Intentional Torts and Defenses
For purposes of liability for assault, what is the difference between fear and apprehension?
Both fear and apprehension take place from the perspective of the target, or plaintiff. Apprehension refers to anticipation: the plaintiff expects harmful contact. Fear refers to the way he feels about such contact. Fear is narrower than apprehension; in assault cases every feared contact is an apprehended contact, but not every apprehended contact is a feared contact. A plaintiff might apprehend, but not fear, an instance of imminent harmful contact for several reasons. He might be strong enough to withstand pain or laugh it off; he might have faith that no harm can befall him; he might rate himself as stronger or more dangerous than the assailant.
Courts sometimes hold that a defendant owes no duty to an “unforeseeable plaintiff.” What is an unforeseeable plaintiff?
An unforeseeable plaintiff is a plaintiff whose claim arises based on the negligence of a defendant with respect to a different plaintiff. The famous Palsgraf v. Long Island R.R. Co. provides an illustration. According to the Cardozo opinion, railroad employees negligently pushed and pulled a passenger onto a departing train, causing the passenger's package (which did not appear dangerous) to fall from his arms and explode. This negligence, Cardozo held, created liability only to a small set of potential plaintiffs who were close to the place where the railroad's [113/114] employees carelessly pushed and pulled the passenger onto the train. Palsgraf was standing at some distance from the push and suffered injury from the explosion. According to the Cardozo rationale, Palsgraf was an unforeseeable plaintiff. The risk of injury to her was outside of what a reasonable person in the position of defendant's employees would have foreseen.
When a child is a defendant in a negligence action, to what standard of care is the child held?
The child is held to the standard of a child of similar age, intelligence, and experience. This treatment is unavailable to most adult defendants, for whom individual age, intelligence and experience usually are not taken into account. An exception arises when the child engages in an activity that is usually limited to adults. In this situation, the child is held to the reasonable person standard, with personal characteristics omitted from analysis.
Contractor entered into a contract to construct an office building according to Owner’s specifications. The specifications called for the front door of the building to face south. Contractor constructed the building with the door facing west. Owner sued Contractor for breach of contract. Under which of the following circumstances, if any, is Owner likely to recover the cost to remedy the error?
(A) The building must be razed and rebuilt with the front door facing south.
(B) A building with a front door facing south is more aesthetically pleasing than a building with a front door facing west.
(C) The specifications called for the front door to face south so that Owner could capitalize on prevailing winds to cool the building.
(D) Owner will not be entitled to recover the cost to remedy the defect under any circumstances.
(C) is the correct answer. Under the Restatement (Second) of Contracts, the non-breaching party to a contract can recover the cost to remedy defects or complete performance if that cost is not clearly disproportionate to the loss in value to the non-breaching party. A court is most likely to award the cost to remedy a defect in performance even though it exceeds the loss in value to the owner where the defect frustrates the purpose of the contract. Here, the defect frustrates the purpose of the contract because the defect prevents Owner from using the prevailing winds to cool the building.
Answer (A) is incorrect. Because the building has to be torn down and rebuilt, a substantial part of the cost to remedy the defect will consist of the cost to undo the defective performance. Where a large part of the cost to remedy the defect consists of the cost to undo the defective performance, courts generally will not award the cost to remedy. See Jacob & Youngs v. Kent, 230 N.Y. 239 (1921); Restatement (Second) Contracts § 348, cmt. c.
Answer (B) is incorrect. Because this is an office building that Owner presumably holds for commercial rather than personal reasons, the aesthetic appearance of the office building is not likely central to the purpose of the contract. Therefore, the court would be unlikely to award the cost to remedy if it exceeds the diminished market value of the property.
Answer (D) is incorrect. As discussed above, the court is likely to award the cost to remedy the defect under the circumstances described in Answer (C).
Umberto thought he might have a heart problem, and went to the emergency room. There, Doc diagnosed Umberto as suffering from fatigue, and sent him home. Umberto died that night. Doc's diagnosis was mistaken. Umberto had suffered a massive heart attack. It is undisputed that, if Doc had diagnosed him correctly, Umberto would have had about a 40 percent chance of surviving. Sending Umberto home reduced his chance of survival to near zero.
