the correct answer. A person has the privilege to use deadly force in defense of self if he has the
reasonable belief that he is being attacked with deadly force. The facts state that Robber shot his gun at
Guard. Guard's response was therefore privileged with regard to firing back at Robber. Since the original
privilege is valid, Guard will be shielded from liability for the battery to Plaintiff through the doctrine of
transferred privilege. Transferred privilege applies as a defense when, in the reasonable exercise of
self-defense by the defendant, a third party is accidentally injured. Choice A is a reference to criminal law and
not the best answer. Thus, A, B and D are incorrect.

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Page 15
Question 783 Torts - Intentional Torts (1/12/2009)
You answered D. The correct answer is C.
The question was:
Peavey was walking peacefully along a public street when he encountered Dorwin, whom he had never seen
before. Without provocation or warning, Dorwin picked up a rock and struck Peavey with it. It was later
established that Dorwin was mentally ill and suffered recurrent hallucinations. If Peavey asserts a claim
against Dorwin based on battery, which of the following, if supported by evidence, will be Dorwin's best
defense?
Answer A:
Dorwin did not understand that his act was wrongful.
Answer B:
Dorwin did not desire to cause harm to Peavey.
Answer C:
Dorwin did not know that he was striking a person.
Answer D:
Dorwin thought Peavey was about to attack him.
The explanation for the answer is:
C is the correct answer. Mental disability does not generally provide immunity for intentionally tortious conduct.
The call of the question is which supported claim would be Dorwin's best defense. The issue, however, is
which of the defenses addresses whether Dorwin had formed the intent necessary to complete the battery. If
Dorwin threw the rock with the purpose to hit Peavey or with the knowledge that he would hit Peavey with the
rock, he has formed intent, irrespective of his understanding or motive. The only defense that has a chance of
prevailing is one where Dorwin did not intend to hit Peavey at all. Thus C is the best choice and A, B and D are
incorrect.

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Page 16
Question 984 Torts - Intentional Torts (1/16/2009)
Your answer is correct.
The question was:
Neighbor who lived next door to Homeowner, went into Homeowner's garage without permission and borrowed
Homeowner's chain saw. Neighbor used the saw to clear broken branches from the trees on Neighbor's own
property. After he had finished, Neighbor noticed several broken branches on Homeowner's trees that were in
danger of falling on Homeowner's roof. While Neighbor was cutting Homeowner's branches, the saw broke. In
a suit for conversion by Homeowner against Neighbor, will Homeowner recover?
Answer A:
Yes, for the actual damage to the saw.
Answer B:
Yes, for the value of the saw before Neighbor borrowed it.
Answer C:
No, because when the saw broke Neighbor was using it to benefit Homeowner.
Answer D:
No, because Neighbor did not intend to keep the saw.
The explanation for the answer is:
B is the correct answer. The call of the question gives a claim for conversion. Conversion occurs when the
defendant's trespass on the plaintiff's property interest is substantial and amounts to an act of
ownership/dominion. Neighbor took the saw without permission, which was a trespass to chattels. (Thus D is
incorrect) When Neighbor broke the saw, Neighbor became liable to Homeowner for the market value of the
saw before it was taken from Homeowner's garage. It is irrelevant that, at the time the saw broke, Neighbor
was cutting branches from Homeowner's trees, an action which may give rise to a claim for trespass to
chattels, as well. (Thus C is incorrect.) If Neighbor had not broken the saw, the claim would have only been for
trespass to chattels, which would have entitled Homeowner to actual damages, not market value. (Thus A is
incorrect). A, C and D are incorrect.

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Question 995 Torts - Intentional Torts (1/16/2009)
You answered D. The correct answer is B.
The question was:
Karen was crossing Main Street at a crosswalk. John, who was on the sidewalk nearby, saw a speeding
automobile heading in Karen's direction. John ran into the street and pushed Karen out of the path of the car.
Karen fell to the ground and broke her leg.
In an action for battery brought by Karen against John, will Karen prevail?
Answer A:
Yes, because John could have shouted a warning instead of pushing Karen out of the way.
Answer B:
Yes, if Karen was not actually in danger and John should have realized it.
Answer C:
No, because the driver of the car was responsible for Karen's injury.
Answer D:
No, if John's intent was to save Karen, not to harm her.
The explanation for the answer is:
B is the correct answer. John acted intending to push Karen regardless of why he intended to push her. That
push resulted in a harmful touch, thus John is liable for battery- D is incorrect. The issue that makes B the
correct answer is whether John was privileged to push Karen for her own safety. A person is privileged to use
a reasonable force to protect another so long as the "batterer" reasonably believes there is a threat to the
other person's safety that requires touching to remove her from harm's way. Therefore, A is incorrect- under
the facts of the hypo, a speeding car was headed for Karen and push was the only thing that would get her out
of the way, thus John's actions would be privileged. However, if John's belief was not reasonable, as shown
with the additional fact supplied by answer B, he has no privilege and will be liable for battery. Thus B is the
best choice and A and D are incorrect.
C is incorrect. The actions of the car driver will not cut short John's liability for an intentional harmful or
offensive touching. Only John's own privilege will do that.

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Question 998 Torts - Intentional Torts (1/11/2009)
Your answer is correct.
The question was:
Perry suffered a serious injury while participating in an impromptu basketball game at a public park. The injury
occurred when Perry and Dever, on opposing teams, each tried to obtain possession of the ball when it
rebounded from the backboard after a missed shot at the basket. During that encounter, Perry was struck and
injured by Dever's elbow. Perry now seeks compensation from Dever.
At the trial, evidence was introduced tending to prove that the game had been rough from the beginning, that
elbows and knees had frequently been used to discourage interference by opposing players, and that Perry
had been one of those making liberal use of such tactics.
In this action, will Perry prevail?
Answer A:
Yes, if Dever intended to strike Perry with his elbow.
Answer B:
Yes, if Dever intended to cause harmful or offensive contact with Perry.
Answer C:
No, because Perry impliedly consented to rough play.
Answer D:
No, unless Dever intentionally used force that exceeded the players' consent.
The explanation for the answer is:
D is correct. Perry and Dever were voluntarily participating in a basketball game that "had been rough from the
beginning." By taking part in the physically interactive basketball game, Perry gave his implied consent to
conduct that, outside the game, might have otherwise been considered a harmful or offensive intentional
touching. That consent, however, is limited to ordinary game conduct. If Dever's intentional touch used a level
of force that fell outside ordinary gamesmanship among the group of players, then he exceeded his privilege
and Perry will prevail. Thus, A, B and C are incorrect.

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Question 20 Torts - Negligence (1/18/2009)
Your answer is correct.
The question was:
Passer was driving his pickup truck along a lonely road on a very cold night. Passer saw Tom, who was a
stranger, lying in a field by the side of the road and apparently injured. Passer stopped his truck, alighted, and,
upon examining Tom, discovered that Tom was intoxicated and in danger of suffering from exposure to the
cold. However, Passer returned to his truck and drove away without making any effort to help Tom. Tom
remained lying at the same place and was later injured when struck by a car driven by Traveler, who was
drowsy and inattentive, had veered off the road into the field and hit Tom. Traveler did not see Tom prior to
hitting him.
If Tom asserts a claim against Passer for damages for his injuries, will Tom prevail?
Answer A:
Yes, because by stopping and examining Tom, Passer assumed a duty to aid him.
Answer B:
Yes, if a reasonably prudent person under the circumstances would have aided Tom.
Answer C:
No, if Passer did not, in any way, make Tom's situation worse.
Answer D:
No, because Tom himself created the risk of harm by becoming intoxicated.
The explanation for the answer is:
C is correct. There is no general duty to render aid to another. The exceptions to this include (1) if Passer had
caused the original harm to the victim; (2) if Passer had a special duty (such as husband to wife or parent to
child) that imposed an affirmative duty to aid victim; or (3) if Passer had affirmatively acted in some way to aid
the victim, thus undertaking a duty to aid. The facts state that Passer "examined" Tom, but "left him lying in the
same place." Passer did not affirmatively act to make Tom's situation worse; and thus, did not undertake a
duty to aid him. Without a special duty, simply stopping to see who is on the side of the road does not give rise
to a duty to aid, so A is incorrect. Without a duty to aid, a claim for negligence must fail, precluding the need to
assert a contributory negligence defense, so D is also incorrect. C addresses the issue of duty, which must be
met before considering any other negligence element, which makes it the best answer.
B is incorrect. This answer simply states the ordinary person standard of care, which does not apply to the
Good Samaritan rule. If Passer had undertaken to help Tom, then he would have had a duty to act with
reasonably prudent care in aiding Tom, but since Passer did not, this answer is not relevant to the issue being
addressed.

