22.

TORTS SET B

TORTS QUESTIONS - SET B

Question 1 Question 2

A sailor steering his sailboat through a A six-year-old girl went with her father to look
channel was nearly swamped by a large cabin at Christmas decorations in the neighborhood.
cruiser. The sailor made an obscene gesture and One house had a variety of displays in the yard,
shouted epithets at the captain of the larger boat, including a large mechanical Santa Claus figure
who responded by swinging his boat around and that waved its arm and moved its head. While
heading at high speed directly at the sailboat’s the father was talking to the homeowner about
bow. The sailor was convinced that the boats his electricity bill, the girl climbed up on the
would collide, so he steered close to the edge Santa. It toppled over and she hit her head on the
of the channel and abruptly ran aground on ground, suffering a serious injury.
a shallow sand bar. The sailor was extremely
upset but otherwise uninjured. His boat was not The girl, through her guardian ad litem,
damaged by hitting the sand bar. brought a products liability action based on strict
liability against the manufacturer of the Santa
If the sailor brings an appropriate action figure in a jurisdiction that does not apply its
against the captain for damages, the probable comparative negligence rules to strict liability
outcome will be: actions.

(A) The sailor will win, because he suffered Which of the following would provide the best
severe emotional distress from the captain’s defense for the manufacturer?
conduct.
(A) The girl is unrelated to the purchaser of the
(B) The sailor will win, because he believed Santa figure.
that the captain’s maneuvers threatened
imminent danger of harm to him. (B) The girl was contributorily negligent in
climbing on the Santa figure.
(C) The captain will win, because the sailor
suffered no physical injury or property (C) The girl’s misuse of the Santa figure was
damage. not reasonably foreseeable.

(D) The captain will win, because the sailor (D) The girl’s father was negligent in his super-
was responsible for provoking the captain vision of her.
during the relevant events.
 SET B TORTS 23.

Question 3 (D) Grant the motion, because the long history

of no injuries demonstrates that the
A homeowner purchased a product that warnings on the label were adequate and
makes it easy to remove vinyl tile by chemically the product was not defective.
breaking down the bonding properties of the
adhesive. The label on the product instructed Question 4
users to allow several hours for the product to be
absorbed before attempting removal of the tile A homeowner purchased a ladder from a
and warned not to use the product other than in home supply retailer. While he was using the
compliance with the instructions and not to use ladder, an improperly installed bolt fastening
any other product in conjunction with it. The one of the rungs gave way, causing him to fall
homeowner believed that she could hasten the and break his leg. The homeowner sued the
absorption process by heating the tile, so she manufacturer of the ladder to recover damages
used an industrial strength blow dryer set on for his injury.
high shortly after applying the product. The heat
If it is established at trial that the home supply
caused toxic fumes to be released by the product,
retailer could have discovered the defectively
damaging her lungs.
installed bolt if it had conducted a reasonable
The homeowner brought an action against inspection of the ladder, the retailer’s failure to
the manufacturer of the product based on strict inspect:
liability in tort for failure to warn. At trial, the (A) Has no legal effect on the manufacturer’s
homeowner presented evidence of her use of the liability.
product and its manufacture by the manufac-
turer, the injury she suffered, and that the label (B) Is a superseding cause that relieves the
bore no warning regarding applying heat to the manufacturer of liability to the homeowner.
product. The manufacturer presented evidence
that it had received no reports of persons injured (C) Is attributable to the manufacturer under the
by fumes from the product in the 10 years that doctrine of respondeat superior.
the product had been on the market.
(D) Will allow the manufacturer to bring an
If the manufacturer moves for a summary action for indemnity against the home
judgment at the close of all of the evidence, the supply retailer if the manufacturer is found
court should: liable to the homeowner.
(A) Deny the motion, because a jury could find
that the product was in a defective condition
unreasonably dangerous to users based on
the absence of warnings regarding the use
of heat.
(B) Deny the motion, because the homeowner
has established that she suffered injury as a
result of her use of the product.
(C) Grant the motion, because the homeowner’s
failure to follow the instructions constituted
contributory negligence as a matter of law.
24. TORTS SET B

Question 5 Question 6

A three-year-old girl attending nursery school A physician who was photographically

punched a boy in the face because he was documenting the deterioration of a terminally
teasing her about wearing glasses. The blow ill patient came into his room to take more
knocked out the boy’s newly acquired front photos as the patient’s wife was saying her
teeth. final goodbye. Ignoring the wife’s protests, the
physician lifted the patient’s head and slid a
If the boy’s parents sue the girl’s parents for sheet of blue cardboard underneath for a better
the injury, the best defense would be: background, and then took some photos as the
patient expired. The wife is the patient’s sole
(A) The boy was the initial aggressor. heir.
(B) The girl is too young to be responsible for The physician may be liable for:
her actions.
(A) Battery and intrusion on seclusion.
(C) A parent cannot be liable for damages due
to the child’s conduct. (B) Battery only, because a privacy tort does
not survive the death of the plaintiff.
(D) The parents were unaware of any poten-
tially violent behavior by the girl. (C) Intrusion on seclusion only, because the
physician did not cause a harmful or offen-
sive contact with the patient.

(D) Neither battery nor intrusion on seclusion.

 SET B TORTS 25.