Which of the following statements is correct?
(A) In a jurisdiction adopting a traditional view of causation, Doc will be liable for Umberto's death.
(B) In a jurisdiction following a traditional view of causation, Doc will not be liable for Umberto's death.
(C) In a jurisdiction adopting a “lost chance of survival” theory, Doc will be liable for all damages resulting from Umberto's death.
(D) In either a traditional jurisdiction or one adopting a “lost chance of survival” theory, Doc will be liable for all damages resulting from Umberto's death.
Answer (B) is correct. The traditional view of causation holds that a negligent party is only responsible if the jury concludes that it is more likely than not that the party caused the harm suffered by the plaintiff. In this case, Paul had only a 40 percent chance of survival even if diagnosed and treated properly. Thus, under the traditional rule, it cannot be said that “but for” Doc's negligent diagnosis, it is more likely than not that Paul would have survived.
Answer (A) is incorrect for the reasons just given.
Answer (C) is incorrect because under the “lost chance of survival” theory, courts permit recovery of a proportional amount of the plaintiff's damages when the defendant's negligence deprived the plaintiff of a significant chance of recovery. A 40 percent chance of recovery is probably significant. Thus, in this case, a court might allow plaintiff to recover 40 percent of the total loss. (Note that there are many different “lost chance” formulations. Most allow reduced damages, but they use different kinds of calculations.)
Answer (D) is incorrect because, as stated above, most courts adopting a “lost chance” theory award reduced damages.
For purposes of trespass law, how does sub-surface entry differ from entry into land by air?
Subsurface entry differs from entry by aviation in a few ways. It almost always touches ground possessed by the plaintiff, whereas an airplane can enter someone's land at 37,000 feet, invisible and impalpable. Thus, it is more likely to disrupt the plaintiff's life. Subsurface entry also can involve extraction—that is, removal by the defendant of valuable materials below the surface of the plaintiff's land—in contrast to air entry, which typically takes nothing away.
A classic case touching on both these themes, Edwards v. Sims, 24 S.W. 2d 619 (Ky. 1929), raises the problem in pure form. The defendant extracted nothing and did his entry from the outside rather than by setting foot on the plaintiff's land. His motive for entering was to explore a beautiful cave, of which the plaintiff had been ignorant, in the hope of creating a ticket-selling attraction. Should he be kept out through a strict application of the cujus est solum maxim? Edwards v. Sims invites an economic analysis of the rule that land possessors can prohibit or discourage wealth-generating entry below the surface of their land.
Boater Bill was out on his boat on a warm summer afternoon. He was enjoying himself with a great day at the lake. Bill enjoyed seeing just how fast his boat would go and was pushing it to full throttle. Since it was such a beautiful day, Bill was going as fast as he could while looking around at the lovely scenery. Bill failed to notice that another boater was pulling a water skier in the water. Bill ran right at the water skier and hit her. The water skier, Jane, suffered serious personal injury. Jane sued Bill in negligence for those injuries. Bill claimed that he was doing the best he could in light of the warm day and beautiful scenery.
Bill wants to claim that he was not aware of how long it would take the boat to stop. He alleges that he had only had the boat for one season and did not realize that it would coast after he shut the engine off. He says he saw the skier, shut off the engine, turned the rudder, but the boat just slid right into Jane. Will Bill’s lack of experience with the boat be a defense?
A. Yes. A person cannot be held to have more knowledge than they actually have. That would be strict liability.
B. No. A person is held to the ordinary prudence of the community in which they live and act.
C. Yes. The law allows for those in the community who are less well able to mentally function.
D. No. Boating is a hazardous activity and strict liability ought to apply.
B. Correct. Negligence requires that defendants have ordinary prudence. This means that a defendant will be held to the level of knowledge or understanding that other ordinary people in the community will have. If Bill chooses to have a boat, he will be held to the level of knowledge that other boaters have.
Which of the following negligence actions provides the best example of breach of duty demonstrated through circumstantial evidence?
(A) Questo v. Quello: Questo can prove that Quello, though blind, was not using a cane when he collided with Questo.