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Page 20
Question 22 Torts - Negligence (1/11/2009)
Your answer is correct.
The question was:
Roofer entered into a written contract with Orissa to repair the roof of Orissa's home, the repairs to be done "in
a workmanlike manner." Roofer completed the repairs and took all of his equipment away, with the exception
of a 20-foot extension ladder, which was left against the side of the house. He intended to come back and get
the ladder the next morning. At that time, Orissa and her family were away on a trip. During the night, a thief,
using the ladder to gain access to an upstairs window, entered the house and stole some valuable jewels.
Orissa has asserted a claim against Roofer for damages for the loss of the jewels.
In her claim against Roofer, Orissa will
Answer A:
prevail, because by leaving the ladder Roofer became a trespasser on Orissa's property.
Answer B:
prevail, because by leaving the ladder, Roofer created the risk that a person might unlawfully enter the
house.
Answer C:
not prevail, because the act of the thief was a superseding cause.
Answer D:
not prevail, because Orissa's claim is limited to damages for breach of contract.
The explanation for the answer is:
B is correct. Generally an intentional tort, such as theft, is a superseding action that breaks off liability in a
negligence analysis, unless the negligent act's foreseeable consequences include the same type of intentional
or criminal acts. The ladder was left upright against a home where the family was away on a trip, in plain view
for any thief to see. Roofer had a duty of ordinary care to remove his equipment, and it was certainly
foreseeable that leaving the ladder at an unoccupied home would potentially result in its use as the
instrumentality for a break-in. The burden to remove the ladder was slight compared to the potential severity of
the harm. Because Roofer created a foreseeable risk, his liability is not cut off by Thief's intentional intervening
act. Therefore, C is incorrect.
A is incorrect. Roofer did not become a trespasser by leaving the ladder on Orissa's property. His license to be
on the property did not expire until his job was completed, which would include removal of his equipment.
Thus, the issue of whether Roofer has a trespasser's liability for any damage caused to Orissa's property does
not apply.
D is meant to distract and confuse. This is not a contracts issue. The contract involved the making of repairs to
the roof. Those repairs, according to the fact pattern, were completed, so despite the red-herring phrase
"workmanlike manner," breach of contract is not in issue here. Negligence by the Roofer during the removal of
his equipment is.

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Question 87 Torts - Negligence (1/16/2009)
Your answer is correct.
The question was:
Sand Company operated an installation for distributing sand and gravel. The installation was adjacent to a
residential area. On Sand's grounds there was a chute with polished metal sides for loading sand and gravel
into trucks. The trucks being loaded stopped on the public street below the chute.
After closing hours, a plywood screen was placed in the chute and the ladder used for inspection was removed
to another section of the installation. For several months, however, a number of children, 8 to 10 years of age,
had been playing on Sand's property and the adjoining street after closing hours. The children found the ladder
and also discovered that they could remove the plywood screen from the chute and slide down to the street
below. Sand knew of this activity.
One evening, the children were using the chute as a play device. As an automobile driven by Commuter
approached the chute, Ladd, an 8-year-old boy, slid down in front of the automobile. Commuter applied her
brakes, but they suddenly failed, and she hit and injured Ladd. Commuter saw the child in time to have
avoided hitting him if her brakes had worked properly. Two days previously, Commuter had taken her car to
Garage to have her brakes inspected. Garage inspected the brakes and told her that the brakes were in
perfect working order. Claims were asserted on behalf of Ladd by his proper legal representative against
Sand, Commuter, and Garage.
On Ladd's claim against Garage, will Ladd prevail?
Answer A:
Yes, because Garage is strictly liable in tort.
Answer B:
Yes, if Garage was negligent in inspecting Commuter's brakes.
Answer C:
No, if Ladd was in the legal category of a bystander.
Answer D:
No, because Sand's conduct was an independent and superseding cause.
The explanation for the answer is:
B is the only possible answer. A is a products liability standard and Garage only inspected the brakes; he did
not install new ones. C can be eliminated immediately because Ladd was physically injured while bystander
claims only apply to witnesses to accidents. D misstates the facts. Sand's conduct can't supersede because it
is the original negligent act in the chain of causation leading to Ladd's injury, while the brake failure was an
intervening cause which rendered Commuter's appropriately executed stop ineffective. B provides the relevant
burden of proof that Ladd must meet to prevail against Garage. A, C and D are incorrect.

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Page 22
Question 91 Torts - Negligence (1/12/2009)
Your answer is correct.
The question was:
Section 1 of the Vehicle Code of State makes it illegal to cross a street in a central business district other than
at a designated crosswalk. Section 2 of the Code prohibits parking any motor vehicle so that it blocks any part
of a designated crosswalk. Ped wanted to cross Main Street in the central business district of City, located in
State, but a truck parked by Trucker was blocking the designated crosswalk. Ped stepped out into Main Street
and carefully walked around the back of the truck. Ped was struck by a motor vehicle negligently operated by
Driver. If Ped asserts a claim against Trucker, the most likely result is that Ped will
Answer A:
prevail, because Trucker's violation of a state statute makes him strictly liable for all injuries caused thereby.
Answer B:
prevail, because the probable purpose of Section 2 of the Vehicle Code of State was to safeguard
pedestrians in using crosswalk.
Answer C:
not prevail, because Ped assumed the risk of injury when he crossed the street outside the crosswalk.
Answer D:
not prevail, because Driver's conduct was the actual cause of Ped's harm.
The explanation for the answer is:
B is the correct answer. The statute Trucker violated was designed to protect pedestrians (Ped's class) and the
harm Ped suffered was the type that the statute was designed to protect. In a majority state, such a violation
would be negligence per se; in the minority it would be evidence of negligence. B is the best choice because it
correctly shows the relevance of the safety statute to the claim against Trucker. A is inaccurate. Trucker's
actions do not give rise to strict liability. C is not the best answer. Trucker, by negligently parking in the
crosswalk, bears the responsibility for the harm of negligent jaywalkers because pedestrians forced to cross
outside of the crosswalk would be an inherently foreseeable consequence of Trucker's negligent decision to
block the busy crosswalk with his truck. A trier of fact would find that Ped did not voluntarily assume the risk of
crossing. D is incorrect. Driver's conduct is a substantial factor in Ped's injury, along with Trucker's action.
Driver's subsequent intervening act does not cut short Trucker's liability for Ped's foreseeable injury as the
result of Trucker's negligence.

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Question 337 Torts - Negligence (1/15/2009)
Your answer is correct.
The question was:
Walker, a pedestrian, started north across the street in a clearly marked north-south crosswalk with the green
traffic light in her favor. Walker was in a hurry, and so before reaching the north curb on the street, she cut to
her left diagonally across the street to the east-west crosswalk and started across it. Just after reaching the
east-west crosswalk, the traffic light turned green in her favor. She proceeded about five steps further across
the street to the west in the crosswalk when she was struck by a car approaching from her right that she
thought would stop, but did not. The car was driven by Driver, 81 years of age, who failed to stop his car after
seeing that the traffic light was red against him. Walker had a bone disease, resulting in very brittle bones, that
is prevalent in only 0.02 percent of the population. As a result of the impact Walker suffered a broken leg and
the destruction of her family heirloom, a Picasso original painting that she was taking to her bank for
safekeeping. The painting had been purchased by Walker's grandmother for $750 but was valued at $500,000
at the time of the accident.
Walker had filed suit against Driver. Driver's attorney has alleged that Walker violated a state statute requiring
that pedestrians stay in crosswalks, and that if Walker had not violated the statute she would have had to walk
25 feet more to reach the impact point and therefore would not have been at a place where she could have
been hit by Driver. Walker's attorney ascertains that there is a statute as alleged by Driver, that his
measurements are correct, that there is a state statute requiring observance of traffic lights, and that Driver's
license expired two years prior to the collision.
The violation of the crosswalk statute by Walker should not defeat her cause of action against Driver because
Answer A:
Driver violated the traffic light statute at a later point in time than Walker's violation.
Answer B:
pedestrians are entitled to assume that automobile drivers will obey the law.
Answer C:
Walker was hit while in the crosswalk.
Answer D:
the risks that the statute was designed to protect against probably did not include an earlier arrival at
another point.
The explanation for the answer is:
D is the correct answer. The question instructs an analysis based on the use of a safety statute. To determine
why Walker should prevail in her cause of action despite her violation of the crosswalk statute, look to the rule.
Safety statutes are used only if the statute violated was designed to protect the particular class of foreseeable
victim as the plaintiff and the harm the plaintiff suffered was the type that the statute was designed to protect. If
the safety statute applies, in a majority jurisdiction it establishes duty and breach (negligence per se), while in
a minority it only serves as evidence of negligence. Causation must still be argued to prevail. The only answer
that addresses the rule itself is D. A is irrelevant because it argues timing. B is an overly broad assumption. C,
while a true statement, is inapplicable to the call of the question. A, B, and C are incorrect.

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Page 24
Question 363 Torts - Negligence (1/16/2009)
Your answer is correct.
The question was:
Light Company is the sole distributor of electrical power in City. The Company owns and maintains all of the
electric poles and equipment in City. Light company has complied with the National Electrical Safety Code,
which established minimum requirements for the installation and maintenance of power poles. The code has
been approved by the federal and state governments.
Light Company has had to replace insulators on its poles repeatedly because unknown persons repeatedly
shoot at and destroy them. This causes the power lines to fall to the ground. On one of these occasions, Paul,
Faber's 5-year-old son, wandered out of Faber's yard, intentionally touched a downed wire, and was seriously
burned.
If a claim on Paul's behalf is asserted against Light Company, the probable result is that Paul will
Answer A:
recover if Light Company could have taken reasonable steps to prevent the lines from falling when the
insulators were destroyed.
Answer B:
recover, because a supplier of electricity is strictly liable in tort.
Answer C:
not recover unless Light Company failed to exercise reasonable care to stop the destruction of the insulators.
Answer D:
not recover, because the destruction of the insulators was intentional.
The explanation for the answer is:
A is the correct answer. This is not a defective product case. Courts have held that the transmission of
electricity is either only a service or else is not a product until the electricity has been metered and enters the
consumer's home, so strict liability does not apply to this situation. (B is incorrect.). In the performance of
services, negligence must be shown. A is a better answer than C because it correctly addresses the burden
surrounding the need to prevent the lines from falling, which is the source of the injury. Paul will only prevail if
he can show that Light's ability to prevent the foreseeable and significant potential severe harm from falling
wires, due to broken insulators, became a duty because the burden to prevent was reasonable. D is incorrect
because the facts indicate that shooting the insulators was a foreseeable act and the actual source of the
injury was not the broken insulators but the fallen wires. B, C and D are incorrect.