Question 7 Question 8

The wife of the president of a small but presti- The seller of a three-year-old house showed
gious private college was also an instructor at it to the niece of a potential buyer. The niece
the college. While researching an article about told the seller that her aunt was looking for extra
the college president, a reporter discovered and space to store some valuable antiques and asked
revealed in a published news story that while the whether the large detached garage would be safe.
wife was dating the president, she had falsified The seller stated that all of the garage’s lumber
her academic credentials on her application for a and wallboard had been treated with a flame
position with the college. As a result of the news retardant that made the garage almost imper-
story, the wife was subject to verbal attacks and vious to an accidental fire. At the time he said
innuendo among her colleagues. She asserted this, the seller had no knowledge of whether the
a cause of action against the newspaper for materials used for the garage had been treated
defamation and established at trial that the story with anything; in fact, they had not. The niece
about her was not accurate. told her aunt that the garage was extremely fire
resistant, so the aunt decided to purchase the
For the wife to prevail, she also will need to house and moved all of her antiques into the
show that: garage. Three months later, the garage caught
fire and burned to the ground.
(A) She suffered special (economic) damages
as a result of the story. In an action by the aunt against the seller
to recover for the loss of her antiques, will she
(B) The story revealed facts about her private prevail?
affairs not generally known to the public.
(A) Yes, because the niece was acting as an
(C) The newspaper published the story with agent for the aunt.
knowledge that it was false or with reckless
disregard for its truth or falsity. (B) Yes, because the aunt relied on the state-
ments made by the seller.
(D) The newspaper was negligent in publishing
the story.
(C) No, because the seller’s statements were not
made in a business or professional capacity.

(D) No, because the seller owed no duty to the

aunt regarding his statements.
26. TORTS SET B

Question 9 Question 10

A homeowner invited guests over for an As a motorist was driving on a road, a driver
evening pool party. One of the guests jumped on an intersecting road failed to see a stop sign
into the pool without seeing that a swimmer at the intersection and crossed into the motor-
was in the water right below him. He struck ist’s path. The motorist would have had time
the swimmer on the head, knocking her uncon- to avoid the driver’s vehicle except that he was
scious. Other guests pulled the swimmer out making a call on his cell phone. He slammed on
of the water and attempted to revive her. She the brakes as soon as he saw the driver, so the
survived but suffered permanent injury. impact occurred at a low speed. The driver’s car
sustained only minor damage, but the motorist’s
The swimmer brought an action against the car sustained such heavy damage that it was a
homeowner for her injuries. At trial, evidence total loss.
established that when the guest jumped into the
pool, he did not see the swimmer in part because If the motorist sues the driver in a jurisdiction
a light in the pool near the point of impact was following traditional contributory negligence and
not working at the time, but the homeowner assumption of the risk rules, what is the driver’s
was not aware that it was not working. No other best defense?
evidence was presented regarding the condition
of the pool. Other evidence established that the (A) The driver’s running the stop sign was
rescue efforts of the other guests caused greater unintentional.
injury to the swimmer than the initial impact. At
the end of the presentation of the evidence, the (B) The motorist was negligent in purchasing a
homeowner moved for a directed verdict. car that would suffer heavy damage when
struck at low speed.
Should the homeowner’s motion be granted?
(C) The motorist was contributorily negligent.
(A) Yes, because the swimmer’s injuries were
caused by the conduct of third persons. (D) The motorist had the last clear chance to
avoid the accident.
(B) Yes, because the homeowner was not
aware that the light in the pool was not
working.

(C) No, because the jury could determine that

the homeowner failed to exercise reason-
able care in activities on the property.

(D) No, because the jury could find that any

negligence on the part of the rescuers was
foreseeable and therefore does not cut off
the homeowner’s liability.
 SET B TORTS 27.

Question 11 Question 12

A salesman in a highly visible and competi- On the way home from a nightclub, a
tive field went to the police station to post bond passenger began yelling at the designated driver
for his son, who had been arrested for possession claiming that he was not taking the best route
of a small quantity of narcotics. A photographer back to her house. The driver disagreed and
for the local newspaper who was at the police contended that his route was the quickest. The
station took a picture of the salesman flanked passenger impulsively grabbed the steering
by two bulky police officers. The photo, which wheel, causing the car to swerve and strike a
looked like the pictures of alleged criminals pedestrian, injuring him. At trial, the pedestrian
being taken into custody, ran on a quarter of established that the driver’s license had expired
the front page because it was a slow news day. the day before the accident. The driver’s traffic
The photo was accompanied by a very small record qualified him for an automatic renewal
caption giving the salesman’s name and stating of his driver’s license, but he had forgotten to
that his son had been arrested for possession of submit it in time. A statute in the jurisdiction
narcotics. The salesman’s boss was hypersensi- makes it an offense to drive a vehicle on any
tive about the reputation of his company and public road in the state without a valid driver’s
fired the salesman after he saw the picture in the license.
newspaper.
The pedestrian will:
If the salesman sues the newspaper, he will:
(A) Prevail, because the driver violated a statute
(A) Recover for intrusion upon seclusion. by driving without a valid license.

(B) Recover for false light publicity. (B) Prevail, because the driver failed to control
his passenger.
(C) Not recover, because the caption was true.
(C) Not prevail, because the driver did not start
(D) Not recover, because printing the picture the argument.
was in the public interest.
(D) Not prevail, because the passenger’s action
was the proximate cause of the injury.
28. TORTS SET B

Question 13 Question 14

In a negligence action against two joint A motorist was negligently driving close to
tortfeasors, the jury determined that the plaintiff the shoulder of a highway when his vehicle
suffered $100,000 in damages and that she was skidded and hit a support column of a bridge
10% at fault. The first defendant was judged to that crossed over the highway. The impact from
be 60% at fault and to have suffered $200,000 the car caused structural damage to the support
in damages. The second defendant was judged column, which caused the bridge to drop 18
to be 30% at fault and to have suffered no inches. The sag of the bridge was clearly visible
damages. from the highway. The motorist died in his
heavily damaged car as a result of the accident.
If all parties assert their respective valid A rescuer, who had been five miles away at the
claims and the plaintiff ends up with an award time of the accident, came on the scene and
of $40,000 from the first defendant, which of pulled his car off the road to see if he could
the following statements is most likely to be render assistance. Shortly thereafter, a trucker
true? approached the scene of the accident. The
trucker saw that an accident had occurred, and
(A) The jurisdiction follows traditional joint and had adequate time to slow down or stop, but he
several liability and traditional contribution proceeded ahead without reducing speed. Under
rules. ordinary circumstances, his truck could have
passed easily under the bridge, but the 18-inch
(B) The jurisdiction follows traditional joint drop caused the top of the truck to strike the
and several liability rules and comparative bridge. A chunk of concrete fell from the bridge,
contribution rules. striking the rescuer in the head and seriously
injuring him.
(C) The jurisdiction has abolished joint and
several liability. If the rescuer sues the motorist’s estate, who
will prevail?
(D) The jurisdiction has not adopted pure
comparative negligence. (A) The motorist’s estate, because the trucker’s
actions caused the rescuer’s injuries.