(B) Pendayho v. Veruca: An eyewitness testifies that when Pendayho was crossing the street, Veruca was driving at approximately 40 miles an hour in a 25-mph speed limit zone.
(C) Gownad v. Bryant Motel: After staying for several days at the Bryant Motel, Gownad experienced scabies, an intensely itchy skin condition caused by a burrowing mite.
(D) Bettsee v. Yender's: Bettsee slipped and fell into a puddle of shampoo in an aisle of Yender's supermarket. The spilled shampoo was grimy and mixed with grit.
Answer (D) is correct. Circumstantial evidence asks for inferences from physical conditions. Grimy, gritty spilled shampoo was probably lying on the floor for a while, suggesting an unreasonable delay on the part of the defendant. Reasonable care would mean mopping it up promptly.
Answer (A) is incorrect. This answer addresses an issue separate from circumstantial evidence, the standard of care for a blind person.
Answer (B) is incorrect. Eyewitness testimony about behavior is not circumstantial evidence.
Answer (C) is incorrect. It is possible that the plaintiff was injured because of carelessness at the hotel, but this answer does not give enough information to suggest that such negligence occurred.
Which of the following are appropriate factors for the jury to consider in determining an award of punitive damages?
(A) The financial condition or wealth of the defendant.
(B) The extent of harm to the plaintiff.
(C) The plaintiff’s litigation costs.
(D) All of the above.
Answer (D) is the correct answer. Most states permit a jury to consider a defendant’s net wealth or financial condition under the theory that a sanction must be greater to punish a wealthy defendant than a poor defendant. The use of financial condition or net wealth has been subject to much criticism recently, including by the Supreme Court. However, the Supreme Court has not prohibited the use of net wealth as a factor, and most courts continue to permit juries to consider net wealth. Indeed, one state, California, has mandated that juries must consider net wealth in determining the size of a punitive damage award. Perhaps more controversial is the consideration of the plaintiff’s litigation costs. Punitive damages are imposed to punish the defendant and deter the defendant and others from engaging in similar misconduct. The plaintiff’s litigation costs would seem to have no relationship to these two goals. However, some commentators have recognized financing litigation as an ancillary goal of punitive damages. Additionally, some commentators have justified consideration of litigation costs on deterrence grounds. Awarding litigation costs increases the likelihood that a plaintiff will bring suit. Increasing the likelihood that a plaintiff will bring suit, in turn, deters a defendant from engaging in misconduct. Finally, most states permit a jury to consider the extent of the plaintiff’s harm on the ground that the extent of the plaintiff’s harm is one indicator of the gravity of the defendant’s misconduct. Thus, all of the listed factors are appropriate for a jury to consider in determining an award of punitive damages. Indeed, each factor has been utilized in at least one state. This result is found in Answer (D), making Answer (D) the correct Answer and Answers (A), (B) and (C) incorrect.
In the classic merged-fires problem of accident law, a defendant carelessly starts a fire on its own property, or carelessly fails to contain a fire after building it. Call this fire F1. F1 leaves the defendant's land, headed in the general direction of the plaintiff's property. Along the way F1 merges with F2, a separate fire of innocent or unknown origin. The merged fire then arrives on the plaintiff's property, causing damage. Assume that either F1 or F2 would have been big and powerful enough to cause the plaintiff's damage by itself if the two had never merged.
The merged-fires problem is important to tort law because it challenges
(A) the doctrine of superseding cause.
(B) the but-for test for actual cause.
(C) the preponderance-of-the-evidence rule.
(D) the second injury rule of proximate cause
B) is correct. Sometimes known as “multiple sufficient causes” or “duplicative causation,” this convergence challenges the but-for test because if the but-for test is applied, neither the negligently caused fire nor the innocent fire is the cause of the plaintiff's damage, which seems wrong or at least odd. Restatement (Second) of Torts §431 coined the “substantial factor” test to provide for liability of the negligent defendant, but the current Restatement has abandoned this term.
Answer (A) is incorrect because superseding events or causes are different in kind from the original negligence.
Answer (C) is incorrect because preponderance of the evidence has no relation to the problem described.
