Tortally over this
Prince Charming is furious at his girlfriend, Sleeping Beauty, for neglecting him and concentrating on her needlework. While she is visiting, Charming decides to teach her a lesson by locking her in the sewing room. Several hours later, he reconsiders and unlocks the door. Unbeknownst to him, however, Beauty was napping the entire time and didn't realize she was locked in. Is Charming guilty of false imprisonment?
Probably not. In most courts, false imprisonment is the intentional confinement of another to a bounded area where the plaintiff is either aware of the confinement or is harmed by it. Rest. 2d §35. Here, Beauty didn't know she was confined and wasn't harmed; thus under the majority view, she was not falsely imprisoned.
The Little Princess says to the Frog Prince, "Come over and see me some time, and if I'm not home, make yourself comfortable for as long as you want.” The Frog Prince moves into the Little Princess' quarters while she is away, reasonably figuring she won't mind. However, the Little Princess is livid when she returns, and she tells him to haul his slimy carcass off the premises. “Is the Frog Prince's reasonable but mistaken belief that he'd be welcome a valid defense to a trespass to land claim?
Yes.
If Frog Prince's belief that he'd be welcome was a reasonable mistake induced by Little Princess' own conduct this would be a defense. See Rest. 2d §164.
Lisa, a 19-year-old pregnant woman, was involved in a minor fall at a movie theater. She went to the Pacifica Hospital emergency room for an examination to make sure there was no problem with her fetus. She was taken into a room to be examined by Bruce, an ultrasound technician employed by the hospital. Bruce refused to let Lisa’s boyfriend accompany them into the room. Bruce took ultrasound pictures by placing gel and a probe on Lisa’s abdomen. After Bruce determined that there was no damage to the fetus, he asked Lisa if she wanted to know the gender of her fetus. When Lisa said yes, Bruce purported to examine Lisa, but instead he sexually molested her. Lisa later realized that she had been molested, and Bruce was prosecuted for criminal assault and sexual battery.
Lisa sued Bruce and Pacifica Hospital, arguing that the hospital is vicariously liable for Bruce’s torts. The hospital did not dispute that Bruce committed the torts, but argued that it should not be vicariously liable for Bruce’s torts. How should the court rule on this argument?
B
This disturbing question is based upon the divided California Supreme Court opinion in Lisa M. v. Henry Mayo Newhall Memorial Hospital, 907 P.2d 358 (Cal. 1995). This is a tough question. Let’s eliminate the clearly wrong answers first. Choice C is wrong because it is not enough for vicarious liability to apply that an incident occurred at work (again, think of the wife’s lover found by happenstance at work). Similarly, Choice D is incorrect because the fact that Lisa was injured on hospital grounds also is not enough to create liability for the hospital. The hospital must either be found to be liable itself for its own actions or, as is the case here, alleged to be vicariously liable for a tort of another.
The question comes down to Choices A and B. In this case, Choice B is the stronger answer. As with Yamaguchi, there are circumstances in which a jury could decide that an employee’s action is so unusual or startling that it is not fair to hold the employer vicariously liable for the employee’s torts. (A majority of the California Supreme Court indeed granted summary judgment for the hospital on this point, not even requiring the hospital to make the argument to a jury.) Choice A is the next best answer, stating that the conduct is wholly unrelated to work. In fact, the California Supreme Court suggested as much in the Lisa M. case. But it is a fiction to say that the conduct is not related to work at all: It was work that gave Bruce the opportunity to engage in this conduct and to have access to the patient. A better understanding of the result in Lisa M. is that fairness dictates that an exception be granted, given the startling nature of Bruce’s actions.
Jamie and Kira start arguing at a baseball game. Their tempers flare. Jamie takes out her knife and tries to stab Kira. Kira gets out of the way and the knife almost goes into Larry, who sees the whole thing. Though the knife does not touch Larry, it comes within an inch of his face, upsetting Larry greatly. Can Larry make out the tortious conduct portion of the prima facie case for assault against Jamie?
C
In this case, Jamie acted by voluntarily moving the knife. From the facts (we know there is an argument where tempers are flaring), it sounds like Jamie intended to make a harmful contact with Kira. Though Kira is not the plaintiff, to meet the intent requirement of battery it is enough for the defendant to intend contact with a third person. It appears that Larry was put in imminent anticipation of contact. Thus, it appears that Larry can make out the tortious conduct portion of the prima facie case for assault. Choice C accurately explains that Jamie can be liable for assault even if she did not intend to make contact with Larry. Choices A and D are incorrect because contact is not necessary for an assault. Choice B is incorrect because, though intent to make contact with Larry would be sufficient to meet the intent requirement for battery, it is not necessary.