(B) The motorist’s estate, because the rescuer

was five miles away when the initial
accident occurred and therefore not a
foreseeable plaintiff.

(C) The rescuer, because he stopped to render

assistance.

(D) The rescuer, because the motorist’s negli-

gence was the proximate cause of the
rescuer’s injuries.
 SET B TORTS 29.

Question 15 Question 16

A farmer employed a 16-year-old high school While at a party, a wife came up behind a
student for a summer agricultural labor job. One younger woman, grabbed her by her arm, and
afternoon, a violent storm suddenly erupted as accused her of having an affair with the wife’s
the farmer was driving a tractor up a hill in an husband. The wife knew that her accusation was
open field with the student in the wagon behind. not true.
When loud claps of thunder erupted, the farmer
stopped his tractor, jumped off without saying Of the following facts, which would be most
anything, and ran swiftly down the hill toward helpful to the younger woman in a suit against
the low ground, which he knew would be safer. the wife for intentional infliction of emotional
The student, who lived in a nearby city and had distress?
never seen an electrical storm in open country
(except as a passenger inside an automobile), had (A) The wife knew that the younger woman
never been told how to act safely during such a is very religious, and her religious beliefs
storm. Once the storm began, the student was strongly condemn adultery.
struck by lightning and seriously injured as he
stood at the crest of the hill watching the farmer (B) When the wife grabbed her arm, it caused
run. the younger woman great pain and she has
suffered an upset stomach from the trauma
Is the farmer liable to the student for the of it.
injuries caused by lightning?
(C) Other people at the party overheard the
(A) Yes, because the student was an employee, wife’s accusation.
acting within the scope of his employment.
(D) The younger woman’s employer heard
(B) Yes, because the student was a minor. of the accusation and did not give her a
promotion.
(C) No, because the student was injured by an
act of God.

(D) No, because lightning is never foreseeable.

30. TORTS SET B

Question 17 Question 18

A recently retired detective who had been A former college baseball player who played
instrumental in solving many important crimes in the College World Series 20 years ago was
in his community and had received many named in a radio broadcast as committing a key
commendations from his police superiors was error that cost his team the championship. In
the subject of a docudrama aired on network fact, it was another ballplayer who committed
television. The credits for the show indicated the error.
that it was based on the life of the detective but
stated that not every event depicted in the show If the ballplayer brings a defamation action
actually happened. The detective saw the show against the broadcaster and the court finds that
and was furious because, while most parts of he was defamed, to what damages would he be
the show dealt fairly accurately with some of the entitled?
crimes he had helped solve, other parts portrayed
his character as being involved in James Bond- (A) Nominal damages only, unless the ball-
type sexual escapades. player can show actual pecuniary loss.

If the detective sues the network for invasion (B) General damages, even without proof of
of privacy, who likely will prevail? actual injury.

(A) The detective, because his name was appro- (C) Only damages based on competent
priated by the network for a commercial evidence of actual injury.
purpose.
(D) No damages, unless the ballplayer can
(B) The detective, because the seclusion of his prove actual malice on the part of the
retirement has been upset. broadcaster.

(C) The detective, because he has been

portrayed in a false light.

(D) The network, because the show as a whole

was complimentary to the detective.
 SET B TORTS 31.

TORTS ANSWERS - SET B

Answer to Question 1
(B) The sailor will win because the captain’s actions constituted an assault. A prima facie case for
assault consists of: (i) an act by the defendant creating a reasonable apprehension in the plaintiff of
immediate harmful or offensive contact; (ii) intent on the part of the defendant to bring about that
apprehension; and (iii) causation. Here, if the sailor reasonably believed that the captain’s boat was
about to hit his boat (and thus cause a harmful or offensive contact with him), there is a basis for
assault because the other elements (intent on the part of the captain and causation) were present.
The only issue is whether the belief was reasonable. In determining whether the apprehension was
reasonable, the courts usually apply a reasonable person test. Here, a reasonable person certainly
could believe that the captain’s actions constituted a threat of an immediate harmful contact (e.g.,
a crash). Thus, there would be a basis for assault. (A) is wrong because the sailor can prevail
on an assault claim regardless of whether he can establish all the elements of a claim for inten-
tional infliction of emotional distress. That tort will require the sailor to prove not only that he
suffered emotional distress but also that the captain’s conduct was extreme and outrageous. While
a trier of fact might find that to be the case, intentional infliction of emotional distress should be
considered a fallback tort position, to be chosen only if there is no other tort available from the
facts and answer choices. (C) is wrong because damages are recoverable for assault without the
plaintiff’s suffering actual physical injury. Assault is the causing of apprehension of contact; it
does not require actual contact. The sailor can recover damages for his emotional distress through
his assault claim. (D) is wrong because, unless the sailor’s initial actions were such as to justify
the captain’s acting in self-defense, it is immaterial that the sailor made insults provoking the
captain’s tortious conduct. Self-defense is permitted when a person reasonably believes he is being
or is about to be attacked. Here, it is clear that the sailor’s conduct would not justify the captain’s
actions in self-defense. Also, self-defense would not apply because the captain’s conduct was
clearly not defensive; he came after the sailor even though the sailor was not a threat at that point.