Answer (D) is incorrect because the merged-fires scenario is about actual cause, not proximate cause, and because the second injury rule involves carelessly furnished medical treatment.
Following a verbal dispute about the relative merits of two professional volleyball teams, Rupert and Hannah engaged in a fistfight in an alleyway behind a bar. They pounded at each other until the police arrived. The police arrested them both for assault and disturbance of the peace. Both were injured by the other's blows.
Discuss their tort claims with reference to battery and consent
Rupert has a claim against Hannah, and Hannah has a claim against Rupert, for battery. Battery is the intentional infliction of harmful contact. Each of these two individuals “pounded at” the other in this fistfight that began as a discussion of professional sports, indicating that the blows were intentional acts. Hannah and Rupert both desired to inflict harmful contact on the other, and harmful contact resulted from their actions. Jurisdictions differ on whether their consent to the blows will bar their claims. The fistfight appears to have been consensual. The majority rule is that consent to an illegal act is ineffective. The Restatement (Second) of Torts and some jurisdictions disagree, holding that consent to a criminal act is a valid defense in an action for an intentional tort. If the jurisdiction follows the majority rule, the status of the fistfight as a criminal breach of the peace would make the consent ineffective, and so Rupert and Hannah would each have a battery claim against the other
Mr. Davis had a very difficult day. When he awoke, everything seemed just fine and he went to work. Before he went to work, he stopped to get some coffee at the local coffee shop. While in the coffee shop, he suddenly felt that he had to do something to save the other people in the shop from suffocating. He grabbed one of the chairs and threw it through a window. He was trying to get some air into the room. It was later discovered that Mr. Davis had a sudden occurrence of mental illness. He had to be hospitalized. There was nothing wrong in the coffee shop. The coffee shop would like to sue Mr. Davis for the damage to the window.
A. Mr. Davis will avoid liability by using an insanity defense to the claim.
B. Mr. Davis will avoid liability by proving that a reasonable person would not be able to plan for a sudden mental illness.
C. Mr. Davis will be liable since mental illness, even sudden mental illness, is not a defense to a negligence claim.
D. Mr. Davis’ mental illness will shift the burden of proof to the coffee shop.
C. Correct. Although there are a few jurisdictions that may allow some use of mental illness in negligence cases where that mental illness is unexpected, most jurisdictions do not allow an insanity defense in torts. Mr. Davis will be held to the standard of a reasonable person of ordinary prudence under similar circumstances. Reasonable people do not throw chairs through windows.
When Yarble was operating his motorboat at a dangerously fast speed, he found himself about to collide with another motorboat, operated by Mizuoko. Yarble did not have enough time to stop and his motorboat collided with Mizuoko's boat. Mizuoko brought an action against Yarble for personal injuries. Yarble argued that, under the emergency doctrine, he did not have enough time to prevent the collision, and so should not be liable.
Explain why Yarble's argument should fail.
The emergency standard of care gives actors an extra measure of leniency when their behavior is assessed in a negligence claim. They are held to the standard of a reasonable person under the same emergency. This standard is not applied when the actor's own wrongful conduct caused the emergency to occur. Yarble should be liable.
Which of the following is not an example of special or consequential damages?
(A) Medical expenses in a personal injury action.
(B) Damages for lost use in an action for damage to an automobile.
(C) Lost earnings in an action for defamation.
(D) None of the above.
D) is the correct answer. Special damages are those damages which do not flow necessarily and inherently from the breach but instead are caused by the particular needs of the non-breaching party. Generally, special damages are those that arise from the use of the object of the action rather than the injury or loss of the object itself. Under the Restatement (Second) of Torts, damages like the medical expenses in Answer (A) are considered special damages. Damages for loss of use of an automobile in Answer (B) are special damages. They are not damages to compensate for the actual damage to the vehicle. Instead, they are damages that arise from the owner’s particular use of the automobile. Lost earnings in the defamation action in Answer (C) are also special damages. An injured party’s specific lost earnings will depend on the particular individual’s circumstances. Thus, all of the circumstances described in the problem are examples of special damages.