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Page 25
Question 457 Torts - Negligence (1/9/2009)
You answered A. The correct answer is B.
The question was:
Cycle Company manufactured a bicycle that is sold to Bike Shop, a retail bicycle dealer, which in turn sold it to
Roth. Shortly thereafter, while Roth was riding the bicycle along a city street, he saw a traffic light facing him
turn from green to amber. He sped up, hoping to cross the intersection before the light turned red. However,
Roth quickly realized that he could not do so and applied the brake, which failed. To avoid the traffic that was
then crossing in front of him, Roth turned sharply to his right and onto the sidewalk, where he struck Perez, a
pedestrian. Both Perez and Roth sustained injuries.
If Perez asserts a claim based on negligence against Cycle Company and if it is found that the brake failure
resulted from a manufacturing defect in the bicycle, will Perez prevail?
Answer A:
Yes, because Cycle Company placed a defective bicycle into the stream of commerce.
Answer B:
Yes, if the defect could have been discovered through the exercise of reasonable care by Cycle
Company.
Answer C:
No, because Perez was not a purchaser of the bicycle.
Answer D:
No, if Roth was negligent in turning into the sidewalk.
The explanation for the answer is:
B is the correct answer. The call of this question is negligence. Under a negligence claim, if Cycle Company
failed to exercise due care, which caused the bike to be different than intended or more dangerous than others
of its kind, any person who was foreseeably and actually harmed by the defect can bring a negligence action.
Cycle company has a duty to exercise due care in its manufacturing, which would include a reasonable
inspection. B gives the appropriate result if Cycle company breaches that duty. Thus, C is incorrect. A is
incorrect. The call of the question is a negligence claim. A is a strict liability response. D is incorrect. Roth's
liability in this action could lead to an action for contribution by Cycle, but it would not cut short Cycle's liability.
Roth was using the bike for its intended purpose, so his actions do not constitute an independent intervening,
superseding action.

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Question 468 Torts - Negligence (1/17/2009)
You answered C. The correct answer is A.
The question was:
Morris was driving north on an interstate highway at about 50 miles per hour when a tractor-trailer rig, owned
and driven by Dixon, passed her. The tractor was pulling a refrigerated meat trailer fully loaded with beef
carcasses hanging freely from the trailer ceiling. When Dixon cut back in front of Morris, the shifting weight of
the beef caused the trailer to overturn. Morris was unable to avoid a collision with the overturned trailer and
was injured. The trailer had been manufactured by Trailco. A number of truckers had complained to Trailco
that the design of the trailer, which allowed the load to swing freely, was dangerous. Dixon knew of the
dangerous propensity of the trailer. A restraining device that could be installed in the trailer would prevent the
load from shifting and was available at nominal cost. Dixon knew of the restraining device but had not installed
it. If Morris asserts a claim for her injuries against Dixon, she will
Answer A:
prevail if the use of a restraining device would have prevented the trailer from overturning.
Answer B:
prevail, because Dixon is strictly liable to Morris for injuries resulting from defects in the trailer.
Answer C:
not prevail unless Dixon was driving in a negligent manner at the time Morris was injured.
Answer D:
Not prevail, because Dixon was not the manufacturer or seller of the trailer.
The explanation for the answer is:
A is correct and can be reached through the process of elimination. Dixon is a user, not a manufacturer or
seller of the unreasonably dangerous truck, so B is out. Morris can, however, assert a claim against Dixon for
negligence, so D can be eliminated. C is wrong because it misstates the negligent act, which is Dixon's
knowing use of an unreasonably dangerous product. Facts indicate that Dixon knew about the dangerous
propensity as well as a reasonable means of increasing the trailer's safety at a "nominal cost." Causation is not
the issue; duty and breach are. A correctly states the result of the balancing test between the foreseeability
and severity of harm as weighed against the burden to Dixon to make a change that would protect foreseeable
plaintiffs from injury. B, C and D are incorrect.

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Question 502 Torts - Negligence (1/10/2009)
Your answer is correct.
The question was:
While on a hiking trip during the late fall, Page arrived, toward the end of the day, at a clearing where several
similar cabins were located, none of which was occupied. One of the cabins belonged to Levin, Page's friend,
who had given Page permission to use it. Page entered one of the cabins, which she thought was Levin's, and
prepared to spend the night. In fact the cabin was owned, not by Levin, but by Dwyer.
When the night turned cold, Page started a fire in the stove. Unknown to Page, there was a defect in the stove
that allowed carbon monoxide to escape into the cabin. During the night the fumes caused serious injury to
Page.
If Page asserts a claim against Dwyer for her injury, will Page recover?
Answer A:
Yes, if Dwyer knew that the stove was defective.
Answer B:
Yes, if Dwyer could have discovered the defect in the stove by a reasonable inspection.
Answer C:
No, because Dwyer had no reason to anticipate Page's presence in the cabin.
Answer D:
No, unless Page needed to use the cabin for her own protection.
The explanation for the answer is:
C is correct. Dwyer has no duty to exercise care or put the cabin in a safe condition for Page because Page is
an unknown/undiscovered trespasser. Page's mistake of fact with regard to the cabin's ownership was in does
not change her status with Dwyer. A landowner's only duty to a trespasser begins once the trespasser is
discovered or if Dwyer was or should have been aware that members of the public were known to frequently
trespass on his property. Facts do not support this conclusion, as Page was a hiker who approached several
empty cabins. C addresses the appropriate element at issue.
A and B are incorrect. Dwyer is not a seller or a manufacturer and is not renting out the cabin. This is not a
products liability situation. Dwyer owes no duty of care to an undiscovered, unanticipated trespasser.
D is incorrect. The private necessity privilege means only that Page (1) is only liable for actual damages
(unlike traditional trespass, which is a dignitary tort and does not require actual damage); that she (2) is not
legally a trespasser while the danger exists and; that (3) Dwyer has no privilege to "protect his property" from
Page's use until the dangerous situation has passed. Even if Page's presence in the cabin came through
private necessity, it would not change Dwyer's duty. Page is still an unanticipated trespasser and Dwyer
cannot be aware of her since he, himself, is not on the property.

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Question 623 Torts - Negligence (1/17/2009)
You answered B. The correct answer is D.
The question was:
In an action brought against Driver by Walker's legal representative, the only proofs that the legal
representative offered on liability were that: (1) Walker, a pedestrian, was killed instantly while walking on the
shoulder of the highway; (2) Driver was driving the car that struck Walker; and (3) there were no living
witnesses to the accident other than Driver, who denied negligence. Assume the jurisdiction has adopted a
rule of pure comparative negligence. If, at the end of the plaintiff's case, Driver moves for directed verdict, the
trial judge should
Answer A:
grant the motion, because the legal representative has offered no specific evidence from which reasonable
jurors may conclude that Driver was negligent.
Answer B:
grant the motion, because it is just as likely that Walker was negligent as that Driver was negligent.
Answer C:
deny the motion, unless Walker was walking with his back to traffic, in violation of the state highway code.
Answer D:
deny the motion, because, in the circumstances, negligence on the part of Driver may be inferred.
The explanation for the answer is:
D is correct. Walker's personal representative made a claim based on res ipsa loquitur, because proof of
negligence must be inferred. The doctrine of RIL is generally applied in situations where negligence clearly
occurred and; (1) the defendant had exclusive control of the instrumentality during the relevant time and, (2)
the plaintiff shows that he was not responsible for the injury. A directed verdict (also called Judgment as a
Matter of Law) allows judgment if the evidence, when viewed in the light most favorable to the nonmoving
party, is such that a reasonable person/jury could not disagree. Walker died after being struck by Driver's car,
driven by Driver. Walker was on the side of the road at the time he was hit. The reasonable inference therefore
is that Driver was driving negligently and Walker's estate will prevail because no reasonable person would
determine that Driver was not negligent. Thus A is incorrect. B is incorrect. A directed verdict (also called
Judgment as a Matter of Law) allows judgment if the evidence, when viewed in the light most favorable to the
nonmoving party, is such that a reasonable person/jury could not disagree. The facts will not be construed in
favor of Driver because he made the motion. C is incorrect. This is a pure comparative negligence jurisdiction.
If Driver's defense is that Walker violated a safety code, the subsequent issues of applicability and of
comparative responsibility cannot be decided in a directed verdict. A directed verdict is only given if the
evidence, when viewed in the light most favorable to the nonmoving party, is such that a reasonable
person/jury could not disagree.

