DIAGNOSTIC EXAM WORKSHOP: TORTS PROFESSOR LISA MCELROY DREXEL UNIVERSITY SCHOOL OF LAW

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1 DIAGNOSTIC EXAM WORKSHOP: TORTS PROFESSOR LISA MCELROY DREXEL UNIVERSITY SCHOOL OF LAW Intentional Torts Question 1 (Exam Question 90) 6539 MBE TORTS INTENTIONAL TORTS INVOLVING PERSONAL INJURY Battery A college student and her roommate regularly shared their clothing with one another. One day, when the roommate returned to their dorm room after class, she discovered that the college student was taking a nap in a blouse that the college student knew the roommate planned to wear to a party that evening. Not wanting to wake her up, the roommate quietly unbuttoned the blouse without touching the college student. Realizing that she would not be able to get the blouse off without waking her up, the roommate gave up. Later, when the college student woke up and noticed the buttons on her blouse were undone, she accused the roommate of trying to undress her. If the college student files a suit against the roommate for battery, is she likely to succeed? (A) Yes, because the college student suffered actual harm. (B) Yes, because the college student did not consent to the roommate taking the blouse off her. (C) No, because the college student was asleep when the roommate tried to unbutton the blouse. (D) No, because the roommate did not touch the college student when she tried to unbutton the blouse. Answer choice B is correct. One is liable for battery when he intentionally causes a harmful or offensive contact with the person of another and acts with the intent to cause such contact or the apprehension of such contact. Contact with the plaintiff's person includes contact with anything closely connected to the plaintiff's person. Here, the roommate intentionally tried to take the blouse off the college student without her permission, which is an offensive contact. The blouse was connected to the college student because she was wearing it. Thus, touching the blouse constituted contact with the college student's person. Answer choice A is incorrect because no proof of actual harm is required to succeed on a claim of battery. Moreover, the student does not appear to have suffered any actual harm from the encounter. Answer choice C is incorrect because the plaintiff need not be aware of the contact when it occurs in order to recover. Answer choice D is incorrect because, as stated above, the blouse was closely connected to the college student because she was wearing it. Thus, this suffices as contact with the college student's person.

2 Question 2 (Exam Question 52) 6106 MBE TORTS INTENTIONAL TORTS INVOLVING PERSONAL INJURY Assault A gambler was betting on horses through his bookie. After winning a few races, he ran into some bad luck and lost a total of $500 on five horse races in a row. The bookie let the gambler know that he had 24 hours to pay the bookie back for the $500 in losses. It was well known in the gambling community that the bookie had a reputation for being a violent person, especially when he was owed money. After 24 hours, the gambler was unable to gather the requisite funds. He called the bookie to deliver the bad news, and the bookie said that if he didn't get the money together in two hours, the bookie would come to his apartment and break his legs. The gambler got so nervous that he started drinking heavily to calm his nerves. Two hours later, when the bookie had not heard from the gambler, he went over to the gambler's apartment with a bat, banged loudly on his front door, and screamed at the top of his lungs that he was going to bust open the door and break the gambler's legs. Unbeknownst to the bookie, the gambler was passed out drunk. Eventually, the bookie gave up and left. The next morning, a neighbor ran into the gambler in the hallway and told him how relieved he was to see the gambler unharmed. Upon hearing what had transpired, the gambler immediately fainted from shock. In an action for assault against the bookie, will the gambler succeed? (A) Yes, because the bookie threatened to go to the gambler's apartment and break his legs over the phone. (B) Yes, because the gambler fainted from shock when he found out the gambler came to his apartment to break his legs. (C) No, because although the bookie went to the gambler's apartment with a bat, he didn't actually break his legs. (D) No, because although the bookie went to the gambler's apartment with a bat, the gambler was passed out. Answer choice D is the correct answer. An assault is the plaintiff's reasonable apprehension of an imminent harmful or offensive bodily contact caused by the defendant's action or threat with the intent to cause either the apprehension of such contact or the contact itself. Although the bookie went to the gambler's apartment with a bat, he was passed out, so he was not aware of or have knowledge of the gambler's act. Thus, there was no reasonable apprehension. Answer choice A is incorrect because the threatened bodily harm or offensive contact must be imminent, i.e., without significant delay. Threats of future harm are insufficient, as are threats made by a defendant too far away to inflict any harm. Here, the bookie threatened to come over in two hours, which is a threat of future harm. In addition, the threat was over the phone, so it can be reasonably assumed that the bookie was too far away to inflict any harm on the gambler. Answer choice B is incorrect because the gambler fainted the morning after the bookie came over to his apartment to break his legs not when the bookie was actually at his apartment banging on the door and threatening to break his legs. Thus, the causal connection is too remote to support a claim for assault. Answer choice C is incorrect because bodily contact is not required to maintain a successful action for assault Themis Bar Review, LLC Diagnostic Exam Workshop: Torts