Hannah suffered a heart attack. Her husband, Hardy, dialed 911, but was unable to get through because the telephone network had crashed due to a poorly performed maintenance check. Hannah died. Hardy has brought an action on behalf of the deceased Hannah against Phone Co. for negligence.
If Phone Co. claims that there was no cause-in-fact relationship between its conduct and Hannah's death, which of the following statements is most likely correct?
(A) To prevail, Hardy must prove that had the phone lines been open, Hannah would not have died, or that her life would have been extended in some meaningful way.
(B) To avoid being held liable, Phone Co. must prove that had the phone lines been open, Hannah would have died anyway, or that her life would not have been extended in some meaningful way.
(C) If it was not foreseeable that the phone network would be down and that a person would die because the 911 service would be unreachable, there was no cause in fact relationship between Phone Co.'s conduct and Hannah's death, and Hardy will not prevail.
(D) Because Phone Co. did not act, there is no cause in fact relationship, and Hardy will not prevail.
Answer (A) is correct. Hardy must establish that it is more likely than not that had he been able to reach a 911 operator, Hannah would have survived, at least for a meaningfully longer time. Proving a negative is, of course, difficult, but that is a problem faced by plaintiffs in many tort cases.
Answer (B) is incorrect because the burden of proof on causation lies with the plaintiff, not the defendant. This is true of the other elements of the prima facie case for negligence as well.
Answer (C) is incorrect because foreseeability is not part of the determination of cause in fact. Foreseeability factors into proximate cause, but not cause in fact.
Answer (D) is incorrect because a failure to act can have a causal connection to harm. Moreover, Phone Co. (like the driver), has engaged in some action: it has operated the 911 emergency system. The problem is that it did not do a good enough job of making the system available to callers when the phone lines were very crowded. Even if this is viewed as a case of nonfeasance, however, Phone Co.'s failure to provide Hardy with a connection to 911 will be viewed as a cause in fact if, but for that failure, Hannah's life would have been extended meaningfully or saved
A man was sitting on a bus playing a game on his new handheld game console. Another passenger sat down next to him, said, “Hey, I always wanted to see how that system worked, may I look at it?” The man held the console out and said “Sure, take a look,” after which the passenger grabbed the console out of the man’s hands. If the man sues for battery will he prevail?
A. The man will not prevail unless the passenger touched the man’s hand when he grabbed the console.
B. Yes, the man will prevail on a battery claim if the passenger contacted the console when the man was holding it.
C. It is not a battery because the passenger did not intend to cause harm, but only to look at the console.
D. The passenger will prevail because the man consented to his taking the console.
D. The passenger will prevail because the man consented to his taking the console.
In the last few seconds of a professional hockey game, Gilles, a player whose team trailed by one point, hit a hard shot toward the goal from a great distance. A long shot in every sense of the word, this play was a desperate effort to tie the game. The puck missed the goal and flew into the stands, striking Fred, whose seat was several rows up from the ice. Fred brings an action against Gilles.
Which of the following statements is most accurate?
(A) Because Gilles knew with substantial certainty that the puck would strike somebody if it did not go into the goal, he can be liable for battery.
(B) Because Gilles should have known with substantial certainty that the puck would strike somebody if it did not go into the goal, he can be liable for battery.
(C) Because Gilles negligently hit the puck, he can be liable for negligence.
(D) Gilles ought to prevail.
(D) is correct. Even though Gilles' shot was in desperation, what he did was still something inherent in the game: fire a puck at high speed. And pucks fired at high speed often leave the ice and sometimes even fly into the stands. This is a risk inherent in attending a hockey game, and courts hold that spectators lose the right to sue for injuries caused by such a risk. Put differently, Gilles did not have a duty to refrain from hitting the puck into the stands during the game. This is considered by most courts to be a case of “primary” assumption of risk, and completely defeats recovery.
Answer (A) is incorrect because nothing suggests that Gilles had substantial certainty that the puck would hit anyone if it did not go into the goal. This answer simply misreads the facts.
Answer (B) is incorrect because “should have known with substantial certainty” is not sufficient to meet the intent requirement for battery.