Answer to Question 2

(C) The manufacturer’s best defense is that the girl’s climbing on the Santa figure constituted a
misuse of the product that was not reasonably foreseeable, thus relieving the manufacturer of any
potential strict liability. A prima facie case in products liability based on strict liability in tort
requires proof that: (i) the defendant is a commercial supplier (ii) that produced or sold a defec-
tive product (iii) that actually and proximately caused (iv) damage to the plaintiff’s person or
property. The plaintiff must show that the defendant sold or produced the product in a defective
condition unreasonably dangerous to users. Some products are safe if used as intended, but may
pose serious dangers if used in other ways. Thus, suppliers must anticipate reasonably foresee-
able uses (even if they are misuses) of the product. Here, there is no indication that the Santa
figure was defective and unreasonably dangerous for the purpose for which it was designed. The
product was not designed for climbing and the manufacturer at least can make the argument that
it was not reasonably foreseeable that a child would do so. Hence, the manufacturer’s best defense
is that the product was not dangerously defective for reasonably foreseeable use. (A) is incorrect
because it raises a privity defense. Privity is not required to apply the protection of strict liability.
The strict duty is owed not only to purchasers but also to family, guests, friends, and employees
of the purchaser, as well as foreseeable bystanders such as the girl here. Thus, the manufacturer
cannot raise the lack of privity between itself and the girl as a defense. (B) is incorrect because
ordinary contributory negligence is not a defense to a strict products liability action unless the
jurisdiction applies its comparative negligence rules to these actions (which this jurisdiction does
32. TORTS SET B

not). Only voluntarily and unreasonably encountering a known risk or misusing the product in
an unforeseeable manner (as (C) states) would serve as a defense. (D) is incorrect because, even
if the father were negligent in his supervision of his daughter, such ordinary negligence will not
be deemed a superseding intervening force that would break the causal connection between any
initial wrongful conduct by the manufacturer and the ultimate injury. Hence, this would not serve
as a defense for the manufacturer.

Answer to Question 3

(A) The court should deny the motion because a jury could find that the product was defective. To
establish a prima facie case in products liability based on strict liability in tort, the following
elements must be proved: (i) the defendant is a commercial supplier (ii) that produced or sold a
defective product (iii) that actually and proximately caused (iv) damage to the plaintiff’s person or
property. To establish the second element, the plaintiff need prove only that the product in fact is
so defective as to be “unreasonably dangerous.” Here, the homeowner has presented evidence that
she was injured by a product supplied by the manufacturer, and alleged that the product was in a
defective condition unreasonably dangerous to users because of inadequate warnings. In failure
to warn cases, the plaintiff is entitled to a presumption that an adequate warning would have
been read and heeded, although the jury could very well reject that presumption based on the
homeowner’s conduct. Nevertheless, whether inadequate warnings made the product so defective
as to be unreasonably dangerous is a question of fact for the jury; hence, the motion should be
denied. (B) is wrong because the homeowner must also establish as part of her prima facie case
that the product was defective. (C) is wrong because even if the homeowner’s failure to follow
instructions constituted contributory negligence, it would only reduce the homeowner’s recovery
by the amount of fault the jury assigns to her; it would not warrant granting a motion to take the
case away from the jury. (D) is wrong because the absence of previous injuries does not establish
the adequacy of the warnings. While it may help the manufacturer’s case, it is not sufficient to
take that determination away from the jury.

Answer to Question 4

(A) The failure of the home supply retailer to inspect the ladder has no legal effect on the manufac-
turer’s liability, regardless of whether the plaintiff is suing in negligence or strict liability. Under
either theory, an intermediary’s negligent failure to discover a defect is not a superseding cause,
so the defendant who supplied the defective product will still be liable. Thus, even if the home
supply retailer were negligent in not discovering the defect, it would not relieve the manufacturer
of liability. (B) is incorrect because an intervening force must be unforeseeable for it to be super-
seding. Here, the failure of the retailer to discover the defect was ordinary foreseeable negligence
that does not break the causal connection between the initial wrongful conduct and the ultimate
injury. (C) is incorrect because there is no evidence of an employer-employee relationship for
which respondeat superior liability would apply. The only relationship between the two compa-
nies appears to be a contractual one; hence, the manufacturer will not be vicariously liable for
the negligence of the retailer under respondeat superior principles. (D) is incorrect because it is
a reversal of one of the situations in which indemnity is available. When strict liability applies,
each supplier of a defective product is liable to an injured person, but each supplier has a right of
indemnification against all previous suppliers of the defective product in the distribution chain,
with the manufacturer of the defective product ultimately liable. Here, both the home supply
retailer and the manufacturer may be liable as suppliers in a strict liability action if they supplied
a defective product. However, the manufacturer, as the previous supplier in the chain, would be
liable to the home supply retailer for indemnity, rather than the other way around as (D) states.
 SET B TORTS 33.