A company operates a factory that requires the use of very high voltage electricity. A neighbor owns property adjacent to the factory where he has attempted to carry on a business that requires the use of sensitive electronic equipment. Occasionally, the effectiveness of the neighbor's electronic equipment is slightly impaired by electrical interference arising from the high voltage currents used in the company's factory. The neighbor has complained to the company several times, with no result. There is no way that the company, by taking reasonable precautions, can avoid the interference with the neighbor's operation that arises from the high voltage currents necessary to the company's operation. In the neighbor's action against the company to recover damages for the economic loss caused to him by the electrical interference, will the neighbor prevail?
A: Yes, because the company's activity is abnormally dangerous.
B: Yes, for loss suffered by the neighbor after the company was made aware of the harm its activity was causing to the neighbor.
C: No, because the company did not cause a substantial and unreasonable interference with the neighbor's business.
D: No, because the neighbor's harm was purely economic and did not arise from physical harm to his person or property. Brief Explanatio
C
Private nuisance is defined as a condition or activity that interferes with a landowner's use and enjoyment of his land to such an extent that the landowner cannot reasonably be expected to bear the condition without compensation. The scope of interference is personal discomfort to the occupants or tangible harm to property, resulting in a diminution of its market value. Nuisance does not require proof of negligence; it just requires actual damages. In this case, the harm to the business was only occasional slight interference. Because the electrical interference was not a substantial and unreasonable interference with the neighbor's use and enjoyment of his property, he will not prevail. A is incorrect. There is no evidence that the activity cannot be performed without risk of serious harm to persons or property no matter how much care is exercised. B is incorrect. While it is true that nuisances generally must be intentional interferences, this interference is still not substantial nor unreasonable enough to be actionable. D is incorrect. Under a claim for nuisance, the neighbor could show that the electrical current caused physical harm to his equipment, thereby unreasonably damaging his business property interests with electrical interference.
A wealthy elderly woman was repeatedly harassed by a debt collector over a period of two months. The debt collector was trying to collect a large debt owed to his client by the woman’s impoverished adult son. Although the debt collector knew that the woman was not legally responsible for the son’s debt, he called the woman multiple times each day and threatened to destroy her credit. He also told her that he knew where she lived and that he was going to withdraw the money from her bank account. As a result, the woman suffered great mental anguish, was unable to sleep, and ultimately suffered serious health consequences. Which of the following conclusions would best support a claim by the woman against the debt collector for intentional infliction of emotional distress?
A: The debt collector could reasonably have foreseen that the calls and threats might cause harm to the woman’s health.
B: The debt collector’s conduct caused the woman to fear that he was someday going to physically attack her.
C: The debt collector’s conduct failed to comply with industry custom.
D: The debt collector’s conduct was extreme and outrageous.
D
A conclusion that the debt collector’s conduct was extreme and outrageous, combined with the fact that the woman experienced severe emotional distress and that the debt collector was probably at least reckless with respect to the risk of causing her distress, will provide the woman with a plausible claim for intentional infliction of emotional distress (IIED). None of the conclusions stated in the other answer choices provides as much support to the woman’s IIED claim. A is incorrect. Even if the woman’s distress was reasonably foreseeable to the debt collector, that fact does not suffice to establish the recklessness or intentionality necessary for IIED liability. B is incorrect. The woman’s subjective belief that the debt collector might someday attack her does not establish that she suffered severe distress or that the debt collector’s conduct was extreme and outrageous, as required in a claim for IIED. C is incorrect. A mere failure to comply with industry custom does not establish any of the elements of IIED. Therefore, this is not a strong argument to support the woman’s IIED claim.
Bob Cratchit and Ebeneezer Scrooge are neighbors. Scrooge despises children, and the mere sight of Cratchit's children raises his blood pressure. On weekends, the Cratchit encourages his kids to have fun and be extra noisy. The kids play outside in their backyard, whooping it up and creating a ruckus. Scrooge brings suit in private nuisance. Will he win?
Yes.
For Cratchit to encourage his kids to be extra noisy just to annoy Scrooge. This would make the conduct unreasonable because unreasonableness is determined by balancing the utility of the conduct versus the gravity of the harm. Conduct undertaken merely to annoy is deemed to have no utility, so it would be unreasonable and thus constitute grounds for private nuisance.
Wayne was born with autism. His parents believe that the autism was caused by the measles vaccine given to Wayne as an infant. Wayne’s parents sue the vaccine manufacturer on Wayne’s behalf, alleging that the vaccine is faulty. The vaccine manufacturer demonstrates that every major study of childhood vaccines and autism has concluded that there is no link between the vaccines and autism. Wayne has not found an expert to testify to the contrary. The vaccine manufacturer moves to have the case dismissed on grounds Wayne has no proof of causation.