Answer (C) is incorrect because the facts do not suggest that Gilles' shot was negligent. And even if it was, this is precisely the purpose of the primary assumption of risk doctrine. Gilles did not have a duty toward fans to refrain from negligently striking the puck.
Saturday, Lawrence took his daughter Naomi, age six, to an amusement park owned by AmuseCo to ride the carousel. Naomi climbed onto one of the wooden horses, and Lawrence attached the little safety belt around her waist. Naomi was the only rider on the carousel. Lawrence then stood at the side of the horse to hold Naomi in case she needed help. The music started and the carousel began to turn slowly. Instead of settling in at a constant rate of speed, the carousel continued accelerating. The carousel reached a speed of more than twice the rate it had reached the same day. Naomi was thrown from her horse onto the spinning platform, breaking her leg. Naomi brings an action against AmuseCo for negligence. She offers in evidence the facts just stated, and then rests. AmuseCo moves for a directed verdict on the ground that Naomi has not offered any evidence of negligence. Naomi responds that the court should deny the motion because of the doctrine of res ipsa loquitur.
Which of the following statements is most likely correct?
(A) Even if res ipsa loquitur applies, it can be used only to supplement other direct evidence pointing to negligence on defendant's part. Here, because no such evidence was offered, the court should grant AmuseCo's motion.
(B) While it is possible that res ipsa loquitur can be applied, expert testimony is always required when the issue concerns whether a malfunction in a mechanical device was caused by negligence. Because Naomi has not offered such evidence, the court should grant AmuseCo's motion.
(C) Because possibilities other than negligence can explain the accident, the doctrine does not apply, and the court should grant AmuseCo's motion.
(D) Because the circumstantial evidence supports the inferences necessary for application of res ipsa loquitur, the court would not err in denying AmuseCo's motion.
Answer (D) is correct. Res ipsa loquitur applies when (1) this is the type of accident that is usually caused by negligence; (2) the instrumentality that caused the accident was in the exclusive control of the defendant; and (3) the plaintiff did not contribute meaningfully to the accident. Here, requirement (3) (which is somewhat redundant of the second requirement) is clearly satisfied; Naomi had nothing to do with the accident's occurrence. The real issues are whether there was probably negligence and whether any negligence was probably that of AmuseCo (whether the instrumentality was in AmuseCo's possession at the time of any negligence). It seems reasonable to infer as a matter of common sense and experience that a carousel does not normally accelerate too much unless there is negligence in its operation or maintenance. Though it would be better for Naomi to offer expert testimony to establish this fact, most courts would probably hold that an expert is not absolutely required to get the case to the jury. (At the very least, an appellate court is unlikely to hold that the trial court erred [121/122] in denying a motion for directed verdict even though Naomi did not offer expert testimony.) And because the carousel was owned and operated by AmuseCo, it is highly likely that any negligent operation or maintenance was AmuseCo's responsibility.
Answer (A) is incorrect because a negligence case may be established purely through circumstantial evidence. Res ipsa loquitur does not operate only if there is direct evidence of negligence.
Answer (B) is incorrect because, as noted above, this is not a situation in which expert testimony is required to establish the first element of the res ipsa loquitur test.
Answer (C) is incorrect because a plaintiff is not required to eliminate all other possibilities in order to get a case to the jury based on circumstantial evidence. The court need only find that a reasonable jury could believe that, more likely than not, that there was negligence, and that defendant was the negligent party.
For what two purposes are punitive damages usually imposed?
Punitive damages are imposed primarily to punish a defendant and to deter the defendant and others from engaging in similar misconduct. Some courts and commentators have recognized some additional non-compensatory functions such as financing the cost of litigation.
In which of the following scenarios does the but-for approach to actual cause work just fine, needing no modification?
(A) Dr. Ticktock failed to follow her occupational standard of care when providing anesthesia to patient Phool. Phool had a heart attack on the operating table and died. If Dr. Ticktock had followed the standard of care, Phool would have had a 30 percent chance of survival. Phool's estate brought an action against Dr. Ticktock.