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Question 819 Torts - Negligence (1/17/2009)
Your answer is correct.
The question was:
Doe negligently caused a fire in his house, and the house burned to the ground. As a result, the sun streamed
into Peter's yard next door, which previously had been shaded by Doe's house. The sunshine destroyed some
delicate and valuable trees in Peter's yard that could grow only in the shade. Peter has brought a negligence
action against Doe for the loss of Peter's trees. Doe has moved to dismiss the complaint.
The best argument in support of this motion would be that
Answer A:
Doe's negligence was not the active cause of the loss of Peter's trees.
Answer B:
Doe's duty to avoid the risks created by a fire did not encompass the risk that sunshine would damage
Peter's trees.
Answer C:
the loss of the trees was not a natural and probable consequence of Doe's negligence.
Answer D:
Peter suffered a purely economic loss, which is not compensable in a negligence action.
The explanation for the answer is:
B is the correct answer because it states the appropriate standard at issue. In an action for negligence, the
defendant only has a duty to act in a reasonably prudent manner with regard to foreseeable harm. When the
fire was negligently started in his own home, Doe's duty to avoid foreseeable risks posed by a fire would not
have included sun damage to his neighbor's trees. While Doe's negligence may be the cause-in-fact of his
neighbor's damages, a court would most likely find that there was no legal (or proximate) causation. (Thus A
and C are incorrect). The injury was unforeseeable and too remote from the action. In a motion to dismiss, if
the plaintiff cannot show foreseeable risk, there is no duty and no claim for negligence. A and C are incorrect.
D is incorrect. Damage to trees would not be considered a purely economic loss but an injury to Peter's
property. But, as the issue is one of no foreseeable risk and subsequent lack of duty, the issue of damages will
not be reached.

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Question 865 Torts - Negligence (1/20/2009)
Your answer is correct.
The question was:
For five years, Rancher had kept his horse in a ten-acre field enclosed by a six-foot woven wire fence with six
inches of barbed wire on top. The gate to the field was latched and could not be opened by an animal.
Rancher had never had any trouble with people coming onto his property and bothering the horse, and the
horse had never escaped from the field. One day, however, when Rancher went to the field, he found that the
gate was open and the horse was gone. Shortly before Rancher's discovery, Driver was driving with due care
on a nearby highway when suddenly Rancher's horse darted in front of his car. When Driver attempted to
avoid hitting the horse, he lost control of the car, which then crashed into a tree. Driver was injured. Driver
sued Rancher to recover damages for his injuries and Rancher moved for summary judgment. If the facts
stated above are undisputed, the judge should
Answer A:
deny the motion, because pursuant to the doctrine of res ipsa loquitur, a jury could infer that Rancher was
negligent.
Answer B:
deny the motion, because an animal dangerous to highway users escaped from Rancher's property and
caused the collision.
Answer C:
grant the motion, because there is no evidence that Rancher was negligent.
Answer D:
grant the motion, because Rancher did not knowingly permit the horse to run at large.
The explanation for the answer is:
A and C will both be given credit. Sometimes even the Examiners cannot agree on the correct response! A
motion for summary judgment will be granted where there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. A and C are opposite sides of the res ipsa loquitur argument.
The doctrine of RIL is generally applied in situations where negligence clearly occurred and; (1) the defendant
had exclusive control of the instrumentality during the relevant time and, (2) the plaintiff shows that he was not
responsible for the injury. The court is not required to infer and a presumption is not created; RIL merely
permits the factfinder to infer negligence from the facts. Thus, either A or C could be correct, depending on the
determination of the judge. Most jurisdictions hold that a plaintiff is not entitled to a directed verdict merely
because the defendant did not rebut an RIL case. In this situation, however, the defendant made the motion. B
is an incorrect reason. The horse is livestock. As such, in common law, Farmer would be held in strict liability
for its trespass. Under Restatement (Second) of Torts, however, ( 506) the horse would be considered a
domestic animal and negligence would have to be proved before Driver could recover damages (unless the
horse had a known propensity to escape, which is not the case in this situation). An animal "dangerous to
highway users" is not a category. D is incorrect because the issue is negligence, not intentional trespass.

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Question 889 Torts - Negligence (1/18/2009)
Your answer is correct.
The question was:
While Prudence was leaving an elevator, it suddenly dropped several inches, causing her to fall. An
investigation of the accident revealed that the elevator dropped because it had been negligently maintained by
the Acme Elevator Company. Acme had a contract with the owner of the building to inspect and maintain the
elevator. Prudence's fall severely aggravated a preexisting physical disability. If Prudence sues Acme Elevator
Company for damages for her injuries, she should recover
Answer A:
nothing, if Acme could not reasonably have been expected to foresee the extent of harm that Prudence
suffered as a result of the accident.
Answer B:
nothing, if the accident would not have caused significant harm to an ordinarily prudent elevator passenger.
Answer C:
damages for the full amount of her disability, because a tortfeasor must take its victim as it finds her.
Answer D:
damages for the injury caused by the falling elevator, including the aggravation of her preexisting
disability.
The explanation for the answer is:
D is correct. It was foreseeable by Acme that a failure to maintain an elevator would cause severe physical
harm to its passengers should the elevator malfunction as the result of that negligence. Clearly the burden to
maintain the elevator, which Acme was being paid for, did not outweigh the potential harm to the elevator
passengers. Where negligence is found, the defendant takes the plaintiff as it finds her. Acme is therefore
responsible for Prudence's injuries, including the aggravation of her existing disability. Thus, B is incorrect. A is
incorrect because the injury must be foreseeable, but not the extent. C misstates the rule. Acme is not
responsible for any injury it did not cause by its negligence. Acme is only responsible for the aggravation of the
disability.

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Question 945 Torts - Negligence (1/11/2009)
You answered A. The correct answer is B.
The question was:
While Driver was taking a leisurely spring drive, he momentarily took his eyes off the road to look at some
colorful trees in bloom. As a result, his car swerved a few feet off the roadway, directly toward Walker, who
was standing on the shoulder of the road waiting for a chance to cross. When Walker saw the car bearing
down on him, he jumped backwards, fell, and injured his knee. Walker sued Driver for damages, and Driver
moved for summary judgment. The foregoing facts are undisputed. Driver's motion should be
Answer A:
denied, because the record shows that Walker apprehended an imminent, harmful contact, with Driver's car.
Answer B:
denied, because a jury could find that Driver negligently caused Walker to suffer a legally compensible
injury.
Answer C:
granted, because the proximate cause of Walker's injury was his own voluntary act.
Answer D:
granted, because it is not unreasonable for a person to be distracted momentarily.
The explanation for the answer is:
B is the correct answer. A motion for summary judgment will be granted where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. A question of fact exists as to
whether Driver's negligence caused Walker's reaction, or if Walker's injury was the result of his own act. Since
a motion for summary judgment by Driver can only be rendered for Driver or denied, B is the only possible
answer. A is incorrect. Driver did not act with the purpose or knowledge to a substantial certainty that his
actions would cause Walker to apprehend an imminent harmful or offensive touching. Driver was merely
inattentive, which is negligence. C is incorrect. Walker's action was a cause in fact of his injury, but not
necessarily the proximate cause. A summary judgment can only be granted if, as a matter of law, Driver is
entitled to judgment and no material fact is in dispute. Clearly Driver and Walker are disputing which of them is
responsible for Walker taking the jump backwards. D is incorrect. While momentary distraction may not be
unreasonable, Driver had a duty to drive safely, which was breached.

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Question 979 Torts - Negligence (1/13/2009)
You answered D. The correct answer is B.
The question was:
Patten suffered from a serious, though not immediately life-threatening impairment of his circulatory system.
Patten's cardiologist recommended a cardiac bypass operation and referred Patten to Dr. Cutter. Cutter did not
inform Patten of the 2% risk of death associated with this operation. Cutter defended his decision not to
mention the risk statistics to Patten because "Patten was a worrier and it would significantly lessen his chance
of survival to be worried about the nonsurvival rate." Cutter successfully performed the bypass operation and
Patten made a good recovery. However, when Patten learned of the 2% risk of death associated with the
operation, he was furious that Cutter had failed to disclose this information to him. If Patten asserts a claim
against Cutter based on negligence, will Patten prevail?
Answer A:
No, if Cutter used his best personal judgment in shielding Patten from the risk statistic.
Answer B:
No, because the operation was successful and Patten suffered no harm.
Answer C:
Yes, if Patten would have refused the operation had he been informed of the risk.
Answer D:
Yes, because a patient must be told the risk factor associated with a surgical procedure in order to give an
informed consent.
The explanation for the answer is:
B is the correct answer. Negligence (including medical malpractice) requires proof of duty, breach, causation
and damages. It is not a dignitary tort. If Patten did not suffer an actual injury, he cannot prevail in an action for
negligence against his doctor. Without actual harm, choices A, C and D are irrelevant.