Answer to Question 5

(D) The best defense of the girl’s parents is that they were unaware of any potentially violent behavior
by the girl. At common law, parents are not vicariously liable for the torts of their child. (Statutes
in most states allow for limited liability for intentional torts, but there is no indication of such a
statute here.) Parents can be liable, however, for their own negligence, i.e., in not exercising due
care under the circumstances. Thus, if the parents know their child may be violent, they could
be negligent if they do not take precautions to prevent that behavior or injury from that behavior.
However, if the parents have no reason to know their child could be violent, they have no duty to
protect against such behavior. Here, if the girl had never done anything like this before, and her
parents had no idea that she would be violent, they were not negligent in allowing her to attend
nursery school. (A) is wrong because, although the boy’s teasing may have provoked the girl, he
did not initiate the violence. He did nothing to allow the girl a right of self-defense, and so his
actions would not provide the girl’s parents with a good defense. (B) is wrong because there is no
general tort immunity for children. As long as the child is old enough to intend the act, she can
be held liable. Here it seems that the girl intended to cause a battery. She either intended or knew
with substantial certainty that swinging her fist would strike the boy in the face, i.e., would cause
a harmful or offensive contact. Thus, this choice does not present the best defense for the defen-
dants. (C) is wrong because parents can be liable for damages due to their child’s conduct. As
explained above, although the parents are not vicariously liable at common law, they can be liable
based on their own negligence (e.g., for negligent supervision).
Answer to Question 6
(A) The physician likely is liable for both torts. Battery requires: (i) an act that brings about harmful
or offensive contact; (ii) intent to bring about the harmful or offensive contact; and (iii) causa-
tion. Whether a given contact can be considered harmful or offensive is judged by how it would
be viewed by a reasonable person of ordinary sensibilities. Most contact that a doctor has with his
patient is for purposes of treatment and would not be considered offensive; in fact, the law implies
consent to the contact in such cases. However, the physician’s lifting of the patient’s head during
his dying moments for a purpose unrelated to treatment went far beyond the scope of any implied
consent. Most persons would judge his act to be an offensive contact. Intent for battery is satisfied
by showing that the physician knew with substantial certainty that the offensive contact would
occur. He need not have intended injury or committed the act for a bad motive. Causation is easily
established, and actual damages are not required. Also, under survival statutes (which you are to
assume are available for the MBE), actions for battery do not expire on the victim’s (the patient’s)
death. Thus, the wife can recover in an action for battery to the patient, making (C) and (D) incor-
rect. The wife’s other action would be her own action for intrusion on plaintiff’s seclusion. This
tort requires an act of intruding on the seclusion of the plaintiff in her private matters, and that
the intrusion be highly offensive to a reasonable person. While a doctor usually is not intruding
on seclusion by entering a patient’s room, the physician ignored the wife’s protests as her husband
was dying just so he could take more photographs. This kind of intrusion would be highly objec-
tionable to a reasonable person. Hence, she can recover for the physician’s intrusion on her seclu-
sion, making (B) and (D) incorrect.
Answer to Question 7
(D) For the wife to prevail, she will need to show that the newspaper was negligent. Although at
common law defamation liability could be strict, a number of Supreme Court decisions based
on the First Amendment now impose a fault requirement in cases involving public figures or
matters of public concern. A defendant may not be held liable for defamation on a matter of public
34. TORTS SET B

concern not involving a public figure unless, in addition to publishing a false story, it was at least
negligent in ascertaining the truth or falsity of its facts. Here, a story about an instructor at a
prestigious college falsifying her academic credentials, while dating the president of the college,
likely is a matter of public concern because it affects the perceived integrity of the institution. (C)
is incorrect because knowledge or reckless disregard is the standard applicable to public figures,
and the wife does not qualify as such merely because she is married to someone who may be
a public figure. (A) is incorrect because libel does not require proof of special damages; actual
damages (which includes noneconomic damages) is enough. (B) is incorrect because it describes a
type of invasion of privacy—public disclosure of private facts. Invasion of privacy is not relevant
to a defamation action.
Answer to Question 8
(B) The aunt will recover against the seller because she relied on his statements to the niece. The
elements of a prima facie case for intentional misrepresentation consist of: (i) a misrepresenta-
tion, (ii) scienter, (iii) an intent to induce plaintiff’s reliance, (iv) causation (i.e., actual reliance),
(v) justifiable reliance, and (vi) damages. Here, the seller made a false statement knowing that
he did not know whether it was true; this satisfies the scienter requirement. Regarding intent to
induce reliance, statements made to one person can be the basis of an intentional misrepresenta-
tion action by another person where the defendant could reasonably foresee that that person would
rely on the statement. Based on what the niece had said, the seller had reason to foresee that the
niece’s aunt might rely on his assertions of fire resistance in storing her antiques. Because the aunt
responded to the assertions by purchasing the house and storing her antiques in the garage, she
can establish causation (actual reliance). Reliance on the misrepresentation would be justified here
because only where the facts are obviously false is reliance not justified. Thus, she can recover
for any pecuniary damages she suffered as a result of the fire. (A) is incorrect. As long as reliance
by a third party is reasonably foreseeable, the third party need not be in an agency relationship
with the recipient of the misrepresentation. (C) is incorrect because the fact that the seller did not
make the statements in a business or professional capacity will only preclude recovery for negli-
gent misrepresentation. The fact that the seller knew that he did not know the truth or falsity of
his statement establishes the scienter required for intentional misrepresentation. (D) is incorrect
because, as stated above, the seller owed a duty to the aunt because he could reasonably foresee
that she would rely on his statements to the niece.
Answer to Question 9
(B) The homeowner’s motion should be granted because the homeowner was not aware that the
light was not working and there is no other evidence of negligence on his part. The swimmer, a
social guest, had the status of a licensee on the homeowner’s property. An owner or occupier of
land owes licensees a duty to warn of or make safe a dangerous condition known to the owner or
occupier that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely
to discover. The owner has no duty to inspect for defects. Here, the only potentially dangerous
condition on the premises was the pool light not working, but the homeowner was not aware of
that. The swimmer has presented no other evidence of breach of duty on the homeowner’s part;
hence, the homeowner’s motion should be granted. (A) is incorrect because the fact that the
swimmer’s injuries were caused by third persons does not establish that the landowner was not
liable. If the landowner were aware of a dangerous condition on the property that was a cause of
the injury, the fact that third persons were also a cause of the injury would not cut off his liability.
(C) is incorrect because there is no evidence that the landowner failed to meet his duty to exercise
reasonable care in activities on the property. The only evidence pertaining to the homeowner’s
duty was the pool light not working, which is a condition on the land rather than an activity.
 SET B TORTS 35.

Because the homeowner was not aware of the condition, he has not been shown to have breached
a duty to his guest. (D) is incorrect even though negligence of rescuers is often foreseeable. The
swimmer has not established that the homeowner breached a duty, so the homeowner has no
liability regardless of the conduct of the rescuers.