(B) Ursuline, an auto mechanic, negligently failed to secure the brakes she installed on Leandra's automobile. Before Leandra could pick up her car from Ursuline's garage, her enemy Anita slipped in and tampered with the brakes so that they would fail when used. As soon as Leandra drove out of the garage and tried to brake while exiting to the street, the brakes failed. Leandra's car hit a wall and Leandra suffered physical injury. Leandra brought an action against Ursuline.
(C) Snick, Inc., manufactured a cigarette lighter that, unlike other cigarette lighters, was easy for young children to (mis)use. Five-year-old Wilmot went into his mother's purse and found her Snick lighter. Wilmot started a house fire that led to injuries. His family brought an action against Snick, Inc.
(D) Gopher Industries manufactured an industrial solvent that is safe to use at full strength but becomes erratic and dangerous when mixed with water. At a manufacturing plant owned and operated by Skoliosis, managers made a careless decision to dilute the Gopher solvent in the hope of saving money. Workers suffered injury as a result and, unable to recover from Skoliosis due to the workers' compensation bar, brought an action against Gopher.
Answer (C) is correct. This products liability action features a product that is unreasonably dangerous because of foreseeable misuse by children. But for this danger, the harm would probably not have occurred.
Answer (A) is incorrect because but for the negligence of the defendant, the outcome would probably have been the same.
Answer (B) is incorrect for the same reason as Answer A. Negligence by the defendant was not necessary for the harm to occur.
Answer (D) is incorrect because the defective product or negligent conduct (we can use those terms interchangeably here) was not sufficient to cause an injury.
Book consented to an exploratory spleen operation, which would take a small sample of spleen tissue for testing. While Book was heavily sedated before the operation, Dr. Fell induced her to sign a further consent form allowing the use of the spleen tissue in the development of gene therapies for spleen disorders. Dr. Fell then performed the operation in a competent fashion and completed the normal testing on Book’s tissue. The tissue was then sent to Dr. Fell’s laboratory for gene therapy development, as noted. Book later learned of the consent form she signed while sedated, and sued Dr. Fell for battery. Who will prevail?
A. Dr. Fell will prevail because Book consented to the operation.
B. Dr. Fell will prevail because Book consented to the use of her spleen tissue for experimentation.
C. Book will prevail because Dr. Fell exceeded the scope of her consent to the operation.
D. Book will prevail because her consent to the operation was obtained fraudulently while she was sedated, and is therefore invalid.
A. Book gave two consents in this scenario, only one of which was suspect. The consent to the operation itself appears to be valid and knowing, and would cover the technically harmful contact of the operation. Nothing in the facts suggests that the operation was unnecessary or that Dr. Fell fraudulently induced Book to consent to it. This consent would therefore block any claim based on battery from the operation itself. The second consent form covered the use of the tissue obtained from the operation once testing was completed. It was not the consent to the operation itself. While this consent may be invalid, it would not invalidate the original consent to the operation. The invalidity of this second consent may give Book some claims for misuse of her tissue, but it would not likely include a claim for battery.
In Larry and Arthur v. Rugby Board of the United States, two players, ages 19 and 21, brought actions against the unincorporated entity that writes rules for amateur rugby. Larry and Arthur, who played on weekends in the same community league, were injured in separate games two years ago. Both were playing “nabber,” the middle position in the front row of the scrum. In the years before their injury, evidence had mounted to show that nabbers were endangered by the way opposing teams come together in a rugby game. Larry and Arthur noted that a year after they were injured, Rugby Board of the United States (RBUS) had modified the game rules so that players in the front row must first crouch, then pause, and then engage slowly. Their complaint alleged that RBUS injured them through negligent failure to amend the rugby rules at the time that danger to nabbers became known. RBUS now contends that it cannot be liable because it owed Larry and Arthur no duty of care.
Which analogy best supports RBUS's position?
(A) Choreographers are not liable to dancers for torn ligaments caused by inadequate pre-rehearsal stretching.
(B) Legislators are not liable to factory workers for failing to have enacted workplace safety legislation.
(C) Football linemen cannot recover for battery when they are tackled by opposing players.
(D) Employees who suffer fatigue from overwork cannot collect workers compensation when they become unable to continue their jobs.