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Question 1017 Torts - Negligence (1/12/2009)
Your answer is correct.
The question was:
Mom rushed her eight-year-old daughter, Child, to the emergency room at Hospital after Child fell off her
bicycle and hit her head on a sharp rock. The wound caused by the fall was extensive and bloody.
Mom was permitted to remain in the treatment room, and held Child's hand while the emergency room
physician cleaned and sutured the wound. During the procedure, Mom said that she was feeling faint and
stood up to leave the room. While leaving the room, Mom fainted and, in falling, struck her head on a metal
fixture that protruded from the emergency room wall. She sustained a serious injury as a consequence.
If Mom sues Hospital to recover damages for her injury, will she prevail?
Answer A:
Yes, because Mom was a public invitee of Hospital's.
Answer B:
Yes, unless the fixture was an obvious, commonly used, and essential part of Hospital's equipment.
Answer C:
No, unless Hospital's personnel failed to take reasonable steps to anticipate and prevent Mom's injury.
Answer D:
No, because Hospital's personnel owed Mom no affirmative duty of care.
The explanation for the answer is:
C is the correct answer. Hospital has a duty to its business invitees and persons accompanying them to keep
the premises in a reasonably safe condition for their use. Thus, A and D can be eliminated immediately- A
because Moms status alone does not mean the hospital has blanket liability for her injuries while on premises.
And D because the hospital does owe an affirmative duty to a business/public invitee to protect the hospital
patrons against known and discoverable hazards. B is incorrect because while the metal fixture might have
been protruding from the wall, its dangerous condition was not necessarily open and obvious.

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Question 1052 Torts - Negligence (1/11/2009)
Your answer is correct.
The question was:
Employer retained Doctor to evaluate medical records of prospective employees. Doctor informed employer
that Applicant, a prospective employee, suffered from AIDS. Employer informed Applicant of this and declined
to hire her.
Applicant was shocked by this news and suffered a heart attack as a result. Subsequent tests revealed that
Applicant in fact did not have AIDS. Doctor had negligently confused Applicant's file with that of another
prospective employee.
If Applicant sued Doctor for damages, on which of the following causes of action would Applicant recover?
I. Invasion of privacy.
II. Negligent misrepresentation.
III. Negligent infliction of emotional distress.
Answer A:
III only.
Answer B:
I and II only.
Answer C:
II and III only.
Answer D:
I, II, and III.
The explanation for the answer is:
A is the correct answer. Invasion of Privacy is not an applicable tort. The doctor was privileged to provide the
results of his medical investigation regarding Applicant to the employer. In addition, the results were not
released to the public. (Thus I will not prevail.) A claim for negligent misrepresentation requires Applicant in the
action to have relied upon the erroneous information negligently provided by Doctor. While Applicant was
injured, it was Employer who relied upon the erroneous information. (Thus II cannot prevail.) Applicant can,
however, recover for negligent infliction of emotional distress because she suffered a heart attack as the result
of the doctor's negligent misreading and reporting of her medical file. Thus III is the only cause of action
Applicant will prevail under. Choice B, C and D are incorrect.

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Question 1093 Torts - Negligence (1/16/2009)
Your answer is correct.
The question was:
Vintner is the owner of a large vineyard and offers balloon rides to visitors who wish to tour the grounds from
the air. During one of the rides, Vintner was forced to make a crash landing on his own property. Without
Vintner's knowledge or consent, Trespasser had entered the vineyard to camp for a couple of days.
Trespasser was injured when he was hit by the basket of the descending balloon. If Trespasser sues Vintner
to recover damages for his injuries, will Trespasser prevail?
Answer A:
No, unless the crash landing was made necessary by negligence on Vintner's part.
Answer B:
No, unless Vintner could have prevented the injury to Trespasser after becoming aware of
Trespasser's presence.
Answer C:
Yes, because even a trespasser may recover for injuries caused by an abnormally dangerous activity.
Answer D:
Yes, if the accident occurred at a place which Vintner knew was frequented by intruders.
The explanation for the answer is:
B is correct. Vintner has no duty to an undiscovered trespasser. If Vintner knew or reasonably should have
known of Trespasser's presence, under majority law he then has a duty of reasonable care to avoid injury to
the trespasser. (Under common law a discovered trespasser was only owed the duty to avoid gross
negligence or willful and wanton misconduct.) D is not the best answer because the facts give no indication
that the vineyard was frequented by trespassers and specifically states Trespasser was there without consent
or knowledge of Vintner. Choice B appropriately addresses the issue of awareness and subsequent duty. D is
incorrect. A is incorrect. Vintner can only have a duty of reasonable care for an activity that has a foreseeably
harmful result to a specific plaintiff or a potential plaintiff in the zone of danger. The facts do not indicate that
visitors were known to frequent the property where Vintner was forced to land. Vintner has no duty to an
unknown and unforeseeable trespasser. C is incorrect. The facts do not support an inference that ballooning is
an abnormally dangerous activity of the land that cannot be completely safe even in the absence of
negligence. B is the correct answer because it closely fits the facts given.

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Question 1109 Torts - Negligence (1/16/2009)
Your answer is correct.
The question was:
The day after Seller completed the sale of his house and moved out, one of the slates flew off the roof during a
windstorm. The slate struck Pedestrian, who was on the public sidewalk. Pedestrian was seriously injured.
The roof is old and has lost several slates in ordinary windstorms on other occasions.
If Pedestrian sues Seller to recover damages for his injuries, will Pedestrian prevail?
Answer A:
Yes, because the roof was defective when Seller sold the house.
Answer B:
Yes, if Seller should have been aware of the condition of the roof and should have realized that it was
dangerous to persons outside the premises.
Answer C:
No, because Seller was neither the owner nor the occupier of the house when Pedestrian was injured.
Answer D:
No, if Pedestrian knew that in the past slates had blown off the roof during windstorms.
The explanation for the answer is:
B is correct. Seller had a duty of reasonable care for the safety of those outside the land to prevent harm
resulting from conditions on the land. Facts indicate that ordinary windstorms had previously caused tile loss.
Despite the fact that Seller just sold the home, he was or should have been aware of the dangerous condition
of the roof and the foreseeability of harm to persons outside the premises from windswept falling tiles, but left
the dangerous conditions without taking precautionary measures to protect against dislodged tiles. It is
irrelevant that Seller was no longer owner or occupier of the house; Seller's negligent conduct was a breach of
his duty of care and proximately caused Pedestrian's injuries, thus choice C is incorrect.
A is incorrect. This is not a products liability issue, but a failure to exercise reasonable care. Seller was not a
manufacturer of a defective product, but a negligent user/owner of a property. Thus, Pedestrian must assert a
claim for negligence, not strict liability. Seller is still liable for his own negligent conduct as it affected the
house, even if he has just sold the property at issue. (If the sale had occurred some time earlier such that new
owner had time to observe the problem, however, then Seller would no longer be liable for the original
condition of the roof. New owner would have had a duty to repair the roof once he had time to discover the
dangerous condition.)
D is incorrect. Pedestrian's own breach of care (if any) would only go to damages. Pedestrian does not,
however, have a duty to guard against the internal property conditions of another that may result in a danger to
Pedestrian while walking past the land.

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Question 1116 Torts - Negligence (1/11/2009)
Your answer is correct.
The question was:
Orderly, a male attendant who worked at Hospital, had sexual relations with Patient, a severely retarded
person, in her room at Hospital.
In a tort action brought on Patient's behalf against Hospital, Patient will
Answer A:
not prevail, if Orderly's actions were outside the scope of his employment.
Answer B:
not prevail, if Patient initiated the relationship with Orderly and encouraged his actions.
Answer C:
prevail, if Orderly was an employee of Hospital.
Answer D:
prevail, if Hospital failed to use reasonable care to protect Patient from such conduct.
The explanation for the answer is:
D is the correct answer. While it is not a settled area of law, Courts have tended to recognize that caretaker
institutions of those who are helpless to care for themselves may be considered to have a special relationship
and an affirmative duty to protect their patients. (Thus C is not the best answer.) One theory is that the
potential for employees to take sexual advantage of the disabled is a normal risk of a caretaking business and
the duty cannot be delegated. (Thus A is incorrect.) Others have held that by removing the disabled from their
normal sources of support and keeping them relatively helpless aids the employee in committing a tort. While
some courts have found vicarious liability, others have held that the institution is only under a duty of care to
protect its residents from foreseeable sexual assault. Because of the unique vulnerabilities of helpless
patients, Hospital would have a duty to install safeguards to protect against sexual assault. D is the best
answer because it addresses the particular problem posed by the facts of a severely disabled patient attacked
by a hospital employee in her hospital room. A and C are incorrect.
B is incorrect. The call of the question states that a claim was brought on Patient's behalf, which allows the
inference that she had a guardian. While mental incompetence may not remove all capacity for consent, the
facts in this situation indicate that Patient was legally incapacitated and was either mentally incapable of
consent to the action or else was susceptible to undue influence. At most, Hospital would be able to use the
consent as a defense to reduce its damages, but it will likely fail.