Answer to Question 10

(C) Because the motorist was not driving attentively, the motorist was contributorily negligent. Under
traditional rules, plaintiff’s contributory negligence is a complete defense to negligence; i.e., it
completely bars plaintiff’s right to recover. Here the motorist is contributorily negligent because
he was not paying attention to his driving. If he had been paying attention, the facts indicate that
he would have had adequate time to either stop his car or swerve to avoid the driver’s vehicle. (A)
is incorrect because even if the driver alleges that his running the stop sign was unintentional,
that defense would apply only for intentional torts and not to torts based on negligent conduct. (B)
is incorrect. The motorist was not under any duty to purchase a car that would be able to sustain
minimal damage when struck at a low speed; therefore, the first element for establishing a prima
facie case of negligence is absent—the existence of a duty to conform to a specific standard of
conduct to protect against an unreasonable risk of injury. (D) is also incorrect. The doctrine of last
clear chance permits the plaintiff to recover despite his own contributory negligence because the
defendant had the last clear chance to avoid the accident. (In effect, last clear chance is plaintiff’s
rebuttal to the defense of contributory negligence.) Thus, the doctrine of last clear chance would
not be available to the driver as a defense.

Answer to Question 11

(B) The salesman will recover in a suit against the newspaper since the newspaper published facts
about the salesman that placed him in a false light. To establish a prima facie case for invasion of
privacy based on publication by defendant of facts placing plaintiff in a false light, the following
elements must be proved: (i) publication of facts about plaintiff by defendant placing plaintiff in
a false light in the public eye; and (ii) the “false light” must be something that would be highly
offensive to a reasonable person under the circumstances. The large picture of the salesman
flanked by two bulky police officers implied that the salesman committed a crime because it
looked like pictures that newspapers often print of alleged criminals being taken into custody.
This “false light” would be highly offensive to a reasonable person under the circumstances. (A)
is incorrect. This branch of invasion of right to privacy, intrusion upon plaintiff’s affairs or seclu-
sion, requires (i) an act of prying or intruding on the affairs or seclusion of plaintiff by defendant;
(ii) the intrusion must be something that would be highly offensive to a reasonable person; and
(iii) the thing to which there is an intrusion or prying must be “private.” Here, the photograph of
the salesman was taken at the police station, which is a public place. Hence, the intrusion was
not into anything of the salesman’s private domain and is not actionable under this branch of
invasion of privacy. (C) is incorrect. The impression that the salesman committed a crime was not
dispelled by inclusion of the small explanatory caption. As a result, the caption will not serve as a
valid defense. (D) is incorrect because printing the picture would probably not qualify as being in
the public interest. The salesman was not a public official or public figure; his picture was printed
because there was a dearth of news. His posting bond for the arrest of his son for possession of a
small quantity of narcotics is not the type of information that is of general public interest.

Answer to Question 12

(D) The pedestrian will not prevail because the passenger’s grabbing of the wheel is the negligent
conduct that caused the pedestrian’s injuries. To establish a prima facie case for negligence, the
36. TORTS SET B

following elements must be proved: (i) the existence of a duty on the part of the defendant to
conform to a specific standard of conduct for the protection of the plaintiff against an unrea-
sonable risk of injury; (ii) breach of that duty by the defendant; (iii) the breach of the duty by
defendant was the actual and proximate cause of plaintiff’s injury; and (iv) damage to plain-
tiff’s person or property. Here, the driver’s actions were an actual cause of the pedestrian’s injury
because, but for the driver’s driving and the passenger’s grabbing the steering wheel, the injury to
the pedestrian would not have happened. However, the driver’s actions were not a proximate cause
of the injury because the passenger’s grabbing of the steering wheel was a superseding inter-
vening force. A superseding force is one that serves to break the causal connection between the
initial wrongful act and the ultimate injury, and itself becomes a direct immediate cause of such
injury. Thus, the first actor would be relieved of liability from the consequences of his antecedent
conduct. The passenger’s conduct in suddenly grabbing the steering wheel was an unforeseeable
intervening force creating an unforeseeable harmful result, and thus constituted a superseding
force. Consequently, the driver would be relieved of any negligence liability since the passen-
ger’s actions were the proximate cause of the accident. (A) is incorrect. A clearly stated specific
duty imposed by a statute may replace the more general common law duty of due care when (i)
the plaintiff is within the class to be protected by the statute, and (ii) the statute was designed to
prevent the type of harm suffered. The statute probably does not apply here because it is intended
to keep unsafe drivers off the streets, and there is no indication that the driver is an unsafe driver,
or that any driver could have prevented the injury when the passenger grabbed the steering wheel.
Even if the statutory standard were applicable, a violation means only that plaintiff will have
established a conclusive presumption of duty and breach of duty. It does not, however, establish
causation or damages. Here, the fact that the driver does not have a valid license is not the proxi-
mate cause of the pedestrian’s injury, as discussed above. (B) is incorrect because the driver had
no way of knowing that the passenger would grab the steering wheel. The driver’s conduct will
be measured against that of the ordinary, prudent, reasonable person who drives a vehicle. An
ordinary, prudent, reasonable person would not have foreseen that one of his passengers would
impulsively grab the steering wheel, and therefore there are no special safety precautions that the
driver should have taken as part of his duty of care toward pedestrians. (C) is incorrect because,
even if the driver had started the argument, this would not justify the passenger’s grabbing of the
steering wheel. In either case, the passenger’s actions rather than the driver’s would be considered
the proximate cause of the pedestrian’s injuries.