How should the court rule on the manufacturer’s motion on actual causation?
A
These kinds of cases are real. A number of such cases were considered by a special court, the U.S. Court of Federal Claims, http://www.uscfc.uscourts.gov/docket-omnibus-autism-proceeding, and the plaintiffs lost their test cases because of a failure to prove general causation. See Autism Update, Jan. 12, 2011, at p. 3 (summarizing cases), http://bit.ly/mXecSk. Under the fact pattern as I have written it, the defendants have presented evidence that there is no “link” between autism and the vaccine, and the plaintiffs have presented nothing to prove general causation. The absence of a link is an absence of proof of general causation, which will doom Wayne’s case. And in the absence of proof of general causation (can the substance cause this type of injury generally?), there can be no proof of specific causation (did the substance cause this plaintiff’s injury?). Choice A states the correct answer. Choice B is wrong because it is irrelevant: Whether or not the product would fail some balancing test goes to tortious conduct (under a negligence or products liability theory), not to the question of causation. Choice C is wrong because if there is no proof of general causation, there can be no proof of specific causation: In this context, if there is no proof that measles vaccines can cause anyone’s autism, there’s necessarily no proof that the measles vaccine caused Wayne’s autism. Choice D is wrong because proof of tortious conduct does not excuse proof of causation. Both are needed for plaintiff’s prima facie case.
Bart Simpson is bumbling down the street one day when he sees a body lying in a ditch by the side of the road. On closer inspection, he sees that it's his father's boss from the nuclear plant, Mr. Burns. Burns has been shot, and there's a handgun lying nearby. Bart picks up the gun to examine it. Just as he does so, Mrs. Krabappel walks by. She sees Bart holding the gun and says, “You killed him!” Bart says, “Don't have a cow, man! I found him this way!” She says, “If that's true, young man, then the only way for you to stay out of trouble is to stay right here and explain it to the police.” She pulls a cell phone out of her purse and summons the police. Bart stays, figuring it's the only way to clear his name. Assume that Mrs. Krabappel was not reasonable in believing that Bart was the murderer. Did Krabappel falsely imprison Bart?
No. False imprisonment is the intentional confinement of someone to a bounded area. Confinement can be accomplished through physical restraint or threats of force, but mere moral pressure, as here, is insufficient. (Another example of moral pressure is where you agree to a search or to questioning, solely to clear yourself of suspicion of a crime.)
A man and a woman were competing in an illegal drag race. Both of them were driving over the speed limit but were otherwise driving very carefully. However, when a tire on the woman’s car suddenly blew out, she lost control of her car and crashed, injuring a pedestrian. The pedestrian later sued the man, because the woman had no insurance or assets. Will the pedestrian be likely to prevail in that action?
A: No, because the man did not cause the injury.
B: No, because the man was driving very carefully.
C: Yes, because the man and the woman were acting in concert in a dangerous activity.
D: Yes, because the man was exceeding the speed limit.
C
When two or more tortfeasors act in concert and injure a plaintiff, then each will be jointly and severally liable for the entire injury. Moreover, anyone who is found to have been engaging in an abnormally dangerous activity will be strictly liable for any injuries which result from the activity. Here, the man and woman were competing in an illegal drag race and were driving over the speed limit. They were acting in concert by drag racing. The man will, therefore, be liable for the pedestrian's injuries. A is incorrect. Even though the man did not cause the injury, he is still liable because he was acting in concert and negligently drag racing. B is incorrect. The fact that the man was driving carefully is irrelevant. He was still engaged in an illegal drag race. D is incorrect. Though the man was exceeding the speed limit, that will not be the reason why the pedestrian will prevail in this action.
A plaintiff was walking peacefully along a public street when he encountered the defendant, whom he had never seen before. Without provocation or warning, the defendant picked up a rock and struck the plaintiff with it. It was later established that the defendant was mentally ill and suffered recurrent hallucinations. If the plaintiff asserts a claim against the defendant based on battery, which of the following, if supported by evidence, will be the defendant's best defense?
A: The defendant did not understand that his act was wrongful.
B: The defendant did not desire to cause harm to the plaintiff.
C: The defendant did not know that he was striking a person.
D: The defendant thought the plaintiff was about to attack him.