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Question 1121 Torts - Negligence (1/18/2009)
Your answer is correct.
The question was:
Passenger departed on an ocean liner knowing that it would be a rough voyage due to predicted storms. The
ocean liner was not equipped with the type of lifeboats required by the applicable statute. Passenger was
swept overboard and drowned in a storm so heavy that even a lifeboat that conformed to the statute could not
have been launched. In an action against the operator of the ocean liner brought by Passenger's
representative, will Passenger's representative prevail?
Answer A:
Yes, because the ocean liner was not equipped with the statutorily required lifeboats.
Answer B:
Yes, because in these circumstances common carriers are strictly liable.
Answer C:
No, because the storm was so severe that it would have been impossible to launch a statutorily
required lifeboat.
Answer D:
No, because Passenger assumed the risk by boarding the ocean liner knowing that it would be a rough
voyage.
The explanation for the answer is:
C is the correct answer. In an action for negligence, the plaintiff must allege duty, breach, causation and
damages. The key issue here is not whether the ocean liner breached a duty to have a specific type of lifeboat,
but whether the storm was so severe that its independent intervention superseded even the launching of a
statutorily adequate lifeboat. (Thus A is incorrect.) This is an "act of god" situation. The facts state that the
storm was too rough for even a conforming lifeboat to be launched, thus breaking the causal connection
between the ship's duty to have a certain type of lifeboat and Passenger's death. A is incorrect. B is incorrect.
Common carriers are subject to a higher standard of care, not strict liability. Even a claim in strict liability,
however, must show that the defendant's activity or condition is a proximate (legal) cause of the harm to
prevail, a conclusion which is not supported by the facts. D is incorrect. Assumption of risk is no longer a
complete bar to recovery in a negligence claim, absent instructions to follow the common law. Even if it could
be shown that Passenger was fully aware and in expressed or implied agreement to accept a known risk of
deadly storms, it would only go to damages and would not prevent Passenger from prevailing.

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Question 1142 Torts - Negligence (1/12/2009)
You answered D. The correct answer is C.
The question was:
Traveler was a passenger on a commercial aircraft owned and operated by Airline. The aircraft crashed into a
mountain, killing everyone on board. The flying weather was good.
Traveler's legal representative brought a wrongful death action against Airline. At trial, the legal representative
offered no expert or other testimony as to the cause of the crash.
On Airline's motion to dismiss at the conclusion of the legal representative's case, the court should
Answer A:
grant the motion, because the legal representative has offered no evidence as to the cause of the crash.
Answer B:
grant the motion, because the legal representative has failed to offer evidence negating the possibility that the
crash may have been caused by mechanical failure that Airline could not have prevented.
Answer C:
deny the motion, because the jury may infer that the aircraft crashed due to Airline's negligence.
Answer D:
deny the motion, because in the circumstances common carriers are strictly liable.
The explanation for the answer is:
C is correct. A motion to dismiss may be granted when the facts, as viewed in favor of the plaintiff, do not
present a claim upon which relief can be granted. Traveler's representative is making a claim based upon res
ipsa loquitur. The doctrine of RIL is generally applied in situations where negligence clearly occurred and; (1)
the defendant had exclusive control of the instrumentality during the relevant time and, (2) the plaintiff shows
that he was not responsible for the injury. The court is not required to infer and a presumption is not created;
RIL merely permits the factfinder to infer negligence from the facts. The facts indicate that weather was good
and that Airline both owned and operated the aircraft. The fact that Airline had exclusive control of the
instrumentality and it crashed is sufficient to infer that Airline was negligent, without knowing exactly how the
crash occurred; thus A is incorrect. In such a situation, the court, viewing the facts in favor of the plaintiff, could
infer that negligence occurred, which presents a claim upon which relief can be granted.
B is incorrect. In a claim for RIL, Airline can respond in its defense by showing proof that the cause of the
crash was beyond Airline's control, but Traveler's representative is not required to prove what caused the
crash in a situation where negligence clearly occurred and Airline had exclusive control of the instrumentality
at the time of the crash.
D is incorrect. Negligence must still be shown in a claim against a common carrier. The standard of care
threshold is higher for a common carrier, but it does not result in strict liability.

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Question 1179 Torts - Negligence (1/17/2009)
Your answer is correct.
The question was:
Del's sporting goods shop was burglarized by an escaped inmate from a nearby prison. The inmate stole a rifle
and bullets from a locked cabinet. The burglar alarm at Del's shop did not go off because Del had negligently
forgotten to activate the alarm's motion detector. Shortly thereafter, the inmate used the rifle ammunition stolen
from Del in a shooting spree that caused injury to several people, including Paula. If Paula sues Del for the
injury she suffered, will Paula prevail?
Answer A:
Yes, if Paula's injury would have been prevented had the motion detector been activated.
Answer B:
Yes, because Del was negligent in failing to activate the motion detector.
Answer C:
No, because the storage and sale of firearms and ammunition is not an abnormally dangerous activity.
Answer D:
No, unless there is evidence of circumstances suggesting a high risk of theft and criminal use of
firearms stocked by Del.
The explanation for the answer is:
D is the correct answer. The commission of an intentional/criminal tort often supersedes the liability of the
original negligent actor. (Thus B is not the best answer.) An exception occurs if the negligent act creates a
condition such that a criminal act is the foreseeable consequence of that action. Del didn't forget to lock his
door; he just forgot to set the alarm on his gun shop. While a thief who breaks into a gun shop is foreseeably
looking for guns to commit crime with, the issue is whether the presence of an activated burglar alarm was
necessary to prevent a high risk of theft and criminal use by potential burglars. D is the best choice because it
addresses the appropriate issue of foreseeability that would create the duty to maintain an active alarm. B is
incorrect. A is incorrect because it addresses causation. The issue of duty to keep the alarm set must be met
before the issue of causation can be addressed, so D is the best answer. C does not address the appropriate
theory of recovery. This is an issue of negligence, not strict liability. See the discussion for D, supra.

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Question 1240 Torts - Negligence (1/16/2009)
You answered B. The correct answer is A.
The question was:
The personnel director of an investment company told a job applicant during an interview that the company
was worth millions of dollars and that the company's portfolio would triple in the next several months. The
applicant was very excited about the company's prospects and accepted an offer to work for the company.
Two days later, the applicant read in the newspaper that the investment company had filed for bankruptcy
reorganization. As a result of reading this news, the applicant suffered severe emotional distress but he
immediately found another comparable position.
Is the applicant likely to prevail in his action for negligent misrepresentation?
Answer A:
No, because the applicant did not suffer any physical injury or pecuniary loss.
Answer B:
No, because the personnel director's statement was purely speculative.
Answer C:
Yes, because the applicant relied on the personnel director's misrepresentations about the investment
company.
Answer D:
Yes, because the personnel director should have foreseen that his misrepresentations would cause the
applicant to be upset.
The explanation for the answer is:
(A) Correct. The situations in which a plaintiff can recover for purely emotional distress caused by negligence
are limited, and this is not one of them. Recovery for negligent misrepresentation is usually limited to pecuniary
loss unless it involves a risk of physical harm. In this case, the applicant found a comparable position promptly,
so he suffered no harm from the personnel director's misrepresentation aside from his emotional distress.
(B) Incorrect. This answer correctly states that the applicant will not prevail, but it misstates the legal basis for
this conclusion. It is not the case that the director's statement is purely speculative. Some of the information
conveyed to the job applicant was factual; it was clearly intended to assure the applicant that the company was
in fact at the time economically strong, and to induce reliance. The applicant will lose because the situations in
which a plaintiff can recover for purely emotional distress caused by negligence are limited, and this is not one
of them. Recovery for negligent misrepresentation is usually limited to pecuniary loss unless it involves a risk
of physical harm.
(C) Incorrect. Reliance is essential for recovery in negligent misrepresentation, but it is not sufficient.
Moreover, the situations in which a plaintiff can recover for purely emotional distress caused by negligence are
limited, and this is not one of them. Recovery for negligent misrepresentation is usually limited to pecuniary
loss unless it involves a risk of physical harm. In this case, the applicant found a comparable position promptly,
so he suffered no harm from the personnel director's misrepresentation aside from his emotional distress.
(D) Incorrect. Recovery for negligent misrepresentation does not extend to all foreseeable damages. The
applicant cannot prevail because recovery for negligent misrepresentation is usually limited to pecuniary loss
unless it involves a risk of physical harm. In this case, the applicant found a comparable position promptly, so
he suffered no harm from the personnel director's misrepresentation aside from his emotional distress.

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Question 110 Torts - Products Liability (1/14/2009)
Your answer is correct.
The question was:
Storekeeper, the owner of a large hardware store, sells power saws for both personal and commercial use. He
often takes old power saws as trade-ins on new ones. The old power saws are then completely disassembled
and rebuilt with new bearings by Storekeeper's employees and sold by Storekeeper as "reconditioned saws."
Purchaser, the owner and operator of a cabinet-making shop, informed Storekeeper that he wanted to buy a
reconditioned circular saw for use in his cabinet making business. However, the blade that was on the saw he
picked out had very coarse teeth for cutting rough lumber. Purchaser told Storekeeper that he wanted a saw
blade that would cut plywood. Storekeeper exchanged the coarse blade for a new one with finer teeth that
would cut plywood smoothly. The new blade was manufactured by Saw-Blade Company, which uses all
available techniques to inspect its products for defects. The reconditioned saw had been manufactured by
Power Saw Company. The week after the saw was purchased, Employee, who works for Purchaser in
Purchaser's cabinet-making shop, was injured while using the saw. Employee's arm was severely cut. As a
result, the cabinetmaking shop was shut down for a week until a replacement for Employee could be found. If
Employee was injured while cutting plywood when the shaft holding the saw blade came loose when a bearing
gave way and the shaft and blade flew off the saw, and if Employee asserts a claim based on strict liability in
tort against Power Saw Company, employee will probably
Answer A:
recover if the shaft that came loose was a part of the saw when it was new.
Answer B:
recover, because Power Saw Company was in the business of manufacturing dangerous machines.
Answer C:
not recover, because Employee was not the buyer of the power saw.
Answer D:
not recover, because the saw has been rebuilt by Storekeeper.
The explanation for the answer is:
D is the only possible answer. This is a reading comprehension question. The saw was completely
disassembled and then rebuilt by Storekeeper's employees. While the chain of strict liability goes up from
seller to the manufacturer; in this case, the defect was not one of manufacturing or design or failure to warn.
The fact pattern's statements about the blade and saw manufacturer are irrelevant here because the
Shopkeeper's actions alone created a claim for products liability negligence when his failure to exercise due
care in reconditioning the saw and changing the blade caused the product to differ from its intended design,
rendering it more dangerous than other saws of its type. Consequently, an action in strict liability against
Power Saw will fail. A and B are incorrect because Shopkeeper's actions cut short Power Saw's liability for the
reconditioned saw. (Read the discussion for answer D, supra). C is incorrect because any person who is
foreseeably (and in fact) injured by Shopkeeper's negligence can bring an action. Privity of contract is not
required.