3 Question 3 (Exam Question 50) 5995 MBE TORTS INTENTIONAL TORTS INVOLVING PERSONAL INJURY Intentional Infliction of Emotional Distress A defendant, intending to frighten the plaintiff, went to the plaintiff's place of work, a toy store. When the plaintiff was alone in the store, the defendant waved a knife at the plaintiff, saying, "I'm going to make sure you don't molest any more children!" It turns out the defendant had mistaken the plaintiff for someone else, who the defendant believed to have molested his nephew. The plaintiff, however, assumed the knife was just one of the toys from a shelf in the store and that the defendant was just making a tasteless joke, so he laughed it off and told the defendant to get lost. Only later did the plaintiff realize that the knife had been real, and that he had actually been in serious danger. As a result of looking back on the distressing event, the plaintiff has suffered from severe anxiety, leading to illness, which has caused him to miss work. Which of the following tort doctrines offers the plaintiff the best chance to recover? (A) Intentional infliction of emotional distress (B) Assault (C) Battery (D) Slander Answer choice A is correct. A defendant is liable for intentionally or recklessly acting with extreme and outrageous conduct that causes the plaintiff severe emotional distress. A defendant's conduct must be such that ordinary people would conclude that it is "outrageous." Here, the defendant intended to and caused the plaintiff severe emotional distress through conduct (waving a knife, making a threatening statement) that would be considered outrageous. Note that there is no imminence requirement for IIED like there is for the tort of assault, though the passage of time might make proving causation more difficult. Answer choice B is incorrect because the plaintiff was not placed in reasonable apprehension of an imminent harmful contact. The facts state that the plaintiff assumed the knife was a toy and that the defendant was joking. Therefore, a claim for assault would not be successful. Answer choice C is incorrect because the defendant did not make contact with the plaintiff. Answer choice D is incorrect because although the accusation that the plaintiff is a child-molester is false and would be defamatory if published, the statement was not communicated to a third party, as the plaintiff was alone in the store Themis Bar Review, LLC Diagnostic Exam Workshop: Torts

4 Question 4 (Exam Question 6) 6166 MBE TORTS INTENTIONAL TORTS INVOLVING PERSONAL INJURY False Imprisonment A college professor was administering an exam to her students. After all but one of the students completed the exam and left the room, the college professor locked the classroom door and told the remaining student that she would fail him out of the class if he did not solve every problem on the exam. The professor did not know that the student was diabetic. Because the professor had a well-known reputation for failing students who did not complete her exams, the student did not ask the professor to unlock the door and stayed an extra half-hour in order to solve the last problem. Due to the delay, the student missed his scheduled dinner and his blood glucose began to drop as he tried to rush home. As he waited for the subway, the student lost consciousness and fell off the platform and onto the electric rails. The student filed a claim for false imprisonment against the professor to recover damages for the severe electrical burns he sustained. Who will prevail? (A) The professor, because the professor's actions were not the proximate cause of the student's injuries. (B) The professor, because the student's loss of consciousness and injuries were unforeseeable. (C) The student, because the professor intended to confine him to the classroom. (D) The student, because the professor's use of future threats constitutes confinement. Answer choice C is correct. False imprisonment results when a person acts (i) intending to confine or restrain another within boundaries fixed by the actor; (ii) those actions directly or indirectly result in such confinement; and (iii) the other is conscious of the confinement or is harmed by it. In this case, the professor, who had a reputation for failing students, intended to confine the student in the classroom as evidenced by the fact that she locked the classroom door. The professor's actions directly resulted in confining the student, and the student was aware of the confinement. Thus, the professor can be held liable for false imprisonment. Answer choice A is incorrect because it refers to the standard related to proof of causation in a negligence action. Answer choice B is incorrect. Under the thin-skull rule (also known as the "eggshell-plaintiff" rule), a defendant is not required to foresee the extent of damages in order to be held liable for all damages resulting from an intentional tort. Answer choice D is incorrect. A defendant's use of moral pressure or future threats does not constitute confinement or restraint. In this case, it was the locked door, not the future threat of failing the student, that met the requirements of false imprisonment Themis Bar Review, LLC Diagnostic Exam Workshop: Torts