C
If the defendant did not know he was striking a person, such a claim would defeat the intent necessary to be liable for a battery, which requires harmful or offensive contact with the plaintiff. A is incorrect. This would be ineffective because ignorance of the law is no defense in tort or criminal liability. B is incorrect. The intent element of battery does not require that the defendant intended to physically harm the plaintiff, so this would also be an ineffective defense. D is incorrect. This belief would be unreasonable given that the plaintiff was peacefully walking down the street, which means the defendant would not be able to invoke self-defense.
Lori lives near a cement factory. Each morning, her car is covered with a fine dust emitted from the factory. The factory knows about this problem, as Lori and the neighbors have complained repeatedly about it. Scientists have determined that the dust is not dangerous, but it is a constant annoyance.
The cement factory is a major employer in the area, and its value is estimated at around $45 million. The local economy is also heavily dependent on taxes from the factory. Experts have estimated that the loss of property value to Lori and other nearby homeowners from the dust is about $185,000. Lori and these other homeowners sue for private nuisance, arguing that the factory’s conduct is a nuisance under Restatement (Second) of Torts section 822(a). They want damages for their decline in property values, and they want an injunction barring the factory from further operation unless the dust can be eliminated.
Assume Lori and the homeowners can prove that the action of the factory constitutes a nuisance. Are the plaintiffs entitled to damages and/or an injunction?
A
There is no question that Lori and the other homeowners are entitled to damages for past harm; it has been established that the factory’s actions constitute a nuisance and that the plaintiffs have been harmed. The question whether an injunction should be issued closing the factory depends upon a careful balancing of factors. (In Boomer v. Atlantic Cement Co., 257 N.E.2d 870 (N.Y. 1970), the model for this question, the court granted past and expected future damages to the homeowners but denied their request for an injunction given the importance of the factory to the local economy.) Choice A correctly sets forth this standard. Choice B has it exactly backward, saying the injunction is a matter of right but that damages are discretionary. Choice C is incorrect because it states that the court must grant both damages and an injunction upon a finding of private nuisance; the issue of the injunction will be in the discretion of the court. Finally, Choice D is wrong because even if the benefits to the factory (and society) exceed the losses to the homeowners, that does not mean the factory is off the hook in paying for the damages that the factory causes to these homeowners.
The plaintiff was a passenger in a car that was struck in the rear by a car driven by a student. The collision resulted from the student's negligence in failing to keep a proper lookout. The plaintiff's physician found that the collision had aggravated a mild osteoarthritic condition in her lower back and had brought on similar, but new, symptoms in her neck and upper back. Six months after the first accident, the plaintiff was a passenger in a car that was struck in the rear by a car driven by a doctor. The collision resulted from the doctor's negligence in failing to keep a proper lookout. The plaintiff's physician found that the second collision had caused a general worsening of the plaintiff's condition, marked by a significant restriction of movement and muscle spasms in her back and neck. The physician believes the plaintiff's worsened condition is permanent, and he can find no basis for apportioning responsibility for her present worsened condition between the two automobile collisions. The plaintiff brought an action for damages against the student and the doctor. At the close of the plaintiff's evidence, as outlined above, each of the defendants moved for a directed verdict in his favor on the ground that the plaintiff had failed to produce evidence on which the jury could determine how much damage each defendant had caused. The jurisdiction adheres to the common law rules regarding joint and several liability. The plaintiff's best argument in opposition to the defendants' motions would be that the defendants are jointly and severally liable for the plaintiff's entire harm, because
A: the wrongdoers, rather than their victim, should bear the burden of the impossibility of apportionment.
B: the defendants breached a common duty that each of them owed to the plaintiff.
C: each of the defendants was the proximate cause in fact of all of the plaintiff's damages.
D: the defendants are joint tortfeasors who aggravated the plaintiff's preexisting condition.
A
Where the requirement of actual proof under these facts would result in a harsh result on an innocent victim, courts have traditionally held the defendants to be jointly and severally liable for the cause-in-fact, considering the injury to be indivisible as a matter of policy. B is incorrect. The issue is not duty, which was proven, but rather cause-in-fact. C is incorrect. This is a misstatement of the law. Proximate, or legal causation, is a separate element from cause-in?fact. If the plaintiff cannot show cause-in-fact, the issue of legal (proximate) cause would not be reached to determine its merit. D is incorrect. This answer comes to an incorrect conclusion. This is a legal conclusion, which is a judicial determination. The plaintiff is defending against a motion for directed verdict by the defendants, which means that the status of the defendants as joint tortfeasors has not yet been decided.
idel shoots Gerald for no good reason in front of Harry, Ivan, and Jessica. Harry is a friend of Gerald. Ivan has never met any of these people before and happened to be passing by. Ivan has been vomiting since the incident because he is so upset. Jessica is Gerald’s wife. Kim, Gerald’s daughter, hears a shot from her apartment across the street from the shooting. She runs over and sees her father in a pool of blood. Harry, Ivan, Jessica, and Kim sue Fidel for IIED. All of them are extremely upset about the shooting, but no one besides Ivan has manifested any physical symptoms. Which of these plaintiffs can prove the tortious conduct portion of the prima facie case for IIED under the Second Restatement?