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Question 352 Torts - Products Liability (1/15/2009)
Your answer is correct.
The question was:
Parents purchased a new mobile home from Seller. The mobile home was manufactured by Mobilco and had a
ventilating system designed by Mobilco with both a heating unit and an air conditioner. Mobilco installed a
furnace manufactured by Heatco and an air conditioning unit manufactured by Coolco. Each was controlled by
an independent thermostat installed by Mobilco. Because of the manner in which Mobilco designed the
ventilating system, the first time the ventilating system was operated by Parents, cold air was vented into
Parents' bedroom to keep the temperature at 68 degrees F (20 degrees C). The cold air then activated the
heater thermostat, and hot air was pumped into the bedroom of Child, the six-month-old child of Parents. The
temperature in Child's room reached more than 170 degrees F (77 degrees C) before child's mother became
aware of the condition and shut the system off manually. As a result, Child suffered permanent physical injury.
Claims have been asserted by Child, through a duly appointed guardian, against Mobilco, Seller, Heatco, and
Coolco.
If Child's claims against Mobilco, Heatco, and Coolco are based on strict liability in tort, Child will probably
recover against
Answer A:
Mobilco only, because the ventilating system was defectively designed by Mobilco.
Answer B:
Heatco only, because it was the excessive heat from the furnace that caused Child's injuries.
Answer C:
Mobilco and Heatco only, because the combination of Mobilco's design and Heatco's furnace caused Child's
injuries.
Answer D:
Mobilco, Heatco, and Coolco, because the combination of Mobilco's design, Heatco's furnace, and Coolco's air
conditioning unit caused Child's injuries.
The explanation for the answer is:
A is the correct answer. Generally, a manufacturer is strictly liable only if the product was defective when it left
the control of the manufacturer. The fact pattern and the call of the question clearly state that the defect was in
the ventilation design, not in the products by Heatco and Coolco. Since the products used in the design were
not themselves defective, Child will only be able to recover from the designer of the defective ventilation
system, Mobilco. Thus, B, C and D are incorrect.

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Harley Barrales
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Question 456 Torts - Products Liability (12/11/2008)
Your answer is correct.
The question was:
Cycle Company manufactured a bicycle that is sold to Bike Shop, a retail bicycle dealer, which in turn sold it to
Roth. Shortly thereafter, while Roth was riding the bicycle along a city street, he saw a traffic light facing him
turn from green to amber. He sped up, hoping to cross the intersection before the light turned red. However,
Roth quickly realized that he could not do so and applied the brake, which failed. To avoid the traffic that was
then crossing in front of him, Roth turned sharply to his right and onto the sidewalk, where he struck Perez, a
pedestrian. Both Perez and Roth sustained injuries.
If Roth asserts a claim against the Bike Shop based on strict liability in tort, will Roth prevail?
Answer A:
Yes, if the brake failed because of a defect present when the bicycle left the factory of Cycle Company.
Answer B:
Yes, because the brake failed while Roth was riding the bicycle.
Answer C:
No, if Roth contributed to his own injury by speeding up.
Answer D:
No, if Bike Shop carefully inspected the bicycle before selling it.
The explanation for the answer is:
A is the correct answer. Strict liability can be imposed upon Bike Shop (and up the chain to the manufacturer)
for the sale of any product that is in a defective or unreasonably dangerous condition. Bike Shop, as a supplier
of the bike, is strictly liable for any resulting physical harm to Roth, provided that (1) Shop is engaged in the
business of selling bikes (alone or in addition to other products); (2) the condition of the bike was not
substantially changed from when it was purchased. The facts indicate that bike was manufactured by Cycle
Company and sold by Shop. "A" gives the appropriate standard Roth must meet to prevail against Bike Shop.
B is right result for the wrong reason. Roth can only prevail if the bike contained a manufacturing defect. That
the brakes failed while riding will go to proof of damages, but is not determinative of the initial claim. C is
incorrect. Contributory negligence is not a defense to strict liability if the product was being used for its
intended purpose and Roth merely failed to discover or guard against the possibility of a defect. D is incorrect
because it is a negligence standard and the call of the question is for strict liability.

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Question 609 Torts - Products Liability (1/16/2009)
Your answer is correct.
The question was:
At a country auction, Powell acquired an antique cabinet that he recognized as a "Morenci," an extremely rare
and valuable collector's item. Unfortunately, Powell's cabinet had several coats of varnish and paint over the
original finish. Its potential value could only be realized if these layers could be removed without damaging the
original finish. Much of the value of Morenci furniture depends on the condition of a unique oil finish, the secret
of which died with Morenci, its inventor.
A professional restorer of antique furniture recommended that Powell use Restorall to remove the paint and
varnish from the cabinet. Powell obtained and read a sales brochure published by Restorall, Inc., which
contained the following statement: "This product will renew all antique furniture. Will not damage original oil
finishes."
Powell purchased some Restorall and used it on his cabinet, being very careful to follow the accompanying
instructions exactly. Despite Powell's care, the original Morenci finish was irreparably damaged. When finally
refinished, the cabinet was worth less than 20% of what it would have been worth if the Morenci finish had
been preserved.
If Powell sues Restorall, Inc., to recover the loss he has suffered as a result of the destruction of the Morenci
finish, will Powell prevail?
Answer A:
Yes, unless no other known removal technique would have preserved the Morenci finish.
Answer B:
Yes, if the loss would not have occurred had the statement in the brochure been true.
Answer C:
No, unless the product was defective when sold by Restorall, Inc.
Answer D:
No, if the product was not dangerous to persons.
The explanation for the answer is:
B is the correct answer. This is a misrepresentation issue. The assertions in the brochure were a public
misrepresentation of a material fact concerning the quality or character of the "Restorall" product that caused
an injury to Powell when the cabinet was ruined because he relied on the statement to his detriment.
D is incorrect because whether the product was dangerous to persons is of no issue here. The call of the
question asks what the result will be if Powell sues to recover the loss he suffered as a result of the destruction
of the furniture finish. A and C are incorrect as well because a claim for misrepresentation does not require
proof of fault in the making or the designing of the product.

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Question 939 Torts - Products Liability (1/17/2009)
You answered C. The correct answer is D.
The question was:
Oscar purchased a large bottle of No-Flake dandruff shampoo, manufactured by Shampoo Company. The box
containing the bottle stated in part: "CAUTION--Use only 1 capful at most once a day. Greater use may cause
severe damage to the scalp." Oscar read the writing on the box, removed the bottle, and threw the box away.
Oscar's roommate, Paul, asked to use the No-Flake, and Oscar said, "Be careful not to use too much." Paul
thereafter used No-Flake twice a day, applying two or three capfuls each time, notwithstanding the label
statement that read: "Use no more than one capful per day. See box instructions." The more he used
No-Flake, the more inflamed his scalp became, the more it itched, and the more he used. After three weeks of
such use, Paul finally consulted a doctor who diagnosed his problem as a serious and irreversible case of
dermatitis caused by excessive exposure to the active ingredients by No-Flake. These ingredients are uniquely
effective at controlling dandruff, but there is no way to remove a remote risk to a small percentage of persons
who may contract dermatitis as the result of applying for prolonged periods of time amounts of No-Flake
substantially in excess of the directions. This jurisdiction adheres to the traditional common-law rules
pertaining to contributory negligence and assumption of risk. Based upon the foregoing facts, if Paul sues
Shampoo Company to recover damages for his dermatitis, his most promising theory of liability will be that the
No-Flake shampoo
Answer A:
had an unreasonably dangerous manufacturing defect.
Answer B:
had an unreasonably dangerous design defect.
Answer C:
was inherently dangerous.
Answer D:
was inadequately labeled to warn of its dangers.
The explanation for the answer is:
D is the correct answer. No-Flake was being used for its intended purpose according to its design and the
facts do not indicate that the bottle of shampoo itself was somehow defective. (Thus A is incorrect.) This is not
a design defect situation. (Thus B is incorrect.) Shampoo Company may still be strictly liable, however, if the
product is unreasonably dangerous (for its or any unintended but foreseeable use) and Shampoo failed to give
adequate warnings or directions as to No-Flake's use. It is recognized that some products are unavoidably
unsafe, but the need for the product justifies its marketing. Those products are not considered defective or
unreasonably dangerous, as long as they are accompanied by proper warnings and directions. Shampoo may
argue that its dandruff product is needed, despite its inherent dangers, and could not be reformulated in a
safer manner. (Thus C is not the best answer.) Therefore, D is the best answer because it addresses the fact
that only the box contained the full warning and it was foreseeable that the box would be discarded and only
the bottle kept. A, B and C are incorrect.