Answer (B) is correct. This action blames a rule-writing authority for an injury that might have been prevented by the enactment of a more stringent rule. The defendant could argue that it ought not to be liable because legislatures are not liable for failing to enact safety legislation.
Answer (A) is incorrect because defendant-choreographers work directly with plaintiffs, whereas RBUS was a remote institution
Answer (C) is incorrect because it discusses liability for intentional torts rather than negligence and because, as in Answer (A), the defendants and plaintiffs there interact closely rather than remotely.
Answer (D) is incorrect because workers' compensation is dissimilar to liability, and because it presents no allegation of wrongdoing by any defendant.
Tom was jogging along a sidewalk that was beside a large hardware store. He was suddenly hit on the head, and injured, by a piece of roofing material. Not being sure where the material came from, Tom sued the large hardware store for his injuries. Clearly someone should have had a duty to keep from hitting Tom on the head with roofing material. What should Tom try to prove on the issue of breach?
A. The roofing material came from the roof of the hardware store, the roof was in the exclusive control of the store, and roofing material does not ordinarily fly off roofs unless someone is negligent.
B. The store had exclusive custody or control of the sidewalk beside the store, and sidewalks are ordinarily safe unless someone is negligent.
C. The roofing material was a type normally sold by the store, and there is no evidence of other purchasers in the area at the time of the accident.
D. The roofing material is similar to the type on the roof of the store and the store does not allow customers on the roof.
A. Correct. This is obviously a little summary of the elements of res ipsa loquitur. The other selections do not adequately address those elements.
For what two purposes are punitive damages usually imposed?
The Court identified three guideposts that indicated that the award in BMW v. Gore was grossly excessive: (1) the degree of reprehensibility; (2) the ratio of punitive damages to the amount of harm inflicted on the plaintiff; and (3) the comparison between the punitive damage award and civil and criminal sanctions for comparable misconduct.
Which of the following negligence scenarios, all involving a pedestrian named Wolfe crossing the street, bears the strongest analytical resemblance to Palsgraf v. Long Island Railroad Co.?
(A) As Wolfe was crossing the street, a circus procession came into Wolfe's view. The procession was moving at an unreasonably high speed. Wolfe's long-suppressed phobia, a fear of clowns, was triggered and Wolfe suffered severe emotional distress. Wolfe brought an action against the circus.
(B) Careless driving by Edna resulted in a near collision between Edna's vehicle and Wolfe. Because Brad, a passerby, spotted Edna's oncoming car in time, Brad was able to push Wolfe out of the path of the car. Brad's push caused Wolfe to suffer minor bruises. Wolfe brought an action against Edna.
(C) Lee's car, driven by Lee at an unreasonably high speed, hit Wolfe. Wolfe's body went flying “like a field goal,” as a witness later put it, and landed on another pedestrian, Dolores, standing 20 feet away on a sidewalk. Dolores brought an action against Lee.
(D) Fiddlehead, installing a sewer line under a sidewalk, negligently failed to fence off the worksite or post a warning sign. Pedestrians had little way to know about the hole in the ground Fiddlehead had dug. Wolfe fell into the hole. Because Wolfe suffers from a brittle bone condition, Wolfe's injury proved disabling for months. Ordinary pedestrians would [21/22] have suffered much less severe injury if they had fallen into the hole. Wolfe brought an action against Fiddlehead.
Answer (C) is correct. This question helps you find one of the takeaways of the most famous case you'll cover all semester (unless your instructor is among the minority who skip it). It is based on a real case, Dahlstrom v. Shrum, 84 A.2d 289 (Pa. 1951). Answer C presents Lee, located on the sidewalk at some distance from the collision site, as an unforeseeable plaintiff like Helen Palsgraf.
Answer (A) is incorrect because it illustrates a different problem, “the eggshell psyche.”
Answer (B) is incorrect because in this scenario, Wolfe is a foreseeable plaintiff who suffered an injury closely connected to negligent driving. The fortuity here is that Wolfe's damages were unexpectedly cheap, which is not the problem of Palsgraf.
Answer (D) is incorrect because it illustrates a different problem, “the eggshell skull.”