B
This is a question that requires application of Restatement (Second) of Torts section 46(2). Right off the bat, we can eliminate Kim as a possible bystander. She was across the street in her apartment at the time of the shooting, and therefore she was not present at the time. (Perhaps being in the next room might be considered “present,” but not in an apartment across the street.) We can therefore eliminate Choices C and D, which both contain Kim. Harry also will not be allowed to recover as a bystander, because he is a friend, not an immediate family member, and he did not suffer any bodily harm. Choice A is therefore wrong. Jessica can recover because she is an immediate family member present at the time who suffered severe emotional distress. Ivan can recover as well. He is not an immediate family member (not even a friend), but he was present at the time and his severe emotional distress resulted in bodily harm. This makes Choice B correct. Note that this rule leads to some arbitrary results: Harry, the friend, cannot recover because he had no physical manifestations of his distress, but Ivan, the stranger, can recover because he was lucky enough (?) to vomit. Jessica gets to recover but Kim does not because she was down the block—even though Kim came on the scene and likely suffered a great deal of emotional distress from seeing her father in this state.
A buyer bought a large, nicely kept house near a university campus. She was able to buy the house for a very good price because it was located directly across the street from a fraternity house known for its frequent late-night parties. The buyer knew of the fraternity’s reputation before she bought the house. The reputation was well deserved, and the buyer found the noise from the parties extremely unpleasant and disruptive. The buyer has asked an attorney for legal advice regarding a possible nuisance claim against the fraternity. Which of the following responses would best express the applicable law?
A: “You have no nuisance claim, because the fraternity members have the right to use their property as they please.”
B: “You have no nuisance claim, because you came to the nuisance.”
C: “You might have a nuisance claim, but the fact that you bought the house fully aware of the fraternity’s habitual late-night activities will count against your claim and could help defeat it.”
D: “You will be able to recover damages in a nuisance action, because the late-night activities of the fraternity members violate your right to the quiet enjoyment of your property.”
C
A nuisance claim can be brought when there has been a substantial, unreasonable interference with another private individual's use or enjoyment of a property he actually possessed or to which he has a right of immediate possession. Normally, the buyer would be able to make an argument for nuisance. However, there are certain defenses available. If the plaintiff has assumed the risk, by "coming to the nuisance," the chances of recovery go down. Therefore, this is the best answer choice. A is incorrect. The fraternity members can use their property as they please, however, a cause of action for nuisance may still apply. B is incorrect. Even though the buyer came to the nuisance, the prevailing rule is that the buyer is entitled to reasonable use or enjoyment of her land to the same extent as any other owner as long as she buys in good faith and not for the sole purpose of a harassing lawsuit. D is incorrect. The buyer knew of the late-night parties when she purchased the house. Therefore, she may not be able to recover damages.
Fidel shoots Gerald for no good reason in front of Harry, Ivan, and Jessica. Harry is a friend of Gerald. Ivan has never met any of these people before and happened to be passing by. Ivan has been vomiting since the incident because he is so upset. Jessica is Gerald’s wife. Kim, Gerald’s daughter, hears a shot from her apartment across the street from the shooting. She runs over and sees her father in a pool of blood. Harry, Ivan, Jessica, and Kim sue Fidel for IIED. All of them are extremely upset about the shooting, but no one besides Ivan has manifested any physical symptoms. Which of these plaintiffs can prove the tortious conduct portion of the prima facie case for IIED under the Third Restatement?
C
This is a question that requires application of the Restatement (Third) of Torts section 46. Right off the bat, we can eliminate any answer that contains a non–family member—Harry or Ivan—because only family members have a chance to recover as bystanders for IIED under the Restatement. So Choices A, B, and D are incorrect. This leaves only Choice C, the correct answer. Both Jessica and Kim are immediate family members who (arguably in the case of Kim) contemporaneously perceived the accident. It is no longer necessary under the Third Restatement to be “present” at the time.
A gardener's backyard, which is landscaped with expensive flowers and shrubs, is adjacent to a golf course. While a golfer was playing golf on the course, a thunderstorm suddenly came up. As the golfer was returning to the clubhouse in his golf cart, lightning struck a tree on the course, and the tree began to fall in the golfer's direction. In order to avoid being hit by the tree, the golfer deliberately steered his cart onto the gardener's property, causing substantial damage to the gardener's expensive plantings. In an action by the gardener against the golfer to recover damages for the harm to his plantings, the gardener will
A: prevail, because, although occasioned by necessity, the golfer's entry onto the gardener's property was for the golfer's benefit.