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Question 1004 Torts - Products Liability (1/16/2009)
Your answer is correct.
The question was:
Powell, who was an asbestos insulation installer from 1955 to 1965, contracted asbestosis, a serious lung
disorder, as a result of inhaling airborne asbestos particles on the job. The asbestos was manufactured and
sold to Powell's employer by the Acme Asbestos Company. Because neither Acme nor anyone else
discovered the risk to asbestos installers until 1966, Acme did not provide any warnings of the risks to
installers until after that date.
Powell brought an action against Acme based on strict liability in tort for failure to warn. The case is to be tried
before a jury. The jurisdiction has not adopted a comparative fault rule in strict liability cases.
In this action, an issue that is relevant to the case and is a question for the court to decide as a matter of law,
rather than for the jury to decide as a question of fact, is whether
Answer A:
a satisfactory, safer, alternative insulation material exists under today's technology.
Answer B:
the defendant should be held to the standard of a prudent manufacturer who knew of the risks,
regardless of whether the risks were reasonably discoverable before 1966.
Answer C:
the defendant should reasonably have known of the risks of asbestos insulation materials before 1966, even
though no one else had discovered the risks.
Answer D:
the asbestos insulation materials to which the plaintiff was exposed were inherently dangerous.
The explanation for the answer is:
B is correct. The facts indicate that the claim is for failure to warn. Acme is only required to warn of dangers
that were or reasonably should have been known to it (as manufacturer) at the time the asbestos was
delivered to Powell's employer. The issue of this question is what information Acme had a duty to know and
when it was required to share that information in its product warnings. The defendant's standard of care is a
matter of law pertaining to the defendant's status and will be determined by the judge. Once the standard is
established, a jury makes determinations of fact according to the standard set by the court. B is the best
choice because it appropriately addresses the issue of the standard of care. A is irrelevant to the call of the
question, but it is still a question of fact. C and D are both issues of fact that the jury will likely be asked to
determine. A, C and D are incorrect.

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Question 1013 Torts - Products Liability (1/15/2009)
Your answer is correct.
The question was:
Company designed and built a processing plant for the manufacture of an explosive chemical. Engineer was
retained by Company to design a filter system for the processing plant. She prepared an application for a
permit to build the plant's filter system and submitted it to the state's Department of Environmental Protection
(DEP). As required by DEP regulations, Engineer submitted a blueprint to the DEP with the application for
permit. The blueprint showed the entire facility and was signed and sealed by her as a licensed professional
engineer. After the project was completed, a portion of the processing plant exploded, injuring Plaintiff. During
discovery in an action by Plaintiff against Engineer, it was established that the explosion was caused by a
design defect that was unrelated to the filter system designed by Engineer. In that action, will Plaintiff prevail?
Answer A:
Yes, if Engineer signed, sealed, and submitted a blueprint that showed the design defect.
Answer B:
Yes, because all of the plant's designers are jointly and severably liable for the defect.
Answer C:
No, because Engineer owed no duty to Plaintiff to prevent the particular risk of harm.
Answer D:
No, if Engineer was an independent contractor.
The explanation for the answer is:
C is the correct answer. While this looks like a products liability question, it is a professional malpractice issue.
Company designed and built the processing plant. Engineer was retained solely for the purpose of designing a
filter system for the plant. She had a duty to exercise skill in the design of the filter system, commensurate with
her professional training and standards. Engineer's use of Company's blueprint for the proper permit did not
impute liability onto the Engineer for the entire facility, as a permit is nothing more than a license (permission)
to proceed with construction, not a guarantee against defect. (Thus A is incorrect.) While the manufacturer of a
defective product is subject to strict liability, strict liability does not apply to the performance of services.
Engineer provided a service and will be held to a negligence standard. Thus C is the correct answer. A is
incorrect. B is incorrect. The facts indicate that the processing plant was not a joint enterprise. Engineer was
not in partnership with Company and was not in a business association with Company for the limited purpose
of building the plant. Engineer was hired solely to perform a design service as an independent contractor.
Engineer's design was not the cause of the injury, and she cannot be held liable for Company's design. D is
incorrect because it is too broad. If Engineer had designed the defective portion that exploded, a claim for
negligence by Plaintiff and an action for contribution by Company would prevail.

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Question 1127 Torts - Products Liability (1/11/2009)
Your answer is correct.
The question was:
The Rapido is a sports car manufactured by the Rapido Motor Co. The Rapido has an excellent reputation for
mechanical reliabilty with one exception, that the motor may stall if the engine has not had an extended
warm-up. Driver had just begun to drive her Rapido in city traffic without a warm-up when the engine suddenly
stalled. A car driven by Troody rear-ended Driver's car. Driver suffered no external physical injuries as a result
of the collision. However, the shock of the crash caused her to suffer a severe heart attack.
Driver brought an action against the Rapido Motor Co. based on strict liability in tort. During the trial, the
plaintiff presented evidence of an alternative engine design of equal cost that would eliminate the stalling
problem without impairing the functions of the engine in any way. The defendant moves for a directed verdict
at the close of the evidence.
This motion should be
Answer A:
denied, because the jury could find that an unreasonably dangerous defect in the engine was a
proximate cause of the collision.
Answer B:
denied, if the jury could find that the Rapido was not crashworthy.
Answer C:
granted, because Troody's failure to stop within an assured clear distance was a superseding cause of the
collision.
Answer D:
granted, if a person of normal senstivity would not have suffered a heart attack under these circumstances.
The explanation for the answer is:
A is the correct answer. The Rapido car performed exactly as it was designed to. This is a defective design
case. For strict liability to apply in defective design, the Driver must prevail in a risk-utility balancing test where
she must show that the risk and severity of her injuries were predictable to her as the driver of the Rapido. In
some jurisdictions, the court would then consider the feasibility of alternative designs. Other jurisdictions shift
the burden to the defendant (once plaintiff proves causation) requiring the manufacturer to show that the utility
of the design outweighs the inherent danger. Driver provided evidence that an alternative engine design of
equal cost and performance was possible without the stalling flaw. Under the facts, the judge could find that
Driver met her burden to show injury to herself as the result of a design flaw that was not technologically and
economically burdensome for Rapido Company to correct. A directed verdict (also called Judgment as a
Matter of Law) allows judgment if the evidence, when viewed in the light most favorable to the nonmoving
party, is such that a reasonable person/jury could not disagree. Rapido's motion should be denied, thus A is
the best answer.
B is incorrect. The issue before the judge was whether Driver met her burden of proof in a defective design
case. Under the facts, the judge could find that a reasonable person could not disagree that Driver met her
burden to show injury to herself as the result of a design flaw that was not technologically and economically
burdensome for Rapido Company to correct. The issue of the car's crashworthiness is irrelevant. Driver's claim
is not that the car was not crashworthy, causing her injury, but that the car subjected her to an unnecessary
crash because of a design flaw in the engine.
C is incorrect. The negligent failure of a subsequent driver to stop in time when a Rapido would stall in traffic is
a foreseeable result of the flaw and will not supersede Rapido's liability for the defect.
D is incorrect. The potential for severe injury, including heart attack, is a foreseeable result of a design defect
that has a Rapido unexpectedly stalling in traffic. Driver has met her burden of proof, thus Rapido must take
the plaintiff as it finds her, and will be liable for all Driver's crash-related injuries.

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Question 1152 Torts - Products Liability (1/17/2009)
Your answer is correct.
The question was:
Because of Farmer's default on his loan, the bank foreclosed on the farm and equipment that secured the loan.
Among the items sold at the resulting auction was a new tractor recently delivered to Farmer by the retailer.
Shortly after purchasing the tractor at the auction, Pratt was negligently operating the tractor on a hill when it
rolled over due to a defect in the tractor's design. He was injured as a result. Pratt sued the auctioneer,
alleging strict liability in tort. The jurisdiction has not adopted a comparative fault rule in strict liability cases.
In this suit, the result should be for the
Answer A:
plaintiff, because the defendant sold a defective product that injured the plaintiff.
Answer B:
plaintiff, if the defendant failed to inspect the tractor for defects prior to sale.
Answer C:
defendant, because he should not be considered a "seller" for purposes of strict liability in tort.
Answer D:
defendant, because the accident was caused in part by Pratt's negligence.
The explanation for the answer is:
C is the correct answer. An auctioneer disposes of property on behalf of the true owner, generally retaining
only a fee or commission for his services. Auctioneer is not a seller of tractors in the normal course of his
business and does not have the duties that a seller of tractors would have. (Thus B is incorrect.) Strict liability
can be imposed upon a seller (and on up the chain to the manufacturer) for the sale of any product which is in
a defective condition or unreasonably dangerous to the user and results in injury if: (1) the seller is engaged in
the business of selling the product in its normal course of business and (2) the product was not substantially
changed by anyone else before the plaintiff used it. The sale of the tractor was a one-time occurrence. (Thus
A, while a true statement, comes to an incorrect conclusion.) Choice C appropriately addresses the issue that
will determine whether auctioneer will be liable. A and B are incorrect.
D is incorrect. Auctioneer is not a seller of tractors in his normal course of business and so cannot be held in
strict liability for the sale of the defective product. Therefore the issue of contributory negligence will not be
reached.