5 Question 5 (Exam Question 99) 6184 MBE TORTS DEFENSES TO INTENTIONAL TORTS INVOLVING PERSONAL INJURY Self Defense A man was drinking at a bar. He started arguing with the man sitting next to him, and the verbal argument quickly escalated into a physical altercation. The two men began punching each other, and then one of the men put on brass knuckles and started to hit the other man. The bartender quickly grabbed a knife from behind the bar, and tried to break up the fight between the two men. The man with the brass knuckles punched the bartender repeatedly. The bartender responded by trying to stab him. However, he accidentally stabbed a woman next to him instead. The woman has filed a battery claim against the bartender to recover damages for the stabbing. Who will prevail? (A) The bartender, because he was trying to protect himself from the man. (B) The bartender, because he did not intend to stab the woman with the knife. (C) The woman, because the bartender's intent to stab the man transferred to her. (D) The woman, because the bartender was required to retreat before using deadly force. Answer choice A is correct. A person may use deadly force to defend himself if he has a reasonable belief that force sufficient to cause serious bodily injury or death is about to be intentionally inflicted upon him. In this case, the woman will not prevail because the bartender's use of deadly force, stabbing her with a knife, was reasonable to defend himself from the man's attack using brass knuckles. Answer choice B is incorrect because although transferred intent would usually apply to a misdirected battery, one who acts in self-defense is not liable for injuries to bystanders that occur while he is acting in selfdefense, so long as those injuries were accidental, rather than deliberate, and the actor was not negligent with respect to the bystander. Answer choice C is incorrect because the doctrine of transferred intent is negated if the bartender used force necessary to defend himself from serious bodily injury or death. As stated above, one who acts in self-defense is not liable for accidental injuries to bystanders that occur while he is reasonably acting in self-defense. Answer choice D is incorrect. Under the majority rule, a person is not required to retreat before using deadly force Themis Bar Review, LLC Diagnostic Exam Workshop: Torts

6 Question 6 (Exam Question 36) 6170 MBE TORTS HARMS TO PERSONAL PROPERTY AND LAND Trespass to Land A woman was going for a stroll in a rural area. As she was walking along the road, she noticed an open field that she could cross over to reach a stream on the other side. The woman did not realize that the open field belonged to a farmer who lived adjacent to the field. If the farmer sues the woman for trespass to land, which of the following facts is necessary in order for the farmer to prevail? (A) The woman caused damage to the field when she crossed it. (B) The woman intended to commit a wrongful trespass on the farmer's land. (C) The woman intentionally crossed the open field. (D) The woman should have known the open field belonged to someone else. Answer choice C is correct. Trespass to land occurs when the defendant's intentional act causes a physical invasion of the land of another. The defendant need not know that the land belongs to another. Here, the woman did not know that the farmer owned the open field, but if she intentionally entered the land in order to reach the stream on the other side, she is liable for trespass to land. Answer choice A is incorrect because proof of actual damages is not required to prove trespass to land. Answer choice B is incorrect because a defendant need only have the intent to enter the land, not the intent to commit a wrongful trespass. Answer choice D is incorrect because what the woman knew or should have known will not affect her liability for trespass to land Themis Bar Review, LLC Diagnostic Exam Workshop: Torts