B: prevail, for nominal damages only, because the golfer was privileged to enter the gardener's property.
C: not prevail, because the lightning was an act of God.
D: not prevail, because the golfer's entry onto the gardener's property was occasioned by necessity and therefore privileged.
A
A is correct. The golfer has the "incomplete" privilege of private necessity, which allows trespass (without being branded the legal status of trespasser) onto the property of another to avoid a serious personal threat to life or property, but keeps liability for any actual damage caused by the intrusion. The golfer's need to escape a falling tree in a thunderstorm qualifies as an emergency sufficient to invoke a necessity privilege. The privilege of private necessity means that the golfer is only liable for actual damages. B is incorrect. The golfer is not legally a trespasser due to the private emergency that caused him to take refuge on the gardener's property. The golfer's privilege to trespass is incomplete, however, so he must pay the gardener for any actual damages to the property as a result of the golfer's actions. C is incorrect. An act of God is generally used as a defense (superseding cause) in negligence to cut short liability. Instead, the sudden storm created an emergency situation that justified the golfer's intrusion onto the gardener's property. Because it was a personal emergency, however, the golfer is subject to the provisions of the incomplete privilege of private necessity and must pay the gardener for any actual damage to the gardener's property as a result of the entry. D is incorrect. If this had been a public emergency/necessity there would have been complete privilege with no liability. Private necessity, however, is an incomplete privilege, and the golfer is liable for any actual damages he caused.
Three shooters were out on a hunting trip. Plaintiff was out hunting separately. All three shooters shot in the direction of the plaintiff. Alan and Ben were acting negligently, and Carl, because of where he was standing, reasonably did not see that the plaintiff was in his line of fire. Though all three shot in the direction of the plaintiff, only one of the three hit the plaintiff in the eye, causing an eye injury. The plaintiff did not know which of the three shot the pellet that caused the injury. He sues Alan and Carl, but cannot find Ben to sue him. In pretrial motions, the plaintiff argues that the burden of proof should shift to Alan and Carl on the question of actual causation.
C
The plaintiff has two insurmountable problems in his attempt to use burden shifting under these facts. First, one of the defendants, Carl, did not act tortiously. All the defendants must act tortiously for the Summers rule to apply. Second, the plaintiff cannot prove that the wrongdoer is in court. It might have been Ben, who was not sued, who caused the injury. Because of both of these reasons, there will be no burden shifting. Unless the plaintiff can prove who caused the injury, the plaintiff’s case will fail. Choice C is the correct choice, and the other choices are wrong for this reason.
Eddie Haskell aims a gun at his childhood enemy, Beaver and fires the gun over Beaver's head intentionally. The shot misses Beaver, goes through a wall, and hits Wally, who is sitting in the next room. (Eddie doesn't know that Wally is there.) Wally lives and sues Eddie for Battery. Eddie defends on the grounds that his act wasn't intentional because he intended to scare Beaver, not shoot Wally. Who wins?
Wally.
Eddie intended only to fire the gun over Beaver's head to frighten him, but accidentally shot Wally. Edde would still be liable for battery because there is a second type of intent that will suffice for battery: the intent to commit an assault (i.e., the intent to create the apprehension of harmful or offensive contact). Thus, one can be liable for battery even though he specifically intended that actual contact not occur!
A pedestrian was injured when hit by a chair that was thrown from an upper-story hotel window. The pedestrian sued the occupants of all the rooms from which the chair might have been thrown. At trial, the pedestrian has been unable to offer any evidence as to the exact room from which the chair was thrown. The defendants have filed a motion for a directed verdict. Should the court grant the motion?
A: No, because it is unreasonable to expect the pedestrian to prove which of the defendants caused the harm.
B: No, because of the doctrine of alternative liability.
C: Yes, because a plaintiff always has the burden to prove that a particular defendant’s conduct was the factual cause of the plaintiff’s physical harm.
D: Yes, because the pedestrian has failed to offer evidence that the defendants jointly engaged in tortious conduct.
D
When two or more tortious acts combine to cause an indivisible injury to a plaintiff, each tortfeasor is jointly and severally liable for that injury. Defendants in a civil suit can be held jointly and severally liable only if their concurrent acts brought about the harm to the plaintiff. These acts do not have to be simultaneous, they only must contribute to the same event. Here, only one occupant threw a chair out of the upper-story hotel window. There is no evidence that the defendants all contributed to the harm that the pedestrian suffered. Therefore, the motion for directed verdict should be granted.