Answer to Question 13

(C) The jurisdiction has most likely abolished joint and several liability. Under joint and several
liability, each tortfeasor is liable to the plaintiff for the entire damage incurred. In the absence
of joint and several liability, each tortfeasor is liable for only the amount of damages that is
proportional to his fault. Applied to these facts, the first defendant would be liable to the plaintiff
for 60% of her damages, or $60,000. This would be offset by the plaintiff’s liability for 10% of
the first defendant’s damages, or $20,000. This leaves the plaintiff with a net award of $40,000
from the first defendant. (A) and (B) are incorrect because if joint and several liability applied,
the plaintiff would be entitled to an award of $90,000 against the first defendant (or $10,000 if
the first defendant were allowed to offset his entire amount of damages—$80,000—against the
plaintiff under joint and several liability). Note that the type of contribution rule is irrelevant to
the plaintiff’s recovery against the defendant. Contribution comes into play only after distribu-
tion of the plaintiff’s award under joint and several liability rules; it allows any tortfeasor required
to pay more than his share of damages to have a claim against the other jointly liable parties for
the excess. (D) is incorrect because if partial comparative negligence applied, the first defendant
would be able to recover nothing from the plaintiff because he was more than 50% at fault, and
 SET B TORTS 37.

so the plaintiff’s damage award against the first defendant would not be offset by any amount.
Therefore, only under pure comparative negligence can the first defendant assert a claim against
the plaintiff that would reduce the plaintiff’s award to $40,000.

Answer to Question 14

(D) The rescuer will prevail against the motorist’s estate because he can establish a prima facie case
of negligence. One of the elements of negligence is a showing that defendant’s breach of duty
was the actual (cause in fact) and proximate cause of plaintiff’s injury. An act or omission to
act is the cause in fact of an injury when the injury would not have occurred but for the act. The
motorist’s accident was the actual cause of the rescuer’s injury because, but for the accident, the
rescuer would not have stopped to assist the motorist. The motorist’s accident was also a proxi-
mate cause of the rescuer’s injury. The general rule of proximate cause is that defendant is liable
for all harmful results that are the normal incidents of and within the increased risk caused by
his acts. This is an indirect cause case because an independent intervening force (the truck)
came into motion after defendant’s negligent act and combined with it to cause plaintiff’s injury.
Independent intervening forces are foreseeable (and thus do not cut off defendant’s liability)
where defendant’s negligence increased the risk that these forces would cause harm to the plain-
tiff. Once the motorist negligently put himself in peril on the highway, he created a foreseeable
risk that a rescuer would be injured in some way by the act of another motorist while the rescuer
was assisting the motorist. Thus, the trucker’s negligence was a foreseeable intervening force that
combined with the motorist’s negligence to create a foreseeable harmful result to the rescuer. The
motorist’s estate, therefore, is not relieved of liability by the trucker’s conduct. (A) is incorrect
because even if the trucker’s actions caused the rescuer’s injuries, they were a foreseeable risk
created by the motorist’s conduct and thus do not constitute a superseding intervening force that
would cut off the motorist’s liability to the rescuer. (B) is incorrect. The motorist owed a duty of
care to the rescuer under the general rule that a rescuer is a foreseeable plaintiff as long as the
rescue is not wanton. Hence, a defendant will be liable if he negligently puts himself in peril and
the plaintiff is injured in attempting a rescue. The fact that, at the time the motorist’s car struck
the bridge support, the rescuer was five miles from the bridge does not make the rescuer an
unforeseeable plaintiff. He could still be considered a foreseeable rescuer. (C) is incorrect because
the fact that the rescuer stopped to render assistance merely establishes him as a foreseeable plain-
tiff. The critical issue is whether he can establish proximate cause.

Answer to Question 15

(A) As an employer, the farmer breached his duty of care owing to the student and therefore is liable
for the student’s injuries on a negligence theory. To establish a prima facie case for negligence,
the following elements must be proved: (i) the existence of a duty on the part of defendant to
conform to a specific standard of conduct for the protection of the plaintiff against an unreason-
able risk of injury; (ii) breach of that duty by defendant; (iii) the breach of the duty by defendant
was the actual and proximate cause of plaintiff’s injury; and (iv) damage to the plaintiff’s person
or property. The first issue raised by these facts is whether the farmer owed a duty of care to
his employee. As a general matter, no legal duty is imposed upon any person to affirmatively
act for the benefit of others. However, the existence of a special relationship between the parties
may create a duty. Modern cases extend the duty to employers when employees are injured in
the course of employment. Thus, the farmer owed the student a duty to protect him against an
unreasonable risk of injury while he was acting within the scope of his employment. The farmer
breached this duty by not warning and instructing the student in how to act safely during an
electrical storm. The breach of that duty was the cause in fact and proximate cause of the student’s
38. TORTS SET B

injuries. An act or omission to act is the cause in fact of an injury when the injury would not
have occurred but for the act. The “but for” test applies where several acts combine to cause the
injury, but none of the acts standing alone would have been sufficient. But for any of the acts, the
injury would not have occurred. Thus, but for the farmer’s failure to instruct the student on how
to act during an electrical storm, the student would not have been injured. The farmer’s failure to
instruct is also the proximate cause of the student’s injuries. The general rule of proximate cause
is that defendant is liable for all harmful results that are the normal incidents of and within the
increased risk caused by his acts. This is an indirect cause case because an independent inter-
vening force (the lightning) came into motion after the farmer’s negligent conduct and combined
with it to cause the student’s injury. Independent intervening forces are foreseeable (and thus do
not cut off defendant’s liability) where defendant’s negligence increased the risk that these forces
would cause harm to the plaintiff. The farmer’s negligent failure to instruct the student about
the need to seek low ground during an electrical storm greatly increased the risk that the student
would be struck by lightning when the storm came up. Because the lightning was foreseeable
and brought about a foreseeable harmful result to the student, it was not a superseding force that
would cut off the farmer’s liability for the student’s injuries. (B) is incorrect because the student’s
minority does not create a duty toward him by the farmer. The duty of care arises out of the
employer/employee relationship. (C) is incorrect because, as noted above, the act of God (the
lightning) would not be a superseding intervening force since it was foreseeable. Here, the farmer
was negligent in not seeking to minimize the chances of the student’s being struck by lightning,
when the farmer knew that such danger existed and owed the student such duty as a result of his
relationship (employer/employee) with the student. (D) is similarly incorrect because lightning
can be foreseeable and was foreseeable here. The rain and loud claps of thunder were a clear
signal that lightning might occur, and the farmer’s failure to warn the student created a foresee-
able risk that the lightning would strike him.