7 Negligence Duty Question 7 (Exam Question 62) 6110 MBE TORTS NEGLIGENCE Duty A runner was running along a trail at a local park. The trail circled around a lake where people often came to swim. While running on the trail, the runner saw a young child alone in the lake, screaming for help. The runner had been in the lake many times and knew that the area where the child was located was shallow, only going up to the runner's shoulders. Despite hearing the child's screams for help, the runner continued forward on the trail. Ten minutes later, a passerby rescued the unconscious child from the water. The child was revived on the beach but suffered brain damage as a result of the incident. The child's parents brought an action to recover damages from the runner for the injury to their child. Will the runner be held liable? (A) Yes, because the runner could have rescued the child without putting himself in danger. (B) Yes, because the runner knew of the child's peril. (C) No, because the runner owed no duty to the child. (D) No, because the passerby rescued the child. Answer choice C is correct. Generally, there is no duty to act affirmatively, even if the failure to act appears to be unreasonable. However, there are a few exceptions to this rule. These include when a person voluntarily aids or rescues another, places another in peril, has a contractual obligation to another, has a special relationship with another, or is in a position of authority to control another. In those situations, the individual does have a duty to act. Here, the runner owed no duty to the child since none of these exceptions apply. Therefore, the runner will not be liable. Answer choice A is incorrect because the fact that the runner could have rescued the child without putting himself in danger does not create a duty on behalf of the runner to rescue the child. Similarly, answer choice B is incorrect because mere knowledge of the child's peril is not enough to impose a duty to act on the runner. Answer choice D is incorrect because the fact that someone else rescued the child is not relevant to the runner's liability Themis Bar Review, LLC Diagnostic Exam Workshop: Torts

8 Question 8 (Exam Question 11) 6173 MBE TORTS NEGLIGENCE Duty A man liked to exercise late at night in the gym located in his condominium. As he entered the gym one night, he heard a woman screaming for help. The man rushed over to the woman, who was trapped under an 80-pound barbell. The man lifted the barbell off the woman, but injured his back in his rush to help the woman. The woman thanked the man, and told him that she knew she should not have been lifting the barbell by herself because it was too heavy for someone her size. The man has brought a negligence action against the woman to recover for his back injury. Will he prevail? (A) Yes, because the man's actions were reasonable given the woman's need for help. (B) Yes, because the woman failed to exercise reasonable care. (C) No, because the man had no affirmative duty to help the woman. (D) No, because the man's own negligence was the cause of his injury. Answer choice B is correct. A person who comes to the aid of another is a foreseeable plaintiff, and a person who negligently puts herself in danger is liable for her rescuer's injuries. Here, the woman negligently put herself in danger because she was lifting a barbell that was too heavy for her size by herself. Answer choice A is incorrect because a rescuer who takes significant risks when attempting a rescue may also be permitted to recover, despite the rescuer's negligence, although the rescuer's recovery may be reduced. Answer choice C is incorrect. Generally, there is no affirmative duty to act. However, this rule would not prevent the man from recovering damages from the woman because she negligently put herself in danger. Answer choice D is incorrect. To the extent that a rescuer's efforts are unreasonable, comparative responsibility should be available to reduce, rather than to bar, recovery by a rescuer. Here, the man's rush to help the woman may have contributed to his back injury, but this fact will not completely bar the man from recovering Themis Bar Review, LLC Diagnostic Exam Workshop: Torts

9 The Standard of Care Question 9 (Exam Question 22) 6168 MBE TORTS NEGLIGENCE The Standard of Care A seven-year-old child was taking guitar lessons from a music teacher. The child's parent accompanied the child to the guitar lessons on a weekly basis and sat in the rehearsal room with the child and the music teacher. During one lesson, the child was practicing a difficult chord, and the music teacher helped the child place his fingers in the correct position on the guitar. Suddenly, one of the guitar strings broke and poked the music teacher in the eye. If the music teacher brings a negligence action against the child, what is the child's best defense? (A) The child exercised the care of a reasonable person of similar age, intelligence, and experience. (B) The child was under the supervision of his parent at the time of the incident. (C) The child, who is a minor, is incapable of negligent conduct. (D) The music teacher assumed the risk that the guitar string might break and hit him in the eye. Answer choice A is correct. The standard of care imposed upon a child, like the seven-year-old child in this case, is that of a reasonable child of similar age, intelligence, and experience. Thus, the child's best defense is that he met this standard of care. Answer choice B is incorrect because parental supervision does not negate a child's duty to meet the applicable standard of care. Answer choice C is incorrect. A minor child is generally capable of negligent conduct, although some states deem minor children under a certain age to be incapable of such conduct. Answer choice D is incorrect because, even if the music teacher's actions constituted an assumption of the risk, it is an affirmative defense that would be unnecessary if the child establishes that he exercised due care, negating an element of the music teacher's prima facie case Themis Bar Review, LLC Diagnostic Exam Workshop: Torts