Ursula has just robbed a bank, and she is being chased by Vic, a police officer. Both are driving down the highway in their automobiles. Ursula exits, followed closely by Vic. Ursula ends up on a dead-end street. She stops and Vic pulls up close behind her. Vic, remaining in his car, tells Ursula to step out of the car, but she doesn’t. Instead, she puts her car in reverse suddenly and forcefully. Her car rams Vic’s car, and Ursula gets away until she is caught a few minutes later by other police officers. Vic has sustained three broken ribs. Vic sues Ursula for battery. Can Vic prove the prima facie case for battery?
Choice B is a very common wrong answer for students. It is not enough that a defendant sued for battery intended harm. There must be an intent to make a contact (or to meet the section 11 requirements). Ursula could ram her car into Vic’s fence, intending him harm. But that would not be a battery because a fence is not a person of the other or a third person. Choice C includes an incorrect statement of the law: One certainly can commit a battery with an automobile. If Vic were standing outside his car, and Ursula intentionally ran into him with her car, every court in the country would say that the fact that Ursula used an automobile to create the harmful contact does not protect Ursula from the battery charge. Choice D is wrong. To be liable for battery, Ursula could have intended a contact with Vic. She did not need to have intended to put Vic in imminent anticipation of contact. The strongest argument against Vic being able to make out the prima facie case for battery is that a car is so far removed from a person so as not to be considered—like eyeglasses or a cane—as part of the “person of the other.” Choice A is right because it is conditional: Vic can prove the elements of the tortious conduct portion of the prima facie case for battery if the car is considered the “person of the other.”
A landowner who owned a large tract of land in the mountains sought to protect a herd of wild deer that lived on part of the land. Although the landowner had posted signs that said, “No Hunting—No Trespassing,” hunters frequently intruded to kill the deer. Recently, the landowner built an eight-foot-high chain-link fence, topped by three strands of barbed wire, across a gully on her land that provided the only access to the area where the deer lived. A wildlife photographer asked the landowner for permission to enter the land to photograph the deer. Because the landowner feared that any publicity would encourage further intrusions by hunters, she denied the photographer’s request. Frustrated, the photographer attempted to climb the fence. He became entangled in the barbed wire and suffered extensive lacerations. The wounds became infected and ultimately caused his death. The photographer’s personal representative has sued the landowner. Is the personal representative likely to prevail?
A: Yes, because the landowner may not use deadly force to protect her land from intrusion.
B: Yes, because the landowner had no property interest in the deer that entitled her to use force to protect them.
C: No, because the photographer entered the landowner’s land after the landowner had refused him permission to do so and therefore was a trespasser.
D: No, because the potential for harm created by the presence of the barbed wire was apparent
D
The landowner employed reasonable use of force (the barbed wire) to defend her property, without any attempt to conceal it, which was apparent to the photographer. An average person would stay away from protruding, sharp barbed wire covering the top of a fence. However, the photographer disregarded the obvious risk and proceeded anyway, allowing himself to become severely injured. A is incorrect. Although this is a true statement (landowners may not use deadly force to defend against mere trespassers), the barbed wire here did not amount to "deadly force." To be deadly, someone would have to get major parts of their body extensively caught up in barbed wire. An average person would not have proceeded, especially to such an extent, and thus the photographer assumed the risk. B is incorrect. The landowner had a property interest in the land, which entitled her to protect that interest through reasonable force, even if her motive was primarily to protect the deer. C is incorrect. Even trespassers can sue for injuries caused by certain dangers on a landowner's property, although this does not apply in this case, where the landowner acted properly and the photographer assumed the risk.
Pam is a child who has suffered neurological damage because she ingested lead. The lead came from paint that had peeled off the wall in her apartment. Her apartment, which is in a building that is 100 years old, had been painted with many coats of lead paint over the years. The paint came from different manufacturers; some went out of business and many others are impossible to identify. Each formulation of lead paint contains different amounts of lead. Pam (through her parents) sues the manufacturers of lead paint that she can find in the area (some are out of business or bankrupt), arguing that their conduct constituted negligence and a product defect. She does not know whose paint caused her injury. The manufacturers argue the case cannot go to a jury because Pam cannot prove actual causation.
How should the court rule on the manufacturers’ argument?
D
“But for” causation. Pam cannot prove “but for” causation. She cannot point to any defendant and prove that but for this defendant’s tortious conduct in marketing the lead paint used some time in the past in her apartment, the injury would not have occurred.
Independent concurrent causation. This does not look like an A + B scenario. It is not as though each coat of paint, setting aside the others, would have caused exactly the same injury as Pam actually suffered. Choice A is therefore incorrect.