Answer to Question 16

(A) The wife’s knowledge of the younger woman’s religious beliefs would be most helpful in the
woman’s suit. The tort of intentional infliction of emotional distress requires: (i) an act by defen-
dant amounting to extreme and outrageous conduct; (ii) intent on the part of the defendant to
cause the plaintiff to suffer severe emotional distress, or a reckless disregard that the conduct
would cause emotional distress; (iii) causation; and (iv) damages—severe emotional distress. The
statement in (A) is most helpful to establish reckless disregard because it shows that the defendant
knew of plaintiff’s peculiar susceptibility to such an accusation. Given her strong religious beliefs,
the woman may have suffered severe distress (even though the accusation was not true) because
the wife gave her every reason to think that she believed it to be true. (B) is incorrect because,
while one of the damages in an action for battery may be for emotional suffering caused by the
battery, the younger woman is suing for intentional infliction of emotional distress, which requires
severe emotional distress from the outrageous nature of the conduct. (C) is not the best answer,
because while evidence that it happened in front of other people may show the “outrageousness”
of the conduct, an act is not outrageous just because it occurs in the presence of others. Further-
more, nothing in choice (C) establishes the wife’s intent. (D) is incorrect because this tort does not
require proof of economic damages.

Answer to Question 17

(C) The detective probably will prevail in a suit for invasion of privacy because the network published
facts about the detective that place him in a false light in the public eye by attributing to him
actions that he did not take. To establish a prima facie case for invasion of privacy based on a
 SET B TORTS 39.

publication by defendant of facts placing plaintiff in a false light, the following elements must be
proved: (i) publication of facts about plaintiff by defendant placing plaintiff in a false light in the
public eye; (ii) the “false light” must be something that would be highly offensive to a reasonable
person under the circumstances; and (iii) malice on the part of defendant where the published
matter is in the public interest. A fact will be deemed to present plaintiff in a false light if it attri-
butes to him: (i) views that he does not hold, or (ii) actions that he did not take. Several parts of
the network’s docudrama portray the detective’s character as being involved in James Bond-type
sexual escapades. Thus, they attribute to the detective actions he did not take and were highly
offensive to him. The general disclaimer that not every event in the show actually happened is
not sufficient to dispel the false light liability. Furthermore, this false light would likely be found
to be highly offensive to a reasonable person under the circumstances. Finally, the detective does
not need to show malice because the episodes he is objecting to are not in the public interest. (A)
is incorrect. To establish a prima facie case for invasion of privacy based on an appropriation of
plaintiff’s name, only one element need be proved: unauthorized use by defendant of plaintiff’s
picture or name for defendant’s commercial advantage. Liability is generally limited to the use of
plaintiff’s name in connection with the promotion or advertisement of a product or service. The
mere use of a personality’s name in a television show or magazine story, even though motivated
by profit, does not suffice for liability. While the detective’s name was listed in the credits, there
is no evidence that his name was used in connection with the promotion or advertisement of the
program and therefore this particular type of invasion of right to privacy is not as applicable as
a false light action. (B) is incorrect. To establish a prima facie case for invasion of privacy based
on an intrusion upon the plaintiff’s affairs or seclusion, the following elements must be proved:
(i) act of prying or intruding upon the affairs or seclusion of the plaintiff by the defendant; (ii)
the intrusion must be something that would be highly offensive to a reasonable person; and (iii)
the thing to which there is an intrusion or prying must be “private.” This tort does not provide
special protection for the seclusion of a retirement. There is nothing in the facts to suggest that the
network invaded plaintiff’s private affairs in creating the scenes to which he objects. The accurate
material in the show was drawn from the detective’s crimefighting activities, which are not in
his private domain. Thus, this branch of the privacy tort is inapplicable. (D) is incorrect because
if the detective’s privacy has been invaded, it is no defense that the program as a whole was not
offensive. The invasion of privacy torts do not involve a balancing of complimentary and offensive
statements to determine overall whether plaintiff’s privacy was invaded.

Answer to Question 18

(B) The ballplayer can recover presumed general damages because the defamation was libel and
did not involve a matter of public concern. At common law, if all other elements of defamation
in the form of libel have been established, plaintiff can recover damages for the general injury
to his reputation without offering any proof; i.e., general damages are presumed by law for all
libel in most jurisdictions. Defamatory material in a radio broadcast is treated as libel by most
courts. Thus, the ballplayer can recover general damages even without proof of actual injury for
the defamatory broadcast. (A) is incorrect because it states the rule for slander not within one of
the slander per se categories: Plaintiff must show actual pecuniary loss (i.e., special damages) or
else he can recover only nominal damages. (C) is incorrect. Under Gertz v. Robert Welch, Inc.
(1974), a private figure suing on a matter of public concern not only must show that the defendant
was negligent in ascertaining truth or falsity but also must prove “actual injury,” i.e., competent
evidence of some personal or reputational damages. (Presumed damages are barred unless actual
malice rather than negligence is established.) Here, however, the defamatory statement is not on
a matter of public concern. Thus, the damages rules of Gertz do not apply and general damages
are presumed according to common law. [Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.
40. TORTS SET B

(1985)] (D) is incorrect because the ballplayer is not a public figure. The court will determine that
a person is a public figure if he (i) achieves such pervasive fame or notoriety that he becomes a
public figure for all purposes and contexts, or (ii) voluntarily assumes a central role in a particular
public controversy. Neither situation is present in these facts; the fact that the ballplayer is the
subject of a media report does not make him a public figure. Hence, he does not have to prove
actual malice on the part of the broadcaster to recover damages.