10 Causation Question 10 (Exam Question 47) 2975 MBE TORTS NEGLIGENCE Causation The plaintiff and his friend were walking on a city sidewalk. The friend jokingly pushed the plaintiff after the plaintiff started making fun of the friend's taste in music. This caused the plaintiff to trip over his own feet and stumble into the bike lane of the street. The defendant driver, who was involved in a heated argument on his cell phone, had veered into the bike lane and did not see the plaintiff. He hit the plaintiff, causing the plaintiff numerous injuries. The plaintiff has sued the driver. The evidence at trial shows that the plaintiff's injuries were caused by the negligence of both the friend and the defendant. The state has adopted a system of pure several liability. Is the plaintiff likely to prevail in a negligence claim against the defendant? (A) No, because the plaintiff's injuries were caused by multiple tortfeasors. (B) No, because the state does not recognize joint and several liability. (C) Yes, because the defendant and the friend were independent tortfeasors. (D) Yes, because the defendant's conduct was the actual cause of the plaintiff's injury. Answer choice D is correct. In order to prove negligence, the plaintiff must establish that the defendant's actions were both the actual cause and the proximate cause of the plaintiff's injury. Generally, the plaintiff must show that his injury would not have occurred but for the defendant's conduct. When multiple defendants have contributed to the plaintiff's injury, the plaintiff may establish causation by showing that the defendant's conduct was a substantial factor in causing the plaintiff's injury. In this case, the defendant and the friend were both the actual causes of the plaintiff's injury, and the plaintiff could recover against either or both of them. Answer choice A is incorrect because a plaintiff may recover against a single tortfeasor when his injuries were caused by multiple tortfeasors so long as the plaintiff can show that the defendant's conduct was the "but for" cause or a substantial factor in causing the injuries. Answer choice B is incorrect because, under joint and several liability, when two or more persons are responsible for a plaintiff's harm, the plaintiff may sue any one of them and obtain a full judgment. Under a system of pure several liability, a tortfeasor is generally only liable for his comparative share of the plaintiff's damages. In this case, the plaintiff could likely collect only a share of the full damages from the defendant. This does not, however, prevent the plaintiff from successfully pursuing a negligence action against the defendant alone. Answer choice C is incorrect because when more than one individual is the cause of a plaintiff's harm, the plaintiff may choose to sue only one defendant regardless of whether the defendants acted in concert with one another or were independent tortfeasors Themis Bar Review, LLC Diagnostic Exam Workshop: Torts

11 Special Rules of Liability Question 11 (Exam Question 56) 6535 MBE TORTS NEGLIGENCE Special Rules of Liability An elderly couple was walking down a street in a busy shopping and business district. The husband crossed the street to buy a bottle of water from a convenience store for his wife. While the wife waited across the street, she noticed a construction worker standing on scaffolding directly above the entrance to the convenience store. As the husband exited the convenience store, the construction worker and the scaffolding suddenly crashed down on top of the husband, seriously injuring him. The wife immediately fainted and hit her head on the sidewalk. As a result, she sustained a severe concussion. The wife filed suit against the construction worker for damages resulting from her emotional distress. At trial, it was established that the scaffolding collapsed due to the construction worker's negligence. Is the wife likely to prevail? (A) Yes, because the wife fainted and suffered a concussion after watching the scaffolding seriously injure her husband. (B) No, because the harm to the wife was not reasonably foreseeable. (C) No, because there was no threat of physical impact to the wife when the scaffolding fell across the street. (D) No, because the construction worker did not intend to cause any harm to the wife. Answer choice A is correct. A plaintiff can recover for negligent infliction of emotional distress from a defendant whose tortious conduct placed the defendant in harm's way if the plaintiff demonstrates that: (i) he was within the "zone of danger" of the threatened physical impact that he feared for his own safety because of the defendant's negligence; and (ii) the threat of physical impact caused emotional distress. However, a bystander plaintiff who is outside the zone of danger can still recover if she is closely related to the person injured by the defendant, she was present at the scene of the injury, and she personally observed (or otherwise perceived) it. Here, the wife suffered physical injury when she fainted and suffered a concussion after the scaffolding fell on top of her husband. Although the wife was not within the zone of danger, as she was across the street, she was present at the scene of the injury, closely related to the injured party, and personally observed her husband being injured by the scaffolding. Thus, she can recover as a bystander under a theory of NIED. Answer choice B is incorrect. The wife is a foreseeable plaintiff in this case as she is closely related to the injured party (her husband), present at the scene of the injury, and personally observed the injury. Moreover, the wife's fainting and hitting her head on the sidewalk was a type of harm that is reasonably foreseeable as a result of personally observing a loved one sustaining a serious injury. Answer choice C is incorrect because the wife does not need to be within the zone of danger in order to recover under a theory of NIED because she was closely related to her husband, present at the scene, and observed the accident. Answer choice D is incorrect because the construction worker's intent is not relevant to a claim of NIED Themis Bar Review, LLC Diagnostic Exam Workshop: Torts