Alternative liability. Pam cannot prove that the lead paint manufacturer that caused her injury is in court, because some of the manufacturers are out of business or bankrupt. Without such proof, she cannot shift the burden using alternative liability. Choice B is incorrect.
Market share liability. Unlike DES, lead paint is not an identical/fungible product. We are told that each of the lead paint formulas had different amounts of lead. This is not a situation where we know that one defendant has caused the injury and others have marketed identical products to other plaintiffs, allowing for a market share liability approach for all plaintiffs and defendants. We don’t know if the manufacturers Pam is suing make up a substantial share of the market. For these reasons, even though Pam through no fault of her own cannot prove which defendant’s lead paint caused her injury, market share liability cannot work. (That’s the conclusion that the Pennsylvania Supreme Court reached in the Skipworth case.) For these reasons, Choice C is incorrect.
The governor of a state signed a death warrant for a convicted murderer. Two protesters are active opponents of the death penalty. At a demonstration protesting the execution of the murderer, the protesters carried large signs that stated, "The governor - Murderer." A television station broadcasted news coverage of the demonstration, including pictures of the signs carried by the protesters. If the governor asserts against the television station a claim of damages for intentional infliction of emotional distress, will the governor prevail?
A: Yes, because the broadcast showing the signs caused the governor to suffer severe emotional distress.
B: Yes, because the assertion on the signs was extreme and outrageous.
C: No, because the governor did not suffer physical harm as a consequence of the emotional distress caused by the signs.
D: No, because the television station did not publish a false statement of fact with "actual malice.
D
To prevail on a claim for intentional infliction of emotional distress, a plaintiff is required to prove that the defendant engaged in extreme or outrageous conduct with an intent to cause severe emotional distress. Merely broadcasting news coverage, including news coverage of opinion statements would not be extreme and outrageous conduct by the news station, because it was not published with actual malice. A is incorrect. As part of the prima facie case for IIED, the plaintiff must prove severe emotional distress. However, there are no facts in the fact pattern that suggest that the governor suffered any kind of emotional distress from the television broadcast. Because the facts do not discuss any emotional distress, this answer choice can be eliminated. B is incorrect. The governor is suing the television station, so he will need to prove that the broadcast amounted to extreme and outrageous conduct. The signs are an action by a third party and are irrelevant to whether the broadcast was extreme and outrageous. C is incorrect. Physical injury is not required for recovery of an IIED claim. The plaintiff must only prove severe emotional distress as damages. Therefore, the governor would not be required to show physical harm to recover against the television station.
A homeowner resides downhill from a metal fabrication facility. She has sued both the owner of the facility and the supplier of a solvent used at the facility. She contends that contaminants, consisting mostly of the solvent, were released into the ground at the facility and have migrated and continue to migrate to her property, contaminating the soil, the groundwater, and her well. She alleges various acts of negligence on the part of the facility owner in causing the release of the contaminants into the ground. She also alleges that employees of the solvent supplier were negligent in frequently spilling some of the solvent onto the ground while filling a rooftop tank at the facility. The solvent supplier has moved for summary judgment, arguing that if there was any contamination, the facility owner and the supplier independently contributed indeterminate amounts to the contamination and that therefore the homeowner cannot show how much damage each has inflicted on her. There is no evidence that the facility owner and the solvent supplier acted in concert. Should the court grant the summary judgment motion?
A: No, because concurrent tortfeasors are jointly and severally liable for an indivisible injury.
B: No, because the solvent supplier is vicariously liable for damage inflicted by the facility owner.
C: Yes, because there is no basis for allocating damages against the solvent supplier.
D: Yes, because there is no evidence that the facility owner and the solvent supplier acted in concert.
A i
When two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortfeasor is held to be jointly and severally liable for that injury. Meaning, each is liable to the plaintiff for the entire damage incurred. This applies even if each tortfeasor acted independently. Therefore, the homeowner would not need to show how much damage the facility owner and supplier contributed in order to recover damages. Each party would be liable to the homeowner for the entire damage amount. B is incorrect. Vicarious liability occurs when one person commits a tortious act against a third party, and another person is liable to the third party for this act. This type of liability only occurs when there is a special relationship between the tortfeasor and the person to whom the tortious conduct is imputed. There is no special relationship here so vicarious liability does not apply. C is incorrect. There does not need to be a way of allocating damages against the solvent supplier because the supplier will be held to be joint and severally liable. D is incorrect. The facility owner and solvent supplier do not need to act in concert for there to be joint and several liability. As stated above, each is liable even if they acted independently.