Torts MBE Problem

Created by Constafj 

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define "public invitee."

A person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.

What duty does a homeowner owe to his licensees?

A duty to warn them of any known dangerous conditions on the premises.

Licensees are placed on the same footing as one of the family. the licenses must take the premises as the occupier himself uses them, without any inspection or preparation for his safety. He must also take his chances as to any defective conditions unknown to the occupier.

This is in contrast to the business-owner's duty to invitees, under which the landholder must inspect and take affirmative care to make the premises safe for their visit.

What is a lessor's duty to a lessee or to others on the land for physical harm caused by dangerous conditions on the land when the lessee took possession?

A lessor of land is generally not liable to a lessee or to others on the land for physical harm caused by dangerous conditions on the land when the lessee took possession.

There are, however, exceptions:
1. Lessor contracts to repair;
2. Undisclosed dangerous conditions known to the lessor;
3. Land leased for purposes involving admission of the public;
4. Parts of land retained in the lessor's control, which lessee is entitled to use;
5. Lessor makes negligent repairs

A doctor and his nurse operate on me negligently, causing me injury. I sue the doctor, who is pissed off because my injury was because of the nurse's negligence, and he was merely vicariously responsible. What can he do?

He can sue the nurse for contribution. Most states have enacted statutes that permit contribution among tortfeasors.

A doctor and his nurse operate on me negligently, causing me injury. I sue the doctor, who is pissed off because my injury was because of the nurse's negligence, and he was merely vicariously responsible. The doctor and I settle before the case goes to trial. Can the doctor sue the nurse for contribution?

Statutes of several jurisdictions limit contribution to those against whom judgments have been rendered. Where there is no such provision (majority of states), one who settles without judgment can recover contribution.

Against whom, and under what circumstances, may a strict products liability action be brought?

Against whom: person engaged in the business of selling a product at any point in the distribution chain.

Under what circumstances: Product causes harm b/c it is defective and unreasonably dangerous.

To sue in strict products liability what must the relationship between the injured party and the defendant be?

It is not necessary that the ultimate user of consumer have acquired the product directly from the seller. It is not even necessary that the consumer have purchased the product at all. A person injured by the product can recover, even if he is just an innocent bystander who happened to be near the product but has no relationship to any purchaser, user or consumer of the product.

Is an employer vicariously liable for the negligence of an independent contractor?

As a general rule, an employer is not vicariously liable for the negligence of an independent contractor. There are two exceptional situations in which vicarious liability does attach:
1. Independent contractor is engaged in an activity with respect to which the employer has a non-delegable duty of care (e.g.: When work is performed in a public area and thus necessarily involves an "inherent danger;" the employer should anticipate the need for specific precautions. Specific examples include when a painting is carried on a scaffold above a public street or when a railing needs to be constructed around an excavation site. In such situations, an employer is held vicariously liable for the negligence of an independent contractor.), or
2. Independent contractor is performing an abnormally dangerous activity.

What is a superseding cause, and what is its effect?

A superseding or supervening cause is an unforeseeable intervening cause that relieves a defendant from liability for his antecedent negligence. The superseding event, in itself, becomes teh proximate, or legal, cause of teh plaintiff's injury. If the defendant cannot foresee either the danger of direct injury or any risk from an intervening cause, he is not negligent.

Are parents vicariously liable for the tortious acts of their kids?

No.

Can children be negligent?

Yes, if they fail to exercise the care of a reasonable child of the same age, intelligence and experience.

When is violation of a statute imposing criminal liability "negligent per se?"

1. Plaintiff is a member of a class of persons sought to be protected by the statute;
2. Harm suffered was a type that the statute was designed to prevent.

While in my bedroom, I put a round in the cylinder of a revolver. I walk up to a friend, pull the gun out, spin the cylinder and say "russian roulette!" He laughs as I pull the trigger and the hammer falls on an empty chamber. He later finds out that there was indeed a round in one of the chambers. He sues for assault. What result?

Tort liability for assault will not attach.

Tortious assault occurs where the defendant does an act WITH INTENT TO PUT THE PLAINTIFF IN APPREHENSION OF AN IMMINENT HARMFUL OR OFFENSIVE CONTACT and THE PLAINTIFF IS PUT IN APPREHENSION OF AN IMMINENT HARMFUL OR OFFENSIVE CONTACT.

The friend was unaware that the gun was loaded, so he was not placed in apprehension of an imminent harmful or offensive contact.

A car owner hears funny sounds from her engine compartment but continues to drive. The sounds are the result of a defective manufacturing process that resulted in abnormally weak engine blocks and faulty valvetrains. Because of these defects, she's driving one day, and the car throws a rod right into her face, injuring her severely. She sues the auto manufacturer and establishes that the car was manufactured defectively, and that the defect caused her injury. The car company argues that, because she was unreasonable in not reporting the noise, she should not prevail. What's the best that the auto company can hope for?

The auto company actually can reduce the driver's responsibility under comparative fault principles, even though the driver's cause will not be barred altogether.

What is the intent requirement for IIED?

extreme and outrageous conduct that INTENTIONALLY OR RECKLESSLY causes severe emotional distress to the plaintiff.

When does res ipsa loquitur create a rebuttable presumption of negligence?

Trick question. Never. Res ipsa loquitur never creates a presumption of negligence. Rather, it is merely a type of circumstantial evidence creating an inference that the defendant was negligent. The burden of proof does not shift to the defendant. Instead, the plaintiff retains the burden to prove negligence by a preponderance of the evidence.

What is a synonym for "but-for" causation? What is a synonym for "proximate cause?"

"but-for cause" = "cause in fact"
"proximate cause" = "legal cause."

What is the test for proximate cause?

1. Is there but-for cause?
2. Were the plaintiff and his injury within the scope of the foreseeable risks that made the defendant's conduct negligent?

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