12 Vicarious Liability Question 12 (Exam Question 79) 2955 MBE TORTS NEGLIGENCE Vicarious Liability A business operates a daycare center for pets. Employees of the business transport pets from their homes to the center and back again. One day after obtaining a large poodle from a client's home, an employee drove the business's van back to the daycare center. Less than a mile before reaching the center, he realized the poodle vomited in the van and all over the employee's coat. Rather than returning directly to the center, the employee pulled into a carwash to clean the van, and then drove to a dry cleaner across the street from the carwash to drop off his coat before returning to work. When exiting the dry cleaner's parking lot, the employee turned around to console the sick poodle and drove into the car in front of him. He severely damaged the car, but the poodle sustained no injuries. Would the business be liable to the car owner for the actions of the employee? (A) Yes, because the employee's trip to the dry cleaner was not a substantial deviation. (B) Yes, because the employee was within a mile of the daycare center. (C) No, because this deviation by the employee absolved the business of liability. (D) No, because the employee did not go directly to and from the client's home. Answer choice A is correct. An employer is liable for the tortious conduct of an employee that is within the scope of employment. Conduct within the scope of employment includes that which the employee is employed to perform or which is intended to profit or benefit the employer. An employer may be liable for a tort committed by an employee during the employee's detour (a minor and permissible deviation from the scope of employment), but not during the employee's frolic (an unauthorized and substantial deviation). Here, the drive to the dry cleaner would likely be considered a detour. By driving to the car wash, the employee was performing a work-related task within the time constraints of his trip to retrieve and deliver the poodle, and his actions were performed for the benefit of the employer. The trip to the dry cleaner, which was just across the street from the car wash, was only a minor deviation from his duties. Answer choice B is incorrect because the business's liability is not based solely upon the proximity of the employee to the center but rather whether or not the drive to the dry cleaner was a substantial deviation; proximity is only one factor in determining whether a deviation was substantial. Answer choice C is incorrect because while an unauthorized and substantial deviation might absolve the employer of liability, no such deviation occurs here. Answer choice D is incorrect because the employee's actions do not indicate any substantial deviation from his drive to and from the client's home Themis Bar Review, LLC Diagnostic Exam Workshop: Torts

13 Defenses Question 13 (Exam Question 24) 6187 MBE TORTS NEGLIGENCE Defenses to Negligence A man went to the doctor's office for medical help regarding his sore knee. The doctor examined him and concluded he needed a cortisone injection to reduce the inflammation in his knee. While the doctor was out of the room, a nurse prepped a needle and the medicine for the cortisone injection. However, the nurse accidentally brought the wrong medicine. The doctor came back into the room, did not examine the bottle, and gave the man the injection. As a result, the man experienced even more pain due to his knee swelling. The man waited many weeks before seeing a doctor again. If he had seen a doctor sooner, the swelling could have been easily reduced, but due to his unreasonable delay, he had to undergo surgery that cost $100,000. The man sued the doctor and the nurse to recover his medical damages. The court has appropriately determined that the man is 30% at fault, the nurse is 30% at fault, and the doctor is 40% at fault. The jurisdiction applies a pure comparative negligence rule and allows joint and several liability. What is the man entitled to recover? (A) $70,000, from either the doctor or the nurse. (B) $40,000 from the doctor and $30,000 from the nurse. (C) $40,000 from the doctor and nothing from the nurse. (D) Nothing, because the man contributed to his own injuries. Answer choice A is correct. In pure comparative negligence jurisdictions, the trier of fact calculates the plaintiff's full damages and then the damages are reduced by the proportion that her fault bears to the total harm. If the acts of two or more persons combine to produce a single harm, each is liable for the entire amount. The plaintiff may collect from one or both defendants. Therefore, the man will be able to recover from either the doctor or the nurse the full amount of damages suffered, reduced by the proportion of negligence that is attributed to him. Answer choice B is incorrect because it does not account for the application of joint and several liability. Answer choice C is incorrect because it is not an accurate statement of the pure comparative-fault rule. In a pure comparative negligence jurisdiction, the man can recover from the nurse even though the court determined that he bore the same portion of fault as the nurse. Under joint and several liability, the man can recover the full amount of damages from either defendant, not just the amount representing each defendant's portion of the total damages. Answer choice D is incorrect because it refers to the standard used in a traditional contributory negligence jurisdiction Themis Bar Review, LLC Diagnostic Exam Workshop: Torts

14 Strict Liability Question 14 (Exam Question 72) 5976 MBE TORTS STRICT LIABILITY Abnormally Dangerous Activities A plaintiff was injured when he fell in the parking lot of a chemical plant. The chemical plant, located in an uninhabited area, stored dangerous toxic chemicals that needed to be specially contained. The chemical plant exercised the utmost care in maintaining and containing the chemicals. At the time of his injury, the plaintiff was walking towards the entrance of the chemical plant. Distracted by his cell phone ringing, the plaintiff stepped into a pothole and twisted his knee. The plaintiff brought a strict liability action against the chemical plant, seeking damages for his injury. The plaintiff can establish that the plant failed to exercise reasonable care in maintaining the parking lot. Can the plaintiff recover? (A) No, because the chemical plant exercised the utmost care in conducting its storage activities. (B) No, because the plaintiff's injury did not result from an abnormally dangerous activity. (C) Yes, because the chemical plant didn't exercise reasonable care in maintaining the parking lot. (D) Yes, because the chemical plant engaged in an abnormally dangerous activity. Answer choice B is correct. Strict liability for an abnormally dangerous activity exists only if the harm that occurs results from the risk that made the activity abnormally dangerous. In this case, stepping into a pothole caused the plaintiff's injury. The injury did not result from toxic chemicals escaping from the storage facility (i.e., the risk that made the operation of the chemical plant abnormally dangerous). Therefore, the plaintiff cannot recover in a strict liability action against the chemical plant for the injury to his knee. Answer choice A is incorrect. The degree of care utilized by the chemical plant to prevent harm is not relevant in an action for strict liability based upon an abnormally dangerous activity. Answer choice C is incorrect. The chemical plant's failure to maintain the parking lot in a safe condition would be relevant to a claim for negligence based upon the chemical's plant failure to maintain the parking lot. However, it is not relevant in an action based upon strict liability. Answer choice D is incorrect. Although the storage of toxic chemicals is considered an abnormally dangerous activity, the carrying on of that activity at the plant does not automatically lead to liability for any injury that occurs on the premises of the plant. The injury in question must arise from the risk that made the chemical plant's activity abnormally dangerous Themis Bar Review, LLC Diagnostic Exam Workshop: Torts

15 Question 15 (Exam Question 58) 2949 MBE TORTS STRICT LIABILITY Animals A woman kept a wolf as a pet in her yard in the city. One day, the wolf escaped and wandered down the road. The woman's neighbor was walking on the same road when he saw the wolf. The wolf growled at the neighbor, which frightened the neighbor. In his attempt to get away from the wolf, the neighbor tripped and broke his leg. Is the woman liable for her neighbor's injuries? (A) No, because the injury the neighbor suffered is not of the type normally caused by a wolf. (B) No, because the wolf was not on the woman's property. (C) Yes, because the woman was strictly liable for harm caused by the wolf. (D) Yes, because the wolf menaced the neighbor. Answer choice C is correct. Strict liability applies to an injury caused by a plaintiff's fearful reaction to the sight of an unrestrained wild animal, in addition to injuries caused directly by the wild animal. The woman is strictly liable for injuries caused by the neighbor's fearful reaction to the sight of an unrestrained wolf. Answer choice A is incorrect because the possessor of a wild animal is also strictly liable for injuries caused by a plaintiff's fearful reaction to the sight of an unrestrained wild animal. Answer choice B is incorrect because it misstates the law. The woman was the owner of the wolf, and therefore responsible for harm it caused, even though it was not on her property. Answer choice D is incorrect because, even if the wolf had not exhibited a dangerous propensity, the woman is nonetheless strictly liable for any injury incurred as a result of a fearful reaction to her wolf Themis Bar Review, LLC Diagnostic Exam Workshop: Torts